author: Morgan, J. Wyly, J.,

text:
    No. 3500.
    William McCubbin, Tutor, v. Samuel Hastings.
    This suit is instituted by the husband of the deceased and the father of her child, a minor, against the defendant, a druggist, to make him responsible in damages for the death of this woman, the allegation being that the prescription was improperly compounded. The damages are claimed in his name and that of his child. His damages, if he is entitled to any, is the amount expended by him for medical and other services subsequent to the giving of the noxious enema and for the funeral expenses. The right to damages bn the part of the child is that which he inherits from his mother.
    The defendant’s exception to plaintiff’s demand, on the ground that the petition disclosed no cause of action, was a peremptory one and could be pleaded at any time during the pro-gress of the trial. The grounds on which the exception rested were, that it was not alleged that the damage complained of was suffered through the fault of the defendant, and such allegation is necessary before that fault could be proved; and also, because. plaintiff did not state that defendant, as employer, might have prevented the act which caused the damage, and did not do it.
    Defendant excepted to the order allowing plaintiff to amend on the aforesaid points. The ' exception can not be maintained. Amendments are always allowed in the discretion of . the court.
    The demand is the test to interrupt prescription, and not the sufficiency of the allegations which support it.
    If the allegations were sufficient to imply fault on the part of defendant, the use of the very word itself was not necessary to fix the responsibility on defendant. If he could have prevented the act, as is alleged, and did not, he was necessarily in fault.
    The clause in which plaintiff, as tutor of the minor, claimed ten thousand dollars damages suffered by said minor personally, in the loss and deprivation of the care, education, assistance and love of his mother was, on motion, properly struck out by the judge a quo.
    The action, so far as the minor is concerned, is the right of action which his mother had against the defendant for the suffering that was caused her by the defendant’s employe, and which he inherited. He has no claim against him for the loss which he suffered through his mother’s death.
    The judge a quo erred in striking out the clause in which plaintiff, in his individual capacity and on his own behalf, claims damages for actual expenses, loss of the assistance and .'services of his wife in business, and for personal sufferings in mind for the loss of his wife, caused by said criminal mistake. Defendant is responsible for all the expense and damage which plaintiff suffered subsequent to the giving of the enema.
    Defendant’s objection on the ground that the certificate of death given by the physician ■states that the woman died of yellow fever, and that the plaintiff caused it to be published in the newspapers, is not well founded. In so far as the certificate is concerned, that was no act of the plaintiff’s. As regards the notice, she might have died of the yellow fever, and still her death from that disease might have been caused by the enema. Although very ill, the deceased had at least one chance for her life, which was taken away by the fatal ministering ot a violent substance.
    Although absent from the city, the defendant was nevertheless responsible for the act of his . servant. Admitting the competency of the servant, the responsibility of the employer would be none the less.
    APPEAL from the Fourth District Court, parish of Orleans. Tliéard, J.

      Eornor & Benedict, F. W. Balter, Cotton & Levy, for plaintiff and appellant. James McConnell, for defendant and appellee.
   Morgan, J.

On Monday the twenty-sixth August, 1867, the wife of William McCubbin was attacked with yellow fever. A physician was immediately called in, and the patient was placed under the charge of a nurse.

On the Wednesday following she was quiet. About one o’clock of that day the physician ordered her an enema. We are satisfied from the evidence that the enema as ordered was to have been composed as follows: Sulphate of quinine thirty grains, mucilage of gum arabio four ounces, camphor water four ounces, Batley’s sedative solution, thirty or sixty drops, to be administered one-half as soon as received, the other in an hour after. We ascertain the component parts of the prescription from the testimony of the physician, as the prescription itself could not be found in the defendant’s shop where it should have been kept. The prescription was ordered by the physician to be compounded at the defendant’s shop. The husband of the deceased took it there. He handed it to an employe. After it was compounded he purchased an injection pipe, paid for both, and left. He gave them to the nurse. She administered a portion of it. The effect seems to have been instantaneous. It threw the unfortunate woman into spasms and convulsions, causing her to purge and vomit at the same time. The attending physician was immediately sent for. He could not be found, and only reached his patient late at night. He did all that his science allowed him to do for her relief. He called in another physician. Their efforts were fruitless. Two days after the patient died.

This suit is instituted by the husband of the deceased and the father of her child, a minor, against the defendant to make him responsible in damages for the death of this woman, the allegation being that the prescription was improperly compounded.

The evidence leaves no doubt on our mind that spirits of camphor was substituted for camphor water; that the sufferings of the woman, which are shown to have been intense, were caused by this mistake, camphor water being a very innocent preparation; spirits of camphor being a decoction of camphor and alcohol; and that it contributed to a large extent, if it did not absolutely cause the death of the patient.

The prescription was not compounded by the defendant. At the time it was put up he was not in the city. The clerk had not been employed by him. His services had been engaged by his brother. The defendant is none the less responsible for his acts. The employment was authorized, and his responsibility for the acts of his employes can not be disputed.

The case was twice tried before a jury in the Fifth District Court. It was then, by consent, remanded to the Fourth District Court and submitted to tlie judge alone. He decided in favor of the defendant, and the plaintiff has appealed.

In his own name plaintiff claims damages for the necessary expenses incurred by him 'consequent upon the death of his wife, for the loss of time it occasioned him, from the loss of his wife’s services, and for the wrongs inflicted upon his feelings.

As tutor to his minor child he claims that, from the agonies endured by his wife she suffered heavy damages, and that her right of action therefor has been transmitted to her heir, and that her death, which he lays at the defendant’s door, having deprived the child of a mother’s care, he is responsible in damages on that account. The aggregate amount claimed from the defendant is $35,000.

His damages, if he is entitled to any, is the amount expended by him for medical and other services subsequent to the giving of the enema, and for the funeral expenses.

The right to damages on the part of the child is that which he inherits from his mother.

The defendant filed a peremptory exception to plaintiff’s deinand, on the ground that the petition disclosed no cause of action. This exception was filed after the jury had been impanneled. The grounds upon which it rests are, first, “ because it is not alleged that the damage complained of was suffered through the fault of the defendant, and it is necessary it should be alleged to be the defendant’s fault before that fact could be proved,” and second',' “because it (the petition) does not state'that the defendant, as employer, might have prevented the act which caused the damage, and did not do it.” The exception was sustained, but the plaintiff was allowed to amend. Plaintiff excepted to the ruling of the court which maintained the exception. Defendant excepted to the order allowing plaintiff to amend. Both rulings-were correct. The exception was a peremptory one and could be pleaded at any time during the progress of the trial. Amendments are always allowed in the discretion of ihe court.

After the amendment was made, defendant then pleaded the prescription of one year. The plea was properly overruled. The demand was made within the year of the alleged tort. The demand is the test, and not the sufficiency of the allegations which support it.

But the defendant still contends that the amended petition is defective, because it d>es not allege that he was in fault. The allegations are, that the death of the deceased was caused by the negligence of the defendant’s clerk, and that he, the defendant, might have prevented the act complained of, but did not do so. If the act which caused the damage was done by the defendant’s cleik, and the defendant be responsible therefor, and the defendant could have prevented it, but did not, then clearly it was by the fault of the defendant that the damage occurred, and the use of the word fault was not a necessary allegation to fix the responsibility upon him. If.he could have prevented the act, and did not, he was necessarily in fault.

On the trial the defendant moved to strike out the second and third causes of action as stated in the petition, which were :

Second — “Also, as tutor of his minor, for ten thousand dollars damages, suffered by the minor, personally, in the loss and deprivation of the care, education, assistance and love of his mother.”

1Third — “In his individual capacity, and in his own behalf, for five thousand dollars damages, for actual expenses, loss of the assistance and services of his wife in business, and for personal sufferings in mind for the loss of his wife, all caused by said criminal mistake.”

The judge ordered them stricken out. As regards the second, his ruling was correct. The action, in so far as the minor is concerned, is the right of action which his mother had against the defendant for the suffering which was caused her by the defendant’s employe, and which he inherited. He has no claim against him for the loss which he suffered through his mother’s death. With regard to the third objection, the court erred. Defendant is responsible to the plaintiff for all the expense and damage which he suffered subsequent to the giving of the enema.

The first objection which the defendant raises to the plaintiff’s demand on the merits is, that the certificate of death, given by the physician, states that she died of yellow fever, and that the plaintiff caused it to be published in the newspapers that she died of yellow fever.

In so far as the certificate is concerned that was no act of the plaintiff’s. As regards the notice, she might have died of yellow fever and still her death from that disease might have been caused by the enema. If a pistol had been fired into some fleshy part of her body while she was laboring under an attack of fever, the ball itself might not have produced death, but the shock by aggravating the fever probably would. Under these circumstances she would have died of yellow fever, but her death would have been superinduced by the shot. So in this case. The deceased was suffering under an attack of yellow fever. It was a violent attack. Quiet and repose were of all thin"gs most necessary to her safety. She was dangerously ill, it is true. But she had at least one chauce for her life, and the injecting of this violent and exciting substance into a particularly sensitive portion of her body, took, in our opinion, from the unfortunate woman the one chance which was left to her. She died, it is true, from yellow fever, but it was the enema which made the fever result fatally.

The next ground of defense is, that defendantcan not be condemned, unless the plaintiff proves that he was some way in fault, and that he really might have prevented the act which caused the damage. In one sense it was impossible for him to have prevented the calamity, because he was not in the city. But, if a master is only to be held responsible for the act of his servant when he might have prevented the act and did not, there would be no responsibility in the principal, except for such acts as were done in his presence. If this were the law, if the driver of a carriage owned by the keeper of a public stable, wantonly ran into and destroyed the carriage of another, the owner of the public carriage would not be held responsible for the damage caused by his servant, because it was no fault of his that the other carriage was run into. If a man is run over by a careless car driver, the company in whose employ the driver is, can not be held responsible, because it was not the company’s fault. But we know that this has never been considered law, and that where injuries have occurred as the result of carelessness on the part of the employes of such parties, the principals have been made to respond in damages. He further attempts to exculpate himself, from the fact that the clerk who compounded the prescription was reputed to be a competent druggist. To a certain extent he has established this: that is to say, he has produced a number of witnesses who testify in that direction. But there is one recommendation which he did not have, and that'was a diploma. It is not pretended that he was a graduate in pharmacy from any medical institute.

• It may, however, be assumed that he was competent. The defendant’s liability would be none the less certain. The defendant is himself represented as being a most competent druggist. If he had made the mistake, would his proficiency in his calling shield him ? or would it not rather aggravate the fault? Incompetency and carelessness — and such mistakes, arise from one or the other of these causes — result in the same way. Either or both produce suffering and sometimes death. And can it be that if a physician should prescribe for .his slightly ailing patient a small quantity of calomel and soda, and the druggist were to substitute arsenic for soda, that he could shield himself from the consequences which might result, by saying, if the prescription was compounded by himself, that it was a mistake, and if the act of his servant that he could not have prevented it? The law does not place a community in the position of being poisoned by mistakes, with no one to be held responsible therefor. If it was the master who did the wrong, the master is responsible. If it was his servant who did it, he is still responsible, for the master is responsible for the acts of his servant when done in the course of his usual employment.

The last serious defense set up is, that the enema did the patient no harm. Many physicians were examined upon-this point, and cbunsel for defendant, in the very able brief which he furnished us, says: “With surprising unanimity, these physicians, every one of whom have had large experience in the treatment of yellow fever, declared the effect would have been beneficial rather than injurious.”

As we have said before, Mrs. McCubbin was taken ill on Monday, the twenty-sixth of August. On the Wednesday following the enema was administered. Up to this time the patient had been quiet. The nurse says ttiat, turning into the third day the fever began to abate and the physician said he found her much better; that he was going to order a mixture which would act like a charm, as she was not sweating freely enough. The enema came, and this is how the nurse, who administered it, describes its effects : “ As soon as I gave it to her she commenced to complain; she said, ‘Oh nurse! don’t give me any more, for God’s sake! it will kill me.’ I suppose I gave her one-third of it; she was complaining all the time. I set the cup down on the bed and called McCubbin (who had left the room at his wife’s request when the nurse was about to administer the enema) and told him the injection made her very ill. It made her that ill it threw her into spasms. She commenced throwing up and purging down, and was in great agony, but got easier afterwards.”.

McCubbin swears that, when he got up stairs, his wife was straightened out and almost black in the face, and apparently in spasms or a. fit. He says : “ I put my hands underneath her to raise her from the bed; she worked in the spasms about three minutes, and in her spasms both purged and vomited at the same moment, which seemed to give her some ease. ‘ Oh my God, Will,’ she said, ‘ what have you given me? I am all on fire! I am burning!’ And so she kept on. You-could hear her until ten o’clock at night a block off, and she had never-made a moan before.”

The attending physician was sent for immediately. It was a season of calamity. The physician was in full practice, and, hurrying as he was, from patient to patient, could not be found. Late in the night he came of his own accord. Discovering her condition, he immediately denounced the mistake which had been made; said to several who were present, and at various times, that the injection had injured her; took the bottle himself to the druggist to see whether, per chance, he had made the mistake in writing out the formula, and is shown to have said that, but for the injection,- his patient would have done well. He did all in his power to remedy the evil which had been done. Nothing that was tried for her relief succeeded. She sank gradually from the time the enema was administered until three days afterward, when she died.

When scientific gentlemen undertake to tell us, under such a state of facts, that the enema, as administered, was a benefit to the patient instead of an injury; that a substance as powerful as alcohol, in which camphor, a violent stimulant, has been dissolved, can be injected into one of the tenderest parts of the human frame, when the patient is suffering from a severe attack of such a disease as the yellow fever is,. without doing any harm, but, on the contrary, doing good, we see in our mind’s eye the unfortunate victim upon whom the experiment has been tried, as she is described by the witnesses, writhing in agony, dying, dead, and we say that that dreadful fact alone destroys all their theories; and we think that he who, by himself or those for whose acts he is responsible, caused this agony, not to say death, should be made to answer for the suffering which he caused.

As regards the damages, the plaintiff has not shown what he expended, and therefore we can give, him no judgment. As to the minor child, we think he should receive twenty-ñve hundred dollars,

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiff, William McCubbin, in his capacity as tutor to his minor child, William James McCubbin,' and against the defendant, in the sum of twenty-five hundred dollars, with legal interest from judicial demand, and costs of suit in both courts.

Wyly, J.,

dissenting. The physicians who-testified in this case all agreed that if the mistake had occurred in filling the prescription, and spirits of camphor instead of camphor water had been used, it would have improved the prescription and the result would have been beneficial instead of injurious to the patient. The opinion of experts is evidence. And according to this evidence, no injury resulted from the alleged mistake of defendant’s clerk. The case should be decided according to the evidence in the record, and from it it appears no damage was done. Besides, the proof fails to establish with legal certainty the fact that a mistake occurred. Both a mistake and an injury must be shown in order to recover. I dissent in this case.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 2931.
    Tabary & Amory v. T. F. Thieneman.
    Tbe question in this case is, whether the defendant had a right to dispose of a certain lot of cotton which he had sold to plaintiffs and whioh plaintiffs failed to receive, to have weighed, and to pay for, within a reasonable time and according to practice and the custom of trade prevailing in New Orleans, which allows only a delay of three to five days at the utmost for doiDg what is necessary to compel the execution of the contract.
    It appearing, under the circumstances of the case, that the seller was sedulous, if not importunate, in his endeavors to close the sale, and that he extended to its utmost limits, the period usual after a sale for receiving and paying, and it appearing also, on the other hand, that the buyers continued tardy and inactive until the sixth of January about receiving, and paying for the cotton which they had purchased on the twenty-ninth of December preceding, and until defendant’s patience, as he expresses it, “was at an end,” it results that plaintiffs have no right to recover what they claim to be due to them by defendants.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Breaux, Fenner <& Ball, for plaintiffs and appellants. F. Bermudez and O. F. Olaiborne, for defendant and appellee.
   Taliaferro, J.

The plaintiffs sue the defendant for twenty-five bales of cotton which they allege they purchased from him and which he has failed to deliver in pursuance of the contract. They claim damages also for the non-performance of the engagement on his part. The cotton sued for was sequestered and afterwards released under bond and sold by the defendant. Subsequently, during the progress of the suit, the plaintiffs in an amended petition, prayed judgment for $562 50 as damages arising from the failure of the defendant to deliver the cotton at the time agreed upon, and they limit their demand to this sum in damages. The answer admits that the defendant sold to the plaintiffs twenty-five bales of cotton but avers that the plaintiffs failed to cause the cotton to be weighed on his order of- delivery and to pay for it within the usual delay of three days and which never exceeds five days, without the formal consent of the factor; that defendant upon this failure of the plaintiffs to receive, weigh and pay for the cotton in conformity with commercial usage, had the right to retract and refuse to deliver it. The defendant had judgment in his favor and the plaintiffs have appealed.

A number of witnesses versed in the cotton trade and acquainted with the usages and sales by which cotton is sold in the New Orleans market, was examined on the trial of the case. They agreed generally as to the custom and practice in conducting sales of this staple, but there was less uniformity among them in their views regarding the compliance with the established custom by the parties litigant in this case.

The facts seem to be, that the plaintiffs bought the cotton on the twenty-ninth of December and defendant expressed a desire that they should receive it as soon as possible, giving to them as usual an order for the delivery of the lot of cotton purchased by them. It is shown that the defendant, from time to time, up to the fifth of January, called upon the purchasers, urging them to receive and pay for the cotton, the plaintiffs all the while deferring the matter, saying they had not had time to attend to it, that it would be received as soon as possible, etc.; and on one occasion being called upon to know when the purchasers would receive the cotton, one of them answered gruffly: “ I will receive it whenever it suits me, whenever I am at leisure. ”

On the evening of the fifth of January, however, the plaintiffs notified the defendant that they had given positive instructions to their classer ” to receive the cotton the next day, the sixth of January. On that day at ten o’clock, A. M., the defendant gave the plaintiffs notice that unless they intended to receive the cotton by twelve o’clock of the same day, he would give orders not to deliver it. The cotton was sold at the price of twenty-three and three-quarter cents per pound. A short time afterward it went up to twenty-eight and three-quarter cents. The purchase was advantageous to the plaintiffs, and there is no ground for supposing they were in bad faith in delaying to receive the cotton, however dilatory they may have been. It is contended on their part that they were entitled to the whole period of business hours of the last day within which to receive the cotton; that on the ground that the seller had the right, after the procrastination of the purchasers to receive, to give them notice of his intention to terminate the contract in the event of their failure within a specified time to comply on their part, still he should have given a reasonable time for the compliance, which they insist he did not give. It is not shown that it was impossible, or even that it would have been exceedingly difficult or inconvenient for the plaintiffs, to have gone or sent a person to the cotton press and received, the twenty-five bales in two hours’ time. The seller appears to have been sedulous, if not importunate, in his endeavors to close the sale, and to have extended the period, usual after a sale for receiving and paying, to its utmost limits. The buyers, on the other hand, continued tardy and inactive until the sixth of January, when the defendant’s “patience,” as he expressed it, “was at an end.” The short quarters then given, we think under the circumstances, the plaintiffs should have submitted to.

We think the decree of the lower court correct. It is therefore ordered that it be affirmed with costs. .


author: Ludeling, C. J. Howell, J., Wyly, J.,

text:
    No. 4985.
    State of Louisiana v. Peter Maxwell.
    This court can not perceive how a taxpayer can justly complain that the levying of a tax is unequal, because some property in the State has been omitted in the assessment, either through inadvertence or because it is supposed to be exempted by an unconstitutional law; for the effect would be the same.
    Probably there never has been an assessment which embraced all the property of the State, but that fact did not render the assessment unconstitutional. When the omission is discovered, the property must be assessed, for the constitution mid laws require that all property shall be assessed.
    Certain questions discussed in this controversy can not be considered by this court, as they do not relate to the legality or unconstitutionality of the law, but relate to questions of fact, such as whether the Auditor made accurate calculations for the purpose of the assessment for taxes, or exceeded his authority, as the amount in dispute is less than, five hundred dollars; wherefore this court has not jurisdiction for that purpose.
    The defendant can not raise the question concerning the legality of the warrants, to pay which the one mill tax is said to be levied, as the holders of said warrants are not parties to this suit; and the amount of revenues to be raised is a matter within the Legislative discretion.
    APPEAL from the Superior District Court, parish of Orleans. HawIcins, J.

      A. P. Field, Attorney General, and F. O. Bemich, Assistant Attorney General, for plaintiff and appellee. J. G. Fevereux, for defendant and appellant.
   Ludeling, C. J.

This is a suit by the State for $150 50, taxes due by defendant for the year 1871. This case is, therefore, appealable only on the ground that the tax is alleged to be unconstitutional.

The ground upon which the tax is alleged to be unconstitutional is, that “household goods, silver plate, jewelry, and mechanics’ and laborers’ tools, to the amount of five hundred dollars in each household ” are exempted from taxation. This question was decided in the case of Morrison v. Porter Larkin, tax collector, 26 An. 699. The court said, “While the exempting of the property in contravention of the constitution may be void, the levying of the tax is constitutional.” And the court said further, There is then no inequality of which the plaintiff can complain.” We adhere to the opinion then expressed. We can not perceive how a taxpayer can justly complain that the levying of a tax is unequal, because some property in this State has been omitted in the assessment, either through inadvertence or because it is supposed to be exempted by an unconstitutional law, for the effect would be the same. We imagine that there never has been an assessment which embraced all the property of the State; but that fact did not render the assessment unconstitutional. When the omission is discovered the property must be assessed; for the constitution and laws require that all property shall hie assessed. The other questions discussed in appellant’s brief can not be considered by this court, as they do not relate to the legality or constitutionality of the law, but they relate to questions of fact, such as whether the Auditor made accurate calculations for the purpose of the assessment, or exceeded his authority, as the amount in dispute in this case is less than five hundred dollars. This court has not jurisdiction in the case for that purpose. Nor can the defendant raise the question concerning the legality of the warrants, to pay which the one mill tax is said to be levied, as the holders of said warrants are not parties to this suit, and the amount of revenues to be raised is a matter within the legislative discretion. •

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.

Howell, J.,

concurring in the decree. I think we have jurisdiction of .the case in so far as the constitutionality or legality of the tax is in contestation, whatever may be the amount. Constitution, article 74.

The defendant is taxed on real estate only, and he says the tax is unconstitutional because $500 of movable property is exempted, which if included in the assessment would make the rate less.

If it be unconstitutional to exempt any portion of the movable property, it will not relieve defendant from the tax in this case, because the tax as to all other property is in accordance with the law, which is not unconstitutional in whole, but only as to the exemption, if at all. This is the principle in the case in 24 Cal. 433, cited by him. We have also applied the same principle in more than one case. And the rate of taxation is a legislative matter.

He next contends that the Auditor has not made an accurate calculation of the rate of taxation necessary to pay the interest on the bonds of the State, as he is directed to do in act No. 42 of 1871, under which this tax is levied and collected.

The legal authority of the Auditor to make this calculation is not questioned, but it is said he has levied a larger rate than is necessary. On this point I must concur with the Chief Justice that our jurisdiction depends on the amount involved in this suit. It is simply a question of fact and not a legal or constitutional power or right. If the calculation is correct, it is conceded that the tax is constitutional, and whether .it is correctly made or not is a question of fact, and the amount of defendant’s tax involved in this suit does not give us jurisdiction of the case.

I agree also with the Chief Justice that we can not declare the one mill tax, levied to pay certain outstanding warrants, illegal or unconstitutional, because proper parties are not before us.

As to defendant’s bill of exceptions, he says, all that is material or as much as he thinks necessary to his case, is in the record and annexed to his bill, and he says it will therefore be unnecessary to remand the case. The only objection made to the evidence was, that no evidence was admissible to sustain the grounds of defense as set out. In the view I take of the case, I think it unnecessary to pass on this bill of exceptions.

I concur in the decree.

Wyly, J.,

dissenting. The defendant resists the payment of his taxes for the year 1871 on the following grounds:

First — Act No. 42 of the acts of 1871, under which the levy was made, violates article 118 of the constitution, because paragraph seven of the second section thereof exempts from taxation “household goods, silver plate, jewelry, and mechanics’ and laborers’ tools to the amount of five hundred dollars, in each household.”

Second — Said act violates article fifteen of the constitution, vesting the legislative power of the State in the General Assembly, because the eighth section thereof makes it the duty of the Auditor, in order to provide for the payment of the annual interest on all the State bonds, “ at the end of each and every year, or as soon thereafter as he shall receive the assessment rolls, to determine, by accurate calculation, what rate of taxation on the total assessed value of all the movable and immovable property in the State will be sufficient to pay the interest becoming due annually on all the bonds issued by the State, or those that may be issued hereafter; and said tax, as ascertained and fixed, is hereby levied on all the movable and immovable property that may be assessed in this State.” * * *

Third — Assuming the constitutionality of the power conferred on the Auditor, he has failed to exercise it according to the terms of the law by making an “ accurate calculation ” for the purpose of raising a fund to pay the interest on the bonded debt of the State; that he has intentionally fixed an excessive rate of taxation, for purposes not contemplated in the law,. thereby attempting to extort from petitioner, in common with other taxpayers, the enormous excess of $450,000” over and above the sum required to'pay the interest on said bonded debt.

Fourth — The one mill tax levied under act No. 81 of the acts of 1872 is void, because said act is repugnant to the constitutional amendment limiting the State debt to $25,000,0(10, and also repugnant to article 114 of the constitution, the object of levying the tax not being expressed in the title.

The defendant sought to introduce evidence in support of the averments of his answer, which he clearly had- the right to do, and it was rejected by the judge on the ground “that no evidence was admissible to sustain a plea or defense to a suit by the State for taxes, founded on the alleged nullity either of the assessment rolls of the State, or of the whole or of a part of the levy of taxes; that is, on the ground of their being repugnant to the constitution of the State; or inconsistent with statutory law.”

How could the defendant establish his constitutional objection to the assessment of one mill under act No. 81 of acts of 1872 if he be denied the right to prove that the State debt exceeded $25,000,000, when the debts were contracted which act No. 81 contemplates to pay 9

How could ,the defendant, without proof, establish his averment that the Auditor has not made an accurate calculation of the rate of taxation on the appraisement of the movable and immovable property in the State, as required by act No. 42 of the acts of 1871, and that he has intentionally fixed an excessive rate, so that the total amount raised thereby will be $450,000 in excess of the sum required to meet the funded debt of the State?

It is manifest that the defendant was entitled to introduce proof in support of the averments of his answer, and that his bill of exceptions was well taken. It would be useless to cite him to trial, if he had not the right to introduce proof to establish his defense. The question is not whether his proof would be sufficient to establish .the defense; it involves a principle vastly.more important, namely, whether a defendant shall be condemned who has been denied the right accorded in every court of justice in the civilized world, the right to introduce competent evidence in his own behalf.

The fact alleged in the answer that the Auditor has intentionally fixed a tax upon defendant and other taxpayers of $450,000 in excess of the sum required to meet the interest on the bonded debt of the •State, is a fact necessary to be established by proof, in order to determine the legality of the tax The law makes an appropriation sufficient only to meet the interest on the bonded debt of the State, and requires the Auditor, as an accountant, to make an accurate calculation” and fix the rate of the tax thus appropriated.

Now if the Auditor fixes, intentionally, a tax at $450,000 in excess of this,requirement, he fixes a tax to-that extent beyond the appropriation, and it is illegal. How is the defendant to show this illegality in the tax, if he is debarred from pi oving the fact alleged by him 9

A tax, $450,000 beyond the appropriation, is jpro tanto as illegal as one wholly beyond the appropriation. And a fact necessary to estab lish the one is just as admissible as a fact necessary to establish the other. Any tax beyond the amount authorized by law is illegal, and the fact can be shown regardless of the amount involved in the suit In a tax case, law and fact are so intermingled that it is almost impossible to separate them.

But I take the position that in a tax case this court has jurisdiction of the whole case, law and fact, and this court has never heretofore held differently. The jurisdiction of this court is fixed in the unambiguous language of article 74 of the Constitution. There the plain distinction is drawn between civil and criminal cases. In the former, law and fact are both revisable, on appeal, by this court. In the latter, only questions of law are revisable. This is the marked' distinction between civil and criminal cases, so far as the appellate powers of this court are concerned. If the framers of the constitution had intended tax cases, or any class of tax cases, to be revisable only on questions of law, like criminal cases, most assuredly they would have said so when they framed article 74. In ordinary civil cases they fixed the jurisdiction of this court to appeals where the matter in dispute exceeds $500; and they extended the jurisdiction of this court “to all cases in which the constitutionality or legality of any tax, toll or impost of any kind or nature whatsoever, or any fine, forfeiture or penalty imposed by a municipal corporation, shall be in contestation, whatever may be the amount thereof; and in criminal cases on questions of law only.” * * *

In precise terms the constitution limits our appellate jurisdiction in criminal cases to “ questions of law only.” The clear implication from this express limitation is, that in all other cases it shall not apply — in all civil cases the whole case, law and fact, is revisable.

Suppose the clause in regard to criminal cases had been omitted, and it was nowhere to be found in the constitution, where would there be any limitation upon the revisory powers of this court in appeals in tax cases ? There would be none, and the whole case could be revised. Now shall we extend an exception or limitation upon the appellate jurisdiction of this court, confined in precise terms to criminal casesj to other cases? If so,'why not as well extend it to all other cases and at once break down the limitation expressly applied to criminal cases by the framers of the constitution.

The law is unambiguous and ought not to be construed to contain an exception or limitation not contained in it. There is no safety in construing an exception or limitation expressly stated to apply only to criminal cases, to other cases or to tax cases; and this court is not permitted to resort to construction where the law is clear and free from ambiguity. Eevised Code, article 13.

I therefore dissent in this case.

Eehearing refused.


author: Ludeling, C. J.

text:
    No. 5793.
    Edward J. Gay & Co. vs. Eaton & Barstow. S. Cranwill, Assignee of Defendants. John B. Behm et al., Intervenors.
    In this ease it was manifestly the intention of the parties to the agreement that the proceeds of tho property sequestered should remain on deposit until the controversy then pending should he determined, and that the money should he paid to the party winning. The sequestration haying been dissolved, the property must he returned to the possession of the party from whom it was taken — that is, the interyenors.
    APPEAL from the Fourth District Court, parish of Orleans.- Lijnch, J.

      Merrick, Lace & Foster, for plaintiffs and appellees.

      A. & W. Voor-hies, for S. Cranwill, assignee of defendants and appellants.

      Breaux, Fenner & Hall, for intervenors and appellees.
   Ludeling, C. J.

Eaton and Barstow, planters in St. Landry, were sued in New Orleans for a debt, and certain hogsheads of molasses and barrels of sugar were sequestered in tho possession of Payne, Dameron & Co. The molasses and sugar had been consigned to them for account of J. B. Behm ot al., who intervened in said suit and bonded the property. The order to bond the property was subsequently set aside by the court; and the intervenors and the plaintiffs agreed that the property might be sold and that the proceeds of the sale should be deposited in the New Orleans National Bank, which was done. The bank gave a receipt for the money, to be paid on the. order of the Fourth District Court. Eaton & Barstow, the defendants, do not appear to have taken .any interest in the contract for themselves.

The suit was dismissed for want of jurisdiction ratioue persona;. And Eaton & Barstow having gone into bankruptcy in the meantime, their assignee sued'the bank for the money in the United States District Court.

J. B. Behrn et al., the intervonors in the above mentioned suit, now .ask for an order on the bank for the money, inasmuch as the judgment of the court aforesaid is silent on this point, and the bank requires an order from the court to pay to protect itself.

It was manifestly the intention of the parties to the agreement that the proceeds of the property sequestered should remain on deposit until the decision of the controversy then pending should bo determined, and that the money should be paid to the party winning. The sequestration having been dissolved, the property must be returned to the possession of the party from whom it was taken — that is, the intcr-venors.

It is therefore ordered that the judgment be affirmed, with costs of .appeal.

Rehearing refused.


author: "Wyly, J.

text:
    No. 5394.
    Athens Manufacturing Company of Georgia vs. Thomas H. Hunt.
    Plaintiff contends that defendant wa.s an accommodation indorsor, therefore a surety, and consequently not entitled to notice of dishonor. The authorities cited in support of the position are to the effect that the obligation of one whose name was placed on the back of a note or bill before indorsement by the payee is not that of an indorser, under the commercial law, but of an ordinary surety, and he cannot avail himself of the want of notice. But this was not the ease of defendant, who was the indorsee of the payee. He was a necessary party to the .bill at tho timo plaintiff acquired it under his indorsement.
    ARPEAL from the Fourth District Court, parish of Orleans. Lynch, I.

      Albert Voorhies, for plaintiff and appellant.

      Thomas Sun ton, for -defendant and appellee.
   "Wyly, J.

Plaintiff appeals from the judgment, rejecting its demand against the defendant, who was sued as the indorser of a bill of exchange for five hundred pounds sterling, drawn by B. L. Fecklin, at Wilmington, on the seventh of October, 1874, on Messrs. C.- Joyce & Co., London, payable sixty days after sight.

The obligation of an indorser is conditional. Due notice of protest of .a foreign bill is necessary to fix the liability of an indorser.

In the ease at bar plaintiff has failed to show that defendant received proper notice of dishonor of the bill.

Plaintiff, however, contends that defendant was an accommodation in-dorser, therefore a surety, and consequently not entitled to notice of dishonor. The authorities cited in support, of the position are to the effect that the obligation of one whose name was placed on the back of a note or bill before indorsement by the payee is not that of an indorser under the commercial law, but of an ordinary surety, and he cannot avail ’him■self of the want of notice.

This was not the case of defendant, who was the indorsee of the payee. He was a necessary party to the bill at the time plaintiff acquired it under his indorsement.

In the petition plaintiff alleges that the bill was indorsed by the payee, E. G\ Westmoreland, to the order of Thomas H. Hunt, the defendant. The judgment was correct.

Judgment affirmed.

Behearing refused.


author: Howell, J.

text:
    No. 5950.
    Virginia A. Talbot, Widow of the late R. A. Porter, vs. W. H. Hunt, Testamentary Executor, et al.
    'This ease must bo decided under the provisions of the Code of 1870, the alleged legitimation having occurred since that year. Plaintiff, who claims the legitimation of her children, Has failed to show a compliance with article 198 or article 200 of said Code.
    Ttelianeo is placed on a notarial act of acknowledgment executed by the deceased on the twenty-fifth of May, 1869, five years before tlio marriage, to establish the legal acknowledgments. That act acknowledges them as the natural children of the father, but had no reference to legitimation, and the mother did. not join in it. It is not such acknowledgment as is required by article 198, Revised Civil Code, which was in force at the date of the marriage in 1871, and cannot bo taken as a compliance with article 200, as it was not intended by the father to legitimate them.
    .Article 198, which is materially changed in this respect from the corresponding article in the Code of 1825, requires that both parents must make an acknowledgment, before a notary and two witnesses, of their children, in order that their marriage shall have the effect of legitimating such children born prior to the marriage, when they are not acknowledged in their contract of marriage, and .this cannot say that the acknowledgment in this instance, made by only one of the parents, before the change in the law and with no reference to legitimation, is sufficient under the law in force at the date of the marriage, and which must control in this case.
    APPEL from the Second District Court, parish of Orleans. Tissot, J.

      W. O. Denegre, for plaintiff and appellee.

      Cottcm & Levy, for defendants and appellants.
   Howell, J.

The plaintiff, widow of B. A. Porter, deceased, sues in behalf of their minor children, to annul the will of said deceased, on the ground that the marriage of plaintiff and deceased subsequent to the making of said will legitimated their children and operated a revocation of the will and conferred on them the same rights as if they had actually been bom after the making of the will, and she invokes the case of the succession of Cabaleiro, 24 An. 573, to sustain her demand and the judgment in her favor in the lower court.

This case must be decided under the provisions of the Code of 1870,, the alleged legitimation having occurred since that year, and we think the plaintiff has faded to show a compliance with article 198 of said. Code, or article 200, which read:

“ Article 198. — Children born out óf marriage, except those who are-born from an incestuous or adulterous connection, may be legitimated by the subsequent marriage of their father and mother, whenever the latter have legally acknowledged them for their children, either before their marriage, by an act passed before a notary and two witnesses, or by their contract of marriage itself.”
“Article 200. — A natural father or mother shall have the power to legitimate his or her natural children by an act passed before a notary and two witnesses, declaring that it is the intention of the parent making the declaration to legitimate such child or children.”

The former article applies specially to this case, and by its requirements the two parents must both make the acknowledgment, by an act passed before a notary and two witnesses, or in their contract of marriage itself. There must be a concurrence of the intention of both parents evidenced in one or the other mode mentioned in this article.

It is not contended or suggested that such acknowledgment was made in the contract of marriage; but reliance is placed on a notarial act of acknowledgment executed by the deceased on twenty-fifth May, 1869, (five years before the marriage) to establish the “legal acknowledgment.” That act acknowledges them as the natural children (totidem. verbis) of the father, but had no reference to legitimation, and the mother did not join in it. It is not such acknowledgment as is required by article 198, R. C. 0., which was in force at the date of the marriage in 1874, and cannot be taken as a compliance with article 200, as it was-not intended by the father to legitimate them.

We think article 198, which is materially changed in this respect from the corresponding article in the Code of 1825, requires that both parents must make an acknowledgment before a notary and two witnesses, of their children, in order that their marriage shall have the effect of legitimating such children born prior to the marriage, when they are not acknowledged in tlieir contract of marriage, and we cannot say that-the acknowledgment in this instance, made by only one of the parents before the change in the law and with no reference to legitimation, is .sufficient under the law in force at the date of the marriage and which must control in this case. “ Ita lex scripta est.”

It is therefore ordered that the judgment appealed from be reversed, .and that there be judgment in favor of defendants, with costs.

Rehearing refused.


author: TaliaeekRO, J.

text:
    No. 5487.
    State of Louisiana vs. Jack Owens.
    'It is clear that the plea of autrefois acgwit cannot avail the defendant in this case. The offense for which he was tried at the June term of 187á is entirely different from the one of which he was convicted at the ensuing October term. The judgment in the former ease was arrested because the offense of which the accused was found guilty was not properly set forth in the instrument, and in other respects the indictment was defective. This does not bar a prosecution f or the same or a second offense. A new indictment in such a case may be preferred, and the former conviction and discharge cannot be pleaded in bar.
    APPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J.

      A. P. Field, Attorney General, for plaintiff and appellee.

      Charles H. Luzenberg, for defendant and appellant.
   TaliaeekRO, J.

The appellant in this case was prosecuted under information presented to the Superior Criminal Court of New Orleans charging that on the fourth of May, 1874, the appellant, in the night time, broke and entered the dwelling-house of one E. J. Hertleb with intent to steal. He was convicted and sentenced to hard labor in the Penitentiary for ten years. He appeals from this sentence. The case is 'before this court on a bill of exceptions, which sets forth that the judge a quo overruled the defendant’s plea of autrefois acquit, interposed by him upon hearing the information read, and thereupon ordered the defendant to be arraigned on the information filed and to be held for trial thereon. The information in this case was filed on the eleventh of July, 1874. At the June term of that court, the same year, the defendant-was arraigned on an indictment charging that he did, on the fourth of May, 1874, in the night time, with intent to steal, break and enter the dwelling-house of one C. Levy, and did commit an assault upon said C. Levy, •then lawfully present in the said house. The jury brought in a verdict of “ guilty, without capital punishment.” A motion was made in arrest of judgment, which was sustained and the defendant discharged. Thereupon the information was filed, under which he was tried, convicted, and sentenced to ten years’ imprisonment at hard labor in the Penitentiary.

It is clear that the plea of autrefois acquit cannot avail the defendant. IThe offense for which he was tried at the June term, 1874, is entirely different from the one of which he was convicted at the ensuing October term. The judgment in the former case was arrested because the offense of which the accused was found guilty was not properly set forth in the instrument, and in other respects the indictment was defective. This does not bar a prosecution for the same or a lesser offense. A new indictment in such a case may be prepared and the former conviction and discharge cannot be pleaded in bar. Wharton’s American Criminal Law, page 554; Archbold’s Criminal Practice, page 361.

It is ordered that the judgment appealed from be affirmed.


author: Wyly, J.

text:
    No. 4380.
    Peter Dyer vs. Peter Rieley and Thomas P. Leathers et al.
    The mate of steamboat Natchez was not acting within the scope of his employment, ■ at the time he committed the offense complained of in this ease, and the plaintiff,. . who was employed as a roustabout on said boat, and who suffered in consequence of the alleged offense, cannot recover against the Natchez for the damages sustained by him in consequence of the offense.
    Masters and employers are answerable for the damages occasioned by their servants, in the exercise of the functions in which they are employed. This responsibility, however, only attaches when they might have prevented the act wliieh caused the damages, and have not done so. Revised Code, article 2320. But this case, as dis- . .closód by the record, does not come within the provisions of said article of the-Code.
    APPEAL from the Fifth District Court, parish of Orleans. Leaumont,, J. Jury trial.

      John M. Bonner and J. W. Kerr, for plaintiff and. appellee.

      Randolph, Singleton & Browne, for defendants and appellants..
   Wyly, J.

Plaintiff alleges that on the twenty-second day of January., 1871, while he was employed as a roustabout on the steamboat Natchez„ the mate of said boat, Peter Rieley, while acting within the scope of his. duties and without any fault of plaintiff, threw a pine knot at plaintiff,, which struck him in the eye and put it out; he, therefore, sues the defendants, Peter Rieley, Thomas P. Leathers, and Anthony Pauley, the mate and owners of the Natchez, for twenty thousand dollars damages.

The court gave judgment on the verdict of a jury against all the defendants for five thousand dollars damages.

From this judgment Thomas P. Leathers and Anthony Pauley, the-owners of the Natchez, have appealed. Peter Rieley, the mate, has not, appealed.

Shortly after the boat left Baton Rouge on the day mentioned in the, petition, plaintiff, with two other employees, was going from the bow toward the stem of the boat, on the starboard side, when a pine knot was thrown from the boiler deck and struck plaintiff in the eye, causing the injury which resulted in its loss. It is charged that Peter Rieley., the mate, throw this pine knot, one of the witnesses testifying that he looked np about the time it was thrown and saw him. This occurred about ñve o’clock in the morning, while it was quite dark, the night being unusually dark.

Another witness declared that, immediately after the occurrence, he went upon the boiler deck and found Peter Bieley and saw a pile of pine knots near him, and this witness testified also that he committed the offense.

The theory of plaintiff’s counsel is that the mate was on watch and was prepared to throw these pine knots at any one he supposed was tampering with the whisky barrels, which were stowed near where the plaintiff was struck; that on a previous trip the barrels had been bored into and a considerable amount of whisky had been stolen; that the deckhands had been threatened by the mate and also by the captain; that while the mate was thus on watch with his pine knots ready, he discovered plaintiff and two other men standing near the whisky barrels, and, suspecting that they were about tampering with these barrels, he threw the pine knot which caused the injury to plaintiff.

He c o itends that the mate was on watch guarding this whisky, and that he committed the crime while acting within the scope of his employment, and, therefore, the appellants, the owners of the boat, are responsible. He develops this theory by the following argument, which we copy from his brief:

“ The mate was clearly acting within the scope of his duties when he committed the act which injured the plaintiff. Common carriers are responsible for the safe transportation and delivery of all goods intrusted to their caro. Hence, it becomes their duty and the duty of their employees to guard and protect all freight on their vessels. To perform this duty more effectually watches are established. Consequently, whatever is done by an officer on watch in the way of guarding and protecting the freight is done within the lino of his duty. Captain Leathers had retired to bed just before the boat reached Baton Rouge. The mate was then called and took charge of the boat. He landed the boat at Baton Rouge, and just above this point the mate, thinking some of the crew were about going into the whisky barrels, threw the pine knot that knocked out the plaintiff’s eye. Whisky had been abstracted on the previous trip of the boat, and the mate was on the lookout for a repetition of the offense. Captain Leathers said in the presence of the crew that stealing- whisky had to be stopped, and the mate threatened the crew with broken heads on this account. The captain and the mate, therefore, put their heads together to devise some means to stop the stealing of whisky. The boiler dock overlooked the main deck where the whisky was stowed on the guards, and this was the point from which they kept a lookout with their pile of pine knots. These pine knots were placed there for the purpose of protecting the whisky, and Captain Leathers must have known the fact, for it is very improbable that the mate had pine knots carried up to the boiler deck at the hour in the morning when he was called, just below Baton Rouge, to go on watch. But, be this as it may, the mate was on watch at the time he throw the pine knot, and it matters not whether he did the act with Captain Leathers’ consent or knowledge or not. He was in the performance of his duty of keeping guard over the freight on the boat when he did the injury, and his employers are responsible for the consequences of his act. The mate chose the throwing of pine knots as a means of carrying out his orders to guard this whisky, and the owners are responsible for his negligence or imprudence in making such a selection.”

Now, the error of this argument lies in assuming as facts certain assertions which are wholly unsupported by evidence.

There is not a particle of proof that the mate had orders to guard the whisky, or that he was put on duty as a watchman, or that he and the captain put their heads together to devise some means to stop the stealing of whisky, or that the throwing of pine knots was chosen by the mate as the means of carrying out his orders to guard the whisky.

Peter Rieley, the mate, was on watch, that is, he was on duty as mate. He was not the watchman of the boat. At the time plaintiff received the injury there was a regular watchman on duty on the main deck. There is not a particle of evidence that it is part of the usual duties of a mate to guard the whisky or to throw pine knots from the boiler deck to the main deck. And, as before remarked, the mate received from the captain no special orders to perform this duty. The captain not only gave no such orders, but he was in utter ignorance of the whole affair.

The captain was master of the boat. The act was not done under his orders or with his knowledge or consent. And the duties of the mate, in this regard, were no greater from the circumstance that the captain had retired to bed.

. Our conclusion is that the mate was not acting within the scope of his employment at the time he committed the crime; and the plaintiff, who was employed as a roustabout oh the steamboat Natchez, cannot recover against appellants, the owners of said boat, for the damages sustained by him in consequence of said offense. Masters and employers are answerable for the damages occasioned by their servants “ in the exercise of the functions in which they are employed.” This responsibility, however, “ only attaches when they might have prevented the act which caused the damages and have not done so.” Revised Code, 2320.

The authorities cited by plaintiff, to wit: Wharton on Negligence, paragraph 171; 46 N. Y. 23; 12 Allen 52; 50 Mo. 104; 11 American Reports 405; 21 Ohio 518; Shearman and Rodfield on Negligence, paragraph 66, and 17 Wallace 567, all proceed on the theory that the act of the servant is done within the general scope of his employment. This is good law, but the case disclosed by the record does not come within the provision thereof.

It is therefore ordered that the judgment herein against Thomas P. Leathers and Anthony Pauley, the owners of the steamboat Natchez, be set aside and annulled, and, as to them, that plaintiff’s demand be rejected with costs of both courts.

The Chief Justice dissents, and reserves the right to file his reasons hereafter.

Rehearing refused.


author: TaliaotseRO, J.

text:
    No. 4107.
    A. Bower vs. W. A. Johnson et al.
    Oil tlio thirty-first of January, 1870, tho plaintiff received from Bruce, Simpson & Co., merchants of Liverpool, a telegraphic dispatch offering for sale live hundred bales of good middling cotton at a certain price per pound, and offering to hold the same if covered by a proper margin. Tho plaintiff thereupon communicated tho dispatch to several parties, to wit: W. A. Johnson, I-Iugh Allison & Go., R. L. Adams & Son, and L. N. Lane, who severally agreed to take each one-fourtli of the cotton, and each deposited in the hands of the plaintiff a margin of ten dollars per bale on his share. Plaintiff promptly notified Bruce, Simpson & Co. of the acceptance of their offer, and remitted to them the several sums put up by the defendants as margins. Tho order was filled in accordance with the agreement, and the cotton was held by Bruce, Simpson & Co. in the name of the plaintiff. In March, 1870, Lane ordered his share of the cotton to bo sold, which was done, resulting in a loss which ho paid to plaintiff.
    The defendants continued to hold tlioir cotton until July, 1870, when, the price of tho article having declined to a point which rendered the original margin an insufficient security, Bruce, Simpson & Co. telegraphed tho plaintiff for additional margin. This demand was communicated to defendants, who refused to comply, whereupon Bruce, Simpson & Co. sold, also at a loss, which plaintiff paid for, and for the loss he sues tho defendants, each for a specified sum, .with interest at eight per cent from the fourteenth of November, 1870.
    Tho attitude in which the plaintiff stood in this transaction seems to have been that of the common agent of two principals, foreign as regards each other. Ho is therefore responsible to each in his capacity of agent.
    There were none of the elements of partnership between tho several parties who bought the five hundred bales of cotton. It was not a joint adventure between the partios, as tho evidence shows. Each party could dispose of his share without consulting the others. Each contracted for himself, and intended in no manner to bo bound for more than his share, which he might sell at will without affecting tho rights of the other parties or being controlled by them.
    The defense, on the whole, has no force, and tho judgment of the court a ana against defendants is affirmed, with a modification in the rate of interest allowed, which must bo reduced from eight por cent to five per cent.
    APPEAL from the Fourth District Court, parish of Orleans. Thecird, J.

      Breaux, Fenner & Hall, for plaintiff and appellee.

      Thomas, Hunter £ Grover, W. M. Bandolph, for defendants and appellants.
   TaliaotseRO, J.

This controversy, it appears, grew out of the following state of facts:

On the thirty-first of January, 1870, the plaintiff received from Bruce, Simpson & Co., merchants of Liverpool, a telegraphic dispatch offering for sale five hundred bales of good middling cotton at 11J pence sterling per pound, and offering to hold the same if covered by a proper margin. The plaintiff thereupon communicated this dispatch to several parties, and the defendants, W. A. Johnson, Hugh Allison & Co., R. L.. Adams & Son, and L. N. Lane, severally agreed each to take one-fourth of the cotton, and each deposited in the hands of the plaintiff a margin of ten dollars per bale on his share (one hundred and twenty-five bales), amounting to twelve hundred and fifty dollars each. Plaintiff, as appears, promptly notified Bruce, Simpson & Co. of the acceptance of the offer, and remitted to them the several sums put up by the defendants as margins. The order was filled in accordance with the agreement and the cotton was held by Bruce, Simpson & Co. in the name of the plaintiff for account of defendants. In March, 1870, Lane ordered his share of the cotton to bo sold, which was done, resulting in a loss of §054 23, which he paid to plaintiff. The defendants continued to hold their cotton until July, 1870, when the price of the article had declined to a point which rendered the original margin an insufficient security. Bruce, Simpson & Co. telegraphed the plaintiff, requiring additional margin. This demand was communicated to the defendants, who refused to comply, whereupop. Braco, Simpson & Co. sold the cotton at a. loss, which, it seems, the plaintiff paid, and for this loss he now sues the defendants. Ho claimed from W. A. Johnson §1902 72, with' eight per cent interest from fourteenth November, 1870, from Hugh Allison & Co. §1857 23, with like interest from the same time, and from R. L. Adams & Son §1853, with like interest from the same time.

The answer admits that the defendants, together with plaintiff, agreed to buy the proposed lot of cotton, each to become interested to the extent of one undivided fourth part; that in a day or two after the plaintiff informed them that the offer of Bruce, Simpson & Co.' had been accepted for their and his account; that a margin of ten dollars per bale was required, and that each of the defendants paid to the plaintiff the required margin, being §1250 paid by each of them.

They allege that at the time they consented to purchase the said cotton it was understood and believed by the parties that the plaintiff was to take one-fourth of it, and that the name of Lane was never mentioned to them in connection with said purchase; nor was it ever mentioned until long after the purchase and sale of the cotton that Lane had any interest in it, and they declared they never authorized a joint purchase of the cotton with Lane.

Tlie defendants allege they have been informed and believe the fact to be that at the time the cotton was pretended to be purchased by Bruce, Simpson & Oo. the whole lot of cotton had been bought by the plaintiff in New Orleans, and had been shipped to and was afteiward sold by Bruce, Simpson & Oo. for his account; that a portion of the cotton purporting to have been sold by them, or the whole of it, was afloat and had not been received by them, and was not in their possession at the date of the alleged purchase, but had been previously purchased by the said plaintiff, who by false representations had induced these defendants to embark in tliis adventure to save himself from any possible loss on account of his purchases.

The defendants aver that after the date of the alleged purchase E. L.. Adams instructed the plaintiff, who had assumed control and management of the adventure, to sell or order to bo sold the whole of said cotton when it was worth in Liverpool 12§ pence per pound, but that plaintiff refused to do so. They allege that plaintiff ought to have sold the cotton at that time if he had as agent or partner authority to sell:

The defendants deny any indebtedness to the plaintiff, and each claims from him in reconvontion the sum of ¡$1250, the margin in which by false representations he induced them respectively to pay to him, and the further sum of §1000, with interest on both sums from the second of January, 1870.

The plaintiff had judgment, and the defendants have appealed.

It is proper to inquire what kind of contract did these parties enter into, and what was their relative position toward each other. Brueo,. Simpson & Co. propose by telegram to Bower in these terms:

. “We can offer you, subject to your reply por cable, on the day after the receipt of our message, five hundred bales middling Orleans at 11£ pence per pound here. We will hold, if you will have us. covered for £1000.”

The answer of Bowor is: “Your cable offering of five hundred bales cotton, good middling, Orleans classification, at Ilf, and to be held covered by £1000 margin, received and accepted by my friends. I remit the, required margin. * * * You will not sell unless at a fair profit. * * * I have interested in that purchase four-parties, each 125 bales, with the privilege of disposal of Ms share whenever required to do so by cable.”'

Here is no privity between Bruce, Simpson & Oo. and these parties defendants. The latter go into the adventure at the instance of and with Bower. They paid to him their respective margins, and looked alone to him as responsible to them for any profits that might accrue to them by the operation. Bower, on tlie other hand, was the person alone with whom Bruce, Simpson & Oo. dealt, and to whom alone-they could look for losses they might sustain. The attitude in which-Bower stood ■seems to be that of the common agent of two principals, foreign as regards each other, and is therefore responsible to each. “ Upon the ground of general convenience mid the usage of trade,” said Judge Story in his Treatise on Agency, section 209, “the rule has obtained that agents or factors acting for merchants resident in a foreign country are held personally liable upon all contracts made by them for their employers; ■and this without any distinction, whether they describe themselves as agents or not in the contract. In such a case it is presumed that the ■credit is given to the agents or factors; and the ordinary presumption is, not only that credit is given to the agents, but that it is exclusively given to them to the exoneration of their employers. Still, however, this presumption is liable to be rebutted, either by proof that credit was given to both principal and agent or to the principal only.” Newcastle Manufacturing Company vs. the Red River Railroad Company, 1 Rob. 145; Thorn vs. Tait, ex., 8 An. 8. Was there a partnership, as contended by plaintiffs, between the several parties who bought the five hundred bales of •cotton from Bruce, Simpson & Co.? The evidence, wo think, does not sustain this pretension. Bowor, in his testimony, is dear and distinct that it was not a joint adventure between the parties, that each party had the right to sell, dispose of, and control his own fourth of the cotton, ■or about 124 bales, as he pleased. Allison, in Ms testimony, says: te When I agreed to take a fourth interest in it, neither R. L. Adams nor W. A. Johnson was present. I was, however, informed at that time that they had taken an interest. I put up my own margin in a check for the ■amount. I did not understand that I was responsible for the margins which wore to be put up by W. A. Johnson and R. L. Adams & Son. I did not understand myself to be in any event liable for more than one-fourth loss on that cotton. W. A. Johnson and R. L. Adams & Son and myself never met or had any consultation about it at or any time shortly ■afterward.” To the same purport is the testimony of W. A. Johnson; and it was admitted that R. L. Adams, as a witness for the defendant, would testify to the same effect that Allison and Johnson did. We think it results from the entire evidence that there was not a partnership. Some of the essential elements of the contract of partnership were wanting. In going into the adventure it appears clearly that each party contracted for himself, and intended to be in no manner concerned with the contracts of the others, neither participating in nor intending to be bound ■by them. It is objected by defendants that Bower sold Ms interest to Lane. This did not place them in any more onerous condition. Either -of the defendants might have sold his interest to a third party without ■affecting the rights of any of the other parties. They place it on the ■ground that the parties had the right to select their partner in the adventure. But as there was no partnership this objection has no weight.

The allegation oí the defendants in their answer, that the cotton sold by Brace, Simpson & Oo. was in reality cotton purchased by Bower in New Orleans, and shipped by him, and that a part, if not the whole of it was afloat, and not received by Brace, Simpson & Oo. at the time they pretended to sell, is wholly unsustained by the evidence. The contrary is fully proved by abundant testimony. The defense, on the whole, is without force, except the denial of the plaintiff’s right to recover from them eight por cent interest, as awarded him by the district court. In this respect the judgment must be amended.

It is therefore ordered that the judgment appealed from, so far as it condemned the defendants to pay eight per cent interest on the amounts decreed against them, be annulled and reversed, and in lieu of eight per cent it is now ordered that the judgment be amended by decreeing the defendants to pay on the several sums aforesaid five per cent interest, and, as thus amended, that the judgment of the district court be affirmed. The defendants pay costs in the lower court, the plaintiff and appellee those of this appeal. This decree disposes of the defendants’ plea in re-convention.

Rehearing refused.


author: TaliaeebRO, J.

text:
    No. 5796.
    Temple S. Coons vs. John W. Cannon et al.
    The defendants, being only trustees or agents for the persons owning the steamer Katie, are not in a position to stand in judgment for the owners of the boat. If there has been a dereliction of duty on the part of the trustees, the plaintiff, it would seem, occupies the rather anomalous attitude of suing others for a neglect of duty for which he is ectually culpable himself as co-agent or trustee.
    APPEAL from the Superior District Court, parish of Orleans. Haivkins, J.

      Alfred Shaw, Thomas Uunton, and E. B. Earhart, for plaintiff and appellant.

      Bentinck Egan, and Randolph, Singleton & Browne, for defendants and appellees.
   TaliaeebRO, J.

The plaintiff alleges that he is owner of the interest in and claim against tho steamboat Katie formerly held by J. Pinckney Smith, estimated at $7836 82, reduced by payments to $3036 82, which remains due; that the Katie was sold at marshal’s sale, and, by agreement among the creditors of the boat, William Pagan became the purchaser, acting in their interest, and subsequently sold the boat to John W. Gannon, who executed a mortgage on the boat and bound himself to pay, from the earnings of the boat, the said, claim now held by Goons; that a committee, composed of the said Pagan, Edward Oonery, P. G. Bigly, and D. G. McOan, and the plaintiff, were appointed by the mort-gago creditors of the boat, and recognized by said Cannon, who bound himself that the. said committee should take charge and custody of the boat, put on board a'master and clerk, the latter of whom was to take ■charge of the earnings of the boat, make statements of the earnings and expenses of each trip, and, after paying lawyers’ fees, costs, running expenses, insurance, and repairs, turn over the remainder to the said committee whenever he shall have five thousand dollars on hand. The .plaintiff avers that said Cannon has failed to comply with the stipulations he made in this contract, and charges that, through the fraudulent ■action of the said Cannon, to the lull knowledge of Fagan, Coneiy, and MeCan, and by their connivance, the earnings of the boat, amounting to sixty-five thousand dollars, have been diverted and are unaccounted for; that Cannon is indebted to him for his proportional amount of not revenues, twenty-two thousand dollars; for SS03G 82, for which he claims 'a privilege on the boat; that said Fagan, Camion, Conery, and McCan -are bound in solido for forty-five thousand dollars damages. Ho prays judgment in solido against all the parties for §3030 82, with recognition of privilege against J. W. Cannon for twenty-two thousand dollars, and against all the parties hi solido for forty-five thousand dollars damages. He prays for a writ of injunction against the defendants, restraining the defendants from selling the boat, and for a writ of sequestration to prevent the. removal of the boat from the jurisdiction of the ■court.

The defendants, Fagan, Conery, and McCan, filed an exception to this suit on the ground that plaintiff’s petition sets out no cause of action against them; that they are mere trustees or agents of a number of persons who are owners of the steamboat Katie, as shown by plaintiff’s petition, and have no authority to stand in judgment for the. owners of the boat; that plaintiff is estopped from prosecuting this suit, inasmuch as he, with the appearors, is one of the representatives of the owners of the. steamboat Katie, and this suit is intended, and lias the effect, of preventing appoarers and the said plaintiff from performing the duties they •assumed in the document annexed to his petition and marked B, and that the plaintiff, as one of the representatives of the owners of the boat, ■cannot sue his oo-agents or representatives for his own neglect of duty, nor could he have any cause of action against his principals.

The judgment of the lower court sustained the exception, dissolved the injunction, and dismissed the case as of nonsuit.

The plaintiff appealed.

We think the judgment appealed from correct. It is clear the defendants are only trustees or agents for the persons owning the steamer Katie. This is shown by tlie plaintiff’s own allegations in his petition. The defendants are not in a position to stand in judgment for the owners of tlie boat. If there has been a dereliction of duty on the part of tho trustees, the plaintiff, it would seem, occupies the rather anomalous attitude of suing others for a neglect of duty for which he is equally culpable himself. J. W. Gannon, against whom tho plaintiff prays judgment, is not before the court.

Eor these reasons it is ordered that the judgment of the district court be affirmed with costs. . '

Rehearing refused.


text:
    No. 5859.
    City of New Orleans vs. Mrs. C. Adams.
    The limitation lor taking an appeal fixed in article 593 of the Code oí Practice is in the nature oí a prescription.
    IÍ plaintiff and appellee, who is neither a minor nor an absentee, is permitted to file in this court, as he wishes to do, the transcript of this ease and tho prayer lor an amendment of the judgment of the court below, one year and eight months after the appellant has abandoned her appeal, it would in effect bo an appeal brought to this court to obtain a revision of the judgment, notwithstanding the positive language of article 593 of tho Code of Practice. . ■
    Article 592, allowing an appellee to join in the appeal and virtually to become an appellant, must be construed with reference to article 593, which succeeds it, and which declares that except in regard to minors and absentees no appeal will lie after one year from tho time a judgment is rendered. This view of the law is confirmed by article 591.
    The appellee therefore cannot obtain from this court the desired relief. No revision of the judgment can now be had in his behalf, because the transcript was filed too late.
    APPEAL from tlio Superior District. Court, parish of Orleans. Hawkins, J.

      Samuel P. Blanc, Assistant Oity Attorney, for plaintiff and appellant.

      J. Livingston, for defendant and appellee.
   Wyly, J.

In this suit the city of New Orleans, on a demand for taxes against the defendant of some eighteen hundred dollars, confirmed a default, and judgment was entered up for only one hundred and eighty-six dollars. Why the default was confirmed only for this small amount the record does not disclose.

This judgment was rendered on' the twelfth day of November, 1873, ■and it was signed five days thereafter.

On the twenty-sixth day of December, 1873, defendant obtained an order of appeal, returnable on the third Monday of January, 1874, alleging in her petition for appeal that notice of the judgment confirming the default was only served on her on the nineteenth of December, 1873) ■“ as appears from a copy of said notice herewith filed, which judgment was for the sum of eighteen hundred and sixty dollars, with ten per cent interest from July 31,1873.”

Tlie third Monday in January, 1874, the return day for the appeal, ar■rived and appellant failed to file the transcript.

On the sixteenth of September, 1876, one year and eight months after the return day had passed, the appellee filed the transcript of appeal, and filed subsequently an answer praying for an amendment of the judgment so as to increase it to eighteen hundred and sixty dollars.

The appellant now moves to dismiss this appeal, because the record is filed one year and eight months after the return day and the abandonment thereof by herself, and nearly two years after the judgment was rendered by the court below. The evident object of the appellee, who has filed the transcript and joined in the appeal at this late day, is to obtain a revision of the judgment, so as to have corrected an evident error made in entering up judgment for only one hundred, and eighty-six dollars when confirming the default against defendant in this tax suit for eighteen hundred and sixty dollars.

Now, if this practice is tolerated, a judgment which was rendered nearly two years ago, and the appeal from which was abandoned one year and eight months ago, will be open for revision; and appellee, by joining in the appeal and becoming thereby virtually an appellant, will be able to get a remedy for the error it complains of in the judgment, which it could not get by a direct appeal taken at the time this record was made out. Furthermore, if the view of the articles of the Code of Practice on the subject of an appeal taken by appellee’s counsel be correct, that there is no limit within which the appellee is bound to file the record together with his answer praying an amendment of the judgment in his behalf, the result will be that appellee in this case could have delayed five or ten years longer before filing the transcript together with an answer praying an amendment of the judgment; indeed, it would never be too late to obtain a revision of this judgment, unless, perhaps, this court would decline to do so after a period of ten years, when the judgment itself would be barred by prescription. But this barring by prescription in the lower court might, from period to period, be arrested by a revival of the judgment, and thus the right to enjoy an appeal or to have a judgment revised in a case like this might remain to the appellee as long as desirable; the judgment might remain open for revision indefinitely; or, after delaying the matter for years and after all apprehension of having the judgment revised had passed from the mind of the appellant, the appellee, if he chose, could file the transcript and prayer for an amendment of the judgment, have the case submitted to and decided by the appellate court without any opposition on the part of the appellant, who would be in utter ignorance Of the proceeding in the appellate court. •

Such a theory cannot be founded in law; it cannot fairly be deduced from the articles of the Code of Practice on the subject of appeals, and it is repugnant to the policy of all countries, which enact laws of prescription on the principle that the public have an interest in requiring litigation to end at some time.

The limitation for taking an appeal fixed in article 593 of the Code of Practice is in the nature of a prescription. It says: “ No appeal will lie,” except as regards minors and absentees, “ after a year has expired, to be computed from the day on which the final judgment was rendered.”

Now, if appellee is permitted to file the transcript and the prayer for an amendment of the judgment one year and eight months after the appellant has abandoned her appeal, will there not, in effect, be an appeal brought to this court and will there not be the revision of a judgment, notwithstanding the positive language .of article 593 just quoted?

Article 592, allowing an appellee to join in the appeal and virtually to become an appellant, must be construed with reference to article 593, which succeeds it, and which declares that except in regard to minors and absentees “ no appeal will lie ” after one year from the time a judgment is rendered. And the next article, 594, confirms the view we have taken, that an appellee cannot join in an appeal and in effect become an appellant by filing the transcript and a prayer for an amendment of the judgment after the time for taking an appeal has elapsed.

Our conclusion is that the appellee cannot obtain from this court the desired relief; that no revision of the judgment can now be had on behalf of appellee, because the transcript was filed too late.

The appeal is therefore dismissed at plaintiff’s costs.-


text:
    No. 5291.
    City of New Orleans vs. the Heirs of de St. Romes.
    This suit is brought against defendants, delinquent taxpayers, after the alleged usual publication of notice. The advertisement, under the statute, has the effect of a citation duly served, and it should bo subject to the same rules as the citation of which it is the equivalent. Notice published to the “ Heirs of St. Romes ” was not a legal citation to Eugene, Victor, and Ermance de St. Romes, the appellants. It was too indefinite to amount to .a citation to any one.
    APPEALS from the Superior District Court, parish of Orleans. Hatoldns, J.

      George S. Laceij, City Attorney, and Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      B. Billeul, for defendants and appellants.
   Wyly, J.

The city of New Orleans, after the usual publication of notice to delinquent taxpayers, confirmed in the Superior District Court a default against the heirs of de St. Romes, and rendered judgment for $540 for taxes due the city for the year 1871.

From this judgment Eugene de St Romes, Victor de St. Romes, and ."Emtance de St. Romes have appealed.

In- this court appellants have filed an assignment of errors, the most Important objection being, the notice published did not mention their mames; it only designated defendants as “Heirs of de St. Romes.”

The advertisement, under the statute, has the effect of a citation duly .served, and it should be subject to the same rules as the citation of which it is the equivalent. City of New Orleans vs. Heirs of Schmidt, 10 An. 771. Notice published to the Heirs of de St. Romes ” was not a 'legal citation to Eugene, Victor, and Ermance de St. Romes, the appellants. It was too indefinite to amount to a citation to any one. The •judgment must therefore be reversed.

It is therefore ordered that the judgment herein be set aside and .annulled at the costs of appellee.

Rehearing refused.


text:
    No. 6030.
    Alexis Ribet vs. J. Contreras et al.
    The motion to dismiss the appeal must prevail, because the matter in controversy is ■the ownership of the groceries seized, and the value thereof is far below the jurisdiction of this court. The demand for flve hundred dollars damages was evidently made to give this court a jurisdiction it did not otherwise have.
    APPEAL from the Third District Court, parish of Orleans. Meunier, J.

      Charles Louque, for plaintiff and appellant.

      W. JE. Murphy, for •defendant and appellee.
   Wyly, J.

The defendant, Frangois Ferran, having judgment in the Fourth Justice’s Court against J. B. Bufaux for one hundred dollars, ■caused execution to issue, and the constable, J. Contreras, seized a lot of groceries. Thereupon the plaintiff, Alexis Ribet, claiming to be the owner of the property seized, sued out this injunction in the Third District Court, alleging the value of said property to be $400, and alleging damages in the sum of $500. The court came to the conclusion the act ■of sale whereby the defendant in execution conveyed to plaintiff the igroberies in question was a mere simulation; and it dissolved the injunction with ten per cent damages. Plaintiff appealed.

Defendants now move to dismiss the appeal on several grounds; one •only need be noticed, to wit: The matter in dispute is less than $500, ■and this court is without jurisdiction.

This motion must prevail, because the matter in controversy is the ownership of the groceries seized, and the value thereof is far below ■the jurisdiction of this court. The demand for $500 damages was evidently made to give this court a jurisdiction it did not otherwise have. • 21 An. 193; 24 An. 117; 26 An. 673. Taking this view of the motion, it becomes unnecessary to examine tbe merits upon which also the case was submitted.

It is therefore ordered that the appeal herein be dismissed at Appellants’-costs.

Rehearing refused.