text:
    No. 11,306.
    Succession of Frederick Good.
    The following testamentary disposition is a valid and lawful donation mortis causa of the usufruct of specified property to A for her lifetime, and of the naked ownership of the property to B’s children, notwithstanding the inclusion of the words “the naked ownership shall revert,” which are clearly shown hy the context not to have served the testator in expressing his real purpose:
    “ I do give and bequeath after my death to A, the usufruct or life enjoyment of all my property, real, personal or mixed, which I may die possessed of, and my will is that after the death of A the naked ownership shall revert,.and I do give and bequeath unto her nephew B, for the benefit of his six children, said property.”

      APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Harry H. Hall for Plaintiff and Appellant.

      W. R. Richardson and E. T. Floranee for Defendants and Appellees.
   The opinion of the court was delivered by

Parlange, J.

The nephews and nieces of the decedent, claiming to be his legal heirs, have brought this action to have decedent’s, last will and testament declared null and void on the alleged ground that it contains prohibited trusts, substitutions and fidei commissa.

The disposing part of the will reads as follows:

“I do give and bequeath after my death, unto my said wife, theusufruct or life enjoyment of all my property, real, .personal or mixed, which I may die possessed of, and my will is that after the death of my said wife the naked ownership shall revert, and I do give and bequeath unto her nephew, John W. Taylor, for the benefit of his six children, a resident of London, England, said property.”

After trial, the lower court rendered judgment dismissing the action, and plaintiffs thereupon appealed.

We are first to ascertain the testator’s intention, and then to determine whether that intention clashes with any provision of law.

The will evidences plainly an intention on the part of the testator to dispose by it of his whole property. He bequeaths to his wife the usufruct or life enjoyment of all his property. He gives her nothing beyond this. To John W. Taylor, his wife’s nephew, for the benefit-of his children, he bequeaths said property. By no reasonable inference can we reach the conclusion that the testator did not by the will dispose of the naked ownership during his wife’s lifetime, to Taylor’s children. He certainly did not bequeath the naked ownership to his wife during her lifetime, for the will is express as to what he bequeaths to her, to-wit: “The usufruct or life enjoyment.”' The will is clear as to his not bequeathing the naked ownership to his wife, and it contains no indication whatever of a desire to withhold the naked ownership from Taylor’s children during the wife’s-life. What object could he have had for so withholding it? On the ■contrary he says explicitly that he gives and bequeaths — not that he will give and bequeath — said property to Taylor’s children, subject, ■of course, to the life usufruct he had just established in favor of his wife.

It is evident that the testator intended to and did bequeath the usufruct of the property to his wife for her lifetime, and the naked ownership, from the moment of his death, to Taylor’s children. ‘The words “and my will is that after the death of my said wife the naked ownership shall revert” in no manner impede us in reaching the above conclusion. They were evidently used by the testator without a full import of their meaning, and it is plain that they do not serve him, as he intended that they should, to further exprejs the parpóse which the context shows him to have had.

The intention of the testator is clear and his purpose was lawful. The will is valid. 4 Rob. 409, 3 An. 144, 10 An. 28 and 352, 3 An. 406, 38 An. 510, 44 An. 591.

It is therefore ordered that the judgment appealed from be and the same is hereby affirmed at appellants’ costs.


source: Caselaw Access Project

author: Parlance, J.

license: Public Domain

text:
    No. 11,313.
    Louisiana Society for the Prevention of Cruelty to Children vs. Hugh C. Cage.
    1. Where a bail bond is forfeited under Section 1082, It S., and an appeal is taken from the forfeiture to this court, it is settled that this court has jurisdiction regardless of the amount of the bail bond, if the same was given in a criminal prosecution within the jurisdictional power of this court; the doctrine being that in such a case the matter of the forfeiture is attracted to the criminal prosecution.

      % But the doctrine does not apply to a bail bond given before a recorder of the parish of Orleans for appearance at a preliminary examination before him; such a bail bond not being within the purview of Section 1082, R. S., which applies to the forfeiture of bail bonds for appearances before District Courts having criminal jurisdiction

      8. A'bail bond for the appearance of an accused ata preliminary examination before a recorder of the parish of Orleans creates a lawful and binding obligation and such a bail bond may be sued upon by a civil action in the Civil District Court for the parish of Orleans. But where the amount of such a bail bond is only $500, this court has no jurisdiction on appeal.
    APPEAL from the Oivil District Court for the Parish of Orleans. Monroe, J.

      F. Rivers Richardson and W. S. Parkerson for Plaintiff and Ap pellant.

      Clegg & Thorpe for Defendant and Appellee.
   The opinion of the court was delivered by

Parlance, J.

This is an appeal from the judgment of the Civil District Court for the parish of Orleans dismissing, on the ground of want of jurisdiction ratione materise, a suit brought by the Louisiana Society for the. Prevention of Cruelty to Children against the surety on a bail bond for $500 furnished by a person charged with crime, to insure his appearance for preliminary examination in the Second Recorder’s Court for the parish of Orleans. The accused failed to appear as he had bound himself to do and the aforenamed society brought suit on the bond in said Civil District Court, alleging the right so to do under Act 32 of 1892. As to this right we are not called upon to express an opinion. The defendant excepted in the Civil District Court that the matter of the suit is criminal and not civil and that therefore the Civil District Court had no jurisdiction. The exception was sustained.

In England, recognizances and bail bonds were estreated from the criminal courts and removed into the exchequer. That the king might also maintain an action of debt seems to be plain.

The right of committing magistrates is clear in proper cases, and under proper circumstances, to admit to bail pending preliminary examination persons, charged with crime. It is difficult to conceive of a reason why the State can not sue for the amount of a bond given in such cases when the condition of the same has been violated.

The act of April 2, 1832, allowed District Courts to take certain proceedings with regard to bail bonds and recognizances, which this court held did not decree an absolute forfeiture, but operated similarly to what is known in the common law under the term estreat, which signifies extracted from the recotds of the criminal court to serve as a foundation against the accused and his surety for a scire facias.” 10 La. 102.

The act of March 11, ÍSSÍ, re-enacted in 1855, and now See. 1032, R. S., allows District Courts having criminal jurisdiction to forthwith enter up judgment on a bail bond or recognizance when the principal,, on call made, fails to appear.

In a number of eases this court has held that when a judgment is-entered up on a bail bond under Sec. 1032, R. S., an appeal from that judgment may be taken to this court regardless of the amount of the bond, if the same was given in a criminal prosecution within the jurisdictional powers of this court, because the matter of the-bond is attracted to the criminal prosecution. This doctrine is clear- and has been settled by repeated adjudications.

But the doctrine does not and can not apply to a bail bond taken-by a recorder of the parish of Orleans for che appearance before himself of a person charged with crime, for the manifest reason that there is no legislation, as in the case of Districts Courts with criminal jurisdiction, conferring upon a recorder the power to enter up judgment on a bail bond. Therefore the law as to bail bonds taken by-recorders for appearances before them is exactly what it was as to-all the courts possessed of criminal jurisdiction, prior to the legislation which empowered District Courts having criminal jurisdiction,, to deal with bail bonds returnable before them. It surely can not be contended that prior to such legislation the State was powerless to collect the amounts of bail bonds returnable before committing magistrates, when the conditions of the bonds were violated. If the State could then do so, did the conferring by the subsequent legislation of power to District Courts having criminal jurisdiction, to deal-with the bail bonds returnable before them, destroy or impair the right of the State to enforce bail bonds taken by the criminal courts inferior to the District Courts? Clearly not.

In the case of State vs. Ozer, 5 An. 744, cited 42 An. 1094, this court held through Mr. Justice Preston as its organ, that a justice of the peace had the power to admit to bail during the pendency of a preliminary examination and that an ordinary suit on bail bond could, be maintained. The defendant in that case urged that the justice.of the peace had no power to proceed upon the bond in the summary manner provided by the acts of 1835 and 1837, and this court said:

“ In this they are certainly right, and it was that which rendered the present suit before the District Court necessary to enforce the penalty of 'the bond. But it is further intimated that the summary mode of proceeding prescribed by those acts should have been pursued in thip case in the District Court. In this they err, because those laws expressly limit that remedy to bonds, recognizances and other obligations made returnable before the District' Court, which was not the case with the bond sued upon. It was returnable before the justice himself, and we know of no remedy for the State to enforce its penalty but that which has been pursued by the district attorney by bringing an ordinary suit before a court of general jurisdiction.”

In the case of Cassidy, 7 An. 276, which was a suit on a bail bond for appearance in a criminal case before the First District Court of New Orleans, it was urged “that the obligation of the surety was a civil one only and must be enforced according to the rules prescribed for civil actions.”

This court said, also through Mr. Justice Preston: “The forfeiture of the bond by judgment has always been considered as a criminal proceeding, and whether criminal or civil, was obtained in this case in the mode pointed out by the act of 11th 'of March, 1837, passed expressly for that purpose.” (Italics are ours.)

These two cases just cited, rendered by the same organ, far from being in conflict with one another, show the distinction between bail bonds forfeited under the act of 1837 (Sec. 1032, R. S.), which are attracted to the criminal prosecutions in which they are forfeited, and bail bonds which are not within the purview of the act of 1837.

As showing the intrinsic civil nature- of a bail bond, we may cite the case of Norment et al., 12 La. 511, in which this court held that notwithstanding the summary proceeding concerning bail bonds, provided by the act of 1835, the district attorney might bring an ordinary action.

In Commonwealth vs. Green, 12 Mass. 1, it was held that the commonwealth might maintain an action of debt, though scire facias was provided by statute. In State vs. Hendricks, 40 An. 722, this court, speaking of the forfeiture of a bail bond, said: “Intrinsically, the proceeding may be viewed as civil in character. It is based on a contract under private signature, on which a money judgment can be rendered which may be executed on the issuance of a fifa. It is not a proceeding for the recovery of a fine inflicted for the commission of an offence.” This court added: “In so saying we do not lose sight of the fact that it has been treated as a criminal proceeding in order to determine questions of jurisdiction in cases of appeals from judgments of forfeiture of bail bonds.” This refers, of course, to bail bonds forfeited under Sec. 1032, R. S., which, as already shown, come to us on appeal by virtue of the appealable character of the criminal prosecution to which they are attracted under that statute. But the bond in the instant case is not of that character, and is not within the purview of that statute.

Other decisions of this court as to the civil nature of a bail bond might be cited.

We are clear that this suit is a civil one, which the Civil District Court had jurisdiction to hear and determine. But for that very reason it is evident that this court has no jurisdiction of the appeal, which involves only $500.

It is therefore ordered that the appeal herein be and the same is hereby dismissed at appellant’s costs.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 11,276.
    Ferdinand Kuhnholz vs. City of New Orleans.
    Where the judge ol the lover court fails to pass upon the issue actually before him, and passes upon one not raised by the pleadings and evidence, the judgment will be annulled and the case will be remanded.
    A PPEAL from the First City Court of New Orleans. Childress, J.

      Jos. D. Séguin for Plaintiff and Appellee.

      Geo. W. Flynn, Assistant Oity Attorney, and E. A. O’Sullivan, City Attorney, for Defendant and Appellant.
   The opinion of the court' was delivered by

Nicholls, O. J.

Plaintiff alleging that he was engaged in the city of New Orleans in the business of the manufacture of stationery, blank books, books, book binding and the like, and employed in his manufactory a force of not less than five hands; that under the Constitution he was, as such manufacturer, exempt from property tax upon the capital, machinery and all other property employed by him in his business; that despite the fact of such exemption the city of New Orleans, through its Board of Assessors, had assessed and was,, through its treasurer and ex-officio tax collector, attempting to collect a property tax of the sum of $53.35, interest and costs included,, for the year 1892 upon the property employed by him in his said business, and that the city of New Orleans, through a deputy tax collector, unknown to him, had actually entered upon his business premises and attempted to seize and take charge of the said property, and had given him a notice that it would after a certain delay advertise and sell the property to pay said tax (which notice he annexed and made it part of his petition), obtained an injunction directed to the city of New Orleans and its treasurer, ex-officio tax collector, restraining and prohibiting them from collecting said tax. He prayed that the said parties be cited to appear and answer his. demand; that after due proceedings there be judgment declaring the said assessment of said tax and said tax to be unconstitutional, null, v oid and of no effect, and that the injunction taken out be perpetuated.

The city answered by denying generally all the allegations of the-petition and by specially denying that plaintiff was exempt from the payment of personal taxes under Arts. 206 and 207 of the Constitution. It averred that the business of plaintiff was not such as contemplated by the constitutional exemption, but on the contrary was such as was required to pay both personal and license tax.

On trial judgment was rendered in favor of the plaintiff, decreeing the assessment of 1892 on machinery employed in plaintiff’s business, to be null and void and of no effect, and ordering that the same be canceled and erased.

The city moved for a new trial on the grounds—

1. “ That the judgment is contrary to the law and the evidence.”

2. “That Articles 206 and 207 of the Constitution can not be so. construed to apply to the business of a bookbinder, which is simply the putting of merchantable material together in such a shape as to-meet the ordinary wants of trade; that the books prepared for sale by plaintiff are not manufactured from the raw material, nor from any article manufactured or prepared by the plaintiff.”

3. “That under no construction of the law can the exemption from a license tax be applied to plaintiff’s case, and to that extent the judgment was unquestionably erroneous and illegal.”

A new trial having been refused by the court the city of New ■Orleans appealed.

The judge of the Oity Oourt committed two errors in this case. The assessment against the plaintiff’s property, as shown by the notice annexed t%> plaintiff’s petition, was only upon merchandise, or stock in trade. The issue raised by the pleadings and evidence was whether this merchandise was part of “ the capital, machinery and ■other property employed in the manufacture of stationery,” and as such exempt from taxation under Artic'e 207 of the Constitution. The city judge failed to pass upon the actual issue and decided one which was not before him at all. No assessment seems to have been made of the plaintiff’s machinery, and yet the only judgment rendered was one decreeing the assessment upon the machines to be null and void and of no effect, and directing its cancellation. The plaintiff neither appealed nor made a motion for an amendment of the judgment. There being no assessment of machinery upon which the judgment can be made to operate, it must be reversed.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the case is remanded to the lower court for further proceedings according to law.


text:
    No. 11,277.
    Ferdinand Kuhnholz vs. City of New Orleans.
    Where the judge of the lower oourt fails to pass upon the issue actually before him and passes upon one not raised by the pleadings and evidence, the judgment will be annulled and the case remanded.
    PPEAL from the First City Court of New Orleans. Childress, J.

      Jas. D. Séguin for Plaintiff and Appellee.

      Geo. W. Flynn, Assistant City Attorney, and E. A. O’Sullivan, City .Attorney, for Defendant.
   The opinion of the court was delivered by

Nicholls, O. J.

This case presents the same issues as those in .that of Ferdinand Kuhnholz vs. City of New Orleans, decided this day — differing simply as to the year in which the assessment complained of was made, and the amount of the tax. It seems to have been consolidated and tried with that case, but was brought up by separate appeal and on different transcript.

The city judge a quo committed the same error in this as he did in the other case in passing upon an issue not before him,'and failing to pass upon the actual issue presented by the pleadings and the evidence. Plaintiff has neither appealed from the judgment nor asked for an amendment.

Eor the reasons assigned in the other case (No. 11,276), it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is ordered that the case be remanded to the lower court for further proceedings according to law.


author: Watkins, J.

text:
    No. 11,303.
    Walter P. Scott vs. John G. Moll.
    Claim being made for damages resting upon an alleged tort, and tlie proof disclosing that they grew out of an illegal provisional seizure of the plaintiff’s property, as that oí a corporation of which he was a shareholder, director and vice president, and of which corporation he had previously become a sub-tenant of the defendant’s property — held, that the purposes of justice will be best sub-served by the affirmance of a judgment for nominal damages in favor of the plaintiff.
    A PPEAL from the Oivil District Court for the Parish of Orleans. .¿A Théard, J.

      O. N. Ogden and B. W. Knickerbocker for Plaintiff and Appellee:
    Damages granted by the court for the illegal seizure of plaintiff’s property after notice to the seizing creditor. Si An. 58.
    Damages actually sustained comprise not only pecuniary loss and actual expense incurred, such as costs and counsel fees, but also the mortification, annoyance and vexation caused to the defendant by the attachment. M. L. Byrne & Co. vs. L. W. Gardner &Co., 33 An. 6.

      Substantial reparation afforded where the conduct of defendant was insulting and aggravating, and well calculated to wound and incense. MacEarland & Dupre vs. Lehman, Abraham & Co., 38 An. 351,
    Malice inferred from want of probable cause. 33 An. 776.
    Malice in law is not necessarily personal hate, or ill will of the trespasser against, the person injured, but it is that state of mind which is reckless of law and of the legal rights of the citizen; and the object of exemplary damages is not only to indemnify the sufferer for any loss sustained, but to prevent similar actions on the part of trespassers in the future. American Digest, Vol. 1 326, Verbo Damages.

      L. De Poorter for Defendant and Appellant:
    1. To recover damages ex delicto the proof must be specific; plaintiff must make his case certain; to make it probable is not enough. Vagueness and uncertainty, which only lead to inferences, are not sufficient. 16 An. 121,151; 15 An. 268; 18 An. 29,116; 19 An. 121; 22 An. 378; 40 An. 109.
    2. One who by silence, when it was his duty to speak, decoys another into particular conduct, can enforce no advantage thereby acquired. 5 An. 108; 10 An. 585; 4 An. 293.
    3. Where under execution against a third person the latter’s supposed interest in plaintiff’s store has been seized, though illegally, yet on probable cause and without malice, plaintiff can recover no damages. 14 An. 327; 7 An. 336.
    4. In absence of malice no vindictive damages will be allowed. 13 An. 214; 33 An. 372.
   The opinion of the court was delivered by

Watkins, J.

This is an action in damages alleged to have resulted from an illegal seizure of property of the plaintiff under a writ of provisional seizure for rent defendant claimed of the Knerr O’Brien Gotten Seed Linting and Cleaning Company as his lessee— plaintiff alleging that said seizure was an oppressive and unwarranted trespass upon his property and premises; and that same was accompanied' by a criminal arrest of one of his employés at the instance of the defendant.

The cause was tried by the judge, who rendered judgment in favor of the plaintiff for the sum of $350, and the defendant has appealed. In this court the plaintiff and appellee has answered the appeal and claimed an increased allowance corresponding to the prayer of his petition.

It seems that in October, 1891, the defendant leased to the linting and cleaning company for one year, the properties and premises known as No. 62 Lafayette street, and Nos. 84 and 86 Tchoupitoulas street, in the city of New Orleans — the plaintiff being the owner of a ginnery, transported same to No. 86 Tchoupitoulas street for the convenient use of the company.

On May 30, 1892, the defendant caused a writ of provisional seizure to issue against the company for an unpaid instalment of rent, and thereunder to be seized all of the aforesaid machinery, as well as other property.

In August, 1892, the plaintiff filed an intervention in the suit of the defendant, against the company, setting up his claim of ownership of the ginnery, fixtures and machinery, and the non-liability to seizure of same; and the court wherein that issue was tried held same not liable to seizure, and ordered and decreed the release of same from seizure; and further held and decided that he was the company’s sublessee of the leased premises of the defendant.

That judgment was not appealed from, and is therefore res judicata, and determines the plaintiff’s right of action for damages, if any he. has suffered.

But the plaintiff’s demand does not exclusively vest upon the illegal provisional seizure of his property antecedent to judgment, for hisaverment and prayer are to the effect that the defendant, in utter-disregard of said judgment, immediately after its rendition commenced a systematic plan of operations whereby he was to be ousted and dispossessed of the leased premises before the termination of his. lease. And the plaintiff charges — employing the language of his counsel’s brief — that the defendant, in “utter contempt of the decision of the court, made demands upon Scott for immediate vacation of the premises, and finally, inflamed by Scott’s resolute maintenance of his rights under his lease and under the judgment,, resolved to take the law into his own hands, at least to the extent of invading the plaintiff’s premises and violently interfering with his-affairs. The trespass was the more offensive as it actually proceeded to the criminal arrest of Scott’s engineer, who was compelled to abandon the running of the engine — fired to perform the work of his employer.”

Per contra, the contention of defendant’s counsel is that “during the month of September the insurance inspector visited the buildings of Moll and reported that the firing of the boiler of Scott in 86 Tchoupitoulas, the furnace end of which had been extended into No. 84 Tehoupitoulas street through the wall (a building which was not subleased by Scott), was dangerous to the buildings. Moll was notified that if fire was lighted under said boiler the insurance on his buildings would be canceled; and in. fact one or two policies were thrown up by the companies.

“Moll then informed Scott of this fact, and told him he would not be allowed to make any more fires in said boiler.

“On the 27th of September, 1892, a few days before the expiration of the term of the lease of the Knerr O’Brien Company, Scott, notwithstanding the warning of Moll, did fire up his boiler. Upon this, Moll interfered and prevented the act — upon which the boiler was blowed out for the purpose of being removed to new quarters, No. 60, leased by Scott from another person.

“The Knerr O’Brien Company had placed the boiler to run their machinery, in No. 60, leased by it from another, and not from Moll, the specific condition in their lease from Moll being that said corporation would place nothing in the Moll buildings which would forfeit the insurance.” Pages 3 and 4 of defendant’s brief.

While claim is made in plaintiff’s petition for $500 for the vexatious seizure of his property; $2000 for the loss of profits of his business on that account, and $2500 vindictive damages — aggregating the $5000 demanded in his answer to the defendant’s appeal — yet in his brief, plaintiff’s counsel states that “the damages claimed are those to which he is entitled for the tort for the actual substantial losses sustained in his business.”

His argument is, that while the rule may be, in suits for damages for the inexecution of contracts, that only direct losses which the parties might have contemplated are recoverable, yet in suits for damages arising from torts, a different rule of admeasurement obtains — and this latter rule he seeks to have' applied.

He insists that the facts of this case clearly entitle him to substantial damages — the judgment having awarded nominal damages.

With regard to the tortious acts and conduct of the defendant, after the seizure had been released, the plaintiff, as a witness, says:

“ Before moving from the premises No. 86 Tchoupitoulas street, in the course of business I had accumulated between twenty and thirty bales of cotton in the shed, making quite a bulky arrangement, and before moving I proposed to give that out to meet the ■obligations I had incurred in paying for this seed cotton; and on the 29th day of September Mr. Moll resisted my manager’s efforts to do the proper thing in regard to closing up the affairs in that place, preparatory to moving out on the 1st of October, when the lease was up.”

Again: “ I was prevented from exercising these privileges, which required steam, and for which I was fully prepared, by Mr. Moll’s violent action in regard to bringing a policeman there to arrest my agent and prevent his doing anything; and I could not do anything without my agent being there.”

This selection is made from the evidence of the plaintiff as typical of all the evidence in the case, and as illustrative of the character and extent of thfe damages he suffered at the defendant’s hands; and giving to it the consideration most favorable to his theory, we are disinclined to increase the allowance in his favor. True it is that plaintiff’s goods and effects were illegally seized for the indebtedness of the Knerr O’Brien Company, and he was necessitated to institute judicial proceedings for the procurement of their release; yet plaintiff was a shareholder in that corporation, and also vice president and a director.

He was at the same time a sublessee of the company, of the defendant’s premises, and after the provisional seizure of its effects he accepted appointment as keeper, and in that capacity had superintendence and control of the property and effects — including those he subsequently claimed and recovered as his own.

In so far as the tortious acts of the defendant, after the seizure had been released, are concerned, his interference took place only three days prior to the expiration of his lease; and upon the plaintiff’s own showing could not have resulted in serious damage.

On the whole we are of opinion that the purposes of justice would be subserved by an affirmance of the judgment.

Judgment affirmed.

Rehearing refused.


text:
    No. 11,307.
    The State of Louisiana vs. Henry Lochte.
    1. A municipal corporation, which is a creation of the law and a State functionary,, can exercise only those powers which have been expressly delegated to it, and those which are necessarily implied as inherent to its existence and thus absolutely indispensable for administration and maintenance in the accomplishment of the functions for which it was put in being and given life.
    2. A municipal corporation has no right to enforce ordinances which it has the power to pass, byline and imprisonment, or other penalty, unless that right has been unquestionably conferred by the law-giver.
    8. The words oi the city charter, which provide for the punishment of any violations of city ordinances by fine or imprisonment, refer to ordinances which the common council is authorized, in terms, to pass and have executed in reference to the preservation of the peace and good order of the city, and the maintenance of its cleanliness and health; and they also extend to and embrace the ordinances and regulations the common council is authorized to pass with reference to obstructions in the public streets or alleys of the city — same being a necessary police regulation.

      L Natchez alley, though not a street eonomine, is a locus publicits dedicated to public use, and comes within the terms of the statute and the ordinance.
    5. A proceeding of this hind is of a quasi criminal character, and in no sense a civil suit involving title to property.
    APPEAL from the First Recorder’s Court of the Oity of New Orleans. Whitaker, J.

      E. A. O' Sullivan, City Attorney, for Plaintiff and Appellee.

      E. N. Whittemore for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant is appellant from a sentence and judgment pronounced against him in the recorder’s court, condemning him to pay a fine of twenty-five ($25) dollars, or be imprisoned in the police jail for a term of thirty (30) days, for the violation of city ordinance No. 4797, A. S., prohibiting the obstructing of the streets and public thoroughfares thereof.

The defendant appeared and moved the court to quash and dismiss the prosecution against him on the following grounds, viz. :

1. That said ordinance is unconstitutional and illegal, and deprives him of his property without due process of law, without compensation or indemnity; and violates the Constitution and laws of the United States and of this State — and, more particularly, the fourth, fifth and fourteenth amendments to the United States Constitution, Arts. 1, 2, 6, 155 and 156 of the Constitution of this State, and Art. 497 of the Civil Code.

2. That the recorder’s court is without jurisdiction under Art. 92 of the State Constitution to try this case, which is an attempt by the city, under color of said ordinance, to deprive him of his property.

3. That the defendant did not violate said ordinance, in point of fact, as stated in the affidavit, to which he pleads a general denial.

He then sets out the following defence, viz.: That the space pretended, in said affidavit, to have been obstructed, was and is the private property of the defendant, as more fully appears by the acts of sale, and surveyor’s certificates annexed and made part of his answer. That he and his predecessors have long paid State and city taxes on said space, which forms part of his premises as described in said deeds and certificates.

This motion to quash was overruled by the recorder for reasons assigned orally, and not appearing of record; and thereupon the trial was proceeded with, a large amount of testimony taken, and judgment was thereon rendered against the defendant.

Ordinance No. 4797, A. S., relates to the obstruction of streets, gutters, banquettes and other public places; and it provides that “it shall be unlawful for any person or persons to encumber or obstruct any of the streets, gutters, public roads, public grounds, public squares, public places or promenades, banquettes or sidewalks of the city, by depositing in or on the same any box, bale, hogshead, barrel, or any goods, wares or merchandise, or any article whatsoever, exeqpt for the necessary time for loading and unloading the same;” then follows the formula of proceeding, and the penalty attaching to violations thereof.

The affidavit made under this ordinance complains that the defendant did, on the 9th of May, 1893, on Natchez alley, corner of Tchoupitoulas street, in the city of New Orleans, violate its provisions “by obstructing the thoroughfare.”

The defendant’s counsel, in oral argument and in brief, urges the following grounds of defence, on which he relies — as arising under the pleas set up in his answer, to-wit:

1. That the city ordinance does not CDnform to the city charter (Sec. 7, Act 20 of 1882), which authorizes the common council “ to open and keep open and free from obstruction all streets, public squares, wharves, landings, lake shore and river and canal banks,” because “ Natchez alley does not come under the above description.”

2. Assuming chat the city has power to pass said ordinance, yet it had no right to undertake to enforce such ordinance by fine, and, in default of payment, by imprisonment — because there is no such delegation of authority in the city charter.

3. That the space that is alleged to have been obstructed was and is private property of the defendant, and that the recorder’s court is without jurisdiction under the Constitution, because the proceeding was virtually an attempt to deprive the defendant of his property without due process of law.

An examination of the city charter discloses that the common council possesses the power, and has imposed upon it the duty, “ to pass such ordinances and see to their faithful execution as may be necessary and proper,” for the various purposes and objects afterward enumerated; and amongst those enumerated are the following, to-wit: to maintain the cleanliness and health of the city, and to • this end, among other things, “to adopt all such ordinances and regulations as shall be necessary and expedient.”

It confers upon the common council power, and makes it their duty, to provide “that all premises, yards, streets and alleys shall be kept in a cleanly condition;” and also to “ provide for the punishment of any violation of such ordinances or regulations by fine or imprisonment, or both.” This paragraph is immediately followed by another in the same sentence, which declares it to be the duty of the council to “ open and keep open and free from obstruction all streets, public squares, wharves, landings, lake shore, and river and canal banks;” and while the General Assembly did not find occasion to repeat or reiterate the delegation of authority to pass all such ordinances as might be necessary for the enforcement of same by fine or imprisonment, it is clearly and easily inferable from the text and context, when construed together, that such was the legislative purpose and intent.

• The case of State vs. Bright, 38 An. 1, so confidently relied upon by defendant’s counsel, is not applicable, because it involved the question of the power of the city to enforce, by fine and imprisonment, compliance with the requirements of an ordinance relative to the establishment of an uniform grade for all sidewalks within the corporate limits — a question altogether different from the one before us, and controlled by different provisions of the charter.

But the principle of law announced, as controlling the opinion of the court, is strictly correct and equally applicable to the instant case.

“It is a principle,” says the court, “ that a municipal corporation, which is a creation of the law and a State functionary, can exercise only those powers which have been expressly delegated to it, and (those) which are necessarily implied as inherent to its existence, and thus absolutely indispensable for its administration and maintenance in the accomplishment of the functions for which it was put in being and given life.
“It is therefore acknowledged by text writers, supported by abundant authorities, that a municipal corporation has no right to enforce ordinances which it has the power to pass, by fine and imprisonment or other penalty, unless that right has been unquestionably conferred by the law-giver; for this is inflicting a punishment for the commission or omission of an act declared an offence, a prerogative which, as a rule, appertains to the sovereign alone” — citing Dillon and Desty.

However, it is only necessary to quote the second succeeding paragraph in order to show that the interpretation we have placed upon the provisions of Sec. 7 of the charter is correct. It is as follows, viz.:

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

And inasmuch as the same section of the charter which confers upon the common council power to pass ordinances for the purpose of keeping and maintaining the cleanliness and health of the city likewise confers upon them the power to pass ordinances providing that all premises, yards, streets and alleys shall be kept in cleanly condition,” and also confers the power on them to pass ordinances requiring all streets, public squares, wharves, landings, etc., to be kept open and free from obstruction, the power to pass ordinances providing for the punishment of any violation of such regulation by fine and imprisonment is clearly and easily inferable therefrom.

The various powers enumerated are of the same generic character and are germane to each other; it is our conclusion that the common council had the statutory authority to pass the ordinance in question, and same is consequently legal and valid.

On the ground of defendant’s contention that Natchez alley did not fall within the designation of a street in the sense of the city charter a great deal of testimony was taken; and while it satisfies us that it is not, perhaps, in common parlance a “ street,” yet it is evidently a public place or way, on which the business and affairs of the abutting proprietors are done, and for a great many years past have been conducted, and comes within the designation of the statute and the ordinance — notwithstanding the defendant’s deeds, and those of his authors, disclose that his title extends a few feet into the alley-way.

We think the evidence fairly discloses Natchez alley to be, to all intents and purposes, a locus publicus, that has by the uses to which same has been put during a long series of years become dedicated to public use.

The charter confers upon the common council power and makes it their duty to provide that all premises, yards, streets and alleys shall be kept in a cleanly condition, and that all streets, public squares, etc., shall be kept open and free from obstruction; and the ordinance embraces within its provisions streets, gutters, public roads, public grounds, public squares, public places or promenades, banquettes or sidewalks of the city. Either is sufficiently comprehensive to embrace Natchez alley, a public place, that has been thought of sufficient business importance to be given a name, like other streets of the city have.

This much is clearly admitted in the brief of the defendant’s counsel, in the following paragraph, viz.:

“ Plan and survey 0, by H. W. W. Reynolds, deputy city surveyor, of March 18, 1880, showing defendant’s property, under his title, to be at least 80 feet 7 inches front on Tchoupitoulas street by 119 feet 10 inches in depth, and to include in its measurement 4 feet 11 inches and 6 lines in width by 119 feet 10 inches in depth in Natchez alley.” P. 8.

A like description of the defendant’s property is found in the titles of his authors in 1878 and 1875, and even in 1822, in each of which the side boundary is given as “Natchez.alley,” notwithstanding his premises impinge on the alley to the extent of 4 feet 11 inches and 6 lines on one side.

It is true that Natchez alley at its intersection with Tchoupitoulas street, and where it, in part, bounds the defendant’s lot, is not of sufficient dimensions to admit of the passage of wheeled vehicles of any kind, bpt it is of sufficient width to admit of free passage to pedestrians going in the direction of the Mississippi river, and upon it the properties of various abutting proprietors front. This alley is one of the minor arteries of commerce and trade in the city.

It has been frequently decided that a formal act of dedication to public use is not essential to constitute a locus publicus.

“After being set apart for public use and enjoyed as such, and private and individual rights acquired to it, the law considers it in the nature of an estoppel en pais, which precludes the original owner from denying such dedication. 2 Dillon Mun. Corp., p. 598.” Heirs of Leonard vs. Baton Rouge, 39 An. 283.

“ To support a dedication to public use, it must appear that the property has been so used with the assent of the owner, or else it must appear unequivocally by some plan, or writing, that the owner had made a dedication, to violate which would involve a breach of good faith.” Saulet vs. New Orleans, 10 An. 81; Arrowsmith vs. New Orleans, 24 An. 194.

It was held by the Supreme Court, in an early case, and after a careful examination of the authorities, that a deed or writing was not essential to a valid dedication. Cincinnati vs. White, 6 Peters, 431. See, also, Carrollton vs. Muny, 19 La. 71; Carrollton vs. Jonas, 7 An. 233; New Orleans vs. United States, 10 Peters, 662, 2 Dillon Muñe. Corp., Sees 499, 500.

On the evidence adduced we are of opinion that the Recorder correctly held with the prosecution.

Neither counsel for the State or defendant contend that, in such case, and for such purpose — that is to say, for the determination of the legality of the fine imposed — the evidence is not examinable on appeal to this court. That question was discussed and decided in State vs. Fourcade, 45 An. —. Vide 13th Southern Reporter, No. 3, page 187; State vs. Callac, 45 An. 27; State vs. Dean, 45 An. —.

These three cases are the most recent expressions of this court on the subject and may be accepted as controlling any utterances and opinions of the court in any previous cases, some of which are collated for the purposes of comparison; though analysis, and comparison of same is not deemed necessary, as the jurisdiction of the court in the present controversy is not mooted or quest oned. City vs. Bayley, 35 An. 545; Tax Collector vs. Conner, 42 An. 787; City vs. Layman, 43 An. 1180; City vs. O’Neil, 43 An. 1182; State vs. Pittsburg and Southern Coal Company, 41 An. 467; Corporation of Minden vs. Sylvestein, 36 An. 915.

In the third and last contention of defendant, to the effect that the recorder’s court is without jurisdiction because the proceeding was, virtually, an attempt to deprive him of his property without due process of law, is altogether without merit, because there is no controversy in the case touching, in any manner, the title to defendant’s property, except the one he has himself urged, and to which reference has been made. This is essentially a criminal proceeding in character and purport, involving an exercise of the city’s police power, though the location of the defendant’s property adjacent to Natchez alley, is a question in the case; and hence all other rights of the defendant are reserved.

Altogether we are of opinion that the appellant has not made out a case entitling him to relief.

Judgment affirmed.

On Application for Rehearing.

A re-examination of this case has only served to confirm us in the correctness of the conclusions at which we at first arrived; but at the earnest solicitation of counsel for the defendant, we will reiterate the statement that this is essentially a criminal prosecution, in character and purport, involving only an exercise of the police power of the city; that-it does not in any manner involve the title of defendant’s property, nor does it propose to settle any question of boundary or servitude. Consequently we refrain from expressing any opinion on either of those questions, but expressly reserve all of his rights in these respects.

Rehearing refused.


text:
    No. 11,326.
    The State of Louisiana vs. Paul Dobarb.
    An ordinance of the city of New Orleans which makes it unlawful for any one to sell, barter, exchange or otherwise dispose of any lottery ticket or token of any kind, is a police regulation within the meaning of the City Charter and the State Constitution, and is neither illegal or unconstitutional.
    APPEAL from the Second Recorder’s Court of the City of New Orleans. Aueoin, J.

      E. A. O’ Sullivan, City Attorney, and Evans & Dunn for Plaintiff and Appellee.

      James G. Walker for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant appeals from a sentence imposed by the judge of the Second Recorder’s Court, condemning him to pay a fine of §25, or, in default thereof, to be imprisoned for thirty days— the complaint against him being that he had violated the provisions of ordinance No. 92, council series,.relative to selling lottery tickets.

As setting out the defences urged in their strongest light, we clip the following from the brief of defendant’s counsel, viz.:

“ In the court below defendant interposed a plea, attacking the constitutionality of the ordinance in question on several grounds. Only three of the points originally set up are now insisted upon in this brief:
“ 1. The ordinance is unconstitutional, because ultra vires, conferring judicial functions on the recorder, which have never been delegated, and can not be delegated, to the city of New Orleans by the State laws, under the Louisiana Constitution and the United States Constitution. The subject matter of the ordinance is not in the nature of a police regulation, nor implied by nor incidental to the exercise of the corporate powers and franchises conferred upon the city by the laws of the State; that the object of the said ordinance is not to suppress a vocation or an act malum in se, nor to promote the public order, health, morals, comfort, safety or convenience of the city, which is the only legitimate sphere in which the police power of the city can be exercised; on the contrary, the purpose of said ordinance is to promote the public revenues and indirectly to discriminate in favor of the Louisiana State Lottery Company, a corporation recognized by the Constitution of this State.
“ 2. The ordinance violates the State and Federal Constitutions by providing for the arrest, summary conviction and sentence of persons accused thereunder, without trial by jury, and without due process of law, and denies equal protection of the laws to citizens of the United States, to promote the private and individual interests of the said Louisiana State Lottery Company.
“ 3. The said ordinance is unconstitutional, under Arts. 92 and 136 of the Louisiana Constitution, because the same pretends to confer upon the recorders of the city of New Orleans judicial powers extending further than the cognizance of cases arising under the police regulations of towns and cities of this State, and beyond their duties as committing magistrates.”

The specific charge of the affidavit is that the defendant violated the aforesaid ordinance by selling illegal lottery tickets.

The provisions of ordinance No. 92, C. S., are as follows, viz.: “ That it shall be unlawful for any person or persons to sell, barter, exchange, or otherwise dispose of any lottery ticket, or token, policy, combination, device, or certificate, or fractional part thereof, in any lottery drawn or to be drawn, in or out of the city of New Orleans, unless the same be duly authorized by the laws of the State of Louisiana.” Sec. 1.

“That any person or persons violating the provisions of this ordinance shall, upon conviction, before the recorder within whose jurisdiction the offence was committed, be condemned by said recorder to pay a fine of f25 for each offence, and in default of payment, to be (condemned) to imprisonment for not less than twenty nor more than thirty days.” Sec. 2.

This ordinance was passed on January 30, 1883, and has not since been modified or repealed. It is an existing and apparently regular and legal ordinance of the city — conferring upon the recorders of the city plenary and express authority, not only for proceedings thereunder, but to fine and imprison persons violating the provisions thereof.

Consequently the only objections that could be urged against it are unconstitutionality and illegality; and the sabstance of the defendant’s complaint is that “the subject matter of the ordinance is not in the nature of a police regulation,” and that its object “is not to suppress a vocation, or an act (which is) malum in se; nor to promote the public order, health, morals, comfort, safety, or convenience of the city, which is the only legitimate sphere in which the police power of the city can be exercised.”

As a corollary of the foregoing proposition counsel for the defendant alleges that, “ on the contrary, the purpose of said ordinance is to promote the public revenues, and, indirectly, to discriminate in favor of the Louisiana State Lottery Company, a corporation recognized by the Constitution of this State.”

His further proposition is that the ordinance is ultra vires, conferring as it does judicial functions on the recorders of the city beyond the scope of the Constitution and the charter of the city.

The common council of the city is authorized by its charter, inter alios, “to suppress all nuisances;” and surely it does not require argument to show that the illicit sale of unauthorized lottery tickets, within the limits of a great city like New Orleans, is a public nuisance, and within the spirit and intendment of the denunciation of the city charter. Sec. 7, Act 20 of 1882.

That such illicit sale of lottery tickets is a subject matter that comes within the “ police regulations of towns and cities within this State,” in the sense of the organic law, seems to be a proposition so self-evident that argument is not required in support of it. Arts. 92 and 186 of the Constitution.

The suppression of the sale of illegal lottery tickets certainly has a tendency to promote good morals; and it is, inferentially, conceded by the defendant, that if such were the case the ordinance would possibly come within the charter and the Constitution.

We can not discover in what way the ordinance could possibly promote or increase the public revenues of the city, as it imposes no fine upon the sale of lottery tickets, such as a license and the like; but it does impose a fine or imprisonment, as a penalty for selling unlicensed lottery tickets. Instead of encouraging the sale of lottery tickets the ordinance prohibits and discourages it, in the strongest terms — the flat of the ordinance being that it shall be unlawful for any person or persons to sell, barter, exchange, or otherwise dispose of any lottery tioket * * * unless the same be duly authorized by the laws of this State.”

Nothing could be farther from the expressed object of the ordinance, than to make the traffic in illicit lottery tickets a source of revenue to the city; for the only saving clause of the same, looking to a possible sale of lottery tickets, is that in respect to such sales as might be authorized by the State, and which the city by ordinance would be powerless to prevent.

The further objection that the ordinance is illegal, because it tends to discriminate favorably to the Louisiana Lottery Company, is equally without merit, because the city is powerless to control the action of the State in the premises. The object had in view by the 'framers of the ordinance doubtless was, to guard the city against even the appearance of running counter to a statute law of the State on the subject of the sale of lottery tickets.

That in such ease, as those provided for in the ordinance, the Legisislature has constitutional power to confer on the City Council delegated authority to vest in city recorders jurisdiction of such offences, we have no doubt.

Judgment affirmed.


author: MoEnery, J.

text:
    No. 11,296.
    The State of Louisiana vs. J. W. Von Sachs and Albert N. Parker.
    The City Council o£ New Orleans has no power to enact an ordinance requiring parties conducting a legitimate business to give bond for the faithful discharge of duties connected with said business, and to answer in damages to any one who may be injured in dealing with persons conducting such business.
    Ordinance 6609, Council Series, is null and void, being illegal and unconstitutional.
    APPEAL from the Second Recorder’s Court of the Oity of New Orleans. De LaBretonne, J.

      E. A. O'Sullivan, Oity Attorney, and T. R. Rozier, Assistant Oity Attorney, for Plaintiff and Appellee.

      Simeon Belden for Defendant and Appellant.
   The opinion of the court was delivered by

MoEnery, J.

The defendant, Parker, was prosecuted before the Second Recorder’s Court of the city of New Orleans for violating Ordinance No. 6609, Council Series. In the recorder’s court he denied the legality and constitutionality of the ordinance. He was convicted and has appealed, under Art. 81 of the Constitution.

The ordinance, after reciting that the council had been informed by ¿he press of the city that various acts of a criminal nature had been committed by labor agents, provides that labor agents, conducting business in the city of New Orleans, shall give a bond in the sum of $5000, payable to the mayor, conditioned for a faithful discharge of duty in conducting a labor agency. The labor agent is required to furnish this bond before conducting the business, and if he does not he is subjected to fine or imprisonment. Any one who has been injured by the acts of the labor agent has a property in the bond and is authorized to sue on it.

In the license act of 1890 we do not find this occupation classed among those from which a revenue may be derived. But we have decided that while an occupation may be relieved from taxation, yet when the State or municipal authority selects .it for a license tax, constitutional methods must be observed.

It is not stated whether the city has taxed, by license, this occupation, but we know from the record that it is a recognized business of such proportions as to require municipal regulations.

It is permitted to be conducted — it must therefore be a legitimate occupation; otherwise it would require legislation to suppress it instead of regulating its existence.

The City Council can exercise only such power as legislative authority confers upon it. It can prohibit no business authorized by the Legislature, and when it assumes that the Legislature authorizes the taxation of the occupation, under -Sec. 12 of Act 101 of 1890, it can not, in authorizing the business or occupation to be carried on, impose obligations not authorized by the Legislature. If it can require a person pursuing one occupation, which is recognized as legitimate, to give bond for the faithful discharge of duties connected with the same, it can require a bond from any one pursuing any other occupation.

We fail to find any such authority granted to the city of New Orleans by the Legislature.

The bond is by the ordinance made to inure to any one injured through the instrumentality of a labor agent for any damage done by said agent, or for any fraud or misrepresentation committed by him.

Thus the city undertakes to protect parties who may resort to a civil suit for damages which may result in dealings with the labor agent.

We alse fail to find authority for the city of New Orleans to exact a bond from any one pursuing any occupation to answer in damages for injuries inflicted by the person pursuing said occupation.

The ordinance, we learn from the preamble, was intended to protect females from being imposed upon. It is laudable in its purpose, but the acts at which the ordinance is leveled fall under criminal statutes of the State.

The ordinance is manifestly illegal and unconstitutional, and therefore null and void.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and the prosecution of defendant be dismissed, and the city to pay all costs.


author: McEnery, J.

text:
    No. 11,332.
    The State ex rel Remington Paper Company vs. T. C. W. Ellis, Judge Civil District Court, Parish of Orleans.
    Property in the hands o£ a receiver, acting under the orders o£ the court, can not be seized by a creditor.
    The office o£ an attachment or sequestration is to seize and hold property until the further orders of the court. Being already in the hands of an officer of the court, for distribution among creditors, the object to be accomplished by a seizure is attained. &. creditor basing his rights on property in the hands of a receiver appointed by the State court, on writs issued from a Federal court, which are referred to the State court having jurisdiction of the property, he has no cause to complain of an order of the State court ordering the property to be sold when his debt is recognized and referred to the proceeds of sale. He can not appeal from the order to sell the property, as it can not irreparably injure him.
    A party can not obtain a suspensive appeal from a judgment on a rule which carries into execution a judgment already rendered The judgment can be arrested only by a suspensive appeal or by injunction.
    PPLICATION for Mandamus, Prohibition and Certiorari.

      Merrick <& Merrick for the Relator.
    JET. L. Garland and B. R. Forman for the Respondent.
   The opinion of the court was delivered by

McEnery, J.

This is an application for writs of prohibition, mandamus and certiorari.

The relator alleges that he has a valid claim against the Louisiana Publishing Co., amounting to $3868.55, for paper furnished said company, and on which he has a vendor’s privilege; that he brought suit on said claim in the United States Circuit Court for the Eastern District of Louisiana, and obtained writs of attachment and sequestration, and in pursuance of same the property of said company was seized by the marshal; that one John D. Watson, illegally claiming to be receiver of said company, and illegally claiming to be in possession of the property seized under said writs in virtue of an appointment he received by one of the judges of the Civil District Court for the parish of Orleans, filed on the 30th day of May, 1893, in said Circuit Court a motion to set aside the writ of sequestration and attachment, and on the trial of said motion the judge of said court, on the 6th day of June, ordered that the marshal restore the property seized in the cause under writs of sequestration and attachment to said John D. Watson, receiver, unless within five days the plaintiff applies for and ultimately receives authority from the Civil District Court, parish of Orleans, which appointed Watson receiver, or from the appellate court, to hold same under said writs; that the relator applied within five days from the rendition of the judgment for authority to hold said property attached and sequestered under said writs; that said receiver, Watson, filed an exception to relator’s petition, that it disclosed no cause of action, which was sustained, and from which judgment he appealed. Before this judgment became final Thos. B. Lyons and D. J. Norwood sued out a rule on relation in Division A, Civil District Court, and on the marshal to show cause why they should not cease and desist from in any way interfering with said receiver in the possession of said property of the La. Publishing Co., or be punished for contempt of court, and that the receiver was ordered to show cause why he should not pay to Thos. B. Lyons $300 for the price of the lease of premises 41 Natchez street, occupied by said publishing company, and also why said receiver should not pay D. J. Norwood $300 for the price of the lease of 43 Natchez street, occupied by said company, both sides claiming the lessor’s privilege.

The receiver was also required to show cause why he should not deliver up said premises. In the rule there was a prayer to sell the property stored in said premises to pay said amounts. The rule was made absolute, so far as to order the sale of the property after thirty days’ advertisement, and to maintain the receiver in possession of the property, and to proceed in the execution of his duties. The receiver was ordered to pay rent for the month of October out of the proceeds of sale, and the rights of the lessors, the Remington Paper Co., and other creditors; reserved and referred to the proceeds. The relator applied for a suspensive appeal from this interlocutory order, which was refused. He applies to this court for the necessary process to compel the respondent judges to grant said appeal on the ground of irreparable injury in the execution of the order, as it amounts to an annulment of the suspensive appeal taken by the relator from the judgment dismissing his suit in which he applied for the recognition of his attachment and sequestration, and for the authority of the marshal to hold said property in virtue of said writs.

The prayer of relator is that writs of mandamus, prohibition, certiorari, issue from this court directed to the judge of Division A, Civil District Court, Orleans parish, compelling him to allow a suspensive appeal from the judgment rendered by him and signed September 19, 1893; that said judge of Division A, Civil District Court, and John D. W tson, claiming to be receiver, be prohibited from proceeding further in this case, so far as the property attached and sequestered is concerned, in suit No. 12,191 of the docket of the Circuit Court for the Eastern District of Louisiana, entitled Remington Paper Co. vs. Louisiana Printing and Publishing Co., and that said judge be -commanded to send to the Supreme Court certified copies of the proceedings in the suit of Frank H. Pope vs.'Louisiana Publishing and Printing Co., No. 39,100 on the docket of said court.

The receiver was appointed for the Louisiana Printing and Publishing Company on the application of Frank H. Pope on 17th May, 1893. The facts upon which the appointment of receiver was made are alleged in the petition to be insolvency of the company, the resignation of its officers, the abandonment of its franchises and the danger of the loss of its property. No appeal was taken from this order. The legality of the appointment of the receiver is not presented in the proceedings before us.

While the property of the company was in the hands of the receiver it was seized by writs of attachment and sequestration sued out by defendant in the United States Circuit Court.

It is a well established principle that where one of two courts of concurrent jurisdiction has taken cognizance of a eau e the other will not entertain jurisdiction of the same case. 8 Ohio, 373; 27 Vt. 518, Id. 470; 25 Barb. 513; 8 Md. 255; 4 Texas, 4; 19 Ala. 438; 1 Fla. 198; Massy vs. Gordy, Sheriff, 28 An. 586; Adams & Co. vs. Vaunis, 29 An. 315.

Recognizing this doctrine and applying it in the exercise of the rules of comity which exists among courts, the judge of the Circuit Court for the Eastern District of Louisiana ordered the release of the property seized under process from his court and referred the relator to the Civil District Court, parish of Orleans, having possession of and jurisdiction over the property for the r cognition of his seizure and the enforcement of his rights thereunder. No attachment or sequestration proceedings are now pending in that court, nor does the marshal retain possession of the property.

In a proper case, in which property is liable to attachment, we have no doubt that the respondent judge, on process from the United States court, in the exercise of the rules of comity would order that the attachment levied by .the marshal should have the force of a constructive seizure when referred to him as in this case by the Federal judge.

In this case the property was not liable to be seized by a creditor while in the hands of the receiver. Property held by representatives, such as administrators, executors, trustees and receivers, holding under the orders of court, can not be seized by creditors. 1 Johnson Cases, 372; 9 Wendell, 465; 23 Ala. 369; 2 Dallas, 73, 79; 1 Martin, 202, 380.

The effect of an attachment or sequestration is to seize and hold property until it is subjected to the further orders of the court. Being already in the hands of an officer of the court for distribution among creditors, the object to be accomplished by a seizure is already attained.

Basing his rights upon the seizure by virtue of the writs from the United States Circuit Court, and having been referred to the court having jurisdiction of the property, if the relator is not entitled to the writs he has no cause of complaint and does not even show an appealable interest. He can certainly suffer no irreparable injury, as his debt was recognized by the District Court and referred to the proceeds.

That part of the judgment in the rule complained of was only to protect the possession of the receiver, and did not determine ultimate rights of the relator. King vs. Wooten, (C. C. A.) 5 F. 612.

There was no appeal from the judgment appointing the receiver. Therefore this judgment can not be attacked collaterally in an answer to a rule instituted for the purpose of carrying into execution the original judgment. The judgment could only be annulled by injunction or a suspensive appeal. Elder vs, Judge, 30 An. 229; State ex rel. Schmidt vs. Judge, 27 An. 703; Boutte vs. Executor, 30 An. 177.

. The relief prayed for is denied and the rule granted herein discharged.

Rehearing refused.

Mr. Justice Parlange takes no part.


author: Breaux, J.

text:
    No. 11,282.
    Natchez & New Orleans Packet and Navigation Company vs. Louisville Underwriters et al.
    There was no necessity of remanding the case for the trial of issues presented and decided.
    For the reason that reference was made to a special agreement deliors the policies of insurance, under which the defendants were bound to undertake the salvage of the wreck, the right to sue for damages for its violation was reserved.
    APPEAL from the Oivil District Oourt for the Parish of Orleans. ' Ellis, J.

      B. K. Miller and B. B. Howard for Plaintiff and Appellant.

      J. B. Beckwith, Amicus Curiae.

   The opinion of the court was delivered by

Breaux, J.

Plaintiffs sued the defendants and in their, petition alleged that on the 1st day of January, 1889, the steamer Natchez was destroyed by striking a hidden obstruction in the Mississippi river at or near Lake Providence.

That the loss was within the terms of the policies of insurance held by them; that the defendant companies through their agent and representative were duly notified by the superintendent of the company of the loss, and he afterward abandoned the wreck to the defendant companies through their agent, who took charge of the wreck.

That it was the duty of the agents, and their agreement also, immediately to proceed to the salvage and relief of the wreck for the benefit of the insurers and the insured.

That in violation of their duty, and in collusion against petitioner, the agents delayed and neglected to take any steps toward the salvage of the wreck, for which they had ample time, until the river rose and caused said wreck to go to pieces and rendered the salvage impossible, without due notice to plaiatiff.

That had the agents immediately proceeded to the salvage of the wreck there could have been saved property to the value of at least $43,000, of which plaintiffs’ share under the terms of the policies would have been two-thirds.

The defendant filed an exception of no cause of action.

It was sustained by the District Court.

On appeal to this court the judgment of the District Court was affirmed. That ended the ease.

The position of the plaintiffs, as we interpreted it, was that the steamer was abandoned to the agents of the defendant companies and that owing to the negligence of these agents the wreck became a total loss.

Assuming for the trial of the exception of no cause of action that there was negligence, we held (in the case 44 An. 714) that, within the terms of the policies, these agents acted for all parties concerned. That whether the agent was the master, the supercargo, or an appointed agent within the policy, hfe acted for the insured to the extent of his interest, and represented the quasi partnership (insured and insurer) quoad the wreck and his acts were for account of the partnership; that one of the partners, the insured, could not hold the other, the insurer, responsible for the acts of the common agent.

The authorities upon the subject do not announce the principle that under the terms of a policy it is the duty of the insurer to proceed immediately to save the wreck and account to the insured for his share; nor that it is incumbent upon the insurer to follow the vessel insured in order to be prepared to save the wreck for the benefit of the insured, but that it is the duty of the master, after abandonment, to save the wreck for the benefit of the insured and the insurer.

This was the theory of the decision, and controlled in affirming the decision of the court a qua.

While examining the ease óur attention was attracted by the allegation that it was the duty of the agents - and their agreement also (heretofore italicized by us), also by the statement in plaintiffs’ brief:

“ But superadded to the obligation of defendants under the policies and the abandonment under it, plaintiffs allege that defendants, through their agent, agreed to undertake the salvage of the boat for the benefit of themselves and of petitioner.”

All the issues arising under the policies were finally decided and reported in 44 A.

But we determined, if there was a separate agreement, to reserve to plaintiff his right to sue on account of its violation under sufficient allegations.

This reservation was to enable them to sue in a separate and distinct suit.

The action of the District Oourb was correct and must be affirmed.

The judgment appealed from is affirmed at appellant’s costs.


author: Parlange, J.

text:
    No. 11,226.
    Succession of Myra Clark Gaines. Opposition of John R. Conway.
    A demand against a succession, unsupported by written proof, for services alleged to have been rendered the decedent more than ten years before malting the demand, in pressing a certain claim before the Common Council of New Orleans will be rejected.
    APPEAL from the Civil District Oourt for the Parish of Orleans. King, J.

      Thos. J. Semines for the Succession, Appellee.

      Frank MaGloin for the Opponent, Appellant.
   The opinion of the court was delivered by

Parlange, J.

This is an opposition by John R. Oonway to the account filed by the administrator of the succession of Myra Clark Gaines. The opponent claims $1500 for services which he avers that he rendered the decedent. He alleges that “shortly before August, 1877, she employed him to present her demands against the city of •New Orleans for rents and revenues and other indebtedness arising out of or connected with the litigation known as the Gaines case.” He alleges that under said employment he presented to the Common Council of the City of New Orleans, on August 10, 1877, a petition prepared by himself, setting forth the demands of decedent and the reasons why the same should be liquidated. That on September 24, 1877, said employment was confirmed in writing and opponent’s compensation was fixed at $5000 in case of success. That neither opponent nor decedent was able to secure the contemplated settlement, and that negotiations of a different character were suggested, opponent being frequently consulted by decedent during Said negotiations. That said employment continued up to the date of decedent’s death, and that “although a stipulated sum was fixed in case .of success, yet-it was not the understanding that opponent was to receive no remuneration for his services in case the city of New Orleans did not accept the first proposition advanced, but on the contrary, compensation in any event was contemplated and is due; •that the sum to which opponent is entitled for said services is at least $1000. That opponent in addition was frequently employed and consulted from the year 1877 to the death of said Myra Clark Gaines, concerning' other interests and matters, interviewing capitalists, explaining to them the character of the claims of Mrs. Gaines, with .a view to enabling her to raise necessary funds ; that said other services, were, frequent and continuous, without specific memoranda as to dates.”- The latter services are' alleged to be worth $500.

The evidence in support of. the claim consists of the testimony of the opponent, corroborated as to the general matter, of the alleged employment by another witness, who testifies that Mrs. Gaines told him that she had employed the opponent to act for her in connection with her claim. The opponent offered in evidence a copy of a public newspaper published in the year 1877, containing the above mentioned petition of decedent to the City Council, which petition opponent prepared for hér.

■ The only services shown by the testimony in an appreciable manner are the preparation of the petition and its presentation to the City Council in the year 1877, and calls which the opponent made upon officials of the municipal government with a view of pressing the petition upon their attention. We are satisfied from the evidence that, as regards the above mentioned petition, no appreciable service was rendered within ten years from the filing of the opposition. The petition is not a lengthy one and its contents do not show that special skill and knowledge were required to compose it, or that much labor was expended upon it. On behalf of the administrator, it is testified that the bill in equity on which the money now under administration was collected, was filed in the United States Circuit Court in August, 1879, the final decree being rendered in said court in May 1883. On appeal to the Supreme Court of the United States, the matter was the subject of two decrees, one rendered in May, 1889, and the last and final one in 1891. The opponent not being a lawyer, and making no claim in such capacity, it seems clear that he could not have rendered decedent any service in the matter of her claim, under the employment first set out in the opposition, after the bill in equity was filed. Decedent employed opponent in 1877 to undertake a settlement or compromise of her claim with the City Council, but it seems clear that all hope of effecting such a compromise must have been abandoned prior to the filing of the bill in equity.

As regards opponent’s claim for services in interviewing capitalists, etc., he admits that he did not succeed in borrowing any money for the decedent, and we consider the testimony as insufficient to support a judgment on that part of the claim.

Opponent’s counsel contends in his brief that prescription did not run because Mrs. Gaines was not to pay opponent until her claim was realized. Opponent testified that decedent told him that she would compensate him “out of the collection of this claim,” and “when she realized the money from the city.” In his opposition opponent avers, as stated, that his employment was confirmed in writing on September 24, 1877, and that his compensation, in case of success, was fixed at $5000. We have sought in vain in the record for this writing. If such a writing had been produced it would perhaps have created an irresistible presumption that compensation was to be made only in case of success. Opponent was employed to settle the claim in a particular way. He was unsuccessful. He was not even remotely instrumental in bringing about the collection of the claim, which was effected through the courts.

The act of 1858 to require written proof in certain cases, now Art. 2278 O. O., has been declared to be a law of public order. 23 An. 747; 26 An. 221, and see 34 An. 228 and 232.

The plea of prescription in this case must prevail.

It is therefore ordered, adjudged and decreed that the judgment of the lower court dismissing said opposition of John R. Oonway be and the same is hereby affirmed at appellant’s costs.


author: Parrange, J.

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    No. 11,335.
    The State ex rel. E. Feibleman, Sons & Co. vs. The Judge of the Nineteenth District Court.
    1. To stay tbe execution o£ an order of seizure and sale by a suspensive appeal, an appeal bond must be furnished, ivithin the delays allowed by law, in a sum exceeding by one-half the sum for which the order of seizure and sale issued. An appeal bond in such a case is governed by Art. 575, C. P.

      2. Where in such a ease, an appeal bond has been furnished which is insufficient in amount under Art. 575, O. P., to sustain a suspensive appeal, and where the appellee moved in the lower court for a dismissal of said appeal on the ground of such insufficiency, and the judge of the lower court refuses to pass on the question under the erroneous belief that the matter is not before him, relief will be granted to the appellee on an application to this court for writs of certiorari and mandamus.
    ^^PPLICATION for Mandamus and Certiorari.

      Clegg & Thorpe for the Relators.

      Foster & Broussard, Albert Voorhies and F. P. Poehé for the Respondent.
   The opinion of the court was delivered by

Parrange, J.

Edward Feibleman and others, composing the commercial firm of E. Feibleman, Sons & Oo., obtained an order of seizure and sale from the judge of the Nineteenth Judicial District Court. O. P. Romero and E. B. Bayard, whose property had been seized under the order, alleging that no authentic evidence had been produced showing the transfer to E. Feibleman, Sons & Oo. of the mortgage note for the satisfaction of which the order of seizure and sale had issued, prayed for a suspensive appeal from the order. They asked that the amount of the appeal bond be fixed. The judge granted the suspensive appeal returnable to this court, at Opelousas, on the first Monday of July, 1894, and he fixed the amount of the appeal bond at a sum considerably less than that required by Art. 575 O. P. Subsequently, and after the delays within which a suspensive appeal can be taken had expired, the plaintiffs in the executory proceedings moved to set aside the appeal on two grounds: that the appeal bond is not good and such as the law requires, and that the sureties are not good and solvent.

The respondent judge, after hearing the parties, dismissed the rule to set aside the appeal. As to the solvency of the sureties he decided that the same was established to his satisfaction. But he did not pass on the question of the sufficiency of the amount of the appeal bond. On that point he said in dismissing the rule:

“By reason of the suspensive appeal taken this court (the Nineteenth Judicial District Court) is divested of all further control over the case; the Supreme'Court alone has‘power and right to pass upon the sufficiency of the bond as tó its amount,’which is fixed by special provisions of the law. -The law vests this court, however, with the right and power to pass upon the solvency of the sureties, because solvency is a fact to be established or disproved and thus requires evidence, whilst the sufficiency of the amount of the bond being a naked question of law requiring no proof, as it is fixed by law, is to be determined by the Supreme Court, which has exclusive control of the case on appeal.”

In his return the respondent judge says: <£ This rule'(the rule to

dismiss the appeal) was tried and' discharged; the court deciding that it had been divested of jurisdiction to pass upon the bon'd so far as its sufficiency in amount was concerned, but holding that the sureties on the bond were solvent.”

To stay the execution of an order of seizure and sale by suspensive appeal, an appeal bond must be furnished Within the time allowed, in an amount one-half over and above the sum for which the order issued. 22 An. 35; 20 An. 179; 27 An. 707; 30 An. 1041.

An order of seizjire and sale to the sheriff, directing him to seize and sell specific property to pay a specified sum; is unquestionably “fora specific sum within the intendment of Art. 575 C. P. In the case above' cited, 22 An. 35, in which the district judge, after fixing the amount of the suspensive appeal .bond in executory proceedings, at a.sum less than that required by-Art. 575 O. P., rescinded •the order of appeal, this court said.: “ Tp suspend the execution of a judgment for a specific amount, whether it be an order of seizure and sale or.an ordinary judgment, the appeal bond must conform to 575 O. P. (20 An. 179). If the appellant fails to furnish such a bond, within the legal delays, the appellee has the right to proceed with the execution notwithstanding the'appeal. (C. P. 578; 8 R. 186; 5 La. 129; 5 An. 360; 12 An. 175.)’ * . * * Whether that part of the order fixing the amount of the bond in a sum less than that required by law for suspensive appeals was rescinded or not, the appellee was entitled to proceed with the execution of the order of seizure and sale.”

• In the case of State ex rel. Gill vs. Judge, 34 An. 90, this court said that the jurisprudence seems to be now firmly settled that it is only after a suspensive appeal has been obtained and perfected that the 'lower court ceases to have further jurisdiction over the case,, and that the door has always been wisely left open for the determination by the court of the first instance of the question whether the judgment suspensively appealed from shall not be executed, either because the case is unappealable, or because no bond has been furnished, or because that furnished is insufficient or because the surety does not possess the required qualifications. See the authorities cited in the case referred to.

In the same case this court distinctly said: “ Whex*e such bond (i. e. a bond for a suspensive appeal) is insufficient an appellee has two remedies, either to move for a dismissal of the appeal in the appellate court, or for the execution of the judgment appealed from in the court of the first instance. Where he resorts to the first remedy the matter becomes finally adjudicated upon by the superior tribunal. Where he employs the, second remedy the action of the inferior court is revisable either on appeal, or on application for remedial process.”

In the instant case the relators, who are the plaintiffs in the executory proceedings, have elected to apply for remedial process.

The learned counsel for the respondent judge pretermit in their brief the discussion of the question whether the bond is an amount sufficient to sustain a suspensive appeal, and their efforts are devoted to the task of showing that this is not a case in which the relief asked for by relators can be granted to them under their application for remedial process. Relators have applied for writs of certiorari and mandamus. They could not have asked for the writ of prohibition under their theory that the matter complained of is still in the lower court.

If the contention of the counsel for the respondent judge be correct, it would seem that the matter presented would be one beyond the reach of any remedial process from this court. But we need not, in order to decide the issues presented, determine whether we have the power, under proceedings such as these, to order the undoing of unlawful acts. It would seem clear, however, that if a judge does an act which is void in law his subsequent affirmance of the void act amounts to naught.

In this case the district judge fixed the amount of the appeal bond in a sum which the law declares to be insufficient to sustain a suspensive appeal. His act was void for the purpose intended. Subsequently, after hearing the parties, he did not affirm his action, bat simply declined to act, under the mistaken belief that the matter was no longer before him. In this he clearly erred. The matter was before him. On having the insufficiency of the bond called to his attention, he should have dismissed the suspensive appeal. The matter did not involve any exercise of judicial discretion. The failure of the defendants in the executory proceedings to furnish a bond sufficient to sustain a suspensive appeal, invested the relators with the legal right to an execution, of which they can not be deprived, under the circumstances of this case, without a denial of justice.

The two cases mainly relied on by the counsel for the respondent judge in no wise conflict with our views as herein expressed.

In the case of State ex rel. Dodeman vs. Judge, 14 An. 60, the relator sought to have the writ of mandamus issue to compel the judge of the lower court to rescind an order for a suspensive appeal, from a judgment which the relator contended had been rendered on the judicial admissions and confessions of the appellant, and which judgment the relator claimed was therefore unappealable. That ease involved a matter of judgment and opinion which this court said could well await decision on the appeal which had been taken to this court.

In the case of State ex rel. Forsythe & Robertson vs. Judge, 42 An. 1104, this court refused to compel the lower judge to rescind an order for a suspensive appeal, because he had not in any of the proceedings transcended the bounds of his jurisdiction or of judicial power.

The relators are clearly entitled to the relief they have applied for.

It is therefore ordered that the appeal bond in this case is hereby declared to be insufficient, null and void for the purpose of sustaining the suspensive appeal from the order of seizure and sale issued in this case. It is further ordered that the judge of the Nineteenth Judicial District Court try anew, according to law, the rule taken by the relators to obtain the dismissal of said suspensive appeal; and the writ of mandamus herein is hereby made peremptory!

Rehearing refused.


text:
    No. 11,371.
    The State of Louisiana vs. Anatole Price.
    1. Section 790 R. S., as amended by Act 24 of 1882; Section 791 R. S., as amended by Act 43 of 1890, and Act 44 of 1890, are harmonious parts of one subject of criminal punishment.

      2. The offences denounced by Act 44 of 1890 are contained in Act 43 of 1890, and the offences denounced by the latter are contained in Sec. 790 R. S.
    3. An information properly drawn under Sec. 790 R. S. contains accusations under all three of said statutes, to wit: See, 790 R. S., Sec. 791 R. S. and Act 44 of 1890.
    4. A verdict under See. 793, R. S. is not responsive to an accusation under any one of said three statutes.
    PPEAL from the Nineteenth District Court, Parish of Iberia. Voorhies, J.

      John R. Land, District Attorney, for the State, Appellee.

      Chas. Fontelieu for Defendant and Appellant.
   The opinion of the court was delivered by

Parlange, J.

The defendant is prosecuted under Sec. 790 Revised Statutes for the capital crime of striking a person with a dangerous weapon, to-wit: a club, while lying in wait, with intent to kill and murder.

The district judge charged the jury that they might find the following verdicts: 1. Guilty. 2. Guilty without capital punishment. 3. Guilty under Sec. 791 R. S., as amended by Act 43 of 1890,. 4. Not guilty.

The defendant asked the further charge, which was refused, that verdicts might be found under anyone of the following statutes: 1. Act 44 of 1890. 2. Sec. 793 R. S. 3. Sec. 796 R. S.

The jury found a verdict under Act 43 of 1890; the defendant was sentenced and he has appealed.

The question to be decided is whether the defendant was entitled to the additional charge which he asked, the most serious part of his complaint being whether in a prosecution under Sec. 790, verdicts under three statutes are responsive, to-wit: Sec- 790 as amended by Act 24 of 1882; Sec. 791 as amended by Act 43 of 1890; and Act 44 of 1890.

It is impossible to consider those three statutes conjointly without reaching the conclusion that they deal with one and the same subject matter, to-wit: the offences of shooting, stabbing, cutting, striking and thrusting with a dangerous weapon, with criminal intent to take life, under circumstances of varying aggravation.

The denunciatory parts of the three statutes read as follows:

Sec. 790 as amended by Act 24 of 1882: “If any person, lying in wait, or in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall shoot, stab, cut, strike or thrust any person with a dangerous weapon, with the intent to commit the crime of murder, he shall,” etc.

Sec. 791 as amended by Act. 43 of 1890: “Whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon, with intent to commit murder, under any other circumstances than those mentioned in the preceding section, shall,” etc.

Act 44 of 1890: “Whoever shall shoot, stab, cut, strike or thrust any person with a dangerous weapon, with intent to kill, shall,” etc.

Section 790 deals with that part of the subject matter which de-' nounces and punishes the most aggravated of those offences; Sec. 791 as amended deals with the offences when accompanied by less aggravation, and finally, Act 44 of 1890 deals with the offences in their least aggravated form.

For instance, shooting with intent to murder, while lying in wait, is a capital crime under Sec. 790. Without the aggravation of lying in wait, the offence falls under Sec. 791, the extreme penalty of which is twenty-one years’ imprisonment at hard labor; and when from this second offence the element of ,a murderous intent is eliminated and the intent to kill is substituted, a third offence remains, the least aggravated of the three, which is defined by Act 44 of 1890 and the maximum penalty of which is three years’ imprisonment with or without hard labor.

Acts 43 and 44 of 1890 were passed almost concurrently by the General Assembly. Act 43 of 1890 amended Sec. 791 so as to make the language of this section coincide exactly with that of Act 44 of 1890 as regards the substantive criminal acts of shooting, stabbing, cutting, etc., denounced by the latter. The same verbal change which Act 43 of 1890 effected in Sec. 791 hadbeen previously effected in Sec. 790 by Act 24 of 1882.

The verbal similarity of the three statutes as they now stand, intentionally brought about by amendatory acts, and the adjustment of the penalties in proportion to guilt, clearly show that the law-: maker intended to make them and did make them harmonious parts of one subject of criminal punishment.

In Wilson’s case, 39 An. 204, this-court, speaking of Secs. 790 and 791, said: “ For the purposes of prosecution the indictment needed not to be framed under the first section to secure conviction under the second section; for the same reason that, on an indictment for murder, a verdict of manslaughter can be legally found and returned. The two sections may be treated as one and the same law, justifying a verdict under either the first or the second section, the moment that the jury find a state of facts under either.” To the same effect was the decision in Evans’ case, 40. An. 216.

Manifestly, Act 44 of 1890 was passed for the purpose of dealing further -with the subject matter of Secs. 790 and 791. It is clear that the offences denounced by Act 44 of 1890 are contained in those denounced by Sec. 791; that the offences denounced by the latter are contained in those denounced by Sec. 790, and that an indictment under Sec. 790 contains charges under the two other statutes.

The cases cited by the District Attorney in his brief (Hendricks’ case, 38 An. 682, and Allen’s case, 40 An. 201) were decided before the passage of Act 44 of 1890.

The defendant was therefore clearly entitled to the charge that in a prosecution under Sec. 790 the jury may find a verdict under Act 44 of 1890, and the refusal to so charge was prejudicial error.

So far as Sec. 793 is concerned, this court held in State vs. Allen, 40 An. 200, that a verdict under that section was not responsive to a charge made under Sec. 791, and the intimate connection between Secs. 790 and 791 and Act 44 of 1890 has been shown. See, also, State vs. Benjamin, recently decided at Shreveport. The jury therefore could not lawfully have returned a verdict under Sec. 793.

As to Sec. 796, the indictment includes and sufficiently charges an assault and battery and the defendant was entitled to have the jury charged that they could return a verdict under that section.

Defendant further complains that the court did not grant one of the counsel appointed to him sufficient time to prepare for the trial; but it is unnecessary for us to pass upon this ground of complaint, as prejudicial error has already been found.

It is therefore ordered that the verdict and sentence in this case be set aside; that the judgment appealed from be avoided and reversed; that this case be remanded to the lower court to be proceeded with according to law, and that the defendant remain in custody subject to the further orders of the Nineteenth Judicial District Court for the parish of Iberia.