author: Nicholls,.O. J.

text:
    No. 12,019.
    Succession of William Rose. Application of Mrs. Joan Rose for Administration and Opposition of Mrs. Fannie E. Doles Thereto.
    Tlie value o£ a succession would determine the jurisdiction o£ the Supreme Court, and not the ruling o£ the District Court, upon a matter merely raised incidentally and determined in the District Court £or the purpose o£ reaching a conclusion upon a matter touching the administration of the succession.
    A court of limited or special jurisdiction has frequently to pass incidentally upon a subject when it would not be authorized to do so if it had been presented to it for adjudication in an original or direct action. 5 N. S. 10,217; 6 N. S. 305; 7 La. 378; 12 La. 214; 3 R. 100; 4 R. 165, 278, 290; 6 R. 488; 3 An. 582.
    The issues of a case can not be split and divided; the incidental question accompanies the main issue and the main issue fixes the jurisdiction.
    APPEAL from the Fifth Judicial District Oourt for the Parish of Morehouse. Potts, J.

      O. E. McDonald for Appellee.

      Madison & Madison for Opponent, Appellant.
    Submitted on briefs January 11, 1896.
    Opinion handed down February 10, 1896.

      Mrs. Joan Rose, alleging herself to be. the widow of one William Rose, applied to be appointed administratrix of his succession, and that she be allowed one thousand dollars as his widow in necessitous circumstances.
    Mrs. Fannie E. Doles, a daughter of William Rose, by his prior marriage with Mary Jones, opposed this application for administration ; denied that the applicant was the widow of William Rose, and averred that if there was ever a marriage celebrated between Mrs. Joan Laing (applicant) and her father, it was absolutely null, having been contracted in violation of á prohibitory law; that if an administrator was appointed, the opponent daughter, Mrs. Doles, and not the widow, should be appointed. The appraised value of the succession was six hundred and seventy-nine dollars.
    Judgment was rendered in favor of the opponent, appointing her administratrix of the succession, and in favor of Mrs. Joan Laing, the petitioning widow, to be the lawful widow of William Rose, deceased.
    The opponent, Mrs. Doles, applied for and obtained a devolutive appeal from this judgment to the Court of Appeals for the Second Circuit, returnable on the first Monday of December, 1894, and also a devolutive appeal to the Supreme Court at New Orleans, returnable on the second Monday of December, 1894. The bond for the appeal to the Court of Appeals was fixed at twenty-five dollars; that for the appeal to the Supreme Court at one hundred dollars.
    Opponent gave bond on the 29th November, 1894, for twenty-five dollars, presumably under the order for the appeal to the Circuit Court. She gave no bond for the appeal to the Supreme Court. Mrs. Joan Laing prayed in the Court of Appeals that the judgment of the District Court be affirmed. The Court of Appeals declaring 'that the only question at issue in the District Court was as to the administration of the succession of William Rose, only two questions arose in that court; first, as to the necessity of appointing an administratrix, and second, as to who that administratrix should be, were it necessary to appoint one. The court coincided in their opinion with the District Court that an administration was necessary, and also with it that the opponent was, as heir of the deceased, entitled to the appointment, even upon the assumption that Mrs. Joan Laing was the widow of the deceased. It declined to consider or pass upon the question whether the court below was right or wrong in declaring and decreeing that Mrs. Joan Laing was the widow of William Rose on the ground that it had no jurisdiction ratione- materise in respect to that subject; that under the amendment to Art. 81 of the Constitution adopted in 1894 (Act No. 125 of 1882) the appellate jurisdiction of the Supreme Court extended to “ suits for nullity of marriage.” That this amendment vested the appellate jurisdiction in the Supreme Court in any controversy where the issue to be determined was the nullity of a marriage; that it was not confined to a direct suit to annul, but that the word suit was to be taken in the general sense of controversy or issue; that it was the matter in dispute, the nature or character of the issue, which was placed under the appellate jurisdiction of the Supreme Court, and whenever that issue was presented in whatever form it might be, whenever the lower court was called upon and did decree the nullity or validity of a marriage, the Supreme Court was the only one which could re - view its judgment therein.
    Upon the rendition of this decree, opponent reciting the facts above stated, and that the return day fixed in the order of appeal of the 28th of November, 1894, for an appeal to the Supreme Court had long since passed, prayed that the order be set aside and a new order of a devolutive appeal be granted them, returnable to the Supreme Court at New Orleans on the second Monday of December (9th of December), 1895.
    Objection was made to the granting of this order by Mrs. Joan Laing on the grounds:
    1. That the opponent had already appealed to the Circuit Court of Appeals; that that court entertained jurisdiction of the appeal and rendered judgment affirming the judgment of the District Court of November 28, 1894.
    2. Because opponent has acquiesced in the judgment appealed from by giving bond and qualifying as administratrix of the succession of William Rose. The court overruled the objections and granted the appeal.
    In this court, Mrs. Joan Laing has moved to dismiss the'appeal substantially on the grounds set up by her in the District Court by way of objection to the last order of appeal.
   The opinion of the court was delivered by

Nicholls,.O. J.

The decree of the District Oonrt sought to be obtained by Mrs. Joan Laing was one appointing herself admininistra-trix of the succession of William Rose. She assigned merely as “grounds'’ upon which she based her application to that effect, that that succession was in debt (owing to herself, as the widow of the deceased, in necessitous circumstances, one thousand dollars) ; that she, as such widow, was entitled to the appointment. Opponent denied the necessity for an administration. In the event the court should order the appointment of an administratrix, she advanced her own right of preference, as the child of the deceased, to the appointment. Subsidiarily she denied that the applicant was the widow of William Rose, urging, for reasons assigned, that the marriage between her and her father was absolutely null and void. The court heard evidence in support of the attack upon the marriage. The judgment of the District Court was to the effect that an administration was necessary, that opponent was entitled to be appointed administra-trix, that the marriage between applicant and William Rose was legal. Opponent appealed, and, uncertain to which court the appeal was returnable, obtained a double order of appeal, one to the Court of Appeals of the Second Circuit', the other co this court. The appeal to the Court of Appeals was made effective by furnishing bond; that to this court under that order was not followed up.

The Circuit Court affirmed the judgment of the District Court as to the necessity of an administration, and as to the right of preference of Mrs. Doles, the opponent, as the daughter of the deceased, over tbe applicant, even assuming her to be (as she claimed to be) the widow of Rose. It declared that there was, therefore, no necessity for passing on the question as to the status of applicant as the widow of Rose. It further .declared that even were the determination of that question necessary, that court was without jurisdiction ratione materias to decide it, as in matters of nullity of marriages the Supreme Court had exclusive appellate jurisdiction. It therefore declined to pass upon that issue. Opponent then obtained a second order of appeal returnable to this court, and seeks to have this court reverse the judgment of the District Court declaring Joan Laing to be the widow of William Rose.

The appeal is taken upon the theory, obviously, that the decision of the District Court upon that question would become res judicata in subsequent litigation if not set aside.

The judgment of the District Court only partially sustained the opponent, Mrs. Doles, in her contentions. She had the right to appeal, even though the court decreed her to be entitled to a preference over Mrs. Laing in the appointment of an administratrix. Oger vs. Daunoy, 7 N. S. 657; Hewes et als. vs. Baxter, 45 An. 1049; Police Jury vs. Succession of McDonogh, 8 An. 362; Municipality vs. Duncan, 2 An. 182.

She appealed from the judgment in its entirety. The effect of the appeal was to open all the issues determined by the lower court, certainly all those decided adversely to the appellant, and to keep them open so long as the judgment of the District Court in respect to them should not be affirmed. The judgment of the District Court in reference to the status of Mrs. Joan Laing was never passed upon by the Court of Appeals further than to be declared by the court to have been and still to be an unnecessary issue of the case. The court declined to adjudicate upon the subject. The question, therefore, after the decision of the Court of Appeals, remained as the appeal had placed it — an open question. Lacroix vs. Menard, 7 N. S. 347.

The motive, therefore, which impelled appellant to take the present appeal rested upon an erroneous assumption. But even had the issue been presented under circumstances such as would have made it essentially necessary to be passed upon for the purpose of a decision between the parties contending for appointment as administrator, as would have been the case had the contest been between the children of the same father by two marriages, and the absolute nullity of the second marriage had been set up, an appeal from a decision of the District Court sustaining the legality of the second marriage - and bringing up the decision it rendered in respect to the particular person it appointed administrator would not lie to the Supreme Court where the value of the succession was below the appellate jurisdiction of that court, as in this case here.

The value of the succession would determine the appellate jurisdiction and not the ruling of the District Court upon a matter merely incidentally raised and determined in the District Court for the purpose of reaching a conclusion upon a matter touching the administration of the succession. It is a matter of frequent occurrence for a court of limited or special jurisdiction to pass incidentally upon a subject when it would not be authorized to do so if it had been presented to it for adjudication in a direct' action; for instance, it has been held that though Probate Courts could not try titles to real estate and decide directly on their validity, yet when the question arises collaterally and its examination is necessary to arrive at a correct conclusion in matters of which it has jurisdiction, it must necessarily take cognizance of such title, Quando lex, aliquid concedit concedere videtur et id per quod devenitur ad illud. See Reels vs. Knight, 5 N. S. 10; Baillio vs. Wilson, 5 N. S. 217; Gill vs. Phillips, 6 N. S. 305; Williams vs. Bank, 7 La. 378; Henry vs. Keays, 12 La. 214; Succession of Goodrich, 3 Rob. 100; Penny vs. Weston et als., 4 Rob. 165; Babin vs. Nolah, 4 Rob. 278; Tutorship of Francis Hacket, 4 Rob. 290; Succession of Durnford, 8 Rob. 488; Orr vs. Thomas, 3 An. 582.

When a court, in order to thus “reach a correct conclusion in matters of which it has jurisdiction” passes upon questions which would be dehors its jurisdiction if presented directly to it for adjudication, it is the character of the decision finally reached, based upon this incidentally determined question, and not the decision upon the question collaterally raised and passed on, which fixes and settles questions of appeals arising out of it. If the circumstances were such as to make an appeal from this ultimate conclusion (if it may be so styled) *of the District Court returnable to the Court of Appeals, this incidentally decided question would be embraced as one of the issues to be passed on incidentally in the Court of Appeals, just as it was and for the purposes it was passed on in the lower court. Of course, there would be no necessity for that court to pass upon it if it had been or should be an irrelevant or unnecessary issue.

The question or issue thus incidentally thrown into another pending issue, solely for the purpose of determining conclusions to be reached upon the latter, has to be kept throughout the case in its appropriate place and not allowed to have a greater scope than that for which it was presented. Presented as an incidental question, it has to be so dealt with throughout. It can not be detached from the issue of which it formed a part and dealt with as if it had been made the subject of a separate and independent substantive cause of action.

Appellant asks us to reverse the judgment of the District Court adjudging Mrs. Joan Laing to be the widow of William Rose. We find that the question was only incidentally raised in the District Court as connected with another, and the real issue in the case. That main issue has not been brought before us, and can not be, as the value of the succession is below our jurisdiction. We would only be .authorized to deal with the question of the nullity of the marriage between William Rose and Joan Laing in its relation to the determination of the question whether Mrs. Joan Laing could, as the widow of Rose, legally claim to be appointed administratrix of his •succession.

The issues of the case can not be split and divided. The incidental question accompanies the main issue, and the main issue, as we have said, is not before us.

Under such circumstances, there is nothing upon which we can be called to pass. The appeal is dismissed.


source: Caselaw Access Project

author: Bbeaux, J.

license: Public Domain

text:
    No. 11,987.
    Ellen Neal vs. Marie Lapleine et al.
    The tutor’s declaration, in liis affidavit, in regard to the date liis indebtedness began, does not conclude the minor.
    The evidence shows that the debt of the tutor was a debt of the community.
    Although the distinct interest of the wife attaches at the dissolution of the marriage, subject to the right to renounce, she call claim nothing until the debts are paid.
    She can not sue to cancel a mortgage due by the community.
    The property of the community is the common pledge of the creditors.
    APPEAL from fche Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      Foster & Broussard and A. J. Gammaok for Plaintiff, Appellant.

      Todd & Todd for Defendant, Appellee.
    Argued and submitted January 7, 1896.
    Opinion handed down January 20, 1896.
    Rehearing refused (reasons assigned) February 24, 1896.
   The opinion of the court was delivered by

Bbeaux, J.

Bernard Lapleine obtained a judgment of divorce from his wife, Ellen Neal, in March, 1890.

An order was, at the time, issued to sell the property to effect a partition; in compliance therewith the real estate was sold by auction to Lapleine for the sum of three thousand seven hundred and twenty-nine dollars and seventy-ñve cents. The adjudicatee refused to comply with this bid, claiming that there was a legal mortgage upon the property to secure .his daughter, a minor, for the sum of three thousand two hundred and forty-seven dollars and thirty-five cents. He tendered the difference between the amount of his bid and the mortgage, viz.: four hundred and eighty-seven dollars and forty cents, and made a demand for title, which was refused.

In June, 1891, the adjudicatee, Lapleine, having previously obtained a rule on Ellen Neal and the sheriff to complete the sale on the terms proposed as just stated, it was denied and dismissed. He was ordered to pay over to the sheriff the amount of his bid. The litigation remained in abeyance until March, 1896. Ellen Neal obtained a rule against the adjudicates, Lapleine, and the sheriff, to compel them to show cause why the adjudication in question, should not be annulled and the property offered for sale. Upon this rule a judgment was rendered in favor of the plaintiff in rule, ordering another sale and distribution of the proceeds. The minor daughter of the marriage between the plaintiff and the defendant, Marie La-pleine, was emancipated on the 11th day of May, 1896.

The mother, Ellen Neal, sued out a rule against her daughter, Marie, to show cause why the mortgage she claimed should not to canceled.

Judgment was rendered by the judge of the District Court sustaining the rule and ordering a cancellation of the mortgage. Subsequently, on a motion for a new trial, this judgment was annulled and another rendered dismissing the rule. From the judgment plaintiff appeals. The plaintiff urges that the amount claimed by Marie Lapleine was received by her father after the community had been dissolved, and that it was in consequence due by him, and not by the community, and, in the second place, whether or not due by the community, she claimed that there can be no legal mortgage in favor of a minor child while both of the parents are living, any more than there can be a tutor.

In order to decide the first question, an analysis of the facts bearing upon the question is necessary.

ERRONEOUS DECLARATION OE THE FATHER IN REGARD TO THE DATE OF AN AMOUNT RECEIVED FOR HIS MINOR DAUGHTER.

It is urged that there is no evidence, save that of Bernard Lapleine, that he ever received any amount for his daughter prior to the dissolution of the community. The date of payment is obscured by a declaration of the father Lapleine, which declaration contradicts the receipt he gave his attorney.

In an affidavit which he made for the purpose of having it recorded, he claimed that after the community had been dissolved by the judgment of divorce he had collected the amount claimed by his daughter.

The evidence showing the error in regard to the date of the amount so received consists of a reference (in the inventory taken of the property of the community) to a judgment obtained by the minor, Marie Lapleine, represented by her father in the suit against the Morgan’s Louisiana & Texas Railroad Company for the amount now claimed.

There is also a receipt in evidence taken by Mr. R. S. Perry, attorney, showing payment of an amount (corresponding to the amount acknowledged in the inventory to have been) collected for this minor. The minor at her majority was not concluded by the declaration of a date of receipt of money subsequent to the dissolution of the community, to which we have referred as being in the first affidavit. Considered as a fact independent of any alleged admission by her father, we think it evident that the amount was received some time prior to the dissolution of the community.

A MARRIED WOMAN WHO HAS NOT RENOUNCED THE COMMUNITY IS without RIGHT TO HAVE A MORTGAGE CANCELED, AS IF SHE WERE A THIRD PERSON.

This brings us to a consideration of the responsibility of the plaintiff as a member of the community.

The case Succession of Gustave Dejean, 5 An. 593, is quite determinative of the issues in this case.

Mrs. Dejean was a widow in community and claimed preference upon the proceeds of the probate sale of a tract of land, and the court held that as a partner in community she could not be permitted to apply a partnership asset to her' individual claim, to the detriment of the creditor of the partnership.

A similar question was decided in Newman vs. Cooper, 46 An. 1496.

It was decided that community creditors whose claims are unse - cured by mortgage are entitled to be paid from the assets of the community by preference over the individual creditors, though the latter are secured by special mortgage; and further, that the property, by the death of one of the spouses, becomes vested jointly in the survivor and the heirs of the deceased, subject to the payment of the community debts. (Italics ours.) The evident purpose is that the spouses or the heirs should, at the dissolution of the community, own the property, subsordinate to the claims of creditors.

In St. Charles Street Railroad Company vs. Fairex, 46 An. 1022, 1028, we held that only the residuum vested in the survivor in community, and that the creditor of the survivor in community was without right to claim more than his debtor’s interest in the residuum. From these decisions, and the authorities to which they refer, it follows as a conclusion that the members of the community are not third persons in so far as relates to the debts, and that the whole community property is the common pledge of the community creditors. There is no question, involved here affecting the rights of: third persons. The question of mortgage vel non is not of importance; in view of the fact that a partition must be made and the debts paid, before either of the spouses can claim as owners to the prejudice of creditors. She is absolutely without interest to have the mortgage in question canceled.

THE RECORD DISCLOSES THAT A NEW TRIAL WAS GRANTED, AND NOTHING OR RECORD SHOWING A DENIAL OP OPPORTUNITY TO OPPER TESTIMONY.

We have not overlooked the complaint that the new trial was granted in the District Oourt and the judgment recalled and annulled, without having given plaintiff the opportunity to introduce any new testimony to rebut the ex parte affidavit of the defendant for a new trial. We do not understand that the opportunity mentioned was denied to offer evidence. From the minutes we extract:

New trial granted.

Missing documentary evidence filed.

Oase submitted and taken under advisement.

With the evidence before us, we do not think we would be justi-fled in remanding the case, for the purpose mentioned — i. e., to enable plaintiff to introduce new testimony.

Upon examination of the testimony, without any regard whatever to the affidavit for a new trial, which can in no sense be evidence in determining the issues (as charged was the case in the District Court), we have found sufficient proof to sustain the last judgment. We, in consequence, conclude that it would serve no useful purpose to remand the case. Interest reipublieas ut sit finis litium.

It is therefore ordered and adjudged that the judgment appealed from is affirmed.

ON Application for Rehearing.

It is urged that there is no mortgage of the minor to secure his funds received by his father during the marriage. This argument supposes that the minor’s mortgage is incident to the tutorship which arises only when the marriage is dissolved. Civil Code, Art. 3317. But the mortgage against the property of the father for the money of his minor child is given by statute. R. S. S. 2392, 2367, 3097. It is the father’s duty to record the mortgage. But neither he nor bis wife, in seeking the division of the community property, can plead non-registry of the mortgage. As to them the mortgage .dates from the receipt by the father of the minor’s money.

On the issue of fact of the indebtedness of the father to the minor, we think the inventory recorded by him corrected by the statement ■of Mr. Perry shows the indebtedness and its origin prior to the dissolution of the community.


author: Breaux, J.

text:
    No. 12,009.
    The State of Louisiana vs. Henry Desroches.
    Confession.
    In order that a confession may be proven it is not necessary to repeat the words. It is enough if the substance of the confession be given.
    INTENT.
    On the trial for the burglarious entry with intent to kill, evidence that the defendant shot the prosecuting witness, while in the act of committing the crime charged, is admissible as part of the res gestee.

    EES G-ESTiE.

      In case of alleged burglary the impulsive utterances of a member of the family, in the presence of the accused, and while he is in the act of committing the crime •charged, as part of the res gestcet is evidence.

      NOT GROUND TO REVERSE.
    The court permitted the. prosecuting officer to read the indictment to a witness to explain the charge. The case of the defendant was not thereby prejudiced.
    A PPEAL frem the Twenty-first Judicial District Court for the Parish of St. John the Baptist. Rost, J.

      M. J. Oimningham, Attorney General, and P. E. Edrington, District Attorney (A. E. Billings of Counsel), for Plaintiff, Ap-pellee.

      H. N. Gautier for Defendant, Appellant.
    Submitted on briefs December 21, 1895.
    Opinion handed down January 6, 1896.
    Rehearing refused February 24, 1896.
   The opinion of the- court was delivered by

Breaux, J.

The defendant was indicted for, armed with a dangerous weapon, breaking and entering a dwelling house in the nighttime, with intent to steal, rob and kill. The verdict was Guilty, without capital punishment,” and he was sentenced by the court to-imprisonment at hard labor for the term of his natural life.

From the verdict and sentence he prosecutes this appeal.

There were five bills of exceptions reserved by the defendant during the trial, two upon substantially the same grounds. The objection noted in the first of these bills of exceptions was to the testimony of a witness to prove the “intent,” and subsequently, in the second bill the same objection, upon similar grounds to those overruled, was made to the comments of the prosecuting officer and to his reference to the testimony to which he had previously objected, and which had been admitted by the court over his objection.

The first bill taken during the trial was taken to the admission of the testimony of a deputy sheriff in regard to an alleged confession.

PRO03? OP A CONFESSION.

The court certifies that the witness said that he could not repeat verbatim all that the accused uttered, but that he could repeat the substance of his utterances. While in order to be admissible such evidence must not be fragmentary portions of a conversation, not the less an exact recital of the words is not required. State vs. Hughes, 29 An. 514. The rule applying in case of the proof of confessions was complied with here by reproducing the substance of the confession. It is enough if the substance be given.” Wharton Crim. Ev., par. 688.

INTENT.

The second and third bills for reasons already given are within the application of the same rule.

The trial judge admitted the testimony as part of the res gestas to prove the intent to steal, rob and kill. The evidence of the prosecuting witness was that the accused attempted to kill him by shooting him.

The evidence of intent to kill was pertinent to the charge brought, and the prosecuting witness could testify to prove that intent: that he was actually shot while the defendant was in the act of committing the crime alleged.

The incidents immediately and directly associated with the act are part of the res gestae, and as such are admissible to prove the intent.

That evidence is competent where offences are of a like sort or are closely connected, and the proof is pertinent and shows intent. Here, not only the offences are of a like sort and closely connected; the intent to kill was an element of the crime charged.

State vs. Vines, 34 An. 1079; Wharton Crim. Ev., Par. 31, 46, 262.

EES GESTJ3.

The testimony of a State witness, the wife of the prosecuting witness, as to what her little daughter said at the time of the shooting was objected to as hearsay, and was admitted by the court as part of the res gestae.

The witness stated, while the accused after breaking and entering the house was shooting her husband, that her little girl, who was in the room with her and the accused, said in presence of the accused: “ That is Henry Desroches.” The testimony was of the-act speaking through a member of the family on the impulse of the moment. The utterance was contemporaneous with the commission of the act charged, and is inseparable from the incidents of the crime charged.

State of Louisiana vs. Jordan Horton, 33 An. 289, has direct bearing upon the case here, and the ruling finds support in the treatise of Mr. Wharton on the Law of Evidence, 9th Ed., par. 262.

READING INDICTMENT TO A WITNESS.

Lastly, preliminarily to the examination of a witness, the District Attorney read to her that part of the indictment which charged the offence.

The defendant’s counsel objected, the court states, for the reason that the prosecuting officer should have stated the contents in his own words.

The reading of part or the whole of an indictment to a witness, to let the witness know what the charge was, was not improper; the accused was not thereby prejudiced in his defence. The indictment,' legal in form, contained no misleading averments.

This brings us to the end of our examination of the bills of exceptions. We leave the case convinced that the grounds upon which they were reserved find no support in law.

Therefore the judgment appealed from is affirmed.


author: Nicholls, 0. J.

text:
    No. 12,050.
    Mary Ella McPherson vs. Edgar Boudreau.
    Where a person, a few days after the execution of a note, payable on demand to the maker’s order and endorsed by him in blank, has had the same transferred to him in good faith for a valuable consideration, in due course of trade and without notice, as collateral security for a note due to him by a third person, to whom the maker had delivered it, the equities existing between the original holder and the maker are cut off, so far as they affect the second holder, and they are not thrown open because, at a later date, the party holding the note as collateral accepts it in absolute ownership and credits its amount upon (he main or principal note.
    Where it is shown that a person, claiming to have held a negotiable note, endorsed in blank as collateral for a note due to her by her brother-in-law, placed it in the hands of her sister, the wife of her debtor, for safe keeping, but subsequently regained possession of it, accepted it in full ownership and credited the amount of the same upon the main or principal note, the fact, whatever weight it might have as throwing a suspicion upon the reality of the original situation of the parties, does not, if their reality has been established, work a forfeiture of the rights of the pledgee and open the equities.
    Where plaintiff brings suit, as the holder and owner of a promissory note, against the maker, and is met by equities set up by defendant as existing between himself and the original holder, coupled with averments charging the plaintiff with knowledge of the same and denying his good faith, he is entitled to repel the attack and show the date of his original connection with the note and the tenure under which he first held it.
    APPEAL from the Eleventh Judicial District Oourt for the Parish of St. Landry. Perrault, J.

      O. F. Girland for Plaintiff, Appellee.

      Estilette & Dupré for Defendant, Appellant.
    Argued and submitted February 11, 1896.
    Opinion handed down February 24, 1896.
    Statement.
    Plaintiff, as the holder and owner of a certain promissory note, dated July 10, 1890, for the sum of three thousand dollars, bearing eight per cent, per annum interest from date until paid, and made payable on demand, asks judgment against the maker (the defendant), subject to a credit of seven hundred and fifty-nine and 15-100 dollars, partial payment of interest on the note.
    Defendant answered that in February, 1887, he formed a commercial partnership with Martial Oasse and carried on the business in his (own) name in the town of Sunset, in the parish of St. Landry ; that about July 10, 1890, Oasse informed him that it was necessary that he should dispose in some way of his interest in the partnership, and insisted that respondent should buy him out and he consented to do so; that Oasse caused him to sign the note as the price of the transfer; that a short time after, respondent having reflected upon the transaction told Oasse he had exacted too much of him; that the note exceeded by far the value of his interest; that thereupon Oasse stated, “Very well, let us say the transfer is null and void, and I will destroy the note and we will continue the business as heretofore,” to all of which respondent consented; that the annulment of the contract was imparted by Oasse to one Louis A. Bonne, of New Orleans, a partner of Oasse in business; that respondent was induced to believe in the destruction of this note by Oasse, according to his promise, and never expected for a moment that it had not been destroyed; that his wonder was great when plaintiff, a sister-in-law of Oasse, claimed within the last two months (in 1895) ownership thereof; that he immediately visited Oasse,who stated that he thought he had destroyed the note; that his wife had found it among his papers to his great surprise, and in a crazy ñt he had yielded to his wife’s intercession and permitted, her to turn the note over to her sister — the present plaintiff; that all of the above facts were within the knowledge of plaintiff, who acquired the note after maturity, and after it was open to all questions of equity; he therefore pleaded the extinguishment and annulment of the note and the debt which it evidenced in the manner stated.
    The court rendered judgment in favor of plaintiff for the amount prayed for and defendant appealed.
   The opinion of the court was delivered by

Nicholls, 0. J.

Defendant claims that the" note sued upon represented the purchase price of the interest of one Martial Oasse in a partnership between Oasse and himself; that that sale was very shortly after it was made rescinded, and the note declared by Oasse to have been destroyed. That he was under the belief that this was so until it was presented to him for payment nearly five years after its maturity by the sister-in-law of Oasse as the holder. He contends that plaintiff did not acquire the note until March, 1895. That although the note was payable on demand, and no demand had been made until after she became the owner, her acquisition at that late date threw open for inquiry the equities between Oasse and himself. Plaintiff testified that although she acquired the note in full ownership in March, 1895, she had held it as collateral security from some time in July, 1890, for a note given by Oasse to herself at that time for money loaned to him, which note was renewed in 1894, and the collateral note still held until 1895. Defendant calls our attention to the fact that plaintiff shows by her own testimony that after Oasse had given her the note as collateral, in 1890, she placed it, as she says, in the custody of her sister, the wife of Oasse, for safe keeping, in whose possession it continued until just before it was transferred in full ownership, in March, 1895. He says that if the pledge was originally good, it fell by the .placing of the note in Mrs. Oasse’s possession, and plaintiff’s rights must be determined by considering her connection with the note as having originated in 1895. He denies as a fact that the note was held as collateral by the plaintiff be - tween 1890 and 1895, and as evidence that he is correct in that position he shows that in that interval the collateral note was credited with seven hundred and ñfty-nine dollars as having been paid thereon, by an amount due by Oasse to Boudreau, during that period —a partial payment, he says, which would not have been recognized by plaintiff had she really held the note as collateral at that time. The case before us bears a close resemblance to that of Louisiana State Bank vs. Gaiennie, 21 An. 555. In that case the bank had had transferred to it, on the 13th of April, 1861, as collateral security, for-a note of Toledano & Taylor, a note of defendant, dated 20th of April, 1860, payable three years after date, to the maker’s own order, and by him endorsed. Toledano & Taylor went into insolvency, and the syndic, under orders of court, sold on the 8th of June, 1867, the note, among others, subject to the right of the pledgees, and the bank itself became the purchaser. The bank, however, had never given up the note, but had already instituted suit against the maker. Among other defences defendant-contended that the note had been advertised and sold with the knowledge and consent of the plaintiff; that the title and ownership of th6 same had been re-transferred to Toledano & Taylor, and the note being only accommodation paper, had become subject to the equities between the latter and defendant. Defendant also contended that as the collateral note had not been endorsed by Toledano & Taylor, the pledge to the bank was not valid.

In reference to this last contention, this court said: “When, as in this case, the note drawn to the order of the maker is endorsed by him in blank and before maturity transferred for value to the plaintiff, the maker can not be heard upon a question which con - cerns only other creditors of the pledgor.” Citing Matthews vs. Rutherford, 7 An. 227.

Referring to the fact that the note had been originally held as collateral security, the court said: “It is further urged that the plaintiffs are not holders for value, because ;they received the note as collateral security only, but the contrary doctrine is well settled (Swift vs. Tyson, 16 Peters 20; Succession of Dolhonde, 21 An. 3). And in such a case as this, where there is no evidence that the principal obligation has been discharged, even in part, the rights of the plaintiff are, for all practical purposes, the same as they would have been if plaintiffs had purchased the note before maturity.”

In the case at bar, if, in point of fact, the plaintiff held the note as collateral security from July, 1890, until her holding was changed into one of absolute ownership in March, 1895, and during that period inquiry into the equities upon the note was cut off by reason of her having had the same transferred to her just after its issue, for a valuable consideration in due course of trade, and without notice, we do not think the mere change of the tenure by which she held the note, from holding it as security into holding it as owner, would open the equities as if her first dealings in connection with the note had commenced in 1895. Had the first connection with it begun with its acquisition as owner in 1895, possibly defendant’s contention that its staleness at that time was a matter sufficient to have placed her on inquiry as to the equities, even though it was a demand note, might be correct. Thompson vs. Hall, 6 Pick. 260 (referred to in Matthews vs. Rutherford, 7 An. 226), seems to have been a case where a demand note was raken as collateral “ six months after it was due, and under circumstances which might reasonably excite suspicion that it was affected by equities.” What the facts of that case were, however, we do not know, but in the present one the relations of parties originated within a few days after the collateral note was issued, and the protection against equities, which was the result of the first transaction, was not, as we have said, forfeited by the fact that by and through a later transaction she became the actual owner of the note. The fact that plaintiff turned over this note immediately after having herself received it, to her sister, the wife of Oasse (for safe keeping, as she says), and that she permitted it to remain so long in her hands, might be a circumstance going to throw doubt as to whether the note ever was held as collateral, but that fact itself' being established, we do not think the pledgee’s rights 'were injuriously affected by her placing it in her sister’s hands. There were no creditor’s rights involved.

In so far as the circumstances themselves under which plaintiff first took the note are concerned, the presumption resting from her holding the same would be that she acquired it in good faith before maturity for valuable consideration and in due course of trade. Plaintiff supports this presumption by her testimony. She under oath declares that having in July, 1890, over four thousand dollars of her own, her brother-in-law, Casse, asked her to lend it to him, which she agreed to do if he gave her security; that he told her he had this note of Boudreau and gave it to her as collateral security; that she knew nothing then nor afterward of any legal reason why it should not be paid; that Casse told her Boudreau owed him that amount, and she took the note in absolute good faith. Her testimony is direct, absolute and positive, and has not been contradicted. Defendant did not place Casse on the stand, though he was present at the trial.

There is but one single feature of the original transaction calculated to throw any suspicion about it, and that is a statement volunteered by plaintiff herself, in her testimony, that Casse told her when he gave her the note that he would never collect it himself. Plaintiff evidently attached no particular signifinance to the statement at that time or afterward. We do not think the circumstance sufficient to withdraw from the plaintiff the protection of the rule of the commercial law relative to the cutting off of the equities.

Defendant objected to evidence going to show that plaintiff ever held the note as collateral, on the ground that it was not admissible under the pleadings, as she said nothing in her petition on that sub - j'ect, but claimed to hold the note as owner. She did hold the note as owner at the time of the institution of the suit and therefore her pleadings were unobjectionable. When her good faith was attacked and the equities were sought to be opened she had the right to resist or repel the effort to do so by showing the facts connected with her holding the note prior to her acquiring the absolute ownership of the same.

Defendant has not established with any certainty the time at which the purchase by him of Oasse’s interest in the partnership was set aside; it was certainly not until after the note had been placed by him in Oasse’s possession, in a form such as would enable him to deal with it as strictly negotiable paper with third parties. It is not shown as a fact (even if that fact would have had any legal effect in the case) that this rescission took place prior to the transfer of the note to plaintiff as collateral. If defendant should suffer loss in this matter, it will be the result of his having so implicitly trusted his partner Casse. The fact that he may suffer loss is a matter over which we have no control.

We think the judgment correct, and it is hereby affirmed.


author: Nicholls, C. J.

text:
    No. 12,061.
    State of Louisiana vs. Harry Johnson.
    If before the jury has been completely impaneled, one of the jurors, -svho has been accepted and sworn, is taken ill and can not serve, it is no ground of complaint that the court should have excused him, called an additional juror and sent the cuse to trial.
    The State has the right on cross-examination of defendant’s witnesses to cross-examine them in respect to their relations with the accused in order to affect the weight and credibility of their evidence, and this, though the examination may cover matters not touched on by the witnesses in their direct examination. 33 An. 538, State vs. Willingham; Ibid., page 737, State vs. Gregory.
    A PPEAL from the Fourth Judicial District Oourt for the Parish of Oaldwell. Wear, J.

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

      C. P. Thornhill and A. B. Hundley for Defendant, Appellant.
    Submitted on briefs February 15, 1896.
    Opinion handed down February 24, 1896.
   The opinion of the court was delivered by

Nicholls, C. J.

Accused, convicted of murder and sentenced to be hung, has appealed. It appears that one O. R. Cody was called and accepted as a juror in the case. After he and nine other persons were sworn as jurors, he informed the court that he was unwell and requested to be excused from serving, whereupon the court asked the counsel of both sides if they had any objection to this being done.

The District Attorney replied he had none. Counsel of accused said he would leave the matter to the discretion of the court. The court excused the juror, and counsel then reserved a bill to its action. The judge says the juror’s appearance indicated he was quite ill, and he stated he was unable to sit upon the case. It is not asserted that this was not true. The jury was completed afterward, and the case went to trial. '

In Bishop’s Or. Pr., 2d Ed., Sec. 948, it is said that “if, while the jury is being made up, but before the list is completed, a particular juror who has been selected and sworn is excused for sickness, the case stands on different ground, and one more juror is simply selected in the usual course.”

An objection similar to the one now presented to us was urged and overruled in State vs. Moncla, 30 An. 869. We see no reason to change our views on that question.

On the trial of the cause, after one Eliza Berry, as a witness for the accused, had closed her testimony and she was being subjected to cross-examination by the State, she was asked “ if she did not stay all night in the cotton house with the defendant after and on the night of the killing, and if she was not his concubine.”

The question was objected on the ground that this matter was not touched on in the examination in chief; that the cross-examination must be confined to such matters as were brought out on direct examination. The court overruled the objection. The judge assigns as his reason that the evidence in the case disclosed that the witness was living with the accused as his concubine, and the evidence objected to was admissible as affecting her credibility.

The general proposition contended for by counsel of defendant was recognized by this court in State vs. Swayze, 30 An. 1323, but in State vs. Willingham, 33 An. 538, it said it would be an unreasonable extension of the rule to debar the State from proving on cross-examination the relations of the defendant’s witness to the defendant and to the parties referred to in his direct testimony, as affecting the weight and credibility of his evidence. The decision in State vs. Willingham was affirmed in State vs. Gregory, 33 An. 737. We find no error in the judgment, and it hereby affirmed.


text:
    No. 11,768.
    Blymer Ice Machine Company vs. R. T. McDonald and Judah Hart.
    The plaintiffs claim a balance, under a contract, for the erection of an ice machine complete.
    The defendants deny that plaintiffs have complied with the contract, and deny that they made timely delivery of the ice machine.
    The gravamen of defendants* complaint was against the absorber; that it was too small when the machine was operating with water at 90 deg. F, (the agreed temperature, for testing maximum capacity); that the absorbing apparatus was designed for a northern latitude.
    The plaintiffs, on the other hand, urged that the boiler capacity was insufficient; thatthe steam was not dry enough, and that in consequence there were frequent stoppages; that this accounted for the deficiency in the daily output of the ice.
    A few months after the machine had been erected the defendants sold it to a corporation in which they were the principal stockholders, and plaintiffs urge that in consequence of the sale the defendants are not entitled to' damages and to a diminution of the price, for causes arising after the sale.
    They claim more interest on the judgment, from which the plaintiffs appeal.

      With reference to the delivery of the machine the court decides: There was delay on the partof each, the defendants in erecting the boilers and furnishing steam and* water; the plaintiffs in not promptly having the machine ready to make ice at the agreed date. Both were at fault and neither was entitled to damages.

      Regarding the absorber: Held, that the defendants not having incurred the expense of a new one, audit not having been shown that it was out of proportion with the remaining parts of the machine, and it not having been proved thatthe absorber was too small to achieve the stipulated output of ice, they were hot entitled to a diminution of the price.

      The boilers: At first the boiler capacity was insufficient, and when another boiler was added the test as made did not determine that the absorbing apparatus of the ice machine was defective and too small.

      Reduction of the price and loss of profits: There was no such defect in the machine as would sustain a judgment for a reduction of the price.
    As a general rule subject to some qualification, anticipated profits, prevented by breach of contract, are not recoverable as damages.
    Damages for excess in the quantity of coal used prior to the sale of January 30, 1892, of the icc machine are not separately computed and proved. The repairs made on the ice machine, subsequent to the day of sale, were made for account of the purchasers, and not for account of the defendants.

      Interest: The unsettled state of the claim sustains the judgment of the District Court allowing interest only from judicial demand.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Rouse & Grant for Plaintiffs, Appellees.

      Farrar, Jonas & ICruttsohnitt and Rogers & Dodds for Defendants, Appellants.
    Argued and submitted June 17, 1895.
    Opinion handed down November 18, 1895.
    Rehearing refused March 9, 1896.
   The opinion of the court was delivered by

Breaux, J.

The Blymyer Ice Machine Company seeks to recover from the defendants a balance under a contract, and legal interest, for erecting an ice machine.

The contract between the plaintiffs and the defendants was prepared with some care, and contains a number of stipulations.

The plaintiffs agreed to make for the defendants an ice machine of the latest improved pattern and of a capacity of one hundred thousand pounds of the best quality of artificial ice per twenty-four hours, with cooling water at ninety degrees Fahrenheit, during the months of July and August, and to erect it in the city of New Orleans prior to the 1st day of June, 1891, with full charge of ammonia and salt for brine in the freezing tank, all' complete for the manufacture of ice. The Blymyer Ice Machine Company guaranteed that the plant would make five tons of good, clear merchantable ice to one ton of coal.

The plaintiffs agreed to make the retort of heavy steel and the coils therein with the joints on the outside; to make the tank of plate iron, with the freezing and brine tank insulated, encased in wood and furnished with covers. The plaintiffs also promised to make the ammonia pipes subject to pressure of extra thickness, of the best iron and steel, and workmanship, and of special pattern for saving ammonia. The test for these pipes was fixed at three hundred pounds per square inch.

The plaintiffs also contracted to furnish a complete distilling apparatus, filter, cranes, lifting apparatus and automatic can fillers.

The plaintiffs, in addition, was to prepare and deliver plans and furnish dimensions for buildings and foundations and platforms for machinery.

The plaintiffs engaged during two years to make needful repairs of the machinery caused by defective material or defective workmanship.

The defendants hound themselves to have the buildings ready for the machine and not cause delay.

They also agreed to furnish a competent person to aid in the work of erecting the machinery under the direction of plaintiffs’ engineer, in order that he might acquire needful experience to operate the machine for the defendants.

The defendants bound themselves to furnish the boilers.

They were also to have in readiness, when needed, a sufficient supply of water “convenient for the said party of the first part to make connections for distributing to the machine, tank and boilers.

“ The parties of the first part agrees to and does sell to the parties of the second part machinery and apparatus complete for making ice in New Orleans, erected on the grounds of the parties of the second part, and the parties of the second part are to pay for the same the sum of forty-one thousand five hundred dollars, and to build the necessary buildings according to the plans and specifications to be furnished by the parties of the first part, and furnish the boiler set ready for first party to make steam connections.”

Subsequently, in a separate agreement modifying the first, in consideration of an allowance of three thousand dollars in the price, the defendants consented to postpone the date of delivery from June 1 to July 1. On the 30th of January, 1892, the defendant, Judah Hart, who held a controlling interest, sold the entire plant; the property sold consisted of the ice machine, lands, and the other improvements thereon for full consideration.

The defendants denied in their answer that the machine came to the capacity required. They specially allege that plaintiff began to work on the ice machine late in June, 1891, too late to timely comply with their contract.

They claim judgment for damages growing out of the delay in not having delivered the ice plant at the time fixed, on the 1st of July, and they urge that, by plaintiff’s fault and negligence, the ice machine was not constructed and ready to make ice prior to the 4th day of September, 1892, and that they thereby were made to lose the opportunity of selling fifty tons of ice per day during the months of July and August, 1892, which they would have sold at a clear profit of four dollars per ton.

The issues on. the reconventional demand are abbreviated by the admission that the amount due the plaintiffs on the ice machine was the balance twenty-six-thousand six hundred and seven dollars and seventy-one cents, and that judgment should be rendered for this sum, unless the defences interposed should be held to be good. The following items are sustained by the lower court’s decision:

Item of eight hundred and forty-six dollars and twenty-six cents claimed in account E.

The learned Judge of the District Court allowed only fourteen dollars and eight cents of this account. The remainder was rejected by him for the reason that it bore date subsequent to January 30, 1892, when the defendant sold the ice machine and plant to the Municipal Ice Company.

He held that after that date, defendants having ceased to own the machine, or to control it, they were without capacity to claim for expenditures made on the plant.

He also, assi.ning substantially the same reason, rejected the claim of five thousand dollars made by the. defendants to pay the cost of a new absorber to put in the place of the one which the defendants claimed was deficient in capacity and too small to make fifty tons of ice with water at ninety degrees. By supplemental answer the defendants sued for a reduction of ten thousand dollars on the price of the machine because of the alleged failure to make five tons of ice with one ton of coal.

From a judgment for the plaintiff for twenty-six thousand five hundred and ten dollars and fifty-three cents, with interest from judicial demand, the defendants appeal.

PACTS REGARDING THE ALLEGED DELAY IN DELIVERING THE MACHINE.

In our summary of the evidence, we enter in the first place on the subject of defendants’ claim for plaintiffs’ delay alleged in erecting the machinery — sixty-six days at one hundred and twelve dollars per day. From the terms of the contract we infer, as there was no stipulation made regarding the date the plans of the building for the ice factory were to be delivered by the plaintiffs to the defendants, that they were to be furnished within a reasonable time. There were delays on each side — the plaintiffs in delivering the plans, and defendants in having alterations made in the plans,.and afterward by delays in undertaking the erection of the building under the plans. With reference to the delivery of the machine after the building had been erected, the facts are, that the defendants were slow in placing the boilers in the proper place. They were net put up, nor sufficient steam supplied on the 1st of July, the date agreed upon between the contracting parties.

The plaintiffs, also, were not ready at that date to operate the machine.

It is a fact, also, on the other hand, that the defendants did not employ a person to aid in the work of erecting the machine as required by the terms of the contract.

FACTS OF ABSORBING APPARATUS.

The absorber was too small; the machine was designed for a different climate and temperature are defendants’ complaints. We have deemed it necessary, to a conclusion, to examine each of the constituent elements of the ice machine and give some study to the modus operandi.

The first in importance of the different parts of the machine is the retort or still, consisting of a cylinder containing coils which are. submerged in aqua ammonia. By heat of the steam which communicates from the boilers into these coils, the ammonia gas is separated from the aqua ammonia and forced into a pipe which empties into the upper condenser where the aqueous vapor is separated from the gas. The aqueous vapor then drains back into the retort and the ammonia gas is conveyed through a pipe to the lower condenser, which is filled with coils immersed in the cold water. The gas condensed in the lower condenser is conveyed into the coils contained in the brine tank. In passing this ammoniacal gas through the coils of the brine tank, the brine is kept down below the freezing point of the water, placed in cans to be frozen. The heat of the water is absorbed by the brine. Returning to the operation of the retort or still, we note that the poor liquor at the bottom of this vessel is pressed from it through a pipe to a cooler, in which the coils are immersed in cold flowing water. Afterward this poor liquor is conveyed into the absorber, where it comes in contact with the generated gas from the refrigerator. The poor liquor absorbs the gas, here it is cooled and becomes again rich liquor and is conveyed to the retort and again the ammonia gas is freed and separated from the poor liquor in the still, and is conveyed as before through pipes and coils in tanks to the refrigerator.

EVIDENCE RELATING TO THE BOILERS.

The next factor of importance are the boilers. We have already stated that the defendants furnished, the boilers. They were informed by the plaintiffs that it would require boilers of two hundred and twenty-five horse-power, and of a capacity to evaporate eight pounds of water to one pound of coal. At first the defendants furnished two vertical tubular boilers. The complaint was, a number of times, brought to defendants’ attention; that they did not supply sufficient steam; that the water foamed and the steam was not suf-ciently dry; that the construction of the boilers was such that the body of water was not in proportion to the heating surface or steam space, and that in consequence the steam was saturated and conveyed water in the pipes, and moreover that they did not produce any superheated steam. An expert for defendants, regarding plaintiffs’ complaint of the want of latent or superheat, testified that there was about one and two-thirds per cent, increased efficiency in these boilers owing to superheated steam measured in water evaporated, .per pound of coal. It is in place to state that the witness also testified: that it was necessary to blow off water at times during the last test, and that it was not practicable to determine accurately the amount of credit the boilers were entitled to therefor; that the superheat was treated as an equivalent to the water blowed off. In other words he did not credit the boiler with the water blown' off or debit them with the superheat. The loss of the power was equivalent to the gain by the latter, i. e., the loss of heat by the blowing off of saturated water from the steam boilers was considered a set-off to the superheated steam not allowed. The fact remains that the two first boilers put in were not of sufficient strength. Regarding the use of steam in ice making, we are informed that it is used to pump water into the tank; to blow through the ammonia retort; to operate the ammonia pump and the boiler feed pump; to produce distilled water, that it requires dry steam to operate the pumps, such as those supplied by plaintiffs. It is also in evidence that the pressure of the steam from the boilers does not directly affect the absorber, and it is further contended that if there was steam enough to run all the parts where steam was used, the deficiency of the machine where steam was not used should be separately considered, i. e., without reference to the steam necessary affecting other parts of the machine.

To this statement, the pi dntiffs interpose the answer, that the steam pressure in the boiler was very variable; the heat was not sufficient for the proper distillation of the ammonia in the retort and that the supply of the poor liquor to the absorber was not what it should have been.

It is in proof that the strength of the rich liquor was twenty-eight and one - half Beaumé, and of the poor liquor twenty-one and one-half, and it is stated in evidence that the strength of the poor liquor will vary and affect the operation of the absorber, when the steam pressure in the retort is not regular.

In short, the plaintiffs urge that the failure to make the number of pounds of ice was entirely caused by the insufficiency of the steam of the two boilers and their defective construction; while the defendants are equally as persistent, in their contention that all the trouble arose from the weakness of the absorbing apparatus furnished by plaintiffs. A highly competent expert (commended as such by the defendants), who had charge for them of the last test of the machine, testifies that the machine was well made: “It is a good machine in theory, design and workmanship.” At another point of the examination, the same witness states: “I think the absorber is not large enoughto handle a sufficient quantity of gas under the conditions that existed with the temperature at 90 deg. to permit the machine to make its output of ice.” The remaining evidence will be considered on the merits, with the law of the case and. upon the facts.

In their answer to the appeal the plaintiffs pray that the judgment appealed from be amended so as to award interest to the plaintiffs at] the rate of six per cent, from September 1, 1891, on eighteen thousand dollars, and at the rate of five per cent, on the balance of the judgment from that date.

EFFECT OF SALE OF ICE MACHINE.

The defendants having sold the ice machine, together, with their plant, could not retain the price and offer to return the property; but they claimed damages and areduction of the price. The damages claimed as having been suffered, after the defendants had sold the property to a joint stock company, for a fair price, can not be recovered by them.

They had parted with their interest.

Although they were the principal stockholders of the company, their right by the sale of the property to the company had become so completely merged into the company that they could no longer obtain damages on a machine operated by the company for its own account and not for the personal account of the defendants. Moreover, is it possible to decide that such a corporation has not a separate, independent existence in presence of the law’s declaration that such corporations are judicial persons with rights distinct from those of the shareholders personally. If the defendants were entitled to damages prior to the sale, they were not divested of that right by the sale; nor did the sale defeat their right of action quanti minores.

TIMELY DELIVERY OE THE MACHINE.

Our statement of the facts regarding the delivery of the machine and the delays urged as ground to recover one hundred and twelve dollars per day damages, leave but little for us to decide on that point. The defendants themselves were partly responsible for the delay. Their buildings were not ready to receive the machinery; they did not furnish the steam and water to make the test and to begin operation. One can not avail of delays to which he has contributed as grounds for damages. Moreover, they were not in position to place plaintiffs in default. The one “wishing to put the other in default must be himself ready.” R. O. 0. 1914.

CAPACITY OE THE ABSORBER.

The objection to the absorber is not sustained by the weight of the testimony. The defendants complain more particularly of the absorber as being too small. The evidence relates to the alleged inefficiency of that apparatus — that it is too small to perform the functions required. The strength of machinery, intimately connected in all its parts and dependent for its successful operation upon the energy of each element, is to be measured by the maximum capacity of its weakest point, as a chain, for instance, is only as strong as its weakest link. In the first trial it was not determined with absolute certainty which was the weakest point of the machine and the cause of the deficiency in the production of ice — whether it was the absorber or the boilers. The fact that it (a short time subsequently) became necessary to put in another boiler gives strong grounds to presume that the boilers, during that test, at any rate, were inefficient.

Regarding the absorber, it is in proof that the average temperature of the overflowing water in this vessel was 113.84 deg. with cooling water at 90 deg. There wes nothing unusual, in so far as relates to the back pressure here, and nothing unfavorable was shown in that respect. The heat was not greater than usually felt in such vessels of an ice machine. The strength of the poor liquor was one of the subjects of inquiry. That liquid is sent from the retort to the absorber under pressure from the retort. The functions of the absorber are to receive the poor liquor from the retort and the ammonia from the refrigerating tank. In this absorbing apparatus they are converted into rich liquor, it passes into the rich liquor vase and fr that vase it is pumped into the retort. The strength of the poor liquor is not principally owing to the functions of the absorber, for we have noted that, the higher the pressure in the retort the poorer and better the liquor that is sent to the absorber. This .poor liquor moves from the retort to the absorber, and not vice versa.

With reference to the difference in temperature and the defence that in designing this machine account was not kept of the difference between the temperature north and that south, and of the difference in the moisture here, where the air is very moist. The witnesses for plaintiff state: machines of the same capacity sold north were sold as sixty and sixty-five-ton machines, and the one sold here was sold as a fifty-ton machine, allowance having been made for difference in exterior temperature and the difference in cooling water.

It is in proof that it is possible, with reasonable certainty, to determine the capacity of a machine (designed for water at 54 deg. and fifty-five or sixty tons of ice), and how much ice.it would make with cooling water at 90 deg.; but in all this the retort and the absorber are intimately connected. One wants the aid of the other. Units eget auxilio alterius. We are not prepared; indeed, the record does not show such a state of facts as enables us to determine that ' either is an offending organ in the system of the ice making machine.

It is true that the rich liquor which flows directly from the ab - sorber was 28.05 Beaumé, and that in machines in perfect condition it very rarely shows over 28, and that the poor liquor Which flows from the retort to the absorber was 21.05. In a machine operating under favorable conditions the poor liquor will show about 18, when the rich is 28. The difference here, during a test made under the circumstances that it was made, was not such as enables us to condemn the absorber as a failure.

One of defendants’ witnesses, a scientific expert, estimates that at 20 deg. higher, the capacity of the machine would be lessened to the extent of about seven per cent., and the consumption of coal increased about jive per cent., by the moisture and atmospheric condition. If such a calculation can be made regarding moisture and temperature, it follows that the effect of differences in the tempera - ture of water on the production of ice can be ascertained with some degree of certainty.

The experts differ on many points:

Those who testified for the defendant assert that they operated the machine to greater advantage by keeping the temperature of the brine tank at 25 deg.

They refer to the favorable result they obtained with the brine at that degree of temperature. The experts'for the plaintiffs testify that it should have been much less; that it should have been reduced at least to 16 deg. or 17 deg. in order to effect good work with expedition. They also refer to practical operations of ice machines, and of the power necessary to transform water at the freezing point with ice as stated substantially in our statement of facts.

The second test was equally as unsatisfactory. It was made more than a year after the first test, without having given timely notice to the plaintiffs. The machine was not overhauled, cleaned, repaired, contradictorily with the plainiiffs.

It devolved upon the defendants to give timely notice to the plaintiffs of the test they deemed necessary to determine their respective rights. They were in possession and were operating the machine; any cause of complaint the defendants had should have been timely communicated to the plaintiffs, and an opportunity offered to remedy the defect. Together with the want of timely no - tice and preparation for the test, the plaintiffs urge upon our attention the testimony: That the brine in the brine tank was below the top pipe of the coils; that the design of the machine is that the •ammonia passing through the coils shall absorb the heat from the brine, but that when the coils are above the brine it only absorbs it from the atmosphere. Also that there were holes in the brine tank, and all causing loss to the machine; that there was an accumulation •of hydro-carbon gas in those coils, which prevented the circulation of the anhydrous gas; which occupied the space and absorbed no heat, causing loss in the freezing tank and waste of coal to heat a second time the anhydrous gas in the retort; that the temperature of the brine tank was too high; that the absorber valves were almost entirely closed; that the steam-condensing coils leaked; that the witnesses in charge of the trial for defendants were absent most of the "time, and other similar objections, which demonstrate the necessity “there was of notice to plaintiffs, and common preparation on part of both plaintiffs and defendants for the test.

Under the circumstances we do not think that the defendants have •sustained their claims in reconvention.

Granted, for a moment, that the absorber was too small, the contract price for the machine does not seem to have been agreed upon with reference to anticipated profits, in the event of defect of the machine. The general rule is that such profits are not recoverable as damages, unless it may be reasonably presumed that they were within the intent and mutual understanding of the contracting parties.

Regarding the boilers, defendants’ obligation was *bo furnish the required steam power. During the first test it was evident that the 'Steam was insufficient. The third boiler was erected some time after this test; that fact alone shows that the other two were not of sufficient strength. Plaintiffs’ witnesses are pronounced in their utterances against upright tubular boilers as steam generators in ice making. Save that the boilers, even after the number was increased to three, do not seem to have been in favor with nearly all the witnesses, there does not appear, after these- boilers (the three) , came into use, to have been any considerable objection to them.

REPAIRS TO THE MACHINERY.

The plaintiffs bound themselves to supply, free of charge, for two years, any repairs of the machinery, on account of breakage. The expenses incurred for repairs on the machine prior to the sale of January, 1892, made by the defendants to the Municipal Ice Company, were allowed by the lower court. The items for repairs made subsequent to the sale were rejected. The evidence as to the last expenses, in point of date, did not bring them within the terms of the contract. It was not shown that they became necessary “on account of breakage of defective material or workmanship,” words evincing condition of the sale. Moreover, plaintiffs were entitled to some notice prior to making these repairs.

In addition, the property having been sold, the defendants had no claims for repairs made by their vendee.

LOSS OK PROFITS — REDUCTION OF THE PRICE.

The question of excess of consumption of coal comes up first under this heading for consideration. • It is claimed by the defendants that the machine is not capable of making five tons of ice upon one ton of coal. This, we judge, was agreed upon as a measure to be followed in testing the capacity of the machine, and was not agreed upon to operate in the nature of a “ royalty” or amount to be recovered in case of deficiency. It would be somewhat in the nature of a royalty” (not contemplated, as we understand, at the date of the contract), if defendants were allowed a continuous claim for damages, based on the number of pounds of coal consumed in excess of a stated number; it would be continuous, for if they had the right prior to the sale it would continue in some one after the sale.

In the brief that view is not argued, and claim for damages on that ground is not pressed. .

The reduction of the price is the next question to which we desire to give attention. It is true, the right to a reduction of the price, because of the defect in the property sold remains with the buyer, even after he sold it to a third person who became his vendee. That principle was announced in the case of Brown vs. Duplantier, 1 Martin, N. S., 317.

The condition here is different.

The question is more particularly one of damages than one of defect of the machine. The damages claimed are uncertain and remote and for profits anticipated, which possibly never would have been realized.

A similar question was decidedly against the allowing the amount claimed in Howard vs. Stillwall & Pierce Manufacturing Company, 139 U. S. 199.

Finally, although the first decision cited (Martin’s) inspires confidence in the conclusion reached, we can not avoid the thought that only in a very clear case the vendor of a defective machine, who has sold it for a consideration equal to the price paid by him, is entitled to recover a claim for asserted defects.

INTEREST.

The plaintiffs claim more interest than allowed by the judgment of the District Oourt. Under the circumstances of this case, we do not think that the contract, in so far as relates to interest, should receive the close interpretation for which the plaintiffs contend. They prayed originally for interest from judicial demand; this was properly granted without reference to the amendment for a larger amount.

The judgment is affirmed.

Nicholls, O. J., was not present when the case was argued and takes no part.


author: Watkins, J.

text:
    No. 11,917.
    Home Insurance Company vs. Board of Assessors.
    Losses of an insurance company are necessary incidents of its business; are constantly occurring and are provided againstintherisks undertaken; and premi urns are collected for .the purpose of reimbursement.
    The reimbursement of reinsurances which are involved in pending litigation between the insurance company and its correspondents and customers does not constitute a proper object of reduction in assessment.
    Nor is an over-estimate, made of unearned premiums collected and returned to its policy-holders, on account of cancellation of policies, a proper object of reduction. It is natural and to be expected that such estimates will fluctuate, and hence an assessment which is predicated upon an estimate can not be absolutely certain.
    A PPEAL from the Civil District Oourt for the Parish of Orieans. Rightor, J.

      Browne-& Choate for Plaintiff, Appellant.

      E. A. O’Sullivan, City Attorney, and Henry Renshaw, Assistant City Attorney, for Defendants, Appellees.

      Argued and submitted December 4, 1895.
    Opinion handed down January 6, 1896.
    Rehearing refused February 24, 1896.
   Tbe opinion of tbe court was delivered by

Watkins, J.

Tbe object of tbis suit is to obtain a reduction of plaintiff’s assessment, wbicb is as follows, viz.:

Real estate. $80,000

Money loaned at interest, all credits and all bills receivable for money loaned or advanced, or for goods sold. 98,188'

Money in possession, or on deposit, or on hand. 118,022

Bonds of all Rinds, specifying each Rind and their value. 26,OOq

Total.$272,510

Tbis assessment is for the year 1894.

Tbe contention of tbe defendant is that tbe assessment is correct, and conforms exactly with a published statement made by the plaintiff on tbe 1st of January, 1894, which was verified by tbe affidavits of the president, secretary, and three members of its finance committee, and was published in several daily papers of the city, at that time; while that of tbe plaintiff is that since the date of the published statement, which is admitted to have been correct at the time it was made, changes and alterations have taken place in the company’s assets, entitling it to certain reductions in its assessment, which are as follows, viz.:

First — For losses suffered by it and paid after its published statement had been made, sixty-nine thousand four hundred and fifty - four dollars and fifty-nine cents.

Second — Amount of money loaned, reduced from the stated sum of ninety-eight thousand four hundred and eighty-eight dollars to thirty-one thousand three hundred and ninety-four dollars and thirty-seven cents.

Third — Amount claimed by the plaintiff for reinsurance involved in suit and issue doubtful, twenty-three thousand dollars.

Fourth — Amount of premiums unearned, returned on policies canceled, in excess of estimate, six thousand dollars.

Fifth — Amount of Georgia Staoe bonds owned by the company and deposited with the treasurer of that State to secure payment of policy-holders, same having been taxed in that State, twenty-six thousand dollars.

The total reductions claimed represent the gross sum of one hundred and sixty-five thousand eight hundred and forty-eight dollars- and ninety-six cents, on a total assessment of two hundred and seventy-two thousand five hundred and ten dollars, leaving an admitted balance of only one hundred and six thousand six hundred and sixty-two dollars and four cents, or a shrinkage of considerably more than fifty per cent, within half a year.

I.

Losses are, to an insurance company, necessary incidents of its business. They are constantly occurring, and are contracted and insured against; but premiums are collected for the purpose of reimbursement thereof.

These are in the nature of debts of the company, the payment of which'is contemplated from the character of its business.

The assessment of property is not affected by the amount of debts the taxpayer owes. If they were a factor in the matter-of assessment, only people who are solvent could be required to pay taxes.

II.

We do not see how the plaintiff can expect a reduction on account-of the amount of money loaned being actually less by sixty-seven-thousand and ninety-four dollars than what it was stated to have been in the company’s sworn published statement. It is in the nature of an estoppel in pais, binding on the company. It. was made by the company’s officers, possessed of the fullest and most accurate information,-and with the evident object of advancing the company’s-interest financially.

That statement is in evidence, and the president and secretary testified that it was “ true and correct when made,” , .

In the brief nothing is said in reference to this item, and the president states, as a witness simply, that the assessment is incorrect— that the company did not have that much money loaned, but he vouchsafed no éxplanation of the published statement.

But on the cross-examination of the president as a witness he admitted that the ninety-eight thousand four hundred and eighty-eight dollars, which is the item on plaintiff’s assessment which embraces “ money loaned at interest, all credits, etc.,” was made up as follows:

Loans on collaterals ...'.$81,89á

Uncollected insurance. 21,382

Premiums in course of collection . 51,61i

Less 15 per cent.

His admission destroys his claim altogether and proves that he is not entitled to the reduction he claimed. He made claim to the reduction on the ground that the entire item of ninety-eight thousand four hundred and eighty-eight dollars was for money loaned; whereas, his admission as a witness is that it includes uncollected reinsur - anees and premiums in course of collection, also.

III.

The reinsurances which are involved in suit are included in the item of the assessment last mentioned; but the company has a decree of the United States Circuit Court in its favor, and its apprehension arises only from the fact that the case has been appealed to the United States Circuit Court of Appeals. And defendants contention is, that “ until they are finally passed upon by the court of last resort, it can not be determined whether they can be classed among the assets of the company or not.” But we do not regard that to be a correct conclusion. The claims referred to are carried on the books of the company as forming part of its assets, and for that reason they are liable to assessment. It is trite to say that an assessment is based upon prima facie ownership, and upon possible values. These claims were in esse and in the company’s possession, and carried on its books. It would be imposing a great hardship upon the defendant to be compelled to establish title to the property in the taxpayer, or wait the uncertain issue of pending or possible litigation, before making an assessment. We think the board had the right to make the assessment, with the lights before them, without regard to the suit. .

IV.

In our opinion the company is not entitled to any reduction for “the estimated amount of unearned premiums collected, and returned to the policy-holders, on account of cancellation of policies.” The assessment followed the line pursued by the company in making its published statement; and we can not regard it material to the question, that the amount returned to policy-holders was somewhat in excess of the previous estimate. The law fixes a date for the completion of assessments, as the 21st of March. Sec. 26 of Act 85 of 1888; Sec. 20 of Act 106 of 1890. It would destroy all certainty in assessments, if subsequent fluctuations in the value of property assessed, or in the taxpayer’s estimate of it, were held to be sufficient cause for an alteration thereof, conformably thereto.

V.

The Georgia State bonds are listed in the company’s published statement of December 81, 1893, and the proof shows that they are on deposit with the treasurer of that State to secure the'payment of policy-holders in that State. The statement of the president is, that he has been endeavoring to get possession of them for some time, but that same are withheld until two or three small matters of litigation in that State have been settled. There is no proof in the record to the effect that these bonds have been taxed in that State. The taxability of these bonds was maintained in Mechanics and Traders’ Insurance Company vs. Board, 47 An. 1498, and we think our decision is correct.

Haying given due attention to all the grounds of complaint the plaintiff has urged against the assessment, our conclusion is that they are not well taken.

Judgment affirmed.

Me. Justice Bbeaux dissents for the reasons for dissenting from the decision in the case of Mechanics and Traders’ Insurance Company vs. Board, 47 An. 1498.


author: WATKINS, J.

text:
    No. 12,030.
    State ex rel. G. A. Gondran, Administrator, vs. Emile Rost, Judge of the Twenty-first Judicial District.
    The plaintiff may, in every stage of the suit previous to judgment being rendered discontinue his suit on paying the costs. This rule is subject, however, to some exceptions, as, for instance, after the case has gone to trial and evidence has been adduced, the judge can exercise his discretion as to the hind of judgment he shall enter; when an intervenor prays for the dissolution of the plaintiff’s injunction and damages; when a defendant has set up in his answer a reconventional demand; when the rights of the plaintiff in suit shall have been seized on execution by a third party.
    Aside from such exceptions as the foregoing, the rule is absolute.
    A PPLICATION for Writs of Certiorari aud Mandamus.

      R. N. Sims for Relator.

      G. V. Soniat for Respondent.
    Submitted on briefs January 6, 1895.
    Opinion handed down January 20, 1896.
    Rehearing refused February 24, 1896.
   The opinion of the court was delivered by

WATKINS, J.

Relator avers, that in the suit of George P. Jones vs. P. J. Coffman, in the court of the respondent, an attachment was obtained and the property of defendant seized; and, subsequently, various parties filed interventions therein, claiming liens and privileges on the property attached, and bonded same. That the plaintiff died pendente lite, and he was appointed administrator, and prior to the submission of the cause, he filed a motion to discontinue and dismiss the suit.

That, upan the trial, and submission of said motion, the respondent refused to allow a dismissal, or discontinuance of said suit.

He avers that his right to discontinue and dismiss said suit was and is absolute and unconditional; and that the refusal of the respondent to allow same is erroneous and operates to his great injury; and that the amount involved in said suit exceeds two thousand dollars, exclusive of interest.

His prayer is that the record of said suit be brought up, so that its validity may be ascertained and its illegality pronounced, and that a peremptory .writ of mandamus issue commanding respondent to discontinue the aforesaid suit.

Respondent returns that the motion to dismiss, filed by relator’s counsel, dees not comply with O. P. 491, in that it does not make mention of the payment of costs; and the costs were never legally tendered, there having been nothing bub a statement of counsel that the costs would be paid.

That, when the forthcoming bond of the defendant was tendered, it was stated to the court that all parties had agreed that one of the intervenors should be accepted as surety, bub that it subsequenbly transpired that one of the intervenors had not given his consent, the surety being a resident of another parish and strenuously opposed the removal of the proceeds out of the parish; and that he subsequently took a rule on the signers of the agreement to have it canceled and the proceeds of the sale of the property seized returned into the possession of the sheriff — the rule still pending and undisposed of.

That said proceeding created a quasi concur sus, in which all parties to the suit are participants, thus precluding plaintiff from dismissing his suit.

That relator can not discontinue his suit “ until things are replaced in their primitive condition; that when property or proceeds have been removed from the custody of the court, where they properly belong, restitution must first be made before a sweeping continuance can be allowed.

“That if this continuance had been allowed all proceedings, interventions, agreements and said bond of Coffman, with Reddy as surety, would have lapsed, upon the principle sublato fundamento cadit opus; thus leaving third opponents herein without any recourse, in this case, as P. J. Coffman, defendant herein, is an absentee andt without any property in the State of Louisiana.”

That it is his duty to preserve, in their primitive regularity, the. rights of litigants, and to prevent a grievous wrong and injustice.

Finally, that he is vested with judicial discretion in the premises,, as “a plaintiff has not the right to discontinue his suit * * under any and all circumstances.”

It appears from the original record that the defendant Ooffmaú executed bond, with O. J. Reddy as surety, in favor of the sheriff, for the sum of five thousand nine hundred and sixty-eight dollars, the amount of proceeds realized from the sale of the property attached and then in his hands, for the account of the plaintiffs as attaching creditors, and the intervenors asserting privileges on same.

The bond recites that this sum was surrendered and released to the defendant on said bond., the obligation of which is to “satisfy such judgment as may be rendered against him in the suit pending against him,” etc.

Relator relies upon Art. 491 of the Code of Practice, as his authority for demanding of the respondent the dismissal of the suit in question.

It provides that “the plaintiff may, in every stage of the suit previous to judgment being rendered, discontinue the suit on paying the costs.” C. P. 5S2.

This article has been frequently interpreted by this court; and in. Meyers & Co. vs. Birotte, McClelland, intervenor, 41 An. 745, we said:

“ The plaintiffs had the unquestioned right, previous to judgment, to discontinue their suit on paying the costs.” O. P. 491.

“ The dismissal of their suit operated at once the release of the property which was claimed by the intervenors,” etc.

In Barron vs. Jacobs, 38 An. 370, it was held that the dismissal of' the suit carried with it the intervention.

This seems to be the general course of the decisions interpreting that article of the Code of Practice.

We have given attention to respondent’s contentions without concurring in them.

In Crocker vs. Turnstall, 6 Rob. 354, the objection urged was “that the defendant, having already offered evidence, could not suffer a non-suit, but that the case must be adjudged on the evidence in court.” The District Judge so decided, and his judgment was affirmed.

It was undoubtedly correct for the judge to determine on .the evidence adduced, what judgment he should render.

In Whittemore vs. Watts, 7 R. 10, it was held that “when an intervening party prays for the dissolution of an injunction obtained by the plaintiff, and for interest and damages, the plaintiff can not, by dismissing his suit, deprive the former of his right to judgment.”

His demand for damages was in the nature of a reconventional demand.

In Coxe vs. Downs, 5 R. 133, it was held that “asa general rule a plaintiff may discontinue his suit on the payment of costs; but he can not, by so doing, put the defendant out of court and defeat any legal rights the latter may have acquired under a demand in recon-vention,” etc.

This court has frequently so decided. Broussard vs. Duhamel, 4 La. 366; Brown vs. Robichaux, 15 An. 70; McDonogh vs. Dutillet, 3 An. 660; Verges vs. Gonzales, 33 An. 415; Davis vs. Young, 35 An. 740.

In Succession of Baum, 11 Rob. 314, it was held that “when the rights of the plaintiff in an action against a succession have been seized under fi.fa. he can not discontinue.”

In Gayden vs. Railroad Co., 39 An. 270, the question.was as to the plaintiff’s right to enter a remittitur of the excess above two thousand dollars after the verdict of a jury, and that right was denied.

The foregoing decisions collate all the exceptions we have been able to find to the plaintiff’s right to discontinue his suit at will, and not one of them applies to the instant case.

In State ex rel. Moss & Co. vs. Judge, 40 An. 203, relators, as defendants, sought by mandamus to compel the respondent to permit them to bond the property attached, there being several attaching creditors. But this'court declined to make the writ peremptory, on the ground that relators had entered into a written agreement that the proceeds of sale of the property attached should remain in the hands of the sheriff to await the judgment of the court.

In this case, on the contrary, the agreement was to the effect that defendant might furnish sureties residing in another parish, thus facilitating the release of the property attached. Any party in interest may sue on a bond, given for the release of property attached, in conformity with Code of Practice, Art. 259. Wright vs. Oakey & Co., 16 An. 127.

The voluntary dismissal of plaintiff’s suit would leave the rights of all other parties to the suit wholly unimpaired, the bond exigible, and the demands of the litigants unaffected thereby.

Unlike the judgment of a court dissolving an attachment,, the' voluntary dismissal of a suit does not have the effect of discharging the surety on a forthcoming bond.

With regard to plaintiff’s motion to enter a non-suit, being silent as to the payment of costs, it is sufficient to observe that he is primarily bound therefor. Dunbar vs. Murphy, 11 An. 713.

The law provides that "in every case the costs shall be paid by the party cast ” (C. P. 549); and “ if the court have not decreed in their judgment that the party cast should pay the costs, the same are nevertheless due to the party in whose favor the judgment had been given; and such party shall have the same taxed on execution of the judgment.” C. P. 551.

Party pays costs when cast upon any issue. Holzab vs. Railroad Co., 38 An. 185; McCarthy vs. Baze, 26 An. 382.

It is a familiar principle that judicial sureties are bound according to the terms of the law under which the bond is taken; and it has been repeatedly decided that the domicile of judicial sureties is by law to be within the jurisdiction of the court in which the surety-ship is undertaken; and such sureties, though their domicile be beyond the jurisdiction of the court, by entering into such aeon-tract render themselves amenable to its jurisdiction. R. C. C. 3042 Potter vs. Richardson, 1 N. S. 276; Mourain vs. DeVall, 12 La. 93; The State vs. Judge, 2 R. 451; Wallace vs. Glover, 3 R. 413.

A judicial surety must have suffieient'property to satisfy the obligation and property liable to seizure within the State. Act 24 of 1876; State ex rel. Menge vs. Judge, 36 An. 711; State ex rel. Favre vs. Judge, 28 An. 888, overruled.

Our conclusion is that the respondent was without discretion in the premises, and that the mandamus should be made peremptory.

It is therefore ordered and decreed that the preliminary writ of mandamus be made peremptory, commanding the respondent to enter a voluntary non-suit in the aforesaid cause, on the motion of the plaintiff; and that.the cost of this proceeding be taxed against the respondent.