author: Fenner, J.

text:
    No. 8857.
    In Re Fazende & Seixas, Praying for a Monition.
    On Motion to Dismiss.
    Although a tran cript contain neither note of evidence, statement of facts, bill of exceptions or assignment of error, the appeal will not be dismissed, if the clerk’s certificate is complete and declares that it contains “ all the testimony adduced.” In such, case, the court, without assignment, may inquire if there is error apparent on the face of the record.
    On the Merits.
    An opponent in a monition proceeding, is in no oase required to make an antecedent tender as a condition precedent to opposing confirmation of sale.
    Where he has engrafted on his opposition a petitory action, although ¿he exception of want of tender may avail to dismiss the latter action, it should be restrained in its effect to this extent, and should not operate as a dismissal of the opposition.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      J. J. Barnett for Opponent and Appellant:
    1. Plea of want of tender, as a prerequisite to the opposition of a monition, which opposition involves a petitory action, cannot be made by a warrantor after the applicant for monition has joined issue with the opponent, and from his answer, it appears that the tender would be a vain thing. 8 La. 252 ; C. P. 333, 336, 345, 346.
    If such a plea be sustained at all, it should only have effect as to the warrantor excepting.
    2. Where there is a plea of the kind, it should be made to appear that something, and what did enure to opponents’ benefit, and should be tendered. The burden of proof is on ex-ceptor. 30 An. 310.
    3. "When an execution sale, not advertised for the term required by law, is alleged ‘to have been made, “also by consent of parties,” such sale is not a “judicial sale.” 2 An. 174; 3 An. 192; 16 An. 167.
    4. If there be no consent, and failure of advertisement, as aforesaid; tbe resulting nullity is absolute. 1 R. 331; 2 R. 326; 5 La. 486.
    5. Where such nullity is absolute, tender antecedent to the petitory action is unnecessary; defendant may urge his claims by reconvention. 33 An. 750-773.
    6. A petitory action may be engrafted upon an opposition to monition; the opposition to monition is a provoked suit; and where in opposing, it is essential to allege ownership, and incidentally to claim property illegally divested, no preliminary tender is necessary, 13 La. 560; 34 An. 257.
    7. In a petitory action it may be decreed that plaintiff only have possession upon reimbursing to defendant whatever amounts enured to his benefit. 2 La. 326; 3 La. 541; 30 An. 310; 34 An. 257.
    8. If a petitory action cumulated with, an opposition to monition be dismissed for want of tender antecedent to the suit on opposition, or because such action could not be cumulated with the opposition; proper judgment is one of “non suit,” with reservation of rights as to that portion of the opposition which claims ownership; and reference for trial of the simple opposition to monition.

      E. H. Farrar, A. G. Brice and H. G. Morgan for the Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The motion is based on the ground that there is “no note of evidence, no bill of exceptions and no statement of facts in the record,” and that appellant has not, within ten days after bringing up of the record, filed any written assignment of error.

' The certificate of the clerk attached to the record is full to the effect that the transcript contains “ a true, correct and complete transcript of all the proceedings had, documents filed, testimony and evidence "adduced upon the trial of the cause.”

We think that this destroys the motion.

We consider that Articles 896 and 897 of the Code of Practice are to be construed together, and that the conditions expressed in the beginning of Art. 896 in the words “if, therefore, the copy of the record brought up be not duly certified by the clerk of the lower court as containing all the testimony adduced,” extends to and covers all the provisions of both Articles. We hold the meaning and effect of the two Articles to be, that, in fits'absence of such certificate, the Supreme Court can judge of the cause only: 1, on a statement of facts; 2, on a bill of exception; 3, on a special verdict, or, in absence of all these; 4, on assignment of error on face of the record filed within the ten days.

If, on the contrary, the transcript presents such a certificate, then the provisions of those Articles have no application, and the Court will entertain the appeal. Reeves vs. Gordon, 5 La. 288; Erwin vs. Orillon, 6 La. 205; State vs. Giffen, 15 An. 420; Bossier vs. Carradine, 18 Id. 261; Cammack vs. Gordon, 20 Id. 213.

The motion to dismiss is, therefore, denied.

On the Merits.

The applicants for monition acquired at a judicial sale in the ease of Bouny vs. Hernandez. Hernandez had acquired at a judicial sale in a case of Frellsen vs. Baldwin et al. The monitiou proceeding seeks to establish the regularity of both these sales.

Mrs. Johnson, who was one of the defendants in the earlier suit of Frellsen vs. Baldwin et al., files her opposition in the monition proceeding, and avers, as grounds thereof, certain defects and irregularities in the executive proceedings. She further'engrafts upon her opposition a regular petitory action setting forth title in herself and praying for judgment decreeing her to be the owner of the property. For the defense of this demand, plaintiffs in monition called in warranty Bouny and Hernandez, and the latter in turn called in warranty Frellsen and the defendants in the first suit.

Erellsen appeared and filed sundry exceptions to the demand of Mrs.Johnson, the last of which was “ that the heirs of a mortgage debtor cannot annul a sale of mortgaged property made to pay the debt of their ancestor and recover back the property sold, without first tendering to the purchaser the price that he has paid for it, and that opponent herein cannot escape this obligation and tender, by engrafting a petitory action upon.a monition proceeding.”

After trial, judgment was rendered decreeing that the above exception “be maintained, and accordingly that said opposition be and the same is hereby dismissed,” from which judgment Mrs. Johnson has appealed. There is no evidence and no note of evidence in the record, as heretofore indicated, and appellant claims that the judgment should be reversed for want of proof of the facts on which the exception is based. It seems, however, too well established that at least in cases where evidence is necessary, in absence of any note of evidence, the Court will presume that the lower court proceeded on proper evidence.

Simmons vs. Howard, 23 An. 504; 22 An. 73, 118; 23 An. 446, 393; 26 An. 148, 734; 34 An. 631.

We must, therefore, confine ourselves to questions of error of law apparent on the face of the record.

■ While we are not prepared to say that, under some state of facts which may have been established, the plea of want of antecedent tender may not have been well taken as against the petitory action of Mrs. Johnson, we think the judgment dismissing absolutely her opposition was erroneous.

Her petition is to be regarded in a double aspect: 1, as an opposition, properly so called, showing “cause why the sale should not be confirmed and homologated,” (Rev. Stat. Sec. 2371); 2, as a petitory action.

The monition is a voluntary proceeding on the part of the purchaser of property by which, in the words of the law, he “calls on all persons who can set up any right to the property in consequence of, etc., to show cause within thirty days why the sale so made should not be confirmed and homologated.”

In responding to such a voluntary call by a purchaser, the law does not, expressly or by implication, impose upon a party the necessity, in any case, of making an antecedent tender.

The injustice of dismissing entirely her opposition and subjecting her .to the injury which may result from the confirmation of the title of plaintiffs is apparent. We must not be understood as intimating any approval of the practice of engrafting the petitory action upon an opposition in a monition proceeding. In this case an exception to the propriety of such proceeding had been taken and overruled, from which. judgment no appeal liad been taken. That question is not, therefore, before us.

■ It is, therefore, ordered, adjudged and decreed that the judgment a,ppealed from, in so far as it dismisses the opposition of Mrs. Johnson absolutely, be amended by restricting such dismissal to the petitory action engrafted on said opposition, without prejudice toiler right to prosecute the same as an opposition proper, and that in other respects said judgment be affirmed and that the cause be remanded to be proceeded with according to law. Costs of appeal to be paid by appellees.


source: Caselaw Access Project

license: Public Domain

text:
    No. 8968.
    The State of Louisiana ex rel. Gervais Leche, District Attorney et al. vs. George Geier, Treasurer of Jefferson Parish, Left Bank, et al.
    The Statute expressly requires that the taxes levied by the police jury for school purposes shall be paid over by the tax collector directly to the treasurer of the parish school board.
    Where the tax collector has unlawfully paid over such funds to the treasurer of the police jury, the duty to pay over to the school treasurer passed, with the funds, to the treasurer of the police jury, and, on his refusal, is the proper subject of enforcement by mandamus.
    APPEAL from the Twenty-Sixth District Court, Parish of Jefferson. Hahn, J.
    . Gervais Leehe, District Attorney, and James D. Augustin for the Relators, Appellees.
    A. TS. Billings and Alfred Shaw for Respondents and Appellants :
    Mandamus issues whore the law has assigned no relief by the ordinary means. 0. P. 830 ; High, Secs. 15 and 30; 26 An. 259.
    The law (Act 23, 1877, p. 36, See. 28) provides in what contingency the police jury shall levy a tax and how it shall be collected and paid. Such requisition cannot be implied, but must be actual and positive, aud should be alleged.
    It being the duty of the tax collector to collect and pay, the proceedings to effect such object should he against him. It is not the duty of the ex or parish treasurer to render any account to the school board, or for the ex-treasurer to pay out anything, and they cannot be mandamused to perform what is not their duty. • High, Sec. 37.
    A mandamus will not He to compel an officer to pay what he ought to have in his hands, but only what he has in his hands. State ex rel. Merle and Chapus vs. Dubuclot, 28 An. 127. The right to it must be clearly established. High, Sec. 9.
    First, it must appear that the relator has a clear legal right to the performance of a particular act or duty at the hands of the respondent; and, second, that the law affords no other adequate or specific remedy. High, Sec. 10; State ex rel. Fix vs. Herron, 29 An. 850,
   The opinion of the Coart was delivered by

Fenner, J.

Relators, representing the School Board of the Parish of Jefferson, aver, in substance, that a tax of two mills on the dollar for school purposes had been levied by the Police Jury of the Parish of Jefferson, left bank, for the years 1881 and 1882; that the same had been collected by the sheriff and ex-officio tax collector of the parish ; that under the law it was the duty of the said collector to pay over the said taxes directly to the Treasurer of the Parish School Board; that, in violation of law, the said collector had paid the same over to the Parish Treasurer; that this latter officer illegally holds the said funds, and refuses to pay them over to the Treasurer of the School Board, which it is his legal duty to do; wherefore, relators apply for a mandamus ordering him to perform said duty and make payment accordingly.

Numerous technical defenses are interposed, which, as the case is presented to us, have no force.

As defense to the merits it is urged:

1. That the School Board had never called on the Police Jury to levy a school tax for the years 1881 and 1882, and that no such tax was levied.

The evidence conclusively establishes that such tax was levied and collected and specifically paid over, as such, to the Parish Treasurer. The absence of a call for such levy by the School Board does not.affect the case.

2. That defendant, in his official capacity, holds funds, of whatever character, only as the agent of the Police Jury, and cannot pay out except in compliance with their resolutions and warrants. The proposition, in a general sense, is correct, but it is without application to the case of parish funds like those presently concerned, which are assigned by law to the control and custody of other parish functionaries, and over which the Police Jury had not, and could never acquire any right of direction or control.

The law is clear and unambiguous that the school tax so collected «hall be paid over by the collector of parish taxes to the Treasurer of the Parish Board of School Directors, and shall by them be apportioned, etc.”

If the tax collector, through misconception of the law or otherwise, has paid over these funds to a parish official different from the one designated by the law, the duty to pay over the funds to the latter passed, with the funds themselves, to the official so receiving, and is a proper subject of enforcement by mandamus.

. 3. That a portion of the funds so received by him had been actually paid out under direction of the Police Jury before this proceeding was taken, and is, therefore, no longer in his custody.

To this extent his defense to the proceeding by mandamus was properly maintained by the Judge a quo.

The evidence, however, conclusively shows that he still lias in his actual possession $307.60 of those funds; and, to this extent, the mandamus was properly made peremptory.

The objection to our jurisdiction has been considered, but, as shown by our course, we deem it untenable, relators having claimed that more than sixteen hundred dollars were due.

The defendant must pay the costs of his appeal, but we think the costs of the lower court, having been incurred in procuring a judicial settlement of contested questions of official right and duty, were properly made payable out of the fund.

Judgment affirmed at appellants’ cost.


author: Manning, J.

text:
    No. 8658.
    Area & Lyons vs. Richard Milliken.
    Where the practice or custom of a factor is to insure consignments of produce, and this is brought to the knowledge of his consignor by uniform charges for insurance in his accounts rendered, the factor will be deemed to have continued that custom until he gives notice to the consignor of the change, and is responsible for any loss, consequent upon his failure to insure, before such notice reaches the consignor.
    If the factor has been in the habit of insuring produce without instructions, and he deviates from it without apprising his consignor, and loss ensues, he will bo liable.
    * PPEAL from tlie Civil District Court, for the Parish of Orleans. -Cl. Houston, J.

      Brauglm, Bucle & Binlcelspiel and W. O. Bart for Plaintiffs and Appellees: •
    1. A party who has been in the practice of insuring for another is presumed to have had proper authority, and cannot afterward omit doing so without informing the other 5 ho will otherwise be liable himself. 6 M. 649; 6 La. 583; 2 ft. 103; 73 HI. 404; Domat 1, 15, Sec. 4, Art. 4.
    2. The attorney is responsible, not only for unfaithfulness in his management but also for his fault or neglect. It. C. C. 3003.

      Eennard, Howe & Brentiss for Defendant and Appellant:
    1. The plaintiffs sue on a “ verbal agreement” to insure the sugar in question consigned to defendant. The answer is a general denial, coupled with a special denial of any instructions from which such agreement could be inferred. No agreement has been proved, and the plaintiffs’ claim shonld he rejected. Courtebray vs. Itils, 9 Itob. 513.
    2. The defendant, as factor or mandatory of plaintiffs, in the absence of instructions, which absence is conceded, was bound to follow the customs of the mart and of his office—which were harmonious. Story on Ageny, §§ 96, 191; C 0. 3000 j fteano vs. Mayer, 11 Martin, 636; G-oodonow vs. Tyler, 7 Mass. 36. By these customs, in such a case as the one at bar, no insurance was effected by the factor, nor were the goods covered by his open policy, unless special instructions had been given to so cover them.

      3. The plaintiffs are presumed to know ‘the usage of a port to which they ship goods for sale; 7 Mass. 36; and are held to have authorized their factor to act accordingly, whether they have or have not actual acquaintance with the rules that govern factors under such circumstances. Sutton vs. Tathara, 10 Ad. & El. 27; Bayliffe vs. Butterworth, 1 Ex. 425; Greaves vs. Legg, 11 Ex. 642; 2 Hurl. & Nor. 210. And if defendant, without such special instructions, had undertaken to insure these goods, he could not have held plaintiffs for the premium. G-illy vs. Berlin, 12 An. 123; Alliance Co. vs. Louisiana Co., 8 La. 11.
   The opinion of the Court was delivered by

Manning, J.

The suit is for the value of fifteen hogsheads of sugar, alleged to be twelve hundred dollars, lost by the sinking of the Steamer Exchange in the Atchafalaya River on January 3, 1882. The defendant was the factor Of the plaintiffs, who reside at Abbeville. Their business relations commenced in 1879.

The plaintiffs had never instructed the defendant to insure their shipments. No instructions whatever were given concerning this shipment, and no insurance was effected.

There were two routes, or rather three, from Abbeville to-New Orleans. Two were all water routes, i. e., by steamer up the Atchafalaya into the Mississippi; or down the Atchafalaya into the Gulf, and thence up the Mississippi. The third was by river and rail, i. e., by steamer to Morgan City and thence by rail. The first two were disused after the Spring of 1881.

The practice of the defendant had been to insure the plaintiffs’ shipments by the “all water” routes, and all the shipments prior to the Spring of 1881 had come by those routes. Seven accounts of sales from Dec. 15, 1879, to Eeb. 24, 1881, contained charges of insurance at three-quarters per cent. The defendant had insured without instructions, and the plaintiffs had paid the charges for insurance without demur.

Then the mode of transportation was changed, because the “Exchange” plied thereafter only between Abbeville and Morgan, whence the goods came by rail to New Orleans, and the defendant’s practice was not to insure produce coming to the city by rail unless expressly ordered.

If there were any consignments that afterwards came by river and rail, upon which no charges for insurance were made, and from which the plaintiffs might have learned that the practice of the defendant was different in the two modes of transportation, the record does not shew them. The defendant has not produced an account, whereon the insurance charges do not appear. The plaintiffs produce two to be noticed, presently. But there was a shipment of rice April 6, 1881, probably the first by tbe river and rail route, and insurance is charged thereon precisely as in. all the previous accounts on “all water” shipments. The defendant’s book-keeper says this is an error, but the plaintiffs were never so informed.

Two sales were made January 6,1882, of shipments by river and rail, and. no charge for insurance is upon the accounts, but the accounts were not rendered until three days after the Exchange had sunk, and of course were received by the plaintiffs later. So far from affecting them with notice of the defendant’s practice not to effect insurance on shipments by that route, the date shews they were not apprised of it until after the disaster which occasioned the loss they are now seeking to recover of. him. Indeed, these accounts of sales were sent under cover of the defendant’s letter, in response to the plaintiffs’ of date Jan. 3, 1882, informing him of the sinking of the steamer, in which he tells them the shipment was not insured, for the reason that no instructions to insure had been given, and adds: “Refer to account sales rendered you and you will see that I never charged you insurance when your goods were shipped by railroad.”

■ The only account sales the plaintiffs had ever received, upon which there were no charges of insurance, were the two sent with that letter. Referring to all received before, they would have found insurance charged.

The defendant’s practice was not to insure by separate policies for each shipment, but he had an open policy, and the shipments by “ all water” routes were considered insured from the moment of their departure, although he was not, as he could not be, advised of them at that moment. These-previous shipments by all water routes were therefore covered by this open policy, when neither he nor the insurance company knew they were en route. If a loss had occurred, it would have been reported to the company in the monthly statements made according to custom. If instructions had been given to insure this particular shipment, the mode would have been simply to include it in the next monthly statement after the loss had incurred. The defendant was too honorable to include it, when the commercial custom and his own was to consider such shipments not insured.

But the plaintiffs had every reason to believe that this shipment was insured without instructions, since every shipment they had ever made to him had been insured without instructions. Insurance had always been charged. The only instances where it had not been charged were unknown to the plaintiffs until reclamation was made for this loss, When the practice or custom of a factor is to insure consignments of produce and this is brought to the knowledge of his consignor by uniform charges for insurance on his accounts rendered, he will be deemed to have continued that custom until he gives notice to the consig'nor-of the change, and is responsible for any loss consequent upon his failure to insure before such notice reaches the consignor. Ralston vs. Barclay, 6 Mart. 649; Berthoud vs. Gordon, 6 La. 579; Strong vs. High, 2 Rob. 103; Story on Agency, 212.

The defendant insists that, even granting the correctness of this legal proposition, he is exonerated from responsibility because the usage of trade, and the mode of transacting this particular business, was not to insure on rail shipments, and he conformed to that usage, citing Story on Agency, § 199.

The custom is concisely stated by the defendant o'n the witness stand: “Everything is covered by insurance that comes by boat to t(he City, nothing by rail except it is expressly ordered. If it comes by boat, it is insured unless ordered not to be insured. If it comes by rail, the eustom I think all over the country—I know it is with us—is not to insure unless expressly ordered.”

This shipment did not come to the City by rail alone, but the first part of the voyage was by water and the last by rail. If the meaning is that no insurance was effected without special instructions whenever the mode of conveyance into the City was by rail, then the plaintiffs had the best reason to believe that the defendant’s own usage was to insure their produce whether it came by river and rail, or by river all the way, because all the accounts that had been rendered them by the defendant, by the one route as well as the other, contained the charge for insurance. N

Judgment affirmed.

On Application for Rehearing.

We have re-examined the facts of this case with every desire to relieve the defendant from an obligation which bears hardly upon him, in view of his perfect good faith and alleged conformance to a usage of trade. We understood before as now that his construction of that usage was, that produce reaching the City by rail was not insured without special instructions. This shipment, qtióad the plaintiffs, was by boat as all their shipments had been, and all of them had been insured by the defendant without instructions save only this. They could not know he had, or intended to have, a different rule when the produce started by river and came in by rail, unless he had informed them by a change in his accounts—the omission of any charge for insurance whatever, or other manner. But there was no change in the accounts. The insurance charge on the rice was insignificant in amount, but significant in shewing the plaintiffs that insurance was effected for them by this river and rail route precisely as it had been by the all river route, and even at the same rates.

What reason, aslcs the defendant in his brief for rehearing, had the plaintiffs to believe that his own usage was to insure their produce whether it came by river and rail, or by river all the way ? The reason that he had invariably insured every shipment they had oyer made to him, whether by the one route or the other, and every account they had received from him contained the charges for such insurance, until this loss occurred and demand for the insurance was made. Not until then was an account sent them without charges for insurance, with the letter that declined paying the demand, and stating the reason therefor.

Conceding that the plaintiffs were hound to know the usages of trade, it is equally true that the defendant was bound by his own usage uniformly followed with these plaintiffs.

The rehearing is refused.


author: Bbkmddez, C. J. Fenner, J.

text:
    No. 8938.
    The New Orleans Cotton Exchange vs. The Board of Assessors.
    However clear may he the power, or even the duty, of the legislature to tax any particular species of property, the burden cannot be imposed, until that power is exerted.
    Act Ho. 77 of_1880 had in contemplation the assessment and taxing of shares in moneymaking and dividend paying corporations- It was not designed to embrace corporations like tho Cotton Exchange, which is not a money making and dividend paying corporation.
    The Court will not pass upon tho liability vel non to taxation and tho regularity vel non of the listing of property, in tho absence of a law actually providing for its taxation and assessment.
    APPEAL from the Civil District Court for the Parish of Orleans. r Houston, J.

      Bayne & Denkjre and Miller <& Finney for Plaintiff and Appellant:
    Ho tax can bo imposed on the shares of stock of a corporation, unless over and above the property of the corporation, all of which is directly titled; tbe shares have a taxable value.
    This'taxable value is illustrated by shares of banks, insurance companies and corporations organized to make profits for shareholders; over and above the property of such corporations taxed direct, such shares have a money or property value, i. 6-, dividends or interest, on which the tax falls when such shares are taxed.
    The mode of collecting the tax on shares, in itself, shows that only the shares of dividend or interest paying corporations was designed to be taxed; tbe tax is imposed on tho shareholder—not tho corporation—the corporation is required to pay for, and then collect the tax from the shareholder, and the law contemplates that front dividends or interest on the shares, the corporation will have in its hands, the fund out of which it can retain the tax; it follows, that tho law prescribing this mode ofcollcction, did not contemplate the taxation of shares of such corporation, as front their nature, can have in their hands no interest or dividends whatever. See Burroughs on Taxation, § 86, p 170; 3d Wallace, p. 583 j Dfch "Wallace, p. 359. See origin and application of this mode of collecting the tax in 13th U. S. Statutes at large, p. 277. Acts 1880, p. 102, S. 48.
    The Cotton Exchange organized solely to establish the Exchange, not to make profits in any shape or form for shareholders, its shares drawing no dividends or interest whatever, have no such taxable value, as exists in the taxation of shares of corporations, which draw interest or dividends, and in so far as the Cotton Exchange share represents the fractional part of the property of the corporation, if over divided, that element of value is included in the direct taxes paid by the corporation. See Cotton Exchange charter.
    Hence, over and above the property of the corporation, the Cotton Exchange share, has no value whatever, hut that which arises from the right of access to the Cotton Exchange, its charter requiring each member to own one share of stock.
    It foliows that the value of the Cotton Exchange share proposed to he taxed in this case, is simply, and only, that derived from the privilege of admission to the Cotton Exchange, and that is not a taxable value, in any sense recognized in taxation j the tax is as unsupported as would he to tax the value of certificates of admission to the Exchange, its shares being, in effect, such certificates; or to tax shares of stock of a social club, church or other organization, representing and deriving all their value from the right, not taxable, of entering the rooms of the club or other organization.

      Chas. F. Buck, City Attorney, and Wynne Rogers for Defendants and Appellees.
   The opinion of the Court was delivered by

Bbkmddez, C. J.

This is a proceeding to annul an assessment of stock, for tbe year 1882. Prom a judgment rejecting its demand, tbe plaintiff appeals.

Tbe assessors have assessed for the year stated the plaintiff’s real estate at §87,000, and its shareholders, five hundred shares, each of the value of §3,326, forming an aggregate of §1,663,000.

The questions presented are the following:

1. Are the shares property, in the sense that they are taxable1?

2. Can they, if such property, be taxed under the Act of 1880, No. 77, which provides how shares in corporations shall be assessed and how the tax thereon shall be paid'?

3. Have tbe shares been assessed, as provided by that Act, and is the corporation liable for tbe tax 1

Differences of opinion may well exist as to the character of the shares in question and as to the power or impotence of the State to subject them to taxation j but no one will pretend that, unless tbe legislature has actually determined that they shall be assessed and has provided for the mode in which the assessment shall be made and the tax collected, a valid assessment of the same can be made, and a tax levied thereon can be legally claimed.

“ The legislature,” says, Cooley, p. 125, “ must decide when and how and for what public purposes a tax shall be levied and must select the objects of taxation. This is legislative, and the legislative conclusion in the premises must be accepted as proper and final.”

“No tax,” says, Burroughs, 5 91, p. 194, “can he levied, without the authority of the legislature of the State.”

If it be true that the shares assessed are of such a nature that they are not property, in the sense that they are a value which can legally be taxed, then, the assessment of them, even if specially authorized by law, would be a nullity. If, on the other hand, they are property, which can be taxed and there exists no legislative sanction directing their assessment and providing for the mode of collection of the tax levied, the assessment complained of being unauthorized, must be annulled.

So that, from either standpoint, it is unnecessary to determine, whether the shares in question are, or not, ¡property taxable under the theory of the present Constitution; particularly, as our conclusions do not tend to an affirmance of the judgment appealed from. Did we think otherwise, and then only, would it have been incumbent upon us to pass upon the nature and taxability vel non of the shares in question. ■ This view of the case leads us, therefore, to the consideration and solution of the second question, which is:

II.

Can those shares be assessed and taxed, under the Act of 1880, No. 77, which provides how shares in corporations shall be assessed, and how the tax thereon shall be paid?

It is elementary, as already stated, that property, however taxable, that is, however liable to taxation, cannot be assessed and subjected to consequent taxes, unless the only authority which had a right to speak has been heard to thus command. In other words, property, in itself taxable, cannot be assessed and be made to contribute, by taxation, to government expenses, where the legislature has not directed its assessment and provided for the mode of collecting the taxes levied upon it.

In the Forman case, recently decided, (ante p. 825) we had' occasion emphatically to recognize and announce, as a settled principle, that, however clear be the power, or even the duty, of the legislature to levy a tax on any particular species of property, until that power had been exerted, the burden could not be imposed. The legislative intent must be explicitly and distinctly shown and cannot be extended by implication beyond the clear import of the language used. Cooley on Tax. 201, 202; Dwarris on Statutes, 742, 749; 2d Story, U. S. vs. Wiggleworth, 369. Hence, we reached the conclusion, in that case, that, as there was no legislative enactment directing the assessment of a man’s meóme, such income could not be assessed and payment of the tax thereon enforced 5 and we allowed the plaintiff the relief he ■sought, O. B. 57, fol. 786»

This is so truly correct that the defendants, on plaintiff’s challenge that the shares are not taxable, because not liable to assessment, point to the Act of 1880 as their authority for listing them.

That Act, Section 48, provides, that: “the actual shares shall be assessed to the shareholders, and that, i all the taxes so assessed shall be paid by the corporation, which shall be ■ entitled to collect the amounts from the shareholders or their transferrees.’ ”

The validity of such mode of assessment and of collection was at* tacked, but the Supreme Court of the United States has in two cases maintained the same, for the reason that the corporation was made to pay “ out of the means of the stockholder under its control,” and did so by withholding the assessment out of the dividends. 9 Wall. 362; 18 Wall. 230. An intelligent consideration of that section satisfies the legal mind, that it was designed to apply solely to money making corporations, declaring dividends or susceptible of declaring such, and in no way to the corporations, the object of which was not to make money, so as to declare profits or dividends on the shares held by their members.

An examination of the charter of the corporation, plaintiff herein, and of the testimony, establishes that it is not such a corporation, or organization, as the legislature intended to reach by the provisions of the Act quoted.

It is impossible to dissect the section, so as to say, that the first part j of it, which refers to corporations generally, includes the plaintiff, and / that the last portion of it, which provides for the payment of the tax [ on the shares, applies only to part of such corporations. The whole / section contemplates one and the same class of corporations, money l making and dividend paying corporations, and must be restricted to J such only.

This conclusion is the more irresistible, as, at that time, the plaintiff, although it existed, was in a state of slumber, w-hich did not reveal its existence, and surely was not in such prosperous condition, that the legislature could expect to draw by taxation any benefit from its existence.

It was not then a going corporation, and rvas barren of any good or advantage to its members. It was a nominal concern.

The Cotton Exchange is not a monied,, or property corporation, representing property invested for gain. It pays no dividends, lends no ‘money, transacts no business of its own, from which pecuniary profits result to itself, or to its members, It is, by the express law of its creation, an association, the purpose of which is “to provide and maintain suitable rooms for a Cotton Exchange, in the City of New Orleans.” It owns no property, except that represented by the real estate on which itsExchange building is constructed. The value of its shares is nominal, and depends entirely upon the privilege of membership. It has no means or revenue, out of which taxes on the shares can be paid, being supported only by voluntary contributions in the shape of annual dues from its members. Not being a monied corporation, it does not come within the purview of the invoked Act of 1880.

The mode which this Act provides for the payment of the tux by the corporations embraced within the section, is: “ that the taxes so assessed (to the shareholders) shall be paid by the bank, company, firm, association or corporation, which shall be entitled to collect the amounts from the shareholders or their transferrees.” It is destructive of defendants’ theory. .

The corporation is distinct from its stockholders, as concerns the ownership of property. If the corporation could be legally made liable for the debts of its stockholders, then, constitutionally, the property of one citizen could be legally subjected, independent of any contract, to the debts of another. This cannot be done.

The taxes on the shares would, in less than three years, surely within a few, amount to such figure and require such property for satisfaction, that the real estate and building with all its appurtenances owned by the corporation would soon be absorbed, and the whole organization destroyed and converted into less than nothingness. As was well observed by a French economist:

“Taxes levied by the sovereign on his people, should be like the light vapors which the Sun extracts from the Earth, to be returned to it, in fertilizing dews.”

The object of taxation is preservation and not destruction and annihilation'.

We therefore conclude, on this branch of the case, that it did not enter in the legislative mind to include corporations of the class, to which the plaintiff belongs, among those mentioned in the act invoked, and that the assessment made of the shares of the plaintiff corporation was, as charged, unauthorized, and is therefore illegal, null and void.

III.

This view of the case renders it unnecessary to pass upon the third question presented, namely: the validity of the assessment, as made, for it matters not how regularly the listing may have been effected, if the assessment be illegal, the listing must he so likewise, and necessarily share the same fate.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiff, annulling, to all ends and purposes and as prayed for, the assessment of shares mentioned in the petition, defendants to pay costs iu both Courts.

Concurring Opinion.

Fenner, J.

I find no necessity for, or propriety in, holding that the plaintiff corporation did not fall within the legislative intent, as expressed in the broad and unrestricted terms of Act No, 77 of IS80.

I fully concur, however, in the decree, upon the ground sufficiently indicated and'enforced in the, opinion, that, whatever the legislative intent, it did not lie within the legislative poire?’ to make a corporation of this character liable for tares avowedly levied upon, and due by its stockholders alone and as independent persons.


author: PocHiii, J.

text:
    No. 8961.
    The State of Louisiana vs. Alfred H. Porter and Henry Stowe.
    Ie criminal practice eo rule compels the trial Judge to charge tho jury iu the Identical terms and language suggested hy counsel for the accused. A charge embodying substantially the principle invoiced by the acoased, and containing a correct exposition of the law regn.lating the point involved, is sufficient and will ho maintained by the Supremo Court, The following charge was properly refused iu a criminal trial, as being argumentative and involving nice distinction iu metaphysics, whioh it is not the province of the court to expound to a jury:
    “Iu cases of wanton cruelty, tho presumption is always against the State, for no man is cruel without some interest, without some motive of fear or hate."
    APPEAL from the Criminal District Court for the Parish of Orleans. Lwsenberg, 3.

      J. G. Egan, Attorney General, for the State, Appellee.

      F. D. Chrétien for Defendants and Appellants,
   The opinion of the Court was delivered by

PocHiii, J.

Porter, one of the defendants herein, appeals from a conviction of manslaughter and a sentence of ten years' hard labor, and complains:

1. That the trial Judge erred in refusing to give to the jury at his request, the following charge:

Proof of good character is good evidence, and is entitled to be considered with as much weight as any other evidence, on the trial of the case. If, in consideration of the testimony, that of the peaceful and quiet disposition of the accused, taken in connection with the other evidence, creates a doubt in your mind as to his, guilt, he is entitled to the benefit of the doubt, and if his good character be proved to the satisfaction of the jury, it should produce an acquittal, even in eases where the- whole evidence- slightly preponderates against the accused.”

The Judge’s ruling is explained and supported by the following very satisfactory reasons;

“■ The jury had already been instructed that good character, when proved, was a fact to be taken into consideration by tire jury just like any other fact in the case. Indeed, that proof of good character was sometimes sufficient to create in the minds of the jury the reasonable doubt which operated the acquittal of the accused, and which, without such proof, could not possibly exist.”

The difference, if any, between the charge given by the court and that suggested by counsel, is not very apparent to our minds, and we-seriously doubt that the jury could discern the difference, and that such difference could have had the remotest influence on their finding. The slight shade of difference between the two charges is favorable to the construction adopted by the Judge of the law which regulates the point in controversy. The charge as given was amply liberal to the accused, and strips him of all right of complaint in this connection State vs. Garic, 35 An.

The trial Judge, who embodies in his charge the substantial meaning of an established principle of law invoked by the accused, and thus correctly expounds the accepted doctrine involved in the matter, has done his duty both to the State and to the accused. Nothing more can be required of him. No rule of law or of criminal jurisprudence can exact of a Judge the adoption of the very language suggested by counsel for the accused in a charge which the latter may seek from the court.

2. The defendant next urges error in the refusal of the following charge:

In cases of wanton cruelty, the presumption is always against the State; for no man is cruel without some interest, without some motive of fear or hate.”

The court correctly held that this utterance partakes more of the character of an argument than the declaration of an established rule of evidence. The duty of expounding the law to the jury does not impose on the Judge the painful task of submitting to their consideration a thesis on the subtleties of metaphysics. When the evidence proves against the accused the commission of an act of wanton cruelty, the law and the jury have little concern with the motive which prompted the perpetration of the crime.

3. In his brief, and for the first time, counsel for the accused alleges an error apparent on the face of the record, which is alleged to show that, on the trial of an indictment for murder, the jury returned a verdict of guilty recommending the accused to the mercy of the court, which was followed by a sentence of ten years in the State Penitentiary. It is charged that the verdict is not responsive to the indictment and that the sentence is illegal. This complaint is not brought to our notice in any of the modes or forms prescribed by law or exacted by criminal jurisprudence. It is not supported by a motion in arrest of judgment, and is not embodied in an assignment of errors, and hence the matters urged therein cannot avail the accused in this Court. State vs. Arthur, 10 An. 265; State vs. Bass, 12 An. 862.

But, as this Court might of its own motion have noticed such a glaring inconsistency, if it existed as charged, we have examined the record and have ascertained that the complaint is absolutely groundless. ■

The record shows that, under an indictment for murder the accused had been tried for manslaughter, had been convicted thereof and sentenced thereunder to a term of ten years in the State Penitentiary. If the complaint of the accused had been substantiated by the record, he would have occupied the unprecedented attitude of a party complaining that he should have been hung instead of being condemned to hard labor for ten years. We find no error in the proceedings which could justify our interference in behalf of the appellant.

Judgment affirmed.


author: Poché, J.

text:
    No. 8773.
    Lafitte, Dufilho & Co. vs. Leon Godchaux.
    An invalid contract by an agent will be held as ratified by the principal, after a tacit acquiescence and a long silence,
    l?his rule applies to a sale of stock made by a pledgee, which, though invalid in itself, is confirmed by a settlement, under such sale, subsequently made between the pledgor and the pledgee.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      J. L. Tissot and W. S. Benedict for Plaintiffs and Appellees.

      T. J. Semmies & Payne and T. Gilmore c& Sons for Defendant and Appellant:
    1. A sale of stock made l>y pledgee, under the power given in the «act of pledge, though invalid in itself, is confirmed by a settlement of the balance resulting from the sale, made between tbe pledgor and pledgee. 16 La. 51; 18 La. 517.
    2. Where the pledgor, at the time of settlement, has the means of knowledge respecting the manner of making the sale, the possession of such means is equivalent to knowledge. 1 - Dillon, 85; 11 Wall. 107; 101 TX. S. 141.
    3. The settlement or compromise is a bar to an action to attack such sale, until the compromise is rescinded by direct action for error or fraud. 105 IT. S. 605; 16 An. 543.
   The opinion of the Court was delivered by

Poché, J.

The following facts have given rise to this litigation:

On the 29th of June, 1873, the plaintiffs pledged to the defendant 235 shares of the capital stock of the New Orleans Insurance Compan y to secure the payment'of their note of $9,000, dated June 29, 1873, and maturing one year after date, with interest of eight per cent, after maturity. By the act of pledge the right was given to the creditor to sell the pledged securities either at public or private sale, without judicial intervention, in ease of non-payment of tbe note at maturity. After protesting tbe note, tbe defendant plgeed tbe stock in tbe hands of a broker for sale, and a few days thereafter he notified plaintiffs that ‘the ^toek'liad been sold for $32.25 a share, realizing an aggregate of $7,578.75 to the credit of their note, and leaving a balance yet due him thereon of $1,449.25.

The par value of the stock was $50 a share. After several demands for the settlement of his balance, the defendant agreed to accept in full of the same, $1,014.47, one-half cash, and the balance in a note maturing February 23d, 1877, which was paid at maturity. This settlement took place on the 20th of November, 1875.

This suit was instituted on the 6th of May, 1882, and has for object the recovery of the 235 shares of stock originally pledged to defendant, on the ground that the said stock had not been sold on the 3d of July, 1874, as tbe defendant pretended, but that be had detained them, the pretended sale having been made to a person interposed, who had immediately returned the stock to the defendant. The suit was preceded by a tender of the amount of plaintiffs’ note, originally held by defendant, with interest to date of tbe tender, less tbe amount of $1,014.47 previously paid to the defendant, as stated above.

The District Judge gave judgment in favor of plaintiffs, condemning the defendant tó pay to them the difference between tííe amount of the note in capital and interest, and the amount realized by defendant on sales of the stock, which he afterwards had made of the same, and of the dividends which lie had received thereon, with legal interest on both, allowing to plaintiffs, as credit on their note, the sum of $1,449.25, amount claimed by defendant, as balance due on the note on July 3d, 1874, for which he had subsequently accepted $1,014.47. The judgment amounts in figures to $3,577.23, and defendant now seeks its reversal. Under the views which we have taken of the case, we concede that the party to whom the stock was sold on the 3d.of July, 1874, was a person interposed who at once returned the shares to defendant, and was by him reimbursed the amount stipulated as the purchase price; that this step was taken to fix some price on stock, which is shown to have had no market value at the time, on account of the financial crisis which struck this country in the year 1873.

In other words, we shall treat that sale as not valid in law.

But, on the other hand, it is true that its nullity affected the plaintiffs only, and that its validity depended on their will alone.

One of the plaintiffs who was at the time and has been for sixteen years a director in the Insurance Company in question, and who therefore had every opportunity to know in whose name the stock stood on the books of the Company, and that no transfer of the same had been made to the ostensible purchaser of July 3d, 1874, testifies that lie always believed and felt certain that there had been no genuine sale of the stock at the time; that there was then no market for the same, and that the defendant had continued to hold the said shares.

And yet, while under that belief, he accepts the return of the sale made to him by the defendant, and acknowledges an indebtedness to him, as a balance due after such sale, in the sum of $1,449.25, in settlement of which his firm agrees to pay aud does pay the sum of $1,014,47.

In law, as well as in equity aud justice, such conduct cannot escape the construction of a full ratification of the sale reported by their creditor, as made by him, under the authority of the pledge.

In such a transaction the relation of the pledgee to the pledgor is precisely that of an agent to his principal, and the validity of his acts must be tested under the same rules.

Those rules are well known and firmly established in our jurisprudence, and they hold the acquiesence or long silence of the principal touching an unauthorized or illegal act of his agent as a ratification of the act or contract of the agent.

The genius of our law does not favor the claims of those who have long slept on their rights, and who, after years of inertia, conveying an assurance of acquiesence in a given state of things, suddenly wake up at the welcome vision of an unexpected advantage and invoke the aid of the courts for relief, under the effect of a newly discovered technical error iu some ancient transaction or settlement.

. In the case of Bennett vs. Mechanics’ and Traders’ Bank, 34 An. 150, we had occasion t,o discuss this principle and to take an extended review of our jurisprudence on this question, and we therein enforced this rule as a bar to recovery on a similarly stale demand. Among the numerous authorities which we had occasion to examine, we find two decisions of our Court which are quite in point in this case. Dupré vs. Splane, 16 La. 51; Starr vs. Zacharie, 18 La. 517.

We are very clear and positive in our belief, that if the stock in question had not greatly increased in value, since the date of the transactions which plaintiffs now seek to disturb and annul, this suit would never have found its way to the temple of justice, and that a demand, based on the subsequent depreciation of the same, would have been strenuously resisted by plaintiffs.

The impression made on our minds by the evidence, as well as all the equities in this case, compels us to differ with our learned brother of the District Court.

The judgment appealed from is, therefore, annulled, avoided and reversed, and it is ordered that plaintiffs’ demand be rejected and their action dismissed at their costs in both Courts.

Rehearing refused.


author: Todd, J.

text:
    No. 8940.
    E. W. Troegel vs. The Judge of the Second City Court et al.
    It is only where the inferior Judge exceeds the bounds of his jurisdiction, or is guilty of an usurpation or abuse of his authority, that this Court, under the rules heretofore propounded, will interpose its supervisory powers.
    So, where a person is sued personally for an amount within the jurisdiction of the court and seeks to avoid a personal liability, by pleading that the act or omission coraplaiued of, if done at all, was in his capacity of syndic of an insolvent estate then being administered in the District Court, which court it is averred has sole jurisdiction of the demand, and the plea is overruled and judgment rendered against the defendant personally, this Court will not interfere.
    The plea in' avoidance and its legal effect, was a proper matter for the determination of the Judge.
    ApPLICATION for Writs of Certiorari and Prohibition.

      A. Bernau for the Relator.

      3. 3. Bryan, Jr. for the Respondents.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, or relator, applies for writs of certiorari and prohibition under the following circumstances:

Joseph Hirn, one of the respondents herein, had brought suit against Troegel for less than one hundred dollars before the Judge of the Second City Court of New Orleans, and obtained judgment against him for the amount of his demand.

The claim sued on was for damages based upon an averment that, through the carelessness of Troegel, in leaving open the entrances to a building of which he had the possession, thieves had entered the shop of Hirn, the respondent, and robbed him of articles of value to the amount demanded in the suit, charging that Troegel was liable for the same because, through his fault, the loss had occurred.

Troegel’s main defense to the suit, as we gather from the record, was that his possession of the building in question was a mere constructive possession, as syndic of a certain insolvent estate to which the property belonged, which estate was then under administration' in the Civil District Court, and that, therefore, the Second City Court, before which the proceeding was pending, was without jurisdiction.

This defense was overruled, and judgment rendered for the amount claimed.

The relator complains of the proceedings and seeks to have the judgment declared a nullity, on the ground that the court was without jurisdiction to try the case.

The claim was a demand brought by Hirn against Troegel personally. The latter attempted to evade personal liability by pleading that the acts of negligence charged were committed, if at all, in his capacity of syndic of the insolvent estate, and that the question of negligence vel non was a matter exclusively for the determination of ths court before which the insolvent proceedings were pending.

The City Court had to pass :

1. On the fact of Troegel’s alleged possession as syndic; and

2. If this was shown to be the character of his possession, then upon the question whether, such being his possession, it relieved him of personal responsibility, and deprived the court of jurisdiction; or,

3. The Judge might have concluded that the exception or plea was wholly irrelevant, and could, in no way, affect the question of the relator’s personal liability.

Whatever may have been his conclusion on these points, and whether his conclusion wa's one of fact or of law, it is very certain that the whole matter was within the scope of his jurisdiction.

If evidence was offered touching the insolvency proceedings before another court and rejected, the ruling could not necessarily be regarded as arbitrary, for it is well settled, that though a person may be an agent or acting in a representative capacity, he may, nevertheless, under certain exceptional conditions, render himself personally responsible to third persons; and such may have the case in this instance.

At any rate, it was a matter that the respondent Judge had a right to determine, and having such right and authority, even if his decision was wrong, under the rules' we have laid down for the exercise of the supervisory power confen-ed on this Court, it would not be a case for our interference. State ex rel. vs. Skinner, Judge, 33 An. 255. As we have repeatedly said, it must be a case of a Judge exceeding the bounds of his jurisdiction, or guilty of arbitrarily ruling, and usurpation or abuse of authority, that this Court will feel authorized to interfere.

We discover nothing of the kind in the proceedings before us.

It is, therefore, ordered that the restraining order heretofore issued be rescinded, and that the writs applied for refused at the cost of the relator.

Rehearing refused.


text:
    No. 8744.
    Christopher Satterly vs. Charles Morgan.
    Ill absence of proof of fault or negligence in the employment of incompetent or careless servants, an employer is not responsible for damages resulting to one servant from the fault or negligence of another. Upon the facts and circumstances disclosed by the evidence, plaintiff’s claim for damages cannot be sustained.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      W. 8. Benedict and Jos. P. Hornor for Plaintiff and Appellee.

      Lcovy & Kruttschnitt for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff was employed as a “ yard-switchman ” on defendant’s railroad, engaged in aiding in running into the yard empty cars, and sending out loaded ones.

One of the operations employed by the defendant in the movement of loaded cars, for a short distance in the yard, was the following: an engine on an adjoining track parallel to the one on which the freight cars were, would be attached to the latter by means of a switch-rope with hooks at either end, one of which was attached to the engine, and the other to the leading car. The process was for the engine to move forward a certain distance, until a certain momentum had been given to the cars, then to slack and let the cars proceed by their own «is inertice. A switchman was employed to detach the connecting rope from the car at the proper moment. Between the parallel tracks, at a point beyond that at which the rope was ordinarily to be detached, were some pilings or posts, placed there for legitimate purposes of defendant’s business, and which had long been there to the knowlegeof plaintiff.

On the occasion in question, while plaintiff was acting as switchman, owing either to his own fault or to that of the engineer handling the engine, the,rope was not detached prior to reaching the obstruction, plaintiff tried, but failed, to lift the rope over, which fouled with the pilings, he then ran to the car and made an ineffectual effort to detach the rope; the piling gave way under the strain, the rope recoiled striking him and knocking him under the cars, where he was seriously injured. '

The present action sounds in damages for said injury.

1. Plaintiff claims that defendant was in fault for having the pilings where they were. The evidence shows that they had long been there ; that they were put there for a useful'purpose ; that they had never before occasioned injury; that plaintiff knew of their presence and assumed any risk incident thereto.

2. He complains that the accident resulted from the negligence and fault of defendant’s engineer. If that were true, it would not avail, in absence of any proof of fault, or negligence, of defendant in his employment or retention. The engineer’s character as a skilful, experienced and generally careful servant, is fully established. Under such circumstances, the employer cannot be held responsible; Hubgh vs. Carrollton, 6 An. 495; Poirier vs. Carroll, 35 An.; 2 Thompson Neg. 969, 987; Wood, Master and Servant, Sec. 416.

3. The alleged deficiency in the lights provided by defendant is not. supported by the evidence; nor is it apparent how that contributed in any manner to the accident.

4. It does appear that plaintiff chose to perform the duty assignedjj'him in an unusual and perilous manner, persisting in his course against warning, and that, if he had pursued the course usually adopted, and of which he was notified, he would not have been injured. ~

5. Finally, in order to secure a continuance of his- salary, plaintiff himself wrote a letter to defendant’s superintendent, in which he stated: I have not and never had the least idea to enter suit against Mr. Morgan. ■ I feel positive it was an unavoidable accident.” Upon t-lie faith of this he received his salary during the whole time of his confinement and was subsequently continued in defendant’s employ, until nearly a year after the accident, when, having been discharged for other reasons, he brought the present action.

The case is absolutely without merit, and the verdict of fifteen hundred dollars damages does not redound to the credit of trial by jury in such cases.

It is, therefore, ordered, adjudged and decreed that the’verdict and judgment appealed from be annulled, avoided and reversed, and that there be judgment rejecting plaintiff’s demand, at his costs in both Courts.


author: Bermudez, C. J.

text:
    No. 8868.
    The State of Louisiana vs. J. R. A. Gauthreaux et al.
    In an action by the State against a defaulting sheriff and his sureties for public monies, collected and not accounted for, an averment that the monies collected belong to a particular class and were received within a stated period, will be deemed sufficient. The State cannot be required to allege matters of details not within her knowledge. It would be exact-lug an impossibility. Exceptions to the vagueness of the demand are properly overruled.
    Where objections to trial are based on alleged irregularities in ordering, making and submitting a report of experts, and there is no occasion to complain of the mode in which the same was made and returned, and where testimony show the report to be correct, the ruling of the court will not be disturbed.
    ■ Sureties, who have already made payment on account of the sums for which they have subscribed a sheriff’s bond, ate entitled to credit, and can be held for the difference only.
    A rule, taken by experts to have their fees taxed, should have been served on all the parties to the suit. Service on the plaintiff alone is insufficient. The judgment making such rule absolute, although repeated in the judgment on the merits, will prove of no effect.
    APPEAL from the Civil District Court for the Parish of Orleans. Lazarus, J.
    <7. (7. JSgan, Attorney General, for Plaintiff and Appellee.
    W. S. Benedict for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is au action against a defaulting sheriff and his sureties for public monies collected and not accounted for.

From a judgment adverse to them, two sureties (Fazende and Seixas) have appealed.

They complain that their exceptions to the vagueness of the petition were improperly overruled.

The petition charges substantially: that the amount claimed was collected in 1879 and 1880, and was not paid over to tlie State, and that the exact amount is not known to the State.

Such was, no doubt, the fact. How could the State then have specified every item of a claim alleged far to have exceeded one hundred and fifty thousand dollars ?

The rule invoked by the appellants is a sound one; but it is not such as can be invariably enforced in all cases. Indeed, the law drives no one to an impossibility.

The exception was properly overruled.

On the day of trial, the State offered in evidence a report of experts showing the ascertained amount of delinquency to be $76,396.-

The appellants objected to trial on several grounds:

1. That they were not notified by the experts of the time and place of-their proceedings;

2. That no rule was taken to homologate;

3. The report was not submitted and produced in court, as the law requires;

4. The defendants had no opportunity of examining the report;

5. The report was recommitted to the experts without notice to defendants, and the new report is subject to the same objections as the original one;

6. The supplemental report is not made in conformity with the order of the court, and being produced for the first time, no opportunity has been presented for its examination.

It might he enough, in order to answer those objections, merely to say: that notice is to be given only where either party requests it; that a rule to homologate was no more necessary than is required where testimony taken under commission is returned into court, the law leaving the course to be pursued at the option of the party; that the filing of the report is a suffcieat production and submission of it; that tbe defendants, if they thought the report defective and were taken by surprise, could Lave applied for time; that the Judge had authority to refer the matter back of bis own motion, and that the objections to tbe supplementary report, being identical with those to the original one, are not better founded.

Had tbe court sustained the objections, it would have been, no doubt, for the purpose of enabling the defendants to show error in the finding of the experts, and thus affording them relief.

But what importance can be here attached to those objections, when the appellants, in their printed brief, admit the correctness of the report ? That brief contains the following passage :

“No dispute arises in the case as to whether or not the amount found by the experts to be due by Gauthreaux, Sheriff, to the State, is or not correct.

It may be assumed as correct, for the purpose of this argument.

Nor are the figures found by the court in relation to the various sureties.

“ There are two questions presented:

“First. Has plaintiff made out a ease by his offer of the bond and the report of the experts ?

“ 8eeond. Can the sureties be mulcted in eosts taxed in favor of the? experts ?,T

The court having overruled the objections to the going to trial, the ease proceeded. The report was introduced, and also the testimony of a witness rvho had acted as one of the experts was heard. The defense offered no counter testimony.

The report and the testimony prove the amount for which the sheriff was found to he a defaulter to he that for which judgment was rendered, viz: $76,396.

It is evident that the object of the contention was not to go into the trial of the ease; but that it ceased, practically, the moment the objections were overruled. It is not here disputed that the court otherwise decided correctly. Why should we then critically examine the report and the testimony? It is enough, it seems to us, that both the report and the testimony justify the judgment.

The appellants pleaded in the lower court, that they had already satisfied their obligations as sureties, under their bond, up to the full amount of subscription. They have shown payment in part only, and were allowed credit therefor. The State has asked no amendment of the judgment, and the appellants admit its correctness in that particular.

The next complaint is as to the fees allowed the experts.

The amount at which their services were valued was fixed, on a rule by them, on th® State only.

The rule should have been taken and determined contradictorily with each and every party to the suit.

The allowance of the same fees in the last part of the judgment does not cure the nullity, in the absence of any averment and proof that the question of the value of those services was at issue and considered on the trial of the case on its merits.

It is, therefore, ordered and decreed that so much of the judgment of the lower court as allows fees to the experts, as well as the decree making absolute the rule for thesame, be reversed and set aside; and

It is further ordered and deereed that, as thus amended, the j udgeaent appealed from, he affirmed, appellants to pay costs of the lower court, and appellee those of the appeal.

Fenner, J., takes no part.

Rehearing refused.


text:
    No. 8698.
    Alexis Ribet, Agent, vs. Jacques Bataille et al.

      A pledge of bonds, stocks, notes, etc., made by delivery of them, is valid, as well against third persons as against the pledgor, if made in good faith.
    Simulation of ownership of bonds and stoeks may be shewn, by parol proo^ as between the parties to the simulation. .
    Third parties, who have dealt with the apparent owner, cannot be prejudiced by the revelar tion of the real ownership, if they have acted in good faith,
    PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      JBreaux <& SaU for Plaintiff and Appellant.

      F. D. Olrreimn for Defendants and Appellees.

      Albert Voorldes on the'same side.

      A. J. Lewis oa the same side.
   The opinion of the Court was delivered by

Manning, J.

The suit is by Ribet, as agent for Leon Bataille, claiming of his brother Jacques, certain bonds, stocks, the dividends collected, upon them, and insurance money for property burnt, all of which were placed in the defendant’s hands or came into his possession by virtue of a power of attorney from Leon to Jacques, entrusting him with the management of iiis business. The prayer is that Leon be recognised as the owner of the bonds and stoeks, and that Jacques be ordered to deliver them or pay their value, alleged to be fourteen hundred and ten dollars, and also account for the dividends and insurance, etc., charged to amount to $3,195.

The bonds and stocks were in the possession of Pierre Foch, who is made co-defendant, and the prayer for the delivery of them and the payment of dividends is made against him also.

The procuration to Jacques Bataille was given in July, 1873, in New Orleans, and Leon left here immediately thereafter. He had come from France to San Francisco in February, 1870, and there remained until October, 1872, when he came to New Orleans. He claims to have made the money ia California which was invested in the bonds and stocks, bat his business there, his earnings and mode of life have been subjected to searching scrutiny, and it is manifest that he did not and could not have made, over and above needful expenses for the most frugal living, the sum stated by him as having been brought to New Orleans. Several witnesses detail circumstances, and Leon’s own statements accord with them, which put his iropecuniosity, at tise time of lis arrival here and during his stay, beyond any doubt.

The whole of this property in fact belonged to Jacques. Either from some apprehended business trouble, or an innate love of tortuous ways, he had placed it in Leon’s name, and then took from Leon a power of attorney to manage it, and he did manage it. He seems to be 3 thriving person with some business capacity. Leon never got along except when some one was giving him a regular salary. As between these two brothers, that is the state of the case, as they both know full well.

But the plaintiff says the defendant is estopped from denying the plaintiff’s title by his own repeated solemn asseverations. Certainly they are numerous enough. Jacques received from Leon a power of attorney to manage this business as Leon’s, thereby acknowledging the bonds, stocks, etc., belonged to Leon. He once brought suit as agent of Leon to recover damages of Eibet for detention of these identical bonds and stocks, Eibet claiming to detain them as Jacques’ property, and Jacques vehemently denying that he owned them, and asserting that they were the property of Leon. In another suit of Eibet against him, he answered that these bonds, etc., belonged to his brother and sequestered them as his brother’s agent, of course, swearing to these facts. When he collected the insurance on a stock of groceries which had been burnt, he swore again they were Leon’s goods. The false swearing is repeated unblushingly whenever occasion required, and the false pretence of another’s ownership is kept up, until Leon determined that turpitude should not be confined to one member of the family, and brought this suit to take advantage of the confidence his brother reposed in him, and reap reward from abusing it. Seven years bad passed in which Leon had never called on his brother to account for the receipts from his business. His letters (for lie had gone hack to France) contain expressions of gratitude to his brother for kindness while here, and each writes the other with a fraternal warmth of feeling that would be charming anywhere else than in juxtaposition to the charges and counter-charges in these pleadings. But there is not a word of this business. No inquiry how it is prospering, none about the dividends, whether paid or not, no call for remittances, no complaint of non-receipt of them, no acknowledgment of any received. These seven years are a blank, a silence unbroken until Leon instituted this suit. So far as these two are concerned, we may repeat here the adjuration of the priestess to'the intruder into the sacred grove, quoted years ago by the Great Chief Justice of this Court on a similar occasion:

“ Procul, O ! procul este profani,
* * * totoque absistite luco.”

If third parties had dealt with these two on the faith of the apparent ownership created by their joint acts and representations, they could not be prejudiced by the revelation of the true ownership now for tire first time disclosed. But the only third party interested is Foeli, and liis claim is based on the fact of ownership by the defendant Jacques Bataille.

Foch lent a thousand and thirty-one dollars to him, and received in pledge the bonds and stocks. The bonds were transferred to him on the books of the company, and the certificate of shares of stock were delivered to him. The shares were in the name of Jacques on the books. The bonds are negotiable instruments, payable to bearer, and transferable by delivery. No further formality was necessary. Rev. Civ. Code, Art. 3158; Smith vs. Crescent City Co., 30 Ann. 1378; Factors Ins. Co. vs. Marine Dry Dock, 31 Ann. 149; Pitot vs. Johnson, 33 Ann. 1286.

There is no question of Foch’s good faith, none of the reality of the pledge. He was ignorant of the complications produced by the acts and declarations of the brothers, and is not affected by them. No dispute had then arisen' between them. Leon’s assertion of ownership had not then been made. Besides, even if the plaintiff were the real owner of the bonds and stocks, lie had enabled his brother to make the transfer and deceive an innocent party who was ignorant of his pretended claim, and could not by any diligence, have known of it. Giovanovich vs. Citizens’ Bank, 26 Ann. 15.

Objection was made to the defendants’ introduction of parol proof to establish the true ownership of the bonds and stock, which was properly overruled. The exclusion of testimony to that effect would have enabled the plaintiff to reap the fruits of iniquity through the instrumentality of a court of justice. The proof could affect no one but the parties to the contrivance designed by both to simulate ownership.

The judgment below was in favor of the defendants. It is affirmed with costs.


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    No. 8970.
    The State ex rel. W. H. Aymar vs. The Judge of the Twenty-second Judicial District Court et al.
    In an injunction auib to restrain a tax collector from, proceeding with advertisement and sale of property for taxes, when judgment is rendered dissolving the injunction and ordering the tax collector to proceed with the sale to-satisfy the taxes and naming the amount thereof, this last portion of the decree is not to be treated as a moneyed judgment, in estimating the amount of bond required for suspensive appeal»
    jGlPPLICATION for Writs of Mandamus and Prohibition.

      Tí. G. Fugué and Blanc <& Butler for the Relator.

      F. B. Farhart, District Attorney, and Simms & Foelié for the Respondents.
   The opinion of the Court was delivered by

Fenner, J.

The tax collector of tbe Parish of St. James had seized aud advertised for sale. a plantation belonging to relator, to satisfy State and Parish taxes for 1875 and 1876, with fees, costs and interest.

Relator, averring certain illegalities in the assessment and description of the property, applied to the District Court for, and obtained an injunction, on a bond for two hundred and fifty dollars, restraining the tax collector from proceeding with the sale. After issue joiued and trial had, final judgment was rendered, dissolving the injunction, ordering the sheriff to proceed and sell the property, to satisfy the identical taxes for which he was originally proceeding when enjoined, condemning the relator and surety on his injunction boud to pay five per cent, attorneys’ fees, and relator alone to pay costs of the proceedings.

Relator made seasonable application for a suspensive appeal, and contends that he was entitled to the same, upon giving bond in an amount exceeding, by one-half, the attorneys’ fees and costs which he was condemned to pay. The Judge, however, refused to grant a suspensive appeal, save upon a bond for one-half over and above the amount of the entire taxes, fees, costs and interest.

Hence, these applications.

Relator was clearly entitled to his appeal upon a bond exceeding, by one-half, the amount of fees and costs. No other moneyed judgment was rendered against him. That portion of the decree which, after dissolving the injunction, orders the tax collector to proceed with the sale to satisfy the taxes, through naming the amount thereof, is not a moneyed judgment., and, indeed, strikes us as pure surplusage, since such proceeding was the natural consequence of the dissolution of tile injunction. The only question involved in the case was, whether the tax collector should be allowed to proceed with the sale or not. If it had been decreed that the injunction should be made perpetual and the tax collector restrained from proceeding, that would not have been a moneyed judgment. Neither is the decree, actually rendered, dissolving the injunction and ordering the tax collector to proceed, a moneyed judgment.

The case is fully covered by the authorities cited by relator. 21 An. 152; 29 An. 793; 30 An. 315; 34 An. 1211.

It is, therefore, ordered that the writs of mandamus and prohibition herein issued be made peremptory.


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    No. 8874.
    Hibernia Insurance Company of New Orleans vs. Frederick A. Blanks.
    In a contract of insurance, the insurer Las tbe right to cancel tbe policy for non-payment of the premium, and is entitled to recover premiums earned during tbe time that bo carried tlie risk.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      T. Gilmore c6 Sons for Plaintiff and Appellee.

      Singleton & Browne for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit, is to recover the sum of $2924.44, for insurance premiums on a policy on the Steamer “F. A. Blanks,” the additional sum of $37.50, for insurance on the Steamer “Tom Parker,” and the further sum of $102.03, amount of a promissory note executed by the defendant.

The defence is a general denial, save of the signature to the promissory note, which is admitted, with the denial of any liability therefor.

The judgment below is in favor of plaintiff for the amount of premiums on the insurance of the “Blanks,” and for the amount of the promissory note.

Defendant appeals and plaintiff moves for an amendment, so as to cover the amount of premium for the insurance on the “Tom Parker.” The record shows that on the application of J. W. Blanks for F. A. Blanks, the Insurance Company issued a policy on the 20th of Decern, her, 1881, for one year, insuring the Steamer F. A. Blanks, for navigation of the Mississippi and Ohio Rivers, up to forty thousand dollars, at a premium of ten per cent, or four thousand dollars, and for navigation on the Ouachita River for consideration of an additional premium of $1600.

It further appears that on the 28th of June, following, the Company cancelled the policy for non-payment of the premium, and notified the iusured of said cancellation. The sum claimed is for the balance of the whole premium of $5,600, after giving credit to the insured for $2,675.56 amount of the unearned premiums.

1. The first point made by appellant is the failure of plaintiff to> prove the authority of J. W. Blanks to effect the insurance.

The evidence shows that J. W. Blanks and his brother, the insured, were alternately the masters of the insured vessel, and the whole record teems with evidence', showing that F. A. Blanks fully and unreservedly ratified the contract made in his name by his brother. This ratification is clearly established by his personal application to the Company, under the very policy now repudiated by him, for leave to charter the insured vessel to Capt. T. P. Leathers, to be run in the Vicksburg trade.

This act is in itself an illustration of an unqualified ratification of an agent’s contract made in the name of his principal.

2. Defendant next contends that, on its face, the policy shows that the premiums have been paid.

The following statement in the policy is the circumstance relied on by defendant for his bold and extraordinary pretension: “And the Insurance Company aforesaid do hereby bind the capital stock, and other common property of said Insurance Company to the assured, his heirs, executors, administrators and assigns, for the true performance of the promises, having received the consideration for this insurance at the rate of ten per cent, net.”

We hardly know whether we should treat this point as a serious defence. It is evidently an afterthought, and we feel confident that it was not urged in the lower court.

We are loth to do the injustice to defendant’s distinguished counsel to believe that he would have filed a general denial, instead of the plea of payment to a claim of nearly three thousand dollars, which had already been paid by his client.

We find him in the record propounding the following question to a witness for plaintiff: Under that policy, when was the premium due?

And in answer to the question, the witness informs us that it was due in six months. Hence, defendant himself offers a clear explanation of the true meaning of the words hereinabove quoted from the policy. They mean that the consideration received was the promise of the insured to pay the premiums in six months.

The defence is therefore absolutely untenable.

The record contains no evidence on defendant’s plea of want of consideration of the note sued upon.

Hence, that defence also fails.

We find sufficient evidence to sustain the claim for insurance on the ■ ‘ Tom Parker,” and the judgment must be amended accordingly.

It is, therefore, ordered and decreed that the judgment appealed from he amended so as to increase it to the sum of three thousand and sixty-three 97-100 dollars, and that, as thus amended, said judgment be affirmed at appellant’s costs in both Courts.


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    No. 8784.
    City or New Orleans vs. L’Hote & Co.
    Where a tax was duly levied on a factory for the manufacture of articles of wood by the City of Kew Orleans, and included in the City budget for 1879, collectible in 1880, an exemption therefor cannot be claimed under Article 207 of the present Constitution, subsequently adopted. That Article had no retroactive effect. The case comes within the scope of the decisions of City vs. Vergnol© and Succession of Hupuy, 33 An. 39 and 258.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      J. Ward (hirleij, Jr. for Plaintiff and Appellee.

      Chas. S. Bice for Defendants and Appellants.
   The opinion of the Court was delivered hy

Todd, J.

The defendants are appellants from a judgment condemning them to pay a tax on property described as a factory for the manufacture or making of articles of wood.

It is claimed that the property or factory is exempt from taxation, under Article 207 of the present State Constitution, and this presents the only question for determination, other issues raised hy the pleadings having been abandoned.

The tax in question was levied prior to the adoption of the present State Constitution, being the tax assessed in 1879, to he collected in 1880. When this levy was made the property in' question was clearly subject to taxation, there being then in existence no provision for its exemption, constitutional or legal.

In tlie cases of the City vs. Vergnole, 33 An. 36, and Suc. of Dupuy, 33 An. 258, we held,' after mature deliberation, that the restrictions and limitations, respecting taxes and licenses, which would include also exemptions, established by the Constitution of 1879, had no retroactive effect.

The instant case comes clearly within the scope of those decisions, and the reasons therein given for the conclusions announced are equally applicable to the case before us.

Judgment affirmed.


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    No. 8867.
    Successions of P. C. Clairteaux and U. Clairteaux.
    Appeals will be dismissed where ono bond only was furnished, under motions and orders of appeal from two judgments in two distinct and separate matters.
    Widows in necessitous circumstances, who remain in possession of a email farm, in insolvent successions, which was exposed to be sold at any moment, to pay debts and to keep which a keeper would, otherwise, have to he employed, will not be charged for the value of the oooupanoy.
    Where the residuo in suoh suoecsslons is insufficient to pay both the privileges and the homestead, the court will abstain from passing critioally on the merits of subsequent claims, to whioh nothing, in any ovout, oould accrue.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Hahn, J.

      Jos. Brewer for Opponents and Appellants.

      Jos. H. Spearing and A. B. Billings for Opponents and Appellants.

      G. W. Besangon for the Administratrix.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

C. A. Philippi & Co., Ferdinand Samuel and Jules Samuel, appeal from judgments dismissing the oppositions which they have respectively filed to the accounts rendered in these two successions.

The administratrices move that the appeal taken by the Samuels be dismissed, among other reasons, because, there being two judgments, there should have been two motions and orders of appeal and two bonds, one in each case, as there were two suits in each succession, and one bond only was furnished.

The oppositions were not consolidated below, to be tried together and determined by one and the same judgment. The order of consolidation was made after judgment. There were two judgments rendered, and two appeals taken. There should have been two bonds given. The appeals of F. and J. Samuel are dismissed

On the Merits op the other Opposition.

C. A. Philippi & Co. claim to be placed on the account in each succession for balance due them as advances made for the working of a small farm, owned in common by the Brothers Clairteaux, and the reimbursement of which was secured by mortgage on the land. They also claim that the amount allowed by each account to the widow of each of the brothers, as a homestead, should be stricken therefrom, or, at least, credited with the value of the occupancy and enjoyment of the property from the time of death to the date of sale.

The inventory shows that the piece of real estate owned by the two brothers was appraised, as a whole, at $1,500. It, however, sold for $2,500; some movable effects realized in one of the successions the slim of $221.

The account presented by the administratrix of the Succession of Ursin Clairteaux shows assets for $1,471.65, privileged liabilities for $595.32, and strikes a balance of $876, which it allows to the widow as in necessitous circumstances.

The other account, in the succession of P. C. Clairteaux, amounts,"as assets, to the sum of $1,250, against which privileges for $370 are charged, leaving a balance of $879, which is allowed to the widow as her homestead.

The penurious circumstances of the widows is established. Nothing shows that the occupancy of this small property was worth more than what it would have cost to pay a keeper to take care of it. Had it been vacated, it would have remained either abandoned and exposed to ruin and devastation, or put in charge of a keeper, whom it would have been necessary to pay.

It is not shown that it could have been rented for anything. Indeed-, how could it have been rented, belonging, as it did, to a thoroughly insolvent estate, and exposed at any time to be sold for the payment of the. debts.

As the claims for a homestead absorb completely the residue of the assets, and rank, without doubt, Philippi & Co., who are not vendors, but who only claim to be ordinary mortgage creditors, it is needless to review critically the judgment of the lower court, as nothing can actually accrue to these opponents.

An examination of the evidence and a consideration of the law do not enable us to say that the lower court erred.

The judgment is affirmed with costs.

Rehearing refused.


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    No. 8949.
    The State of Louisiana vs. F. Hartleb.
    A trial Judge is justified in refusing to give to tbe jury special charges which, although legal and pertinent, are amply covered by charges previously given.
    It is unnecessary, in an indictment under Sec. 832, R. S., chargingiu tko words of the Statute, that the accused has feloniously received the object which had been feloniously stolen, he well knowing that the same had been so feloniously stolon and taken, to charge specially that the offence was committed with intent to defraud the owner of the property, or some person, or for the purpose of felonious or wicked gain.
    APPEAL from the Criminal District Court for the Parish of Orleans. Bomcm, J.

      J. 0. JSgcm, Attorney General, for the State, Appellee.

      li. 8. Dennee and Wm. li. WMtalcer for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from the verdict and judgment on an information for receiving stolen property. He was sentenced to hard labor, for one year, in the State penitentiary.

The record contains a bill of exception, a ipotion in arrest of judgment, which was overruled, and a bill taken to the action of the court thereon.

I.

The first bill is to the refusal of the Judge to give certain charges to the jury, which it is unnecessary to repeat.

The District Judge declares that: “though the charges were good law, he had already, and repeatedly, charged the jury on the matters contained in the special charges requested, and that it was unnecessary to-refer again to them.”

The refusal is sufficiently justified.

We have several times held, that the trial. Judge is not bound to give to the jury charges requested, however legal or pertinent they may be, where they are covered by charges previously given.

II.

The motion in arrest is to the effect, that the information does not charge that the defendant received the diamond pin therein mentioned, with felonious intent, to defraud the true owner thereof, or any person, or that the defendant feloniously received said pin for the sake of felonious or wicked gain.

Section 832 R. S. provides: “Whoever shall receive, or buy any goods, or chattels that shall be feloniously taken or stolen from any other person, knowing the same to have been stolen, * * *

shall restore the goods so received, or pay double the value thereof, and moreover suffer imprisonment at hard labor, not exceeding one year, and in default of making the restoration or payment aforesaid, shall suffer further imprisonment at hard laborfor a period not exceeding one year.”

The information charges that F. Hartleb, the defendant, feloniously did receive and have in his possession, one diamond cluster pin, of the value of $500, of the goods, chattels and property of one A. K. Brown," which had before then been feloniously stolen and taken from said A. K. Brown; he, the said F. Hartleb, then and there well knowing the said diamond cluster pin to have been so feloniously stolen and taken, contrary, etc., etc.

In the case of Moultrie, 34 An. 490, this Court said that: criminal intent is of course of the essence of the crime, but the statute makes no formal requirements as to the mode of expressing the same. We think it is sufficiently expressed here by the charge, that it did feloniously receive and convert to his own use the property.” See also State vs. Wolff, 34 An. 1153.

The defendant, in the present case, is distinctly charged, in con-' formity with the statute, with having feloniously received the diamond cluster pin, which had been feloniously stolen, he well knowing that the said pin had been feloniously stolen and taken.

It was unnecessary specially to charge that the offence was committed with intent to defraud the owner of the property or some person, or for the purpose of wicked gain.

The bill of exception taken to the ruling of the court on the motion in arrest, being on the same matter, has the same fate.

Judgment affirmed.