text:
    No. 9299.
    The State of Louisiana vs. Perry Melton and William Melton.
    Error in refusing challenges of jurors for cause, even if committed, will not avail to reverse judgment, if the objectionable jurors have been peremptorily challenged, and thedefendantshavebeen able to complete the jury without exhausting their peremptory challenges. On ci oss-exaniination, the witness may be asked by the State as to his feelings towards accused, as throwing light upon his credibility.
    Where a subject matter, not perhaps strictly pertinent, has been opened on examination in chief, the other side may pursue it on cross-examination.
    Error in the exclusion of unimportant evidence will not justify reversal.
    The presumption of guilt from flight applies generally to cases of persons suspected of crime which has been secretly committed, but where the killing has taken place in a public •fight and in the presence of witnesses; where there is no dispute that accused killed deceased, hut the only question is whether the circumstances excused or mitigated the killing; the flight could have no weight as a presumption of guilt, and, in absence of any allusion to it in the charges of the judge or in special charges asked, we consider ex* elusion of evidence explaining the flight, as not sufficiently material to authorize reversal. Bills of exception to special charges refused hy the judge cannot be sustained, when it appears from the statement of the judge in the bills, that they trenched upon the facts, or were entirely inapplicable to the facts; or when it appears that the statement of the law had been covered by the general charge in less objectionable form.
    When the judge has not "been requested to deliver his charge in writing, he is at liberty to make it orally; and the fact that he has made it partly in writing and partly orally, is no ground for valid objection.
    A bill of exception taken simply “to the entire chaTge of the court,” without specifying any ground of objection, or any particular portion objected to, will not be considered, nor can error in a charge, not excepted to, be considered under ap. assignment of errors in this Court.
    ^ PPEAL from the Third District Court, Parish of Union. Young, J.
    • M. J. Ounningham, Attorney General, and J. A. Bamsey for the State, Appellee.

      B. H. Odom, G. H. Ellis and G. A. Killgore, Jr., for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

In this important murder case, the convicted defendants assert a multitude of errors in the proceedings of the trial court.

I.

Two bills of exception were taken to the action of the judge in overruling defendants’ challenges for cause to two jurors, on the ground that they had formed fixed opinions as to the guilt or innocence of the accused.

The challenged jurors stated on their voir dire that, notwithstanding the opinion formed by them, they were able to render a fair and impartial verdict according to the evidence and the law. It is not necessary to discuss the distinctions suggested between tlieir cases and those presented by the following authorities in which the competency of jurors in analagous circumstances was maintained: State vs. Desmouchet, 32 Ann. 1241; State vs. Hardy, 33 Ann. 1110; State vs. DeRancé, 34 Ann. 192; State vs. Russell, 35 Ann. 304; State vs. Magee, 36 Ann. 206.

Even if there were error in the rulings here objected to, the fact remains that the defendants challenged peremptorily the obnoxious jurors, and that they obtained a complete and fair jury without exhausting- the peremptory challenges to which they wore entitled under the law.

It is a sound rule, which wo have approved, to which we shall adhere, that, under such circumstances, an erroneous ruling of this kind affords no ground for relief. State vs. Farrer, 35 Ann. 315; Henry vs. State, 4 Humph. (Tenn.) 270.

II.

There are four bills of exception to rulings of the judge in admitting or rejecting evidence.

1. In permitting counsel for the State to ask the witness, Rushing, on cross-examination, what was the state of his feelings towards these defendants.

The bill shows that the object of the question was to throw light upon the credibility of the witness, and for that purpose the authorities sustaiu its legitimacy. State vs. Willingham, 33 Ann, 537; State vs. Gregory, id. 737, State vs. Kane, 36 Ann. 153.

2. In admitting evidence on the part of the State as to conversations between the witness, Rushing, and Wm. Cherry, brother of the deceased, which took place ñve or six months before the killing, to the effect that the defendants were stealing hogs and burning- fences in the neighborhood, and that they, Rushing and Cherry, proposed to run defendants out of the country. The judge justifies his action by the statement in the bill that, in their examination of the witness in chief, defendants had opened the way to these conversations and that the State had the right to cross-examine on them, and that it was closely confined by the court to the matter inquired of by the defense. The reason is pertinent and sufficient.

3. In rejecting evidence offered by defendants to show a conversation between the defendants and James Byram, occurring near the place and shortly after the killing, to the effect that defendants requested said Byram to go for the doctor and do all he could for deceased. The judge supports the exclusion “because,” he says, “it was the declaration of the defendants six or eight minutes after the killing, and after they had left the place and gone sixty or eighty yards and then returned on their way home or wherever they went; and was no part of the res gestee, either in point of time or connection with the killing and was evidently not spontaneous, as the defendants had met the same witness a few minutes before, twenty-five or thirty yards from the gate, as they were leaving, and they made no such statement.”

We cannot say the ruling, under these circumstances, was erroneous; but, in any event, the matter is too unimportant to justify a reversal on that ground.

4. To the exclusion by the judge of certain evidence offered by the defense to show the poverty of the defendants and other circumstances, with the view of rebutting the presumption of guilt resulting from the flight of defendants which had been proved by the State. This is the most serious question in the case and we have given it most careful consideration. The bill of exception, as a whole, is obscure and apparently contradictory. It recites that “ witness, Jeff Raybun, having-been sworn, defendants offered to prove by said witness that the defendants were very poor men, which evidence was objected to by the State and excluded by the court, counsel for the defendants stating that the defendants proposed to prove by the witness on the stand and other witnesses that defendants were very poor and not able to pay anything to employ counsel and that all the attorneys’ fees which had been paid or promised had beeu jiaid by a son-in-law who lived in Texas, and that there was a great deal of prejudice against the accused in the neighborhood in which the alleged killing took place, and that said evidence was offered for the purpose of rebutting the presumption of guilt which the State attempted to establish by proving the flight of the accused after the alleged Killing. ” We are not prepared to sáy that such evidence, as a whole, properly offered, for the purpose stated, would not have been legitimate. But the court, in its reasons, states that it refused to allow said witness to testily to said facts “for the reason that the proof of defendants being poor men would be immaterial and irrelevant for the purpose offered, and no other witness was sworn on this point by the defense and this bill will require a determination as to whether the proposed evidence of a witness not sworn could be the subject of a bill. ” From this statement it would be inferred that the sole fact offered to be proved by the witness on the stand was the poverty of defendants, and that the other facts mentioned iu the statement were to be proved by other witnesses who were never produced and sworn ; and that the only point directly ruled by the court was that the poverty of the defendants, even if proved, would not be material for the purpose proposed. Non constat that if the defendants had produced other witnesses and offered to prove by them the other facts stated in the bill, the court would not have admitted their testimony, and, after the laying such foundation, evidence of defendants’ poverty also. Under this view, the course of the judge might not be objectionable. But we would not be content to rest our decision on a ground so technical, if we were satisfied that defendants had suffered any substantial injury from the action of the court.

The presumption of guilt from flight seems to have played no part in this case. It was not alluded to in the charge of the judge nor in any of the special charges aslced at his hands. It is evident that it was entitled to no weight and was given none in this case.

Mr. Wharton lays down the rule on the subject in the following-words :

“When a suspected person attempts to escape or evade a threatened prosecution, it may be argued that he does so from a consciousness of guilt, and though this inference is, by no means, strong enough by itself to warrant a conviction, yet it may become one of a series of circumstances from which guilt may be inferred.” Wharton Cr. Ev. § 750.

It is obvious that the presumption applies to cases where the crime has been secret and the connection of the accused with it is to be established by circumstantial evidence. Thus, if a man has been found killed in a wood, no witness having seen the killing-, and suspicion having pointed to a certain person as its author, he should incontinently flee, one can well understand that such flight might form a link in a chain of circumstantial evidence to fasten guilt upon the fugitive. But, when the killing has taken place in a public fight, in the in-esence of witnesses, when there is no dispute that the defendants did the act, when the only question is whether the circumstances established self-defense, or a mitigation of the crime to the grade of manslaughter, it is obvious that the flight of the accused could have no appreciable weight in determining- those questions.

Such is the general inference to be drawn from the* language and reasoning of all the authorities, and we find one authority quoted by Mr. Wharton which is directly in point, where it was held, that “as the defendant was clearly proved to have struck the fatal blow, it was immaterial that he had not been allowed to give evidence to explain his flight.” People vs. Ah Choy, 1 Idaho, N. S., 317; quoted in Wharton Cr. Ev. § 752, Note 1.

Now, in tlie instant case, it is perfectly apparent from tlie tenor of tlie various special charges asked by the defendants (hereafter to be referred to) that there was no controversy as to the fact that the deceased was killed by defendant, and, that the sole question was as to the establishment of excuse or mitigation. Under these circumstances, considering the obscurity of the bill, the immateriality of the flight, the absence of any allusion to it as a circumstance imputing guilt, in tlie charge of the judge or in the special charges asked by defendants, we are satisfied it had no influence in the case, and that, even if the ruling were erroneous, it did not prejudice the fair trial of the accused and would not justify us in disturbing tlie verdict.

III.

After the judge had completed his charge to the jury, counsel for defense presented several special charges which the court declined to give, and bills of exception were taken.

1. The following special charge was asked: “That when the evidence is circumstantial, conflicting and contradictory, as to whether the attack was made by accused or deceased, the jury should take into consideration the feeling of the parties, previous threats, former attempts and preparations in coming to a conclusion as to who made the attack.” The judge assigns as reasons for refusing this charge, that he considered it would be “ trenching on the facts,” and that he had already charged tlie jury that thev were “ to consider the case in the light of all the surrounding circumstances which had been proved, and that, on the question of whether they had or not been proved, they were the sole judges.” The general charge referred to seems to embrace all that defendants had the right to require on this subject. It is not for the judge to pick out particular circumstances and tell the jury they must consider them. The jury determines for itself, whether they will consider them or not, and what consideration is due to them. Thus, referring to this particular charge, it is obvious that although the evidence may have been “circumstantial, conflicting and contradictory,” it yet may have so fully convinced the jury on the point alluded to, that there would be no necessity or occasion for considering the circumstances stated. Why then, should the judge charge them that they must consider them ?

2. The Bill numbered 2, is to the refusal to give the following charge: “ That if the jury should find that the defendants made the attack on the deceased, and then abandoned it without any damage being done, if deceased then pursued delendants and resumed the difficulty by shooting at and wounding one of them with a pistol and then attempted to get to his house to get his gun, which he had ordered his wife to bring him, defendants had the right to intercept him and prevent him from getting his gun, and if he did get it in hand and attempted to use it on defendants, they had the right to disarm him and even to take his life. ”

The judge refused this charge for the reasons, substantially, that it trenched upon the facts ; that it referred to facts of which there was no evidence whatever; and that it was inapplicable to the facts of the case and calculated to mislead the jury. We cannot gainsay the sufficiency of these reasons.

Sec. 991 Rev. Statute provides: “in charging the jury in criminal cases, the judge must limit himself to giving them a knowledge of che law applicable to the ease. In doing so, he shall abstain from stating or recapitulating the evidence so as to influence their decision on the facts. ” The Constitution also, Art. 168, restricts the authority of the court, in charging the jury, to the law of the case.

Under these provisions, we would not say that the hypothetical charges based upon the jury’s belief of certain facts, are to be entirely-excluded. But when such hypotheses embrace facts not supported by evidence and foreign to the case, the propositions of law based thereon become purely abstract propositions, and under well-settled jurisprudence, the judge is not bound to charge them. Wharton’s Cr. PI. and Pr., secs. 712, 797; Bishop’s Cr. Proc, sect. 978; State vs. Stauderman, 6 Ann. 287; State vs. Thomas, 34 Ann. 1084; State vs. Jackson, 35 Ann. 769.

3, We have carefully considered the remaining special charges covered by bills of exception; but And it unnecessary to recapitulate them. They are all robbed of merit by some or all of the following objections: trenching upon the facts; or inapplicable to the facts; or covered in less objectionable form by the general charge of the judge.

IV.

There remain two bills directed against the general charge of the judge, viz:

1, The first is taken to the action of the judge in supplementing his written charge by interspersed oral statements and illustrations. It is completely overthrown by the statement of the judge that there had been no request by counsel for a written charge, and that, therefore, he was at liberty to charge orally-.

2. We are next presented with a bill of exceptions taken simply “to the entire charge of the court,” without specifying any ground of objection or any particular portion objected to.

Under this bill, a certain passage in the written charge is strenuously called to our attention. The same passage is made the subject of an assignment of errors in this Court.

So far as the bill of exceptions is concerned, this Court, thirty years ago, declined to countenance bills of this character, saying : It is calculated to embarrass, if not defeat, the administration of justice. The attention of the district judge should be called to those parts of this charge which are deemed objectionable, that he may have an opportunity to explain them, if misunderstood, or modify them if erroneous, or, at any rate, assign his reasons for making the charge in the form objected to.” State vs. Chopin, 10 Ann. 458; State vs. Riculfi, 35 Ann. 774.

The rule is of self- evident soundness and propriety. Upon like reasons we have ourselves refused to notice errors in charges not excepted to, when assigned in this Court. State vs. Beaird, 34 Ann. 104; State vs. Curtis, id., 1213; State vs. Riculfi, 35 Ann. 770; State vs. Ferguson, decided this day.

There is no reason why we should depart from this salutary rule in the instant case. Although, not made a special ground of the application for the new trial, the objectionable passage in his charge was then called to the attention of the learned and conscientious district judge, who considers it elaborately in his reasons for overruling that motion. He informs us that, notwithstanding the irregularity of the course pursued by defendants’ counsel, if he believed that defendants had been prejudiced by the passage of the charge objected to, he would have granted the new trial. He explains fully the relation of that passage to other portions of his charge in which the law was correctly laid down, expresses his perfect satisfaction that the jury were fully informed, and in no manner misled, as to the law, and that the defendants enjoyed a fair and impartial trial.

The powerful efforts of defendants’ able and zealous counsel have failed to establish anything on the record justifying us in disturbing the verdict or sentence.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9285.
    Adrien Louque vs. A. Drez et als.
    Creditors who intervene in bankruptcy proceedings, and who bona fide recommend the appointment of a provisional syndic, cannot be held in damages, in the absence of averment ‘and proof of malice on tlieir'part.
    A PPEAL from the Civil District Court for the Parish of Orleans. JL Bightor, J.

      Olías. Lougue for Plaintiff and Appellant. ■
    ' J. Ad. Bonier, Brauglm, Suele é Binlcelspiel and Jos. Maille, contra.

   The opinion of-the Court was delivered by

Bermudez, C. J.

This is a suit to recover $10,000, as damages, from the defendants, on the ground that- they maliciously recommended a certain party to be appointed provisional syndic, in unauthorized proceedings in insolvency.

Prom a judgment, based on the verdict of a jury, in favor of the defendants, the plaintiff has appealed.

The facts are the following :

Adrien Louque and Charles Montardier were partners. The latter instituted proceedings, claiming the benefit of the insolvent laws, individually and as partner, proposing a cession and surrender, not only of his assets, but also of those of the partnership. On the same day, the defendants presented a petition setting forth the propriety of the appointment of a provisional syndic and recommending Montardier tor the trust. Thereupon the appointment was made. Montardier qualified and took possession of the assets of the firm; subsequently, Louque entered complaint, protesting against the attempt of Montardier to act in the name of the firm and to bring it into insolvency. The court recognized his complaint; it held that the petitioner could not act as proposed, declared the dissolution of the partnership between Louque and Montardier, and appointed the former liquidator of the concern.

It cannot be disputed that the defendants, who were creditors of Louque and Montardier, after the proceedings in insolvency, however irregular in part, had a right to see to their own protection, and, on the assumption that the Court would accept the surrender, to ask the appointment of a provisional syndic. Any error on their part must bo deemed as involuntary, unless the reverse be shown. Their petition was for the appointment of a provisional syndic, to take charge of the assets of Montardier, both as an individual and as a partner.

The charges of malice and conspiracy formulated specially by amendment to the petition, by the plaintiff against the defendants, even if the proceedings could be viewed as a suit, which it is not,—should have been verified by proof, as essential to justify recovery. Sedgwick on damages, p. 38; Steward vs. Tanneborn, 8 Otto 287 ; Coco vs. Hardie, 25 Ann. 230; Barremore vs. McFeely, 32 Ann. 1181.

As was said by this court in 32 Ann. 1180 : “The law looks with favor on the efforts of parties who invoke the aid of courts for the vindication of rights, or recovery of property; and does not tolerate that the unsuccessful litigant should be punished in damages, unless in cases where his acts are alleged and proven to have been prompted by malice, or unsupported by probable cause.”

The record fails to show any improper motive in defendants, who, on the contrary, appear to have been actuated by a just sense of their interest, and to have moved in the matter, as is usual in such cases, simply for the protection of their rights as creditors.

If any injury was, in consequence, entailed on the plaintiff, which the record does not show to have been sustained, the damage under such circumstances, must be deemed as damnum absque injuria.

The jury so viewed the matter. We cannot say that they, and the District Judge who approved their verdict, were wrong. It is unnecessary to pass upon the bills to the charges of the judge to the jury—as we pass on the case as presented by the pleadings, the evidence and the law.

Judgment affirmed with costs.


author: Pochb, J.

text:
    No. 9292.
    Factors and Traders’ Insurance Co. vs. John J. Warren et al.
    A married woman who interven os in an act of mortgage by her husband, in order to waive or renounce certain rights to the property, is not a third party in the sense of tbe Civil Code.
    When she subsequently purchases the same property, under a judgment of separation of property against her husband, and retains in her hand the amount of the mortgage granted as above stated—the conventional mortgage follows, and attaches to the property in her hands—and remains in full force as long as the debt of her husband is kept alive.
    The married woman thus situated, cannot be relieved by the failure of a timely re-inscription of tbe mortgage, which is not perempted quoad the contracting parties. Conventional mortgages are not extinguished by the prescripción of ten years-

      A PPEAL from the Civil District Court for the Parish of Orleans. ./a. Monroe, J.

      Meholls & Ocm-oll for Plaintiff and Appellee.

      JH. M. Hudson and JS. D. White, contra.

   The opinion of the Court was delivered by

Pochb, J.

Plaintiff seeks to enforce mortgage rights against property formerly owned by the defendant, John J. Warren, and subsequently acquired by his wife, Annie B. Warren.

A statement of the salient facts which have given rise to the litigation is necessary to a proper understanding of the issues presented in the pleadings. Plaintiff held two notes executed by the defendant, John Warren, and both secured by mortgage on the property, nowr owned by Ms wife. One of the notes secured under a,n act of mortgage, dated November 2, 1860, which was inscribed on the 13th of the same month and year, re-inscribed on February 17, 1869, and again on June 23, 1880.

The mortgage securing the other note was granted on March 5, 1862, inscribed on March 6, 1862, re-inscribed on February 17,1869, and again on June 23,1880.

Mrs. Warren intervened in both acts for the purpose of renouncing all the rights which she might have on the property in favor, and for the benefit of, the mortgagee.

On the 9th of April, 1866, the property was adjudicated by the sheriff to Mrs. Warren in execution of a judgment-of separation of property which she had obtained against her- husband. Out of the price of adjudication, which was $25,000, she retained in her hands the amount sufficient to cover the two mortgages hereinabove described, amounting then in the aggregate to $9,201 and the further sum of $10,000—the amount of a second mortgage held by Josiah Cole—and she applied the balance to the payment of judicial costs, and to the credit fro tanlo of her own judgment.

The mortgage, then existing in favor of Josiah Cole, has since been extinguished by payment of the debt, and cancelled. Hence, it forms no element in the present discussion. By authentic act under date of February 2, 1869, the notes held by plaintiff were changed and renewed without novation of the mortgage.

By part payments the claim is now reduced to five thousand dollars; for which judgment is asked against both defendants, with recognition of mortgage on tlie property purchased as above set forth by Mrs. Warren.

From an adverse judgment Mrs. Warren alone has appealed.

Her defense presents the following points:

1. The prescription of ten years in bar of her personal liability.

2. The prescription of the mortgages securing her husband’s indebtedness, by the lapse of ten years.

3. The peremption of the mortgages for want of timely re-inscription.

1. A great deal of time is devoted by both counsel to the discussion of the personal liability of Mrs. Warren, growing out of the adjudication of her husband’s property to her.

But, under our views of the case, we eliminate this point from the discussion, by the following considerations :

It is elementary that the purchaser at such a sale takes the property subject to the preferred mortgages or privileges. C. P. Art. 683.

In this case the property went to Mrs. Warren, burdened with the mortgage then inscribed in favor of plaintiff, to meet which she had retained the amount of the claim.

She took the property eum (mere (Newman vs. Eaton, 27 Ann. 341), and it is, therefore, immaterial to consider or ascertain the extent of her personal liability for the payment, either to the original owner or to his preferred creditors, of the amount which she had retained as part of the consideration of her purchase. Her property being then liable for the amount of plaintiff’s claim, we will now consider by what means it has been freed from the burden, if such remission does exist.

Defendant suggests the prescription' of the mortgage by the lapse of ten years: this brings us to the consideration of her second ground of defense.

2. We premise in this connection, that plaintiff’s claim against John Warren has been kept alive, and that, as to him, the prescription of five years even could not avail him.

That proposition is conceded by Mrs. Warren’s counsel, and their contention seems therefore to be that a mortgage can be extinguished by the prescription of ten years, independently of the condition or status of the debt or principle obligation, of which the mortgage is only an accessory. Their main reliance is in the provisions of Arts. 3411 and 3369 of the Civil Code.

Art. 3411 provides, among other means of extinguishing mortgages, that of prescription.

But that article does not specify the lapse of ten years as the term of such prescription, and hence it does not bear out defendant’s contention, as urged in her defense.

This might be a sufficient answer to that element of her defense.

But, under our jurispjudence, we are authorized to go a step further, and to assert that under our system of laws, conventional mortgages cannot be extinguished by prescription, unless it might be by the prescription of thirty years, on which point we express no opinion. Between the contracting parties the mortgage subsists as long as the principal obligation which it is intended to secure is kept alive. Art. 3369 reads as follows: The registry preserves the evidence of mortgages and privileges during ten years, reckoning from the day of its date'; its effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made.

The construction to which this article is subjected under the argument of defendant’s counsel would suggest a conflict between its provisions and those of article 3342 of our Code, which contemplated that between the contracting parties, the mortgage takes effect without any inscription at all. From the tenor of the article, the logical conclusion would be clearly deduceable, that, if the mortgage takes its effect-between the contracting parties without any inscription, it could not be effected by a failure to reinscribe if once inscribed, provided always that the debt which it secures be kept alive. But, on construing these two articles in connection with Article 3365 of the same code, the apparent conflict is at once dispelled, and the three articles appear legally and logically harmonious.

Article 3365 reads: “If a person who has given a mortgage on his property, takes advantage of the neglect to register the mortgage, and engages the same property afterwards to another person, without informing him of the first mortgage, he shall be considered guilty of fraud, and shall be subject to such damages towards the party suffering thereby as the nature of the case may require.”

It is thus apparent that while the law gives full effect to a mortgage between the parties without an inscription—the latter does produce some effect between them,—for in case of registration the mortgager commits no fraud by engaging the same property to another person without informing him of the first or previous mortgage; and that is the effect which is contemplated to cease even between the'contracting parties, under the provisions of Art. 3369. In that case, if the mortgage has been inscribed and has not been re-inscribed, the mortgager is released from the obligation to disclose the existence of the un-reinscribed mortgage which exists as such as to him, but is stripped of all hypothecary effect on third parties.

The point is not new in our jurisprudence, and the construction which we have just developed, was adopted by our predecessors in an early stage of our judicial history. We might, therefore, have rested our conclusions exclusively on authority, but as defendant’s counsel seemed to support their theory on two decisions of this court of more recent date, we have made it our duty to maintain by logic and reasoning, the doctrine which was long since adopted, and which we intend to securely establish in the face of the serious doubt which lias impressed itself on the mind of defendant’s distinguished counsel.

The subject was ably treated in the case of Shepherd vs. Cotton Press, 2 Ann. 100, and subsequently in the case of Liddell vs. Rucker et al., 13 Ann. 569, In both of those cases the reverse of defendant’s contention as to the prescription of conventional mortgages was announced.

We note in this connection that, under the code of 1825, the question . was not as free of difficulty as it is now under the revision of the code in 1870. In the former code, Art. 3369 contains the words: “reckoning from the day of their date, ” and the additional words: “ their effect ceases; ” whereas in the present code, both ideas are expressed in the singular number. Under that language, it is clear that the reference to the date is the registry, and the allusion to the effect is intended also for the registry, and thus the apparent ambiguity’ in the language of the previous code, is completely removed in the new. The change was doubtless suggested by the interpretation which prevailed in the two cases to which we have hereinabove referred. We have carefully examined the two recent decisions which defendant’s counsel, invoked, and we conclude that neither is in point on the discussion of this ground of her defence.

The ease of Gegan vs. Bowman, 22 Ann. 336, presented an issue involving the respective ranks of mortgages claimed by the parties to the suit, whereas, the question in hand hinges upon the prescription ml non of a conventional mortgage in its effect on the owner of the property formerly subjected to it. The same disposition may be made of the decision in Tilden vs. Succession of Morrison, 33 Ann. 1068. An unguarded expression which fell from the pen of the organ of the court is seized with avidity by ingenious counsel as supporting their theory of the prescription of mortgages. But that issue was not involved in the case, and the language quoted from the opinion is at best an obiter, which binds no one. As stated in the beginning of the opinion, the only issues under the pleadings were: “the prescriptions of the note and peremption of the mortgage.” As the succession was insolvent, the contention was really between creditors inter sese, and not between the parties to the original contract.

In that case the court had to deal with the peremption of the mortgage, that is the destruction of the effect of the inscription by the lapse of time, a proposition differing entirely with the extinction of the mortgage by prescription.

The foregoing considerations lead us to conclude, as we hold, that the claim of plaintiff against John Warren, having been kept alive, the mortgage which secures it subsists in full force between them, notwithstanding the failure to timely re-inscribe the original contract, and that, if the property affected thereby was still owned by Warren, the mortgage would undoubtedly attach to it. Smith vs. Johuson, 35 Ann. 943. But as the property has passed to Mrs. Warren, we must now consider whether she can avail herself of the want of re-inscription.

3. The the effect of the mortgage has ceased to attach to the property in her hands, by reason of the peremption thereof is the third and last ground of her defence.

As stated above, Mrs. Warren intervened in the act for the jrarpose of renouncing all the rights which she may have had to the property mortgaged in favor of the mortgagee.

Is she, therefore, a third party to the mortgage within the meaning of Article 3342 of our Code 9 Article 3343 provides that by the words third persons used in the foregoing article, are to be understood, all persons who are not parties to the act or to the judgment on which the mortgage is founded.

Our jurisprudence has fixed the status of the wife who intervenes in an act or mortgage for the purpose of waiving her rank of mortgage as one of the parties thereto. Citizens’ Bank vs. Ferry, 32 Ann. 312, and authorities therein cited.

We therefore conclude that Mrs. Warren can obtain no relief from the failure of re-inscription of the act of mortgage, and that the burden which affected her property as part of the consideration of her purchase, still bears on it, and that the judgment which recognized it is correct.

Judgment affirmed.


author: Manning, J.

text:
    No. 9306.
    The State of Louisiana vs. Mike King.
    When money is the thing stolen onr statute dispenses with any description of it in the indictment. It is sufficient to describe it simply as money without specifying any particular coin or bank-note, and proof of the larceny of any coin or bank-note will sustain the charge, although the particular kind of coin or bank-note is not proved.
    When the statute dispensed with any description of money by the designation of the kind of coin or bank-note, it equally dispensed with the need of assigning a specific value to it, because money, unlike ordinary chattels that are the subject of larceny, donotes ' value, and the mention of the daáomination as Hollars or cents, contains in itsolf the statement of its value.
    And hence the charge in an indictment that the accused “feloniously did steal, take, and carry away certain money, to wit the sum of ten dollars, of the goods and chattels of one John Loach” is sufficient in law without specifying the value of the ten dollars.
    A PPEAL from tlie Criminal District Court for the Parish of Orleans. / \ Halier, J.

      M. J. Guwningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.

      Jos. 0. Walker for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

Prom a conviction of larceny and a sentence thereon to two years’ imprisonment at hard labour the defendant appeals.

The single point assigned as error is that the information does not indicate the value of the goods stolen. Using the language of the defendant’s counsel;—“the objection is that the value of the property alleged to have been stolen is not set forth in the information, that is to say, as estimated by any fixed equivalent of value or standard of circulation in this country, the only measure of value to which reference can be had.”

The charge is that the accused “ feloniously did steal, take, and carry away certain money to wit, the sum of ten dollars, of the goods and money of one John Losch.” The dollars are not charged to be gold or silver coin or currency of any kind, but dollars without any descriptive words, the ownership of them being set out.

Our law'has dispensed with the need of any description when the thing stolen is money. It is sufficient to describe it “simply as money without specifying any particular coin or bank-note,” and such allegation is sustainable by proof of any coin or any bank-note although the particular kind of coin or bank-note is not proved. Rev. Stats, sec. 1061. It is a copy of the Victorian statute, under which the English courts have held a charge of stealing “ two shillings of C. D.” to be good. Archbold Cr. Pr. and PI, 357-8.

This however relates to the description and not tlie value. Value is so far the essence of larceny that some value must be shewn, that is to say the thing stolen must be of some value to the owner however small, although worthless to any one else. To have charged that the larceny was committed by stealing ten dollars of the value of ten dollars would have been tautology. When the statute dispensed with any description of money by the designation of the kind of coin or bank-note, it equally dispensed with the need of assigning a specific value to it because money, unlike ordinary chattels that are the subject of larceny, denotes value, and the mention of the denomination, as dollars or cents, contains in itself the statement of its value. The cases cited by the Attorney General, State v. Walker, 22 Ann. 425 and State v. Green, 27 Ann. 598 do not cover the point made in this case, nor is it the same as that ruled in State v. Ziord, 30 Ann. 867 and State v. Faulkner, 32 Ann. 725, but we think the statute was intended to embrace such cases as this and to put money, when the subject of larceny, on a different footing from chattels or moveables, the names or designations of which do not of themselves import value, and therefore the objection made by the defendant is not well-grounded.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9262.
    James Mullins vs. Peter Blaise.
    The responsibility of the father for tlie damage occasioned bv tbe act of his minor child residing with him, is not affecced by the fact that he was momentarily absent from the house at the time of the act.
    Neither is it affected by the tender’age of the minor. The fault, although not legally im putable to the child by reason of his lack of capacity, is imputed by the law itself to the father, as resulting from some defect of care, watchfulness and discipline in the exercise of the paternal authority.
    In estimating damages, we must be guided by the evidence in the record. Where the verdict of the jury is not manifestly excessive, and where we can feel no certainty that any modification thereof, would come nearer exact retribution, wo are not justified in dis turbing it.
    APPEAL from the Civil District Court for tlie Parish of Orleans. Monroe, J. --

      Jonas <& Nixon for Plaintiff and Appellee.

      Brauglm, Buolc & Bmlcelspiel and F. Miohinard for Defendant and Appellant. -
   The opinion of the Court was delivered by

Fenner, J.

On the night of Christmas, 1883, the children of defendant were engaged in celebrating the day by firing roman-candles from the gallery of his house. One of them, George Blaise, of the tender age of six years, instead of firing in the air, discharged his candle downward in the direction of a number of children who had gathered in the street to witness the sport, the result being that one ol' the flaming balls struck Mary Mullins, the minor child of plaintiff in the eye, inflicting a serious injury.

For the resulting damage this action is brought. It is based on the provisions of Art, 2318 of the Code, viz: “ The father, or after his decease the mother, are responsible for the damage occasioned by their minor or unemancipated children residing with them or placed by them under the care of other persons.”

All the conditions requisite to fasten responsibility on the defendant father are fully established, viz:

1. Tile damage was occasioned by the act of the minor. The learned counsel can hardly expect us to follow him in his purely conjectural argument as to how the accident might otherwise have happened, m face of the positive and uncontradicted testimony as to how it did actually happen.

2. The act was a fault of the most culpable character. It is true that by reason of the tender years and lack of discernment of the minor, this fault may not be, in a legal sense, imputable to him. But the exploded vagary of Toullier that this is a reason for exempting the father from liability can find no recognition at our hands. The law itself imputes the fault to the father. It presumes that it resulted from lack of sufficient care, watchfulness and discipline on his part, in the exercise of the paternal authority. This is the very reason and foundation of the rule.

For like reason the law imposes responsibility upon the owner for damage occasioned by his animals, who have certainly no greater powers of discernment than the infant of tender years, See on this point, 5 Marcade, 270 ; 2 Mourlon, p. 888.

3. The minor was residing with the father. The fact that the father was momentarily absent from the house at the time of the accident does not suffice either to exempt him from responsibility or to transfer it to the mother who was present. The law in terms only makes the mother responsible, after the decease ” of the father; but, no doubt we would follow the French authorities in extending her liability to analogous cases, such as when the husband is an absentee or an interdict, in which cases the paternal authority, with its attendant powers and duties, is transferred to her.

We should, however, do violence both to the language and reason of the law, if we construed the responsibility of the father as dependent upon his actual presence in the domiciliary house. No such limitation was intended. See 2 Mourlon, 889.

It is to be observed, that in the French Code, the parental responsibility attaches only in case the father “ shall not prove that he was unable to prevent the act which gave rise to the damage.” C. N. 3384. This restriction is omitted in our Code. We have not emphasized this distinction, because, even under the French authorities, we believe the defendant in this case would be held responsible. We have heretofore enforced such responsibility in an analogous case. Marionneaux vs.--35 Ann.

We fail to find any supporG for the defense of contributory negligence. Plaintiff’s child was in the street where she had a right to be, and in front of defendant’s house, whither she was naturally attracted by the fire-works. The pretense that she told the Blaise child to fire down is improbable in itself and not sustained by Ghe evidence.

The serious question in the case is the measure of damages, which the jury assessed at two thousand dollars. We sympathize warmly with the defendant, who is subjected to this heavy penalty for the act of his minor child of tender years, done without malice and even without capacity to comprehend its dangerous character. As matter of course, the defendant’s liability must be restricted to actual damages. But, what relief can we give him under the. evidence in this record ? The only testimonj'" as to the character of the injury is that of the injured child herself and of a single expert, the learned young specialist who treated her. This testimony establishes not only the pain and suffering, but, a serious impairment of the sight of the injured eye; that the impairment is permanent; that it is likely to grow worse; that it may eventually result in the total loss of sight in that eye, and possibly in the affection of (he other. We have no evidence to -weigh against this; nothing to impair its force and effect in the slightest degree. We must acceiff it and act on it, or else act on nothing.

How then, shall we say that such an injury will be excessively compensated by two thousand dollars? The jury has passed upon the question by a vote of eleven to one. The learned judge below approved it, by refusing the new trial asked on this ground. We would not be justified in disturbing their finding, since it is not manifestly excessive, and if we should reduce it, we should feel no confidence that our own estimate came nearer exact retribution.

Judgment affirmed.

Rehearing refused.


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

text:
    No. 9258.
    A. S. Cutler vs. Successson of G. W. Collins.
    Article 2281 of the R. C. 0. making parties interested competent witnesses in their own bohalf, leaves to the court the appreciation of their testimony, as much as it does that of disinterested, witnesses.
    The testimony of a plaintiff, in his own favor, to establish a large claim against a succession, should be received with the greatest caution. It is, in itself, of the weakest character and unless strongly corroborated, cannot serve as a basis for a judgment of recovery. Under art. 2282. R. C. C., the circumstance of his being aparty may diminish the extent of his credibility.

      \ PPEAL from the Civil District Court for the Parish of Orleans. A Lamrus, J.

      JBreaux & Sail for Plaintiff and Appellee. .
    TF. N. Benedict for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This suit is brought to recover $2026 25, from a succession, as a balance due on accounts running from January 22, 1879, to June 12, 1883, as per exhibits attached to the petition.

The defenses are tlie general issue and the plea of prescription.

From an adverse judgment, the succession representative appeals.

The evidence on which the lower court based the judgment consists of the testimony of the plaintiff adduced to show the labor performed, the money advanced, the paper discounted and the numerous items of the several accounts.

The defendant has sought, by different ways, to impeach this testimony. The defense specially insists that the evidence is insufficient and that more than $940 of the claim is barred by prescription.

It is urged that Article 2277, R. C. C., requires that a claim exceeding $500 be proved by two witnesses, or at least by one credible witness and corroborating in circumstances.

This article was article 2257 of the Code of 1825. The witnesses were to be disinterested and qualified witnesses.

The Act of 1868, now article 2281 of the R. C., which has allowed the testimony of interested parties and of persons closely related to them, requires a more stringent application of the exigencies of the law, touching the sufficiency of the evidence adduced by such parties, where the claim is sought to be established by the testimony of the plaintiff himself and against a succession.

It is true that precedents are to the effect that the article just mentioned does not apply to accounts the aggregate items of which exceed $500, when each separate Hem thereon is less than that sunn. 19 Ann. 71; 23 Ann. 785; 28 Ann.144. But it by no moans follows that the testimony of a plaintiff against a succession, in a case like the present one, in which more than $2000 is claimed, corroborated only by extracts which he says were made from his books, which were not made evidence at all, not even by himself, must be deemed sufficient to justify a judgment in his favor. It is in itself weak in nature and such as might be considered and weighed with great caution.

The legislature of 1868 only makes parties interested competent witnesses in their own behalf, leaving the appreciation of their testimony in point of sufficiency and credibility, to the court whose action is asked.

This is a suit by an employee against liis deceased employer, by one in the habit of borrowing money from his alleged debtor, who is shown to have been a man of means, an agent representing large interests, a man fair, honest, prompt, systematic and correct in his business transactions; by one who had that employer’s confidence, who, during his last illness, had the key of Ms office and, therefore, access to the contents and who, since the death, has stated different amounts, from $200 and upwards, to be due him by the deceased.

The evidence shows that the plaintiff once stated, during the lifetime of Collins, that the latter was considerably indebted unto Mm, but that when this statement was communicated to the latter, he expressed' astonishment and surprise. It shows also that Cutler stated the amount to bo two thousand dollars, but this statement is not shown to have been made in presence of Collins. It is nothing, but the recurring of plaintiff’s own testimony.

Those circumstances, though not sufficient to outweigh the testimony of plaintiff, so as to warrant a judgment in favor of the succession, are surely not corroborating circumstances. .They are such as will justify a court of justice in abstaining from recognizing and enforcing his claim.

Tt is not because a plaintiff swears affirmatively to the existence of a debt in his favor that the court is bound to take his testimony as conclusive. Surrounding circumstances and the absence of corroborating proof, may weaken it, (particularly in a suit against a dead man), so as to render it insufficient for a foundation for a judgment of recovery. See Manning’s unreported cases, p. 98.

The Code itself provides that the circumstance of a witness being a party to the cause, though not a sufficient cause to consider him as incompetent, may, according to circumstances, diminish tlie extent of his credibility. R. C. C., 2282.

The testimony in this case being that of the plaintiff, against a dead man, is of the weakest kind and is not entitled to sufficient weight to warrant a judgment for the plaintiff. To prevail, it should have been strengthened by strong, or at least reasonable, additional independent proof.

The reason for which the law attaches little weight to such testimony is, not only the interest of the party in the cause, but also that his statement cannot be contradicted by the dead man, or the witness convicted of perjury on the evidence of the deceased. It was thus viewed in cases in which the lawrequired one credible witness and corroborating proof, in cases in which more than $500 was claimed, but there is no reason why it should not be likewise viewed since the change in the legislation. 7 R. 112; 6 Ann. 763; 8 Ann. 278-9; 9 Ann. 495; 10 Ann. 279; 16 Ann. 168; 14 Ann. 275; 19 Ann. 495, etc.; Manning’s unreported cases, 98.

The defense of prescription appears to be without merit, but cannot be passed upon. 2 Ann. 780; 14 Ann 700.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that there be judgment against plaintiff as in ease of non-suit, at his cost in both courts.

Fenner J. dissents.

Rehearing refused.

Dissenting Opinion.

Fenner, J.

There may be error in the judgment appealed from, but I find no ground in this record for so declaring.

Nothing is involved but a question of fact. It is the proof of an account against the succession of a dead man by the sole testimony of the party claiming. No item, of the account exceeds five hundred dollars, and, therefore, under established jurisprudence, art. 2277 C. C, has no application. Stribling vs. Stewart, 19 Ann. 71; Rossignol vs. Friche, 28 Ann. 144 ; Andrew vs. Keenan, 14 Ann. 705. Even if it applied, there are not wanting various corroborating circumstances to support the testimony, notably the facts that the account was regularly kept, that the claim had been mentioned to several parties during the lifetime of the deceased, that a highly respectable witness for the defendant testifies that the claim had been mentioned to him, and that he had told the deceased defendant of it, and that the latter, while expressing surprise that plaiutiff should have spoken of it, did not say whether he owed the debt or not. There is no opposing testimony, except of a merely inferential and presumptive character.

There exists no legal bar to the sufficiency of the evidence, and if the district judge believed the plaintiff, it was his duty to give him judgment.

He did believe him and gave judgment accordingly.

He saw and heard him testify and had the advantage of all those direct personal impressions which influence our opinion as to the truthfulness of testimony. He was, in every way, better qualified to judge of the credibility of the witness, than we can possibly be, and I consider it a rash exercise of our appellate power to reverse his conclusion.

Had we followed the same rule of decision which guided us in the case of Smith vs. Braun, decided this day, I think the judgment would have been affirmed.

There the proof of the cause of action rested on the sole testimony of one party, which was directly and positively contradicted by the other party. The case was one of breach of promise of marriage, certainly opening a much more dangerous door to fraud, than the mere proof of money claims against deceased persons. In every point of view, the difficulty of affirming the judgment was greater than in this case. And yet, the question being one of the credibility of witnesses, we felt compelled to affirm the j udginent, because we could not say there was mcmvifest error.

The same reasons which induced me to concur in that case, compel me to dissent in this.


author: Poché, J.

text:
    No. 9303.
    The State of Louisiana vs. Antonio Romano.
    A defense in a criminal case that the law under which tlie defendant was tried and convicted is unconstitutional, comes too late when made on appeal for the first time. The appellate court cannot consider and determine questions of law which were not submitted to, and passed by, the trial judge.
    APPEAL from the Criminal District Court for the parish of Orleans, Roman, J.

      M. J. Cunningham, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.
    1, Points not formally assigned as errors on the record, though discussed in appellant's printed argument, will not be noticed. There must be a written assignment iu criminal as well as in civil cases; and it must be filed before the case is submitted, or the right is waived. 12 A. 386 ; 10 A. 265,

      2. The same act may, as to its character and tendencies, and the consequences it involved constitute an offense against both the State and Federal governments, and might draw to its commission the penalties denounced by either, 9 How, U. S. 569; 5 How. U. S. 435 ; 1 Bishop on Or. Law. § 155, The United States Revised Statutes have the general provision, introductory to the title “Crimes,” that, “nothing in this title shall bo held to tahe away or impair the jurisdiction of the courts of the several States under the laws thereof.” R S. of U. S. §5328.
    An indictment may be maintained in the State Courts, for counterfeiting the United States coin, it being treated in the latter case as an offeuse against the State. 2 ‘Whart. Grim. Law, §1501; 1 Bishop on Or. Law § 178; 2 Bishop on Or. Law, §§ 283, 285, 287; 1 Doug. Mich. 207 ; 14 How. 13 ; 38 Cal., 145; Cooley’s Const. Limit., 4 ed., p25; 'Washburn’s Manual of Orim. Law, p. 46.

      J. N. Healey, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The defendant has taken this appeal from a conviction for counterfeiting coin of the United States. In his counsel’s brief, and for the first time, he suggests as a reason for the reversal of the judgment, that a state law punishing the counterfeiting of the current coin of the United States is contrary to the Federal Constitution, and the-court which undertakes to enforce such a law is without jurisdiction.”

His appeal comes without an assignment of errors, without a bill, of exception, without a plea in bar, and without a motion in arrest of judgment. The record shows that he pleaded “ not guilty ” to the indictment, and that when called up for sentence he declared that he had nothing to say.

In criminal matters this court has a very limited jurisdiction, and it is unquestionably powerless to review a question of law which has not been submitted to, or passed upon by, the lower court.

If, as now alleged, the district court had no jurisdiction to enforce the law under which the defendant was prosecuted, that plea should have been made in that court, either by a demurrer to the indictment, or by a motion in arrest of judgment.

How can we be expected to rule that the District Court erred in exercising jurisdiction in the premises, when its power of jurisdiction was not questioned 9

An appellate court whose mission in criminal cases is to review the action of the trial judge on points of law, cannot undertake to review a judgment charged to be erroneous on a ground not even mentioned below. State vs. Arthur, 10 Ann. 265; State vs Bass, 11 Ann. 862. State vs. Tony Taylor, recently decided by this court.

It is too clear for further argument that the defence comes too late, and that it cannot be considered.

Judgment affirmed,


text:
    No. 9246.
    Carondelet Canal and Navigation Company vs. Lugger 1st. Chevere Tedesco and Owner.
    Xb© Supreme Court has jurisdiction over a suit for a toll which is resisted as unwarranted by law, or illegal, whatever be the amount claimed.
    The constitution in force, as well as that of 18(58, have brought a change in that of 1852, which was that considered in 9 Ann., p. 65 The court could not then pass on the legality of such toll, where the amount of it did not exceed $300, which was then the lower limit of its jurisdiction. The court can now do so, regardless of the amount claimed, under Art. 81 of the Constitution.
    The exception to the capacity of plaintiff to sue, cannot be considered on a motion “ to dismiss for want of jurisdiction,”
    The court will allow the State an opportunity to be heard in cases in which grave rights of hers are involved.
    The charter of the plaintiff possesses all the features of a contract. The legislature was, therefore, without power to repeal it; and Act No. 86 of 1884, in so far as it operates to repeal the said charter, is declared unconstitutional, without prejudice, however, to the rights of the State, whatever they may he, under the other provisions of said act.
    APPEAL from the First City Court of New Orleans. Toorldes, J.

      H. 1). Ogden, and Blanc & Butler for Plaintiff and Appellant.

      Bambola & Ducros for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The defendant and appellee charges:

1. That the matter in dispute herein does not exceed two thousand dollars.

2. That the constitutionality of no act of the legislature imposing any tax, toll, or impost whatever, is drawn in question in this case.

The suit was brought before a citjr court to recover $23.40 from defendant, for toll said tobe due the Carondelet Canal and Navigation Co., under Act. No. 160 of 1857.

The defendant excepted on tlie grounds that there is no such corporation in existence as the Carondelet Canal and Navigation Company, that the late Company is defunct, by Act 86 of 1884, and that the plaintiffs have no standing in court.

The city court maintained the exception and dismissed the suit. From this judgment, the plaintiffs have taken this appeal which the defendant and appellee now seeks to have dismissed.

The defense is clearly that the toll claimed is not due, because not authorized by existing law, therefore illegal, and because plaintiffs are a myth and have no existence.

The matter in dispute is a toll, the legality of which is attacked. It is immaterial on what ground the illegality is alleged. It suffices that it be claimed by the defense to give this court jurisdiction over the contention.

The Constitution explicitly provides, that this court shall have appellate jurisdiction over cases (among others) in which the constitutionality or legality of any tax, toll, or impost whatever shall be in contestation, whatever may he the amount thereof, and in such cases, the appeal, on the law and on the fact, shall be directly from the court in ■which the case originated to the Supreme Court; Const. 81.

It is, therefore, indifferent whether the toll claimed exceed or not $2000.

There can be no doubt, as claimed, that this court has, as a rule, no appellate jurisdiction over cases involving the constitutionality of an act of the Legislature, where the matter in dispute does not exceed $2000 ; but this is not so, where the constitution has, in derogation of the rule, specially vested it with jurisdiction over a certain class of cases, regardless of the amount involved', though less than two thousand dollars.

The ruling invoked in 9 Ann., 65, was made in 1854, while the constitution of 1852 was in force, which did not confer appellate jurisdiction on the then Supreme Court, in cases of toll charged with illegality, regardless of amount; Art. 62.

The Constitution of 1868 operated a change, by giving'the jurisdiction, whatever was the amount claimed. (Art 74).

The change was maintained in the present Constitution (Art. 81), which expressly confers such jurisdiction, whatever the amount involved be, in such cases.

It is only on the trial of the exceptions that the issue raised by them can be inquired into. This cannot be done on the motion to dismiss. In the meantime, the court maintains its jurisdiction over the case, as presented by the pleadings.

Motion denied.

In this case, the constitutionality of Act No. 86 of 1884, involving grave rights of the State being involved, we are indisposed to determine the question, without giving an opportunity to the State to be heard.

It is, therefore, ordered that notice be given to the Attorney General of the pendency of this appeal, and that a delay of one week be allowed him, to file such brief herein as he may desire.

On the Merits.

Fenner, J.

The plaintiff ^corporation sues for the collection of a toll claimed as due to it under the provisions of its charter.

It was met by the following exception on the part of defendant, viz: That there is no such corporation in existence as the Carondelet Canal and Navigation Company; that the late Carondelet Canal and Navigation Company is defunct by Act No. 86 of the General Assembly of the State of Louisiana of 1884, and therefore, plaintiff cannot stand in judgment.”

This exception was sustained in the lower court, plaintiff’s demand was rejected, and from this judgment the present appeal is taken.

The unconstitutionality of Act No. 86 of 1884 is” assigned as destructive of the exception.

Section 20 of Act 160 of 1857, being the charter of plaintiff, provided: “That this corporation shall have existence for and during the term of twenty-five years, from and after the 17th day of October next; provided, that the State shall have the right to take possession of said Canal Carondelet and fiayou St. John, and all the property and improvements connected therewith at the expiration of the term above mentioned, should the legislature determine so to do, upon paying to this corporation the value of said property, to be appraised by five competent persons as experts, two to be appointed by the corporation and two by the Governor, and the four thus appointed shall appoint a fifth; said experts shall be required to take an oath to discharge their duty faithfully. In the event that the State shall not determine to take possession of the property, as herein provided, then this corporation shall be in existence for twenty-five years from and after the expiration of the term above mentioned, etc.”

In 1858, the General Assembly passed a supplementary Act No. 74, the fourth section of which provided: “ That the said company shall enjoy corporate succession during fifty years from this date, after which time it may revert to the State, etc.”

This last act contained no repealing clause. The question whether it operated an implied repeal of the privilege reserved to the State to bane possession at the end of twenty-five years, need not be here discussed. It seems clear enough that, whether that privilege was preserved and exercised or not, the terms of the last act were sufficient to continue the mere corporate existence for fifty years.

As the exception raises no other question than continued corporate existence, it is obviously without merit, unless sustained by the provisions of Act No. 86 of 1884.

That act is very brief. Its first section simply declares that Act No. 160 of 1857, and Act No. 74 of 1858 be and the same are hereby repealed.” The second section authorizes the Governor to appoint “ two or more experts to appraise and value the property of the said Carondelet Canal and Navigation Company.” The third authorizes and directs the Governor to take possession of the Bayou St. John and Carondelet Canal aud to appoint three commissioners to administer, manage and conduct the affairs of the Bayou and Canal to the best interests of the State.

The statute may be regarded in two lights, viz: 1. As operating a repeal of the charter of the Canal and Navigation Company and thus terminating its corporate existence; 2. As authorizing and directing the Governor to take possession of the Bayou and Canal and to have them administered for the State.

So far as the last aspect is concerned, it is not pretended that the Governor has taken possession, and his right to do so under the act or otherwise, is one exclusively between the State and the corporation, the decision of which ma5r abide the issue between them, and which is no affair of defendant.

The defendant, under his exception, has no concern with this act except in so far as it affects the corporate existence of plaintiff.

From this point of view, the act stands before us as a bare and naked legislative repeal of a corporate charter.

That the plaintiff’s charter possesses all the features of a contract is so patent on the face of the acts granting the same as not to admit of dispute.

Hence, as a mere repealing act, the act 86 of 1884 is in flagrant violation of Art. 447 Civil Code aud Art. 105 of the Constitution of 1852, in force at tire date of the contract, of Art. 155 of the presenc Constitution and of Section 10, Article 1, of the Constitution of the United States. This leaves the defendant’s exception without support.

Appreciating the interest of the State in the questions involved, we caused the Attorney General to be notified of the pendency of this suit and invited him to file a brief in protection of the State. He concluded, no doubt wisely, that the State’s rights were not necessarily involved in the decision of this controversy. We have striven to avoid, as far as possible, any preclusion of the rights of the State and to confine ourselves to the sole question the decision of which was essential in the instant case.

It is, therefore; ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and, it is now decreed that the exception filed by defendant in the lower court be overruled and that the cause be remanded to the lower court to be there proceeded with according to law.


author: Poci-nii, J.

text:
    No. 9212.
    Succession of Felix Rieger.
    Evidence offered on the trial of a suit by one of the heirs of a succession against the surviving -widow of the deceased, for the purpose of compelling her to include in the inventory, property -which she claimed as part of her separate estate, is inadmissible as evidence on the trial of an issue growing out of an opposition to her account of administration for ‘the rejection of a moneyed claim for her paraphernal rights against the community.
    The ruling of the district judge, ordering the testimony of a party to the suit to be stricken out of the record, for the reason that such party refuses or fails to appear in court for the cross-examination, is within his legal discretion, and will not be disturbed on appeal.
    APPEAL from the Civil District Court, for the Parish of Orleans; Monroe, J.

      Breaux & Ball for Opponents and Appellees.

      JZ. J. Ker, and F. Michinard for Defendant and Appellant.
   The opinion of the Court was delivered by

Poci-nii, J.

This controversy involves the correctness of a provisional account of administration, presented by the administratrix who is the surviving widow of the deceased.

There are no children of the marriage, and the contest is between the administratrix and the collateral heirs of her husband.

The contention on appeal hinges upon an item of $10,000, charged in the account as the widow’s claim of her paraphernal rights against the community ; and it presents also an opposition to an item of $1350 allowed for the claim of a deceased child of the widow, issue of a previous marriage.

The district court reduced the widow’s claim from $10,000 to $800, and rejected the claim of Vietorine Stegle, the deceased child, with reservation of the rights of her heirs to press their claim thereto. The administratrix appeals.

Her counsel call our attention to two bills of exceptions which she has taken to the rulings of the judge: 1. She complains of his refusal to admit in evidence the testimony of several witnesses taken in a contest which had grown up between herself and one of the opponents in the present litigation. It appears that the inventory which the administratrix had caused to be made of the succession property had been opposed by one Marcus Rieger, the only heir of the deceased present in the State, who had brought a suit against the surviving wi low, with a view to compel her to inventory, as belonging to the community, certain property which she claimed as her own. The judgment rendered in that suit compelled her to include that property in the inventory, under the reservation of her right to urge her paraphernal claims in due course of administration.

The judge did not err in excluding that testimony from the trial of this opposition. The parties are not the same, the capacity of the widow is not the same, and the issue is different. In the previous contest the question involved the status of certain property, as belonging to the community or to the surviving widow. The issue in the present case involves a moneyed claim of the widow for the restitution of her paraphernal funds which had enured to the benefit of the community. The evidence was elearly inadmissible.

2. Her second bill charges error in the order of the district judge striking out her own testimony, which was done under the following circumstances:

After she had been examined in chief, and while she was being cross-examined, she complained of being sick and asked to postpoue her cross-examination, which was, in consequence, continued to the next day. On that day she sent an excuse for continued illness, whereupon the case was continued to a fixed day, with the warning by the court to her counsel that, in case of her continued illness, her testimony should be taken under a commission. Her counsel made no effort in that direction, although notified by the opposite counsel of their readiness to proceed to take the testimony under a commission. On the day fixed for the final hearing, the administratrix failed to appear, and counsel for opponents, insisting for their right of cross-examination, the court entered an order striking her testimony, as far as given, from the record.

We are not disposed to interfere with the discretion wisely vested in courts of the first instance in their rulings on such points. If the judge believed, as he had every reason to conclude, that this party, by her persistent failure to submit to a cross-examination, and by her conduct impeded the settlement of the succession which she represented, with possession of all the property, it was his duty to put an end to such a state of things. After due warning to her counsel, the judge used the most efficient means of preventing a denial of justice, and we cannot take the responsibility of disturbing his ruling.

The condition of the widows’s recovery of the sum which she claimed is two-fold. She must prove, with legal precision, the amount of her paraphernal funds; and in the next place she must show that the funds were received by the husband and used in his business.

When Mrs. Rieger married her third and last husband, she kept a grocery and bar-room in this city j and the stock in that grocery is the only paraphernal property which the record satisfactorily proves that she owned at the time of her marriage, and which came under the husband’s administration. That stock is variously estimated at $600 and as high as $1500. The judge adopted the estimation of $800, and we find no sanction or ground to justify a different conclusion. The testimony is voluminous, but equally loose, conflicting, and unsatisfactory Several witnesses, whose only source of knowledge was in drinking at the bar, visiting the widow, and gossiping at the corner grocery, state that she had large sums of money previous to her marriage, but all of that testimony is of the weakest Mud, and no portion of it even intimates that any of the widow’s money was ever received by her last husband and used in his business. Hence we do not feel authorized to increase the allowance made in her favor by the court. But in considration of the fact that the account under discussion is only provisional, and of the circumstance that the testimony of the administratrix was stricken out, we think the other ends of justice require that she should be granted another opportunity of establishing her claim, if she can, with more certainty. Hence we shall amend the judgment to that end.

Under the evidence, we And no error in the disposition made by the lower court of the item charged in the account in favor of the late Victorino Stegle. Before concluding this opinion we are reluctantly compelled to refer to the incomplete condition of the transcript in this case. —a circumstance which has increased the labor of our examination of the cause beyond all reasonable bounds. In the language of appellee’s counsel, “the confusion of this transcript is beyond the power of expression to render justice to it.” Several transcripts now under examination in this court, emanating from the same office, are almost as incomplete. Competency must bes one of the attributes of a clerk, and none but experienced copyists should be entrusted with the confection of such important documents as transcripts of appeal.

It is therefore ordered that the judgment appealed from be amended so as to reject the claim for paraphernal funds credited to herself by the administratrix as reduced by the lower court, as in case of non-suit, and as thus amended, said judgment be affirmed. Costs of appeal to be paid by the succession.


author: Manning J.

text:
    No. 9342.
    Mary Walker vs. Alexia Walker.
    A party to a suit is not permitted to judicially allege a state of facts so contrary to and inconsistent with those set up in a former suit between the same parties, that if the allegations in the one suit be true, those in the other must necessarily be false.
    APPEAL from the Twentieth District Court, Parisli of Lafourche. Winder, Judge ad hoc.

      John S. Bilim for Plaintiff and Appellee.

      O'Sullivan & Blalce for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning J.

In December 1881 the plaintiff instituted suit against the defendant, her daughter-in-law, alleging that nine years before she had sold a tract of land in Lafourche to hei son Emilien for $1800, of which one third had been paid and the residue was represented by two notes maturing in 1874 and 1875 which were secured by mortgage and vendor’s lien—that her son had died and his widow (the defendant) was representing his succession as surviving widow and natural tutrix to his children—that this widow Alexia had fraudulently obtained possession of these notes from the plaintiff under the promise to pay them, making false representations to her, and instead of paying them had presented them to the Recorder and had them cancelled. Under an allegation that she feared her daughter-in-law would dispose of or encumber the land, supported by her oath, she obtained an injunction forbidding it, and prayed for judgment against the defendant as widow and tutrix for the amount of the two notes with recognition of the mortgage and vendor’s lien, and for the erasure of the cancellation. The Recorder -was made a party.

The defendant answered denying the plaintiff’s statement and averring that the two notes were cancelled with the plaintiff’s consent and full knowledge, and upon each of them is endorsed the following—“I hereby acknowledge to have received payment in full of the within note and the Recorder is hereby authorized to cancel the same and erase the mortgage”—and this is signed by the plaintiff and attested .by two witnesses.

Upon these pleadings the parties went to trial and the defendant had judgment dissolving the injunction and rejecting the plaintiff’s demandfor a moneyed judgment and for recognition of the mortgage. This was in August 1882. An appeal was prayed and granted, and bond was executed therefor, hut it was not brought up and the judgment became final.

In July 1883 the present suit was instituted, in bar of which the defendant pleaded the allegations in the former suit as an estoppel and the judgment therein as res adjudicata.

The allegations of the present suit are that she gave the notes to the defendant to be cancelled on the promise that the latter was to support her at the house and besides was to give her one half of the annual crops, and alleging that the defendant had driven her from the house prays for judgment for the monthly rent thereof and one half of the crops of .1881, 1882, and of that which was to be made the current year 1883. She avers that she was defeated in the former suit because the defendant proved that agreement to have been made.

If such agreement had been made, it was as well known to the plain-' tiff' when she instituted her first suit as upon its trial. This is not the case of a party suing upon an agreement made by others, the particulars of which were not fully known to him, and where in setting out the cause of action one has to strike in the dark. Such, cases sometimes occur when the action is brought by one suing in a representative capacity without full knowledge of what has been done or said by him. whom he represents. Sue. St. Amans, Manning’s unrep, Cas. 44. Here the parties who alone are concerned, and who delivered and received the notes for cancellation, are the parties to both suits. The allegations in the last suit are inconsistent with and contrary, to those in the first. If the defendant accepted the notes, freely offered her by the plaintiff, upon the'promise to support her, then she did not fraud, ulently obtain them. One or other of tire allegations in the two suits is false and unfounded, and it is well established that one is bound by his judicial allegations to such extent that he will not be heard to contradict them. School Bd. Concordia v. Hernandez, 31 Ann. 158; Watkins v. Cawthon, 33 Ann. 1198; Folger v. Palmer, 35 Ann. 744. Certainly he cannot recover on an alleged state of facts which is so counter to those set up in a previous suit that if the one be true the other must necessarily be false. Wells on Res Adjudicata, secs. 9 et seq.

The plea of res adjudicata and estoppel which was set up by way of exception should have been sustained.

It is therefore ordered and decreed that the judgment of the lower court is reversed, that the exception pleaded by the defendant be sustained, and that there be judgment in her favour against the plaintiff for her costs in both courts.


author: Bermudez. C. J.

text:
    No. 9312.
    The State ex rel. John Davidson vs. The Judges of The Court of Appeals of the Parish of Orleans.
    The Court of Appeals lias jurisdiction over a controversy, the matter in dispute wherein involves the allowance to a minor in necessitous circumstances, of one thousand dollars, under Art. R C. 0. 3552, which is a reproduction of the Act of 1852.
    The recent amendment of Art. 81 of the Constitution in force, which gives to this court exclusive jurisdiction when the right to a homestead is claimed, refers to the homestead mentioned in Arts, 219 to 223 of that instrument, and not necessarily to the provisions of Art. R. C. C. 3552, which only makes necessitous widows and minors privileged creditors of the estate of the deceased.
    A mcmdanvus lies to compel the Court of Appeals to hear and determine such a case, although it has ruled that' it has no jurisdiction over it.
    PPLICATION for Mandamus.

      B. B. Forman, for the Relator.
    The Respondents m propriis personis.

   The opinion of the Court was delivered by

Bermudez. C. J.

This is ail application for a mandamus.

The relator complains that the respondents have refused, without authority of law, to pass upon the merits of an appeal taken by him, from a judgment allowing a minor, said to be in necessitous circumstances, out of the binds of a succession which he administers, the sum of one thousand dollars. This was the only matter in dispute.

The ground on which the refusal was based is, that by the amendment of Article 81 of the Constitution, adopted in May last, this court was given exclusive jurisdiction in cases involving the right to a homestead.

The judges of the Court of Appeals have made return accordingly.

The allowance by the District Court was made under the provisions of Art. R. C. C. 3552, which is the Act of 1852, entitled, “an act to provide a homestead for the -widow and children of deceased persons.55

The object and purpose of this Act was not to provide for a homestead, strictly speaking, but to make the necessitous widow and minor children of the deceased privileged creditors of the succession and to have them paid in preference to other creditors.

The amendment of Art. 81 refers to the homestead mentioned in Articles 219 to 223 of the Constitution. The word “homestead,” there used is to be taken in its technical sense. It means the land and dwelling, the cattle and effects appropriated, as a permanent residence for the family. Abbott and Bouvier, vo. Homestead.

In succession "of Durkin, 30 Ann. 670, tlie previous court said the Act had been misnamed in its title; that it is an Act providing- tire necessitous widow’s portion out of her husband’s estate. It reiterated the language in Curran vs. Ames, V., Manning’s Unrep. Cases, 442.

It is over such cases of homesteads alone, as are mentioned in the present. Constitution, that this court has exclusive jurisdiction.

It is, therefore, ordered and decreed that the alternative mandamus herein issued be made peremptory, and that the respondents do proceed to hear and determine the case presented.


text:
    No. 9239.
    The State ex rel. P. H. Segura vs. Conrad Debaillon, Judge.
    Tlie tost of tlie right to dissolve an injunction on bond is the nature and extent of the injury wrought by the injunction. If irreparable,'that is if not compensable by money, dissolution on bond is not permissible. If reparable, the injunction may be dissolved on bond.
    Where the injunction forbids the talcing possession oí an office or the exercise of its functions, no difference exists quoad the right to dissolve between that and the ordinary objects of injunctions.
    A PPLICATION for Mandamus.

      JBrecmx & Rail and J2. Simon for the Relator.

      B. S. Berry for the Respondent.
   The opinion of the Court was delivered by

Manning, J.

Segura and Wakefield were candidates for tlie clerkship of the District Court for Iberia at tlie election of last spring. Wakefield was returned as elected and was commissioned on May 22d. On the 10th of that mouth Segura had filed suit contesting the election of Wakefield on sundry grounds therein set forth, and on the ]4th he filed a supplemental petition alleging that he feared Wakefield would take possession of the office and its records and emoluments, to prevent which he prayed and obtained an injunction forbidding those acts. The writ issued on a bond of three hundred dollars. The emoluments are alleged to be worth two thousand one hundred dollars. Segura was the incumbent of the term then expiring.

Tlie injunction continued in operation until August 16th when Wakefield obtained a dissolution of it on a bond of same amount as the injunction-bond. On the 20th of same month Segura prayed a suspensive appeal from this order of dissolution, which being refused he prayed from this court a mandamus to compel the district judge to grant the appeal, and to the alternative writ issued at his instance the respondent judge has answered and has thus presented the issue, now before us.

Tito test of the right to dissolve an injunction on bond is the nature and extent of the injury wrought by the injunction. If irreparable, that is if not compensable by money, dissolution on bond is not permitted and hence the converse is true, the injunction may be dissolved on bond if compensable by money. Where the injunction .forbids the taking possession of an office or the exercise of its functions, no difference exists quoad the rights to dissolve between that and the ordinary objects of injunction-suits. Dissolution has been maintained where the right to act as pilot was claimed, Osgood v. Black, 33 Ann. 493; where the exclusive privilege of slaughtering animals was sought to be protected, Cres. C. Slaughter Ho. Co. v. Butchers’ Union, Ibid. 930; and again in relation to pilots in Levine v. Michell, 34 Ann. 1181 where a full array of authorities are marshalled. We applied it where the shrievalty of Iberia was in contest when the rival claimants were candidates at the same election with the present claimants of the clerkship. State ex rel. Mestayer v. Debaillon, not yet reported.

In all of these cases an appeal was denied from the order of dissolution because the injury resulting therefrom was reparable, and this case falls under the same rule.

The writ is refused.


text:
    No. 9325.
    The State ex. rel. B. R. Forman vs. The Judges of The Court Of Appeals for the Parish of Orleans.

      A mandamus does not lie to compel a Court of Appeals to reinstate and try a cause before it, which was dismissed on the ground that the record brought up is not submitted in the form prescribed by the rules of the Court.
    ^ PPLICATION for Maudamus.

      J. 0. Nixon, Jr., for the Relator.

      J. 0. Gilmore for the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an apiilication for a mandamus.

Its object is to compel the respondent judges to reverse a iinal judgment rendered by them, to reinstate the case thus decided, to maintain an appeal, and to try and determine the controversy on its merits.

The complaint is that the judges have dismissed an appealjprojprio motto, on the ground that the record ivas not properly certified and was not accompanied with a chronological list of the documents composing it.

The relators charge that the judges have thus acted without any motion to dismiss having been made, that they have illegally adopted rules which add to the conditions prescribed by the Constitution, for the transmission of appeals, and erial of cases before them; that the cause having been once tried and decided on its merits by the judges they could not, on a rehearing granted, find fault with the record, which they had already found sufficient and acted upon.

The judges attack the form of this proceeding. They, however, claim that they, have the Constitutional right to adopt rules for the police of their court; that they have done so without infringing any law, or violating any of the rights of litigants; that in a matter of which they had jurisdiction, they have, in the exercise of a legal discretion, determined that the record in the case was not in the condition presented by their rules, that this was sufficient to justify a dismissal of the appeal, that they have accordingly dismissed the appeal correctly, that their action is final and not reviewable.

It cannot be disputed that, in the exercise of the plenary powers of control and supervision, with which the Constitution vests this court over all inferior tribunals, including courts of appeals, it is our duty to see, not only that these tribunals do perform all the duties imposed upon them by law, in matters within their competence, but also, that they do not transgress their powers, either by exceeding their jurisdiction or authority, or by disregarding the essential forms prescribed by law for the administration of justice. That duty is accomplished by this court through the conservatory writs of mandamus, prohibition, and certiorari.

The present proceeding has clearly for its object the test to intrinsic validity of the action of the Court of Appeals in dismissing the appeal. Yet we are asked to command it to do and perform.

The record shows that the respondents have acknowledged jurisdiction over the case, that they have exercised their authority over it, that they have done in it and with it what they thought they ought to do under the law. Still tiie relator insists that the judges have erred in dismissing the appeal, that the order of dismissal should be annulled, that the case should be put back on the docket, tried and determined by the Court of Appeals on its merits.

We have more than once formally held that we would not interfere with courts of appeals and others, where the judgment complained of was rendered in a case within their jurisdiction, and in a proper form. 34 Ann., 782 ; 35 Ann., 837.

We might, perhaps, on a proper presentation of the matter, inquire into the powers of that court to adopt aud enforce the rules so loudly denounced; but surely we cannot do so, in the form now presented. We are asked to review the decree of dismissal, set it aside, command the judges to reinstate the case, to maintain the appeal, and to pass upon its merits.

The writ of mandamus cannot be perverted into a writ of error. It does not lie, as has frequently been held by us, to compel the reversal of a judgment, and decree the rendition of a specific judgment in place thereof.

Doing so would be extending the appellate jurisdiction of this court over a class of cases which the Constitution has directed shall be determined finally by inferior tribunals, assuming therefore an appellate jurisdiction over the Court of Appeals, reversing their judgments and substituting ours to theirs. 32 Ann., 218; 33 Ann., 16, 1225 ; 35 Ann., 366; 0. B. 54, f. 854.

We have neither the power, nor therefore the inclination, to arrogate to ourselves any such authority. The proceeding is inadequate to afford the relief contemplated.

The application is therefore dismissed with costs.


text:
    No. 9336.
    The State ex rel., Louis Rayssiguier vs. F. A. Monroe, Judge of Civil District Court of Orleans.
    A deposit of money in court, equal in amount to the sum prescribed for a suspensive appeal-bond, stands in lieu of the bond.
    But such deposit must be made within the time that a suspensive appeal-bond is permitted to be given. If made or tendered after that time has expired, the deposit is not receivable.
    Although the judge did not iix the amount of the bond until the tenth day, no complaint was made of want of time to comply with the order, but a bond was given and when it proved worthless the fault was with the appellant.
    PPLICATION for Mandamus.

      Jos. Maille for the Relator.
    Respondent in propria persona.

   The opinion of the Court was delivered by

Manning, J.

The relator applies for a mandamus, to compel the respondent judge to accept a deposit in court of cash in amount equa] to the suspensive appeal bond prescribed by the judge,

The suit was the relator against his wife for separation from bed and board in which the wife had judgment for the separation and also for alimony, and a suspensive appeal having been prayed by the husband the judge fixed the bond at one hundred dollars. It was given.

It seems two judgments were signed—one for the separation, the other for the, alimony—and on the tenth day the judge’s attention was called to the fact that the relator’s motion of appeal seemingly applied to both judgments. As the judge conceived a bond for $100 insufficient, he directed that the relator should give another bond for $600 for a suspensive appeal from the judgment for alimony. It was also given with the same surety.

A rule was then taken to test the solvency and sufficiency of the surety and he was found to be worth nothing, whereupon the relator offered to deposit $700 in lieu of the two bonds, on the authority of Lanata v. Bay hi, 31 Ann. 229, ihe judge permitted the deposit of $100 in lieu of the bond in the judgment for separation as the delay (thirty days) had not expired, but refused to permit the deposit of $600 in lieu of the bond of appeal from the judgment for alimony because the delay for a suspensive appeal (ten days) had expired.

The surety tendered by the appellant was at his peril. Ttis his affair to know beyond peradventure that his surety is good. It is his duty to be assured of that fact and it is his interest likewise, for having-given a bond with surety on time to save his suspensive appeal, he takes the risk of losing it if his surety prove worthless and the time has expired, and as the deposit is a substitute for the bond, it cannot be accepted when the time for giving the bond has expired.

This is not a case where complaint is made of want of time to give a .bond occasioned by delay or procrastination of the judge in prescribing its amount. It is true the judge did not prescribe the. amount of the bond until the tenth day, but the relator so far from complaining of surprise or lack of sufficient time to give a bond, gave it instantly, and it was Ms fault that it proved worthless.

The writ is refused.