source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 7912.
    State of Louisiana ex rel. Factors’ and Traders’ Ins. Co. vs. Mayor and Administrators of the City of New Orleans.
    Tliis case is decided upon the samo principles as the preceding case of Lucas E. Moore.
    The Mandamus only modified.
    ^PPEAL from the Third District Court, parish of Orleans. Monroe„

    Gibson, Hall & Montgomery for Relator and Appellee:
    A mandamus will lie to enforce the collection of a municipal tax, needed! to pay the obligations of a municipal corporation that were outstanding when a law or a constitution has been passed or adopted limiting the municipal taxation, as such limit prevents the levy and' collection of a tax in excess of the limit for the purposes of carrying-on the general government only, and does not refer to payment of obligations due when the law or constitution was passed.
    A constitution that impairs the obligation of a contract is in effect a law-on that subject, and such constitution violates the Constitution of the United States, art. 1, sec. 10.
    The Act 31 of 1876 is a contract entered into between the holders of the-Premium Bonds and the city, and the city cannot attack it as unconstitutional, because the city was a party to the contract.
    The city of New Orleans is estopped from pleading the unconstitutionality of the' Premium-Bond Act, because she has pleaded its consti-tionality in the Morris Banger case and the Southern Bank case,, and has acted upon it for years, and has induced holders of bonds-to exchange them for Premium Bonds, and has reaped all possible-advantages from such exchange, and has reduced the debt of the city, no more bonds having been issued ; only old ones bearing a high interest have been exchanged for Premium Bonds bearing a five per cent interest.
   The opinion of the Court was delivered by

Fenner, J.

The relief sought in this case rests upon the same principles as that granted in the case of State ex rel. Moore vs. City of New Orleans, No. 7907, docket of this Court; but the terms of the mandamus granted are too broad to receive our sanction. It commands the defendants absolutely to enforce the ordinances fixing the budget for the year 1880 and levying a tax of fifteen mills. We held in the above-mentioned case that we would not interfere with the right of the city to remodel her budget and tax ordinances, to reduce her estimates of necessary expenses, and the rate of taxation required to meet the same, provided only she maintains the appropriation for the Premium Bonds and the special tax of five, mills required by the Premium-Bond Act. The judgment must be amended so as to conform to the mandamus granted in the Moore case.

For these reasons, and for the reasons assigned in our opinion in the above case,

It is ordered, adjudged, and decreed that the judgment appealed from be so amended as that the mandamus granted, shall only command the defendants to include in every tax-bill for taxes due said city for the year 1880 one half of one per cent of the assessed value of all property taxed, to be applied to the payment and redemption of Premium Bonds according to the plan adopted and ratified by Act No. 31 of 1876 ; and to collect said one half of one per cent at the same time and in the same manner that the other portion of the tax is collected, and to carry the same to the credit of the Premium-Bond account, as required by said act. And it is further ordered, adjudged, and decreed that the judgment appealed from, as thus amended, be affirmed, appellee to pay costs of this appeal.


author: Bermudez, C. J.

text:
    No. 969.
    Clara Silbernagel, Wife, vs. Benj. Silbernagel, Husband.
    Although an Intervenor cannot retard the trial of a case, yet lie is entitled to the time necessary to have his Intervention served and pnfc at issue, before the case can be tried.
    APPEAL from the Sixth Judicial District Court, parish of Morehouse. Brigham, J.
    David Todd for Plaintiff and Appellee.
    Newton & Hall, Frank Yaughan, and G. H. Ellis for Intervenors and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit by a wife against her husband for the recognition of averred rights against him.

The petition and answer were filed on the same day, no citation having- previously issued to the defendant. The case was put on the-docket in a condition to be called and tried the same day.

On ascertaining the existence of the suit, and previous to the case being called for trial, permission was asked by counsel for certain parties to file an intervention in their behalf, upon which the process of^ the Court was sought. The judge took the application under -advisement, and continued the case to the next court-day, a Sunday intervening.

On the day of assignment, the case was called for trial. The judge allowed the intervention to be filed. Whereupon, leave was asked to file another intervention on behalf of other parties, and the motion was granted.

The parties defendant in the interventions declining to acknowledge service and to proceed with the case, counsel for intervenors moved that the process of the Court issue to the proper parties and the case be continued until after issue joined on the interventions.

The Court denied the motion, on the ground that intervenors have-no right to retard the progress of the cause in which they make appearance.

Had the suit been brought and carried on with the usual forms and delays, the ruling of the Court would have been correct; but, in a case like the present one, it would be requiring a physical impossibility to-demand of an intervenor (whose proceeding is to be served, with the-allowance of a delay of ten days to join issue,) that he be ready, before tivo days have elapsed since the institution of the suit, to proceed with his intervention, when the main suit is called for trial. The requirement of readiness cannot be exacted where the main case has not had a standing certainly exceeding ten days on the Court docket, within which parties may file their interventions, to have them served. Lex neminem cogit ad impossibilia.

The rapidity with which the plaintiff and defendant have put their issues of record and have proceeded to judgment, cannot be invoked as a standard of celerity for the dispatch of proceedings on the part of third persons, when the law prescribes that such proceedings shall be followed by certain process and delays.

Judicial investigations are not to be so quickly flashed through, and-must be attended with more solemnity and dignity, for the protection of the rights of all parties concerned and a safer administration of justice-

The promptness of the plaintiff and defendant in this matter cannot serve to defeat the intervenors in the assertion and vindication of the rights which they claim, in a form of their preference, and expressly authorized by law, to avoid an unnecessary and onerous multiplicity of actions.

The intervenors cannot be driven to resort to a direct suit, for any purpose, when the law has allowed them a different and more appropriate proceeding. To refuse them the process of the Court on their intervention, in such an instance as is presented, would amount to a. denial of a right clearly accorded by law.

If the ruling complained of were sanctioned, a dangerous and illegal precedent would be established.

In a case not as strong as that before the Court an intervention filed on the day of trial was allowed to be served on opposite parties,, and for this purpose the cause was continued to put the intervention at issue. 25 A. 564, Sandel vs. Douglas. See, also, 16 L. 265 ; 3 A. 331; 20 A. 258.

It is therefore ordered that the Judgments of the lower court refusing the motion of the intervenors for process, the continuance of the-case for that object, and passing on the main demand, be reversed, and that this case be remanded for further proceedings according to the views herein expressed and according to law, appellees to pay costs of appeal and of the lower court from the' time of the filing of the interventions.

Mr. Justice Todd recuses himself, having been of counsel.


text:
    No. 981.
    Wm. M. Gillaspie, Administrator, et al. vs. Lem. Scott, Sheriff, et al.

      JSCeld that damages cannot be allowed in dissolving an injunction issued without bond under-Art. 739, C. 3?. Re-affirming previous Decisions.
    "WTien this Court decides in one Appeal all the issues pending between the same parties in-another Appeal, those issues are definitively disposed of, and the execution of the judgment appealed from cannot be retarded by the existence of the other Appeal, taken im same case and from the same judgment. The judgment of this Court, in such a case, is. final.
    APPEAL from the Fifth Judicial District Court, parish of Richland-Richardson, J.
    Cobb & Gunby for Plaintiff and Appellee.
    Stubbs & Stillman for Defendants and Appellants :
    First — \Injunctions without bond must be confined to the causes only set forth in C. P. 739.
    Second — If any other cause is alleged, there must be bond and security., or the averments will be disregarded, or the injunction dissolved, at. the option of Defendant.
    Third — Reconventional demands are not permissible under Art. C. P. 739L

      Fourth — Issues already adjudged between the parties should not be allowed to be plead under this article.
    Fifth — When it is evident that the injunction under 739 is for no just cause, and for the simple purpose of harassing and hindering the enforcement of the mortgage, though no bond or security be required, the aggrieved party should have his damages.
    Sixth — In an appeal perfected by one of the parties litigant the issues involved should be finally settled and a second appeal from the same judgment should not be permitted.
    W. J. Baker et al. vs. Richardson, Monroe Opinion Book, p.214.
   On Motioit to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff and appellee moves to dismiss this ■appeal on the grounds:

(a). That the certificate of the clerk is not at its proper place in the transcript and is not full;

(b). That the transcript is incorrect and incomplete ;

(o). That matters and documents are incorporated in the transcript which do not belong to it;

(d). That a transcript belonging to this Court was, without leave, so incorporated.

(a). We find the clerk’s certificate properly at foot of the transcript prepared by him in this case, and which covers seventy-five pages. Looking into the note of evidence, in the transcript, we discover an agreement to use, on appeal, the transcript of a record introduced in evidence, filed in this Court, and which is minutely described in the agreement. It was legitimate for the parties to so agree, to save time and useless costs. The certificate of the clerk refers to the agreement and to the transcript annexed to his own, and which in all other respects satisfies legal requirements.

(b). The transcript does not appear to be incorrect. If it is hot full, in not containing a copy of the record offered in evidence, it is because the parties have agreed that it be not transcribed. The clerk has done as he was directed and authorized to do, and acted properly under the circumstances.

(c). We have been unable to discover any matter or documents as incorporated in the transcript which are foreign to it. The complaint in this respect also is not well founded.

(d). The transcript which was to be used, by consent, in this Court in case of appeal, is attached to the transcript of the case before us. It was withdrawn from the clerk’s office of this Court apparently without leave of Court, and annexed to the transcript of the present ease. This withdrawal and use of a transcript, in a decided case, was unauthorized and is censurable. The Clerk of this Court should not have permitted it to go from his hands, and the clerk of the lower court should not have used it the way he did, in having both bound together. This irregularity cannot, however, affect the sufficiency of the transcript in the case before the Court, so as to justify the dismissal of the appeal. If it was wrong- — as ft really was, to withdraw and use, without permission, this transcript, as was done — the wrong is repaired by a return of it to the clerk’s office. After the decision of this case, the clerk will separate the bound transcripts and place them in order in this office.

The motion to dismiss is overruled.

On THE MERITS.

The plaintiff has obtained an injunction to arrest a writ of seizure and sale issued against him on executory proceedings instituted by the Citizens’ Bank of Louisiana. He complains that the charter of that corporation was long since forfeited ; that the contract averred by the bank was procured by fraud, error, and grave misrepresentations ; that the loan of @28,000, alleged to have been made, never took place ; that the loan was paid and returned to the lenders ; that the bank is indebted to him in the sum of 821,000 for illegal occupancy and enjoyment of the land seized.

Dealing with the ease as if covered by article 739, O. P., the plaintiff, verifying his averments by affidavit, asked and obtained the injunction without giving bond.

By her counsel, the bank filed exceptions to the right of action, accompanied by an answer. By a proceeding in the nature of a motion to fix, the case was assigned for trial. When it came up, the District Judge proceeded to determine the exceptions, and having done* so, by sustaining them, he assigned the case to another day, to constrain plaintiff to prove his allegations. Under article 741, C. P., the trial of injunctions of this character is to be summary, 26 A. 651, 30 A. 1164, in order that the differences of the parties may bo speedily adjusted and the process of the Court be not unnecessarily delayed.

After hearing, the Court dissolved the injunction, but without allowing any damages — reserving the rights, if any, of plaintiff -to claim the @21,000 in another proceeding.

From the judgment, so rendered, both parties have appealed — the defendant by motion in open court previous -to adjournment, appeal returnable to this Court on the first Monday of June, 1880 ; the plaintiff by petition after adjournment, appeal returnable to this Court on the first Monday of June, 1881.

The appeal of the defendant is now before us, but the transcript, ■consequent on plaintiff’s appeal has not yet been filed.

The plaintiff, after moving for the dismissal of the appeal, and contingent on the overruling of the motion, answers and asks that,-for reasons assigned, the judgment of the lower court be reversed.

We shall now proceed to review the differences between the parties litigant on the questions, both of practice and of law, and facts presented by the record.

On the 15th of August, 1879, having filed these exceptions, and that answer, the defendant obtained an order to compel the plaintiff to prove, -on the 16th of September following, the truth of the facts alleged by him ; but it is not until the 14th of May, 1880, that the case came up. The exceptions to the petition were sustained and the issue was restricted to the averment of payment, and the case was continued to the 25th of May to enable the plaintiff to prove the truth of his averments.

The lower court properly sustained the exceptions by its judgment ■of May 14.

On the exceptions the bank had charged—

That Mr. Simms, administrator, whose name had been used to obtain the injunction, never authorized any such proceeding on his behalf; that the demand of plaintiff for a money judgment is not permissible In a proceeding like this ; that all issues raised by the petition in injunction, save that of payment, have been finally adjudicated upon in a case -specially mentioned ; that the plea of payment is inconsistent with every other material allegation in the petition, and should be disregarded. After setting up these preliminary defenses, the bank had asked that •the plaintiff be held to prove his allegations. J. W. Simms- made affidavit to show that his name had been used without his authority, and the suit was, as to him, dismissed, and this properly.

It-is clear that where proceedings are instituted under article 739, ®. P., no fact can be permitted to be alleged and proved which does not ■ conduce to establish one of the causes of complaint specified in the article, and which, if verified, would not justify the making of the injunction perpetual. We are at a loss to perceive how a money claim :(which is not liquidated, and compensated, and which is not even pleaded in compensation) for the alleged wrongful occupanc3r, and occupancy and enjoyment of the land seized, can assist in establishing any of the grounds upon which an injunction can issue under those provisions of the law. The plaintiff should have resorted to a direct action, and ■cannot be allowed to engraft this parasite claim on a proceeding origin-bating in the form in which this began. Berens vs. Boutté, 31 An. 112.

We find that the judgment in the case, reported in 30 An. 1322, -which is in evidence in this, on the plea of res judicata, can be successfully invoked in bar of the several matters raised in this.litigation. The purpose of the suit decided was the annulment of the judicial adjudication made to the Citizens’ Bank of the land seized in that case, and which is the same as in this case; the nullity of the sale made by the bank to Mrs. Jordan, after such adjudication ; the validity of the mortgage; the question of title and its apportionment; in fact, other objects substantially identical with those in view in the present controversy. The judicancla and the judicata seem to have the same characteristic features as those found in the present instance.

One of the grounds of the petition is that the Citizens’ Bank has no existence as a legal corporation ; still the plaintiff asks that citation, issue, and proceeds against it, eo nomine, in this litigation. The charge is inconsistent. There is no evidence in support of the allegation of forfeiture of charter, and, even if there were, how could it prove effectual when offered against the alleged defunct corporation itself ?

The grounds of the petition were properly held self-destructive, the plea of payment considered.

Judgment was rendered accordingly, declaring the nullity of the sales attacked, defining title in those to whom said land belonged, recognizing the validity of the claim and mortgage annulled in the present case, reviving the rights of the parties dispossessed to sue and recover for the rent and revenue, if due, of the property from Mrs. Jordan. The .judgment was pronounced contradictorily with the present plaintiff. It has become final and conclusive of the matters sought to be herein agitated.

A copy of the decree of the lower court maintaining the exceptions, and of the simultaneous order continuing the case for further trial to 25th of May, to enable plaintiff to prove his charges, was issued and served on the 14th of May, on one of the counsel of record of plaintiff. On the 25th of May the plaintiff objected to trial on the grounds that the case had not been reached on the regular call of the docket and under the rules of the Court, and could not be taken up out of its order; that no answer had been filed ; that defendant had waived and abandoned his right to have this case tried summarily, and had changed by his exceptions and pleas to the ordinary form ; that the plaintiff had not been notified. The Court overruled the objections, and a bill was reserved.

There was no evidence offered in support of the first ground that we see.

The burden of proving it rested on the plaintiff. The District Judge may have had evidence on that point before him, but it has not come up to us with the transcript. The appearance of the defendant, excepting to the proceeding, and eventually requiring proof of the averments, is a regular proceedmg. The defendant answered. It is not necessary that an answer should formally join issue by expressly admitting or denying. It cannot be claimed that the defendant has admitted the facts averred by the plaintiff. On the contrary, the bank can and must be treated as denying them, as there was a call for proof in support of the same. By the appearances made the defendant has not changed the character of the proceeding. The defendant has excepted and answered. It is true that the bank has asked damages, but this may be considered as a demand incidental to the actioD, if authorized by law in this form, or as surplusage, if not sanctioned by law. Had the defendant reconvened and asked the Court to condemn the plaintiff to pay the amount claimed in the executory proceeding, such a course would probably have changed the character of the action. We consider that the status of the original and of the injunction cases has not been altered from summary to ordinary, and that the summary trial which was had is sanctioned by law. The service on the attorney of record, on the 14th of May, is sufficient to notify his principal of the continuance of a case for trial. It has been frequently held that, in some instances, the service of a citation on, or acknowledgment of, such service by an attorney of record will bind the client, unless on counter affidavit as to want of authority in the counsel as such. It was for the counsel, at the time the case was called, if reasonable grounds for a continuance existed, to have asserted and urged them. It does not appear that any such circumstances were represented to serve as a foundation for a continuance. Besides, the continuance was ordered upon sustaining the exceptions, in open court. The trial was therefore proceeded with regularly.

The early history of this case is to be found in 30 A. 1322. The facts announced are in evidence in this case, and are correctly stated. A perusal of the statement may be of interest to the parties concerned, but a repetition of the same on the merits of this case would prove tedious, onerous, redundant. On the plea of res judicata set up, which has been noticed, a reference to the nature of the suit and of the substance of the judgment was so made as to suffice to serve as a basis for the determination of all the matters in issue now before us.

The exceptions having been sustained and the plaintiff restricted to proof of payment, he signally failed to establish that mode of extin- ' guishment, so difficult to substantiate when it has never occurred. 3d A. 1163. He applied for a commission, and propounded interrogatories which were crossed, aiid yet the commission appears in the record un-executed.

The defendant having proposed on the trial to show how payments had been made, the plaintiff objected on the ground that the defendant could not rebut under the pleadings. This objection was overruled and a bill reserved. The evidence was superfluous on the part of the defendant in injunction, and could only have relieved and benefited the plaintiff, who has therefore no cause for grievance.

The evidence offered by the defendant shows that what money was paid by the mortgagors was properly credited to those entitled to the credit; that the claim of the bank is correct; that the sum of $8685 was received by the bank from Mrs. Jordan, to whom the bank had sold the property after the adjudication of it to the bank ; that this sum was so received in part of the purchase price and in no way for account of either her husband or the minors, plaintiffs in this case, who are the-debtors of the bank. To Mrs. Jordan alone it appertains to claim from-, the bank, which is, therefore, responsible to her only. She is not a party-in any sense to these proceedings.

The defendant complains of the judgment of the lower court írv this only, that it does not allow the damages claimed as consequent • upon the dissolution of the injunction obtained without bond.

It was held in 15 L. 101, 4 A. 240, 19 A. 182, and 30 A. 316, that damages are not allowable in the same proceeding and summarily.

We have examined those adjudications, but we cannot assume to • say that they are founded upon a-misconception of the law. Had aní injunction issued, in a case in which a bond was required and had 'beenu furnished, the Code of Practice, art. 304, provides that, on its dissolation the Court, in the same judgment, shall condemn the plaintiff aa& surety, jointly and severally, to pay to the defendant interest aad damages. This article is substantially the original act of 1831, com- • mented upon by the decisions to which reference is made. In such cases the Court would be justified thus to condemn the parties, owing' merely to the existence of that special legislative authority, which cannot be extended to cases which it was not contemplated to comprise within its compass.

There is, indeed, no reason why a debtor who obtains upon rash sworn statements an injunction arresting without bond executory proceedings, issued against him on his confession of indebtedness in ant authentic act, and who wrongfully impedes the process of justice, should not be summarily mulcted at the very moment that the dissolution fs= pronounced ; but as was said in 30 A. 316 : “ The law is so clear, so free from doubt, that its letter cannot be disregarded, under the pretext of pursuing its spirit. It may be that it ought to be amended or changed; that as it is, it leaves the door too wide open to groundless defenses, to the litigation often resorted to to gain delay, but until changed or amended, it must be enforced as enacted.”

in the case before us, what right the bank may have in damages for the wrongful issuance of the injunction is expressly reserved to he-asserted in a proper proceeding. The right, if any, of the defendant to claim value for the occupancy and enjoyment of the property between ■its adjudication to the bank and the nullity of that adjudication is likewise reserved.

We consider that, under the circumstances of this case, our decision on the differences of the parties will conclude them on the appeal taken by the plaintiff, returnable on the first Monday of June, 1881, to this Court in Monroe. In' so declaring, we are supported by reason, and by the ruling in the unreported case of Raker vs. Richardson, decided here on July 3d, 1878, in which the Court said :

“All the parties are before us in the present appeal, and all the issues are presented therein. Our decree, on this appeal, will dispose definitively,of those issues, and its execution cannot be retarded by the existence of another appeal, taken in the same case, from the same judgment. The judgment of a District Court may be thus retarded, but •a judgment of the court of the last resort, between the same parties, upon the same issues, is final.”

We think that the judgments of the lower court are correct, and have done justice to the parties.

It is ordered that the judgments appealed from be affirmed with ■costs.


text:
    No. 986.
    State of Louisiana ex rel. Cobb & Gunby vs. Judges of the Circuit Court of Appeal for the Second Circuit.
    A case involving more than $200, exclusive of interest, and less tlian $1,000, on appeal from the late Parisli Court of the Parish of Ouacliita, to the late Fourteenth Judicial District Court for the parish of Ouachita, at the time of the adoption of the Constitution of 1879, should he transferred as directed by Act No. 29 of the Legislature of 1880, to the Court of Appeal for the Second Circuit, the only Court in the State now having jurisdiction of such a cause, under the present Constitutional organization.
    The mode of trial of such oases shall be as provided for, in said Act No. 29 of the Legislature of 1880.
    The title of said Act No. 29 is, in no manner, repugnant to Article 29 of tiie Constitution of 1879.
    This Court will exercise its original power over all inferior Courts, as granted by Article 90 of the Constitution of 1879, to order the Couits of Appeal to try such cases.
    iPPLICATION for Writ of Mandamus.
    Cobb & Gunby, Relators, in propriis personis.

    W. W. Farmer and O. Mayo, Judges of the Court of Appeal for the Second Circuit, Respondents.
   On Application bob Mandamus.

Tlie opinion of the Oourt was delivered by

Fenner, J.

Relators apply for a writ of mandamus addressed to ■the judges of the Oourt of Appeals for the Second Circuit of the State,’ ■commanding them to take jurisdiction of a certain cause on the docket of said court, in which relators are plaintiffs, and to proceed to the trial •thereof according to law.

The substantial facts, stated as briefly as possible, are as follows, ■viz.: The case referred to is one in which the matter in dispute exceeds •two hundred dollars, exclusive of interest, and does not exceed one thousand dollars. It was brought, tried, and decided in the late Parish Oourt of the parish of Ouachita.

An appeal was taken to the late Fourteenth Judicial District Oourt for the parish of Ouachita, which appeal was never disposed of, but was pending when said court was superseded, so far as the parish of Ouachita was concerned, by the present Fifth Judicial District Oourt, created under the Constitution of 1879. The judge of this last Oourt made an order directing that this and other similar cases be transferred for trial ■to the Oourt of Appeals for the Second Circuit, as directed by Act 29 of the General Assembly of 1880. The case was so transferred and placed ■on the docket of said Oourt of Appeals. At the first session of said ■Court in the parish of Ouachita, this cause was called for trial, when the counsel for defendants therein filed a plea to the jurisdiction of the ■Court, on the grounds that the Fifth Judicial District Oourt was vested with exclusive jurisdiction of the case; that it had been improperly transferred to the Circuit Court of Appeals, which was without jurisdiction to hear or determine the same; and praying that the cause be remanded to the said District Oourt to be proceeded with according to law.

After due hearing, the Circuit Court substantially sustained the plea, and rendered judgment annulling the order of the District Oourt transferring the case, and ordering the .clerk to replace the case on the docket of the said District Oourt, to be proceeded with according to law. One of the respondents suggests question as to our power to grant the relief asked by mandamus. We have no doubt upon that point. The jurisdiction to try and determine the appeal in question rests either in the ■Circuit Oourt or in the District Oourt. It cannot rest in both. If it rests in the Circuit Oourt, it is the plain constitutional duty of that Oourt -to exercise such jurisdiction and to hear and determine the cause; and -an order declining such jurisdiction and remanding the case to a court ■which has no jurisdiction would be, on the hypothesis stated, a plain violation of duty, and a denial of justice, for which there would be no other adequate remedy. The writ of mandamus is expressly authorized for the purpose of directing a court of inferior jurisdiction to perform some certain act belonging to the place, duty, or quality with which it is clothed ; which is the precise relief sought in the present proceeding,

¥e took occasion, at the earliest opportunity offered after our accession to the Bench, in the case of State ex rel. Wells vs. the Judge of the Sixth District Court, to lay down some general rules by which we should ordinarily be guided in our exercise of the power of “ control and general supervision over all inferior courts” granted us by article 90 of the Constitution. We there stated that we should exert that power through the medium of the writs of mandamus and other writs, mentioned in said article, and that we should follow the provisions of the Code of Pactice regulating said writs; but that we considered article 839 of that Code, restricting the authority to issue the writ of mandamus to courts having appellate jurisdiction, as abrogated by the article 90 of the Constitution, which extended our power over all inferior courts. There is, therefore, no difficulty in the way of our granting the relief sought, if we shall determine that the respondents have jurisdiction over the cause in question, and have refused to exercise the same, and have unlawfully turned the case from their Court and remanded it to another Court having no jurisdiction over it.

We have most attentively studied the able separate opinions prepared by respondents in support of their decision on the plea to the jurisdiction.

They arrive at their respective conclusions upon radically different theories. One concludes that tbe District Court must hear and determine the case in the exercise of its original jurisdiction, treating the prior judgment of the Parish Court as merged into the judgment which may be. rendered in the District Court. The other maintains the continued appellate jurisdiction of the District Court over the cause, and its duty to determine it in the exercise thereof. Either theory is maintained with great skill and plausibility. Both concur in the decree remanding the cause to the District Court.

In stating our own conclusions, we do not consider it necessary to answer all the arguments advanced by the respondents in support of their several theories, though we have not failed to weigh them, and satisfy ourselves that they are susceptible of complete refutation.

We think the following propositions are sustained by the plain letter of the Constitution of 1879, viz.:

1. The Courts of Appeal have exclusive appellate jurisdiction of all cases where the matter in dispute exceeds $200, exclusive of interest, and does not exceed $1000.

Const. Art. 95.

2. The District Courts have original jurisdiction of all matters exceeding fifty dollars, and have no appellate jurisdiction, except of appeals irom justices of the peace involving an amount between ten and one hundred dollars.

Const. Art. 109.

3. The Constitution provides that all cases pending in all other Courts under the Constitution of 1868 shall be transferred to the Courts respectively having jurisdiction of such causes under this Constitution.

The foregoing express provisions of the Constitution cannot be gainsaid or explained away.

Ve proceed with the following additional proposition, which is indisputable in point of fact, and, as a consequence of the above, irrefutable in point of logic, viz.:

4. The cause in question here is an appeal, and, therefore, a ease of appellate jurisdiction. It involves an amount exceeding §200, exelu-■sive of interest, and not exceeding §1000. The only Court, under the present Constitution, having appellate jurisdiction over such a case is the Court of Appeals. Hence, tinder article 261 ex vi terminorum, this •case was transferred to that Court.

All arguments against this proposition are either arguments ab in-•convenienti, or attempts to array the alleged intent of the Convention, •as implied in other articles, against its will as expressed in these articles of the Constitution, or efforts, by artful interpretation, to impress upon these latter articles a meaning of which their clear and unambiguous language is not susceptible.

We think it safest to stand by the plain letter of the Constitution; ■and that inevitably fastens the cause under consideration within the •appellate jurisdiction of the Circuit Court of Appeals.

We next proceed to consider the effect of article 102 of the Constitution, which has lain as a stumbling-block in the path of our learned brothers of the Circuit Court. From what we have heretofore said, it is apparent that the Courts of Appeal are vested by the Constitution with jurisdiction of two classes of appeals, viz.: First, of appeals from •the District Courts, in which the original records, pleadings, and evi•dence” are necessarily, under pre-existing as well as existing laws, taken down in writing; and, second, of appeals from the late Parish ■Courts, in which, under the laws governing the same, the evidence is not •necessarily taken down in writing.

Now, article 102 provides: “All cases on appeal to the Courts of Appeal shall be tried on the original record, pleadings, and evidence ■in the District Court.”

It is perfectly clear that this article only applies to..appeals from the District Courts. Any other interpretation would be absurd. To say that this article excludes from the jurisdiction of the Courts of Appeal proper cases of appeal from the late Parish Courts, would be to annul' the plain provisions of articles 95 and 261, as heretofore quoted by us> To say that such appeals are to he tried on “ original evidence in the-District Court,” where no such evidence was ever taken, would be unreasonable. The article can have no rational meaning, except as confined to appeals from the District Courts.

It follows, therefore, that the mode of trying appeals from the late-Parish Courts in the Courts of Appeal is not provided for in the Constitution. Does it follow that such appeals shall not be tried at all Clearly not. Does it follow that, in the absence of any evidence taken down in the Parish Court, without fault of the parties, the appeals shall be tried without any evidence at all ? That would be a farce.

With reference to these appeals, the Circuit Court occupies precisely the same position under the Constitution as the District Courts occupy with reference to appeals from justices of the peace. Article 111 provides: “The District Courts'shall have jurisdiction of appeals from justices of the peace in all matters where the amount in controversy shall exceed ten dollars, exclusive of interest.” The Constitution, contains no other word touching these appeals. It does not provide how they shall be tried. We know that in trials before justices of the peace the evidence is not taken down in writing. These appeals will be tried-in the District Courts ele novo. Why ? Because, under existing, laws,, the Legislature has provided that they shall be so tried, and, in the-absence of constitutional provision on that subject, the Legislature had-the right to regulate the ¡node of trial. So, in the case at bar, the Constitution not having provided the mode of trial for such appeals, it vested-within the province of the Legislature to do so.

Now, by Act No. 29 of 1880 the Legislature has regulated all these matters, and has provided the mode in which the parties to such appeal as that under consideration may have their evidence taken and: reduced to writing for use on the trial in the Courts of Appeal.

It has been objected that section nine of this statute and other sections touching the transfer of appeals from Parish Courts to the Courts of Appeal are in violation of article 102 of the Constitution, and of other articles regulating the jurisdiction of courts. From the view we have-taken of these articles, it is clear there is no such repugnancy.

It is further objected that the title of the act does not conform to the requirements of article 29 of the Constitution. There is no force in the objection. The title is “ to provide for the transfer of causes pending in the Courts established by the Constitution of 1868 to the Courts, established by Constitution of 1879.” The object stated is broad enough, to cover every thing germane, incident to, or connected with the transfer-of causes. The purpose of transfer from one court to another is to secure trial in the latter, and provisions for the mode of trial are germane and appropriate under such a title.

See State vs. Henderson, 32 An. 779.

We thus, by simply following the letter of the Constitution, reach conclusions on this entire subject in harmony with the legislative interpretation of the Constitution, and are able to give effect to the legislative will upon matters within its proper and legitimate domain. At the same time, we reach a direct, practical, equitable solution of the vexed questions involved, under which the rights of all parties will be secured. It will lie within the province of the Courts of Appeal' to make such .proper order touching the notices and delays to be observed in taking the testimony under the statute as will secure promptness of trial and preserve the rights of parties.

For these reasons we are of' opinion that the relators are entitled to the relief asked.

It is therefore ordered, adjudged, and decreed that the writ of mandamus herein issued be now made peremptory, commanding respondents to take jurisdiction of the case of Cobb & Gunby vs. H. W. O’Neil & F. P. Stubbs, No. 3 on the docket of their said Court, and to proceed to the trial and determination thereof according to law, and in accordance with such rules and orders touching the trial of causes as they may make in their said Courts.


text:
    No. 965.
    State of Louisiana vs. Mary Jane Henderson, alias Williams.
    Act jESTo. 54 of the Legislature of 1880, providing for the qualifications and for the selection of jurors throughout the State, is not violative of Articles 29, 30 and 47 of the Constitution of 1879.
    APPEAL from the Eifth Judicial'District Court, parish of Richland. Richardson, J.
    E. G. Hudson, District Attorney, for the State, Appellee.
    John H. Dinkgrave for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The defendant, having been tried, convicted, and sentenced in the Court a qua, takes this appeal and seeks to have the indictment quashed and the verdict and sentence reversed, on the grounds : that the grand jury, by which the indictment was found, was not drawn according to law, tliere not being fifty days intervening between the drawing and empaneling of such grand jury, as required by Act No. 41 of 1877, and that the Act No. 54 of 1880, in accordance with which the ¡said grand jury was drawn and empaneled without said intervening space of fifty days, is unconstitutional, null, and void.

The objection was properly presented in the lower court, first, on a motion to quash the indictment, and, afterward, on a motion in arrest of judgment, both of which were overruled.

It is not disputed that the requirements of act 44 of 1877 were not complied with, and, if the case is governed by that law, it is settled that the non-compliance is fatal to the indictment and all subsequent proceedings.

State vs. Smith, 31 An. 406.

The drawing and empaneling of the grand jury, however, were in .•¡eeordance with the provisions of section 2 of Act 54 of 1880, and if that act is constitutional, the errors assigned in behalf of defendant have nothing to rest on.

The constitutional objections urged are as follows :

1. That the act is violative of article 29 of tha Constitution of 1879, in that all its objects are not embraced in its title.

This provision of our present Constitution requiring that “every law shall embrace but one object, and that shall be expressed in its title,” has existed in prior Constitutions of this State, and in the Constitutions of many other States of the Union, and has been the subject of frequent j udicial interpretation.

The universal tenor of the decisions in this and other States establishes,

Eirst. That the mischief designed to be prevented by the provisions are, 1st, to obviate confusion in legislation by mingling in the same act entirely distinct and heterogeneous provisions; (Walker vs. Caldwell, 4 An. 298); 2d, to prevent hodge-podge or log-rolling legislation, bringing together in one bill diverse subjects with a view to combine in the support of the entire bill the advocates of each particular provision; People vs. Mahaney, 13 Mich. 494; 3d, to prevent surprise or fraud upon the Legislature or the people, by smuggling provisions into bills of which the title gave no intimation, and which might, therefore, be carelessly and unintentionally adopted.

13 Mich. 494.

Second. That this constitutional provision is to be construed liberally, so as to confine its operation to cases within the fair scope of the motives for its adoption and the mischief sought to be remedied thereby.

The whole subject matter is well discussed in Cooley on Const. Limitations, pp. 141 et seq. Keeping the foregoing principles in view, let us examine the act in question. The title is: “ An Act to carry into effect article 116 ; to provide the qualifications, and ior the selection of competent and intelligent jurors throughout the State.” Article 116 of the Constitution refers exclusively to the selection of juries. The sole subject of the act, therefore, is juries; its sole object is the selection and qualifications of jurors; and no object not 'directly connected with the constitution of juries is embraced in either the title or the act itself. The title of an act is not invalidated because it specifies several particular objects, all of which are properly referable to, and subdivisions of, a single general object. Thus, if the title had been “an act relative to juries ” or “ to provide for the constitution of juries,” it would have covered provisions relative to qualification, selection, and all other details. And, so, if the 'title provides for the qualifications, selection, and any other details for the constitution of juries, these particulars do not form manifold objects, but are grouped together and form but a single general object.

We think the term “selection,” as used in article 116 of the Constitution and in the title of this act is broad enough to cover provisions for the drawing of juries.

It is evident .that the meaning of article 116 of the Constitution is to require the Legislature to pass general jury laws. '

The word “ selection ” has no exclusive or sacramental application to the act of jury commissioners in choosing the persons to constitute the general venire list. It is equally applicable to the subsequent act ■of the same commissioners in choosing, by drawing from the general venire box, the names for service as grand and petit jurors. These two acts are merely successive steps in the process of ultimate “ selection.”

Webster defines the word “selection” tobe “the act of choosing and taking from among a number.” It would be hypercritical to say that the word strictly implies the element of choice or preference, which is absent from a mere drawing by chance. In common parlance, we often hear of choosing or selecting by lot.

We are bound to presume that the Legislature intended to use the word in its broadest signification, and to cover the “ drawing ” of the juries, since, otherwise, it would destroy the constitutionality of the provision; and words used in legislative acts are not to be subjected to nice philological criticism, when they are susceptible, according to general use, of a meaning consistent with constitutional requirements.

Second. It is claimed that the act violates article 30 of the Constitution, in amending a general law by reference to its title.

There is nothing in this objection. It does not amend any law nor refer to the title of any law. The words at the beginning of section two of the act, viz.: “That jurors shall be drawn, in the manner provided by law; provided ’’ — are mere surplusage, and only a self-evident proposition. They may be stricken out without altering the effect of the section, and there remains a complete and independent provision amenable to no objection under this article.

Third. It is charged to be violative of art. 47 of the Constitution, because it enacts a special and local law by the partial repeal of a general law.

Not so. The .provision of section two of the act is not a local or special law. It applies throughout the State, and to all 'cases falling within its terms.

It applies to every District Court, in any parish of the State, the term of which is fixed by law for the first Monday of April, 1880.

The subjects of general legislation necessarily admit of classification, and the act only becomes special when it discriminates between cases in the same class.

There remains to be noticed a bill of exceptions taken to the ruling of the judge in allowing two witnesses to testify, whose names did not appear on the indictment and had not been served on the prisoner.

We find no authority sanctioning such ground of exclusion, and think the ruling of the judge was entirely correct.

It is therefore ordered that the judgment appealed from be affirmed.


author: Poché, J.

text:
    No. 961.
    State of Louisiana vs. M. M. Given.
    A mere clerical error in the Information, sucli as cash instead of case, cannot he considered a serious groundupon which to avoid the verdict of the jury.
    Objections to the manner of drawing a venire, must be made on the first day of the week for which the venire was drawn. Act No. 44 of 1877.
    Evidence of alleged misconduct ot the ¡sheriff and the jury cannot be examined and considered by this Court, unless embodied or attached to a Bill of Exceptions.
    APPEAL from the Fifth Judicial District Court, parish of Richland. Richardson, J.
    F. G. Hudson, District Attorney, for the State, Appellee.
    R. Ray and D. 0. Morgan for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

M. M. Given was prosecuted under an information by the District Attorney on a charge of horse-stealing, and after trial, was con•victed and sentenced to imprisonment at hard labor for one year in the State Penitentiary. After an ineffectual attempt for a new trial, and an unsuccessful motion in arrest of judgment, he has appealed to this Court, seeks to avoid verdict of the jury, and to reverse sentence and judgment of the lower court, on the following grounds :

First. That the information is defective, because in the sentence which should read, contrary to the form of the statute of the State of Louisiana, in such case made and provided,” the information contains-the word cash, instead of the word case.

Second. That Act No. 54 of the Legislature of 1880, under which the jury was drawn, is unconstitutional, and violates article 29 of the Constitution of 1879, and that said jury was not drawn conformably to the provisions of Act No. 44 of 1877, requiring the jury to be drawn fifty days before the assigning of the court.

Third. That after being charged by the judge the jury was allowed to separate.

1. The first objection was made the ground of the motion in arrest of judgment, and is apparently urged as a serious objection ; but in our opinion it is simply the result of a clerical error, caused by an absence of mind in the District Attorney, who, unconsciously, wrote cash instead of case, as he evidently intended, as shown by the words preceding and following the objectionable word ; just as defendant’s counsel, in their manuscript brief, while arguing this very point, inadvertently wrote care for case. This ground is not serious, and is absolutely untenable.

2. The second ground was contained in a challenge to the array of' petit jurors which were drawn for the third week of the court, by reason of the alleged unconstitutionality of Act No. 54 of 1880.

This objection should have been urged on the first day of the week for which the venire had been drawn, that is, on the 17th of May, 1880,. but was made only on the 18th of that month; it was, therefore, too late, and cannot be considered. Act No. 44, 1877 ; 31 A. 91, 369.

3. The third objection has reference to the alleged misconduct of the jury and of the sheriff, for allowing one of the jurors to absent himself from the room when the jury was deliberating, and was made the ground for the motion of a new trial.

Evidence to show the alleged misconduct of the jury was introduced and taken down in writing, and is in the record, but it is not embodied in, or attached to, a bill of exceptions.

Under the Constitution and the well-settled jurisprudence of our State, established by numerous decisions, and recently re-affirmed by us in the case of the State vs. Charles Nelson, just decided, we have no jurisdiction in criminal cases over questions of fact, and can, therefore, take no cognizance of the evidence introduced in support of the alleged misconduct of the sheriff and of the jury. We fully recognize, and shall In all (proper cases exercise, our right to review the action of District Judges on motion for new trials in criminal causes, but when a question of fact is blended therewith, the facts must be made part of, or attached to, a bill of exceptions.

It is therefore ordered that the verdict of the jury in this case be maintained, and that the judgment of the lower court be affirmed with costs.


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    No. 968.
    M. Levy vs. V. A. Ward, Administratrix.
    A contract, by -winch a plantation is sold for the sum of $2000, -which the vendee agrees to advance in yearly instalments to the vendor, for the cultivation of the propoity sold, with a stipulation by which the vendee promises to reconvey the plantation to the vendor, on re-imbursoment of the money advanced and interest — such a contract is not one of hypo-thecary or pignorative security; but it is a regular sale with the right of redemption, the title of which is only defeasible by the exercise of the said right of redemption.
    APPEAL from the Sixth Judicial District Court, parish of Morehouse. Vaughan, Judge ad hoc.

    Newton & Hall for Plaintiff and Appellee.
    Bussey & Naff and Boatner &.Liddell for Defendant and Appellant :
    If, at the time of the sale, the contract was wanting in any of the requisites of a real sale, these defects cannot be cured or remedied by any subsequent verbal agreement or transaction between the parties.
    When the thing sold remains in the possession of the seller, the law raises the presumption of simulation; and the buyer must remove the presumption. 30 An. 968 ; 28 An. 357 ; 23 An. 666; 19 An. 53 ; 15 An. 555; 5 An. 99; 1 An, 132.
    A! simulated title gives neither possession nor title ; and no act of the parties thereto can affect the rights of creditors.
    Documents, in the form of a sale, shown by a counter-letter to have been made without such intention, cannot serve as a sale. 5 An. 99; 10 An. 691; 23 An. 658, 666 ; 28 in. 357 ; 31 An. 348.
    The administratrix represents the creditors.
    ’The prescription of one year does not apply to a simulated sale.
   The opinion of the Court was delivered by

Fenner, J.

On November 15th, 1873, George C. Ward executed an act of sale by the terms of which, in consideration of the price of $2000, receipt of which is acknowledged, he conveyed his plantation to M. Levy, plaintiff in this suit. Said deed contained the following pact: “ It is specially understood, between said parties, that, in case the said Ward, or his heirs, should, at any time hereafter, pay said Levy or his heirs the amount he paid for said land, together with eight per cent per annum interest thereon, from January 1st, 1874, said Levy, his heirs, or assigns are to make him, said Ward, or his heirs, a title to said land, and relinquish any claim thereon.”

On the same day the parties, Ward and Levy, executed two other agreements or counter-letters, both of which are found in the record. One of these counter-letters is in the following words : “ Be it known that on this 15th day of November, 1873, the following contract and agreement was entered into between Geo. 0. Ward and Michel Levy, to wit: Said Levy has this day agreed to forward and advance to said Geo. O. Ward necessary supplies to enable him to cultivate his plantation situated in this parish, for the year 1874, and for a further length of time, if said Ward should desire it, to an amount not to exceed one thousand dollars any year, together with dry goods, stock, and other necessaries, which amounts are to be shown by M. Levy’s books. And the said Ward has, this day, in order to secure the said Levy in the payment of any amounts he may advance him, transferred to said Levy his plantation in this parish, with the understanding and agreement that he, said Ward, is to stay on said plantation and cultivate the same free of any rents, and with the further understanding that he is to have the privilege to redeem said land, by paying said Levy the amount advanced Mm, at any time. It is further understood that said Ward is to have the privilege to rent said plantation if he should desire it. It is further understood that said Levy is to ship the cotton raised by said Ward each year, and that they are to have a settlement showing how they stand financially on or about the 15th of April annually. It is further understood the consideration in said act of saléis two thousand dollars, wdiich in fact has not yet been paid, but is to be paid in said advances as aforesaid, advanced this year, and to be advanced hereafter.”

The foregoing is signed by both parties, in presence of two subscribing witnesses, and is verified by the affidavit of one of said witnesses made on the day of its dalte, and was, on the same day, duly recorded, as appears from the certificate of the recorder, indorsed thereon.

The other agreement or counter-letter, though differing in some respects from the foregoing, we do not deem it necessary to copy, for the following reasons : Mr. Levy testifies, and the counsel for defendant does not contest, but substantially admits, the truth of his states ment, that one of the counter-letters was annulled, after being signed, •and the other was drawn as a substitute for it. The question as to which of the two was canceled and which remained in force is not clearly-stated in the record. We are satisfied that the one copied by us above is the one last drawn, and which remained in effect, for the following reasons, viz.:

First. It is much more carefully and correctly drawn and expressed than the other.

Second. It contains the verifying affidavit óf one of the subscribing witnesses, which the other lacks.

Third. It was the one actually recorded and left of record from the 15th of November, 1873, until the 10th of January following, when the record was annulled.

These circumstances produce the conclusive impression on our minds that this recorded counter-letter was the last one drawn, and the •one which embodied the final agreement of the parties ; and although both the originals remained extant and were offered in evidence by the defendant in this case, we shall treat the one recorded, and which we have copied herein, as the only one entitled to consideration.

To proceed with the history of the transaction : Levy proceeded to make advances to Ward in accordance with their understanding, and the evidence establishes that sundry settlements were had as stipulated, from which it appears that at the date of the sale (covered by the phrase in the counter-lettér, “ advanced this year and to be advanced hereafter”) Ward owed Levy $815 91; on April 16th, 1874, he owed him 41153 17 ; on May 10th, 1875, $1595 99 ; on April 15th, 1876, $1985 73 ; on March 16fch, 1877, $2291 57, or $291.57 more than the whole price which was to be paid in these advances ; and on December 14th, 1877, the date of Ward’s death, $3167 62, or $1167 62 over and above the stipulated price.

Ward remained in possession of the plantation, as stipulated in the counter-letter, rent free, until 1876, when the balance due Levy on the settlement of that year being nearly equal to the entire price due under the sale, it appears that an informal lease was made by Levy to Ward ■of the plantation at a rent of four dollars per acre for the cultivated portion, about ninety acres, for which a sort of note or due-bill was given by Ward. At the same time, an incomprehensible agreement was executed by Levy, in the following words : “ I, Michel Levy, aerees for the rent of the land for the year 1876, when collected, to be placed to the credit on note or account of G-. C. Ward, if there is any amount over and above of the nett proceeds of cotton when shipped for my account after paying for provisions furnished and dry goods to be placed credit on said Ward note.”

We have struggled in vain to determine satisfactorily the meaning of this enigmatical utterance; but it seems of little consequence, since, in the following year, 1877, the parties entered into a formal contract of lease, by the terms of which it is stipulated that “ the said Levy hereby leases unto said Ward his plantation known as the Ward place, being the same place which the said Levy purchased from me on the 15th November, 1873, etc.;” and further on, that “said Ward agrees to take good care of said plantation, and the buildings and improvements, and to deliver the same in like good order and condition at expiration of lease to said Levy,” etc. The rent is fixed at $349 06, for which Ward gave his rent-note; and there is no pretense of any outstanding agreement, verbal or written, to impugn the reality of this transaction. On the 14th of December, 1877, during the pendency of this lease, and while holding thereunder, Ward died.

His administratrix caused the plantation to be inventoried as part of his estate; subsequently obtained from the probate court an order for the sale thereof, and advertised the same for sale, when her further proceedings were arrested by the injunction issued in this suit.

Plaintiff, in his petition herein, sets forth his title and ownership of the property, the lease thereof to Ward, the alleged illegal detention of the property by the administratrix, her proceedings for its sale, with other appropriate allegations to sustain his claim for injunction; and asks a judgment perpetuating the injunction, decreeing him to be the owner of the property, putting him in possession thereof, and for further judgment for rent at the rate of $500 per annum from 1st January, 1878, the date of expiration of the lease to Ward, until his restoration to possession.

Defendant answered, denying the ownership of plaintiff, averring ■ that the sale from Ward to plaintiff was a pure simulation; that it was given in fraud of creditors; that if plaintiff acquired any rights under the deed, tliose rights were hypothecary in their nature, and only intended to secure payment of advances made; that the property remained the property of Ward and of his succession, and should be sold in settlement of the latter; and prayed for judgment dissolving the injunction, decreeing the property to belong to the succession, and for damages against the plaintiff.

Upon these issues and on evidence substantially establishing the facts hereinbefore stated, the lower court gave judgment in favor of plaintiff substantially as prayed for, except as to his demand for rent, which was rejected. Prom this judgment defendant has appealed.

The viéw we have takenbf the case dispenses us from the necessity of passing upon the numerous bills of exceptions taken by either party to the record.

The deed from Ward to Levy is a perfect and complete sale with the right of redemption. All the elements essential to constitute a sale concur therein, the thing sold, the price, the consent. The right of redemption is stipulated in strict accord with art. 2567 of the Oode.

The counter-letter, properly construed, taken as part of the entire contract, does not rob it of any of these essential elements, but, on the contrary, confirms and establishes the existence of every one of them.

1. As to the thing and the consent, the counter-letter affirms anew that Ward has “ transferred to said Levy his plantation in this parish,’' thus ratifying the consent, and again identifying the thing.

2. As to the price, the counter-letter distinctly states that " the consideration in said act of sale is two thousand dollars, which in fact has not yet been paid, but is to be paid in said advances as aforesaid advanced this year, and to be advanced hereafter.” This absolutely bound Levy to pay the price in the manner stipulated.

3. As to the right of redemption, it is repeated in the counter-letter substantially as set forth in the deed, by the following language: “ He (Ward) is to have the privilege to redeem said land by paying said Levy the amount advanced him, at anytime” — which language, taken in connection with the fact that the price was to be paid in “ advances,” is equivalent to a reservation of the right to redeem on paying to Levy the price, or such portion thereof as might have been paid ; with, no doubt, the added requirement to pay back any excess of advances over the whole price. That there should ever exist any such excess doubtless did not enter into the contemplation of the parties at that time ; but we can see no objection to a vendor with right cf redemption thus qualifying his right and enlarging his obligation if he chooses so to do.

The features of the counter-letter above referred to distinctly differentiate this case from all of those referred to by the counsel for defendant and carefully examined by us, in which it has been held that contracts in the form of sales, but where it appears in the stipulations of the deed or from contemporary counter-letters that no sale or other contract translative of property was intended by the parties, that no price was paid or intended or required to be paid, and that the title was passed to tho tránsferree, not as owner, but solely as security for debt, did not operate to confer ownership on the transferree, but merely gave him a hypothecary right on the property.

Here, on the contrary, it distinctly appears from the counter-letter itself, that a real sale was intended, conferring upon the vendee a real ownership, defeasible only by the exercise of the right of redemption reserved to the vendor, in accordance with the the terms thereof, and that there was a real price, which the vendee was bound to pay in the manner stipulated, if required by the vendor.

No doubt the counter-letter does establish that the motive of the transaction was to enable Ward to continue the cultivation of the place, a,nd to supply him with funds for that purpose, with the expectation that the results of the cultivation would enable him to repay the money advanced by Levy out of the proceeds of crops raised. If this expectation had proved well founded, and if the crop of any year had repaid all the advances previously made by Levy, the effect would have been that no part of the price would have been paid by Levy, and that Ward would have been free to re-enter into the property and require a reconveyance under his equity of redemption, without having any thing ■to repay to Levy. But when the crops raised fell short of repaying the advances made, the surplus unquestionably was attributable as a credit on the price due by Levy under the very terms of the counter-letter. Levy was bound to continue the advances until the surplus thereof, over and above the proceeds of crops, equaled two thousand dollars, which would have operated a complete payment of the price. He would not have been bound to make further advances, and having then paid the whole price of the sale, would have been entitled to take possession of the property, subject still, of course, to Ward’s right of redemption.

The execution of the contract by the parties fully confirms this construction. Levy made advances as he had agreed to do. As long as the surplus of advances over proceeds of crops was less than §2000, the agreed price, he left Ward in possession, rent-free, as stipulated, and did not interfere with his administration of the property. But when in 1877 the surplus of advances exceeded §2000, thus operating full payment of the entire price, we find that the parties enter into a formal contract cf lease at a fixed rent, by which Ward recognizes Levy’s full ownership and right of possession, accepts tenancy under him, and obligates himself “ to take care of said plantation, and to deliver the same in like good ■order and condition at the expiration of the lease to said Levy,” etc.

There is absolutely nothing in the record impugning or tending to impugn the reajáty of this lease. We consider it as furnishing the authoritative construction placed by the parties themselves on their former contract, establishing and acknowledging Levy’s ownership and right of possession of the property in such manner that neither Ward nor his legal representative can question it.

Although we have critically examined the whole jurisprudence on the subject of contracts of this kind, the conclusions reached by us as to the facts in this case dispense us from the necessity of reviewing them. We simply say that here there was a real contract, a real price, and that the absolute and unconditional obligation of the vendee to pay the price appears as well in the counter-letter as in the deed. This Court has never, in any case, held that where the absolute obligation for the price subsists, the co-relative right can be less than a right of ownership. The ownership thus translated may be intended or expected, in the contemplation of the parties, to have, in some sense, a pignorative or hypo-thecary effect, but it is nevertheless an ownership, defeasible only by redemption under the stipulations of the contract.

The view we have taken establishes that the contract was, in no sense, simulated. We do not think it was subject to attack as being in fraud of creditors, Ward not. being shown to have been insolvent at the time the contract was entered into ; but, on the contrary, the price due by Levy being greater than all his debts. Besides, the only creditor of Ward’s succession is E. J. Hope, and as to him the revocatory action is barred.

So far as the necessitous wiEe’s claim is concerned, that only originated at the husband’s death, and does not give her the right to the revocatory action as to antecedent contracts.

We think Levy’s right to possession was absolute from the first of January, 1878, and he is entitled to rent from that date ; but we do not think the evidence establishes, with sufficient clearness, the amount of the rent, or who has occupied the premises, the petition alleging,that the administratrix and other persons were in possession of the property. Under the amendment prayed for by appellee’s counsel, we shall change the judgment as to the rent to one of nonsuit.

The question as to whether a right of redemption remains in the succession of Ward is not presented here, and the rights of the succession will not be prejudiced by the decree herein.

It is therefore ordered, adjudged, and decreed that the judgment herein appealed from be amended so far as the same rejects the claim of plaintiff for rent, and that said claim for rent be only dismissed as in case of nonsuit, and that in all other respects said judgment be affirmed, defendant and appellant paying costs in both courts.

Mr. Justice Todd is recused in this case, haviDg been of counsel.


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    No. 976.
    Successions of M. S. and Polly Cason. On Opposition of Elizabeth Thames, and Opposition and Intervention of Murrell & Barnes.
    Lhe widow of a «oooihI marriage, in necessitous circumstances, is entitled to the $1000 homestead upon the property of the Community of acquets and gains which existed between the deceased husband and his Jirstwife; and the said widow’s privilege is superior in rank to the special mortgage of tho creditors of that former Community.
    APPEAL from the Parish Court, parish of Claiborne. McClendon. Special Judge.

      Jas. E. Taylor for Opponents and Appellants :
    The community of a previous marriage must be settled and the debts-paid before the widow of a subsequent marriage can claim the thousand dollars gratuity out of the property of the first community. 0. 0. 2402 ; 29 An. 583 ; 31 An. 495 ; 21 An. 520 ; 6 An. 441; 5 N. S. 568.
    John Young and John S. Young, contra.
   The opinion of the Court was delivered by

Fenner, J.

M. S. and Polly Oason were husband and wife. Polly Cason died in 1877. M. S. Oason married Elizabeth Thames in 1878, and shortly thereafter died, leaving her a necessitous widow. The succession of M. S. and Polly Oason was then opened. The property inventoried was, nearly all, property of the community of acquets and gains which had subsisted between M. S. and Polly Oason. The most important part of the property was a tract of land belonging to the community, upon which Murrell & Barnes held a mortgage for a community debt. The contest here is between Murrell & Barnes, claiming as creditors of the community, to be paid by preference out of the community property, and Elizabeth Thames, widow of the second marriage, j. claiming to be paid $1000 as widow in necessitous circumstances, by preference over all creditors.

There is no dispute about the essential facts, viz.: 1, that Elizabeth-Thames is a widow in necessitous circumstances, entitled to the homestead claim ; 2, that Murrell & Barnes are creditors cf the community of the first marriage ; 3, that- the property sought to be subjected to their respective claims was property of this last mentioned community.

The theory of the counsel for Murrell & Barnes, urged with great ingenuity and plausibility, is based on the following propositions :

First. That, as laid down by this Court in Childers vs. Johnson, 6 An. 441, “ This community, like other partnerships, must be considered as an ideal being, Hire moral, distinct from the persons who compose it, having its rights and obligations, its assets, its liabilities, its debtors, and its creditors.”

Second. That, therefore, the property belonging to the community, like the property of an ordinary partnership, does .not belong to the partners, as individuals, and does not pass into, or become part of their respective successions at their deaths; but that their successions acquire nothing except the residuum which may remain after settlement of the community debts. Suc. Staffer, 21 An. 520.

Third. That the claim of the necessitous widow only attaches to the property of the husband’s succession, and, therefore, only to his interest in the residuum which may remain of community property after paying the community debts.

If this theory were correct, it would operate not 'only to shut out ihe second widow’s claim under the facts of this particular case ; but it -would equally operate to shut out the claim of every necessitous widow from attaching to the property of an insolvent community, and would thus render the widow’s homestead-act practically inoperative in nearly ■every case.

We cannot maintain a doctrine leading to consequences so inharmonious with the humane purposes of the law, and with the mode of execution thereof, which has prevailed -without question, from the time of Its adoption. The fallacy of the theory consists in subjecting the community of acquets and gains to all the rules and principles governing partnerships. The Code is quite careful in informing ns that “ the community of property created by marriage is not a partnership.” Rev. 0. <0. 2807.

While there are points of resemblance between this community and partnership, there are very marked and distinctive differences.

During the existence of the community, the husband is practically the owner of the community property, which he may sell, dispose of, and encumber, by onerous title, at will, and without the concurrence of his wife. He is personally responsible for all of its debts. At his death It enters into and forms part of his succession, to be therein administered •■and devoted to the payment of the community debts, which are also his personal debts. The wife has no personal liability for the debts, and has no interest whatever in an insolvent community. In caso of the dissolution of such a community by the prior death of the wife, her suc-cession or heirs have no valuable interest in the community property.

If, as in this case, the community be admittedly insolvent, they 'have no interest, and, consequently, no right, to provoke its liquidation. As to the community creditors, they are under no necessity to provoke its liquidation through the medium of the wife’s succession, because it Is settled they may disregard the wife’s interest, and proceed directly against the community property in the possession of the husband, contradictorily with him alone. 26 An. 230, 391, 294.

■ The property, therefore, remains in the possession and control of •the husband, subject to the claims of the community creditors, and at his death falls into his succession, and is liable to the necessitous widow’s privilege, after exhaustion of his separate estate, just as it is liable to -funeral charges, expenses of last illness, and other privileged claims, in ithe rank fixed by law.

It is therefore ordered, adjudged, and decreed that the judgment .-appealed from be affirmed at appellant’s costs.


author: Levy, J.

text:
    No. 985.
    Board of School Directors of Union Parish vs. J. E. Trimble.
    The obligation of the Treasurer of the School Board of Union Parish to account for funds-received hy him in that capacity, is one ex contractu and fiduciary in its character, ancL is only barred by the prescription of ten years.

      k PPEAL from the Eleventh Judicial District Court, parish of Union.. ¿3L Graham, J.

    Allen Barksdale, District Attorney, and Geo. A. Killgore, Jr., for Plaintiffs and Appellants :
    First — One holding for another cannot plead prescription of any term of years against the demand of the owner for the thing so held. C. CL 3436.
    Second — -Action to rescind a.settlement on account of error or fraud is not prescribed by one year ; only ten years prescribe such an action. C. C. 2221 (2218); 2 A. 443.
    Third — Actions against agents and depositaries for damages caused by their fraud, or negligence, or mismanagement, are only prescribed! by ten years. 7 B. 513, 3 L. 591.
    Biehardson, McEnery & Young, W. B. Butland, E. E. Kidd, and5 John Young for Defendant and Appellee:
    An action brought against an officer for the alleged fraudulent withholding of public money in his charge, is an action ex delicto. It is-the alleged wrong which has been practiced that gives the character to the suit. The prescription of one year applies to such an> action. 31 An. 529 ; 3 La. 338; 31 An. 567 ; 6 Bob. 382 ; 14 An. 389 p 15 An. 418.
    A settlement, as between the parties to it, has the force and effect of a. judgment. It is an adjudication of the respective claims of the parties in interest.
    Where a suit is brought to annul the settlement on the ground of fraud), it must be alleged that the discovery of the fraud practiced wa& made within one year of the date of filing the suit.
    Where error and fraud is alleged to have been practiced in a settlement which has been made, the items of error in the settlement must be specifically alleged and proved. 9 Bob. 119.
   The opinion of the Court was delivered by

Levy, J.

The plaintiffs, constituting the Board of School Directors-of the parish of Union, instituted suit against J. E. Trimble, on the 22<5 of September, 1877, in which they sought to annul a settlement made by the defendant as Treasurer of the School 'Board of said parish in the year 1875 with the Board then in existence, on the ground that said settlement was false, fraudulent, erroneous, and null and void; and further praying for judgment against defendant for the several sums of $4262 59, $872 57, $763 90, and $10,000, alleged to be due the plaintiffs, in their official capacity, by the defendant; these sums being alleged as due, not having been legally and properly accounted for by defendant, late Treasurer as aforesaid. The defendant filed an exception containing two points, first, to the vague and indefinite allegations of fraud and error in the settlement made between the Board of School Directors and defendant, on the 17th of August, 1875, and that the petition did not set forth specific items in which error and fraud occurred, and therefore that the allegations were insufficient to place the defendant upon a defense of what particular items are complained of. Second, the plea of prescription of one and two years in bar to plaintiffs’ demand.

Another exception was filed, averring no cause of action ; there was a motion by defendant to compel plaintiffs to elect, on the ground that several inconsistent actions were cumulated in the same suit or demand. The motion to elect and the exception of no cause of action were overruled and the plea of prescription was sustained, and judgment dismissing the suit at plaintiffs’ costs. From this judgment plaintiff has appealed.

We find no error id the rulings of the court as to the plea of no cause of action and on the motion to elect. The question for our consideration and decision is, should the plea of prescription be sustained.

The defendant .contends that this is an action ex delicto, and that the prescription of one year applies thereto; that the settlement between the parties has the force and effect of a judgment, and that a suit to annul the settlement on the ground of fraud must contain the allegation that the discovery of the fraud was made within one year of the date of filing the suit, and that where error and fraud are alleged as to the settlement, the items of such error must be specifically alleged and proved.

This action is not in our opinion one which arises from an offense or quasi offense. It is brought to annul a settlement alleged to have been made in fraud and error, by which an officer of the School Board, who was virtually an agent of that Board and received and held funds for them subject to their control and disposition only, is charged with a responsibility and liability for those funds which are retained by him, and withheld from those rightfully entitled to them, under a settlement or transaction averred to be fraudulent and erroneous. The obligation of the defendant, independent of that created by his official bond, was one ex contractu, or an implied contract, and the violation of any of the duties or obligations arising therefrom, renders him liable, and an action therefor is only prescribed in ten years. The obligation may exist without the bond ; it springs out of the relation which defendant bore to the plaintiffs, fiduciary in its character, and not falling under the prescription claimed by defendant. We do not think the decision in 31 An. 567, Oity of New Orleans vs. Southern Bank, controls the question in this ease or is 'applicable to it. The Court there says : “ The characteristic, therefore, of offense or quasi offense is' that the act from which 'the obligation arises is unlawful. The marked distinction, then, between a quasi contract and an offense or quasi offense, is that the act which gives rise to a quasi contract is a lawful 'act, and therefore is permitted ; while the act which gives rise to an offense or quasi offense is unlawful, and therefore is forbidden.” “The distinction between damages ex delicto and ex contractu is, that the latter ensue from the breach of a special obligation, and the former from the violation of a general duty.” In that case the Court observed “that Dubuclet (State Treasurer) was to receive only money, and he did not receive money, but bonds, and his act was therefore unlawful, and is an offense or quasi offense.” In this case the defendant did receive moneys, which he had a right to receive, and his act was therefore lawful, and being a “ lawful act,” and “permitted,” gives rise to a quasi contract. .In the case of Wood et al. vs. Foster, 3 La. 338, it is shown that “the complaint of the plaintiffs is that their property was illegally taken possession of by a commercial firm, of which the defendant is the surviving partner. The suit in this respect seems to be intended to enforce the performance of an obligation not arising from a contract either express or implied by law, but one created by the acts of Foster & Hutton, injurious to the plaintiffs, without relation to any agreement; a consequence of an act by which they were deprived of the enjoyment and possession of their property; an injury done not in violation of any contract or quasi contract, but by illegal conduct in taking property without the consent of those who allege themselves to have been owners.”

As we have before said, the cause of action herein is not ex delicto, but we regard it as being ex contractu, or on an implied oontract, and we are sustained in our views as to the non-applicability of the plea of prescription made by the defendant in this case. The case of Mulford vs. Wimbish, 2 An. 443, conclusively establishes the prescription which applies to actions for the nullity or rescission of agreements. The Court held : " The prescription established by article 2218 relates.to cases of ' error, fraud, or violence in agreements which are expressly included in it.” And “ this article 2218 relates to the action of nullity or of rescission of agreements, and provides that in all eases in which either action is not limited to a shorter period by a particular law, it may be brought within ten years.” 20 An. 151; 9 Rob. 396 ; 11 An. 551; 21 An. 492.

In the case of Percy and others vs. White and others, reported in T Rob. 513, it appears that certain stockholders of the Planters’ Bank of Louisiana instituted suit against the defendants, who had been directors, of the bank, charging defendants with fraud and negligence in the discharge of their duties as directors, whereby the institution was ruined and the stock lost, and the Court held “this is an action of damages. ex contractu against mandatariesand, holding that more than ten years had elapsed since any act which proved injurious to the interests-of the stockholders, sustained the plea of prescription. See, also, T Rob. 369.

We think the lower court erred in sustaining the plea of prescription made by the defendant.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed; that the plea of prescription of one and two years be overruled, and that this case be-remanded to be proceeded with according to law, and that the appellee-herein do pay the costs of this appeal.


text:
    No. 963.
    State of Louisiana vs. W. L. Thompson.
    In a prosecution for embezzlement, tlie receipt of tbe prosecuting witness for tbe amount alleged to have been embezzled, given subsequently to tbe Indictment and arrest of tbe prisoner, is not admissible in evidence.
    It is no defect in tbe Indictment, tbat it does not describe tbe sum of money alleged to be embezzled, as consisting in coins or bank notes.
    Tbe whole Record of a suit having been offered in evidence by the accused and admitted without objection, tbe Court bad no right to prevent him from reading certain, parts of tbe Record to tbe Jury in the argument. Dor this reason, tbe verdict and sentence should be set aside, and tbe case remanded.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.
    J. C. Egan, Attorney-General, for the State, Appellee.
    James C. Walker and C. McRae Selph for Defendant and Appellant :
    First — The judge should limit Ms charge to giving the jury a knowledge of the law applicable to the case ; and when he undertakes to define a crime, he should use clear and intelligible language.
    -Second — It is irregular, and the example open to abuse, that the judge should warn the accused not to compel the court to pass so frequently on matters of evidence in the presence of the jury.

      Third — Evidence should be received to show that money alleged to have-been embezzled has been paid to prosecuting witness by the accused since his arrest.
    Fourth — 'When a bill of exceptions does not contain the true grounds of the judge’s opinion, he should decline to sign it, instead of contradicting the facts as set forth in the bill.
    Fifth — The accused has the right to read his plea to the jury empaneled to try the charge against him.
    Sixth — The giving of a check in payment of a sum of money alleged to' have been embezzled, does not tend to prove the crime charged, and therefore is inadmissible as evidence in the cause.
    Seventh — When the record of a judicial proceeding has been introduced in evidence, and filed on the trial of a cause against an accused, he-has the right to read the whole of it or a part only to the jury, on the argument of the case; and the judge has no authority to restrain or control his discretion or choice in this respect.
    Eighth — The burden of proof is on the State to prove that an attorney-at-law on trial for embezzlement has feloniously kept more than his fees out of the amount collected by him for his client, and the accused should be allowed to offer evidence of the value of the services he claims to have rendered.
    Ninth — When the thing alleged to have been embezzled is not indicated by the indictment,- the defect is one of substance, and not one of form, and the omission vitiates the indictment. It should set forth whether the money alleged to have been embezzled consisted in gold or silver dollars, or in currency.
   The opinion of the Court was delivered by

Levy, J.

William L. Thompson was indicted on the 22d of July, 1879, on the charge of embezzlement, was tried by a jury, found guilty* and sentenced to one year imprisonment at hard labor in the State Penitentiary, and to pay the costs of prosecution. The accused made a. motion for a new trial, which was overruled, and he has appealed.

The indictment charges “that one William L. Thompson, late of the parish of Orleans, on the 21st of January, 1879, with force and arms* and within the jurisdiction of the Superior Criminal Court for the parish of Orleans, being the attorney of one John G. Dyer, did, by virtue of such employment, then, and while he was so employed as aforesaid, receive and take into his possession certain money, to wit., the sum of one-hundred and fifteen dollars and ten cents, for and in the tame and on the account of the said JohnG. Dyer, his employer, as aforesaid, and the said money of him, the said John G. Dyer, so received by the said William L. Thompson, as aforesaid, he, the said William L. Thompson* did, then, fraudulently and feloniously, wrongEully use, dispose of, conceal, and otherwise embezzle,” etc., with the usual and statutory closing of the indictment.

We find several bills of exception taken to the charge and rulings of the court, on which the accused relies for a reversal of the judgment in this case. We will consider them as presented in the brief of his counsel.

The first bill of exception is to the charge given by the judge to the jury. The accused requested the court to charge “ that all attorneys-at-law in this State have a special privilege in judgments obtained by them.” The court did so charge, and added the following: “ That if the defendant kept more than his fee out of the amount of the reception of the money, and feloniously converted the balance to his own use by embezzling it, he was guilty as alleged.” The charge was. given by the court as requested by the.accused ; it was a proper charge ; the addi-s tional words did not annul, change, or vitiate this charge, and contain nothing which is illegal, and no expression of opinion as to the facts ; the hypothesis and deduction therefrom do not constitute the statement of any illegal proposition or comment upon the facts, and cannot be considered as calculated to mystify the jury or prejudice the accused. It might have been more concise, and, perhaps, it contained redundancy, repetition, or innocent surplusage, but still it affords no ground for reversal of the judgment.

The next bill of exceptions, was taken to the declaration made by the judge: That he warned the accused, in a friendly spirit, not to compel the court to pass so frequently on matters of evidence in the presence of the jury.” In the language of the judge: “This warning was given in a friendly spirit, not to compel the court to pass so frequently on matters of evidence in the presence of the jury. This warning was matter of humanity, to shield the accused from the consequences of his manifest indiscretion.” We are unable to perceive in what manner the accused was injured or prejudiced by this declaration or.warning. " Instead of manifesting any disposition to curtail the legal rights of the accused, it seems to have been intended to operate as a warning in his interest, and a humane intimation in his behalf. However it may be regarded by the accused himself, and the motives of the judge a quo misunderstood or misinterpreted by him, it did not, in our opinion, injure him, and was not calculated to create any unfavorable impression upon or prejudice the jury against him. The fact that the accused conducted his own defense, and acted as his own lawyer on the trial of the case, may well have influenced the court, in this instance, in counseling and advising him, as complained of. It affords another illustration of the truth that gratuitous advice is never very highly appreciated.

The fourth, bill of exceptions is taken to the refusal of the court to ■allow the accused to introduce in evidence the prosecuting witness’s receipt for the money which the accused is charged with having embezzled 'from him. In the bill, the accused states that the District Attorney did mot object to the introduction of this evidence, and that the court, ex ■proprio motu, and without objection from the District Attorney, refused to allow said receipt to be introduced in evidence. In the bill the court, in Its reasons for such refusal, states “the District Attorney objected to the introduction of the receipt when offered in evidence, on the ground that it and the record showed it was dated after the indictment and -arrest of the accused in the present case, and the court held the objection good.” While the statements of the accused and of the court set forth in the bill are thus contradictory, we are of opinion that the statement, reasons, and grounds embodied therein by the court must be "regarded as correct and accepted as true, and must be considered by us, "rather than the adverse statement of the accused. If the court had refused to sign the bill of exceptions tendered by accused, the law points out the means by which he might bo compelled to perform that duty. O. P. 899. But no step has been taken herein. The reasons and state-ment of the court form a part of the bill of exceptions ; no question of -their correctness was raised, as appears by the record; but incorporated in the bill and presented to us without question in the court below, ■they are brought before us by the accused appellant himself, and we "treat, the statement of the court as entitled to full weight, and conclu•sive as to the facts recited. We think the court properly refused to allow the evidence. The receipt, given subsequent to the indictment and arrest, could not affect the guilt or innocence of the accused on the ■■charge for which he was indicted, was wholly irrelevant, and therefore ¡there was no error in the ruling of the court.

The objection alleging a defect in the indictment as not setting forth and describing that the sum of money declared to have been embezzled consisted in coins or bank-notes, etc., has no weight. Rev. Stat. g1061.

As to the exception to the admission in evidence of the check signed by the accused,-and dated January 25th, 1880, we can see no reason why It should have been excluded. It was properly admitted as a part of the transaction out of which the offense charged grew, and was admissible as a circumstance or fact to show the receipt of the money alleged ■to have been collected, and may be regarded as a part of the res gestae.

A serious, and, to our minds, insuperable objection in this case, ■which goes to the validity of the proceedings had on the trial, is set forth in the bill of exceptions, in which the accused complains that the -court refused to allow’the defendant to read only a portion of the record «of the suit of Dyer vs. Burdeau to the jury in argument. In this bill, the court in the statement and reasons shows that “in his argument the defendant read to the jury the parts of the record excluded by the court. It has been established by credible testimony, that the services of the defendant were engaged'by Dr. Dyer for a stipulated sum; that the sum had been paid ; that the alleged collection by Thompson for Dyer had been made, and that Thompson concealed the fact from Dyer after the collection. Thompson attempted on his trial to prove a quantum meruit. Under the circumstances the court excluded testimony of the value of his services, the purpose for which the documentary evidence alluded to was offered, but which was subsequently got before the jury in defendant’s argument in his own behalf.” *'

The transcript shows that the records in the suit of Dyer vs. Bur-deau were offered in evidence on the trial of this case, were received without objection, “submitted to the jury, and filed in evidence.”

The court, in its reasons, states that the record was offered to prove the value of defendant’s services under a quantum meruit, and, further, that the defendant offered to read part of the record which had been excluded by the court.

The transcript distinctly shows that the whole record in the suits was offered and received in evidence, and was, therefore, before the jury. No objection seems to have been made to its introduction, and being thus in evidence, the accused was entitled to use, to refer to, or to read the whole or any part of it. Nothing appears in the transcript showing the exclusion of any portion of this record by the court. Indeed, the bill of exceptions signed by the judge recites that the “record and all of the papers of the suit of Dyer vs. Burdeau were offered in evidence.” We think it was sufficient that the record was before the jury in evidence, no matter for what purpose, to entitle the accused to-read it before the jury, and he could read the whole or any part of it, as he thought proper. The court gives as a reason for excluding the evidence that “ it had been proved by credible testimony that the services of the defendant were engaged by Dr. Dyer for a stipulated sum, and that the sum had been paid,” and that “ Thompson attempted on his trial to prove a quantum meruit, and under the circumstances the court excluded testimony of the value of his services, the purpose for which the documentary evidence alluded to was offered.”

Non constat that the accused might not have disproved that the alleged stipulated sum was not really stipulated, or that the sum was not paid, or that there was not a subsequent agreement by which he was entitled to an additional sum, or that he was to be paid a further sum, dependent upon the value of his services.

At any rate, for whatever purpose the accused desired to read the record in evidence, it being filed, and before the jury, he had the right to read, and bring it, as he might think, more directly to their attention.

We think the court erred in refusing or restricting this clear right of the accused. Eor, whatever the evidence contained in the record was worth, the accused had the right to present it to the jury, who would have given it its proper weight.

It is therefore ordered, adjudged, and decreed that the verdict and sentence of the lower court be set aside, and the judgment therein be annulled, avoided, and reversed, and that this case be remanded to the court again to be proceeded with according to law.