author: Watkins, J. Breaux, J.

text:
    No. 12,524.
    Eland Smith vs. Louisiana & Northwestern R. R. Co.
    A day laborer on a working train of a railroad company who has sustained an injury by the derailment of one of its cars, occasioned by a small stick of wood lying on its track, can not recover damages of his master without showing that the piece of wood was there through the direct and immediate fault of his servants.
    A PPEAL from the Third Judicial District Court for the Parish Claiborne. Barksdale, J. of

      J. G. Theus and Dormon, Reynolds & Dormon for Plaintiff and Appellant.

      John A. Richardson for Defendant, Appellee.
    Argued and submitted June 1, 1897.
    Opinion handed down June 22, 1897.
    Judgment modified and rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff claims five thousand dollars damages of the defendant for and on account of certain painful, lasting and irreparable injuries which he received at the hands of its employees, agents and vice principals, through their want of skill, negligence and gross carelessness in the management, direction and operation of one of its freight trains upon which he was employed and under the employment and by the direction of whom he was working at the-time it occurred.

The defendant’s answer was a special denial of each and every allegation contained in the plaintiff’s petition; and on the trial there was a judgment in favor of the defendant, rejecting the demands of the plaintiff — the case having been tried by the judge — and from that judgment the latter has appealed.

In substance the demand of the plaintiff is grounded upon the following statement of facts, viz. :

That on or about the 8th of August, 1896, he was in the employ of the defendant as a day laborer, and had been for some time, and while so employed and under the direction and control of its agents and officers who were superior in command, and while on one of its freight trains, same was derailed and wrecked, and he was thrown violently from one of its cars which was loaded with cross-ties, the cross-ties being thrown with great violence to the ground; and that he received lasting and painful injuries thereby, his arm having been broken, and he having received various other serious injuries internally and externally, many of which are permanent and lasting, on account of which he will be unable and utterly incapacitated to perform his daily avocation — giving full details and particulars.

That the car on which he was at the time so employed was thrown from the track by one or more pieces of wood or timber falling, or-being carelessly dropped by the employees of the defendant, from the engine tender, wood rack, or bin, or other place of storing, or carry - ing wood, or timber on said train; or by some of the attachments thereto which caught under the wheels of said train of cars, and derailed or threw it off of the track — be being injured by the fall and being struck by falling timbers and cross-ties.

That said wreck was caused by the defendant’s neglect to provide proper and safe apartments or places for storing or carrying wood or timber; and the failure on the part of those operating and in charge of said train to have said wood or timber properly loaded or stored; and from the careless and negligent handling of said wood or timber by the employees or servants of the defendant — said wood or timber having fallen from the place where it was stored or piled, and same having been carelessly and negligently handled by the defendant’s servants and employees while the train was in motion.-

That it was no part of his duty to superintend the loading or storing of said wood or timbers, and that said loss was caused by no-negligence or fault of his, but wholly by the negligence and fault of the defendant company, its servants and employees in charge of the-train; or for want of necessary appliances for the safety of the employees of said company.”

The evidence shows that the train of ears on which the plaintiff was employed at the time of the accident was a work train whichi was loaded with cross-ties; and was at the time oi the accident in', charge of the company’s superintendent or conductor, who'stated that it was caused by a piece of wood which fell from the wood box.

That Austin Wade and John Wilson were with him at the time of the accident; and that all three were sitting on the cross-ties on the rear car and did nothing to cause the accident or to contribute to its. happening, and had no opportunity of preventing its occurrence.

But it is shown by the plaintiff’s admissions that the wood which was', taken on the car the evening before the accident for the use of the-engineer in operating the train was thrown on the car by Austin.' Wade, John Wilson, himself and others — all of the train crew, in. fact, assisting.

It seems from the general trend of the testimony that the accident was caused by a piece or stick of the firewood falling off the bin im front of the forward car, derailing the one in the rear which was; loaded with cross-ties on which the plaintiff and his associates were-seated, and causing the cross-ties to fall off, and in falling to inflict-an injury upon them as above related; but the testimony leaves in doubt the cause of the fall of the piece of firewood which immediately occasioned the derailing of the car.

The train was, at the time of the occurrence, moving at a fairly rapid speed, and the accident seemed to have been a surprise to every one on the train.

Per contra the engineer who was in charge of the train says he was on the train on the evening that the firewood was loaded on, and on the next morning when the accident occurred, and that housed this wood in the operation of the train in the evening and in the morning; and his statement is that he had no knowledge of any wood having fallen off — that he did not see any piece of wood fall off. He says that an examination was made of the locus in quo after the accident, and that it ascertained that nothing was torn up, and that no spikes were missing. That the only thing visible which. •could have caused bhe accident ‘‘was a small chunk of wood laying in the middle of the track ” — a two-foot piece of pine wood of the same kind that he was at the time using on the engine for firewood.

Upon being interrogated as bo the capacity of that piece of pine wood to wreck a train, he said “ that would depend altogether on what kind of shape it caught a pair of trucks, for they may be on ■one car lower than on another. The trucks on one car may pass over the stick and on another they would not do it.”

He states that he has no recollection of having seen a stick of wood on the track that morning. That the wood was pitched on the train on this occasion as it is usually done. That it would be not at all likely for a fireman to drop a piece of wood in taking it from the bin and putting it in the fire — “ it would have to be an awful awkward movement for a man to do that.”

The superintendent says that the cross-ties were put on carefully, and after the car was loaded he directed the plaintiff to drive down stakes at the side of the car as an additional protection against their .falling off; and that all the stakes were tightened before the train was started.

All the testimony is of the same tenor, and it fails altogether to place the responsibility or blame upon the defendant for the derailing of the train; notwithstanding it is evident that it was bhe small stick of firewood which was found in the middle of the track about one hundred yards from the place of the accident which caused it. The break in the continuity of the testimony is in the manner in which the stick occasioned the derailing of the train, and by whose fault it was placed in position to produce the same.

As the case was left by the witnesses, it seems clear that the piece ■of wood was the proximate cause of the accident; but without showing directly that the stick of wood was on the track through.the fault •of the defendant, its servants or agents, the company is not connected with the proximate cause so as to make it responsible.

This case is completely covered by the opinion of this court in Mire vs. East Louisiana Railroad Company, 42 An. 385, the syllabus of which is as follows, viz.:

“The proof disclosing that plaintiff, while acting in the capacity ■of fireman on a railroad locomotive, was injured by a fall occasioned by the derailing of the engine, tender, etc., and that the accident was caused by the car wheels coming into contact with a loose plank resting on one of the rails of the railroad track. Held: that the-plaintiff, in order to recover of the master, must show that the accident was caused by the direct and immediate act of its servants.”

In that case the plaintiff’s demands were rejected, and for a like-reason those of the plaintiff must likewise be disallowed.

Judgment affirmed.

Nicholls, C. J., absent; ill.

On Application for Rehearing.

Breaux, J.

The plaintiff desires to have his rights reserved to-bring another suit.

After a re-examination of the case we conclude that plaintiff’s application is proper and that it should be granted.

It is therefore ordered and adjudged that plaintiff’s demand be dismissed in both courts as in case of non-suit.

The costs of appeal to be paid by the appellee.


source: Caselaw Access Project

license: Public Domain

text:
    No. 12,525.
    Austin Wade vs. Louisiana & Northwestern R. R. Co.

      Syllabus is same as that of Eland Smith vs. Railroad Company, ante p. 1325.
    APPEAL from the Third Judicial District Court for the Parish of' Claiborne. Barksdale, J.

      J. C. Theus and Dormon, Reynolds & Dormon for Plaintiff, Appellant.

      John A. Richardson for Defendant, Appellee.
    Argued and submitted June 1, 1897.
    Opinion handed down June 22, 1897.
    Judgment modified and rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Watkins, J.

This cause is exactly similar to that, of Eland Smith against the same defendant, ante p. 1825, and with which it was consolidated for the purposes of the trial in the District Court and on this appeal.

Therefore for the reasons therein assigned the judgment appealed from is affirmed.

Nioholls, C. J., absent; ill.

ON Application for Rehearing.

Breaux, J.

After a re-examination of this case we affirm our decree heretofore handed down, except that instead of rejecting plaintiff’s demand we amend the judgment of both courts by dismissing plaintiff’s action as in case of non-suit.

It is accordingly so ordered.

The costs of appeal to be paid by appellee, as required by Art. 908 of the Code of Practice, whenever a judgment is amended on appeal.


text:
    No. 12,526.
    John Wilson vs. Louisiana & Northwestern Railroad Co.

      Syllabus is same as that of Eland Smith vs. Railroad Company, ante p. 1825.
    PPEAL from the Third Judicial District Court for the Parish of Claiborne. Barksdale, J.

      J. O. Theus and Dormon, Reynolds & Dormon for Plaintiff, Appellant.

      John A. Richardson for Defendant, Appellee.
    Argued and submitted June 1, 1897.
    Opinion handed down June 22, 1897.
    Judgment modified and rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Watkins, J.

This cause is exactly similar to that of Eland Smith against the same defendant, ante p. 1325, and with which it was consolidated for the purpose of the trial in the District Court and on this appeal.

Therefore, for the reasons therein assigned, the judgment appealed •from is affirmed.

Nicholls, O. J., absent; ill.

ON Application foe a Rehearing.

Breaux, J.

The plaintiff in his application for a rehearing sought to differentiate this case from the Mire case, cited in our original opinion.

We are compelled to differ from counsel. We have not found the difference between the two cases for which they contend. As in the Mire case, we have not traced the cause of the accident to the billet of wood which was found on the trick. It may be that it was the uause, but we do not think after an examination of the testimony that it was.

We have not been favored with authorities on rehearing to sustain plaintiff’s contention. Our conclusion must be the same as that previously reached, save that we comply with the prayer of plaintiff’s petition and change our judgment and that of the District Oourt to one of non-suit.

It is therefore ordered and adjudged that our original decree is amended, also the decree appealed from. Instead of rejecting plaintiff’s demand, as heretofore, the demand of plaintiff is dismissed in both courts as in case of non-suit.

The costs of appeal to be paid by the appellee.


author: Blanchard, J.

text:
    No. 12,468.
    Police Jury of Lafourche vs. Police Jury of Terrebonne.
    1. Plea of res adjndicnta, founded on judgment of this court in 34 An. 1230, sustained and boundary line between the two parishes as there construed, fixed and determined, upheld as haying the authority of the thing adjudged.
    2. A defence haying been urged and decided adversely in a former suit can not be set up again in a second suit between the same- parties on the same cause of action.
    3. This is so even if the judgment pleaded in estoppel may have been erroneous. Res ad/adicalapro vertíate habitar.
    4. Where nullity of a judgment is averred based only on error of decision upon the issues involved, the decision on such issues by a court competent to decide operates as estoppel.
    6. There being no doubt as to the intention of the opinion and decree the force and • effect of such judgment can not be dissipated under pretext of interpreting it.

      APPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Gaillouet, J.

      Olay Knoblooh & Son for Plaintiff, Appellee.

      L. F. Siothon and J. 0. Briant for Defendant, Appellant.
    Argued and submitted April 13, 1897.
    Opinion handed down May 31, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Blanchard, J.

In 1822 an act of the Legislature was passed creating the parish of Terrebonne out of a portion of the territory then forming what was called the Lafourche Interior. The act specifically defined the boundaries of the new parish. Subsequently, by act of the Legislature passed in 1850, the western boundary of the parish of Terrebonne was altered.

Dispute arose between the mother parish and her offspring as to-the true location of the eastern boundary of the younger parish, and in 1881 this culminated in the institution of a suit by the parish of' Lafourche against the parish of Terrebonne, the object of which was to have judicially ascertained and established the line between the-two paidshes as defined by the act of the Legislature.

The oause of this dispute was the ambiguity of language describing the eastern boundary limits of the new parish in the act of 1822.

Between the respective contentions of plaintiff and defendant was a strip of country constituting the disputed territory, and to definitely settle and determine to which parish it rightfully belonged was-the purpose of the suit.

The case was tried in the parish of Terrebonne, and there was judgment sustaining the contention of defendant. An appeal was-taken to this court, and, in April, 1882, an opinion and decree was handed down reversing the judgment below, and establishing the boundary line in accordance with the contention of the plaintiff. See 34 An. 1230.

A rehearing applied for was refused, the judgment became final,. and, thereafter, owners of property in the disputed territory paid taxes in the parish of Lafourche, their acts of sale and mortgages were recorded there, electors voted and performed jury duty therein, and the public schools, bridges and roads of that section passed under the control and jurisdiction of the parish of Lafourche.

Matters continued thus for a period of twelve years, or until 1894, when another litigation sprung up between the parishes. This time it was over the oyster beds in Timbalier Bay.

Again the mother parish of Lafourche took the initiative against her dissentious offspring. A suit was filed in the parish of Terre-bonne setting forth that in the previous litigation the location of the boundary line between the parishes had been definitely and finally fixed and that the same was res judicata. It was claimed that this boundary line on the southwest of Lafourche and the southeast of Terrebonne was a stream called Bayou du Ohene (otherwise known as Bayou Point au Ohien and sometimes as Bayou du Ohien), which empties into Timbalier Bay at its northern extremity, the prolonga - tionof which line through the waters of the bay would about equally •divide the 'bay and result in giving the eastern part thereof to the parish of Lafourche and the western part to the parish of Terre-bonne.

The averment was made that in that portion of the bay falling on the Lafourche side of the line were valuable oyster beds, which, notwithstanding the previous suit and decision, the defendant parish continued to assert title to and dominion and control over, by claiming the right to issue and by issuing licenses to those who pursue the vocation of oyster fishermen in that part of the bay.

Judgment was asked decreeing the boundary line between that portion of the parishes, as fixed by the final decision of this court, to be a line prolonged from the mouth of Bayou Chene through Tim-balier Bay, and awarding all the oyster bids on the east of such line ■to the plaintiff parish, etc.

In this litigation an attempt was made by defendant to revive and have passed upon anew the same issues raised and decided in the previous litigation twelve years ago. In addition thereto, the answer of the defendant averred that the judgment of this court in the first litigation was an absolute nullity as undertaking to legislate and not to decide.

Plaintiff, insisting on its plea of res judicata as to the boundary line fixed and determined by the judgment of this court in 1882,, objected to all evidence tending to reopen that question. Much testimony was, however, admitted covering the whole range of the boundary dispute, the judge a quo holding that the objection went to the effect rather than to the admissibility of the evidence, and bills of exception were taken by plaintiff.

The judgment of the court below was favorable to plaintiff. It was held that an analysis of the pleadings and judgments of the prior litigation demonstrated that, in so far as the boundary line was concerned, the same issues were tried and determined there as are now sought to be raised afresh in the instant case.

Plaintiff’s plea of res judicata was sustained.

With regard to defendant’s attack upon the final judgment of the first suit it was held that when the only ground of nullity advanced consists in error of decision upon the issues involved, the judgment upon those issues by a competent court operates as a conclusive estoppel between the parties before the court, and that the case at bar comes within that rule.

An appeal was taken by defendant to this court, and, in June, 1896, after full consideration, it was deemed advisable to reverse the judgment and remand the case to the lower court for another trial. Accordingly this was done. In remanding, no instructions were given. See 48 An. 1302.

In February of the present year the case was again tried in the court below on the same issues and evidence, together with additional testimony adduced on behalf of both parties.

Again was it decided in favor of plaintiff, and for the second time it is before us on appeal by defendant.

A full review of the case has brought us to the conclusion that the learned judge of the court below has properly expounded and applied the law that must govern*ts determination.

The plea of res adjudieata contended for by plaintiff, founded on the judgment of this court in the case of The Parish of Lafourche vs. The Parish of Terrebonne, 34 An. 1230, must be sustained. The boundary line between plaintiff parish and defendant parish, as construed, set forth, fixed and determined by that decision, must be upheld as having the authority of the thing adjudged.

It is well settled that a defence, having been urged, and decided adversely, in a former suit, can not be set up again in a second suit between the same parties and on the same cause of action. 12 An. 197, 591; 11 An. 287; 19 La. 318; 35 An. 553; 40 An. 645; 36 An. 400; 26 An. 321; 38 An. 669; 144 U. S. 610; 152 U. S. 327; 94 U. S. 351; 113 U. S. 179.

Every material allegation or statement which, having been made on one side and denied on the other, was at issue in the cause and was determined in the course of -proceedings, is merged in rem adjuicatum. Aurora City vs. West, 7 Wallace, 103; Gould vs. Evansville R. R. Co., 91 U. S. 533.

The same issues, finally determined between the parties, can not be again raised, even on the ground of the subsequent discovery of new evidence. Gusman vs. De Poret, 33 An. 333.

Nor would it make any difference that the judgment pleaded in estoppel may have been erroneous. Res adjudicata pro veritate habitur. State ex rel. Plaisent vs. Railroad Co., 38 An. 312; Heroman vs. Institute, 34 An. 813.

Defendant’s attack of nullity upon the judgment pleaded as res adjudieata can avail nothing. The ground of nullity advanced can be held to be no other than error of decision upon the issues involved. Where this is the case, a decision upon those issues by a competent court operates as estoppel between the parties to the litigation. 34 An. 813.

A careful re-examination of the opinion and decree of this court in the former case (34 An. 1230) leads us to the further conclusion that there is no such ambiguity or conflict in the terms thereof as. requires construction or interpretation at our hands.

It definitely fixes Bayou Blue Water, otherwise known as Bayou du Chene,” as the lower boundary between the parishes “ following its right bank to the sea.”

So that at the sea, or Timbalier Bay, the point of division between the parishes is the mouth of said bayou.

It follows that the prolongation of this line across Timbalier Bay would properly partition the waters of the bay between the parishes, giving to the parish of Lafourche the oyster beds on the east of that line, and to the parish of Terrebonne those on the west of the line. '

As to which “BayouBlue,” or “Blue Water,” is meant in the opinion of the court in the 34th Annual as being intended to represent in part the divisional line, is perfectly clear. Plaintiff in that suit had •contended for a certain “ Bayou Blue” which took its rise near the town of Thibodeauxvilie. Defendant had contended for a “Bayou Blue Water” east of the first and nearer to Bayou Lafourche. The ■court distinctly rejected, as forming any part of the divisional line, the bayou insisted upon by defendant, and as distinctly adopted, as part of the line, the bayou urged by the plaintiff. Several of the ■maps (of an early period of the State) filed in that case, as well as in the present case, show the connection between Bayou Blue and a bayou called “ du Chene ” or “ Ohien,” and locate them as one and •the same stream, the upper part being called Bayou Blue, and the lower part Bayou du Chene or Ohien, flowing to the sea.

On this showing, and construing the act of the Legislature defining the boundary between the parishes, the court in the earlier case -adopted plaintiff’s “Bayou Blue,” with its continuation, “Bayou du Chene,” as the true “ Bayou Blue Water ” mentioned in the act of 1822, as forming part of the divisional line.

We are far from intimating that the court erred in determining ■this particular “Bayou Blue” and “Bayou du Chene” to be the “Bayou Blue Water” referred to by the Legislature, but, even if this be error, we have shown it can not detract from the force of the judgment as res judicata.

There being no room for doubt as to the intention of the opinion and decree of the court in the earlier case, with regard to the bayou in question, the force and effect of that judgment can not be dissipated on the plea of interpreting and making clear what is already free from ambiguity.

The defendant seems to occupy the inconsistent position of asserting that the boundary line established by this court in the earlier case is the boundary line it claims, and yet of averring in its answer that the judgment establishing the same is an absolute nullity as undertaking to legislate and not to decide. It would not ask to have this judgment decreed a nullity, as was done in its supplemental answer, if it believed there was any force in its contention that it really established, or intended to establish, the divisional line it claims as the true one.

The judgment appealed from must be affirmed, and, accordingly, ■that decree is hereby entered.


text:
    No. 12,497.
    State of Louisiana vs. Will, alias Charles, Jackson and Frank Reese.
    Conviction, for larceny on information charging robbery sustained.
    Not essential to set out specifically in an indictment all the minor offences included "within the scope of the greater charge.
    If a person parts with the ownership and possession of his property as the result of fraud practised upon him, it is not larceny, but a cheat at common law, or obtaining goods under false pretences, under our statute.
    If, however, he parts with the possession merely, as the result of the fraud, retaining and intending to retain the ownership or title in himself, its subsequent asportation by the accused is larceny.
    A PPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Oaillouet, J.

      M. J. Cunningham, Attorney General, L. C. Moise, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      Howell & Martin for Defendants, Appellants.
    Submitted on briefs May 1, 1897.
    Opinion handed down May 31, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Blanchard, J.

An information was filed against the accused jointly charging them with robbery. They were arraigned on this charge, pleaded not guilty, were tried and convicted of larceny.

A sentence of one year’s imprisonment at hard labor followed the verdict, from which this appeal is taken.

The first ground relied upon for reversal of the judgment is the ■following:

Error patent on the face of the record is this: That the verdict of the jury is not responsive to the information, the accused not being charged with the crime of larceny and in the manner and form required by law.

We do not think there is force in this objection. The charge laid in the information was robbery. It is fully and sufficiently set forth. Thedefinitioq of robbery is larceny committed by violence from the person of one put in fear. Bishop, Vol. 2, Sec. 1156, 6th Ed. One of the lesser offences embraced in this charge is larceny. If the facts of the case, as disclosed by the evidence, justified it, it became the duty of the trial judge to charge the jury that one of the verdicts they might return was larceny. Bishop, Vol. 2, Sec. 1159. It is not essential to set out specifically in an information all the minor offences included within the scope of the greater charge. If the phraseology of the indictment be sufficient to support a conviction on the greater charge, it, too, suffices to support a conviction fora crime of lesser magnitude but of the same generic class. State vs. Ford, 30 An. 313; State vs. Stouderman, 6 An. 289; State vs. McCort, 23 An. 326; State vs. Delaney, 28 An. 434; State vs. Gilkie, 35 An. 53; Bishop on Crim. Law, Vol. 2, Sec. 1159 et seq., 6th Ed.; Bishop’s New Crim. Law, Sec. 1055.

The second ground relied upon by the accused is this:

That the trial judge charged the jury as follows: “I charge you that when the property is taken with the consent of the owner, then there is no larceny, unless the consent was obtained by fraud prac-tised by the accused with a view to obtain the property with intent to steal it, and that fraud so practised was the primary motive which moved the owner to consent.”

To this charge a bill of exception was taken. The bill does not set forth wherein the clause of the charge objected to is erroneous, nor does it state it is erroneous or even prejudicial to the accused, and it does not appear that any different or additional charge was requested.

The judge’s charge to the jury, as a whole, is not before us. The sentence quoted above is the only part that comes up with the bill of exceptions. But in the bill the judge tells us that the clause of the charge excepted to formed part of a general charge, in which the court instructed the jury fully as to the crime of robbery and its constituent elements — that upon an indictment for robbery the jury could find a verdict of guilty of larceny when the facts failed to show robbery but established a case of larceny; and that the jury were then instructed as to the crime of larceny and its constituent elements — the instruction on the subject of larceny concluding with the clause excepted to. Then, premising with the statement that he deems it fair to the accused to put the appellate court in possession of the material parts of the evidence upon which the case was given to the jury, the judge adds a full synopsis of the evidence adduced before the jury.

In defendant’s brief it is insisted that the charge of the judge quoted is erroneous, and under the evidence submitted to the jury, as set forth in the bill of exceptions, was calculated to mislead the jury, and to prevent them from considering any evidence tending to show that if the prosecuting witness was deprived of his property by the accused, it was by reason of some trick or device practised by them on him, by which he was induced to absolutely part with his property, which is not larceny under the law.

We can not agree with this view. Under the facts of the case as presented, the charge was not an improper one. It told the jury that when property is taken with the consent of the owner, there is no larceny. This is not disputed. It told the jury further, that if the consent of the owner was secured by fraud, perpetrated for the purpose of obtaining the property with the intention of stealing it, it is larceny; provided the fraud so practised was what caused the owner to give his assent. This is not error, for it does not, in our view, conflict with the law as laid down on this subject by the most authoritative text writers.

Thus, Bishop in his work on Criminal Law, Vol II, Sixth Edition, p. 447, Secs. 808, 809, says: ‘‘If by fraud a person is induced to part with his goods, meaning to relinquish his property in them as well as his possession, he who thus obtains them may be chargeable with a cheat at common law, or under the statute against false pre-tences, but not with larceny, because it is assumed that the owner having actually consented to part with his ownership, there was no trespass in the taking.” (Italics ours.)

If he parts with the ownership and possession, as the result of the fraud, it is not larceny. If he parts with the possession only, as the result of the fraud, retaining and intending to retain the ownership or title in himself, it is larceny, for then there is trespass in the taking. Rice on Evidence, Vol. Ill, Sec. 442. The language used by the trial judge, in the clause of his charge objected to, “ was with a view to obtain the property with intent to steal it.” The words “obtain the property” clearly meant (in the connection in which they are used and as applicable to the evidence as set forth in the bill of exceptions) the possession of the property — “ obtain (the possession, not the ownership, of) the property with intent to steal it.” The phrase “ to obtain the property,” as here used, is synonymous with to acquire possession of the property. Webster’s Diet., verbo “ Obtain.” The owner not haying parted with the ownership, but merely the possession of his property as the result of the fraud, its subsequent asportation by the accused constituted the crime of larceny.

Judgment affirmed.


text:
    No. 12,528.
    Joseph Bowling Company, Limited, vs. J. B Colvin.
    1. An attachment justified against one who has mortgaged or is about to mortgage his property, or some part thereof, with intent to give an unfair preference to one or more of his creditors.
    2. This mortgaging or about to mortgage takes place, in the sense of the Code, where an insolvent debtor gives confessions of judgment to certain favored creditors and denies it to others who apply to be placed upon the same footing, and whose claims are undisputed.
    8. These confessions proved in court, judgment signed and recorded, become judicial mortgages.
    4. The effect of granting same to some creditors and refusing it to others is to give an unfair preference.
    PPEAL from the Fifth Judicial District Oourt for the Parish of Ouachita. Potts, J.

      Munholland & Munholland for Plaintiffs, Appellants.

      Potts & Hudson (C. J. Boatner of Oounsel) for Defendant, Appellee.
    Argued and submitted June 3, 1897.
    Opinion handed down June 19, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff appeals from a judgment mulcting him heavily in damages for the alleged wrongful attachment of defendant’s property. .

The facts are these:

Defendant was indebted to plaintiff in the sum of five hundred and seventy-two dollars and seventy-eight cents, for which he gave his promissory note. Failing to meet the note at its maturity, or thereafter to arrange for its payment, plaintiff placed the same in the hands of his attorneys for collection. The efforts of the attorneys to effect a settlement likewise failed, and they requested him to confess judgment on the claim.

This he refused to do, and he also declined to accept service of petition and waive citation. It appears, however, that at this very • time, and immediately prior thereto, he did confess judgment in favor of sis other creditors, who immediately took formal judgments on the same, the District Court being in session at the time.

It is true these were small claims, aggregating something less than one thousand dollars in all, and that in each case a stay of execution was stipulated for. It is equally true that plaintiff’s claim was not a large one, and that he asked in the way of a .confession of judgment only what defendant was extending to his other creditors.

The evidence establishes that at this time defendant was insolvent.

In December, 1890, be had begun mortgaging his property for money borrowed — something less than five thousand dollars principal.

In February, 1895, he borrowed more money and gave another mortgage — this time for_about sixteen thousand dollars.

In March, 1895, he executed a third mortgage — this time for six thousand dollars, in favor of his mother, who lived in an adjoining parish.

Besides these secured claims, he owed the Monroe National Bank about five thousand five hundred dollars. He also owed his wife a paraphernal claim of fifteen hundred dollars.

And he owed other debts, which, added to what was due plaintiff and to the amounts for which he had confessed judgment, showed an aggregate indebtedness of more than thirty thousand dollars, exclusive of interest. Yet on the stand, defendant claimed, at first, that fourteen thousand dollars would cover his liabilities, subsequently, on cross-examination, increasing it to eighteen thousand dollars.

The value of his property and assets, as disclosed by the record, were far less in amount than his indebtedness.

He fixes the value oí Jais plantation, with fixtures, teams, etc., at twenty-five thousand dollars, but we are inclined to believe he is as much in error in overvaluing the property as he was in error in understating the amount of his liabilities. There was something said in the testimony to the effect that his assessments did not exceed eight or ten thousand dollars, and while, in the country parishes, this is not a true criterion of value, this amount could be doubled and even tripled without reaching the aggregate of his indebtedness.

Not being able to obtain any satisfaction with regard to settlement of the note, and construing defendant’s action in confessing judgment in favor of certain creditors, and refusing it to them, as an unfair preference, plaintiff’s attorneys (their principal being domiciled in New Orleans) brought suit, accompanied by attachment, under which defendant’s plantation in Ouachita parish, with certain mules and other stock, was seized. The averments for attachment are those recited in the fourth and fifth clauses of C. P. 240, but the reliance of plaintiff to justify the attachment is that part of the fourth clause which declares that a debtor’s property may be attached “ when he has mortgaged * * * or is about to mortgage * * * his property * * * or some part thereof, with intent to * * * give an unfair preference to some of them.”

Defendant was left in charge of the plantation and other effects seized. Nothing was removed from the premises. 'No effort was made by defendant to bond the property seized.

A motion was filed on his behalf to dissolve the attachment on the ground of the falsity of the affidavit charging malice on part of plaintiff. He denied insolvency at the time of seizure and averred he enjoyed good credit in commercial circles, which the attachment destroyed. He alleged various items of damage, aggregating ten thousand dollars, for which he prayed judgment in reconvention against plaintiff, and for dissolution of the attachment, asking trial by jury. The case was tried by a jury; there was judgment in favor of plaintiff for amount of the note with interest; the attachment was dissolved, and defendant was awarded judgment on his reconven - tional demand for damages in the sum of twenty-five hundred dollars.

Plaintiff seeks relief from this judgment for damages, and asks that the judgment in his favor be affirmed, first amending th.e same by sustaining his attachment.

It is clear that our review of the case must be confined to the judgment for damages in favor of defendant on his reconventional demand. That is within our appellate jurisdiction.

The judgment in favor of plaintiff on the note not being for an amount within our appellate jurisdiction is not reviewable by us and must remain undisturbed. Baldwin & Co. vs. Mumford, 35 An. 350.

A careful examination of the facts and the law of this ease has brought us to the conclusion that the verdict of the jury awarding defendant twenty-five hundred dollars damages, and the judgment based thereon, can not be sustained. We acquit defendant of the charge of having assigned or disposed of, or intending to assign or dispose of, his property for the purpose of defrauding his creditors. We also acquit him of having converted, or being about to convert, his property into money, or evidences of debt with intent to place it beyond the reach of his creditors. But we find he did confess judgment in favor of certain of his creditors, enabling them (court being in session) to speedily take judgment on their claims, which judgments, when recorded, would become judicial mortgages, taking rank as encumbrances on his real property in the order of their recordation. We find that at the same time and immediately subsequent to the other confessions, he refused to put plaintiff on the same footing with the other creditors by confessing judgment in his favor. The effect of this was to give an unfair preference to the other creditors over the plaintiff. It was more than that. It laid the defendant open to the charge that he had mortgaged his property, or was about to mortgage same, with intent to give an unfair preference to some of his creditors. These are grounds for attachment by the very letter of the Code. It will not do for defendant to now say he did not intend to give an uafair preference. We can only ascertain the intention of another mind by inference, or by deduction from acts or words. 34 An. 912. Men must he considered as intending the reasonable consequences of their acts.

Nor will it do for him to say that giving the confessions of judgment was not a mortgaging of his property in the sense of the Oode.

It was the doing of something which made possible, and lead directly up to the inscription of judicial mortgages on his property in behalf of certain favored creditors, d9nied to others. It is impossible to escape the conclusion that this was a mortgaging of his property, and that it gave an unfair preference.

We are not to be understood as holding that the giving of a confession of judgment by a debtor is, in itself, grounds for attachment. On the contrary, there may be circumstances when it is not only en - tirely right and proper, but, perhaps, the duty of a debtor to confess judgment.

But we do hold that where an insolvent debtor, as in this case, confesses judgment in behalf of certain of his creditors, under circumstances which enable them to secure mortgages on his property and an unfair preference, and refuses the same to other creditors, when applied to for it, it is ground for attachment. Each case would, however, have to stand on the circumstances peculiar to it.

We differentiate the case of Wilson vs. Chalaron, 26 An. 641, relied on by defendant, from the instant case.

There the ground for attachment was that the defendant “ was mortgaging and disposing of his property with intent to defraud his creditors,” and it was shown that he had confessed two judgments, and made to his wife a giving in payment for a debt he owed her, and caused her legal mortgage to be recorded.

The court held that tnese grounds did not justify the attachment; that the law expressly allowed him to settle with his wife as he had done; that it was his duty to cause the registry of her mortgage to be made; and that it was the privilege, as well as the duty’of defendant to admit the correctness of the claims sued on, or confess judgment, if he believed them to be just demands against him.

It does not appear in that case, as in this, that other creditors, at the same term of court, had presented undisputed claims and requested confessions of judgment, thereby putting them on the same footing with the creditors thus favored, and had been refused the same. And in the instant case, unlike the other, it is distinctly averred, as ground for attachment, that defendant was mortgaging his property with intent to give an unfair preference.

No unfair preference was either alleged or shown in the former case, while in the present one it is both alleged and shown.

We also distinguish the case of Seeligson & Co. vs. Rigmaiden & Co., 37 An. 722, from the instant one. There the plaintiffs had asked defendants for a mortgage to secure their claim, accompanied with an engagement to buy only from them, and defendants refused to give it, burdened with this onerous condition. Subsequently, another creditor, with a claim for less than two hundred dollars, agreed to let them have goods not to exceed a given sum at one time, and the mortgage was given to secure this continuing credit.

Plaintiff attached because of the granting of this mortgage. It was properly held that, under the circumstances, they had no ground for attachment.

In the case at bar, defendant had already granted the confessions of judgment to certain creditors. Ascertaining this, plaintiff asked the same status, which, if it had been granted, would have enabled him at the same term of court to prove up his confession and take .judgment, recording it so as to take rank concurrently with the others as a judicial mortgage. The refusal of this evidenced an unfair preference; it was a declination to place plaintiff on a footing of equality with the other creditors, and this was justification for the attachment which followed. Lehman vs. McFarland, 35 An. 626; Stevens vs. Helpman, 29 An. 635; Chaffe et als. vs. Gills, 43 An. 1054.

It is, therefore, ordered and decreed that the verdict of the jury ■and the judgment based thereon, awarding defendant twenty-five hundred dollars on his reconventional demand, be annulled, avoided -and reversed, and that defendant’s demand in reconvention for damages be rejected at his costs in both courts.

Rehearing refused June 29, 1897.

Me. Justice Bbeaux : I concur in the decree, as in my opinion there was no ground for damages.


text:
    No. 12,486.
    Succession of Charles W. Easum.
    1. An act from which consent or ratification is sought to he deduced must evince such intention clearly and unequivocally.
    •2. Nor will ratification he inferred where the act can he otherwise explained, and incase of doubt the party against whom the act is opposed must have the benefit of the doubt.
    3. The account filed by this administratrix was based upon the hypothesis of the existence of a community. That being negatived by the judgment, and it appearing that the widow may have a just claim to the homestead right or marital portion, a case is presented justifying remanding.
    4. A case will be remanded where the ends of justice require it.
    PPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      W. S. Benedict and Percy 8. Benedict for Widow, Administratrix,. Appellant.

      Harris Gagne and Bernard Titche for Opponent, Appellee.
    Submitted on briefs June 3, 1897.
    Opinion handed down June 25, 1897.
   The opinion of the court was delivered by

Blanchard, J.

Charles- W. Easum died in May, 1896, leaving a widow by second marriage and a son, Harry A. Easum, by first marriage. He died intestate. The son, a youth of eighteen years, was his sole heir. This son was emancipated by judgment of the District Court shortly after his father’s death, and on same day the succession was opened on application of the widow, who was appointed administratrix. The inventory showed four thousand six hundred and twenty dollars and ninety cents cash in bank, and no other property.

The debts were few — nothing beyond expenses of last illness, funeral and law charges.

Within a few days after her appointment as administratrix, the widow filed an account of administration.

This showed the money in bank and the debts, the latter aggregating five hundred and sixty-nine dollars and seventy cents, leaving a balance of four thousand and fifty-one dollars and twenty cents (in the language of the account) to widow, administratrix, and sole heir, Harry A. Easum.”

Following this, on the account, there appeared these words:

“I acknowledge the above account,” and appended thereto are the signatures of both the administratrix and the sole heir, though it would seem that the signature of the administratrix was intended to be to the account itself, while that of the heir was to the acknowledgment above quoted. And then follows the jurat before a notary, but whether one or both swore to the account is not clear, counsel for the widow affirming that the sole heir, as well as the widow, attested its correctness under oath, and counsel for the heir denying this, alleging that the heir did not make oath to the account, and that the ords “ I acknowledge the above account,” to which alone his signature was affixed, were only intended in the nature of an acceptance of service and a waiver of citation or notice.

It appears that up to this time there was harmony and concord of action between the heir and his step-mother. Both were represented by the same counsel, and the proceedings taken in the succession were predicated upon the hypothesis that the funds belonging to it appertained to the community of acquets and gains which had existed between the dead man and the surviving widow.

On this idea the account was made out, and the widow insists it clearly proposed to divide the balance left after payment of debts between herself and the heir — one-half to each.

But before this account came up for homologation the heir employed other counsel, who promptly filed, on his behalf, an opposition, claiming that all the funds belonging to the succession were the separate estate of the deceased, that the community owned no part thereof, and that, as a consequence, the widow was entitled to no share therein.

On the trial of this opposition, to evidence offered to prove its averments, objection on behalf of the widow was interposed on the ground that the heir was estopped from contesting the account by his judicial admission of its correctness. The evidence was received subject to the objection, and a bill of exceptions reserved.

The testimony showed that the surviving widow had been married to the deceased less than six months before his death; also that all the funds save five hundred dollars, owned by him at his death, had been acquired before his last marriage. Whereupon there was judgment sustaining the opposition, limiting the amount to which the widow was entitled to two hundred and fifty dollars, and decreeing the heir entitled to the remainder, or three thousand eight hundred and one dollars and twenty cents.

T|ie widow appeals.

The presumption of the law was that the funds on hand when Easum died belonged to the community. There was nothing brought to the attention of the attorneys, who opened the. succession, showing the contrary, up to the filing of the account. By the filing of. the opposition and the proof supporting it, the presumption referred to was overthrown. But the widow, resting on the approval of the account, as she thought, by the heir, and claiming for this acknowledgment the force the law attaches to judicial admissions, maintained her petition — did not seek to change it from widow in community claiming one-half of the estate, to widow left in necessitous circumstances claiming the homestead right or marital portion.

The judgment of the lower court went against her, and it was then too late to make the change.

On this appeal she still insists that the heir must be held to his acknowledgement of the correctness of the account, which, it is urged, on its face shows recognition of the community interest claimed by her. But if this contention be not sustained, she asks that the case be remanded, in the interest of justice, in order that she may assert the rights accorded her by law.

The circumstances surrounding this case, and the evidence, satisfy us that there was no consent or ratification by the heir of any proposed distribution of the funds of the estate. Neither the inventory nor the account recite that the property therein designated is community property, and even, if the “acknowledgment” which the heir signed is held to be ratification, there is nothing in it which would bind him as having admitted the existence of a community.

An act from which ratification is sought to be deduced must evince such intention clearly and unequivocally. Breaux vs. Sarvoie, 39 An. 246.

Nor will ratification be inferred where the act can be otherwise explained, and in ease of doubt the party against whom the act is opposed must have the benefit of the doubt. Id. See also Succession of Troxler, 46 An. 738.

The heir, in his testimony, denies any ratification, and his signature to the account is, we think, sufficiently “ otherwise explained.” Estoppels are not favored by the law.

The demand of the widow for remanding the case for the purpose heretofore stated is met on part of the heir with the objection that she is concluded by the account which she herself prepared and signed.

We have already shown that this account was based upon the hypothesis of the existence of a community.

That being negatived by the judgment of the court, it would work a wrong, a hardship, an injustice to deny to the widow the opportunity to show that she was left in such circumstances as entitle her under the law to certain rights in the estate.

This court will remand a case where the ends of justice warrant such action.

The heir, who has just been relieved of the consequences of his own signature to the account, is hardly in a position to gainsay the granting of the same relief to the widow who also signed it. He can hardly be heard to dewy estoppel as the result of his signature and in the next breath plead it as the result of hers.

Looking to the proper and equitable adjustment of the rights of the parties, this case is viewed as being before us only on the question of the existence of the community vel non, and not as to its entire disposition. We hold that of the fhnds belonging to this succession five hundred dollars only fell into the community, and that the remainder was the separate property .of the dead husband, and as such is inherited by Harry A. Easum, the son.

To this extent the judgment appealed from is affirmed.

So far as the said judgment directs the payment of the amounts therein mentioned to the widow and heir, and purports to settle and close the succession, it is ordered and decreed that the same be set aside and annulled, and that this case be remanded for further proceedings in accordance with the views therein expressed, giving to the widow a reasonable time in which to assert the homestead right, or to claim the marital portion; but nothing herein is to be construed as passing upon her legal right to either.

Nicholls, 0. J., ill, absent.


author: McEnery, J.

text:
    No. 12,413.
    Louis T. Michenor et als., Trustees Land Trust of Indianapolis, Indiana, vs. Jacob A. Reinach.
    APPEAL from the Civil District Court for the Parish of Orleans, King, J.

      E. Howard MeCaleb for Plaintiffs, Appellees.

      William Winans Wall for Intervenor, .Appellant.
    Argued and submitted February 3, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

McEnery, J.

John Watt intervened in the suit No. 12,302, ante p. 360. Same plaintiffs vs. same defendant.

Por the reasons assigned in that case, the judgment appealed from is affirmed.


author: Miller, J.

text:
    No. 12,300.
    Edward Belknap, Receiver of Excelsior Refining Company, Limited, vs. Chas. H. Adams and Phil. R. Rice (Consolidated).
    The purchase of it's own stock hy the corporation cancels the stock. Cook on Capital Stock; Morawitz on Corporations, Secs. 112,114.
    But if the stock so purchased is reissued it must be paid for by the corporator who receives it, if the debts of the corporation require payment of the shares by the shareholders. Ibid., Sec. 128 etseq.; Secs. 819, 820, 823; 91 U. S. 4S.
    A PPEAL from the King, J. Civil District Court for the Parish of Orleans.

      Percy Roberts and Qus. A. Breaux for Plaintiff, Appellant.

      Samuel L. Gilmore for Defendants, Appellees.
    Argued and submitted March 31, 1897.
    Opinion handed down April 12, 1897.
    Rehearing refused June 26, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment dismissing his suit to compel payment by defendants of check held by them of the insolvent corporation, represented by plaintiff, as receiver.

The petition charged in substance the organization of the corporation, the Dupuis Refining Company, with a capital of forty-five thousand dollars, with three corporators, the two defendants, Adams, Rice and Dupuis; that Dupuis was permitted to pay his stock subscription in the formula for the proposed manufacture, the two defendants were credited on their subscription with services claimed to have been rendered in forming the corporation and claim to have paid, or satisfied the residue of their subscriptions; that the corporation subsequently bought from Dupuis his stock, thereafter ■changed its name to the Excelsior Refining Company, resolved that its capital be increased to one hundred thousand dollars, and the petition charges that with no actual contribution the two defendants donated and issued to themselves the fifteen thousand dollars ■of the stock purchased from Dupuis; the subsequent creation of debts by the corporation is averred still unpaid, and to provide for these debts, tbe relief sought by the receiver is, that each of the defendants be condemned to pay that part of their original stock subscriptions not paid in cash and the entire amount of the stock issued to themselves afterward, and for which no payment was made. The answer is, in effect, that the subscription to the stock was satisfied, that the defendants being sole corporators had the right to ■divide the stock purchased by the corporators from Dupuis, that its issue to defendants produced no liability, as the stock was paid for by Dupuis in the value of the formula, and as a further defence the answer charges that when the Dupuis stock was divided and issued there were no debts due by the corporation, and hence it is claimed the defendants are under no liability to contribute for the satisfaction of corporate debts, alleged in the petition and created since the division and issue of the Dupuis stock.

The discussion in defendants’ brief in reference to the asserted full payment by them of their stock originally subscribed for requires no attention. They claim that subscription left no liability to creditors although not wholly paid. In argument here, it is alleged liability for the Dupuis stock, fifteen thousand dollars, that is asserted against the defendants. The serious question is as to the effect of issuing to defendants, without any.payment, these one hundred and fifty shares of stock, purchased by the company of one of its shareholders. Whether issued originally or after the purchase, can the ■shareholder partake of any issue by the corporation or acquisition from it, of shares of stock, without incurring liability to the corporate creditors.

In this case there is the agreement to increase the stock from forty-five thousand dollars to one hundred thousand dollars, and the required announcement to the public. Then follows the issue to defendants of one hundred and fifty . shares, without payment. Thereafter the corporation creates debts, and defendants’ proposition that there is no liability to creditors for the stock held by them without paying for it.

It is urged on us by defendants that the one hundred and fifty shares had been paid for by the subscriber to whom it had issued, before the increase; that the stock was purchased by the corporation, and hence defendants, the sole corporators, had the right to-divide it without any resulting liability to creditors. This position is sought to be supported by treating the stock purchased as property which corporators can divide, if the corporation is solvent. No-right, if any creditor is concerned or invaded when such a division occurs. But instead of a division of property, we have in this case the division of purchased stock, which, by the purchase, was canceled and remained canceled for all purposes, until reissued. Morawitz,. Secs. 112, 114. This is the well defined result when the corporation purchases its stock. The purchase is an unauthorized use of the-corporate funds, but when permitted to stand or is unassailed, the purchase simply extinguishes the stock and increases the rights of the remaining stockholders. This division or donation of the purchased stock was not, in any sense, a distribution of corporate property, and hence the transaction is not within the protection the law gives to the division of corporate property between corporators, of a solvent corporation.

In this case there was no subscription by defendants to the one hundred and fifty shares. It is, however, well settled that the accepting certificates of stock, or claiming the benefits of shareholders, is enough to create the liability of shareholding. In this case certificates for the shares were issued to the defendants in accordance with the donation to themselves, as we find it expressed in their testimony. That holding made them shareholders as effectively as if they had formally subscribed. Morawitz, Sec. 128 at seq. It was the issue to themselves of the shares of the stock of the corporation organized with the announcement to the public of its five hundred thousand dollars of capital. The contract to pay for the stock the law implies from that issue. Upton vs. Tribilcock, 91 U. S. 47, 48.

The liability of the shareholder to pay for the shares is deemed contracted in the interest of all who may become creditors of the corporation. The corporate franchise is conferred by the State, but on the condition there shall be a capital subscribed and paid for, and. the chief purpose of the requirement is to guard the public against, fictitious corporations, and to secure a fund for those who become the corporate creditors. Because of this interest of creditors, the-subscribers to the capital stock must be paid in cash or its equivalent,, and no agreement varying this obligation between the subscriber and the corporation will be of the least validity, as respects the corporate creditors. The liability for the stock, whether created by actual subscription or receiving certificates from the corporation, or by any other mode of dealing with the corporation, of equal significance, can not be discharged, except by payment. In the language of the authorities the liability of shareholders to the corporation for their stock is treated as a trust fund for creditors, and the courts will enforce the trial through the receiver, or other appropriate method. Cook, Stock and Stockholders, 3 Ed.; Sec. 309; Upton vs. Tribilcock, 91 U. S. 47, 48.

In our view the defendants incurred the liability of shareholders when they took the fifteen thousand dollars of the stock purchased, and afterward reissued to them by the corporation, and that liability subsists in favor of creditors. Nor is it of the least consequence there was no corporate creditors when that issue was made. The shareholder’s liability for unpaid stock received for the corporation is to future as well as subsequent creditors.

But the receiver’s suit against shareholders for the amounts due-on their stock is in the interest, of creditors, and the recovery is-limited by the debts of the corporation to be satisfied. In this ease the unpaid corporate debts, as well as we can ascertain from the record, and in the absence of any indication of the briefs, is far less than fifteen thousand dollars claimed by the receiver from the de - fendants. We think the judgment in his favor should be restricted to an amount sufficient to pay the corporation debts and the costs and expenses of this appointment and liquidation of the receiver, and to fix the amount and to give judgment the case will be remanded.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that the case be remanded for further proceedings in accordance with this opinion and decree, and that defendants pay costs.


text:
    No. 12,554.
    State of Louisiana vs. Louis Hinton.
    1. It is not imperative to use the words of the statute in framing the averment to relieve the criminal prosecution from the prescription of one year, hence the allegation the offence has “just” come to the knowledge of an officer with authority to prosecute is held sufficient. Revised Statutes, Sec. 986, Act No. 50 of 1894.
    2. In a prosecution for shooting with intent to murder it is competent for the State to prove that the prosecuting witness was the bearer of a peaceful message to the accused, theanessage and its delivery having close relation to the shooting at the prosecuting witness, the offence charged.
    3. Nor will the verdict on such charge be set aside merely because testimony was given of the impudent reply, very shortly preceding the shooting, made by the accused, a negro laborer, to the message from the manager of the plantation, a white man, nor because the district attorney commented on the reply in addressing the ¡jury of white men.
    4. The court adheres to the construction that the re-enactment necessarily only of prospective operation of a section of the Revised Statutes creating an offence, the re-enactment announcing no repeal except of conflicting legislation, will leave in force the section in respect to offences prior to the enactment, and this interpretation accords with the purpose of the Legislature not reasonably supposed to have intended the release of all offenders for crimes under the section committed prior to the enactment. Revised Statutes, Sec 792, Act No. 59 of 1896; State vs. Jalre Toung, 49 An. 70.
    5. When the juror on his voir dire has answered fully and explicitly that he will give the benefit of any reasonable doubt, it is not error for the court to exclude another question on the same line presenting a hypothetical phase it is assumed the testimony will disclose. 6. The conclusion against the peace and dignity of the State, although following thqallegations negativing the prescription, will be deemed to refer to the body of the indictment.
    A PPEAL from the Twenty-fourth Judicial District Oourt for the Parish of St. Mary. Allen, J.

      M. J. Cunningham, Attorney General, and Walter B. Gordy, District Attorney, for Plaintiff, Appellee.

      Sigur,, Milling & Sanders for Defendant, Appellant.
    Argued and submitted June 19, 1897.
    Opinion handed down June 22, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the sentence for shooting with intent to murder, and relies on numerous bills of exception.

One of the grounds in arrest of judgment was that the information was filed more than one year after the commission of the offence, and there was no averment sufficient to defeat the prescription applicable to the prosecution. This ground has been earnestly pressed and presents some difficulty. The law prescribes prosecutions for offences including that charged in this ease, unless the offence is prosecuted within one year from the time it has been made known to a public officer having authority to direct a public prosecution. Revised Statutes, Sec. 986, amended by Act No. 50 of 1894. It is, of course, essential when one year has elapsed since the offence was committed to insert in the indictment or information the averment to remove the bar of prescription. There has been some discussion as to the burden of proof on such an averment, but the necessity of the averment admits of no dispute. State vs. Barrow, 31 An. 694; State vs. Barfield, 36 An. 89. In this case the allegation is that the aforesaid offence has “ just come to the knowledge of ah officer having authority to prosecute.” It is insisted that this is not sufficient; that non constat the knowledge may have come to other officers with power to direct the prosecution, and the words that the offence had just come to the knowledge of the officer, it is urged, are not equivalent to the averment of the preferring of the information within one year from the time the offence was made known to the public officer or officers. Undoubtedly the averment might have been more formal. State vs. Barrow, 31 An. 693. We are referred to the text writers who distinguish between “ immediately ” and the greater precision requisite when time is an element of the offence. Again, “ then and there,” referring to the commission of the offence, can not be substituted by such a word as “immediately.” We do not think the same exactness is to be applied to an averment negativing prescription. The word “just,” as an adverb of time, is equivalent -to “ at this moment,” or the “least possible time since,” as Webster defines the word. Again, to aver that the offence has just come to the knowledge of “an” officer with authority to prosecute implies, we think, that which would be conveyed by the more explicit form of statement, it had not been made known to “any” public officer. Again, it is urged that the word “ officer” only is used, not public officer; but that omission is supplied, we think, by the addition, with the authority to prosecute. While we are sensible the averment in this information is open to some objection as to form, we do not think the mode of statement adopted by the pleader furnishes the basis to arrest the judgment.

There were reserved bills of exception to the admissibility of testimony to show that a message was sent to the accused by the manager of the plantation on which the shooting occurred, and exceptions were also reserved to testimony of the character of this message and to the reply the message elicited. We gather from the bills that the messenger was directed to tell the accused, a laborer on the plantation, in substance, to go into the field or leave the plantation; that the accused gave the messenger an impudent answer, and a short time after the shooting occurred. We group the bills dealing with the admissibility of this testimony. It is contended the sending of the message, the direction of the manager to the messenger and his statements to the accused — i. e., the delivery of the message, were inadmissible against the accused. Some criticism is in the brief of the reasons given by the court for admitting the testimony. But in considering the question raised by the bill we can give weight to the relation the testimony bore to the charge against the accused. The'testimony tended to show the circumstances under which the prosecuting witness came into contact with the accused on the morning of the shooting. It placed him in the attitude of bearing a peaceful message from the manager of the plantation to the accused. The jury, we think, were entitled to be placed in possession of the visit of the accused shortly preceding the shooting the subject of investigation and closely connected with it. It better enabled the jury to reach a conclusion. We see no error in the ruling of the court on this point.

The answer of the accused to the message was well calculated, it is urged, to prejudice the accused. It was sent by the negro laborer to a white man — the manager. It was commented upon, it is claimed, to the prejudice of the accused before the jury of white men, and was well calculated to withdraw their attention from the charge in the information to the incident of the impudence of the negro. The reply preceded the shooting by a short time, but led up to it. It is urged that no statement of the accused is more than hearsay, and when admissible can come in only as a confession. On the part of the State, it is contended, the reply of the accused negro, preceding the shooting but a short time, is to be deemed part of the res gestss. The lower "court, in admitting this testimony, states it was admitted to show, with other facts, the cause or motive for the shooting; that it was not hearsay; that if not connected with the shooting the jury would be instructed to disregard it; after sending the message the court proceeds to state, the accused left, returned in a short while, then the difficulty took place, the evidence disclosing the accused came up and said to the prosecuting witness: “I will show you how to talk to white folks about me,” and then shot. It thus appears that the expression accompanying the shooting was on the same line as the impudent reply, though not, it is true, as closely linked in point of time with the offence charged as the reply. In view of the statements accompanying the bill, we can not appreciate the basis for setting aside the verdict, merely because of testimony, which, if not strictly admissible, was not calculated to exert any influence additional to the testimony already before the jury as the accompaniment of the shooting.

It is urged with great earnestness that the Sec. 792 of the Revised Statutes was repealed by the re-enactment in 1896 of that section, changing the punishment. Act No. 59 of 1896. The act amends and re-enacts the section, but increases the punishment. The repealing clause is qualified, i. e., “of all conflicting laws.” We gave this subject examination in previous cases with reference to indictments pending when the amending act is passed. In this ease the indictment was after the act of 1896, for the offence committed before. If the position of the defence is maintained the effect of the act of 1896 would be a discharge of all offenders not convicted for offences under the section, committed prior to the act of 1896. That intention must be attributed to the Legislature in any argument to support defendant’s contention. It may be that the legislative intention is sometimes defeated by the language the legislator employs. But, at least, when the construction leads to a result not readily attributable to the lawgiver,'the language should be of a character to compel the inevitable conclusion, mischievous and unreasonable as is the consequence. The defence relies upon the text-books announcing the general rule that the latter statute dealing without qualification with a subsisting offence; giving it so to speak a new existence; and as some of the text writers put it, changing the punishment, or repealing in toto the subsisting statute, will end all prosecutions for offences prior to the amending or reenacting law. We reached a different conclusion as to this act of 1896. It necessarily is of prospective operation. The interpretation that commended itself to our minds was that the qualified repeal in the act of 1896 left the Revised Statutes, Sec. 792, in full force as to offences prior to the act of 1896, an interpretation which has the aid of harmonizing with the intention reason must assign to the Legislature, and that intent must surely have its weight in the construction of the statute. With the fullest appreciation of the argument addressed to us on this point, we adhere to our views before expressed of the act of 1896. State vs. Jack Young, 49 An., p. 70. Our opinion on this point disposes of the grounds in arrest conceived to be supported by the act of 1896, and of the objection that the accused was entitled to the service of the jury list secured to the accused in prosecutions carrying the punishment of the act of 1896.

On the question of the refusal of the lower court to permit a juror to be asked if he would acquit, if in reasonable doubt the accused acted in self-defence, the judge of the lower court states the juror was first asked by the counsel for the accused,“if from the evidence you have a reasonable doubt of the prisoner’s guilt you will give him the benefit of the doubt?” which elicited the answer» “ yes.” This was followed by the other question, “ if from the evidence you have a reasonable doubt whether the prisoner acted in self-defence, will you give him the benefit of the doubt and acquit?”

At this point the court sustained the State’s objections, and the ruling is placed on the ground the witness had already qualified himself by answering a long list of questions, his answer to the first including the second, and that the question assumed facts that might never be proved. We can not see there was any error in sustaining the objection to the additional question sought to be put to the juror.

The objection to the conclusion of the indictment we think is answered by the natural references intended to the body of the indictment. The case of State vs. Thomas, 30 An , p. 301, we do not think any force to the objection in this respect.

We have given attention to all the exceptions presented in the various bills, and our conclusion is the sentence must be affirmed.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


text:
    No. 12,470.
    American National Bank vs. Henry A. Childs.
    Question presented is -whether a sheriff, holding a plantation under a seizure by attachment, can, without consent of plaintiff proceed with its cultivation at the expense and risk of the latter, and the planting venture proving a failure and loss ensuing, recover the amount of the loss from plaintiff as costs of suit to be taxed. Held, he can not.
    A sheriff’s tenure of property under the. writ of attachment, and its resulting duties and responsibilities, are differentiated by the law from his tenure of property under the writs of sequestration and fieri facias and his duties and responsibilities growing out of same.
    under the writ of attachment, his possession imposes no duty of administration, and he was under no legal obligation to cultivate the plantation attached.
    APPEAL from the Seventeenth Judicial District Oourt for the Parish of St. Mary. Allen, J.

      Howe, Speneer & Gocke and D. Gaffery & Son for Plaintiff, Defendant in Rule, Appellant.

      Farrar, Leake & Lemle for A. G. Freve, Sheriff in Rule, Plaintiff, Appellee.
    Argued and submitted May 12, 1897.
    Opinion handed down May 31, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Blanchard, J.

This case is before us on appeal from a judgment making absolute a rule by a sheriff to tax as oosts the sum of twelve thousand one hundred and twenty three dollars and eighteen cents, alleged to be the balance due him on account of his administration and cultivation of a sugar plantation in the year 1894.

The facts are these:

On February 8, 1894, the American National Bank instituted suit against Henry A. Ohilds for the sum of five thousand dollars, and, invoking the conservatory writ of attachment, caused the sheriff of St. Mary parish to seize thereunder the Susie ” plantation, belonging to defendant. When the seizure took place, operations for the planting and cultivation of the crop of 1894 had already begun. Some of the cane had been planted and the ground was prepared for the remainder. Several other attachment suits by other creditors of Childs quickly followed, under all of which the property was levied on.

The defendant failed to exercise the privilege of having the property attached released on bond, or was unable to do so.

The sheriff, deeming himself under obligation to continue the cultivation of the plantation, appears to have applied to the first attaching creditor, the American National Bank, for funds and advances to do so. The bank declined to make the advances and also refused to authorize the sheriff to cultivate the place for its account or at its expense.

Whereupon the sheriff applied to the court and obtained an ex parte order authorizing him to secure the necessary advances to cultivate the place, not exceeding one thousand dollars per month.

Two months later, finding that the one thousand dollars per month authorization was not sufficient, the sheriff applied to' the court for an increase of the same, and obtained a second ex parte order, authorizing him to secure advances not exceeding fifteen hundred dollars per month. He obtained these advances from a mercantile firm in New Orleans, and went ahead with the planting operations, retaining the services of the overseer employed by defendant at the time of the seizure.

In July following, the defendant, Childs, appeared in the case and ruled the attaching creditors to show cause why the sheriff should not be authorized to purchase a lot of new machinery alleged to be necessary to the plantation and to the taking off of the crop, including twenty-five sugar wagons.

The rule was tried and made absolute, limiting the sheriff's expenditure for the outfit to four thousand five hundred dollars.

Counsel for the American National Bank reserved a bill of exceptions to this ruling of the judge, properly treating it as an interlocutory order. 40 An. 121, 856.

The sheriff purchased the new machinery, apparatus, etc., at a cost of four thousand four hundred and fifty-three dollars and eighty-four cents, and caused the same to be put up on the plantation, thus placing the sugar house in thorough repair.

As the grinding season approached the sheriff realized the plantation would require ten thousand barrels of coal as fuel in the taking off the crop and manufacturing the cane into sugar and molasses. Accordingly, in October, he obtained another ex parte order authorizing him to purchase that quantity of coal at a cost not exceeding five thousand dollars. The coal was purchased at an expense of four thousand four hundred and seventy-seven dollars and forty cents.

The crop was taken off, prepared for market and sold, and' then the plantation account was cast up. It showed that, including advances, the purchase and repair of machinery, the purchase of coal and the sheriff’s commissions, the outlay had been thirty-one thousand three hundred and fifteen dollars and eighty-seven cents, and that the receipts, being the aggregate net amount realized from the sale of the sugar and molasses, were nineteen thousand one hundred and ninety-two dollars and sixty-nine cents, leaving a balance against the plantation of twelve thousand one hundred and twenty-three dollars and eighteen cents. In other words, the sheriff’s venture at sugar planting had resulted in a net loss of that sum. Whereupon, in July, 1895, the sheriff ruled the plaintiff and defendant to show cause why the said sum, being balance due him, should not be taxed as costs. On trial the rule, with some reductions in the account, was made absolute — the judgment of the court fixing the amount of the balance due the sheriff at ten thousand four hundred and thirty-eight, dollars and eighty-six cents, and taxing the same as costs of suit.

The defendant had not contested the claim at all. A vigorous defence was made by the plaintiff, and from the judgment rendered as aforesaid it prosecutes this appeal.

There was much delay in this litigation, and it was not until July 31, 1895, that the original suit was decided on its merits. There was judgment in favor of the bank for tlm amount of its claim and sustaining its attachment. From this judgment no appeal was taken.

It seems that about this time, or shortly after, creditors with conventional mortgages, priming the bank’s privilege as attaching creditor, brought suit, via exeeutiva, in foreclosure of their mortgages,, and under such foreclosure the plantation was sold.

It appears that neither the sheriff nor any one else required a. separate appraisement and sale of the machinery, cane, wagons, etc., purchased and put upon the place by the sheriff. All was sold under the mortgages as part of the mortgaged property.

No effort was made by the sheriff to realize his claim, or' any part. thereof, for balance due him on account of his administration and cultivation of the plantation out of the proceeds of its sale under the mortgages aforesaid.

He pursues only the American National Bank, and if this judgment on the rule to tax costs is sustained, the bank is the only loser. While the judgment is against the defendant as well as the bank, its practical effect will be to mulct the bank for the unpaid expenses of the cultivation of this plantation and the taking off of the crop.

To charge the attaching creditor for the expenses of this administration and cultivation, it must be shown either (1) that such administration and cultivation was had by authority of law, or (2) by mandate of the creditor.

So far as the latter is conoerned, it may be at once dismissed from consideration. The testimony in the record negatives the idea that the sheriff cultivated the plantation by the direction or with the consent or approval of the creditor.

Thus, the question is broadly and squarely presented whether or not a sheriff, bolding a plantation under seizure by writ of attachment can without the consent of the plaintiff in attachment proceed with its cultivation at the expense and risk of plaintiff, and the planting venture proving a failure and loss ensuing, recover the amount of such loss from the plaintiff as costs of suit.

The inquiry involves a consideration of the duties and responsibilities, under the law, of a sheriff in such cases — duties and responsibilities relative to the property of which he becomes custodian by seizure under the writ. t

It involves a consideration of the nature of the writ of attachment, and of the character of the sheriff’s tenure of property thereunder, and, in this connection, whether that tenure, and its resulting duties and responsibilities, are differentiated by law from the tenure, and the duties and responsibilities springing therefrom, by which he holds' property seized under the writs of sequestration, fieri facias and executory process.

What, then, are the duties of a sheriff, when acting under a writ of attachment, in reference to the property in his custody?

Articles 256 and 257 of the Code of Practice define them. The first directs him to seize and detain so much of the debtor’s property within the parish as may be equal in value to the amount claimed in the suit, and immediately after he must deliver to the court granting the attachment his return in writing, stating the manner in which he has executed the writ. The latter article amplifies the preceding one and tells the sheriff he must: (1) take charge and keep possession of the property he has seized; (2) make an inventory thereof; (3) return that inventory to the clerk of the court whose mandate he has executed.

By the terms of O. P. 259, the defendant may have the property attached released on bond, which right to bond is, in certain cases, •by the acts of 1876, extended to intervenors, and by the acts of 1880, extended to plaintiffs in injunction and third opponents. But nowhere is the right to bond the property attached extended to the plaintiff in case defendant fails to avail himself of this privilege.

The law has not considered he has any sufficient right or interest in and to the property to justify granting the privilege to him. The most the plaintiff can do, in case defendant does not bond, is to apply to the court for an order to sell the property if it be of a perishable nature and subject to be lost, or deteriorated. C. P. 261. By none of the articles in the Code of Practice, relating to attachment, is any duty imposed on the sheriff to administer the property coming into his custody under this writ. The law seems to have limited his duty to taking charge and keeping possession.

But when we come to examine the provisions of the Oode of Practice in reference to other writs, we find the duties and obligations of the sheriff more enlarged, and so, too, the rights of the seizing creditor. Under the writ of sequestration the same right is given, as in ease of attachment, to defendant and intervenor to bond, but if this right is not exercised within ten days, the plaintiff may have the property sequestered released to him on bond. The law considers he has such a right in and to the property (having a privilege on it, or claim of ownership or possession to it) as justifies the permission to bond. And this being a right vested in all parties, there is no permission that the property may be sold if of a perishable nature and subject to be lost or deteriorated. But, in lieu of it, we find (O. P. 283) that the sheriff, while he retains possession of sequestered property,-is bound to take care of the same and to administer it as a prudent father of a family administers his own affairs. So, under this writ, the sheriff is not only required to take the property into his possession and keep it (0. P. 269), to send his return to the clerk of the court which gave the order, showing how he has executed the writ, and to make an inventory of the property to be-annexed to his return (0. P. 282), but he is further required to administer the property and manage it as a prudent father of a family does. There is a striking difference in this over what he is required to do in case of the attachment of property — too striking to be accidental. It is a fact full of significance that the lawmaker should have carefully specified, as part of the sheriff’s duty when acting under the writ of sequestration, the obligation to administer, and omitted mention of such duty when acting under the writ of attachment.

The law regards the seizure of property under the writ of fieri facias in the nature of judicial sequestration, and, consequently, the sheriff comes under the obligation to administer the same. C. P. 273, 657, 658, 660; 6 R. 100.

He is given the authority directly to cultivate a plantation which, he may have seized, under the writ. 0. P. 661.

And so, too, where a plantation is seized under an order of seizure- and sale, this being a final process in the collection of a debt secured-by mortgage, and being assimilated to a seizure under the writ of fieri facias the sheriff’s possession is in the nature of judicial sequestration, carrying with it the obligation of administration. 41 An. 1166.

'This court has frequently held that where a sheriff’s possession of a plantation is of the character of judicial sequestration springing from its seizure under the writ of sequestration, or that of fieri facias or executory process, the obligation is upon him to administer, manage and to cultivate it, if this be necessary to the preservation of the property and its maintenance in good condition, and if he can obtain the funds or advances to do so. Learned vs. Walton, 42 An. 455; Lambeth vs. Joffrion, 41 An. 749; Lockhart vs. Morey, 41 An. 1165; Galliher vs. Davidson, 43 An. 455; Veak vs. Judge, 36 An. 912.

But regarding the sheriff’s possession of property, where he seizes under the writ of attachment, as that of bailee or depositary merely (Stockton vs. Hyde, 5 An. 302), it is different, and the law does not declare that the duty to administer is part of his legal obligation. His possession of property under such seizure is for the benefit of whom it may concern (5 An. 300). And if he cultivates a plantation under seizure by attachment without the authorization of the attaching creditor, he can not hold the latter responsible for the expenses thereof, for the relations which exist between the sheriff and the attaching creditor are created by express law.

The sheriff’s duty toward property is measured by the law relating to and governing the writ under which he is acting, and it can not be extended by usage or custom, nor by analogy.

Thus, in the case of Owen vs. Davis, 15 An. 22, it was held that in order for the sheriff to retain a sum from the proceeds of property in his custody under attachment in reimbursement of the premium paid by him for insurance, it must be shown (1) that it was his duty under the law to insure the property, or (2) that he had been authorized by the party sought to be charged to effect the insurance. We quote the'pertinent language of that case: “ As the sheriff was not authorized as the legal agent of the seizing creditor, nor vested with authority to effect insurance on the steamer, his claim for return of premium paid can not be allowed as costs of suit. The relations which exist between the sheriff and seizing creditors are created by express law and not by custom and usage. The sheriff may be authorized to act as the agent o'f the creditor in effecting insurance on the property seized, but then he acts as mandatary and not in his official capacity.”

In Wheelwright vs. Canal Co., 48 An. 606, it was declared that “the expenditures of a sheriff, which are taxable as costs of suit, are •those incurred by him in the performance of obligations cast upon him by the law itself.” And on page 616, same case, this court said: “If, in point of law, the amounts were not chargeable as costs, we do not think the court’s ex-parte order could make them so.”

On behalf of the sheriff — plaintiff in rule — it is urged that a sheriff acts under the writ of attachment as a judicial depositary, and C. C. 2979 and 2980 are cited in support thereof. The first defines what a judicial deposit is, and the latter points out the reciprocal obligations of the judicial guardian and the seizing creditor. These articles of the Oivil Code must be construed in connection with Art. 270 of the Code of Practice, which declares that judicial deposit does not admit the right of administration, and in connection with Arts. 256, 257 and 261, prescribing the sheriff’s duties and powers over the property attached. So construing them, we are of the opinion that the sheriff’s possession of property under the writ of attachment is not of the character of judicial deposit that carries with it the administration of the property, such as that contended for on behalf of the sheriff herein.

The difference which undeniably exists in the textual provisions of the Code, regarding the duties and obligations of a sheriff springing from the seizure of property under the writs of sequestration and fieri facias, and his duties resulting from seizure under the writ of attachment, finds, perhaps, a rational foundation and explanation in the nature of the writs themselves and the purpose they are intended to effectuate.

The writ of sequestration is based upon and operates to preserve, protect and enforce an antecedent privilege, or claim of ownership or possession, resting on the property seized; the writ of seizure and sale is the final process to enforce payment of a claim by the sale of property antecedently mortgaged to secure the debt, and operates only on the property hypothecated; and the writ of Ji. fa. is the process to enforce collection of a claim that has gone to judgment which has become final and executory. Whereas the writ of attachment, based on no privilege, no claim of ownership or possession, no mortgage, no final judgment, is merely a right given a creditor, under certain circumstances, to hold his debtor’s property in statu quo until his claim can be ripened into judgment. The interest of the attaching creditor, in and to the property seized, is more remote than is the interest of creditors whose claims warrant the seizure of property under the other writs mentioned. Therefore his concern in the administration, amelioration, or even preservation of the property attached, is not so great as is that of those creditors who, seizing under the other writs, have a greater interest in the property sought to be subjected to their demands.

But whether the reasons existing for this difference in the duties and obligations of a sheriff under the respective writs are or are not sound, or sufficient, or satisfactory, is a question with which the Legislature and not the judge must deal. Lex seripta is the only rule that can guide the court.

The judgment appealed from taxes as costs of suit the losses of the sheriff in cultivating the plantation under attachment. In 48 An. 618 this court said: “ We are of the opinion the sheriff was not called upon in the discharge of his official duty to close the canal (under attachment), and, therefore, his right to reimbursement, if allowed, must rest upon some other basis than that of costs.”

In the instant ease we hold there was no legal obligation upon the sheriff to administer or cultivate the plantation which passed into his-custody under the writ of attachment. He could do so only as agent of both, or either of the parties to the suit. He could nob do so at the attaching creditor’s expense or risk, except with his consent.

To hold otherwise would be to add a new element of risk which a creditor must encounter when he invokes the writ of attachment in conservation of his rights. This new element of risk would impair, and in some cases, perhaps, destroy the usefulness of the writ. The-cautious creditor, with good grounds for attachment, would hesitate to resort to it, if he is to be held personally responsible for the expenses of the sheriff’s administration of the property attached, in which administration he has no part, and which is undertaken without his consent and, perhaps, over his protest.

Before the writ issues the creditor is required to execute his bond with security to indemnify the defendant in damages should it be wrongfully issued. If, in addition to this, he is to be held accountable for the losses' resulting from the sheriff’s bad management of the plantation (supposing the property attached to be such) undertaken against his will, at least without his authorization, he would likely prefer to sit still and lose the amount due him than to face the new dangers ahead.

***■*“ Bather bear those ills we have Than fly to others that we know not of.”

Such a creditor would, indeed, find himself in a sorry plight. If he remains quiescent, his debtor will defraud him; if he asserts his-legal right of attachment, the sheriff may ruin him.

It is therefore ordered, adjudged and decreed that the judgment appealed from, so far as the same affects the American National Bank, be annulled, avoided and reversed, and that the demand of the plaintiff in rule against the said bank be rejected at his costs in both courts.