text:
    No. 10,389.
    State of Louisiana vs. Thomas Meekins.
    3. The rulo is that a defendant must he present at liis arraignment and then plead personally and not by attorney; but when the record shows that the defendant was duly arraigned and did personally plead, tlie trial had thereon cannot be affected, because before arraignment and when not called on to plead, he had voluntarily, and through liis attorney, filed a written plea in bar, which had been tried and overruled in his presence.
    2. "When a plea of autrefois acquit shows on the face of the rocord that tlie former trial was had on a fatally defective indictment, this rendered tlio plea demurrable, and authorized the court to overrule it on that ground without submission to jury.
    3. It appearing that, on former trial, the judgo had, on request of defendant, charged the jury that information was fatally defective and that they were bound to acquit, it does not lie in defendant’s mouth, under plea of autrefois acquit, to assert that the former information was valid.
    4. Confession .made on the simple advice of officer to tlie prisoner that ho “ had hotter toll the truth,” is not amenable to objection that it was not froo and voluntary.
    APPEAL from tlie Ninth District Court, Parish of Tensas. Young, J.

      Walter IT. Rogers, Attorney General, fox tlie State, Appellee.

      Snyder cG Tullís and JB. F. Young for Defendant and Appellant.
   Tlie opinion of the court was delivered by

Fenner, J.

An information for burglary having been filed against the defendant, and duly served upon him, lie voluntarily appeared, through his counsel and before arraignment, and filed a plea of autrefois acquit of which he prayed trial by jury. After answer by the State, the court refused the trial by jury, to which exception was taken. The plea was then taken up, tried on evidence offered, and overruled by the court, to which ruling another exception was reserved.

The defendant was then, for the first time, duly arraigned, pleaded not guilty, and was regularly tried and convicted.

On this branch of the case, defendant assigns several errors :

1. That the minutes do not show that the prisoner was present in court when the plea of autrefois acquit was filed.

The law undoubtedly requires that the defendant must be present at the arraignment, and that, as a general rule, he must plead personally, and not by attorney.

If this were a case where the defendant had not been present at the arraingnment and had not pleaded personally to the information, but had pleaded only by attorney, his claim to relief might have merit. But, as we have shown, he was regularly arraigned and did personally plead.

If, before arraignment and before he was called upon to plead, he chose voluntarily to inject into the record a plea in bar by his attorneys, that is his own act, of which he cannot complain. He was not bound nor called on to plead. His pleading and the mode thereof were of his own choice. He cannot complain that the judge did not refuse to receive his plea thus tendered, which he made his own, because the minutes show he was personally present when the plea was tried and overruled.

2. That the minutes do notishow the presence of the prisoner when the question of trial by jury was tried and overruled. The record does not show that there was any separate trial of this question. So far as appears, there was but one hearing and trial, at which the minutes do show that the prisoner was present.

3. That the court erred in overruling the prayer for trial by jury; and

4. That the court erred in overruling the plea of autrefois acquit.

These may bo considered together.

The court overruled the plea on the ground that it appeared on the face of the record that the former information was fatally defective, because it charged no crime known to the laws of Louisiana; in addition to which it was shown that, on the trial, the judge had, at defendant’s own request, so charged the jury, and instructed them they were, on that ground, bound to acquit.

This rendered the plea demurrable and authorized the judge to determine it without recourse to a jury. State vs. Shaw, 5 Ann. 342.

We tliiuk it Joes not lie in defendant’s month, under such circumstances, to deny that the former information was fatally defective. The law is well settled -that “ when the indictment is in form so defective, that the defendant, if found guilty, will be entitled to have any judgm ent entered therein against him reversed for error, he is not in j eopardy. ; and should he be acquitted, he will be liable to be tried on a new and valid indictment.” 1 Bish. Cr. L., Sec. 1021.

Another exception is found in the record to the admission of a confession made by the prisoner objected to on the ground that it was not free and voluntary.

The bill discloses nothing impairing the free and voluntary quality of the confession. Neither throat nor promise was made, but it was given on the simple advice of the officer that “he had better tell the truth.” .

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 10,355.
    Daniel Cohen vs. Haynes & Rogers — Union National Bank, Intervenor.
    1. A, hairing sold an agricultural product of this State, in the City of hTew Orleans, to B, on five days’ credit, and B having, -within the five-day limit, pledged the bills of lading therefor to C, and, as against the assertion of A’s lien, C having set up a claim of ownership : Held that C cannot subsequently, and in the same suit, without any change of pleading, abandon his claim of ownership and assort, in argument, a lien and privilege resulting from liis pledge. In such caso the court lias to deal -with the issues presented in the pleadings, and leave the losing party to his recourse, in some other form of action.
    APPEAL from the Civil District Court, Parish of Orleans. Ellis, J.
    Bcmjne, Denegre & Bayne for Plaintiffs and Appellee:
    The lien of the vendor of sugar, an agricultural product sold in ÍTew Orleans, when enforced in five days, is superior to that of the holder for value of a bill of lading. 38 Ann. 12; 37 Ann. 53; 36 Ann. 484.
    • The five days’ lien on agricultural products in favor of the vendor exists whether the sale w«ás made for cash or on credit, and is enforceable after the produce has gone into the possession of third parties, under a bona fide sale, equally as well as while it is in possession of the original vendee. G-umbel vs. Beer, 36 Ann. 484, reaffirmed.
    Tho intervonors have claimed ownership. The evidonco offered by thorn shows that they aro not and never were owners. ÜsTugent & Co. vs. Buisson, 35 Ann. 112.

      Harry H. Hall for Defendants and Appellants.

      Garleton Hunt for Intervenor and Appellant.
   The opinion of the court was delivered by

Watkins, J.

This contest involves the vendor’s lien of the seller of two hundred and twenty-nine barrels of sugar, to the defendant, and that of the pledgee of a bill of lading for the same sugar; and the main question argued in the briefs is, as to which of the two is entitled to bo preferred upon a distribution of the proceeds.

It is a conceded fact, that on the 24th of December, 1887, the plaintiff sold to the commercial firm of Haynes & Rogers, the defendant, the said sugar for the price of $4135 24, and on the 27th of the same month plaintiff obtained its sequestration, on appropriate averments of privilege. One the 28th of same month the Union National Bank filed a petition of intervention, in which it is. averred that it is the “ owner of 229 barrels of sugar, designated in plaintiffs’ petition * * and that it was already in possession of said sugar when the sequestration herein issued, said possession (being) held through and by virtue of a bill of lading * * duly indorsed by the defendants.

That the sugar is not the property of defendants, and is not liable for their debts; and that the plaintiff has no lien or privilege, of any kind upon the same. That David Cohen, plaintiff, sold the same to Haynes & Rogers * * expressly, on the credit of the latter, and looking, only, to them, and that it was duty transferred to it by Haynes & Rogers, in consideration of the negotiation of their sight draft for $4000, in conformity with law and commercial usage.” The prayer of the intervention is “that there be judgment in favor of petitioners, decreeing it to be owner of said sugar, and that same was not subject to sequestration herein; setting aside said sequestration, dismissing the plaintiff’s claim to a lien and privilege on said property, and ordering that the same be forthwith restored to the possession of petitioner,” etc.

This quotation is made from the petition of intervention for the purpose of accurately stating the issues raised by the pleadings, as contra-distinguished from those argued in interven or’s counsel’s brief; for it is therein stated that this is a contest involving 229 barrels of sugar, claimed by David Cohen, plaintiff and appellee, of the one part, and as vendor, and by the Union National Bank, intervenor, and appellant herein, of the other part, as pledgee under a bill of lading.” Vide first paragraph of brief, on page one.

There can be no doubt of the fact that this declaration is tantamount to an actual abandonment of all claim of ownership of the sugar, on the part of the intervenor, and an announcement of its purpose to assert a lien and privilege on the sugar, superior in rank, and entitled to preference over that asserted by the plaintiff, on its proceeds.

Our attention lias been invited to this phase of the controversy by plaintiff’s counsel, who insist that this admission — and it is in keeping with the evidence on the subject — is fatal to intervenor’s case; and we are inclined to think he is correct.

The case of Allen Nugent & Co. vs. Ben Buisson, Bickham and Moore, Intervenors, 35 Ann. 108, presents a precisely similar issue. The plaintiffs sold the defendant a number of bales of cotton, the price of which was not paid, and after the expiration of five days, the defendant delivered same to the intervenors, the proceeds to be applied to the payment of a debt of his to them. The plaintiff caused the cotton to be sequestered in satisfaction of his vendor’s lien, and it was bonded by the intervenors and third opponents, on an allegation of ownership. The court say:

“The contention is simply between the third opponents who claim ownership of the cotton * * and the plaintiffs, who merely ask the resolution of the sale, which they made of the cotton to the defendant, from whom the opponents claim to have received it, in payment of an indebtedness in their favor. * * * The third opponents were not made, and have not become defendants in plaintiffs’ suit. They have made themselves claimapts in it, and have forced upon the plaintiffs the attitude of defendants on »their third opposition. Upon them rests the burden of proving their averment of title to the cotton, by transfer and possession. Should they fail in this, then plaintiffs would be entitled to recover possession of the cotton, which the opponents claim to hold animo domini.
“ There can be no doubt, as a rule, positis ponendis, that one to whom cotton has been sold, and delivered, and who is in actual possession, apparently as owner, may lawfully sell it, or transfer it in payment of his debt, free from all claim, after five days have elapsed from the delivery to him, and that the sale, or giving in payment, for non-payment of the price, cannot be annulled when the cotton has been turned over to the purchaser or creditor, and title of ownership has thereby been vested. Hence, the theory upon which the opponents revendica/tc the cotton is, that the ownership had passed from the defendant and has vested in them. * * In order to show title, the opponents aver that the cotton was given to them in payment of their claim; but they have introduced no evidence that such was the intention of the parties on the subject.
“ It is true that the opponents were the creditors of the defendant, and that the cotton was delivered to them by his order; but the circumstances under which the transaction took place do not establish an intention, a consent, in the parties to give and receive the cotton in payment of a debt. The evidence does not show that the cotton was transferred for any specific price, agreed upon and fixed for the giving in payment, which is assimilated to a sale. * * * * * *
The intervenors have boldly averred a title of ownership, and have revendicated the cotton as their property. They did not allege a contract of pledge, or assert any other right than of ownership. They had to elect, and they have done so. * * * * * * *
“We have not to deal with the case as it might have been presented. As it is submitted by the pleadings and by the evidence, so must it be decided, particularly when thereby the ends of justice are fully attained.”

The court then proceeded to render a judgment against the intervenors, and third opponents, and in favor of the plaintiffs.

The principles therein announced are of superior force and applicability here, because, in the instant case, the proof shows that the defendants, Haynes & Rogers, had transferred to the intervenor the bills of lading for the sugar, xoithin the five days’ limit within which the lien of the vendor may be enforced against an agricultural product, irrespective of any other claims to, or rights upon the commodity in favor of third and subsequent parties. In that case the claims of the opponents arose after this limit had expired, and they lí>st, on the sole grouqd that they had asserted title to, and not a lien and privilege on the property. We think the demand of the plaintiff might well have been placed upon his superior lien on the sugar, but our opinion serves the same purpose.

Judgment affirmed.


text:
    No. 10,328.
    E. S. Jaffray & Co. vs. H. Moss & Co. et als.
    1. "While it is true, as a general proposition, tliat no alteration can bo made in a judgment by an appellate court, as between appellees, yet a co-defendant, as an appellant, may have it amended or reversed, in so far as it affects bis interest, and leave it m statu quo, in other respects.
    2. A representation made by a customer in effecting a purchase of goods on terms of credit, must bo wilfully false, as a fact, and not as a mere opinion, which may be innocently mistaken, to vitiate the contract.

      Young, APPEAL from the Ninth District Court, Parish of Tensas. Young, J.

      Wade li. Young and Bayne, Denegre & Bayne for Plaintiffs and Apjiellees:
    Defendants made a statement to the commercial agency of R. G-. Dun & Co. that they owned two plantations, costing $125,000, which were mortgaged for $33,000.

      Tlio proof is that tlie plantations did not belong to defendants, but to one of the members of the firm; that they only cost $75,350, and that they wore mortgaged for $88,000, instead of $33,000.
    Giving defendants credit for all property claimed by them and by the individual members of the firm, the proof is that they owed $18,059 17 beyond their assets, taken at their own valuation ; that their first attaching creditors were their nearest relatives, whose claims, worthless before, were (if defendants succeed in this suit) made good by purchase after insolvency, by defendants, through and by means of the untruo statements made to R. G. Dun & Co.’s commercial agency.
    Hartwig Moss did not testify, though present; the presumption is always and inevitably against a litigant who fails to furnish evidence within his reach. Crescent City Ice Co. vs. Erman, 36 Ann. 84l; School Board vs. Trimble, 33 Ann. 1073.
    A purchaser not intending to pay who induces the owner to sell him goods on credit by fraudulently concealing his insolvency, and his intent not to pay for the goods, is guilty of a fraud, which ontiti.es tho vendor to disaffirm the contract and recover tho goods. Donaldson vs. Earwoll, 93 IT. S. 631.
    And if the purchaser has no reasonable expectation of being able to pay for the goods, it is equivalent to an intention not to pay. Talcott vs. Henderson, 27 American Reports 501; 31 Ohio State 162; Rowley vs. Bigelow, 12 Pick. 307; Davis vs. Stewart, 8 Red. Rep. 803; Lowell vs. Bradleo, 9 Gill & J. 220; Wright vs. Brown, 67 N. Y. 6.
    A wilfully false representation of solvency vitiates the contract, and the vendor has the right to retake his goods; a sale secured by fraudulent misrepresentations of tho vendee in regard to his solvency works no change of jiroperty. Yaeger Milling Co. vs. Lawler, 39 Ann. 572; Collins vs. Cooley (Supreme Court, New Jersey) 14 Atlantic Rep. 574; Johnson vs. Peck, 1 Woodburg & Minot 335; Robinson vs. Levi, 1 Southern Reporter 555; Lindauer vs. Hay, 17 Northwestern Reporter 98; Taylor vs. Miss. Mills, 1 Southwestern Reporter 283.
    A person furnishing false information to a mercantile agency to be communicated to persons who may bo interested in obtaining it, for thoir guidance in giving credit to such person, is as much liable to tho person thereby defrauded as if he made tho false representations directly to tho party injured. Eaton, Colo & Burnham Co. vs. Avery, 83 N. Y. 31.
    Attaching creditors do not occupy the position of bona fide purchasers and can exercise no greater rights than their purchasing debtor. Thompson vs. Rose, 16 Conn. 74, 41 Ann. Doc. 121; Jordan vs. Parker, 56 Maine 557; Gilbert vs. Hudson, 4 Greenleaf (Maine) 345 ; Whitman vs. Merrill, 125 Mass. 127; Atwood vs. Dearborn, 1 Allen (Mass.) 483, 79 Ann. Dec. 755; Wiggin vs. Day, 9 Gray (Mass.) 97; Buffinton vs. Gerrish, 15 Mass. 156, 8 Ann. Doc. 97; Eield vs. Stearns, 42 Vt. 106; Gasquot vs. Johnston, 2 La. 514.
    In Louisiana, especially, the rights of vendors are jealously guarded. Déjan vs. Hébert, 31 Ann. 730.

      Snyder & 1\dlis and O. J. Boaimer for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiffs are engaged in jobbing and making sales of dry goods and general merchandise in tbe City of New York, and, on tlie 22nd of August, 1887, made a sale of a small stock of assorted goods to tlie defendants on terms of credit, and same were, at once, skipped to tkeir domicile in tlie State of Louisiana, for sale at retail, in the usual course of tkeir business. Soon after tke cargo reached its destination it was attached at the instance of various creditors of defendants, and formally taken into possession by the sheriff.

The claim of ifiaintiffs is that the defendants obtained the goods through fraudulent misrepresentations of solvency, made to Dun’s mercantile agency, which were communicated to them, in the regular course of business, and according to the custom of merchants; and that they maintained their possession thereof, by fraudulently concealing from them their insolvency.

They represent that they parted with their goods upon the faith of their representations of solvency and the possession of large assets; and of the ownership, by the different members of the firm, of large landed estates, subject to small incumbrances; and that same were delivered to, and shipped by the defendant firm, and are now in the possession of the sheriff of Tensas, under various writs of attachment against them.

They further represent that recently, previous to the institution of this suit, they wore informed that the representations, on the faith of which the sale was made, were false and fraudulent misrepresentations, and that, as a matter of fact, the defendant firm, and its individual members, were insolvent long prior thereto; that said firm purchased and received said goods well knowing their insolvency, and their inability to pay for them; that they purchased and received same with the intention of not paying therefor, and to defraud petitioners thereof; that they concealed from them their insolvency and the fraudulent purposes they had in view.

They further aver that, subsequent to the issuance of said several writs of attachment against defendants, and the seizure of their goods, but prior to the institution of this suit, “they elected to rescind said contract of sale, and to bring this suit, and that they so elected to rescind the same as soon as they were informed of such fraudulent conduct, and intention, on the part of defendants.” They aver, further, “that by reason of such fraudulent conduct and intention, and said election to rescind, they are the absolute and unqualified owners of said goods, and merchandise, and that the defendants wrongfully claim and detain the possession of said property.”

Under suitable allegations a writ of sequestration was obtained, the goods sequestered, and the defendants, EL .Moss & Co., the sheriff and the various attaching creditors were cited.

The prayer of the petition is “that the sale of the goods and merchandise by petitioners to said EL Moss & Co. bo declared void, or be rescinded and avoided for fraud, and that they be recognized as the owners, and have and recover possession of same.”

The defendants deny all the charges made by the plaintiffs, and aver that same were false and libelous, and were wrongfully and maliciously made for the purpose of defaming and injuring them. They aver that they made no false or fraudulent misrepresentations whereby the plaintiffs were induced to part with their goods; but, on the contrary, they aver that their patronage was solicited by them, and the goods were sold to them without either question or statement; that the purchase was made, on their part, in perfect good faith, and with the intention, and expectation of paying for them, in the due course of trade.

Several of the attaching creditors answer and aver that the goods were the property of the defendants, and liable for and subject to their writs, under which they had acquired rights and privileges thereon, by virtue of their seizures, prior to the institution of plaintiffs’ suit, and superior to those of the plaintiffs; and they pray for the rejection of the plaintiffs’ demands.

On these issues judgment was rendered in favor of the plaintiffs, on the ground that, at the date of the purchase, the defendants did not expect to pay for the goods, and it, therefore, pronounced the sale void ab initio, recognized the plaintiffs’ ownership, and decreed them entitled to be placed in possession; and several of the attaching creditors have appealed.

The facts elicited on the trial are the following, viz:

There had been dealings between the plaintiffs and the defendants from 1880 to the date of sale in question; and between plaintiffs and other firms to whom the defendants succeeded, since 1866. Prior to purchasing of plaintiffs, in August, 1877, the plaintiffs required of the defendants’ represensative no statement, written or oral, and none was furnished, and no questions were asked. William Moss, a member of the defendant firm, says, as a witness : I had seen Mr. Green in 1886, and he knew me at once, and sold me the goods at once. * * I bought those goods about August 22, 1887. I had no idea, at that time, that our house would fail during the business season, and did not know that the failure of our house was imminent. * * There was nothing false in my statement to Sweetzer, Pembroke & Co. * * I answered all of their questions truthfully * * Our purchases in 1887 were about the same as usual.”

These statements are not disavowed by the plaintiffs’ witnesses, but are affirmed, inferentially.

The credit man of the plaintiffs’ firm, as a witness, says : “ No special inducements were offered, to obtain credit. * * * Plaintiffs supposed defendants abundantly responsible, as shown by the statement (of R. Gr. Dunn & Co.) referred to, or they would not have sold them on a credit. * * I was induced to extend credit by the representations which I obtained from R. Gr. Dunn & Co., the Bradstreet Co., and Sweetzer, Pembroke & Co. * * and I supposed them abundantly responsible, by the statement referred to heretofore, or I would not have sold the firm on a credit.”

The goods were sold on open account, payable on three and four months’ time.

Before making the sale to defendants, the plaintiffs consulted the reports of the R. Gr. Dunn & Co. mercantile agency, bearing dates July 28th, 1887, and August 12th, 1887. These reports showed that the members of the defendant firm owned two plantations which cost them $125,000, and that same were subject to an incumbrance of $33,000, and that, defendants owned two stocks of goods worth $15,000 to $18,000.

The defendants did not purchase any goods of Sweetzer, Pembroke & Co., until after their purchase of the plaintiffs was completed. There was no formal statement called for, or made to them. They were questioned by them, and made answer to them, which answers they subsequently caused to be written out as a memorandum, and preserved it.

The plaintiffs were only informed, on the 4th of October, 1887, of the defendants suspension, and the attachment of their goods, and amongst others, those mentioned in this suit.

Prior to the 10th of October, 1887, when this suit was brought, there had been filed against defendants thirty-four attachment suits, and their property seized, on debts aggregating $100,000. In great part these debts were not then due, and many of them were on open account, and for goods purchased at the same time plaintiffs sold defendants.

Reference to the certificate of mortgages shows that defendants’ real estate was mortgaged to the extent of $83,000; but there is no direct evidence of their insolvency at the time of these transactions.

In Yerger Milling Co. vs. Lawler, 38 Ann. 572, we recently said in quite a similar case:

“The only fraud alleged in this case is that before obtaining the credit, defendant falsely and with intent to defraud, represented himself to be solvent, knowing that ho was not so.
“ A representation, of solvency is ordinarily implied in every application to buy merchandise on terms of credit; but it requires a wilfully false statement to that effect, as a fact, and not as a more opinion, which may be innocently mistaken, to vitiate the contract.”

Under the state of facts above recited, it is plain that as between the plaintiffs and the defendants judgment was erroneously rendered in favor of the former. But the defendants did not appeal, nor join in tho appeal of their creditors. The appellants do not, however, occupy the position of third persons with regard to the judgment. They are co-defendants and included in the decree against Moss & Co. Now, while it is true, as a general proposition, that no alteration can bo made in a judgment by an appellate court, as between appellees, yet a co-defendant, as an appellant, may have it amended, or reversed, in so far as it affects his rights, notwithstanding it may remain in sialu quo in other respects.

The judgment appealed from must be reversed in so far as it affects the appellants.

It is, therefore, ordered and decreed that said judgment, in so far as same may affect the rights and interest of the appellants, be and the same is reversed and annulled; and, it is further ordered and decreed, that there be judgment in their favor and against tho plaintiffs and appellees, rejecting the demands of the latter, as to them.

It is further ordered and decreed that all costs that have been incurred, in both courts, in so far as the appellants are concerned, be taxed against the plaintiffs and appellees, and that the judgment of the court ft quo remain undisturbed in other respects.


author: McEnery, J.

text:
    No. 10,233.
    J. H. Massie vs. T. R. Brady et als. W. P. Smith vs. Thomas Brady.
    (consolidated).
    It is elementary that a bona fide imrchasor at a judicial sale is protected hy tho decree, and ho is not compelled to go holiind it and investigate the facts upon which the decree was rendered.'
    Claiming tho proceods of a sale judicially affirms the validity of the sale, and the party cannot, afterwards, attack the sale for nullity, unless it he shown that the judicial admission was made through an error of fact.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorldes, J.

      J. JE. Wallace for J. II. Massie, Plaintiff and Appellant:
    The payment of a note, at its maturity, extinguishes a mortgage given for its security. Tho subsequent re-issue of the note does not revive the mortgage. Hill vs. Hall, 4 Rob. 46; Shenkel vs. Craves, 19 Ann. 260; Smith vs. Brady, 37 Ann. 122.

      ‘ Whore an obligation is yrima facie proscribed, there must be authentic evidence of interruption of the prescription before one can proceed via executiva” Hennen’s Digest, page 848. and cases cited, of Union Bank vs. Dosson, 7 Ann. 548; Bowler vs. Beatty, 10 Ann. 275.
    “Asale under afi. fa., ponding a third opposition, if the oi>position be sustained, is null.” Hennen’s Digest, page 1181, Ho. 11; Ludeling vs. Graves, 3 Ann. 590.
    “ The law considers all purchasers affected with notice of the opposition.” Lobdell vs. Union Bank, 8 Ann. 117; Borde vs. Erskiuo, 33 Ann. 873. In case at bar, the purchaser, McAdam. admits his previous knowledge of the pending opposition.
    “Ponding an action for property, it cannot be alienated to plaintiff’s prejudice: if he got a judgment it is considered the sale of another’s property, and he may be put in possession, or subject the property to execution.” Heimon’s Digest, page 1325, Ho. 5, and authorities there cited.
    The ©njoinment of a judicial sale is not an essential prerequisite to securing the rights of a party having a real right to tho thing seized. C. P. Art. 400.
    It was under this Article (400) that in above case of Ludeling vs. Graves, 3 Ann. 597, the third opposition was taken.
    Mortgage creditors who have not, by third opposition, primarily, opposed a judicial sale, retain their rights to “urge the nullity, and have it declared void and of no effect.” As in Bordo vs. Erskiuo, 33 Ann. 879; see also Wilson vs. Gallien, 1 Bob. 34.
    A judicial sale, to enforce a conventional mortgage, in no manner impairs or works a cancellation of a anterior judicial mortgage. C. P., Arts. 709, 710. A fortiori, when previous to issuance of the writ, tho conventional mortgage is extinct, as in tho case at bar.

      Wm. li. Mills on tlie same side.

      James David Coleman for M. J. McAilam, Defendant and Appellee :
    Ho contract of, or with the debtor, can be avoided by a creditor, except such as is made in fraud of his rights, or if carried into execution would have tho effect of defrauding. If made in good faith it cannot be annulled, although it prove injurious, and although made in bad ■faith it cannot be annulled unless it operates injury to the creditor. C. C. 1978. When neither fraud nor injury is alleged, in such an action there is no legal cause of action. C. C. 1779 et seq.-, 30 Ann. J74; 31 Ann. 5S5; 6 Ann. 61, 585; 8 Ann. 503.
    An onerous contract made by one for value and in good faith with the debtor, who fraudulently enters into such contract, cannot be annulled to tho prejudice of the contracting party in good faith. Id. and O. C. 1981 et seq.

    When there is a cession, the light to annul and revoke contracts and judgments or agreements made by, or with, tho debtor, vests exclusively in the syndic. Ho individual creditor has aright of action after the debtor’s cession to annul or revoke such contracts. C. C. 1970, 1971.
    The action to annul fraudulent contracts, or such as operate an injury, must be brought by a judgment creditor within one year from the date of his judgment against the debtor. O. C. 1994.
    The reissuance of a paid note, secured by mortgage, to a bona fide third person, vests in such person a valid mortgage against the iiroperty of the debtor, without prejudice to real rights acquired previous to reissuance and after payment. 35 Ann. 1, 5, 6; 16 Ann. 435.
    A sale of property made under an order of seizure and sale, issued by a court of competent jurisdiction, vests in a bona fide imrebaser a good and valid title, and he is protected by such an order and need not look beyond it. C. P. 732 to 740 ; 5 H. S. 214; 8L. k. 424.
    Tlie order of seizure is in no manner affected by tho subsequently ascertained fact of the defect or insufficiency of tho evidence upon which the order issued, unless such fact is shown on an appeal from such order. While a mortgage may be invalid, and even null in.fact, if regular in form the order and writ of seizure rendered thereon, unless appealed from, are not affected thereby, and the execution of the writ vests in the purchaser a good title. The confusion of the mortgage or the extinguishment of the debt by prescription or otherwise, disclosed by proceedings subsequent to the adjudication cannot affect a bona ficle purchaser. 5 B. S. 214; 8 B. R. p. 421; 81 Ann, 58; 2 Peters, 166; 18 Howard, 497; 2 Ann, 468; 14 Ann. 154; 18 Ann. 485; 22 Ann. 868-371 ; 25 Aim. 80; 26 Ann. 709.
    Under the law of this State third opposition is permitted in two cases, viz:
    1. When the third opponent is a creditor of tho soized debtor and seeks to regulate such ■ seizure, in so far as it affects his rights.
    2. When the third opponont claims ownership of the seized property. C. P. 396.
    Tho intervention by third opposition by a judicial mortgage creditor, who claims a preference over the seizing creditor on the property seized, and asks to have the proceeds to be realized from the sale detained and applied to the payment of his debt by such preference, and secures an order of oourt to have such proceeds held and detained to pay his debt, is a judicial affirmance of tho validity of the order, of tho evidence upon which it is based, and of the adjudication, from which affirmance ho cannot afterwards recede to tho prejudice of the purchaser. Claiming the proceeds is an affirmance of the validity of the proceedings and sale by which the proceeds are realized. 31 Aim. 100, 103, 104; 29 Ann. 274; 24Ann. 289; 2 Ann. 684: 3 Ann. 454; 21 Ann. 263, 500 ; 22 Ann, 136; C.C. 2291; 26 Ann. 630; 23 Ann. 735; 5 Ann. 18; 4 Ann. 416.
    A superior mortgage creditor cannot arrest the sale of tho dobtor’s property at the instance of an inferior mortgage creditor. His rights cannot be impaired by the sale, since, if a special mortgagee, the property must sell for sufficient to pay him, and, if a judicial mortgagee, he must look to the proceeds. An injunction cannot legally issue to arrest such a sale. 5 R. II. 496; 7 M. 281; C. P. 679. '
    A judgment, unless revived, is prescribed in ten years from its rendition. C. C. 3547 ; 21 Ann. 295 ; 23 Ann. 176; 29 Ann. 295-296 ; 30 Ann. 692, 1331. Plaintiff’s judgment is proscribed.
    One year prescribes plaintiff’s action to annul the mortgage, tho order of salo and the adjudication. C. C.1994; 24 Ann. 260 ; 28 Ann. 625; 29 Ann..285.

      Bayne, Denegre & Bayne for T. J. Fallon, Syndic:
    Proceeds in the hands of a sheriff, resulting from the sale of property of an insolvent, form part of his assets, and must bo turned over to the syndic of his creditors for distribution among them in concuna. Bajourin vs. Bamelli, 35 Ann. 783; Lyons vs. McRae, 14 Ann. 438.
    All of the debtor’s property passes to his creditors by the surrender, whether mentioned in tho schedule or not. 11 La. 531; 12 La. 109; 2 B. 133 ; 8 B, 123.
    The subsequent death of the insolvent does not divest possession of syndic, who continues to administer as usual; the surplus, if any, goes to tho succession representative. Laurence vs. Guice, 9B. 219; B. G G. Art. 2180.

      James Timothy ami T. Gilmore (& Sons for Mary Hughes.

      Gus. A. Breaux for tlie Public Administrator.
   The opinion of the Court was delivered by

McEnery, J.

This case was before tbis court in February, 1885, and the facts are stated in 37 Ann. p. 122. In that case the court said: “ The only present solution of tlie matter open to us is to vacate the judgment below-as in case of non suit, leaving the parties to take such proceedings as will pnesent the issues in a form susceptible of adjudication of the rights of all those who are interested.”

In pursuance of this decree, J. II. Massie brought suit against W. P. Smith, Thos. R. Brady, the sheriff, and M. J. McAdam, to have the sale annulled from the sheriff to McAdam in the executory proceedings of Smith vs. Brady, under and by virtue of winch McAdam purchased the property. During this litigation Brady took the benefit of the insolvent laws. The syndic has been made a party to the suit. Brady died and the public administrator has also been made a party.

Massie, in his petition, alleges that the executory proceedings and the sale to McAdam by the sheriff are null and void, as the mortgage note upon which the order of seizure and sale was granted had been extinguished by payment when the order was granted and the writ of seizure and sale issued, and the sale as to McAdam is, therefore, null and void. He asks that the sale bo sot aside and the property made subject to his judicial mortgage. McAdam and Mrs. Hughes, another mortgage creditor, answer, and both maintain the validity of the sale from the sheriff to McAdam.

The district judge rendered a judgment sustaining the validity of the sale to McAdam, dismissing plaintiff’s suit, in that respect, and referring all other issues, costs included, to the concurso, the fund to. he distributed by the syndic.

It will not be necessary to notice the exceptions filed in the suit. The only question presented for solution is was the sale to McAdam by the sheriff, under the writ of seizure and sale as valid.

In the executory process of Smith vs. Brady, the mortgage debt apl>arcntly existed. The proceedings were all regular, and the order was issued by a court of competent jurisdiction. The judgment was not arrested, either by a suspensive appeal or injunction. It is shown that McAdam was a bona fide purchaser. His good faith is not disputed. It is elementary that a bona fide purchaser at a judicial sale is protected by the decree ordering the sale, and he is not compelled to go behind ir and investigate the facts upon which the decree was rendered. 18 Ann. -185, and authorities cited.

In the executory process obtained by Smith against Brady, Massie, the judicial mortgage creditor, filed a third opposition and alleged the payment of the note and extinguishment of the mortgage, upon which Smith obtained his order, and therefore ho had a preference on the proceeds of the sale over the seizing and other creditors.

On his application an order was rendered by the district judge directing the sheriff to retain in his hands the proceeds of the sale of the property, until the further orders of the court.

His opposition was hied in accordance with Art. 401 C. P., and the sale took place as a matter of course, and the rights of the opponent are transferred to the proceeds. Claiming the proceeds judicially affirms the validity of the sale, and the party cannot afterwards attack tho sale for nullity unless it be shown that the judicial admission was made through an error of fact. 31 Ann. p. 100.

There is no proof that the opposition of Massie was made through any error of fact. He alleged in that opposition all the facts which he now presents for the nullity of the judgment.

The judgment appealed from is correct and is therefore affirmed.


author: Fenner, J.

text:
    No. 10,374.
    State of Louisiana ex rel. J. A. Shakespeare, Syndic, et al vs. Henry L. Duffel, Judge, Etc.
    1. The writ of certiorari arraigns tlio regularity of the proceedings of an inferior court. In this case, tho proceedings have been strictly regular. Tlio only one assailed on tins ground is tho granting of a mandatory order to enforce a prior injunction, in vacation and at chambers; but this is expressly authorized by Revised Statutes, Sec. 1746.
    2. The writ of prohibition raises questions of jurisdiction and of judicial power. In this case, as to parties and subject-matter, jurisdiction was vested exclusively in tho court presided over by respondent and in no other. The orders and proceedings wore all within the proper domain of the judicial power. The original injunction is expressly authorized by paragraph 4 of Art. 298 C. P., and the subsequent mandatory order was in aid and enforcement of tlio prior valid prohibitory injunction, and, on that ground, is recognized by this court as a proper and valid exorcise of judicial authority.
    y^PPLICATIQN for Prohibition and Certiorari.

      JU. Bugh and Bayne, Denegre & Bayne for the Relators:
    1. Plaintiffs are at liberty to choose their form of action, but having once made choice, they are hound by their election, and hold to tho law governing tho particular remedy. Penn vs. Rearny, Blois & Co., 21 Ann. 23; Conery vs. Clark, 13 Ann. 317; City of How Orleans vs. Paving Co., 20 Ann. 394; Miltenberger vs. Hill, 17 Ann. 58.
    2. Petitory and possessory actions cannot be cumulated, and if they be cumulated, the plaintiff shall bo considered as having renounced tho possessory action, and tho judgment shall decide only questions of ownership. Articles 54, 55, 57, Code of Practice.
    3. Prom tho very nature of things, a petitory action necessarily admits possession in defendant; otherwise, it would not lio. C. P. 543 ; Girard’s Heirs vs. New Orleans, 13 Ann. 295; 6 R. 190.
    4. A preliminary injunction cannot issue to oust a defendant who is in actual possession, whether rightfully or "wrongfully, is immaterial. 36 Ann. 561, R. R. Co. vs. It. It. Co.; C. P. 59 and 43; C- C. 34 and 54.
    5. Even a trespasser is protected in his possession until his trespass is established by due proof, at the demand of one who shows some better right than himself, in a suit regularly brought. To all others, possideo quia possideo, is a sufficient answer. 37 Ann. 117, Succession Townsend.
    6. Courts can execute their judgments through the sheriff alone; they cannot order any other person or persons to execute them, or clothe such other person or persons with authority or power to act, C. P. 760; R. S. 1177, 3593; State ex rel. Vaughan vs. Richmond, Sheriff, 29 Ann. 707.
    7. Courts are without power to render judgments during vacation. State ex rel. Dehan vs. Judge, 35 Ann. 1078; Telegraph Co. vs. It. R. Co., 39 Ann. 659 ; 33 Ann. 76; Dixon vs. Judge, 2'3 Ann. 482; 21 Ann. 306; 26 Ann. 119 State ox rel. Dickson vs. Jndgo.
    8. A judgment rendered in vacation not being a judgment, no appeal can be taken, and the only remedy is to invoke the supervisory jurisdiction of this court. Hernandez vs. James, 23 Ann. 483; 21 Ann. 306; Dixon vs. Judge, 26 Ann. 119; 30 Ann. 303.

      R. N~. Sims and R. McOullofo for the Kespondent:
    1. The suit entitled ‘‘Commissioners of the Eirst Drainage District of Ascension etal. vs. Vr. J. Kelly et al.,” Ho. 595 of the docket of the District Court, is an appealable case and therefore the writ of certiorari does not lie. Code of Practice, Art. 857; Stewart vs. Barrow, 6 H. S. 381; 33 Ann. 256; 32 Ann. 1092-1222. The record of proceedings below makes full proof of itself. 36 Ann. 977.
    2. “It is established by the jurisprudence of this court that no application for a prohibition can be entertained until after a plea to the jurisdiction of the lower court has been urged and overruled.” State ox rel. J. A. Shakspoaro, Mayor, vs. Judge, 40 Ann. 608; 29 Ann. 306; 37 Ann. 845; 38 Ann. 569, 920, 178. Exceptions to form of proceedings do not draw in question jurisdiction of the court. 38 Ann. 920.
    Jurisdiction vel non of lower court only question to he considered. State ox rel. Bertlioud vs. Judge, 34 Ann. 782.
    3. Dower court fully vested with jurisdiction of subject-matter of suit Ho. 595. All of defendants, including Shakspeare, Syndic (relators here), submitted to the jurisdiction of the court by filing formal pleas and an answer on the merits. There could he, therefore, no usurpation of jurisdiction or authority by the judge in the case. State ex rel. Bertlioud vs. Judge, 34 Ann. 782.
    4. Respondent performed his duty under the law in ordering the immediate removal of the dams or obstructions in the common drain or public canal described in plaintiff’s petition. Code of Practice, sec. 4, Art. 298; McDonough vs. Calloway, 7 Rob. 442; Black vs. Towboat Company, 31 Ann. 497. The testimony of Dr. H. C. Stevens, C. "W. Docke and Isaac Adams, all well known citizens, exposed the urgent necessity of prompt action by the court. Though duly notified, relators summoned no witnesses, offered no testimony and failed entirely to appear or make any objection or opposition to the form of proceeding.
    5. Respondent submits that there is nothing in the present condition of the case, in the proceedings below, upon which the jurisdiction of this court can be exercised, even under its supervisory powers.
   The opinion of the Court was delivered by

Fenner, J.

The proceedings of the respondent judge, which are assailed in this action as exceeding the bounds of Ms jurisdiction, and as null and void for irregularity, may be briefly stated as follows: On the 6th of March, 1889, the commissioners of the first drainage district of Ascension, joined by various land-owners, alleging that Win. J. Kelley and others, owners and occupants of Bocage plantation, liad obstructed and were obstructing a certain public canal which had existed and served as a common drain for the district for more than thirty years, and had, by threats and violence, prevented the said commissioners from discharging their legal duty to clean out said canal and remove all obstructions therein, to the great detriment and injury of the property of the inhabitants of the district, applied for and obtained an injunction restraining said parties from further obstructing said canal or from interfering with the commissioners in removing or causing to he removed existing obstructions, and prayed for a final judgment recognizing the rights claimed by petitioners and perpetuating the injunction.

To this suit, the parties defendant appeared and filed several exceptions which were regularly tried and overruled. They then joined issiie by general denial, and the case was fixed for trial on the 30th of March; bat, when called, on the application of defendants, was continued until the next term of court.

On the 5th of April, the plaintiffs filed a supplemental petition, alleging that, notwithstanding the injunction, the defendants persisten in maintaining obstructions to the said canal and threatened to kill the said commissioners or other persons who should attempt to remove them, and setting forth the great injury and damage thereby occasioned to the district, and prayed for an order on the defendants to show canse on- a day fixed why an order should not he granted authorizing and directing said commissioners or the sheriff to remove said obstructions and to keep said banal clear until the further order of the court.

On this petition the judge granted his order directing the defendants to show cause on the 12th of April, why the relief prayed for should not be granted.

On the 12th of April, at the hour fixed, the plaintiffs appeared with their witnesses, but the defendants made no appearance and filed no pleading. After waiting a reasonable time, the judge took up the rule and proceeded to hear witnesses, and it was only after progress had been made that a verbal message was received from one of the counsel for defendants stating that he could not be present and requesting a continuance till the following Monday, when, the judge says, he was to open court in another parish.. He refused the request, and, after hearing- witnesses, granted the order prayed fox.

The defendants, who are the relators here, invoke the exercise of our supervisory jurisdiction, through writs of certiorcvri and prohibition, to declare the absolute nullity of both the original injunction and of the order to remove existing obstructions, and to prohibit the respondent judge from executing them.

The case presented is utterly barren of any foundation for the exercise of our supervisory power.

The relief by certiorari is inapplicable, because the proceedings are perfectly regular in all respects., The only point on which their regularity is assailed is that the judge was without power to hear or grant the order removing the obstructions in vacation or at chambers; but this is answered by the express x>rovision of Art. 1746 R. S., which declares “ the district judges shall have authority, at chambers, to grant * * orders of arrest, attachment, provisional seizure and injunction and all orders relating thereto.”

Indeed, these summary and conservative remedies would be shorn of their intended efficacy if the opportunity of invoking or enforcing them were suspended during thfe long and frequent vacations of the courts.

The writ of prohibition raises questions of jurisdiction and of judicial power. So far as the jurisdiction of the court is concerned, it is patent on the face of the x>apers. The court presided over by the respondent, and no other, has jurisdiction over the xmrties and subject-matter.

The orders granted lie unquestionably within the judicial power.

So far as that xmrt of the original injunction sx>ecially comxffained of is concerned, viz : the prohibiting defendants from interferring with the commissioners in removing obstructions — the allegations of the x>etition bring it distinctly within the x>rovision of paragraph 4 of Art. 298 of the Code of Practice, as one of the cases in which, says the article, the injunction must bo granted,” viz: When the defendant opposes the execution of works necessary for the repairs of irablic levees, dikes, roads, bridges, canals, d/rains and the like.”

This is alleged to be a public canal and drain, and certainly the clearing out of obstructions therein is a necessary work of repair, without which its whole usefulness would be destroyed. It is alleged and, indeed, admitted, that the defendants are interfering with the execution of this work. It is vain for them to deny that the canal is x>ublic, or to assert tlieir legal right to maintain obstructions and to x»revent their removal. Those issues go to the merits of the case and must await determination by the Anal decree. If they shall be decided in their favor, the bond of plaintiffs will be answerable for the expense of restoring their dams and for all other damages they may suffer.

Nor can the power of the court to order the removal admit of quostion. The power to grant such orders, in certain exceptional oases, lias been affirmed by this court in decisions entirely applicable here. McDonough vs. Calloway, 7 Rob. 442; State ex rel Yale vs. Judge, 41 Ann. 516.

This case, on its face, falls within the exceptional authority thus recognized, tlie order having been made in aid and enforcement of a valid prohibitory injunction.

The contention that these orders operate, in effect, a final decision on the merits of tlie case, in advance of trial, is unfounded. The orders are manifestly interlocutory and only serve to regulate the conduct of the parties pendente Ute. When the case shall be finally decided, the legal status of the parties will be declared and enforced, and whatever wrongful interference therewith lias happened in the meanwhile will bo repaired under the security of the injunction bond.

It is, therefore, ordered and decreed that the writs applied for be denied at relators’ costs.


text:
    No. 10,343.
    The Canal and Claiborne Street Railroad Company vs. The Crescent City Railroad Company.
    The City of 2sTew Orleans, by delegated power from tlie Legislature, has the paramount control and regulation of the streets of the city, and can grant the use of street railway already constructed, to another which sho has authorised to be operated.
    The City Council can not grant the exclusive use of the streets to a street railway, and deprive succeeding councils of the power of performing the duty of regulating the use of the streets in such manner as it may deem best for the public interests. ,
    The proprietary right which a street railway has on its tract is subject to the right of eminent domain.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      J. B. Beckwith for Plaintiff and Appellant:
    Under both the Constitution of 1868 and 1869, private property cannot be taken or damagocl for any public use until full compensation is made. Act 110, Constitution 1868, Constitution 1879, Article 156.
    Whon any individual or corporation is to bo divested of property for any public use, against the will of the party to he divested, a strict compliance with the law providing for expropriation the conditions precedent to taking the property must be strictly complied with or title and rights are not divested, and the party claiming to have divested any one of property or right, must affirmatively show full compliance. Cooley on Const. Lim. 528; GiUenwater vs. B. B. Co., 13 HI. 1; Stanford vs. Warn, 27 Cal. 171; Hicholls vs. Bridgeport, 23 Conn. 189; ¿Tudson vs. Bridgeport, 25 Conn. 428; People vs. Brighton, 20 Mich. 57.

      If a statute or reservation in a grant of property or franchise only authorizes proceedings in mvitum, after an effort has been made to agree with the owner of the property taken on the compensation to be paid, there can be no taking of imoperty or expropriation until there has been a bona fide effort to agree on the value or compensation to be paid, and a failure to agree. If, as in this case, the condition of appellant’s grant was as contended for by appellee, no right or property could be taken away from appellant until the city of New Orleans had made a lawful attempt to come to an agreement with appellant for compensation. No colorable right to even appoint appraisers arose until after such attempt and its failure. Ordinance 1204, City of New Orleans; Cooley on Const. Rim. 528; Reitonburg vs. R. R. Co., 21 Penn. St. 100.
    Until payment is actually made, the title to expropriated property does not vest in the party expropriating; payment is a condition precedent. Cooley on Const. Dim. 529; Stacey vs. R. R. Co., 27 Yt. 44; R. R. Co. vs. Nesbit, 10 How, 395; Bloodgood vs. R. R. Co., 18 Wend. 10; G-illenwater vs. R. R. Co., 13 HI. 1.; N. O. R. R. Co. vs. Degardo, 10 Ann. 150; Grellan vs. Hutchinson, 16 Cal. 153 ; Mills on Eminent Domain, Sec. 130, and cases cited.
    The consent or grant of State or municipal authorities cannot operate to transfer private property or release damages. Such consent can only protect grantee from indictment as a public nuisance, but not against the claim of those whose property rights are involved. Mills on Eminent Domain, Sec. 134, and cases there cited.

      John Jf. Bonner for Defendant and Appellee:
    The plaintiff has no exclusive right to construct street railways on Canal street. A grant is not exclusive, unless so declared in express terms.
    In this case, it is expressly declared that the grant shall not be exclusive. Art. 150, p. 428, Jewell’s Digest.
    “ Where no exclusive grant is given, the Regislature may, at will, and without compensation to the first company, authorize a second grant on the same streets or line.” Dillon on Munic. Corps., 2d Ed., sec. 578.
    Had the Council granted the defendant the right to construct a road on Canal street, instead of granting the use of plaintiff’s tracks, defendant’s cars, running thereon, would have carried the same number of passengers as now ride in its cars, and plaintiff would have no legal ground to complain of a loss of its traffic.
    If, therefore, the plaintiff had the right to charge defendant trackage, that charge should be based exclusively on the wear and tear of plaintiff’s road by the use of extra cars. See Metropolitan R. R. vs. Highland R. R., 118 Mass. 290, where the question is fully discussed.
    The Regislature may repeal the charter of a street railway corporation, where the right to do so is reserved, and may authorize a new company to take any property of the old of the corporation upon making compensation. Greenwood vs. R. Co., 105 U. S. 13.
    Where the right to lay tracks in a street is granted upon condition that the right to use them by another company may be granted upon compensation to bo fixed by the Council, in case the companies cannot agree, the condition is binding. Railroad Co. vs. Railroad Co., 36 Ohio St. 239.
    The passage of Ordinance No. 1204, and the acceptance of its terms by plaintiff’, in laying its track and constructing its road thereunder, constitutes a contract between the plaintiff and the city, and the conditions of the contract cannot be changed without the consent of the city and of the defendant, its beneficiary. 105 U. S. 13; 36 Ohio St. 239.
    This contract originated under the Constitution of 1868, and if this were the taking of private property, where the Constitution does not require prepayment, “ it is held in most of the States that compensation need not precede an. entry upon the in.‘operty.J’ Constitution of 1868, Article 110; Rewis on Eminent Domain, sec. 456, and authorities there cited.
    “ The owner may, by his action, waive his right to the prepayment of damages * * * If there was a waiver in fact, either oppress ox implied, by acquiescing in tho proceedings of the company to the extent of not insisting upon prepayment as a condition precedent, but consenting to let the damagos lie and remain a mere debt, then the corporation is not a trespasser, or-liable to ejectment.” Mills 011 Eminent Domain, sec. 140; 35 Ann. 924; 39 Ann. 427.
    In the St. Julien case, 35 Ann. 924, “the complaint was that the company entered the lands without the owners’ consent, without buying or offering to buy, or expropriating them, and that it should not expect nor be permitted to use his property without some compensation, but .should be prohibited from trespassing upon it, and he claims, therefore, one dollar per day for its use. * * The suit is substantially a demand for rent, which we do not think he can maintain, but must be remitted to his action for compensation.”
    The facts in that case show that no opposition was made to the taking.
    In the present case, active assistance was given by the plaintiff to facilitate the entry of defendant’s cars upon its tracks.
   The opinion of the Court was delivered by

McEnery, J.

This is a suit to recover from the defendant company the value of the use of the street railroad tracks of the plaintif, on Canal street, from its terminus, on Canal street, near the Levee, up the north side of Canal street to Carondelet, and from the intersection of St. Charles street, both the Canal street tracks on the south side of Canal street to the terminus, near the Levee — total length of track, 3900 feet.

Compensation is claimed from September 8, 1881, the date the defendant company commenced using plaintiff’s track, at the rate of four cents traveled by each car of the defendant company, amounting to $15,040 50.

The plaintiff alleges that no other company has any right to use its track without its consent, for any purpose of traffic or carriage of passengers.

The defendant company filed an exception, which was referred to the merits, and then answered, denying that plaintiff had a right to demand pay for the use of its road, as demanded, and that if they had any right to demand compensation for the use of its road, four cents a mile for each car was too much, and claim that the. ordinances of the City of New Orleans point out the manner in which compensation for the use of the road must be estimated and regulated.

The defendant took several bills of exception to the introduction of testimony— some seven in number. They all go to the effect of the testimony, and it was properly admitted.

There is but one question to determine in the case:

Was the defendant company authorized by legislative provisions to use the track of the plaintiff, and in granting the permission was the mode' of compensation regulated ?

Complete authority has been granted by the General Assembly to the City of New Orleans over the streets. The City of New Orleans has paramount control and regulation of them. The operation of a street railway is the exorcise of the public right of way over the streets. The street belongs to the public. The proprietary right which a street railway has in its track is therefore subject to the right of eminent domain over its streets vested in the city.

The City Council may, in the exercise of the power delegated to the corporation in the control and regulation of the streets, grant to one company the right of way over them, and afterwards grant the right of way over a part of the same railway to another company.

The City Council is without power to grant the exclusive use of a street, which belongs to the public, to a railway company. It cannot thus deprive succeeding councils of the power of performing the duty of regulating the streets as may seem to them to be for the best interest of the jrablic.

There can be no doubt but that the Crescent City Railroad Company had the right to construct and operate its railway, and a part of the line covered a part of the plaintiff’s track, on Canal street, and the intersection at St. Charles street, as described in the petition. And there can be no doubt but that the defendant company had been granted the use of the plaintiff’s railway, and that with the consent of plaintiff it peaceably put its cars on plaintiff’s track and has kept them running on a part of it since that time.

Before the operation of defendant’s street railway the City Council, in 1868, passed the following ordinance:

Should the City of New Orleans, at any time during the existence of the contract of 6th of May, 1867, between it and the Canal and Claiborne street Railroad Company, enter into any arrangements with other companies whereby said road on Oanal street, from Claiborne street to Front Levee street; and from Front Levee street to Claiborne street, or any part thereof , may be granted, the City of New Orleans, or the road or roads to which the privilege may be granted, shall reimburse to the Canal and Claiborne Street Railroad Company, a fair cmd reasonable proportion of the value of the portion or portions of the road to be used; and should said in’oportion not be agreed upon between said Canal and Claiborne Street Railroad Company and the City of New Orleans, or the said road or roads, two disinterested persons shall be appointed, one by the City of New Orleans or the road or roads, as the case may be, and the other by the Canal and Claiborne Street Railroad Company; and in the event of a disagreement as to the said proportion to be paid, between said persons thus appointed, a third person or umpire shall be appointed by the judge of one of the district courts of the Parish of Orleans, and tlie decision thereby had, shall be final and binding.” Ordinance No. 1201 N. S., page 427, Jewell’s Dig., Article 151.

In this ordinance the City Council has not only granted the privilege to another company, which it may authorize to operate a street railway to use the track already constructed, but it has pointed out, and regulated, the manner in which compensation must be made.

Tiie city liad the undoubted power to grant the privilege of the right of way and regulate the manner in which one street railway using the track of another should make compensation. 28 Am., L. Reg. 765.

The plaintiff company has failed to follow the requirements of the ordinance.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,357.
    Louisiana Brewing Company vs. Board of Assessors.
    Compliance with Section 27 of Act 98 of 1886, providing for tho appearance by complaining taxpayers, asking a reduction of assessment, before the assessors, as a Board of Reviewers, is a condition precedent which must be fulfilled, before the taxpayer can assort his right before tho courts, for relief.
    A return made by tlie taxpayer previous to tho first of March, to tho assessor, under Section 17 of the same act, does not answer the purposes of tho appearance which must be made after that date before the assessors sitting and acting as a Board of Reviewers.
    Tho appearance and opposition are matters of averment and proof. "Where the latter fails, tho courts are powerless to afford relief.
    In requiring this appearance, the General Assembly has not unduly enlarged the provisions of Article 203 of the Constitution, which recognizes in taxpayers the right of testing the correctness of their assessments before tho courts of justice.’ The Legislature merely fol lowed an ancient method or form auxilliary to the exorcise of such right, leaving the constitutional provision in a state of perfect integrity.
    APPEAL from the Civil District Court, Parish of Orleans. Hllis, J.

      Buck, Dinkelspiel & Hart for Plaintiff aud Appellant.

      Wynne Roger's and T. MeO. Hyman for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the reduction of what is alleged to be an excessive assessment of the property of the plaintiff corporation.

The petition contains the verbal averments, stating specially, that the retivrns and protest, provided by law, had been made.

The answer is a general denial. From an adverse judgment, the plaintiff company appeals.

There is evidence in the record touching the value of the property assessed; but there was adduced no proof that the plaintiff, in conformity with Sec. 27 of Act 98 of 1886, oppossed the assessment of its property.

The return which was made to the assessor, under Sec. 13 of the same act, and which does not appear to have been heeded by him, cannot be claimed to answer the purposes of the opposition or appearance, to be made by tax payers considering themselves aggrieved by the assessment of tlieir property, as exhibited by the assessment rolls exposed for inspection, between the first and twentieth of March.

The return is to be made anterior to the first of March and addressed to the assessor, while the opposition must be presented after that date and directed to the assessors sitting as a Board of Reviewers, vested with the powers specially conferred on them by the law on the subject.

Although it has been held that the failure of a tax payer to hand in the return does not debar him from appearing before the assessors, as an opponent, to an assessment made, still it is now well settled that compliance with Sec. 27 of Act 98 of 1886, is an essential condition precedent to the exercise of the rights of complaining before the courts. Such compliance is not only a matter of averment, but also and chiefly one of proof.

It is claimed, however, that if the law exact this appearance or opposition, as an indispensible condition, or prerecpiisito sine qua non, it is an undue and onerous enlargement of the constitutional safeguard contained in Art. 203, which recognizes and secures in tax payers, the right to test the correctness of the assessment of their property, before courts of justice.

To this objection it suffices to answer that this formal recognition of right was designed by the framers of the Constitution to suppress and remedy against a pre-existing mischievous legislation (Act 42 of 1871), which denied to tax payers the right of appealing to the courts in such cases, by subjecting this privilege to the exclusive discretion of the Board of Assessors, which in all events was to be final and irrevocable even by the courts; and that the General Assembly did not transgress its powers in prescribing a preparatory method or form to be observed by the tax payers, which is ancillary to the exercise of the right of being heard before the courts, particularly as in doing so, the Legislature merely reinstated a salutary formality which at all previous times, had been prescribed and observed, thus leaving the constitutional provision in a state of perfect integrity.

If the plaintiff corporation has, by its inaction, permitted the door for relief to be closed upon it, it has no one to blame but itself. The court is powerless to interfere.

Judgment affirmed.


text:
    No. 10,387.
    State of Louisiana ex rel. Mexican International Improvement Company et al. vs. A. Voorhies and F. D. King, Judges, Etc.
    1. When a judge of the Civil District Court, to whom a cause lias been allotted, recuses himsolf ex proprio motu, and the cause has been re-allotted to the judge of another division, the latter is without authority to review and annul the order of recusation rendered by the former. Ho provision of law or Constitution vests one judge of that court with power to revise the decision of another. If the recusation bo illegal it can be remedied only in a tribunal having appellate or supervisory jurisdiction.
    2. When such a recusation is made, it is the duty of parties promptly to object, unless they mean to acquiesce, and, if their exception or objection be overruled, to apply for proper remedy.
    3. If they keep silence and suffer various proceedings to progress in the cause based on the assumption of the validity of the recusation, they will be presumed to have acquiesced and will not be permitted, after the cause has progressed to the point of trial, to urge be fore the last judge, for the first time, objections which should have been urged at the time of recusation and before the judge recusing himself.
    yyPPLICATION for Mandamus and Prohibition.

      Max Dinlcdspiel, O. F. Bndi, W. W. Bowe and Farrar, Jonas & Krnttsdmiit for the Relators.

      Walter B. Sogers, Attorney G-eneral, and F. B. McOaleh, for the Respondents.
   The opinion of the Court was delivered by

Fenner, J.

The facts on which this application is based are as follows:

A certain suit entitled The State of Louisiana vs. The Mexican International Improvement Company et al., had been- hied in the Civil District Court for the parish of Orleans, and had been regularly allotted to Division “ E,” presided over by the respondent, Judge Voorhies. The defendants had appeared and filed exceptions and a rule to dissolve injunction, which had been fixed for trial on April 5th, 1889, on which day, the said judge ex proprio moiu recused himself on the ground of relationship to two stockholders of the defendant company. Iiis order was entered on the minutes, no party objecting thereto and no quotest being made by any one.

In accordance with Art. 130 of the Constitution, the case was then re-allotted to Division “C,” of the court presided over bjr Judge P. A. Monroe. The State then again caused the rule and exceptions to bo fixed for trial on April 12th, 1889, on which day the judge also recused himself ex proprio motn on similar grounds. No objection or protest was made by any partjq and the case was again allotted to Division “B,” presided over by respondent Judge King, and the State again caused the rule and exceptions to be fixed for trial on April 22d, 1889. On that day, before the case was taken up, the defendants appeared and filed a rule setting up the facts aforesaid, averring the nullity of the orders of recusation aforesaid and praying that the plaintiff show cause instanter why said orders should not be declared null and void and why said Judge King should not decline all jurisdiction of the cause and why it should not be remanded to Division “ E,” presided over by Judge Voorhies.-

This rule was discharged by Judge King, on the grounds that ho had no jurisdiction to pass upon the reasons of recusation by his brother judges or to overrule their orders, and that if he were to render a judgment remanding the cause to be tried by Judge Voorhies, he would have no power to enforce it.

Thereupon relators presented the present application to this court asking for a writ of prohibition restraining Judge King from proceeding in the cause and for a mandamus ordering Judge Voorhies to take jurisdiction thereof and to proceed in its exercise.

Judge Voorhies responds by a simple statement of the facts on which he based his recusation, which are that he is related to two stockholders of the defendant corporation, his and their respective fathers being cousins german.

Judge King responds justifying his action in declining to review the orders of his brotliefi judges and in maintaining his own jurisdiction, on the grounds above stated and on the further ground that relators had, by their silence and failure to object during the various proceedings had up to the day when the case was fixed for trial before him, acquiesced therein and disabled themselves from complaining thereof.

It is very clear that Judge Voorhies had no legal ground for recusing himself. Art. 338 of the C. P., assigns relationship as a ground of recusation only when within the fourth degree. Art. 310 provides that a judge can recuse himself “ only in such cases where the parties would have the right of recusing him.” Art. 892 C. C. declares that cousins german are related in the fourth degree, and hence, on the judge’s own statement, his asserted relationship is only in the sixth degree. Therefore, pretermitían g the question as to whether relationship to two stockholders of a defendant corporation is such relationship “to one of the parties ” as is defined by the law as a ground of recusation, it is manifest that he had no valid cause.

Equally clear is it to our minds that Judge King was correct in declining to review and set aside the orders of his brother judges in recusing themselves and in maintaining his jurisdiction until those orders were set .aside by competent authority.

The reasons given by him are amply sufficient and are of self-evident strength. They are not in the slightest degree in conflict with the decisions of this court, relied on by relators, which are only applicable to the case where a plea of recusation has been filed by a party to the suit. In that case, unless the judge accepts and admits the plea, an issue is raised in the case, which for obvious reasons, he is incompetent to decide, and that issue, as well as all others, must be referred to the competent judge, who is not called upon to review a decision rendered by a competent judge, but simply decides an original issue for the first time.

If he sustains the plea,’ he holds the case; if he overrules it, he maintains the jurisdiction already claimed by the first judge, and no difficulty can arise as to the progress of the cause. But when a judge recuses himself ox proprio motu, he renders a decision in the case which can only be reviewed by some tribunal vested with supervisory or appellate jurisdiction over him.

No provision of Constitution or law vests one co-ordinate judge of the Civil District Court with authority to revise or annul the decision of another, or with any power to enforce such reversal.

If the relators were dissatisfied with the action of Judge Voorhies in recusing himself, the course for them to pursue -was obvious. They should have excepted to or protested against it, and, if overruled, they should have resorted to the remedy of mandamus in this court, to compel him to exercise the jurisdiction vested in him by law, and to perform the duties attached to his office, which he was illegally refusing to exercise and perform.

It is not alleged that relators were ignorant of the insufficiency of the grounds of recusation or of the facts on which it rested. If they were ignorant, they should have applied for information which could not have been denied. Had, objection been made, and particularly had the judge’s attention been called to tlie, plain textual provisions of tlie law which we have cited, it is evident the recusation could not have been persisted in.

Having submitted in silence and without objection, the judge, as well as their adversaries, had tlie right to assume that they acquiesced, and to proceed with the case in regular course on that presumption. Hence the case was regularly re-allotted; was fixed for trial before Judge Monroe; he recused himself; it was again re-allotted; again fixed for trial before Judge King; and it was only when a trial was about to be had before a judge ready to hoar it, that, for the first time, relators are heard to utter a whisper of objection to the recusation of Judge Yoorhies. Such conduct cannot bo tolerated. It serves to accumulate costs, to exaggerate legal delays, and to waste the time and trouble of judges and officers of court and litigants.

In such a matter it was the plain duty of relators either to have acquiesced or to have objected to tlie order, and if they objected, to have resorted to the proper remedy. Not having objected, and having taken no proper action, they must be assumed to have acquiesced, and after having, suffered judges, officers and litigants to act on that assumption in so many ways and for a considerable period, it is too late for them to evade a trial by raising- tlie objection for the first time when the case is about to he taken up. It involves no question of jurisdictional power. Judge King was perfectly competent to hear and determine the cause, and ,no irregularity of allottment would vitiate or impair his authority in absence of timely objection; and the objection hero was not timely and should have been made before Judge Yoorliies. State ex rel. Buisson vs. Lazarus, 33 Ann. 1425; Pironi vs. Riley, 39 Ann. 302.

The only excuse offered by relators is that they considered that the judge to whom the case was allotted was the only one that coiild receive or dispose of objection to the recusation of the former judge.

This excuse seems inconsistent with the remedy now invoked, because, on that theory, they should have applied for a mandamus on Judge King, directing him to take jurisdiction of and to decide upon tlie validity of Judge VoorMes’ recusation, which he liad declined to do. Instead of this they resort to tlie olear and only proper remedy, open to them from the first, viz : a mandamus to compel Judge Voorhies to proceed with the case.

Holding that tlie relators have, by their conduct, tacitly acquiesced in the recusations, we think they cannot recall that acquiescence, and we shall leave the existing status of the case undisturbed.

It is, therefore, ordered and decreed, that tlie mandamus and prohibition applied for be denied at relators’ costs.


author: McEnery, J. Bermudez, C. J.

text:
    No. 10,339.
    James P. Guinault vs. Louisville and Nashville Railroad Company.
    Whore a suit is "brought against a corporation in the courts of this State, and an- affidavit for removal alleges that the corporation is a citizen of another State, it is insufficient in not stating that the corporation is not domiciled in the State of Louisiana.
    A natural person can have but one domicil. A corporation may be created by the laws of several States and become a distinct corporation in each, domiciled therein, and may be sued in such States as a distinct corporation in the State courts.
    APPEAL from tlie Civil District Court for tlie Parish of Orleans. Voorkies, J.

      W. B. Murphy for Plaintiff and Appellant.
    Bayne, Denegre '<& Bayne for Defendant and Appellee.
   The opinion of the Court was delivered by

McEnery, J.

The plaintiff, to abate an alleged nuisance created by the defendant company, brought suit against it in the Civil District Court for the Parish of Orleans.

The injunction issued as prayed for in the petition. The defendant company filed a motion on the plaintiff to show cause why the injunction should not be dissolved after giving bond with security.

The application was denied and rejected, and after tlie discharge of the rule, the defendant company filed a petition for the removal of the case to the United States Circuit Court for the Eastern District of Louisiana, alleging that the defendant corporation is a citizen of Kentucky, and the plaintiff a citizen of Louisiana.

There is no evidence as to citizenship or domicil of defendant in the record contradicting the same allegation on the subject in the petition.

The affidavit for removal charges that the defendant corporation is a citizen of Kentucky. It is insufficient. It should have alleged and shown that the corporation was not domiciled in the State of Louisiana, as the petition of plaintiff alleges that the defendant company was incorporated under the laws of this State.

An affidavit that a natural person is a citizen tof one State, excludes the idea that he is a citizen of another State.

A natural person can have but one domicil. On the other hand an an artificial person or corporation may be created by the laws of several States, and become a distinct corporation in each, and domiciled therein, and may be sued as such distinct corporation in tlie State in which if has been incorporated and in which it has a domicil. Desty, Removal of Causes, p. 66.

It is, therefore, ordered that the judgment appealed from be reversed and the application to remove the cause be denied, reserving to the defendant corporation the right to show that it is not domiciled in the State of Louisiana and subject to the jurisdiction of the State courts, tho defendant to pay costs of appeal.

On Ai>plication for Rehearing.

Bermudez, C. J.

While the affidavit, in support of the removal, states that the defendant company is a citizen of the State of Kentucky, it does not set forth any averment to condradict the allegation in the petition, duly sworn to by the plaintiff, that the company was incorporated by the Legislature of this State.

The two sworn statements do not conflict and may well stand together and co-exist, for, the corporation may be a citizen of both, Kentucky and Louisiana, for the puipose of suit.

If they be considered as contradictory and destructive, there would then remain no evidence of citizenship of the company as averred in the affidavit for removal.

Rehearing refused.


text:
    No. 10,401.
    State of Louisiana ex rel. A. H. Strickland and A. Y. Alford vs. Gabriel Villeré, Criminal Sheriff.
    When on motion of tko accused tko indictment is quashed, because of the illegal impanelling and constitution of the Grand Jury which presented an indictment for murder, tho accused, on that account will will not to be entitled to bail.
    Wlien the indictment is quashed and the accused had a previous preliminary examination, they are hold under the order issued by the judge on the examination. When the accused, on the refusal of the judge to admit them to bail on the x>i’eliminary examination, apply to the Supreme Court for relief, which is denied, and then again ax>ply for the same relief, on the judge’s refusing bail, when the indictment is sot aside, the same issues are involved- and the writ will be discharged. In order to entitle them to relief they must show denial of Constitutional right, a speedy and public trial, or some fact which entitles them to be admitted to bail. The length of time between the regular terms of courts, unless it is shown the State interposed some obstacles to the trial, and unnecessarily deferred relief will not entitle them to bail.
    yyPPLIOATION for Writ of Habeas Corpus.

      W. F. Kernwn and Beid, & Beid for the Relators.

      Walter S. Hogers, Attorney General, for the Respondent.
   The opinion of the Court was delivered by

McEnery, J.

On the 5th day of April, 1889, the Grand Jury of the Parish of St. Helena presented an indictment against the’ relators for murder.

On the 12th of the same month, on their motion, the indictment against them was quashed and set aside. The ground upon which the indictment was quashed was that the clerk of court had not qualified as jury commissioner at the time when the venire was drawn for April, 1889. The judge very properly ordered, when he set aside the indictment, that the accused be held in custody to aivait a new indictment and trial thereunder.

The preliminary examination and the indictment which was presented by the Grand Jury were sufficient ground for the order. The accused had a preliminary examination before the district judge, for the crime for which they were indicted. Bail was refused and the accused remanded to jail. Application was then made for bail to this court and refused. They have again applied to this court for relief, on the refusal of the district judge to grant an order admitting them to bail. On the setting aside of the indictment the accused were detained in custody on the order rendered by the district judge on the preliminary examination. The same facts, therefore, present themselves in this application. There are no new facts alleged which would entitle the accused to bail. The only fact upon which they rely is that the indictment was quashed on the ground of a failure on the part of the jury commission to provide a legal jury for that term of court, and they can not obtain a speedy trial, as required by the Constitution, as the court which is to try them will not hold its session until some time in October.

It is the length of time, from now until October, when they will be compelled to remain in custody, that the accused complain of, and which they allege will bring their case under the ruling of State vs. Norton, 35 Ann. 608, and State vs. Rice, 40 Ann. 3.

These cases were adverse to the claims set up by accused, but the accused, in the instant case, allege it was because there was no prolonged delay in the opportunity offered them for trial that the decree refusing a writ was rendered in these cases.

Thei’e is nothing in the application which distinguishes it from those cases. The State has not actively interposed an obstacle to the speedy trial of the accused.

■ The court has held its sessions regularly, and they were indicted at the first general term after the commission of the offense.

The courts have been opened for the consideration of their application for relief by habeas corpus, and they have had a preliminary examination.

It was on their own motion that the indictment was quashed, and as this happened at the closing of the term, when no new indictment could be presented, it is no hardship on the accused inflicted by the State to compel them to remain in custody until the next regular term. In this there is no denial of justice, and the accused are not deprived of a speedy irablic trial.

The present application for bail is a practical reassertion of the issue presented on the first application of the accused for bail to this court. And for the reasons‘now assigned, and the reasons in that case, it is ordered that the writ be discharged at relators’ costs.


text:
    No. 10,385.
    The State of Louisiana vs. Joe Johnson, et als.
    An attachment cannot be required against an absent witness, when it appears that he is not in the State and was not served and there is no showing that the accused did not know of his absence, that his testimony is material and that his attendance can be secured for an early trial.
    A previous statement, made at the calling of the case, on inquiry by the court, that only one attachment would be desired against an absent witness, not the one out of the State, is a waiver of all attachments against all other witnesses.
    Ho question, the object of which is to impeach the testimony of a witness, can be put, unless a foundation for it has been previously laid and the -witness put on his guard.
    Arraigning a witness who refuses to testify in a case in which he is a co-defendant with one • on trial, and who has severed in his defense, is no irregularity which, vitiates the proceedings as to the accused at the time on trial by the jury.
    A statement by the trial judge that evidently an effort is made to intimidate the witness on the stand, is not a comment on the facts.
    A question to ascertain the general reputation of the witness for truth and veracity, must seek to elicit the information for such, in the neighborhood in which he lives.
    A statement of what another said, touching the condition of a particular spot, at a specified time, may be admitted to establish one of the mediums by which a successful search was made for the weapon used in the commission of the offense charged.
    The reception of such statement cannot be complained oí*, in the absence of a showing that it unduly influenced the jury or injuriously affected the accused.
    Jurors, without any charge from the court, know that testimony of that character can, at best, be only circumstantial, particularly in criminal cases, in which substantial and convincing proof is required for conviction.
    The fact that the trial judge admitted two of the co-defendants to bail cannot be established to conduce to the innocence of the other accused.
    Such action, if allowed to be proved, might bo considered as a comment on the facts by the judge who -would not liavo been allowed the privilege of bail, where the proof is evident or the presumption great.
    Compulsory process .against witnesses will not bo granted, whore the testimony would bo cumulative only of that heard on the trial, and due diligence was not used to secure the attendance of the witnesses for the trial.
    Testimony to show the spot at which was found the weapon with which the crime was com: mitted is adjuissiblo.
    A question, put a witness on his own voir dire, to affect his credibility, and not allowed to bo answered, cannot sorvo as a matter of complaint where the witness was not hoard otherwise in the case.
    APPEAL from tlie Thirteenth District Court, Parish of St. Lanclry. Lewis, J.

      Walter II. Bogers, Attorney General, for the State, Appellee.

      Jules Gil, U. L. Garland, Jr., Kenneth Baillio, K. B. Teasie and W. S. Frasee for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

Joe Johnson, John Hardy and two others were prosecuted for murder. The former were found guilty without capital punishment and sentenced to hard labor for life. The latter were acquitted. Johnson had severed in Ms defense. Hardy alone appeals from the verdict and sentence.

The transcript contains eleven bills of exception and a motion for a new trial.

In their brief, counsel for appellant allude to many of them, saying merely, that they are all well founded, and calling the attention of the court to the remaining ones tfiken to the refusal of the trial judge to allow them to cross-examine Joe Johnson, a co-defendant, to grant a continuance, a new trial, and to issue compulsory process against certain witnesses.

The bills will,nevertheless be considered seriatim.

I.

The first bill relates to the refusal of the trial judge to issue an attachment for Hudson, an absent witness.

It appears that this witness had not been served, because not found, as he was then in Arkansas, and was not served.

The accused made no showing to establish that he did not know of the absence of the witness, that his testimony was material, or that his attendance could be secured for an early trial.

It also appears that on the day previous, when the case was called and taken up, counsel for the accused, after ascertaining that this witness could not be found, stated, in answer to inquiries from the court, that another witness, Emily Williams, was the only one for whom an attachment was desired.

This was a waiver of attachments against all other witnesses. The motion presented no merit, and apparently made for delay, was properly declined.

II.

The second bill refers to the refusal of the judge to compel Johnson, while a witness on the stand, to answer questions touching certain statements said to have been made by him.

The object in view appears to have been, in putting the questions, to impeach his veracity as a witness.

As no foundation had been previously laid to put this witness on his guard, and such was essential, the court was bound to protect him, and ruled correctly.

III.

The third bill relates to the refusal of the court to allow a continuance, owing to the absence of the witness Hudson.

What has already been said to justify the court in refusing an attachment against this witness, is a ready answer to the complaint of the refusal to continue the case owing to his absence.

IV.

The fourth bill refers to the arraignment of the co-defendant Johnson, in presence of the jury before which Hardy was being tried.

As already stated, Johnson had severed in his defense. Put on the stand by the State, he refused to testify, on warning by the court that his testimony might be used against him, on his trial for the same of-fence. On his refusal to testily, he was arraigned.

It appears that the court allowed the arraignment to give the State time to serve copy of the venire and indictment on Johnson*, to expedite Ms trial- at that term of the court.

The State had a right thus to arraign the accused, as it had to arraign any other accused, and the jury had no right to consider the arraignment as having any connection with Hardy’s case before them.

It is not perceived, nor has it been shown, how this arraignment could have illegally and injuriously influenced the jury on the occasion.

The judge did not err.

v.

The fifth hill relates to a remark made by the judge while Johnson was on the stand, which was, that it was perfectly evident that an effort was being made by defendants’ counsel to bulldoze him.

The objection that this remark amounts to pronouncing' on the facts, which are within the province of the jury alone, is too trivial to receive .an extended notice. The judge, however, has given satisfactory reasons to show, how this remark was induced and justified.

VI.

The sixth bill refers to the refusal of the judge on objection to allow the following qxxestion to be put to a witness on the stand:

“ Do yoxx know the general reputation of Jos. Johnson for truth and veracity 9”

The coxxrt ruled that the qxxestion was not in proper form, as it did not call for the general reputation of the witness in the neighborhood in which he lived.

The question ought to have embraced at least that material element, and was properly excluded.

VII.

The seventh bill relates to the admission of the statement of a witness that another had told him that the pond was dry.”

The adrixission was opposed, because hearsay, and the declaration was made out of the presence of the accused.

The judge says that the qxxestion was designed to establish one of the mediums of information by which the sheriff was enabled to make a sxxccessful search of the knife alleged to have been used by one of the accxxsed.

No showing is made to justify tlie slightest suspicion or inference that the statement could have, or had any influence on the jury, or that the accxxsed would be or was injxxriously affected by it.

Jxxrors know, without any charge from the court, that sxxch evidence mxxst be barren of effect, paitiexxlárly in criminal cases, in which substantial and convincing proof is required for conviction.

VIII.

The eighth bill refers to the refusal of the judge to allow the defendant to introduce evidence to show that he had allowed two co-defend- . ants the privilege of bail.

Had the judge admitted the proof, he might have been amenable to the charge of indirectly commenting' on the facts, as he would not have permitted release on bail, had the proof been, evident, or the presumption great.

IX.

The ninth bill relates to the refusal of the judge to grant compulsory process against witnesses to substantiate the grounds upon which the motion for a new trial was founded and to grant the new trial.

It appears that the facts intended to be proved had been established at the trial and that the testimony would have been cumulative only, and that the defendant had not used due diligence, as he could and should have done, .to secure the other witness, to testify before the jury.

Tiie reasons given by the judge amply support his ruling.

X.

The tenth bill refers to the admission of the statement of the sheriff, as a witness, that the knife with which the throat of the deceased had been cut, had been thrown in the pond.

The court received the statement as corroborative of a kindred matter testified to by another witness and as designed to establish a fact which induced the sheriff to take action, which he detailed to the jury.

The court properly received the testimony.

XI.

The eleventh and last bill relates to the refusal of the judge to allow a question to be put to Johnson recalled, after he had been examined on Ms voir dire and declared competent.

The question was put during a second examinatian on his voir direj but was not allowed to be answered, as it did not affect his credibility and he was not heard otherwise in the case, because he would not testify.

XII.

It is needless to consider the motion for a new trial and the affidavit in support, as its merits have already been tested and received attention in passing upon the ninth of bill of exception.

Judgment affirmed.