author: McEnery, J.

text:
    No. 11,677.
    W. W. Brown vs. A. K. Clingman.
    The prescription of one year provided for in Art. 3536, Civil Code, commences to ran from the date of the damages sustained by the act complained of.
    The prescription is not uninterrupted until the plaintiff can get sufficient evidence to maintain his suit.
    APPEAL from the Third District Oourt, Parish of Claiborne. Barksdale, J.

      McClendon & Seals for Plaintiff and Appellant.

      J. A. Richardson, J. E. Moore and J. W. Solbert for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff sued the defendant to recover the sum of nine thousand nine hundred and thirty-one dollars and ninety-six cents for the 'destruction of his hotel and furniture by fire. The petition “ alleges that in the summer of 1889 said A. K. Clingman set fire to and caused fire to be set to a house on the south side of the public square in the town of Homer, which house was burned; that said house was one of several wooden buildings— all in a row, close to each other; that the entire row of buildings was also destroyed by the same fire at the same time; that across the street from said row of buildings was one owned and occupied by your petitioner as a hotel, and known as the Brown Hotel; that said hotel was also burned and consumed by the same fire, and at the same time; that the burning of said hotel was the actual,1 immediate, direct and proximate result of the action of said Cling-man in setting fire to the house on the south side of the public square.” The act of Clingman, the defendant, is characterized as “unlawful, wanton and malicious.” There was judgment for defendant in the lower court, from which the plaintiff appealed.

In this court the prescription of one year, under Art. 3536, Civil Code, is pleaded by defendant against the demand of plaintiff. The fire oceured July 27, 1889. This suit was filed May 16, 1894, more than one year after the damage was sustained.

The plaintiff contends that the prescription only begins to run from a knowledge of the act complained of, and refers to the case of Byrnes & Co. vs. Creditors, 33 An. 198. In that case the confession of judgment, the act complained of, was filed on the 25th ■of April, 1879, when the plaintiff attempted to enforce it. It had no existence until filed, and it was only from this date that prescription could commence.

The prescription is not interrupted until the plaintiff can gather sufficient evidence to warrant the bringing of the suit.

The plaintiff, in his testimony, says: “I believed defendant had the town burned, or caused it to be burned, and I yet believe it as firmly as I believe the sun shines. I was satisfied of this in my mind, and have been ever since the fire. * * * I believe that defendant had the town burned — not from any actual knowledge or proof, but from the manner in which he talked to me about it. I did not find out until about February or first day of March, this year. Anybody would swear that he burned, or caused the burn. The first time I saw the document attached to deposition, purporting to be a sworn statement of John Dwyer, was in June of 1894. * * * It was in April that I discovered the evidence, but I was satisfied of the facts before that. The reason I did not bring the suit sooner is, I did not have any one by whom I could prove the facts.”

The plaintiff’s suit was filed after the confession of one Dwyer, implicating defendant in the burning of the town, and from this date, it is urged, prescription should commence to run.

The article of the Code on which the plea of prescription is based says it begins to run from the time the damage was sustained. Mestier vs. New Orleans, Opelousas & Great Western Railroad Company, 16 An. 354; Hotard vs. Railway Company, 36 An. 450; Gardiner vs. Succession of Scherer, 31 An. 527.

The damage to plaintiff, if caused by act of defendant, was sustained on the date of the fire. And plaintiff’s testimony shows that he believed defendant did the act, but at the time he did not have sufficient proof of the fact, and waited until the proof could be obtained.

The prescription pleaded must prevail.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11,672.
    State ex rel. J. Thomas Waller vs. J. R. Fowler, Justice of the Peace.
    The supervisory control of the Supreme Court over inferior tribunals extends to the examination of the proceedings in an unappealable case, and if it appears that a justice of the peace has rendered a judgment against the relator without giving him a hearing, or in a case where he has no jurisdiction over the person of the defendant, who does not appear and answer the demand, the judgm'ent thus rendered will be annulled.
    The action of nullity instituted by the relator does not prevent the application to this court for relief in the exercise of its supervisory jurisdiction over inferior tribunals.
    ^^PPLIOATION for a Writ of Certiorari.

      Kidd & Van Hooh for Relator.
    Respondent in propria persona.

   The opinion of the court was delivered by

McEnery, J.

This is an application for a writ of certiorari against the defendant, justice of the peace, who rendered a judgment in an unappealable ease against the defendant, who was a resident of the parish of Union, and the justice’s court had jurisdiction only in the ward in which it was located in Jackson parish.

The relief sought by relator is based on the. supervisory jurisdiction of this court.

In answer to the preliminary order, the respondent justice has sent -a certified copy of the proceedings in the case to this court. From them we learn that the defendant and relator was a resident of Union parish, and judgment was rendered against him, without a hearing, as he was never cited, and made no appearance. The suit was commenced by attachment, and under the judgment his property was sold and the fi. fa. returned satisfied by the constable. The defendant, after the rendition of the judgment, brought a suit in the justice court to annul the same.

The supervisory jurisdiction of this court over inferior tribunals extends to the examination of the proceedings in an unappealable case, and if it appears that the magistrate has rendered a judgment against the relator, without giving him a hearing, or in a case where he has no jurisdiction over the person of the defendant, who does not appear and answer the demand, the judgment thus rendered will be annulled and avoided. Montague vs. Coquillon, 35 An. 1101. The action of nullity instituted by the relator does not prevent the application to this court for relief in the exercise of our supervisory control over the justice’s court.

The relator was bound to appear in that court in order to have the judgment declared a nullity. Iu the suit, the justice reaffirmed his original judgment under which the property was sold.

We have held that an action to annul a judgment will not interfere with the defendant’s right of appeal. Cockfidd vs. Tourres, 24 An. 168.

The relator had the right to institute an action of nullity, and we do not think by the exercise of this right he has barred himself from the other remedy, the application to this court for a writ of cer-tiorari.

The judgment against defendant and relator was an absolute nullity.

It is therefore ordered that the relief prayed for be granted, and the judgment complained of be declared null, void and of no effect.


text:
    No. 11,606.
    State of Louisiana vs. Henry King.
    Evidence o£ previous threats is inadmissible in evidence when no overt act of the deceased against the accused has been established.
    Threats alone do not constitute an overt act.
    PPEAL from the Eleventh District Court, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and B. Lee Garland, Acting District Attorney, for Plaintiff, Appellee.

      E. P. Veazie and' John N. Ogden for Defendant, Appellant.
   The opinion of the court was delivered by

McEnery, J.

The accused was indicted for murder, tried and convicted of manslaughter. He appealed.

An assignment of errors has been filed that the record does not show that the accused was arraigned.

He was arraigned, but inadvertently this fact was omitted from the record. It has been supplied, and the record completed since the filing of the transcript.

We find one bill of exception in the record, taken to the ruling of the judge in excluding testimony as to previous threats of deceased against accused.

The bill is as follows:

“The State, in placing its case before the jury, introduced as witnesses Tete Williams and Sam Dupre, who stated that defendant was the aggressor in the fatal difficulty. When defendant opened his case he put at issue the correctness of this testimony, and took the position that he had the right to show who was the aggressor at the time of the fatal conflict, and to this end had the right to show recent threats made against him by the deceased, and called Mariah Greenfield for the sole purpose of proving said recent threats, and to show by them who was the aggressor in the fatal encounter only, and to maintain his plea of self-defence. But his Honor, the presiding judge, excluded said evidence on the ground, viz.: Because the evidence showed conclusively and beyond any doubt that the deceased made no act or hostile demonstration toward the accused, and because the evidence showed conclusively and beyond doubt that the defendant was the aggressor; in fact, that he grabbed and stabbed the deceased as he went through the door of the store opening on the gallery. It was further shown that deceased remained in said store quite awhile to avoid the accused, and was attempting to go home when killed.

“It was further shown that accused had posted himself at that door a short time prior to the homicide. That he had stated about an hour prior to the homicide that he would kill the deceased if he had to remain there at the store until morning. This state of facts was not attempted to be denied, except by testimony of accused, and the court could not admit evidence of threats in the teeth of positive proof that defendant was the aggressor, and that deceased had made no overt act or hostile demonstration at the time his life was so ruthlessly taken.”

The rule is so well established that previous threats of deceased against accused are inadmissible in evidence, unless an overt act or hostile demonstration of the deceased against the accused has first been established, that it is scarcely necessary to cite authorities. Wharton, Sec. 757; State vs. Ford, 37 An. 443; State vs. Labuzan, 37 An. 489; State vs. Janvier, 37 An. 644; State vs. Kervin, 37 An. 782; State vs. Jackson, 37 An. 896; State vs. Brooks, 39 An. 817; State vs. Wilson, 43 An. 840; State vs. Cosgrove, 42 An. 753; State vs. Christian, 44 An. 950; State vs. Harris, 45 An. 843; State vs. Stewart, 45 An. 1164; State vs. Ernest Beck, 46 An. 1421; State vs. Adam Green, 46 An. 1522.

From the facts stated in the bill it appears that the deceased had made no demonstration whatever against the accused, and that the witness was put on the stand to prove threats, and “to show by them who was the aggressor in the fatal encounter only and to maintain his plea of self defence.”

Threats alone do not constitute the overt act.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,643.
    State of Louisiana vs. Sam Madison.
    The trial judge had authority to excuse a juror, before he had been sworn, on account of the condition of his health.
    The court acts upon the statement of the judge, whose signature imparts .force to the bill.
    Proof that the defendant had been admitted to bail was irrelevant and properly excluded.
    The question was not necessarily leading, and therefore not ground sufficient to annul the verdict.
    The testimony sought to be elicited by the question was in rebuttal, and therefore permissible.
    Although the witness did not remember all that was said by defendant in his confession, his testimony was admissible.
    When no objection was interposed to the admissibility of the evidence, proof of the fact that no improper influence was brought to bear on the accused is not an essential prior to the proof of the confession.
    APPEAL from Fifth District Oourt, Parish of Ouachita. Potts, J.

      M. J. Gunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff and Appellee.

      E. T. Lamkin for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The accused was indicted for murder and convicted of manslaughter. He appeals from the verdict of the jury and sentence of the court.

The first bill of exceptions assigns as error that a tales juror, without sufficient cause, was excused from serving on the jury.

The records disclose that he had been sworn on his voir dire and examined by the prosecuting officer, and then turned over to the accused to be examined, who replied that he had no question to propound.

At that state of the proceedings the tales juror stated that he was just recovering from severe illness and could not serve if it necessitated his being locked up during the night. It was at the time 3 o’clock. The juror had not been accepted. The jury had not been empaneled. There were seven or eight witnesses in the case. The judge concluded that the case could not be tried and verdict returned to enable the juror to escape from the confinement he apprehended on account of his health.

The trial judge must have some discretion in determining the qualification of jurors.

His ruling in excusing a juror on account of the condition of his health, before he has been accepted and sworn, is not ground to annul the verdict, unless it is shown that there was error committed to the prejudice of the rights of the accused.

The statement of the trial judge in the second bill of exception refutes completely the position assumed by the defendant. The incident of the trial complained of was not at all relevant or material to the issue of the case. Moreover, the judge denies that he made the remark to the jury attributed to him.

“ The Supreme Court in considering a bill of exception accepts and ' acts upon the statement of the judge, whose signature alone imparts force to the bill. Defendant must either stand upon the bill as signed by the judge or he has no bill at all.” State vs. Moore, 38 An. 66.

In the third bill of exception the defendant assigns as error that he was not permitted to prove that a preliminary examination had been held and the testimony of witnesses reduced to writing, and that an order had been made by the committing judge admitting the accused to bail.

The trial judge’s statement, made part of the bill, is:

“ I allowed the counsel for the defendant to prove that the papers in the preliminary examination were lost, and offered to allow him to introduce secondary evidence of their contents. Counsel stated that the only part that he desired to prove was that the judge who had conducted the preliminary examination had admitted the accused to bond. This evidence I rejected as irrelevant to the issue in the case.” The ruling was correct.

The fourth bill of exceptions assigns as error the ruling of the court in permitting a question which was, it is urged, leading in form. Further, that the plaintiff had closed its case, and that the defendant also had closed when the State sought, ostensibly in rebuttal, to prove by a witness, who had been previously sworn on behalf of the State, a confession.

The objection was that it was not in rebuttal, and that the witness could not relate the substance of the confession.

The question propounded in point of form is in a sense leading, but it is not so objectionable as to necessitate the setting aside of the verdict.

Mr. Wharton, in his work on Criminal Evidence, 9th Ed., p. 454, announces that ordinarily the allowance of a leading question is at the discretion of the court.

“At the same time when it appears that by undue liberty in this respect justice has suffered and a conviction unjustly obtained, a new trial will be granted.”

Nothing in the trial “suggests that justice has suffered and a conviction unjustly obtained.”

The defendant’s further objection was that the testimony sought by the question was not in rebuttal.

The narrative of the bill leads only to one inference — that is, that the plea of self-defence was interposed and that the prosecuting officer was attempting to negative the fact that the deceased was armed with a knife; in rebuttal of defendant’s testimony (that he was armed).

The objection of the defendant that the witness who testified about a confession did not-remember so as to state the substance of what he said is not sustained by the answer of the witness as stated in the bill of exception upon which the accused relies.

He testified to the substance of what the accused said, and added if anything else was said he did not remember it.

“A confession by a person charged with a crime is not necessarily inadmissible because the person to show it was made testifies that he does not remember all the confession, bub only some of the particular points thereof.” State vs. Thomas, 28 An. 827.

Counsel for the defendant urges in argument that no confession should be admitted in evidence unless it is shown to have been made voluntarily.

It does not appear that the accused raised any objection to the admissibility of the evidence and that he asked to have it excluded from the consideration of the jury.

This question was considered in the case of the State of Louisiana vs. Davis, 34 An. 352, and the ruling, we think, disposes of the point argued in the pending case.

We conclude that the rulings of the District Court were correct.

Judgment affirmed.


text:
    No. 11,678.
    J. M. Womack vs. E. Fudikar.
    The suit was brought to recover damages for an alleged malicious prosecution.
    The merchant returned the price he had received for goods sold. The buyer bound himself to return them. They were delivered only about eight months afterward, and a short time after the defendant had originated a prosecution.
    Tub Verdici of Two Juries. — In the pending case a jury decided for the defendant.
    Without assigning any reason the District Judge granted a new trial.
    The second jury, after the second trial, found for the defendant'.
    The findings of facts by two juries must have some weight.
    Burden of Proof. — The burden is on the plaintiff to prove both the want of probable cause for the prosecution against him and malice on the part of the defendant.
    Desire to Injure Accused —The facts from which malice is found ought to be such as to satisfy a reasonable mind that the defendant had no ground to originate the prosecution but his desire to injure the accused.
    Advice of Counsel. — The defendant sought, received and acted upon the advice of counsel. This affords strong evidence that the prosecution was entered into in good faith and without malice.

      While to constitute the false pretence against an accused for obtaining money under false pretences, the pretence must relate to past events or existing facts, the same limitation and definition aa to state of facts does not always prevail when the suit is for damages for an alleged prosecution.
    There is high authority in support of the position that the prosecutor may act upon appearance, and if the apparent facts are such that a discreet and prudent person would be led to the belief that the accused had committed a crime, he will not be liable in a malicious prosecution, although it may turn out that the accused was innocent. 8 Otto, p. 187; Greenleaf, Vol. 2, p. 415,10th Ed.
    Madison, J. ad hoc. PPEAL from the Fifth District Court, Parish of Ouachita.

      Garrett & Munholland for Plaintiff, Appellant:
    The use of criminal process to enforce a civil claim is an intolerable abuse even when the claim exists. Malice may be inferred from want of probable cause. The wanton and causeless injury of an individual is in itself a malicious act. Connell vs. Michel, 6 An. 578; American Digest (1893), p. 3103, Nos. 35, 37, 38.

      Fred. G. Hudson for Defendant, Appellee:
    Probable cause depends not upon the facts as they existed at the time, but upon the honest and reasonable belief of the party prosecuting. 2 Greenleaf on Evidence, Secs. 449, 455; 10 An. 537; 12 An. 53, 332; 40 An. 374; Gamier vs. Bernard, 45 An. 1265.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, a farmer, sues the defendant, a merchant, for damages for an alleged malicious prosecution.

His grievance upon which he bases his claim consists in that he bought goods of the defendant merchant amounting to about sixty ■dollars, including a barrel of syrup, for which he paid eight dollars.

A week or two after he had bought these goods, he came from his home to Monroe, a distance of about fourteen miles.

He brought with him in a flask a sample of the syrup to see if the defendant would take it back, as it was of inferior quality.

The defendant consented to take it back and returned the eight dollars to the plaintiff. The latter at the time promised to return the syrup.

An order to deliver the syrup to Wilson Tillman was handed to the plaintiff, and by him it was sent to Tillman, who had ordered the defendant to send him a.half barrel of syrup.

The plaintiff testifies that Tillman refused to receive the syrup.

In October, 1892, he was arrested under defendant’s charge of having obtained money under false pretences. ■

After hearing, he was committed to the District Oourt by the District Judge, acting in the capacity of a committing magistrate.

There was no indictment, on the charge, found by the grand jury.,

The defendant denies that, in making the charge, he was actuated by malice, and that he acted without probable cause.

He and witnesses, summoned by him, testified that there had been delays and failure on the part of the plaintiff to comply with the agreement to return the syrup; that he had refused to avail himself of the opportunity offered to him to deliver the syrup; and, finally, that- he threateningly sent away the one to whom it was to be delivered, so that he was afraid to go back.

In September the defendant addressed a letter to the plaintiff, in which he expressed surprise at defendant’s failure to deliver the ■syrup.

The October following, upon the advice of counsel, defendant’s affidavit was made.

A short time subsequent the plaintiff delivered the syrup-. ■ It was sold by the defendant, and the buyer testified that it was good syrup.

The plaintiff was not at any time under arrest.

After he had been notified of the charge he was directed by the officer to appear before the committing magistrate.

The case was tried before a jury.

The judge of the District Oourt, who was the committing judge at the preliminary trial, granted a new trial, the jury having found a ' verdict for the defendant.

At the second trial also, the verdict was for the defendant.

THE GROUNDS OF BELIEF THAT A FELONY HAD BEEN COMMITTED.

From the judgment of the court based on the last verdict the plaintiff appeals.

Upon the state of facts proved, the defendant assumed that a. felony had been committed.

It is well settled that to sustain the defendant’s defence of a suit against him for damages for an alleged malicious prosecution,, the grounds of belief must be such as would influence the mind of at reasonable person. The question is not whether the accused was guilty, but the belief of the prosecutor as to his guilt.

Probable cause for instituting a criminal prosecution, Mr. Hilliard on Torts states, “ is sucha state of facts known to and influencing the-prosecutor as would lead a man of ordinary caution and prudence, acting conscientiously, impartially, reasonably and without prejudice, upon the facts within the parties’ knowledge, to believe and entertain an honest and strong suspicion that the person accused is guilty.”

■ Two juries have found that the state of facts was such as to create the belief of guilt; they must have concluded that the representations-óf the plaintiff and the circumstances under which the price was re - turned were of such a character as to lead the defendant to believe that the plaintiff was guilty of obtaining money under false pre-tences.

ADVICE OP COUNSEL.

Moreover, the defendant acted upon the advice of counsel learned in law. The record discloses that he placed the facts before his counsel and acted upon his opinion.

In argument before this court counsel, after having reviewed the facts, stated that he acted under his guidance. This was also his statement as a witness in the lower court.

It therefore appears that the disclosure of the defendant to his counsel was not misleading and that the facts were not withheld from him.

Mr. Cooley, in his valuable work on Torts, 2d Ed., p. 212, says, il that when the complainant places all the facts before his counsel, and acts upon his opinion, proof of the facts makes out a case of probable cause.

“ The advice must be that of a person accepted and licensed by the courts as one learned in the law and competent to be adviser to-clients and to the courts.”

Mr. Greenleaf announces in terms more broad than necessary to-sustain the judgment of the District Court that if the party did not withhold any information from his counsel with the intent bo procure an opinion that might operate to shelter and protect him against a suit, but on the contrary, if he, being doubtful of his legal rights, ■consulted learned counsel with a view to ascertain them, and afterward pursued the course pointed out by his legal adviser, he is not liable to this action, notwithstanding his counsel may have mistaken the law.” Vol. 2., p. 415, 10th Ed.

In Stewart vs. Sonneborn, 8 Otto, p. 187, a similar principle was announced.

Judgment affirmed.


author: Breáux, J.

text:
    No. 11,682.
    George E. Gilmer, Under-Tutor, vs. Wm. Winter et al.
    Family Meeting. — A family meeting authorized the tutor to borrow an amount for the use and benefit of his minors. »
    Amount Loaned. — I-Ie delivered the note, secured by mortgage on property of his wards, to the defendant, from whom ho borrowed the money, for an amount considerably less than he was authorized to borrow.
    Foreclosure oe Mortgage. — The defendant in injunction, who was plaintiff in executory proceedings, sued to foreclose his mortgage.
    ‘ Injunction. — The under-tutor enjoined, and defends on the ground that the family meeting was not lawfully constituted.
    Third Person. — The court finds that the illegalities alleged can not affect-the holder of the note.
    Application oe Funds Borrowed. — The under-tutor defends on the further ground that the lender of the amount borrowed by the tutor and holder of the note knew, that the borrowed money was to be applied to the payment of the tutor’s individual debts.
    The court holds that proof of that knowledge fails, and the lender is not bound to see to the judicious application of the money borrowed for the minors.
    Pate oe Interest. — The last defence is, excessive charge of interest. The court deducted the amount which was not within the limits of legal sanction, and affirmed the judgment for the remaining principal, with eightper cent, interest from the date of the note, the interest being* separate from the amount deducted on the face of the note.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Leonard & Thatcher for Plaintiff and Appellant.

      Wise & Herndon for Defendants, Appellees.
   The opinion of the court was delivered by

Breáux, J.

The defendant in the executory proceedings, S. J. .'Zeigler, made a note payable in nine months from date, personally and as tutor, to the order of the payees and endorsed by them; the payment of which is secured by mortgage in favor of W. 0. Perrin ort the Shady Grove plantation in the parish of Bossier.

The family meeting authorized the tutor, S. J. Zeigler, to cultivate-the plantation during the year 1893 for the use and benefit of the minors at their expense. The tutor was also to borrow the sum of eight thousand dollars for the use and benefit of the minors, for the-purpose of paying taxes and cultivating their plantation.

It authorized the loan to be made on the most favorable terms as-to time, interest or discount that said tutor can procure.

A judgment approved the. recommendation.

The note was delivered by Zeigler, tutor, to Wm. Winter, the-holder, who gave therefor the sum of six thousand six hundred and-twenty-five dollars in three checks; one of the checks was for one thousand dollars, which was handed to W. 0. Perrin in presence of Winter immediatély after the loan.

An injunction was sued out by the under-tutor of the minor children on the following grounds:

That the order obtained by the tutor ignored some of the relatives-of the minors and in their stead members not relatives were appointed ; that one of the relatives would not consent to mortgage-the property of the minors. lie, before the oath was administered to the members of the family meeting, withdrew and the creditor, Perrin, of Zeigler was appointed.

That the family meeting was not lawfully constituted, and that the illegality carries with it the illegality of the decree of homologation.

That it was to the knowledge of the lender, before handing to S. J. Zeigler the money for the note, that at least one thousand dollars was to go to the creditor, Perrin, in payment of an individual indebtedness of the tutor. That the lender in no event can recover from the minors more than the six thousand six hundred and twenty-five dollars loaned, without interest.

THIRD PERSONS WITHOUT NOTICE.

In so far as relates to the members of the family meeting, it has been held by this court, in several decisions, that as to third persons, without notice of the fact, the deliberations are not null, although it was not composed of the nearest relatives.

It is not shown that the member notified, who left shortly before the meeting was held, and after informing the tutor that he could not consent to mortgage the property of the minors, appeared before the officers in answer to the summons.

In his absence the notary holding the meeting had the power to-appoint a friend of the minors.

The member appointed is a good citizen, of high character and a* friend of the minors.

The validity of the deliberations is not affected in so far as relates to persons who have acted in good faith, relying upon the judgment of the court, without knowledge of an intended wrong, if wrong was intended by the tutor to his minor children.

The law has entrusted the family meeting with great responsibility, in the interest of minors; the necessity of mortgaging their property is left in great part to their judgment.

The family meeting and the under-tutor, who is plaintiff in the case at bar, determined that a mortgage was to their interest, a determination that Will never be reached by conscientious members without being thoroughly convinced that it is to the interest of the minors in whose behalf they are called upon to advise.

Strangers to the proceedings are protected by the decree approv-* ing these recommendations.

In Cane vs. Cawthorn, 32 An. 954, the court cites a number of authorities, and freely quotes from them in support of the correctness of the propoposition that the decree of homologation was a sufficient protection to the lender of the money.

The utterances of this court since are entirely in harmony with Cane vs. Cawthorn.

THE APPLICATION OB' THE MONEY LOANED.

The plaintiff complains that the holder of the note knew, at the. time he accepted the note, that at least one thousand dollars of the amount handed to the tutor was to be applied by him to the payment of his individual debt.

The evidence does not establish that the lender of the money knew, that it was to be applied as just stated. It is shown that he handed, a cheek to the tutor, who handed it to his creditor.

The lender is not bound to see to the judicious application of the money. Succession of Lavinia Hickman, 13 An. 364.

TIIE RATE OR INTEREST.

This brings ús to the discussion of-the proposition that the'interest was not within the limits of previous legal sanction and that the family meeting in authorizing the tutor to borrow the amount stated could not or did not authorize a loan at the rate of interest charged.

We have examined a number of authorities bearing upon this point and have not found one in which sanction was given to a loan at such rate of interest.

In the case of Cane vs. Cawthorn, 32 An. 954, the rate of interest disclosed by the evidence was twelve per cent.

We have referred to the original pleadings in the case and found no complaint whatever regarding the rate of interest.

The petition was silent upon the subject and it was not an issue.

In Martin vs. Sheriff et al., 37 An. 764, the “ family meeting specially authorized the loan with interest twelve per cent, per annum.”

We are not concerned in this case with the authority vel non of a family meeting to give sanction to a loan at such a rate of interest. We only refer to the fact that the rate was approved by a family meeting and that it presented a different question from the one under discussion.

There is nothing in the recommendations of the family meeting before-us to justify the inference that their object was not to protect the interest of the minors.

The tutor exceeded his powers in borrowing money at such rate. He acted for the minors and had no personal right. He surely was not, without recommendation of a family meeting, authorized to borrow money at such ruinous rate of interest, some forty per cent.

In dealing with the tutor the lender knew, or he should have known, that the former had no power to borrow money at such a rate of interest.

The note had not been transferred into commerce; it had no value; it was in the possession of the maker through the agency of the tutor, and did not come to the lender in a negotiation from the hands of a third person. It was a loan to the minors; the interest could not exceed the conventional, under the judgment approving the recommendations of the family meeting.

Between the borrower and the lender the interest was not capitalized.

There was no transfer, for it was a loan to the minors on their mote secured by mortgage at an unauthorized rate of interest.

Between the creditor and debtor even capitalized interest was not allowed under Act of March 20, 1886; “it had in view the sale of notes for the purpose of raising money and nothing more.” Crane vs. Beatty, 15 An. 329.

If the subsequent Act of 1860, relative to interest, modifies the effect of that decision as an authority (in regard to which there is no necessity of expressing an opinion in this case), it, the act, does not protect a loan, at an unauthorized and illegal rate of interest.

With reference to the eight per cent, interest the note bears from -date.

It is separate from the amount due in the note.

This interest was not usurious; it bears on the amount loaned.

It is therefore ordered, adjudged and decreed that the judgment appealed from is amended by reducing the amount due to William Winter by S. J. Zeigler, tutor, from eight thousand dollars and interest, plus five hundred dollars damages, to six thousand six hundred and twenty-five dollars, with interest at the rate of eight per cent, per annum from the 10th day of April, 1893; as amended the judgment is affirmed at appellee’s cost.


text:
    No. 11,646.
    Owen Riedy vs. Mrs. Amelia Johnson, Wife of Edward Dillon.
    'The appeal is dismissed, tlie amount involved being less than two thousand dollars.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Arthur H. Brown and Brown & Choate for Plaintiff and Appellee.

      James B. Rosser, Jr., for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff is the holder and owner of two promissory motes for two hundred and fifty dollars each, dated July 27, 1891, and bearing eight per cent, interest per annum from date, and.' secured as to their payment by mortgage and vendor’s privilege.

In foreclosing his mortgage he proceeded via exeoutiva and had the-property seized on which his mortgage and vendor’s privilege rest.

The defendant in the executory proceedings appealed.

Before this court [the plaintiff has moved to dismiss the defendant’s appeal on two grounds:

1. Because this court is without jurisdiction ratione materim.

2. Because the certificate of the clerk of the District Court is defective.

The first ground only will be passed upon and decided, as it must result in a dismissal of the appeal. There is no necessity of considering and deciding the second ground.

The amount involved is five hundred dollars, exclusive of interest,, secured by mortgage as before stated.

This court is without jurisdiction, and the appeal must be dismissed.

The appellant’s appeal is dismissed at her costs.


text:
    No. 11,521.
    A. J. Vick vs. Louis Volz, Interdict.
    A Tutor’s Agent. — A tutor of an interdict, residing in a foreign country and regularly appointed by the law of his domicile, may exercise his office by an agent, or attorney in fact in relation to the defence of a suit for a partition.
    .Under the civil law at the foreign domicile of the interdict, the administration of* his interest is confided to a tutor. A curator ad hoc appointed to represent an. absentee does not necessarily waive citation by filing an answer. In the absence of an issue in the lower court, this court will not assume that the answer, was not preceded by service of citation and petition.
    In the suit for a partition the interdict was represented by the agent of his foreign tutor. The interdict was therefore before the court in those proceedings- and contradictorily with him judgment was pronounced.
    The judgment referred the parties to a notary to complete the partition.
    A curator ad hoc, then qualified, represented the interdict.
    Domicile.- — The domicile of the curator is the domicile of the interdict. Civil Code,. Art. 37.
    The laws applying to tutors apply also to curators of interdicts. Id., Art. 415.
    The court of the minor’s domicile has jurisdiction to order a family meeting in his interest.
    The same rule applies to the interest of an interdicted person.
    APPEAL from the Twenty-first District Court, Parish of Jefferson. Rost, J,

      Denegre & Denegre for Plaintiff and Appellee.

      Louque & Pomes for Defendant and Appellee.

      Félix J. Pwig for Taylor, Defendant in rule to compel acceptance of title, Appellant.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff and the defendant, Louis Volz, were the co-owners of a plantation.

Louis Yolz established his residence in Switzerland, where he be - came insane and was interdicted.

A tutor having been appointed to represent him under the laws of his domicile, he (this tutor) appointed an attorney in fact to represent him in this State, where the interdict owned property. The agent was authorized to stand in judgment in partition proceedings, and had full power to do all things needful for the protection of the interests of the interdict.

Moreover, this agent was appointed by the District Oourt of Jefferson parish curator ad hoc of the interdict and an under-curator was appointed.

The plaintiff brought a suit against the agent of the interdict’s tutor appointed in Switzerland, and against the curator ad hoc appointed by the judge of the-Twenty-first Judicial District Oourt.

The defendant, as agent and curator ad hoc, answered, admitting the co-ownership of the inderdict with the plaintiff of the lands described in the petition.

A judgment was rendered in'accordance with’’the prayer of the petition and the property was sold to a third person.

He declined to accept title, whereupon the plaintiff and the defendant, through counsel, sued out a rule to compel the adjudieatee to accept the title tendered and consummate the sale.

In the lower court no answer was filed to the rulé. The judgment was rendered for plaintiff.

In this court the issues presented by the defendant in rule for our determination are:

First — That a foreign curator or tutor to an interdicted person has. no legal right -to appoint an agent in this State to represent him.

AUTHORITY OF A FOREIGN TUTOR.

Regarding the authority of the tutor, it has been held that, in countries governed bylaws similar to our own, the authority of the tutor regularly appointed to appear as a defendant in partition proceedings would be recognized without the necessity of .applying for letters of tutorship from the tribunals of this State (Chiapella vs. Couprey, 8 La. 86), thereby making a distinction between the office of a testamentary executor and administrator, confined to the property of the estate and that of the tutor or guardian having minor children in charge, for the maintenance and education of whom provisions must be made.

AGENT OF A FOREIGN TUTOR.

We think it sufficient to state on this point that a tutor has the power to administer by an attorney in fact the real property of his ward’in this State. Bailey vs. Morrison, 4 An. 523.

The authority of a tutor to appoint an agent to represent him in judicial proceedings was approvingly referred to in Succession of Lewis, 10 An. 791.

We are unable to perceive any good reason why the same rule should not extend to interdicts.

To his curator is confided the care of his person, and such steps as needful to soften his hard condition. He should take possession of Lis property at as early a date as possible and administer it to his advantage.

But in addition to these considerations by express law, the same rule is made to apply to minors and interdicts.

The laws applying to tutors apply also to the curators of interdicts. Art. 415, Civil Code.

In the case of the Interdiction of Bothick, 43 An. 552, this court said: “ Arts. 405 and 415, Revised Civil Code, prescribe that the appointment of a curator and his administration shall be regulated .as in the case of minors.”

THERE WAS NO ISSUE RELATIVE TO WAIVER OF CITATION.

Second — A curator to an interdicted person or his agent and attorney in fact can not waive citation and service of petition, the defendant in rule contends.

That issue was not raised in the lower court. There is no evidence of waiver before us. The trial for the partition was conducted contradictorily with the agent, after the required delays, and answer filed by him.

“The curator in the present instance (nor in the case at bar), as far as appears from the record, waived none of the rights of the party whom he was appointed to represent.” Millaudon vs. Bezley, 2 An. 917. (Parenthesis ours.)

We will not assume that there was no citation and service prior to the agent’s answer. Fly vs. Noble et al., 37 An. 671.

We do not wish to be understood as in the least diverging from decisions of this court with reference to personal service in certain cases. Hyde vs. Chaddick, 10 Robinson, 387; Carpenter vs. Beatty, 12 Robinson, 540.

The facts in the pending'case do not bring it within the rule laid down in the decisions requiring personal service.

The third and fourth propositions of the defendant in rule are directed against the validity of the curator’s appearance in court under an appointment by the District Court of Jefferson parish.

The proceedings contradictorily with the curator ad hoc appointed by the court in Louisiana, in the partition proceedings proper, would be open to objections if we chose to pass upon them in this case.

But as our conclusion sustains the agent’s authority to carry out his principal’s power as tutor of the interdict, conferred by a foreign court, the .judgment of partition, contradictorily with him, is valid, without reference to the appointment of the curator ad hoc.

He was a party to the judgment as an agent even if his appointment as a curator ad hoc was null and void.

The question arises: Are the proceedings of the family meeting convened to recommend the terms of sale null and void?

DOMICILE AT WHICH FAMILY MEETING' SHOULD BE HELD.

The defendant in the rule urges that family meetings called to de - liberate in the interest of interdicted persons must be convened and held in the parish in which the property partitioned was situated.

The suit was properly brought where the property is situated.

The family meeting was properly held at the domicile of the curator.

With reference to persons non sui juris whose interests must be submitted to a family meeting for its consideration the following analogy applies:

'The domicile of the minor is with his tutor.

The domicile of the interdict is with the curator. Civil Code, Art. 39.

The court of the parish in which the minor has his domicile is the proper tribunal to order a family meeting to determine the terms of sale of property in which he has an interest. The State vs. The Judge of the Court of Probate of New Orleans, 2 Robinson, 160.

' Interdicted persons are protected by those rules-andlaws applying in the protection of minors. Succession of Webre, 36 An. 312.

Therefore, like minors, a family meeting in the interest of the interdict should be held at the domicile of the curator.

■ When the family meeting was held in the parish of Orleans, the curator, a resident of that parish, had taken the oath, and his acts were no longer open to the objection that he had not taken the oath, as was the case when the proceedings for a partition were originated contradictorily with him as agent and curator ad hoe.

In the former capacity — i. e., as agent, he represented the interdict as defendant in the suit for partition.

Later, in the latter, as curator, having qualified, he represented him at the domicile in the matter of holding a family meeting and recommending terms of sale, in so far as it concerned the interdict’s Interest.

A foreign tribunal, with jurisdiction of the person of the interdict, authorized the partition and sale of his property.

To the consular officer was entrusted the duty and responsibility of representing the interdict in the proceedings, and of forwarding the proceeds of the sale. ■

■ No good reason has been urged that would justify us in setting aside the proceedings in the tribunals of Louisiana for the partition and sale of the property. Passing upon the issues raised we have discovered no cause to disturb the judgment.

. The judgment appealed from is affirmed at appellant’s costs.


author: Miller, J.

text:
    No. 11,620.
    State of Louisiana vs. Emile E. Ducote.
    Tlic motion in arrest on the ground that the subject o£ the larceny is immovable property will not be sustained when the indictment by which the motion is to be tested charges the larceny oí personal property: bee hives.

      'Tlie verdict in. a criminal ease will not be set aside because one of the witnesses remained in «ourfc after the order for the separation of witnesses, the witness, it appears, not understanding English, nor intended, as the trial judge states, to be embraced in the order, and there being no possible prejudice to the prisoner from the witness not leaving the court room.
    PPEAL from the Tenth District Oourt, Parish of Avoyelles. Coco, J.

      M. J. Cunningham, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff and Appellee.

      A. J. Lafargue and Joffrion & Joffrion for Defendant and Appellant.
   The opinion of the court was delivered by

Miller, J.

The defendant, convicted of larceny, appeals from lis sentence.

The appeal is based on the motion in arrest of judgment alleging that defendant was convicted of the larceny of immovable property, to-wit: bee hives, claimed in the motion to have formed part of the immovable. A motion in arrest, of this character, is designed to point out an alleged defect apparent on the face of the indictment. On reference to the indictment we And no such defect. The subject -of the larceny is charged to be two bee hives, with no averment they formed part of any immovable. Bee hives are undoubtedly personal ■property. There is, therefore, nothing to support the motion, and we are dispensed from the necessity of determining whether the .hives, if attached to the immovable, could be the subject of. larceny.

The exception reserved to the admissibility of the testimony of a witness remaining in the court after the order for the separaticn of the witnesses presents no ground to reverse the sentence. The ■judge states the witness did not understand English and in the judge’s view was not included in the order. Besides, we do not appreciate this exception is relied on in this court.

It is therefore ordered, adjudged and decreed that the sentence of •ihe lower court be affirmed.


text:
    No. 11,650.
    The State vs. R. D. Bevell et al.
    The court will not dismiss an appeal in a criminal case, the accused represented only by counsel assigned by the lower court, merely because of the delay of the clerk in forwarding the record, it being his duty to prepare and. transmit to this court the record of appeal. Act No. 30 of 1878.
    This court affirms the weight due to the rulings of the trial judge on application-for continuance, and that such rulings wilt not be disturbed unless manifestly erroneous. 83 An. 1112; 33 An. 681; 37 An. 786.
    A PPEAL from the Fifth District Court, Parish of Ouachita. IT H. H. Russell, J. ad hoe.

      M. J. Cunningham, Attorney General, and J. P. Madison, District-Attorney, for Plaintiff and Appellee.

      Newton & Madison for Defendant and Appellant.
   The opinion of the court was delivered by

Miller, J.

Defendants, convicted of larceny and sentenced, were allowed an appeal on the 18th of October, 1894, to this court. The appeal was not filed within the time required by law. On that ground there is a motion to dismiss.

Under the law it is the duty of the clerk of the District Court to-forward promptly to this court the record of appeal. We are-reluctant to dismiss an appeal in a criminal case because of the failure of the clerk to send up the record on the return day. The record was filed here on the 17th of November. We do not say that the-neglect to file the record may not, under some circumstances, be a. cause for dismissal. But under the facts in this case we do not think the appeal should be dismissed. The accused had no counsel, and. was represented by attorneys assigned by the court. It was the inadvertence of the clerk that caused the delay in making and bringing up the record, and we are constrained to say it was very imperfect when filed. We have, therefore, examined the exceptions, that were reserved. Act No. 30 of 1878.

The error assigned in the bill is the refusal of the lower court to-grant a continuance on the grounds of absent witnesses and the want of time for preparation of counsel. Necessarily, applications for-continuance are addressed largely to the discretion of the trial judge, and his rulings on the subject will not be disturbed unless manifestly erroneous. State vs. Hornsby, 33 An. 1112; State vs. Fulford, 33 An. 681; State vs. George, 37 An. 786. We are informed by the statement of the judge to the bill that the accused, for two months confined, thus had abundant time to secure counsel; that called for trial, the counsel expected to appear did not, because accused had not paid or arranged for the fee; thereupon the court assigned counsel, who asked a continuance for want of preparation, and on the affidavit of an absent witness the court allowed the case to go over from Tuesday to Thursday. The counsel appointed then asked a continuance, assigning deficient time for preparation, and renewing, as a ground, the absence of the witness named in the first affidavit, supplemented by the names of two others. The State offered to prove that the witness first named would swear to the state of facts disclosed in the first affidavit. Act No. 84 of 1894. In this state of facts the court ruled that the case should be tried, and we affirm his ruling.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed, with costs.


text:
    No. 11,680.
    Norman F. Thompson vs. Mrs. M. E. Whitbeck and Husband.
    The plaintiff in the petitory action alleging* title under a sheriff’s deed, and referring to the suit under the execution in which the sale was made, is entitled to offer in evidence the mortgage act, the basis of the judgment in such suit, and the sheriff’s return on the execution, the testimony tending to maintain the title pleaded, and admissible on the further ground that plaintiff averring ownership is not to anticipate by his pleadings the title defendant may allege, and is entitled to offer testimony to repel such title as defendant may advance. 4 N. S. 277; 10 An. 528; 12 An. 795; 12 Kob. 648; 11 An. 546; 2 Hennen’s Digest, 1145, No. 1.
    Mortgages executed by one who stands on the records as owner can not be disputed by the real owner as against mortgagees for value in good faith, acquiring their rights on the good faith of the recorded title. 1 An. 286; 4 An. 84; 45 An. 1085; 2 Hennen’s Digest, 1373, No. 1.
    Even the married woman who makes a simulated sale of her property, to serve the purposes of her husband, the title of the vendee being recorded, is bound by his sale or mortgage to one acquiring in good faith and for value on the faith of the recorded title. Ibid., 45 An. 1045.

      The suit and judgment of the married woman against her vendee annulling the sale is ineffective to disturb the right of one who before such suithas acquired for value and in good faith a mortgage on the property, granted by the wife’s vendee recorded as owner; hence, under the non-alienation clause, such mortgagee may foreclose in proceedings against the mortgagor, notwithstanding the judgment annulling the sale to him by the wife and putting her in possession. See effect non-alienation clause, 1 Hennen’s Digest, 955, Ho. 1.
    PPEAL from the First District Court, Parish of Caddo. Land, J.

      Wise & Herndon for Plaintiff, Appellee.

      R. J. Looney and Leonard & Thatcher for Defendants and Appellants.
   The opinion of the court was delivered by

Miller, J.

The plaintiff brings the petitory action for land acquired under the sheriff’s deed, made in the suit of Thompson vs. Heirs of Ford, No. 3782 of the docket of the District Court, parish of Bossier. The petition traces Ford’s title to Mrs. Whitbeck, one of the defendants; avers she and her husband are in wrongful possession, and plaintiff prays for judgment decreeing his ownership and that he be put in possession.

The defendant answered, and with the general issue averred that Mrs. Whitbeck was the owner in possession; that Ford, under whom plaintiff claims, never had title or possession; that his pretended title from her was simulated and had been so decreed; that this decree was notice to all; that plaintiff could acquire no right to the property in the face of the suit and decree of Mrs. Whitbeck, and the answer denied that plaintiff ever had title or possession.

There was judgment for plaintiff and defendants appeal.

At the threshold there is an exception to defendant’s testimony. The plaintiff, averring title by sheriff’s sale, offered the act of mortgage made by W. P. Ford under which the sale was made, the judgment of Thompson, the present plaintiff, against the heirs of Ford, the execution and sheriff’s return. All this was offered to show the origin of plaintiff’s title, and the objection was the sheriff’s deed being the basis of title alleged in the petition, that only the sheriff’s deed was admissible. We think that as the petition referred spe-ciñcally to the suit in which the writ issued under which the sale was made, the defendant could not be surprised by the evidence. But on a broader ground we think the testimony admissible. The issue tendered by the petition was ownership under a sheriff’s deed, identifying it by date, the suit in which the writ issued; besides, there was an averment of title of the defendant in that suit, and the deed itself was annexed. More than this can not be exacted of the plaintiff in a petitory action. Such an allegation of ownership authorizes in our opinion the evidence offered, all tending to support the title pleaded. Ory vs. Winter, 4 N. S. 277; Davis vs. Barham, 10 An. 528; Lawber vs. McCoy, 12 An. 795. Again, plaintiff averring title by sheriff’s deed, and met by averment of title in Mrs. Whitbeck, it was competent for him to repel her defence by the proof that he held under the mortgage of her vendee standing on the public records as owner. Riley vs. Wilcox, 12 Robinson, 648; McMaster vs. Stewart, 11 An. 546; 2 Hennen’s Digest, 1145, No. 1.

The plaintiff brought the possessory action based on his sheriff’s-deed alleging a disturbance of his possession.- The suit failed because plaintiff had not the possession requisite, his deed being dated! 17th June, 1893, the possessory action brought within a few months after, the court holding that plaintiff could not add the possession of Ford, defendant’s vendee, to make up the one year’s possession essential to bring the possessory action. Code of Practice, Art. 49, Par. 2. The plaintiff then resorted to the present petitory action. The defendant pleads the judgment in the possessory action as res-judicata. That judgment determining only that plaintiff could not maintain the possessory, left him at full liberty to avail of the peti-tory action.

The facts on which the defence in other respects is based arer Mrs. Whitbeck originally owned the land sued for; she and her husband sold the property to W. P. Ford on the 13th March, 1889, the title being placed on record; Ford subsequently, on the 20th April, 1889, mortgaged the property to plaintiff; on December 31, 1891, Mrs. Whitbeck sues and obtains judgment against her husband and Ford, annulling the sale on the ground that the sale was a disguise to obtain money for her husband, that false representations were made to obtain her signature, and that she derived no benefit from the transaction. On that judgment a writ of possession issued, and she was put in possession. On 17th June, 1833, Thompson, under his mortgage with the non-alienation clause, Ford, the mortgagee, having died, sued on his notes, making Ford’s heirs parties, and under the execution and sheriff’s sale, becomes the adjudicatee of the property. Thompson, as already stated, resorts to the pos-sessory, and that failing brings this suit for the property adjudicated to him.

The argument for defendant is: That the title of Mrs. Whitbeck • was never divested, because her sale to Ford was adjudged a nullity and she is in possession; that defendant’s suit against her husband resulting in the judgment annulling the sale was notice to all; that plaintiff acquiring after that judgment and claiming title under Ford’s mortgage stands in his shoes, and under Arts. 2452 and 2453 of the Civil Code is affected by the judgment against him, and the •argument insists that, as plaintiff avers title under Ford, there is the additional reason to treat plaintiff as occupying Ford’s position and vested only with his rights; it is further contended on behalf of defendant that the non alienando stipulation in plaintiff’s mortgage act is operative only to authorize the plaintiff in his foreclosure proceedings to disregard sales by the mortgagor, but does not warrant such proceedings against Ford in this case, because Mrs. Whitbeck claims as owner, never divested of title, and not under any alienation by Ford, and hence on all these grounds the argument maintains plaintiff has no title.

Nothing is better settled than the validity, as against the real owner, of sales and mortgages by those to whom the owner has conveyed title, if the purchasers and mortgagees are in good faith acquiring their rights on the faith of the recorded title. The principle is extended to sales by married women, notwithstanding all the protection thrown around their contracts. Nor does the defendants’ brief controvert this principle. Its application to the case here is apparent. Mrs. Whitbeck placed the property in Ford’s name. He put his title on the records. The plaintiff acquired his mortgage from-Ford. While the sheriff’s deed to plaintiff was subsequent to Mrs. Whitbeck’s suit, he acquired his mortgage before. There is no question raised as to his good faith. He stands, then, within the protection the law accords to those who acquire rights to property bn the faith of the recorded title. Accompanying this mortgage was the plaintiff’s right to foreclose his mortgage against the mortgagor, or in the event of his death, against his heirs. Nor is it, in our view, of the least consequence that in Mrs. Whitbeck’s suit against her husband Ford’s title was declared simulated. Plaintiff was no party to that suit and under no obligation to come into it. As to him it was res inter alios, and brought after he acquired his right to the mortgage. It is hence of no pertinence to invoke on behalf of defendant the presumption of notice to all arising from judicial proceedings. That notice is prospective, and can not affect rights already acqired. Richardson vs. Hyams, 1 An. 286; Boudreau vs. Bergeron, 4 An. 84; Broussard vs. Broussard, 45 An. 1085; 2 Hennen’s Digest, 1373, No. 1.

It is urged that plaintiff had no right to proceed under the non-alienation stipulation against the heirs of his debtor, Ford. This assumes that Mrs. Whitbeck’s title to him, and his mortgage, must .be disregarded. But as to the mortgagee in good faith, that title stood wholly unaffected by the suit in w.hich it was annulled. It w¡as the muniment of the plaintiff’s right to the mortgage, as well as to the remedy for its enforcement. The well settled understanding of the non-alienation clause is to authorize the creditor to seize and sell the mortgaged property as if it belonged to his debtor. 1 Hennen’s Digest, 955, No. 1.

We have given careful attention to defendant’s brief. The views expressed dispose of it. We have not overlooked the contention that defendant was put in possession under the writ in her suit. But as to plaintiff that possession was no obstacle to his right to proceed as if possession and title was in Ford. In all aspects of the ease we think the law is with the plaintiff.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.


author: Nicholls, C. J.

text:
    No. 11,599.
    The State of Louisiana ex rel. B. J. Kuhlman vs. Emile Rost, Judge.
    When a party seeks, through the arm of the judiciary, to direct or control or regulate the performance of public duties by officers of another department of the government, pleadings of an exceedingly specific character, showing exceptionally strong facts in aid of the relief asked, must be presented to a court to justify its assuming jurisdiction.
    Mere conclusions of law, or conclusion of ultimate facts, will not suffice; nor should the pleader take anything by failing to bring to the knowledge of the court the condition of affairs which he must he aware will eventually be advanced in defence. -
    This court takes judicial notice of Act No. 125 of 1877, Ex. Sess., and that the same has not been repealed.
    He who has qualified as a statute officer, in an office, the appointment to which is vested in the Governor, is entitled prima fade to possession of the office.
    PPLIOATION for Writ of Prohibition.

      H. N. Gautier, J. L. Gaudet and E. Howard MeOaleb for Relator.

      Gustave V. Soniat for Respondent.
    On October 6, 1894, the Governor of the State appointed and commissioned B. J. Kuhlman police juror, Ward 5, parish of St. Oharles, vice L. A. Oambre, removed. Kuhlman took his oath of office on October 10 following, on which day he attended a meeting of the police jury of the parish. The jury was composed of H. L. Young, T. 0. Madere, A. E. Picard, vice LeSassier, removed; P. M. Kenner, vice Sarpy, removed, and the relator, Kuhlman, the members of the jury, Young and Madere, meeting with and recognizing the newly appointed jurors, and the police jury, as thus composed, organized and elected a supervisor.
    Oambre filed a petition for injunction, alleging that he was appointed by the Governor as a police juror of the Fifth Ward of St. Oharles parish, on June 8, 1892. That said appointment was duly confirmed by the Senate, and that he had duly taken his oath of office as such. That since his induction into office he had always performed, and still continued to perform to the best of his ability, all the duties incumbent on him. That by virtue of his said appointment and confirmation, his term of office did not expire before the next general election, to be held on the first Tuesday next following the third Monday in April, 1896. That he is entitled to all the fees, emoluments and perquisites attached and belonging to said office up to said date.
    That at the last meeting of the police jury, held on the 11th day of September, 1894, the police jury adjourned to the next .regular meeting; the first Monday in November, 1894. That since he has not received any notice from the secretary of the police jury, or any •other officer, apprising him of any extra meeting of the poiiee jury. 'That he has never been officially apprised of his removal from said •office, and has not been guilty of any crime or cause that should warrant his removal, and therefore is in actual and physical possession de jure and de facto of said office. That he is informed and verily believes that one B. J. Kuhlman illegally and wrongfully claims the aforesaid office of petitioner, and in conjunction with others did unlawfully meet and assemble in the parish of St. Charles on the 10th day of October, 1894, and did endeavor to transact business as members of the pólice jury of the parish of St. Charles. 'That in order to properly protect the possession of the petitioner in his aforesaid office against the interference of claimant aforesaid, it was necessary that an injunction should issue ordering and commanding •the said Kuhlman to desist and refrain from interfering with petitioner in the discharge of his duties as police juror of the Fifth Ward •of St. Charles parish, and particularly that he be restrained, enjoined and prohibited from attending, sitting or in anywise acting as police juror as aforesaid at any time or place, and more particularly the next regular meeting of the police jury, on the first Monday of November, 1894, and until the title to said office shall have been judicially determined.
    A writ of injunction issued as prayed for.
    Petitioner executed a bond in an amount of two hundred and fifty •dollars in favor of Kuhlman to secure to him the payment of all such damages as he might recover in case it should be decided that the injunction was wrongfully obtained. The interest which the public might have in the issues raised was ignored, and not attempted to be safeguarded in the bond.
    Failing in his application to the District Judge to set aside the writ of injunction, the relator, Kuhlman, prayed for a writ of prohibition, setting forth that on or about the 17th day of October, 1894, one L. A. Cambre, alleging and representing that he had been illegally removed from said office of police juror, and that relator was the unlawful, though commissioned and . qualified, incumbent in full possession of said' office, performing the duties thereof, obtained from the Judge of the Twenty-first Judicial District Court for St. Charles parish, on such ex parte showing, a mandatory writ of injunc-tion, prohibiting relator from in any manner performing the duties • of his said office, or attending to the meetings of said police jury, until such time as the title to said office should have been judicially-determined, thus practically ousting relator from office without judicial determination of relator’s right to his possession of said office. That said Cambre has not, nor has any person, judicially claimed the said office adversely to relator. That said judge and court persist in usurping jurisdiction and refuse to revoke the said order and to set aside the injunction. That relator has no adequate remedy other than the writ of prohibition to be issued by the Supreme Court. That the cause is not an appealable one, the amount involved being less than one hundred dollars.
    The District Judge in answer says that no proceedings were taken in the case until Tuesday, October 23, 1894, when the relator, through his counsel, by ex parte motions in open court, moved for an order setting aside the writ of injunction for want of jurisdiction, ratione materise. That no plea to the jurisdiction of respondent’s court had previously been filed or offered. That respondent refused to take immediate action on said motions, but requested that the same should be tried by a rule wisi, and contradictorily with the plaintiff. That relator insisted upon immediate action upon said ex parte motions, which motions for that reason were overruled by respondent, and that, thereupon, the relator, through his counsel, notified respondent that application would at once be made to this court for writs of prohibition aud certiorari. That the question of jurisdiction vel non has never been passed upon by him, or even been properly presented. That the proceedings held before respondent’s court were solely injunction proceedings, and that the writ issued in this case was granted on the sworn allegations of the plaintiff that he was in the lawful possession of the office of police juror of the parish of St. Charles. Respondent avers that he has never usurped jurisdiction, and that he has never refused to revoke his said order or set aside the injunction; that he has not tried to control or interfere with the Executive Department of the State. That under Art. 11 of the Constitution of the State, any incumbent of a public office is entitled to appeal to the courts to be maintained in the possession of his office pending the judicial determination of the right and title to said office. That it is only in proceedings having such determination for their object that the right of removal of police jurors by the executive can be presented. That under Art. 201 of the Constitution of the State provision is expressly made for the manner and form of removal from office; and, finally, that the proceedings instituted in respondent’s court being solely injunction proceedings, no such question was or could have been presented in said proceedings. That respondent has acted within the powers vested in District Judges by the Constitution and laws of the State, and that relator is not entitled to the relief asked for.
   The opinion of the court was delivered by

Nicholls, C. J.

The proceeding of Cambre in the matter of the injunction sued out, which has been brought before us in this case, notwithstanding the use of the name of the State in its title, is a private suit of Cambre against Kuhlman. Its object, however, is not so much to stay the payment to Kuhlman of any moneys which, but for the injunction, would be made to him under color of office as a police juror, as through the arm of the judiciary to direct, control and regulate the performance of public duties by officers of another department of the government. When such a result is sought to be brought about, pleadings of an exceedingly specific character, showing exceptionally strong facts in aid of the relief asked, must be presented to a court to justify its assuming jurisdiction. Mere conclusions of law or conclusions of ultimate facts will not suffice,, nor should the pleader take anything by failing to bring affirmatively to the knowledge of the court the condition of affairs which he must be aware would eventually be advanced as those upon which the defendant was basing and grounding the claims and pretensions under which he was acting. It is his duty in such a proceeding to state, as far as possible, the whole case, to the end that the court may be completely advised in the premises. Nothing should be held back which, if known to the court, would probably influence it in determining the question of its own powers. Usually vague and general pleadings are not fatal to a demand. Imperfect statement of a. cause of action is ordinarily remedied by amendment on exception taken, but in matters of the present character we are of the opinion that the pleadings in the case affect the jurisdiction, and that a. court should not act at all, unless a cause of action is plainly set out, and is manifest on the face of the papers, and we are of the opinion that it is authorized of its own motion, and in spite of the allegations of the petition for the injunction, to take cognizance of matters of which it can legitimately take judicial notice which enter as factors in determining the question of its own powers and duties. The court should be first assured of its own jurisdiction. If a District Judge should inadvertently have assumed it under circumstances •where he should not have done so, we have the power, and it is our ■duty under our supervisory control over the lower courts, to set :aside the orders given by him. It is of the utmost importance that 'the different departments of the State should not clash, but that each 'should pursue its legitimate functions free from interference from the other. That there may be cases of such a character as to force the judiciary to the discharge of its own duty to review, to declare null and void and to set aside acts of the Legislature or Executive Departments is beyond question; but as we have said the occasion which would require it to do so at the instance of an individual citizen by way of injunction which would at once ex parte restrain and change (temporarily at least) the course which public affairs would naturally have followed but for the injunction must be clear and patent.

Private interests should yield to those of the public. In the ease at bar it is clear that Cambre, after having been appointed, commissioned and qualified as a police juror for the parish of St. Charles by the Governor, was subsequently removed by him, and the relator, Kuhlman, appointed in his place. That simultaneously two other police jurors were removed by the Governor and others appointed in their places. That the three new appointees qualified under their commissions, and presenting themselves with their commissions and oaths of office to the remaining police jurors, they were recognized by the latter as police jurors, and a meeting of the police jury was organized, in which the new appointees participated, selecting or electing a supervisor of election at such meeting, and that the injunction which was issued was applied for and granted subsequent to this meeting.

In his petition for injunction, Cambre alleges that “one B. J. Kuhlman illegally and wrongfully claims the office of police juror” (to which he had himself been appointed), but he does not inform the court, as he should have done, that Kuhlman claimed the office under a commission from the Governor of a date subsequent to that of Ms own commission, and that the subsequent commission was • issued by reason of his own removal from office by the Chief Executive; and while he alleges that Kuhlman, in conjunction with •others, did unlawfully meet and assemble in the parish of St. Oharles on the 10th of October, 1894, and did endeavor to transact business as members of the police jury of St. Oharles, he does not inform the court that the persons with whom he acted in conjunction were two of the police jurors of the parish of St. Oharles, holding by undisputed title, and two other-persons, who, having been appointed by the Governor as police jurors, had qualified under the commissions issued to them, and who were recognized, as was Kuhlman, by the older members as police jurors of the parish. He avers that “those parties did unlawfully meet and assemble as police jurors,” but he does not state how or why the meeting was unlawful. The ground for that attack is, we infer, to be found in the allegation that the police jury, when it had adjourned before, had adjourned to its next regular meeting, and that he had not been notified of a called meeting, nor notified of his having been removed from office as a police juror. No other reason seems to have been assigned. Tb.ere is no charge made in the petition that the Governor was without power or ■authority to remove a police juror. If any such claim was intended to be advanced, it was merely inferentially and consequentially advanced under the allegation that, by virtue of his appointment and confirmation, his term of office did not expire before the next general election, to be held on the first Tuesday next following the third Monday in April, 1896, and we do not think this indirect general allegation fairly raised an issue as to the Governor’s legal or constitutional power of removing a police juror from his office.

The issue that he tendered was rather that the Governor had acted improperly, and without cause, than that he had acted without authority — an issue which (granting the power to remove) was one which should not have been raised, and could not be passed upon by the court. We take judicial notice of Act No. 125, Ex. Ses. of 1877. That act has not been repealed. Whether or not it has become inoperative by reason of the adoption of the Oonstitution is not a question to be lightly raised, and on general indirect allegations, nor to be raised by the court itself. This statute has been constantly acted upon by the executive of the State since 1880. The official action of the head of the Executive Department is presumed to be within the scope of his authority. This presumption is sufficiently strong under the statute cited to entitle a person who has qualified as a statute officer in an office, the appointment to which is vested in the Governor prima facie, to possession of the office. If he is to be kept ont of possession at all, it must be, as we have said, under exceptional circumstances, specially set forth, and under a direct issue as to the power of the Governor. It is shown in this case that not only had Kuhlman been appointed and qualified as police juror, but he had been recognized as such by tbe other members of the jury, and that together they had organized and held a meeting of that body. Kuhlman had actually gone into possession of the office, and the allegation that Cambre feared he would seek to take forcible possession of the same is therefore without foundation. No action seems to have been taken by the jury after its adjournment until the meeting in which Kuhlman participated, therefore no act of possession of the office by Cambre is shown after his removal by the Governor. If the Governor had the power to remove him, there was no necessity for official notification to him of the removal to bring it about. The removal of itself operated a divestiture of the office, at least for the purposes of this suit. Had intermediate action taken place before notice in which Cambre had participated in ignorance of his removal, and were the validity of action taken at that time and under these circumstances contested, a different question would arise. If Cambre was removed from office he was not entitled to notice of a called meeting of the jury. The legality of the police jury as a body, as it met at the meeting in which Kuhlman participated, and the legality of the meeting, can not be collaterally raised or disposed of in the injunction suit.

We are of the opinion that the District Judge in taking jurisdiction in the matter of the petition praying for an injunction, and in issuing the injunction he did, erred, and that when the want of jurisdiction was called to his attention and urged, he should have at once discharged the injunction. He could have done so of his own motion. There was no necessity for action to be taken contradictorily with Cambre.

In deciding this case we take occasion to refer to the views expressed by the Supreme Court of Alabama in Beebe vs. Robinson, 52 Ala. 66, and to the case of Cameron vs. Parker, 38 Pac. Rep. 14 et seq.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the writ of prohibition which issued in this matter be perpetuated, and that the injunction granted by the District Judge of the Twenty-first Judicial District Court, of the State of Louisiana for the parish of St. Charles, in the matter of L. A. Cambre vs. B. J. Kuhlman No. 80 of the docket of that court, be and the same is hereby set aside and discharged.

Rehearing refused.


text:
    No. 11,598.
    State of Louisiana ex rel. L. A. Keller vs. Emile Rost, Judge.
    Action to restrain the exercise oí duties as sunervisor of election. Writ of injunction issued on ex parte proceedings of one claiming to be in possession of the office of police juror and a member of the Board of Supervisors of Elections. As a matter of fact the petitioner had been removed from office by the Governor prior to his alleged appointment as supervisor, and was without power or authority to act, either as a police juror or as a member of the Board of Supervisors. The pleadings and facts are similar to those stated in Ex rel. Kuhlman vs. Judge, ante, p. 53.
    y^PPLICATION for a writ of Prohibition.

      II. N. Gautier, J. L. Gaudet and E. Howard MeCaleb Attorneys for Relator.

      W. J. Waguespack Attorney for Respondent.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator in this case was appointed one of the supervisors of election for the parish of St. Charles, by the police jury of that parish, on October 10, 1894, and qualified on the same day. After he was qualified he was “enjoined from presenting himself to the Board of Supervisors of Election for the parish of St. Charles, as a member of said board, made by the alleged police jury of said parish, at their session October 10, 1894, and from in any manner interfering with Lucien A. Cambre in the performance and exercise of his duties and functions as a member of said board until the legality of his alleged pretended appointment should be determined after proceedings in due Course of law,” and J. C. Triche (one of the members of said board) was enjoined “ from recognizing the alleged pretended appointment of Keller as a member of said board until his said alleged pretended appointment should have been judicially determined in due course ” by an injunction which was issued under an order of the Judge of the Twenty-first Judicial District Court.

This injunction was granted ex parte upon the petition of L. A. Cambre, claiming that he and not Keller was entitled to discharge the duties of the position. In this petition he averred that under the provisions of Sec. 13 of Act No. 181 of the General Assembly of the State of Louisiana, passed in 1894 at their regular session of September 11, 1894, he was elected by the police jury of St. Charles parish, as one of the supervisors of election for that parish, and that at the time of the presentation of his petition he was in full possession and enjoyment of the office, but although he alleged that, he had qualified under his appointment in October, 1894, the particular day in October on which he had done so was left in blank.

In the petition he declared that Keller pretended to be the appointee of the police jury of the parish of St. Oharles under a pretended appointment made by a pretended police jury, a majority of whose members were not legally appointed, and the whole of which was illegally and unlawfully constituted at a meeting of the said pretended police jury on October 10, 1894, in contravention of the bylaws of the legally constituted police jury of the said parish. That said Keller, acting under said appointment, would, unless restrained by injunction, forcibly take possession of said office and oust him, Cambre, and would present himself to the other members of the board for recognition as a member thereof, and that said board, unless also restrained, would admit him as such member to the discharge of the functions and duties of said office to the irreparable injury of the petitioner.

He also declared that the Board of Supervisors of Election was composed of three members, but that he and one J. 0. Triche were the only members actually constituting said board, the Governor of the State having failed to appoint the third member, so far as he was informed.

The allegations of Oambre’s petition, taken in connection with the fact that Keller was appointed as supervisor of election, by the police jury, on the 10th of October, 1894, and that he qualified the same day, will show the significance of the omission and the importance of the omission in the petition for injunction of the particular day on which Oambre took his oath of office. Had the blank on the petition been filled up by the actual date of Oambre’s qualifying (18th October, 1894), the District Judge would have been at once advised that before Oambre had qualified under his appointment or acquired any right under the same, the police jury had made a change in the appointment and superseded or replaced him by the subsequent appointment of Keller to the position. Had the District Judge known this particular fact he would not, we feel satisfied, have granted the injunction prayed for.

What was the judge asked to do? What was the situation at the time?

The police jury of the parish of St. Oharles had the unquestionable power, under the thirteenth section of Act 181 of 1894, to appoint one of the members of the Board of Supervisors of Election for that, parish. It first selected Oambre, one of its own members, as such supervisor, but before he had accepted the position, or qualified,, thought proper to substitute Keller in his place, and the latter qualified under his appointment. The Board of Supervisors of Election, composed of three members each, were newly created parts of the election machinery of the State. .The board in St. Oharles parish had never yet met or organized. According to. Oambre’s allegations, its membership had not yet been filled up, for as yet the Governor had only appointed one of the two members whose appointment was vested in him. In advance of a meeting of the board, Oambre, holding under an appointment which had been revoked, asked the District Judge to restrain Keller, holding the later credentials from the police jury, from presenting himself to the board for recognition as a member of the board, and Triche, the only other member then appointed, from entertaining any claim from Keller for recognition. No actual act of possession had been taken by either Oambre or Keller at that time. The taking of the oaths by each, at the respective dates, was the only step which either had then taken. No judicial proceedings under th.e intrusion act or other law had been brought by either of the parties or by the State authorities. No judicial application was made by Oam-bre, even if it could have been made, looking to his own forced recognition by the board as a member. The result of the application would be to paralyze, to a certain extent at least, the future action of the board, and to force and drive Keller, holding the prima facie title to possession of the office, to an action under the intrusion act to get into position as a member of the board. The views expressed by us in the case of the State of Louisiana ex rel. B. J. Kuhlman vs. Emile Rost, Judge, et al., ante p. 53, finds application in the present case. The judiciary can not be made by any such pleadings as we find in Cambre’s petition to shape, regulate and control the administration of public, and especially political, duties, and to reverse the order, time and manner in which parties should advance their claims to the possession of offices.

We referred in Kuhlman vs. Rost, ante, p. 53, to the decision of the Supreme Court of Alabama in Beebe vs. Robinson, 52 Ala. 66. The views of the court in that case are very pertinent to the issues raised-in the present one. We are of the opinion that Keller, holding the later credentials of the police jury, under the circumstances herein stated, on taking his oath of office, became the legal incumbent of the office of supervisor of election and entitled to discharge the duties thereof. That he could not be restrained or interfered with by injunction at the instance of another claimant from entering upon the discharge of the duties of his office. That it was for Cata-bre and not for Keller to resort to an action »to determine the right to the office or its possession. We do not think that the legality of the police jury of St. Charles as a body, or the legality of its session of October 10, 1894, can be called in question in the collateral way attempted in this case. Neither the members of that body nor the police jury itself are parties to this suit. It was a defacto body and its members de facto members.

For the reasons herein assigned, and the reasons assigned by us in the ease of the State of Louisiana ex rel. B. J. Kuhlman vs. Emile Rost, Judge, et al., it is hereby ordered, adjudged and decreed that the writ of prohibition herein issued be made absolute, and that the injunction issued by the Judge of the Twenty-first Judicial District Court of Louisiana, for the parish of St. Charles, in the matter of L. A. Cambre vs. Louis A. Keller et al., No. 77 on the docket of that court, be and the same is hereby set aside and discharged.


author: Nicholls, O. J.

text:
    No. 11,600.
    State ex rel Achille E. Picard vs. Emile Rost, Judge.
    State ex rel. Kuhlman vs. Judge, ante, p. 53, affirmed.
    ^PPLICATION for Writs of Prohibition.

      Hamilton N. Gautier, J. L. Gaudet and E. Howard MeOaleb for Relator.

      Gustave V: Soniat for Respondents.
   The opinion of the court was delivered by

Nicholls, O. J.

The pleadings and issues in this case are similar to those in the case of State of Louisiana ex rel. B. J. Kuhlman vs. Emile Rost, Judge, et al., No. 11,599, ante, p. 53. The decision in that case controls the present one.

For the reasons therein assigned, it is ordered, adjudged and decreed that the writ of prohibition which issued in the present matter be perpetuated, and that the injunction granted by the Judge of the Twenty-first Judicial District Court of the State of Louisiana, for the parish of St. Charles, in the matter of R. P. LeSassier vs. A. E. Picard, No. 78 on the docket of that court, be and the same is hereby set aside and discharged.

Rehearing refused.


author: Watkins, J.

text:
    No. 11,691.
    Shreveport Gas, Electric Light and Power Company vs. Assessor of Caddo Parish.
    The capital and machinery employed in the manufacture of illuminating gas for street-lighting are not exempt from taxation, under the terms of the amendment to the two hundred and seventh article of the Constitution, exempting the capital and machinery employed in the manufacture of chemicals.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Wise & Herndon for Plaintiff and Appellant.

      J. B. Land, District Attorney, and T. G. Barrett for Defendant and Appellee.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff claims exemption on its plant and property engaged and employed in the manufacture of gas — that is to say, illuminating gas for street lighting and other purposes in the city of Shreveport. This claim is made under the terms of an amendment to Art. 207 of the Oonstitution, which declares that “capital, machinery and other property employed in the manufacture of fertilizers and chemicals are exempt; from taxation.”

The inquiry is, is gas a chemical within the meaning and intendment of the constitutional amendment?

The full text of the article, as amended, reads thus:

“There shall be exempted from taxation the capital, machinery and other property employed in the manufacture of textile fabrics, leather, shoes, harness, saddlery, hats, flour, machinery, agricultural implements; the manufacture of ice, fertilizers and chemicals, and furniture and other articles of wood, marble or stone, soap, stationery, ink and paper, boat building and chocolate; provided, that not less than five hands are employed in any one factory.” See Acts of 1886, No. 92.

The plaintiff interrogated several scientific gentlemen of this city on the subject, two of whom expressed the deliberate opinion that gas is recognized as a chemical, but the third said it is a disputed question.

One of the two gentlemen who affirmed that gas is a chemical, founded his opinion rather upon the abstract interpretation that is placed upon the term by lexicographers, than upon a scientific knowledge of his own, as the following extract from his testimony will show, viz.:

“ We call attention to the answer of Prof. Caldwell to the sixth interrogatory, in which he is asked, if in his opinion gas can be properly called a chemical: ‘Yes, for the reason that it accords with the definitions of the word chemical as given in our standard dictionaries, which are: “A substance used for producing chemical effects; a substance produced by a chemical process; a chemical agent prepared for scientific or economic use.” The destructive distillation, by which it is produced, and the subsequent burning of it, by which it is utilized, are undoubtedly chemical.’

“To the first cross-interrogatory he says: ‘It is very difficult, if not impossible, to give a perfectly satisfactory single definition of such a term as “chemical;” in my opinion the best answer to the question will be found in the Century Dictionary, in these words: “A substance produced by a chemical process; a chemical agent prepared for scientific or economic use.’ ”

But we are of opinion that the object had in view by the framers of the constitutional amendment was just the same as that which was in the mind of the framers of the original article; and of it this court said in Jones vs. Raines, 35 An. 998:

“ The object of the exemptions created by this provision of the Constitution was to encourage and foster the establishment of manufactures of the various articles daily needed by a people engaged mainly in agricultural pursuits, such as leather, harness, machinery, agricultural implements, etc., the products then very little known within the borders of the State.”

The words and terms of a constitutional article, like those of a law, are to be understood in their most usual signification; and in order to ascertain the true meaning of a statute, the reason and spirit of it should be considered, and also the cause which superinduced its enactment.

This is the accepted canon of construction of statutes, and equally so of the Constitution.

We are not to consider the terms employed in an article of the Constitution from a scientific point of view, as we do not regard it to have been the intention of the framers of the amendment that they should be so considered and construed.

We do not understand that illuminating gas is generally understood to be a chemical, and it is for that reason, presumably, that plaintiff resorted to scientific information on the subject.

This court has uniformly maintained and steadily adhered to the principle that all exemptions from taxation are to be rigidly and strictly construed, and that all legal presumption on that subject will be construed unfavorably to it.

From this standpoint we think it evident that the plaintiff has not made clear and indisputable its right of exemption; and as taxation is the rule, and exemption thereform the exception, its demand must be refused.

Judgment affirmed.