author: Watkins, J.

text:
    No. 10057.
    W. M. Mayewski vs. His Creditors.
    An opposition io an insolvent’s cession and discharge, grounded on a charge of fraud, is in the nature of an answer, and citation to the insolvent is unnecessary.
    On the trial ol’ stick opposition, the insolvent is a competent witness in his own behalf.
    If an insolvent debtor is shown to have committed any “kind of fraud, to the prejudice of his creditors,” whether it is specifically denounced in the statute or not. ho may he proceeded against, and condemned, under R. S. §1803.
    Sections of Revised Statutes, 1803 and 1804, relate to different classes of fraud: one provides for fraud per ¿*<2, and the other for presumptive frauds.
    While the insolvent law is a highly penal statute, it is not a criminal law, and the charge made against the plaintiff is not a criminal but a civil one. Hence, the court a qua, had jurisdiction.
    Section 1805 of the Revised Statutes is a valid and constitutional law’.

      The penalty that is denounced by this statute is not imprisonment for debt: and the statute does not conflict with the act of 1840, which abolished the writ of ca. sa»

    One State or G-overnmont, cannot in virtue of its criminal laws, punish acts committed against the laws of another State; but in a civil proceeding, like the instant one, proof of fraud or theft committed in another State by an insolvent debtor, will sustain a charge of fraud that is made against him in the courts of this State.
    Additional and extraneous evidence, not offered on the original trial of the suit, cannot be introduced on the trial of an application for a rehearing, unless it is based wholly or in part, on the ground of it being newly discovered testimony.
    To support a charge of fraud under the insolvent law, it is unnecessary that the proof should show that tho mass of creditors have been injured by the fraudulent acts of the insolvent debtor, whereby the amount of property applicable to their demands has been reduced. It will suffice, if the proof shows that the insolvent obtained goods under a false and fraudulent pretence from a single individual creditor.
    A PPEAL from tlie Civil District Court, for the Parish of Orleans, ÍY Monroe, J.

      A. J. Lewis and Farrar & Kruttsdhmlt for Plaintiff and Appellant:
    I.
    On Objection to Jurisdiction or this Court.
    1. Where an insolvent files a schedule showing debts amounting to over $13,000; and where a creditor, before a creditors’ meeting has been held, files an opposition on the grounds of fraud, and praying for a judgment depriving the insolvent of the benefit of the insolvent laws of the State, and sentencing the insolvent to imprisonment: the matter in dispute is the amount of debts on the schedule from which the insolvent seeks a release, and not the amount of the claim of the opposing creditor.
    á. The mere fact, that a procos verbal of a creditors’ meeting, not offered in evidence by either party on the trial of the opposition, is found in the Record, cannot affect either the jurisdiction or the judgment of this court.
    3. Whether or not the insolvent was discharged of his debts by that creditors’meeting, is a question open to discussion, hut which is not now before your Honors. Most of the votes adverse to discharge are null under the decision in Phillips vs. Her Creditors, 36 Ann. 904, because not properly sworn to. Suffice ir for the present to state, that we do not concede that the creditors’ meeting has refused the discharge.
    On the Merits,
    i.
    Delivery to a carrier is, in the absence of contrary evidence, a delivery to the consignee; and goods delivered to a carrier in New York for shipment to a New Orleans merchant, upon representations of solvency made by the latter in New York, are, if such representations he false, obtained under false pretences in New York; and such obtaining under false pretences cannot be made the subjectof any penalty, civil or criminal, under the laws of the State of Louisiana. Benjamin on Sales. §804; Angelí on Carriers. (5th Ed.) §497; M. I. & P. Ry. Co. vs. Whites©!, 11 Ind. 55; Smith’s Mercantile Law (5th Ed.), 590.
    II.
    The insolvent laws of this State are of a highly penal character, and in construing them we should, hear this fact in mind, and apply the canons of construction usually applied to penal and criminal statutes. Simms vs. Bean, 10 Ann. 346.
    III.
    The acts of fraud, punishable by imprisonment under the insolvent laws of the State of Louisiana, are such acts only as, directly or indirectly, tend to subtract assets from tho mass, and thus to evade tlie equal distribution of tlie property of an insolvent contemplated by said laws. A fraud whose purpose or tendency is to add to tbo mass is not ¡1 fraud upon said laws, and not punishable under Ilium. It. S. 1802 to 1805.
    IV.

      (a) A State cannoi, by virtue of its own penal laws, punish acts committed against the laws of another State; a fraud committed in the State of New York, on a citizen of New York, is not punishable hy imprisonment under the insolvent laws of Louisiana,. Borer on Inter-State Law, pp. 149 H mq : Graham vs. Monsergh. 22 Vt. 543; Indiana vs. Helmer, 21 Iowa, 370, 372; hichardson vs. Burlington. 33 H. I. 192 ; Slack vs. Gibbs, 14 Vt. 357.

      (b) Montesquieu vs. Heil. 4 La 52, and Andrews vs. His Creditors, 11 La. 454. distinguished and explained.

      Harry ]-I. Hall, for Defendants and Appellees :
    I.
    B. S. 1802-3 and 4 authorize the arrest- aud imprisonment for fraud of an insolvent, even though the fraudulent, representations were made in New York. 4 La. 57: Acts of 1840, p. 133; Acts of 1855, p. 435; Borer Interstate Law, L49, 153 ; 29 Hun. (N. V.) 288.
    II.
    Such proceedings are civil and not criminal in their nature. 4 La. 57, 11 La. 464; 15 La> 337: 4 Ann. 346.
    III.
    The intention to defraud may he presumed. Wait, Action and Defenses. III. p.445; 29 Hunn. (H. Y.) 426: 15 Sup. Ct. H. Y. 426; B. S 1804.
   The opinion of the Court was delivered by

Watkins, J.

The plaintiff resides in New Orleans, and is an importer and jobber in fancy goods.

On the 11th of November, 1886, he sought the benefit of tlie insolvent law of the State, on the ground that he was unable to meet his business engagements, on account of his inability to realize on his assets, or collect debts that were due him. Iiis schedules show total assets of $9481 31, and liabilities of $13,479 90.

On the 22d of December, 1886, Emile S. Levi & Co., of the city and State of New York, filed an opposition to the plaintiff’s discharge, in which they make a charge of fraud against him, based upon tlie following state of facts, viz:

That on the 20th of August, 188(j,, he visited their store with the view of purchasing goods ; and upon the faith of his statement that he was worth'$8000 over and above his debts and liabilities, they sold him a bill of $557 81, on a credit of thirty days from the 30th of September, provided the said insolvent, upon his return to New Orleans, would send them a written statement of.his assets and liabilities, like the one he had made them verbally. This he consented to do. On the faith of his representation and promise they subsequently shipped him the goods. He failed to make them a statement, and they wrote him on the subject. On the 12th of September he wrote them a letter, inclosing a statement, showing his assests to be $9729 06 and his liabilities $453 40.

On the 4th of November he gave notice to his creditors — opponents among the number — that he was utterly insolvent and could not pay more than twenty cents on the dollar of his indebtedness; and he also submitted to them a statement of his business, as follows, viz:

Assets, $6800 00; liabilities, $13,353 50.

Opponents aver that said indebtedness existed wholly, or in greater part, when the foregoing statement was made to them, and said goods were furnished by them; and that said statement was false, and fraudulent, and was so made by said insolvent wilfully and knowingly, for the purpose of fraudulently obtaining said goods from them, and for the sole purpose of deliberately swindling them of the value of their property.

They aver that these acts of the insolvent constitute a fraud on them within the statute, and that no part of their claim has been paid. They pray for his arrest and confinement until he shall give bond for his appearance and answer; and that he shall be adjudged guilty of fraud, deprived of the benefit of the insolvent law, and that he be sentenced to imprisonment for a term of three years.

To this opposition the insolvent excepted that the charges were too vague and general to justify,the decree prayed for, and disclose no cause of action. This exception was overruled, and he filed an answer which embraced the following points, viz:

1st. A general and special denial of the charge of fraud.

2d. That the charge made is essentially a criminal one, and that the court a qua was without jurisdiction to entertain it.

3d. If it is construed to be a civil proceeding then Section 1805 of the Revised' Statutes, authorizing it, is unconstitutional and void, being in violation of Articles 2, 5, 6, 7 and 8 of the.State Constitution, and the 4th, 5th and 6th Amendments of the Federal Constitution, because, if this proceeding be entertained, he would still be exposed to another prosecution before the courts having criminal jurisdiction, and be thereby placed twice in jeopardy for the same alleged offense.

4th. If this be a civil proceeding he is entitled to citation and service of petition.

5th. A claim of $10,000 damages for a malicious prosecution.

On these issues the case was tried by a jury,, and they found the plaintiff guilty of fraud. Thereupon the court pronounced judgment against him, decreeing that he be forever deprived of the benefit of the insolvent law of the State, and that lie be imprisoned for one year in the Parish Prison.

From this judgment the insolvent has appealed.

I.

In this Court it is suggested in argument and brief of opponents that the insolvent has no appealable interest, and that his appeal should be dismissed proprio motufov want of jurisdiction ratione materiae. We are of the opinion that he has sufficient interest in the question of his deprivation vel non of the benefit of the State insolvent law to warrant his appeal. But the estate of an insolvent is like that of a deceased person; and the amount to be distributed is over $9000.

II.

This is not a suit in the ordinary acceptation of that term. The cession of an insolvent is made in conformity to special provisions of the law, to which an opposition is in the nature of an answer. N° citation is necessary, because the insolvent is in court on his own petition.

III.

The evidence introduced by the opponents fully establishes all the averments contained in their petition. There was none introduced by the defendant. For reasons best known, to himself, he thought it expedient to remain silent, notwithstanding he had the opportunity to explain his course of dealing with opponents and the disparity between his statement of the 12th of September and that of the 4th of November, 1886, whereby it appears that his assets had been diminished by the sum of $2929, and his liabilities increased by the sum of $11,353.

The argument is made that it is questionable whether the insolven t had the right to testify, because the Statute authorized the opponents to require, under certain averments, the written answers of the insolvent. But this Statute does not preclude him from testifying, and we think he had that right, and could have exercised it if he had been desirous of so doing.

In his schedule of assets he placed his “stock and fixtures” at $5000, and his “book accounts” at $3354 92 — the two aggregating $8,354 92.

If, as stated in the sworn petition which accompanies his schedules, his state of insolvency was brought about through his inability to collect debts that were due him, and to realize on his stock of goods, how can he account for the deficit of $4,998 581 For, if his “book accounts,” and “stock and fixtures” were converted into cash, there would still be a shortage to that extent unaccounted for.

It is evident that opponents furnished the insolvent with $557 81 worth of goods, in the latter part of the month of August, upon the faith of his representations that he wras worth $9,729 06 over and above his liabilities, whereas his real situation was such that, two months afterwards, his values — if counted as cash — amounted to'$4998 58 less.

In other words, his representations to opponents were false, or he had sustained losses, in the interim, to the extent of $14,727 64.

But neither the petition nor schedules pretend to account for such losses. Had he been possessed of the assets he claimed to have in September, there had been withdrawn at least $4,998.58 prior to the 4th of November, of which he has rendered no account, and offered no explanation whatever. It is provided by R. S., section 1803, that “ every insolvent debtor shall also be considered as guilty of frond who shall have passed simulated deeds for the purpose of conveying the whole or part of his property, and depriving his creditors thereof; or who shall have knowingly omitted to declare any of his property, rights or claims in his schedule; or purloined his books or any of them; altered, changed or made them anew, always with an intent to defraud his creditors ; or committed aivy other hind of frond to the prejudice of 7tis creditors."

The plain significance of this statute is, that if an insolent debtor has been proved to have passed simulated deeds for the purpose of depriving his creditors of his property ; or to have, knowingly, omitted any of his property from his schedule; or to have “committed any other kind of fraud, to the prejudice of his creditors,” he “ shall be considered guilty of fraud." Proo/liaving been made of any fraud on the part of aninsolvent debtor, to the prej udice of his creditors, he shall be considered ipso facto a fraudulent debtor, and treated as such. In addition, section 1804 of the Revised Statutes provides that if a debtor who has voluntarily surrendered his property to his creditors shall have done either of certain acts therein enumerated, or “any such act," it shall be held presumptive evidence of fraud;” but this presumption may be rebutted.

These two sections provide for different classes of frauds — one for a class of fraudster se, and the other for a class of presumptive frauds.

Does the proof bring the plaintiff within the compass of either? Has he committed any kind of fraud to the prejudice of opponents ? If one who has passed a simulated title to his property for the purpose of depriving his creditors of it “ shall be considered guilty of fraud;” and one who shall have knowingly omitted to declare any of his property in his schedule “shall be considered guilty of fraud,’) why should not the person be so considered who has not only failed to disclose his insolvency, but asserted his solvency to another in order to enable him to buy his goods upon terms of credit? Does not theone act, as well as the other, injure the creditor? Is not the fraudulent purpose and intent just as clearly discernible in one case as in the other? If one is more flagrant than the other, it is the last, because it is through the fraudulent concealment of his insolvency and the false assertion of his solvency that the credit was given and the injury inflicted. That this was the course of plaintiff’s conduct is undenied and undeniable.

But counsel for the insolvent strenuously insist that it is not sufficient to prove acts of fraud upon a single individual creditor — i. e., acts by which an individual creditor is injured- — but that the proof must show that the mass of creditors have been injured by the reduction through fraudulent devices of the insolvent debtor of the amount of property applicable to their demands.

His reliance is on the provisions of sections 1802, 1804 and 1808 of the Revised Statutes.

This question was directly presented and decided in Montesquieu vs. Heil, 4 La. 52, and from which we make the following extracts, viz :

To sustain their opposition to the surrender of property and discharge of the insolvent from custody, his opponents rely on the/ra«dulent and thieving manner in which he contracted the debt towards them; and to support the charges of fraud and theft, they introduced in evidence the record of a suit tried in the district court, wherein it appears that they, as plaintiffs, recovered from the present appellant $30,000 as damages, on account of a theft, by’ him committed, in Paris, in stealing from their ancestor jewelry to that amount.”
•if )r if ir * » it tt it tr
Again, “ the evident intention of the Legislature, as ascertained by the preamble to act of 1808, is to exclude from its benefits all fraudulent debtors. The 17th section specifies particular acts of a debtor, which shall deprive him of the privileges and benefits accorded by the law. Does this specification of frauds preclude allegation and proof of others, which would demonstrate the debtor to have been dishonest in the transactions by which he became indebted to any one of his creditors, and fix on the former the character of a fraudulent debtor, and, according to the preamble, one who has deprived an honest individual of the community of his property? We think not. * * *•
“The act now under consideration received a construction by the Supreme Court of the territory of Orleans in 1810, contrary to the claims of the appellant.” 1 Martin, O. S. 159. Brown’s case.

In the case cited, the insolvent was convicted of fraud and the judgment was affirmed in this court.

A careful examination of Acts 16 and 17 of 1808 — and particularly of sections 17 and 19 of the former, and 5 of the latter — will disclose that the causes enumerated therein for the insolvent debtor’s deprivation of the benefit of the law are nearly identical with those of R. S. 1802 et seg. But those contained in R. S. 1809 add to the list, “ also all those whose losses shall have been occasioned by gambling, dissipation and debauch.” The decision quoted from seems to meet the objection urged by plaintiff’s counsel, under the law as at present in force.

If we were to express an opinion on it, as a new question, we would feel inclined to differ from the views therein expressed; but when we take into consideration the great length of time that that opinion has been suffered to remain undisturbed, we may safely rest our approval of it on the consecrated doctrine of stare decisis.

IY.

Counsel further insist that, while the insolvent law is not a penal statute, yet the charge made against him is a criminal one and, therefore, several consequences result that are distinctive of this proceeding.

Let us first ascertain whether the one preferred is a criminal charge. It is, that Mayewski obtained from opponents goods, on the faith of his false statement that he was solvent.

Now, while at common law, and in some of the States, it is regarded as a false pretense for a person to make a misrepresentation of an existing condition, or with regard to the ownership of specified assets, on the faith of which credit is given; yet, it is an open question, in England, whether or not it is a false pretense to obtain goods on the representation that a person is a man of means, when, in truth, he is not. 2 Whar. Crim. Law, secs. 1135 to 1138.

Hence, rather a nice question is presented, whether the insolvent’s act is cognizable by a criminal court or not. But its decision is not necessary to the determination of this case. We have only to deal with the question in hand. It is quite certain that, while the insolvent law is a highly penal statute, it is not a criminal law; and no charge under it could be a criminal charge. It is not a good argument to insist that, because' the plaintiff might be proceeded against under section 813 of the Revised Statutes, for obtaining goods under false pretenses from the opponents, therefore the court a qua had no power to determine whether, under section 1807, he had been guilty of fraud upon them or not. If so, then, for a like reason, the argument would be a good one that he could not be criminally prosecuted, because he might be proceeded against on a charge of fraud. In this way he might escape both the penalty of one statute and the punishment of the other. We cannot anticipate what might be the result of a prosecution of the insolvent in the future. Had he been convicted, and suffered the punishment therefor, and that proceeding been tendered as a bar to the present inquiry, we should have felt constrained to have passed upon the tangible issue thus formulated. At present we cannot.

The conclusion reached on this question necessarily disposes of the plaintiff’s exception to the jurisdiction of the court a qua.

V.

Plaintiff’s counsel insists that the provisions of section 1805 of the Revised Statutes of 1870 are in conflict with those of articles 2, 5, 6, 7 and 8 of the Constitution of 1879 — denominated the “Bill of Rights’’— and, therefore, unconstitutional and void.

There is but one essential difference between those articles of the present Constitution and the corresponding articles of the Constitution of 1868, which was in force when the statutes were revised; and that consists in the proviso to article 5, which declares that no person shall “be twice put in jeopardy of life or liberty for the same offense,” etc. We have already reached the conclusion that the insolvent is not being prosecuted; and it does not appear that he has been prosecuted; consequently, it is manifest that this contention is groundless.

The quoted articles, with slight modifications, have been imported from the 4th, 5th and 6th amendments to the federal Constitution into our own, and the charge of unconstitutionality in that respect is equally groundless.

VI.

His further contention is that the plaintiff’s arrest and confinement in pursuance of the provisions of the insolvent law, would be virtually an imprisonment for debt, and therefore illegal, because it has been abolished.

Under C. P. 210 et seq, the arrest of a debtor is permitted while suit is pending, or until lie shall give security for his appearance after judgment.

By the terms of C. P. 726 et seq, his imprisonment is permitted after judgment, under certain circumstances; and one of them is to compel him to make a surrender under the insolvent law. These statutes have been held not to conflict with the act of March, 1840, which abolishes the writ of ca. sa. Anderson vs. Brinkley, 1 Ann. 126 Thornhill vs. Christmas, 10 R. 543.

For alike reason we cannot perceive in what way section R. S. 1807 conflicts therewith; for it merely provides that when an accusation of fraud is brought against an insolvent debtor who has made a surrender and is found guilty, he shall be deprived of the benefit of the insolvent law and sentenced to imprisonment.

In Northern Bank of Kentucky vs. Squires, 8 Ann. 337, it was said that “ it seems to be conceded everywhere to be well settled that State insolvent laws, as to contracts posterior thereto, are valid and binding between citizens of the State where such laws exist, with respect to contracts made and to be performed in that State.”

It does not lie in the mouth of plaintiff, who is in court on his own petition, seeking the benefit of the insolvent law, to complain of its enforcement against him.

There is no question here as to whether the contract between him and opponents was to be performed in New York or Louisiana, for the reason that the latter have taken judicial cognizance of plaintiffs surrender, and joined issue with him in the courts of this State, and seek therein the enforcement of the insolvent law against him.

We do not regard such imprisonment as being an imprisonment for debt. This law has stood the test of half a century, and, in our opinion, does not conflict with the law abolishing the writ of ca. sa.

Nil.

It is next strenuously urged by plaintiff’s counsel that if fraud was perpetrated-at all, by the insolvent, it was in New York, and that the same'is not cognizable by the courts of this State. It is no doubt true, in principle, that one State cannot, in virtue of its criminal laws, punish acts committed against the laws of another State.

But, in the case of Montesquieu vs. Hiel, 4 La. 52, above cited, one of the questions presented was, whether proof of a theft committed in France, would support á charge of fraud made in the courts of this State, against an insolvent debtor who had made a surrender under our insolvent law.

On this question the court said : “As this evidence relates solely to a civil action, we are unable to perceive the force of the objection made to it, on account of proving a fraud committed in France. It is true that one State or Government will not punish crimes committed in another, by public prosecution, but it does hot follow, as' a necessary consequence, that an offender who flees from the State whence he committed the crime, shall be screened against pursuit by individuals whom he may have injured in the country where he has taken refuge.

“In relation to the civil suit he must be subjected to the laws of the latter place.”

That decision is particularly applicable to the instant case, because the fraud complained of was begun in one State and consummated in another.

VIII.

Objections were urged on behalf of plaintiff to the judge’s charge to the jury, but they were not particularly specified, nor set out in a bill of exception, and cannot, therefore, receive any consideration. The request made of the judge to prepare and submit his charge to the jury in writing, came too late, but he did subsequently reduce it to writing and file it in the record, and the demand was substantially complied with.

IX.

The application for a new trial, substantially embraces the various issues presented in the argument, and it was overruled by the judge a quo, after careful consideration; and our study of the case has impressed ns with the correctness of his ruling.

On the trial thereof, plaintiff’s counsel offered in evidence quite a number of letters and papers, in support of his contention, but same were rejected and disallowed, mainly for the reason that they were not introduced in evidence on the trial of the ease; and there is no averment to the effect that these papers constituted newly discovered evidence. There is no warrant for such a practice and we approve of the rejection of this evidence.

We do not approve of that part, of the judgment of the court a qua which taxes the cost against the insolvent personally. It should have been taxed against his estate. In all other respects we think the • judgment is corret.

It is therefore ordered, adjudged and decreed that the judgment appealed from be so amended as to tax all cost against the insolvent’s estate, and that it be in all other respects affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,044.
    Succession of George L. Smith.
    The Act of 1870, No. 87, does not authorize the appointment of the Public Administrator to the succession of a party dying intestate, where the heirs of the deceased are present or represented, and are in possession of the property left by him.
    The circumstance that the succession is that of a resident of another State, composed of personal property, which by the law ofjthe domicile Tests in the administrator there, does not justify the appointment here, where the heirs oppose it.
    The nature or title of such heirs and administrator is of no concern to the Public Administrator.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Gus. A. Breaux and Wm. Grant for the Public Administrator, Appellant.

      Leonard, Maries & Bruewn for the Heirs, Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The only question presented is, whether the Public Administrator can be appointed to administer this succession.

G. L. Smith, who was domiciled in Arkansas, died there, leaving no will, owning property in that State and personal effects in Louisiana.

Parties claiming to be the sole heirs of Smith oppose the application, on the ground that there is no necessity for an administration; that the heirs, are represented in this State and are in possession of the property left by the deceased therein ; that the estate in Arkansas is under the charge of an administrator, and that the property in this State would fall under his administration.

One Parker joined in the application of the public administrator.

The District Court rejected the application and recognized the opponents as the heirs of the deceased, with certain eventual hereditary rights.

On appeal, the Arkansas administrator joins the opponents and appellees.

Parker, who had joined in the application for the administration, has ceased to be an actor in the case, judgment having been rendered in his favor, in a particular manner, from which he is not heard to complain.

There can be no doubt that had Smith died intestate, leaving personal property in this State over which creditors here could have exercised claims, and had he left no heir present or represented, there would have arisen a proper case for the appointment of the public administrator.

The facts are not so, however.

Smith apparently has left no creditors here. Hrs heirs are represented by an agent and they are in possession of what property he has left in this State, whether in his name or not. They have besides been judicially recognized to be, as such, entitled to the possession of that property.

The administrator does not charge that this judgment of recognition is erroneous. The public administrator contends that, true if it be, that the heirs are in possession, this cannot avail them, as, under the Arkansas law, tire personalty vests in the administrator and not in the heirs, who can receive the same only after due liquidation of the estate.

Of what concern can it be to the public administrator that this be or not so, in a case in which both the administrator and heirs oppose his appointment?

As well might he, in a case in which a surviving spouse in eommu" nity aud the children of the consort dying intestate, would oppose his prayer for appointment, urge that the naked ownership is in the latter and the usufruct or possession in the former. Surely in such a case he could make no show for appointment. Neither, then, can he here.

From the allusion made to the appearance of the Arkansas administrator, it is not to be inferred that his representative capacity is recog - nized, as that is not a factor in the decision, which hinges solely upon the presence of the heirs and their possession of the estate.

The purpose which the Legislature intended to accomplish when it created the trust of public administrator, was to provide for a prompt and safe custody of the property composing vacant successions, which otherwise might be exposed to ruin and devastation.

Hence it is that the law distinctly provides that it is only where the deceased has left n > will appointing an executor, and where there are no heirs present or represented, that the public administrator c.an be put in charge of an unclaimed estate, and that, even where appointed, his functions cease on the recognition of the heirs.

It has accordingly been held that where the heirs have taken possession the public administrator cannot interfere. 28 Ann. 573.

It is clear to our minds that under this statute creating the office of public administrator, the contingencies under which the appointment claimed could have been conferred have not occurred, and that there is no error in the judgment complained of. Vide Act No. 87 of 1870, p. 120.

Judgment affirmed.


author: Poohé, J.

text:
    No. 10,109.
    H. Grabenheimer vs. John B. Budd, Sheriff, et als.
    The sheriff is responsible to tbe injured party for all damages occasioned through his negligence, malfeasance or misconduct or that of his deputies.
    The party who obtains an attachment of his debtor’s property, and realizes nothing thereby, because a second writ obtained against the same property is designedly executed in advance of his, by a deputy sheriff with .fall knowledge of the facts, is entitled to recover damages against the sheriff.
    The measure of such damages is not the amount of his claim, if it exceeds the value of the debtor’s property which the injured party intended to reach; but he cannot recover more than he would have received if the-offi'cer had done his duty.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Alien, J.

      Knóbloch, Moore & Badeaux for Plaintiff and Appellant.

      L. B. Bullion and T. L. Winder, for Defendants and Appellees. .
   The opinion of the Court was delivered by

Poohé, J.

The sheriff and his bondsmen are sued for damages in the sum of $2113 91, alleged to have been caused to plaintiff through the malfeasance and misconduct of the sheriff’s deputy. The judgment of the district court, resting on the .verdict of a jury, was in favor of the defendants, and plaintiff appeals.

The facts are as follows :

Plaintiff, as creditor of one S. Simon, in the sum of $2113 91, sued out, and obtained, a writ of attachment of his debtor’s property, consisting of the contents of a country store, and placed the writ in the hands of the sheriff for immediate execution.

While the papers were being prepared, the counsel of another creditor of Simon, having been informed thereof by a deputy sheriff, hurriedly prepared papers for an attachment of the same property, which were completed in the attorney’s office by the clerk of the court, who had been sent for through the same deputy sheriff.

Hiring a fleet horse, counsel placed the writ which he had thus obtained in the hands of this deputy sheriff, with special instructions to hurry to the store, at a distance of eleven miles from the court-house, and to serve the process in advance of the service to be made by the sheriff of the writ first obtained by plaintiff’s counsel, and first placed in his hands.

The plan was carried out, and the attachment under the second case, subsequently filed, had been executed by the deputy when the sheriff reached the store, and the result was that the entire contents of the store were absorbed by the attachment issued in the sebcnd suit, and that plaintiff took nothing by means of his process.

Under the plain text of the law, and in keeping with numerous adjudications on the subject, it is an undeniable proposition that the sheriff is responsible in damages to the party injured through the malfeasance, misconduct or delinquency of his deputy. C. P. Art. 764; Revised Statutes, sec. 3594; Wilkins vs. Bobo, 13 Ann. 430; Marshall vs. Simpson, 13 Ann. 437; Bogel vs. Bell, 15 Ann. 163; State ex rel. Attorney General vs. Budd, sheriff, 39 Ann. 232.

According to the showing made by the record in this case, the unquestioned right in law of the plaintiff, Grabenheimer, was that his writ should have been executed before the attachment sued out in the second suit, filed on that day, against the common debtor ; and under that state of things he would have been entitled, as fruits of his legal vigilance and of his ranking seizure, to the proceeds of the debtor’s property, which were otherwise absorbed by the creditor in the second suit.

He had taken all the legal steps necessary to a fair accomplishment of that result, and as he has been illegally thwarted in his lawful design the question recurs to trace the cause of his defeat, resulting in a clear loss.

The record answers that the cause was the illegal and very reprehensible conduct of the deputy sheriff who served the second creditor’s process, with the avowed intention and design of beating” the first attachment; and according to law the sheriff remains responsible ” therefor.

The acts performed by the deputy in 'his official capacity, are the acts of the sheriff, and although the latter was designedly kept in ignorance of his deputy’s movements in the premises, the law holds him as rigorously responsible, as if both writs had been placed in his own hands, and he had wittingly given an illegal preference to one of the writs over the other.

It is part of a sheriff’s duty to have his deputies under proper control, and to see that they honestly and impartially perform their official duties.

Having concluded that the sheriff is liable to plaintiff in the premises, we must now fix the quantum of damages.

Plaintiff’s counsel contend that the amount of his claim $2113 91, is the measure of damages, and they rely on the provisions of section 3594 of the Revised Statutes, which provides, in substance, that the party injured, through the failure, neglect or refusal of the sheriff, in connection with such writs, is entitled to recover the full amount owing on the claim sued on.”

But manifestly that provision of the law must be construed with reference to the hypothesis that under tho circumstances of the case, the whole amount owing on the claim sued on,” could have been satisfied out of the debtor’s property which escaped through the negligence or misconduct of the sheriff or his deputies.

The law means to compel the sheriff to indemnify the injured party, but it surely could not intend to coerce him to guarantee the claim sued on.

The instant case very aptly illustrates the distinction which courts must observe in the application of the law.

All the property of Simon, the debtor, was attached under the process hereinabove described, and at the sale made thereunder, it realized as clear proceeds, after deducting costs, taxes and the lessor’s privilege, the insignificant sum of $215 25.

That is the sum which plaintiff would have jealized if his process had been served as it should have been, and that sum is therefore the extent of the loss which plaintiff has sustained through the fault of the sheriff.

The rule is settled that in such cases the injured party cannot recover more than he would have received if the officer had done his duty. Marshall vs. Simpson, 13 Ann. 437; Bogel vs. Bell, 15 Ann. 163.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from and the verdict of the jury be set aside and annulled, and it is now ordered that plaintiff do have and recover judgment in the sum of $215 25, with legal interest from judicial demand, against John B. Budd, sheriff, and his official sureties, John D. Wright and Henry C. Duplantis, jointly and severally, with recognition of mortgage on the defendant Dudd’s property, according to sec. 4 of act 52 of 1880, and that he recover his costs in both courts.


author: Fenner, J.

text:
    No. 10,103.
    Michel A. Becnel vs. Joseph Waguespack.
    The evidence in the case fails to eatablish the claim with that certainty required to support a judgment.
    When a co-owner of indivisión of immovable property biings an action in his <$wn name for the entire damage done to the estate by a trespasser, the citation in such suit will avail to interrupt prescription as to the other co-owner who afterwards intervenes and joins in the action. The suit was necessarily for his benefit, entitling him to an account from the plaintiff in case of recovery, and it informed defendant of the entir cause and object of the claim and of the titles on which it was founded.

      APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Bost, J.

      O. O. Provosty for Plaintiff and Appellee.

      W. J. Waguespaclc and B. G. Pugné for Defendant and Appellant.

      Bérault & Ohenet for Interyenor.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff claims $15,000 for 3000 trees alleged to have been cut by defendant on his land.

The petition affords no better desciiption of the locus of the alleged trespass than the simple setting out the metes and bounds of a track belonging to plaintiff of about 2000 acres, and no more particular designation of the time than the allegation that it was committed ‘‘ during the high water of 1884.”

That high water was occasioned by the Davis crevasse, which is shown to have occurred on March 8, 1884, and lasted through the month of June.

An exception was taken on the ground, amongst others, that the petition did not state with sufficient certainty the time when and place where the acts charged were committed. This exception was overruled ; but the defect complained of assumed importance in view of the defendant’s subsequent plea of prescription, because the citation was not served until after May 13, 1885, and it became important to know whether the acts charged were committed before or after that date in 1884, inasmuch as the prescription applicable is that of one year. The impossibility of determining from the allegations of the petition whether the plea of prescription is applicable or not, serves to establish the seriousness of the exception, and its overruling left open a nice question as to whether the burden of proof devolved on plaintiff to establish that the acts were done within the prescriptive term or on defendant to show that they were done without it.

It is not necessary to determine this question here, but for future guidance see Powers vs. Foucher, 12 Mart. O. S. 70; Hubnall vs. Watt, 11 Ann. 57.

But the vagueness and uncertainty exhibited in the petition and in the proof as to date, extend to the whole evidence in the case.

We have been at pains to read it with great care and we find it impossible to hold that plaintiff has established his claim with anything approaching that degiee of certaint.y which is essential to support a judgment.

Plaintiff and defendant own contiguous lands in the swamp, and during the overflow both had hands employed in cutting timber on their respective estates. A large number of other persons were also engaged in cutting timber in the swamp.

No witness is produced who ever saw any of defendant’s hands cutting on plaintiff’s land. There is no direct or positive evidence of the trespass charged of any kind. Plaintiff’s whole ease rests on inference drawn from the fact that at certain points the cutting on defendant’s land seems to have extended across the line of plaintiff. But the evidence of defendant’s plantation manager shows that he visited the hands a number of times during the cutting and always found them within his line and warned them against crossing the defendant’s line, and nobody proves that they ever did cross it. It was certainly possible that others might have committed the trespass, and it is not brought home to defendant. The trespass seems not to have been discovered until long after its commission when defendant’s vagrant wood-choppers had scattered and the means of proving the actual facts had been lost to both parties.

. Plaintiff has no doubt suffered a loss, but lie “ must have grounds more relative than this ” before he can compel the defendant to make it good.

As the judgment must be of non-suit only, we are compelled to review that part of the judgment appealed from which sustained the plea of bresoriplion as against the intervention of Lezin Becnel.

The suit' was originally brought in the name of M. Becnel only, who sued as sole owner of the land and claimed the whole damage for the trespass.

It subsequently transpired that Lezin Becnel was an undivided co-owner of the land and he thereupon filed an intervention alleging that fact and joined in the demand. This intervention was not filed until long after the lapse of the prescriptive term, and the plea of prescription as against the intervenor was sustained by the judge a quo. The correctness of this judgment depends on whether the intervenor was entitled to the benefit of the interruption resulting from the citation on the principal demand. We think he was, under the authorities cited by his learned counsel and others.

The suit was by one undivided owner against a trespasser, and elaimed the damage, to the entire property by the trespass, and is assimilated to the right of such a co-owner to bring a petitory action for the whole property against a trespasser, which has been maintained. Pearson vs. Grice, 6 Ann. 232.

If plaintiff had recovered it would have enured to the joint benefit of his co-owner, who could have compelled him to account. The action clearly indicated to defendant the entire cause and object of the claim and the titles on which it was founded, which was sufficient to interrupt prescription as to both the co-owners. Flower vs. O’Connor, 17 La. 213; Blanc vs. Dupre, 36 Ann. 847; Satterlee vs. Morgan, 33 Ann. 846.

We shall reverse the entire judgment appealed from and replace it by a judgment of non-suit against both plaintiff and intervenor, leaving the rights of all as they were before the suit.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that there be judgment rejecting the demands of both plaintiff and intervenor as in case of non suit at their proper cost in the lower court, the costs of appeal to be divided between plaintiff and defendant.


author: Watkins, J. Poché, J.

text:
    No. 9882.
    The Whitney Iron Works Company vs. George B. Reuss.
    When manufacturers oblige themselves to furnish machinery to a planter of first-class material and workmanship and free from damaging defects, and guarantee the work for one year, and that same shall be first erected in their shops, as far as practicable, in order that the planlor, or his engineer, may inspect the same before their delivery on board of steamboat at the port of New Orleans, for shipment to him, and on duo notification he makes the inspection, and thereafter receives and uses said machinery, the burden of proof is on defendant to establish the following facts, viz:
    1st. That the workmanship and material were not of first-class; but, on the contrary, same were affected with damaging defects;
    2d. To reconcile his apparent, and implied acceptance of the mill and machinery, resulting from his use of same in bearing off his crops, with his, claim that some were in many essential particulars defective, both as to workmanship, and material 5
    3d. To establish by clear, and satisfactory evidence that the mill and machinery had received “ fair usage ” at his hands, otherwise he cannot defeat his contract to pay the price,
    4th. Holding under such a contract a large and valuable property, the defendant not having established the conditions precedent, is not entitled to delay proceedings for the purpose of having heard the evidence of his witnesses as to the quemtum of damages.
    5th. A judgment taxing cost is an interlocutory decree, though rendered after the judgment in the cause, and separately signed; but same cannot be revised or reviewed in case the evidence in support of it has not been reduced to writing, and is not in the record.

      APPEAL from the Twenty-second District Court, Parish of Ascension. Duffel, J.

      David W. Barrow, for Plaintiff and Appellee.

      JE. N. Pugh and Tí. N. 8ims, for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This suit was brought to enforce specific compliance with the terms of a contract of sale, made to the defendant of certain machinery for the manufacture of sugar and molasses.

The same consisted of a five roll mill and an engine, with all the necessary gearing, fixtures and appurtenances to make it complete and fit it for manufacturing operations, and all of which are carefully detailed in the written specification^, which were submitted to the defendant and accepted by him on the 8th of May, 1884, with some slight modifications.

After enumerating with great particularity the length and diameter of the rolls; the thickness of the shells; the material and diameter of the shafts and journals; the fashion and pattern of the flanges ; the character and composition of the bed-plates, cane knife, king-bolts, and juice-pans, among others, the specifications set out the following special covenants on the part of the corporation, viz :

L That all material and workmanship shall be of first-class, and free from damaging defects.

2. That the work is guaranteed for one year under fair usage.

3. That the liability of the corporation is limited to repairing any defective, or broken parts, in the shortest possible time.

4. That the defendant is fully guaranteed against any infringement of patents.

5. ■ That plaintiff will erect all of said machinery in their shops, as far as practicable ” in order that defendant, or his engineer, may inspect the same before shipment.

6. That said company will furnish a full set of blue-print drawings for the mill and its foundations.'

7. That it will deliver all the machinery f. o. b. of steamboat in this city, and have same ready for shipment on, or before the 1 st of September, 1884.

The price stipulated was $15,750, payable in four equal installments, for which the defendant consented to execute his promissory notes, payable respectively on tlni 20th of December, 1884, and February, April and June, 1885, and indorsed by John Reus.

The defendant agreed to furnish two of those notes when the machinery was ready for shipment, and the other two on the 1st of October, 1884.

The plaintiff company avers that the mill, engine and all the machinery were completed according to contract, and delivered in good order on a steamboat in the city of New Orleans for shipment; and that same were received by the defendant, and shipped to his Ger-mania plantation, and erected in his sugar-house.

That, in conformity with the contract, the company previously erected said machinery, in its shops, and that it was there examined and inspected by John Reus and J. C. Lear, engineer, for the defendant; and same were by him accepted.

The company avers full compliance with all the stipulations of the contract, and that it is entitled to have and receive said notes from the defendant, who .has failed to comply with his part of same, and has refused to furnish or deliver said notes, notwithstanding he has been repeatedly requested so to do; and prays judgment compelling defendant to comply therewith, and furnish said notes, and for a money-judgment against him for such part of same as shall become due during the pendency of this suit, with recognition of'vendor’s lien on the property.

The company also demands $794 as the value of extra work, and the restitution of certain tools and implements loaned to the defendant, or their alternate value.

The defendant pleads the general issue, and admits the execution of the contract; but denies that plaintiff has carried it out, on his part, in good faith. He avers further, that the company has done no act thereunder which entitles it to a specific performance, or the paymen t of the price.

He further avers that many parts of said machinery were constructed of defective material; that the workmanship was bad and rough; that scarely any piece of machinery would fit after being transferred to the sugar-house; and that, after being therein erected, said machinery, as a whole, in the defeetiveness of material and workmanship, stood and stands as a reproach and disgrace to the prevailing improved methods and facilities for the construction of plantation machinery.”

He denies that he, or any person for him, ever accepted any part of said machinery in plaintiff’s shops in New Orleans, as alleged.

He avers that he discovered the defectiveness of portions of said machinery after same liad been shipped, and promptly notified the plaintiff company and made complaint.

The answer there specifies, among others, the following defects in the mill and machinery, to wit:

1. That the blue-print drawings for the foundations were incorrectly made, and caused him a loss, in material and extra work, over $400.

2. That during the grinding season the bed-plate of the three-roll mill was broken, owing to the insufficiency of the foundation bolts and washers.

3. That both of the shafts of the two-roll mill became loose.

4. That the intermediate carrier failed to deliver the bagasse.

5. That five of the cogs in the cast-iron pinion — -which the contract required should be of steel — were broken on account of the defectiveness of the material.

6. The juice-pan of the three-roll mill was made too short and narrow, in consequence of which the cane-juice ran over, and beyond the edge of the pan, and over the journals, and much of it was lost or wasted.

7. That the patent cut-off, or joy-valve, that was attached to the engine so that the steam could bq cut off at any point of the stroke, would not work; nor would the reversing-lever operate well.

Defendant also avers that after much loss of time and great expense for labor lie was compelled, in order to prevent the total loss of his crop of 1884, to employ and use said machinery to bear it off.

That through the fault and negligence of plaintiffs in the non-performance of its part of said contract, in the particulars specified, he has suffered damages to the extent of $10,000 for the year 1884, and a like sum for 1885.

That plaintiff’s full and complete compliance with the terms of the contract was, and is, a condition precedent to his recovery of him; and that he refused to deliver to plaintiffs his notes on the ground that the machinery furnished was greatly defective, both as respects material and workmanship.

He prays judgment rejecting all of plaintiff’s demands at his cost and for judgment in his favor on his reconventional demand.

The pleadings are quite elaborate and difficult of satisfactory analysis, but we have endeavored. to furnish a fair and concise synopsis of the demands and counter-claims of the parties to this intricate and abstruse litigation.

It is apparent from the foregoing statement that the three important questions for determination are :

1. Was the workmanship and material of first class, and free from damaging defects ?

2. Did the mill and machinery receive fair usage at the defendant’s hands while same was in process of erection in his sugar-house, and while it was in his possession and being operated by him i

3. Did plaintiff company furnish a full set of blue-print drawings for the mill and foundations, as stipulated in the contract?

I.

The burden of proof is upon the defendant to establish that the workmanship and material were not first-class, but were affected with damaging defects ■, because the opportunity had been afforded him of inspecting the machinery in the company’s shops before shipment.

Having accepted delivery of the goods, and shipped them to his plantation and erected them in his sugar-house, and used the same in bearing off the crops of 1884, 1885 and 1886, it became defendant’s duty to reconcile his apparent and implied acceptance of the mill and machinery, resulting therefrom.

Defendant must also show affirmatively that the mill and machinery received fair usage at his hands while in course of erection and subsequent operation.

While the defendant, in his answer, does not formally demand the annulment of the contract, in whole or in part, on account of the vices and defects enumerated, it is in effect the action quanti minoris, set up by way of a reconventional demand.

H.

On the trial all of the various issues presented by the pleadings were traversed by the testimony of various witnesses — experts and non-experts — with the exception of defendant’s reconventional demand, proof of which was resisted by the plaintiff company in the court below, and successfully, as the defendants’ numerous bills of exception will show.

In this court his council urgently press them upon our attention and ask us to review them and reverse the rulings of the judge a quo.

They are to the effect that he tendered various witnesses by whom to prove, among others the following items of damage, viz:

1. Damages suffered by him during the grinding season of 1884, on account of the bad condition of the machinery furnished by plaintiffs.”

2. Tlie loss and damage caused by, and which was the direct result of the damaging defects in the machinery made by the plaintiffs.”

3. The damages and injury sustained by reason of defective plans furnished by plaintiffs for the erection of the foundations of the mill and engine; and the defective construction of said foundation, and in cost of labor and material.

4. The cost of removing defective parts of said machinery out of the sugar-house; the transportation to New Orleans ; and of replacing the same, including engineer’s labor, cost of other labor, handling freight to and from New Orleans — said defective parts embracing the two-roll mill, the broken bed-plate, the intermediate carrier, patent joy-valve, etc.

5. The cost of repairs incurred by him during the year 1885, and aggregating about $1500.

6. To prove “ all and singular the allegations in this answer relating to the loss sustained in 1884.”

The Court refused to admit this mass of evidence upon the ground that under the reservation in the contract, viz :

“We will guarantee our work for one year, under fair usage, limiting our liability to replacing any defective or broken parts, in the shortest possible time.”

The plaintiff company can, under no cireumsUmees, be held for anything beyond the cost of replacing the broken parts of the machinery made by them ,• and that any damage resulting from defectiveness of material or workmanship must be borne by the defendant.

But, in the present condition of the case, it is manifestly to the interest of all parties that we should first look into the record, and examine the testimony, and determine whether the defendant has established, by a clear preponderance of evidence, that the workmanship and material of the mill and engine were not of first class, but were affected by damaging defects ; and that the mill and machinery had received fair usage at his hands while in the .course of erection and subsequent operation.

We shall therefore postpone consideration of the judge’s rulings until that is done.

III.

The district judge tried the case, and heard and knew the witnesses —or very many of them — and the section of the State in which he presides is one in which the cultivation and manufacture of sugar and molasses is a prominent industry, and it may be presumed that he is quite familiar with the subjects dealt with in tbis case; therefore, great weight must be attached to his opinion.

He says: “Planters and carpenters, overseers and bricklayers, so-called engineers, have all had their say.

“ They noticed the frequent stoppages of the mill; they saw the broken plate and loose roller-shafts, the overflow of juice and the dropping cane — but few of them could explain or give the scientific causes for the effects they saw; because, not being competent experts but being non-professionals, and having made no serious study of engineering, or mechanism, used in sugar-houses, they could advance naught but their own crude opinions.

“ Over this mass of evidence (700 pages) we have gone several times; have carefully condensed it; grouped it, and analyzed it; have spared no pains in the study of the case — and we have had ample time to study it.”

He then found the following substantial facts established :

That the plaintiff company did replace all defective or broken parts of the machinery within the shortest possible delay; said broken parts having been sent to their domicile in New Orleans by the defendant, from time to time, when said breakages occurred; and that plaintiffs’ employees were repeatedly sent to defendant’s Germania plantation to aid him in the erection of the machinery.

He says : “Plaintiffs’ witnesses, Scott, Cummings, Wilbreth, Pearson, Duncan, Flowers, Ormsby, Vannot, McMahon, Taylor, et als., all experts, who have, many of them, aided in the construction of several sugar mills, all agree in saying that the material and workmanship of defendant’s mill are (oí) first class and free from damaging defects; that it isa most powerful one; and that extra expense and labor were lavished in its build in order to make it a model engine; and, in fact, these witnesses say, and so do Tilton and Pandelly, that this machinery is well finished and perfect.

“ These witnesses minutely explained how the roller-shafts were fitted; the tonnage of pressure used in doing so — which they all agree in saying were sufficient to make a good and tight fit.

“They showed the working of the engine in all of its parts; and of the automatic joy-valve; the pressure of the gearings, or bearings; the setting and,use of the scrapers; the proper angle, or stand of the carrier and the causes which, in their opinion, loosened the shaft, and broke the bed-plate.”

He says that even if equal weight were given to the testimony of defendant’s mom-professional witnesses, “the evidence of plaintiffs would largely preponderate over it, and of the additional testimony of Dupuy, Kicker, Lear and Smith.”

He then proceeds to particularize the different witnesses of defend-f :t, and give their statements in detail.

He says that James C. Lear, Sr., and Smith, by reason of their long training and experience in the direction and running of sugar mills, are justly entitled to be considered as expert witnesses.

It was the former who put up the mill and engine. In speaking of of the evidence, he states: “ The loose shaft was discovered two or three weeks after Lear, Sr., had turned over the machinery to an engineer who had never before conducted a five-roller mill, and whose assistant, Dugas, was a carpenter, not an engineer.

A serious doubt is raised here whether, in such unskillful hands, this ponderous machinery received fair usage.

Lear, Sr., says, a shaft should not be loose, except by accident. The question there is, was it loosened by accident, or by improper filling at the foundry 1 It was proven that the shaft was fitted with a 240-tons hydraulic pressure, and that, one fitted thus, should not get loose, except by unfair usage, or by accident of some sort.”

He says that Smet and other witnesses testified “that if bagasse be permitted to accumulate on the rollers, in the .manner that other witnesses say it did, then it would act upon the rollers with a pressure that would be straining and injurious, and this was not fair usage.

He states that Smith says that the scrapers were adjusted on the plantation by the engineer, who set the angle to suit himself, and that they did not do their work well.

That “ the breaking of the plate might have resulted from the driving of a Tcey, by eholcing of the mill, or a certain jar, while handling the mill.”

There is no witness who states at what time, or in what way this break occurred.

The judge says that the proof shows that the pinion proved to have been of iron instead of steel, as stipulated in the specifications; but that does not disclose any bad faith on the part of the company ; that they had themselves been deceived; and no serious injury had resulted to defendants therefrom. He held the company bound to substitute a steel pinion in place of the one of iron.

After an apparently most careful and, to our thinking, impartial consideration of the testimony, tlie'synopsis of which is given, the judge concluded, by saying:

“ Defendant has failed to prove damaging defects. Those trifling ones, incidental to all machinery, and which could easily have been remedied on the plantation, and were not, could not give rise to, or justify the extraordinary demand of the defendant.”
Again : “Defendant has jotted down every break, every leak, every vibration of his machinery,, and has allowed his imagination to run away with Ms better judgment, and magnify his ills.
“ Plaintiffs have proved most conclusively that their whole machinery except the iron pinions, was first-class in workmanship and material.
“ In rebuttal, defendant has only raised slight doubts of defectiveness of parts of machinery which were, after full investigation, set aside.”

He thereupon rendered judgment against the defendant for $15,750 with 8 per cent, interest, pursuant to the terms and installments of the contract; but he provided in the decree that the execution of it should be stayed until the plaintiff company should replace the iron pinions with steel ones.

The decree recognizes and enforces plaintiff’s vendor’s lien and privilege on the mill, and all the machinery, engine, etc., and directs that same be seized and sold to pay and satisfy the demands of the plaintiff by preference, with all costs.

He also gave judgment against the defendant for some further small amounts, in pursuance of the petition, and of their correctness, there seems to be no well-grounded complaint. '

We have been at the pains to read the record, and closely scrutinize the testimony of the witnesses, and have reached the same conclusion the district judge arrived at.

We are of the opinion that the workmanship and material, by the plaintiff company employed in the construction of the mill and engine, with the exception stated above and reserved, was “ of first-class, and free from damaging defects j” and we are not satisfied that the mill and machinery received fair usage at the hands of the defendant, during time of the erection thereof in the sugar-house, nor during the course of its subsequent operation, and the bearing off of defendant’s crops of 1884, 1885 and 1886.

We are, therefore, dispensed from deciding the exceedingly delicate and difficult questions that are presented in defendant's numerous bills of exceptions, and by us referred to in the preceding paragraph of this opinion.

While it is perfectly true, as a general proposition, that the court will not control parties as to the order in which they shall introduce evidence, yet, in the instant case, we felt bound, for the manifest pur • poses of justice, to decide the other questions in the case, which appeared to us to be decisive of the controversy ; and our examination has fully satisfied us of the correctness of that view.

IV.

The defendant made application for a new trial, on various grounds, which in their general character address themselves to the sound discretion of the judge a quo. One of them was that he was not permitted to introduce proof of the quantum of damages; but it has already been disposed of. But defendant is certainly entitled to $76 00 for the “ loss of brick, sand and cement.”

The lower judge correctly refused a continuance for the purpose of giving the defendant an opportunity to procure the testimony of additional witnesses residing in the parish, and not theretofore summoned by him. He does not allege that their testimony has just come to his knowledge.

We do not- think the district judge exercised his discretion improperly.

V.

The plaintiff and appellee filed a motion to dismiss defendant’s appeal, because of certain suggested defects and imperfections in the make-up of the transcript, but which we did not notice, for the reason that a satisfactory transcript was subsequently furnished by the appellant.

He also sought to dismiss a separate and supplemental appeal, from a judgment taxing costs in behalf of certain expert witnesses, because the amount of that particular decree is not sufficient to give this court jurisdiction. We do not regard the one drawn in question as a final judgment, but as an interlocutory decree, forming a part of the final judgment rendered in the case.

The law requires that “the costs of the clerk, sheriff, witnesses’ fees, cost of taking depositions, and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed, as east." R. S., sec. 750.

We can examine the question raised as forming an integral part of the controversy. .

The defendant makes the point that alleged expert witnesses were never regularly summoned or appointed by the court; but that they voluntarily appeared as ordinary witnesses and gave their testimony. But the record is barren of evidence on the subject. Possibly it was not reduced to writing. That was their privilege. We would, under this state of facts, be unwarranted in disturbing the decree.

We are of opinion that the judgment of the court a qua is correct, except in one particular — the defendant is certainly entitled to credit for the sum of $76 00.

It is, therefore, ordered and decreed, that the judgment appealed from be amended and reduced by the sum of $76 00, and that as thus amended it be affirmed with cost of appeal taxed against plaintiff and appellee.

Dissenting Opinion.

Poché, J.

Prom the preponderance of the evidence it appears to my mind that plaintiffs have not complied with the stipulations of the contract with the defendant, and that they are therefore not entitled to recover the full amount of their claim.

The record shows, in my opinion, that the greater part of the accidents and breakages which have occurred to the machinery which they furnished to defendant must be attributed to damaging defects in said machinery, mainly inferior materials, weak and light metals used in the construction thereof. '

It is conceded by the learned judge of the district court that plaintiffs failed to comply with an important stipulation in the • contract, which called for steel pinions, in place of which they furnished cast-iron pinions, thus causing a serious breakage in that part of the machinery and entailing grievous injury on the defendant.

It is also shown that owing to the insufficient chains for the cane-carrier, furnished by plaintiff, defendant has been compelled to furnish chains of his own from his old mill in order to be able to use that carrier, which is an important factor in a sugar mill, to which it is the sole and exclusive feeder.

Defendant’s contention as to the insufficient size of the juice-pans is not even controverted by the plaintiffs and the judgment makes no provision for that defect, which is certainly a very damaging shortcoming, since it exposes defendant to constant loss of cane-juice, which is the very substance of sugar making.

The preponderance of the evidence also shows that the looseness of the shaft of one of the rollers of the two-roller mill must be attributed to defective workmanship and to the use of too light and too weak material in its construction.

The effort made by plaintiffs to prove unfair usage and unskilful handling of that particular part of the machinery is not a success. It consists in the main of expeit testimony of mechanics who express the opinion that the accident is due to the agglomeration of bagasse around the rollers, which hardens by accumulation and friction, thus loosening the shell of the roller from its shaft. But none of these witnesses ever spent as much as a day at that sugar-house while the mill was in operation, and their opinion cannot destroy the positive testimony of defendant’s overseer, of his two engineers, who state in detail the means employed in running the mill, the attention given to those two rollers, and who state that a man was stationed there charged with the special duty of scraping the bagasse off the rollers and of thus preventing the very cause to which the expert witnesses trace the accident; and besides, the record contains the testimony of other and equally competent expert witnesses who state that the cause referred to would not result in the loosening of the roller from the shaft, but ■that such an obstruction would break the coupling or the cog- wheels; and to my mind that opinion carries more weight, as it rests on practical experience.

Now it appears, from defendant’s motion for a new trial and from affidavits filed in support thereof, that since the trial had begun below a very important part of the machinery gave way, and that thereby the mill has become unfit for use without repairs, and on this vital fact defendant rested his application for a new trial, during the course of which he offered to show by the testimony of experts that this and other accidents and breakages in that machinery were the result of damaging defects in the material used and in the construction thereof.

In my opinion it was error to refuse that new trial, and under the effect of that ruling this court is deprived of indispensable testimony bearing on the crucial point in the controversy. The motion for a new trial was supported by the affidavit of a scientific machinist who had made an examination of the machinery with a view to detect the proximate cause of this last breakage, and who is entirely disinterested in the cause.

For those reasons, and for others too numerous to mention in this opinion, I think that the judgment appealed from should have been reversed and,that the cause should have been remanded for another trial, with a view to ascertain aud determine the pecuniary extent of defective machinery furnished by plaintiffs under their contract, so as to deduct the same from the contract price. 9 Ann. 273, Goodloe vs. Brooks.

I therefore dissent from the opinion and decree of the majority.

Mr. Justice Todd concurs in this opinion.


text:
    No. 10,040.
    Board of Harbor Masters of New Orleans vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    The legislation relative to harbor masters has no application to vessels entering the port of New Orleans, loading, unloading or making fast to private wharves on the right bank of the river, placed by law under the exclusive management and control of the owners thereof.
    The duties imposed and rights conferred upon the harbor masters are not susceptible of being performed or exercised at the wharves of the company, to whom the exclusive management and control of the same has been entrusted by legitimate authority.
    The failure to have ever set up claims for services and to have proved that such were rendered, tell significantly in favor of the company.
    APPEAL from the Civil District Court for the Parish of Orleans.; Tissot, J.

      J. JR. JBeolcwith for Plaintiff and Appellee :
    I.
    All of the provisions of sections eight and nine of article one of the federal constitution are intended to confer powers and impose restraints upon congress and the general government, and do not impose any restrictions or restraints upon the several States. Restraint upon States is contained in the tenth section of Article one* This was expressly determined in Morgan vs. Louisiana, 118 U. S. 455-467, affirming Passenger Cases, 8 How. 283-541 ; Brig Wilson vs. United States, 1 Brock. 423-432; Butler vs. Hopper, 1 Wash. O. C. 499; Pennsylvania vs. Wheeling Bridge Company. 18 How. 421,435; Munn vs. Illinois, 94 U. S. 113,135.
    II.
    There are State regulations for improvement of river and harbor facilities, and regulations adopted in the exercise of the supreme police authority of the States within their boundaries, and dues or taxes imposed to carry such purposes into effect that havo the effect to regulate commerce, that are valid until displaced or contravened by some legislation of Congress.
    Morgan vs. Louisiana. 118 U. S., approving Wilson vs. Blackbird Marsh Co., 2 Pet. 245 ; Cooley vs. Board of Wardens, 12 How. 299 ; Gilman vs. Philadelphia, 3 Wall. 713, 727; Pound vs. Turk, 95 U. S. 459, 46:2; Hall vs JDeCuir, 95 U. S 485-488; Packet Co. vs. Catlettsburg, 105 U. S. 559, 56*2; Transportation Co. vs. Parkersburg, 107 U. S. 691, 702; EscanabaCo. vs. Chicago, 107U.S. 678; andHusevs. Glover,.119 U. S. 543.
    III.
    The power of States to regulate vessels in its own harbors, and police its own ports, and appoint harbor masters for that purpose, and impose dues on vessels to carry out such regulations, is a power residing in the States, lawfully exercised unless contravened or prohibited by some general law of Congress. Gloucester Perry Company vs. Pennsylvania, 114 U. S. 196, 214.
    IY.
    It is no defense to- a demand for harbor master’s dues or against a penalty for resisting the lawful order of a harbor master to move a vessel from its mooring at the wharf, that the defendant owns or controls the wharf as his own private property. Yanderbilt vs'. Adams, 7 Cowen 349, approved in Gloucester Perry Company vs. Pennsylvania, 114 U. S. 196, 215.

      Leovy & Blair for Defendant and Appellant:
    The testimony shows that defendant’s wharves are on the west bank of the river, remote from the actual port, are private wharves used by defendant and necessarily, from their peculiar structure and business, used by it exclusively. That its right to own and control its wharves is derived from the Statutes of 1853 and 1877, being the charters of defendant, and also by virtue of its riparian rights resulting from ownership of the land, long before the annexation of Algiers to New Orleans, ft is also pro red, and apparently not contradicted, that the harbor masters have never performed any service for defendant or offered to perform any, and that the officers of the company have never seen any of the harbor masters at or near its wharves; and it is also shown that no public wharves exist on the west side of the river; and that the actual work and jurisdiction of the harbor masters have never been extended to the west side of the river. Under these circumstances, we contend that the act of 1877 (*xtra Session, p. 104) and other Statutes relied on by plaintiffs, are null and void, because they conflict with the following provisions of the U. S. Constitution :
    1. Art. First, Section 10, § 3 : No State shall, without the consent of Congress, levy any duty ontonnage.
    2. Article First, Section 8 § 3: Congress shall have power * * “to regulate commerce with foreign nations, and among tho several States and with the Indian tribes.” 27 Ann. 414; 31 Ann. 65; 6 Wall. 31; 19 Wall. 581; 20 Wall. 580; 94 U. S. S. C. 238, 248; 95 U. S- S. C. 89, 580; 100 U. S. S. C. 423, 430, 114 U. S. 196.
    3. The power to regulate commerce is exclusively vested in Congress. 9 Wheaton 186 ; 12 Wheaton 414; 12Peters72; 6 Wall. 31; 94U.S.S. C. 246; 100 U. S. S. C. 434.
    4. Because they violate Article 1, Sec. 9, § 6, which declares that no preference shall he given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State he obliged to enter, cleat* or pay duties in another. Even Congress is prohibited from enacting such statutes. 94 U. S. S.C. p. 243; 100 U. S. S. C. p. 434; 107 U. S. 702.
    5. The power granted by special statutes to defendant was for a public purpose, to-wit: a railroad purpose. 27 Ann. 414; 11 Ann. 161; 3 Wall. 364; 5 Wall. 772; L5 Wall. 667; 19 Wall. 661; Ellerman vs. N. O. andChatt. R. R., 105 U. S. 166 ; Mills on Eminent Domain, Sec. 46.
    6. The Statutes, so far as it is attempted to apply them to defendant in this case, are null and void, because the impair they obligation of the contract by which, for and in consideration of constructing the road, the State granted wharf franchises, of which it is sought to deprive defendant.
    7. Defendant, as riparian owner, even without special grants, possessed the right to build wharves for its own use in front of its property. 31 Ann. p. 65 ; 6 Ann. 450; 5 Ann. 36 ; 20 Ann. 308,; C. C. 455,457, 452, 863; New Orleans vs. Ellerman, United States Supreme Court, March, 1882; 1 Black 23'¡ 7 Wall.272; 10Wall.502; 21 Wall. 389 ; 1 Eng. Law Reports, Appeal Cases, 662.
    8. And this is a right of which riparian proprietors cannot be divested, except by legal proceedings, and for adequate compensation, nor without existence of necessity for public use. 5 Central Law Journal 267; 1 Black. 23 ; 105 U. S- 166; 10 Wall 502; 18 La. 122; 20 Ann. 308; 27 Ann. 414; C. C. 863-
    9. The power to construct, maintain and control its own wharves, was granted to defendant and its vendors by several acts of the Louisiana Legislature, and among others, by the following: Acts 1853, p. 119 ; 1853, p. 328; 1855, p. 212 ; 1858, p. 196; 3877, p. 37.
    10. Harbor master fees cannot be collected where no special service is performed. 94 U. S. 243.
    11. Railroad wharf rights are necessarily exclusive. 105 U. S. 166.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for harbor master’s fees, specified in an itemized bill.

The claim is based upon the act of 1856, incorporated in the Revised Statutes, under Nos. .1679 to 1690, and it rests also on act No. 64 of 1877, and on rules and regulations adopted by the board of harbormasters.

The defense is: exemption from such fees, under the legislative charter granted the defendant and under chartered privileges acquired by it, by purchase, from the assignee of a previous corporation.

It is further urged that the statutes relied on impair the obligations of the contracts, contained in the charters, and thus violate both the Federal and State Constitutions.

It is also claimed that the statutes levy a duty on tonnage, regulate commerce and give a preference to the ports of our State over those of another and thus contravene the Constitution of the United States and are null and inoperative.

Finally, it is claimed that the fees could be demanded only when services have been actually rendered.

From an adverse judgment the company appeals.

It is needless to pass upon all these defences.

An examination of the laws upon which the plaintiffs rely, which were passed at a time when the port of New Orleans did not practically extend to the right bank of the river, satisfactorily establishes that they were not originally intended to apply to vessels entering those waters and landing at private wharves on that side of the stream and under the exclusive control of the owners thereof.

The wharves of the defendant are situated on the right bank of the river, where there, exists no public wharf. They have never been used by any other vessels. They have been so constructed and are covered with rails, and accessible in such a manner, as to afford convenience to none other but the vessels of the company. No vessel ever claimed the right of making fast to them. They have ever been used exclusively by the company.

Under the charter granted the company by the Legislature in 1877 (No. 64), and also under privileges long previously accorded to the New Orleans, Opelousas and Great Western Railroad Company, and which were transferred to Charles Morgan, who subsequently conveyed them to the company, the exclusive management and control of the wharves, etc., was conferred on the defendant, to be exercised as it may deem most expedient and for its welfare, subject only to the police powers of municipal corporations. (Sec. 3.)

Pretermitting the question whether those privileges and immunities could or not be recalled, it is apparent that Act No. 64 of 1877, determining the fees of the harbor-masters, does not purport to suppress or abridge them in any manner.

Reference to the laws concerning liarbor-masters shows that the duties which they may fulfil relate to the assigning of position to vessels at the wharves, in certain cases, and are of such a nature or character that the vessels of the company are not, under the law, subjected to the supervision of those officials, as they cannot be placed under different concurrent and possibly conflicting authorities.

It is besides proved that no services were rendered to the defendant, and that since the creation of the body of harbor-masters, the present is the first attempt to collect from it fees, as due to the latter.

The omission to have claimed such fees is indicative of the construction placed upon the laws on the subject, as well by tbe plaintiffs as by their piedecessors, and tells adversely to them. •

It is therefore ordered and decreed that the judgment appealed from he reversed, and that there now be judgment for defendant, with costs