text:
    No. 9273.
    The State of Louisiana vs. Victor Price.
    Whaie tbo trial occupied but one clay and was continuous and uninterrupted, one mention of the prisoner’s presence in court is enough.
    An objection to the organization of the grand jury that found the bill cannot be made for the first time in the appellate court.
    It is not necessary that the proceedings relative to the selection of the grand jury shall be in the record of appeal unless specific objection hadbeen madp in the trial court thereto, when the appellant for his own protection must have them inserted. Where no objection has been made below, it is sufficient if it appear that the grand jury came into court and presented the bill.

      Objections to the reception of testimony cannot be made in an assignment of errors. 1'hey must be made on the trial, and bills of exception taken to the ruling thereon.
    Alleged discrepancies in the testimony of witnesses are matters of fact for the exclusive consideration of the jury in criminal causes.
    A new trial is not grantable for alleged ability to prove false-swearing of a witness when no attempt was made to obtain testimony to support such allegation and no diligence is shewn.
    Jurymen are not permitted to impeach their own verdict. Public decency and public policy alike forbid that jurymen who have sworn to tender a true verdict shall be permitted to swear that they rendered a false one.
    In an indictment for arson it is not necessary to charge the house was set on fire with malice aforethought, but merely “willfully and maliciously,” nor does it vitiate the indictment that the copulative is used when the statute has willfully or maliciously.
    APPEAL from the Twenty-second District Court, Parish of St. James. Duffel, J.

      M. J. Givrvninglmn, Attorney General, and J. L. Gaudet, District Attorney for the State, Appellee.

      Bobt. G. Duguó for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of arson and sentenced to hard labour for life. There are four grounds in his assignment of errors;—

1. It does not appear that he was present in court during a considerable part of the trial.

If the prisoner’s counsel has not read the record he should not undertake to i-epresent Mm. If he has read the record he should not have made the above assertion. The record affirmatively shews the presence of the prisoner in court at every stage of the trial both important and unimportant.

2. It does not appear that he was present when the verdict was rendered.

The fact of his presence is expressly stated. The trial was a continuous and uninterrupted act begun and concluded on one day. Besides the express mention of the prisoner’s presence with which the trial opens, the record of that day’s proceedings closes with the entry that the prisoner was remanded to jail. The first mention of the presence was enough.

3. That the grand-jury which found the bill was organized at a term for civil causes for which no jury had been provided and not a jury term.

The objection comes too late even it' it he well founded. It should have been made on the first day of the term. It was not made below at ail but for the first time here. State v. Daniel, 30 Ann. 91; State v. Johnson, Idem, 368; State v. Watson, Idem, 379; State v. Coudier, 36 Ann. 291;

4. It does not appear how the jurymen were obtained from whom the grand jury was selected.

If by this the prisoner means that the whole of the proceedings relative to the selection of the grand jury that found the bill should be in the record, he is in error. It is sufficient if it appear that the grand jury came into court and presented the indictment they had fouud, unless specific objection is made to its organization when such objection and the proof in support of it will appear. The reason why it does not appear here is that no objection was made to the organization of the grand jury at the proper time and no valid objection can be made by an assignment of errors iu this court. State v. Tazwell, 30 Ann. 884.

The motion for a new trial contains six grounds:

1. That the verdict is contrary to the law and the evidence which is nothing more than the formal allegation in such motions.

2. Objection is made to the testimony of the witnesses who identified certain articles found at the place of the fire as belonging to the accused on the ground that the articles should have been produced.

This should have been made on the trial and a bill of exception taken to its reception. It cannot be made after trial when the accused has waived objections by not making them and taken his chance of an acquittal. Wharton Crim. Pr. and PI. §§ 8Ú1, 844, 877.

3. This presents a question of fact pure and simple, viz the discrepancy between the evidence of two witnesses on the trial and their evidence ou the preliminary examination, and is not reviewable by this court.

4. The alleged falsity of a witness for the State and the ability of the prisoner so to have proved.

No attempt was made to obtain the witness who would have disproved the testimony of the State’s vyitness. No diligence whatever is shewn, and the brief for the State informs us she lived but a short distance from the court-house.

5. Misconduct of the jury in conversing with others during a recess of court at mid-day, and examining law-books and papers at that time.

Defendant’s own witness, introduced to support this ground, fails to do so. He says he “does not remember to have seen any member of the jury refer to any law-books or papers during the recess,” and he does not remember to have seen any persons inside the railing where the jury-box was. The sheriff and his deputy, one or other having been with the jury in charge during the whole recess, swear positively that there was no communication with others and no law-books or papers were touched.

6. This ground is thus stated;—“several members of the jury immediately or shortly after their discharge openly stigmatised the verdict as iniquitous and stated they were convinced of the defendant’s innocence,” and proceeds to detail what took place in the jury-room, and how the jurymen who were convinced of the defendant’s innocence were induced to forswear and join in a verdict of guilty. Six jurymen were offered to be sworn to prove these allegations.

The judge properly refused to hear them. The rule is of universal acceptance that jurymen will not be permitted to impeach their own verdict and thus declare their own perjury, for one oath would but offset the other. Both public decency and public policy alike demand the rejection of such testimony. State v. Caldwell, 3 Ann. 435 ; State v. Brette, 6 Ann. 653; State v. Mellican, 15 Ann. 557.

An offer was then made to prove by others that these jurymen had made these assertions to them and this was also refused, for that would have been receiving at second-hand the impeachment of the verdict by the jurymen who had rendered it, and if they cannot be heard to impeach it by their own testimony, much less can their declarations he received when filtered through the repetition of third persons.

Finally a motion in arrest of judgment was made on ten grounds, that the indictment does not charge that at the time of setting fire to the house a human being was usuallyresiding there, nor who was living in it, nor that a human being was lodging in it at night, nor that the crime was committed with malice aforethought, and such like.

'Phe words of the statute are; — whoever shall willfully or maliciously set fire to hr burn in the night time any house * * in which there shall be at the time some human being usually staying, lodging or residing at night, etc. Rev. Stats, sec. 841.

The indictment follows the words of the statute except that it charges the act to have been done feloniously, willfully and maliciously. It does charge that a human being was living in the house and gives her name, and charges that she usually lodged therein at night. There was no need to insert the words “with malice aforethought. The use of the copulative “willfully and maliciously,” when the statute has “ or” does not vitiate it. If it be criminal to burn a dwelling-house either willfully or maliciously, itintensifies the criminality to burn it willfully and maliciously. State v. Banton, 4 Ann. 31. Even in statutory of-fences it is not necessary to follow the exact words of the statute, but is sufficient if the offence is set forth with substantial accuracy. State v. Smith, 5 Ann. 341; State v. Ely, 35 Ann. 895.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J. Mannino, J.

license: Public Domain

text:
    No. 9244.
    Henry S. Armstrong vs. David Jackson.
    This being an action for damages for an aggravated and causeless assault upon a diseased and helpless man, attended with every circumstance of insult, violence and humiliation, no serious question arises except as to quantum of damages. !No rule exists by which to estimate the precise pecuniary indemnity which will compensate for such injury ; and the verdict of the jury, not being manifestly excessive, will not be disturbed.
    PPEAL from the Civil District Court for the Parish of Orleans, Tissot, J.

      W. H. Whitaker and J. D. Hill for Plaintiff and Appellee.

      Lionel Adams, W. L. Hvans and T. Gilmore & Sons for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Jackson had been libelled by the journal known as the Mascot.

Armstrong was a professional writer for the press, writing for any paper that would employ him, and, amongst others, for the Mascot.

He was not, however, either publisher or editor of the JIascot; and the evidence is conclusive that he was as innocent as the babe unborn of any connection with, or responsibility for, the articles attacking Jackson.

The irate Jackson, meeting Armstrong on Canal street, determined to empty on his unfortunate head all the vials of his wrath.

Jackson was a vigorous and burly man. Armstrong was a physical wreck, afflicted with that terrible disease, the name of which, owing to its octo-syllabic length, is not grappled with by the writer of the transcript, but which, from its description, we infer to be known as loeomotorataxia. It is, as described in the testimony of the medical expert, an atrophy of the spinal marrow, resulting in loss of control of the will over the muscles, so that the victim loses the ability to place his feet where'he wishes, or to speak what he desires to say.

As this unfortunate man came tottering, with uncertain gait, along Canal street, Jackson assaulted him with angry charges of being the Mascot and lying about him, and seized him by the throat. The shocked and nerveless man sank from his grasp prone upon the pavement, where Jackson, with uplifted foot, furiously denounced him as “scoundrel, a liar and a son of a bitch,” and threatened then and thereto “kick the life out of him,” if he did not apologize. These facts appear from the statements of Jackson himself, who emphatically declares that he meant every word he said, and that the only reason he did not “kick the life out of him,” was because he apologized.

When, by interference of by-standers, Armstrong was released from his perilous position, and was assisted to his feet, we read that he proffered his hand to Jackson, said, “I beg your pardon,” and tottered away as fast as his poor legs could carry him.

We may well believe that he had lost control over his muscles and powers of speech.

In the action for damages for this outrage, a jnry has rendered a verdict for two thousand dollars, which has been approved by the judge a quo. We know of no rule by which to measu'-e the exact pecuniary indemnity which will furnish compensation for such unprovoked violence and fathomless humiliation as Armstrong was subjected to, aggravated by the shock to his shattered nerves and the sense of his utter helplessness.

Let the tree lie as it has fallen.

Judgment affirmed.

Rehearing refused.

Mannino, J.

1 think the damages should be greatly reduced. The powerless condition of the plaintiff excites sympathy, but writers such as he have no sympathy for the powerlessness of those whom they assail, and their shafts inflict wounds compared to which the physical hurts of daggers and pistol-balls are but a trifle.

Bermudez, C. J., thinks the amount allowed too large.


author: Bermudez, C. J.

text:
    No. 9393.
    Robert L. Cochran vs. Mrs. E. A. Violet et al.
    .Judgments obtained against a tutor, during the minority of his ward, for moneys leceivecl are not money judgment which can be prescribed against by the lapse of ten years. They are prima facie proof of indebtedness, in any settlement between tutor and minor, after emancipation or majority.
    If not thus used within the four years which follow emancipation or majority, they cease to produce any effect.
    They cannot serve as a foundation for an hypothecary action, and the inscription of them in the mortgage office must be erased.
    \PPEAL from the Ninth District Court, Parish of Tensas. . Dagg, J.

      Wade £. Young for Plaintiff and Appellant.

      Percy Roberts and Steele & Garrett for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to enforce a legal mortgage said to have been judicially recognized.

The plaintiff charges that his mother, the main defendant herein, who was his father’s executrix and his tutrix, rendered, during his minority, in his former capacity, an account of her administration, wherein she acknowledged herself indebted to him and to his two minor brothers in the sum of $59,783.25, and that the account was homologated in 1867; that his under-tutor subsequently obtained two judgments against his tutrix, in favor of himself and brothers ; one on May 16, 1867, for $48,343.12£, with interest and a recognition of their legal mortgage, which was recorded on October 17, 1869; another on April 30, 1869 for $7,664.97, with like interest and recognition, recorded on October 2, 1869, Iris share therein being $18,669.33

The suit is brought against the late tutrix and the two brothers who ha ve become of age. The prayer is that the legal mortgage in his favor, recognized by the judgment, be enforced on the real estate of the tutrix, described in the petition.

The answer of Mrs. Cochran who, in 1881, became Mrs. Violet, charges that the judgments are nullities, because obtained by the under-tutor who had no capacity to stand in judgment; that they are prescribed by the lapse of ten years which have gone by since they were rendered, the same not liaviug been revived; that the inscriptions thereof are perempted by the same period of time; that they are not executory and cannot form the basis of the present action ; that the right of acfcion of plaintiff in this case is barred by the prescription of four years. The answer concludes with a prayer that the judgment ho rendered expressly" an milling those judgments.

The two co-heirs, made defendants, have joined in these defenses, and, reconvening, prayed eventually for an equal participation in the proceeds of the judgments and mortgages, in case their validity was declared.

There was judgment rejecting plaintiff’s demand, on the ground that there had been no liquidation of the accounts of Mrs. Violet as tutrix and no valid judgment had been rendered fixing the indebtedness of said tutrix to her minors, and that the right of action was barred by the prescription of four ypars. The judgment reserved to plaintiff any right of action he may have against Mrs. Violet, on account of property received in her capacity as widow in community, and dismisses the reconventional demand as in case of non suit,

The plaintiff appeal's and the defendants answering, pray an amendment to the effect that the judgments declared upon he expressly annulled, that the inscriptions thereof may he cancelled.

The facts are not disputed; conceding for the purposes of this case that the judgments are not nullities, as the under-tutor liad a right to stand in court to provoke them, two questions present themselves for solution. V. Gaillard’s case, 15 Ann.

1. Whether the judgments are prescribed and the inscriptions thereof perempted.

2. Whether the suit brought on them is barred by the prescription of four years.

It is clear that if the judgments could be considered as money judgments within the meaning of the Act of 1853, now Article R. C. 0. 3547, they would not be prescribed, and this for two reasons, fwst that prescription could not run during the minority against the minors and in favor of their tutrix: second, that prescription could begin to run only from the time of plaintiffs majority Oct. 23, 1875, and that, at the date of the bringing of this suit, June 14, 1884, the ten years had not expired. 30 Ann. 676.

The truth is, that those judgments are judgments which are not absolutely final and which cannot constitute res judicata. They are likened, to a certain extent, to judgments homologating accounts of tutorship rendered during the minority of the wards. They belong to that class of judgments which subsequently occurring events may justify the court which rendered them, to modify or even revoke them, by reason of its continuing jurisdiction over the f.ubjeet matter. They are conclusive neither on minors, nor on tutors, and may undergo, in proper cases, material changes. Tire very law, R. C. C. 356, which provides for the rendition and homologation of such accounts, prescribes that the judgment homologating shall only b oprima facie evidence of the correctness of the account homologated, in any settlement, which may afterwards be made with the minor, and therefore restricts and regulates their effect to such settlements only. They are judgments which cannot serve as a basis for executory process, or for a seizure and sale. 30 Ann. 1089; 31 Ann. 220,713; 32 Ann. 1245; 34-Ann. 28, 170, 1148; 35 Ann 322 ; 29 Ann. 256, 531, 722; 12 Ann. 361 ; 32 Ann. 459; 13 Ann. 464; 28 Ann. 824.

They are entitled to the same weight, nothing more, nothing less, as a voluntary acknowledgment of indebtedness made by the tutrix at the time; as the judgment would be, that is obtained by a creditor in a succession in process of liquidation whore the administrator has declined recognition of the claim. The judicial acknowledgment is simply a substitute for that refused, and can serve no better in the enforcement of the claim than a voluntary admission of the same made by the tutrix at the time could have done.

Such judgments are prima facie evidence, to claim a place on the account to be subsequently presented, if one had not been allowed thereon.

The prescription which extinguishes money judgments does not apply to such judgments which have a conditional existence only.

They may cease to have effect, according as they are subsequently modified by the judgment of the court which rendered them, in the settlement between the minor and the tutor at the termination of the tutorship. They are prima, facie evidences of indebtedness, when used in such settlement, within the delay proscribed by law,, within which the minor may demand an account of tutorshix» from his tutor, on his attaining the age of majority. R. O. C. 362. H not so used, they forever perish.

II.

These considerations huid to an examination of the second question submitted.

Whether the present action is barred by the prescription of four years,'under Article R. C. C. 362, which reads: “The action of the minor against his tutor resfiective of the acts of the tutorshii> is x>re-scribed by/owe years from the day of his majority."

It is clear that, although this action has not the appearance of one for the rendition of an account respecting the acts of the tutorship, it is in reality such a suit.

The plaintiff relies upon judgments rendered during his minority, against his tutrix for money which she liad received for his account from the succession of his father.

The act of receiving this inheritance is an aet of tutorship, for which the tutrix could have been held responsible in an action instituted against her within the four years which followed the date of plaintiff’s majority. Nothing shows that such suit was brought..

The delay having elapsed, without such action having been instituted, there arises a presumption “juris et de jure," that the account was rendered to the minor when he attained his majority, and that it is for that reason that he has kept silent.

Article 362 R. C. 0. is a textual extract from the Napoleon Code, with this difference, that the prescription is ten years in France, while it is only four years in Louisiana.

The prescription runs, whether the tutor has or not, during the minority, rendered an account. His entire omission does not prevent prescription from running. Where prescription has run, the mortgage which is an accessory to the principal, necessarily follows it and disappears with it. R. C. C. 3285; 20 Ann. 509; 31 Ann. 395.

The authorities, as well in France as here, are to that effect. Delvincourt t. 2, p. 658; Troplong Prescr. 2 pp. 20-21, Nos. 488; 489; Mareade 2 p. 266, No. 284 $ 2; Delsol, Vol. 1, p. 373, No. 637; 6 Ann. 345; 19 Ann. 151,176; 2 Ann. 162, 320; 10 Ann. 658 ; 10 R. 173, 6 L. 161; 4 R. 290; 20 Ann. 509.

Duranton, whom plaintiff invokes, Vol. 2, p. 225, No. 643 (Ed. Brux. 1834) refers to an adjusted account, or treaty contract after majority, and in no way before that date.

It is in that sense, thatMourlon, Vol. 1. p. 606, No. 1221, understands it also. He says: “The action in payment of the residue (reliquat) is, in fact, distinct from the action for a rendition of account. It does not relate to the acts of the tutorship, since they have already been discussed and settled by a contract. It arises from the adjusted account itself, that is, from a fact posterior to the tutorship. Also Delsol vol. 1. p. 373, No. 637; Demolombe 8 No. 158-162; Pont 1. 497, 501.

Under the plain letter of the law, C. P. 998, the plaintiff ought to have sued his tutrix for a settlement, within the four years from his attaining his majority, R. C. C. 356. Had he done so then, he would have been entitled to introduce against her, as prima facie, the judgments obtained by the under-tutor, and, on the other hand, it would liave been her right to show an extinguishment, some way or other, partial or total, of the amount of those judgments.

In 35 Ann. 945, this Court said that it is the duty of a minor to take action to settle and liquidate within four years after his majority. Iu that case, the legal mortgage claimed, as resulting from the inscription of the extract of the inventory, although not renewed, was recognized as the judgment obtained by the minor within the four years from his majority, which had been duly aud seasonably inscribed.

We think therefore that the judgments have ceased to have any effect and that the. reconveutioual demand should have been allowed. Under the prayer of appellees for an amendment of the judgmeut, the error may be corrected in this Court. .

It is therefore ordered and decreed that the judgment appealed from, so far as it rejects plaintiff’s demand and makes a reserve of rights, be affirmed, and that so far as it non suits defendants reconventional demand, it be reversed, and it is now ordered, adjudged and decreed that there be judgment on said reconventional demand declaring the judgments sued upon in the petition, to be extinct, and inoperative and entitling the reconvenors to have the inscriptions thereof cancelled and erased from the mortgage .registers in which the same were made.

It is farther ordered that the plaintiff pay costs in both courts.

Rehearing refused,


author: Pochií, J.

text:
    No. 9280.
    Margaret Smith vs. Henry J. Braun.
    An action iu damages for a breach of promise of marriage is maintainable under the laws of 1 iOnisiaaa; such a promise is a legal contract for the violation of which an action in damages will lie. The woman who sues for damages iu such a case, cannot cumulate with her main action, a prayer for the recognition of the defendant as the father of the child, the birth of which resulted from the alleged seduction of the mother by the defendant, under the cover of the promise of marriage, or for alimony for the support of the child—such demands must he enforced in separate suits.
    In a suit for damages by a woman for breach of promise, proof of her seduction is admissible to enhance or increase damages.
    Prescription of one year, which applies to damages ex delicto, cannot apply to an action for breach of promise -as such damages would arise ex contractu.

    Minority of the defendant cannot be considered as an element of defense if not pleaded in limine, and when suggested for the dust time in the Supreme Court.

      In the absence of any averment of justification of the breach of promise, and under the issue of a general denial, evidence to show the lewd and unchaste hahits of the plaintiff is inadmissible. "What is not alleged cannot be proved.
    In such oases the verdict of the jury will not be disturbed on appeal, unless manifestly erroneous and glaringly unjust.
    A PPEAL from the Civil District Court for the Parish of Orleans. x\. Tissot, J.

      Aug. Berncou for Plaintiff and Appellee.

      Brcmglvn., Buck & Binkelspiel for Defendant and Appellant.
   The opinion of the Court was delivered by

Pochií, J.

Plaintiff claims damages in the sum of $5000 for a breach of promise of marriage, followed by seduction, resulting in the birth of a child. She lias cumulated with .her main action a prayer for the recognition of the defendant as the father of her child, and for alimony for its support.

The case was tried by a jury who found in favor of plaintiff in the sum of $1500, and defendant appeals.

The dciense consists of numerous exceptions followed by a general denial.

We shall now proceed to consider the questions of law presented in the exceptions aid in several bills' of exception taken by both parties during the progress of the trial.

1. The first exception questions the right of plaintiff to cumulate with her main action the demands for recognition of the paternity of her child and for alimony.

That exception was maintained, and plaintiff was ordered to elect. In compliance, plaintiff elected to press her claim for damages for breach of promise of marriage.

Having reserved her exception to the ruling of the district judge, she has filed in this court a motion for an amendment of the judgment appealed from, with a view to correct the ruling of the judge on this point, and to recover judgment on her demand for alimony.

We think that the judge ruled correctly in refusing the cumulation of the two causes of action.

While it is true that our code recognizes the obligation of fathers and mothers to provide for the support of their illegitimate offspring, it is clear co our minds, that under a correct exposition of its provisions on this subject, the mother of such a child cannot cumulate a demand for alimony with an action for damages for a breach of promise of marriage, and for seduction which resulted in the birth of the illegitimate child.

The real meaning of the code is that this alimony must be claimed for and in the name of the child—and the code also specifically directs and requires that such demand must be pieceücd by a legal acknowledgment of the child by the party from whom alimony is claimed or by a judgment declaring the child' to be the offspring of such party. C. C. 242.

Under these plain provisions, it is safe to conclude that the demand for alimony could not be legally engrafted to the main action disclosed in plaintiff’s petition.

The right of plaintiff to bring these two actions for recognition of her child and for alimony for its support, will therefore not be affected or impaired by the final judgment which we shall render in the present controversy, which is thus restricted to the question of damages for breach of promise and seduction.

2. Defendant excepted to the vagueness of the petition in its allegations of breach of promise—and he seeks a reversal of the judge’s dismissal of that part of his defense. He complains particularly of the want of a special averment of the date at which the alleged promise of marriage was made or was entered into. We have carefully considered the petition in this connection, and while it must be conceded that it might easily have been characterized by more clearness of composition and greater precision, we find that it is sufficiently clear to inform the defendant of the real cause of action to which he was called to answer, and that it thus conforms to the requirements of the rules of pleading. Time is not of the essence of the promise of marriage, and the allegation that the ¿seduction occurred on or about the month of July, 1882, and that it 'was effected in connection with the defendant’s promise to marry the plaintiff, is in our opinion sufficiently pointed as to the time of the alleged promise.

We therefore sustain the judge’s ruling on this point.

3. The defendant also relies on his peremptory exception of no cause of action.

A promise of marriage may be the foundatiofi of a long life of usefulness and happiness; and the breach thereof may entail disgrace and long sufferings caused by bitter and unrelenting disappointment; it is therefore wise and logical that the party who causes such effects should be held legally responsible therefor.

But we are not left alone to reasoning and logical deductions in order io reach a legal conclusion on this point. Our code, Art. 192.8, specially recognizes a promise of marriage as one of the contracts for the violation of which an action in damages will lie. And that provision of our law has received judicial interpretation and was enforced as a legal cause of action in the case of Morgan vs. Yarborough, 5 Ann. 317. While we hope with our predecessors in that case, that suits of that nature will not be of frequent occurrence in our courts, we must hold as they did, that such a complaint presents a very serious cause of action. '

T-Ience, we find no error in the judge’s refusal to entertain that exception as a legal defense.

4. Defendant’s exception urging the- plea of prescription, was likewise and properly overruled.

The very essence of the action involves the alleged violation of a promise, which is treated in the code as a contract; hence the prescription which bars a demand for damages ex delicto cannot apply in this case.

5. In this Court, for the first time, and by way of argument, defendant suggests as a defense his minority at the time of the alleged promise of marriage. The mere statement of that defense and of the. circumstances under which it is urged, carries with it its complete refutation.

Such a plea, unless set up in the pleadings, and in limine, could not have opened the door to evidence in support of it in the lower court.; it stands to reason that it caifnot be entertained for a moment when conceived for the first time on api>eal.

Defendant’s bill of exception presents the question of the admissibility of evidence in support of the alleged seduction of the plaintiff by the defendant.

His contention is that, as seduction cannot be the basis of a demand of damages, no proof of the same should have been allowed.

A consideration of respectable authorities from our sister States has led ns to the conclusion that in an action for breach of promise by a, woman, evidence that she was seduced by the defendant under a promise of marriage was admissible, as an element of damages growing out of circumstances so closely connected together. 102 Mass. 395; 106 Mass. 339; 11 O. S. 330; 27 Mich. 217: 37 Ala. 379-

The same doctrine has been held in Prance, whence we derive all our system touching the contract of marriage and its attendant circumstances. Journal du Palais, 1867, 208; 1865, 730.

We therefore sustain the district judge in Iris ruling on the defendant’s objection to that evidence.

Plaintiff objected to the introduction of evidence tending to show that she was an unchaste person and loose in her habits and morals, on the ground that such evidence was inadmissible under a general denial.

Defendant had a two-fold purpose in resorting to that attack.

1. He desired thus to rebut the proof of his promising to marry a woman known to be lewd and unchaste.

2. He sought to justify his alleged breach of promise to marry a woman whom he subsequently discovered to be undeserving of his love and of his name.

We think that the district judge erred in his unqualified or unreserved admission of testimony on that point. As an element to rebut the proof of a promise of marriage, it was properly admissible under a general denial—and to that end and to that extent only we shall consider that testimony in our disposition of the case on the merits.

But, as a means of justifying a breach of the promise of marriage, it was clearly inadmissible in the absence of an averment to that effect in the pleadings.

The general denial put at issue all the facts aud the law invoked by-plaintiff in support of her demand of damages for a breach of an alleged promise, but more particularly and essentially the existence of the promise it cannot be tortured to mean an admission of the promise and a reason for a breach1 thereof- That defense is manifestly excluded by an unqualified general denial—and an attempted proof of the same must of necessity take the plaintiff by surprise, and is not covered by the scope of the defense.

In tile case of Cass vs. Cass, 34 Ann. 64, which was an action by the wife for separation from bed and board, we were called to treat of a kindred question, and we reached an analagous conclusion.

In that case the defendant husband had been refused a new trial, which he had sought on the ground of newly discovered evidence, which would have proved, as contended for, his wife’s adultery committed previously to her action for separation. The new trial was refused by us on the ground that defendant had not alleged his wife’s adultery in his pleadings—we said : “A correct test of defendant’s right to a new trial, under these circumstances, is found in the solution of the question of the admissibility of that evidence under the pleadings;” and we concluded by saying : “We are olear in our conclusion that in the absence of a specific allegation ot adultery in a suit like this, the defendant cannot be allowed to introduce evidence of adultery against the plaintiff, who would thus be completely surprised, and deprived of the time or opportunity to prepare her defense against the most heinous charge which can be hurled at a manned woman and a mother.”

That reasoning applies with great force to the question now under consideration, and in admitting that testimony as a means of resistance to plaintiff’s testimony on the question of the promise of marriage, while we exclude it as a support of justification of the breach of the promise, we make the most liberal ruling in favor of the defendant, which he could jiossibly obtain under the status of his pleadings.

After a careful examination of that testimony, under the restriction above indicated, and without reference to its details which are entirely too offensive for publication in a judicial opinion, we must state without delay, that it falls very short of its intended effect; and that it utterly fails to justify even a suspicion of the virtue and chastity of plaintiff previous to and up to the time of her alleged engagement to marry the defendant.

The record fails to show the existence of any circumstances which would naturally or legally exclude the possibility of a promise of marriage, or of a marriage between the parties to this suit.

The argument that a marriage was not probable or even possible between plaintiff and the defendant, because she was a menial servant in the employ of the defendant’s mother, finds no absolute support in the ordinary experience of families, or in the light of contemporary history, and much less in the particular circumstances of this case, in which it is shown that the servant was treated with absolute equality in the defendant’s family with whom she ate at the same table, and with whom she occupied the same social position; the only difference in their conditions resting on a pecuniary inequality.

The law must and does protect the. rights, and it must shield the weakness of the servant maid, with the same care and solicitude that it extends to the highest and most accomplished lady of the land.

We now reach the consideration of the most difficult question in the case, and that involves the proof of the promise of marriage. Having been repeatedly called to marry tbe plaintiff, and having as often flatly refused to comply with his alleged promise, the defendant rests His main defense on the want of sufficient proof of his promise to marry the plaintiff.

He places great reliance on the fact that plaintiff is the only witness who testifies on that subject, and on the fact that in his testimony he denies the alleged promise with equal force and solemnity.

Hence, his counsel confidently urge upon us the reversal of the jury’s verdict, as resting on insufficient evidence.

Were we called upon in the first instance to decide that vexed question, we would confess a certain degree of hesitation and embarrassment to reach a clear conclusion, although we. find the testimony of plaintiff corroborated by one or two circumstances, and, although we find her statements more plausible, better connected and more straightforward than the testimony of the defendant, which is far from satisfactory and convincing, hut strikes us on the contrary as improbable and glaringly contradictory. Manning’s Unreported Cases, p. 398.

Hence, we are far from finding in the record any reasons to satisfy us thatthe verdict of the jury is manifestly erroneous, or even unjust in the siglitest degree.

Such íeasons alone could, under the well established rules of our jurisprudence, justify us in disturbing their verdict, and in reversing the condusions of the district judge, who refused a new trial, and, who therefore mast have believed that the finding of the jury was justified by the evidence, all of which had been taken in his presence and healing and under his observation and direction.

The present case is one peculiarly within the province of a jury for correct conclusion on conflicting testimony—and the rule above referred to finds great practical force in its application to issues like hese herein involved.

Hence, we eon elude not to disturb the finding of the jury, and to eave the case as they found it.

Judgment affirmed.

Rehearing refused.


author: Manning, J.

text:
    No. 9230.
    The State ex rel. A. T. Stevenson vs. E. A. Burke, Treasurer.
    "When no issue has been joined either by a default judgment or answer filed and no proof has been offered, and when in addition to these defects an amended petition has been filed and bas not been served but the judgment is rendered as prayed therein, it must of necessity be reversed.

      APPEAL from the Seventeenth District Court for the Parish of East Baton Rouge. Sherburne, J.

      Seed c& Qoodale for Plaintiff and Appellee.

      M. J. Ounningham, Attorney General, for the State, Intervenor and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

A judgment having been rendered for the relator, the Attorney General appealed on behalf of the State, and the relator moves to dismiss it.

The whole trial was out of term and the complaint is that the appeal is not taken by petition and citation—in other words that the judge was competent to sit, try the case, and give judgment out of tem but was not competent to grant an order of appeal therefrom. The appeal was properly taken. Sue. Berfuse, 34 Ann. 600. The motion is (fenied.

On Motion for a Certiorari.

It must be refused because even if the missing documents were supplied, the irregularities presently to be noted are so great that an affirmation of the judgment is impossible. *

Motion refused.

On April 12, 1884, the relator alleging that he is the holder ¡>f Auditor’s warrants amounting to $28,436.85 payable out of School am General Fund taxes and licenses due the State prior to 1880, obtained from the District Judge of East Baton Rouge a mandamus to the State Treasurer to pay them or shew cause why he should not. It was made returnable on the 19th. of the same month and service was made on a clerk of the Treasurer at the Capitol. On the 25th. the relator filed an amended petition alleging that there were large unappropriated balances in the Treasury to the credit of the General Fund of 1880 and succeeding years sufficient to pay the outstanding warrants of the State for past years, and prayed that the Treasurer be ordered to pay the relator’s warrants out of the general and school funds of 1879 and out of any unappropriated balances to the credit of the general fund of 1880,1881 and 1882.

No service whatever was made of this amended -petition and the Treasurer took no notice of either and made no appearance in the cause.

On the, same day, and to all appearance simultaneous with the filing of this amended petition, no evidence having been introduced, a judgment was signed making the mandamus peremptory and ordering the Treasurer to pay the full amount claimed ont of the funds specified in the original and amended petitions. All this was done in chambers.

On May 2d. the Attorney General (hearing he says of these proceedings by accident) took this appeal from the judgment on the part of the State alleging that she is the real party in interest.

We do not find it necessary to go into the questions dismissed in the Attorney General’s brief. Every step in the matter has been so gross a violation of the mode of procedure that the judgment cannot stand.

No issue was joined with any one. There was no default on the original petition, no service of the amended one, no answer filed, no proof offered. The judgment followed immediately on the filing of the amended petition. There are fifty seven pages of lists of warrants annexed 1o the petition for reference, drawn in favor of numerous persons, but not offered in evidence, nor is the relator connected with them in any way except by his mere allegation that he owns them. There is no note of evidence nor any statement or suggestion any where in the record of proof having been offered save the usual recital in the judgment.

A judgment thus rendered must be set aside.

It is therefore ordered and decreed that judgment of the lower court is avoided and reversed and the mandamus is refused at the relator’s costs without prejudice to his claim if any he has.


author:
Fenner, J.
      Bermudez, C. J. Bermudez, C. J.

text:
    No. 9279.
    Factors & Traders’ Insurance Company vs. New Harbor Protection Company et als.
    After judgment and expiration of delay for suspensive appeal, the party cast preserves the right to a devolutive appeal within one year, but all power to prevent the execution of the judgment is lost. Sale under such execution passes valid title.
    The party may, therefore, take such steps as the law authorizes to prevent the sacrifice of his property, without thereby acquiescing in the judgment or forfeiting his right of appeal. His acting in the appointment of appraisers, attending and bidding at sale and like conservatory acts, do not constitute acquiescence in the judgment, barring appeal.
    Corporations created under the general law of the State, (H. S, 683 et seq,) have no power to create a corporation distinct and independent from themselves. The word persons found iu the law were designed to mean natural persons and not juridical persons. Human beings, capable of contracting, alone can create a corporation within the purview of the statute.

      Where an attempt has been made by corporations to create such corporation and property has been acquired in the name of the concern, the parties in interest unwilling to own it in indivisión can have it sold and the proceeds distributed pro rata.

    PPEAL from tlie Civil District Court for the Parish of Orleans. . Houston, J.

      Nietwlls & Oarroll for Plaintiffs and Appellees.
    ilf. ilf. Góhen and T. Gilmore é Sons for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The plaintiff and appellee moves to dismiss this devolutive appeal on the ground that the judgment has been partially executed by sale of the boat in conformity with the terms of the judgment ; and that the appellants, though present in the parish, did not oppose the execution; but, on the contrary, appeared at the sale and became bidders thereat.

The facts alleged do not appear in the record, nor are they admitted by appellants. We need not determine what would be our course, if the facts alleged constituted such an acquiescence in the judgment as would defeat the devolutive appeal.

We are of the clear opinion, that taking the allegations as true, they would not affect the devolutive appeal.

After judgment and expiration of delay for suspensive appeal, the party cast preserves the right to appeal devolutively within one year ; but all power to oppose or prevent .the execution of the judgment is lost.

It is not necessary for the preservation of the right of appeal that the party should make a vain and profitless opposition to the execution, unfounded in law or right, and which could meet no fate but. a summary dismissal at his cost.

The sale made under such an execution would be perfectly valid and would convey indefeasible title to the purchaser, regardless of the result of a devolutive appeal. Therefore, the party who has no power to obviate the sale of Ms property, has a perfect right to take such steps as may prevent its sacrifice, and, to that end, may apiioint appraisers, bid at the sale, and perform like conservatory acts, without thereby acquiescing in the judgment or forfeiting his right, of appeal. McConnell vs. Pasley, O. B. 57, fo. 33; Prentice vs. Chewing, 1 Rob. 70; Jackson vs. Michel, 33 Ann. 723; Alter vs. Pickett, 24 Ann. 573; Yale vs. Howard, id. 458; State ex rel. Hoey vs. Brown, 29 Ann. 862; Johnson vs. Clark, id. 762.

The motion to dismiss is, therefore, denied.

Bermudez, C. J.

The plaintiff company avers that in July, 1875, by its conjoint action with thirteen other similar companies—under the belief that their object could be legally accomplished—a corporation, distinct from themselves was sought to be created by notarial act, under the general law; that it was to be known as the “New Harbor Protection Oornpany; that property was acquired in its name, as though it was a legal organization ; that it, the plaintiff, has since discovered its error ; that its liability may be quite different from what was originally supposed; that said corporations could not legally create another corporation ; that the corporation sought to be by them thus created, has no legal existence; that its charter shorrld be annulled and that the effects standing in its name should be sold, and the proceeds distributed among the parties interested in the concern, in proportion to their respective interest therein.

Citation was askqd against the parties claiming to represent said “New Harbor Protection Company,” and against the different companies who had coalesced to create such corporation, and judgment was prayed, declaring that said company never had any legal existence as a corporation, an association or a partnership; that the property standing in its name, belongs to the holders of the certificates of stock issued by it and must be sold, the proceeds to be distributed among them ratably as joint owners of such property.

All the parties against whom citation was asked, save two, made appearance by exception, estoppel and answer, antagonistical of the pretensions of the plaintiff company.

The two companies who did not accept the attitude of defendants, join the plaintiff and ask the court to declare that the notarial act was passed in error and in violation of law; that the assets of the so-called corporations be sold and its proceeds distributed among those concerned therein.

The exception was to the want of authority on the part of plaintiff, to bring this suit, but it was, in furtherance of some agreement between the parties in open court; abandoned.

The estoppel was that the plaintiff, having in different ways, recognized the existence of the created corporation, was debarred from alleging and urging adversely thereto.

This estoppel was overruled. Issue having been joined by an answer on the merits, there was judgment for the plaintiff from which the defendants have appealed.

Ok the Estoppel.

Whatever he the principles and the doctrine on the subject of estoppels, invoked by the defense, they cannot bo construed so as to prevent any one from denying the legal consequences which may be claimed as flowing from the admitted state of facts, when it is apparent that no sucli consequences can legally result from the acknowledged facts,-or when one of the parties to an acknowledgment brings an action against all the other parties to have the acknowledgment annulled and set aside on the ground that the same is on its face violative of law and therefore barren of all effect. It has been well said that a capacity which has no legal existence, cannot be considered as admitted. 6 R. 13.

An acdnowledgment, however authentic, that title to real estate has been finally adjudicated upon by a justice of the peace, could not be set up as a.n estoppel, because it is legally impossible that such final decision has been legitimately made, as justices of the peace have no jurisdiction over titles to real estate.

A judgment sought to be annulled, caunot be set up as res judieata in bar to the suit in nullity of the same.

An acknowledgment that one has sold his right of inheritance in a future succession, cannot be set up as an estoppel, because all contracts of such a nature are expressly forbidden, and can neither confer rights, nor impose obligations.

Au acknowledgment can never be invoked to maintain a condition or state of things created in violation of a prohibitory law.

Conceding, therefore, that the plaintiff company, with the other comi>anies, thought they could create another corporation, association or a partnership; that they coalesced to do so, considered and admitted they had done so, it by no means follows that those acts and doings can be set up as an estoppel to the present action to prevent the plaintiff from contesting the legal existence of the New Harbor Protection Company, if from f lie face of the act, which was instrumental in the formation of the concern, and which is the main foundation of the plea, it appears that the parties to the act could not and did not, therefore, create the organization.

The right of a corporator has been recognized to charge directly that a company which claims to have become incorporated, has never been legally organized as a corporation, and has never existed as such. Abbot on Corp. p. 365, Sec. 100 ; 32 111. 79, (1863).

The decision of the plea of estoppel is so closely blended with the merits of the ease, that it is impossible to yrass upon that defense without trenching and virtually determining the issues presented in this controversy.

The district court overruled it, we think" properly, for the reasons which we will now proceed to assign.

On the Merits.

Bermudez, C. J.

It is elementary that corporations are the creatures of law, either by special and express legislation, or under general and formal statute authorizing their formation. In either case, they have only such powers or rights and incur only such obligations, as are conferred or imposed, expressly or impliedly, and as are necessary, and inherent to their existence.

When legally created, they .shield from personal liability the persons who compose them and are themselves responsible to the extent of their assets and not beyond the same, unless there has been distinctly stipulated in their charter to the contrary and the scope and measure of the liability has been clearly stated.

Our code defines a corporation to be an intellectual body created by by law, or established by lawq which is composed of individuáis, united under a common name, the members of which succeed each other, so that the body continues always the same, notwithstanding the change of the individuals, and which, for certain purposes, is considered as a natural person. R. C. C. 427, 432.

The code proceeds to state in what respects they are substituted to persons, and provides that they may enact statutes and regulations; provided, the same be not contrary to the laws of the political society of -which they are members. R. C. C. 433. It announces emphatically that unauthorized corporations enjoy no public character and cannot appear in court, but in the individual name of all the members who compose it and not as a political body, although these corporations may acquire and possess estates and have common interests, as well as other private societies. R. C. C. 446.

In 1855 the legislature passed a law—No. 131, amended in 1868 (No. 73)—making- it lawful for any number of persons, not less than six, on complying with the terms prescribed by the act, to form themselves into and constitute a corporation for a number of purposes, generally stated, defining their 'powers. This act is incorporated in the R. 8. under sections 683, et seq.

The question presented in this controversy for solution is simply, whether the “New Harbor Protection Company” is a corporation, association or partnership, organized under that general legislation. To solve it, it isnecessary to inquire whether the corporations, though représen ted as they were, at the making of the act of July”, 1875, could have legally formed any agreement, the object of which would have be.en to create an organization, of whatever nature, distinct from themselves, to accomplish the purpose they then had in view, which was to extinguish fires on vessels, to grant aid to wrecks and to aid the fire department in extinguishing fires.

The provisions of the code and of the statute leave no doubt in the mind, that a corporation is a body composed of individuals and, when not created by the legislature itself by special legislation, cannot be formed and brought into existence unless by the concurrent action of at least six persons.

The words individuals and;persons in those provisions of law must be taken as synonymous and as meaning natural and not artilidal persons; in other words, human beings.

It has been held that when the word “persons” is used in legislative acts, natural persons willbe deemed as intended, unless something appear in the context to show that it applies to artificial persons. Bouvier Vo. Person (3).

Twenty-five years ago the then Supreme Court of this State was called upon to determine whether a corporation created under the act of 1855, March 14th, p. 182, relative to the organization of corporations for works of public improvement and utility could avail itself of the provisions of the act relative to the voluntary surrender of property, approved March 15, 1855, the first section of which provided: “Any person may make a cession of his property to his creditors.”

Tt was then contended that corporations constitute a class of persons under the provisions of the Louisiana Code of 1825, and the attention of the court was directed to article 431 of that code, in which corporations are designated as mtélleotual persons.

The court tersely said :

“We are of opinion that the term person, in the first section of this act of the legislature refers to natural persons alone apd that it was not the intention of the law-giver to include under that denomination, the artificial or legal person which is the subject of the tenth title of the first Book of the Civil Code.”

The court supported that conclusion by a comparison of the act with anterior ones, on the subject of voluntary surrender and a reference to the ruling in the case of the Commissioners of the Exchange Bank, 6 Rob. 398. In that case the court said, that no law existed prior to 1842 which defined the insolvency of a corporation or provided for either its voluntary or forced liquidation.

It therefore follows that, as the parties which appeared in the notarial act of 1875 were corporations, and not natural persons or human beings, capable of contracting, they had no power to create, as they proposed doing, the corporation to be known as the New Harbor Protection Co.,” and that therefore they did not do so.

The companies which appeared at the making of the act, were insurance companies, whose charters did not authorize them to form an association or partnership. As a rule corporations are not capable of forming a partnership. Abbot on Corp. 571, No. 37, and authorities there cited. The purpose of the act, besides, was clearly to create a corporation, and not an association or partnership. Even if they had the power to create an association or partnership, they did not contemplate forming one, and they have not done so.

It has been argued with some earnestness that, even if corporations could in Louisiana create a corporation, the insurance companies which attempted to create “ the New Harbor Protection Co.” in July 1875, could not have legally done so, for the reason that such creation was not only not among the objects enumerated in their own charter, or in the law then in force, but beyond and in contravention thereof. On this point we express no opinion, as it is unnecessary to do so, the case ■ being decided on a superior ground.

We deem it hardly necessary to suggest that we are not to be considered as holding that corporations which are intellectual beings, cannot act in a number of casos, as can natural persons, with whom they are often assimilated. Wo simply decide that they cannot create a corporation, under the general law of this State, as found in sec. 683 et seg. of the Revised Statutes.

It remains now to determine what disposition can be made of the property acquired in the name of the New Harbor Protection Co., which is nothing but a nondescript organization, composed of the owners of certificates showing the proportion of their respective interest in its asset and liability for its obligations, and who are co-owners or proprietors in common.

As no one is bound to own property in indivisión, it follows that such owners who wish a division have a right to have that property sold, and after a liquidation of the affairs of the concern, to have the residue distributed ratably among themselves.

We have read with interest the instructive brief submitted by the learned counsel for defense and his colleagues, in support of the able oral argument made on the trial; but as we deem that the innumerable authorities to which we are referred, derive from sister States governed by different laws and arise under different states of facts, and therefore can receive no application in Louisiana, whose special legislation prevails on the subject of the formation of corporations by persons under general laws, we have dispensed ourselves from the cumbersome and fruitless task of analysing and considering them specially.

We are of opinion that the district judge has correctly decided the issue presented, in favor of plaintiff.

It is therefore ordered and decreed that the judgment appealed from be affirmed with costs.

Rehearing refused.


text:
    No. 9274.
    Mrs. Ann Huyghe vs. Henry Brinckman.
    An allegation tliat tlie plaintiff possesses the property as owner does not make the action petitory, It was necessary to allego tliat slie possessed as owner or in some other capacity tliat entitled lier to the possession. When tho prayer is for the restoration/)f possession alone, the action is possessory.
    Whore the defendant pleads in reconvention sums expended for repairs, taxes, etc and was prevented from introducing testimony in support of his plea because the case went off on an exception, it will be remanded to enable him to introduce such testimony when he alleges that he possessed in good faith.
    A PPEAL from the Civil District Court for the Parish of Orleans. Xl Monroe. J.

      A. GolcWuvaite for Plaintiff and Appellaut.

      Bayne & Denegre for Defendant and Appellant.
   The opinion of the Court was delivered by ■

Manning, J.

This is an action to recover possession of an improved lot on First street in this city, from whicli the plaintiff was ejected on November 2, 1878 by the defendant. The suit was instituted within a year, viz on October 22, 1879, and therefore the prescription pleaded does not bar it.

The petition alleges that she is the owner of the property and had been in possession as owner quietly and without interruption for more than a year previous to her eviction, and prays tliat she have judganeut condemning the defendant to restore to her the possession, re.serving her right to sue for damages. She afterwards filed au amended petition praying for forty dollars a month as damages for the illegal •detention of the property.

An exception was made that the amended petition changed the nature of the original demand, hut we can scarcely think it is seriously ■urged although it appears in the defendant’s brief.

The case went off below on a ruling of the court that the allegations ■of the plaintiff virtually made the action petitory, and therefore permitted the defendant to offer evidence of title. The plaintiff appealed.

The allegations and prayer of the petition alike demonstrate the .action to be possessory. We so regarded it when it was here before ■and so denominated it. Huyghe v. Brinkman, 34 Ann. 1179. The amended petition merely reiteiated the allegations of the original and added a claim for damages.

The defendant insists that the distinct and independent allegation in the original petition that she is the owner of the property, totally ■disconnected with any averments with reference to its possession,” ■stamp the action as petitory.

It was necessary that she should allege to possess as owner or was in some other capacity entitled to possession. Preston v. Zabrisky, 2 La. 226. The prayer is alone for the restoration of possession, and that fixes the nature and kind of the action. The pleading's and issue ■are a reproduction of Kemper v. Hulick, 16 La. 44. The judge erred.

The proof of rental value is thirty dollars a month for which the plaintiff prays judgment. The defendant urges that he is entitled to ■reimbursement of taxes, necessary repairs, etc. in the event that we should reverse the ruling touching the kind of action, and did not offer any proof of them because under that ruling it became unnecessary. He alleges that he was a possessor in good faith, and asks the case be remanded to receive such proof.

We do not determine here the question of his possession in good faith, but it is fair that he should have an opportunity to shew it and the cost of taxes and whatever else ho can properly plead in offset to the plaintiff’s claim for rent.

It is.therefore ordered and decreed that the judgment of the lower ■court is reversed, and that the plaintiff now have judgment for the possession of the premises described in her petition, and for thirty dollars a month as rent of same from November 2, 1878 with five per centum interest from the expiration of each month and costs of both courts, and that the case be remanded to receive proof of the matters-above indicated and counter-proof of the same, and for judgment thereon.

Rehearing refused.


text:
    No. 9348.
    Wm. L. Shaffer vs. State National Bank et als.
    Contracts whereby servitudes are created, are designed to confer rights and impose obliga^ tions, which, otherwise, would have no existence and should be strictly construed.
    In the absence of express or implied stipulations, the rights and obligations of the parties* tbereunder-must be interpreted and regulated by the laws relative to like servitudes.
    Under a contract creating a predial servitude in favor of one estate on another—both being sugar plantations—whereby the owner of the former acquires the right to use a canal or aqueduct running through the latter, so as to "get water” from a lake or swamp, in favor of the subjected or debtor estate, and "conduct it” to the favored or creditor estate,— the owner of the encumbered property has no right to obstruct the flow of the water hv the erection of dams, or to divert it by excavations below the level of the bottom of the-canal, unless in cases of necessity for self protection against injury which would otherwise result, or for purposes of great utility, and then only for a time and with due regard, to concurrent, rights to the water
    Neither can such owner, in the absence of express provision in the contract, discharge into such canal the skiminings or refuse of the sugar house on his land, where, at the date of' the agreement and for years before, such refuse' was bridged over said canal and disgorged across it to pursue a further course. Emptying such filth iuto the aqueduct would not only impede the flow of the water, hut also pollute the water so as to render the use of' it of not only of no advantage, hut make it dangerous in supplying the boilers on the favored estate, which, in consequence of the adulteration, would he exposed to deterioration and explosion.
    The owner of the creditor estate has no right to enter upon the subjected one, put up buildings and. machinery, unless where it is indispensably necessary for the enjoyment of the-right to get and conduct water through the acqueduct.
    Courts cannot he asked to construe contracts and laws so as to meet hypothetical differences. They have enough to deal with existing wrongs without anticipating supposable evilh* which may never occur.
    PPEAL from the Nineteenth District Court, Parish of Terrebonne.. Goode, J.

      L. F. Suthon for Plaintiff and Appellee.

      John JB. Winder for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendants appeal from a judgment which-construes favorably to plaintiff a contract under which he claims-a servitude of aqueduct, in other words, a right to draw water. R. C.. C. 721.

The plaintiff was the owner of the undivided third of a sugar estate known as the “ Ardoyne ” plantation, which, in January, 1883, he conveyed to the defendant Bank.

The conveyance contains the following clauses, on the subject of this-' servitude:

“This sale and transfer is made under the express condition that the-said Shaffer shall have the right to get water from the swamp in front of said Ardoyne plantation, and conduct it back to Cedar Grove plantation, it being well understood that said Ardoyne plantation shall not be put to any expense or damage for extra ditching, changing of ditches- or giving other lands for that purpose; nor in any manner shall the said Ardoyne plantation be injured by giving said privilege to tlies'aid Shaffer.”

“Immediately after signing the foregoing deed, it was further agreed between the parties thereto, that the owner or owners of the Cedar Grove plantation, now belonging to said Shaffer, shall have the right to use a canal now opened on and through the Ardoyne plantation, to-carry water to the Bayou Cliacahoula, at the upper end of Bergeron & McCollam plantation, joining the Ardoyne on the right hand descending bank; provided said privilege does no damage to said Ardoyne plantation, by overflowing the lands, or causing any obstruction to-prevent the water from running off said Ardoyne plantation, or impairing its proper drainage; the owner or owners of said Cedar Grove-plantation shall at all times keep said canal open at their own expense,, for the free running of the water in said canal, and for preventing any injury to the drainage of said Ardoyne plantation; and the owners of" said Ardoyne plantation shall place no obstruction to prevent the water from running freely through said canal, unless it may be for the purpose of preventing damage to said Ardoyne plantation, as stipulated ini the foregoing deed. One-half of the expense of keeping said canal1 open from the lake or swamp in front of said Ardoyne plantation, to a point on said plantation opposite the cooper shop now on the place— shall be borne by said Ardoyne plantation, and the other half of saidl expense, as well as the expense of keeping said canal open from the'cooper shop down to -the Bayou - Ckacáhoula, shall be borne by the-Cedar Grove plantation.”

The plaintiff, in an elaborate petition, substantially charges that, in-October following, having proceeded to exercise his rights thereunder,, he found that obstacles had been thrown in his way and that, having; complained, lie was threatened with a suppression of his privileges.

His complaint is, that two dams were placed in the aqueduct canal; that a cross ditch running at right angles with the canal, was deepened to such an ext nit as to draw off the water; that the threat was made, and about to be consummated, to run the sugar-house skimmings of Ardoyne plantation into the draining canal; that, unless those impediments are removed and those menaces are prevented from being consummated, Ms right to draw water will be completely destroyed.

He prayed for an injunction, which was giantcd,and that, in due course, there be judgment recognizing bis rights, aud allowing him $5000 as damages.

The defense set up admits the execution of the act, under which plaintiff claims; but contests tlie construction put on it by him. The defendants say, that the plaintiff must enjoy his light, without inflicting any expense or injury on them or their property; that they have the right to use said draining canal for their own purposes also, and of emptying therein the skimmings of the sugar-house ; that discharging the refuse otherwise would require of them extra ditchings, changing of ditches, and giving land for the purpose, and would thus impose expense on them and injury on their land; that the plaintiff has, without any authority, entered upon their lands and erected thereon works, buildings and machinery and has refused to remove the same.

The answer concludes by praying that plaintiff’s demand he rejected; that he be confined to the exercise of Ms rights through the canal, by keeping it in order, without the erection of works or any machinery ■on Ardoyne plantation, or changing its drains, ditches or skimming •drains; that he be ordered to remove from Ardoyne all the works, •etc., by Mm erected, and be enjoined from using any of tbe lands, and from changing or interfering with the drains, skimmings or ditches, or injuring them or the drainage of Ardoyne, etc.

There was judgment in favor of plaintiff, so far as to maintain his right to the servitude reserved in the act of sale, without interference ■or interruption by defendants, their agents or employees. The judgment enjoins perpetually the defendants from draining the skimmings of the Ardoyne sugar-house into the canal, and from placing therein .anything calculated to impair or render valueless the servitude, and from cutting or deepening any cross ditches or outlets from the canal, so as to abstract therefrom water flowing through the aqueduct to plaintiff’s sugar-house on Cedar Grove.plantation, reserving to the defendants the right of using the water for the purpose of soaking lioop poles and filling the sugar-house reservoirs on Ardoyne plantation. ■'

The judgment, denies to plaintiff the right of constructing the machinery on defendant’s lands, at the end of the canal, to elevate the water and give an additional fall therefrom to the sugar-house on Cedar Grove plantation, reserving to plaintiff whatever rights he may have, under Article 772 and following of the R. C. C.

The appellants appear t.o admit that plaintiff had a right to complain of the obstruction resulting from the construction of the dams, and of the unnecessary diversion of the water through the cross ditch, hut they charge that the plaintiff has made diggings which have weakened their protection levee, and have injured them and their propertyTn various ways. They persistently claim the right to empty the skimniings in the canal, and that plaintiff has no right to enter at all upon their lands, unless to keep the canal in good order.

In his brief, defendants’ counsel formally declares that, although the judge a quo correctly decided that the pump placed by the plaintiff on the land of defendants should he removed, yet he did not settle the question of the absolute right of plaintiff to erect works on Ardoyne, for it specially reserves to him his right. Counsel says: “We consider this the main issue in the case.” We tho court, however, deem that other issues are besides presented.

It is manifest that the stipulations of the parties, as well as those embodied in the act which immediately followed its execution, were designed to confer rights and to impose obligations which, otherwise, would have had no legal existence.

For a better understanding' of the questions, both of fact and law,. which arise in this ease, it is very proper that tho site of the respective estates be substantially stated.

The “Ardoyne1'1 place is an extensive sugar plantation in Terrebonne parish, lying on both sides of Bayou Black,.which runs north and -south. On the east side of this bayou, and at about eight arpents from it, there is a lake or swamp. The cultivable part of tho plantation is. on the west side. The decline in level is not, as is the rule, from front to rear, but northward. Its rear (western) makes the head of Chaca, houla ridge, where it joins plaintiff’s plantation known as. “Cedar Grove”. Bayou Chacahoula rises in the rear of Ardoyne and takes a north-westerly direction. Bayou Black is about one and three-quarter miles distant from the last named plantation.

There exists a ditch, a leading drain, a canal, on Ardoyne, which is-some two miles long, extending from the lake, apparently at right angles, in front of the sugar-house, crossing almost at right angle a ditch. known as Daunis cross-ditch, extending further towards the cultivable portion (west) where it forms an obtuse angle and extends north-west in the direction of the Cedar Grove plantation.

This ditch or leading drain is of long standing and was being used for the purposes for which it was made, at the date of the sale to the Bank and of the concession by the defendants to the plaintiff.

It is to be noticed that the concession in the act created a personal Tight in favor of the plaintiff, while that in the supplement which followedit, is a real right, in favor of the Cedar Grove plantation subjecting the Ardoyne plantation to the exercise of it, but under the restrictions agreed upon.

The right which has thus vested entitles the plaintiff to get water from the lake in front of Ardoyne and to conduct it back to Cedar Grove. The plaintiff has thereby acquired, for the benefit of his estate, .a predial servitude, to which the Ardoyne plantation is subjected.

The acquisition of the servitude thus established, carried with it •everything necessary to use it, and which is supposed to have been granted at the same time, R. C. C. 771.

This concession was granted with the understanding that the Ardoyne plantation would not be put to any expense, or damage, foi extra ditching, changing of ditches, or giving other lands for that purpose, nor in any manner injured, that is, that the water was not to be allowed to accumulate in the canal so as to overflow the cultivated parts, or cause any obstruction to impair the proper drainage of the estate (Ardoyne).

It was likewise agreed that the owner of Cedar Grove would keep the canal or ditch open for the free running of water therein, at all times, and for the protection of the drainage of Ardoyne, and that, the •owners of this place would put no obstruction to prevent the water from thus running freely through the canal, unless for self-protection. The expense for thus keeping the canal was to be borne exclusively by the owner of Cedar Grove, except for that portion of the ditch which extends from the lake to a spot known as the cooper shop, which was to be defrayed equally by the owners of the two plantations.

The evidence shows that dams had been erected in front of the cooper’s and of the blacksmith’s shops, between the lake and the Daunis cross ditch, which obstructed the flow of the water in the canal. It also shows that'this cross-ditch was deepened to such an extent below the level of the canal as to draw the water off; that the plaintiff, on being asked to sign another act, which would have converted the ■servitude from a predial into a personal servitude, and on his refusing to do so, was threatened with a discharge of the shimmings, or refuse, -or filth coming from the sugar-house, into the drain canal, or ditch or .aqueduct. It also establishes that the plaintiff has entered upon the lands of defendants and erected thereon works and machinery to draw the water to his place, where there was no necessity for this entry and ■construction. It also proves that, for some two years previous to the sale, the skimmings from the sugar-house were not discharged into the canal, but were disgorged across it by means of a trough which directed them towards Daunis cross-ditch to take some other course. The evidence does not satisfactorily show that the digging of the canal? which appears to have weakened the protection levee on Ardoyne, was •done by plaintiff'.

Neither does the evidence show that the plaintiff has done any act, •or set up any claim which, in derogation of the rights of defendants, under the grant of the servitude, would subject their property to any •damage or injury, or inflict on them any expense, or render the servitude more burdensome.

He only asks that the defendants be not allowed to obstruct by •dams, deeper excavations of the ditch, diversion of the water, or otherwise, unnecessarily, the natural flow of the water in the canal, -and be prohibited from polluting that water by emptying into it the refuse of their sugar-house.

The record shows that for some twenty years and perhaps more, previous to the date of the creation of the servitude, the leading drain or canal in question, on Ardoyne plantation, had been and was then in use.

By the contract between the parties, the decline in level, or fall of the bottom of the canal, was to oe from the lake to Cedar drove and to continue such indefinitely in point of time. The, duty was imposed upon the plaintiff to keep it in that condition, and on the- defendants that of abstaining from doing injurious acts.

By this stipulation, the rights of the parties to an artificial flow, henceforward were to be, regulated, not only by their own conventions, but also by the. provisions of the law, where they had not expressed themselves.

By the terms used, both in the act and in the supplement, the plaintiff had a right to get and conduct, that is. to draw water from the lake, through the, canal, to his plantation, for its purposes, which were .mainly the running of the sugar-house thereon.

The agreement between the parties distinctly provides, that “ the-owners of said Ardoyne plantation, shall place no obstruction to prevent the water from running freely through said canal, etc.” This is a mere repetition of the provisions of the Code, which are to the effect that the owner of the estate which owes the servitude, can do nothing-tending to diminish its use, or to make it more inconvenient. R. C. C. 655, 660, 661 and 777. The law on this subject has been judicially expounded by this Court in a number of cases, particularly in that of Ludeling vs. Stubbs, 34 Ann. 935, in which, after a review of the jurisprudence, it was declared, that dams illegally obstructing a flow of water to the prejudice of -one of the contiguous proprietors or owners, was a nuisance, which the law would order to bo abated. See also, 7 Ann. 291; 10 Ann. 689; 12 Ann. 554; 13 Ann. 587 ; 15 Ann. 497, 681 ■■ 16 Ann. loi ; 33 Ann. 796 ; 34 Ann. 563.

In the present case, it is therefore clear that the dams Complained of and which arrested the water, were illegal obstructions, and that plaintiff cannot bo required to endure them, unless for a time, in cases of unavoidable necessity, of which there is no evidence in the present controversy.

The digging or excavation of theDauuis cross ditch, below the level of the leading drain or canal in question, was likewise unauthorized,, as the water was diverted from it without anjr proved apparent justifiable purpose.

No doubt the defendants have not by the stipulations of the act and of the supplement, relinquished the right to use this cross ditch for purposes truly useful to themselves. They have, therefore, preserved it., They are entitled to exercise it, as well for supply of their sugar-house, for proper cultivation and development of their estate, agri' colendi causa, as for any others which need not be stated, provided they do not thereby unnecessarily divert the flow of the water. R. C. C.. 661; C. N. 644; D. L. 39.tit. iii, § 15, or cause any permanent injury to the plaintiff, which might, seriously impair the privilege they have clearly granted him of drawing water through their land. C. N. 701 ; Domnt part 1, 1. 1, tit. 12, see. 4, n. 1 ; Tonllier, 3 n. 533 : Duranton, 5-li. 619; French Pandects, 5 p. 503, etc.

It is equally clear that under the terms of the contract and the intention of the parlies, the plaintiff was given the privilege, for the use and advantage of his plantation, of drawing water from the. lake through the canal in question; necessarily this meant the water, as-pure as it. could be got from the lake, after passing through the canal,, to Cedar Grove, its destination.

The act does not mention, neither does the supplement to it, that the defendants would have the. right of discharging the shimmings or refuse or filth, coming from their sugar-house, into this leading drain,, ditch or canal, Things were in a certain condition at the time, which the parties knew of. As there was no stipulation for a different order ‘of things, the presumption is, that their common intent was, that the statu quo would continue, as by the past. Tt is more than plausible to suppose that, had the defendants proposed to remove the trough disgorging the shimmings across the canal, towards the cross ditch, and to discharge them directly from the sugar-house into the canal, the plaintiff would not have assented to the change. He needed the water for the purposes of his sugar-house and of his plantation. The discharge of the shimmings into the canal would have had for its effect not only an obstruction, but also an adulteration, pollution of the water, which would have destroyed the advantages expected to be-derived, and made the use of the water in supplying the boilers on Cedar Grove highly dangerous.

Recognizing in the defendants the right tó do such au injurious act,. would be entirely destructive of the predominant privilege to draw water for useful purposes—a conclusion which we cannot surely reach.

On the other hand, the plaintiff can use his right of servitude only according to his title, and is not at liberty to make, in either estate,, any alteration by which the condition of defendant’s plantation may be made worse. R. C. C. 778; C. N. 702.

The defendants complain that, while the district judge has rejected' the pretensions of plaintiff to pnt up the works, machinery, etc. on the Ardoyne plantation, he has made a vague reserve of rights in favor of plaintiff, under the provisions of Art R. C. C. 772 etseq.

The district judge was called upon to expound the law as applicable-to the issues and facts before him. lie could not be ashed to construe the contract so as to meet the hypothetical differences not yet arisen. Courts of justice have enough to do in dealing with real, existiugpreseut wrongs, without anticipating and combatting snpposable evils-which may or not occur. Their task is .already heavy enough in adjusting actual contests.

We think -tlm district judge, to whose appreciations in such local matter as is presented in this controversy we attach unusual significance, did exactly what was his duty and his right, and that the defendants have no authority to appeal to us for a different course. The reserves. -of eventual and of admitted rights which he made in Ills judgment in favor of both the plaintiff and the defendants, are authorized by law, prudent and wise. '

We have been at some pains in understanding the pleadings and the facts, and in realizing the law and jurisprudence involved in this litigation, for which we have found no exact precedent.—not only because •of the importance of the issues presented and which affect rural property, but also because of the earnestness and vigor with which the able counsel of the parties have pressed and submitted their respective contentions. We are satisfied that the district judge has well ..grasped the matters before him and has done justice between the parties.

It is therefore ordered and decreed that the judgment appealed from 'be affirmed with costs. *


text:
    No. 9362.
    M. M. A. Lane vs. R. S. Cameron, and Morris Kraft vs. M. F. Machen et als. (Consolidated.)
    "Where tile written titles to land have been destroyed by tho buntilw of the public record4 parol evidence of tho contents of the burnt deeds is receivable.
    Where a title-deed expresses a. certain frontage as so many arpents, it- cannot be stretched beyond it u-lien such frontage by the depth expressed &ives all the land claimed in the deed. .
    'The prescription of possession of ton or thirty years to bo successful must be suppoi Ied by a continuous and uninterrupted possession.
    APPEAL from the Twelfth District Court, Parish of Grant. Overton, J.

      Jos, P. Hornor and F. IF. Baker for Mrs. Lane, Plaintiff and Appelilant.
    P. J. Bowman, J. 0. Wield iffe, and llobt. T. Hunter, contra.

   The opinion of tho Court, was delivered by

Manning, J.

These consolidated suits were here last year and were remanded because the lower court had refnsed'a new trial, prayed on the ground of newly-discovered evidence to which we thought Cameron was entitled. The statement of tho ease and the issues between the parties may he found in the opinion read last year.

We then said the suit was petitory and its object the recovery of the Dubois tract of iand of about two hundred acres. Much has been said -of the extraordinary pretension that title to land may under any circumstances be proved by parol, and yet it is true that courts have so adjudged under the exceptional circumstances in which Rapides and ■Grant parishes were placed. Bynum v. Calhoun, Manning’s Unrep. Cas. 236.

The public records of those parishes had been totally destroyed by fire. Under the fatuous system that prevails in our State whereby the •original is deposited in the same office with the record of it and therefore both burn together, the burning- of the court-house had swept out of existence every vestige of title to land. To say then that parol proof •could not bo received of title after proof that the written title had been destroyed by a public calamity would have been adding another folly do tliat which required all written evidence of title to be kept in one place. This court held otherwise.

But Mrs. Lane has her deed. Her maternal ancestor Win. Smith bought two adjoining tracts of land together making thirty one arpents -front, which she claims covers the land in dispute. Cameron alleges that this tract is wholly outside of that land—that it adjoins or abuts it on the upper line—and never formed part of the large plantation that now includes all these lands until it was bought by Meredith Calhoun •of Eli Dubois. The lower judge’s opinion may be here x>voperly pro•duced:—

“If the question to be decided here were whether the title of 1847 to Meredith Calhoun or the other written, title of Mrs. Lane should prevail, I should have little trouble in deciding the question in favor of the elder title'. But the controversy is not narrowed down to this issue. •On the contrary it is claimed that there is no real conflict .in the two tit.lqs, and while a great deal of testimony has been introduced to establish the burnt title, Mrs. Lane really stands before the court in the .attitude of a party without an interest to protect, and cannot be listened to when she questions her opponent’s title which her own does not authorize, and in this view of the merits of the case I concur.

To test the accuracy of this, reference must be had to actual surveys. The records furnish this evidence in a location of the titles of Mrs. Lane made in these cases under the order of court by George Johnston ■ surveyor of Grant Parish. We have already seen that the claim of Mrs. Lane is made up of two tracts making- a frontage of 31 arpents on Red River. In order therefore to establish whether there was really .any conflict between the rival claimants, a starting point had to be fixed. This was found at the line 2 T. N. 0., being the upper line of the Monet tract as fixed by United States official survey, and about the correctness of which there can be and is in fact no contest. Adopting this line there is the initial or starting point, and tracing a line as near the river edge as shall be straight and the 31 arpents which constitute-the river frontage of Mrs. Lane’s land would he exhausted at the line C. E. S. of Johnston’s map. It may not be out of place to_ say in this connection that I have taken occasion to verify the accuracy of Johnston’s measurements with measurements of my own made and compared with other maps in the record, and find no reason to doubt its accuracy. If the line C. E. S. which seems to be the true line as indicated in 4 La. 520 (the judge means the case of Hickman vs. Hudson) is adopted as the upper line of Mrs. Lane’s land, it will leave a strip-between it and Rock island bayou, and'this no doubt is the tract which Mrs. Dubois says commenced at Rock island bayou and wont down the river which her husband sold to Meredith Calhoun in 1847, and the same tract which, was specially excepted and reserved though by indefinite limits as belonging to Hilaire Dubois in the succession sale of Graham to Young under which Mrs. Lane claims to hold this property.. Between the claim set up by Mrs. Lane and the one urged by Cameron there iá then clearly no conflict and Mrs. Lane is without colorable excuse to question Cameron’s title unless she does it by interposing some other title. She claims she has acquired tins right by the posses-' f.ion of ten and thirty years.

To understand the force of this plea it becomes necessary to observe that th ere is afield two miles to the rear of this tract known as Robertson’s corner which seems to have been in the possession and was worked by Win. Smith the ancestor of Mrs. Lane as far back as 1838 or 1839-Smith died about 1840 and Mary S. Calhoun the mother of Mrs. Lane succeeded by inheritance to the possession commenced. It is a textual provision of our Code that uo prescription runs between husband and wife during the coverture/ * * * If prescription does run it is clear Unit it has been interrupted in the present case by the acquisition of an adverse title by the husband from Dubois in 1847 only seven or eight-years after the deatli of Smith. The prescription of thirty years cannot therefore avail Mrs. Lane.

Neither will the prescription .of ten years avail her. Calhoun died about 186.9. His son and administrator evidently treated this property as belonging to the succession of Meredith Calhoun his father. In no-other way can his acts of administration be explained. We find the-property was sold for taxes in 1877 or ’78 as the property of that sue■eession, and at a still later date exposed at a succession sale of Meredith Calhoun provoked by tbe creditors of bis succession to pay its ■debts. These are tacts that do not show in Mrs. Lane the character of possession necessary to support the prescription of ten years. The plea of prescription must be overruled. Tlie.view already taken of the case obviates the necessity of looking into the alleged informalities of the tax-sale.”

We liave nothing to add to this opinion of the district judge.

Judgment affirmed.

Rehearing refused.


text:
    No. 9344.
    The State of Louisiana ex rel. Segura vs. the Judge of the Twenty-First Judicial District.
    Prohibition lies to a judge who assumes to take jurisdiction over, and determine a plea re-casing him, on tlie ground of interest. Even if the plea has no merit, it does not appertain to him, hut it belongs to the judge who is to be called to try the question, to . pass upon it and so declare. 33 Ann. 1293; 34 Ann. 628; 36 Ann. 160; C. P. 338; Act jSo. 40 of 1880; Const. Art. 112.
    It is the duty of a judge, upon the filing of a plea recusing him, on the ground of interest, to call upon another judge for the purpose of passing upon the plea, and to abstain irom exercising jurisdiction over the cause, until the plea has been effectually overruled. *
    •On failure on his part to do so, a prohibition will lie to prevent him from taking cognizance of the case.
    ^REPLICATION for Prohibition.

      Edward Simon and Jireaux & Hall' for tlie Relator.
    Respondent in propria persona.

      Robert Ferry for A. J. Walcefield and others, Plaintiffs on Rule, etc.

   The opinion of tlie Court- was delivered by

Bermudez, C. J.

This is an application for a prohibition to prevent tlie defendant from trying a cause, in which he is recused as being personally interested.

Tlie complaint is that, after the plea of recusation was died, the judge refused to refer the trial thereof to'another judge, acting in his place; that he passed upon it himself and overruled it; that he ought not to have tried tlie same and that he is incompetent to sit on the merits of the cause.

The judge returns and argues elaborately to show that the recusation is not well founded and that he overruled it correctly.

It may well be, as .the respondent claims, that the relator has no just foundation to recuse him, and that the plea has no merit; but, if sucli indeed be the case, it is not for him to say so.

His duty was, on tlie filing of the recusation, to have recused himself, to have called in another judge to try the plea and eventually the-case, and to have abstained from exercising jurisdiction over the matter pertaining to the case, until tlie plea had been effectually overruled.

In the case of Hunter vs. Blackman, our immediate predecessors-said, that a recused judge is incompetent to make any order, except one of recusation. If the power exercised by the judge should be-recognized, it would insure an immunity from legal pursuit. The law, they said, never contemplated that any man, however honorable,, should be a judge in his own case. Manning’s Unrep. Cases, 427.

We ourselves have already ruled clearly in this sense on this very question. State ex rel. Terrell, 33 Ann. 1293; see also 34 Ann. p. 828 ;. 35 Ann. 628; 36 Ann. 160; Const. Art. 112; Act 1880, No. 40; C. P. 333.

This rule of conduct applies 'to all judges, whether they exercise-original or appellate jurisdiction. We deem it would be out of place to pass upon the hypothetical cases imagined by the respondent.

It is therefore ordered and decieed, that the restraining order hereim made be maintained, and that the prohibition asked issues and be-perpetuated.