text:
    No. 9047.
    The State ex rel. Ernst & Co. vs. The Board of State and City Assessors.
    Relators, who are engaged in the business of milling rice, cannot claim the exemption from property taxation under Art. 207 of tlie Constitution in favor of-manufacturers of flour. The fact that-, as an unavoidable incident of their milling business, a refuse is produced which is utilized and sold under the name of “rice-flour55 or “rice polish,’5 does not bring them within the letter or spirit of the Constitutional exemption.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      W. B. Kooniz for Plaintiffs and Appellants.

      C. F. Bxick and L. O’Donnell for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Relators, who are engaged in the business of milling rice, sue to cancel an assessment on the property, machinery and other property employed by them in their said business, upon the ground that they are exempt under Article 207 of the Constitution.

In the case of City vs. Ernst & Co., 35 A. 746, we have already held that relators were exempt from license taxation on the ground that they were mmmfaeturers, within the purview of Article 206 of the Constitution. But a very different question arises when they claim the exemption from property taxation under Article 207.

It is not sufficient, under the latter article, for them to he manufacturers simply, hut they must be manufacturers of some of the pcwtieular articles specified therein. They claim that the property for which they seek exemption is “employed in the manufacture of flour.

The object of tlic business of rice-milling is to clean and polish the grains of rice and to fit them for market in the form in which rice is usually sold.

But it appears that, in the process of decorticating and polishing rice, as an unavoidable incident thereof, a certain quantity of dust or small fragments of the grain is thrown off, which is gathered and sold under the name of “rice flour” or “rice polish,” chiefly for manufacturing purposes, though, sometimes, as feed.

This is the foundation of the claim of relators that their business is that of manufacturing flour. The pretension lias so small a modicum of even plausibility to sustain it, that we may dismiss it from serious consideration.

The formation of this so-called flour is a mere accident of plaintiff’s business, and the article itself is refuse, which, under the nice economies of modern manufacturers, is utilized.

Relator’s case falls without the purpose and meaning of the consti tutional exemption.

Judgment affirmed.


source: Caselaw Access Project

author: Manning, J.

license: Public Domain

text:
    No. 8816.
    Alfred Litton et al. vs. Hiram Litton.
    Where land lias been occupied by an heir in the presence of his co-heirs for many years without objection, and he has paid the taxes upon it, improved it, and protected it from a claim of a stranger; in a suit by the co-heirs for the land and rents, his reconventional demand for reimbursement of taxes, etc. will be liberally allowed, and while the plaintiffs get judgment for the land, the defendant shall have judgment for whatever may have been of beneñt-thereto.
    APPEAL from the Eleventh District Court, Parish of Sabine. Pierson, J-.

      J. F. Smith for Plaintiffs and Appellants.

      OhapKn, Ounningham <& Ohcvplin for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

This action is for the recovery of two tracts of land,' which may be designated as the Litton and Beckham tracts, in Sabine parish. The defendant disclaimed ownership of the Beckham tract so that the controversy was confined to the other. There was also a claim for rents, and the defendant recovered for taxes paid, for improvements, and for expenses incurred in defending a suit of one Patterson for the land.

The tract in controversy belonged td John Litton who died in 1839. The plaintiffs and the defendant are his heirs. The prescription of thirty years is pleaded. The defendant first went into possession more than thirty years before the institution of this suit in 1877, but he moved away from it twice, and his possession has not therefore been continuous, and besides he has acknowledged the co-ownership of the plaintiffs several times and in various ways during his possession. No complaint was ever made of his exclusive possession of the land, or of his use of a few acres for tillage. One Patterson sued for the land in or about 1871, and Hiram defended the suit, calling in vain on his coheirs to defray their shares of the expenses. One of them paid his quota after the suit had been gained. The defendant built a dwelling upon it many years ago, which seems partially to have gone to decay. No suggestion of rents being due was ever made until this suit was brought, and the parties lived in the neighborhood, and were fully cognizant of the use their co-heir was making of the land. The tract is not valuable, and a fair rent for it would be insignificant.

During the whole of this occupancy, the plaintiffs never troubled themselves about the taxes. The defendant paid them. He has produced receipts for several years. The plaintiffs do not pretend to have paid any taxes at any time.

He occupied the land before their eyes, improved it, paid all charges upon it, and preserved it from the adverse claim of Patterson through the law suit without their aid. They never evinced any desire to claim their patrimony xuitil near forty years after their ancestor’s death. They are entitled to it now, but the excessive claim they make for rents does not deserve the same consideration.

The district judge knows the locality and the surroundings well. He knows the witnesses and heard fliem, and made an estimate from their evidence of what was due pro and con, and after allowdng such modicum for rents as could fairly bo claimed, and ascertaining what the defendant had paid for taxes, for defending Patterson’s law suit, and for the present value of the improvements, he struck a balance in favour of the defendant of four hundred and fifty-four dollars and fifty-eight cents and gave him judgment for that same, and to the plaintiffs judgment for the land. His judgment commends itself to our approval. It deals even-handed justice.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9145.
    James Gatlin vs. J. S. Hutchinson et al.
    In a petitory action based on a title derived from the State, to property said to have been forfeited to the State, it is not enough for the plaintiff to prove his deed and its registry. He should show that the State had acquired a valid title to the property.
    APPEAL from the Eighteenth District Court, Parish of Tangipahoa. . Thompson, J.

      W. B. Kemp for Plaintiff and Appellant.

      Marr & Beid for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action. The plaintiff claims to have acquired on the 12th of March, 1881, for $135 89, a tract of land in the parish of Tangipahoa, composed of 640 acres, from the State of Louisiana, at a sale made thereof, under the provisions of Act 107 of 1880.

The defense is, that the State never acquired title to the land, and could transfer none, the formalities required by law, as conditions precedent to the validity of such acquisition by the State, never having been fulfilled; that the property belongs to the defendants by inheritance.

The prayer is, that plaintiff’s demand be rejected and that defendants be quieted and for general relief.

Prom a judgment adverse to him, the plaintiff lias appealed.

On the trial the only evidence offered by plaintiff was his title to the land, derived from the Auditor, and the registry thereof in the conveyance book of the parish.

The offer of defendants to show that the formalities have not boon complied with, was resisted by the plaintiff on the ground that it was an attempt to annul a tax title, without having previously tendered the taxes paid, in the shape of a purchase price.

Tlie objection was properly overruled. The title on which plaintiff relies, is not one to property purchased at a sale of it for taxes, due by it; but is a title derived directly from the State, by ordinary contract, such as is daily entered into in conventional sales. In i a case like the present one, it cannot be claimed that a tender is necessary as a condition precedent, for although the defendant in a petitory action is not bound to attack the title of the plaintiff, stUl, he may do so when he specially alleges ownership in himself, and has an interest in having the title opposed to him annulled and so declared.

It was incumbent on plaintiff to have proved not only the title of the State to him and its registry, but also that the State had acquired a valid title to the property. This he has not done.

While the record shows that the. delinquent lists of 1877 was not sworn to by the tax collector and was not advertised as the law require ; that it was filed neither in the recorders or auditor’s office, it fails to establish that the defendants have any title of ownership in themselves, although it proves possession by them.

The. judgment of the lower court correctly rejected plaintiff’s demand and properly quieted defendants in the possession of the property.

It is affirmed with costs.


author: Poché, J.

text:
    No. 9105.
    Alexander M. Haas vs. John T. Rhodes.
    This case involves mainly questions of fact and the settlement of long and intricate accounts growing out of a reconventional demand —Suit brought on a mortgage note.
    The defense that the consideration of the note was for future planting advances, and not for an indebtedness created before or at the passage of the act, is not a plea of entire failure of consideration, and does not shift the burden of proof on plaintiff.
    The Supreme Court cannot investigate long and intricate accounts covering minute details of several years’ dealings between parties, but in such cases, will remand the cause for examination of accounts by auditors and experts.
    Judgment on main demand affirmed, reversed and remanded in all other particulars.
    APPEAL from the Twelfth District Court, Parish of Rapides. Blaehmcm, J.

      B. P. Hunter for Plaintiff and Appellee.

      White & Thornton for Defendant and Appellant.
   Tho opinion of the Court was delivered by

Poché, J.


author: Fenner, J. Bermudez, (!. J.

text:
    No. 9092.
    The State ex rel. Andrew Hero.

    Praying for Writs of Certiorari and Habeas Corpus.
    The relator haring in his possession eertain movable property for which a writ of seques, tration was issued, and being ordered hy the district judge to deliver said property to tho sheriff, refused to obey tho order and was imprisoned for contempt. He applied to this Court for writs of certiorari and habeas cmpus. Held that his possession of tho property not being under or by 03 der of court, his refusal to deliver it to the sheriff, did not constitute a case of conic nipt-, and that he is entitled to tho habeas corpus item this Court.

      Leovy & Kruttschnidt for the Relator.
    W. T. Houston, Judge, Respondent, in propria persona.

   Tho opinion of tho Court was delivered by

Fenner, J.

Tho respondent judge, in his capacity of Judge of Division B of the Civil District Court for the Parish of Orleans, in a certain cause, entitled Succession of Kate Townsend, pending in said court, issued an order or writ of judicial sequestration, commanding the sheriff to sequester and take into his possession property belonging to said succession and, specially, certain movables stated therein to he in tho possession of the relator, Andrew Hero.

Tho sheriff, in execution of said order, demanded from Hero the delivery of said movables, wlio i'ailed to make such delivery, denying that lie had possession thereof. Thereupon the judge issued a rule upon Hero to appear at a fixed day and show cause why he should not bo punished for contempt of tho order and authority of tho court. Said rulo was duly served. Relator made return thereto, denying that he had possession of tho property, disclaiming any contempt or disobedience of the order of the court, and averring that he had delivered to the sheriff all property belonging to the succession, which was in his possession at the time when tho writ of sequestration was issued or when demand thereunder was made by the sheriff.

After trial of the rule, the judge made the same absolute, and issued his commitment in tho following words: “ Whereas, Andrew Hero, Jr., has been found guilty of contempt of the authority of this court after due trial on rule, in this, that the said, Andrew Hero failed and refused on the 28th of January, 1884, and still refuses to deliver to the Civil Sheriff of the parish of Orleans, notwithstanding due demand made on him by the said Civil Sheriff under a writ of judicial sequestration duly issued in tlie matter of tho Succession of Kate Townsend, commanding the Civil Sheriff to seize and to take into his possession all the effects, movables and immovables of the succession of Kate Townsend, the diamonds and other jewelry of the succession, notwithstanding demand duly made on said Hero and notwithstanding that the said Hero admitted in open court on the 26th of January, 1884, that he had the said diamonds and jewelry in his control and keeping, which diamonds and jewelry the court now finds and believes to be still within, the control of the said Hero; and. whereas, the said Andrew Hero has been found guilty of contempt of the authority of this honorable court after due trial, in obstructing the Civil Sheriff in the execution of said writ of judicial sequestration in failing to deliver the •said diamonds and other jewelry to the said sheriff, notwithstanding the said Hero had them in his hands or under his control and in failing to states to said sheriff the place of the present concealment of the said diamonds and jewelry, now, therefore, you, the said Civil Sheriff, are hereby commanded, in the name of the State of Louisiana and of the Civil District Court, to convey the body of the said Andrew Hero, Jr. to the parish prison and there deliver him to the Criminal Sheriff and the keeper of the prison, who is hereby authorized and commanded to imprison the said Hero for the term and space of ten days, or until he shall deliver to the said Civil Sheriff the said diamonds and jewelry, (describing the same) and this shall be the warrant of the Civil Sheriff as well as the keeper of the parish prison.”

Relator herein, alleging sundry nullities and irregularities, applies for writs of certiorari and habeas corpus and prays to be set at liberty, and that the order committing him to prison for contempt be declared absolutely null and void.

So far as the relief under the writ of habeas corpus is concerned, it must be denied for lack of jurisdiction, upon the grounds fully’' set forth in the case of State ex rel. Debuys vs. Civil Sheriff, 32 A. 1225.

On the application for the certiorari, the argument at bar took a wide and unwarrantable range. Our investigation must be confined to the questions of the regularity and validity of proceedings as disclosed on the face of the record. State ex rel. Wintz vs. Judge, 32 A. 1222.

The proceedings present no defect of regularity. The rule to show cause why he should not be punished for the alleged contempt was regularly served and tried and relator was allowed to produce evidence and argument in his defense.

The only question left is whether it appears from the face of the proceedings that the order committing relator to prison for contempt was one which the judge was without power or authority to make, and, therefore, null and void, in which case he is entitled to relief by cer-tiorari. State ex rel. Livesey vs. Judge, 35 A. 741.

The precise act for which relator was condemned for contempt, appears not only on the face of the rale, but of the order of commitment itself.

If the order, with disobedience of which the relator is charged, was one in its nature not enforceable by process for contempt, th.en the order committing him for contempt is unauthorized and null and void.

What was the order ¶ As already stated, it was an order commanding the sheriff to sequester certain property belonging to the succession and stated to be in the possession of relator. Conceding that after notification and demand by the sheriff, this had all the effect of an order directed to relator commanding him to deliver, would his refusal subject him to punishment for contempt 1 It is not pretended that relator held the property under any mandate or authority derived from the court, or was, in any peculiar manner, subject to its orders. lie was a third person so far as the succession is concerned.

It appears clear that such an order could not have a greater effect than a writ of possession issued in execution of a final judgment decreeing the delivery of a specific object: yet, even in such a case, the party condemned could not be qiunished for contempt for refusal to deliver. On the contrary, the Code of Practice specifically provides a different remedy, viz: in an action for damages, or by distraint of the other property of the debtor. C. P. 035-6, et seq.

It thus appears that our law does not authorize the enforcement of final judgments, much less of ex pevrte orders, directing the delivery of property, by process for contempt.

We lay this down as a general proposition. There may be exceptions, but certainly the case at bar is not one.

The relator does not confess possession and defy the authority of the court, even if that would justify such a proceeding, on which we express no opinion.

On the contrary, he denies under oath that he had possession when delivery was demanded, or even when the order of the court was issued. If this be true, it may be impossible for him to comply with the order of the court, and in that event, under the commitment as it stands, his imprisonment would be for life.

It is true the court finds the fact against him, but this is not sufficient to make the case an exception to the rule above announced. The effect of the proceeding here is to impose imprisonment as a means of enforcing obligations, or as a penalty for failing to fulfil obligations.

This our law does not, save in exceptional cases, permit. Our law is quite as exact in providing for the execution of judgments requiring something to be given or something to be done,” as for the “execution of judgments directing the payment of a sum of money.” These form the subjects of separate sections of the Code. There seems no more authority for issuing process of contempt in aid of one than of the other execution.

It is, therefore, ordered, adjudged and decreed that the order committing relator to prison for contempt be declared null and void and he set aside.

DISSENTING- Opinion.

Bermudez, (!. J.

It is indisputably settled in the jurisprudence of this State that, in matters of 7tabeas corpus, this Court has no jurisdiction, unless in cases in which an appeal lies. State ex rel. Geele; State ex rel. Wood, 30 A. 450, 672; 32 A. 1225; State ex rel. Brown; State ex rel. O’Mally, O. B. 56, fol. 661, 695; 28 A. 82, O. B. 53, p. 44; p. 279, etc.; 35 A. p. —, etc.

It is also unquestionably finally determined that, in cases of certio-rari, where the remedy is invoked as auxiliary to relief and habeas corpus, this Court has likewise no power to revise the proceedings where it has no jurisdiction over the main matter — that is, the habeas corpus application. Same authorities, specially those of Brown and O’Mally.

It is, besides, established by adjudicated and unassailed precedents, that in original and independent cases of eertiormú instituted to test the validity of proceedings in unappealable cases, this Court will not inquire into the intrinsic, but merely into the extrinsic, correctness of the proceedings attacked; in other words, that its investigation is to be restricted to matters of form and not of substance. Same cases and others referred to in those of Brown and O’Mally.

In matters of contempt, this Court has decided that it will not interfere whether the complaint appear in the shape of an application for habeas corpus, or prohibition, or certiorari; in the first instance, because the matter is not appealable; i,n the second, because it is not the proper remedy; in the third, whenever the proceedings appear to have been regularly conducted, unless in cases of manifest usurpation of power and consequent abuse of authority, and unless the commitment is in-yalid on its face. Same cases, etc.

In a case of contempt, where the act done had been charged to have been committed out of the presence of the court, where the offender had been sentenced without a hearing, this Court has annulled the proceeding, for the reason that, in the particular instance, a rule should have been issued and the offender should have been tried contradictorily, allowed to introduce evidence and have himself represented by counsel. State ex rel. DeBuys, 32 A. 1256.

In an anterior case a witness, imprisoned for contempt for refusing to answer a question which the court had ordered him to answer, applied for a certiorari but was denied the relief sought.

The court there held that the writ is limited to cases where it appears on the face of the record that the proceedings are absolutely null.

The court took occasion to say that, if there had been abuse or even error in the exercise of the judicial power conferred upon the district judge and if the relator were a sufferer thereby, and even if the law provided him no redress, his case would merely illustrate the inevitable imperfections of all human devices to secure an infallible administration of justice and flawless protection of rights. * * * Mere error in the decision of questions properly submitted to their determination (inferior courts) and regularly determined, can only be corrected in the exercise of a jurisdiction purely appellate.”

The relief asked was denied. State ex rel. Wintz, 32 A. 1225.

In another case in which the power of the court to issue an injunction had been questioned, this Court held that, as there was no warrant in law authorizing the court to issue the writ, although provisionally, a disregard of its prohibition could not be treated as a contempt and the offenders were released. State ex rel. Livesey, 35 A. 741.

So that it is clearly established that whenever the proceedings to punish for a contempt appear to have been regularly conducted and the commitment is in proper form, this Court will not interfere, unless in cases of evident hardship and oppression.

In the present instance it is manifest that this Court has no jurisdiction as far as the habeas corpus application is concerned. The certiorari proceeding having been invoked as an ancillary proceeding to that for a habeas corpus should likewise be non coram judice, under the maxim that the accessory follows the principal.

But were it not so, taking the application for a certiorari before the court to be an independent, as those in the DeBuys and Livesey cases, it is glaring that tlie relator was proceeded against by rule, that he was allowed to adduce evidence and otherwise to be contradictorily heard, that the commitment shows on its face these contradictory proceedings and that after such trial he was found guilty of contempt’and was condemned to imprisonment.

Before such proceedings the court should pause, and mindful of the importance of the exercise of the power of punishing for contempt, which is inherent as a matter of necessity in all courts, no abuse of authority or oppression appearing, the court should decline to interpose its authority to annul the proceeding to release the offender.

But it is contended that the commitment sets forth a state of facts which, even if true, would not justify a punishing for contempt, and it is pointedly claimed that where a court directs a party not connected with the suit to deliver to a sheriff property in his possession, but to which no claim whatever is set up, and such party refuses thus to deliver the property, this is not contempt and the recreant party cannot be punished for such refusal to obey, because the court has no power to enforce obedience to its orders in that manner.

Now, in order to establish that theory, a parallel is sought to be established by punishment for contempt, and judgments final and exec-utory directing the delivery of property by a party to a suit to the other, and it is insisted that because the law provides in what manner such judgments are to be enforced and executed, resort to punishment for contempt cannot be had a fortiori against persons who are not parties to the suit and who cannot be placed in drwiori casu.

There is no parity between the cases,- either in their nature or in their character.

Judgments to deliver property are in favor of parties litigant, they are rendered in a civil matter, and their enforcement and execution are specially provided for.

Decrees or orders under which are issued commitments to punish for contempt are in vindication, not of the rights of litigants, but of the authority of the State, represented by a judicial officer. They are quasi criminal. They concern the well-being and good order of society and are the only mode in which the authority of courts can be made to be respected.

If the doctrine is recognized, that refusal to deliver property to the executive officer of the court, when a special order is made therefor, cannot be punished, when the refusal emanates from due not a party to the suit, and that such order to deliver can only be enforced against such party in the same manner that, a judgment for delivery of property against a party to tile suit, can he, then let it be said that the administration of justice may become a farce and a mockery.

There can be no doubt that the property in question must be considered as property in the custody of the law, belonging as it does to a succession; that the court haying found that it was in the possession of the relator, who, claiming no' title to it and, therefore, without warrant, refused to deliver it to its executive officer, it was a clear case of contempt. State vs. Start, 7 Iowa, 501; Hull vs. Thomas, 3 Edw. 236; Williams vs. Durnelle, 51 Cal. 442; Smethurts Case, 2 Sandf. 724; People ex rel. vs. Brown, 4 Paige, 405; Noe vs. Gibson, 7 Paige, 513; Wells on Jurisdiction, p. 177, sec, 178; Hurd on Habeas Corpus, 7.

While it cannot be denied that in the exercise of our supervisory powers, we may, by certiorari, inquire into the validity of a commitment for contempt, it is likewise indisputable that where the commitment was issued after a contradictory xiroceeding and shows on its face that the facts found constitute justification for the punishment, this Court shall and cannot interfere. Commonwealth vs. Newton, 1 Grant’s Cases, 453; Willamson vs. Lewis, 39 Penn. St. 30; Ex parte Perry, 2 Daly, N. Y. 530; Maryland ex parte Maulsly, 13 Maryl. 621.

The district judge was right in setting forth the facts found by him. It is the duty of the inferior courts always so to do, in order that the superior court may be fully advised as to the rightfulness of the commitment, for, otherwise, it would bo in the power of such courts, by making a general warrant of commitment, to deprive the higher court of its right to review. Hurd on Habeas Corpus, pp. 414, 415, note.

Considering, therefore, that the commitment in this case was issued by a competent court, that the proceedings were regularly instituted, contradictorily conducted and determined; that the lower court had the power to punish for contempt, for the omission, failure or refusal to do the act which it thought should be done, namely: the delivery to the sheriff, of personal property belonging to a succession, in the custody of the court, to which, the relator raised no title and which the court found was in his possession when the rule for contempt was tried and decided, I think that £he application for relief should be dismissed.

Manning, J. I concur with the Chief Justice.

Rehearing refused.


author: Pochis, J.

text:
    No. 9078.
    McIlvaine & Speigel vs. Mrs. M. C. Legaré and Leon Godchaux.
    A purchase of movable effects in another State, for delivery in this State, to bo paid for on inspection, evidences a contract to be executed in this State.
    The vendor of such property is entitled, under our laws, to the vendor’s privilege on the movable effects to secure the payment of the stipulated credit instalments.
    APPEAL from the Twenty-second District Court, Parish of Ascension. Oheevers, J.

      TSdward W. Puqh for Plaintiffs and Appellants :
    PACTS.
    1. This case was remanded for the talking of further testimony as to whether the contract of sale between plaintiffs and Lagaré was consummated in Louisiana or Ohio. 34 A. 926.
    2. An executory contract between plaintiffs and Legaré was made in Ohio, subject to the sus-■pensive condition that the boilers were delivered in Louisiana to the vendee and found, after personal inspection and view, in good order and satisfactory. The contract only became an executed one and the property transferred on the fulfilment of these conditions in Louisiana, the risk up to that time being on the vendors. 31 A. 599; C. C. 10; 4 A. 729; Benjamin on Salee, sections 319, 651, 308; 21 A. 412; O. C. 2471, 2460, 2044; 22 Wall. 180.
    LAW.
    A. Agreements legally entered into have the effects of law on those who have formed them They cannot be revoked, changed or altered unless by mutual consent of the parties.
    B. Contiacts are always presumed to be made with reference to the laws that govern them and their subject matter, which laws enter into and form apan't and portion thereof.

    O. When there exists all the conditions which by law create and bring about a certain legal result, the effects flowing legally from such a state of facts will follow, whether the parties foresaw or intended them, or not Opinions of parties have no effect on legal rights. A.— 0.0.1901. B. — Hen 1012, Ho. 3; 33 A. 19; 34 A. 675; 99 XT. S. 323 ; 98 XT. S. 365; 20 A. 180; 12 A. 720 — always in accordance with and submission to all the laws that may in anyway effect his .contract.” O. — 30 A. 643, 654; 29 A. 347; 32 A. 217; 27 A. 611; 21 A. 361.
    Things of which the buyer reserves to himself the view and tHal, although the price be agreed on, are not sold until the buyer be satisfied with the trial, which is a kind of sus-pensive condition of the sale. C. O. 3044, 2060, 2471; Benjamin on Sales, sections 319, 651, 308; 21 A. 413; C. O- 2043, 2044.
    Where obligation has been contracted on a suspensive condition, the thing which forms the subject of the contract is at the risk of the obligor until the event which forms the condition has happened. O. C. 2043, 2044, 2471.
    The acceptance to form a contract must be in all things conformable to the offer. It is indivisible and must be accepted in its entirety. O. C. 1805.
    If he has not accepted the contract according to its terms, there is no contract, etc.; if he has accepted in the only way in which he could accept, he is hound by the act, and cannot gainsay its meaning and purport. 21 A. 622; 30 A. 253; 30 A. 766; 1L.188; 33 A. 581; Benjamin on Sales, section 39; C. 0.1811; 33 A. 580; Hen. p. 1002, Hos. 22,16.
    Where a contract of sale is entered into in one State, to be performed in another, the laws of the latter govern its performance. A contract of sale made in Ohio to be executed in Louisiana, and upon inspection and view by the vendee, and his acceptance there of the property sold, if the same be in good order and satisfactory, falls under the law of Louisiana, and the vendor’s privilege attaches. Hen. p. 1015, Ho. 10; 106 IT. S. 128 ; 91 IT. S. 406 j 31 A. 599 ; 17 L. 590 ; 10 A. 729: 22 A. 419; U. C. 10 ; 25 A. 422.
    ZÜ. If. Sims for Defendants and Appellees :
    1. The evidence shows conclusively that the locus contractus was Cincinnati, in the State of Ohio. The sale was made and consummated there. 2 A. 984; 8 M. 134; 25 A. 232; O. C. 2456.
    2. The Plaintiffs made no effort to show that there exists a vendor’s privilege upon movables under the laws of the State of Ohio.
    3. Such a privilege is unknown to the common law. 8 Martin, 135; 2 A. 335, 984; O. O. art. 10; 16 A. 158; 25 A. 232.
    4. This Court will take judicial notice thereof, and that the common law forms the basis of the jurisprudence of Ohio. 2 A. 335; 16 A. 158 ; 8 Mart 135; 2 A. 934.
    5. All of the above decisions under third and fourth heads were expressly reaffirmed by this Court in the original decree herein, and those questions arc settled irrevocably so far as this case is concerned.
    6. The plaintiffs are not seeking to enforce an alleged privilege against J\ C. Legaré or Mrs. Legaré, but against Leon G-odcliaux, a third person.

    7. Privileges are to be stHctly construed. C. C. 3185, 3312; Hennen 1238, Ho. 3, and cases noted; Succession of Cox. 32 A. 1035.
    8. As against third persons they must be conclusively established. 10 A. 429; 13 A. 352.
   The opinion of tlie Coart was delivered by

Pochis, J.

Plaintiffs seek to subject to their vendor’s privilege, three

sugar-house boilers and accompanying outfit which they sold and delivered to the defendant, Mrs. Legaré, on a plantation which was subsequently purchased from her at a private sale, by the defendant, G-od-chaux.

The cause was before us last year, and it was then remanded to the lower court for the purpose of taking testimony to show the place where the contract was entered into or completed. 34 A. 923.

After trial under that order, the district court found that the contract had been made and executed in the State of Ohio, and held that under the common law, which prevails in that State, plaintiffs had no privilege on the boilers. It, therefore, rejected plaintiffs’ claim for a privilege, and they appeal.

The sole question presented involves the discussion of the exact place at which the contract was completed.

The negotiations between the plaintiffs, who are boiler makers in Cincinnati, Ohio, and the defendant, Mrs. Lagaró, who was at that time a planter, and a resident of the parish of Ascension, in this State, were carried on exclusively by correspondence.

Their letters show that the boilers were to be made to Mrs. Lagaré’s order, and to be delivered to her on a steamboat at Cincinnati, where they were to be paid for on delivery, one-half cash, and the other half by her note, payable in December following.

Had the correspondence ceased at that point, and had the contract been closed and executed under those stipulations, the controversy would undoubtedly fall under the laws of Ohio, and the case would be with the defendant, Godchairx.

But the record shows that in her letter of May 27, 1877, Mrs. Legaré in ordering the boilers under plaintiffs’ conditions, refers them for the cash installment to her merchant or agent, L. Godcliaux, of New Orleans, and requests them to write to the latter so as to arrange preliminaries for the payment in question. Conforming to her desires plaintiffs wrote to Godehaux, under date of June 1, 1877, in the following words:

“We have contracted with S. Cecil Legaré” (Mrs. Legaré’s attorney-in-fact ) “for the construction of three boilers, drums and fixtures, for the Souvenir Plantation. He asks us to advise you of same, and directing to draw on you for one-half amount ( $1075 ) when outfit is shipped. We expect to have all complete and ready in. about three weeks.”

This notice was answered by Godehaux on June 4, ás follows:

“Your favor of 1st inst. came duly to hand. We will pay your drafts ($1075) for one-half of Dr. S. C. Legaré’s contract with you, against Dr. Legare’s receipt of the boilers, etc., in good order and satisfactory.”

It is too plain for argument, that the terms of this letter, if accepted by the contracting parties, operated a most material modification of the original contract which the latter had contemplated.

The evidence in the record shows to our entire satisfaction that the conditions therein contained, were accepted by both parties.

True, the plaintiffs made no answer to the new proposition, but they acted under it, and hence they gave an implied but unmistakeable assent thereto. 0. C. 1811.

Without the assistance of her merchant, Mrs. Legaré was powerless to comply with the stipulation of a cash payment of the boilers on delivery. Hence she referred plaintiffs to him for his consent to advance the necessary funds, and in giving his assent, he dictated his own terms, which practically altered and essentially modified the contract, which would have been entirely abrogated without his concurrence.

Under the original stipulations, the boilers were to be delivered and paid for in Cincinnati, and would thus have become the property of Mrs. Legaré before leaving that city. Under Godchaux’s stipulations they remained plaintiffs’ property until delivered to and accepted by Mrs. Legaré, or her agent on her plantation. Had the boilers on inspection been, found not to be of the prescribed dimensions, or of the required quality of material and workmanship, the delivery and the contract would not have been completed, and the payment would have been withheld. Otherwise, if the boilers had been considered as delivered by shipment at Cincinnati, in accordance with the original stipulations.

The terms required by Godchaux were brought to the notice of Mrs. Legaré, who, of course, acceded thereto.

Her assent is shown by her subsequent correspondence and by a formal notice which she gave to plaintiffs, on the day that the boilers were received on her plantation, at which time only, and not before, she authorized the latter to draw' on Godchaux for the cash payment.

The acceptance of those terms by the plaintiffs is shown by the fact of their shipping the biylers without exacting the previously stipulated cash payment, and by the, additional fact of not drawing for the same before receipt of the notice which was sent to them by Mrs. Legaré, on the 30th of August, 1877. The boilers had been shipped as far back as the 14th July — the delay of delivery having been caused by the-sinking of the boat on which they had been shipped.

Had they been lost in transitu, the loss would, beyond a doubt, have been that of plaintiffs, under the contract as modified by the terms imposed by Godchaux, himself. Such was the very object of the stipulations contained in his letter to plaintiffs. He cannot, now, escape the consquences of his own acts in the premises.

The direct and immediate effect of the modification of the contract, made it only executory and subjects it to the laws of Louisiana, governing such contracts. The new stipulations, emanating from Godchaux and accepted by all parties, engrafted a suspensive condition in the contract, under which it could not be executed before delivery of the things sold, in this State. Hence the conclusion that it thus became a Louisiana contract, and that its enforcement must be tested under the laws of this State. C. C. 2043, 2044, 2471; Beirne & Burnside vs. Patton, 17 La. 589; Overend Gurney & Co. vs. Robinson, 10 A. 728; Maillard vs. Nihoul, 21 A. 412; Duncan vs. Helm, 22 A. 418; Chaffe & Sons vs. Heyner, 31 A. 599; Benjamin on Sales, sections 308, 319, 651.

We have given due consideration to the authorities invoked by defendant’s counsel in support of his proqiosition that this contract must be construed under the laws of Ohio, but the decisions which ho lias quoted present cases of purchases made by residents of this State, in other States of the Union and in foreign countries, and they present contracts which contained no stipulations of a suspensive condition, contracts in which the purchasers had not even received the right of inspection of the articles bought by them. Whiston vs. Stodder, 8 M. 134; Colt vs. O’Callaghan, 2 A. 984; Brent vs. Strouse, 16 A. 158; Loeb vs. Blum, 25 A. 232.

Under the circumstances of this case, we conclude that the contract could be executed in Louisiana only, and that plaintiffs are, therefore, entitled to the protection of our laws on the question of privileges on movable's.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now decreed that a privilege be recognized in favor of plaintiffs, on the boilers, drums and fixtures sold and delivered by them to Mrs. Legaré, on the Souvenir plantation in the parish of Ascension, to secure the sum of one thousand and seventy-five dollars,, with interest of eight per cent per anmim, from January 5, 1878, until paid, together with the costs of this appeal, the costs incurred in the lower court in the present case, and one-half of the costs incurred in the first or previous trial below of this case.


author: Poci-ié, J. Bermudez, C. J.

text:
    No. 9054.
    The State of Louisiana vs. Louis Blaser.
    Tlie ordinance of the city of New Orleans which, exacts twenty-five cents for every load of supplies, especially in so far as it affects the products of gardeners sold by themselves at any of the public markets of the city, is intended to raise a revenue.
    Either as a tax on property or as a license, it is unconstitutional, null and void.
    PPPEAL from the Second liecorder’s Court of New Orleans. Ford, J.

      Chas. F. Buelc and Wynne Foyers for Plaintiff and Appellee.

      Blame <& Butler for Defendant and Appellant:
    1. The “ Gardeners’ Tax,” levied by Section. 9 of City Ordinance 479, C, S., is admitted to be without authority under the taxing power delegated to the city of New Orleans.
    2. The taxing power of the city is its only power for obtaining revenue, by exactions or contributions levied upon its citizens, and that power is limited to the ad valorem or property tax and a tax on occupations known as the license tax. The first of these is again limited to ten mills on the dollar of valuation. Const. 202,203, 206, 209; City Charter, Acts 1882, 14; 33 A.. 833; 34 A, 840, 1050; Cooley, Taxation, 209.
    3 The counsel for the city argues that the •* tax" is a i>oliee regulation imposed under the police power. This we deny,

      4. The tax is a palpable effort to obtain revenue and the police power cannot bo used for purposes of revenue. Delcarabre vs. Clere. 34 A. 1052; Billon, Mun. Corp. 3d ed, § 708 (old ed § 609); 34 A. 750; 33 N, J\ Law 280 ; 7 Til. 406.
    5. Primarily, all exacted contributions are for revenue, nor can they be referred to the police power unless it is clearly shown to be for police regulation — that they are exclusively used for that purpose. 34 A. 1052,
    6. An exaction of money for the pursuit of an ordinary business, in its nature useful and advantageous to a community, is to be taken as one made for revenue and not a police regulation. 34 A, 750.
    7. Nothing in the ordinance tends to show that the “ tax ” is imposed to defray the mere cost of a permit or regulation. The amount of twenty-five cents per day, or $91 50 per annum, is so extortionate as to divest it of all semblance of a police-power fee. In none of the instances of the imposition of a fee under the police power on vendors of provisions, or on such ordinary occupations necessary to the welfare of the citizen, has a like amount been admitted as proper. The amount is itself evidence of the purpose to obtain revenue, 31 A. 828; Ash vs. People, 11 Mich. 347; City vs. Bryan, 10 Ohio, N. S. 625; Magin vs. Yennville, 3 Ala. 137; Dillon. Mun. Corp. § 361, note, § 386, note? St. Paul vs. Treager, 25 Minn. 248.
    8. The city of New Orleans can exercise no police power beyond that granted by th$ Legislature What the city claims to do as a police regulation must have been clearly granted by the General Assembly. Cooley, Const. Lim. 191, 387; 29A.2i,261; 32 A. 923,1293; 34 A. 750 ; 34 A. 1051; Billon, Mun Corp. 3d ed. § 141; Cooley, Taxation, 408.
    9. The grant of power to exact money for police regulation is more narrowly construed than that for revenue. Cooley, Taxation, 40.3.
    10. When the power to exact money for polico regulation has been allowed, the power was granted in terms expressly giving the right to “tax” or to require a “license ” or “permit,” and even then it was restricted to a reasonable fee for issuing the “license.” The power to regulate and make police rules for government of markets, vendors of commodities, etc., does not include the power to exact money or license fees. Billon, Mun. Corp. 3d ed. §§ 361, 357 f2d ed. § 291); § 768 (2d ed. 609); 358, notel; 359, note; 361; 25 Minn. 248; 7 Ind. 86; 16 Wis. 298; 11 Mich. 347; 29 Iowa, 123; 39 Conn. 144; 41 N. J. L. 71; 34 A. 1050.

      Smnbola & Ducros on the same side.
   The opinion of the Court was delivered by

Poci-ié, J.

The defendant resists the enforcement of an ordinance of the city of Now Orleans, exacting from gardeners the payment of twenty-live cents for every load of vegetables which they convey to, in carts or wagons, and sell at any of the public markets of the city, in case they do not occupy a stall or stalls in said market.

He has taken this appeal from an adverse judgment.

He charges that the exaction is a tax or license for revenue, and that in either case, it is violative of the Constitution and unwarranted by law.

The city attorney contends that, although the ordinance calls for the payment of money, it is not necessarily a tax or license for revenue and that the right to impose and enforce the exaction is derived from the city’s police powers, as an incident of its t power to establish and regulate public markets.

The record shows that the defendant is a gardener, and that he raises the vegetables which he conveys to, and offers for sale, near the public markets in this city, in his own wagon, for the running of which he pays the regular city license. I-Ience it is clear that the exaction cannot be enforced if viewed either in the light of a tax or a license, or if viewed and resting under the city’s taxing power.

This proposition is conceded by the city attorney, who, as stated above, rests his case on the proposition that the right claimed in the premises, is derived from the police power, as contradistinguished from the taxing power.

The question for solution in the case is, therefore, to ascertain whether the present ordinance rests on the police or on the taxing power of the city. It reads as follows:

“That each and every cart or wagon conveying supplies to the public markets in this city, for sale by any person or persons not occupying a stall or stalls in said market, shall pay for each and every load twenty-five cents, for which payment or payments the driver or owner of each and every cart shall receive a receipt, which receipt shall entitle him to visit and deliver his goods at each and all of the public markets of the city on the day such payment or payments have been made. All butchers’ carts, and all other carts and wagons owned by occupants of stalls and stands in any of the public markets and used in conveying supplies to such stands and stalls, shall be exempt from this tax. No cart or wagon shall remain at any of said public markets except, between the hours of 3 a. m. and 12 m.”

It will at once be noticed that the ordinance discriminates in favor of the carts or wagons owned by persons occupying stalls in the markets.

Hence, it cannot be said that the exaction is intended as a means to meet the expense of the police necessary to preserve order among the wagons and the teamsters, or for the expense of maintaining the cleanliness in the portions of the streets thus occupied at stated times of the day. In the absence of the wagons falling in the category of the defendant’s, other vehicles and other drivers would be there and would need the same supervision and cause the same filth necessary to be cleansed.

It cannot be said that the exaction is necessary to meet the fee for issuing the license authorizing the dealer to back up against the ban- queite. At the rate of only one load each, day, the dealer would pay some $91 a year, an amount out of all proportion to the probable cost of such permit or license.

Nor could the exaction be justified on the ground of the market facilities or accommodations afforded to the gardeners by the city or market lessees. The record shows that they are not even afforded a shelter against either rain or sun.

It further appears) that the sums thus collected enure to the immediate or direct benefit of the market lessees or farmers, on whom is imposed the duty and expense of providing for the cleanliness of the markets and the adjacent streets.

The advantage to be derived by the city from the exaction is the enhanced rate at which the markets will be leased. The consequence is, therefore, an increase of her revenue. As stated above, the presence of these dealers and their teams at the public markets does not entail an additional expense to the city, but the contribution required of them has a direct tendency to increase her revenue. Hence the conclusion that the whole scheme is simply a mode of creating a revenue and that its enforcement cannot be justified under the police power.

If viewed in the light of a tax on the dealer’s property* it is unconstitutional under the provisions of Articles 203 and 209 of the Constitution ; if considered as a licénse, it is violative of Article 206. State vs. Putamia, 34 A. 750; City vs. Graves, 34 A. 840; Delcambre vs. Clerc, 34 A. 1050.

It is, therefore, ordered, adjudged and decreed that the judgment apj>ealed from be annulled, avoided and reversed. It is now ordered that the prosecution against the defendant be dismissed.

Concurring- Opinion.

Bermudez, C. J.

I rest my concurrence on the decree on the ground that the facts disclosed do not justify the adoption and enforcement of the attacked sections of the ordinance.

In the exercise of their police power, which implies those to regulate markets, streets and public places, municipal corporations have the unquestionable right to pass and execute such legislation, provided the exaction be necessary and reasonable, actually used for police and not for reverme purposes. Burroughs on Tax, 392; Cooley C. L. 231, 396, 403, 572; Dillon M. C. 25, 28, 91, 118, 166, 294, 384, 742; 2 Kent, 278, 339; Blackstone, 4, 162; Wartman’s case, 33 Pa. Bt. 202, 9; Nightingale in re, 11 Peck Mass. 168; Cincinnati vs. Buckingham, 10 Ohio in

Bank, 261; Ash vs. People, 11 Mich. 347; Chicago Warehouse cases, 63 Ill. 80; Johnson vs. Philadelphia, 60 Penn. 451; Bush vs. Seabury, 8 Johns. N. Y. 408. See also, 7 Cowan, 349; 9 Mich. 253; 15 Conn. 475, 501; 3 Ala. 137, 28, 577; 6 Ala. 899; 7 Ind. 80; 8 Ind. 34, 57; 11 Rich. S. C. Law, 55; 25 Mo. 37; 3 Wall. 320; 12 Wall. 349; 94 U. S. 113, 125; 97 U. S. 25.

See also our jurisprudence in the following cases: 2 L. 219; 4 A. 278, 335; 14 A. 842; 15 A. 337; 23 A. 723; 20 A. 340; 31 A. 828; 32 A. 9]; 33 A. 483; 34 A. 750, 1050.


text:
    No. 8981.
    Leopold Lacombe et al. vs. Richard Milliken et als.
    The commissioners appointed to liquidate a free bank whose charter was judicially forfeited, have no right of action against directors of the institution, charged with violation of Sections ‘100, 301, of the Revised Statutes.
    The liability for the debts and obligations of the concern, imposed on the directors as a penalty for such violation, is not an asset susceptible of collection by the commissioners.
    It is a claim which accrues to the creditors ut vinguli and which cannot ho enforced by the liquidator. *
    APPEAL from the Civil District Court for the Parish of Orleans. _ High for, J.

      Singleton, Browne c6 Choate, and Huntington & Bnfonr, for Plaintiffs and Appellants.

      Brauglm, Buck & Binlcelspiel for Defendants and Appellees.
   The opinion of the Court was delivered "by

Bermudez, C. J.

The plaintiffs, as commissioners liquidating the late Mechanics and Traders’ Bank, whose charter was judicially forfeited, sue to recover some $150,000 from the defendants, as directors of the corporation while it was a “going concern.”

The action is founded on sections 300 and 301, R. S. Two other grounds for an infliction of the penalty are alleged in the petition, hut wore not insisted upon in argument and as they appear to ho without merit in the mouth of the commissioners, are deemed to have boon abandoned.

Exceptions were filed to the effect:

That the petitioners have no right to stand in judgment, because the decree of the forfeiture of the hank charter is unwarranted and their appointment thereby is likewise illegal;

That the petition discloses no cause of action which, if it exist, is not in favor of the concern hut of its creditors.

One of the defendants, Milliken, further pleaded the prescription of one year.

The exceptions were maintained and plaintiffs’ demand was rejected, with costs.

The commissioners appeal from that judgment.

I.

In the case of State ex rel. Wogan vs. Mechanics and Traders’ Bank, 35 A. 562, we had occasion to decide that the forfeiture of the bank's charter had been validly decreed and that the appointment of commissioners was authorised.

In argument, it has been urged here that the commissioners, under no circumstance, can have a standing to sue the defendants, as is attempted to be done, for the reason that the forfeiture of the charter had not been obtained by the State Auditor and that it is only on that contingency that the defendants, if liable, can bo held responsible.

The view which we have taken of the case from another standpoint, renders unnecessary the consideration of this preliminary defense.

II.

The real question presented for solution is, whether the defendants, if in default as charged, can be condemned to pay the sum claimed to the commissioners; in other words, practically, whether the amount sued for is an asset which accrues to the corporation or to its creditors?

The charge in the petition is substantially that, on January 1,1878, up to March 19,1879, the bank, to the knowledge of the defendants (its directors), was not “in line,” and being “out of line'1' made loans and discounts in violation of sections 300 and 301 of the R. S. of 1870, and that by the violation of said laws the directors have rendered themselves liable for all the debts and obligations of said bank.

The sections invoked read as follows:

, “ Sec. 300. Every banker or banking company doing business under tills act is required, in addition to securities for circulation deposited with the Auditor, to have on hand at all times, in specie, an amount equal to one-third of all their other cash liabilities, and for the other two-thirds of said liabilities an equal amount in specie, specie fund, bills of exchange or discounted paper maturing within ninety days and not renewable.
“Sec. 301. If at any time'the specie, specie funds and short paper held by such banker or banking company should fall below the propertion to cash, liabilities prescribed in the preceding section, and shall remain so for a space of ten days, it shall not be lawful thereafter for such banker or banking company to make any loan or discount whatever until its or their position is re-established according to the terms of the preceding section.
“A violation of this provision shall be held to be an act of insolvency and the Auditor shall cause the necessary steps to be taken for the liquidation of the affairs of said banker or banking company, as in case of insolvency; and every director or manager of a banking company who participate in or assent to such violation, shall become individually liable for all its debts and obligations.”

It will be observed that the statute does not say that the liability thus incurred shall accrue in favor of the concern, or shall constitute one of its assets.

Had it done so, quite a different case would have been presented.

It merely says: liable for its debts and obligations. The liability is clearly imposed, when incurred under the required condition of things. It accrues, not in favor of the bank in liquidation, which is a debtor to its creditors, but in favor of those creditors.

The commissioners are appointed for the purpose of liquidating the affairs of the bankrupt corporation, that is, of realizing its assets and distributing the same, first among its creditors according to their respective ranks, and next, if there remain a residue, among its stockholders.

They are empowered to that end, to take possession of and eventually recover all its assets, that is: such available property as it owns, of whatever nature, which its creditors can cause to be subjected to their claims. Abbott & Bonvier, L. D. Vo. Asset.

The liability of the directors is not in favor of the bank or its liquidators, but in favor of the creditors of the concern, who may or not, at their option, enforce it for their separate benefit.

A review of the authorities applicable to cases like the present one shows that this construction is the correct one. Bristol vs. Blatchford, 12 Blatchf. 341; Dutchen vs. Bank, 12 Blatchf. 435; Piscataqua Co. vs. Hill, 60 Maine, 178; Anderson vs. Speers, 21 Hunn. 570, and authorities there cited; Bank of Niagara vs. Johnson, 8 Wend. 645; Farnsworth vs. Wood, 91 N. Y. 308; Thompson on Directors, p. 460; see also, Syndic vs. Members Board of Direction, Journal du Palais, 1869, p. 712.

In the last case, it was held that, the syndic of an insolvent bank cannot institute, in the name of the mass, an action against the directors, which belong to the creditors ut singuM ; that they can do so only where they represent the creditors ut miiversi. See, also, 35 A. 277.

Reaching, as we do, the conclusion that, on the assumption of the defendants’ liability, the plaintiffs have no right and cause of action to enforce it against them, we deem it unnecessary to consider the plea of prescription set up by Milliken. Our judgment on it would not be binding, as being rendered in the absence of the necessary party.

Judgment affirmed, with costs.


text:
    No. 9149.
    Colomb & Gondolfo vs. John McQuaid.
    In a caso where tlie amount of the principal demand is not suiiicient for the jurisdiction of the Supreme Court, but that of the reconventional demand falls under its jurisdiction, if the defendant obtains an order of appeal from the entire judgment in the alternative and furnishes a bond exceeding the amount fixed for the devolutive appeal bond, his ap-X>oal will be sustained on his reconventional demand.
    The owner of a sugar refinery who contracts to granulate the crop of syrup of another, will not be responsible in damages for shortness of result, and inferior quality of the sugar obtained, unless the effect can be attributed under the evidence to his fault, negligence, want of skill, or to his defective machinery.
    APPEAL from the Seventeenth District Court, Parish of East Baton . Rouge. Sherburn, J.

      C. C. Bird and A. K. Gross for Plaintiffs and Appellees.

      Knox db Laycock and J. M. Burgess for Defendant and Appellant.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Plaintiffs sued on a claim of $956, and defendant claimed in reconvention the sum of $5611 70. Judgment was rendered in favor of plaintiffs for tlie full amount of their claim, and in favor of defendant on his reconventional demand for $34 50.

• Defendant obtained an order of appeal in the alternative, and on a bond according to law, if suspensive, and on a bond of one hundred dollars, if devolutive.

He furnished a hoild for $435, which he evidently intended to operate as a bond for a suspensive appeal from the judgment of $956, rendered against him on plaintiffs’ demand, as well as from the rejection of his reconventional demand. The motion to dismiss is predicated on that error and urges that the appeal was taken exclusively from the judgment in favor of plaintiffs, and that it should he dismissed for the two reasons that the bond is insufficient for a suspensive appeal and that the amount of the judgment is not sufficient to give us jurisdiction.

We understand from the petition of appeal that defendant intended to appeal from the entire judgment, both on the principal and on the reconventional demands.

It is very clear that we have no jurisdiction of the amount of plaintiffs’ claim and hence we cannot review the judgment on that branch of the case. But the amount of the reconventional demand is within our jurisdiction and the appeal from the judgment on that branch of the case is properly before us, if the bond of appeal is sufficient to maintain the same.

Appellees contend that it is defective even if intended to sustain a devolutive appeal, because it is not in the amount fixed in the order for that kind of appeal, but it is for a much larger sum than the amount thus fixed and hence appellees cannot complain of that feature of the bond. If they could be sufficiently protected by a devolutive appeal bond of $100, they will certainly find greater shelter under a like bond of $1435. We understand the rule as settled in our jurisprudence to the following effect:

When the order of appeal is in the alternative for a devolutive or suspensive appeal and the bond given is not sufficient for a suspensive appeal but exceeds the amount fixed for a devolutive appeal, it is a sufficient bond for a devolutive appeal. * * * ” Chaffe vs. Carroll, 34 A. 122: Montan vs. Whitney, 12 A. 175; Marshall vs. Grand Gulf Company, 5 A. 360.

In this case the bond was intended to sustain a suspensive appeal from a judgment condemning the defendant to pay a specific sum of money and rejecting the much greater portion of his reconventional demand. The suspensive branch of his appeal falls, but the bond is more than sufficient in amount to sustain his appeal in the devolutive form from that branch of the case which involves his reconventional demand and which is sufficient in amount to fall within the jurisdiction of this Court. Lamorere vs. Avery, 32 A. 1008.

Appellees complain that by his irregular proceeding appellant has actually suspended the execution of the moneyed judgment-rendered against him. But with that feature of the case we have no concern, as we have no jurisdiction over the judgment in question.

The motion to dismiss is, therefore, denied.

Oh tiie Meeits.

Plaintiffs, owners of a large sugar refinery, entered into a contract witli the defendant to granulate his crop of syrup of the year 1882, at a stipulated price. They brought this suit to enforce the payment due on their labor under the contract. As stated above, defendant set up a reconventional demand for damages in the sum of $5611 70.

The damages claimed are predicated on two causes of action:

1. The losses incurred bj' him on account of the deficiency in the quantity and in the quality of the sugar obtained, attributed to the negligence and unskillfulness of plaintiffs in manipulating his syrup.

2. The failure of plaintiffs to return, as agreed upon, his empty barrels, which he needed for the speedy shipments of his syrup to the refinery; in consequence of which.he suffered damages by the loss of time of his employés, loss of fuel and of other materials caused by the delay in receiving his barrels, which he estimates at several hundred dollars.

The defense is, that plaintiffs performed faithfuUy, and skillfully their part of the contract, and that the deficiency in the yield of sugar and the defect of its quality must be attributed exclusively to the inferior quality of defendant’s syrup.

After a careful study of the voluminous evidence in the record, we reach the conclusion that defendant has failed to substantiate his demand for damages on either of his causes of his action.

Plaintiffs’ machinery and apparatus are not shown to be in any way defective. Their skilled laborers in charge of the vacuum pan and centrifugal apparatus are shown to be competent, vigilant and conscientious. Defendant has not even attempted to prove their incompetency and want of skill.

It is in full proof that his syrup was handled with care and promptness, and that every effort was made to obtain the most satisfactory results from his syrup.

From the testimony of plaintiffs’ witnesses, it appears that out of 509 barrels of defendant’s syrup granulated by them, only 205 barrels were of fair quality and properly limed and boiled; that the balance of the syrup was either not sufficiently limed or limed to excess; that it was gummy, and that the syrup of the last shipments had been produced by frosted cane and was fermenting and turning sour when received at the refinery.

Those facts are sworn to in a positive manner by four disinterested witnesses, whose veracity is not impeached.

The attempt to contradict their evidence by the testimony of other witnesses, who deny that the syrup was sour or in a state of fermentation when they saw it at defendant’s sugar-house, or in transitu, cannot destroy the positive testimony of the employós of the refinery, who saw and handled the syrup when it was received, when the barrels were opened and the syrup poured into the pan and apparatus.

We also note the testimony of experts to whom samples of the syrup were sent for examination, and who foot up the quantity of sugar which should have been obtained from the number of barrels that were forwarded to the refinery by the defendant, and who state that in their opinion the result obtained by plaintiffs was not satisfactory. But that testimony, although entitled to great respect and due consideration, cannot overcome the stubborn facts testified to by men equally competent, who manipulated the syrup, in machinery shown to have been complete and satisfactory, who show that there was no waste and no robbery of either syrup, sugar or molasses, and who state that no better results could have been obtained under the circumstances.

The fact that sugar precipitates are shown to exist in the barrels of molasses produced from the syrup, is explained to our satisfaction by the evidence of three witnesses (sugar chemists) who had charge of the centrifugals and who state that, owing to the gummy condition of the centrifugals, it was impossible to obtain second sugars, even by the centrifugal process.

Hence, they state that the stuff had to be taken out of the centrifu-gals and was reboiled to the consistency of molasses, which necessarily contained saccharine matter which subsequently granulated after cooling and was precipitated at the bottom of the barrels as they laid.

The evidence shows that the short quantity and the inferior quality of sugar obtained from defendant’s syrup cannot legally or justly be attributed either to the fault, or negligence, or want of skill, honesty or attention of the plaintiffs, or to the insufficiency or defect of their machine! y and apparatus. Hence, we conclude that they cannot be held in damages for defendant’s losses, if he has sustained any, through XJlaintiffs’ manipulation of his syrup.

It may be that the system itself is unsatisfactory in its results, but that problem is not within the province of the judiciary; it must be solved by the sugar interest and economy.

In reference to the damages alleged to have been caused by the irregularity and delay in the shipment of empty barrels under the contract, we find that, as soon as emptied, the barrels were hauled to the refinery’s landing for shipment and that the delay was caused by the reiterated refusal of the boats to receive and transport them when the-steamers were belated, or for other causes, for which plaintiffs cannot be held responsible.

Hence, it follows that defendant cannot recover on this branch of Ms demand, which has not impressed us as very serious. It finds no support in law and much less in equity.

We find no error in tho judgment appealed from, which is therefore affirmed at appellant’s costs on appeal.

Rehearing refused.


author: Todd, J.

text:
    No. 9147.
    A. V. Davis et al. vs. Mrs. Catherine Young.
    "Where, as defense to a petitory action, defendant interposes the plea of prescription, and as he claims the land, to support the plea an actual and continuous possession as owner, for the entire term must be shown.
    An offer to buy the land from one holding the adverse title, when not made for tho purpose of acquiring an outstanding title and perfecting the title of the possessor, will defeat the plea.
    Mere forbearance in judicially asserting a claim to tho land will not operate as an estoppel against the true owner so long as prescription has not run, either as relates to the original possessor or a subsequent one.
    Where the owner has been compelled to pay the revenues of the land, for one or more years, to the party in possession under an adverse judgment in a possessory action, he cannot, in a subsequent petitory action, recover back the same, nor the costs and expenses of such possessory action. It is, as to all the issues in that action, res adjudicata,
    APPEAL from the Ninth District Court, Parish of Concordia. Bough, J.

      Wade R. Young for Plaintiffs and Appellees.

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

Todd, J.

This is a petitory action in which the plaintiffs seek to recover of the defendant a tract of land in the parish of Concordia, described as sec. 45, T. 7 N, R. 9 E, and the rents thereof, accompanied by a claim for damages for slander of title,' etc.

The defendant interposes as a defense to the action pleas of prescription, res adjudicata and estoppel, and calls certain parties in warranty.

There was judgment for the plaintiffs, decreeing them owners of the land and condemning defendant to pay rents therefor at $70 per annum, and judgment over against tlie warrantors in favor of the defendant for $250 and $500, severally. From which judgment the defendant has alone appealed.

The pdaintiffs established their title to the land by a patent from the United States.

We will proceed to consider the defenses mentioned to the action in the order stated.

1. The prescription pleaded is that of thirty years.

This prescription, to have the effect claimed of acquiring the ownership of the land, must he based upon actual and continuous possession of the land, as owner, for the term required.

It appears that one corner of the section in controversy, containing about ten acres, had been inclosed by an owner of the section contiguous thereto, one John Fletcher, Sr., some time in 1853, and a small clearing made thereon of one or two acres and cultivated by Fletcher, who had opened a plantation on the said contiguous sections referred to. In 186,0, York & Hoover became the owners of this Fletcher plantation; and York, the managing partner of the planting partnership, caused a survey to be made of the lands bought of Fletcher, and ascertained that a part of his inclosure embraced this ten acres in section 45, belonging to the plaintiffs. He, York, therefore made a proposition to buy this section 45, at $100 per acre, which was declined. He continued to cultivate the lot and even increased the clearing thereon, with the apparent acquiescence of the plaintiffs.

These facts we learn from York himself, who was a witness in the case; but he states distinctly that he never possessed said land as owner, but recognized the plaintiffs as the owners of it, as was shown by his attempt to buy it.

Although the defendant’s counsel criticises this testimony of Gen. York and suggests that his words were at variance with his acts, we think it is conclusive in regard to the character of his possession. That he did order the survey to ascertain whether the land was on the Fletcher tract, and that he did make the offer to buy when he found out that it was not, are significant facts and are not controverted— besides, are corroborated by other evidence.

Sedgwick & Wait, in their work entitled “Trial of Title to Land,” p. 530, lay down the principle bearing on this point, thus:

“ If a party in possession of land offers to purchase it from the true owner, and the offer is made not merely to buy an outstanding or adverse claim, in order to quiet possession or to protect himself from litigation, the offer is a recognition of the owner’s title and will stop the running of the statute.” Lovell vs. Frost, 44 Cal. 471; Bowen vs. Guild, 130 Mass. 121.

This is in strict accordance with our own law on this subject. C. C. 3490, 3500.

We find also evidence to the effect that Fletcher himself never, during his possession, claimed the ownership of the land.

Another fact proved to our satisfaction is still more conclusive as to the kind of possession held by those from whom or through whom defendant bases her claim to the land.

In the year 1866, York & Hoover retroceded the plantation bought of John Fletcher, Sr., as stated, to his son and heir, John Fletcher, Jr., who also continued to possess this portion or lot of land with the tacit consent of the plaintiffs; but in order that no doiibt might exist as to the character of Ms possession, he executed a writing in which he disclaimed any right or claim to the land and acknowledged the title of the plaintiffs.

These facts, without further discussion touching the duration or continuity of defendant’s possession or that of her authors, effectually disposes of the plea of prescription.

2. The plea of res adjudicata is founded on a judgment rendered in a possessory action between the defendant and a tenant of plaintiffs, respecting the possession of this same land. In that case the defendant was decreed to be entitled to the possession of the land, which plaintiffs in the instant case sought to secure by putting a tenant thereon.

All that was decided in that case was, that defendant herein had possessed for the time requisite to maintain a possessory action and had been unwarrantably disturbed in her possession, and was entitled to the recovery of the revenues during the time the unlawful adverse possession lasted. There was no question of title involved and could be none. The decision in that case necessitated the prosecution of the present suit to determine the question of title.

The only effect of that decision as relates to this controversy is to bar the recovery of the revenues by the present plaintiffs that the defendant recovered of them in the former suit, during the time their tenant was in possession, which was for 1881. Whether this recovery was right or wrong can no longer be questioned, nor amount paid under the judgment for revenues, costs and expenses restored.

3. The plea of estoppel, as we deduce from the argument of the counsel, seems to rest alone on the extreme forbearance, long continued, shown by the plaintiffs to those who for so many years occupied, cultivated and reaped the fruits of their land. If prescription, through such forbearance, has not deprived them of their ownership — which we have held was not the case — we cannot exactly understand how it has created any bar to plaintiffs’ assertion of their right, or furnished defendant a new mode or contrivance for acquiring her neighbor’s land. There is neither merit nor meaning in the plea.

4. In regard to the damages claimed by the plaintiffs for expense of prosecuting the present suit, they are unauthorized under our repeated decisions, nor can the amount they were forced to pay under the adverse decision in the possessory action be recovered, as we have already shown; and the other claim for damages for previous troubles about this land are equally groundless, but as to the rents and revenues of the land allowed plaintiffs by the judgment, we think there is- an error against them. Seventy dollars per annum only was allowed.

In the possessory action referred to, the defendant herein and plaintiff in that suit, was allowed $200 for the fruits of 1881. We think from the pleadings and judgment in that case and the proof in this record, that the defendant should pay at least $180 per annum from judicial demand till possession of the land is given. This is the defendant’s own valuation of the annual revenues and she should be bound by it. This amendment is authorized under the answer of the plaintiffs to the appeal.

There is also an appearance for one of the warrantors (Fletcher) in this Court, and an amendment of the judgment against him is asked for to the effect of rejecting the total amount decreed against Mm. The judgment in this respect cannot be disturbed. This warrantor did not appeal from the judgment against him, the only appeal being taken by the defendant from the judgment against her in favor of the plaintiffs.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended by condemning the defendant to pay plaintiffs one hundred and eighty dollars per annum rent for the land in controversy, from judicial demand tiff they are placed in possession oí the same; and that in other respects the judgment be affirmed, defendant to pay costs of both courts.

Rehearing refused.


author: Fenner, J.

text:
    No. 9073.
    The State of Louisiana vs. D. Bienvenu et als.
    In prosecutions for libel, proof of publication, libellous and unauthorised on its face, makes out a pi'kna facie case for the State and establishes a legal presumption of malice. The burden of establishing justification is then thrown upon defendant.
    If the publication be not privilege^ justification can only lesulfc from proof, both that the matter charged was true and that the publication was made with good motives and jus* tillable ends.
    Article 168 of the Constitution is not inconsistent with, and does not repeal section 3641, Revised Statutes,
    Belief in the truth of libellous matter charged, when not privileged, is no justification when the charge is actually false
    The action of a member of a congregation in publishing to all the world a libel concerning his minister or priest is not privileged — however, it might be with like communication addressed to the church authorities.
    APPEAL from the Twentieth District Court, Parish of Assumption. Knobloeh, J.

      JE. A. O’Sullwcm, District Attorney, for the State, Appellee.

      Onion <& Folse, Pugh & Howell and Walter Ouion for Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

Delphin Bienvenu, appellant, was convicted under an indictment charging him with the offense of having published a libel upon the Bev. Cyprien Yénissat, a Catholic priest, contained in a pamphlet written in the French language under the head of “La verité sm- Vaffaire de LábadievilleP

The portions of said pamphlet constituting said, libel are in the following words:

Attendm, I. Qu’á différentes époques, depuis plus de vingt-cinq ans, le Bóv, Cyprien Vénissat, par des a«bes d’impudicitó qni sont de no-toriété publique et par d’autres actes de lubricité qui sont attestés par des témoins oculaires, a violó ses voeux de chasteté et est devenu un sujet de honte, de mépris et de soandale pour ses paroissiens ; * * *

And again:

Et, afln que la véritó puissó étre légalement revendiquée par qui de droit, nous assumons personellement la responsibilité des accusations dont nons étions les porteurs de la part des paroissiens prés de l’Antorité Diocésaine. Nons nous en faisons les auteurs et, puisque Mge. Leray avait restreint Fenquéte aux senls.faits d’impudicité, nous déclarons que nons aurions prouvé á la tenue de Fenquéte que le Bév. Cyprien Yénissat, curé de Labadieville, s’est rendu coupable d’attouehe-ments, de caresses, d’embrasseinents et de baisers impudiques envers des eleves et des religieuses de sou convent de Ste-Philoméne et envers d’autres personues du sexe féminin, et qu’il s’est rendu coupable aussi de séduction et adultére.

Signed, JDelphin Bien^vbNU, M. D.

The record presents four bills of exception and a motion in arrest of judgment.

1. The first exception is to a remark made by the judge, in the opening of the case while counsel were explaining its nature to the jury, in these words: the offense and crime of libel would be made out and proved by the State upon the sole proof by the State of the printing and publication by the accused, of a libellous pamphlet upon which the prosecution was begun and is founded.” The remark, though perhaps untimely, seems entirely innocuous to anyinterest of defendant. Indeed, it is nothing more than an obvious truism.

2. The next exception is taken to the charge of the judge which is attacked as a -whole and in nearly all of its parts. We have closely studied this charge in connection with the objections urged against it, and, noth withstanding its length, we embody it here in full, as an admirable compendium of the law of libel, and the duties of juries in such eases, and as furnishing, in itself, the best and briefest answer to most of defendant’s objections.

“ The indictment under which the defendant is tried, charges him with having libeled the Reverend Cyprien Venissat.

“No. 1. A libel is any malicious publication which is calculated to create disturbances of the peace, to corrupt public morals, or which, by words or signs tends to expose a person to contempt, ridicule, hatred, or degradation of character, or which accuses him of an odious act, disgraceful in society.

“No. 2. Any publication is libel upon a private individual which is ■ of a nature to blacken his reputation, or to hold him up to contempt and ridicule, unless such publication is shown to be true and to have been justifiably made.

“No. 3. Although malice is a necessary ingredient of libel, it is not necessary to show that the party publishing was actuated by a feeling of personal hatred or ill-will, towards the person defamed; it is sufficient to show that the publication was wilful and unauthorized. Legal malice alone is sufficient, and in law, means a wrongful act done intentionally, without just cause or lawful excuse. And malice is presumed as matter of law by proof of the publication.

“No. 4. If you believe from the evidence, that the defendant published a libel of and concerning the Reverend Cyprien Yenissat, as charged in the indictment, then the law presumes malice on the part of the defendant against the said Yenissat, and it rests on the defendant to rebut this presumption of malice by a preponderance of evidence.

“No. 5. If you find beyond a reasonable doubt that the defendant published a libel as charged in the indictment, that is, that he wrote and distributed, or knowingly and intentionally caused the printing and distribution of a pamphlet, containing matter which imputed to the Reverend Cyprien Venissat, conduct which, if said Yenissat were guilty of, it would injure his reputation or degrade him in society or lower him in the confidence of the community or bring Mm into public hatred and contempt, and, if you further find that the defendant has failed to show by a preponderance of evidence the truth of the charges, statements and insinuations made against the said Yenissat, then the defendant is guilty.

“ No. 6. If you believe beyond a reasonable doubt, from the evidence, that the defendant composed and published the printed pamphlet as charged in the indictment, it is no defense simply to show the truth of the matter published, but the defendant must go further and prove by a preponderance of evidence, that the matters charged in the alleged libel were not only true, but that he, the defendant, acted with good motives and for a justifiable end, and that he had some purpose in view •that was justifiable.

“No. 7. If you are satisfied beyond a reasonable doubt, from the evidence in this case, that the defendant published of the Rev. Cyprien Venissat, matter defamatory of the said Venissat, or of a nature to bring him into contempt and disgrace, then, unless it appears to you that the publication was for a justifiable purpose and not malicious, nor with the intent to defame, the proof of the truth of the libellous matter does not justify or excuse the publication.

“ No. 8. When the defendant attempts to justify by proving the truth, the justification must be as broad as the charge. The verification of part will not be enough. And the truth must be fully established by a preponderance of evidence.

“ No. 9. If you find that the defendant made and published defamatory charges against the Rev. Cyprien Vénissat, of a nature to bring him into contempt or disgrace, and if you find that the defendant was not able to prove them to be true, or if you find that any of them was untrue, the law implies malice from the publication and deems the publication libellous.

“No. 10. But if you find that the defendant made and published charges defamatory of the Rev. Cyprien Yenissat, but that such charges are true, and that the defendant made and published the charges without evil motive and for a justifiable end, then the publication is not libellous.

“ No. 11. It is no defense to an indictment for a libellous publication, that the story was received at second band and not invented by the defendant.

“No. 12. In every criminal prosecution, the accused is presumed innocent until every fact essential to establish his guilt has been proved beyond a reasonable doubt.

“ No. 13. A doubt to justify an acquittal must be reasonable and it must arise from a candid and impartial investigation of all the evidence in the case. By a reasonable doubt is not meant a mere possibility, a conjecture or a supposition, but rather that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of a juror in that condition, that he cannot say that he feels an abiding conviction to a moral certainty of the truth of the charge. The doubt must arise in the case before you, in other words, you are not to go beyond the evidence to hunt up doubts.

“No. 16. Yorr are also the judges of the law as well as of the facts.”

The charge is to be considered as a whole. We find it unnecessary to consider in detail all the objections made, such as: that the attention of the jury is directed only to facts and presumptions of law unfavorable to defendant and tended to restrict the defense to the sole question of negativing the proof of publication, precluding the jury from considering the questions of want of malice, truth or privileged character of the document; that it misstates the law of malice; that it ignores the presumption of innocence in favor of accused and wrongfully shifts the burden of proof.

On all these points we consider the charge unexceptionable.

As to the question of privileged communication, that was disposed of in a subsequent special charge, which will be separately considered. On the question of burden of proof, the law is clear that on proof of publication of matter libellous on its face and[unauthorized, malice in law may be presumed and the case of the State is established unless the presumption. of malice be rebutted, or other lawful justification be established by accused. Com. vs. Bonner, 9 Met. 410; 2 Bishop Cr. Law, § 942; Wharton Cr. Ev. $ 739.

The most serious objection, however, is to that part of the charge which told the jury that after proof of publication of a libellous communication defendant, in order to justify, must prove that “the matters charged were not only true, but that he, the defendant, acted with good motives and for a justifiable end, and that he liad some purpose in view that was justifiable.”

The con tention of defendant is, that under Article 168 of our present Constitution, proof of the truth of the libel is a complete and plenary justification.

We rejoice to say that this contention is utterly unfounded.

All that our Constitution says is, that “in all proceedings or indictments for libel, the truth thereof maybe given in evidence.”

At the time of the adoption of the Constitution, the Statutes of the State contained the following provision: “ In all prosecutions for libel, the truth may be given in evidence; and if it shall appear that the matter charged as libellous is (true) and was published loith good motives and justifiable ends, the party shall be acquitted.” Rev. Stat. sec. 3641.

It is manifest that the article of the Constitution contains nothing inconsistent with this statute, and the latter, in its entirety, remains the law of the State. The sole object of the Constitution was to prevent legislation excluding evidence of the truth in prosecutions for libel, but not to destroy the important safeguard furnished to society in the other feature of the existing law.

Indeed, that would be a barbarous doctrine which would grant to the evil-disposed the liberty of ransacking the lives of others to drag forth and expose follies, faults or crimes long since forgotten, and perhaps expiated by years of remorse and sincere reform, with no other motive than to gratify hatred, or ill-will by blasting the character and reputation of their victims. Such is not the law of Louisiana.

3. The third bill of exceptions is taken to the refusal by the judge to give certain special charges asked by counsel for defendant. The first two wore to the effect that it was inctimbent on the State to prove not only the publication of the libel, but also affirmatively to prove malice. We use the language of Chief Justice Shaw in saying: “ If the publication be libellous, that is, be such as to bring the person libelled into hatred, contempt and ridicule among the people, malice is presumed from the injurious act.” Com. vs. Bonner, 9 Met. 410.

Therefore, the State was not bound to give any affirmative proof of malice beyond that presumed from the publication of the libel.

The other special charge asked v.’- u- i hb'effect that every member of a church or congregation has ¡ i"- u.^hi and duty of exposing and bringing to light any and all derelictions on the part of a minister or priest, and such publications are privileged: which charge the court gave with this qualification: “that a communication made to the church authorities concerning a priest or minister in charge was privileged, if made by a member, but the circulation of a pamphlet and publication of the same outside of the church was not so privileged.”

The qualification seems eminently just. We know of no authority or principle granting to members of a church a peculiar privilege to libel their priests or ministers by publications addressed to all the world.

4. The last bill of exceptions is to the overruling of a motion for new trial, which was based on the charges of error already considered.

5. The motion in arrest was based on the ground that “the indictment does not set forth any crime known to the law of Louisiana.”

It is meritless.

Alter the expiration of the delays allowed, and after this opinion had been finally adopted by the Court, an able and earnest brief was filed in behalf of appellant, which has been carefully considered, without, however, shaking any of our conclusions. The only additional point which we find it necessary to allude to is the objection that the charge of the judge excluded, as a rebuttal of malice, the honest and reasonable belief of the accused in the truth of the libel. Nothing is better settled than that belief in the truth of the libel does not serve to rebut the presumption of malice flowing from its publication. In matters of homicide, the party acting under a reasonable belief of personal danger, is free from the charge of malice, because he was called upon to act. But in the case of libel, such is not the case. His action is purely voluntary and deliberate, and not for self-protection. He has no right to publish a libel of another unless ho knows it to be true; and if he acts on information or belief, he acts at his peril. This rule has its limitations in case of privileged communications. I Bishow Cr. Law, sec. 308; 2 Wharton Cr. Law, sec. 2581.

Judgment affirmed.

Rehearing refused.


text:
    No. 9010.
    Joseph B. Friedman vs. Adler & Levy.
    "Where an injunction has arrested the execution of a judgment for a sum of money, the surety to the injunction-bond is not entitled to notice of the judgment of dissolution and for damages before the issuing of execution the: >on.
    The surety to an injunction-bond in such case is not merely constructively in court, but is an actual party to the suit, made co-plaintiff ipso fa,do by the mere act of suretyship, and invested by the law proprio vigore with all the attributes, qualities, rights, and burdened with the liabilities of his principal, and is entitled to citation and notice as is his principal.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Chas. S. Rice and James D. Augustin for Plaintiff and Appellant.

      Henry c. Miller; Chas. A. Baquié and E. T. Florance for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

Adler & Levy had obtained a money judgment against one Jacob, the execution of which was arrested by an injunction, Friedman being surety on the bond. The injunction was dissolved with damages against the principal and Friedman the surety in solido. After the lapse of the delay for appealing, execution issued against Friedman, under which Ms stock of goods (he was a shopkeeper in St. Charles) was seized, was held by the sheriff three weeks, and was then released.

Friedman now sues to recover ten thousand dollars as damages for the illegal seizure, and after setting forth the injuries caused by this process, avers that he was not a party to the injunction suit, and never appeared therein, and was not served with any citation or other notice in those proceedings until the notice of actual seizure under the fi. fa. He was not served with notice of judgment.

The question is thus squarely presented, is the surety to an injunction bond entitled to notice of tbe judgment of dissolution with damages, when the injunction has arrested the execution of a money judgment.

The surety on an injunction bond is considered a plaintiff in the suit. Fifty years ago the facility with which injunctions were obtained under our Code of Practice had already become a fruitful source of abuse, to prevent the continued recurrence of which the Statutes of 1831 and 1833 attached to the suretyship of such bonds consequences more enlarged and more stringent than had hitherto attended any act of suretysMp. And these provisions were designed to deter persons from assisting parties who had been judicially condemned, in evading or delaying the course of justice in cases wherein they were not entitled to relief. The surety was so completely identified with the injoining debtor as to become his co-plaintiff ipso facto by the mere act of suretyship — a soli-dary judgment was expressly authorized against them in the pending-suit if the injunction were dissolved — and the solidarity of obligation was crowned by transferring the surety to the position of a principal in this, that he was deprived of the plea of discussion. Code Prac. art. 304j Denton vs. Irwin, 5 A. 21.

In construing these anomalous and rigorous requirements the courts have lent their hearty aid to the interpretation that would best effectuate the intention of the Legislature, and in furtherance of it have held that the surety was not merely a nominal party to the injunction suit, but such a real actual party that he is entitled to be cited on an appeal when it is by petition, Gibson vs. Selby, 3 A. 318; and when the appeal is by motion in open court, that he is embraced equally with his prineijial. Mitchell vs. Say, 4 A. 514. And where judgment was prayed against the wrong person as surety, the court gave judgment against him who was really surety. Union Bank vs. Smith, 3 A. 147. So where the verdict of the jury was against the principal in the injunction bond alone and the judgment was against him and the surety also, it was maintained, Mason vs. Poulallier, 10 A. 418; and the surety may be condemned on the trial of a rule to dissolve as well as on the merits, Betts vs. Mougin, 15 A. 52; and he is so perfectly and irrevocably bound by the petition, affidavit, order of injunction, etc., that they cure the omission of any description of the proceedings in the bond. Green vs. Huey, 23 A. 704. We need not say more of Verges vs. Gonzales, 33 A. 410, than that it was not a case where the execution of a money judgment was arrested.

It is manifest from this catena of decisions that the legal presence of the surety in court is not a mere fiction of law, nor is it correct to say that he is only constructively before the court, since the law proprio vigore makes him a party, not nominally as is a sheriff in an injunction, but really and actually, stamped ineffaceably with all the attributes, qrialities, rights, and liabilities that appertain to and inhere in a party as completely as if his name had been inserted in the petition and had appeared at every subsequent stage of the suit. He is transfixed by the spear of the law and is empaled upon the suit, in order 'that the party injured by his aid may their and there obtain redress'fr'om him.

If in an appeal by motion he is embraced just as is his principal, and in an appeal by petition he is entitled to service when his principal is thus entitled, he is likewise entitled to notice of judgment only -when his principal is, and therefore when as in this case the defendant appeared and defended the suit, and is thus not entitled to notice of judgment, the surety has no cause of complaint when the execution issued upon the judgment of dissolution and for damages against him, after the expiry of the delay for an appeal, without notice to him of the judgment.

It will he observed throughout that we are considering and deciding alone the case where the judgment, the execution of which is arrested, is a judgment for the payment of money.

Tf the plaintiff was endangered by the seizure of his property under the fi. fa. the injury resulted from his own failure to fulfill the obligation into which he had entered for the payment of such damages as may have been sustained by the injoined creditor through his ownership.

Judgment affirmed.