author: Bermudez, C. J. Poché, J.

text:
    No. 8261.
    The State Ex Rel. Josiah Fisk vs. The Police Jury of Jefferson, Left Bank.
    A mandamus to compel the levy of a tax to pay a judgment against a municipal corporation, cannot be assimilated toan execution under a final judgment, from which no appeal lies.
    The Helatoi was appointed, by the District Judge, Parish Attorney, in the absence of an appointment by the Police Jury. He seeks, by mandamus, to compel the levy of a tax beyond the constitutional limitation, to pay his judgment against the municipal corporation, for his fees, on the ground, that there was a contract between him and the Police Jury, resulting from his appointment, and that such contract is shielded by the Federal Constitution from impairment by State legislation. . , .

      Meld, that there was no contract in tlie appointment by the Judge, and hence, that the [Relator is not entitled to the levy of the tax prayed for.
    APPEAL from the Twenty-sixth Judicial District Court, Parish of Jefferson, liáhn, J.

      Olías. Louque, for the Relator and Appellee :
    1. An answer admits what is alleged in the petition and not denied. 4 Wallace, 548; 4 N. S. 615; 14 A. 137; 11 A. 103.
    2. Services rendered by a Parish Attorney under an ordinance giving him a stipulated salary, and accepted by the Parish, is an executed contract, the 11 obligations” of which cannot be “impaired.” 10 Howard, 416 ; 6Cranch,136; 8 Wheat. 92; 4Wheat.694; 103 IT. S. 10; 13 Wallace, 379.
    3. Existing laws form part* of a contract. 4 Wallace, 550; 8 Wheaton, 92; 1 Howard, 319; 2 Howard, 612; 12 Wheaton, 231; 10 Cal 570.
    4. A change of remedy, which materially affects a contract, is void. 8 Wheaton, 92.
    5. Sec. 2747, R. S., forms partof a judgment without being so embodied. 32 A. 887.
    6. A debt becomes merged in the judgment.
    7. If the first suit was dismissed for defect of pleadings, it does not form res judicata. 4 Wallace, 232 ; 14 Peters, 156; 1 Greealeaf, Evidence. §§ 529-530 ; 2 Wallace, 525.
    8. The salary of a Parish Attorney, previous to 1877, was not to be paid out of any special fund. A law restricting him, after execution of his contract, to a special fund which does not exist, materially impairs the obligations of his contract.

      Wm. Xithoff, and Olías. F. Claiborne, for Defendant and Appellant:
    When a plaintiff sues a Parish for a money judgment and for a special tax, and the judgment allows him a money judgment, but is silent as to the tax, this will be res judicata to a subsequent suit having for its object the levy of a tax to pay the same judgment. 2 M. 142; 7 H. S. 436, 441; 12 A. 95; 8 L. 64 ; 17 L, 96; 19 A. 98, 304; 18 H. 418; 8 A. 43; 12 A. 766..
    A Parish officer must look for payment exclusively to the tax collections levied for the year during which his services were performed, or to the provision made for the payment of his salary. If the tax levied, or provision made is insufficient, the remainder does not form a debt against the Parish. R. S. 2645, 2786 ; 26 A. 155; 28 A. 161; 30 A. 1244; 23 A. 190; 26 A. 60, 150 ; 28 A. 343, 455 ; 31 A. 179 ; 32 A. 392.
    This is the extent of his contract with the Parish, to which he will be restricted. His recourse then is to compel the sheriff to levy the tax levied for his purpose. 31 A. 709 ; I-Iuey «fe Wise vs. Police Jury of Jackson — unreported—decided at Monroe, June 20 1881.
    If the Parish has exhausted the limit of taxation, he cannot ask for an additional tax.
    Only conventional contracts are protected from impairment by the Constitutional provision. C. C. 1761; Cooley’s Const. Lim. pp. 273, 281; 32 A. 716, 726.
    The obligation imposed upon a Parish to pay the salary of an officer is riot a “contract” within the meaning of the law. Hew Orleans Republican Printing Company vs. City of Hew Orleans, O. B. 54, p. 542; State ex rel. Fisk vs. Jefferson Parish, O. B. 54, p. 568.
    G-eneral laws applicable to the remedy do not form part of a contract made during their existence. 31 A. 20 ,* 3 A. 253, 698.
    It is only when the remedy is made part of a special law embodying a contract, and as making part of that contract. Moore vs. City of Hew Orleans, 32 A. 726, 738.
    The 10 mill tax limitation will be enforced in all cases, except anterior “ contract ” creditors. 32 A. 726, 738.
   On the Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The motion charges:

That there does not appear to be any order of appeal;
“ That the amount in dispute is involved in this suit; and,
“ That these proceedings are taken merely to carry into execution a judgment which is final.”

1. The record shows that a motion was made for a suspensive appeal, and that an order, regular in form and substance, was granted upon it.

2. The plaintiff prays that the defendants be commanded to levy a tax to pay the sum of $5,411, for which he has obtained judgments against them, and which are executory. This is enough to make the case appealable.

3. The judgments upon which the plaintiff relies to obtain the mandamus, do not direct the levy of the tax sought to be ordered to be raised. A prayer appears to have been made in the cases in which the judgments were rendered, but it was not granted.

The only execution which those judgments could have received, without further judicial action for their enforcement, in a peculiar way, was, on plaintiffs’ application, a writ of fieri facias from the clerk. He could not have obtained a mandaums from that officer, in the absence of an order, or judgment of the court, to authorize the issuance of the same.

The test, whereby to decide whether an act is in mere execution of the judgment, is to ascertain whether the act is ordered by the judgment, expressly or impliedly, by its very terms, or by operation of law.

The plaintiff does not present the case of a contract, the obligations of which are alleged to have been impaired, or sought to be. His case does not present the features of that decided in 32 A. 887, which was stated to be one of contract; on the merits of which the Court did not pass, and which was remanded for the purpose of inquiring into the nature of the averred contract. What was then said can have no bearing on the present case.

The motion to dismiss is denied.

Rehearing refused.

On the Merits.

The opinion of the Court was delivered by

Poché, J.

Relator, a judgment creditor of the Parish of Jefferson, seeks by mandamus, to compel the levy of a special tax for the payment of his four judgments, amounting together to $5,411, or in the alternative, to compel the Police Jury to include in their next budget the amount of his judgments, and to provide for payment of the same by taxation, notwithstanding the constitutional limitation, wliicli is alleged as impairing the obligation of his contracts, which were the basis of his judgments.

Among numerous other defenses, the respondents urge that they had already exhausted their power of taxation, by levying the highest rate authorized under the Constitution and the laws of the State, and they have taken this appeal from a judgment ordering the levy of an additional tax of six mills on the dollar, notwithstanding the constitutional limitation of the Parish tax, in order to pay and satisfy three of fhe four judgments declared upon by Eelator.

The theory on which the judgment of the lower court is predicated, is, that the indebtedness of the Parish to Eelator, which is recognized by final judgments rendered by competent tribunals, arises from contracts made and entered into between- the Parish and the Eelator, who was the Parish Attorney of said Parish, between the years 1871 and 1877, and that, therefore, Art. 209 of our Constitution, which limits the rate of Parish taxation, for all purposes, to ten mills on the dollar, being an impediment in the way of Ms recovery on his judgment, impairs the obligation of his contracts, and is null as to his contracts, as violative of Section 10 of Art. 1, of the Constitution of the United States.

We shall, therefore, confine our investigation to the inquiry suggested by the judgment.

The indebtedness recognized by the judgments sought to ho onfqrced by Eelator, was on account of his salary as Parish Attorney, and for fees due him for services rendered in his said capacity in defending the Parish in several suits; a duty which was imposed upon him by the law winch created Ms office, and which fixed the rate of his compensation for such services.

The law provided for the election of that officer by the Police Jury, and it enacted that in case of the failure of that body to elect a Parish Attorney within a specified time, the right of appointment should bo vested in the Judge of the Parish Court, whoso appointee was entitled to hold the office for the time for which the District Attorney was appointed or elected, and it fixed his salary, to he paid by the Parish, at not loss than one hundred dollars per annum, or as much more as the Police Jury might allow.

■ The record shows that qu the 3d of July, 1872, in order to fill a vacancy caused by the resignation of W. T. Scott, Eelator was appointed •Parish Attorney by the Judge of the Parish Court, and that on the 10th of December, of tlie same year, thirty days having elapsed since the election of the District Attorney of the District, and the Police Jury having failed to elect a Parish Attorney, the Relator was again appointed to that office by the Judge of the Parish Court.

And it also appears from the evidence, that all the emoluments and fees of office which were earned by Relator, and which were allowed him in his judgments, accrued during his tenure under these two appointments.

And we also find in the record, that on the 6th of May, 1872, during the tenure of Rcdator’s predecessor, the Police Jury had, by ordinance, fixed the salary of said W. T. Scott, Parish Attorney, at the sum of onetliousand dollars per annum, and that said ordinance having not been repealed, was recognized in his judgments, as fixing Relator’s salary as Parish Attorney. The question is, therefore, whether the foregoing facts disclose a contract between Relator and the Parish, such as is shielded under the Article of the federal Constitution invoiced by him.

■We think that, under our law and jurisprudence, as well as the numerous adjudications on the subject by the Supreme Court of the United States, the question must be answered in the negative.

A contract is an agreement by which one person obligates himself t-o another, to give, to do or permit, or not to do something expressed or implied by such agreement.” Civil Code, Art. 1761.

A contract has also been defined “ as a compact between two or more parties.” 6 Crunch, p. 136, Fletcher vs. Peck, or as “ the agreement of two or more parties to do, or not to do, certain acts.” 8 Wheaton, 92, Green vs Biddle.

It is, therefore, elementary, that the concurrence of the parties, tlie figgregatio mentium, is of the very essence of every contract, and that in this case, the burden of evidence is on Relator to prove affirmatively the existence of a contract between himself and the Police Jury, in the ¡natter of his appointment as Parish Attorney. But, the evidence shows very conclusively that the Police Jury did not, in any manner, directly and indirectly, participate in his appointment as such, and that the right of-appointment of the power from which he received Ms mandate, could be exercised, and could arise only on the failure of the Police Jury to make the appointment within a specified time.

Hence, it follows, that the very legality of Relator’s appointment by the Parish Judge, in tlie manner and under the'emergency under which it was made, depended essentially upon the inaction of the Police Jury, and on its positive exclusion from any participation in the exercise of the appointing power, and it is, therefore, clear that there was not, and could not, by the very nature of things, be any convention or agreement of parties between the Police Jury and Relator.

It is not pretended, nor could it be maintained, that in exercising the power of appointment in this case, the Parish Judge was the agent, the representative, or even the substitute of the Police Juryin the premises, and clothed with any authority to bind the corporation in any contract or agreement.

The act of the Police Jury in fixing the salary of W. T. Scott, as Parish Attorney, by an ordinance which was in force at the date of' Relator’s appointment, and which operated in his favor in the matter of his salary, cannot be construed as a contract or compact with him, to whom it could not have any reference personally. It was merely the exercise of a general power conferred by the Legislature, and from which flowed the legal obligation, until otherwise ordained, to pay the salary thus provided for, to the incumbent of that particular office. We, therefore, conclude that the obligation of the Parish to pay to Relator his salary, and other emoluments of his office, which cannot be contested under the effect of the judgments rendered in his favor, does not arise from a contract or agreement between the Police J ury and the Relator, but that it was created by the operation of law. Civil Code, Art. 1760.

The distinction made by Relator between contracts executory and contracts executed, and which is so learnedly expounded in the numerous decisions which he quotes from the Supreme Court of the United States, can give him no relief, and has no application in this case, in which the evidence fails to show any contract, or conventional obligation, ab initio, and in which the legal obligation of the Police Jury to provide for Relator’s compensation as Parish Attorney, could not, in any contingency, have ripened into a contract executed, or be assimilated to a grant.

All the decisions which he quotes on this point, are predicated on cases showing a contract primarily entered into, and subsequently annulled, or sought to evaded by incompatible legislation, either by the corporation or by the State.

But in this case, there is a total absence, in the relations between the parties, of any of the elements of a contract, and hence, no contract could be evaded or impaired, directly or indirectly. Where there is no foundation, there can be no superstruction, and where there is nothing, there can be no destruction.

It therefore follows, from these premises, that Relator has utterly failed to show in this case, the existence of a contract as contemplated by the article of the federal Constitution, which forbids any State from enacting any law impairing the obligation of contracts, and that he is not entitled to the remedy which he asks at our hands in the enforcement of his claim.

We are not called upon to point out tlie remedy which he might obtain. Our plain duty, under the prayer of his i>etition, is to grant or disallow both of the remedies which he invokes in the alternative.

In resting our decision on the facts showing that Relator had not been appointed or chosen as Parish Attorney by the Police Jury, we do not wish to be understood as holding that the proof of the affirmation of that proposition, or that the relations of any officer elected or appointed, towards the State or any corporation thereunder, would be those of contracting parties, entitling the officer to shield his rights under that article of the federal Constitution now under consideration, which is so frequently invoked by litigants, and which has been so often expounded by the Courts. We particularly omit the expression of an opinion on that point, the solution of which is not necessary for the purposes of this case.

We note the argument of Relator, in calling our attention to the absence in respondents’ answer of a general denial, or of a special denial of his allegation that his judgments were rendered to enforce contracts, and in consequence of which, he invokes the rule that the answer admits what is alleged in the petition and not denied, thus requiring us to consider his allegation of a contract obligation under his judgments as admitted by respondents. We understand this rule to apply to allegations of substantive facts, but not to allegations which are legal deductions from facts, and especially to an allegation which is the essential legal averment on which plaintiff rests his claim or demand.

In the case at bar, the allegation that the employment of Relator as Parish Attorney operated a contract between him and the Parish, is a legal deduction from facts, and is the essential and indispensable averment under which Relator could, by any possibility, obtain the relief sought.

Respondents’ resistance to Relator’s demand, under numerous defenses, must be construed as a denial of such an allegation.

In pleadings, a broad distinction must be made between simple allegations of substantive facts, and allegations predicated on the latter, and pregnant with legal propositions or deductions. Durham vs. Williams, 82 A. 965.

Besides, Relator’s course in administering proof in support of the very averment which he desires us to consider as admitted, justifies the conclusion that he has waived any right which he might have derived from respondents’ silence on this point.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that the mandamus prayed for by Relator be refused, at his costs, in both Courts.


source: Caselaw Access Project

author: Toi)i), J.

license: Public Domain

text:
    No. 8311.
    The State of Louisiana vs. William Johnson.
    Though the accused was indicted jointly with another defendant, he may be tried alone, and the fixing of the case for trial against him alone, is virtually ordering a separate trial.
    Evidence was properly received of the resistance offered by tbe accused to the search made for the stolen goods.
    Burglary and larceny may be charged in the same count of the indictment without invalidating this instrument for duplicity.
    APPEAL from the- .Twentieth Judicial District Court, Parish of Lafourche. Knobloolc, J. ■

      J. 8. Bilim, for the Appellant:
    1. hTo severance having been asked for on the part of the State, there could have been no-separate trial under a joint indictment, when defendant objects.
    2. Tbe evidence must be confined to the issue, for the general rule is, that no evidence is admissible of other felony, or offenses committed by tbe prisoner, than that charged in the indictment. 3d An. 512; Wharton Am. Cr. Law, 4th Ed. par. 647.
    3. Under our Statutes and the Common Law, two distinct offenses are not to be charged in the same count of the indictment, and if they are so charged, it is a matter of substance, and a motion in arrest must prevail. See 30 An. p. 311; State vs. Palmer, 32 A. 565; 32 A. p. 812; Waterman, p. 339, Sec. 185.

      JS. A. O'Sullivan, District Attorney, for the State, Appellee.
   The opinion of the Court was delivered by ■

Toi)i), J.

The defendant is appellant from a sentence of five years imprisonment at hard labor in the penitentiary. He was indicted jointly with one Peter Johnson.

The indictment charges (quoting its language) as follows: That the accused “in the night time the outhouse appurtenant to the dwelling house of Mrs. Louise Theriot, and by her, the said Mrs. Louise Theriot, then occupied, feloniously and burglariously did break and enter with intent the goods and chattels of the said Mrs. Louise Theriot in said outhouse then being, then in the said, outhouse, feloniously and burglariously to steal, take and carry away, tbe said Peter Johnson and William Johnson, then in the said ontíiouse, of the goods and chattels of the said Mrs. Louise Theriot, two and one-half barrels of rice * * * then feloniously and burglariously did steal, take and carry away,” etc.

Both of the accused were arraigned, pleaded to tlie. indictment, but. the appellant alone was tried and convicted. It appears that when the case was fixed for trial, the defendant alone was present. Peter Johnson, the other accused, being sick and not able to attend, and on tlie day fixed the defendant was tried, as stated. When the case was called for trial, the defendant objected to tlie trial, on account of tlie absence, of tlie other party jointly charged with him, alleging that no severance liad been ordered or granted by tbe court, and that without such severance he could not be tried separately. His objection was overruled and a bill of exceptions taken. Another bill was taken to the admission of evidence, showing that resistance was made by the defendant to the officers at the time of his arrest, whilst they were making search for the property alleged to have been stolen.

A motion was made to arrest the judgment on the ground of duplicity in the indictment., in charging the offenses of burglary and larceny in one count, which motion was overruled.

These several rulings constitute the alleged errors relied on to set aside the sentence and judgment appealed from:

First. It appears that the ease was fixed for trial as to the defendant, which virtually ordered a separate trial for him, without objection on his part, he and his counsel being present at the time. Were there any question in regard to the legality of such trial, this waiver on the part of the accused, or failure to object at the proper time, would have cured the irregularity. We do not, however, consider that the separate trial, under the circumstances shown, was illegal or unwarranted. R. S. 1870, Sec. 999 ; 1 Wharton Crim. Law, § 433; 7th Ed. Bishop’s Crim. Prac.; 3d Ed. 1018.

Second. Evidence was properly admitted to show that search for the stolen goods was resisted by the accused. Had the goods been found in the premises searched, occupied by the accused, it would have been a circumstance pointing to his guilt. If he resisted such search, the fact of such resistance favored the presumption that the stolen goods were on the premises and thus constituted a circumstance bearing on the question of his guilt.

It may be regarded as part of the res gestee, and was offered, not with a view to prove the party guilty of a different crime, but as a circumstance tending to show his guilt of the offense charged. Roscoe Crim. Evid., p. 90; 16 A. 376 ; 30 A. 601.

Third. Burglary at common law is defined as “a breaking and entering the mansion-house of another in the night with intent to commit some felony within the same, whether such felonious intent be executed or not.”

By statute it is equally a burglary, if the house entered is an outhouse appurtenant to the mansion. And it is for this offense the accused in this case is prosecuted. R. S. Sec. 852, 854. It is sufficient to charge the entering and breaking with a felonious intent, or intent to commit any of the crimes mentioned in the statute; but it is none the less burglary, if the intent is executed after the entering by the commission of larceny or other crime designed. The averment that such other crime was actually committed, does not vitiate or detract from an indictment for burglary. And while the general rule is, that two distinct offenses cannot be joined in one count in an indictment, it is a well recognized exception to the rule, that burglary and larceny or other crime may be so charged without making the indictment amenable to duplicity.

On this point we quote from Bishop: “ If a man in the night time breaks and enters a dwelling house intending to steal therein, and there does steal, he may be punished for two offenses, or one, at the election of the prosecuting' power. If in a single count the indictment charges him with breaking, entering and stealing, his offense is single, being burglary in a particular manner.” Bishop Crim. Law, 1st Vol. § 1062, 6th Ed.; 11 N. H. 37; 3d Rawlee, 207; 7 S. and R. 491; 20 Pick. 356; Wharton Crim. Plead., 8th Ed. 244; lb. Crim. Law, 818, 819; State vs. Christian, 30 A. 367; State vs. Depass, 31 A. 489.

We have thus reviewed the rulings complained of and do not find the charges of error therein sustained, but, on the contrary, that the rulings are conformable to law and supported by ample authority.

The judgment and sentence are therefore affirmed, with costs.


author: Fennbk, J.

text:
    No. 7175.
    Succession of Thomas Mulligan vs. Rev. Thomas J. Kenny.
    A ■workman, making repairs te a building against tbe will and directions of the owner, is not entitled to remuneration, and has not the legal rights of a negoiionim gestor.

    APPEAL from the Fifth District Court for the Parish of Orleans. Bogers, J,

      Okas. Louque, for Plaintiff and Appellee.

      James Tiniony, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fennbk, J.

The decedent, Thos. Mulligan, had been employed by defendant to put a bell in the tower of the Church, of which the legal title was in the latter. While so engaged, he discovered that some of the beams in the tower were rotten and apprised defendant of the fact. He was informed by defendant that he had no authority to make any contracts, exceeding fifty dollars in amount, without the sanction of higher Church officials, and only consented to allow the work to be done upon Mulligan’s guaranty that it should not cost more than forty-eight dollars. Mulligan was further advised of defendant’s unwillingness, owing to financial difficulties, to incur heavier expenses for repairs, however necessary, defendant saying to liim that he would see the tower tumble down before he would do so.

While Mulligan was employed in the work contracted for, defendant left the city for Europe, and was absent about two months.

Thereafter, Mulligan discovering that the cross-timbers supporting the roof of the Church were rotten, exposing the roof to danger of falling, without consulting any person, and without communicating at all with the absent owner, braced and strengthened the timbers with iron ties, plates and bolts and other reparations, and upon the return of defendant from Europe, presented him with a bill for more than $1600, on which the present suit is brought.

The evidence is that the repairs were insufficient to render the supiports of the roof safe, and left them still in need of now and expensive work to accomplish tliat purpose, in the execution of which the work and materials of plaintiff would not be of the slightest use.

We are clearly of opinion that this is a ease where the workman has intruded his services, not only without the consent or approval of the owner, but against his will, as plainly inferable from the prior interviews between them. In such case, the equitable maxim that no one should enrich himself at another’s expense, which is the foundation of the right of the negotiorum gestor, is without application. 11 Toullier, No. 55; 12 Duranton, No. 19; 3d Zacharise, § 441, note 15 ; 10 Dalloz, p. 778. See also Fox vs. Sloo, 10 A. 11; McWilliams vs. Hagan, 4 Rob. 374; McCaulay vs. Hagan, 6 Rob. 359.

Aside from this, we are ■ doubtful, under the evidence, whether the expenses, reimbursement of which is claimed, were useful and necessary ” within the meaning of Art. 2299, C. C. The work may have afforded some temporary relief, but it is clearly proved, that the work necessary to secure the roof permanently was still required and would cost as much as if plaintiff’s work had never been done. We see no merit in plaintiff’s case, except to the amount of the work contracted for, and allowed by the. Judge a quo.

We think there was error in allowing merely a nonsuit for the balance. The defense was established, and the claim should have been absolutely rejected.

It is therefore adjudged and decreed, that tiie judgment appealed from, be amended by rejecting plaintiff’s demand, except so far as allowed in the judgment, and that, in other respects, it be affirmed, appellee to pay costs of this appeal.

The Chief Justice, having been consulted as counsel, recuses himself.


author: Levy, J.

text:
    No. 8424.
    The State of Louisiana Ex Rel. Wm. Stevens Et. Al. vs. A. E. Livaudais, Judge of the Twenty-fourth Judicial District for the Parish of Plaquemines.
    Under the provisions of the Constitution of 1879, justices of the peace have no authority to act as examining and committing magistrates in cases of capital punishment or hard labor. Such authority is vested, in those cases, in the District Courts alone.
    Application for Mandamus.
    F. 0. Zaaharie, for the Relators:
    1. The Constitutions of 1845, 1852 and 1864, and the laws thereunder, authorized justices of the peace to hold preliminary examinations in all criminal cases.

      % The Constitution of 18G8, and Section 1010, Revised Statutes, thereunder changed the system, so that justices of the peace could not preliminarily examine in cases, capital or felonious, and remitted that duty to Parish and District Judges exclusively.
    3. Articles 109 and 126 of the Constitution of 1879 continued the system of 1868, and engrafted it on the Constitution, thus continuing in force the Section of the Revised Statutes, and not repealing it.

      T. A. Flanagan, for the Respondent.
   The opinion of the Court was delivered by

Levy, J.

In their petition for a mandamus, the Relators, William Stevens, Charles Stevens and Wm. Taylor, residents of Plaquemines Parish, represent that, under a commitment from a Justice of the Peace of said Parish, they have been arrested and are held in custody and confinement on the charge of murder, alleged to have been committed by them on the 30th of November, 1881; that they are entitled to preliminary examination in order to show, if they can, that there is no reasonable ground for their detention and that they are entitled to he discharged or hailed; that, under Arts. 109 and 126 of the Constitution of the State of Louisiana, and also under Section No. 1010 of the Revised Statutes of said State, the District Judge of the District in which said capital crime is charged to have been committed, alone has jurisdiction to hold said preliminary examination and to discharge or hail Relators; that they have applied to the Hon. A. E. Livaudais, Judge of said 24th Judicial District Court for said Parish, to hold said preliminary examination, to inquire into the matters with which they are charged, and to hail or discharge them, if in such examination there he found no reasonable grounds for their detention; that said Judge has declined and refused to hold said examination. They allege that said Judge has sole jurisdiction to hold this examination for the purposes aforesaid, and his refusal to do so subjects them to confinement, without hearing, until the next regular term of the. District Court for said Parish, on the 3d Monday of March, 1882; wherefore, they prayed for a writ of mandamus, ordering said Judge to hold said examination. It was ordered by this Court that the defendant comply with the prayer of the petition, or show cause to the contrary, on the 9th of December, 1881.

For answer, the Hon. District Judge averred, that the Relators are confined, as alleged by them, under a commitment issued by P. E. Derry, Justice of the Peace for 8th Ward of said Parish of Plaquemines, on the affidavit of the Coroner of said Parish, charging the crime as alleged.

• That the said Justice of the Peace, or any other Justice of the Peace of said Parish, has criminal jurisdiction mall cases, under Art. 126 of the Constitution of Louisiana, and that there is nothing in said article limiting or restricting their jurisdiction as examining and comgnitting magistrates, in all criminal cases; their power to bail or discharge alone being limited or restricted to certain cases; that holding “ preliminary examinations ” forms no part of the duties of a District Judge, under the Constitution and laws of the State; that See. 1010 of the Revised Statutes is not in force and has no application to the existing judicial system, and that to hold said examination would interfere with the term of his Court now being held in another Parish of his District. He further objects that this is an attempt to force upon Mm the duties of a committing magistrate, in a case upon the merits of which he will he called to sit and decide, with the aid of a jury, in the exercise of his original jurisdiction as District Judge.

Art. 109, of the Constitution of 1879, declares that the District Courts shall have unlimited original jurisdiction in all criminal matters.”

Art. 126 declares, that Justices of the Peace shall have criminal jurisdiction as committing magistrates, and shall have power to bail or discharge, in cases not capital or necessarily punishable at hard labor.”

The last article plainly expresses that the duties of committing magistrates fall under criminal jurisdiction, aud Article 109 confers unlimited criminal jurisdiction ” on the District Courts, thus comprising that feature within such unlimited jurisdiction.

We consider Section 1010 of the Revised Statutes of 1870, as being in force so far as the powers of the District Judges in criminal matters are concerned, and is, in those respects, unrepealed, not being inconsistent with the letter or spirit of the Constitution. Whatever other powers, as committing magistrates, may be conferred upon Justices of the Peace under the phrase, “ they shall have criminal jurisdiction in crimiilal cases,” it is plain -that, under the succeeding phrase, they have no power to bail or discharge in cases capital or necessarily punishable at hard labor.” The sole object of a preliminary examination being' to determine whether a party shall be discharged, bailed or held in custody, it would be absurd to have such examination held before a Justice of the Peace, in cases in which those magistrates would have no- power to- determine those questions. Such could not have been-the intention of the Constitution, the proper construction of which accords -with pre-existing" laws, requiring" preliminary examinations, in such cases to be held before the District Judges, who have full power in the premises.

The objection urged, in regard to interference with a sitting- court., strikes us as merely an argument ab inconveniente, and is. entitled to no. serious weight in a case like this, especially as the Relators, themselves, ask that the examination may be held on a day to be fixed by the-Judge, »nd it is to be presumed that would be done within such reasonable delay as in the sound discretion of the Judge would be deemed proper.

The abjection that the Judge cannot be called upon to hold a preliminary examination in a case where he would have to sit and decide-on its final trial, is wholly untenable. Otherwise, for the same reason, Article 115 of the Constitution, which provides that, “the District Judges shall have power to issue writs of habeas corpus-, at the instance of all persons in.actual custody, iu their respective Districts,” would be inoperative.

It is therefore ordered, adjudged and decreed, that the alternative-mandamus issued herein be made peremptory, at costs of the-respondent.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 8025.
    Peter Marcy vs. Charles Praeger Et Als.
    The sureties of a sheriff who hare limited their liability when signing the bond, cannot be held responsible beyond the amount specified.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J,

      T. Gilmore & Sons, for Plaintiff and Appellant:
    1. The obligations of sureties in the official bond of a defaulting sheriff are identical with those of the principal. His obligations are to be considered as transported into the bond in their entirety, and bind the sureties for specific performance iu the same manner as he is himself hound by law. Schmidt vs. Hew Orleans, 33 A. 19,

      •52. The amount of the bond is a common fund for the common benefit of those whose funds have been illegally used «or converted, and should be distributed among the different creditors, according to their several i>riorities. -One -ci editor cannot, by an individual suit, appropriate to himself the -entire benefit of the -security and exclude all others; nor can payment to such creditor operate as a discharge to the surety. Pollard vs. Bailey, 30 Wall. 527 ; Terry vs. Tittle, 101 XL S. 21tí; Dougherty vs. Peters, 2 Bob. 534.
    5. The surety could have protected himself against the payment by a petition in tlie nature of a bill of interpleader. Story Eq. Jur. Sec. 824; Portier vs. Slidell, 7 E. 398; Hale vs. Wells, 3 A. 504; Haugherty vs. Thiberge, 24 A. 443; Baker vs. Pagaud, 26 A 229.

      4. There is no right of division between sureties so bound -as against the creditor. City of Hew Orleans vs. Waggaman, 31 A. 299,
    5. The proof is insufficient to sustain the defense.

      W. 8. Benedict, for Defendants and Appellees.
   Tlie opinion of the Court, was delivered by

Bermudez, C. J.

This is an action against two of the sureties of a defaulting sheriff. Their defense is, that they have already, as such, paid under judicial coercion, more than the amount for which they respectively signed the bond. There was judgment in their favor and the plaintiff has appealed.

In this Court, he complains that the appellees have completed the transcript, which was deficient hy their fault, and he claims that we should ignore the supplement.

The appellant also complains, by bills of exception, that the two sureties were permitted hy the lower court, during the trial, to file and set up special pleas, which were not of payment proper, but only of discharge.

On the merits, he insists that, even if it were true, which is denied, that the sureties have paid, as they say they have, they are still liable to him, because they have paid without authority, as they could and should have protected themselves against payment, hy a petition in the nature of an interpleader, and because they clo not enjoy the privilege of division against him.

1st. We are at a loss to perceive why the plaintiff can complain of the completion of this defective transcript which he has brought up. The clerk’s certificate attached to it does not show that the appellees were called upon for the production of the records and documents which were submitted by them as evidence, in the lower court, and which had been left out hy him. The appellant does not charge that the additional transcript is in collect in any particular, but merely objects to it in toto. It ivas procured on the sworn application of the appellees, seasonably made, under the mandate of this Court, and was properly attested and transmitted. We see no reason, a diminution of the record having been suggested and acted upon, and the sufficiency or authenticity of the supplemental transcript not being assailed, why we should exclude an important element for the determination of this controversy, particularly, as in furtherance of the ends of justice, we might otherwise have to remand the case, or to suspend our action upon it, until the completion of the transcript.

2d. The lower court sustained plaintiff’s objections to the introduction of evidence by the defendants, tending to show exoneration by reason of payment, on the ground that the averment under which the proof was offered, was too vague and insufficient, in not stating the date, mode and amounts of payments, and the names of the persons l>aid; but the Court overruled the other objections, which were predicated on the theory, that the sureties were unconditionally liable, without reference to the limited amount for which they had subscribed the bond, and that they could not avail themselves of such payment as against the plaintiff.

The sureties had first pleaded generally, in their answer, without going into details, that they had paid under execution, as sureties, the full amount of their liability on the bond; but when, on the trial, they offered to introduce proof in support of the averment, plaintiff objected and the Court ruled as stated. Then it was, that the sureties obtained leave to file a special defense, setting forth the particulars called for, and which had not been embodied in the answer.

By permitting the sureties to satisfy plaintiff’s technical demands, it. would seem that plaintiff should have had no occasion to complain. Indeed, he was thereby furnished with the information which he desired. Had he pleaded surprise, and applied for a continuance to prepare in rebuttal, and had the Court refused his motion, he might be entitled to complain j but he has not done so and cannot, therefore, be heard. The pleas are such as could be set up, in exoneration under the circumstances, at any stage, during the progress of the trial.

In other respects, the Court ruled correctly, as the remaining objections went, not to the admissibility, but to the effect of the evidence, the case being on its merits, and the <piestion of law raised not being free from all doubt. It was safer for the Court and for the parties to receive the evidence, as was done.

Having thus disembarrassed the case from those preliminary objections apparently calculated to retard its determination, we< will now proceed to consider it on its merits.

Merits.

A review of the evidence satisfies us that the sureties have paid, under execution, more than the amount for which they respectively signed the sheriff’s bond, $5,000. -Although the plaintiff claims that such is not the fact, still he has not assumed to figure out any error of calculation ."by tlic defendants. The proof offered consisted of the writs and of the returns on them, showing satisfaction by the sureties; of different amounts, aggregating more than the sum which they had assumed eventually to pay under the bond. The sheriff was the ■ officer of the law authorized to coerce payment. He was the legal agent of the judgment creditor, whose title has remained unassailed.

.The objection that, from the fact that the defendants could have testified as to the payment, and have not done so, it must be inferred that the payment did not take place, has no force. The defendants had offered the best evidence in their power, and of- which the case admitted. It had not been attacked and required no corroboration.

The plaintiff further contends: that the obligations of sureties, in the official bond of a defaulting sheriff, are identical with those of the principal, whose obligations are considered as transported into the bond, and bind the sureties, in the same manner as he is himself by the law.

In support of this proposition, he refers to 33 A. p. 19, which, far from sustaining absolutely that doctrine, is clearly destructive of it, so far as it may be sought to saddle upon sureties a liability beyond that specially assumed and restricted by them in the bond.

That authority expressly recognizes that a surety stipulating the extent in amount of his liability, under the special permission of the law, on a sheriff’s bond, cannot be held, under any contingency, beyond that limited amount.

In the case of the Teutonia Bank vs. Wagner, 33 A. 734, the liability of sureties on a similar bond was thoroughly considered, and, we think, finally adjusted. It was there distinctly announced, that no liability judicially liquidated against the principal, can be enforced against each of the sureties, beyond the limited amount for which each agreed to, and did bind himself.

The plaintiff moreover claims, that the amount of the bond is a common fund, for the common benefit of those whose funds have been illegally used or converted, and should be distributed among the different creditors, according to their several priorities, or rank; that one creditor cannot, by an individual suit, appropriate to himself the entire benefit of the security and exclude all others; and that payment to such creditor cannot operate as a discharge to the surety, who could have protected himself by an interpleader.

We have reviewed the authorities to which the plaintiff has invited our attention. The common law authorities are not in point, and would not be entitled to much weight under our peculiar system of practice.

The authorities contained in our local jurisprudence have no bearing on the matter under consideration. On the contrary, we find in 2 R. 537, which was a case somewhat similar to the one at bar, in which a like pretension had been raised, that the Court ruled adversely to it, saying : The law has not provided for a concurso, in a case like the present one.”

It may well be that our system is deficient in that particular, although we do not perceive that it is. It may be, that in such cases, the liability of the sheriff and his sureties, after being liquidated, should not be enforced, until after opposition shall have been made to the discharge of the principal and the oppositions referred, for determination, under theprovisions of Act of 1877, p. 20; R. S. 358, et seq. and 3729; but, in the absence of such legal q>rovision countenancing the position of plaintiff, we do not feel authorized to decide that the sureties have prematurely and illegally paid, and should be subjected to another payment, in the teeth of their limited responsibility, evidenced by the very contract of suretyship relied upon by the creditor.

' Ruling differently from what we do, would be to violate the elementary and fundamental principles in matters of suretyship, which prohibits that sureties be held under different or more onerous conditions than the principal. Lex mcjilantíbus favet. ■

Finding- no error in the judgment appealed from, it is affirmed with costs.

Rehearing- refused.


author: Fenner J.

text:
    No. 7166.
    Widow J. P. Chapuis vs. T. S. Waterman.
    Damages granted by tbe court for the illegal seizure of plaintiffs property, after notice given to tbe seizing creditor that tbe said property did not belong to tbe judgment debtor, but to tbe plaintiff.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      A. Brieugne, for Plaintiff and Appellee:
    1. If the property of A be seized under proceedings authorizing the seizure of that of B. it is a, tortious act. Tbe right of plaintiff arises under that article of our Code which declares ‘‘ that any act whatever of man, that causes damage to another, obliges him by whose fault it happens, to repair it.” C. C. 2315, 2316; 5 B. 116; 9 It. 367; 12 B. 20; 4 B. 39, 136; 6 B. 385; 4 A. 201; 7 A. 524; 17 A. 21; 8L. 33.
    2. Plaintiff in execution must, at his peril, avoid seizing under execution property not be- ' longing to defendant; it is not enough to presume it his on strong grounds ; he must know it. Duperon vs. Tan Wickle, 4 B. 39.

      3. The measure of damage is the amount of loss the plaintiff has sustained, and the profits he has been deprived of by the acts of the defendant, It. C. C. 1934, §3, and the general rule of our law is, that the reparation must be equal to the injury. 4 A. 440 ; 13 E. 79, 534; 10 A. 753 ; 11 A. 253 ; 28 A 340; 29 A. 516.
    4. Much discretion is left to the court and jury in the assessment of damages for offenses and quasi offenses, 17 A. 19 ; 18 A. 26; and they have discretion to assess damages for a quasi offense without proof of their exact amount. 17 A 19 ; 15 A. 133.

      Albert VoorhieSj on same side.

      Braughibj Buelc & JDinlcelspielj for Defendant and Appellant:
    1. Where a debtor is continually in possession of, and controls personal property to the knowledge and with the consent of the owner, damages for an illegal seizure in such cases cannot be recovered. Benjamin, Sales, 393 et seq.
    2. Malice is always the essential element in a suit for punitive or vindictive damages, and where this ingredient is wanting, nothing save a bare indemnity will-be allowed. 11 E. 288; 3 L. 523 ; 7 A. 519 : 13 A. 116.
    3. The courts will carefully scrutinize the testimony on which actions for damages are the essential features, and where it is manifest that the party plaintiff is attempting to impose false testimony, in order to inflict serious damages, and the claim, in the main, is thus composed. Courts will not listen to those statements, but will leave the parties where their own bad conduct has placed them, and not protect them by maintaining and upholding mere illusions. 13 A. 445.
    4. Where lawyers’ fees have been prayed for in an injunction suit, and the judgment of the court refuses to grant them, they cannot again be urged in another action, and the judgment allowing them is clearly erroneous. 1 McG-loin, 124.
    5. Where one, acting in good faith, seizes the property of another, who, by his conduct, creates a reasonable belief that it is held in his own name, to shield it from the true owners’ oreditors, such party cannot ask the expenses of a litigation, to some extent in- . vited, to bo reimbursed in damages. 11 A. 688.

      J. Wcvrd Gurley, Jr., on same side.
   Tlie opinion of tlie Court was delivered "by

Fenner J.

This is an action for damages for the illegal seizure and detention of property of plaintiff, under an execution upon a judgment of defendant against A. M. Mir.

Mir had been the proprietor of a soda-water and cake stand, kept under privilege granted by the city, upon city property adjoining the French Market.

Waterman had supplied Mir with soda-water, for which the latter became indebted to Mm in the amount of one hundred dollars, and for said sum Waterman sued and obtained judgment against him. He caused a writ of fi. fa. to issue and was proceeding to seize the soda stand and its contents, when he was notified by Mrs. Chapuis, the present plaintiff, and the mother-in-law of Mir, that she was the owner thereof, under a purchase by notarial act, from Mir, executed not long before. Finding that Mir had remained, and was then in charge of the business, after the sale as before, and that no perceptible translation of possession had taken place, and considering the relationship between tlie parties, Waterman, upon the advice of Iris counsel, disregarded this notice and directed the seizure to be made at all events, after furnishing the bond of indemnity required by the constable. The goods in the stand were seized and removed by the constable and the stand itself was placed in charge of a keeper.

Mrs. Chapuis then brought an injunction suit, asserting her title to the property and restraining its sale, which, after contest, was finally decided in her favor. Immediately upon the rendition of this judgment, after a maintenance of the seizure for 367 days, Waterman released it, restored Mrs. Chapuis to the possession of the stand and of all its contents, except cakes, candies and other perishable articles which had become valueless.

The privilege from the city was paid for at the rate of one dollar and half per day. The shed, stand and other fixtures, cost, according to the estimate of some witnesses, $75, and according to Mir’s statement, about three hundred dollars. The contents of the stand, consisting of cakes, candies, chewing and smoking tobacco, and like articles, with boxes, glasses, etc., were worth, under the claim of plaintiff, in her petition, $350; but, according to the positive statement of the officers who seized and inventoried them, not more than fifteen or twenty dollars. In order not to damage the privilege, by its suspension during- the seizure, Waterman obtained permission to carry on the business and employed a man for that purpose, who kept up a stock similar to that of plaintiff and kept the stand in operation, resulting.in a nett loss to him of about $100. The price alleged to have been paid by Mrs. Chapuis for the entire concern, including a stock more valuable than that on hand at time of seizure, was one thousand dollars. After her purchase the same had been offered for sale to another person by Mir, for eight hundred dollars, and after release of the seizure, it was actually sold by her at auction for the nett sum of $284.

For the seizure of such property, and interference with such business, under circumstances presenting every element of probable cause and excluding every suspicion of malice or evil intent, the plaintiff in this suit claims the sum of $14,573, as damages.

We will first dispose of several legal questions contested between the parties.

1st. The fact that the dealings between plaintiff and Mir were such as reasonably to induce the defendant to believe that the property continued to belong to his judgment debtor, cannot exempt him from liability for proper damages, under the circumstances of this case. Had he seized without notice of the sale to plaintiff, he might possibly, (though we do not so decide), have been exempt up to the date of such notice. But, having been advised of plaintiff’s title and put on his guard, lie acted at Iris peril wlien he disregarded it, and must abide the consequences. Duperon vs. Vanwinkle, 4 R. 39.

2d. Plaintiff is entitled, as damages, to attorneys fees paid in the injunction suit to prevent the sale and secure the return of her property. Given vs. White, 29 A. 517; Dyke vs. Walker, 5 A. 519; Willis vs. Scott, 11 A. 1032.

The plea of res judicata against this item is not founded.' She claimed no damages in her injunction suit, and they were, therefore, not disallowed by the judgment therein.

3d. She is not entitled, as damages, to attorney’s fees in prosecuting the present action. 19 La. 357; 13 A. 449; 14 A. 311, 757, 826; 10 A. 563; 13 A. 342. ■

4th. Loss of profits, not speculative in character, but resulting from the stoppage of business by a seizure, is a proper element of damages.

Nothing remains but a mere question of quantum.

The District Judge allowed plaintiff four hundred and fouiteen dollars, of which both parties violently complain.

After a patient and minute study of a vast mass of testimony, conflicting at every point, and subjecting the whole to the tests of reason, probability, and conformity to ordinary experience, we are unable to reach a conclusion differing from that of the Judge a quo, with sufficient certainty to justify us in disturbing his judgment.

Judgment affirmed, at appellant’s cost.

Rehearing refused.


text:
    No. 8464.
    The State of Louisiana ex rel. Frank Thomas vs. Chs. A. Bruslé, Sheriff.
    A habeas corpus will not issue where the. piiscner, who had furnished bail before the committing magistrate, for his iippeajanee before the Listnct Court, presided over by the same officer, is ordered by the latter, after a tine bill ior manslaughter has been found, to be confined, and refuses to furnish a new bend. It requires no proceeding to authorize the Judge to issue such an order, which is in the nature of a bench warrant.
    A PPLICATION for Habeas Corpus.

      Barrow tb Pope, for the Petitioner.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a habeas eoipus.

The Relator substantially avers that, after a preliminary exaniillation oil a charge made by affidavit against Mm, of having assaulted, shot and mortally wounded one Jack Talbot, who since died from the effects of the wound, the District Judge held him to answer a charge for manslaughter, hut allowed him the privilege of hail, requiring a bond of $250, which was furnished ; that subsequently, the grand jury having found a true hill against him for manslaughter, he was arraigned and pleaded not guilty; that afterwards, the case was continued once and more; that the presiding Judge, after the last continuance was granted, ordered, on the suggestion of the District Attorney, that the-Relator he committed and held in custody, directing that he he released on furnishing a bond for $250 ; that, on Ms failing to give such bond, he was and still is committed; that the action of the Judge is unwarranted by law or the facts of the case; thatthe imprisonment is illegal; that the Judge had no right to deprive Relator of the benefit of the bond already executed, without a new charge, some proceeding, evidence and a hearing, if lie could consider the case at all; that the order invades his rights and is oppressive; that he should be restored to liberty. He prays for the usual relief. His counsel was heard in support of the application.

The offense charged not being a. capital one, the right of the Relator to he admitted to hail was undisputable and is acknowledged. Const. Art. 9.

The complaint is not that the bond required is excessive, hut that it was demanded without warrant oflaw, exparte, and without a charge based on new facts, without a hearing, and without evidence on the charge.

The bond furnished by the accused after the preliminary examination, was required to secure his appearance at the next District Court. R. S. 1010, § 3. Any insertion in the bond for any further or different appearance, was unauthorized and may be considered as unwritten. On the appearance of the accused at the first term of the District Court, after he was permitted to give bond, the obligation was cancelled, and the sureties became discharged.

It is the common practice, when the indictment is returned, a true bill having been found, for the Judge to issue a bench warrant or an order of commitment in the nature of such warrant, and to fix immediately the amount of hail, precisely because the previous bond had gone out of existence. The condition of the bond given after the finding of the true bill may well be, and for good reason, conditioned for the appearance of the accused from day to day and from time to time, and until discharged finally by the court.

The first order admitting the accused to hail, to answer on a charge by affidavit of manslaughter, cannot he invoked as res judicata, so as to prevent the District Judge from requiring a new bond after the finding of a true bill.

Had the'Judge fixed atoo large amount for the bond to be furnished, the. accused would not have been without a remedy. The Judge, at the request of the accused, or on his own motion, could have reduced the amount without hearing evidence. What he could have done, to decrease, there can be objection for him to doto increase.

The significant fact of the finding of a true bill against the accused for manslaughter, and the application of the representative of the State, coupled with the knowledge previously and officially acquired by the Judge of the apparent guilt or innocence of the acc.used, made it certainly his duty to issue an order for the arrest, a bench warrant for the commitment of the accused, and as the offense was bailable, to provide for Ms release therefrom, on his giving bond in the sum of $250, which appears quite- reasonable and is not charged as excessiv e.

It was not necessary for the Judge, as a condition precedent to issuing the warrant and requiring the bond, to have initiated or caused to be initiated, any proceeding against the accused, or heard any evidence. , -

The action of the District Judge is warranted by reason and by authorities.

The Relator is in custody in the Parish of Iberville. On the face of a petition for habeas corpus, which shows that he is not entitled to the relief sought, and after hearing his counsel, who lias failed to satisfy us to the contrary, we are justified in not ordering, the defendant sheriff to produce his body and the cause of his capture and detention, which abundantly appears from the complaint itself.

Tt- would be requiring a useless ceremony, entailing trouble and expense, and of no benefit whatever to the accused.

The application is refused.


author: Poché, J.

text:
    No. 7152.
    Mrs. Mina H. Todd vs. The Piedmont and Arrington Life Insurance Company.
    The receipt of the Insurance Company for the plaintiff’s draft, furnished for the first annual premium, which is alleged to evidence a contract of insurance between the parties, con* stitutedno such contract. Yerbal evidence was admissible to show that said receipt was no contract.
    The agent of the Insurance Company could not bind, bis principal in the premises without special authority.
    APPEAL from the Sixth District Court, for the Parish of Orleans. Mghtor, J.

      D. G, & L. L. Labait and Breaux & Hall, for Plaintiff and Appellant:
    3.Where an insurance company issues the following receipt: “ Shreveport, La., July 22, 1873. $248 80. Received of Mr. G. R. Todd, draft for two hundred and forty-eight 80-1001 dollars, drawn on J L. Tompkins, of Shreveport, La., and payable on the first day of August next. This draft is given for the amount of .the first annual premium on a policy of $10,000 on his life, in the Piedmont and Arlington Life Insurance Company, of Virginia, in favor of his -wife, an application for which has this'day been made, which, if accepted as a good risk by the Company, entitles him to a policy as above named, but, if rejected, this receipt to he surrendeied and the draft returned. G. W. Terrell, General Agent;,f and it is shown, that the Company has failed to act on the application, because the General Agent lost or destroyed it and attempted to cancel the contract on his own volition without the consent of the wife, in whose favor it was made, and the insured die within its terms, before rejection and return of the premium, or a pro rata thereof, it is liable under such contract.

      % Where a contract in writing is free from ambiguity, and contains no stipulation to furnish additional documents or certificates, it is illegal to permit oral testimony to enlarge the contract or vary it so as to enable a contracting party to escape responsibility thereunder.
    3. Oral testimony is inadmissible to prove that one, not a party to a written contract, agreed to surrender, cancel or rescind it. To produce that effect, it must be shown by testimony of equal dignity with the contract itself emanating from the contracting party and not “ from the object insured.” In this case the beneficiary alone could surrender or cancel, and the evidence must he in writing.

      8ingleton & Browne and L. 8. Hays, for Defendant and Appellee:
    1. That the receipt relied on by the plaintiff is not a complete and binding contract, hut inchoate, and was so understood and received by Todd. May on Insurance, § 145, p. 130; 23 Penn. p. 72; Hannah Lee vs. Guardian Life Ins. Co., 5 Bigelow, p. 18; Cotton States Life Ins. Co. vs. Scurry, 5 Bigelow, 59.
    2. That being inchoate and executory, parol testimony is admissible to show the understanding of the parties at the time the answer was drawn. Clever vs. Kirkman, 3 Cent. Law Journal, p. 155; Pym vs. Campbell, 6 Ellis & B. 870; Rogers vs. Hadley, 2 Hurlst. & C. 227; Wake vs. Harp, 6 H. & ET. 772; 1 Bigelow, 27 and 292.

      3. That the receipt shows upon its face, that it was neither intended to he a binding receipt by Terrell, the agent, nor was it so understood by Todd, the applicant. May on Insurance, §49, last paragraph; §53; Marks vs. Hope Mut. Ins. Co., 5 Bigelow, 175; Mar-key vs. Mut. Benefit Life Ins. Co., 5 Bigelow, 180; Heiman vs. The Phoenix Mut Life Ins. Co., 1 Ins. Law; May on Insurance, § 145.
    4. That the application signed by Todd, and which Terrell expected to forward (when it was completed) contained a false answer to a question, which answer was made a warranty ; and that this answer being false, no recovery could he had, even if the policy had been issued; and if such a defense can be maintained to the policy itself, it follows that it can also be maintained, in a suit upon a mere receipt. Bliss on Life Insurance, 34 r Aetna Life Ins. Co. vs. France, 91 TJ. S. 516; Jeffries vs. Life Ins. Co., 22 Wall 47.
    5. That the failure of Terrell, agent, to forward the application, and the non-action of the Insurance Company to accept or reject, are grounds for presumption of declension rather than acceptance of application, and plaintiff was not misled. Bliss on Life Insurance, § 58; Insurance Company vs. Johnson, 23 Penn. Stats, p. 729; Thayer vs. Middlesex Ins. Co., 10 Pick. 326; Heiman vs. Phoenix Life Ins. Co., 117Mass. 528; (S. C. 5Bigelow, 175)? 1 Ins. L. Journal, 417, 418, 421.

      6. That the plaintiff alleges that the agent, Terrell, was authorized by the rules, regulations and instructions of the Company, to issue a binding receipt. It was incumbent upon her to prove it. They are in evidence and completely negative her allegations. Bliss on Life Insurance, 2d Ed. §283; Kyan vs. World Mut. Ins. Co. IV. Ins. Law Journal, 48; Hoffman vs. John Hancock Life Ins. Co., 2 Otto, 161.
    7. That the burden of proof, where no policy is issued, is upon the plaintiff. Bliss on Life Insurance, 2d Ed. 247.
   Tlie opinion of the Court was delivered by

Poché, J.

Plaintiff appeals from a judgment of tlie District Court, rejecting her demand against tlie defendant Company, for $10,000, as insurance on the life of her husband, G. R. Todd, under an alleged contract of insurance, evidenced by tlie following document:

$248.80. Shreveport, La., July 22, 1873.

Received of Mr. G. R. Todd, draft for two hundred and forty-eight 80-100 dollars, drawn on J. L. Tomkins, of Shreveport, La., and payable on the 1st day of August next. This draft is given for the amount of the first annual premium on a policy of $10,000 on his life in the Piedmont and Arlington Life Insurance Company, of Virginia, in favor of liis wife, an application for which has this day been made, which, if accepted as a good risk by tbe Company, entitles him to a policy as above named, but if rejected, this receipt to be surrendered and the draft returned.

[Signed] G. W. Terrell,

General Agent.

She alleges that, under the rules of Life Insurance, and of the defendant, such a receipt operates a contract of insurance, unless it be rejected within a reasonable time and the premium refunded; and that the defendant having failed to so reject the insurance, must be held to have accepted the same, and as liable for the sum stipulated in the contract.

After urging a general denial, the defendant specially denies having ever accepted the risk, or having ever issued a binding receipt, and alleges that the receipt sued upon was conditional, depending upon a formal acceptance by tbe Company.

Defendant further alleges, that the deceased Todd, having not completed Ms application, by reason of Ms having failed to submit himself to an examination by a physician, or to furnish the certificate of Ms family physician or the certificate of a Mend, as required by the form of the application which he had signed, said application was never forwarded to, or accepted by the Company.

And it also alleges that immediately after the signing of the application by Todd, the Company’s agent discovered that said Todd had given an untrue answer to one of the questions propounded to applicants for insurance. Whereupon said agent then and there informed said Todd that his application would not be forwarded or acted upon, and that negotiations for insurance on his life would then and there be closed, and offered to return to Todd his draft, mentioned in the above receipt, on condition of his surrendering said receipt, which said Todd had promised to do, but which was never done, the agent keeping possession of, but having never collected, the draft which he had received from Todd.

On trial, defendant offered oral testimony in support of the averments of its answer, and plaintiffs objected to the introduction of any and all parole testimony, on the. ground that the same was inadmissible to vary and destroy the purport and terms of a written contract, under which, alone, the rights of the parties in this case must be tested. Her objections being overruled, and the testimony admitted, she lias reserved numerous bills of exception, which are all to the same effect, and will, therefore, be considered together, at the threshold of our investigation.

In our opinion, the question suggested by those bills, overshadows the whole case in its importance, and its proper solution, which operates a virtual decision of the cause, involves the consideration of the following pivotal point of the controversy.

Is the receipt in question equivalent to .a contract of insurance ? A proper answer to this question requires the consideration of the two following propositions:

• 1. Whether the parties intended thereby to make a contract of insurance.

2. Whether, if so, the agent of the defendant had the power to make such a contract, and to thus bind the Company.

1. The mere reading of the receipt satisfies our minds that it was not intended as a binding receipt, but merely as an inchoate contract, or as a first step' in a negotiation looking to a future contract of insurance, to be evidenced by a policy of insurance to be issued by the Company, in case the proffered risk was accepted; in default of which, the initiatory steps thus taken were to be abandoned, and the draft and the receipt to be mutually returned and cancelled.

We -are clear that on its face, and according to its own terms, the receipt is not a contract of insurance; that it only operates what it unmistakably purports to do, that is, to lay the foundation for a contract, absolutely depending upon the consent or agreement of the Company. A proper construction of the document, leaves no doubts in our minds of the right of Todd to recover the amount of his draft from the Company, after its payment, on the failure or refusal of the Company to execute a contract of insurance, by issuing tlie stipulated policy.

If, under the terms of the receipt, the Company could be held bound under an insurance contract, it is clear that Todd could not have recovered the amount paid for his premium.

In reaching this conclusion, w'e are not only justified by the plain text of the document, but we are clearly borne out by the construction put upon such receipts by the best elementary writers on Insurance Law, and by judicial interpretations emanating from several of the highest courts in the country. May, on Insurance, H 67, 145; 5 Bigelow, page 18.

But, admitting for the sake of argument, that Terrell, the agent, did intend by such a receipt to bind his principal in an absolute contract of insurance, we are equally clear:

2. That he had no such power and that, therefore, his act in the premises could not operate as a binding contract on the Company.

He disclosed his capacity in the transaction to Todd, who knew that he was dealing with an agent clothed with limited powers.

It is well settled in law and by authority that, unless specially authorized thereto, a life insurance agent has no power to enter into contracts of insurance, and to thus bind his company. Plaintiff alleges and argues that Terrell had such authority, but the evidence proves the very reverse.

Bliss, in his valuable work on Life Insurance, treating of this subject uses the following clear and unambiguous language:

Agents of life insurance companies in this country rarely have the authority to conclude absolutely a contract of, or for insurance. The only power they ordinarily possess is to procure and receive applications for insurance to be forwarded to the company, without any authority on their part to make a binding contract. * * * The usage that an agent of a life insurance company is not given authority to conclude an agreement for insurance is so general, that if such authority is claimed to exist in a particular case, there should be affirmative evidence of such actual authority or of its repeated exercise with the knowledge of the company. And this evidence must not be merely inferential, as from the fact that the agent is designated as a General Agent, for even General Agents of life insurance companies have no such power.”

Concluding, as we do, that the receipt cannot be construed as a written contract, but considering it as a conditional agreement laying the foundation of a future contract, depending upon a clearly expressed condition, we think and we hold that parol evidence was properly admitted for the purpose of further explaining the conditions stipulated in the receipt, and of accounting for the failure or refusal of the Company to issue the policy contemplated by the receipt.

We have given due consideration to the authorities quoted by plaintiff’s able counsel in support of their objection to oral testimony touching the agent’s receipt, but we find that they each and all refer to cases where the attempt was to vary or contradict complete written contracts or binding insurance receipts, and not to cases showing an inchoate agreement, such as we are now dealing with. In the case of Trager vs. Ins. Co., 31 A. 235, so earnestly held up as decisive of the issue herein involved, the Court rejected parol testimony, offered for the purpose of contradicting a receijit of payment of his annual jwemium by the assured, which receipt was incorporated in the policy of insurance — the Company’s solemn compact. It is clear that the case has no bearing on this controversy.

- In our examination of the evidence on this point, we find it unnecessary to consider the question of the alleged untrue answers given by Todd in his application, or the alleged agreement between him and Terrell, looking to the return of the agent’s receipt.

The evidence satisfies us that Todd’s application was never completed, owing to his failure to be examined by a physician, to furnish a certificate of his family physician, and to forward the required certificate of a friend. He had been informed that those formalities wore indispensable conditions for the perfection of his contemplated contract with the Company, and in default of his compliance therewith, Terrell was not only justified in withholding the apjilication, but in forwarding it he would have done a vain thing, by which he would have violated the rules of his Company.

His acts, justified as they were by the derelictions of Todd, afford a perfect excuse for the Company’s silence on the, whole subject, and legally and logically explain the failure of the Company to formally rejeet therisk, and to notify Todd of such refusal.

Even if the aj>plication had been forwarded to, and received by the Company, its silence coidd not be construed into an acceptance of the risk. The reverse has been held in the case of Insurance Company vs. Johnson, 23 Pennsylvania, 72.

In that case) the agent was authorized to receive and forward ajiplications, the insurance to take effect on all approvable applications, the day they were taken, and the Court held substantially as follows:

The agent gave the receijit for the premium and forwarded the same with the application to the Company, if not approved by directors, money to be refunded.’ It apjieared, however, that no notice was taken of the apjilication by the Company, nor was the money refunded. And in point of fact, the Company denied that they had ever received the application. Upon these facts it was held that there -was no contract to insure, but simply a proposal forwarded by the agent, and delay under such circumstances to forward a policy or refund the money, ■even if the Company received the application, was rather ground for inference that they rejected, than accepted tbe proposal. A proposal not answered remains a proposal for a reasonable time, and then is regarded as withdrawn.” May on Life Insurance, J 58.

Considering these authorities as conclusive on this point, we must ■hold that the judgment appealed from is just and correct.

Judgment affirmed at appellant’s costs.

Mr. Justice Fenner, having been of counsel, recuses himself in this case.


author: Poché. J.

text:
    No. 8397.
    The State of Louisiana vs. Ceran Briggs.
    By the provisions of Act No. 35 of the Legislature of 1880, the Judge has the power, for the trial of cases where the penalty is not necessarily imprisonment at hard labor, to order the drawing of a special jury; and it is not necessary that such jury should be ordered for the first week of the term.
    The previous service of a copy of the indictment on the accused is not necessary for the legality of the trial, in cases not capital, or in which the punishment is less tlian seven years at hard labor.
    The State is not under obligation not to have the accused tried before the regular term of court, because the latter has furnished bond to appear at such regular term.
    The accused was entitled to a continuance in the premises, on account of the absence of a material witness. The refusal of the continuance entitles him to a new trial.
    The refusal of the continuance, involving a question both of law and of fact, the action of the lower court is reviewable by this Court. Previous Decisions affirmed.
    APPEAL from the Twelfth Judicial District Court for the Parish of Avoyelles. JBavbin, J.

      L. J. JDucoté and A.. V. Coco, for the Appellant:
    The Judge, under Act No. 35 of 1880, has no authority to elect or select a particulra’ week of the ordinary teim, during which a jury drawn is to serve, but the jury, if qrdered at all, must he for the first day of the first week of ibe term. Sec. 3d, Act 1880.
    When a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. C C. Art. 13; 21 A. 295. A copy of the indict* ment and list of jurois must be served on defendant, in all cases, two j udicial days before trial. Const. 1879, Art. 8; Const. 2d Sess., Art. Ill; K. S. 992.
    At a jury term, ordered and held, under Act No. 35, parties tried, cannot he sentenced to tbe State Penitentiary, at hard labor.
    One giving bail to appear at the next regular jury term of court, in December, cannot be called and forced into a trial at a prior term, ordered and held in September, under Act No. 35 of 1880. To bring him forcibly into court and compel him to a trial, is illegal and arbitrary.

      The bail is a formal contract entered into between accused and tbe State. It cannot be ignored. Tbe State cannot bring tbe accused into court before the time fixed in the bond, unless the conditions aie violated on his part.
    "When a prisoner has, in proper time, ordeied subpcenas to issue, he cannot be compelled to> go t o trial without them, until an earnest and vain effort has been made to bring them into court.
    "Where a reasonable doubt exists as to whether an accused has had sufficient assistance given to him to enable him to produce his witnesses, he must be given the benefit of the doubt. 31 A. 188.
    A sheriff return, 11 cannot be found,” is no return at all. 31 A. 188.
    A continuance must be granted when the prisoner’s witnesses are not present, and he has used due diligence to cause subpcenas to issue
    A new trial will be granted on the ground of after-discovered evidence. Wharton, 3161 j Waterman's Dig. p. 459, Sec. 197; Graham on New Trial, p. 463.

      J. C. JSgan, Attorney General, for the State, Appellee.
    1. Act No. 35 of 1-880, does not restrict the Judge of the District Court to any specific day on which he is to summon a special jury during an ordinary term of court.
    2. A special jury drawn for the second week of the term is in conformity with the law, and therefore valid.
    3. Petty larceny is not necessarily punishable with hard labor, and therefore falls within the provisions of Act No. 35 of 1880.
    4. The appearance bond given by accused is not a guarantee by the State that accused will not be called for trial before the day mentioned in said bond.
    5. The appearance bond is merely a security given by accused to tbe State, for his appearance in court when wanted.
    6. The court has a right to fix the day of trial prior to the date mentioned in the appearance bond.
    7. A refusal to grant a continuance presents a question of fact not reviewable by this Court.
    8. The lack of due diligence is a sufficient ground for overruling the motion for continuance by the accused.
   Tbe opinion of the Court was delivered by

Poché. J.

Appealing from a conviction of larceny, and a sentence of imprisonment for two years in the State Penitentiary, tbe defendant urges error in tbe following rulings of tbe District. Judge :

1st. In overruling his motion to quash tbe venire of jurors ordered by the Judge for tbe 3d of.October, 1881, under Act 35, of 1880.

2d. In overruling bis objection to be forced to trial before service on him of a copy of the indictment and of the jury list.

3d. In forcing him to trial, over bis objections at a term not a regular jury term-of tbe court, and while he was under an appearance bond to appear at tbe next regular jury term of tbe court, in December following:

4th. In refusing a continuance moved for, and based on tbe absence of a material and important witness.

5th. In refusing Mm a new trial which be prayed for, on the ground of newly discovered evidence.

All tbe points submitted, with tbe exception of tbe last, are incorporated in bills of exception.

1st. Defendant’s reasons, in support of Ms motion to quasli the venire, are untenable. The power of the Judge to. draw a special jury for the trial of cases where the penalty is not necessarily imprisonment at hard labor, is specially derived from. Act No. 35, of the Legislature of 1880, passed in furtherance of the provisions, of Art. 7 of the Constitution. ...

The argument that such jury should have been ordered for the first week of the term, and not for the second week, as was done in this instance, has no force in reason or in law. Nothing in the act contains such a restriction on the discretion of the Judge in the premises, and we hold that under the law, the District Judge has the power to order a special jury for the trial of that class of cases, for any week, day, or part of the term of his court, other than a regular jury term, and hence the motion made by defendant was properly overruled. ■

2d. The objection to being forced to trial without a previous service on the accused of a copy of the indictment, has no better foundation.

Such service is required by law only in capital cases, or on charges for crimes punishable at hard labor for seven years and upwards. R. S. Sec. 992.

We see no force in defendant’s argument that shell service, in a case of larceny, is rendered imperative by Art. 8 of our Constitution, which provides that, “ In all criminal prosecutions, the accused- shall enjoy the light to be informed of the nature and cause of the accusation against him.”

This clause must be construed together with, and by reference to, the clause in Art. 5, of the Constitution, which provides that “ prosecutions shall be by indictment or information,” and has reference to the clearness of the charge which must be set forth in the indictment or information, and it is intended to secure to the accused the right of not being forced to trial previous to arraignment under the charge or accusation brought against him.

■ We see nothing in the clause which justifies the conclusion that it was intended to repeal Sec. 992 of the Revised Statutes, as the law which regulated the cases, in which alone a copy of the indictment was to be served, when the present Constitution was framed and adopted, and we therefore fail to discover any. conflict between the two provisions, which both co-exist and both secure distinct rights to the .accused.

3d. The offense charged against the defendant is punishable with imprisonment in any parish prison or in the penitentiary at the discretion of the court for not inore than two years,” and as it is not an offense the penalty of which is necessarily imprisonment at hard labor, it is clearly covered by, and can legally be tried and disposed of under the provisions of Act No. 35 of 1880; and this case cannot be excepted from the operation of the law, because the accused was under a bond to appear at the regular jury term in December, 1881.

The argument of the defendant’s counsel that the execution of such a bond operated as a contract between the accused and the State, under which the State was debarred of the right of calling him to trial at an earlier date, is not serious, and cannot be entertained for a single moment. The bond must be construed as having been furnished and accepted, with reference to the provisions of the Constitution and laws of the State touching the trials of such cases; and under which it must have been known to the accused, that his trial might, in the discretion of the District Judge, be ordered to take place at another but a regular jury term, and that in his own interest, to secure him a speedy trial, the Judge had the power to fix an earlier day for his trial.

In the case of the State vs. White, recently decided at Shreveport, not yet reported, we had occasion to examine into, and to fully consider the provisions of the Article of the Constitution, and of the law, now under consideration; and to explain the object proposed by that legislation, as well as the means pointed out for its execution. Both on principle and on the authority of that case, we must uphold the District Judge in trying the accused under the provisions of Act 35 of 1880.

4th. Defendant’s motion for a continuance was supported by his affidavit, in which he set forth the absence of an important witness, the facts which he expected to prove by him, and their materiality, the fact that he had used due diligence to secure his attendance, and the belief that he could procure his attendance at the next term of the court.

The record shows that the case was fixed for trial on the 26th of September for the 4th of October following; that on the 28th of September, a subpoena for the witness was obtained by defendant’s counsel, and placed in the hands of the sheriff, and that on the day of trial the sheriff returned on the subpoena thus issued, as follows: “James Asliip is out of the Parish: ” and that the application of the accused for continuance was refused by the court on the ground that the mover had failed to show due diligence.

In our opinion this ruling was erroneous, and lias done injustice to the accused. The facts which he sets forth to be in the knowledge exclusively of the absent witness are very material to his defense, and would doubtless, if proven, have had great weight on the minds of the jury. He had obtained a subpoena for the witness by whom he expected to make out that defense, and it was only on the day and at the moment of his trial that he discovered the absence of the witness, and the failure of the sheriff to summon him. Nothing in the subpoena, or in the sheriff’s return or even in the whole record, showing whether the accused was a resident of, and present in, the Parish at the date of the subpoena, but it was the duty of the sheriff to have consulted with the accused or his counsel, and to have ascertained the exact place of residence of the witness. From the language of the sheriff’s return, we infer that the witness was a resident of the Parish, but absent at that the time that the officer tried to summon him; and in the absence of any proof to the contrary, we must conclude that he was a resident of the Parish, and that the accused was entitled to the benefit of his testimony, of which he has been illegally deprived.

It may be that the witness would not have testified as claimed by the defendant, but his affidavit is full and clear, and stands uncontradicted, showing grounds entitling him to a continuance. Wharton Crim. Law, § 3021; State vs. Boitreaux, 31 A. 188.

The Attorney General contends in his brief, that the refusal to grant a continuance involves a question of fact which is not reviewable by this Court, and he quotes an authority which partially bears him out. 23. A. 559.

But even in that case it is admitted that the question presented is one of law and of foot. Such is the case in the question now before us.

The question of law is, whether the defendant was entitled to a continuance under the showing which he made.

The question of fact turns upon the means or steps taken by the accused to secure the attendance of his witness.

In the case of the State vs. Nelson, 32 A. 842, we held, after an exhaustive review of all the authorities on this vexed question, that we were authorized, and could be required, to review all questions involving the manner of trial of an accused, when the question of law presented on appeal was intimately blended with facts, and when the latter were incorporated in a bill of exception. And we subsequently applied this rule to questions of refusal of continuance by the Judge of the lower court. State vs. Hornsly, 33 A. 1110; State vs. Moultrie, 33 A. 1146.

In the last case quoted, we reviewed the action of the Judge in refusing a continuance, and while we recognized that the question was left largely to his discretion, we' ruled that he had unwisely exercised his power, and reversed his ruling.

See also State vs. Trivas, 32 A. 1086, in which the power of this Court to review the action of the District Judge on questions mixed with law and facts was considered and reaffirmed.

Our conclusion is, therefore, that the accused was entitled to his continuance. This conclusion obviates the necessity of passing on his motion for a new trial.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed, and the verdict of the jury set aside, and that this case be remanded to the lower court to be proceeded with according to law and to the views herein expressed.