author: Manning, J. Roché, J. Fenner, J. Pociié, J.

text:
    No. 9434.
    Adolphe Schreibser vs. Board of Assessors.
    The shares of stock of the New Orleans Cotton Exchange have a money-value independent of and in addition to the privilege of membership which the ownership of them, may secure to the holder. They may be owned and held by a person not a member of the Exchange, and when so held are received as collateral or as pledges by Banks, and other money-lending institutions. They are bought and sóidas other stocks are and are therefore included in the taxable property of the holder and owner of them as being a thing pos • sessing money-value.
    The law authorizing subsequent assessment of property which had been omitted from the rolls in past years applies only to property which had been unlawfully and erroneously omitted, and not to property which was not assessable under the law in force in those years. The assessment of property in 1882 was governed by Act 77 of 1880 ? and the provisions of A cfc 882, so far as assessments were concerned, applied only to future years. * *
    This Court having held that the stock of the Cotton Exchange was not assessable under the Act of 1880, it follows that it was lawfully omitted from the rolls of 1882 and cannot by subsequent proceedings be assessed for that year.
    A PEAL from the Civil District Court for the Parish of Orleans. t A. Tissoi, J.

      Henry O. Miller and Bayne <& Denegre for Plaiutiff and Appellee.

      Wynne Tiogers for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff seeks by this action to compel the defendant to strike from filie rolls for 1882, 1883, and 1884 an assessment of one share of stock of the New Orleans Cotton Exchange made against him as owner of it, on the ground that there is no law providing for the assessment or taxation of such shares.

In 1882 the Board of Assessors assessed against the Cotton Exchange all the shares of its stock, and we held that this was without warrant of law because the Act of 1880 had in contemplation the assessment and taxation of stock in money-making and dividend-paying corporations alone, and as it appeared that the Cotton Exchange was in neither of these categories, we annulled the assessment. N. 0. Cotton Ex. vs. Bd. of Assessors, 35 Ann. 1154.

The assessment in that case was made under sec. 48 of the Act of 1880, Sess. Acts, p. 102, and the plaintiff argues that the assessment in this case, having been made under sec. 28 of the Act of 1882, Sess. Acts p. 128, which is identical with the other, the decision then made applies here and a similar decree must be entered. We do not think so.

These two sections of the two Acts are identical but there are essential differences in other sections. The Act of 1882 is more comprehensive than its predecessor and the assessment now made is based upon other Sections than that cited. The first Section of the Act of 1880 merely directs that taxes shall be levied upon the assessed valuation of all property within the State except such as is expressly exempted. The corresponding section of the Act of 1882 repeats this language and then proceeds to declare that “the term property as herein used means and includes all movable property, all personal property * * all shares of stock and all other things whatever possessing any money-value,” and near the close of the Act there is a supplemental definition of various terms used therein, i. e. “the phrase personal property or movable property shall be held to mean and include all-tilings other than real estate which have any pecuniary value, and moneys, credits, investment in bonds, stocks, shares in joint-stock companies or otherwise.” Sec. 88.

It is not claimed that the Cotton Exchange is a joint-stock company nor is it, since in the suit against it we found that “ it pays no dividends, lends no money, transacts no business of its own from which pecuniary profits result to itself or to its members,” but it is manifest that shares in other companies are equally declared included in the phrases movable or personal property, and even if this were not broad enough, the term property alone is expressly defined as meaning inter alios all shares of stock and whatever possesses a money-value.

That the shares of stock of the Cotton Exchange have a money-value is apparent from the testimony of its President and Secretary. Three or four years ago a share was worth forty-seven hundred dollars. It now ranges from one thousand to fourteen hundred dollars. Banks and other money-lending institutions receive the stock of the Exchange as collateral for loans and as pledges. It is quoted among other stocks and that too upon the boards of the Exchange itself. It is bought and sold as other stocks are and is sometimes bought as an investment. Any one may buy and hold it. No one can be a member of the Exchange unless he owns a share, and therefore it has a value outside of and beyond and in addition to its general market-value, as its ownership carries with it a personal privilege. But the ownership of a share does,not entitle one to membership. There are seventy or eighty shares held b| persons who are not members and they acquired them by purchase. The value of shares therefore does not depend solely upon the privilege or hope of being elected- a member. They are bought as other stock is for speculation as well as investment. They have all the indicia of other securities, such as bank-stock, insurance-stock, etc. When the owner dies, they go among other assets into his succession. Like other stocks, their value fluctuates with the demand for them. If seventy or eighty persons, not now’members of the Exchange and not holding any stock, should conceive that their business would be greatly promoted by membership or that other advantages would accrue to them thereby, and they should seek to buy shares, the seventy or eighty holders who are not members would find an instant demand for their shares and an appreciation of their market value would follow.

If these shares of stock be not taxable, it would be difficult to find any securities that are. They fall within the definition of property as including all shares of stock and of course within the broader designation of whatever'has a money value.

Besides the objections to the assessment of 1884 there is an additional one to those of 1882 and 1883. These shares of stock were not assessed on the rolls for those years but have been placed upon supplemental rolls. This is expressly authorized by the Act of 1882 when if empowers the assessors to assess any property that may have been omitted. Sess., Acts, p. 122. sec. 11.

The lower court relieved the plaintiff froiu the assessment of his share of stock which we think is error. Therefore

It is ordered and decreed that the judgment of the lower court is reversed, and that the plaintiff’s demand be dismissed and the defendant have and recover of him judgment rejecting the same and for costs.

Dissenting Opinion.

Roché, J.

In the case of the Cotton Exchange vs. Board of Assessors, 35 Ann. 1154, we annulled the assessment of shares in the Cotton Exchange, on the distinct ground that there was no law providing for the assessment of that kind of property, or for the collection of taxes levied thereon..

In that proceeding the attempt was made to assess the shares against the corporation, and to collect the tax from that body.

In this case the assessment is made directly against the share-holder, but there is no other difference, and the right to tax the shares at all is yet the vital question at issue.

In the Cotton Exchange case, we said emphatically: “However clear may be the power or even the duty of the legislature to tax any particular species of property, the burden cannot be imposed until that power is exercised.”

The question presented for solution is therefore to ascertain whether since the date of that decision, the legislature has sought to exercise or vivify that dormant power, in order to reach the shares of the Cotton Exchange.

The only legislation on the subject matter is to be found in Act 96 of 1882, and I have sought in vain for any language in that act which can in the least justify the conclusion that the law-maker intended therein or thereby to affect the taxable status of these shares of stock.

Section 28 of 1882 is a mere reproduction of section 48 of 1880, and both manifestly refer exclusively to money-making or dividend-paying corporations, and we have already adjudicated that the Cotton Exchange did not partake of either character.

Any language in section 1 of the act of 1882,. which is general and directory in its character, tending to include this kind of property, must be controlled by and construed with reference’"to section 28, which is special and pointed in its provisions, and is therefore the law of the case. That rule of construction is too well settled by jurisprudence to admit of discussion at this day.

In my opinion, our statutes are to-day as barren of authority to tax these shares of stock as they were at the time that our Cotton Exchange decision was rendered, and I find no reason to justify a different conclusion in the instant case.

I therefore respectfully dissent from the opinion and decree of the • majority in this case.

On Application eor Rehearing.

Fenner, J.

Under this application, we have given our closest attention to the points and arguments presented, without being able to discover any principle under which we could hold that the shares of stock in the New Orleans Cotton Exchange are not propert3'. Such a share is a distinct, concrete incorporeal right, a specific tiling, which the proprietor holds and owns to the exclusion of all others ; which he has the absolute right to dispose of; which is bought and sold in pub lie market; which is heritable ; which may be validly pledged ; which is liable for his debts; and which thus possesses every element of property.

It has no connection, direct or indirect, with an3' of the classes of property which are mentioned in the Constitution as exempt from taxation.

- We adhere to our conclusion that the broad language of Act 96 of 1882, includes such property and sufficient^* evinces the legislative intent to subject it to taxation. Under that act there existed no legal obstacle to the assessment and taxation of such property.

There are two points, however, which were not called to our attention in the original argument and which, in a case of this character, we are disposed to make an exception to our general rule not to consider on rehearing, points not made on original hearing.

1st. It is objected that the assessment for 1884 is illegal, because not sufficiently specific. The terms of the rolls are: “Assessed value of share $1000 gross, deductions to be made.” This obviously means deduction of the proportionate value of the real estate of the corporation otherwise taxed. Such deduction must necessarily be made and our own records suggest the reason wli3r it was not made, viz: the contest existing, at the time, relative to the valuation of the real estate, which was decided by us and is reported in 37th Annual, p.As the objection raises no point of practical consequence, in view of the fact that, if this assessment were annulled, it would be again made with the deductions which must now be allowed, we see no necessit3* of subjecting the State and city to such useless expense and delay.

2nd. The next point is more vital affecting the assessment for 1882.' In the case of the Cotton Exchange vs. Board of Assessors, 35 Ann. 1158, the opinion rendered b3r the majority of the court unmistakably decided, (quoting for brevity from the syllabus) that “Act No. 77 of 1880, had in con temp ¡at ion the assessment and taxation of shares in money-making and dividend-paying corporations, and wiis~hot designed to embrace corporations like the Cotton Exchange.”

But the Act of 1880 was the only law under which assessments of property in 1882, could he made. A review of the Act 99 of 1882 will show that it was passed only in July of that year, after the assessment rolls for the year had been made, and that its provisions with regard to the assessment of property only applied to succeeding years, lienee, it follows that under the law regulating assessments for the year 1882, as interpreted by us, the shares of stoelc iu question were properly and legally omitted from the rolls.

Section 11 of the Act of 1882, authorizing subsequent assessment of property which had been omitted from (be. rolls in past years, obviously applies only to property which had been erroneously and unlawfully omitted and not to that which was not assessable nmler the law in force in those years. Hence that section does not authorize the assessment of these shares for the year 1882, because they were not then assessable under the law in force at the time.

This is so clear that the correction of our former decree may be made without tlie necessity of awaiting a rehearing.

For tlie purpose of making the correction, reheariug is granted, aud in disposition thereof, it is now ordered and decreed, that our former decree hereiu be so amended as to read as follows : that the judgment appealed from be affirmed in so far as it cancels and annuls the assessment for the year 1882 ; and that, in other respects, it he reversed aud that plaintiff’s demand, with reference to the assessments for the years 1883 and 1884, he dismissed, plaintiff to pay costs of this appeal, and defendant to pay coste in the court below.

Dissenting Opinion.

Pociié, J.

Without waiver of any of my views as expressed iu my dissenting opinion herein, 1 oonetir in that part of the present decree which releases the shares of the Cotton Exchange from taxation for the year 1882.

But I dissent from the opinion aud decree of the majority iu all other particulars. A second examination of the ca.se lias confirmed my opinion that there is now, no more than there was in 1882, no law in Louisiana under which these shares of the Cotton Exchange could be legally assessed and taxed.

Dealing with a kindred subject in the case of Forman vs. Board, 35 Ann. 825, this Court said: “Taxation is exclusively a legislative power, and, however clear the power or even the duty of tlie legislat ture to levy taxes on any particular species of property, until that power lias been exerted, the burden cannot be imposed.” * * * “S uch taxation is of a peculiar character, requiring special provisions for defining and ascertaining the income to be taxed, and cannot be considered as falling within the scope of general provisions touching the assessment and taxing of property.”

I respectfully submit that the language used in that case should apply to the present controversy with irresistible force, and it should have led to a similar conclusion to that reached in the decision quoted from.

I am clearly of the opinion that a rehearing should have been granted in this case.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8409.
    Palmer Dickson et al. vs. H. P. Dickson et als.

    Whilst a mortgage given by the widow in community during her administration of her deceased husband’s .succession, is not null, yet, it can have no effect beyond her actual interest in the property, determinable upon a settlement of the community Such mortgage considered under the circumstances of this case.
    PPEAL from the Second District Court, Parish of Bossier.
    [Note of the Reporter.—The following opinion was delivered, on rehearing, in May 1884, at New Orleans, where the case, at first decided at Shreveport, had been removed by consent of parties. The original opinion is reported in 33 Ann.. 1244. The present opinion was. by mistake, omitted from the 36th Annual.]
   On Rehearing.

The opinion of the Court was delivered by

Todd, J.

Our previous decree was passed upon the decisions of our immediate predecessors, in the cases of Cestac vs. Florane, 31 Ann., 493 ; Durham vs. William, 32 Ann., 162.

A further examination of those decisions and the authorities, which sustain them satisfies us that they only go to the extent of declaring that a widow in community cannot, whilst the succession is still under administration, and before its debts are paid, .execute a valid mortgage on any specific property of the succession, to the prejudice of creditors of the succession. And were the question an open one, we might adhere to our previous decision, which was to the effect, that even in the absence of the conditions, she could not give a valid mortgage on any specific property of a succession, though personally interested therein to the extent of her community interest.

This case differs from the ones cited, in this, that though the administratrix, who is the widow in community, had not been discharged, yet, in point of fact, all the debts of the succession and the community had been paid long before the date of the mortgage, and there were no creditors, therefore, who could be prejudiced by her acts.

Under this state of facts it had repeatedly been held that the widow in community could bind by mortgage her interest in any property under her administration, or that such interest was the legitimate subject of a sale and mortgage. Heckman vs. Thompson, 24 Ann., 264; Same vs. same, 26 Ann., 260; Courcey vs. Clark, 7 L., 157; Preston vs. Humphreys, 5 R., 219 ; R. C. C., 2650-3289.

Whilst, therefore, a mortgage given by the widow in community, (luring her administration of her deceased husband’s succession, is not null, yet, at the same time, it can have no effect beyond lier actual interest in the property, determinable upon a settlement of the community.

It is true that the widow’s interest in the community rests upon the death of the husband, hut subject to the payment of the community debts, and, therefore, not to he ascertained till a final settlement. It would thence follow that where a mortgage is given to a certain number of heirs, to secure a liability which the administration is under alike to all the heirs, resulting from her acts as administratrix, the giving of the mortgage could not confer a preference on the mortgagees over the other heirs. They are entitled to share alike, and no act or attempt to favor one or more heirs to tlie prejudice of the others can have such effect.

To this extent and limit, the operation of the mortgage may seem to strip it of all effect, and virtually pronounce it a nullity. This may be true, as relates to the heirs, but the mortgage is not without effect as to other persons. Por instance, the mortgage in question would prevail and have precedence over any mortgage that the mortgagor might execute subsequently, in favor of a creditor or other person.

With those views, and whilst expressly limiting the legal effect of the mortgage attacked in accordance therewith, we think our previous decision ordering its cancellation as an absolute nullity must he set aside.

It is, therefore, ordered, adjudged and decreed that the decree heretofore rendered be set aside, aud it is now ordered, adjudged and decreed that the plaintiffs’ demand he rejected, with costs of both courts.

Manning, J., takes no part.


author: Bermudez, C. J.

text:
    No. 9012.
    In the Matter of the Board of Administrators Praying for Recognition of Mortgage and Recovery of Assessment in the Fourth Drainage District.
    -fudgniemts which are absolute nullities cannot be revived. They cannot be continued in existence, when they never had any life.

      John Grossley <£ Sons, limited, Plaintiffs and Appellants.
    APPEAL from the Civil District Court- for the Parish of New Orleans. Lamms, J.
    [Note of tub Revorter.—This opinion was not reported in full in the .‘lf)lh Annual. II is thought proper to report it in full now.]
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action by John Crossley •& Sons, representing themselves to be warrant holders for a large amount to be paid out of drainage assessments, to revive the judgments herein rendered in February and March, 1873. They claim that they ha ve'sufflcient interest to authorize them to seek the revival, in as much as the City of New Orleans has declined doing so and that unless proper proceedings are had within the ten years following tlie rendition of the judgments, they will die away by the lapse of time.

The main defense set up is that the judgments sought to be revived are absolute nullities and cannot be given a force and effect, a life, which they never possessed.

Tlie District Judge in an elaborate opinion sustains that defense.

Tt is unnecessary to revive the jurisprudence which is well seated and which is, as contended, that a judgment which is an absolute nullity cannot be revived.

The judgments in questiou were decreed by this Court to be such nullities. The consequence is that they cannot be revived. 30 Ann., 303, 692; 33 Ann., 63; 34 Ann. 97; 35 Ann. 70.

Judgment affirmed.


text:
    No. 9252.
    Haspel Johnson & Co. vs. Thibaut, Sheriff and Tax Collector.
    Property nsod for rice milling purposes is not exempt from taxation, 30 Ann., 347. Affirmed.


text:
    No. 9418.
    J. C. Thompson et al. vs. Louis A. Fasnacht.
    A tax sale under an assessment in the name of the estate of a deceased person, when it appears that the heirs of such decedenthad been formally put in possession of his estate by a judgment of court eight years before the assessment was made, and besides, have been in actual possession thereof from the time of such judgment until the sale, is null, hut the purchaser is entitled to he reimbursed the sura paid by him for taxes at the sale.


text:
    No. 9424.
    T. S. Barton et al. vs. Board of Assessors.
    The shares of the Stock Exchange are taxable against the individual holders thereof, in the same manner as are those of the Cotton Exchange.


text:
    No. 9289.
    The Atlas Cordage Company vs. Edward Adler.
    Only questions of fact involved


text:
    No. 9349.
    Louis Rayssiguier vs. Sarah Bour.
    Only questions of fact involved.


text:
    No. 9457.
    George W. Ruleff vs. John Cooper & Son.
    Only questions of fact, involved.


text:
    No. 1258.
    Partnership of Comean & Richard.
    Only questions of fact, involved.


text:
    No. 9544.
    The State of Louisiana vs. George L. Bright.
    A municipal corporation has no right to enforce obedience to the ordinances which it has the power to pass, by fine or imprisonment or other penalty, unless that right has been unquestionably conferred by the lawgiver. The infliction of punishment for the commission, or omission of the act declared to be an offense, is a prerogative which, as a rule, appertains exclusively to the sovereign.
    The city of New Orleans has no right to inflict a fine and, in default of payment, imprisonment for non-compliance with an ordinance relative to the establishment of a uniform grade for all sidewalks within corporate limits. That right was not delegated to it by the charter. The words found in Section 7, which authorize provision for the punishment of any violation of certain ordinances, refer to such regulations as the council reauthorized to pass and have executed as may be necessary and proper to preserve the peace and good order of the city, and to maintain its cleanliness and health. They surely do not justify a fine and, in default of payment, the imprisonment of the transgressor of the ordinance attacked in this instance.
    APPEAL from First Recorder’s Court. JDavey, J.

      Waiter II. llogers. City Attorney, for Plaintiff and Appellee :
    1. There is an expre°s grant to the city by the State u to exercise ageneral police power in the city of Hew Orleans.” Act Ho. 20, 1882, par. 15, Sec. 8; Act Ho. 20,1882. par. 1, Sec. 1.
    2. The subjects,of the police power are as numerous as the wants, safety and good con-' duct of the community require; they arise from the necessities of society.
    3. Under this power is embraced the authority to provide for the establishment, maintenance and control of public Highways, etc. Gas Light Co. vs. Light and Heat Co. U ,SS. C., (not reported); 1 Otto, 540-547.
    4. „ The banquettes of the cHy of Hew Orleans are public highways. 14 ivun. 285.
    5. It is lawful for the City Council, having authority to regulate streets, to direct its Surveyor and Commissioner to perform its ministerial work. G Otto, 341-333; Act Ho. 20, 1882, See. 24 ; Act Ho. 20, 1882, Sec. 26.
    6. A power granted to a municipal corporation to grade streets, is a continuing power. 6 Wheaton, 593-598; 20 Howard, 135, 149.
    7. An ordinance regulating a street grade, is not a contract with property owners. Id.
    8. A charter authorizing corporation to open and keep streets in repair, authorizes cutting down grade. Id.
    9. Effect must be given to all ordinances regularly passed and within the powers conferred by the charter. 14 Ann. 318 ; 10 Ann. 228 ; 3 Paige, 218.
    10. The power of the corporation to fix a penalty for a violation of its ordinances, and the power to enforce such ordinances, cannot he questioned. 3 Ann. 689.
    11. A proceeding before and a sentence by a recorder for violation of a police ordinance, is-lawful. 14 Ann. 37; State vs. Hannessier, Op. Book Ho. 53, p. 237; Art. 233. Constitu tion of Louisiana; Act Ho. 20,1882, Secs. 49, 50.

      Geo. L. Bright for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question presented in this controversy, involves tlie power of the city of New Orleans to enforce, by fine and in default of payment of such, by imprisonment, compliance with the requirements of an ordinance relative to the establishment of an uniform grade for all sidewalks, within corporate limits.

The defendant, who was prosecuted for such non-compliance,, .appeals from the judgment rendered against him.

The ordinance (No. 749, A. S.) reads as follows :

“ JResolved, that an uniform grade shall he established for all sidewalks within the corporate limits of this city, and that the owners of all property, fronting any public alley or street shall, at their own ex pense, cause their sidewalks t,o be made iu conformity to said grade, within ten days after the same shall have been established by the city surveyor, and notice served by the commissioner of public works, upon the owner, agent or tenant of said property. Any owner of property, who shall fail to cause said sidewalk to be so'graded, after due notification and within ten days thereafter, shall be subject to a fine of not less than twenty-five dollars for each offense, and in default-of payment of said fine, to imprisonment for a period of not less than thirty days, or both, at the option of the court; said fine or imprisonment to be imperative, and to be enforced by any court of competent jurisdiction.”

It is claimed, on the one hand, that the right to provide tor an uniform grade for ail sidewalks within corporate limits, and to enforce compliance with the regulations on the subject, is vested iu the city,, not only by her charter, but also by the police power with which she is necessarily clothed as an indispensable inherent prerogative, essential for her existence and maintenance.

On the other hand, it is urged that the city possesses no such right,, for the reasons that it was not conferred by the charter and that it is-not iufsrable from such police power.

It is further pressed that, if the city has the right to provide for the grade of sidewalks, such power cannot be delegat d to the city surveyor, and that the observance of regulations on that subject cannot be coerced by fine and in default of payment by imprisonment.

It is needless to inquire and determine whether the city authorities, have the right, either under the charter or the prerogative attaching to the exercise of the police power, to provide for an uniform grade-for all sidewalks within corporate limits and whether this right was or-not delegated to the surveyor.

If it be true as claimed, that the city has no right to enforce an ordinance to accomplish that object by fine, and in default of payment by ■imprisonment, it follows that the ordinance in this case, would be-clearly unwarranted and-illegal in that respect. This would suffice to render it inoperative and to relieve the defendant from the effect of the judgment from which he has appealed.

It is a principle which cannot be controverted, that a municipal corporation which is the creature of the law and a State functionary, can exercise only those powers which have been expressly delegated to it, and which are necessarily implied as inherent to its existence and thus-absolutely- indispensable for its administration and maintenance in the-accomplishment of the functions for which it was put in being and giveu life.

It is, therefore, acknowledged by text writers, supported by abund ant authorities, that a municipal corporation has no right to enforce obedience to the ordinances which it has the power to pass, by fine or imprisonment, or other penalty, unless that right has been unquestionably conferred by the lawgiver; for this is inflicting a punishment for the commission or omission of an act declared an offense, a prerogative which, as a rule, appertains to the sovereign only. Dillon, 336, p. 343; § 353, p. 353; Desty on Tax, p. 765.

We have carefully examined the sections of the charter (Act 20 of 1882) of the city (Sections 7 and 8), and have failed to discover in-them any delegation of such right for non-compliance with ordinances relative to streets or sidewalks.

The words “shall provide for the punishment of any violation of such ordinances or regulations, by fine or imprisonment,’’ found in ■.Section 7, refer to ordinances which the common council is authorized to pass and have executed, as may he necessary and proper to preserve the peace and good order of the city and to maintain its cleanliness and health.

Those words, under no circumstance, even in the cases stated, would justify the city in imposing a fine, and in default of payment in impiisoning the transgressor, as was done by the ordinance attacked in .this instance.

For those reasons :

■It is ordered and decreed, that the judgment appealed from be reversed; and it is now ordered and decreed, that the prosecution he .dismissed and the defendant discharged from the claim against him.

In holding as we do, we make no reflection on what right the city may have to enforce otherwise compliance with such ordinances.


author: Poché, J.

text:
    No. 9509.
    Flash, Preston & Co. vs. American Glucose Company.
    'Parties offering goods and wares on the market, through brokers whom they employ as tkeii* agents for such purposes, are bound for all the stipulations made in their behalf by their said agents. This obligation includes guarantees that perishable goods will keep good and merchantable during a certain period of time.
    Goods of a uniform nature, such as manufactured liquid goods, for instance, syrup, which are sold to be delivered in separate packages, may be returned as unmerchantable, even itnough some of the packages have the appearance of being good and sound.

      The redhibitory defects of such goods cannot he tested trader tbe rule of law which provides that the vice of one of several things sold together, gives rise to the redhibitionif all of the things were matched, such as a pair of horses; but it must be governed by the principle which releases the purchaser from his contract when it appears that the defect of the thing sold renders its use so inconvenient as to justify the conclusion, that lie would not have purchased it had he known of the vice,
    \ PPEAL from tlie Civil District Court for the Parish of Orleans-.PA Rightor, J.

      White & Saunders for Plaintiffs and Appellees:
    When a contract is made verbally and partially executed, the acceptance of a writing wliicb incorporates its terms erroneously does not prevent oral testimony of the true terms.. U1 Mass. 45; 45 H. T. 712.

      Leovy ós Leovy and J, P. Blair for Defendant and Appellant;
    1. The sale is considered perfect between the parties as soon as there exists an agreement-for the object and the price thereof, although the object has not yet been delivered, nor the price paid. C. 0. 2456. The place of delivery is presumed to be where the goods happen to be at time of sale. C. C. 2484 ; Pothier on Contract of Sale, p. 30 ; Benjamin on Sales. (1 Araer. Ed.) § 682, p. 596. When the vendor is to send on the goods, delivery to the common carrier is delivery to the vendee. Benjamin on Sales, § 181. Hence, in the-present case, the sale was perfect and the ownership and risk in the buyer, so soon as tbe syrup was measured, put in barrels, and delivered on board the cars at Leavenworth, Kansas.
    2. The implied obligation of the seller to warrant the buyer against the hidden defects or redhibitory vices of the thing sold, is tully discharged when, at the time of sale, the goods are in good condition and of a merchantable quality. When a vico makes its appearance subsequent to the sale, the burden of proof is on tbe buyer to show that the defect existed at the time of sale. C. C. 2530; 5 Ann. 588, Baker vs. Irvin ; 30 Ann. 907, Peterkin vs. Oglesby ; Pothier on Contract of Sale, pp. 128 and 130.
    3. Parol evidence is inadmissible to prove warranty when the sale is in writing. Benjamin, on Sales, § 621; Abbott’s Trial Evidence p. 344.
    4. A broker has no implied authority to warrant the merchantable quality of the goods-sold. Benjamin on Sales p. 545 (note); Ewell’s Evans on Agency, p. 173 (note); Upton vs-Suffolk County Mills, 11 Cush. 586 ; Dodds vs. Barlow, 11 Allen, 426. Especially is this-true when the act is not justified by the usage of the trade. Story on Agency, 225, 226; 11 Allen, 426. An authority to warrant does not carry with it authority to give a continuous wairanty. 11 Cush, 586.
    5. Except in special cases, whore things are sold together, as a pair of horses, the whole-purchase should not be returned because some articles are defective. C. C. 2540 Pothier on Contract of Sale, p. 139; 3 Ann. 377, Huntington vs. Lowe.
    (>. The rights of the parties were not affected by the resale under the circumstances of this-case When the buyer has been put in default, the vendor may sell as agent of the-buyer. C. C. 2565 ; 8 Mar. (O. S.) 402, Gilly vs. Healey ; 2 Ann. 640, White vs. Kearney*. Benjamin on Sales, pp. 683, 688; 9 R. 495; 14 Ann. 352.
    It is not necessary for the resale to be at public auction. 2 Ann. 640; Benjamin on Sales, p-684 (note); 6 Ann. 381, White vs. Broom.
    7. The measure of damages is the difference between the contract price and the market price at the time of resale, after deducting from tbe latter the reasonable expenses* attending the resale. C. C. 2565. 2555; 30 Ann. 264, Bartley vs. City of Hew Orleans.
   The opinion of tbe Court was delivered by

Poché, J.

This suit grows out of a contract of sale entered into by the parties hereto, on the 3d of March, 1883, the main issue of which is predicated on the following salient facts :

Plaintiffs agreed to purchase from the defendant’s predecessor, 1500 barrels of glucose syrup, to be delivered in New Orleans in equal instalments of 500 barrels a month in each of the months of April, May and June, 1883.

During April and May shipments were made aggregating 850 barrels, ■which arrived in apparent good order and were received and stored by plaintiffs.

After disposing, in due course of their business, of 367 barrels of the syrup, plaintiffs discovered that the balance of the lot then in warehouses, was fermenting and souring, wheroupon they notified the defendant company through a broker named Brodnax, a resident of New •Orleans, with whom they had dealt in the purchase, that the goods, •consisting of 683 barrels of syrup, which had been \yarranted not to_ ferment during summer, were not of the quality which they had purchased, and that the syrup was at the risk of the defendant company us vendor of the same.

The goods were taken, under protest, by the defendant, and were ¡sold on the market at various prices, all under the contract price, aud .as unmerchantable goods.

Plaintiffs claim reimbursement of freight and other charges on the 683 barrels which they refused to keep, and defendant claims in re-convention the difference between the contract price and the price which was actually obtained on the 083 barrels referred to.

This appeal is prosecuted by the defendant, from a judgment which .allowed plaintiffs’ claim, and rejected its reeouventional demand.

Tlie contention presents two main questions :

1. Whether the goods were sold under a guarantee of non-fermentation during summer.

2. Whether the goods returned by plaintiffs were in a state of fermentation, such as to render them unmerchantable at the time that •they were tendered back to the vendor.

Plaintiffs rely on the affirmation of both of these propositions, and •defendant’s reconventional demand turns upon negative proof of at least oue of them.

1, The first point involved in the' guarantee alleged by plaintiffs, is to ascertain whether the contract of sale of March 3, 1883, was made verbally or in writing.

Contending that tlie contract had been made in writing, defendant objected to the introduction of parol testimony to prove the agreement, and reserved a bill from an adverse ruling.

The record proves beyond a doubt that the agreement on the third •of March was made in plaintiffs’ office, after negotiations which had lasted several days, and that it was made verbally between William Flash, a member of plaintiff’s firm, and Brodnax, acting in behalf of the defendant company.

But it appears that a few days afterwards, the broker signed and handed to a member of the firm, a document containing the principal stipulations of the contract; and on this fact alone is vested the argument that the contract was made in writing.

It is clear to our minds that this document amounted to nothing ■more than a memorandum, intended to facilitate the memory of the contracting parties, but that it by no means evidences the slightest intention of the parties to enter into a written contract. It was not signed by the plaintiffs, and unless supported by parol testimony it surely could not have been judicially enforced against them as a contract. Hence the district judge did not err in admitting parol testimony of .the agreement.

On the question of continuing guarantee vel non, the evidence is decidedly conflicting; and to that, as the pivotal question in the case, we have given very careful study and very serious consideration. Our •conclusion is that the weight of evidence, both direct and circumstantial, is largely in favor of a guarantee from fermentation during summer, and that such a guarantee was the determining reason in plaintiffs’ mind to yield to tlie broker’s repeated importunities to sell them those goods, for use in the principal sugar and molasses market in the country. Several other dealers in molasses and syrups testify that in their ■contracts with tlie defendant and other glucose factories, tlie goods sold for several years previous to 1883, had always been guaranteed against summer fermentation; this is conceded in their testimony by the broker, Brodnax, and by Jones, his partner, but they assert that in the early part of the year 1883, they had received written and positive instructions from the defendant corporation to cease selling any of their goods in Southern climates under such a guarantee.

But unfortunately for defendant’s cause, Brodnax and Jones, although specially requested thereto, failed to produce any proof of sncli written instructions.

Defendant next contends that Brodnax was simply a broker, and was mot its agent; that therefore he had no legal authority to biud the «company in such a stipulation.

The record satisfies us that he was the duly accredited agent of the company, with full and special power to bind his principal in just such-a contract, in terms as he stipulated with plaintiffs in the premises.

It is unnecessary to detail in full all the elements of testimony and! all the circumstances which have led us to that conclusion.

But the very contention that such a power had been withdrawn from’ him, only a short time before the date of ibis contract, is clearly pregnant with the admission that he had been clothed with the power, and we note his utter failure to prove the withdrawal of the same. But on the contrary, his acts and dealings in the matter of this very contract, leave no reasonable doubt of the fact that he was not only the broker, but the fully accredited agent of the defendant. 33 Ann. 1364, Rochi vs. Schwabacher & Iiirseh.

2. The record is yet more complete on the second point of the defendant’s contention as to the unmerchantable condition of the 683' barrels of syrup at the time that they were tendered to the vendor as. an avoidance of the sale.

It appears from the evidence that the consignment of 500 barrels for the June instalment was in a fermenting- condition when the goods arrived in New Orleans, and that it was not accepted by plaintiffs.

Broduax, to whom the bills of lading were, on that account, transferred, took charge of the goods and disposed of them to the best advantage of his principal, the defendant company, after paying the-freight and other charges due thereon.

That circumstance brought about an examination of the lot of 683^ barrels then stored for account of plaintiffs, and they were found in a fermenting condition.

It is true that many of the barrels were subsequently found not to-be technically fermenting or sour. But this circumstance, cannot support defendant’s argument that the whole lot should not have been returned.

In large commercial transactions, purchasers of commodities in separate packages cannot be required or even expected to pick and retain certain packages and to refuse others.

Article 2540 of our Code does not apply to such a case, which is-governed by the general principle as embodied in Article 2520, which reads as follows •

'‘Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would; not bave purchased if, had he known of the vice.”

Under tlie evidence as we have read' it, plaintiffs’ case can successfully stand the test of that rule.

They proposed to buy a lot of glucose syrup for the use of their trade during the summer months, and they bought an article which, was warranted not to ferment during that time.

On examination, at the end of June, they discover, as shown in t,ha-record, that one-half of the packages containing the goods are fermenting; they have every reason to believe and in fact to know that the evil will increase instead of decreasing: is it natural or rational to suppose that they would have bought the syrup, even with the guarantee, had they known that it would ferment at the first approach of summer weather?

This question is answered hy the defendant and its agent themselves through their own acts. The record shows that they offered and sold these identical goods 011 the market at reduced prices and as unmerchantable goods, and aie thus estopped from denying that they were-fermenting.

We therefore conclude that substantial justice has been meted out to, the parties hy the district judge.

Judgment affirmed.


text:
    No. 9504.
    Adolph Levy vs. Succession of I. L. Lehman et als.
    Aii attachment cannot legally issue against a succession or the property thereof, whether the succession is opened and administered in this State or in another State.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Brauglm, Bucle & Dinlcelspiel for Plaintiff and Appellant:

      1. An attachment against a non-resident does not fall by his death, but thereafter a> curator ad hoc may be appointed to his succession and his absent heirs, and judgment* rendered, with privilege and preference on the property attached. Bussey vs. Nelson,. Supreme Court, No. 7160.
    2. And. as an attachment against a resident would fall hy death, therefore an attachment cannot issue against the succession of a resident; but the rule does not apply to that of' a non-resident.

      Robt. II. Mart-, Jr., curator ad hoc.

      Farrar c6 Kruttschnitt for Defendants and Appellees :
    I.
    No court in Louisiana, either upon principle or authority, has the power to issue a writ of" attachment against the property of a deceased non-resident, LoBuys vs. Yerby, 1 N. S.. 380; Oaky vs. Ducker, 13 La. 378.- Trimble vs. Brichta. 10 Ann. 779; Cheatham, vs. Carríngtom. H Aun. G9(¡.

      IL
    'Tlie succession, of persons domiciled out of the State of Louisiana, and leaving property in this State at their demise, are to be opened and administered upon as are those of citizens of the State. R. S. § 3677. ‘
    III.
    ‘ That the estate of a dead man is a distinct and separate entity — a distinct and separate succession — in each and every State or country where he leaves property, is well settled. . Succession of Taylor, 23 Ann. 22; Burbank vs. Payne & Harrison, 17 Ann. 15; Atkinson vs. Rogers, 14 Ann. 633.
    IY.
    The case of Bussey vs. Helson, Manning’s TTnreported Cases, p. 339, is correctly decided; but has no application to the case at bar.
    Y.

      A writ issued by a court without jurisdiction is mero braüunfulm&n, and may be ignored by any person having an interest in ignoring it. State e.vrelLiversoy vs. .Judge, 34 Ann. 741.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, a creditor of I. L. Lelnnau, a resident of Kentucky, where the debt was contracted, and who died there, instituted a proceeding-by attachment, wherein was seized a stock of goods in this city in the possession of A. R. Lehman and Theodore Frois, • doing business under the name of Lehman & Frois. The suit was brought after the death of I. L. Lehman, the debtor, and it was .alleged that the goods were shipped to Lehtnau & Frois by I. L. Lehman during his lifetime, and belonged to him at his death, and that the title thereto set up by Lehman & Frois was a pure simulation. 'These last named parties were joined in the suit. A curator ad hoc was appointed to represent the succession of I. L. Lelnnau, which was stated to he under administration in the State of Kentucky, and in charge of au executor appointed there.

Judgment for the debt claimed was prayed for against alL the parties defendant, and it was further asked that the title to the stock of goods in possession of and claimed by Lehman & Frois, bo declared simulated, and the same he decreed subject to the debt sued upon, and sold to pay the same.

There was a motion to dissolve the attachment filed by the curator ad hoc and a similar one by the other defendants, (Lehman & Frois), coupled with a further motion to quash the seizure which were sustained, and from a judgment dissolving the attachment and quashing the seizure, the plaintiff has taken the appeal now before us.

The motions contained several grounds, only one of which we deem it necessary to notice and that is to the effect:

“ That a writ of attachment under the laws of Louisiana cannot -issue against a succession ; hut that plaintiff’s remedy,-if any cause of .action be had, is by regular proceedings, to open and administer upon the succession of said Lehman in this State.’’

The writ of attachment under our laws is termed a conservatory writ, and inasmuch as its issuance is authorized in advance of any .judgment for the debt sought to be secured by means of it, the right to resort to it is closely guarded ; and it can only be obtained in certain exceptional and well defined cases, and with the observance of clearly prescribed formalities. A cursory glance at these special legal provisions relating to this writ, will show beyond question, that an .attachment cannot issue or be directed against a succession or succession property. These provisions indubitably contemplate and refer to the condition or acts of a living debtor as controlling the issuance of the writ. This will be plainly seen by citing some of them. Thus an .attachment may issue where the debtor is about leaving the State permanently; where he resides out of the State; where he conceals him.self to avoid being cited; where he is about to dispose of his property .and with intent to defraud his creditors, etc.

All of which conditions exclude the idea that these prescribed requisites for the writ can, by the most strained construction, be made to apply to successions, succession property or succession debts.

Another consideration respecting successions and their administration, presents quite as formidable obstacles as the above against the proposition of succession property being subject to the writ of attachment. It is an elementary principle relating to successions, that the rights of creditors are fixed at a man’s death; that succession property constitutes a common fund, the equal pledge of all the creditors except as relates to privileges and mortgages acquired before the death, and provision is made for the concurrent payment of all debts according to their rank; which precludes one creditor by superior diligence or by any device or process whatever after death, from obtaining an advantage over others. Boyce vs. Escoffie, 2 Ann. 573; Kismer vs. Duncan, ex., 3 N. S. 570.

Another consideration that suggests itself in this connection is, that an attachment being a conservatory remedy, is only designed to hold the property pendente lite, that it may be sold under the proper writ to satisfy the judgment when obtained. But nothing is better settled than that succession property‘cannot be sold under a writ of fi. fa., the only writ by or through which an ordinary moneyed judgment can be executed. 1 Ann. 173; 13 Ann. 476; 25 Ann. 154.

It seems, however, almost idle to engage in a discussion of general principles pertaining to this subject, when the direct issue involved has been so often decided by this Court that the jurisprudence-on the question has been completely settled. See Debuys vs. Yerby, 1 N. S. 380; Trimble vs. Brechta, 10 Ann. 778; Cheatham vs. Carrington, 14 Ann. 696.

Nor is the case of Bussey vs. Nelson (Manning’s Unreported Cases, p. 339) invoked by plaintiff’s counsel opposed to those above cited, since in this last case the debtor was alive when tbe attachment was-issued and executed.

Finally, it is contended that Lehman & Frois have no right, or are not in a position to make objection to tlie writ of attachment referring to the authorities, respecting tbe rights of an intervenor in a like case in support of the contention. We scarcely deem it necessary to consider this point, since this same ground which we have been considering is contained in both motions to dissolve, and if we determine the-question adversely to the plaintiff, exclusively with reference to the motion of the curator ad hoc appointed at the instance of the plaintiff, as the representative of Lehman’s succession, the legal consequences of the dissolution of the attachment would not be confined to the succession alone, but would extend to all affected by tlie seizure that is, it would operate to annul the seizure as to all parties interested.

Judgment affirmed with costs.


author: Manning, J.

text:
    No. 9523.
    Harris, Parker & Co. vs. A. G. Nicolopulo.—Citizens Bank, Intervenor.
    The Hen of the unpaid vendor of cotton, -vvlien enforced in five days, is superior to that of the holdor for value of a bill of lading for the cotton.
    Although the vendee of the cotton has put it on shipboard, and has drawn his bill of exchange against it, and the bill of exchange with bill of lading attached was bought by an innocent party for full value who has had the bills endorsed and delivered to him,., yet if the vendor has not been paid and ho pursues his vendee and the cotton within the five days allowed him, he must prevail over tlie holder of the bill of lading.
    Tbe vendor’s Hen on cotton for five days yields to nothing unless it may be to a warehouse receipt which has been pledged as collateral for money borrowed, and not to that unless the receipt has been paraphed before issue •' for hypothecation.”
    A PPEAL from the Civil District Court for the Parish of Orleansü. liightor, J.

      T. J. Semmes & Payne for Plaintiffs and Appellees.

      Miller é Finney for Intervenor and Appellant.
   The opinion of the Court was delivered by

Manning, J.

This case presents the question whether the unpaid ■vendor of cotton, or the holder for value of the bill of lading for it, shall prevail in a contest for the amount of the purchase price.

The case comes up on a statement of facts, and tney are as follows:

The defendant bought fifty-nine bales of cotton from the plaintiffs for two thousand seven hundred and seven dollars and twelve cents, on January 3, 1885, and did not pay for it. The cotton was delivered on January 5th following, and the plaintiffs instituted this suit for the recovery of the price within the five days specified in Art. 3227 Rev. Civ. Code. Meanwhile between the delivery and the institution of this suit, the purchaser Nicolopulo had shipped the cotton, drawn his bill of exchange against it, and the bill of exchange with bill of lading ■attached was bought by the Citizens Bank for full value, both bills having been endorsed and delivered to the bank and the cotton being on shipboard. Nicolopulo is insolvent and has made a cession to his ■ creditors.

The bank contends that the Act of 1868, to prevent the issue of false receipts or bills of lading and to punish fraudulent transfers of property by cotton presses and others, overrides and repeals the preference given the vendor of agricultural products whenever the purchaser has shipped the cotton and transferred the bill of lading for value.

The point was not presented in Gumble vs. Beer, 36 Ann. 484. Nevertheless we think the principles therein announced control this case .and the whole reasoning in that opinion foreshadows our conclusion in this.

The intention of the legislature to protect the vendor of agricultural products as against all the world, for a given time after their sale, was first manifested a little more than thirty years ago, and it lias been persistently and consistently adhered to ever since. The Act of 1854 was of course included in the revisal of the following year, and it was incorporated in the Code upon its revisal in 1870. Jurisprudence meanwhile had recognized that intention in all its fullness and had enforced it ■whenever occasion arose.

The Act of 1868 recognized the negotiability of bills of lading, and ■declared that the transferree of them shall be deemed and taken to bo the owner of the goods therein specified so far as to give validity to any pledge, lien, or transfer made or created by such person. Acts, p. 194. But this was only the announcement in general terms of certain ■ qualities imparted to bills of lading, and a declaration that the transferree of them under normal circumstances should have and exercise •certain rights. He was deemed the owner so far as to give validity to his pledge of them or lien upon them or transfer of them, but it requires very different and much stronger and more precise language to-express the intention that a lien given the vendor within a given time, absolute and overmastering every other claim, which legislation had-created and jurisprudence enforced, was to he done away with and abrogated. The enactment in the same statute whereby a criminal, offence is created, and a violation of its provisions is declared punishable with severe penalties, does not add force to the suggestion that the vendor’s lien was intended to he destroyed or that it was to he relegated to a lower rank in the scale of privileges and subordinated to a hill of lading.

Even if this were less clear the subsequent legislation of 1876, Acts, ]>. 113, would put it beyond cavil, for there it was enacted that the vendor’s lien of five days, now allowed in commercial transactions for the payment of the purchase price, shall not he affected by that Act except where a warehouse receipt has been pledged as collateral for money borrowed, and in order that it may come within the benefit of' the exception, the receipt must he paraphed before issue “for hypothecation.”

Compare this minute and precise language with that of the Act of' 1868 and observe tire particularity with which a warehouse receipt is singled out for exception. Had it been intended that bills of lading• should under any circumstances have been given priority over the vendor’s lien and have been accorded a rank alongside of paraphed warehouse receipts, apt language would have been found to express-that intention, and the circumstance that warehouse receipts were given such dignity by name and no mention is made of bills of lading shews that the legislature intended to confine this alteration of the law to thefonner.

The Act of 1876 has impressed upon it throughout the intention to give this priority to a paraphed warehouse receipt and nothing else, and instead of the halting language of the Act of 1868 when it says thetransferree of a hill of lading shall he deemed to he the owner of the goods so far as to give validity to his pledge, etc., the Act of 1876 says-outright, the holder of the warehouse receipt shall be considered and held as the actual owner of rhe property described in tlie receipt.. Sec. 5.

The judgment of tlie lower court was for the plaintiffs enforcing their - lien as vendors, but it did not go far enough. It simply gave them a judgment against the defendant with recognition of their lien and dismissed the intervention of the hank. It is admitted that the bank has-the funds and is agreed that judgment shall go against it for the amount-of the plaintiffs’ claim if we shall decide as we have done, and an amendment of the judgment to accomplish that end is prayed. Therefore,

It is ordered and decreed that the judgment of the lower court is-amended in this wise, that the plaintiffs have and recover of the Citizens Bank, interven or herein, two thousand seven hundred and seven dollars and twelve cents, with interest from January 3,1885, and costs-of both courts, and as thus amended that it is affirmed.


author: Eenner, J.

text:
    No. 9530.
    J. O. Terry & Sons vs. Their Creditors.
    Id insolvent proceedings, where no objection is made to the votes of creditors before the-notary holding the meeting or within ten days after the filing of the procos verbal, objections based on the informality or insufficiency of the affidavits to the debts made before the notary cannot, thereafter, be urged.
    A surety or accommodation maker or endorser of a nbte, only becomes a creditor of his-principal when he has paid the debt and, until such payment, he is not entitled to vote as a creditor in the insolvent proceedings of his principal.
    APPEAL from the Civil District Court for the Parish of Orleans.. Houston, J.

      W. S. Benedict and H. C. Gage for Plaintiff and Appellant.

      33. 33. Moise and J. Timony for Defendant and Appellee.
   The opinion of the- Court was delivered by

Eenner, J.

The commercial firm of J. 0. Terry & Sons and the individual members thereof, J. O., 0. F. and W. S. Terry made a cession of property to their creditors, and filed schedules of their firm and individual assets and liabilities respectively.

A meeting of their creditors was held, at which there were two candidates for syndic, and it appears from the notary’s proees verbal that, of the entire number of creditors voting, including firm and individual creditors, forty-six creditors representing $11,000 voted for J. W. Stockton, and thirty-three creditors representing $14,500 voted for J. S. Hodgins. The proees verbal thus showed on its face that no one had received the majority in number and amount requisite to the election of a syndic.

No objection was made at tbe meeting to tbe reception of any of the-votes cast except to that of A. Bradley, an individual creditor of O. F.. Terry for $9000, against the admission of which a protest was made-before the notary on grounds fully stated therein and hereafter to be considered. If this vote were rejected, Stockton received a clear -majority in number and amount of the votes and was duly elected.

Thejn-ocis verbal was filed in court on April 17, 1885.

On the same day Stockton took a rule on Hodgins, Bradley and the .insolvents to show cause why the vote of Bradley should not be stricken from the proees verbal and why ho, the mover, should not bo decreed to be the duly elected syndic.

On April 21, Stockton filed a regular opposition to the homologation ■of the proees verbal on the same ground, and praying that it be -amended by striking out Bradley’s vote and thereupon decreeing his ■own election as syndic.

No other opposition was ever filed to the proees verbal, and the jurisprudence is well settled that, except so far as opposed, theyiroces verbal became absolute, without any formal homologation, Goodale vs. Creditors, 8 La. 125; Gouy vs. Creditors, 2 La. 358; Pandelly vs. Creditors, 9 La. 387; Gwartney vs. Creditors, 13 Ann. 188.

The rule taken by Stockton went regularly to trial. No written ■answer thereto was filed. It is admitted that no question was raised ■or submitted in the lower court except the validity of Bradley’s vote. The court, holding the vote to have been properly received and counted, rejected Stockton’s demand, discharged the rule and appointed the ■civil sheriff of the parish as syndic; from which judgment Stockton jirosecutes the present appeal.

The only appellees appearing by counsel in this Court are the insolvents.

They almost abandon the question raised in the lower court as to the validity of Bradley’s vote, and claim the affirmance of the judgment on entirely different grounds.

Tims they say that the proees verbal shows that a large number of •■the votes were cast by proxies whose affidavits as to the debts were not made of their own knowledge.

We fully adhere to the doctrine heretofore affirmed that the law requires proxies, in making the required oath to the debt, to swear of their own knowledge and not merely of their belief or from merely derivative knowledge. Phillips vs. Creditor, 36 Ann. 904; Pandely vs. Creditors, 9 La. 393.

Had the. votes been opposed on this ground, either before the notary ■or by opposition to the proees verbal within ten days, the opposition would have been successful. But it is unquestionably too late to raise ■such objections after the lapse of ten days from the filing of the proeés verbal. The dictum. in Pandely vs. Creditors that such illegal votes must be struck out has no application, because in that case the issue was distinctly raised by timely opposition.

Nor is the defect of a character such as to render the proceedings void on their face, and therefore mill without opposition, under thedietum in Goodale vs. Creditors.

The nullified homologation resulting from the lapse of the ten days-is as much res judicata as if this defect had been urged in an opposition, and overruled.

We conclude, therefore, that even had this point been raised before-the lower judge, he would have rightly disregarded it.

It only remains to consider whether the objections to the reception) and counting of Bradley’s vote were well founded. We think they were. On his own showing he was not a creditor of O. E. Terry. He-had signed notes for the accommodation of Terry, which had been, passed to D. C. McCan & Son, who now hold them. Terry was and is-bound to hold him harmless against any liability on said notes, and should he jtay them, he would undoubtedly be a creditor of Terry ^ but, until lie pays them, he is not a creditor. 2d Daniel’s Neg. Instr- §§ 1889 et seq.

He has not paid them; and although McCan & Son have obtained1 judgment against him on one of the notes, they have been unable to find any property on which execution could be levied or any means of' enforcing payment, and the evidence exhibits no probability of their ever being able to do so.

The vote of Bradley should be expunged.

This leaves Stockton with a clear majority, number and amount of firm and individual creditors, and gives him a clear right to the appointment as syndic.

This relieves us from the consideration of questions raised as to the relation of partnership and individual creditors. The firm creditors are unquestionably creditors of the individuals, and so counted,1 Stockton has a majority in number and amount of the creditors of the firm, and of each individual member.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered and decreed that the rule herein taken be made absolute; that G. W. Stockton be declared the duly elected syndic of the creditors of the insolvent, and entitled to be appointed and confirmed as such in conformity to law7, and that this case be remanded to the lower court with-instructions to make the orders and take the other steps requisite for the execution of this decree, appellees to pay costs of rule and of this-appeal.


text:
    No 9522.
    The State of Louisiana vs. Sampson Roland.
    A juror accepted on the faith of the truth of his sworn answers, but who on cross-examination contradicts himself, may be challenged peremptorily before the oath is administered to him.
    A copy of a coroner’s inquest, by the clerk of the Criminal District Court who is the legal custodian of the same, is admissible in evidence.
    A motion in arrest of judgment cannot be entertained where it is not based on errors paten^ on the face of the proceedings.
    'Testimony in support of such motion cannot be received
    A PPEAL from the Twenty-second District Court, Parish of As- /~\ cension. Duffel, J.
    Jf. J. Ounninghmi, Attorney General, for the State, Appellee:
    .1 Wlioro a juror in a criminal trial has l)eeu accepted by tlio district attorney upon the faith of bis sworn replies and tendered to the accused, and upon this subsequent examination he contradicts himself and admits that he lias heard of the case, the State may exercise her right of peremptory challenge. This right exists until the oath is administered to the juror. Bishop, Yol. 1. § 945; Whaiton P. and X>. § 672; Profíat on Jury Trials, § 165.
    •2/ A tender of the juror to the accused is no waiver of the right of peremptory challenge. Wharton I*, and P., § 675.
    3. A copy of the coroner’s inquest, certified to by the deputy clerk of the Criminal District Court-, parish of Orleans, is admissible in evidence to prove the Corpus delicti in a trial for murder in one of the country parishes. The copy is as authentic as the original.

      4 - Grand jurors cannot he heard to impeach their finding. X7oris their evidence admissible to prove allegations contained in a motion in arrest of judgment, which can only bo sustained for errors patent upon the face of the record. 15 Ann. 557; 28 Ann. 658 ; 30 Ann. 91; 28 Aim. 129; 8 ft. 513.

      A. Gondrom for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused appeals from a sentence of death ¡passed upon him on a verdict of guilty of murder.

The record contains hills of exceptions to the rulings of the district .judge, permitting the peremptory challenge of a juror by the State; admitting a certified copy instead of requiring the original of the coroner’s inquest, and refusing the introduction of testimony in support of a motion in arrest of judgment.

I.

It appears that, when examined by the State on his voir dire, the .juror said that he'knew nothing of the case and that when cross-■examined by the defense, he admitted having heard talk about it.

The State then challenged the juror peremptorily. The court overruled the objections of the accused and discharged the juror. To tiiis ruling a bill was taken.

It suffices to say that if is well settled that the challenge, either by the prosecution or by the defense, must be made before the oath is commenced, down to which period the rights exists. Waterman C. D. p. 602 (140); Wharton C. P. and P., 672; Bishop on C. P. Vol. 1, § 945; Proffat Jury Trials, § 105.

It is no waiver of the right to challenge for cause for the defendant to pass the juror over to the court or the opposite side for examination. Wharton C. P. 675.

It is also settled, that even after the administration of the oath, it lies in the discretion of the court whether a peiemptory challenge shall be allowed or not. Proffat on Jury Trials, § 165.

In the present case the challenge was made after tender to accused, but before the qualifications of the juror had been admitted and before he had been sworn.

The challenge was in time and properly sustained.

II.

The court was right in admitting in evidence a certified copy of the coroner’s inquest which was at the time on record in the clerk's office of the Criminal District Court for the parish of Orleans, within whose jurisdiction the murdered man died and the inquest was held.

The law provides that, in case of murder or manslaughter, filie coroner shall return to the court the. inquisition, written evidence and all recognizances and examination by him taken. See R. S. 664.

The clerk of such court thus becomes the lawful custodian of such papers and documents. A copy of the same, certified by him, is equivalent to the original, in point of authenticity.

It is not pretended that the copy was not an exact and correct transcript of tiie original and that the accused suffered any injury.

It appears that the coroner who made the inquest iras heard as a witness on the trial of the case, but nothing shows that the sufficiency of the copy was attacked.

III.

The rule is that a motion in arrest can be entertained only for errors ■apparent on the face of the record.

The offer of testimony in support of such a motion, which did not ■disclose such errors, was properly rejected.

Judgment affirmed.


author: Poems, J.

text:
    No. 9547.
    The State of Louisiana vs. Strickland Spell.
    Proof of previously communicated, threats against the life of the accused by tbe deceased’ iu cases of homicide, is inadmissible unless preceded by proof of some assault or hostile demonstration by the deceased against the accused at the lime of, or immediately pie-ceding the killing.
    The question of the admissibility of such evidence is within the exclusive piovince of the tiial judge, who must bo satisfied that proper foundation has been laid before admitting the evidence, and who has tho legal discretion to disbelieve testimony which to his mind ajipears incompatible with the proven facts and circumstances of the case.
    Hillings on this j>oint in the cases of Ford, Labuzan and Janvier, 37 Ann., re-affirmed. An accused cannot be allowed to introduce as evidence his ownldeclarations of motives and intentions connected with the killing, made to another person x>re\ious to the homicide.
    APPEAL from the Twenty-fifth District Court, Parish of Vermilion.. DeJBaillon, J.
    If. J. Cinminyham, Attorney General, Ji. C Smedes, District Attorney, and W. JB. White, Associate Counsel, for tbe State, Appellee:
    I.A statement made by the accused a few moments before the killing is inadmissible to* })rove tbe x^risoner’s object in being at t-lie place when tho killing occurred. The declaration is self-serving. 30 Ann. 538 ; Wharton’s Cr. Ev. §§ 690, 692, 693.
    2.Evidence of threats communicated or uncommunicated, made by tbe deceased against* the accused, or of attempts made by deceased at waylaying the accused, prior to the day on which the homicide was committed, is inadmissible unless thox>roper foundation has been laid by establishing a hostile demonstration on the part of the deceased against the prisoner, sufficient to disclose an intention on the part of the deceased to carry those threats into execution. Wharton, Homicide, §§ 482, 605, 606; Wharton Cr. Ev., § 68, 757; Hesty Cr. Law, § 128 a.; 5 Ann. 490; 6 Ann. 420,554; 14Ann.827; 32Ann.l084; 33 Ann 1087; 34 Ann. 1078 ; 35 Ann. 71; 36 Ann. 81, 859 ; 37 Ann. 460; 36 Ann, 148.
    3.In order to bring before this Court the rnliogofthe court a qua. lefusing to grant an application for a new trial, and also refusing to charge as requested by the defense, formal bills of exceptions should have been taken thereto. 34 Ann. 881; 35 Ann. 543, 770, 742, 769, 823.

      W. W. Edwards for Defendant and Appellant:
    When there have been threats, accompanied with an attempt to kill, and the parry in danger believes, and has the right to believe, he can escape in no other way except by killing his foe, he is not obliged when he casually meets him to fly for safety, nor to await his attack. Bohanan vs. Com., 8 Bush, 481; Wat. Grim. Dig., p, 315, Ho. 663; Cotton vs. State, 31 Miss. 504; Granger’s case, 5 Yerger, 459.
    Jn homicide, when there is any evidence going to show excuse or extenuation, it is proper* to go to the jury. Whar. Grim. Ev. 9th Ed., § 335 and note 2, under § 334; 9 Met. 93,
    All acts and sayings immediately connected with the principal act form pait of the res gestea, as the case of the Philadelphia riots, and are admissible. Whar. Grim. Ev. § 262 Cowen and Hill’s Hotes to Phil. Ev., Yancott’s Ed. vol. 3, part I, p. 213, et scq.

    Any fact which tends to prove the real motive of the defendant in killing the deceased, is-relevant evidence, whether offered by the State or by defendant. Flanagan vs. State, 46 Ala. 703; also 1 Arehb. PI. and Pr., p. 812 Pomeroy’s Ed.; Stokes vs. Peopl-e, 5* H. Y. 174. ’

      If defendant negligently fowned an erroneous opinion as to tlie necessity of killing, it is manslaughter; l)ut if tlie opinion was not negligently formed, though, erroneous, lie is justifiable, "Whar. Or. Law, 9tli Ed.. §§ 492 and 493. *
    ;Uncommunicated threats are admissible to corroborate other threats communicated (when the latter are admissible.) 1 Arch. Or PI. and Pr. pp. 809, and 811, Pomeroy’s Ed.j see also People vs. Stokes, 53 bf. Y, 174.
   The opinion of tlie Court was delivered by

Poems, J.

Tlie defendant appeals from a conviction of murder without capital punishment, and he relies on errors to his detriment, which lie sets forth in seven hills of exception.

All the grounds of his complaint, although embraced and detailed in numerous bills, may easily be summarized into and discussed under tlie beading of one general principle.

The-pivotal point of bis complaint involves tlie alleged error of the trial judge in excluding the testimony of several witnesses, by which the accused intended to show repeated threats against his life by the deceased, and a conspiracy between the latter and another person to kill the accused by waylaying him, and thus to perpetrate a coldblooded assassination.

The reasons of the judge for his course are included mainly in the ■first bill, to which he refers in all the subsequent hills contained in tlie (record.

Tlie substantial ground which lie advances is the failure of the ac■cused or of his counsel to have laid the proper foundation for such proof, by showing that the deceased had made some assault on his slayer or some hostile demonstration against him at the time of, or immediately preceding, the killing.

Tlie judge informs us in his statement subjoined to the bill, that the .proffered evidence had reference to alleged threats and acts which had preceded the homicide by several days, and that no proof had been made of an apparent intention of the deceased to carry any of the ■alleged threats into execution when he- met the accused on the occasion -of the homicide; the meeting took place in a prairie in broad daylight, and the deceased was shot down by the defendant, in the very .act of begging for his life.

Such proof of the manner in which the homicide occurred, in the .absence of any proof of any preceding assault on his slayer or of any •hostile demonstration against him, on tlie part of the deceased would, in the light of well settled jurisprudence, seem to have left to the trial judge no other alternative hut to exclude the proffered testimony.

But counsel for the accused submits that the judge is in error in his Appreciation of preceding evidence which did show hostile demonstrations on tlie part of the deceased and of his co-conspirator, against the accused, when they all three met in the prairie.

And counsel further argues that the trial judge simply usurps the-functions of the jury when he claims the right of judging of the nature of the evidence as preliminary to the introduction of test ini ony of alleged threats on the part of the deceased. The argument is cpiite obsolete when tested under the established rules of criminal jurisprudence.

This question was maturely considered by ns in the recent case of Ford, 37 Ann. 443, which has perhaps not yet reached counsel for the accused. We said on that subject: “In passing on such a question, the trial judge must of necessity be clothed with the authority to decide whether a proper foundation has been laid for the proffered evi dence, and that authority necessarily includes the discretion to ignore- and not consider testimony which his reason refuses to believe.”

We will not do the injury to the district judges of the State of supposing, with counsel for the accused, that any one of them can be found, so devoid of all sense of duty as to secure conviction of an accused by designedly excluding testimony which might be favorable to him. If there be such a judge, 1ns case should be dealt with in other-proceeding, for which the Constitution has made ample ju'ovision, but the issue cannot be met in an appeal which merely involves the correctness of his ruling's.

The rule laid down in the Ford case was not without precedent, ar.d it has been subsequently followed by this Court. State vs. Labnzan, 37 Ann. 490; State vs. Janvier, 37 Ann. 644.

In the case of Janvier the district judge was upheld in his admitted refusal to give credence to the statements of two witnesses in support of a hostile demonstration, on the ground that their testimony appeared “improbable in itself, and inconsistent with all the proven facts and circumstances of the case.” '* * *

In one of the bills the trial judge is charged with error in excluding testimony tending to show that two days before the homicide the defendant had stated to the proffered witness that tlie deceased and his co-conspirator were lying in wait in tlie woodsfor the accused, and that tlie latter was actually afraid to go by alone. What a con venient defense would there be afforded to murderers in their yearning desire to remove their enemies ! Counsel’s argument that-such a statement, ijiade two-days before tlie killiog, is admissible as evidence to show the state of the mind of'the accused, needs no other refutation than amere mention.

The same answer is sufficient to meet the complaint against the exclusion of testimony consisting of a statement of the accused to the-witness a short time before the killing, that his object in going to that spot was to lmnt for a lost pistol. Tt was by no means part of the re$= gestm, as erroneously argued by counsel, and surely the witness could, not know the object of the accused in going to that praiiie at that particular time. State vs. Ford, 37 Ann. 462.

Our examination of the record has disclosed to our entire satisfaction that the accused had had a fair and impartial trial.

Judgment affirmed.


text:
    No. 9551.
    The State of Louisiana vs. Rose Simpson.
    The Constitution and laws guarantee to a party charged with crime the right to he hoard b? counsel, and where tlio party is unable to employ counsel, it is the duty of the court to-assign one. This right is not an empty formality, but an inestimable privilege, and the counsel so assigned should be allowed a reasonable time to make preparation for the defense, and where under oath he states that he has been unable to do so, assigning just reasons therefor, and asks a delay for the purpose of preparation, and it is refused hint and ho has nob been wanting in diligence, held that such ruling was error.
    APPEAL from the Twenty-fourth District Court Parish of Plaque-mines. Idvaudais, J.

      M. J. Cunningham, Attorney General, and James Wilkinson, District ■ Attorney, for the State, Appellee.

      F. C. Zaoharie for Defendant and Appellant.
   The opinion of the Court wras delivered by

Todd, J.

The defendant, indicted and tried for murder, and convicted of manslaughter, appeals from a sentence of imprisonment at hard labor for twenty years.

The indictment was returned into court on the fifth of October, 1885,. the same day the accused was arraigned and counsel assigned to defend lier, and the case fixed for trial on the ninth of same month.. On that day the counsel made a motion for a continuance accompanied by his affidavit, stating that he “ was only assigned as counsel in thiscanse late on the evening of the fifth of October, and tliat said counsel is entitled to an indulgence from this honorable court of a reasonable time, on which to prepare a suitable and valid defense, which counsel believes there is in this case. That said assigned counsel lias not bad any time to cío so, inasmuch as said assignment was made in tlie midst of a busy term of court, wdien the said assigned counsel was already preoccupied with a mass of other business which compelled liim to devote the whole of Tuesday to its transaction, and that he had been constantly occupied during Wednesday and Thursday, going to and returning to the city of New Orleans, where he was engaged in the transaction of other business during his limited stay there, only arriving at the court-house last evening (Thursday), at a late hour; that the accused is without means or any other assistance in the world outside of the counsel assigned, that she is an ignorant field hand; that Stella Plantation, where the crime is charged to have been committed, is distant twenty-five or more miles from the court-house, with only communication twice a day at irregular hours, and that the assigned counsel has been unable to visit the place or to see any of the witnesses in this cause, or generally to prepare the case involving as it does the life of a human being, embracing points of law and fact, requiring much study and research, which said counsel has been unable to devote to it.”

This counsel was F. C. Zacharie, Esq., a resident of New Orleans.

It moreover appears from his brief— andhis statement is not denied— that the murder was charged to have been caused by ill treatment and .starvation; that the defense was that the death resulted from a disease with which the deceased was alleged to be afflicted; that this defense required an examination of a work or works on medical jurisprudence, and there were none at hand, and also required the testimony of medical experts or physicians, and with the exception of the coroner who was a physician and a witness for the State, there were none in the place where the court was held. It also appears, that when this application was made, the session of the court was drawing to a close, and a postponement of the “trial to allow sufficient time for preparation asked by the counsel at the same term of court, was impracticable.

The delay asked was refused and a bill of exceptions taken to the ruling of the court.

Considering that the offense charged was murder; that the indictment had only been filed at the same term of court; that the counsel .assigned for the defense was a non-resident of the parish where the court was held, and had no sufficient opportunity to confer with the witnesses, and that the defense to be made required great research of authorities on a question of much difficulty and intricacy, we think the judge a quo erred in overruling the motion.

The Constitution and laws of the land guarantee to parties charged with crime, the right to be heard by counsel. This is no meaningless formality, but it is an inestimable right, and the more appreciable when the charge involves the life of a human being. It would be a barren right if the counsel were not allowed a reasonable time to prepare for the defense, time to investigate the facts, and to examine the law applicable to the case. Even in civil cases, counsel appointed to represent an absentee is allowed time for preparation and to correspond with his client, and it would seem a crying injustice if the same privilege were not extended to one indicted for a crime involving his life.

The counsel under a proper and conscientious sense of his responsibility in this case, only asked for such delay as was necessary for the proper discharge of the grave and responsible duties that the appointment in question devolved upon him.

There is another bill of exceptions in the record taken against the refusal of the judge to grant a continuance on account of the absence of material witnesses, which impresses us as possessing force and merit, but we prefer to rest our decisions on the ground first above presented. A review of the entire record satisfies us that the prosecution was characterized by undue haste, scarcely compatible with the guarantee of a fair and impartial trial.

It is, therefore, ordered, adjudged and decreed, that the verdict and sentence appealed from bo reversed and set aside, and that the cause ■be remanded to be proceeded with according to law.


text:
    No. 9507.
    Isaac Levy vs. New Orleans Waterworks Company.
    The act of incorporation of the New Orleans Waterworks Company forbids it to charge more for water than was paid to the city at the date of its incorporation on March 31, 1877, and the charge made by the city at that time was fifteen cents for a thousand gallons to large consumers.
    An owner of a rice-mill in New Orleans is entitled to the use of water conveyed through the pipes and conduits of the Waterworks Company on paying in advance for his supply at that rate.
    A PPEAL from the Civil District Court for the Parish of Orleans. AJA- Monroe, J.

      Jonas & Nixon for Plaintiff and Appellee.

      J. It. Beckwith for Defendant and Appelant:
    i.
    .A writ of injunction cannot bo lawfully resorted to to compel specific performance where it appears that the alleged contract which it is sought to enforce is not completed or certain in all of its parts, nor where the plaintiff has not carried out as far as possible his part of the alleged contract. High on Injunctions, par. 708, and casos there cited.

      IL
    Tlie fact that a remedy of law exists for the violation of alleged contract or right is always a sufficient objection to the interference by injunction. High on Injunction, par. 695,. et seq.; Morris vs. Society, etc.; 1 Halst, Ch., 203 ; Greggerson vs. Insley, 4 Blateh, 503;. Canton vs. It. B. Co., 21 Md. 383; Collins vs. Plumb, 16 Ves., 454.

      III.

    Where a plaintiff seeks to enforce what he believes a right secured to him by law, and re- • sorts to injunction, the pleadings must show that not only is his supposed right clear and palpable, but that lie has tendered full compliance with all conditions imposed on him. Posey vs. Wright, 31, p, 387; U 'Wall. 108; 15 Wall. 547; 72 IJ. S. 575; 113 XT.. S, 516.
    IV.
    A writ of injunction cannot be used to take property out of tbe possession of anothor, nor • to compel any person to sell his property to another without his consent, or without any agreement as to price. Murdock’s case, 2 Bland 461; Bosley vs. Susquehanna, 3 Bland 63 ; Banners vs. Beno, 53.Peim, 224; Washington vs. Green, 1 Md, Cli., 97; Blackmorevs. Glumnorganshire, 1 Myl. V. H.; 154.
    V.
    The plaintiff in this case is not entitled to any relief or injunction until ho in due form tenders the defendant the amount he admits due, or pays the same into eomt, where the defendant, if he so elects, may take the same without being compelled to resort to a lawsuit to iix the amount or recover the money.
    VI.
    Under the pleadings in the record and the proofs, the plaintiff has shown no cause of action or right to recover.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff is a rice-miller in New Orleans, the motive power of his machinery being steam, and be obtains his supply of water from the defendant. He alleges that the defendant by the terms of its charter is compelled to furnish him with water needful for his mill at rates not greater than those charged by and paid to the City of' New Orleans on March 31, 1877, but that the company demands from him four hundred dollars a year for his water-supply, a sum greats in excess of the rates it is permitted to charge, and threatened to out off that supply entirely unless he complied with its demand. An injunction was prayed and issued forbidding the execution of this threat and certain proceedings under it have heretofore been before ns. State ex rel Waterworks Co. v. Levy, 36 Ann. 942.

The defendant, after an exception of no cause of action which was overruled, answered averring that the sum demanded was just and reasonable and tbe true amount due. There was judgment for tbe plaintiff decreeing that be bad a right to nso the water from tbe pipes and conduits of the defendant at the rate of fifteen cents for one thousand gallons, and that this amounts at present to two hundred dollars a year which he must pay in advance, and reserving the right of the company to recover more if hereafter the supply shall be increased' and reserving Levy’s right to pay less if the supply shall be decreased, always preserving the rate iixed by the judgment.

The defendant’s charter was given it by the legislature of 1877, Acts Ex. Sess. p. 51, and its 15th sect, provides that the Waterworks Company shall have the right, to fix the rates of charge for water provided that the net profits of the company shall not exceed ten percent. per annum, and whenever they do exceed that rate the City Council shall have the right to require a reduction to that rate, and provided fuither that the charges shall not exceed those then paid to the city. The date of the act is March 31, 1877.

Obviously it was only necessary to ascertain what was the rate paid to the city at that date in order to ascertain the maximum l'ate that the defendant could charge.

There is a mass of testimony on that point. Prior to and at the-date of that Act this mill paid $150 a year for water, and immediately thereafter when the defendant took charge of the waterworks, $175 was demanded and paid, and this sum continued to be paid yearly until the demand was increased to $400 when it was resisted by this suit.. It is not claimed, nor is itthe fact, that any change had been made in the mill either in machinery or time or manner of running that would increase the consumption of water. It does not appear that these rates of annual charges were the result of any accurate or approximate computation of the quantity of water consumed, but the fact that the city was content with $150 a year as long as she held the waterworks,, and that the defendant was content with $175 a year thereafter from 1877 to 1883, creates a strong presumption that these sums were not. far wrong or inadequate.

Nor is there any support by the record of tlie suggestion, made by the defendant in oral argument and in brief, that these rates were affected by the abnormal condition of the City government and of public affairs at that time. If it had appeared that the fixing of these rates had been the result of corruption, official venality, or other like cause, we should not think the defendant bound for all timo by rates-, fixed under exceptional circumstances.

The testimony was addressed to the ascertainment with accuracy of' the actual quantity of water consumed, and the price paid to the city by consumers in March 1877. This last is found to bo fifteen cents fora thousand gallons to large consumers. The defendant’s engineer says a- fair way of estimating the quantity is to allow a gallon of water-to each pound of coal, but that this will vary with different kinds of coal, and that experiments recently made by him at the Company's works shewed that even one and one-fifth gallons of water may be evaporated with a pound of coal but that it is unusual and not under ordinary conditions.

He appears to have made examinations and computations specially with reference to the issue involved in this case and with the view of informing himself of the details in order that he might testify on this subject intelligently. He says he knows the size of the plaintiff’s boilers and is able to form a correct estimate of the quantity of coal consumed in them in twenty-four hours, and having ascertained the quantity of coal, fixes 7000 or 7500 gallons as the quantity of water consumed in the same time.

It appears that during the year in question the mill ran about eight months. It began about the middle of August and continued until the following May, but from this time is to be deducted alternate Sundays during the time the mill is running day and night, which is two and a half or three months in the first part of the milling season, and still more is to be deducted for the remaining five months of that season when the mill is run only twelve hours or during the day only during which time there are also intervals of two weeks’ rest. The lower judge computed the water consumed for three months or ninety days at 7500 gallons a day and for five months or one hundred and fifty days at half that quantity a day, and thus gives a sum total of 1,237,500 gallons for the season, the cost of which at fifteen cents a thousand gallons is a fraction over $185. The i>laintiff offered to pay $200, and the judgment fixes that as the sum to be paid by him for that year, providing at the same time for its increase or decrease as the consumption of a greater or less quantity of water shall warrant.

The judgment is based on as reliable data as can be obtained. It is more favourable to the company than the computation warrants but the plaintiff does not complain.

The defendant foresees ruin if it is compelled to abide by a rule that inexorably requires it to furnish water at the various rate prescribed in the judgment, but in truth the rate was fixed and prescribed in its own act of incorporation. The cardinal requirement is that it shall not charge more than rvas paid to the city at the time when it accepted the franchise, and the estimates of its own engineer indubitably fix the sum due from the plaintiff as not exceeding that for which .judgment was awarded.

Judgment affirmed.