author: Breaux, J.

text:
    No. 11,273.
    The State of Louisiana vs. Robert Hagan.
    Without a bill of exceptions, although the ruling and the evidence adduced ap - pear upon the face of the record paper, the refusal of a new trial by the court is not properly before the appellate court for review.
    Orders to [separate witnesses, and their enforcement are generally addressed to the sound discretion of the lower court.
    Mayhem Implies a permanent injury or crippling.
    Less than mayhem, denounced as a crime, under Act 17 of 1888, has as clear and definite a meaning as mayhem, indicating the acts which are made punishable.
    APPEAL from the Fourth District Court, Parish of Grant. Ware J.

      M. J. Gunningham, Attorney General, and B. E. Milling, District Attorney, for the State, Appellee.

      W. O. Roberts for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted under Act 17 of 1888, amending Sec. 794, for (with a certain dangerous weapon, to-wit: a razor) wilfully, feloniously and maliciously inflicting a wound less than mayhem.

He was found guilty and sentenced to imprisonment at hard labor for six months.

After an ineffectual attempt to obtain a new trial and to arrest the judgment, he prosecutes this appeal.

His counsel moved for a new trial, upon the following grounds:

That an order issued by the court to separate the witnesses for the State and those for the defendant, during the trial, had been violated by one of the witnesses who remained in the court room, heard part of the testimony and informed two of the witnesses, prior to their examination, as to what had been testified to by the witnesses he had heard in court.

Testimony was admitted over the objections of the prosecuting ■officer, offered for the purpose of proving the allegations of the defendant in his motion for a new trial.

After having heard the testimony the court overruled the motion.

To this ruling the defendant did not reserve any bill of exceptions.

In other words, the evidence upon which the motion for a new trial was denied by the court below and the motion for a new trial are not brought up by bill of exceptions.

In the absence of such a bill this court will not review the action •of the trial court on a motion for a new trial in a criminal prosecution. State of Louisiana vs. Isaac Williams, 35 An. 742; State of Louisiana vs. Richard Comstock, 36 An. 309; State of Louisiana vs. Vincent, 36 An. 771; State of Louisiana vs. Jackson, 37 An. 467; State of Louisiana vs. Walker, 37 An. 560; State of Louisiana vs. Wire, 38 An. 684; State of Louisiana vs. Darrow, 39 An. 677.

Moreover, although not accompanied by the required bill of exceptions, we have given due consideration to the motion for a new trial, and to the testimony admitted, at the instance of accused, to prove the improper conduct of a witness, and the alleged error in ■overruling the motion for the new trial, and the consequent injury to the defendant.

The discretion of the lower judge does not seem to have been improperly exercised.

If the trial judge holds that the presence, during a short time, of a witness in court who may or who may not have informed other witnesses of the testimony he has heard was not prejudicial to the accused, the ruling does not present a question subject to review.

The order to separate the witnesses should be rarely withheld, but •“ the accused is not entitled to it as a matter of right.”

“ The right of excluding witnesses for disobedience to the order, though well established, is seldom exercised in America, but the witness is punishable for contempt.” Grenleaf, Yol. I, Sec. 432.

“ The better opinion, however, seems to be that this is not demandable ex debito justitim.” Best’s Principles of Ev., p. 621.

“In such case it seems if a witness remain in court in violation of the order, it is in the discretion of the judge whether or not he shall be examined.” State vs. Gore, 15 An. 80.

It is a question addressed to the sound discretion of the lower court. State vs. Revells, 34 An. 381; State vs. Watson, 36 An. 148; State vs. Cole et al., 38 An. 845.

It is urged in arrest of judgment that a statutory offence, though resembling and nearly related to a common law offence, should be defined by the statute which denounces it, and that a prosecution could not lie under a statute which attempts to create, but does not define, a statutory offence.

The facts constituting the offence are set forth in the indictment with sufficient precision and particularity.

The offence (was declared in the act of 1858, and incorporated in the Revised Statutes of 1870, as Sec. 794.

The law-making power by Act 17 of 1888 amended and re-enacted that section by a slight change as to the penalty, and adding the words wilfully and maliciously as element of the offence.

The crime of inflicting a wound less than mayhem was denounced in the 5th section of the act of February 12 of 1849. This act was subsequently amended and changed in some respects.

The jurisprudence of the State has always, since |that date, considered that offence as distinctive, substantive and sufficiently defined.

Such is the tendency of the cases: State vs. Jacob, 10 An. 141; State vs. Ellis, 12 An. 390; State vs. Keogh, 13 An. 243; State vs. Taylor, 35 An. 836.

It is an offence in the interpretation of which nothing is left to the mere discretion of the judiciary.

Mayhem at common law consists in bodily harm to another person such as to render him less able to defend himself or to annoy his adversary, as distinguished from one which merely disfigures or does not disable.

At common law the latter is denounced and defined as an assault and battery — i. e., an assault and battery in which a wound less than mayhem is inflicted is denounced and a punishment provided.

In Louisiana certain wounds less than mayhem are separately classed — that is, assault and battery of an aggravated character, re - suiting in a wound less than mayhem, is denounced by the act under which the prosecution in this case was instituted.

The case of the State vs. Gaster, ante, p.-, is relied upon by the defendant, in which we decided that the crime for which the defendant was prosecuted in that case was not denounced and defined by the statute relating to “ any misdemeanor in the execution of their respective offices.”

In the section of the statutes interpreted in State vs. Gaster it was attempted to denounce a crime by reference to a generic term.

It would have comprehended every crime in office less than felony, without precision or definition.

It would have included a number of different acts.

It would have created a sea of uncertainty as to all acts less than felony.

We therefore held: “But language of such wide and indefinite import as to leave absolutely uncertain what acts are -within and what without the statutory prohibition, can not operate as a valid criminal statute.”

In the case at bar the legislative intent is clearly expressed!

The essentials of the crime are set forth in the indictment and the defendant was amply informed of the charge he was called upon to answer.

We therefore maintain the order of the district judge, refusing a new trial, and overruling the motion in arrest, and decree that the judgment appealed from be affirmed.


source: Caselaw Access Project

author: MoEnery, J,

license: Public Domain

text:
    No. 11,271.
    The State of Louisiana vs. Elias A. Harris.
    The overt act or hostile demonstration of the deceased against the accused must be proved before the introduction in evidence of communicated threats.
    The trial judge is clothed with discretion to determine whether a hostile demonstration had been made by deceased against accused.
    The tendency of recent adjudications is to extend, rather than to narrow, the scope of the introduction of evidence as part of the res gestee. As ageneral rule, when it is necessary to inquire into the general nature of the act committed, or the intention of tlie party who did the act, proof of ^hat the person, said at the time of doing it is admissible evidence as part of the res gesta, for the purpose of showing its true character. The general rule is that the declaration, sought to be proved must be contemporaneous with the event sought to be proved as the principal fact; but when there are connecting circumstances they may, even when made some time afterward, form a part of the whole res gesta.

    An act can not be varied, qualified, or explained by a declaration which amounts to no more than a mere narative of a past transaction, nor by an isolated conversation, nor by an isolated act done at a later period.
    On a difficulty which resulted in a homicide and in the conflict the ear of the deceased was bitten or torn off by the accused, it is admissible evidence to prove the finding of the severed ear on the ground where the conflict took place fifteen or twenty minutes thereafter, and the acts and declarations of the accused in relation thereto, when the severed ear was pointed out to him on the ground, are also admissible.
    APPEAL from the Fourth District Court, Parish of Grant. Ware, J.

      M. J. Cunningham, Attorney General, and R. E. Milling, District Attorney, for the State, Appellee.

      R. P. Hunter for Defendant and Appellant.
   The opinion of the court was delivered by

MoEnery, J,

The accused was indicted for murder and convicted of manslaughter and sentenced to hard labor. He appealed.

There are several bills of exceptions in the record.

No. 1 contains a variance of statement of facts between counsel and trial judge. On the repeated rulings of this court, we accept the latter’s statement. It completely destroys the effect of the bill. The statement also shows that the district attorney withdrew his objection to the introduction of proof, without first showing an overt act on part of deceased, of threats communicated to the accused.

The second bill is as follows:

"When the State had offered the testimony of the witnesses Walter Neal and Fleet Tillman to show that after the difficulty between accused and deceased had occurred, and after the deceased had gone home, some two hundred yards, Fleet Tillman, the son of the deceased, returned to the house of accused to get his father’s cap and a piece of the ear of said Tillman, deceased, which in the scuffle subsequent to the firing of the shot had been bitten or torn off by the accused, and that the accused had kicked the cap toward the boy and told him to get out of his yard, and that on the discovery by the boy of the piece of ear lying on the ground, the accused had put his foot on it and stamped it. Oounsel for accused objected to the introduction of said evidence as not constituting a part of the res gestee, that the subsequent acts of the accused, away from and out of the presence of the deceased, and fifteen or twenty minutes after the difficulty was over, could not be connected with the difficulty itself in any way and that such proof could only be offered to prejudice the minds of the jury against the accused, and draw their minds away from the facts of the homicide, which objections were overruled by the court and the testimony admitted for the following reasons, viz.: the evidence shows that the only means Tillman had to prevent accused from shooting him again was to close with him, and in the scuffle that ensued the ear or a portion of the ear of the deceased was bitten off. The facts detailed in defendant’s bill occurred so shortly after the shooting by accused as to constitute them a part of the res gestee and are also admissible to show the feelings of the accused at the time of his attack upon the deceased.”

The tendency of recent adjudications is to extend rather than to narrow the scope of the introduction of evidence as part of the res gestee. As a general rule, when it is necessary to inquire into the general nature of the act committed, or the intention of the party who did the act, proof of what the person said at the time of doing it is admissible evidence as part of the res gestee, for the purpose of showing its true character. The general rule also is that the declaration sought to be proved must be contemporaneous with the event sought to be proved as the principal act; but when there are connecting circumstances they may, even when made some time afterward, form a part of the whole res gestee. 8 Wallace, 397; 55 Penn. 402; 57 Mo. 93; 34 American Reports, 479; 38 An. 459, 949; 44 An. 958.

Mr. Taylor, in the Law of Evidence, gives the fourth rule for the test of the admissibility of such evidence, as follows:

“That an act can not be varied, qualified, or explained by a declaration which amounts to no more than a mere narration of a past transaction, nor by an isolated conversation, nor by an isolated act done at a later period.” Taylor on Evidence, paragraph 523,

The trial judge’s statement is that the ear had been severed in the fight, and that this fact had been proved.

The finding of a piece of the ear on the ground, immediately after the difficulty, was a fact competent to be proved, to show the fact of the severance of the ear, and the wounds inflicted upon the deceased. The act of stamping upon the ear, and the refusal to give it to the boy, was a fact contemporaneous with the discovery of the ear, and inseparable from the narration of its discovery by the boy. The refusal to let the boy have the piece of ear was also competent and admissible evidence to prove that the accused endeavored to suppress evidence as to the fact of its having been torn or bitten off during the fight.

The incident of kicking the cap toward the boy, and ordering him to leave his premises, is so insignificant that it would be an absurdity and a denial of justice to disturb the verdict, because this fact had no reference to the principal one.

No. 3 was reserved to the ruling of the trial judge on the examination of a witness for the defence. This also is disposed of by the statement of the trial judge, who says that he does not “agree with counsel as to his statement in the bill. The cross-examination by the district attorney of the witness, Miss Arzela Harris, was confined strictly to matters and things testified to by the witness in her examination in chief.”

No. 4. The consideration of this bill will dispose of the others, as they depend upon the fact whether or not the deceased had made a hostile demonstration against the accused. The witness was offered to prove a general threat to kill a man before sundown, made by the deceased, which would corroborate the communicated threat testified to by Arzela Harris, and also the overt act testified to by her of deceased against accused. The trial judge states that the ruling as to the general threat was in consequence of no overt act having been proved.

His ruling is not, therefore, within the doctrine enunciated in case of State vs. Williams, 40 An. 168.

The statement for the reasons for his rulings is thus given by the trial judge: “ While Miss Harris, the daughter of the accused, did swear that Tillman (deceased) came into the house of her father with an ox whip, she was fully contradicted by Neal and Baden, both of whom swore positively that the accused, Tillman, did not come into the house that night, and made no threats whatever; that they were there at the time they say Tillman come in with the ox whip and made threats, and that he did not come into the house and made no threats whatever. As to the evidence of Miss Arzela Harris, as to the overt act at the time of the shooting, it was shown by the testimony of Teddlie and Neal, that Teddlie shut the door when he went out on the gallery and took [Tillman by the arm; that Harris came out the back way and from around the house; that there was no window in the front of the house; that Miss Harris, the witness, was in the house; that she was in the house during the whole difficulty, and could not have seen anything that took place; that they were positive she was not on the gallery nor in the yard at any time during the difficulty, and whose statements are corroborated by the evidence of the witness Walker, sworn for the defence, and who was in the house himself at the time of the difficulty, and did not see any part of the difficulty, and says that Miss Harris was in the house during the difficulty outside; and further she contradicted herself in this: on being first placed on the stand she stated she was on the gallery when the shooting took place, and being recalled afterward stated she was in the yard near her father when the shooting took place.”

The trial judge’s ruling is that he has the sole and exclusive right to determine, after the introduction of evidence, the extent of the overt act, whether or not it was a hostile demonstration against the accused.

The counsel for the accused contends that the jury are the judges as to whether the testimony introduced as to the overt act of the deceased amounted to sufficient proof of that fact, and as to whether at the time he fired the shot the appearance of danger to the accused was such as to have justified him in firing upon the deceased.

The witnesses for the State all say that the deceased on hearing footsteps behind him, on nearing the [gate [of laccused’s premises, turned partially around, when he was fired upon by accused. The testimony of Miss Harris is that at the time the shot was fired the deceased was facing the accused, having broken away from the party escorting him to the gate, and was advancing in a threatening manner upon the accused, and exclaimed: By God; I will go into that house or die.”

Since the case of State vs. Ford, 37 An. 443, the rulings of this court have been uniform, adversely to the proposition submitted by the counsel for the accused. 37 An. 489, 644, 782, 896; 39 An. 817; 43 An. 861; 42 An. 753; State vs. Christian, 44 An. 950.

In that case, State vs. Ford, this court said:

There is a wide difference between evidence of an overt act and proof oí the same. The theory of defendant’s counsel seems to be that there is no difference between the two, and that under the rule any testimony in favor of the commission of an overt act on the part of the deceased person is a proper and sufficient foundation for the introduction of such testimony, and that the trial judge is thus stripped of all discretion and of all power to consider the veracity or credibility of the witness mating the statement. Such an interpretation of the rule is flagrantly erroneous. * * *
'• In passing on such a question, the trial judge must of necessity be clothed with the authority to decide whether a proper foundation has been laid for the proffered.evidence, and that authority necessarily includes the discretion to ignore and not to consider testimony which his reason refuses to believe.”

The ruling of the trial judge seems to have been based in strict conformity to the doctrine in this case.

Judgment affirmed.


text:
    No. 11,208.
    Mrs. Jennie Johnson, Wife of William Johnson, vs. E. A. Carrere.
    The principal’s acts will be liberally construed in-favor of a ratification.
    A principal notified of the acts of his agent must disapprove them, within a reasonable time, or he will, by his silence, ratify them.
    A judgment carried on a final tableau of distribution and partly paid in the final settlement of the succession, and duly homologated, after notification, binds the heirs, who will not be heard to plead its nullity on the ground of defective citation served upon their ancestor, the judgment debtor.
    The authority of an agent can not be contested, more than twenty years having elapsed since the agency was alleged and the judgment obtained.
    More than ten years have elapsed since the property was purchased by plaintiff’s author in good faith, and a title acquired which was legal and sufficient to transfer the property.
    PPEAL from the Civil District Court for the Parish of Orleans. King, J.

      B. Armbruster, A. J. Murphy and O. H. Osterberger for Plaintiff and Appellee.

      Branch K. Miller for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The defendant agreed with plaintiff to purchase it from her for the sum of $6500.

The defendant, after an examination of the title, refused to accept-it, on the ground that the judgment pronounced in the year 1866 in the suit of the Bank of New Orleans against O. Toledano, No. 21,^799, of the late Third District Court, was null and void.

The said judgment was rendered for the sum of $51,477.63, upon confirmation of a default.

Under the execution of that judgment the property was acquired by Royal A. Porter, on 5th February, 1867.

Upon certain of the notes merged in the judgment, the endorsement of C. Toledano, the debtor, was by his agent, John Taylor. His-authority to endorse as agent is not questioned, but his authority to-represent the defendant in case No. 21,799 is denied.

The petition in that suit sets forth the authority -of the agent to-represent the defendant in the suit.

In the act of procuration the principal, Toledano, gives full power■ to his agept to manage and transact all his business: to draw checks and drafts; to make promissory notes, bills of exchange, drafts, bonds- and all other obligations for the payment of money; to receive moneys and contract debts; to lease, sell and mortgage his property -

The power is general in terms, and the agent is especially authorized to ask, demand, sue for, recover and receive all sums of money due the principal, also to appear before all courts of law.

There is in the suit a citation to Toledano by service upon the said agent.

If it be conceded that the power was not so ample as it should have been there was absolute acquiescence in the sale.

The defendant, Toledano, departed this life three years after the judgment had been obtained, and nearly that time elapsed between the date of the sale of the property and that of his death.

He must have known that he had been sued through his agent, and that the property had been sold.

The agent’s authority was never denied while the principal lived.

The maxim Semper qui non prohibet aliquem se intervenire, mandare creditur applies after these many years, during which the authority of the agent alleged judicially has remained unquestioned.

At this time the heirs do not dispute his authority.

After the death of the late O. Toledano, they ratified the proceedings in which the judgment was pronounced and the sale made.

The mortuary proceedings disclose that an inventory was duly made and an administrator appointed.

The administrator, in due time, presented a provisional account of his administration, from which we extract:

“The above balance of $24,450 has under the beforere cited order of the Second District Court been applied in part payment of the judgment obtained by the Bank of New Orleans against the deceased, in the Third District Court for this parish, in the suit numbered 21,799 in the docket of said court, for the sum of $51,477.63.”

Some time after a tableau of distribution was filed.

The judgment for the same amount is carried on the tableau.

It was duly homologated.

Lastly, a final tableau of distribution was filed, also setting forth the indebtedness proven by the judgment now assailed and referring in term to that judgment.

Three of the heirs opposed the homologation.

Due advertisement was made and notice given of the filing.

This .judgment was taken account of throughout in casting the debit side of the succession account.

It was partly paid with the proceeds distributed by the administrator, contradictorily with the heirs.

The ratification was entire and relates back to the suit in which judgment was pronounced.

More than twenty-six years have elapsed since the homologation and more than ten since Mrs. Porter, a third person to the original transaction, became the owner by purchase from the succession.

This period has cured all informalities, if any could remain, not cured after the heirs have expressly ratified the title by consenting to the distribution made and the partial satisfaction of the judgment.

The judgment appealed from in this case condemns the defendant to accept title.

No reference is specially made in the judgment to rents, which, in accordance to the agreement, is to be turned over to the vendees, nor to the taxes due on the property.

The deed tendered is not in evidence.

The defendant waived the tender. ■

In his pleadings he does not complain that the deed was not drawn in accordance with the terms and conditions of the agreement to purchase.

It will not be presumed that plaintiff has sought to evade any part of these terms and conditions.

We therefore will not amend the judgment as urged by defendant should be done. It covers all the rights of the parties.

The plaintiff and appellee prays for the infliction of damages for a frivolous appeal. '

The defendant, in earnestly submitting his grounds of defence in matter of title to realty, has not rendered himself liable to damages.

Even if he had been over-prudent inmatter of a title to immovable property, the lack of seriousness and earnestness must be obvious to justify the infliction of damages.

Judgment affirmed at appellant’s costs.


author: Watkins, J.

text:
    No. 11,228.
    Francis Carreau vs. Louis A. Chapotel and Marie Louise Carreau, His Wife.
    Without alleging some mutuality or privity o£ obligation as mandatories, bus - band and wife can not be proceeded against as joint or solidary obligors on that account.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      B. B. Forman for Plaintiff and Appellant.

      W. B. Sommerville and Charles J. Theard for Defendants and Appellees. ■
   The opinion of the court was delivered by

Watkins, J.

In the lower court there was judgment maintaining the several exceptions of defendants’, to-wit: Misjoinder of parties, vagueness, indefiniteness, inconsistent and contrary demands, etc., and it also dismissed the suit as to Mrs. Chapotel, as of non-suit, and required the plaintiff to so' amend his petition as to preserve only one cause of action, and further required him to elect whether his demand should be for a money judgment or for the possession of the property sued for, or in the alternative that his suit be dismissed.

It is from this judgment that the plaintiff prosecutes this appeal.

The following is a synoptical résumé of the plaintiff’s petition, viz.:

That Mrs. Marie Louise Carreau, wife of Louis A. Chapotel, and Louis A. Chapotel, are indebted in solido to petitioner in the sum of $38,111.50, for this, to-wit:

“That petitioner and the said Mrs. Marie Louise Oarreau, wife of Chapotel, are the only children and heirs of their mother, Mrs. Widow John Oarreau. That said Marie Louise Carreau, wife of Louis A. Chapotel, with the knowledge and authority of her said husband, about the 19th of November, 1887, became the mandatory and agent of the mother of the petitioner, who was old and infirm, and unable to read and write, and was partially paralyzed, and who trusted her said daughter as her mandatory and agent.
“That, as said mandatary and agent, said Mrs. Chapotel collected notes from various persons named in the schedule annexed and made part hereof—
“Petitioner’s mother died in this city on the 10th of September, 1890, without having received any account or settlement with her said mandatory and agent.
‘1 That said Louis A. Chapotel was without means or resources, and on the 28th of February, 1888, he bought property from Mrs. Margaret E. Davis for $2500 .cash, and the 18th of August, 1888, he bought another property from John Trisconi for $400, and he made extensive repairs and additions, all of which was done with the money of said Mrs. Widow John Carreau, in the hands of the wife of said Chapotel as agent.”

(Here follows a description of the two pieces of property just referred to.)

“Wherefore, petitioner prays that Mrs. Marie Louise Carreau, wife of Louis A. Ohapotel, and the said Louis A. Ohapotel, be cited to appear and, after due proceedings, be condemned to render a full and perfect account of the agency aforesaid, and be condemned in solido to pay to your petitioner $38,111.50, with legal interest from judicial demand, and such other sum as may be found to be due, and that it be decreed that the property hereinabove described be decreed to belong one-half to petitioner, and petitioner prays for costs and for general relief.

(Signed) “Francis Carreau.

(Signed) “B. R. Forman, Of Counsel.”

Schedule Attached to petition.

Memorandum of Cash.

1887. Money and notes collected, to-wit:

Peter Gonzales...............................................................................$5000 00

Paul Rousset................................................................................... 2500 00

D. Hamel........................................................................................ 300 00

fm. Nicholaus............................................................................ 219 00

N. O. I. A. for Kenner property............................................... 1650 00

Cash in hands of P. E. Tlieard..................................................... 2161 00

Rents collected for 10% months of 1887..................................... 7b65 00

$19,825 00

notes Held by Mr Mother and Not Collected or Accounted E’or.

Honorine Grima, two notes $100 each.......................................... $800 00

Michel Sehenck, four mortgage notes, $587.50............................ 2350 00

A. Marque due bill to ma............................................................... 200 00

W. A. Bienvenue, mortgage $8000 ................................................ 800 00

Carrouche due bill...................................................................... 100 00

D. Hamel note mortgage.......................................................... 500 00

Jacob Baltz (promissory note)................................................ 100 00

$5150 00

Upon a fair consideration of the foregoing petition and annexed tabular statement we are of opinion there is no joint obligation or solidarity of liability of the two defendants — who are husband and wife — alleged, and no privity of contract. For the charge of the petition is that Mrs. Marie Louise Carreau, wife of Ohapotel, became mandatory and agent of the mother of petitioner, albeit with the knowledge and authority of her husband. That, as such agent and mandatory, she collected notes and rents, and received from her principal money and failed to render account thereof. That said husband was at the time without means, and shortly afterward made considerable’purchases for cash.

Conceding this statement to be every whit true, aud what privity of contract is there alleged? It does not alter or increase the obligation of the wife to her mother as principal, that her husband used a pai-t of the money she collected and for which she failed to account. It is not alleged that the husband came under any obligation as mandatory of plaintiff’s mother, or that he ever incurred any obligation to her for the shortcomings of his wife, as such.

It is clear that upon the showing made, plaintiff can not call upon the husband, Ohapotel, for an accounting. Evidently, plaintiff has set out no cause of action against him.

It is inconsistent to demand of the defendants an accounting as unfaithful agents, and at one and the same time call upon him for the restitution of personal or real property other than such as may have passed under their custody and control as agents.

Everything considered, we are satisfied that the plaintiff’s demands should be readjusted and his petition reconstructed.

Judgment affirmed.


text:
    No. 11,265.
    Flower & King vs. S. S. Pearce & Son. Clifton Cannon, Intervenor.
    The possessor of real estate under an unrecorded lease is thereunder invested with no right whatsoever as against a seizing attachment creditor.

      T. H. Thorpe and Wm. H. Peterman for Plaintiffs and Appellants.

      Joffrion & Joffrion, J. C. Coppel and John C. & Chas. A. Wickliffe contra.

   The opinion of the court was delivered by

Watkins, J.

Originally, plaintiffs instituted an ordinary action against the defendants upon an ordinary commercial account, but subsequently supplemented it with an attachment, under which two plantations, properties of one of the defendants, situated in the parish of Rapides, with the growing crops of sugar cane, were seized; and also some other effects thereon, such as mules, etc.

There were three interventions filed by persons claiming the ownership of portions of the properties seized, but the only one with which we are at present concerned is that of Clifton Cannon, who claims to be the owner of the crops as lessee of the plantations at date of seizure.

The claim of Cannon was sustained in the lower court and the plaintiffs have appealed.

Their defence to the intervention of Cannon is that he has no valid lease, and, if valid, it was not, at date of seizure under their writ of attachment, effective as to them because of the lease-contract not having been recorded as the law requires, so as to give notice to third persons.

We take it to be a well settled principle of our jurisprudence that an unrecorded lease of real estate has no effect as to third persons and seizing creditors.

This question was examined and decided by our immediate predecessors in Summers and Brannins vs. Clark, 30 An. 436, the court employing this language, viz.:

“As the lease was not recorded in the conveyance office, the question is not affected by the registry laws; but, as we have stated, the tenant, Boyd, holds under an unrecorded lease, and any payments of rents which he may have made by anticipation, to Clark, are without effect as against creditors, or subsequent purchasers of Clark.
“ Nor are these principles more inequitable when applied to a lessee than when applied to a purchaser oí immovables without registry, or movables without delivery. If a vendee in such a case can, by seizure, be deprived of possession and enjoyment under his purchase, why not a lessee? If, in such case, it is no defence that the vendee has paid the price, why is it that the lessee has paid the rent?”

In Anderson vs. Comeau, 33 An. 1119, this court reannounced that doctrine in even more emphatic language, thus:

“Articles 2264 and 2266 of the Revised Civil Code, providing sub - stantially that all sales, contracts, judgments and acts affecting or concerning immovable property not recorded according to law shall be utterly null and void, except between the parties, and without any effect as to third persons, apply to leases of real estate as to other contracts. The possession of immovables under such an unrecorded lease * * * is vested thereunder with no rights whatever, as against a seizing creditor.”

In applying these principles to the facts of that ease, the court said:

“ It is sufficient to say that, at the time of seizure, the property was unaffected by any recorded lease, and quoad the seizing creditors stood, therefore, precisely as if it had not been leased at all." (Our italics.)

These principles were again announced and affirmed, in Cochran vs. Herbert, 41 An. 735, the court again employing similar language, to-wit:

li While it is true that the plaintiff did not hold possession * * under a lease from her husband, the judgment debtor of Herbert, but from Boyer, as his vendee, yet the effect of the non-registry of her lease from Boyer is of like character. We hold that such a contract unrecorded did not serve to put the creditor’s of Seiss upon notice of Boyer’s possession and control of the property to which he had a conveyance. Such a contract could not have the effect of forcing defendant to a direct action of nullity.”

On the faith of those three deliberate opinions, we can with confidence declare that an unrecorded lease of real estate can not defeat the right of an attaching creditor, though his claim is unsecured by either privilege or mortgage; and, consequently, the intervening lessee of the attached debtor can not successfully interpose his claims, as against the seizure.

Intervenor’s counsel, with exceptional ingenuity and assiduity, has collected quite a number of cases, on the authority of which they insist that our decision ought to be'in his favor. We have examined them all, and find the following to be a correct analysis of them.

Sandell vs. Douglass, 27 An. 628, involved the ownership of cotton that had been grown on the premises, and afterward severed from the soil and packed in bales. The facts of that case were that after the seizure of the property under the mortgage, the sheriff did not divest or disturb the plaintiff’s possession as lessee, and the creditor acquiesced in her rightful possession.

A like state of facts is presented in Richardson vs. Dinkgrave, 26 An. 632.

In neither case was there any question of registry of a lease involved.

Penn vs. Citizens Bank, 32 An. 196, involved no question of-lease, the plaintiff claiming damages of the bank in reimbursement of loss sustained in a copartnership adventure with the mortgagee, which had been occasioned by a premature seizure.

Lewis vs. Klotz, 39 An. 259, is a case of injunction to prevent a purchaser of an interest at sheriff’s sale under a mortgage from taking possession of an entire plantation, the plaintiff’s claim being that he was lessee, and entitled to possession of two-thirds interest.

Of this contention the court said:

“ He had no more right to enter on the portion, or two-thirds interest of the plantation, under his purchase of the one-third, than a stranger would have had; and to this extent, and as'relates to such portion — unaffected by his seizure and judicial sale, as stated — his attitude and conduct can not be viewed otherwise than that of a trespasser.”

There was no question of the registry of a lease in that case.

In the case of Porchi vs. Baden, 28 An. 761, the lease was one under private signature and duly recorded.

The case of Bank vs. Ober, 44 An. 199, the facts were that the plaintiff claimed a proportionate share of rents in money that had been collected of tenants after date of seizure under a mortgage; the prop - erty having been cultivated by the sheriff subsequent to the seizure, who had leased the plantation to laborers and collected rents as the crops were harvested.

It was with reference to this state of facts that the court employed this language, viz.:

“When a seizure takes place during the pendency 'of a plantation lease for the entire year, payable in kind out of the crops when gathered, the seizure only covers the proportion of rents due for the unexpired term after its date.”

In that case it seemed to be conceded that the lessee’s right was destroyed by the seizure inasmuch as the sheriff was permitted to enter into peacable and undisturbed possession after making seizure, and lease the plantation to the laborers and collect the rent. And it also appears that there was no contest as to the lease antecedent to the seizure — there being no question about the registry of a lease.

The case of Thompson vs. Ratcliffe, 45 An., ante, p. 474, involved quite a similar state of facts.

All of those cases essentially differ from the instant case, and those quoted in its support.

In this case there was taken, in the month of July, a plantation with the growing crops thereon, immature and attached to and forming part of it — the crops being immovable by destination of law. And the lessee, holding under an unrecorded lease, resists the seizure on the ground that he is owner. In such case his right as owner, while perfectly good and valid as to the attached debtor, is unavailing as to third persons and seizing creditors, without registry in the manner required by law for conveyances of real estate.

Entertaining this view of the law the judgment appealed from must be reversed. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that the demands of Cannon, intervenor, be rejected at his cost in both courts. And it is further ordered and decreed that the plaintiff’s and appellant’s attachment of the property claimed by the intervenor be and the same is hereby sustained and their privilege as attaching creditors thereon recognized and enforced.

Rehearing refused.


author: McEnery, J.

text:
    No. 11,266.
    Philibert Lemoine et al. vs. C. J. Ducote et al.

      A family meeting when convoked has the right to select others than those named in the order, when the latter do not attend, They can select those who are not relatives, when no relatives are present.
    If the proceedings and deliberations refer to the petition which prayed for the order and which was based on the averments therein and the deliberations are responsive, although briefly stated, to the objects for which the meeting was convoked, a purchaser of minor’s property, ordered sold by said meeting, which was homologated, will be protected. A purchaser of minor’s property, ordered sold by the advice of a family meéting, is not required to inquire into the personal qualifications of the members of the meeting, He has only to look to the regularity of the proceedings and the order homologating the same.
    The sale of minor’s property without the advice of a family meeting and order of court is null and void, and the'purcliaser is in bad faith.
    Section 3 of Act 43 of 1882 is not in conflict with Articles 92 and 122 of the Constitution, The duties imposed upon the clerk in said section of said act are ministerial and mandatory,
    APPEAL from the Tenth District Court, Parish of Avoyelles. Coco, J.

      O. H. Couvillon for Plaintiff and Appellee.

      L. J. Dueote, Thomas Overton and Olegg & Thorpe for Defendants and Appellants.

      Wm. H. Peterman for the Warrantors, Appellees.
   The opinion of the court was delivered by

McEnery, J.

This is a petitory action.

The plaintiffs sue for the recovery of two tracts of land in Avoyelles parish, which they allege were illegally sold by their tutrix.

The plaintiffs are the children of Oesaire Lemoine, and inherited the property from their deceased father. Their mother, Mrs. Leocadie Lemoine, qualified as tutrix of the plaintiffs. On the 30th January, 1884, she applied to the court for an order convoking a family meeting to authorize her to sell,a “few acres of land” for the purpose of educating her children and improving their property. The order was granted by the clerk; the family meeting assembled and its deliberations conducted before him as ex-offieio recorder, and the proceedings homologated by him as clerk, in pursuance of Act 43 of 1882, Section 3.

The members of the proposed meeting were not present, and others not relatives were substituted. The meeting advised the sale of three acres of the land of the minors, as follows: “After mature deliberation have unanimously decided that the said Widow Cesaire Lemoine be empowered to sell amicably to the highest bidder three acres of land of her said plantation, fronting on Bayou Rouge, for cash, or at terms as will be more convenient.” The under tutor declared that he approved of the deliberations “ as conducive to the best interests of the minors, and recommends their homologation.”

The proceedings were regularly conducted. The family meeting had the undoubted right to select others instead of those who failed to appear. In default of relatives, friends may be selected. It is not shown in the record that there were relatives in the parish and present at the time who could have supplied the places of those absent. The reasons for the conclusions to which it arrived are not, as ought to have been, fully set forth; but we think they sufficiently indicate that they were directed exclusively to the object set out in the petition for the order for the meeting. However, the absence of these reasons can not affect a third person, who purchased property sold by its advice, duly homologated by the court. The purchaser can not be required to go beyond the regular constitution of the meeting and the order homologating its deliberations.

Under the proceedings of this family meeting, homologated by the clerk, the tutrix, by public sale, adjudicated three acres of land to Serg. Callegari, on 13th November, 1884. He sold these three acres to the other defendant, O. J. Dueote.

These sales are attacked for nullity by plaintiff on the grounds that—

1. The family meeting convoked and held for the purpose of authorizing the sale of said property did not set forth the reasons of its deliberations.

2. It did not fix the terms and conditions of the sale.

3. The deliberations and recommendations were not homologated by the judge.

4. There was no order of court authorizing the sale of the property.

5. The property was not appraised and did not sell for its appraised value.

6. Act 43 of 1882, authorizing clerks of court to homologate family meetings, is null and void, as it violates Arts. 92 and 122 of the Constitution of the State.

We have disposed of the first ground, and the answer to the second is found in the deliberations of the meeting, wherein it is recommended that the property be sold for cash, or on terms of credit.

The third may be considered with the sixth [ground, which will hereafter be discussed.

In answer to the fourth ground it is only necessary to say that after the deliberations of the meeting have been£homologated this is a sufficient authority for the sale of the property — without obtaining a special order for the purpose.

The fifth ground has no foundation in fact. The property, of which the three acres formed a part, was inventoried at $1540, or about $19 per acre. The three acres sold for $400, a very large excess above the inventoried value. In the petition its value is alleged to be $500. We are of the opinion it sold for its actual value.

Act 43 of 1880, conferring certain powers on the clerks of District Courts, is very careful to mark the line between ministerial and judicial functions. In all cases in which oppositions can be filed, it directs that they shall, if filed, be docketed and referred to the judge.

Section 8 gives the clerk power to order family meetings, to convoke meeting of creditors of insolvent successions, of insolvent debtors, and to homologate their proceedings when not opposed. The order homologating the unopposed family meeting was purely a ministerial duty imposed upon the clerk by said act.

The family meeting is the tribunal to pass primarily upon the necessity for the sale of the minor’s property. It is presumed that sufficient evidence for the necessity of the sale was presented to and acted upon by the family meeting which influenced their deliberations. Succession of Hawkins, 85 An. 598.

The duties of the clerk under said act are not only ministerial but mandatory. He has no discretion, because the act presumes that the family meeting has received and acted upon all the evidence adduced before it, and that its deliberations have been solely governed by it, and in the absence of an opposition there is no reason why approval should be withheld. In fact without an opposition there is no issue. There is nothing upon which the judgment can be exercised. There is no case presented for judicial action. The duty imposed upon the clerk ,to [homologate the proceeding is only to carry into effect, to give authenticity to the proceedings of a body whose proceedings are to be recognized and to take effect, unless opposed. If opposed a oontestatio litis exists, anda judicial proceeding is at once necessary. The order to sell minor’s .property is not a judgment. It affects no one. It is not a decree against any one, or against anything.

“A ministerial act may be defined to be one which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the acts being done.” Bouvier’s Law Diet.

The Legislature, the legal authority, has vested in the clerks of District Courts the power to homologate the proceedings of a family meeting, when not opposed. The deliberations of a family meeting present to the clerk a given state of facts which he can not question. He can not exercise his judgment upon the propriety of the doing of the act recommended by the meeting. He must, if not opposed, take them as presented, and his duty is mandatory,* and he must issue the order homologating the proceedings..

There is no.pro vision, therefore, in Sec. 3 of Act 43 of 1882 which is contrary to or in conflict with Arts. 92 and 122 of the State Constitution.

The family meeting authorized the tutrix to sell only three acres of the minor’s property.

On the 13th of December, 1886, Mrs. Lemoine sold to the defendant, O. J. Ducote, one acre and nineteen-hundredths of an acre of the minor’s property. It was recited in the deed that some time ago she was authorized by a family meeting held in behalf of her minor children, the issue of her marriage with her said deceased husband, Cesaire Lemoine, to sell ten acres of the tract of land upon which she now resides, situated on Bayou Rouge, in the town of Cottonport, and that she only sold three acres to Dr. Ducote, and that she wishes in virtue of the recommendation of said family meeting and by virtue of her own personal rights to sell one acre and nineteen-hundreths of an acre of her said tract of land, therefore she does hereby bargain, sell,” etc.

The defendant, Dr. C. J. Ducote, claims that he is a purchaser in good faith. The facts contradict this statement. The deed to him of the first tract was based on the recommendations of the family meeting to sell only three acres.

He had actual knowledge, as the proceedings of the family meeting were referred to in the deed from the tutrix to Serg. Callegari. Callegari sold the land to Ducote, and Mrs. Lemoine intervened in the act of sale and approved the same. Callegari did not comply with the terms of the adjudication, and the defendant, Ducote, by consent took the property off his hands. Hence the intervention of Mrs. Lemoine. This is practically the result of the adjudication, although it appears that Mrs. Lemoine wanted cash, which Callegari was unwilling to give, and Ducote relieved him from the adjudication by furnishing it.

But whether he had actual or constructive knowledge that the family meeting had not recommended the sale of ten acres, he at least knew that minor’s property can not be alienated without an order of court based on the recommendations of a family meeting. In dealing with the tutrix he was bound to inquire whether she had the authority to sell. Her statements that a family meeting had advised the sale will not protect him.

At the moment he took title from the tutrix, without authority to sell, he knew the defect of his title and was a purchaser in bad faith. O. 0., Art. 389; 8 M. 629; Walling Heirs vs. Mosefield, 33 An. 1174.

He therefore owes the fruits and revenues of the property from the date of the sale, during the time of full possession. 33 An. 1174.

Mrs. Lemoine is called in warranty by the defendant Ducote as tutrix and individually. No judgment could be réndered in warranty against her as tutrix, as it would in effect be giving judgment against the plaintiffs. The defendant is entitled to a judgment against her individually for the price of the property. No damages have been alleged or proved.

The lot was vacant and unimproved when the defendant purchased it. He has put upon it a house and some fencing. The property is worth for rent $5 per annum unimproved.

The judgment appealed from was partly in favor of defendants and plaintiff, decreeing the nullity of the sale of both tracts, and sustaining a part of defendant’s reconventional demand, and dismissing the call in warranty, but reserving defendant’s right to proceed against Mrs. Lemoine.

We find it convenient to reverse the judgment in order to recast it, and we think it but just, as it will in effect sustain a part and reverse other parts of it, that plaintiff and defendants should equally bear the cost of appeal.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and it is now ordered, adjudged and decreed that the defendant Ducote’s title to the three acres of land described in the deed to him from Oallegari to him be recognized, and that he be declared the owner of the same and be maintained in possession thereof. It is further ordered and decreed that the sale of the 1.19 acres of land made by Mrs. Lemoine, tutrix, to the said Ducote, dated 13th December, 1886, be declared null and void and of no effect, and that the plaintiffs be decreed to be the true and lawful owners of the property described in said deed and be placed in possession of the same.

And it is further ordered that said Ducote be permitted, without damage to said property, to take away the improvements placed thereon by him, within sixty days from the finality of this judgment, during which time the plaintiffs shall have the right to elect whether they will accept said improvements by paying their value or shall require their removal.

And it is further ordered and decreed that the plaintiffs have and recover judgment against the said Dueote for the sum of $5.19 from 13th day of December, 1886, per annum, until the restoration of said property to plaintiffs.

It is further ordered that the said Dueote, the vendee of Mrs. Cesaire Lemoine, do have and recover judgment against her for the price paid for said property on 13th December, 1886, with 5 per cent, interest per annum from judicial demand. Plaintiffs and defendants to pay costs equally of appeal.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 11,167.
    H. J. Warner vs. J. G. Clark & Co.
    l. Under the law of Louisiana libel is a quasi offence, actionable under the broad provision of the code, “Every act whatever of man that causes damage to another obliges him by whose fault it happens to repair it.” Spotorno vs. Fourichon, 40 An. 424.
    2. Our courts are not bound by the technical distinctions of the common law as to words actionable^er se and not actionable perse. Miller vs. Holstein, 16 La. 389; Feraz vs Foote, 12 An. 894; Spotorno vs. Fourichon, 40 An. 424.
    3. The extent of damage to credit is an inferential fact arrived at only by an examination of all the circumstances in a case and can not be the subject of direct proof. Damages or injury may be inferred from the nature of the words written and from the circumstances under which they were written without the necessity of special proof. Miller vs. Holstein, 16 La. 889; Daley vs. Yan Benthuysen, 3 An. 69; Tresca vs. Maddock, 11 An. 206; Cass vs. BT. O. Times, 27 An. 214; Spotorno vs. Fourichon, 40 An. 424,
    4. The rule that parties raising objections in the lower court must, at the trial, state their particular grounds of objection — the materiality of the action complained of and the reasons of the judge for his rulings, has not been superseded by the statute authorizing objections to be noted in .lieu of a bill of exceptions. Parties must still disclose everything necessary to enable the appellate court to say that the court below erred.
    A plaintiff may, for the purpose of proving the allegation of his petition that he has suffered special and general damage as the result of certain letters written and sent out by the defendants, question the parties who received theletters or heard their contents discussed, as to the effect produced upon them by the letters, such evidence not being offered to prove the meaning of the words used nor the innuendo charged, but the substantive fact of damage sustained.
    APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      B. B. Howard and Merrick & Merrick for Plaintiff and Appellee.

      Gurley & Mellen for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff’s petition is to the effect that his occupation is that of a clerk and solicitor, in which he has been engaged for years and entirely dependent thereon for his living, and that in the said pursuit he always had the esteem and good will of his fellow-citizens. That petitioner was in the employ of defendants and served them honestly and faithfully as a solicitor, and that about the 16th September, 1891, he was discharged by them, giving as the reason for the discharge that he was not as successful in soliciting business as they had anticipated, and for this reason only they would require his services no longer. That subsequently he was employed as a clerk in the office of the Cromwell Line Steamship Company and remained in its employ for some time in New Orleans and again returned to the business of soliciting for the house of Richard M. Ong, dealer in paints, oils, etc., and doing identically the same business and dealing in the same merchandise as defendants. That petitioner was doing a successful business for the said R. M. Ong. That the house of R. M. Ong was in opposition to James G. Clark & Co., the defendants. That petitioner suddenly ceased securing orders and that his customers refused to patronize him and refused to have any business relations with him whatever, and he was notified by them and verily believes and charges as the reason of said refusal (and for no other reason than that), that his said customers did receive from James G. Clark & Co. a circular letter prepared and published by said James G. Clark & Co. in the following language, to-wit:

Jambs G. Clark & Co.,

Warehouses 203, 205, 207 Magazine street, 17, 19, 21, Natchez street.

Storage Yard, Erato near Magazine street.

Oils, Sugar House Supplies, Naval Stores, Building Materials, Painters’ Supplies.

Office 62 Magazine street,

City. New Orleans, October 17, 1891.

Gentlemen — Mr. Harry J. Warner, formerly in our employ, is no longer so.

Our friends and customers will kindly note the above and give Mr. Warner no recognition on our account.

Thankful for all past-favors we ask at your hands a further continuance of same.

We remain yours very truly,

(Signed) Jambs G. Olark & Oo.

J. G. O.

By the above letter meaning to imply and imp ying and meaning to insinuate and insinuating that petitioner was dishonest and unreliable and otherwise casting reflection on the integrity of petitioner and intending to injure petitioner in his good name, fame and credit, and to bring him into public scandal and contempt.

Petitioner further averred that James G. Olark or some member of_ the said firm maliciously and falsely and without cause libeled and slandered petitioner in said letter, and its meaning therein conveyed, and he specially charged that said letter was written and delivered to petitioner’s customers and to no other persons except those whose business was solicited for orders in the line of goods which petitioner’s house, R. M. Ong, and also James G. Olark & Oo., dealt in.

That it was written maliciously and without any probable cause for the express purpose of injuring petitioner in the estimation of his customers, and to completely ruin and destroy the confidence of the public in petitioner, which purpose has been accomplished by said letter and false and malicious accusations and insinuations.

Petitioner further represented that his character has always been of the best and his integrity unquestioned; that he has always conducted himself in an honest and straightforward manner in all business transactions, and has always earned a living in the community and city where he has lived, and that now he is unable to get employment at his business or any other business of responsibility on account of said malicious libel and misrepresentation by said James G. Olark & Oo. That he has been grievously injured in character and reputation and financial and business relations to the amount of f 10,000.

All of which acts of said James G. Olark & Oo. were done with malice aforethought and malicious intent to injure petitioner and to secure for themselves any trade which petitioner might divert as solicitor for the house of Richard M. Ong. Petitioner prayed for judgment for damages agaihst 'defbhdants' for $10,000 and for trial by jury.

Defendants filed (1) an exception that “ the petition disclosed no cause of action against defendants or either of them. That the letter complained of does not libel or slander petitioner,” and (2) an exception that “said petition was too vague and indefinite to enable them to safely answer thereto.”

“ It does not set forth what customers or who refused to patronize petitioner and refused to have any business relations with him, nor when or at what dates, nor does it show or set forth of what items his claim for $10,0C0 is composed, or what, if any, actual loss he haf> sustained, and they prayed that the petition be dismissed.”

The court overruled the first exception but partially sustained the second, “ requiring plaintiff to amend and state the names of the customers of plaintiff who refused to patronize plaintiff or to have business relations with him, and where and at what dates, on account of said letter.”

Plaintiff under this ruling filed a supplemental petition in which he averred that he had immediately after the publication of said libel had a great falling off in his business, and had reason to believe and alleged that said falling off was due to said malicious and libelous publication of defendants as set out in the original petition.

That he can not say with exactness which of his customers refused him business on account of said libel, but he appended and made part of his amended petition a list of such of his customers who formerly dealt with him and who have ceased to give him orders of any magnitude since its publication, and who with others (whom petitioner does not now remember), as petitioner believes and charges, have been influenced by the said malicious and wrongful act of defendants. That by reason of said libel he has been unable to get a salary of $76 a month, promised him by Richard M. Ong, provided he should do a successful business, besides losing large receipts for commissions. That petitioner estimates his financial damages at $1000, and the damages to his injured feelings and his character and reputation $9000.

To this petition was appended a list containing the names of a number of business firms.

Defendants pleaded the general issue. They admitted that their firm wrote and sent to some of their customers the letter referred to in plaintiff’s petition, but averred that said letter did not contain and was not intended as a libel or slander upon plaintiff. That all the •statements made in said letter are true and that they were justified in writing and issuing the same. That after his discharge by defendants, and before the writing and issuance of said letter, said Warner frequently called at defendants’ place of business, and saying that he was expecting letters containing orders for defendants which he wished to turn over to them; he was admitted into their private office; and there obtained information as to their business. That no letters containing orders for defendants ever came to their office for said Warner, or if they did, he did not turn the orders over to them. Defendants subsequently learned that at the time of his visit to their private office said Warner was soliciting business for Richard M. Ong of this city, a rival of theirs, and thereupon they charged him with being in saidOng’s employ, which he at first denied but (upon being pressed), admitted to be true. That after having obtained information as to defendants’ business, by access to their private office, said Warner called upon customers of defendants whom they were about to supply with goods, or with whom they were negotiating for the sale of goods, and endeavored to prevent the sale of defendants’ goods, and to effect a sale of said Ong’s goods, to said customers.

That they would not have permitted said Warner to enter their private office and obtain information as to their business if they had known that he was soliciting business for said Ong.

That while in their employ said Warner attempted to borrow a sum of money from Mr. Robert Beltrain upon his statement to him that he, said Warner, had on deposit with defendants, or that defendants owed him, the sum of $90; that at that time said Warner had no sum on deposit with defendants, nor did they owe him any sum whatever; that'they issued said circular letter because they believed it necessary for their protection by reason of the above mentioned facts and other acts of said Warner, and they were actuated by no other motive or purpose.

On the trial of the case the jury rendered a unanimous verdict in favor of plaintiff for the sum of $8000.

Defendants moved for a new trial on the grounds that:

1. The court erred in permitting plaintiff to offer before the jury testimony tending to show that the letter written by defendants was discussed by other persons than those to whom defendants sent it, and upon information not derived from defendants.

2. Because the court erred in permitting plaintiff to offer evidence before the jury tending to show merely the impressions or. conclusions of third persons, ánd to prove the innuendoes charged by plaintiff, when the letter complained of is in plain, unambiguous terms. ,

3. Because the jury disregarded the law requiring express malice to be proved in eases of privileged communications, such as the letter complained of in this case, and no malice having been proved, defendants were and are entitled to have plaintiff’s suit dismissed.

4. Because the jury was prejudiced against defendants by efforts made by plaintiff’s attorneys to introduce matters which were held by the court to be entirely irrelevant and improper.

5. Because the jury was prejudiced against defendants by an improper inspection during the trial of documents constituting only a portion of the evidence in the case.

6. Because no actual damage was proved and no evidence offered by him upon which it is possible to estimate any damage, as is attempted to be done by the verdict.

7. Because the verdict is contrary to the law and the evidence.

The court overruled this motion and rendered judgment in favor of plaintiff against defendants for $3000 in conformity with the verdict of the jury. The defendants have appealed.

The first contention of the defendants in this court is that there was error to their prejudice in not maintaining their exception of no cause of action. They say “ there is nothing of a libelous nature in the letter, nothing from which it could be reasonably inferred that Mr. Warner had been discharged for dishonesty as charged in the innuendo — that the language used was not capable of such meaning.” In support of their position they quote Mulligan vs. Oole et al., L. R. 10, Q. B. 549; Newell on Defamation, pp. 287-8, Sec. 25; Dunsee vs. Norden, 36 An. 79.

Article 2315 of our Civil Code declares that every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

In Spotorno vs. Fouricbon, 40 An. 424, we said: “ Our courts are not bound by the technical distinctions of the common law as to words actionable per se and not actionable per se and allowing for the latter only actual pecuniary damage specially proved. Miller vs. Holstein, 16 La. 389; Feraz vs. Foote, 12 An. 894.

“If the charges are false, injurious, and made maliciously or malo animo, they combine all the elements essential to support the action.” These remarks apply fully to the case at bar. Plaintiff’s allegations cover each of these essential requirements, and if proved would certainly entitle him to a judgment for damages for some amount. The case of Dunsee vs. Norden referred to was not decided on an exception of no cause of action, but after a trial on the merits and evidence heard.

We think the ruling of the court on the exception was correct.

Defendants, denying that the language of b'he letter was “ capable of the meaning charged in the innuendo,” complain that the court permitted witnesses to testify as to the impression made upon them by reading the letter — to their understanding of its meaning and to their proving it had the meaning plaintiff attributed to it. When plaintiff’s counsel asked of the first /witness whom he placed on the stand and examined “what impression the letter conveyed to his mind,” we find a statement made in the note of evidence that “defendants’ counsel objected,” but neither the grounds of objection, the ruling of the court nor its reasons are stated — nor is there any mention of an exception having been taken or any bill reserved. The action of the court seems to have been first specially objected to on an application for a new trial. We take occasion bo say that the law authorizing a note of objections to be substituted in lieu of a bill, never contemplated doing away with the recitals which we have always held necessary to a proper bill of exceptions, and farther to say that it is essential that the court should be fully advised of everything requisite to enable it to act advisedly upon all proceedings and rulings in the lower court.

In the reasons assigned by the district judge for overruling the motion for a new trial he thus alludes to defendants’ objections on this particular point:

“The second ground of defendants’ motion is that witnesses were permitted to tell their impressions produced by the letter and to prove the innuendo charged.
“ In no instance was any witness permitted to explain the meaning of the letter or to prove the innuendo alleged by plaintiff, so far-as I can find. Testimony was received to show injury to plaintiff’s, name and reputation by reason of or as the result of the letter, and the comments it set in motion, and thereby to prove actual damage as alleged and general damage as alleged. The assumption of facts, having this ground is not well founded. Every ruling that I made was based on the view that having alleged actual and general damages plaintiff should be permitted to prove that the effect of the letter on the minds of those who saw or heard of it was to injure hiS' character and to excite suspicions of wrong-doing. How else could he prove this than by hearing what effect or result the letter produced on the minds of third persons I can not conceive. Such-evidence was not offered to explain the letter or to prove the innuendo.”

The reasons assigned by the judge fully justify, we think, his ruling on this particular point.

Later on in the trial, another witness being on the stand, he was-asked by plaintiff, “ What was the impression received by you from, what you heard 7 ’ ’

To this question defendant objected “because the letter complained of, being a privileged eommuniaation and not having been circulated or published by the defendants, they are not responsible for-the publication or circulation made by others not authorized or intended by themselves.” Following this entry on the note of evidence we find the words, “Objection overruled, bill reserved.” We find no bill in the transcript. Before considering the objection we wish, to direct the attention of the district judges to the necessity of their-supervising the objections as stated in the note of evidence and to the reasons for their rulings being simultaneously noted, so as to-bring matters to the situation they would have been had the statute we have referred to not been passed — modified, of course, to the-extent of doing away with mere formal and non-essential particulars.

We come to a knowledge of the reasons for the judge’s action by the statement already given as to his rulings on objections to testimony. That statement covers the complaint we are now considering, as well as that we have just mentioned. We think the judge decided correctly; plaintiff, having proved that his name and reputation were being injuriously criticised, had the right to trace this fact,, as a fact, to its cause; and, if he could, to the circular letter. Having alleged that by and through the act and fault of the defendants in writing and delivering this letter he had suffered general and special injury, he was entitled to prove that allegation as a fact independently of the particular persons who, having received the letter, may have spoken of the same and its contents and thereby increased the circulation of the statements therein. The question is, did the act of the defendants in writing and sending out this circular h ve, as its general effect, to injure the plaintiff. The testimony objected to legally tended to prove that fact in our opinion, and was admissible. It may be well to say in this connection that we do not regard the circular letter sent out by the defendants as a privileged communication.

The evidence shows that the plaintiff, who had been several months in defendants’ employ, was discharged by them on the 30th September, 1891, and that the separation took place without friction.

Amicable and cordial relations continued to exist between the parties, so much so that the plaintiff, (who on leaving the defendants had gone into the employ of the Cromwell Line of steamers), was in the habit of stopping at the defendants’ store and with defendants’ consent making himself, it would seem, very much at home. Suddenly he was informed by the junior partner that his presence was offensive to them and that they did not wish him to return. This notification was followed up by the writing and sending out of the circular letter which has given rise to this litigation. We are relieved from any great trouble in ascertaining the cause and motive of this act by the testimony of the two partners given on the trial. This testimony causes us to eliminate in that connection from the case that portion of the answer which refers to certain small purchases made by the plaintiff at another store and his attempted loan of money from a friend of his. We are satisfied the first matter was known at the time and not considered at all reprehensible, and that knowledge of the second did not reach them until after they had taken the step they did and had no bearing on the case.

In Alba vs. Moriarty, 36 An. 681, a case where the plaintiff was suing his employer for his salary for having prematurely discharged him without cause, the court in speaking of the discharge said: “ It is also shown by Moriarty’s own testimony that at the time he dismissed the plaintiff he had not been informed about the alleged irregularities charged, in the answer, and, therefore, they could not have entered into the reasons for his discharge — they were really an afterthought andean evident pretext.”

These words are applicable to the case at bar.

The real ground upon which the defendants acted, and on the suf•ficiency and correctness of which this case will have to turn as justifying their course, was that they had reached the conclusion that the plaintiff (as the senior partner said), “ had been dealing falsely with them — not doing the square thing; that Mr. Warner was going to their office regularly, and at the same time he was going there he was in the service of R. M. Ong & Co.” (a retail house) — “ that is, a portion of the time ’ ’ — and because (as the junior partner said) “ they were very indignant because the5r thought he (plaintiff) was playing the dirtiest and shabbiest trick a man could play — representing another firm and still going to their office.”

We must inquire whether the plaintiff was in point of fact guilty of any double dealing with the defendants, and if he was so guilty, whether defendants were justified in resorting to the action they did as a corrective.

We may say at once that there is no evidence that the plaintiff either obtained any advantages by his visits to the defendants’ store, or if he did that he ever utilized them — there is not a scintilla of testimony going to show that he ever represented to any one after his discharge from defendants’ service that he was still continuing therein, or that in soliciting for orders he concealed the fact that he was doing so for the house of Ong & Co. It would have been an act of folly for him to have attempted to do so, for the deception or misrepresentation would have inevitably been discovered at once. If the plaintiff was guilty of any wrong it would have been at worst of continuing to visit in a friendly, intimate manner at defendants’ store, when at the time of doing so he was in the employ of a rival establishment.

When the defendants (as they had a right to do) discharged the plaintiff their business relations were completely severed and the latter was at liberty to seek employment elsewhere, and obtain it wherever he could. The fact of his prior service with the defendants in no manner interfered with his seeking service with a rival establishment, and if employed by a rival house he was fully authorized in doing his utmost for it (as unquestionably it was his duty to have done prior to discharge for the defendants), even though in doing so he might work to the prejudice of his former employers — provided, of course, in so doing he was guilty of no misrepresentations or legal' wrong-doing. We know of nothing which would cut the plaintiff off from his absolute right of soliciting any one he might choose to solicit for orders, among others the customers of the house with which he had been connected and with whom he may have become acquainted through such connection.

We know of no reason why friendly relations should cease to exist between a commercial firm and one of its former employés, ipso facto by his going into the service of another house in the same branch of business. We see no good reason why Mr. Ong, himself, the head of the other house, could not with full propriety have visited defendants precisely on the same footing that plaintiff did. If the action of either the one or the other in doing so were to meet with the disapproval of the defendants it would be a pure matter of feeling and taste and not of right or wrong. As a matter of fact, however, it is exceedingly questionable whether the plaintiff, after he became employed by Ong & Co., ever went to defendants’ store more than on one occasion. Whether he would have done so or not had not the defendants objected, is pure speculation. Plaintiff’s visits to defendants’ store seem to have been when he was employed with the Cromwell Line of steamers. Assuming, however, that plaintiff was employed by Ong & Co. when so visiting the defendants’ store, and was at that time soliciting for Ong & Co., and defendants should have thought such conduct reprehensible and inconsistent with their ideas of propriety and fair or square dealing, their plain, obvious remedy was the very one which they at first adopted of requesting a discontinuance of such visits — a remedy which proved fully efficacious. We think the defendants were entirely unjustifiable in following up this action of theirs by sending out the circular letter which they did. There was no legal relation or connection between the conduct complained of and this letter which defendants circulated. Plaintiff had not sought to utilize in any improper way his connection with them, and there was no reason when they distributed the letter, for them to apprehend that he would do so. The defendants were, as they say, “indignant,” and the letter was obviously sent in anger and intended as a punishment and to injure plaintiff, and not as a protection either to their customers or to themselves. They say themselves that as a solicitor he was a failure; they assign this as a reason for discharging him, and if this was true they had no reason to fear that he would (even had he resorted to illegitimate means — which he did not — ) have diverted any large amount of trade from them. We see no ground for any claim that this circular letter was a privileged communication. Written and sent to every one whose name happened to be on the address book in their store, they were bound to suppose that the parties to whom it was addressed, or, at all events, a large part of them, would not consider it in that light and would naturally speak of its contents to others and those contents would be publicly discussed.

The whole matter was referred to a jury, they heard the evidence and saw the witnesses, and after full hearing they have found by returning a verdict in favor of the plaintiff that the allegations of his petition are true and his prayer just and well founded. The district judge on application for a new trial gave his views on the questions here raised, and (save as to the amount of the damages found) he concurs in opinion with the conclusions reached by the jury. On this last point, though refusing to set aside the verdict, he obviously was of opinion that it was for too large an amount.

In the case of Spotorno vs. Fouriehon, already mentioned, this court said: “ Both the damage or injury and the malice may be inferred from the nature and falsity of the words and from the circumstances under which they were uttered, without the necessity of special proof.”

In the case at bar we are perfectly satisfied that the plaintiff has been injured and damaged, but it certainly can not be said that he has proved the amount with certainty. Plaintiff had been pretty generally employed for the last eleven or twelve years at a salary or on commissions which brought him from $30 to $75 a month; he was in defendants’ employ at $60 a month, but before this difficulty arose they had reached the conclusion that his services in their line as solicitor was not worth that much. He was paid $75 a month by the Cromwell Line, but after a week’s employment he voluntarily left them to take service with R. M. Ong & Co., who were to pay him at the rate of $60 a month should he establish to their satisfaction after a trial (at first on commissions), that he would make a successful solicitor. This he was unable to do for the assigned reason that defendants’ circular letter had caused him to be thrown under a cloud which forced him to leave his home and seek service at St. Louis, at which place at the time his testimony was taken in the lower court (June 15, 1892) he was about obtaining employment. From the date of the letter he does not appear to have been employed elsewhere than at Ong’s as a solicitor, where his commissions for seven months were almost nominal — $75 or $100.

In the very nature of things it would be impossible for a solicitor to establish to what precise extent a failure to obtain orders would be attributable to the circulation of a letter of a character injurious to him. That kind of business is to a very great degree dependent upon the favor of the solictor in the community in which he lives and his good name and credit, and these are not readily measured; indeed, it has been frequently decided that extent of damage to credit is an inferential fact which can be arrived at only by an examination — a weighing of all the facts and circumstances — and can not be the subject of direct proof. Trammel vs. Ramage, 93 Ala.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the lower court be and the same is hereby amended so as to reduce the judgment of the plaintiff against the defendants from $3000 to $600, and as so amended the said judgment is hereby affirmed, costs of appeal to be paid by the plaintiff and appellee, those of the lower court by the defendant and appellant.