author: Watkins, J.

text:
    No. 9815.
    Baldey & Lightner vs. E. A. and E. F. Brackenridge.
    The plea of no cause of action must be judged by tlie averments of plaintiff's petition.
    When a rule, taken upon the adverse party to show cause why certain depositions should not be read, has been made absolute, as shown by the minutes of the court, it is too late to urge objection to the service of the rule after the trial has begun and the evidence has been offered. Buie should have been taken to have the minutes corrected so as to , conform to the facts.
    Parties, though not partners inter se, may be such as to third persons.
    When persons occupying relations to others as partners, have obtained undue advantages of the latter, by means of false representations and unlawful acts, they are answerable in solido for whatever loss has been incurred thereby, irrespective of their obligations as partners.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Ohas. S. Bice for Plaintiffs and Appellees.

      Gibson & Sail for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs allege that their business consists in searching for, inspecting, obtaining information about and locating for purchasers, government lands, with a view to its uses for timber, agriculture and stock-raising.

That for furnishing the information, thus obtained, to purchasers, and in'assisting them to procure titles, they received a price or consideration per acre.

They represent that, during the years 1883 and 1884, they had a contract with defendants — a firm or partnership, engaged in a similar business — whereby it was agreed that each firm “ should share equally in the payment of the expenses in the search for, inspection of, obtaining information about and locating certain lands situated in Washington parish, in this State; and such other expenses as should he incurred in finding purchasers,” and in securing them titles to their lands.

That it was further stipulated in said contract that the price, consideration or commissions paid by each purchaser for the services, information and assistance received, should be equally divided between the contracting parties.

The plaintiffs claim that, under this contract, large tracts of timber lands were located, inspected, and the necessary information in respect thereto furnished, and purchasers secured and titles obtained for them.

That amongst others, Byron D. Hamlin purchased on February 8, 1884, 26,909.66 acres.

Henry Hamlin purchased on April 1, 1884, 9165.08 acres, and on the 15th of April, 1884, 5576.74 acres.

They charge that defendants received from said purchasers the price or consideration of 271- cents per acre, aggregating $11,454 16, as compensation for services and information aforesaid, less $2082 57; but falsely represented to them — the plaintiff’s herein — that they had only received from the said purchasers, as compensation, the sum of $7082 59, and out of which they paid to them $2500 01, and which they received and receipted for, acting under the belief that defendants’ representations were true.

They now represent that same were false representations. They have been cheated and defrauded out of the sum of $2185 78 by defendants; they pray judgment for that sum, and interest, against the defendants as a firm and against the individual members thereof in solido.

The defendant, E. A. Brackenridge, tendered in limine the following-exceptions, viz:

1st. “ The petition discloses no cause of action.

2d. That petition is vague and indefinite, as it does not set forth the terms of the alleged contract in so far as the sendees each party thereto was to perform,” etc.

The exceptions were overruled, and E. A. Brackenridge filed an answer, in which he pleads the general issue, and denies that he is bound as a partner in solido with E. F. Brackenridge, and also denies that he was a partner of his.

He disclaims the contract set up by plaintiffs, but admits that all the lands alleged to have been sold were sold to the parties alleged, but the trades and sales were “ entirely negotiated, arranged and effected by JS. JF. Brackenridge, and that plaintiffs did not pay, and have not paid, one-half the expenses incurred, and rendered no services in connection with said land business up to the time of effecting its sale.”

He then alleges that a “full and fair settlement of said land business, in which plaintiffs and defendants had any material interest, was made after careful explanation and full information given to plaintiffs; and that the land could not and would not have been sold to said parties f plaintiffs had not agreed to take the sum of money that they received; and that plaintiffs were informed that such sales could not and would not be effected unless they would accept the sums that they receipted for, and which they agreed to, after full information and the true statement of fact to them.”

I.

In this Court defendants’ counsel presses upon our attention his exception of no cause of action.

He argues that this is a suit by one partnership against another — the two forming a tiiird — for the division or result of a single partnership transaction; and that it cannot be maintained, for the reason that the only right of action one paitner has against another is for a full and final settlement of the affairs of the partnership, inter sese.

The cause of action must be ascertained from an inspection of the the plaintiffs’ petition alone.

The quotations we have made from it clearly show that this is a suit for the revocation of an alleged fraudulent settlement, and for the recovery from the defendants of a difference due plaintiffs in pursuance of a commutative contract.

The exception was properly overruled.

II.

During the progress of the trial defendants’ counsel objected and excepted to the reading in evidence of certain depositions of E. H. Darrali, B. D. Hamlin and Henry Hamlin, on the grounds that same had not been properly authenticated and filed.

The minutes of the court show that a rule to show cause had been seasonably taken by plaintiffs, and that same had been made absolute some months preceding the trial. If, as answered by the defendants’ counsel, that rule had not been regularly served upon his client, it was his plain duty to have had the minutes corrected before the trial had begun. His silence amounted to a tacit admission of their correctness.

III.

The record furnishes the following information with regard to the partnership existing between the defendants:

1. They occupied an office with this sign over the door, viz: “ E. A. & E. F. Brackenridge, dealers in pine and cypress lands.”

2. They had blotting-paper, cards and envelopes in use, on which a similar announcement appeared.

3. They advertised themselves as partners in a newspaper called the ‘'Northwestern Lumberman.”

4. One of the plaintiffs testified that in all of his dealings with the defendants they spoke of themselves as partners.

5. Other witnesses who dealt with them testified that their transactions were with E. A. & E. F. Brackenridge, and not with the individuals.

6. They testify that in tlie course of their land transactions E. A. & E. F. Brackenridge gave them written guarantees, protecting them against loss, etc.

7. Charles Brackenridge, the son of E. A, and brother of E. F., swears, as a witness on part of defendant, thus:

Question. “Who was interested in the sale of that land outside of the government ? ”

Answer. “E. A. & E. F. Brackenridge.”

Notwithstanding these indicia of the existence of a partnership between them, both defendants swear there was none.

In point of fact, there may have been no partnership, but that cannot affect the rights and claims of plaintiffs, who dealt with de fendants as partners, and upon the faith of their own acts and representations to that effect.

“Parties, though not partners inter se, may be such as to third persons.” 4 R. 300.

“ If one suffers his name to be used as an ostensible partner, although he be no partner, he becomes liable for partnership debts.” 18 Ann. 631.

We think the liability of the defendants, as partners, clearly made out, and that there can be no allowance made in favor of E. F. Brackenridge for services, it is claimed he rendered, in the negotiation of the sales to the purchasers named.

IV.

The defendant’s answer expressly admits that all the lands alleged to have been sold, were sold to the parties named ; ” and it does not deny that they received as commissions 27i per cent per acre on all lands sold, aggregating the sum of $11,454 16.

But this fact is impliedly admitted. He claims that he made a full and fair settlement of the land business, after careful explanation and full information had been given to plaintiffs; and that the land could not and would not have been sold, if plaintiffs had not agreed to accept the sum they did receive.

The controversy is thus narrowed to the truth or falsity of the statement made with plaintiffs.

The defendant claims that plaintiffs bound themselves to pay, among other things, such expenses as might be incurred in procuring purchasers; and alleges that E. F. Brackenridge and Charles Brackenridge rendered such services, and were entitled to the compensation paid them therefor.

Now, it is admitted in plaintiffs’ petition,that E. H. Darrali was paid five cents per acre, for such services, a sum aggregating $2500, and tliey urge no complaint against it. They admit that Charles Brackenridge was entitled to the compensation of $6 per day, for his services in hunting up and locating lauds, and making estimates of them. But they dispute the payments claimed to have been made to Charles and E. E. Brackenridge for other services.

Our study of the record has led us to doubt that any such payment was ever made; hut, if it was made, to believe that it was not a serious, real discharge of a recognized and valid debt, actually due; but only intended to defraud and deceive the plaintiffs.

Under this view of the evidence, plaintiffs are entitled to the additional amount they claim as their legitimate share of the profits of the joint adventure.

Y.

The defendants were, quoad their contract with plaintiffs, partners; hut we are inclined to the opinion that it was an ordinary one, though possessing some of the features of a commercial partnership. But their relations, as partners, in respect to the plaintiffs, exorcise contiol only over the relative rights of the parties as to the shares they were entitled to receive of the profits, and the portion of the expenses each was hound to pay.

But their obligation as partners is not the limit of defendants’ liability in this case.

The proof has convinced us that defendants induced the plaintiffs, by false representations as to the price, and consideration paid by purchasers as commissions, to accept a smaller sum than was actually and really due, by $2,685.18; and on the plea of having made large expenditures, which had not in fact been made.

The district judge regarded the acts of defendants as unlawful; and that as both of them were shown to have participated in their commission, they were answerable in solido to the plaintiffs for the damages they had sustained thereby. R. C. C. 2324.

In this view his judgment was correct, and it is therefore affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J. Bermudez, C. J. Watkins, J.

license: Public Domain

text:
    No. 9874.
    The State of Louisiana ex rel. The Board of Administrators of the Charity Hospital vs. F. A. Monroe, Judge of the Civil District Court for the Parish of Orleans.
    Mandamus will not lie to compel a judge of the Civil District Court to rehear a causo which, in the exercise of undisputed jurisdiction, he lias heard, and in which he has rendered a final judgment disposing of the whole merits of the cause, and forming res adjiulieata between the parties, on allegations of the insufliciency and illegality of the reasons on which such judgment was based.
    REPLICATION for Mandamus.

      J. Ji. BeeJcwith, for the Eelator.
   The opinion of the Court was delivered by

Fenner, J.

The Board of Administrators of the Charity Hospital brought a suit against the vessel “LucyP. Miller,” her captain and owners, in the First City Court of New Orleans, to recover the sum of $100 claimed under the provisions of Section 2705 of the Eevised Statutes, viz: “If any vessel, inward or outward, bound to tlie port of New Orleans, shall employ as a pilot a person who is not a duly licensed branch pilot, when a duly licensed branch pilot offers, the said vessel, her captain and owners, shall forfeit the sum of $100, with privilege on said vessel, to he recovered before any court of competent jurisdiction, in the name of the Charity Hospital of New Orleans, for the benefit of the Hospital.”

Judgment was rendered in favor of the hospital, and an appeal was taken to the district court a,nd was allotted to Division C, presided over by the respondent judge.

After due hearing, the following decree was rendered by the latter court: “For the reasons assigned in the written opinion this day delivered and filed, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is further ordered that the writ of sequestration herein issued he quashed and that the plaintiff’s demand be rejected, with costs in both courts.”

This judgment, after refusal of a new trial, became final.

Thereafter, the relator presented this application for mandamus, in which lie avers that the respondent judge, in violation of law, declined to hear and determine the said cause on its merits, but rendered judgment on the ground that neither the First City Court nor the Civil District Court had power to entertain said action, because said courts are of civil jurisdiction only, and that said'suit could only be heard and determined in a court having criminal jurisdiction ; and they pray for a mandamus, ordering the respondent judge to proceed and decide said cause on its merits. The return of the judge sets forth substantially that, in the exercise of undisputed appellate jurisdiction, he has heard and decided the cause referred to on its merits ; that his judgment lias become final, and is the property of the party in whose favor it was rendered; that the said cause is no longer pending in his court; and that to command him to proceed with further trial thereof, will be to ignore and virtually annul the final judgment therein rendered, without affording the parties in interest an opportunity to be heard; and to command respondent to proceed with the trial of a cause which he was competent to decide, and has long since decided, and which is not now pending in his court.

It is impossible to evade or overcome the conclusive force of this return.

The jurisdiction of respondent to hear and determine the appeal is not disputed, but is affirmed by relators.

In the exercise of that jurisdiction, he had full authority to affirm, amend or reverse the judgment appealed from and to render such judgment as should, in his opinion, have been rendered by the inferior court.

He has fully exercised that jurisdiction, and has rendered a.final judgment, disposing of the whole case and forming res judicata between the parties, which has become the property of the defendants in that cause, which is not absolutely null, and which cannot be set aside without notice to them.

The authority of such a judgment is not affected by the merit or demerit of the reasons which prompted the judge.

Referring, however, to the written reasons of the judge, we find therein no such declension of jurisdiction as is averred by relator.

We find that the defendant had filed an answer setting up various special defenses to the action, amongst which are the two following:

1st. That the sections (R. S.) relied on to inflict a penalty which can be recovered only in a proceeding by and in the name of the State;

2d. That plaintiffs, though claiming for themselves, have no interest in the full amount herein claimed, even if entitled thereto, which is denied.

These are the defenses which the respondent, in his reasons, sustains. It is obvious that they are not, necessarily, jurisdictional in their character, but are defenses to pldintiffs’ right of action.

If there was error in sustaining them, the writ of mandamus affords no remedy therefor in the situation of this case.

We might as well be called on to compel a court to rehear and determine a cause anew, because the first judgment was based on an erroneous determination on a plea of prescription or want of proper parties, or any like plea. State ex rel. Berthoud vs. Judges, 36 Ann. 982; State ex rel. Cupples vs. Judges, Id. 1016; State ex rel. Insurance Company vs. Judges, 36 Ann. 316.

When any court shall render a judgment declining jurisdiction of a suit like this, under Art. 2705 of the Revised Statutes, on the ground that such jurisdiction vests in criminal courts alone, we might revise such ruling under our supervisory jurisdiction; hut we cannot correct a final judgment on the merits of the cause on allegations of error in the reasons therefor.

Mandamus refused.

Dissenting Opinion.

Bermudez, C. J.

The complaint is that the district judge reversed the judgment of the city court and rejected the plaintiffs’ demand; and that, in justification of his action, the judge ruled that as the city court had no jurisdiction, his own court sitting on appeal has none; and that if this ground is insufficient, then that the action was improperly brought by the trustees as beneficiaries and should have been instituted by the State herself.

To obtain relief the relators have prayed for a certiorari, that the validity of the proceedings below be ascertained, and for a mandamus to compel the district judge to determine the case in a different form or pass upon the merits.

I.

The judgment is irregular on its face. If it be true that the city court had no jurisdiction and that the suit was improperly brought by the trustees, the judgment ought not to have rejected the demand, for that is a judgment in favor of the defendant. It ought to have been one of dismissal only.

II.

It is clear that the city court had jurisdiction, for the claim was for a sum of money not exceeding one hundred dollars, which, if due, could not have been recovered by direct suit before any civil court, still less before a criminal court, which has no civil jurisdiction. If the city court had jurisdiction, the district court ought to have determined the case in a different form, or on the merits. Refusal to do so, however conscientiously announced, is a proper cause for a mandamus.

The judgment of the district court ought to be annulled and that court directed to rehear and to determine the cause in another form or on its merits.

Dissenting Opinion.

Watkins, J.

Relarors are plaintiffs in the suit entitled Board of Administrators of the Charity Hospital vs. Henry Galt, master and owner of Steamship Lucy P. Miller, instituted in the First City Court of New Orleans, under the provisions of R. S. Sec. 2705, for the recovery of the fine of $100, specified therein, against defendants; and the enforcement of this privilege on the vessel. Said master was regularly cited, and the vessel sequestered. Dilatory and declinatory exceptions were filed and overruled.

In answer, defendant urges the implied repeal of R. S. 2705 by Act 63 of 1877; and that, if unrepealed, the same is unconstitutional. Further, that the provisions of that law are in restraint of commerce and trade, and, therefore, in violation of the Constitution of the United States. That “ section of the Revised Statutes, under which the plaintiffs claim, inflicts a penalty on respondent, in an ex parte proceeding, and that the proceeding to mulct respondent, could only be mst/ituted hy the State of Louisiana, or m her name and behalf.

Finally, he denies that plaintiffs have any right “to the full amount herein claimed;” and disavow any indebtedness. Judgment was contradictorily rendered in favor of plaintiffs for amount claimed, with recognition of privilege on vessel. Citation of appeal was served on September 10, 1885.

The cause was submitted, in the court of the respondent, on December 21, 1885.

In the record there is an agreement of counsel, in which are admitted the following facts, viz :

1st. That a duly licensed branch pilot did offer his services to the master..

2d. That said offer was declined.

3d. That said demand was made ou pilotage grounds, at time stated.

4th. That the master availed himself of the services of another person, who was not a licensed branch pilot, for carrying his vessel out to sea.”

Those are all the matters of fact essential to a recovery under the statute, quoted in opinion. Upon those pleadings and facts the case was examined; and this respondent’s decree recites that “for reasons assigned in the written opinion of the court, on this day delivered and filed,” the judgment appealed from is annulled and reversed, etc.

From an examination of the ivritten opinion, referred to in the judgment of respondent’s court, and made part of his return, it appears that he simply decided that, in his opinion, the “ ground of defense ” to the effect that “ the provisions of the law relied on by plaintiffs, inflict a penalty in the nature of a fine, which is not recoverable in this form of proceeding,” is well taken.

What are the reasons assigned in the respondent’s written opinion, above referred to, and made part of his return f He says: “If these propositions were correct in the case cited — and I imagine they will not be disputed — a fortiori, are they correct in the case at bar, since here the. penalty is imposed by law, for a violation of law, and the liability therefor can be. ascertained and fixed only through the medium of a prosecution by the State, and. not at the suit, in a civil court, of the third person named, as the beneficiary of the fine. * * * * * * “ The law is essentially penal in its character, and, if tli penalty of the forfeit can be enforced in this court, at the suit of the plaintiffs, there could be no reason why the penalty of imprisonment might not be enforced in the same way, if the statute had contained that word.

“ For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be reversed, and plaintiff’s demands rejected, with costs of both courts.”

What is the complaint made by relator’s of respondent’s proceed-* iugs?

That he refused to take cognizance of the merits of said causo, and held and decided that the statute invoked imposed apenalty, and that liability therefor could “ be ascertained and fixed only through the medium of -n prosecution by the State,” and could not be recovered in a civil court.”

They claim that, in so deciding, respondent was guilty of a denial of justice, because the civil courts have jurisdiction of such suits; and he should have proceeded to try and decide the cause on its merits.

The statute provides that, under the circumstances recited “the said vessel, hei captain and owners, shall forfeit the sum of $100, with privilege on the vessel, to be recovered before any court of competent jitirisdiction, in the name of the Oharity Hospital of New Orleans, for the benefit of the hospital.”

It is too obvious to require the aid of argument that courts of civil jurisdiction only could enforce the privilege on the vessel; and same could only be enforced by suit.

Here we have under consideration no penalty, in the sense of respondent’s opinion.

The words of the statute are: “ The vessel, her captain and owners, shall/br/éif the sum of $100, with privilege on the vessel,” etc. It is recoverable “in the name of tlie Clmritv Hospital of New Orleans, for the benefit of the hospital.”

That is a State institution, which is fostered by it and furnished with aliment. It is a charity hospital in fact, as in name. The Legislature had the right to give this particular destination to the funds when recovered, as it had the undeniable right to create liability for them. It had equally a right to confer upon relators the power to sue for their recovery, as it did to secure their enforcement by privilege on the vessel.

T do not think there is any reasonable doubt of relators’ right to relief by maudamus. As I have shown, the respondent’s court was vested with undoubted jurisdiction to try and decide the merits of the controversy on appeal; and the first City Court had undoubted jurisdiction in the first instance.

Having jurisdiction of the cause, it was the plain constitutional duty of respondent to exercise it and decide it on its merits. There was no contention as to the facts. They were admitted. Resi>ondent’s failure to try and decide said cause on its merits, under the circumstances detailed, was, in my opinion, practically a denial of justice, for which there could be no other adequate remedy than mandamus.

“The writ of mandamus is expressly authorized for the purpose of directing a court of inferior jurisdiction to perform some certain act belonging to the place or quality with which it is clothed, which is the precise relief sought here.” C. P. 829; 32 Ann. 774, State ex rel. Cobb & Gunby vs. Judges; 33 Ann. 358, State ex rel. Harper vs. Judges.

In State ex rel. Dupereir vs. Judge, 35 Ann. 736, this Court say: “A mandamus lies to compel the trial of a cause, when the judge has illegally refused to go into the merits of the action, upon the erroneous construction. of some question of practice preliminary to whole case.” High’s Ex. Legal Rein., secs. 150, 151.

Mandamus “maybe directed more particularly to judges of inferior courts, commanding to render justice,” etc. C. P. 837.

It matters not that respondent was only exercising appellate jurisdiction; it was the same jurisdiction that had been exercised by the court of first instance in a different way.

The respondent failed to decide, on its merits, a cause of which he had undoubted jurisdiction.

The effect of respondents decree was to oust the jurisdiction of the first City Court, and leave the relators without remedy. That was a denial of justice, which should be remedied by mandamus.


text:
    No. 9998.
    The State of Louisiana vs. Eloi Deluc Broussard.
    Proof of tlie disparity "between rite size and strength of the prosecutor and the accused, is inadmissible unless there has been a prima facie case of self defense laid by the defendant, or it has been preceded by proof that the accused was the attacking party.
    The statement made by the trial judge in the bill of exceptions, must be our guide in determining a dispute as to what was the purport of an oral charge delivered by him, and of which the accused complains.
    A motion for a new trial on the sole ground that the verdict is contrary to the law and evidence, will not receive any consideration at our hands.
    PPEAL from the DeBaillon, J, Twenty-fifth District Court, Parish of Term ilion.
    If. J. Cunningham, Attorney General, and M. C. Smedes, District Attorney, for the State, Appellee.

      J. A. Chargois and O. C. c6 J. Mouton for Defendant and Appellant.
   I.

The opinion of the Court was delivered by

Watkins, J.

The defendant, Eloi Broussard, was tried and found guilty of inflicting a wound less than mayhem, with intent to kill, upon the person of one Columbus Broussard, and sentenced to two years imprisonment in the State penitentiary. From this verdict and judgment he has appealed. The matter complained of by him are set forth in several bills of exceptions to the refusal of the judge to allow certain testimony of the witnesses to go to the jury; and one bill of exceptions to the charge given by the judge to the jury. The testimony sought to bo introduced was listened to by the judge a guo out of the presence and hearing of the jury. This testimony was offered to prove: first, that Columbus Broussard was a man of more strength than Eloi Broussard, the accused, in order to justify the wounding; secondly, to prove that Columbus Broussard, the party wounded, inflicted a wound with a brick-bat upon the accused, after he, Columbus Broussard, had been wounded by Eloi Broussard; and that, after inflicting the blow upon Eloi Broussard, he, Columbus Broussard, went into his house to get his gun.

To determine whether or not the judge a guo ruled correctly in refusing to allow evidence, showing that in this case the party wounded by the accused was a man of more strength than the accused, or a man of vicious character to go to the jury, we must first find out under what circumstances the law permits such evidence to go to juries.

The decisions are clear that a party, in order to introduce evidence as to the character or disparity m size and strength, must lay a proper foundation, and show that at the time lie, the accused inflict’ed the wound as charged, ho was attacked by the wounded party.

On this question Wharton says: “In England we have no authority direct to this particular po’ut. Intimations, however, from eminent judges would lead us to believe that evidence would not be refused when there is a prima facie case of self-defense laid by tlie defendant.” Whar. on Hom., p. 503, sec. 607.

The same learned author says: “The general principle then is this : not that it is lawful cooly to attack and kill a person of ferocious and blood-thiisty character, for it is as much murder in such manner to kill the most desperate of men as to kill the most inoffensive; but that, whenever it is shown that a person honestly believed himself attached, it is admissible for him to put in evidence whatever could show the bona fide of his belief. Whar. Crim. Ev., sec. 69.

These principles have been crystaiized into our jurisprudence. 30 Ann. 679, State vs. Burns; 32 Ann. 1177, State vs. Vance; 33 Ann. 1087, State vs. Jackson,; 35 Ann. 71, State vs. Claude; 36 Ann. 148, State vs. Watson. 37 Ann. 644, State vs. Janvier; 38 Ann. 20, State vs. Spell.

The trial judge furnishes a statement of the facts proved on this point, viz:

“Columbus Broussard, seeing that the accused had been drinking, replied : ‘ Deluc, you had better get in your buggy and go home, and leave me in peace.’ Nmua Menux then again requested the accused to come on with him. Accused stepped back as if lie would leave the place, but immediately returned and shoved Columbus Broussard against the yard gate, nearly throwing (him) down to the ground — the yard gate arresting his fall. As soon as he (Columbus Broussard) recovered himself, ho faced (the) accused. Both then advanced simultaneously on each other with uplifted hands, Columbus Broussard striking at (the) accused on bis left shoulder with his naked fist, while (the) accused plunged a knife into Oolinnbus Broussard's side."

Further: “I ruled out evidence going to show that after lie had been stabbed, Columbus Broussard had run off, stopped, stooped, picked up a brick, and struck accused with it, and then went into bis house and got his gun.”

His ruling was in exact conformity with the authorities wehnveeiled.

All of this evidence was irrelevant, as it definitely related to transactions occurring after the conflict was over. Such evidence could only apply to a charge preferred against Columbus Broussard.

II.

Another bill was reserved to that part of the judge’s charge, which was delivered to the jury orally. He delivered a charge to the jury in writing, and which is included in the transcript; and in addition he gave them the additional oral charge, viz: ,

“ Gentlemen, your verdict must be unanimous. You must all agree upon it. That verdict may be one of £ Guilty ’ or££ Not Guilty.” You cannot separate. You must remain together in charge of the sheriff.’ You may appoint one of your number to act as your foreman, and who will deliver your verdict, should you agree to one. If you agree, or, if you desire further instructions, you will inform the court, through the sheriff.”

The judge further states, officially, in the bill, that this is the only part of the charge which was given orally. If I committed an error in this case, I want it righted; but I emphatically ancl distinctly disclaim that I delivered the charge which counsel say I did.”

The counsel for the accused incorporated into his bill what he claims was the substance of the oral charge he complains of as trenching on the facts proved on the trial.

We must take, as our guide, the statement of the judge, made over his official signature, affixed to the very bill of exceptions on which defendant relies for the reversal of his ruling.

The record is our safest and only guide. It was the plain duty of counsel to have promptly interposed his objections to the charge when it was given, and at that time caused the bill to be signed.

We cannot consider the charge counsel has appended in his bill in direct opposition to the judge’s certificate of its incorrectness. 45 Ann. 770; State vs. Riculfe & McClung.

III.

A motion for a new trial on the sole ground that the verdict is contrary to law and evidence is not entitled to notice in this court. 38 Ann. 301, State vs. Joseph Smith.

We think the accused is without just ground of complaint.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9999.
    The State of Louisiana vs. Joseph Primeaux.
    This Court has frequently signalized its indisposition to interfere with the large discretion necessarily confided to trial judges in matters of continuances, except in cases t manifestly arbitrary and unjust.
    A continuance is properly refused, when the accused fails to comply with the rule of court requiring the address and locality where witnesses can he found and se ved, and other wise fails to use due diligence; also where the facts intended to be proved by the absent witness, can be and testified to by a witness present, or even the defendant, availing himself of the provisions of Act 29 of 1886, and the testimony would be cumulative only.
    A trial judge is justified in refusing to read to the jury the text of a law which has no bearing on tne prosecution and can therefore find no application.
    Doing so would be uselessly charging abstract propositions of law.
    A charge is not improper or illegal; that it was unnecessary that, a person named in the information, as the owner of the property stolen, should he brought to court to testify as to that fact, where the ownership is established to the satisfaction of the jury by other proof aud that, if such ownerseip is not thus proved, the jury should acquit the accused. Q
    Such charge is rather favorable, than injurious, to the accused.
    APPEAL from the Twenty-fifth District Court, Parish of Vermilion. BeBailUon, J.

      M. J. Ounningham, Attorney General, and B. O. Smedes, District Attorney, for the State, Appellee.

      J. A. Ghargois and O'Brian & White for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from the verdict and sentence on a charge of larceny.

The record contains three bills of exceptions :

I.

The first bill is to the refusal of the district judge to two motions for a continuance, based on tbe ground of tbe absence of two material witnesses.

The motions were denied because the accused had not used duo diligence to secure the attendance of the absent witnesses, and that their testimony would have been cumulative only.

The want of due diligence consists in not having given seasonably, as is required by tbe rule of court, the address or locality at which the witnesses could have been found or served.

On this point, and on other grounds, the district judge has assigned, in support of his refusal, elaborate reasons, in which he shows that the directions were not given, and that had the defendant acted as ho ought to have done, he could have secured those witnesses. We deem it unnecessary to reiterate those reasons, which appear sufficient to justify the refusal.

Besides, the testimony proposed to be elicited from these witnesses would have been cumulative only.

Tlie defendant, under the provisions of Act No. 29 of 1886, thought proper to testify on his trial.

What he expected to prove by the absent witnesses, says the judge, he himself then testified to.

The jury would no more have believed those witnesses, who were relatives of defendant, than they gave credence to his own statements.

On the subject of refusal of continuances, on the ground of absence of witnesses, this Court has frequently held that it would not interfere with the large discretion necessarily confided to trial judges, unless in cases manifestly arbitrary and unjust. V., 37 Ann. 775, and authorities there cited.

The complaint shows neither of these features, in the 'present instance.

II.

The second bill is to the refusal of the district judge to road to the jury Sec. 832 of the Revised Statutes.

This section defines the crime and punishment of “receiving stolen goods, lenowing them to have been stolen.”

The accused was not prosecuted under this section, which was therefore entirely foreign to the issue and was not properly asked to be brought to the notice of the jury.

A court cannot be called on to charge on propositions of law which have no reference to the prosecution in progress before it, and which under the evidence adduced can find no application. 34 Ann. 1084; 38 Ann. 41.

Had the jury, under the charge of larceny made in this case, found a verdict of “receiving goods," etc., such verdict would not have been responsive to the charge. State vs. Moultrie, 33 Ann. 1846.

III.

The last bill is to the charge of the district judge, who is represented as having told the jury that it was not necessary that a named person should have been brought into court to testify.

The bill does not justify this complaint, for it does not appear that the judge thus charged the jury absolutely.

The judge charged substantially, that if the jury are satisfied from tlie evidence that the property alleged to have been stolen belonged to Mrs. Ursin Broirssard, without her testimony, it was not necessary that she should have been brought into court; while on the other hand, if they are satisfied that the ownership has not been satisfactorily proved, without the testimony of that person, it was necessary that she should have been brought into court — for the State must not leave any reasonable doubts on the mind of the jury as to the ownership, who must give the accused the benefit of such doubt and acquit him.

This, it would seem, is a charge rather favorable than prejudicial to the accused.

Judgment affirmed.


author: Poché, J.

text:
    No. 9971.
    The State of Louisiana vs. Gilbert Dubois.
    In an appeal by tbe State from a judgment sustaining a motion to quash an indictment; rulings made in favor of tbe State cannot be discussed, as tbe accused who bas not yet been tried could not appeal.
    Act No. 8 of tbe Extra Session of 1870, entitled an act relating to crimes and offenses, is not unconstitutional. Reaffirming State vs. Taylor, 34 Ann. 798.
    APPEAL from the Twelfth District Court, Parish of Rapides. Blackmcm, J.

      M. J. Ownningham, Attorney General, and John O. Wiclcliffe, District Attorney, for the State, Appellant.

      M. O. Moseley for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

The State appeals from a judgment quashing an indictment which charged that the accused did wilfully, feloniously and maliciously conspire, combine, confederate and agree together with one William Smith to commit and procure the commission of the crime of murder by wilfully, feloniously and of his malice aforethought to kill and murder one William Hull, and to procure said William Hull to be wilfully, maliciously and feloniously killed and murdered.” * * *

The grounds of the motion were :

■ 1. That conspiracy is an offense at common law, which in its nature cannot be committed by a single individual, and this defendant is the only person charged with this conspiracy.

2. That the indictment is void for duplicity.

3. That the Act No. 8 of the Legislature of 1870, approved March 16, 1870, under which the indictment was framed, is violative of Art. 114 of the Constitution of 1868, as it does not contain in its title the object or objects for which it was enacted.

The first two grounds were overruled, and cannot be reviewed in an appeal taken by the State, and because the defendant, having not yet beep, tried and convicted, could not appeal from that ruling.

The question involved in the third ground was once presented to this Court, where it was decided adversely to defendant’s present contention, and directly to the reverse of the district judge’s ruling in the instant case. We refer to the case of the State vs. Taylor, 34 Ann. 978, in which, after mature consideration of the subject, we held that “Act No. 8 of the Extra Session of 1870, entitled an Act relating to crimes and offenses, is not unconstitutional.” A second examination has satisfied us of the correctness of our views in the case referred to, which we hereby reaffirm without repeating them, nothing more being now necessary than to refer them to the attentive consideration of our learned brother of the district bench, who it seems had not yet had the opportunity to become informed of their tenor and effect. In his brief the district attorney informs us that the opinion in question was not read to the judge. “There being no annuals in the court-room, the district attorney could only state to the judge that such a decision had been rendered.” It might enhance the administration of justice, and it might be in the interest o.f the parishes which are burdened with heavy costs incurred in the prosecution of crimes, if the trial judges and district attorneys could have at hand the books and other authorities necessary to a correct solution of law-points raised during such trials.

It is, therefore, ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed; and it is now ordered that the motion to quash the indictment be overruled, and that this cause be remanded to the lower court for further proceedings according to law.


author: Todd, J.

text:
    No. 9979.
    The State of Louisiana vs. James K. Darrow.
    A motion for a new trial, unaccompanied by any bill of exceptions to tlie ruling thereon, will not be examined. Unless the record contains either a bill of exceptions, motion in arrest of judgment, assignment of errors, or error patent on its face, the judgment will not be disturbed.
    APPEAL from the Criminal District Court for the Parish of Orleans. Balter, J.

      M. J. Oimningliam, Attorney General, and Lionel Adams, District Attorney, for the State, Appellee.

      J, J. Foley for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of one year’s imprisonment at hard labor, having been convicted of inflicting a wound less than mayhem.

Iiis only complaint here is that the trial judge refused to grant him a new trial. The motion, therefore, was founded on the separating of the jury after retiring to deliberate upon their verdict.

It suffices to say that no bill of exceptions was taken to the overruling of the motion. In the absence of such bill, containing the evidence or a statement of facts upon which the judge based his ruling, this Court is powerless to review the matter. State vs. Wire, 38 Ann. 685.

Judgment affirmed.


text:
    No. 9859.
    Thomas P. Hawthorne vs. Mrs. Mary Clark et al.
    Where a man conveys an immovable to a woman and subsequently marries her, there being no marriage contract respecting the property conveyed, he cannot, during the marriage, though living apart from his wife, maintain an action against her to have said conveyance declared a simulation, nor can he by passing a simulated title to another person, enable such person to have the conveyance to the wife annulled on the ground of simulation or other cause.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Won. B. Lcmcasteo• for Plaintiff and Appellant.

      J. S. & J. T. WMttalceo' for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

William Clark on the l'7th of December, 1875, conveyed the property described in the pleadings being an immovable situated in the city of New Orleans, to the defendant, then a Mrs. Mary Quirk. A few weeks subsequently he married her. The parties afterward separated and are living apart.

On the 2.9th of December, 1885, Clark purports to have sold the the same property to the plaintiff, his son-in-law, for $2800, on a credit of one', two and three.years. The instalments represented by the promissory notes of the plaintiffs for |100 each.

A short time after this conveyance to him, the plaintiff brought suit against Mrs. Clark, the defendant, to have the title to her of the property made by Clark declared simulated and himself recognized as the true owner of the same.

To this action Mrs, Clark excepted, on grounds substantially as follows:

“That the plaintiff was without interest in the subject matter of the suit. That his title to the property was simulated; and that he was but a person interposed for the purpose of this suit.”

This exception was sustained and the suit dismissed, and the plaintiff appealed.

We see no reason to disturb the judgment appealed from.

Clark and his wife, defendant herein, though living apart, have never been separated by judgment, or divorced. During the existence of the marriage Clark could bring no suit against his wife to have the sale annulled. We are satisfied that this conveyance was made to the plaintiff, with a view to enable him to do what Clark could not do himself.

Both the plaintiff and Clark were on the stand as witnesses, and this fact was virtually admitted by both of them.

In answer to a question asked him, the former said (quoting):

“ He (referring to Clark) turned the property over to me, I suppose to make this suit.”

Then the question was asked: He turned the property over to you to make this suit?” Answer: “ Yes, sir.”

Clark, as a witness, was asked substantially: “If it was not his idea when he conveyed the property to Hawthorne that ho (Hawthorne) would bring a suit against Mrs. Clark, and if he succeeded in the suit, would return it to him.”

To which he answered (quoting): “I don’t know, but I might take back the property from him if he got a title to the property * * * and wanted his notes back.”

“ Q. Did you not tell him that?”

“A. Admitting I did, I will say yes.”

Again, when questioned about what property he owned, Clark answered to the effect that all he owned was this property — showing that he still regarded himself as the owner of it, notwithstanding his conveyance of it to plaintiff.

In addition to this, the long terms of credit given, the fact that the property stood mortgaged for more than it was worth, and that the notes had not been negotiated, and other circumstances needless to mention, all argue against the reality of the sale to Hawthorn.

Thus, concluding that Hawthorn was entirely witliont interest, it is unneccessary to discuss the abstract question presented whether, even had the sale to him been real, he could have any better right to maintain this suit than Clark himself had.

Judgment affirmed.


text:
    No. 9856.
    Caroline Mehlé and Husband et al. vs. Balthazar Bensel.
    Notwithstanding a plea of res judicata, is sustained, and a portion of plaintiffs’ demands are dismissed, leaving others in controversy, involving less than §2000, this Court is not necessarily divested of jurisdiction thereby.
    The usufructuary is hound'to keep the things of which he has the usufruct, and take the same care of them as a prudent owner would; and he is answerable for such losses as are produced from his default or neglect.
    He is liable for all the expenses for the preservation of the property and the payment of taxes.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      John Hay for Plaintiffs and Appellants.

      Braughn, BucJc, Binhelspiel & Mart for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs, as sole surviving heirs of Magdalena Aaron and issue of her marriage with Philip Mehló, instituted this suit against the defendant — who was her second husband, and survived her — for the possession of a certain piece of improved real estate in the city of New Orleans, and $800 damages done the property and $2750 rents and revenues thereof.

' They represent that soon after the death of their mother, on the 21st of April, 1875, the defendant took illegal possession and control of said property, as usufructuary, and has been receiving and using the revenues thereof, and that they amounted to $25 per month.

That defendant claims to be usufructuary by virtue of a testamentary disposition to that effect in the will of their deceased mother, in pursuance of which he was put in possession of said property; but they aver that, if same was ever done, it was doDe in an exparte proceeding and without notice to them, and without giving bond, as required by law, and same are null as to them.

They charge that defendant caused no inventory to be taken of the property subject to the usufruct, contradictorily loith them, and that that was necessary to entitle him to take possession as usufructuary.

That since defendant has taken possession of said property, he lias abused it by suffering it to go to decay for want of repairs, and some of the improvements thereon to be removed or destroyed, so that, in consequence, its value has been diminished fifty per cent, and .on which score they claim $800 damages.

That he has failed to pay the State and city taxes for several years, as it was his duty to have done, if he was usufructuary, and on that account said property is liable to be sold at any time.

That he has failed to insure said property against loss by fire.

They allege that the will under which the defendant derives his title as usufructuary, is null and void, in so far as same gives him the usufruct of her entire estate, because she had children of a former marriage, and she was legally prohibited from giving to her second husband more than one-fifth of her estate in usufruct, to which, in any event, they claim it should be restricted.

They pray, in the alternative that, if the court should hold, and treat defendant as usufructuary, that said usufruct be annulled and set aside, and that the property be restored to them.

I.

In limine the defendant tendered a plea of res judieata, predicated upon a previous suit between the same parties, on the same causes of action, and which was finally adjudged and determined between them, and he claims that it is a bar to all the demands set up in this suit.

This plea was sustained by the judge a quo “so far as to dismiss all portions of the petition of the plaintiffs that allege the nullity of the will * * giving the usufruct to the defendant, or calling in question, in any manner the legality or regularity of said usufruct.

It was overruled as to that portion of the petition that alleges abuse by the usufructuary of the property : its waste and dilapidation; and their claim for resulting damages.

The plaintiffs urge in this court — neither in argument, plea, or brief — any complaint of that decree ; nor did they reserve a bill.

II.

Here defendant’s counsel insists that this court is without jurisdiction ratione material, because the claims and demands of the plaintiffs are in amount much less than $2000.

On the contrary, plaintiff’s counsel argues that, while the judgment entitles defendant to the usufruct, it does not dispense him from compliance with the law entitling him to it; that he may be legally entitled to the usufruct, yet, if he does not comply with the law authorizing him to be put in possession, he has no right to the enjoyment of it

Hence defendant is bound to the plaintiffs for the revenues of the property during the period of his occupancy of the premises.

. This argument is clearly untenable. The interlocutory decree of the court below not only dismissed plaintiffs’ suit in so far as it called “in question in any manner the legality or regularity of the usufruct; but the issues remaining in the suit were enumerated and particularly specified, viz: ■

1st. The abuse of the property subject to the usufruct.

2d. Its waste and dilapidation.

3d. The resulting claim for damages.

4th. The question of bond.

The demand for $2750 revenues was thereby eliminated from the plaintiffs’ petition, and they did not reserve any bill of exceptions to the ruling of the court.

While the effect of this interlocutory order was to reduce the demand to a sum less than $2000, pendente lite, it does not result therefrom that this Court is deprived of jurisdiction.

Til.

The property subject to the usufruct, which has been terminated by the death of the defendant since the institution of this suit, was of small value at the death of the testatrix.

It consisted of a small lot of ground in the Fourth District of the city of New Orleans, on which there were, at the time, two small tenement houses or cottages, constructed of flatboat lumber, and not plastered within. This property was usually rented by the defendant at $25 per month; since his death at $14 per month.

The roof is shown to be in a bad condition, but that is in part referable to the fact that the slate used, originally, was of an inferior quality.

The defendant is shown to have defaulted in payment of taxes for several years; but the jdaintiffs contributed to his default by having fraudulently procured a sale of the property for taxes, under which they received and used its revenues for more than a year, when it was judicially annulled and the defendant restored to possession.

The proof shows that defendant, representing the matrimonial community theretofore existing between himself and the testatrix, furnished the means for the construction of the tenements on said property, and for his share of one-half, he obtained judgment against the plaintiffs in prior litigation for about $500, and no part of same has been paid.

The judgment appealed from condemned the defendant to pay the delinquent taxes on the property; to restore an awning that had been permitted to decay, or pay its value, -which was fixed at $25; to rebuild a wood-shed that had been torn down, or pay its value, which was fixed at $25; and required him to furnish security in the sum of $500, as usufructuary, and rejected and disallowed plaintiffs’ demand for damages.

At the time of his death the defendant is represented to have been quite an old man. His administrator has been made a party to this appeal.

An examination of the record has convinced us that the judge a quo did substantial justice between the parties, and we will not alter his decree.

The effect of defendant’s death duriug the pendency of the appeal will be to dispense the administrator from giving bond and to entitle plaintiffs to be placed in the possession of the property subject to the usufruct.

It is, therefore, ordered, adjudged and decreed chat the judgment appealed from be amended so as to dispense defendant’s legal representative from giving bond, and to entitle plaintiffs to possession of the property subject to the usufruct of the defendant, which terminated at his death, during the pendency of this appeal; and that in all other respects it be affirmed, with costs of appeal to be paid by the plaintiffs and appellants, and those of the lower court as directed in said decree.

Judgment amended and affirmed.

Mr. Justice Todd being absent, takes no part in this opinion.


author: Fenner, J.

text:
    No. 9982.
    The State of Louisiana vs. Segura et al.
    An appeal taken, by the State to a judgment quashing the general venire of jurors on the ground that the term of court at which it was impannelled was irregular and illegal, and presented here after the jury had been discharged and the term had lapsed, will not be entertained, because any judgment we might render would be utterly futile andincon sequential.
    It might be different if the indictment had been found by the grand jury formed out of the venire quashed, which, however, is not the case.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Gates, J.

      G. H. Mouton, District Attorney, for the State, Appellant.

      A. & O. Fontelieu and J. A. Breaux for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

This is an appeal taken by the State from a judgment of the court» qua quashing the general venire of jurors drawn to serve at a term of court to be held on the first Monday of April, 1887, on the ground that, owing to certain irregularities in the fixing of said term, it was illegal.

The jury has been discharged; the term has passed; and we would be at a loss to conceive of any object in prosecuting such an appeal, if the district attorney had not informed us in his brief that the grand jury impanelled at said term had returned sundry true bills into court, and that he desires the Supreme Court to pass on the question, in order to be advised as to what course he should pursue in reference to them. But those cases are not before us, and the indictment in this case was not found by that grand-jury.

As regards the present appeal, the questions presented are of a purely moot character, and any decision we might render would be brutum fulmen and entirely inconsequential. We must decline to engage in such superfluous and profitless discussion.

It is, therefore, ordered that this appeal be dismissed.


author: Bermudez, C. J. Todd, J.

text:
    No. 9463.
    James Wood vs. Mary L. Egan.
    A stale demand long witlilield from presentation or prosecution, until lie, against whom it is preferred, has died, is regarded with disfavor. It must be established, when no hindrance was in the way, with more than reasonable certainty. The unfavorable presumption, created by the delay, can be removed only by peculiarly strong and exceptionally conclusive testimony.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      J. Duvignecmd and Posey & Ker for Plaintiff and Appellant.

      O. H. LaVillebeuvre and Oarleton Bkmt for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit by a former client against the heir of his deceased counsel.

The charge is that B. Egan received, in March, 1874, some $6500, in satisfaction of a judgment in plaintiff’s favor, which, notwithstanding repeated demands, he has failed to pay over.

The claim is increased by others for about $200, said to have been given Egan to defray costs, and which lie has likewise failed to account for.

The suit was brought in May, 1883. The answer is a general denial.

The evidence shows that Egan died in December, 1881, leaving property inventoried at some $150,000, owing no debts; that he was correct individually and professionally; that after his death, the defendant here, his universal legatee, sued the plaintiff, who did not set up asa counter claim, the amount now sued for; that notice to creditors was given by the executrix, and that the plaintiff did not present himself, and that it is only after the case brought against him had been decided, that he instituted this action.

The evidence establishes beyond question, however, that Egan has collected the amount of the judgment mentioned in the petition.

On the trial the plaintiff testified in Ms own behalf, and then admitted having received $3500 from Egan shortly after he had collected the judgment.

Some thirty witnesses were heard below, to impeach the veracity of the plaintiff, and asperse his character.

The district j udge patiently heard and weighed all this testimony. In an elaborate opinion, in which the evidence is thoroughly analyzed, he states that he has no hesitation to say that the testimony has not in the least disturbed the absolute conviction in his mind that Egan loyally and faithfully accounted to Wood for every dollar that was ever due him.

We have, made it our duty to consider the testimony adduced and have reached the like conclusion.

We cannot admit that plaintiff allowed his counsel to retain possession of the amount claimed as not accounted for during so many years and look with destructive suspicion on the reality of his demand.

As was well said in Bodenheimers’ case, 35 Ann. 1006 :

A stale claim long withheld from presentation or prosecution, until he, against whom it is preferred, has died, must be established with more than reasonable certainty. An unfavorable presumption is created by the delay. It can be removed only by peculiarly strong and exceptionally conclusive testimony.

The plaintiff has not made his claim legally certain, so as to recover judgment.

These conclusions are supported by good and conservative authority. Davenport’s case, 5 Ann. 141; Simpson’s case, 7 Ann. 555; Succession of Rice, 14 Ann. 317; Manning’s Unreported Cases, p. 98, 121, 339; Cutler vs. Succession of Collins, 37 Ann. 95.

Judgment affirmed.

Dissenting Opinion.

Todd, J.

As stated in the opinion just read, a party must make his case certain — it is not enough that lie make it probable. This has become a truism. But in my opinion, the principle involved in it is not applicable to the facts of this case, but another truism should be applied, to wit: That where the existence of a debt has been established by indubitable proof, it is not enough that its discharge be made probable, but it must be made certain.

There is not the slightest doubt that Bentick Egan collected the judgment in favor of Wood. This'fart is not controverted, but admitted. When this money thus collected came into Egan’s hands, that moment he came under an obligation to pay it over to Wood; that is, that then and there a debt arose on the part of Egan to Wood. This shown, plaintiff’s case was fully made out.

The onus, then, was certainly upon Egan or his legal representative to prove a discharge by payment or other mode prescribed by law. There is not the slightest evidence of such discharge to be found in the record. In fact it has not even been alleged, the answer containing only the general denial, which simply put at issue the fact of the money being received by Egan. Had proof been offered of its payment to Wood, it would not have been admissible under the pleadings.

When the existence of a debt, as in this case, has been clearly established, it is surely not enough to relieve the debtor to show one or more circumstances such as the statement of the demand or the ability of the debtor to pay, sufficient at most to raise a mere probability of the non-existence of the debt.

If its existence at one time is clearly shown, its discharge must be made equally clear.

Controlled by these elementary and imperative principles of the law and rules of practice, 1 am constrained to dissent from tho opinion of the majority.


text:
    No. 10,003.
    The State of Louisiana vs. Luke Brady et al.
    An indictment accusing a person of “maliciously, feloniously and willfully assaulting another by shooting at him,” prefers a charge within the scope of Section 792 of the Revised Statutes, which contemplates four distinct offenses by means of an assault: one by “willfully shooting at,” the second “with intent to commit murder,” the third “with intent to commit rape,” and the fourth “with intent to commit robbery.” In charging the “ assault by willfully shooting at,” the pleader is not bound to aver or qualify the intent with which the assault was made.
    In such a case it is correct to instruct the jury that to convict the accused as charged, they must reach the conclusion from the evidence that if death had ensued from the deed it was manslaughter.
    In drawing indictments and informations for statutory offenses, district attorneys would facilitate the administration of justice by confining themselves within the words of tho statute.
    A PPEAL from the Twelfth District Court, Parish of Rapides. /~\ Blackman, J.

      M. J. Oumdngliam, Attorney General, and John O. Wicldiffe, District Attorney, for the State, Ajipellee.

      lioht. B. Hunter for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Lnlre Brady appeals from a conviction and a sentence to hard labor for one year, under an indictment which charged that Luke Brady and Peter Paul “did willfully, maliciously and feloniously assault one P. O. Nugent by willfully shooting at him,” * * *

I-Iis complaint embraces four bills of exception, the substance of which, as suggested by his counsel, turns upon a proper construction of Section 792 of the Revised Statutes, under which the indictment rests and which reads as follows:

Whoever shall assault another by willfully shooting.at him, or with intent to commit murder, rape or robbery, shall on conviction thereof, be imprisoned at hard labor not exceeding- two years.”

■ In his hill, reserved to the refusal of his .motion in arrest of J udgment, the defendant urges in substance that the indictment charge's no offense known to the laws of the State, that it fails to qualify the intent'with which the offense is said to have been committed, aud that, if the crime sought to be charged is shooting with intent to murder, the charge is defective because malice aforethought is not averred.

The fallacy of the argument is due to an erroneous construction of the plain language of the statute, and in requiring the qualification of the “willful shooting at” by the word intent, which has no reference thereto.

The leading idea or expression in the statute is in the words “ whoever shall assault another,” and not in the words “willfully shooting.”

The statute denounces the offense of an assault by “ willfully shooting at,” which by itself is a complete and distinct offense without any other qualification than that of intent; it denounces the offenses of assault with intent to commit murder, rape or robbery — which are in themselves and each separately, distinct and complete offenses; and the statute finally prescribes the same penalty for each of the offenses thus denounced. State vs. Williams, 38 Ann. 372; State vs. Simien, 36 Ann. 924.

Now, as the indictment propounds the charge of a felonious, malicious and willful assault “by willfully shooting at,” * * * it is clear that it does contain a charge of an offense known to our laws, since the same is specially denounced in the statute under discussion. And as the language used in the indictment is already redundant by the qualifications of the assault, which were not necessary under the terms of the statute, it is hardly in order for the defendant to suggest an improvement in its confection by adding the description of an intent, which is absolutely unnecessary.

Under these views, it becomes unnecessary to indulge with defendant’s counsel in the idle discussion of the words or charges which the pleader should have used, if he had intended to charge the accused with an assault by “willfully shooting at another” with “intent to commit murder.”

If such had been his intention, he would in all probability have preferred the charge which is covered by Section 791. The intention of the law-maker in providing for the offense of an assault with intent to commit murder in Section 792, is to define such an assault by any other mode but by “ shooting at.”

In his other bills the accused complains of the refusal of the district judge to give several special charges to the jury, altogether conveying the general idea that the. State had intended to charge the accused with an assault by shooting at with intent to commit a murder. The judge properly refused the instructions requested by him in that sense, and in substance informed the jury that, to convict the accused as charged, they must reach the conclusion that if death had ensued from the deed, it would have been manslaughter. He correctly held that malice of itself is not murder in a homicide, and that it is only as malice aforethought that it becomes an essential ingredient in the charge and in the proof of murder.

This is conceded by defendant’s counsel, as shown by the complaint in his motion in arrest of judgment, touching the omission of the necessary words, “malice aforethought,” if the charge was intended to contemplate murder. The whole difficulty arises out of the clumsy introduction of the words, malicious, felonious and willful, by the District Attorney as qualifying the assault charged, and which were not in the least necessary under the requirements of the statute.

District attorneys would doubtless find it an economy of labor to themselves aud especially to the courts by following the very words of the statute in the confection of indictments or informations for statutory offences.

There is no force in the complaint that the judge erred in charging the jury that they could find either of the three following verdicts:

1. Guilty as charged.

2. Guilty of assault.

3. Not guilty.

"We can see no advantage to the accused himself, and no interest of justice to he subserved, by charging, as requested by defendant’s counsel, that the jury could have returned some one of an almost infinite variety of verdicts. “ Sufficient unto the day is the evil thereof.”

We find no error in the proceedings to the detriment of die accused, who lias had the benefit of a most ingenious defense conducted by a mind of prolific resources. ■

Judgment affirmed.


text:
    No. 9923.
    John I. Adams & Co. vs. Board of Liquidation of the State of Louisiana.
    It is tli© obvious purpose of the State funding law No. J l pf 1875 that the status of each issue of -State bonds or warrants, the legality of which is questioned, should be settled in a single suit by any holder of such securities • and, for this purpose, the law authorizes all other holders of like bonds or warrants to intervene in such suit and assert their lights.
    "Whatever relaxation might he made in favor of a bondholder who had been ignorant of the pendency of snch a suit, it would be inequitable to permit one affected with full knowledge thereof to take the chances of a favorable judgment which would settle his rights, and then, after an adverse decision, r-úse, iu a new suit, issues contradictory of those presented in the first. In any event, even if not estopped by m judicata, the plaintiff, in such new suit, would certainly be compelled to overthrow, by conclusive proof, the case which had been made in the former one and on which the decision as to the status of-the bonds rested; and the defendant was authorized to offer and have received the whole record of such former case, including the evidence.
    Weighing the whole evidence as thus made up, the facts on which the former decision was based are not disproved, and plaintiff's bonds must be denied the privilege of being funded for the same reasons for which like bonds were rejected in the case of Sage vs. Board of Liquidation, 37 Ann. 412.
    Moreover, these bonds were not included in the Auditor’s Report of 1874, which this Court held in the Pacific R. R. case, 30 Ann. 980, was the basis of the funding scheme, within which, consequently, they were not embraced.
    The case is not affected by any equities which plaintiffs, as transferees before maturity, may have under the law of negotiable instruments. The Court determines, not all their legal rights, but only their right to fund, which right must submit to the conditions imposed by the funding law, applicable to all obligations of whatever nature and by whomsoever hold.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      B. J. Sage ami E. W. Robertson for Plaintiffs and Appellants.

      M. J. Cunningham, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs are holders of four bouds, for $1000 each, of the same series and character in every respect as the bonds which were involved in the case of B. J. Sage vs. The Board of Liquidation, decided by this Court, and reported in 37 Annual 412. Although we held in that case that the bonds therein involved were not fundable, plaintiffs, represented by B. J. Sage as attorney, claim, in this proceeding, that their bonds, though standing precisely in consimili emu, are fundable, and demand judgment to that effect.

The bonds in both cases belong to a series of one lmudred and eighty-four thousand dollars, issued atone time to the same person, Montfort Wells, in the same manner and for the same consideration, uuder Act No. 16 of 1864, passed by the Legislature of the State, which professed allegiance to the government of the, Confederate States.

We find in the record the foilowing admission: “The four bonds sued on in this case and the five bonds sued on in the Sage case were all part of the 184 bonds acquired by Wells from the State at the same time and in the same transaction.”

Mr. Sage, as a witness in this case,-testifies as follows : “ 1 think I know where, the bonds that were issued to Wells are. T have been connected with and interested in these bonds for twelve or fifteen years. Have been the attorney and professional adviser of the original holders of these bonds for fifteen or twenty years. These bonds are placed where they are now by me, either as owner or agent of the owners, with the understanding and reservation that I am to act as agent of the present owners in any settlement with the State that majr be made. When the State sees proper to settle the matter I am fully authorized to represent the owners. I have made considerable efforts to settle or collect these bonds with the Legislature and public officials. In these efforts I represented the whole of these bonds, except a few which have been lost.

“ In .my own right I own, I think, about one-third of these bonds, with the obligation to attend to the settlement and litigation attending them, except those that have beer, transferred, and as a part of the consideration referred to is a long list of arduous services for many years as attorney and agent, and whatever I do for any of these parties is to be justly compensated. The efforts I have made in these respective suits have been confined to them, and any advantage'to other interests would be incidental, though I have wished to promote the interest of all by any success I might attain. I am now attorney or agent for six or seven different holders of these bonds under the reservation above mentioned, and only to that extent, with the control to settle with the State, if the State will make proper terms.”

The bonds in this case were transferred to plaintiffs, during the pendency of the Sage suit, with the endorsement, M. Wells, per pro B. J. Sage,” said M. Wells being the registered owner, as appears from the Auditor’s certificate of registry on the back of the bonds.

The following is the power of attorney under which this transfer was made:

Mr. B. J. Sage, New- Orleans :

“Dear Sir — You are hereby authorized to endorse or transfer any of the bonds issued by Henry W. Allen, late Governor of Louisiana; belonging to my wife, but, issued in my name to my order, for any purpose you may deem proper. He can sign my wife’s name, also, when it is required in the management of said bonds.

“ [Signed] Montfort Wells,

“ Je annexe Wells.

“Authorised by her said husband,

Montfokt Wells.”

Plaintiffs themselves testify that, after the transfer, the bonds were left in Sage’s hands to be collected by him as our attorney and agent.”

In the petition in the first suit Mr. Sage alleged “ that he holds as the assignee and agent of Mrs. J. D. Wells and other parties live certain bonds of one thousand dollars each,” etc.

The foregoing statements, grouped together, plainly and conclusively indicate that, at the time when he instituted the first suit, Mr. Sage held the bonds now presented by plaintiffs, by the same right and in the same capacity in which he held the bonds then sued upon, i. e., “as the agent and assignee of Mrs. J. D. Wells and other parties,” and that when pendente lite, he transferred these bonds to John I. Adams & Co., he still retained possession of them and continued to represent the latter as he had the former owners.

Mr. Sage, thus representing the whole of these bonds and being the common agent of all the owners thereof for the express purpose of prosecuting their claims against the State, brought his first suit upon five of these bonds in the declared capacity of “ assignee and agent of Mrs. J. D. Wells and other parties.” -In that petition, verified by his unqualified oath, Mr. Sage alleged that the bonds were issued and delivered in exchange for certain property delivered to the State government.

On the trial the testimony of Montfort Wells, the person to whom the bonds were issued, was taken, and he positively swore that the whole of these bonds were issued to him in exchange for sugar which had been raised upon a plantation belonging to his wife, Mrs. J. D. Wells. His statement was supported by the testimony of E. W. Halsey and of James C. Wise, officers then connected with the State government.

Upon these pleadings and this evidence, we held that the bonds were not “ issued in strict conformity to law,” as required by the express terms of the supplemental funding Act No. 11 of 1875, and, therefore, that they were not fundable. See Sage vs. Board, 37 Ann. 412.

In the present suit the plaintiffs omit the allegations which liad been made in the Sage case with reference to the exchange, and content themselves with the general allegation on that point that the bonds were “sold to Mrs. J. D. Wells,” and were issued “in strict conformity to law.”

The plea of res adjudícala was interposed by the State, based’on the record and judgment in the Sage case.

We think it would undoubtedly be good against Mrs. J. 1). Wells and B. J. Sage, from whom Adams & Co. acquired the bonds now sued on. The case would be assimilated to that where the holder of two promissory notes given in the same transaction had brought suit on one of tliem which had been defended on the ground of fraud or other vice in the transaction on which both notes were based, and it is held that a judgment on that issue would be conclusive in a subsequent action on the other note. Mr. Bigelow lays down the general rule: “A point once adjudicated by a court of competent jurisdiction may be relied on as an estoppel in any subsequent collateral suit in the same or any other court, when either party, or the privies of either party, allege anything inconsistent with it, and this, too, whether the subsequent suit be upon the same or a different cause of action.” Bigelow on Estoppel, p. 45; Johnson vs. Weld, 8 Ann. 126; Gardner vs. Buckbee, 1st Cowen 120; Edgell vs. Sigerson, 26 Mo. 583; Hanley vs. Foley, 18 B. Monroe 519.

And it has been pointedly^ affirmed by the Supreme Court of the United States, in a very7 analogous case, where it was held that judgment in a suit upon certain municipal bonds, part of a larger issue, is conclusive on the question of validity of the issue, in a suit between the same parties on other bonds of the same issue. Beloit vs. Morgan, 7 Wall 619.

It is a grave and doubtful question whether Adams & Co., acquiring these bonds from the parties to that suit pendente lite, and leaving them in the hands of the principal party thereto, as their agent and attorney', thus affecting them with his full knowledge of the pendency of the suit, have not thereby become privies and subject to the same estoppels which operate against their authors. It is not necessary7, however, that we should decide this point on general principles, and we do not do so.

It is sufficient to consider it in reference to the peculiar action here involved, which is brought under the special provisions of the Funding Act No. 11 of 1875. That act regulates the duties of the Board of Liquidation touching the funding of bonds or warrants of the State, the legalit3' or validity of which has been, or may be, questioned, and, in such case, it prohibits the funding “until the legality and validity of each and every issue of bonds and warrants, as aforesaid, shall have been finally passed upon and determined by the Supreme Court of the State.” It evidently contemplates that the question, as to each issue,. shall be determined in a single suit, and provides that “ all costs incurred in any suits under this act, to the extent, of one suit carried to a final issue, as to each separate issue of bonds or warrants s * shall be borne by the State,” etc. In order to protect all rights which may7 be involved in such suit, it expressly provides that all parties concerned, every' tax-payer, and any holder or holders of bonds or wai rants, whose legality, etc., is questioned in any suit or suits brought, under the provisions of this act may intervene in said suit or suits, and that the cost of such intervention shall abide the result of the suits.”

We have held that, inasmuch as a “final decree” of this Court is an essential prerequisite to the funding, the warraLt or bondholder may appeal to this Court even when the judgment -below has been in Ms favor. State ex rel. Meyers vs. Board, 33 Ann. 126; Charles vs. Board, 37 Ann. 177.

It is clearly the equitable purpose of I he law that the rights of ail holders of bonds and warrants of the same issue shall he settled by oue decision made in a case involving any of such bonds or warrants, and that all parties concerned should appear and vindicate their rights in such suit. Whatever relaxation might be made in favor of a bondholder, who had failed to take cognizance of such a suit through ignorance of its pendency, it would certainly be most inequitable to permit parties situated like the present plaintiffs, who were represented as to the bonds held by them by the very plaintiff in that suit, to lie quietly by and take the chances of the decision, which, if favorable, would have conclusively settled the status of their bonds, and then, after an adverse decision, to come in and raise issues absolutely contradictory of those then presented. Their silence and failure to intervene, under the express authority to that effect, granted by the law, may well bo construed as an acquiescence in the issues as made in the suit, and a submission to the judgment rendered thereon.

But the plaintiffs here go much further than this. Not only do they claim exemption from any prejudice, by reason of said judgment, but they seek to exclude from our view the case which was therein made and the evidence, on which our decision rested. The State offered the entire record in the Sage case, including the evidence offered therein, to which plaintiff's objected on the ground that it was res inter alios acta, and they excepted to the ruling of the judge admitting it. We think the ruling was manifestly correct. No one can read the funding act of 1875 without discovering its clear intention to make the decision of a single suit ns to each issue of bonds, at least prima facie conclusive as to the fundability vel non of all the bonds of that series. We go to the verge of indulgence to holders of bonds not parties to such a suit, if we allow them the privilege of rebutting such presumption by producing new evidence which, if it had been presented in the former suit, would have led to a different conclusion; but, in so doing, tbe new evidence must be taken in connection with the forme)-, and the whole must be weighed together, and we must then determine whether, on such consideration, we should reach a different conclusion.

Thus, in the Sage case, upon the evidence then introduced, we held that the issue of bonds, to which those of plaintiffs belonged, was made as au exchange for sugar, and, therefore, not “in strict conformity to law.’’ Now plaintiffs come and ask us to decide the contrary, and to hold that those bonds wore not exchanged, but were sold for money as directed by the law. The least that can be required of them is surely that they should make a stronger case in favor of their position1 than was made in support of the former; and, in order to do so, they must present the whole together; for, while they represent but four bonds, we are called on to vender a decision binding on the State as regards 184 bonds, and overthrowing a former decision on the same question.

Under this view, receiving and considering the testimony presented in the Sage case, we are left without a shadow of doubt that the allegations then made were true, that the bonds were unquestionably exchanged for sugar, and were not sold, as directed in the act under which they were issued. Who should have known the fact so well as Montfort Wells, who couducted the transaction, aud who most circumstantially testifies that he refused to sell the sugar for the money then current, and would accept no settlement except in bonds'? Iiis testimony is supported by that of the other witnesses, and is contradicted by nothing except entries in the Auditor’s books of the same character, though a little more extensive, as those which were presented and discussed by us in the Sage case. We are satisfied that these entries are merely formal, made to satisfy the requirements of the State’s method of book-keeping. Nothing could be more improbable than the theory that the Governor had paid to Wells $184,000 in currency for this sugar, with which Wells had bought the bonds. Nor is any showing made that the Governor had such funds of the State in his possession, or any authority of law to so dispose of them.

In addition to the foregoing, we may say that the decision of this Court, in the Pacific Railroad case, 30 Ann. 980, substantially holds that ouly the issues of bonds and warrants enumerated in the Audit- or’s report of 1874, were embraced in the funding scheme; and the evidence here shows that these bonds were not included therein. We doubt if they have ever been included, as debts of the State, in any Auditor’s report since the reconstruction Constitution of 1868. it would require great hardihood for anyone to say that it was the intention of the Legislatures, which framed these funding laws, to embrace these bonds or to authorize their funding. We are satisfied there was no such intention. Nor is this case, in the slightest degree, affected by any equities which plaintiff might claim under the law governing negotiable instruments. That question was fully settled in Lord Cecil’s case, 30 Ann. 34, where, with obvious correctness, it was held that in proceedings to fund under these laws, the Court was not called upon to determine all the legal rights which transferrees of negotiable bonds before maturity might have against the State, hut simply their right to fund, under these special laws, which right could only be asserted on strict compliance with the conditions imposed by the laws, which conditions apply equally to all obligations by whomsoever and under whatsoever title they may be held.

Judgment affirmed.