author: DeBlanc, J. Spencer, J.

text:
    No. 7177.
    Succession of Henry Tabary.
    „ , One who opposes every item of an administrator’s account can not be said to ratify a certain adjudication of property the proceeds of which are sought to be distributed by the account.
    Property of a succession sold for cash in order to pay the debts of the succession must, at its first offering, bring its full appraised value. If thus sold for less than its appraised value, the sale will be invalid.
    Where property subject to a certain mortgage is .passed by a simulated transfer to a nominal buyer, who formally recognizes the mortgage in the transfer, the widow and administratrix of the owner, who joined her husband in the simulated transfer, can not afterward have the property sold as a part of her husband’s succession to the prejudice of the mortgage creditor. Such an adjudication is absolutely null and may be attacked collaterally.
    Private counter-letters have no effect as against creditors.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Louque & Fernandez for administratrix and appellee.

      A. Robert for opponent and appellant.
    The opinion of the court on the original hearing was delivered by DeBlanc, J., and on the rehearing by Spencer, J.
   DeBlanc, J.

John Oarran is the holder of a note drawn on the 10th of May 1870, by L. H. Tabary, to his own order, by him endorsed, and secured by a conventional mortgage, which he — Tabary—gave on a piece of property situated in this City, and which he afterwards sold to Aymes — his son-in-law — for fifteen hundred dollars. In settlement of that price and according to the recitals in the act of sale, Aymes paid in cash the sum of three hundred dollars, and assumed the payment of the note held by Garran, which — from the date of that assumption — was secured by the original mortgage granted by Tabary and by the privilege which resulted from said sale.

In a suit brought by one McNeil to annul the sale from Tabary to his son-in-law, on a charge of simulation and fraud, Tabary denied that charge and asserted the reality of the assailed transfer. He died, and we are informed by his widow’s counsel that — not wishing to keep in his name the property thus apparently sold, Aymes signed what he calls a counter-letter and had it recorded in the Conveyance office. That instrument is in these terms: “Know ye that I formally declare that the sale made tome by Henry Tabary, of New Orleans, on the 2d of December, 1875 * * is a meresimulation, and that no consideration was ever paid to said Tabary for said sale.” As soon as that declaration had been recorded, Mrs. Tabary as administratrix of her husband’s succession applied for an order to sell the property, which — in court — Tabary declared had passed from him to his son-in-law, and for a real consideration, and which — now and in a private instrument — the son-in-law formally declares has never ceased to belong to his vendor.

The order to sell was first allowed and then rescinded by the district judge. ‘ The widow appealed from the decree rescinding that order, and — considering the character of the pleadings — we were compelled to reverse that decree. The intended sale was proceeded with, and said property, which was appraised at one thousand dollars, was adjudicated to Mrs. Tabary, a party to the sale from her husband to Aymes, for six hundred and seventy-five dollars. This took place on the 30th of June 1877, and — on the 13th of July — she filed — in the second district court — • a tableau of the distribution which she proposes to make of the proceeds of that sale. In that tableau, she has allowed to herself — for a balance alleged to be due on the widow’s homestead — three hundred and twenty-eight dollars, aud to John Garran, on his note, one hundred and thirty-one dollars. The remaining portion of the price of the adjudication is applied to the payment of costs and fees.

This account is opposed by John Garran. Mrs. Tabary’s counsel insists that he lias — by the terms of his opposition — ratified the adjudication of the 30th of June. This is certainly a mistake: he does not claim the proceeds, or any share of the proceeds of that attempted sale: he contests its validity, denies its existence, and — apprehending the effects of the homologation of said account, he appeared in court for the sole purpose of disputing every item therein included; and — to use his own words — prayed that it be stricken from the record of the succession. Ear from ratifying any sale, his manifest intention was to guard against and prevent that which, otherwise, might have been construed, and — in all probability — invoked as a tacit ratification on his part, that which he justly considered as an additional step taken to defeat the enforcement of his claim.

In his opposition, Carran contends that Mrs. Tabary owned — at the death of her husband — property worth fifteen hundred dollars ; that— besides — she has received in rents and from the company in which her husband’s life is assured, more than three hundred dollars, and — for these reasons — has no right to any allowance as a homestead.

The grounds of nullity which he urges against the adjudication of the 30th of June, are:

1. That the property sought to be sold did not belong to the succession of Tabary, but to Aymes, who assumed the payment of his— Carran’s — claim ; and

2. That, if it did belong to said succession, it could not legally have been, as it was, adjudicated for less than its appraised value.

The property alluded to was appraised at one thousand dollars, and —at the first offering — adjudicated to Mrs. Tabary for six hundred and seventy-five dollars. Does that adjudication constitute a valid sale?' In the exhaustive opinion which precedes the decree rendered by our learned brother of the district court, he says--and, in this, he is right— that administrators of successions have the same powers and are subject to the same duties and responsibilities as the curators of vacant estates. R. C. C. 1049 (1042). He, then, refers to article 1167 (1159), which provides — as to the sale of property belonging to vacant estates— “that it shall be made at public auction, to the last and highest bidder,”’ and justly remarks that the law — he doubtless meant that which he cited — is silent as to whether property thus sold shall or shall not bring its appraised value.

^Further on he says: “the debts of the succession must be paid, and — to pay them — the property of the succession must be sold without regard to the appraisement, and sales made under the decree of a court can not be rescinded for lesion beyond moiety.” R. C. C. 2594— (2572).

We are at a loss to imagine how the articles of the Code which authorize the annulling — on account of lesion — of existing and admitted sales, can have the most distant application to this case, wherein the main question to be decided, is whether — as asserted by one of the parties and denied by the other, the adjudication to,Mrs. Tabary constitutes a valid sale.

“It is now settled, we are told by the district judge, that a sale of succession property to pay debts, may be validly made for less than two thirds of its appraisement,” and — to prove his assertion — -he refers to the 5th and 10th R. R. and to the 5th, 13thand 27th An. The decision in Valdere vs. Bird — -reported in 10 R. 398 — sustains his assertion. The sale referred to in 5 A. 438, was made subject’ to the Citizens’ Bank 'Stock, and the claim due upon the stock to the bank, payable according to its charter. In that case, from the tenor of the opinion delivered, *the court had to deal’with an exception, and — for that reason — declared that the application of the 990th article of the C. P. to the’ property sold was impracticable. Not a line of the decision to be found at page 508 of the 5th R. treats of the question now under discussion; but — in that book, at page 100 — that question is thus disposed of: “ It has been urged that the ordering of the sale for cash, implies that it must be sold for what it will bring. We presume that the judge a quo, in ordering the sale of the mortgaged property, understood and intended that it should be made according to law. There was no necessity for inserting in the judgments the condition, provided its appraised value be •obtained. The law itself fixes the amount which the sale must briDg, when made for cash, and it is clear that the property can not be adjudicated for cash under its appraised value.”

C. P. 990-=-991 — 992.

The di-trict judge thinks that- the decisions in 12th and 13th An. which we have adhered to, do not sustain the opinion delivered by us in Hermann & Vignes vs. Fontelieu. We held that — when succession property is offered for sale for cash, under an order of court, and even for the payment of debts, it must — at the first offering — bring at least its appraised value. In 12th A. the court said : the terms of sale of the property of the succession, accepted with the benefit of inventory, were for cash. The property — an immovable — did not bring the appraisement. There was, thei’efore, no sale which the purchaser could compel the tutrix to complete, although the property was sold to pay debts. In 13th A. the question presented for solution was thus stated by counsel : ■“has the creditor of an estate, whose debt opei’ates as a judicial mortgage, and is in a twelve-months bond executed by the deceased, a right to have property of the succession sold for cash at the first offering, unless it brings the amount of the appraisement on the inventory?” The court answered in the negative.

12 A. 368. 13 A. 439. 29 A. 505.

The district judge charges that we have virtually added seven words to the 1167th article of the Civil Code, so as to make it read that the sale therein referred, to shall be made at the appraised value of the property. This — on his part — is a mistake : we believe, as he does, that the article cited contains no such conditions ; but we are unable to agree with him as to his construction of art. 990 of the Code of Practice. That article, which relates to the sale of property belonging to a vacant estate, provides that — “ on the application of the creditors or any credit- or of said estate, it shall be the duty of the several judges of Probatés, to cause * * so much of its property as is necessary to pay its debts, to be offered for sale and sold at public auction to the highest bidder for cash, if the creditors require it; and if — on thus offering said property for sale, the appraised value should not be bid and obtained,” then and only then can it be sold on credit and for icliat it will bring. “ The principles contained in that article, apply — this is expressly declared in said Code — to all successions accepted with benefit of inventory, whether the heirs are minors or of age, and to all successions administered by administrators.”

C. P. 990 — 991—992.

We have looked in vain for any provision in our Codes, which suggests the distinction insisted upon, and which — it is conceived — exists between the sale provoked by one of the creditors and that applied for by an administrator. The district judge supposes that “ when a creditor proceeds in that manner, the Legislator meant to force the adjudication up to the appraised value, in order to prevent the sacrifice of the rights of the creditors who take no action.” That supposition is rebutted by the fact that, whether the application to sell be made by one of the creditors, or by all the creditors, the property can not be sold — at the first offering — for less than its appraised value.

The provisions of the Civil C^de, which relate to the sale of the effects of successions administered by curators, far from conflicting with, justify the adjudications on which we rely:

“If, at the expiration of a year from the curator’s appointment, there be immovables * * which have not been sold, the judge is bound, at the request of the curator, to order the sale of the same at public auction * * at one 'and tivo years credit.”

C. C. 1169 (1202).

“ If, at that sale, two thirds of their estimated value be not offered, the sale shall be suspended, re-advertised at one, tioo and three years credit; but then the property must be sold for the price offered.”

C. 0. 1170 (1203).

If, at two years’ credit, at a sale made at the expiration of one year from the curator’s appointment, and which is necessarily ordered after the sales which can be made thirty days after said appraisement — O. C. 1164 (1155) 1165 (1156) — the property can not be sold for less than the appraisement made by experts appointed and sworn for that purpose, how reasonably infer that — when sold for cash — it may be sacrificed at the first offering; and why infer at all, in presence of the articles of the •Code of Practice, which enjoin that, at that first offering, the appraised value must be bid and obtained ?

In Valdare vs. Bird, the court — ignoring its own decision — 5 R. 96— .and without referring to a single authority — asserted “ that it had been repeatedly held, that when a sale is made to pay debts, the property •may be sold for less than the appraisement.” If it had, the cases in which it was so held, have hot been reported. That court had previously and justly said: “the law itself fixes the amount which the sale must bring, when made for cash, and it is clear that the property can ■not be adjudicated for cash under its appraised value.” Whether it be •correct or incorrect, the decision in Carter vs. McManus — 15 A. 642— refers to personal and perishable property, and does not absolutely apply to this controversy. In “Succession of Weber” — 16 A. 420 — the court said: “the payment of the debts must be effected without regard to the appraisement, when the sale is ordered at the instance of the administrator; but — if ordered at the instance of the creditors — then recourse must be had to articles 990, 991 and 992 of the Code of Prac-tice.” That distinction is not authorized by any provision of our laws.

In deference to the district judge, whose opinions have always ■commanded the attention of this Court, we have once more read with ■care, and again considered the precedents on which he relies and those to which we adhere. The beaten path which we have followed leads to, the other by the law. This — now—is our unremovable conviction.

We would not attempt the difficult task of criticising the views of the eminent jurists who composed this Court, at the dates mentioned by ■the disTict judge: but at the pages of the Code to which they refer, ■what do we read? That — when sold for cash — the property of vacant estates, of all successions accepted with the benefit of inventory, whether the heirs are minors or of age. and of all successions under administration, can not — at the first offering — be sold for less than its appraised ■value : that, unless that value be bid and obtained, the property must be ■re-advertised for sale, and then sold on credit for what it will bring. We have copied, from the Code and from decisions of those jurists, the :refutation of what we consider as a mistaken interpretation.

III.

We admit that — as a general rule — a sale clothed with the judicial ¡sanction, can not be collaterally attacked: but — here, what are the facts? Tabary sold to Aymes a lot of ground already mortgaged to .secure the payment of the note held by Carran ; in the act of sale, Aymes assumed the payment of that note — and to that act — Mrs. Tabary was a party; it is signed by her. After the death of Tabary, Aymes prepared and caused to be recorded a private instrument, in which he declares that the sale from Tabary to him was a mere simulation: thereupon, Mrs. Tabary procured from the probate court an order to sell, as belonging to the succession of her husband, the property thus returned by Aymes, and — at that sale — purchased said property. This ill-disguised attempt to defeat an acknowledged claim, can not be sanctioned. The declaration of Aymes neither did, nor could — to the detriment of Carran — destroy the title acquired by Aymes to the lot of ground; which both he and Tabary have subjected to the payment of the note held by Carran. 14 L. 44. 5 A. 228. The sole object of that transparent declaration was to avoid the otherwise unavoidable effects of the vendor’s privilege, resulting in favor of that creditor, from the sale made by Tabary to his son-in-law, and to subordinate that creditor’s claim to the homestead rights of the widow.

To obtain the order under which she pretends to have acquired the title, which — at the date of and previous to her application — she knew had passed from her husband, she deceived the court by a wilful misrepresentation ; that intended and practiced deception impairs — so far at least as she and Carran are concerned — the validity of the order which she then procured in utter disregard of the law, and of her own and her husband’s act. Under these circumstances, she forfeited the protection invariably and justly extended to those who honestly acquire under the regular decree of a competent court; and the adjudication to her of the lot belonging to her son-in-law, is an absolute nullity, which may be urged wherein and whenever it is relied on, by any of the parties to these fraudulent proceedings, to defeat the 'enforcement of an obligation given, ratified or acknowledged by them.

Whatever may be — as between themselves — the legal value of the sale from Tabary to Aymes, that sale — as to Carran — is not a simulation, and why? Because Aymes, Tabary and his wife have all acknowledged» out of court and in a notarial act, in court and by placing it on the tableau filed by the latter, that the note held by Carran, which constitutes the four fifths of the consideration of said sale, was and is still due by Aymes and the succession of his father-in-law. Mrs. Tabary was a party to that sale, and — to her own knowledge — the adjudication to her of the property sold to Aymes anil mortgaged to Carran, was — as to that creditor, the sale of Aymes’ property and, therefore, an absolute nullity. C. C. 2452 (2427).

The declaration of Aymes, made and recorded after the death of Tabary is not a counter-letter. If it were, counter-letters can have no effect against creditors, for — -as said by the Court in Stewart vs. Newton — -“While parties to a simulated contract may be compelled, inter se, to treat it as a nullity on the production of such an instrument, still the law is careful to guard the interest of third parties against any injury from such a dissolution of an apparent title. Had it failed to do so, public confidence would have been destroyed, and public credit paralyzed. If a private counter-letter could, at any time and as to all the world, defeat the most formal title in the archives of the Recorder’s offioe, their authentic acts would be mockeries, and registry offices pitfalls for the unwary.”

R. O. O. 2239 (2236) — 12 A. 622.

In the oase entitled “Succession of Tabary,” and reported in the 30th A. p. 188, being under the impression that Oarran had excepted to the introduction of evidence, the sole object of which was to add a piece of property to the succession of his debtor, to swell instead of diminishing the means of payment of his debt, we said — that Aymes’ declaration that the sale from Tabary to him was a simulation should have been secured in evidence by the lower Court. The object of that evidence is now fully declared: it is to outrank and defeat the creditor’s claim. That disclosure dispels the mistaken impression which inevitably led us from an error of facts to an error of law.

Were it true — as contended by Mrs. Tabary’s counsel — that the unsworn declaration of Aymes can have — as to third parties — the effect which a counter-letter has in regard to simulated contracts and as between the parties to such contracts — were it admitted that said declaration can destroy an existing title, transfer the ownership and possession of property, wipe out every right resting on that title, or subordinate them to a resuscitated title and to resuscitated rights — still, the fact remains that there was no sale from the succession of Tabary to his widow — that, as there was no sale, there are no proceeds to be distributed, and that, even if the adjudication to Mrs. Tabary for less than the appraised value of the property, could — under the peculiar and exceptional circumstances already recited — be considered but as a voidable sale, which can not be collaterally attacked, we would — nevertheless— feel constrained to delay — until our decision in another suit, tried in and submitted to this court, between the same parties and in regard to the same lot of ground — the proposed distribution of the insufficient and as yet unrealized price, a fraction of which is — on paper — tendered to the creditor ; but which — due as it is by one who seems determined to defeat his claim, he might not easily realize, if he concluded to accept it. But the adjudication to Mrs. Tabary is a manifest nullity, and as she— the oply party interested in maintaining it — is now in court, urging it against the only party interested, in opposing it; this fruitless and expensivo litigation must be closed.

It is — therefore—.ordered, adjudged and decreed that the judgment appealed from is avoided and reversed.

It is further ordered, adjudged and decreed that the application filed by Mrs. Widow Henry Tabary, on the 13th of July 1877, for the approyal and homologation of the account presented by her as administratrix of the succession of her husband, is now dismissed at her costs in both courts.

On Application for Rehearing.

Spencer, J.

The earnestness with which counsel assails the correctness of our opinion in this case, and the fact that he has misconstrued the meaning of certain expressions therein, as reflecting upon his own character and integrity, have induced us to again examine this case with care. We trust that this court has never been found lacking in courtesy ,to members of the bar, or going out of its way to cast imputations upon them. We do not see that our language in this case can bear such construction, and we certainly did not intend that it should in any way oast-reproach upon the counsel, whose character has always been considered by us as high and most honorable. Having said this much as due to the counsel himself, as well as to ourselves, we deem it necessary to notice more particularly than we have done certain points urged against our conclusions, to which we are by no means wedded through pride of opinion. It is, instead of a mortification, a pleasure for this court, when convinced of an error to correct it.

First: There can be no doubt of tile right of an administrator representing tho insolvent estate of one deceased to attack his acts as fraudulent or simulated to the end that his debts ma.y be paid. But such an action can not be maintained to defeat rights and titles- acquired in good faith by. third persons dealing with the party holding the fraudulent or simulated title. Fraud and simulation are causes of nullity only as between the parties to them. C. C.

We apprehend that a mortgage or deed of property made by one holding a fraudulent or simulated title thereto, in favor of an innocent third person for value can not be affected or defeated by the real owner or his creditors, whether the proof results from a counter letter, or otherwise. It would be subversive of elementary legal principles, and destructive of all certainty and security in the tenure of property, if the rights of third persons dealing bona fide upon the faith of public records could be thus defeated by secret agreements or private conduct, acts, or deductions of other persons.

If there was fraud and simulation between Tabary and Aymes, Car-ran was no party to it, and his rights can not be affected by it. If this be true, then the evidence of simulation between Tabary and Aymes was irrelevant and properly excluded, and, if admitted, could have no effect.

Second: In the case of L. H. Tabary, reported in 30 A. p. 187, we said that the debt due by Tabary to Carran was not novated in the sale to Aymes. Counsel contends that we, therefore, decided that Car-ran was not a creditor of Aymes! Was it necessary that there should be a novation before Aymes could be bound ? Did not Aymes expressly assume and agree to pay the debt due by Tabary to Carran ? ' Did not this make Aymes the debtor of Carran? What matters it that Carran did not release Tabary? Had he not the right to have two debtors in place of one? And was not that the effect and the only effect of the stipulation that there should be no novation ? Can not I bind myself for your debt without releasing you ? What, then, becomes of the counsel’s argument that because we said there was no novation, therefore, we held that Aymes was not bound for Carran’s debt? ■

Third : Counsel cites article 1809 C. C. to the effect that “ no lesion whatever, even in the case of minors, can invalidate judicial sales, etc.,” as authority against our decision that succession property sold at probate sale at first offering must bring its appraisement. We are at a loss to see what bearing that article has on this case. That article presupposes that the judicial sale has been made in the manner, and with the formalities prescribed by law. If so, then, it can not be attacked even by a minor for lesion. But the case before us is one where the formalities prescribed by law have not been fulfilled. The sale is attacked for want of compliance with them just as it could be if there had been no advertisement, or an insufficient one.

The Civil Code, articles 1860, , declares that if any of the formalities required by law for the sale of minors’ property have not been complied with it is hot necessary to even allege lesion to invalidate them. “Such contracts being void by law may be declared so * * * * without any other proof than that of the minority of .the party and the want of formality in the act.” Article 337, C. C., declares that the. minors’ property can not be sold for less than the appraisement in the inventory,” and if there is no offer of that amount it must again be offered, etc., until the appraisement is obtained, etc. Now, will the counsel maintain the proposition that the judicial sale of a minor’s property for, say one fourth of its inventoried value, can not be attacked because, forsooth, the law says “judicial sales” can not be annuled for lesion ? Is it not apparent that this would be confounding an action to annul for want of formality with an action to annul for lesion when there is no informality ?

We repeat, therefore, that the “judicial sales referred to in article 1869, as inattackable for lesion are those that have been made in pursuance of the formalities prescribed by law. The case before us is not of that sort.

The rehearing is refused.


source: Caselaw Access Project

author: Manning, C. J.

license: Public Domain

text:
    No. 7295.
    The State vs. F. P. Byrd.
    The correction of the minutes of court, so as to shew the prisoner’s presence at a trial, which had been declared null at his instance, and on his assignment as error the failure to mention his presence in the minutes, can have no effect upon the second trial. The final decree of this court, setting aside the verdict, and annulling the judgment thereon on the ground of his presence not appearing on the minutes, is conclusive as to the irregularity of that trial.
    When a judgment, l'endered upon a conviction, has been vacated because the minutes did not shew the defendant’s presence when the verdict was rendered, such verdict and judgment can not bo pleaded in defence on a subsequent trial, and do not sustain the plea of autrefois convict.

      A nolle prosequi, and the eonsequentdischarge of the prisoner, is not a bar to a subsequent indictment for the same offence; and where there are two counts, a nol. pros, of the first does not bar a prosecution on the second. So where, on an indictment for murder, the prisoner is convicted of manslaughter and a new trial is obtained, a nol. pros, maybe entered as to the charge of murder, and a new indictment be preferred for manslaughter.
    When, upon an indictment for murder, there is a conviction of manslaughter only, the verdict is in legal intendment an acquittal of murder, and is a bar to the further prosecution of the greater offence.
    When, upon an indictment for murder containing a single count, there has been a conviction of manslaughter, and the judgment thereon has been annulled on appeal for irregularities in the trial, the prisoner maybe subjected to another trial on the same indictment for manslaughter only, and the announcement of the prosecuting attorney, that a nol. pros, is entered as to the charge of murder with reservation of the right to proceed for manslaughter, means only that the jury cannot consider again the charge of murder, of which the prisoner has been by legal.inferenee acquitted, but only that for manslaughter as included in the charge of the major crime.
    ^PPEAL from the District Court for Bossier parish. Turner, J.
    The Attorney General, Thos. J. Fuller district attorney, and B. J. Looneij, for the State.

      J. D. Watkins for the defendant.
   The opinion of the court was delivered by

Manning, C. J.

The defendant was indicted for murder, was convicted of manslaughter, and on appeal from the judgment rendered thereon, which was heard last year at Monroe, it not appearing from the minutes that the prisoner was present in court at the rendition of the verdict, the case was remanded for further proceedings according to law.

When the case was again called in the lower court, the defendant offered witnesses to prove that he was present in court at the first trial, but the State objected on various grounds, one of which was, that the accused, having escaped punishment under the first judgment and sentence, by assigning as error that the minutes did not shew his presence, could not on the second trial prove the fact of his presence at the first trial.

It is difficult to perceive what effect the testimony was supposed to have, if it had been admitted. The minutes can be corrected so as to make them conform to the truth, but the verdict and judgment rendered on the first trial had been set aside and annulled by this court. The prisoner stood at the bar as it he had never been tried. The object of offering the testimony was doubtless "to shew that the first trial had been regular, but this court had already, at the instance of the accused, and upon his assigning as error the absence of any statement in the minutes of his presence, pronounced that trial irregular.

The State entered a nolle prosequi as to the charge of murder, reserving the right to try for manslaughter, and proceeded against the accused for the latter offence, of which he was again convicted, and sentenced to hard labour for twenty years, and to pay a fine of one thousand dollars.

A plea in bar was filed — that the prisoner had already been tried for the same offence. The plea is not good. The general principle, that one shall not twice be put in jeopardy for the same offence, is incorporated in all of our State constitutions, and in that of the United States, and is now universally recognised, but there are numerous refinements, and nice distinctions as to what is jeopardy. An eminent authority, discussing the effect of the plea of autrefois acquit or convict, as applicable to such a case as this, says — if the defendant is not present when the verdict is rendered, the judgment may be vacated, and it cannot be pleaded in defence on a subsequent trial. Wharton Crim. Law § 541 a. citing Andrews v. State, 2 Sneed, 550.

But when the indictment contains but one count, and that is for murder, and the State enters a nol. pros, as to that, can the prisoner be tried for manslaughter under that indictment ? This was the ground of the motion in arrest of judgment. It is well settled, that a nol. pros., and a consequent discharge of the prisoner, is not a ba'r to a future indictment for the same offence. Com. v. Wheeler, 2 Mass. 172. Lindsay v. Com. 2 Va. Cas. 345, Wortham v. Com. 5 Rand. 669. So where there are two or more counts, one for instance charging murder, and another charging manslaughter, a nol. pros, of the first will not bar a prosecution on the second or other count. Com. v. Briggs, 7 Pick. 177. Com. v. Tuck, 20 Pick. 364. So again, where on an indictment for murder the prisoner is convicted of manslaughter, and a new trial is obtained, the prosecuting attorney may enter a nol. pros, as to the charge of murder, and prefer a new indictment for manslaughter. State vs. Hornsby, 8 Rob. 583. But neither of these enunciations fit the present case. There was but one count, and there was no subsequent or new indictment, and the nol. pros, was as to the sole offence charged in the single count.

We have found but two cases where the ruling may be argued as applicable to the one now before us. It has been held in Tennessee, that where a party is charged with a felonious assault, and a nolle prosequi is entered as to the felony, it operates a discharge of the assault. In that case, the defendant was indicted for an assault with intent to commit murder. The Attorney General, with the assent of the court, entered a nol. pros, as to'the felony, and the accused was sentenced for the lesser offence. The court say — “ we are of opinion that the nolle prosequi discharged the defendant altogether from the accusation. There is but one count in the indictment, and that count charges a felonious assault. It 'is true, by the statute, the jury might have acquitted the defendant of the felony, and found him guilty of an assault only, but it does not follow that a nolle prosequi as to the felony can be entered, and the party still remain under the charge in the indictment for an assault. It is like'the case of a charge for murder,'when the party may be found guilty of manslaughter only; or .the charge for robbery when he may be found guilty of larceny. The charge of the greater offence includes the less, and the jury might find the party guilty of the less, and acquit him of the greater ; but if the charge for the greater be withdrawn, the charge for the less offence necessarily goes with it, because by the law the less offence is charged ; not because the words of the indictment are appropriate to charge the offence, but because in legal contemplation, the less offence is charged in an indictment for a greater; and hence, when the charge as it stands in the indictment is withdrawn, there is nothing left upon which to try the defendant. It will not do to say, that the charge, constituted by the words of the indictment, may be withdrawn, and the legal idea of the inferior offence may be retained, upon which to try the defendant. Take the indictment for murder, and let a nol. pros..for the murder be entered. Can this be done, and the legal idea of manslaughter remain as a charge upon which to put the party on liis trial? We think not. How shall he be arraigned, and to what shall he plead ? Not to an indictment for murder, because that is no longer in force against him ; and yet no indictment exists but the one charging him with murder, as the grand jury, in finding a true bill, necessarily find the inferior offence also. It would be competent, perhaps, for the Attorney General, with the assent of the court, to strike out the words that charge the malice and felony, leaving only such as would charge the inferior offence. But in that case, there would be a subsisting indictment, upon which the party might be arraigned and tried. It is supposed the course pursued is substantially the same thing. We do not think so.” Brittain v. State, 7 Humph, 159.

The other case is from New York. The indictment was for rape, and contained but one count. The court said ; — “ The entry on the record of a nolle prosequi is an act by which the prosecution declares it will proceed no further with the indictment, or with that part of it specified in the order. Its effect is to put the prisoner without day to such part, and if to the whole, entitles him to a discharge from arrest, unless held for re-indictment, as the entry does not operate as an acquittal. A nolle prosequi may be to the whole indictment, or to the whole of any one or more of several counts, but cannot be to a part of any one count; therefore when a nolle prosequi is entered to a part of an indictment containing a single count, it operates upon the whole indictment, and entitles the prisoner to liis discharge, unless held for further indictment.” People v. Porter, 4 Parker Crim. Rep. 524.

This case differs from both of those, in that there had been a previous trial on the charge of murder, and a conviction under it of manslaughter, which is a bar to a future prosecution for murder, because a conviction of the less offence is virtually, by way of estoppel, an acquittal of the greater, or stating it in another form, when the major and the minor offence are together before the jury, the defendant’s conviction of the minor offence is an acquittal of the major, and is a bar to further prosecution of the major. Wharton Crim. Law, g 550. ¡¡ 563. When therefore the State’s attorney entered a nol. pros, as to the charge of murder, he used a form of words not strictly accurate. The jury-had acquitted on that charge, and the State could no longer prosecute it because of that verdict. A nol. pros, was not to be entered as to a charge, of which there was already an acquittal. The prosecuting officer substantially recognised that the verdict of acquittal had eliminated from the indictment the charge of murder, when he announced that the prisoner could not again be tried for that crime, and as the indictment for murder contains by legal intendment, a charge of manslaughter, he virtually announced merely that he was proceeding for the minor offence, when he incorrectly said that he would enter a nol. pros, as to the major. It is on the theory that the charge of the greater crime includes the lesser, that modern statutes have expressly allowed the conviction of the lesser, although the indictment contain no words, apt to express such lesser crime. The court of Tennessee suggest that the prosecuting officer might strike out the words charging the malice and felony, leaving only such as would charge the inferior offence, as in that case there would be a subsisting indictment. In our case, the verdict of conviction of the lesser offence had estopped the State from proceeding for the greater, but it had not quashed the indictment, nor did it operate as a bar to a second prosecution for the lesser, the first trial having been decreed to be, in law, no trial thereof.

It may be well to mention, that when the prosecuting officer announced the nol. pros, as to murder, with reservation of the right to try for manslaughter, no objection appears to have been then made by the prisoner, but the trial proceeded, and the legal effect of the nol. pros. was urged in a motion of arrest. The entry of the nol. pros, was controlled and restricted by the reservation simultaneously made, and was really but a statement to the jury and the court that the prisoner was not put on trial for murder, of which he had been acquitted, but for manslaughter only.

Judgment affirmed.


text:
    No. 7391.
    The State vs. B. H. Lanier et al.
    Tho Auditor o£ tho State has no power to extend the time fixed by law tor the settlement of State tax collectors, who are defaulters from the mi ment they fail to make their settlements at the time fixed by law.
    No legal action taken by the Attorney General against a State tax collector, a month after the latter had become a defaulter for not paying funds of the State into the treasury, can make the collector a forced custodian of the funds.
    A tax collector in default.for not paying over State funds collected by him, and the sureties on his bond, are liable for the full amount of those funds subsequently lost through a robbery of the collector, when the evidence shows that the robbery could have been avoided by the exercise of ordinary care and diligence on his part.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J. Trial by j ury.

      H. K Ogden, Attorney General, Jas. C. Kgan, Assistant Attorney General, and H. B. Steele, district attorney, for plaintiff and appellant.

      W. G. Wyhj, J. M. Kennedy, and Montgomery & Deloney for defendant and appellee.
   The opinion of the court was delivered by

Manning, C. J.

This suit is instituted against Lanier, and the sureties on his bond as tax-collector for the parish of Carroll, to recover a balance of seventeen thousand five hundred and thirty-four 54-100 dollars, alleged to be due for taxes of 1875 and 1876, collected and not accounted for, with two per centum per month interest from December 20, 1876.

The defence is, that Lanier owed the State a balance of only about fifteen thousand dollars for the quarter ending December 31,1876, the settlement of which, it is admitted, should have been made on Dec. 20,1876, but owing to great difficulty in completing his collections, the tax collector procured from the Auditor of Public Accounts an extension of time to make his final settlement, which extension was granted toy the Auditor until January 10,1877,” at which time he came to New ■Orleans prepared to make it — that he found the city in-great excitement, •and two rival State governments installed, each claiming to be the legitimate government, one of which, styled by him ‘the Packard government,’ held the State House, in which were the Auditor’s and Treasurer’s offices and the government archives, while the other occupied 'Odd Fellows’ Hall, without any of the archives, and without a State Treasurer — that Allen Jumel qualified as Auditor under ‘ the Nicholls government’ about January 8, 1877, but in fact was not inducted into office then, and obtained possession of the office and of its books and archives only in April following, and that in the meantime one Johnson was the Auditor — that Lanier was in great doubt what to do with the public funds in his hands under these circumstances, but that he finally prevailed upon Johnson to permit him to make his settlement, and pay over the funds to A. Dubuclet, the State Treasurer, and as he was about to do this, he was injoined and prohibited from making the settlement with Johnson or payment to the Treasurer by a writ, issuing from the Fourth Court of New Orleans at the instance of Attorney General Ogden, and which was served on him on January 19,1877, and that he thus became the forced custodian of the funds in his hands, and a depositary of the same without reward — that about January 25 of same year, Lanier shipped twelve thousand dollars in U. S. currency by steamer Pargoud to Lake Providence in Carroll parish, where he resides, and also went there carrying with him the residue of the funds, and he thus transported the money because he was fearful it might be seized by one of the rival governments, if it should be left in New Orleans— that he remained in Carroll parish until about May 1st., when he started to New Orleans, funds in hand, for the purpose of making his final settlement with the only surviving government, and at Jackson. Miss., took passage in a sleeping-car, and went to bed with his vest on, in the inside pocket of which was the package containing the funds of the State, and during the night was robbed of the same — that on awaking in the morning, his vest had been cut in two large places immediately over the inside pocket, and the package was gone, whereupon he gave notice to the train conductor of the robbery, and asked that the train be stopped, or that a search be made for the money, which the conductor refused to do, and on arriving at New Orleans he informed the superintendent of the railroad of the robbery, and went to the Central Police Station and communicated the facts, and also informed the Attorney General and the Auditor thereof, and that, having used due diligence and care and prudence in keeping the money, he is not responsible for its loss.

The testimony of the defendant Lanier recites the occurrences in the order, and to the effect, set forth in the answer, and is corroborated to this extent by W. L. McMillen. He was a passenger in the same car with Lanier, who told him he had about thirteen thousand dollars, and was on his way to New Orleans to make his settlement, and he showed the witness a package which Lanier said contained the money, and which had the appearance of such a package. On going to bed, Lanier said to the witness he would keep his vest on, and on the following morning while witness was in the wash-room, Lanier came in exclaiming that he had been robbed, and exhibited his vest which was cut in two slits transversely over the pocket. Lanier was pallid, and looked disturbed, and seemed to realize the magnitude of the disaster. The application to the conductor of the car, and the notification of the police, are proved, and this witness states that at some time during the night, after leaving Jackson and before reaching Kenner, the conductor and the porter of the car were both asleep, leaving no one on watch.

There was other testimony which we do not deem it essential to recite. The case was tried by a jury, whose verdict was for the defendants.

The verdict is manifestly wrong. The suit is for over seventeen thousand five hundred dollars, and the certified transcript from the Auditor’s books shews the sum due to be the sum sued for. No attempt whatever was made on the trial to account for the difference between the sum alleged to have been stolen, and the sum due as shewn by the Auditor’s books. Lanier alleges in the opening of his answer that he really owed only about $15,000.00, and the argument of his counsel seeks only to account for that sum, which they do by assuming as proved that $13,800.00 was in the package, and $1,200.00 was in warrants which Lanier had received in payment of taxes. Grant everything that is thus claimed or proved, and there is a residue of $2,535.54 wholly unaccounted for.

The receipt of the steamer Pargoud shews that a package was sent as alleged, which was said to contain $12,000.00, and Mr. McMillen does not speak of the contents of the package, alleged to have been stolen, from personal knowledge, but only from the declarations of Lanier. No one swears to the contents of the package except Lanier. But assume the robbery proved.

It is contended that Lanier was the forced custodian of the funds of the State on and after January 19, 1877, the date of the sorvice of the injunction upon him. The fact seems to be lost sight of on both sides, that he was a defaulter on and after December 20,1876. The right of the State to her funds, collected by her tax-gatherer, was complete on that day, and his responsibility for the whole sum, appearing to be due by the Auditor’s books, attached then, subject of course to legal proof of having accounted for any part thereof, or of legal excuse for not accounting for any part, such as the exhibition of delinquent list, etc. It is gravely alleged in the answer, and as gravely argued, that the Auditor extended the time of settlement to January 10 following. From what source did the Auditor derive his authority to suspend the laws of the State? What law confers upon the Auditor the power to alter the provision of a statute touching the duty of a tax collector, and imposing penalties for its non-performance? Was it ever heard of, until within the last decade, that a civil officer of a State issued orders touching the conduqt of other civil officers,.whose duties were already-prescribed by law, and directed them to do, or excused them for not doing, an act after the fashion of military commanders ? The present Auditor did not publish the list of Delinquents last year at the time required by law because of the prevalence of the yellow fever, but so far from supposing that he could defer the performance of that duty at his pleasure, much less excuse others from performing theirs, he reported his non-action to the legislature, and that body passed a bill of relief in the shape of a resolution approving his course. Sess. Acts 1879, p. 34. The order or permission of the Auditor to a tax collector to refrain from doing what the law commands him to do by a given day, is nothing worth. Lanier was a defaulter on Dec. 20, 1876. No action of the Attorney General, a month afterwards, could make him a forced custodian of funds, for which his responsibility, and that of bis sureties, had already attached by express mandate of law. '

Leaving out of view this aspect of the question, and considering the liability of the defendants as dependent upon the use by Lanier of ordinary care and diligence, the case is against them. The evidence is, that the banks in New Orleans were receiving deposites, and transacting business in January 1877 as usual. There were numerous places where Lanier might have kept his funds safe. In April or May following when he was coming to New Orleans, the evidence shews that he could have obtained from the bank at Vicksburg bills on New Orleans. He chose to run the risk of keeping on his person funds for which the law made him and his sureties liable. But there is no pretence that the stolen •package contained more than $13,800.00, and beyond an amount of warrants, which Lanier says were for $1,500.00, and liis counsel says were $1,200.00 and which were not stolen, there is no attempt made to account for the ivsi lue,and it must be remembered that of all the persons whom Lanier tol 1 of his possession of this money, and to some of whom he shewed a package, which he said contained money, not one speaks of its contents from personal knowledge or inspection, or in any other way than that Lanier told them it contained money, and they do not agree in the sum it was said to contain.

P. F. Kendall is surety on the tax collector’s bond for sixteen thousand dollars, and Jules P. Lewis for four thousand dollars.

It is ordered, adjudged, and decreed that the verdict of the jury is set aside, and the judgment of the lower court thereon is avoided and reversed, and it is now decreed that the State of Louisiana have and recover of Benjami.n H. Lanier, the sum of seventeen thousand five hundred and thirty-four dollars and fifty four cents with interest at two per centum per month from December 20,1876 until paid, and that the State of Louisiana have and recover of Peter F. Kendall the sum of sixteen thousand dollars, and of Jules P. Lewis the sum of four thousand dollars, this judgment as between the mand Lanier to be in solido with him, and to be held satisfied by the payment by one or either or all of them of the full amount of the ju Igmcnt against Lanier, and that the State further have and recover of the defendants the costs of both courts.


author: DeBlanc, J. White, J.

text:
    No. 7266.
    W. W. Washburn, Administrator, vs. Simon Frank, Agent.
    The violation of the rules of this court in reference to the preparation of transcripts of appeal is no cause for the dismissal of the appeal.
    Where the clerk of the lower court certifies the completeness of the transcript the mere fact that it was compiled by one of the parties will not justify a dismissal of the appeal.
    Where it is not denied, it will be presumed that the motions for an appeal were applied for and granted in open court.
    An intervention which has nei'her been answered nor proved, must be dismissed.
    One who makes a contract of lease as agent of a company which has no existence, makes himself personally liable for the rent, when it appears from the evidence that lie was the real lessee, and that the business for which the lease was made was his business.
    A simulated sale of property subject to the lessor’s lien can not defeat that lien.
    Damages will be given for a frivolous appeal.
    ^PPEAL from the Third District Court, parish of Orleans. Monroe,

      Hornor & Benedict and W B. Lancaster for plaintiff and appellee.

      T. A. Barllette for defendant and appellant.

      T. J. Bartlette for intervenors and appellants.
    The opinion of the court on the motion to dismiss was delivered by DeBlanc, and on the merits by White, J.
   On Motion to Dismiss.

DeBlanc, J.

Plaintiff moves to dismiss this appeal on the grounds:

1. That the transcript was not prepared according to the rules adopted by this court.

2. That it was — as shown by the clerk’s certificate — compiled by defendant himself.

3. That it does not appear that the several motions for appeal copied in the record were made in open court.

I.

The violation of our rules — as regards the preparation of transcripts of appeal, is no cause- for the dismissal of the appeal; but were a transcript so irregular as to increase the already incessant labors of the judges of this court, we would not hesitate to return it to the clerk of the inferior tribunal, and compel him to prepare at his costs, and in accordance with our rules, another and a suitable one. In this case the transcript is as neat as well written, and — though the classification of the documents therein embraced is not as skilled asitmighthavebeen— it does not contain any trace of that recldess inattention which would justify its return to the clerk.

II.

The certificate of the clerk attests that the transcript is complete, and the fact that it was compiled by one of the parties to the suit, is assuredly not an objection which of itself is sufficient to authorize the dismissal of the appeal.

III.

The three motions made to obtain the appeal were a.11 made within the delay prescribed by law, and during the regular term of the court which rendered the judgment. Unless we presume that the judge did not do his duty, we are bound to presume — and we do — that the appeal was applied for and granted in open court. Had this fact been denied, we would have had to consider the motion to dismiss ; but it is not denied, and that motion is overruled.

On the Merits.

White, J.

On the 7th January, 1875, William Hal'ey, “actingas agent of Henry Bull, liis partner; now absent, and also for and on his own behalf,” leased to Simon Frank, agent of the Louisiana Match Manufacturing Company, composed of Leopold Frank and J. P. Purcell, certain real estate in this city for the sum of twenty-five dollars per month.

On the 21th April, 1875, Haley transferred all his right, title, and interest in the lease and leased premises to O. H. Washburn. On 24th April, 1875, Frank, agent for the Louisiana Match Manufacturing Company, acknowledged himself as the lessee of Washburn, upon the same terms as those contained in the lease from Haley. On the 23d of October, 1877, W. W. Washburn, administrator of 0. H. Washburn, sued Simon Frank, agent of the^ Louisiana Match Company, and the said company, for the sum of §!525, rent due. A provisional seizure issued, under which the sheriff took certain machinery, which was-stored in a warehouse and which had within fifteen days been removed from the leased premises. Frank answered by a general denial. Edward Adler intervened, and claimed the ownership of the things provisionally seized, averring himself to be the bona fide purchaser thereof. Henry C. Bull intervened, and claimed ownership of the leased premises and the lease, averring that his agent, Haley, had no authority to transfer. He prayed that the rent sued for be decreed to belong to him. The lower court gave judgment in favor of plaintiff and against Simon Frank individually, for the amount sued for, and dismissed the interventions of Bull and Adler. Frank, Bull, and Adler appealed. We will, to avoid confusion oE statement, consider the appeals separately:

1. The intervention of Bull was properly dismissed. It was never answered or put at issue, and no evidence was offered to sustain it.

2. Frank complains that he has been condemned personally, when he was sued only as agent. We think the judgment below correct. Frank made the lease as agent of the Louisiana Match Manufacturing Company, and was sued under the same designation taken by him in the lease. The proof entirely satisfies us that the company he assumed to represent was a myth and an awkwardly contrived fraud. Frank himself says the company was composed of Leopold Frank, his son, and one J. P. Bouchel. He adds: “ This company was formed about the time the lease from Haley * * *. There were only two men in the company. It was really a partnership. I don’t know where Mr. Bouchel lives. I have not seen him for more than a year. * * *. That partnership between Leopold Frank and P. Bouchel was dissolved about five months after it began. Then Leopold Frank continued the business by himself.”

Despite this testimony, he insists although he paid the rent after the concern had disappeared, if ever it had an existence, that he still continued its agent. His testimony is disingenuous, evasive, if not false. The proof satisfies us that he was the real lessee; that the business was his, the property his ; that he took the lease in the name of a fictitious person, probably as a preparation for the time when he would consider it expedient to dispose of the property, so as to leave the landlord without his pledge and without personal recourse. With this view, of course, the authorities quoted to the effect that an agent whoacts in the name of a disclosed principal cannot be held personally liable, are inapplicable. In such a ease the agent is a mere link or nudus minister uniting the minds of the contracting parties. Here we find but one party, and no principal, and therefore no room for doubt as to Frank’s personal liability.

3. Counsel for the intervenor Adler have urged upon us a careful examination of the record in order to satisfy our rninds that the removed machinery was really purchased by Adler. We have given the testimony the desired examination, and have concluded, that a no more patent fraud was ever presented to the eye of a court of justice. Adler professes to have bought from Leopold Prank, the son of Simon. His memory is pertinaciously lucid, in one particular only — that he bought and paid three thousand dollars cash. In all else, he is evasive, forgetful, and, we think, untruthful. He just dropped in and bought the machinery, and paid the three thousand dollars in thousand-dollar bills. To state the contradictions with which his testimony is replete would require, its reproduction.

The testimony establishes in our opinion that Simon Prank was the owner of the machinery, that he removed it to defeat and defraud the lessor, that after the pretended sale to Adler, Prank sold a part of it and exercised dominión over it, and that the sale, so called, to Adler was simulated and concocted with the object of defrauding. The appellee has filed answer praying the affirmance of the judgment with damages for frivolous appeal. We think they should be allowed ; at least against Adler and Prank.

It is therefore ordered that the judgment of the lower court be affirmed, with fiye per cent damages against Simon Prank, and a like amount against Edward Adler.

Rehearing refused.


author: Spencer, J. Manning, C. J.

text:
    No. 7393.
    N. O. Pacific Railway Co. vs. E. H. Gay, Tutor.
    Where in a suit brought by a railroad corporation against the owner of land for the expropriation of a right of way the plaintiff claims under existing laws the full ownership of the land, and the defendant does not by his answer deny the right of full ownership, but merely disputes the amount of land claimed, a judgment may be properly renderod recognizing the title in fee claimed by plaintiff.
    On matters of fact, this court will not disturb the finding of a jury unless it is manifestly erroneous.
    In determining the amount of damage an owner of land suffers by an expropriation of a part of it in favor of a railroad company the enhanced value of the balance of the land, caused by the building of the railroad, should be allowed as an offset to the damages.
    Where an owner of land, a part of which has been expropriated, appeals from the verdict of the jury and judgment of court fixing the terms of the expropriation, he must, if the judgment is affirmed, pay the costs of the appeal.
    A PPEAL from the Pifth Judicial District Court, parish of Iberville. MoVea, J. Trial by jury.

      Kennard, Howe & Prentiss for plaintiff and appellee.

      Geo. Wailes and Barrote & Pope for defendant, and appellant.
    The opinion of the court on the original hearing was delivered by Spencer, J., and on the rehearing by Manning, 0. J.
   Spencer, J.

By its charter the plaintiff company is given perpetual succession and is authorized to expropriate lands for its uses in the manner provided for by existing laws. Section 1479, R. S., provides for the form of the petition in a suit for expropriation, and directs that it conclude with a prayer that the land be adjudged to the corporation, upon payment to the owner of all such damages as shall be caused him by the expropriation.

Section 1481 provides that the jury shall by its verdict determine “ what is the value of the land described in the petition, etc., and what damages, if any, the owner would sustain in addition to the loss of the land by expropriation.”

Section 1483 provides that upon payment of the amount awarded, etc., the corporation shall be entitled “to the right, title, and estate of the owner” in the lands “in the same manner as a voluntary conveyance” would give it.

Section 1485 authorizes the owner by “a special plea” to dispute “ the extent of the land ” to be purchased by the corporation.

Section 1482 requires the jury to take as the basis of assessment “the true value which the land possessed before the contemplated improvement was proposed, and without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.”

Proceeding under these laws, the plaintiff seeks to expropriate in full ownership a strip of land 150 feet wide across the defendant’s “Augusta Plantation,” with an area of 13 7-100 acres.

The answer is a general denial and a special plea that fifty feet in width would suffice for plaintiff’s needs.

The case was tried by a j ury of freeholders, who after trial rendered a verdict as follows :

“We find for plaintiff — right of way one hundred and fifty feet wide through Augusta Plantation and title to the same. We find for defendant-thirty dollars per acre, for land, say 13 7-100 acres as represented on map; seventy-five dollars per acre for two acres of cane destroyed by railroad company ; twenty-five dollars for cane destroyed on headlands by railroad company; twenty-four dollars for corn destroyed by the railroad company; two hundred and fifty dollars damages for drainage.”

The court upon this verdict adjudged the land to plaintiff in fee, upon condition of its paying the amount awarded to defendant as the price and damages.

Defendant appeals. He contends :

1st. That under the terms of the verdict the judgment should only have awarded “ a right of way,” and not the fee or full ownership. The verdict evidently gives plaintiff the fee. The words “and title to the same,” construed by. the pleadings and in connection with the balance of the verdict giving defendant “ thirty dollars per acre for the land,” leave no doubt of this.

There can be no doubt of the right of the plaintiff (especially in the absence of proof that the fee is unnecessary) to have the land adjudicated in full ownership. Our statutes seem to contemplate nothing less, and their constitutionality is not questioned by defendant. We think that the legal presumption is that the full oionership is necessary to a corporation having perpetual existence, and -that if it is not necessary, the onus of showing it is on the defendant, who should specially plead it. Our statutes on this subject are special, and are not to be controlled by common-law rules where no such statutes exist, or where they are silent as to the nature and extent of the title to be expropriated.

Besides, the question as to the necessities of the road in this regard was one of fact, upon which we would hesitate to disturb the verdict of an intelligent jury of freeholders, as this was. The fact that the corporation, after expropriation, may so use or misuse the property taken as to injure the person from whom it has been wrested, is a very fit subject for legislative consideration, and some remedy ought to be provided. But it is the duty of this court to administer the law as it is, and not as it ought to be.

The 2d, 3d, and 4th points made by the defendant relate to the quantity of land needed by the plaintiff, to its value, and to the value of cane and corn destroyed. The evidence on these questions of fact is somewhat conflicting, and we can not say the jury manifestly erred. In the nature of things, a fair jury of intelligent freeholders, from the vicinage, ought to be as good judges of such facts as this court. We shall not disturb their finding.

5th. The judge a quo was asked by defendant to charge the jury that as offset to the damages claimed by defendant it was not competent for plaintiff to show general benefits resulting from the building of the road common to all persons who own property in the vicinity. The court in lieu of the desired charge instructed the jury that the damages beyond the value of the land taken “could be offset by the enhanced value of the land not sought to be expropriated, although ofher lands in the vicinity might be equally enhanced in value by said road.” “ That the jury had the right to set off such damages by the advantages and benefits to the owner derived from the projected railroad and the enhanced value of the property by reason of the public improvement.”

We think the charge given by the court is substantially right, and sustained by authority. Railroad vs. Lagarde, 10 A. 150 ; Railroad vs. Calderwood, 15 A. 481. The true question for the jury was, to what amount would the Augusta Plantation be enhanced in value by the building of plaintiff’s railroad? The amount of that enhancement could 'be set off against any damages which that plantation suffered by the building of the road. The purpose of the law is to save the owner from •any loss resulting to the particular premises invaded. If the owner derives an advantage on one hand equal to the loss he sustains on the other what grounds has he for damages ? We do not see that the proposition •cited from Cooley, p. 569, to the effect that benefits which the owner receives in common with the community at large, in consequence of Ms ■•ownership of other property,” militates against this view. Advantages derived by defendants as owners of other property than- the Augusta Plantation obviously could not be offset to the damages done that plantation. We understand this to be the extent of the rule laid down by Cooley.

We see no reason to disturb the verdict and judgment appealed from, and they are affirmed at costs of appellant.

On Rehearing.

Manning, C. J.

Two points have been 'considered on rehearing ; 1. Whether the Railway Company should have the land in full ownership, 2. Whether the plaintiff, under the statute, should not pay the costs of appeal, as well as those of the anterior proceedings.

The claim, set up in the petition, was of the land in full ownership, and the plaintiff prayed an assessment of its value and the estimation of damages. The defendant specially pleaded that the quantity of land claimed (150 feet in width) was greater than is required for the Company’s purposes, and that fifty feet was sufficient, and the prayer was that the demand for a greater width be rejected. The lower judge •seized the point at issue with his usual intelligence, and directed the jury that, under the special plea, they could determine whether the quantity ■of land claimed exceeds what is reasonably necessary for the purposes of the Company.

The pleadings do not therefore present the issue, whether the Company is entitled to the fee in the land; or rather, it is not disputed by ■the pleadings that the plaintiff is entitled to the fee. The plaintiff ’Claims it. The defendant does not contest the right to it — on the contrary, in his printed argument does “ not contend that the fee cannot .■be taken ” — but seeks only to restrict it to a smaller quantity of land.

We therefore rest our affirmahce of the judgment of the lower court upon this feature in the pleadings in this case, and upon the admission of the defendant in his brief here, reserving for the future the question whether a Railway would be entitled, as a matter of right under the statute, to the full ownership of the land in perpetuity, whenever such right is contested and is made a distinct issue in the pleadings.

We rightly decreed the costs of appeal to be paid by the defendant. The statute requires the costs of legal proceedings for expropriations to be paid by the party seeking them, but it does not follow that it should also pay the costs of an appeal, taken by the owner of property, which on examination is found not to have been well taken. In such case, the costs of appeal follow the general rule.

We shall not disturb our former decree, and it is accordingly so ordered.


author: White, J.

text:
    No. 7258.
    Widow Mary Harvey vs. Nelson, Lanphier & Co. and R. H. Short.
    A waiver of protest by the indorsers of a promissory note includes a waiver of demand.
    ^PPEAL from the Fourth District Court, parish of Orleans. Houston¡

    <?. L. Hall for plaintiff and appellee.

      Iiiehard Shackelford for Short, defendant and appellant.
   The opinion of the court was delivered by

White, J.

The defendants are sued as indorsers of two promissory notes, one for two thousand and the other for two thousand five hundred dollars, both dated Memphis, Tenn., April 15th, 1873, and payable respectively on the 12th and 15th January following their date. The firm of Nelson, Lanphier & Co. filed no answer, and judgment by defaultwas rendered and confirmed against it. R. H. Short defends, on the ground of want of due demand. There was judgment against him in the lower court, and he appeals. The notes contain the following agreement or consent written on them : “ On this note we hereby waive the necessity of either protest or notice. (Signed.) Nelson, Lanphier & Co., R. H. Short.” The position of defendant is, that a waiver of protest is not a waiver of demand, and that no demand having been made he is discharged. The fact as to no demand is conceded, and therefore the question to be determined is solely one of law, that is, does a waiver of protest waive demand? We can see no reason why it should not. The protest neoessarily includes a due demand; and if such be the case the waiver of protest of necessity waived that which was an integral or essential part of the protest. It being true to say that the demand is contained in the protest, it must be equally true to conclude that the waiver of protest waives the demand which is included in it. This conclusion is abundantly supported by authority. The rule is thus stated by Daniels : “ So, ‘ waiving demand and notice,’ or ‘I waive protest and notice,’ * * * * though somewhat variant in expression have the same significance, a waiver of all steps usually taken to bind the indorser. * * * The words ‘I waive protest,’or‘waiving protest,’or any similar phrase importing that the protest is waived, are, when applied to a foreign bill, universally regarded as expressly waiving presentment and notice. * * In waiving protest the party is considered as not only dispensing with a formality, but as dispensing with the necessity of the steps which must precede it, and of which it is merely the formal though necessary proof which the law requires.” In speaking of inland bills, he adds : “Inland bills and promissory notes may be protested by statutory enactment in many States, and the protest is accorded the same effect as to them when it is made, though it is not necessary to make it. And the weight as well as the number of authorities predominate in favor of construing a waiver of protest to signify as much when applied to inland bills and notes as when used in respect to a foreign bill. And such seems to us clearly the correct conclusion.” Daniel on Negotiable Instruments, vol. ii. pp. 124,125 ; Parsons on Bills and Notes, pp. 576, 577, 578. These views of the text-writers are the expression of the law as applied in many adjudicated cases.

Porter vs. Kemball, 53 Barb. 646.

Fisher vs. Price, 37 Ala. 407.

Jacard vs. Anderson, 37 Mo. 91.

Carpenter vs. Reynolds, 42 Miss. 807.

McIlvaine vs. Brady, 1 (Desney) Ohio.

Gordon vs. Montgomery, 19 Indiana 110.

Carson vs. Russell, 26 Texas 452.

In fact, we have been able to find no authority saying that a waiver of protest does not of necessity waive demand.' Our jurisprudence has long since given a narrower construction to the waiver of protest than that given in most of the books, by concluding that such a waiver does not per se waive notice of protest.

Wall vs. Bry, 1 A. 312.

Bird vs. Le Blanc, 6 A. 470.

Wilkins vs. Gillis & Ferguson, 20 A. 538.

While we adhere to this now settled rule of commercial law we consider that the authorities by which it was established by strong implication say that the waiver of protest is a waiver of demand. In fact, in the leading and well-considered case of Wall vs. Bry the matter was so determined. This Court then said: “The term regularly protested fair'y imports a protest made upon due demand. Does it go further, and dispense with notice ? The party waives protest, and is certainly to be held to be as fully bound as if the notes had been duly protested.” And after drawing the distinction between protest and notice, said that in consequence of the waiver of protest “the plaintiff when he offered this agreement in evidence stood in the same position as if he had offered a notarial protest, and nothing more.” These views dispose of the case.

Judgment affirmed.

Rehearing refused.


text:
    No. 7246.
    Mrs. M. A. Laloire vs. P. S. Wiltz. Bush & Levert, Intervenors.
    This court can not .entertain a demand for relief made by intervenors who have not appealed from the judgment rendered against them by the lower court.
    Where a factor claiming a right of pledge on certain property sues out an injunction to prevent a j udgment creditor, who has seized tho property, from selling it, and tho two creditors enter into an agreement that the factor shall take and sell the property, and after paying out of its proceeds certain expenses hold the balance subject to the decision of the court on tho claims of the parties, tho judgment creditor can not complain because the lower court did not in its decision pass on the right of tho factor to issue tho injunction, and the claim for damages for the illegal issuance thereof.
    Where the planter or farmer pledges his growing crop to his factor under the act of 1874, and the contract of pledge is duly recorded the factor will have a right of pledge and privilege on tho crop superior to tho lion acauired by seizure under ajft. fa. of an ordinary judgment creditor. The factor’s pledge covers not only the money and goods advanced by him, and proved to have been actually used in making the crop, but also all advances of money and necessary supplies that may be required by the planter, unless it bo shown that the factor knowingly advanced money or supplies for othor purposes than making the crop.
    Payment by the factor of the wages due the laborers on the plantation, and obtaining a subrogation to their rights, docs not exclude the factor from claiming the sum thus paid as an advance embraced by tho recorded contract of pledge between him and the planter.
    Money advanced by a factor to pay for the necessary mechanical labor to put the sugar-house and machinery in the condition to produce sugar is covered by the factor’s lien under the statute of 1874.
    A PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Edward Phillips for defendant and appellant.

      Breaux, Fenner & Hall for Bush & Levert, intervenors and appellees.

      Bentinck Egan for other intervenors.
   The opinion of the coui t was delivered by

White, J.

The plaintiff., a judgment creditor of the defendants, seized under execution certain sugar and molasses, as well as other property situate or found on the Alice plantation, parish of St. Charles. Bush & Levert, by way of third opposition, enjoined the further execution of the writ, on the ground that the defendants were indebted to them in the sum of 359979 77, with interest from various dates, along with ten per cent attorneys’ fees, with brokerage and commissions. That the indebtedness, resulted from advances made by them as factors, which advances were secured by a contract of privilege and pledge, under the act of 1874 (Acts of 1874, page 114). That as pledgees of the crop they were in constructive legal possession thereof, the seizure being consequently a violation of their rights. The plaintiff joined issue, denying the right to the injunction, and prayed for its dissolution with damages. Subsequently, an agreement was entered into between the parties, to which we shall hereafter advert, by which Bush & Levert sold the entire crop, obligating themselves to retain in their hands a sum equal to the amount of Mrs. Laloire’s claim. Various creditors claiming rights on the crop intervened, and sundry creditors who had intervened in the suit of Citizens’ Bank vs. Wiltz, pending in the district court, parish of St. Charles, and lately decided by us, transferred by consent their claims to this suit. The whole were tried below, and one judgment rendered, dismissing the intervenors, and as between Mrs. Laloire and Bush & Levert, decreeing the latter entitled to the proceeds of the crop by them sold. Mrs. Laloire alone appealed. In this court, the intervenors whose claims were dismissed below, and who did not appeal, have filed answers to the appeal praying the reversal of the judgment, and for a decree recognizing their rights. We will consider the intervenors’ pretensions before determining the controversy between Bush & Levert and Mrs. Laloire.

1. The intervenors are manifestly without the pale of relief; although their interventions were dismissed by the lower court, they did not appeal, and, therefore, can not complain. The only appellant before us is Mrs. Laloire, who seeks to reverse the judgment below, which was in favor of Bush & Levert, who are appellees, and it is a settled rule of practice that the prayer of one appellee to amend a judgment as to the others can not be entertained. Deblanc vs. Levasseur, 26 A. 542. Williams vs. Le Blanc, 14 A., 758. Tegart vs. McCaleb, 10 A. 290.

2. Mrs. Laloire complains on two grounds. First: That the lower court treated the parties as in concurso simply determining their rights to the fund; consequently not passing on the right of Bush & Levert to the injunction, or her prayer for damages consequent on the claimed illegal issuance thereof. Second: Because the claim of Bush & Levert was improperly allowed. We think neither complaint founded.

First: After the injunction issued, and after Mrs. Laloire had answered in the manner already stated, the following agreement was entered into:

“It is hereby agreed that the entire lot of sugar and molasses seized, by virtue of an alias writ of fi. fa. issued in the above entitled case, by the sheriff of the parish of St. diaries shall be shipped to Messrs. Bush & Levert, of New Orleans, to be by them sold in the usual way, the wages for talcing off and making the said sugar and molasses to be paid out of the proceeds of sale thereof, and the balance, or an amount sufficient to pay the claim of plaintiff, to be held by said Bush & Levert, subject to the final decision of the controversy in the above entitled case, it being the true intent and meaning of all parties that the rights of every one shall be unaffected by this agreement.”

The very issue presented by the injunction was the right of Bush & Levert to reduce the crop to money, without regard to the seizure, their pretension being that the lien of the factor entitled them to sell, leaving creditors the faculty of exercising their rights on the proceeds. Whether such pretension was correct, is a matter which we are not called upon to decide, as the parties have consented to the sale of the crop by Bush & Levert, and to the retention by them of the proceeds. True, the agreement reserved the rights of the parties, but the reservation can not be considered as denying the very right which it expressly gave. We consider the consent as permitting Bush & Levert to sell, their power to retain as their own the balance held under the consent, being made to. depend on the establishing by Mrs. Laloire of a better right than theirs. This view is a response to the complaint, that the in j unction suit contained no prayer for personal judgment. The crop not seized by Mrs. Laloire on the twentieth of December, was seized on the twenty-fourth of the same month, subject, however, to a previous seizure made by the Citizens’ Bank as mortgaged creditors, under which the plantation was sold; under such circumstances, we do not consider the present case a suitable one for damages, even if the claim therefor was not waived by the agreement.

Second: We thiDk Bush & Levert have satisfactorily shown the sum of one thousand three hundred and sixty-four dollars and fifty cents ($1364 50) due for advances after the application of the entire proceeds of the crop. Wiltz testifies as to the correctness of the account, and says the amount was really advanced in money or supplies for carrying on the planting operations of the year. The account is generally attacked on the ground, that the proof does not adequately establish the necessary nature of the supplies. It is said that the showing of such necessity is an essential element of proof to create the privilege. Such was undoubtedly the rule under C. 0. 3217, which in terms gave the privilege, “for money actually advanced and used for the purchase of necessary supplies, and the payment of necessary expenses for any farm or plantation.” But the act of 1874 has made an important modification of our law on this subject. It provides: “ That 'in addition to the privilege now conferred by law, any planter or farmer may pledge or pawn his growing crop of cotton, sugar, or other agricultural products, for advances in money, goods, and necessary supplies that he may require for the production of the same.” Acts 1874, p. 114. It is as plain as words can make it that the privilege which formerly was made to depend not only on the advance of the money but also for its actual use for necessary puposes, is now caused to result from the advance of the money, goods, and necessary supplies that may be required by the planter. The old law having been so modified, and Bush & Levert having'made and recorded their contract of pledge, under the terms of the act of 1874, and having shown the actual advance of the money, goods, and necessary supplies, were entitled to their pledge under the act of 1874; at all events, until their prima facie case was destroyed by proof that they had knowingly advanced the money or supplies for other than the purposes allowed by the act of 1874. Besides this general objection, the account is attacked as follows :

1. Objection is made to §2368 08 paid by Bush & Levert to the laborers, because at the time of the payment Bush & Levert took a subrogation. It is said, they did not advance the money, but bought up the claims ; that they only recorded their subrogation after plaintiff’s seizure, hence the claim of the laborers, which had not been otherwise recorded, is primed by plaintiff. The contract of Bush & Levert was recorded long prior to the seizure, and the payment by subrogation rendered the money used for that purpose none the less an advance. Besides, the consent expressly authorized the payment of the laborers.

2. Objection to §340 26, paid two engineers. This is we think answered by the ruling expressed on the previous one.

3. Item of §2514 39, paid Lambert for coal. Objected to because not a necessary supply, and because not subrogated to Lambert’s right. Coal is a necessary supply for making a sugar crop ; that such is the case is made evident by the fact that the coal left after taking off the crop is valued at $12, and claimed herein by plaintiff.

4. 5, and 6. These objections are all answered by the opinion we have expressed as to the effect of the act of 1874. In addition to these items of the account, it is said that the sums paid for laborers, brick masons, and others, for repairing the sugar-mill, and money advanced Wiltz for that purpose, give no privilege, because the law has given a privilege to the mechanic on the thing repaired, and there can not be two privileges for the one claim. That, besides,, no privilege results to ■the factor for money advanced for these purposes, because not requisite for the production of the crop. The mechanic has a privilege, it is true, but because the payment by the factor creates a privilege in his favor, there are not two privileges for one debt, for the moment the factor pays, the debt of the mechanic ceases to exist, and the advance of the factor gives rise to his privilege. While the act of 1874 gives the factors privilege for money advanced for the production of the crop, we understand that such term is intended to convey production to a marketable state, and it is difficult to comprehend how advances to pay the neoessary mechanical labor to put the machinery in the condition to produce sugar do not come within the grasp of the statute. This reasoning answers the complaint as to the payments made in rebuilding or repairing the purgery which was blown down in the month of September. The coal claimed was seized on the plantation after the seizure by the bank, which issued from the district court of St. Charles. It was sold by the bank along with the plantation. It formed no part of the crop, and is not before us for distribution. The items for money paid Wiltz after the seizure we think are properly objected to under the evidence or, rather, want of it in the record, but as striking them from the account would leave Bush & Levert a balance due them, we can see no reason so to do.

We think the judgment below, so far as before us, did justice between the parties. It is affirmed.

Mr. Justice DeBlanc takes no part in the decision of this cause.