author: Breaux, J.

text:
    No. 1458.
    State of Louisiana vs. E. R. Taylor.
    The defendant was indicted for forgery.
    He signed the names of a number of drawers to a note, and signed an addendum to the note that he was their authorized agent.
    In a prosecution for forgery the defendant can not be convicted of haying falsely assumed to act as agent.
    The instrument appears on its face to have been executed by an authorized agent, the defendant; an apparent agent is not guilty of forgery though he had no authority in fact.
    APPEAL from the Tenth Judicial District Court, Parish of Natchitoches. Andrews, J.

      Phanor Breazeale, District Attorney, for the State, Appellant.

      Pierson & Porter Attorneys for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for forgery. The note he is charged with having forged reads:

“$69.38. On or by the 16th day of November next, we, or either of us, promise to pay J. P. Readhiner, or bearer, the sum of sixty-nine dollars and thirty-eight cents for value received of him, bearing eight per cent, from date till paid.
“This, February 3, 1890: Henry Weber, Boston Thomas, Adolphus Taylor, Mason Ray, MatBeavers, Jr., Mat Beavers, Sr., Anderson Forley, Joe Forley, Jr., E. R. Taylor, J. R. Weaver.
“I was authorized to sign the above names. I secured the order.
“ E. R. Taylor.”

He moved to quash the indictment, on the ground that the facts charged do not constitute the crime of forgery.

This motion was sustained by the District Court.

From the order quashing the indictment the State appealed.

Without brief or oral argument the appeal was submitted for decision.

The defendant is charged with having made an instrument purporting to be a note signed by a number of persons.

The facts, as charged, are that he executed an instrument purporting on its face to be executed by him as agent.

Assuming that the facts are correctly charged, forgery is not the crime the defendant has committed.

Forgery is defined as the making or altering of a writing so as to make the alteration purport to be the act of another person.

This definition does not embrace the making of a note per procuration of the party whom he intends to represent. The false assumption of authority is not the forgery denounced by the statute, and by falsely assuming to act as agent the maker of the instrument does not make the alteration purport to be the act of another. It is his own unauthorized and wrongful act, and not the fraudulent falsifying of another’s name, as in forgery.

It was not a false making of another’s signature. It did not purport to be the signatures of the drawers personally, but their signatures as written by the defendant acting as an agent.

He did not personate others and fraudulently write their names, but stated on the face of the instrument that he was an authorized .agent. '

This did not constitute forgery, though he may have had no authority in fact.

The agency expressed takes the instrument out of the category of false making in the sense of forgery.

Mr. Wharton, in his works on Criminal Law, Vol. 1, p. 668, 8th Ed., says: “That to sign the name of another, without authority, is forgery when similitude is attempted. ’’

There was no attempt made to imitate the signatures of the drawers or to impose by attempting to create the impression that they had signed. To constitute the offence there must be some attempt made to imitate a genuine instrument and the writing falsely made must purport to be the writing of another.

These elements of forgery are not proved by the instrument copied in the indictment.

Erom Archbold’s, Vol. 11, p. 819, we quote as pertinent:

“ If a man draw, accept or endorse a bill of exchange in the name of another, without his authority, it is forgery. But if he sign it with his own name per procuration of the party whom he intends to represent, it is no forgery; it is no false making of the instrument, but merely a false assumption of anthority.”

Mr. Bishop, in his Criminal Law, Vol. 2, p. 582, is equally clear and positive that “endorsing a bill of exchange, under a false assumption of authority to indorse it per procuration is not forgery, there being no false making.”

The crime charged was false making and forgery.

The facts upon which the charge is based do. not support the indictment.

In fine, we are persuaded, after an examination of a number of authorities, that an instrument which shows on its face that the person signed as agent of the drawer of a note can not be the subject of forgery.

The act has not one of the essentials of the crime of forgery — a false writing of an instrument apparently genuine.

The falsehood, if there is falsehood, is in the agency, in omissions tp act as agent and not in forging- an instrument.

.It is therefore ordered, adjudged and decreed .that, the judgment appealed from quashing the indictment be affirmed.


source: Caselaw Access Project

author: Breaux, J. Miller, J. Breaux, J.

license: Public Domain

text:
    No. 1472.
    Joseph Bloch vs. His Creditors.
    When the Verdict is defective in point of form, because it does‘not-expressly pass upon the plaintiffs’ claim, but on fhe reeonventional demand for a sum, that presumably was found for defendant after having considered plaintiffs’ demand, the case will not be remanded by this court, who will render such judgment as should have been rendered by the jury.
    The plaintiffs, third persons, and holders of a draft before maturity, are not bound by the acts of their transferrors after the transfer.
    The intent to defraud must be established to justify an attachment.
    The attachment was not actuated by malice. Only actual damages are allowed.
    The rule to annul the respite is dismissed, reserving to the plaintiff his rights in further proceedings to be instituted under the judgment.
    Defendant’s reeonventional demand being offset by the main action, and a judgment recovered by plaintiff for a balance proved; judgment includes costs.
    A PPEAL from the Thirteenth Judicial District Court, Parish of St. *1 Landry. Perrault, J.

      Thos. H. Lewis and Estilette & Dupre Attorneys for Plaintiffs and Appellants.

      B. L. Garland, O. E. Garland and Kenneth Baillio 'Attorneys for Defendants and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The St. Louis National Bank, a creditor of the defendant, sued him on 7th March, 1890, for the sum of twelve hundred- and seventeen dollars and ninety-seven cents and interest. .

As a basis for a writ of attachment the plaintiff bank alleged that-the defendant had suspended payment' and was in failing circumstances ; that he continued from day to day to sell his goods for cash, and to collect amounts due him, to place it beyond the reach of his creditors; that in order to gain time and deceive his creditors he issued a circular to them, exaggerating the quantity and value of his assets, and asking for an extension within which to pay, well-knowing that it was impossible for him to pay with his visible assets,' and that he was aware that the delay would not be granted because he made his proposition conditional upon the unanimous acceptance-by all of his creditors, a remote contingency, creating the belief that his circular was a mere-subterfuge to stand off his creditors while he was turning his goods into cash in order to defraud-them.

■ The plaintiff further alleged that the defendant • had failed to all intents and purposes, and would have made a cession of his property if-he had intended'dealing fairly; that he had failed several' times and settled his liability at heafy discount.

In his answer the defendant claimed to have settled his indebtedness by giving a draft to the plaintiff in satisfaction of the draft the plaintiff held.

With reference to the attachment, he denied the truth of plaintiff’s allegations; he also denied his alleged insolvency, though admitting temporary embarrassment, and specially alleged that since January, 1890, he had been negotiating with his creditors for an extension of time, and had secured the consent of over three-fourths in number and amount, to such extension; he specially denied making use of such delay to defraud his creditors, or having made false or unfair statements to them, and averred that he had conducted his business in the usual manner, saving that he suspended payments temporarily while waiting the answer of his creditors to his application for extension.

He charges that the attachment was wanton, malicious, and without probable cause, and reconvenes for damages in the sum of thirty-nine thousand and thirty-seven dollars and forty-one cents.

Subsequently the defendant, Bloch, obtained a respite of one, two and three years.

His schedule of assets and liabilities, upon which he obtained the respite, was filed June 16, 1890.

The plaintiff, in the respite proceedings, required of the defendant, Bloch, the execution of a bond and security for its claim.

The bond having been executed and instalment matured, the plaintiff sued out a rule upon the defendant to show cause why the respite should not be set aside and annulled, because of the nonpayment of the bond.

In this answer, to this rule, the defendant denies his indebtedness and avers that the plaintiff bank owes him a large sum, for which he had instituted suit.

On his motion the two suits, the respite proceedings and the suit of the plaintiff bank, against him, were consolidated.

The case was tried by jury. They returned a verdict for the defendant for seven thousand dollars. The plaintiff appeals. It is in place to state that, preliminarily, before this court, the plaintiff bank complains of the form of the verdict and judgment and asks that the case be remanded for another trial for the reason that the verdict is not responsive to the pleadings, not having passed upon the merits. Plaintiff invokes the article of the Code of Practice in which it is laid down that the jury should pass, at one and the same time, upon the main and reconventional demands.

The jury has not in terms rejected plaintiff’s demand.

Either they rejected plaintiff’s demand entirely, or they compensated the two claims and rendered judgment for the balance they found due to the defendant.

This question was considered in Miller, Lyon & Oo. vs. Oeppel et al., 39 An. 882, and the court held that, being in possession of all the facts and evidence necessary to pronounce judgment in the case, it would proceed to render such judgment as should have been rendered in the court below, regardless of the defective verdict.

The same principle was laid down recently in State of Louisiana vs. Cannon, Sheriff, 44 An. 734.

The verdict of the jury expresses a balance due, and, from the conclusion reached, it was useless for them to pass upon the application to annul and set aside the respite.

Manifestly the jury found that there was no ground to annul and set it aside, the order of respite having determined that the plaintiff was not entitled to anything, and therefore without concern in the respite proceedings, not being, from their point of view, entitled to anything.

This conclusion brings us to the consideration of plaintiff’s claim; as it was never seriously disputed by the defendant, and is supported by the evidence, it must be pronounced due.

Without denying the indebtedness, the defendant urged that it had changed form and secured him some delay for payment.

This draft was drawn by the Freeman Wire and Iron Company, of St. Louis, upon defendant Bloch, and it was by him accepted.

At maturity it was sent to Opelousas for collection. The acceptor, the defendant contends, settled this indebtedness by giving another drain in payment in accordance with an agreement with the Freeman Wire and Iron Company.

This company had transferred the first and accepted draft to the plaintiff for valid consideration. No agreement of these parties — i. e., between Freeman Wire and Iron Company and the defendant, could affect their (plaintiffs’) interest, as they were the holders and owners in good faith, prior to maturity.

The draft had passed out of the hands of the payees, and was legally held by the plaintiffs.

THE DISSOLVED ATTACHMENT.

The plaintiffs contends that the facts sustain their writ of attachment. The defendant with much earnestness and emphasis denies the charges upon which the writ is based, and controverts plaintiffs’ inferences regarding certain business transactions of the defendant.

The balance of the evidence regarding the insolvency alleged support the conclusion that the defendant was not insolvent at the time that the attachment issued; his embarrassment as a debtor was not the less great, and rendered it impossible for him to meet his maturing obligations.

The attempted suspension of payment and the written notice addressed to each creditor informing him, a few weeks prior to the attachment, that short crops and other causes stated occasioned him to' sustain heavy losses in his sales of merchandise, his collections and in his purchases of rice, and that while he had ample means in property enumerated he was compelled, with great reluctance, to suspend payment for the present and ask indulgence, and the proposal to pay in three stated instalments if all his creditors would agree, was not, of itself, a fraud upon his creditors. It was not binding upon the creditors, and was merely a request for delay.

It is probable that it seriously affected his credit and proved highly damaging to his business, but it was not a ground for attachment; unconnected with other acts showing a design to enrich himself at the 'expense of his creditors, it does not give rise-to the inference that a wrong was intended justifying a writ of attachment. There is no evidence showing that the defendant was at any time prior to the attachment, and at the date of the notice to the creditors, selling his goods at or below cost.

We will not dwell upon the acts of the embarrassed debtor, who iri his nervous anxiety to escape from ruin' and want, Commits indiscretion and suffers losses cool reflection will avoid.

If these acts preceding "the attachment stand alone, unconnected with any subsequent agreement or attempts to take undue advantage of creditors, they do not of themselves support an attachment. They will only have contributed to defendant’s loss and damage without, so far as the evidence discloses, giving good ground for an attachment'. •

Our attention has been arrested by* the report' of a Committee; bearing date March 22, 1890, recommending a settlement with the defendant at fifty cents on the dollar, cash.

This of itself has no special significance. Creditors generously abandon a part of their claims in order that the unfortunate debtor may free himself from a part of his indebtedness and be enabled to pay the remainder and uphold a place among merchants.

It is urged that there were favored creditors who were paid in full, though they had signed an agreement to receive only half in satisfaction of their claims, while others less fortunate received only fifty cents on the dollar, ostensibly the proposition to all, but from the effects of which the favored were excluded sub umbra, for the bene,- ■ fit of their influence in carrying out the compromise.

The determination of the issues on this point has been attended with some difficulty, it being established that such payments were made and color thereby given for the charge.

Our examination convinces us that the balance of the evidence is in favor of the position that there was no downright unfair dealing. ,

We have already seen that the defendant made an application for an extension of time prior to the attachment. At a meeting of his . creditors held after the attachment had been made to consider his . application he explained the condition of his business, and gave an ■’ account of his assets and liabilities. He represented himself as being solvent. His statements at the meeting are commented upon by the witnesses as having been fair and truthful.

A committee of creditors appointed by the creditors at a subsequent meeting made a report, and advised a compromise at fifty cents on the dollar in lieu of an extension. This recommendation was favorably received. For reasons not fully explained this compromise was not carried out, and the debtor resorted to other measures to settle his financial difficulties. He applied to the courts and obtained a respite. The records do not disclose that the debtor took any part or made any suggestion to influence the creditors. They, through their committee, made the offer, which was, it seems, accepted, but for some reasons, of which no one at the , time com- , plained, it was abandoned.

Subsequently the debtor, owing doubtless to the respite and the unsettled condition of his affairs, succeeded in. paying a number of claims at a discount. The proof is that these payments were made, without reference to the agreement entered into at the meeting of creditors; it appears that many creditors preferred the cash, while others trusted to the ultimate ability of the defendant to pay the whole amount of their claims.

Beyond the fact that certain creditors were paid less than the face value of their claims, there is no evidence that advantage was taken. In the absence of testimony, we will not assume that these creditors were controlled by improper influences and representations in the face of the positive uneontradicted declaration of a number of witnesses to the contrary.

The verdict of the jury and the judgment of the court dissolving the attachment were, therefore, correctly rendered and will remain undisturbed.

DAMAGES.

The reconventional demand presents serious grounds for determination. The defendant has filed a large claim for damages, which met the jury’s favorable consideration, to an amount to which we can not give our approval.

We must consider, in determining the question of damages, that the defendant announced to his creditors that he had suspended payment, and at the same time continued to sell his goods and realize from his sales in business. These acts are entirely unusual and extraordinarily exceptional.

He applied for an extension of time to pay.

This was followed by meetings, at which it was determined to accept fifty cents on the dollar on his indebtedness.

Respite proceedings were resorted to and a respite obtained on an order of court.

In defence of other suits instituted about the same time, in which attachments were levied, these large claims for damages were abandoned for very limited consideration.

In one of these cases plaintiff’s claim was small — some two hundred and fifty dollars.

The defendant in his reconventional demand prayed for the damages he claims in this suit. Subsequently a compromise was effected, in which he abandoned his claim for damages on plaintiffs’ receipt for the amount of his claim.

These large claims for damages are based principally on defendants alleged loss of credit and confidence, occasioned by plaintiff’s-attachment proceedings.

We do not feel certain that they are the cause or that they materially contributed to defendant’s loss of credit and business.

His own acts seriously affected his business to a degree rendering it impossible to find damages to his credit and standing from other causes. We must eliminate from the demand in reconvention all claims based on alleged loss of credit or loss of business.

They are hypothetical at best and not the immediate consequence of the attachment. We do not trace them with sufficient certainty to ground a judgment.

Assessing only actual damages arising directly from the attachment, we think that the defendant has a right to counsel fee for dissolving the attachment. A practising member of the bar testified that two hundred and fifty dollars would be a fair compensation. No good reason suggests itself to disregard this estimate.

The defendant claims for loss and deterioration in his goods, while under seizure, the sum of six hundred and twenty-three dollars and four cents. This item is supported by testimony, and he is justly entitled to the amount.

This ends the list of damages allowed. We can not reconcile ourselves to the assessment of a larger amount for annoyances, trouble, worry, mortification, injury to feelings, for loss in sale of goods, and profits. They are problematical and unusually uncertain in this case as elements of damages chargeable to plaintiff.

With reference to the rule to set aside the respite, consolidated with the principal case, the changes that have taken place in this protracted litigation require that the question be not finally decided at this time and in the suit at bar.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that plaintiff recover judgment against the defendant for the sum of twelve hundred and seventeen dollars and ninety-seven cents, with eight per cent per annum from the 24th of February, 1890, until paid.

It is further ordered, adjudged and decreed that defendant have judgment on his reconventional demand against the plaintiff in the sum of eight hundred and seventy-three dollars and four cents, with legal interest from date of this judgment.

The defendant to pay costs.

It is further ordered, adjudged and decreed that the writ of attachment be dissolved and set aside, the costs of attachment and of seizure under the attachment to be paid by plaintiff.

It is further ordered, adjudged and decreed that the rule upon the defendant to show cause why the respite of one, two and three years granted by his creditors should not be set aside and annulled because of non-payment of the bond be dismissed as in case of non-suit at cost of plaintiff in rule.

The defendant and appellee to pay the costs of appeal.

On Application for Rehearing.

Miller, J.

The argument on the part of the plaintiff in support of the attachment is in great part addressed to the suspension of payment of the debtor, which, with other circumstances, is supposed to afford a basis for the attachment. Nothing is better settled than that attachments are stricti juris. Until the act of 1868 the causes to authorize the writ were restricted to non-resident debtors, or the ' debtor about to absent himself permanently, or concealing himself to avoid citation. The act of 1868, now part of Art. 240, C. P., supplied the causes for the writ when the debtor has mortgaged, assigned or disposed of his property, or is about to mortgage, assign, or dispose of his property with intent to defraud creditors, or give unfair preferences, or when he has converted or is about to convert his property into money or evidences of debt with intent to place it beyond the reach of his creditors. The affidavit in this case for the attachment was made under that portion of the article embodied in it from the act of 1868, substantially charging the defendant with converting his property into cash with the design of defrauding his creditors. The prominent question in the case, of course, is as to the right to attach.

It is to be accepted that while the affidavit calls on the defendant for some prima facie proof to negative the fraudulent design to him, whenever that proof is given the burden is on plaintiff to sustain the affidavit. 9 Rob. 90. There is another rule equally well settled in the administration of the proof required of the plaintiff in support ■of the burden the law casts on him. He must refer to the state of facts existing when he issues the writ, for it is on the then existing condition the creditor bases his affidavit. Now, with these rules in view, on what basis did this writ issue? The debtor had suspended payment, announced his inability to pay his debts and solicited an extension of time. He continued his business and was selling in the usual course. If to this is added the circumstance that he had ordered and received the plaintiff’s merchandise about a month before his proposition to his creditors, and the fact that his proposition for an extension was conditioned on the acceptance of all his creditors to be binding on any, we have the condition of facts on which plaintiffs based their oath that defendant was fraudulently converting his property. It is true that on this branch of the case we have supplemented the discussions in plaintiff’s brief of asserted dishonest failures of the defendant years ago, which it can hardly be seriously contended can afford any aid in the solution of the question before us.

As we appreciate the argument of plaintiff’s counsel, it is substantially that a debtor’s announced failure to pay, with his actual suspension and the continued sale of his goods without any surrender of his property, authorizes an attachment of his property. This argument might have weight addressed to' the legislative department, but surely can not prevail with the court charged only with the application of the laws on the statute book. It said that suspension is failure in the ordinary and legal sende, yet failure wherever it occurs in the Code means a surrender. See elaborate discussions in Citizens Bank vs. Seixas, Syndic, 38 An. 424. Again it is urged that under the Code of Practice one who has petitioned for stay of proceedings and a meeting of his creditors may be subjected to the writ of sequestration when it is feared that availing of the stay he will place his property beyond the reach of his creditors. But defendant did not apply for the benefit of the insolvent laws, and because the law authorizes a sequestration in the given ease it does not sanction an attachment in the case here. The law in the case of the debtor who suspends payment of his debts, but does not surrender his property, leaves his creditors the usual remedy of suit, judgment and execution, or the remedy to compel a surrender .and an attachment if the debtor commits any of the acts of fraud specified in the Code. We can not, therefore, assent to the proposition that suspension of payment is failure in the sense of the Code, or that failure merely, whether in the legal or popular sense, authorizes the writ of attachment; or that suspension, not followed by a surrender, the debtor proposing a compromise not acceded to and continuing his business as usual, affords a basis for the writ. The attachment is permitted only when there are the specific acts of fraud or manifesting the fraudulent intent expressed in the act of 1868. Our courts have constantly held that attachments of this character must have the basis of some act of the debtor, clearly bringing him within the scope of this statute of 1868 enlarging our law of attachments. If we were to hold that a suspension of payment not followed by a surrender, the debtor continuing his business and selling his goods with all the qualifications suggested in plaintiff’s argument, authorized an attachment, in our view it would be at variance with the jurisprudence that attachments are strieti juris, and when questioned must be brought clearly within the statute. Suspension of payment with all the circumstances stated is not equivalent to the debtor converting his property with fraudulent intent, and to so hold would be in our view to give an unwarranted construction to a statute specific and limited in its terms. We have given the plaintiff’s case consideration in all its aspects, due to its importance and the ability with which it has been presented, but are constrained to hold there was no basis for the attachment. 24 An. 82, 484; 26 An. 258, 641; 30 An. 394; 32 An. 340.

On the part of defendant we are asked to give a rehearing and increase the damages. On this branch of the case we are confronted with our fixed jurisprudence restricting damages in cases of the dissolution of attachments There is a disposition of debtors in such cases to overestimate their injury. This ease we think furnishes an example. The attachment was for a debt of twelve hundred dollars against debtors possessed, according to their statement, of large means, but temporarily embarrassed. There was no attempt to bond. Mercantile credit is apt to be affected by a circular announcing inability of the merchant to pay his debts. We find it difficult to appreciate that the debtor, being already in a condition of declared inability to meet his engagements, could be injured appreciably by an attachment for a comparatively small amount. It is claimed here that the issue of this writ and seizure under it caused damages to the amount of thirty-seven thousand dollars, made up mainly of supposed injury to credit, and worry and annoyance caused the debtor. Wó are not impressed with this theory of damage. The law has wisely in this class of cases excluded from recovery as damages injury to feeling and supposed wrongs to credit, unless malice is proved. The law will not mulct in damages one who sues without cause, but at the same time without malice. It applies the same rule in cases 'of dissolution of attachments, and, unless malice is proved, refuses all except actual damages, usually understood to be attorney’s fee for dissolving the attachment and injury to the property attached. In this case we can find no basis to attribute to the creditor a malicious motive in suing out his attachment. He could gain nothing by an abortive attachment. He acted under the advice of experienced counsel, who relied on that construction of our attachment laws he has endeavored to sustain before us. There was, we think, no malice. Our judgment allows two hundred and fifty dollars for dissolving an attachment for twelve hundred dollars, and all that we think can be claimed as actual damages. See 13 An. 440; 20 An. 66; 28 An. 592.

We are constrained to adhere to our judgment in this case.

On Application for Rehearing.

Breaux, J.

The attachment was dissolved at plaintiff’s costs; all the costs in the attachment are due by plaintiff.

In matter of the reconvention, the costs are taxed on the defendant Bloch.

The defendant pleaded his claim for damages in the suit at bar, to be decided in one judgment.

“ They are due to him in favor of whom the judgment has been rendered.” O. P. 157.

Had the defendant obtained a judgment for a larger amount than plaintiff, the latter would have had to pay costs.

The plaintiff having obtained a judgment for a larger amount, costs follow the judgment.

It is admitted by plaintiff and defendant, and it is of record, that the sum of four hundred and twenty-six dollars and thirty cents was paid by the defendant to the plaintiff on the 8th day of September, 1891, and to that amount the judgment rendered is entitled to credit as of that date paid, and this is made part of our original decree, and credit is duly given.

Rehearing refused.


text:
    No. 1477.
    State of Louisiana vs. Wm. Cady.
    Discretion or Trial Judges.
    Ordinarily an accused, can not demand as a right to examine witnesses to rebut the testimony given in rebuttal by the State. The discretion in excluding the testimony was properly exercised.
    A witness was contradicted regarding the hour of the night the crime was committed, in‘the matter of an alibi averred. Another witness was called to corroborate this witness, in respect to the hour.
    Proor in Corroboration not Admissible.
    Proof of former consistent statements is inadmissible to sustain a witness who has been impeached by proof of former inconsistent statements, except his testimony is charged to have been given under the influence of some improper or interested motive, or to be a recent fabrication, i. e., where the counsel on the other side impute to the witness a design to misrepresent from some motive of interest or relationship, in which case, in order to repel such imputation, it is proper to show that the witness made a similar statement at a time when the supposed motive did not exist, and the eflect of such statement could not be foreseen. ttapalje Crim. Procedure.
    The question involved did not fall within the exception, and there was no ground upon which to admit the testimony.
    Alleged Misconduct.
    The harmless utterances of a thoughtless deputy sheriff, in charge of a jury, are not sufficient cause to annul the verdict.
    APPEAL from the Eleventh Judicial District Court, Parish of Acadia. Perrault, J.

      E. B. Eubuisson, District Attorney, for the State:
    Where a witness has been impeached by showing that he made statements out of court contradictory or inconsistent with those made by him under oath at the trial, the party calling him can not sustain him by showing that he made statements in harmony with his sworn testimony. Oonrad vs. Griffey, 11 Howard, 480; 1 Greenleaf on Evidence, Sec. 469; 1 Wharton, Law of Evidence, Sec. 570 and note 3; Rapalje Or. Pr., Sec. 316; Stephen’s Digest Law of Evidence, p. 180; Pothieron Obligations, pp. 246, 347.
    Especially is this the case where the consistent is subsequent to the contradictory statement. 11 Howard, 480.

      An exception is where a witness has been shown to have had a motive to testify falsely; he may be shown to have made statements consistent with his testimony when the motive did not exist, but this case does not fall within the exception.
    A party is not entitled to a new trial because of communications made to the jury by the officer having them in charge unless in- ■ jury is shown to have resulted, or the communication is of such a nature that injury may fairly be presumed. State vs. Bradley, 6 An. 560; State vs. Kennedy, 8 R. 590; State vs. Summers, 4 An. 26; State vs. Caulfield, 23 An. 148; Thompson and Merriam on Juries, Sec. 362; Am. and Eng.. Ency. of Law, Yol. 16, p. 530, note 7.

      E. P. Veazie and Chas. W. DuRoy Attorneys for Defendant and Appellant :
    Where evidence has been offered tending to show bias, improper motive or recent fabrication on the part of a witness, calculated to account for the testimony given, prior similar statements made before such bias or motive could have actuated the witness may be given on redirect examination, or in rebuttal.' Best’s Principles of Evidence, p. 633.
    Communications made to a jury, while deliberating, by the officer in charge, will vitiate the verdict when they are of such a nature as to create a suspicion that the verdict was thereby improperly influenced.
    Such an irregularity is sufficient to vitiate a verdict, unless it appears beyond all reasonable doubt that no injury could have resulted from it to the defendant. Thompson and Merriam on Juries, p. 432.
   The opinion of the court was delivered by

Breaux, J.

The defendants were placed upon their trial for burglary and larceny. One was acquitted; the other, Cady, was convicted and sentenced to the penitentiary during five years.

The case comes before us on appeal on bills of exception and a motion for a new trial.

Prom the first bill we gather that the prosecutor and the other witnesses for the State, by their testimony, fixed the hour of the burglary charged as having taken place between 9 and 10 o’clock.

The defendant sets up an alibi as his defence.

The witness for the defendant (his uncle), to prove the alibi, testified in chief that his dwelling is eight miles from the house where the burglary charged was committed, and he stated that on the night it is alleged the crime was committed the accused came to witness' house at 10 o’clock.

The defendant having announced that his case was closed, the District Attorney, in rebuttal, called two sons of the prosecuting witness, who testified that shortly after the commission of the alleged crime the witness just mentioned had stated in their presence and hearing that the defendant came to his house on the night of the alleged burglary and larceny at the hour of 11 o’clock.

The State closed its case in rebuttal. The defendant in sur-rebuttal of the testimony of the two sons of the prosecuting witness as to statements made by the uncle of the accused, as a witness, to show that this uncle was not biased, his testimony not a fabrication and that his motives were not improper, called two witnesses who had not previously testified, to prove that at or about the time stated by the two sons of the prosecuting witness, when no reason suggested bias or improper motive, the witness for the State made statements to them consistent with his examination in chief on the trial regarding the hour the defendant came to his home on the night of the alleged crime.

This evidence was excluded from the jury’s consideration by the trial judge on the ground that the testimony was not timely offered; that the evidence in chief for the defence had been closed, as was that of the State in rebuttal; that the defendant could not claim as a right the introduction of evidence in sur-rebuttal, it being a matter entirely within the court’s discretion.

Second — If the defendant had the right it could only be introduced as testimony in chief after an attempt on the part of the State to impeach the testimony of defendant’s witness by cross-examination, and not in sur-rebuttal.

Third — That the purpose was not to prove the incorrectness of the statement of the Dupont brothers, two sons of the prosecuting witness, but to show statements by Dubose, defendant’s witness, to the offered witness, whose testimony was excluded, at a time subsequent to the declarations made by him (Dubose) to the Duponts.

The trial judge adds that the testimony of the brothers Dupont was admitted to prove that Dubose made, some time prior to testifying, a statement at variance from that made by him as a witness; that the defendant, not the State, chose to prove that this witness is the uncle of the defendant; and that the District Attorney did not, on the ground of relationship of the witness, impute to him a desire to falsify the facts.

We are, in this case, confronted with the diaagreements that frequently arise between court and counsel as to facts.

Doubtless counsel are entirely honorable in their statement and sincerely believe that the facts are as they represent. This is unquestioned. It is only a question of error vel non in this case.

The duty and responsibility resting upon the District Judge, his opportunity for noting the facts, warrant the conclusion that he has not erred. The difference has an important bearing.

With reference to the timely offer of testimony, the first ground relied upon by the trial judge in excluding the testimony in State vs. Gonsoulin, 38 An. 461, this court decided that the defendant could not, as a right, examine witnesses to rebut the testimony given in rebuttal by the State, save in cases of rare occurrence; that it was a privilege the court could legitimately refuse to grant.

The case at bar is not exceptional and such as would justify us in taking it out of the ordinary rule in the trial of criminal cases.

Leaving this point, satisfied that the discretion of the court a qua was not improperly exercised, we nevertheless take up the next ground, equally as conclusive. The principle is laid down in the books that where “ evidence has been offered to show bias, improper motive, or recent fabrication on the part of the witness, calculated to account for the testimony given prior to similar statements made before such bias or motive could have actuated the witness, may be given on redirect examination or in rebuttal. Best, Principles of Evidence, p. 633.

We have the positive statement of the District Court that no such evidence was offered.

The contradiction itself of the witness regarding the hour of defendant’s return to his home was shown — nothing more. Not the least attempt was made by the District Attorney to show “bias, improper motive or recent fabrication on the part of the witness.”

The defendant chose to prove that the witness is the uncle; a fact not commented upon or referred to on the trial.

The general credibility of the witness was not at issue, nor can doubt upon his veracity be considered as having been cast by defendant’s proof of the relationship existing between them. On proof of that fact, that is the relation existing, this court will not assume that it had a tendency to impute a motive to testify to an untruth.

This case is not within the grasp of the rule.

The defendant assumes that recent fabrication to prove an alibi was imputed and that his witness was discredited upon that imputation ; having thus assumed he argues by reference to the authorities sustaining the principle that where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that evidence should be rebutted.

Mr. Wharton says that when a witness is assailed on the ground that he narrated the facts differently on former occasions, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were in harmony with those made on the trial. Law of Evidence, p. 570.

In this case not only the testimony of^the witness was not assailed, but the defendant did not offer to impeach or contradict the testimony of the witnesses who testified that the statements (of his defendant’s witness Dubose) had not always been consistent with those made by him on the trial.

The second bill of exceptions is abandoned by the defendant. It is not referred to in the brief and presents no ground to set aside the verdict.

The last bill of exceptions taken sets forth the grounds urged for a new trial; that the deputy sheriff in charge of the jury said to them: “ You fellows had better go to work, for if you don’t decide this case soon the judge may lock you all up till next Saturday.”

It was not, as we understand from the bill of exceptions, a threat or an advice, or even a suggestion; it was only the purposeless utterance of a thoughtless officer. This utterance will not influence a body of reasonable men. It was meaningless and could have no influence upon their deliberations. It is manifest that these words, spoken under the circumstances narrated in the bill of exceptions, were not of such a nature that injury may be fairly presumed. It is. only upon that presumption that a verdict could be annulled.

The State vs. Summers, 4 An. 26; Thompson and Merriam, Sec. 362.

The defendant’s defence does not authorize us to grant him a new trial.

Judgment affirmed.


text:
    No. 1426.
    Clinton B. Andrus vs. His Creditors.
    1. Crops. — As soon as the crop is cut and the fruits are gathered they are movable, and are not part of the property sold, not having been included in the terms of sale of the property of the insolvent.
    2. Accounting por Certain Movables Postponed. — Property not sold, not charged to the syndic, for he may account for it in another account.
    3. Compensation op Guardians. — Fees of the custodians considered and amount fixed for labor and services, making unimportant amendments regarding these fees and costs.

      4. Fee op Attorney Due by Absent Creditors. — The attorney for absent creditors has no claim for fees against the mass of creditors; it must be paid on the-amount of the sums recovered for the account of the absent creditors.
    5. Mortgage. — In insolvency proceedings the mortgage creditor, for the benefit of other creditors, is not bound to look to other property also affected by his mortgage in the hands of third possessors. Every part of the property mortgaged is liable for the payment of the debt.
    6. Appeal in Contestation between Opposing Creditors. — The judgment rendered in a contestation between opposing creditors can not be disturbed on appeal, unless the party having an interest to maintain it, is made a party to the appeal.
    Application por a Ketiearing.
    In insolvent proceedings in the concurso eaeli creditor who thinlrs Iiimsolf aggrieved must appeal in order to have the judgment amended.
    APPEAL from the Eleventh Judicial District Court, Parish of St, Landry. Gullom, J., ad hoe.

      Kenneth Baillio Attorney for Syndic, Appellant.

      Ghas. F. Garland for Richard Keough, Opponent.

      Lucius G. Dupre Attorney for E. M. Boagni, Opponent.
   The opinion of the court was delivered by

Breaux, J.

The syndic filed a provisional account, to which a number of oppositions were filed.

These oppositions were tried in the District Court, and judgment rendered, homologating the account after passing upon the different oppositions.

The syndic, personally and as syndic, appeals. He furnished an appeal bond personally, and a bond of appeal as syndic.

His account was amended in the District Court by charging him with—

1. Fifty-two sacks of rice raised in 1892 ............................................. $74 40 And adding tilas sum to the crops accounted for in the tableau.

2. Two hundred and eighty-seven bushels of corn gathered in 1892.. 86 10

8.Stock Chopper............................................................................... 25 00

4. Grist Mill................................................................................... 75 00

6. Hay Rake ............................................................................ 10 00

7. Horse-carb and harness................................................................... 40 00

8. Two old wagons ........................................................................ G 00

9. One pair of edtton scales................................................................ 5 00

10. Wagon body..................................................................................... 4 00

11. Old bagging.................................................................................... 20 00

12. Corn-cob and cotton-seed crusher................................................ 35 00

He opposes these items amending his tableau, except the first, and appeals to have the judgment corrected in this respect.

He also opposes the amendment increasing the custodian fee of F. K. Bailey to one hundred and twenty dollars, and the judgment allowing Gumbel & Co. and other opponents an additional amount of one hundred and twenty-five dollars, costs incurred by them in the session proceedings of the insolvent Andrus; as also the sum of one hundred and twenty-eight dollars and twenty cents paid by them in the attachment suits against L. V. Major; he also objects to the amendment allowing a fee of eighty dollars to the attorney for absent creditors.

The foregoing are the claims the syndic contends should not be allowed, and he asks that the judgment appealed from be reversed in so far as it amends his account.

None of the creditors have appealed save V. & E. M. Boagni; as appellees they pray for an amendment of the judgment in their respective answers to the appeal.

In addition E. M. Boagni, as mortgage creditor of Andrus, insolvent, having, he alleges, a special mortgage for one sum of fifteen hundred dollars on a place known as “Home” and another special mortgage for six thousand three hundred dollars on all his real estate, opposes the rank given by Vincent Boagni to his own claims on his account as syndic. He moved for and perfected an appeal and is before this court as an appellant.

This opponent alleges ihat the syndic Boagni, personally, held a general mortgage bearing on all the immovable property of the insolvent.

He admits that his judgment was recorded prior to his (the opponent’s) special mortgage, and says that it would outrank his special mortgage were it not that Dr. Vincent Boagni released his general mortgage upon a tract of land which the insolvent had sold to John Moreshinscz prior to his surrender.

The opponent claims from Vincent Boagni the value of the mortgage upon which he released his general mortgage, on the ground that he has the right of requiring a discussion of other property embraced by the general mortgage, and a fortiori to the value of the property mortgage, but sold since, and the mortgage renounced by the debtor.

The property has been sold and the proceeds are applied on the account of the syndic to the payment of the general mortgage.

The tableau filed shows a balance due the special mortgage creditor of one thousand seven hundred and seventy-six dollars and ninety-three cents, for which he is classed as an ordinary creditor.

Bichard Keough is also an opponent and applies for an increase of the amount allowed him as custodian of the property of the insolvent.

S. Gumbel & Co., whose claim is carried on the tableau for the sum of one thousand six hundred and forty-nine dollars and eighty cents, aver in their answer to the appeal that the judgment of the lower court is erroneous because it does not allow their privilege claim on any portion of the crop of 1890 save the cotton crop, though there was a corn crop made that year that realized one hundred and fifty-nine dollars and seventy-three cents, and cotton seed that brought seventy-five dollars.

A number of creditors and opponents, viz.: S. Gúmbel & Oo., L. Oppenheim & Oo., Zuberbier & Behan, Morris McGraw, Scharff & Bro.; Trager, Oonner & Oo.; Isaac Eriburg & Oo.; The Ledoux Oo., Limited; and Wackerbarth, Joseph & Oo., in an answer to the appeal, aver that the judgment rendered by the lower court is erroneous and should be so amended as to allow no more than one dollar per day as compensation to the guardians of property and classed as payable, if by privilege thereon, out of the proceeds of the property guarded by them.

Beviewing each claim in successive order, as above written, the . first item in that part of the judgment appealed from amending the account was unintentionally omitted, and no further objection is made against the judgment appealed from, in so far as relates to that claim, as allowed by the lower court.

Corn and Pecans. — They had been gathered prior to the sale of the land on which they were cultivated and produced, and did not pass to the adjudicatee of the property. There is conflict in the testimony as to the quantity and value. Our views coincide with those of the District Judge regarding these items.

It is urged that the account being provisional, the accounting for this and other property should be postponed to the final account. The testimony was admitted and the issues tried in the lower court without objection of prematurity. Moreover, in the settlement of successions the interests of all parties are served by adjusting differences whenever possible. This item was properly charged.

Stock Chopper. — This implement was on the Home Place when it was sold. It was broken, for which the syndic is not bound on the proof. It was delivered to the purchaser, and if the syndic is re - sponsible it can be accounted for on another account.

Grist Mill. — This property had been removed from the place, and because of the removal was not adjudicated with the land. It was properly charged in the judgment.

Hay Rake — This implement and one of its shafts was broken prior to the surrender; it had small value and is not chargeable at this time.

Horse Cart — It was on the place on the day of sale and delivered to the purchaser. It should be sold and the proceeds charged on account; also whatever remains of the other numbered items and any loss or damage occasioned, for which the syndic may be responsible.

P. K. Bailey’s Custodian — The syndic being personally interested as a creditor of the insolvent for a debt preceding the surrender, and an appellant, personally, has the right in his own interest to prosecute an appeal to reduce the amount allowed for services as custodian, and any other claims allowed by amendment to his account he is interested in having reduced.

An examination of the testimony satisfies us that one dollar and a half a day is reasonable compensation for the services rendered. He had charge of three places, cattle and other property, and in addition did work for the estate, requiring his entire time and attention.

Gumbel & Co. et al. — The syndic contends that there was error to' the prejudice of the insolvent et tate in allowing this firm and others the sum of one hundred and twenty-five dollars costs incurred in the suit of Andrus vs. His- Creditors; further, in allowing them one hundred and twenty-nine dollars and eighty cents paid by them in the attachment suits of Morris McGraw vs. Andrus; Zuberbier & Behan vs. Andrus; Oppenheimer & Co. vs. Andrus, and others.

In the account the clerk of court is credited with costs in suit No. 14,741, Andrus vs. His Creditors, balance, one hundred and twenty-one dollars and seventy cents. The provisional syndic says that this item of costs is included in the one hundred and twenty-five dollars, and that having been credited to the clerk they should not be credited to the opponents.

The costs are due by the insolvent estate to these opponents, as they were paid by them, and they were decreed due in decided suits.

It was proved that costs of appeal paid by the provisional syndic were ordered to be reimbursed to him by these opponents, in a decree of court rendered some time since. They amount to two hundred and thirty-five dollars and fifty-five cents, and are due by these opponents.

The difference between these two amounts is due to the opponents.

Attorney for Absent Creditors. — The amount allowed for the services is eighty dollars. He represented absent creditors having claims not secured by mortgage or privilege, and rendered services that can not be assessed at less.

Our attention is directed to See. 1817, R. S.: “ The fees of a counsellor who shall be appointed to represent absent creditors shall in no case be paid by the mass of creditors, but shall be levied upon the amount which shall be recorded for the account of the absent creditors at the rate of five per cent.; provided that in no ease shall the fees exceed the sum of two hundred and fifty dollars.”

The law being invoked, no alternative but its enforcement is left us.

It has already received judicial interpretation. In Dunbar vs. Creditors, 39 An. 591, this court said: “That section distinctly provides that such fees as those of the counsellor for absent creditors shall in no case be paid by the mass of creditors.”

In Pandelly vs. His Creditors, 1 An. 23, this court said: “The next item opposed was that of two hundred and fifty dollars, an allowance to the attorney appointed to represent the absent creditors, which the syndics had paid to him before filing the tableau. It was opposed on the ground that the fees of an attorney appointed in behalf of absent creditors should, in no case, be paid by the mass of creditors, but should be levied on the amount of the sums recovered for the account of the absent creditors. Such is the very language of the statute, and this provision of law has been already enforced by the former Supreme Court in the ease of Bijotat vs. His Creditors, 1 R. 272. In that case the court also considered and refuted the argument then as now advanced, founded upon Art. 3197 of the Revised Civil Code.”

These authorities upon this point lead to one conclusion; the amount can not be charged to the mass of the creditors.

Renunciation of Prior Mortgage. — It is contended and proved that the judgment creditor released his judicial mortgage upon one of the tracts of land mortgaged.

The opponent urges that to the extent of the right secured, though his special mortgage is inferior in rank, he has a preference over the proceeds in satisfaction of his mortgage claim.

The property subject to the judicial mortgage was owned by the insolvent prior to his cession, and part of it was transferred by him to a third person subject to that mortgage.

We do not gather from the voluminous transcript that the holder of this judicial mortgage renounced it. He has not chosen to proceed against the purchaser of the property from his debtor, but applies for payment out of the proceeds of the sale of the property of the insolvent, on which also his mortgage rests.

The question arises: Is the creditor bound to impute to the extinction of his credit the value of the property to the possession of a third person also subject to his mortgage, against which he has not chosen to foreclose his mortgage?

Every part of the property is liable for the payment of the debt.

This liability is not restricted by an opposition to payment on the ground that the creditor must be relegated to the foreclosure of a mortgage on property in the hands of a third person.

The property mortgaged has been sold, and is now in the hands of the syndic for distribution.

It can not be withheld or made subject to the issue raised.

Between these two creditors, Dr. Boagni has the superior mortgage on the property, and has a right to the proceeds of the sale.

Richard Keough is another opponent. His services as guardian being similar to those rendered by Bailey, they are fixed at the same rate per day.

Gumbel & Go. — This firm, for an amendment as to the amount before mentioned, has not appealed. They seek to have the judgment amended upon an answer.

The decision homologating the account in the lower court is a separate judgment, belonging to the party in whose favor it was rendered, and binding on all the parties who did not appeal. Beer vs. Creditors, 12 An. 774.

These appellees are without right to a judgment compelling the syndic to deduct amounts from the judgments of other creditors.

Creditors en concurso who have not appealed are not in a position to have judgments amended among those from whose judgments they have not appealed.

The questions heretofore considered and passed upon arose between appellants and appellees.

We are not authorized to 'make a redistribution of any amount among those who have acquiesced in the judgment by not appealing.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed, save in those respects and particulars indicated in the opinion as not affirming certain items.

It is not affirmed in so far as relates to the stock chopper, hay rake, horse cart; as to these articles the provisional syndic, if responsible, will account in another account.

The custodian fees of E. R. Bailey are reduced to one dollar and a half a day and those of Richard Keough are increased to one and a half dollars a day, thereby reducing the amount heretofore allowed to Bailey by one-third and increasing that allowed to Keough by one-third, the number of days of each remaining the same as fixed in the lower court.

Gumbel & Co. are allowed costs in the sum of two hundred and fifty-one dollars and fifty cents, the provisional syndic in the sum of two hundred and thirty-five dollars and fifty cents.

The fee allowed in the judgment appealed from to the attorney of absent creditors is rejected and dismissed in so far as it is claimed as due by the mass of creditors.

With these amendments the judgment appealed from is affirmed at appellee’s costs — that is, the appellees actually before the court, viz.: E. K. Bailey, Keough, Gumbel & Co. et al. in matter of costs, and the attorney for absent creditors and E. M. Boagni each in proportion to his interest.

On Rehearing.

Two of the creditors, viz.: E. M. Boagui and Richard Keough, apply for a rehearing.

With reference to E. M. Boagni the rehearing is refused.

Respecting Richard Keough there is error that we must correct.

The principle is clearly announced in a number of cases:

In insolvent proceedings, in the distribution on the tableau of the syndic, each creditor who thinks himself aggrieved-must appeal in order to have the judgment amended.

In Ferguson & Hall et al. vs. Their Creditors, 19 L. 278, the plaintiff did not appeal from a judgment which reduced the amount of his claim on the tableau. The judgment remained without amendment.

In Kohn vs. Wagner, 1 R. 276, the creditors acquiesced by not appealing.

In Pandelly vs. His Creditors, 1 An. 24, the mortgage creditors not having appealed no amendment was made, on the ground that they alone had the right of appeal.

The creditor alone can appeal when his claim is rejected, in whole or in part, by the court-of the first instance; if he does not appeal he is held to have acquiesced, and is without remedy on appeal, save in those cases hereafter mentioned.

The claim of each creditor is merged into the judgment of homologation, and to the extent of his interest the judgment is his individual property. Girod vs. His Creditors, 2 An. 548; Beer & Co. vs. Their Creditors, 12 An. 774.

When an appeal is taken by any one in interest, and the judgment of the individual creditor is assailed, the creditor whose judgment is assailed has the right to answer the appeal and bring up all issue passed upon by the lower court.

It is a condition precedent to hearing him on appeal.

In fine, unless he has appealed or his claim is assailed by the appellant, he can not be appellee with the right to have his claim increased in an amount larger than the amount allowed by the syndic in his tableau.

Applying this rule, the application of which we can not escape, under well established jurisprudence on that point, Richard Keough is not an appellee.-

He has not appealed.

The appellants have not assailed his judgment.

No demand whatever is made assailing the judgment approving and recognizing his claim; all parties, those who have not and those who have appealed, virtually pray that the judgment of this opponent be affirmed.

Judge Martin, in Abat vs. Nartigue, 8 L. 192, for the court said, substantially, that claimants whose demands were severally and separately passed upon'by the judgment could not be heard on appeal, unless they were appellants.

In a number of appeals since, it has been decided that judgments could not be amended between co-appellees. These creditors are co-appellees; they accept the judgment save one of their number. He is without right, as a co-appellee, to have a judgment amended affecting their interest. The increase of the claim can not be allowed and paid without a corresponding deduction from the judgments of the appellees who have acquiesced.

.In appellant’s brief he directs attention to the difference between the claim of another creditor and the amount allowed Keough, and •asked for its reduction to the amount of wages allowed the latter. We thought, and still think, that it was just to increase the claim of one to one dollar and fifty cents, as in the judgment, and to reduce the amount of the other to one dollar and fifty cents.

Bailey, the other creditor, is a party to the appeal; Keough is not; we, in consequence, can reduce the claim of one of the parties, but we can not touch the claim of the other, not being an appellant.

The rules of pleading are as binding as any part of the law.

Our desire to adjust these claims must yield to the plain letter of the law.

The error can be corrected without granting a rehearing.

It is therefore ordered, adjudged and decreed, that our previous decree increasing Keough’s demand to one dollar and fifty cents per day be, as to that demand, annulled, and that the judgment remain undisturbed fixing the amount due him at one dollar a day.

This amendment being made, applications for a rehearing are refused.


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    No. 1464.
    Leopold Levy vs. Laodice Landry. David Todd and A. H. Thompson, Intervenors.
    The plaintiff and intervenors claimed a quarter section of land, and through mesne conveyances traced his title to the government.
    The defendant traced his title to a sale of succession property in 1879.
    His deed was destroyed by fire. Under a special act of the Legislature he instituted suit against the heirs of his vendor and reinstated the title he claimed.
    The weight of the evidence shows that an error was committed in the judgment of revival, and that the defendant was not the oivner of the land claimed by plaintiff and intervenors.
    The defendant’s plea of prescription of ten years is not sustained by the evidence, nor the claim of plaintiff for rent.
    APPEAL from the Seventeenth Judicial District Court, Parish of Vermilion. Allen, J.

      David Todd, Attorney for Plaintiff and Appellee.

      L. S. Bourges for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The present action is petitory. The plaintiff sues to be decreed the owner of the N. E. M of Section 20 in Township 12 S., R. 2 B., in the southwestern district of Louisiana.

There are two intervenors; each claiming a parcel of the lands. Their claims are not seriously opposed by the plaintiff.

They allege that the lands in controversy formerly belonged to the succession of Christopher A. Hatch, and that the title passed from his widow and heirs to their author, the plaintiff in this suit.

The defendant controverts the allegations of plaintiff and intervenors and sets up title in himself.

' He pleads the prescription of ten years and possession animo dominorum during that number of years.

With reference to the facts of the case, the records disclose that a patent issued as alleged, and that plaintiff and intervenors are transferees of the rights acquired under the patent.

The defendant in support of his grounds of defence sought to prove that he bought the land involved in this suit from the succes - sion of Adpien Dartes in the summer of 1879.

The court house of the parish was destroyed by fire on the 7th day of April, 1885, and his deed was burnt.

The defendant, availing’ himself of the law authorizing proof of record so destroyed, brought suit against the administrator and the heirs of the succession of Dartes, and in 1890 obtained a judgment against them, reinstating the title he claimed.

From the record of that case we -gather that a sale was made of the property, at which sale the defendant became the adjudicatee of certain lands.

The defendant believed that he had bought the land of which he had taken possession about ten years prior to the institution of the suit at bar.

The clerk of-the court was present at the sale and testifies that he wrote the prooes verbal of sale; that the defendant bought a quarter section in Section 20, T. 12 S., R. 2 E., divided into lots of foity acres each.

The publisher oE the Meridional, a newspaper in-the parish of Vermilion, testified that he could not find copies of his paper published in July and August, 1870.

Upon the evidence offered the title was reinstated by a judgment of the court.

Upon the trial of the case at bar that judgment was admitted in evidence/

The defendant invokes the law giving effect of an original doeu - meht to the judgment of reinstatement.

The disinterested .witnesses do not establish with any -degree of certainty that the lands bought by the defendant from the succession of Dartes are the same as those claimed by the plaintiff and the intervenors. They were aware of the fact that he bought lands at the succession sale. They were not as certain as to its description and location.

Of the proceedings of the sale, there were two remaining copies of the Meridional — one copy of August- 2, 1879, and the other of August 9, 1879. They were introduced in 'evidence on the trial of the case at bar. .There was no such evidence in the suit to reinstate the lost record.

The advertisement contained in the two" copies in evidence show that the following are the tracts of land sold at the succession sale in question:

The N. E. 1-4 of the N. W. 1-4 Sec. 20, T. 12 S., R. 2 E.

The JST. W. 1-4 and the S. W. 1-4 of the 1ST. W. 1-4, same section, township and range. The remaining tracts advertised are in an entirely different section.

This newspaper contains proof positive of the lands advertised for sale.

The uncertain memory of witnesses regarding sections and quarter sections of land sold many years ago, do not prove title when entirely at variance with the advertisement leading to the sale. We are confronted with an advertisement informing ns that the land is in the N. W. 1-4, and not in the N. E. 1-4 of the section, ascontended by the defendant. The correctness of the advertisement is not seriously questioned. The witnesses do not positively assail its verity.

It is not proved that the title to any part of the northeast quarter was in the succession at the time, though the defendant was the son-in-law of Dartes and presumably knew something of the titles of the succession to the lands it owned.

Counsel for the defendant argues that the judgment reinstating the sale is binding and final.

The intervenors and plaintiff were not parties to the proceedings to revive. They are not concluded by a judgment decreeing the defendant owner of land the remaining proceedings prove that he did not buy. It was not manifestly the legislative intent to authorize the reinstatement of destroyed records, so as to bind third persons without regard to title on the part of the one at whose instance the reinstatement is decreed.

There was manifestly an error committed in the year 1890, when the judgment of revival was rendered.

Different lands were included within the terms of the judgment from those the defendant owned. The defendant may have been entirely in good faith; presumably he was in good faith, and believed at the time and since the judgment was rendered that he was the owner of the land.

The fact remains that anterior to that year the defendant had no title whatever.

Good faith and title begin from the date of the judgment reinstating the destroyed record, where, as in this case, it is obvious that there was no title whatever in the defendant preceding the date of the judgment.

The statute authorizing the revival and re-establishment of destroyed record could not and did not, as against third persons, give retroactive effect to a judgment so as to invest the party suing to reinstate with a right he did not previously possess.

He was not the owner of the lands prior to judgment, and had only the bare possession.

Had he had possession during ten years just preceding the date of the judgment of reinstatement, he would have had no title upon which to base the ten years’ prescription. If the defendant had had a title, the judgment would have perpetuated it and secured a previously existing right.

We can not give the court’s sanction to an error and hold third persons bound by a judgment reinstating a record manifestly erroneous.

The plaintiff claims rent during six years — in amount five hundred and fifty dollars. The judgment of the District Court is silent as to rent. Before this court the plaintiff, in his answer to the appeal, prays that the judgment appealed from be amended, by allowing him the rental he claims.

Only one witness testified regarding rent. His testimony, general in character, does not impress us as being sufficient to sustain a claim for an amount more than five hundred dollars.

It was expert testimony in an action in which the parties evidently were far more intent in trying the validity of titles than in establishing the rental value of lands.

We do-nob feel authorized to amend the judgment on.the testimony of record.

The appellant prays that the case be remanded to enable him to prove that plaintiff and intervenors had no title.

The issues between the parties were clearly presented. We would be going .beyond all precedents if we were to remand a case upon the mere suggestion that there is other evidence obtainable and admissible that would, if admitted, completely make out the defence.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellants’ costs.

Rehearing refused.


text:
    No. 1469.
    Board of Police and Mayor of the Town of Opelousas vs. Henry A. Giron.
    The defendant appeals from a sentence condemning him to pay a penalty of eight dollars to the municipality for having violated an ordinance prohibiting the carrying of concealed weapons.
    An act may be an offence under the laws of the State and subject to a penalty for violating municipal authority.
    The power vested by legislation in a city corporation to make by-laws for its own government and the regulation of its police includes the power of punishing violations of its ordinances, though the offence be also denounced by State laws.
    The violators of the ordinances of a corporation are sentenced to pay a fine without a jury. The offences being of minor importance and petty, they can not claim immunity from the penalty imposed by the ordinance by claiming the right to trial by jury before the District Court.
    Carrying concealed weapons is an offence against the ordinances of the municipality, and as such is punishable by sentence of the Mayor’s Court.
    The corporate authority did not exceed their power by adopting a reasonable minimum penalty within the delegated power. The Legislature fixed the maximum penalty at one hundred dollars. The corporation observed that limit and added not less than five dollars. The minimum adopted by the ordinance does not make it illegal, being within the delegated power.
    ^PPEAL from the Mayor’s Court of Opelousas.

      Chas. F. Garland for the Plaintiff :
    The same act may constitute an offence against both the State and municipal corporation, and may be punished under both without violation of any constitutional principle. Cooley Const. Lim. 199; 30 An. 454; Cooley Const. Lim., 6th Ed., p. 229, No. 2; Bishop on Statutory Crimes, 2d Ed., p. 23, par. 23; Bishop Criminal Law, Vol. 1, p. 1029, par. 1028, No. 3.

      Jno. N. Ogden and Jules Gil Attorneys for Defendant and Appellant:
    Municipal corporations have no power to impose a penalty on that which is made punishable, or a criminal offence, under the law of the State. 7 An. 651; 34 An. 646.
    Section 932 of the Revised Statutes having denounced the offence of carrying a concealed weapon and provided the punishment for violating the same, an ordinance of the town of Opelousas on the same subject matter and differing from said law, both in its letter and in its mode of procedure, is illegal.

      Article 7 of the Constitution provides the right of an accused party-in all criminal prosecutions to be tried by a jury, and an ordinance of a police jury denouncing the carrying of concealed weapons within the town, and providing a short-hand mode of trial which cuts the accused out of a trial by a jury, is unconstitutional.
   The opinion of the court was delivered by

Breaux, J.

The defendant was found guilty by the Mayor’s Court of carrying a concealed weapon, and was condemned to pay a fine of eight dollars.

He appeals, and urges as grounds to annul and set aside the sentence that municipal corporations have no power to denounce and punish a crime denounced and punished under the law of the State.

That the case is one to which the trial by jury extends.

That See. 932 of the Revised Statutes provides a punishment for the crime charged, from which the ordinance of the town of Opelousas, on the same subject matter, differs in letter and spirit, and is, in consequence, null and void.

MINOR OFFENCES DENOUNCED BY STATUTE MADE THE SUBJECT OF POLICE REGULATIONS BY MUNICIPAL CORPORATIONS.

The first question presented relating to the extent of municipal authority over crimes is not, with us, of first impression.

The point was considered in the case of State vs. Fourcade, 45 An. 717.

It was an issue in the case of State vs. Clifford, 45 An. 980, in which we held that in view of the necessity of maintaining peace and good order within the limits of municipalities under a sufficient legislative grant of power, municipal corporations may adopt ordinances to that end.

At our term in Monroe, recently held, the question was presented and the cited cases were reaffirmed. City of Monroe vs. Hardy, ante, p. 1232.

MINOR AND PETTY OFFENCES VIOLATING THE CITY CHARTER.

The general principles apply only to violations of municipal laws proper and such as fall within the description of municipal police regulations; these prosecutions are limited to certain minor and petty offences.

Mr. Cooley in his work on Constitutional Limitations, p. 241, says: “Municipal by-laws must also be in harmony with the general laws of the State, and with the provisions of the municipal charter. The charter may allow the corporation to pass local laws, but the State laws and the by-laws may both stand together if not inconsistent. Indeed, an act may be a penal offence under the laws of the State, and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement of the other.”

The decisions in different jurisdictions are not uniform. But we have no less an authority than Judge Cooley, who says that the clear weight of decisions support the proposition that though the Legisture have passed a law regulating as to certain things in a city, the corporations are not thereby restricted from making further regulations.

Erom Dillon on Municipal Corporations, p. 367, we quote: “Where the act is in its nature one which constitutes two offences, one against the State and one against the municipal government, the latter may be constitutionally authorized to punish it, “though it be also an offence under the State law.”

Both reason and authority are on the side favorable to extending to municipalities a reasonable measure of power to enable them to maintain peace and order within their limits.

VIOLATORS OP ORDINANCES NOT TRIABLE BY JURY.

The summary trial without the verdict of a jury for disorderly conduct is not a violation of any of the constitutional rights of the defendant. Cases of tire contempt of court are never triable by jury. Its punishment involves fine and imprisonment. There are other charges of minor importance involving the penalty of a fine or imprisonment not triable by jury. The doctrine in this State has always been considered settled that municipal corporations are not within the constitutional guaranty of jury trial; that violators of the ordinances of the corporation, where the Mayor is authorized to impose a fine, may be sentenced without a jury.

Police powers are exercised in all the States for the repression of breaches of the peace and petty offences and the statutes are not .taken as conflicting with provisions of the Constitution securing to the citizen a trial by jury. Dillon, Vol. 1, p. 420, 3d Ed.

VIOLATING ORDINANCES BY CARRYING CONCEALED WEAPONS.

Carrying concealed weapons is a minor offence immediately tending to disturb the peace and security of the public. It is not always active and open and for that reason it is the more dangerous and reprehensible. It is of itself a disturbance and a violation of the peace and the quiet of the community for a person to put in his pocket a weapon to kill his fellow man in a chance quarrel or in a premeditated attack. It is a wrong directly affecting the public and a violation of peace and order. Though not classed as such it is a nuisance that ordinance properly seeks to abate.

By the charter the board of police have full power to make such laws and regulations as they may deem necessary for the good order and government of the town.

This authority covers ordinances adopted to maintain peace and order and none are more important to that end than the suppression of the habit of carrying concealed weapons for aggressive use. It is an offence against public order. Dillon, pp. 887-389 et seq., 3d Ed.

PENALTY.

The defendant urges as prejudicial error that the ordinance under which he was fined is in conflict with the section of the statute denouncing the offence of carrying concealed weapons and providing for its punishment. The penalty under the State law is fine or imprisonment, at the discretion of the court, not to exceed five hundred dollars, and the imprisonment not more than three months.

The minimum is not provided in the statute. In the ordinance of the law, assailed, the minimum is fixed at five dollars.

The derivative authority to impose the fine is not given by the statute. The imposition of the penalty is specially authorized by the charter.

The Legislature is competent to delegate to municipal corporations the power to make by-daws and ordinances. Dillon, p. 323, to the same effect.

The Legislature has delegated the-needful power to enforce the ordinances and authorized the imposition of a fine of not less than one hundred dollars.

The State has provided special regulations for the town. The charter penalties govern. “The charter, however, may expressly or, by necessary implication exclude the general laws of the State on any particular subject and allow the corporation to pass local laws at discretion which may differ from the rule in force elsewhere.” Cooley on Const. Limit., 6th Ed., p. 239.

A penalty imposed within the limits laid down by the charter can not conflict with the State law upon the subject.

The only question is one of power of the Legislature to delegate the authority. It is not at issue in the case; no pleading or argument is made with the view of assailing that authority. An ordinance adopted within the terms of a charter that is legal and valid can not conflict with a State law. f

The municipal authorities have adopted a minimum to be observed in imposing the penalty. The charter grants the power in general terms and has not limited the minimum amount imposable for the offence charged. Being authorized to impose a fine of not less than one hundred dollars, it is neither unreasonable, unjust or oppressive to provide that it shall not be less than five dollars. The grant of power is not violated by the limitation provided in the ordinance. The municipal council have not thereby enlarged or changed the charter. It is not precluded from declaring that within the limits it shall not be less than a certain minimum. It is just and reasonable to adjust the penalty to the circumstances of the particular case.

It is the exercise of a power within the province of local government. In endowing a community with corporate life, it was not the intention to hamper and control its functions within the most restricted bounds and prevent the exercise of some discretion in adopting a reasonable minimum within the limits of the penalty.

We are not authorized to annul and set aside the sentence as illegal and contrary to law.

The judgment appealed from is affirmed.


author: Miller, J.

text:
    No. 1461.
    Marc B. Tarleton vs. Abel L. Lagarde.
    The apothecary is not liable in damages to the physician merely and only because the filling of his prescriptions is, on one or two occasions, declined by the apothecary for reasons not at all impugning the physician’s capacity.
    But the apothecary does incur such liability if, without the slightest cause, he indulges in public expressions tending to create the impression of the physician’s incompetency, as for instance his diploma is not worth a straw.

      The court again discards the distinction of the common law as to slanderous words actionable 75er se and words slanderous in their character, but requiring proof of damage. Civil Code, Arts. 2315, 2316; 16 La. 389; 12 La. 891; 3 An. 207; 14 La. 298.
    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.

      Weeks & Weeks Attorneys for Plaintiff;
    A slander is an oral publication which exposes any person to hatred^ contempt, ridicule, or obloquy, or which causes him to be shunned, or which has a tendency to injure him in his occupa- . tion. 42 An. 955; 40 An. 423; 36 An. 467; 25 An. 170; Newell on Defamation, Slander and Libel, p. 84; Cooley on Torts, 193.
    “If the charges are false, injurious and made maliciously or malo animo, they combine all the elements necessary to support the action.” 40 An. 424; 45 Au. 863.
    “Our courts are not bound by the technical distinctions of the common law as to words actionable per se and words not actionable per se, and allowing for the latter only actual pecuniary damage specially proved.” 45 An. 863; 40 An. 424; 12 An. 894; 16 La. 389.
    “ Both the damage or injury and the malice may be inferred from the nature and falsity of the words and from the circumstances under which they were uttered without the necessity of special proof.” 40 An. 424; 45 An. 874; 42 An. 955; 43 An. 967; 43 An. 973; 38 Au. 161; 27 An. 214; 23 An. 280; 19 An. 322; 17 An. 64; 11 An. 206; 3 An. 69; 16 La. 389; also Stewart vs. Carlin et al., 2 La. 75.
    A druggist may, if he have valid reason, refuse to ñll a prescription. But in so doing he must take reasonable care not to cause needless injury to the reputation of the physician.
    Where, to protect the reputations of physicians, a certain custom or course of conduct has been adopted by druggists, whereby any doubt they may have concerning the prescription is kept from the patient until the physician has been seen concerning same, this custom must be followed by them. And when a druggist, seeking to injure the standing of a physician, refuses, without cause, to fill his prescriptions, and in refusing flagrantly violates this custom, maliciously communicates to the customer false im*» pressions concerning the medicine, and then goes out upon the streets and spreads false and injurious reports concerning the prescription and the physician, he is liable to him in heavy damages.
    If a lawful act be done in a proper, careful manner and injury result to another, this is damnum absque injuria, and no action lies. But if a lawful act be done in an improper, illegal manner, and this course be taken to injure another causelessly, then the party is liable to the i ijured person for all the damage which his conduct has needlessly and wantonly occasioned him.
    A person doing an act which must necessarily occasion injury to another, must do it in the manner least harmful to the rights of that other.
    Only the substance of the words need be proven. 2 La. 578; 27 An. 247: 43 An. 967.

      Walter J. Burke, Attorney for Defendant and Appellant:
    A druggist may lawfully refuse to fill a prescription brought to him from any physician, whatever be his motive, unless there be a contract compelling him to do so, and his refusal does not render him liable in damages. 12 An. 255.
    A druggist must exercise discretion and judgment in compounding drugs, and it is his duty, or at least he will be protected, if he does not know the nature of the drugs called for, to refuse to fill it; and to communicate his conclusion to the applicant dealing with him and reposing confidence in him is not slander. Bigelow on Torts, p. 66.
    In actions for slander, proof positive must be made of the alleged slanderous comments. To prove their substance is not sufficient; the words themselves must be proven. Am. and Brit. Ency. of Law, Vol. 13, p. 485.
    To support an action for slander it is necessary that the language used be false, injurious and uttered malo animo. 40 An. 424; Moakes’ Underhill on Torts, p. 19.
    It is only to -Words which are manifestly slanderous in their nature that the presumption of malice attaches. When it is sought to impute malice to the utterance of words, not' unmistakably so, proof of malice must be made. 34 An. 1147; 8 An. 130; 2 R. " 365. ’

      'Slighting comments of diplomas held by physicians, and of physicians generally, or of a class of them, is no slander of a particular physician, inasmuch as it can not affect the degree ®f respect, good will and social or business distinction to which his own acts and his own social and business habits entitle him.

    Where of two witnesses of plaintiff, on whom the burden of proof rests, who were present during the conversation of defendant in which he is alleged to have slandered plaintiff,' one gives a version of the affair which the other claims not to have heard, but repeats words entirely different, and the defendant denies the statement of the first witness and explains the remarks testified to by the second, the preponderance is with the defendant.
    Damages from the act of refusal to fill a physician’s prescription, even if allowable, can not be inferred from the act. They must be proven.
    Where words spoken are not necessarily and intrinsically slanderous they do not awaken the presumption of damages, but these must be specially proven.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, a physician, claims of the defendant, a druggist, damages for his refusal to fill plaintiff’s prescriptions and for slander. The defence is that defendant was unable to fill the prescriptions, and a denial of the slander imputed to defendant. From the judgment of fifty dollars against hiim, defendant appeals, and, answering the appeal, plaintiff asks that the damages awarded be increased. ...

It appears from the record the defendant did decline tó prepare two prescriptions of the plaintiff. In one'a patent medicine formed a component. The defendant seems to have been averse-to putting up prescriptions of which the patent medicine formed a part. In his own language as a witness, he was-'unwilling to'take the responsibility of such a prescription, as he was not sure of the composition of the patent medicine. There is som'e'testimdny that it is not usual to include a patent medicine as a component of prescriptions, and there is testimony it-is not infrequent. 1 At least, this ■difference in the testimony Of the physicians who' testify, deserves some consideration in connection with defendant's unwillingness" to prepare the prescriptions. With reference to'the other prescript tion, the plaintiff’s brief claims defendant should be made liable because of his refusal to fill it, avowed in his answer. But the answer is, that the prescription was not filled for want of the necessary-ingredients and other causes. On this branch of the case the propositions affirmed by the plaintiff’s case is, that a druggist is to be made liable in damages because he declines to fill prescriptions. We can not assent to this view. In many cases the druggist may have the best reasons for declining to fill prescriptions. As a chemist he may perceive or have cause to suspect the physician erred in his prescription ; or the druggist may not have at hand the ingredients; or he may distrust his ability to prepare the prescription, or other causes may disincline the druggist to undertake filling the prescription presented to him. Recognizing the room for all such causes, we can not hold that the mere refusal of a druggist to fill prescriptions furnishes any occasion to hold him for damages to the physician who gives the prescription. It does not appear from the testimony, that in refusing to fill the prescriptions the defendant used any language derogatory to the plaintiff. True, the father of the child for whom one of the prescriptions was given, states the impression as to plaintiff’s professional capacity made on his mind by defendant declining to fill the prescriptions was unfavorable. But it is quite certain no such impressions could be derived from anything the plaintiff said, and an impression arising solely from the defendant’s right to decline filling the prescriptions, obviously fur'nishes no cause for plaintiff’s action against defendant.

The slander attributed in the petition to defendant was, in the course of a discussion between him and one of his fellow citizens» begun on the street and continued in a barber shop. It commenced with a request of defendant for information of the gentleman addressed, formerly a representative in the Legislature from defendant’s parish, whether the law compelled a druggist to fill prescriptions presented to him. The information given on that subject did not suit defendant, seems to have excited him, and led him to make observations offensive and unjust to plaintiff, at least in their tendency to affect those who were gathered by the animated and ■ angry discussion, or to whom the observations might be repeated. The defendant, exercising his privilege of declining to fill plaintiff’s prescriptions, should for that very reason have abstained from any ■comments calculated, to convey impressions damaging to plaintiff’s character as a professional man. On the contrary, defendant engages in a public discussion on the subject of plaintiff’s prescriptions, in which he derided plaintiff’s diploma, i. e., he, defendant, would not give a straw for such a diploma, and he further commented on one of plaintiff’s prescriptions as containing ingredients that might kill the child. It is in proof that the plaintiff is a graduate of Tulane University Medical Department and that he is a practising physician. There is no testimony to justify defendant’s comments on plaintiff’s prescription, and there is, if possible, still less extenuation for defendant’s disparaging allusion to plaintiff’s diploma. Our jurisprudence rejects the common law distinction in actions of slander, of words actionable per se requiring no proof of damage and other words slanderous in tendency, but in respect to which the law exacts proof of damage. Under our law malice, the essence of slander, may be inferred from the words, and damages allowed without express proof. Civil Code, Arts. 2315, 2316; Miller vs. Holstein, 16 La. 389; Feray vs. Foote, 12 An. 894; 3 La. 207; 14 La. 298. The application of defendants remarks was well understood. They were uttered publicly. Their natural tendency to affect plaintiff injuriously as a professional man is obvious, and the mischief apt to be done by such language is increased when it is considered that defendant is a druggist in the community in which plaintiff is a practising physician. We have read with care the elaborate opinion of the judge of the lower court. We think that under the circumstances the judgment should be more than nominal. It is a grave matter to assail without a semblance of cause professional reputation. In our opinion the judgment should be increased to one hundred dollars.

It is therefore ordered, adjudged and decreed that the judgment of the lower court should be avoided and annulled, and it is now adjudged and decreed that plaintiff recover from defendant one hundred dollars, with costs in both courts.