author: Watkins, J. Breaux, J.

text:
    No. 13,087.
    Frank M. Welch vs. Henry S. Gossens et als.
    Syllabus.
    The provisions of the legislative charter of a municipal corporation, with regard1 ' to the election of its officers, is not impliedly repealed by the provisions of a subsequently enacted general election law, which makes no mention-thereof.
    Where there exists positive legislation upon the same subject matter, providing for the very case in hand, it must be interpreted as not having been repealed by a subsequent enactment which contains different provisions, but not those contrary thereto.
    ON APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Hunter, J.

      H. H. While and Boht. P. Hunter for Plaintiff and Appellant.

      John G. By an for Defendants, Appellees.
    Argued and submitted February 10, 1899.
    Opinion handed down March 20, 1899.
    Judgment modified and rehearing refused April 17, 1899.
   On application for rehearing by Breaux, J.

The opinion of the court was delivered by

Watkins, J.

The plaintiff takes this appeal from the judgment dismissing his suit contesting the election of the plaintiff as mayor of Alexandria.

The petition alleges, that plaintiff and defendant were candidates for the office of mayor of Alexandria; that plaintiff received a plurality of the votes cast, but was deprived in the count of a number of the ballots in his favor, resulting in giving to his competitor the election, according to the returns. The petition then proceeds to assail “the election as not held in accordance with the Constitution and law, but under laws superceded by the Constitution of 1898; and if there had been an election, it was without result, the town charter of Alexandria requiring a majority of all the votes cast to elect, and that no candidato received such majority. The prayer of the petition is, that the ballots cast for him be counted; that he be decreed elected mayor of Alexandria; and, if the court should find there has been no election, that an election in accordance with the Constitution and laws be ■ ordered.

The defendant answered with the general issue, and by pleading that plaintiff is estopped from disputing the legality of the election, having been a candidate and a participant in the election.

The count of the votes ordered by the court was adverse to the plaintiff, and that issue is withdrawn from the discussion in this •court.

The contention of the plaintiff is that the defendant not having re•ceived a majority of the votes was not elected; and that if it be held, that a plurality was sufficient to elect, it is insisted the election was not held in accordance with the law.

Section 2 of Act 111 of 1868, “to incorporate the town of Alexandria,” was introduced in evidence by the plaintiff.

But, while admitting the force of this statute, the contention of the •defendants’ counsel is, that same was repealed by the provision, which 'is contained in section *1 of Act 152 of 1898.

The act referred to is the general election law, and the provision relied upon is of the following tenor, viz.:

“That in all elections by the people, the person or persons having “the highest number of votes, shall be deemed and declared to be elected, etc.” (Our italics.)

The repealing clause of that statute declares, “that all laws or parts “ of laws contrary to or in conflict with the provisions of this act, are hereby repealed.” Id., Section 81.

The defendant in his answer avers, that the plaintiff “is estopped “ from denying the legality of the laws under which the said election “ was held, even if illegal, which is denied, having participated in the “ election, and submitted his name as a candidate.”

We are of the opinion that the plaintiff is neither estopped from alleging that no election, at all, was held, nor if an election was held, that the defendant, Gossens, was not legally chosen thereat as mayor of Alexandria, by reason of the fact of his candidacy for that office. Notwithstanding his own defeat, he-has the right to assert in a court of justice that his adversary was likewise defeated because he failed in obtaining a majority of votes, as required by the city charter; and, by this means, reopen the controversy and obtain another chance of being himself elected.

Recurring- to the principal question, whether the general election law of 1898, had the effect of repealing the legislative charter of the-city of Alexandria of 1868, we find the current of decision in opposition to that theory.

It is a well-recognized canon of construction, that a statute of a general nature does not repeal a particular statute which has been enacted for the benefit of a public corporation as a part of its charter. We have an instance of that kind stated in Douglas vs. Craig, 2nd Ann., 919, of which the court said:

“In 1839, the legislature granted to the corporation of Shreveport “the exclusive right of establishing- ferries across Red river, within “ the limits oí that town, and to the revenues arising therefrom.

“In virtue oí this authority, the corporation established a ferry “ within its limits, of which the plaintiff is the lessee, running to the opposite shore, which is one of the boundary lines of the parish of “ Bossier. In 1843, the parish of Bossier was created; and among the “ powers granted to its police jury was that of establishing ferries' “ across the lakes and rivers within that parish. A ferry was established under this authority across Red river, immediately opposite-“to the town of Shreveport, and leased to the defendant, who was “ using it for purposes of profit, when he was restrained by an injunc- “ tion obtained by the plaintiff, who claims the exclusive privilege of a-“ferry at that point, etc.”

With regard to the controversy thus outlined, the court said:

“The exclusive right granted to the corporation of Shreveport to “ establish ferries across the Red river within its limits, was not repealed by the subsequent act of 1843, creating the parish of Bossier. “ There is no express repealing clause in the latter act, and we do not “ understand that the legislature, in creating a parish, and conferring “ upon its local authorities the powers which they would equally have “had under the general law if those powers had not been specially “ granted, intended to repeal this special privilege given to the cor- “ poration. There is no conflict between the two acts. They both “ exist, and must be construed together. The power to establish fer- “ ries granted to the police jury of Bossier, must be subordinate to that “ conferred upon the town of Shreveport within the corporate limits- “ of the latter.”

The case of Bank of Louisiana vs. Farrar, 1st Ann., 49, rests upon a like principle.

As applicable to the question of an implied repeal of a criminal-statute the court stated in State vs. Lewis, 3 Ann., 398, that:

“As there has been no express repeal of the Act of 1843, a repeal is' “ only implied in so far as the last act contains provisions contrary to,. “ or irreconciliable with those of the first. C. C., Art. 23. The repeal “ of prior laws by those subsequently enacted is not to be presumed, “ although the latter may contain provisions different from the for“mer. To produce the effect of a repeal, in the absence of positive- “ enactment, 'the provisions of the respective laws must be clearly repugnant. The silence of the legislature in relation to powers con“ferred by the first act, is not to be construed into an intention to “ abrogate them.”

That discussion had reference to two general statutes upon identically the same subject matter.

"Where it is readily possible, two different statutes upon the same subject matter should be construed so as to harmonize their provisions. Waldo vs. Bell, 13th Ann. 329.

In Saul vs. His Creditors, 5 N. S., 569, the court put the proposition very forcibly and in very few words.

“But,” say the court, “where there already exists positive legislation “ on the same subject matter, providing for the very ease which it is '“ presumed is excluded, the argument loses almost entirely its weight. “ The law must then be interpreted by a well known rule of jurispruu dence, that an intention to repeal laws can never be supposed; that” '“subsequent statutes do not abrogate former ones by containing “different provisions on the same subject; they must be contrary to “produce such effect.”

In Albert vs. Brewer, 9th Ann., 64, the plaintiff enjoined the collection of a license tax from him as keeper of a coffee-house, on the .ground that the law under which it was levied had been repealed, the subsequent enactment of. a general revenue law providing for the assessment and collection of taxes, which statute contained a clause to the effect that all laws or parts of laws upon the same subject mat•ter are thereby repealed.

The court said:

■“The object- of this act” — the alleged repealing statute — “was to •“ provide for the assessment and collection of taxes. The repealing ■“clause must be interpreted with reference to that object, and can “ not reasonably be extended to a statutory enactment imposing a tax ■“.like the enactment in question.”

In Succession of Fletcher, 12th Ann., 496, it was held that it “is ‘“only where there is an obvious and necessary inconsistency of the “provisions of two statutes, that (the former) must be considered as •“ repealed.”

In Bond vs. Hiestand, 20 Ann., 139, the court applied the foregoing -principle to an alleged implied repeal of a special statute.

“The law of 1859,” said the court, “aforesaid, is a special statute, “ forming part of the charter of the city of New Orleans, and can not “be considered as repealed unless expressly, or by conflicting legisla- “ tion in pari materia.

“Subsequent laws do not repeal former ones by containing different “provisions; they must be contrary. 5. N. S., 528; 6. La., 135; 16 “Ann., 379.

“A particular law is not repealed by a general law, unless they be “so repugnant that both can not stand under any circumstances.”

The same principle is announced in State vs. Labatut, 39 Ann., 514.

In State vs. Natal, 39th Ann., 439, the court said:

'“The legislature did not, however, formally cancel its provisions” —those of a former charter — “although it changed the form of the “ municipal government.

* * -x- x- * * * *

“By irresistible and clear implication, this (action) contemplates in .effect, the maintenance and continuation in (force) of special laws “ not falling within the purview of the act — namely, not conflicting ■“ with it.”

In St. Martin vs. City of New Orleans, 14th Ann., 113, it was held, that “the minute and particular provisions of one act, prescribing the “ salary of the register of voters in the city of New Orleans, are not “ repealed by a general grant of power in another act, to the common “ council in relation to all city salaries.”

In Blanks vs. Mayor, 47th Ann., 613, we had under consideration this question and held that “the legislative charter of a municipal '“ corporation being a special act, apart from the body of general laws “ of the State, it can not be repealed by a general law of the State, “ unless that intention clearly appears from the terms of the general “ act; and that the general act shall repeal the special law, it must “ appear that the provisions of the former are irreconcilably inconsistent with those of the latter.”

State ex rel. City vs. Judge, 40th Ann., 844.

State ex rel. Cittarotto vs. Judge, 37 Ann., 574.

To clearly indicate the force of the principle which underlies all of the foregoing authorities, we particularly refer to the views expressed ■on this subject in Mayor and Council of Alexandria vs. White, 46th Ann., 449, in which the court, speaking through Mr. Justice Miller as its organ, said:

“The defendant contends, on the contrary, that the charter of Alexandria should have been amended under Act 110 of 1880, provid- “ ing for amendments to charters of towns or cities; and, it is urged, “ it was by such amendment, the pov^er to tax occupations could have been conferred upon the plaintiff.

“While under the Act of 1880, the town might have obtained the “ necessary amendment conferring the power to exact licenses, still “ the competency of the legislature by general act to deal with the “ subject is, in our view, undoubted.

“Again, the defendant urges that the charter of Alexandria being “special legislation, is not to be deemed affected by provisions applicable to towns generally contained in the revenue acts of 1886 “ and 1890. But the express purpose of the provisions of the revenue “laws under consideration was to supplement with the right to tax “ occupations, the powers of all parochial and municipal corporations ■“ not clothed with that right hy their charters. The charter of Alex- andria not conferring any taxing power in respect to occupations, “ was clearly within the scope of the provisions in the revenue acts.”

But it will be observed that, in that case, there was no question of an implied repeal of a special law by the enactment of a general stat■ute; but, it simply recognized the power of the legislature by the enactment of a general law with regard to all towns, to confer upon any one of them power of taxation which it did not possess under its-charter.

In our opinion the provisions of the general election law of 1898 can not be considered to have repealed the provisions of the charter of the town of Alexandria of 1868, relative to the election of mayor, aldermen, treasurer and comptroller; for the reason that the former contains no provision that is plainly indicative of that purpose. Consequently, while the provisions of the former are different to those-of the latter act, they are not contrary thereto; and that is the test of all the decisions wo have consulted and referred to.

Section two of the charter of Alexandria declares in express Ierras, that there shall be chosen by ballot, the officers specified, “who shall, “when elected by a majority of the votes of the whole city, enter upon “the discharge of the duties of their respective offices, etc,” whilst the-terms of the election law of 1898 are “that in all elections by the peo“ple, the person or persons having the highest number of rotes, shall “be deemed and declared elected.”

An inspection of the title of the act, and the tenor of its text discloses clearly that it was a general law relative to State, congressional' and parochial elections; and that it was not the clearly expressed intention of the legislature to take from any municipality a power which had been expressly conferred by its charter.

The general election law of 1896 contains a similar provision to that of the law of 1898, viz.: “in all elections by the people, the person or “ persons having the highest number of votes, shall be declared, and “deemed to be elected;” and its repealing clause is similar.

Section 1 of Act 13'T of 1896.

Similar provisions occur in previous election laws. Indeed, such has been the character of all general election laws of the State; hence,, the argument in favor of the repeal of the charter of Alexandria by the enactment of one, is just as applicable to any other. But, it seems that elections have been conducted under the charter in previous years without complaint on the score of its implied repeal.

The rule is that “the provisions c-f the charter as to time and mode “ of election, the appointment, qualification, and duration of the terms “ of officers, must be strictly observed;” and the laws applicable thereto must be strictly construed.

1 Dillon’s Munie. Corp., Sec. 146.

It appearing- from the record that the defendants, Gossens and associates, only received a plurality of votes, and not a majority, as required by the charter, and were not elected mayor and aldermen, etc.,, consequently, the election must be declared void; and, as a necessary consequence, another election must be held according- to law.

It is therefore ordered and decreed, that the judgment appealed from be annulled and reversed; and it is further ordered and decreed, that the election at which the defendant claimed to have been elected be declared illegal, null and void, and that another election for the various offices named be had and held in conformity to law and the charter of the town of Alexandria, and that the defendants be taxed with all costs of both courts.

On Application for Rehearing.

Breaux, J.

1. In answer to defendants’ position that Act of 1868, No. Ill, requiring- the mayor to receive a majority of the votes cast, is repealed' by Section I of the statutes of 1898 relative to elections, we can only reiterate that the special law .was not repealed by the statute. That a statute framed in general terms or treating- the subject in a general way not contradicting the first act is not to be regarded as affecting a more particular or positive previous clause; that repeals by implication are not favored usually. The idea is that statutes drawn up-with attention and care (hujus modi statuia tanta solemnitate et prudentia edita) shall be supported, until they are repealed by a repealing statute, or by implication arising from the context of a statute. Carrying out that view, it has been held, that the special exemption of’ particular property from municipal taxation is not repealed by subsequent general statute, taxing all property, there being no express repeal. That a special charter of statutes prevails over the general' law. Burke vs. Geffries, 20 la., 145. A case having some similarity to the case before us.

In the former particular statute or charter of Alexandria, the word “majority” is used, and in the general statute of 1898, “plurality.” Nothing suggests difficulty in carrying out the particular statute in a municipality in matter of electing officers, nor does there arise any “irreconcilable inconsisstency” between the two statutes. Though it is settled that statutes may be repealed by implication, and without express words, still, the courts lean against the doctrine, if it he possible to reconcile the two acts of the legislature together.

2. On the part of the aldermen, treasurer and comptroller, defendant insists that the judgment should not he made to apply to them. The suit,'it appears, is between. Welch and Gossens; there are no other parties before us; and we are, in consequence, asked to eliminate and exclude from the affects of the judgment the aldermen, treasurer and comptroller. It being a fact that they were not parties, our decree should not affect their right in any manner. But, to make things entirely clear, and remove them from all doubts, an amendment will be made to clear away any adverse impression in regard to their tenure, restricting our decree entirely to plaintiff and defendant, parties to the suit.

It is, therefore, ordered, adjudged and decreed that our original decree remain unchanged, save as to the aldermen, treasurer and comptroller; they not being parties are eliminated as before stated.

With this modification of our decision, the application for a rehearing is refused.

Mr. Justice Monroe not having been a member of this court when the case was submitted, takes no part in. this opinion.


source: Caselaw Access Project

author: Breaux, J. Breaux, J. Blanchard, J.

license: Public Domain

text:
    No. 12,643.
    Police Jury of Pointe Coupee Parish and E. G. Benker, Sheriff, and Tax Collector, vs. L. Bouanchaud & Co. and Others.
    Syllabus.
    1. A fact not reviewable on appeal. — The amount involved was less than two thousand dollars; questions regarding facts were not considered, as they were not within the court’s jurisdiction on an appeal.
    ■2. Budget. — As a question of law, the court finds that there was no forming of the budget as required by statute, and it follows, no advertisement. The statute requires the publicity of the finances of the parish, and one of the first steps towards publicity is the forming of a budget and its advertisement.
    3. Admission. — Giving effect to an admission on record, the court amends-the judgment by reducing the amount of the license from one hundred dollars to fifty dollars.
    On Reheabing.
    1.. Essential that the estimate of parish expenditures, required by R. S., 2745, should be published at least thirty days before the tax predicated upon it is levied.
    2. Requisites of the estimate or budget pointed out, and the same held deficient in instant case because not naming the year for which made.
    3. Not necessary this estimate should be more than a statement of probable expenses. Not required to embrace anything relating to parish resources or revenues.
    ON APPEAL from the Fourteenth Judicial District Court for the-Parish of Pointe Coupee. Talbot, J.

      Albin Provosty (F. 0. Zaeharie of Counsel) for Plaintiffs and Appellees.

      Olivier 0. Provosty for Defendants and Appellants.
    Argued and submitted January 10, 1899.
    Opinion handed down April 3, 1899.
    Judgment amended and defendants’ application for rehearing refused (reasons assigned) April 10, 1899.
    Application of plaintiffs for rehearing refused (reasons assigned)May 1, 1S99.
   On defendants’ application for rehearing by Breaux, J.

On plaintiffs’ application for rehearing by Blanchard, J.

The opinion of ihe court was delivered by

Breaux, J.

Plaintiff brought this suit to recover $100, with interest and attorney’s fee, for the parish retail liquor license for the year 1897.

The demand of the parish was -dismissed, and the sheriff and tax collector remained as the plaintiff, having the right to stand in judgment in the case.

Defendants set forth as reasons for not paying the tax, (1) that the-police jury did not levy the license tax for the year 1897; (2) that the police jury did not adopt and publish the estimates of expenses as the law requires; (3) that that body did not grade the license, and that the ordinance was not adopted with reference to grade as required; (4) that it, after the license ordinance had been adopted, reduced the amount of the license from $100 to $50.

It appears as a fact that defendants sold liquor at retail in 1897, as alleged by plaintiff.

At a meeting of the police jury, held some time after, at which the license was imposed, the police jury, defendants contend, reduced the ' ordinance imposing a license from $100 to $50.

With reference to the adoption of the ordinance imposing licenses, we do not deem it necessary to make further statement than that the question turned entirely upon the facts. The only facts with reference to the budget are that the publication of the police jury’s proceedings shows, as relates to the budget, that immediately preceding the list, which we will inseif in a moment, the following is set forth:

“It was moved and seconded that the public printing be awarded to “ the paper elected as the official organ,” a matter not connected with the budget. Immediately after, we found the following:

Parish Schedule.

Coroner’s inquest ..........................$ 500 00

Constable’s fees ..........................■.. $ 295 00

Justice of the Peace.......................$ 210 00

Parish printing............................$ 300 00

Clerk of the Police Jury....................$ 200 00 ■

Bridges, dykes and roads ...................$2500 00

Road syndic ...............................$ 890 00

Parish Advisory ...........................$ 100 00

Contingent expenses .......................$2000 00

Jail .......................................$3500 00

$10,495 00

The record of the minutes of the police jury, as printed in the official journal, is followed by reference to another matter not connected with the budget.

We do not deem it necessary to make a further statement of the facts relating to the other grounds of defence, as the ease is disposed of without passing upon them.

The judge of the court a qua found that the ordinance levying the license had been adopted as alleged, and held that the defendants are responsible for the amount claimed.

From this judgment, defendants appeal.

1st. As relates to defendant’s position, that the license claimed by plaintiff was never levied, and that no ordinance upon the subject was .adopted by the police jury, even if it be a fact, we do not think under ■our jurisprudence, that it presents a question which we should consider and decide on appeal from the judgment of the District Court. The judge of that court found as a fact that a license tax was levied; ■this ends the matter, as relates to appeal, though it may be that it would be possible to have it considered under our supervisory jurisdiction.

Weighing evidence and ascertaining on which side is the preponderance, whether for the plaintiff or defendants, does not present a question of law. We think that our conclusion on this point finds support in the following eases: State vs. Callac, 45 Ann. 29; State vs. Dean, Ib. 717; Board of Aldermen vs. Norman and Haas, 51st Ann.

2nd. We pass to the next question presented; to-wit, that the facts •do not sustain plaintiff’s averment that a budget was adopted, and it does not appear that a budget was published.

As this involves a public question and is not limited to facts, exclusively, we think it should be considered on appeal. In order to arrive at a satisfactory conclusion on this point, it is necessary, in the first place, to determine what are the principle requisites of a budget. In the language of the statute, police juries are required, before deciding on the amount of taxes to be assessed, to make out an estimate exhibiting the various items of expense, and cause them to be published. In other words, they should prepare the budget. Now it is well understood that a budget is intended to show the basis of the finances of the year and resources relied upon for the •payment of the debts. Clearness and satisfactory order are dependent, in a great part, upon, at least, a somewhat accurate estimate of expenses and resources. While some of the resources may be in excess, and while there may be unforseen expenses at the time of the adoption of a budget, yet, as far as possible, the estimates should be made with a view to present the complete tableau of revenues and. expenses.

We are confident that a budget would not be objectionable, even though some of the estimates were more or less than the amount realized from taxation or parochial revenues. But it should be made to-appear that some estimate has been made to get as near as possible to a correct basis. While it is true that a budget may be binding, though wanting in some respects, here there is nothing to show that certain important items were considered at all, and one of the items among those left out is licenses.

In our judgment, the resources of the parish, as relates to revenues for twelve months, should be well considered, and something in the minutes should indicate that they have been considered, and that,, after consideration, the budget was adopted; otherwise, we do not see how it can be concluded that a budget has been adopted such as made requisite under the words of the statute. It should certainly be voted upon, to show that it ,1ms met with the approval of the police jury. Here, no voto appears, to have been taken. It should, also, indicate inferentially at least, that, after having received the approval of the body, it was submitted to the tax-payers. We have found no such approval, and nothing upon which to base a conclusive inference, save that the list was found in the public minutes, an incomplete list, without indicating the purpose in view in inserting it in the public report. The question is not res nova. It received the consideration of this court in a well considered decision years ago, in which the court took occasion to say, in substance, that the formality was not intended to be perfunctorily observed; but, that it was the essential step in the administration of parochial finances. Parish of Lincoln vs. J. G. Huey, 30 Ann., 1244.

The reason for the levying of the tax and the license is service to' be gotten in return; and the reason for the expense of the tax is the same, that is, service. Thus service is the first and last purpose of taxation, both as relates to the State and the parishes, and all statutes' requiring that information should be given to the tax-payer, both as relates to the imposition of the tax and the disbursements of the-taxes, should be given, that all may know if they choose to inform themselves that the levying of taxes and expenditures, have received required attention.

We think that in this case there was not sufficient compliance with the statute, and, therefore, we are compelled to reverse the judgment appealed from.

3rd. Defendants averred that they are not tax resisters, and that they desire to pay the amount of $50, instead of the $100, as ordained at the last meeting, at which they say the amount of license was fixed at $50.

We have naught to do with this matter, save to enter up a judgment in accordance with their prayer.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from he amended by reducing the license from $100 to $50,, and as thus amended, the judgment appealed from is hereby affirmed. Costs of appeal to be paid by appellees. ■

jVIonroe, J., takes no part, as he was not a member of the court when this case was heard.

On Defendant’^ Application for Rehearing.

Breaux, J.

We took as basis for our decree an ordinance of the" parish of Pointe Coupee reducing licenses (as had been fixed by an ' ordinance of a prior date) from $100 to $50, and upon that basis we' condemned the defendants to pay a license of $50, penalties and the fee of attorney who represented the tax-collector.

Upon a re-examination of the ordinance we concluded that it could have no effect save to the extent that the appellants and defendants chose to give it effect by an admission; without the admission it could'' not possibly, in our view, have any effect.

We adhere to our previous decision that defendants must pay the licenses fixed in that amount ($50), but we do not think that they' should be condemned to pay the penalty and attorney’s fee.

The proposition being a plain one, we amend the judgment without granting a rehearing, as we do not consider argument necessary.

It is, therefore, ordered, adjudged and decreed that our original decree be and is hereby amended by leaving unchanged the amount as heretofore, from $100 to $50, and by striking from the judgment all amounts heretofore decreed due for penalty and attorney’s fee. Sole amount due by each of the tax-payers will now be $50.

As thus amended the original decree is affirmed. Appellees shall pay the cost of appeal.

This amendment is made without prejudice to the rights of plaintiffs should they apply for a rehearing.

Oi<r Application by Plaintiff for Rehearing.

Blanchard, J.

Section 2745 of R. S. lays it down precisely that before the police juries of the several parishes of the State shall fix and decide on the amount of parish taxes to be assessed for the current year, they must cause to be made out an estimate exhibiting the various items of expenditure for such year, and shall cause the same to be published in the official newspaper of the parish (if there be one) at least thirty days before the meeting of the jury is held at which the amount of taxes to be assessed for the year is agreed on and the assessment ordered.

This estimate may be called by any appropriate name, such as: schedule, budget, statement, tableau, estimate, etc.

Tt should be prepared with care and with reasonable attention to 'detail. It should be formally adopted by the requisite vote of the police jury, should be inscribed in the book of minutes, and should be published in the official organ of the parish, at least thirty days previous to action by the jury fixing the amount of parish taxes for the year and ordering its' levy and collection.

We do not think the statute merely requires one publication thirty days in advance of the action of the jury. We think the law rather means that the publication shall be made several times — say four or five times during the thirty days, or at least once a week during that time. But we do not here decide that it must be published more than • once during the thirty days. It is not necessary to the determination of the instant case to so decide. We leave that, therefore, as an open ‘question.

But this estimate, or schedule, or statement, or budget, or tableau, ‘.should state the year for which it is made, and the publication of the same should name the year for which it is adopted. That is to say, if it is the schedule of expenditures for 1897, the advertisement of it inserted in the official organ should so state.

In the instant case there was but one insertion in the official organ of anything approaching to an estimate of parish expenditures. This was on June 6, 1896. It was merely headed “Parish Schedule.” Ir did not recite for what year it was intended. There was nothing in it or about it to indicate that the police jury had ever adopted it as .an estimate of parish expenditures for the year 1896, or the year 1897. Nor did the minutes of the jury with which it was incorporated supply this information.

As an estimate of parish expenditures, therefore, for either of the years named, it was a dismal failure. It was not a compliance with the law, and this license tax sought to be imposed herein, predicated upon it, is not enforceable.

It is not necessary, however, in preparing and publishing- the annual budget or estimate of parish expenditures, to include in it anything relating to the parish resources or revenues. This is not required ■by the statute.

The decree of this court, heretofore handed down, entering up judgment for $50 license against each of the defendants, is based upon -their statement in argument and brief that they conceded a liability to that extent based upon action of the police jury subsequent to the formal levying of the license tax sued for.

It was, therefore, immaterial whether what the jury did in this regard was or was not properly and legally done, so far as the license for $50 is concerned. Defendants admit their liability to this extent •and agree to judgment against them therefor. This is ample warrant for such judgment.

Rehearing refused.

Mr. J ustice Monroe takes no part as he was not a member of this •■court when the case was submitted.


author: Breaux, J.

text:
    No. 12,870.
    Mrs. A. M. Jennings, A. H. Carter, Alice R. Smith, Caroline Hodding, Cora Ogden, vs. J. N. Hardy, City Treasurer, and City of New Orleans.
    Syllabus.
    1. Plaintiffs sued out an injunction-in 1891 against the sale of their property, on the ground of a void assessment. • •
    2. The ease was not, for many years, called for trial. The papers were lost or. mislaid in the clerk’s office. The case was continued indefinitely. On motion of the assistant city attorney it was reinstated, anfi plaintiffs rule'd to supply the loss of their papers.
    .3. ITei.p : That plaintiffs not haying availed themselves of the opportunity afforded of supplying the loss, the suit was properly dismissed.

      ON APPEAL from the Civil District Court for the Parish oí Orleans. Thewrd, J.

      Benjamin Bice Forman for Plaintiffs, Appellants.

      Samuel L. Gilmore, City Attorney, and W. B. Sommerville, Assistant City Attorney, for Defendants, Appellees.
    Argued and submitted March 22, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs appeal from a judgment dismissing their de mand as in case of non suit.

Plaintiffs sued out an injunction to restrain defendant, J. N. Hardy, . City Treasurer, from selling their property for taxes, on the ground that the assessments were void, not having been assessed in the name-of the owners, nor the property described as required, and because it was sold without notice.

Plaintiffs further aver that three of their number were in'New Oi-leans at the date the injunction was filed; that the case was continued thirteen times; that the defendant showed no disposition to try -he ease. The case was continued indefinitely and the record finally lost or mislaid. That on the 14th day of April, 1898, on motion of Mr, Sommerville, assistant city attorney, those of their number living were directed to show cause why the injunction should not be set aside and the suit dismissed.

The following is a copy of the motion of W. B. Sommerville, assistant city attorney:

“* * * an(j Up0n suggesting to the court that Mrs. A. M. Jennings, one of the plaintiffs herein, is now deceased, and that her co-plaintiffs are her heirs, and the only parties in interest. •

“And upon further suggesting that the docket entries in this suit show that an injunction was issued in this ease in the year 1891, and mover is informed that said injunction restrains the sale of lot No. 15 in square 228, bounded by Gravier, Baronne, Union and Carondelet streets, in this city, measuring 42 feet by 103 feet, assessed in the name of Mrs. Anna H. Carter, et als., all for causes unknown, to-mover. •

“And, upon further suggesting that the record in this case has been lost, and that defendant has no copies whatever of the papers served upon it; and has invoked the assistance of plaintiff’s counsel in vain to make up a record.

“And upon further suggesting that mover is willing to try this case ■upon any record that plaintiffs may now produce and file.

“And, upon further suggesting that defendant cannot be kept in court without day; and that it is entitled to proceed against the property hereinbefore mentioned for the collection of the taxes due, without placing itself in contempt of the authority of this Honorable Court; and that one Henry Cleveland Perkins now claims to be the owner of the property above described.

“And, upon further suggesting that plaintiffs are non-residents. ,

“It is ordered that the co-plaintiffs of Mrs. A. M. Jennings be recognized as the oidy parties in interest in this cause, and that they, through B. R. Forman, their attorney of record, or through a curator ad hoc to be appointed for the purpose, show cause on Monday, April 11, 1898, at 11 a. m., if there be an injunction in this case, why said injunction should not be set aside, and this suit dismissed.”

We are also informed that Mrs. A. M. Jennings, one of the plaintiffs, is dead; and that there is no evidence of record showing who are her heirs, and that J. N. Hardy is also dead, and his successors in office were not made parties.

•The clause in the judgment of the District Court, dismissing plaintiffs’ injunction, which is material in the case, is as follows:

“And no evidence having been offered in support of plaintiffs’ demand, and counsel for defendants having moved for a non suit, it is ordered that plaintiffs’ demand be dismissed as in the case before stated.”

Plaintiffs ask that the judgment be reversed and the case remanded.

Plaintiffs in support of their demand on appeal, invoke Act 57 of 1886, and insist that the remedy of the defendant is provided for in .that act; that the assistant city attorney made no attempt to comply wih the statute, which provides that all of the lost original papers of a suit may be suppled and the suit reinstated by either plaintiff or defendant filing with the clerk certified papers as required, or by producing any other admissible evidence of contents of lost papers.

No attempt was made by either plaintiffs or defendant to comply with that statute. In our judgment, it was incumbent upon plaintiffs to x’einstate tlieix* injunction. Wo take it that plaintiffs did not choose to avail themselves of the offer made by the defendant to assist in making- up a record. Nothing we have discovered on record evinces the least intimation on the part of plaintiffs of a willingness to make up the record in the manner, wo understand, was proposed by counsel for defendant. The judgment itself shows that plaintiffs failed to-offer any evidence in support of their claim when the ease was before the court for trial.

The suit was continued after the motion to reinstate it had been filed, and, in our view, ample time was given to enable plaintiffs to get secondary evidence if needed.

In addition to the fact that, ordinarily, the burden is on a plaintiff to make up the record of his case; in the present suit, plaintiffs being plaintiffs in injunction, it was incumbent upon them to sustain their position by showing that they had grounds for an injunction as set forth in the papers which had been lost or mislaid; they did nothing of the sort, and remained inactive despite the fact that they had been ruled to produce evidence in regard to their rights to enjoin the .sale it appeared that they had enjoined.

The defendant, we think, under repeated decisions, could compel plaintiffs to produce their proof. Forsyth vs. Lacost, 2 La. 321.

The burden of pleading- being primarily with the plaintiffs, at least to the extent of proving- the allegations of their petition, no good reason suggests itself why defendant should be compelled to supply plaintiffs’ mislaid or lost papers. It would be different had defendant insisted after plaintiffs had, by competent evidence, reinstated their part of the case, that they should also reinstate its defense, as shown by its (defendant’s) pleadings; but the reverse is the ease here, and we feel constrained to affirm the judgment of the lower court.

For reasons assigned, the judgment is affirmed.

Mr. Justice Monroe takes no part as he was not a member of the •court when the case was heard.


text:
    No. 12,885.
    G. W. Nott, Syndic, vs. State National Bank.
    Syllabus.
    1. This was a suit for the amount realized on property pledged, brought ots. the grounds that the pledgor had pledged his property without consideration, and within ninety days preceding his insolvency. The act of pledge contained the declaration that the pledge was made to avoid the sale and sacrifice of securities already pledged and for further security. The declaration was sustained by the facts, and there was, in consequence, sufficient consideration for the pledge.
    2. A note payable on demand is a negotiable instrument which becomes past due after demand, and is not subject to equities prior to demand.
    3. An amount given or a pledge made to obtain a creditor’s forbearance not to-sell the property pledged by which the note payable on demand was secured,, was not a gratuity, as time for payment was granted (in effect), although-the note secured by pledge was made payable on demand.
    4. Failure, growing out of sudden unforseen events, does not affect the1 validity of a transaction made in good faith for a full consideration, entered into within three months preceding failure.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Eliis, J.

      Saunders <& Miller for Plaintiff, Appellant.

      J. McConnell .for Defendant, Appellee.
    Argued and submitted March 21, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff, syndic of the creditors of A. R. Brousseau# sued to set aside a pledge made by the insolvent within three months preceding his cessio bonorum, and to compel the pledgee to pay over to him the amount realized on the pledge.

Plaintiff’s position is that the insolvent having pledged certain-values to the State National Bank without any consideration passing nt the date of the pledge, but to secure an indebtedness, prior to the-date, due to that bank; that the pledge was null, and the amount realized on the values pledged is, in consequence, due to the syndic of the insolvent.

The defendant, on the other hand, joined issue with plaintiff, and insists, in defense, that the pledge is valid; that a considerable sum was due the bank on demand notes, and that the debt was secured by > pledged securities. Those securities had fallen in value, and the hank •in its own interest had concluded that something- must be done to ■vplace its claim on a proper footing-, and, in consequence, had concluded to sell the values unless the debt was paid or additional security given.

Upon being informed of the desire of the bank in the premises, Mr. Brousseau, the debtor, found it to his interest to pledge additional •securities of value to the bank, and thereby to prevail upon it not to .sell the securities which he had pledged some time before.

The date of the respective pledges appears of record; also it appears of record that the proceeds realized from the sale of the values pledged to the bank amounted altogether to the sum of $3,515.82. It also ■appears of record that Mr. Brousseau made a cession of his property on the 30th day of September, 1896, within ninety days after the last pledge (the one assailed here) was made by him. The principal clause in the pledged notes, material to the issues here, reads, "and agree to give additional security to keep up the present margin whenever the market value of the above collateral should decline.”

The cause for giving the consideration appears by the pledge of August 13th, as shown by the following:

■"Now, therefore, in order to avoid the sale and probable sacrifice -of the said securities already pledged as aforesaid and for .further security to secure the payment of the three said pledged notes, so already held by said bank, the said A. Brousseau’s Son hereby pledges and delivers to said State National Bank the merchandise described in the inventory -(hereof hereto attached.”

'We are notified that Mr. Brousseau carried on business in the name ■of A. Brousseau’s Son. That accounts for the name as written in the pledge.

There is no question here about the name.

The pledged securities held by the defendant under the original •pledge having greatly depreciated in value, the pledgee demanded of ‘the pledgor, payment or additional security upon the pledge, and notified the pledgor of its intention to sell the pledged property and realize on it, unless the notes were paid or additional security given.

After some delay Mr. Brousseau, the debtor, as set forth in the contract from which we have quoted, executed another pledge in favor of defendant and gave additional security.

The judge a quo sustained the last pledge made, that is, the pledge of August 13th, on the ground, as we are informed, that it was given to purchase an extension from the bank.

From the foregoing statement of the case, it is manifest that the bank, pledgee, was the holder of the values in the utmost good faith, and that the borrower himself, defendant, could not have the least ■cause to suspect the reverse in business which came upon him in less than ninety days after he had made the deposit of the additional values and obtained the delay which he had found greatly to his interest to get.

If contracts, entirely legal and binding, at the date they are made, can thus be rendered null by unforseen subsequent failure, under the ■circumstances as disclosed by the record in the case before us, then many transactions in commerce, considered safe and legal, would become very unsafe. Many securities in the community, would have 'but very little value; but this, wo take it, was not the intention of the legislature in adopting the statute we are called upon to interpret in this case. It orders that a debtor, who shall within three months preceding his failure, engage or mortgage any of his goods and effects, in order to give an unjust preference to a creditor, shall be prohibited from taking the benefit of the insolvent laws, and the contract itself shall be declared null, unless the pledgee proves that the property was pledged to him in good faith and for ample consideration. Section 1808, Revised Statutes.

The unjust preference in this ease does not appear, but, on the contrary, it does appear that the property was pledged to the bank in good faith and for ample consideration. PlaintifE himself has not only not denied the bona fides of the pledge, but has been forced by the facts of the ease expressly to admit that there is no question or doubt as to the entire good faith of both parties to the contract and pledge last made. But the insistence of plaintiff is that as to the creditors of one who is declared insolvent within the three months prior to the declared insolvency, that is, as to third persons, there was no consideration for the pledge,- inasmuch as it does not appear that further time was granted by the pledgee to the pledgor on the notes held by • the former, secured by tho pledge before mentioned. It is true that the notes held by the bank were made payable on demand, and that tho creditor did not obtain in written words, at the time of the additional pledge of values, a delay. From this, plaintiff argues, that, there was no consideration, and that the bank obtained security without giving anything in return.

Tho contract sets forth a specific consideration, and the evidence also shows a consideration. It was, in point of fact-, satisfactorily shown, and was ample, as we think.

The mere indeterminate period as to time of delay does not invalidate a contract if the agreement implies a reasonable time within which payment would be expected.

Story in his work on “Contracts,” Section 43, says, that “the law will presume that the promise to forbear for a reasonable time is sufficient consideration.”

We do not understand that there was the least advantage taken in this case of the distress or embarrassment of a debtor. The transaction has every appearance of fair dealing. Its purpose was to obtain a delay, and although the delay was not expressed, it was, from the' nature of the transaction, understood. It tras not essential to the-validity of the contract to express on the face of the papers the delay granted to the pledgor. “The purpose was evidently a reasonable delay to the debtor, the purpose of the order was to save the values pledged, and the delays obtained to that end were in themselves legitimate and full consideration.” Story on Contracts, Sec. 429. Evidently, the purpose of tbé last pledge was, as just mentioned, and delay was granted as agreed upon.

Now with reference to notes made payable on demand as those here on the grounds urged, plaintiff, in our judgment, is not entitled to the relief asked. The fact that the notes secured by pledges were made payable on demand, could not have the effect of impairing their obligation or their negotiability. They had a binding effect which has-been repeatedly recognized by the courts. A demand note, as relates-to presentment for payment, differs from a bill or check; while the-latter is intended to be paid immediately, the former payable on .demand, is often intended as a security for an investment and as evidencei of the investment made. Such notes become past due after de~ mand, and prior to demand are considered as negotiable notes. Woods, Byles, Section 333.

These notes are transferable before maturity, that is, before presentment for payment, and, when so transferred, are as free from equities as an? other notes made payable on demand expressed on their face. The pledges by which they are secured, follow them as in case of other notes payable on demand, fixed as expressed in the note itself.

As a matter of fact, the extension of time on the original notes and pledges was granted by the creditor as a consideration for obtaining an additional pledge. The securities having declined in value, a second pledge given to supply the decline was equally as valid as the-first. ■

The date of the pledge, made- less than ninety days before the insolvency of the pledgor, valid at the time it was made, did not become invalid by the unexpected reverses which impoverished the pledgor and compelled him to resort to proceedings of insolvency.

Therefore, the judgment appealed from is affirmed.

Monroe, J., takes no part, as he was not a member of the court when this case was heard.


author: Breaux, J'.

text:
    No. 13,021.
    W. W. Barlaw et als. vs. John R. R. Harrison et al.
    Syllabus.
    The law presumes against fraud. Where acts are susceptible of two construe- . tions, one consistent with honesty and fair dealing, and the other odious and' criminal, the burden of proof is on the one who charges the latter and wishes the court to think that the odious and criminal is true.
    In a suit to have an olographic will decreed null, on the ground that it is not in the handwriting of the deceased and is a forgery, the weight of the testimony to justify a judgment annulling the will should make it appear, with some certainty, that the will is a forged paper.
    The presumption of regularity and honesty is sustained by the weight of the testimony.
    This was the conclusion arrived at by a jury of the vicinage who saw and heard the witnesses, and had special opportunity to judge of their credibility and' character. It was adopted by the Supreme Court as the basis of the judg- : ment.

      ON APPEAL from thk First Judicial District Court for the Parish of Caddo. Land, J.

      J. Henry Shepherd and D. T. Land for Plaintiffs and Appellants.

      T. F. Bell and Leonard & Randolph for Defendants and Appellees.
    Argued and submitted January 27, 1899.
    Opinion handed down February 6, 1899.
    Rehearing refused April 7, 1899.
   The opinion of the court was delivered by

Breaux, J'.

This was a suit brought by plaintiffs, collateral heirs •of defendant's late wife, against defendant and his second wife, to annul as forged her last will made in the olographic form, also to have ■decreed null the proceedings leading to and including the judgment attacked for forgery. The sister of the plaintiffs and wife of the defendant, died in July, 1890, leaving no children. Their only child, a ■daughter, died many years ago. The will.attacked was admitted to probate in July, 1891. In this instrument it appears Mrs. Harrison, since deceased, instituted Dr. John R. R. Harrison, defendant here, her universal legatee. He is an old man, 75 years next March. She was about sixty-six years of age at the date of her death, and they had lived together as husband and wife about forty-five years. During ■that time the evidence shows they got along together well enough, although as relates to the limited interest of each there does not seem to have been much sympathy between them. She superintended the few acres of crop, and even, at times, worked in the field and kept her ■revenues separate from those of her husband, and he, as we take it, was equally as independent with his means. Two of her brothers resided near. They, we infer, were not always on friendly terms with their sister and brother-in-law.

In January, 1868, Dr. Harrison to escape the payment of debts, executed a dation en paiement to his wife in satisfaction of her asserted paraphernal funds.

There were also introduced original instruments, being a private instrument of transfer or counter-letter from Mrs. N. P. Harrison to ■the defendant, John R, R. Harrison, dated February 10th, 1868; a sale from Mrs. N. P. Harrison authorized by her husband to Elizabeth May, dated November 28th, 1871, being a private act acknowledged before an officer; a promissory note signed N. P. Harrison in favor of John R. R. Harison; act of sale by Mrs. Harrison to Posey, and another act by the same vendor to Denson. The will attacked was introduced, and also another act of sale to one Posey. Plaintiffs affirm that the different acts of sale made in 1871, 1878, 1885 and 1889’ are signed by Mrs. Harrison and her husband, John R. R. Harrison, and that the signatures to these acts are genuine and alike, written by the same person, but plaintiffs urge that the counter-letter and transfer dated February 10th, 1868, a private act relied on by defendants, and the promissory note introduced, are not genuine, but forgeries; that the three documents in 1868, 1874 and 1888, i. e., the counter-letter, the note and the will, are 'written by the same person in favor of defendant John R. R. Harrison, are not genuine, and not signed by witnesses, while the acts bearing the genuine signature of the late-Mrs. Harrison are all authentic acts; that there is a marked difference between the signatures to the public act and the private instruments. The plaintiff, through counsel, pointed out in the brief and at bar in what respect there is a difference. After pointing out the difference plaintiffs specially urge that Mrs. Harrison signed her name “N. P. Harrison,” and the family record shows that her Christian name was “Narissa,” while the document, of date June, 1888, introduced by defendant- as the last will and testament of Mrs. Harrison, was signed by Narcissus P. Harrison. Oral testimony was introduced to sustain plaintiffs’ theory of the case. Opposed to this testimony, •defendants introduced a number of witnesses who were as emphatic and positive regarding the genuineness of the will as plaintiffs’ witnesses were in testifying to facts and circumstances, going to show that it was not the genuine will of Mrs. Harrison.

The jury returned a verdict for defendant. From the verdict of the jury and the Judgment of the court, plaintiffs prosecute this appeal.

'There is difference, as contended by plaintiffs, in the signatures to Ihe different acts. If minute distinctions in the signatures and handwriting shall be held as controlling, while carefully examining the different signatures and the handwriting, it may well be that the will would not stand as the genuine will of the late Mrs. Harrison. But signature and handwriting change as one grows older. There is sometimes a marked difference between the signatures of the same person signed at dates not far distant one from the other. Handwriting changes with increasing years, infirmity and habit. In view of these changes one not an expert should hesitate upon examination of signatures in pronouncing a signature or handwriting a forgery by comparison without having' seen the person write or sign his name, unless there is a marked and conspicuous difference between the genuine signature and the signature evidently not genuine. This mode of proof is not specially favored by commentators and courts. “It is worth little.” Best, on Evidence, Section 247.

The opinion of the experts is not, by any means, convincing. They were bank officers and, doubtless, had reasonable skill in judging of handwriting in their business. There were mistakes made in identifying' signatures. The result is that their opinion, given in the utmost good faith, is none the less not satisfactory and conclusive. The two brothers of the testatrix testified that the will is not in the handwriting' of their late sister. Opposed to this, other witnesses who have seen her write and sign her name, recognized the handwriting and the signature as her handwriting and signature.

The fact that the testatrix signed Narcissus P. Harrison, instead of Narcissa P. Harrison, is invoked as strange, and as one of the grounds for which the will should be annulled.

We infer from the acts in evidence that she usually signed only the initials of her name. It may well be that one signing a solemn act of last will would be prompted to sign at least one of the surnames in full. Why she signed Narcissus, instead of Narcissa, is one of the perplexing questions here involved. It may be that being aged when she signed, and seldom signing her name, she thus wrote it under the impression that it was one of her Christian names.

There is testimony of three witnesses going to prove that the name Narcissus was regarded as the proper name of the testatrix.

Plaintiffs charge that it is not reasonable to presume that Harrison, with knowledge that his wife left a will in his .favor, would not, shortly after her death, make search for it. That even after'plaintiffs’ brothers commenced to trouble him about the property, he did not make a search for the will.

Defendants’ position, as we take it, is that he placed reliance upon the counter letter he held, and, in consequence, gave himself no concern about a will. It does not appear that he had airy knowledge of the will, and if there was indifference on his part it would not, in our judgment, give rise to a presumption that he had planned the confec•tion of a will on being informed that his counter letter was worthless. The facts relating to tlxc finding of the will have a' bearing upon the ■question here involved.

The defendant, Harrison, testified to explain how he found the will. ’To some extent, at least, his testimony is corroborated by other witnesses. The presumption urged by plaintiffs as arising from the acts which led to the finding of the will, is not, by any means, conclusive. They are, at least, susceptible of two constructions. We adopt the construction of regularity and proper conduct.

As relates to the counter letter, or attempted acknowledgement of the late Mrs. Harrison, made with the view, as sworn to by Plarrison, ■defendant, of protecting him from a dation en paiement he executed to shield his property from creditors, signed by her and two witnesses, the testimony presents an issue of the most serious character.

We met with no difficulty in arriving at a conclusion save as to the ■signature of one of the attesting witnesses, Lewis Everett, who died since. The letter “e” was omitted. We have given attention to the-.attending circumstances, and it may be after all that this signature is a genuine signature.

The fact is doubtful, but it does not lead to the certain conclusion ■claimed by the plaintiffs, upon whom is the burden of proof. It may be that this witness left out this letter from his name. The fact unexplained, would not, in our opinion, justify us in reaching the conclusion that it is a forgery. One may negligently sign “Evrett” for “Everett.”

Counsel dwelt with energy and clearness upon other grounds of attack against the will. Although each has been carefully considered, we do not in term narrate them, as we think they are covered by the following propositions indicating our conclusion.

The suspicious circumstances charged are, in our view, met by the facts shown that forty-one years defendant Harrison and his late wife lived together as man and wife, on terms so far as the record discloses of sympathy and good will. Tears ago they mourned the loss of their only child, aged sixteen years. The testimony should be positive, clear and direct, to give ground enough to find forgery committed or instigated by an old man under the circumstances here; counterfeiting the handwriting aud signature of the mother of his only child, while, on the other hand, the plaintiffs, brothers of the late Mrs. Harrison, who are plaintiffs, one at least, who had received a donation of some value, did not always manifest the regard due by a brother to his sister.

The two brothers, who are plaintiffs in the suit, were in Shreveport when the will was .probated, years ago; they had been duly notified, and yet they did not appear before the court to complain of the-.nullity of the will on the ground which they now urge. 'They are not estopped, nor iu their action prescribed, but none the less some significance grows out of the fact that they did not, in court, complain of the wrong of which they had knowledge at the time.

One of the witnesses, upon whose testimony the court acted and probated the will, on the trial swore in direct opposition to his testimony he gave on the application to probate the will and sought to-justify his inconsistency as a witness by reason not sustained, but. refuted by other testimony.

The jury heard the witnesses, a number' testifying in favor of the genuineness of the will and of the other instrument of writing introduced, and others of a different view. They determined that the weight of the testimony sustained their genuineness and validity. Their verdict was sustained by the judgment of the District Court We have found no ground upon which to disturb their verdict.

For reasons assigned the judgment of the District Court is affirmed..


text:
    No. 13,054.
    Emanuel Sherman and Wife vs. Parish of Vermillion et al.
    Syllabus.
    As relates to the parish:

    1. A juror met with an accident which resulted in his death, while he was, with the other members of the jury, in charge of the sheriff’s deputy.
    2. Complaining of the negligence of the police jury and of the deputy, this suit was brought by plaintiff, his father and mother, for damages.
    3. The parishes, like the town or country, indicating the political divisions in-certain States of this Union, are not responsible for damages caused by the negligence of police juries in matters in which they have some discretion. They represent the sovereign power and not the tax-payer by whom the damages, if allowed, must be paid.

      As relates to the claim made against the sheriff, a co-defendant:

    1. The action against the parish not being sustained under the state of facts, there was no right of action against the sheriff.

      2. It does not appear that the order of the officer was the proximate cause of death. lie directed the members of the Jury, in the darlr, to move further from the courthouse. There were other causes of the accident which precluded plaintiff from recovering, and to which the officer did not contribute.
    ON APPEAL from the Seventeenth Judicial District Court for the Parish of Vermillion. DeBaillon, J.

      Walter J. Burke & Bro., Weeks & Weeks, and W. B. White for Plaintiffs, Appellants.

      M. T. Qordy and Qus. A. Breaux (Glegg & Quintero, of Counsel) for the Parish of Vermilion, Defendant and Appellee.
    IF. W. Edwards, and Edwards & Greene for J. O. Hébert, Sheriff and Sureties, Defendants, Appellees.
    Submitted on briefs February 8, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs, the father and mother of the deceased, seek to recover damages in the sum of $25,000 for the death of their son.

They in substance, in their petition, set forth that their son George, while serving on jury in a criminal ease, and while in care of the deputy sheriff, under the order of the presiding judge that they should not separate, he, their son, and the other members of the jury were-conducted, in the night time, out of the courthouse, at the request of' some of the members of the body, to repair to the closets near the-courthouse. They allege that they were compelled to avoid going into-the closets for the reason that they were unclean and negligently kept.

They charge that the deputy sheriff was culpably negligent in giving their son and the other members direction to go to a given spot in the dark, which, instead of being, as should have been, a safe place, was a pit (that the police jury had given permission to dig out) in which he fell, and fatally injured himself; thát their son knew nothing of that particular place at which he fell, and nothing of the danger to which he was exposed, and in regard to which he was not warned; that in following the direction of the deputy sheriff, no notice was given to their son, and no light was furnished him as should have been furnished, if the officer had been ordinarily careful; that the pit had been there many years to the knowledge of the officer.

• The defendant filed the plea of no cause of action. The District Court sustained the plea, and dismissed plaintiffs’ action.

From the judgment of dismissal plaintiffs present this appeal.

Our researches have not resulted in our finding authority in support ■ of the position that parishes can be compelled to respond in damages for the negligence of the deputy sheriff to take proper care of the jury placed in his charge by the presiding judge in a criminal case.

Police juries have authority of administration of parish affairs, and have nothing to do with the trial of criminal cases.

They, under delegated powers, expressed or implied, represent the parish.

We have followed the argument of counsel for plaintiff, and have given some attention to the jurisprudence of the several States of the Union regarding the subject before us.

The contention of plaintiff is that the jurisprudence in States where •a county or town system prevails, is necessarily different, and has no .application in this State. We, on the other hand, find that, whether, as relates to town, county or parish, these divisions, towns, counties- 'or parishes, have only such power as is vested in them by sovereign authority.

As relates to the parishes (to meet the proposition pressed by • plaintiffs that they have greater power than towns or counties in other States), we, to some extent, traced the meaning of the word to its origin. In France it was the ecclesiastical division of the territory, ^the spiritual, and, in some particulars, temporal” division; i. e., the .district in charge of a curate, and, originally, of the curaii.

The colonists of Louisiana became accustomed to similar divisions >of territory in church matters. In the course of time it was used to Indicate political divisions of the State.

From the earliest days there were parishes in the territory; parishes at first, afterwards parroquia under Spanish rule; and when the State was admitted into the Union, the French name was retained, to indicate the civil divisions of the State; but the responsibility, of the parishes and of the taxpayer is limited by legislation, just the same as they are in other States of the Union. ,

They, the county and parish, have only delegated powers, and such needful powers as are necessary to carry out the delegated powers.

So, as far as we have been able to examine, all the well considered .decisions hold that the political divisions of the State are not responsible for damages in eases such as the one before us for decision. The •decisions generally hold that, in such cases, the politic|l divisions of the State represent the sovereign, and, therefore, are not responsible for damages.

Those decisions apply, we think, in our State, as they do where the town and county system prevails. •

The complaint is directed against the parish for neglecting to .provide suitable closets, and for having left open a dangerous pit near ■the courthouse.

In the light of judicial decisions, the parish is not liable in an •action by a party injured because of the neglect of an officer to perform a corporate duty in a criminal case unless such action is given by statute. Cooley on Constitutional Limitations, p. 246.

Such a suit, as the one here, can not be'sustained without statutory sanction.

The exemption from liability, it has been decided, does not apply to ■villages, boroughs or cities, which accept special privileges from the State covering larger powers, and conferring more valuable privileges. lb., 247.

Municipal corporations, it is held in many decisions, are made such •whether they will or not, and can not be considered in the light of ■persons who have voluntarily, and for a consideration, assumed obligations, so as to owe a duty to every person interested in the performance. Ib., 245.

Cooley, from whom we have freely quoted, cites in support of his text on Constitutional Limitations, the carefully considered ease of Eastman vs. Meredith, in which it was decided, on tEe principle as stated, that the town is not liable for an accident caused by the floor giving way of an imperfectly constructed townhouse (the imperfect • construction was the work of the town).

The exeznption of legislative officers is plain, is the view of Cooley on Torts.

“The legislature has ftill discretionary authority in :%11 matters of legislation, and it is not inconsistent with this authority that members rshould be called to account at the suit of individuals" for their acts and neglects. A discretionary power is, in its nature, -independent.” Page 376.

This commentator affirms that the principle applies to inferior legislative bodies, such as board of supervisors, councils, and the like. Page 376.

This principle was recognized by this court in several decisions;, notably, Lewis vs. City of New Orleans, 12th Ann., 190; Stewart vs. City of New Orleans, 9th Ann., 461.

We find in 12th Ann., supra, a striking illustration.

Judge Spofford dissented in the case just cited against the City of New Orleans, but he was the organ of the court in King vs. St. Landry, 12th Ann., 859, in which it was held that “no remedy is given, by statute against a parish for private injury.”

In 9th Ann., 461, supra, the syllabus reads, “a municipal corporation in the exercise of power which it possesses for public purposes,. and which it holds as part of the country, enjoys the exemption of government from responsibility for its own acts and the acts of its officers deriving their authority from the sovereign power.”

The syllabus covers fully the principles announced in the decision..'

To the same effect is Dillon on Corporations, Vol. 2, p. 969.

“In the absence of a statute giving a remedy, public or municipal corporations are under no liability to pay for property of individuals destroyed by a mob.” Add. Torts, 1305; Dillon’s Municipal Corporations, Vol. 2, page 959.

“Usually the functions of the political divisions of the State are. public.” Cooley, page 296.

“The powers empowering municipalities must be construed with-reference to the object of their creation, namely, as agencies of the State for local government.” Ib., pp. 210, 290.

The question was carefully considered by us recently in the case of City vs. Kerr and Gally, 50th Ann., 413, and the conclusion was reached which has a direct bearing upon the issues here.

He repeatedly refers to the local agents of the State.

Public corporations are but part of the machinery employed in carrying on the affairs of the State” (II.)

“Usually their functions are of public nature” (lb.)

Municipal corporations are agencies of government. Black on Constitution, p. 280. n "¶; -

They are in their subordinate capacity entrusted with some discretion.

Their functions being public and they being vested with discretion, their responsibility is to the State. ^

They do not represent the taxpayer when they legislate in matters relating to the State and to criminal affairs.

Their negligence, when the State is directly concerned, is not chargeable to the citizens of the locality.

If the parish were held responsible, they alone would have to pay the damages. We have not found any law under which they may be held for such damages. They, the local authorities, the police jury, .are vested with such powers and prerogatives as are necessary to make rules for the government of their affairs.

The citizens can not be held responsible for the agents of the State, when acting- for the State, in maintaining local government.

From Cooley, we again quote: “On the other hand, it is settled that these corporations are not liable to a private action at the suit of a party injured by-a neglect of its affairs to perform a corporate duty, unless such action is given by the statute” (page 246). ’Cooley’s Constitutional Limitations, 2nd Edition.

“We can reply, taken for granted, that the common law gives no such action.” lb.

The weight cf the judicial decisions, we think, and all the eommontators upon the subject, sustain this view.

W e pass to the question of the liability of the sheriff.

In our view, the parish not being liable, there remains no right of action against the sheriff.

The act charged was not one for which he was liable.

All that the deputy sheriff did was to order the- jury to move further towards the street, away from the courthouse. The jury was under the control of the deputy to the extent only that it was necessary, under the judge’s order, not to permit them to separate.

It would be difficult to conclude that one, under the circumstances here, is responsible for such an order without a showing of negligence in having directed the victim to follow a course unavoidably leading to the pit.

The direction to move further, given to the jury, does not'lead one to imply that they were to move directly to the pit, so that falling into it was unavoidable. ' ‘ ‘

The juror fatally injured was not by the direction of the deputy compelled to go to the pit, he was left at liberty to guard his person, and not expose himself to a fall. He was not under the necessity of exposing himself at all, if he did not choose.

The order was not to separate; they were not under the physical control of the deputy, save to the extent that they were not to separate from each other.

A direction, such as that given under the circumstances, was not an order compelling the unfortunate young man to fall into the pit; and not to have warned him to avoid the pit, in moving further, was not an act of negligence for which the sheriff can be charged.

Had the deputy directed the juror to the particular spot where the accident occurred, it would be different, but he only directed the juror to move further, without reference to the pit; and it happened that the unfortunate man came to the pit and fell into it.

It can not be said that the deputy was the cause of the fall, when the unfortunate man was directed to move further.

There was nothing to show that he was directed to the pit, or to-move in a direct line to the pit in which he fell.

The complaint is that the deiraty failed to warn the juror of the-danger.

Eleven of the members complied with his direction without falling into the pit.

It is alleged, in substance, that the juror was impaled in the fall “upon a piece of wood or timber, which formed part of the scaffolding” in the wall of the pit.

The proximate or immediate cause of the accident was the wood or timber.

The petition was carefully drawn.

Whether the dangerous pit included the charge of knowledge on the-part of the officer, despite the clearness of the charge, is not absolutely certain.

Conceding all that is claimed for the thorough and complete allegation contained in plaintiffs’ petition, the question, nevertheless, arises as- to whether the officer had reasonable ground to expect the-sad consequence.

The idea is “reasonableness of expectation.” Wharton on Negligence, Sfá-.

The charge that he had knowledge of the dangerous pit does not give rise to the imputation of reasonable ground to apprehend that in the pit was a piece of wood or timber that might cause death. One may fall in a pit, even a dangerous pit,, without injury.

“The foreseeing of a harm as remotely and slightly probable does-not involve the imputation of such harm, for there is nothing that we can do that may not remotely produce some harm, and, therefore, if we are to avoid such imputation, we must do nothing.” Idem a., Sec. 76.

Would a prudent man have had cause to expect an accident in acting as did the officer? 'We are not convinced that the consequence might reasonably have been expected, and that plaintiff has a right of action against the officer.

Finally, in the absence of proof of the proximate cause of the accident and the responsibility arising therefrom, the officer’s act, particularly if he was without knowledge of the direct and immediate cause-of the accident, is not an act for which damages are due by him.

For reasons assigned, the judgment appealed from is affirmed.

Mr Justice Monroe takes no part, as he was not a member of the court when the ease was heard.


author: Breaux, J. Watkins, J.

text:
    No. 12,882.
    Chambers, Holton & Winn vs. John A. Hubbard & Co., Hibernia National Bank and John Holmes & Co.
    Syllabus.
    Act 156 of 1882 did not repeal Act 72 of 1876.
    A factor who bolds a warehouse receipt may pledge the goods, covered by the-receipt, to the, extent that he is a creditor of the principal.
    To the extent that the factor is a creditor with a warehouse receipt securing his claim, the debtor of the factor is without interest to question the form of the warehouse receipt; the factor, having been under operation of law, subrogated to the right of his principal to the extent before stated.
    ON APPEAL from the Civil District Court for the Parish o£ Orleans. Theard, J.

      Edwin T. Merrick for Plaintiffs, Appellees.

      Samuel L. Gilmore for Hibernia National Bank, Defendant, Appellant.
    Argued and submitted March 9, 1899.
    Opinion handed down March 20, 1899.
    Rehearing refused, with reasons, April 17, 1899.
   On application for rehearing by Watkins, J.

The opinion of the court was delivered by

Breaux, J.

The defendant bank prosecutes this appeal to have the judgment appealed from amended, so as to recognize the pledges Maimed by the Hibernia National Bank to the amount of $8,385.14.

Appellant, at the outset, disavows any intention to bring up anew questions of the right of the Hibernia National Bank to execute its pledges of the 18th and 19th of December, 1893, in so far as these questions have been disposed of by the decision of the Supreme Court in the case of Holton and Winn vs. John A. Hubbard et al., 49th Ann., 715.

We take it that the following, is the proposition here involved, and ihat it presents the question before us for decision:

The bank is entitled to enforce its pledges against the individual interest of the debtor of its pledgor, to the extent that the debtor is indebted to its pledgor. •

The record discloses that the firm of Chambers, Holton & Winn was ■a planting partnership, composed of W. Frank Chambers and the planting partnership of Holton and Winn. The interest of Chambers in this partnership was two-thirds, and Holton and Winn, one-third; that they consigned one thousand four hundred and ninety-five sacks ■of rough rice to John A. Hubbard, a commission merchant, of New ■Orleans (subsequently the house became'known as John A. Hubbard & Co.; the company being Harris Gagné, who was, before that time, a partner, though his name was not made mention of as such). The sacks were stored in a warehouse, and warehouse receipts issued for this rice,' and afterward pledged by John A. Hubbard to the Hibernia National Bank to secure a loan made by the bank to the pledgor.

About a month after this pledge had been made, J. A. Hubbard & Co., and the individual members of the firm, made a cessio boriorum. The syndic of the house was made a party to this suit.

Chambers, Holton & Winn brought suit for the sacks, took out a writ of sequestration, and sequestered both the sacks and the warehouse receipts (the latter were in the possession of Hubbard’s pledgees, and the sacks of rice in the Rio Warehouse).

It is well to boar in mind that the warehouse receipts issued by the owner of the Rio Warehouse were pledged by John A. Hubbard to the appellant bank on the T6th day of December, 1893.

Chambers was not a party to the suit cited supra.

H. Gagné, partner of John A. Hubbard & Co., and book-keeper, testified that on the account of Wm. F. Chambers, with his firm, it appears that Chambers was indebted to John A. Hubbard, on the 29th day of January, 1893, in the sum of $1,686.81, and on that •day the account of Chambers was balanced by charging it to the .account of Chambers, Holton & Winn, so that the account of W. F. Chambers was actually released on the face of the papers by adding the amount that he owed to Hubbard.

The plantation on which the rice was raised was owned by Holton and Winn. Chambers received two-thirds as his share, for the reason that he cultivated the land, thrashed the rice, stacked it and delivered it at the landing, giving one-third and taking two-thirds for his work. He furnished all the money to raise the rice.

Holton, as a witness, swears that he was in'New Orleans at the time the accounts were balanced, as before stated; that he knew that the rice had been pledged, and at the time it appeared that Chambers was indebted to Hubbard.

Also that there was no connection whatever between the affairs of Holton and Winn and those of Chambers, Holton 'and Winn.

He further testifies that Viterbo was Hubbard’s agent.

Hubbard’s book-keeper testifies as follows:

“Q. Will you look at page 272 of the ledger, and state what •account appears on that page ? ;

“A. Wm. F. Chambers.

“Q. What does that amount show?

“A. Shows, under date of January 4th, a debit of $1,386.81, on ■January 2d, a debit of $300.

“Q. Do you know what $1,386.81 was for that debit entry?

“A. A sight draft in favor of Leon Viterbo & Bro. ':

“Q. Drawn by whom?

"A. W. F. Chambers.”

Appellant also claims an amount of $1,800 growing out of business-with still 'another firm, it appears, of Hubbard and Yiterbo, and also-claims commission and warehouse charges it claims to have paid. Each of these claims has received attention, and will he disposed of' in our opinion and by our decree.

The judgment appealed from recognized the joint ownership of’ Chambers, Holton & Winn in the proportion"of'an undivided two-thirds to Chambers, and one undivided third to the partnership of Holton and Winn, and, in that proportion, condemned the bank to pay the proceeds to plaintiffs. ■

■ Erom the judgment the Hibernia National Bank prosecutes this-appeal.

In our judgment, if one is personally indebted to the pledgor, thepledgor has the right to enforce its pledge to the amount that the-debtor, to the pledgor, is indebted.

In the ease before decided, 49th Ann., 133, the court found that Holton and Winn were not indebted to Hubbard at >all, but that, on the contrary, Hubbard was indebted to them.

Here, there is clear and direct evidence showing that Chambers-was indebted to Hubbard.

Had Hubbard not failed in business, he could have deducted from Chamber’s share of the crop the sum of the latter’s indebtedness. Chambers, as to his indebtedness, is without right as against the pledges made. Hubbard was entitled to pledge his claim to whosoever he pleased.

After deducting the proportion to which Chambers, Holton and’ Winn had a right, the remainder, in our view, should be credited to-the claim of the pledgees of Hubbard.

We ar,e brought by the foregoing conclusion to the next claim of appellant to the sum of $1,800, growing out of an asserted indebtedness by Holton and Winn to Hubbard, .arising from the business-between Hubbard and Yiterbo.

We-have, in our prior decision (49th Ann.) passed upon that question to the extent of holding that Holton and. Winn were not indebted to Hubbard. That is an end of the question. The well known Latin maxim applies, translated, with some- freedom: “There must he an-end to disputes.” We have none the less given some attention to this-claim, and do not find, as an original question, that it- stood on a solid basis. Be this as it may, the matter was disposed of heretofore, and is no longer reviewable.

The claim is made by appellant for commissions and warehouse charges, it claims to have paid. This claim is not sustained, as we-think, by the facts. The amounts were deducted from the sum for whieh the judgment was rendered, and can not again he charged to plaintiff.

Therefore it is ordered, adjudged and decreed that the judgment appealed from be amended by deducting $1,434.05 from the amount of the judgment, leaving $4,436.63, with legal interest from the date of the judgment appealed from, to he paid by appellant (bank) to plaintiffs.

It is ordered, adjudged and decreed, that there be judgment in favor of the appellant hank for the amount of $1,434.05, to he paid out of the proceeds of the rice crop, and that, to that amount, the pledge by Hubbard to the appellant bank is recognized and is to he enforced.

In other respects the judgment appealed from is affirmed.

Appellee to pay the costs of appeal.

On Application for Rehearing.

Watkins, J.

The prayer of plaintiffs’ petition is for judgment decreeing- certain warehouse receipts illegal and of no effect as to-them; and also, that a certain pledge to the Hibernia National Bank be, likewise, declared illegal, and without effect as to them.

Also, and in any event, that they he recognized as the owners of the rice in the proportion of two-thirds to Chambers, and one-half toHolton and Winn.

The District Court gave judgment in favor of plaintiffs in those-proportions as joint owners of one thousand four hundred and ninety-five sacks of rice, free of the claim of the bank as pledgee, and- further recognizing them entitled to the net proceeds of said rice in the hands of the bank, and fixed the amount which the hank should pay, at the-sum of $5,872.68.

The bank appealed for the purpose of having its pledge recognized to the extent of $3,385.14.

Plaintiffs consigned to John A. Hubbard, a commission merchant,, one thousand four hundred and ninety-five sacks of rough rice.

The house afterwards became John A. Hubbard & Co.

'The Backs were stored in a warehouse, and warehouse receipts were issued therefor^ and John A. Hubbard afterward pledged them to the -bank.

Soon afterwards John A. Hubbard &.Co. failed.in business, and .availed themselves of the insolvent laws. The plaintiffs, subsequently, sought to recover same by sequestration.

Our judgment holds that the bank, as pledgee, is entitled to enforce its pledge against the rice to the extent that Chambers is indebted to its pledgor, Hubbard — the residue to go to the plaintiffs.

It recognized the right of the bank to the amount of $1,434.05, and gave plaintiffs judgment for $4,436.63.

The application for a rehearing is made on the part of the plaintiff, and is chiefly devoted to what is termed “an eror in calculation,” but .a brief has been filed on the part of the bank in which a review of all the facts is given.

A re-examination of the ease has satisfied us that the opinion does .justice to all.

Rehearing refused.

Monroe J., takes no part, not having been a member of the court ■when the ease was submitted.


text:
    No. 13,101.
    Oran Dorsett vs. B. F. Scott; B. F. Scott vs. Oran Dorsett.
    Syllabus.
    ■Originally, the action was possessory. In subsequent proceedings, the action, without objection on the part of plaintiff in the possessory action was changed into an action of boundary, wherein the rights of the parties were considered and decided.
    'The plaintiff having waived his right, as set forth in the possessory action, could not ignore the suit to. fix the boundary line and return to the possessory action.
    While the Supreme Court expresses its views on certain issues, taken as a whole, the questions presented are not reviewable under Article 101 of the Constitution. The article was not intended to give a right of review, as if on appeal in all cases.
    IN RE Oran Dorsett applying for certiorari, or writ of review, to-the Court of Appeals, Third Circuit, State of Louisiana.

      M. J. Bowman, Andrews & Hahenyos for Relator.
    Submitted March 4, 1899.
    Opinion handed down April 3, 1899.
    Rehearing refused April 17, 1899.
   The opinion of the court was delivered by

Breaux, J.

This was an application for a writ of certiorari, and to-to have a judgment of the Court of Appeals reviewed, under Article 101 of the Constitution.

The relator, Dorsett, brought suit in the District Court to be protected, he averred, in his right of possession of a farm, against the invasion and trespass of his neighbor, Scott. He alleged that he had. been in peaceable possession of his farm for more than thirty years;, that his neighbor, the defendant in the suit, was tearing down their • dividing fence, and was erecting another dividing fence and taking possession of a part of relator’s land.

He averred, further, that the fence had been a boundary line for more than thirty years, and that his right of possession can not betaken from him except by due process of law.

The relator’s prayer is that defendant be enjoined from coming on the land of petitioner; from preventing petitioner from rebuilding the fence which he was tearing down; from building any fence on the ■ land of petitioner, and preventing petitioner from removing any fence - he may have built, and for damages.

Sometime after petitioner (relator here) filed an amended petition alleging, substantially, that Scott had violated his injunction, and' had torn down the fence.

Scott, the defendant in the suit, filed a general denial, and also 'special denial that he was attempting to erect any fence on the land belonging to, or which was ever in the possession of the plaintiff, and averred, specially, that he had built a fence on his own land, of which he had been in possession for more than thirty years, and that the-injunction which plaintiff had sued out was taken without cause.

In April, following January of 1898, Scott, the defendant in the-suit of Dorsett vs. Scott, filed a suit in the District Court alleging that he is. the owner of a plantation, .and that Dorsett is the owner of ’ the tract adjacent to his own; that, some time since, there has arisen a dispute as to the boundary between these said plantations; that in-1885, he and Dorsett, jointly, employed Bringhurst, parish surveyor, .to establish the boundary between these two tracts of land, and when it was found that the line run deep into Dorsett’s land, in order to .avoid a law suit, and adjust the matter in a friendly way, he and Dorsett agreed to adopt as the boundary line the middle of the ditch, ■which had been dug years before, and while the two estates had been .in possession of Thompson, the vendor, from whom each of the parties, by mesne conveyance, holds his land; that the two ends of the ditch were then marked by the surveyor by planting iron posts to mark the boundary as agreed on by them.

The petitioner further alleged that, at the request of Dorsett, he consented that the portion of the division fence, to be built by Dorsett for his convenience, should be built on his (Scott) petitioner’s .side of the ditch, and that recently, when said Dorsett had permitted his portion of the fence to fall into decay, and it became necessary to protect petitioner’s crop from depredation from stock and cattle, for ■the fence to be rebuilt, he, petitioner, undertook to rebuild the fence .along the line of division, and, altogether, on his side of the ditch, and in no way interfering with the land or rights of the said Dorsett, ■when he was met by an injunction restraining him from building his fence.

The prayer of the petitioner is that the middle of the ditch be recognized as the boundary line.

In this action defendant joined by filing an answer in which he .alleged that the fence that Scott tore down and destroyed was built by him, Dorsett, at his own expense, years ago; that he had inherited the land included within the fence as a boundary, and' of which he and his father had been in peaceable possession for more than thirty years, and that it was the boundary line between him and Thompson, from whom plaintiff acquired his land; that Scott tore down the fence ■against his remonstrances, and that instead of erecting his fence on the old line, he ran it across the old line and on the land of defendant for the distance of seventy or eighty yards in length, thereby disturbing the possession of defendant (relator here).

Relator, Dorsett, avers that the District Court found it impossible to try the two suits as a consolidated suit, although it appears that an order of consolidation had been previously issued; that in consequence of its not being possible to try the two suits together, the suit of relator, Dorsett, was taken up. Plaintiff, Dorsett,' offered his evidence in chief; defendant offered his evidence, and then plaintiff offered his evidence in rebuttal; that the same method was pursued in the case of Scott vs. Dorsett. It was agreed that the testimony taken in each case could be used as evidence in the other, as far as it was practica- . ble. Relator avers that the district judge rendered a separate and distinct judgment in each ease, but made the judgment he rendered in the case of Scott vs. Dorsett, the criterion by which he decided the suit of Dorsett vs. Scott. That he rendered a judgment in the ease of Scott vs. Dorsett, decreeing that the middle of the ditch be the boundary, and in the trial of Dorsett vs. Scott, rejected his, relator’s - (Dorsett’s) demand, with $100 damages.

Relator complains, in the first place, of the consolidation of the- two •suits. It was not alleged that he took a bill of exceptions to the •court’s ruling in consolidating the two eases. Moreover, the cases we-gathered from the averrments, were virtually tried separately, and it ■ does not appear that relator’s rights were prejudiced by the consolidation. With reference to the complaint that the court took the judgment rendered in one ease as the basis for its judgment in the other, we think it sufficient to say the court could not well avoid taking its judgment in one suit as a basis for a judgment in another suit. Both cases had the same cause of action. All the rights of each of the ■ parties were involved in each suit relating to the same subject matter.

The next complaint is that the issues were viewed as those arising in a boundary action, when, in reality, the action was possessory. ■Granted that plaintiff’s action was possessory at first; we have seen that sometime after that action was brought, i. e., the suit by Scott to fix the boundary line, he, Dorsett, met the issues presented by Scott’s action to fix the boundary line. He pleaded a general 'denial, and, in effect, consented to try the question of boundary, as we glean from the expressions of the answer. He did not interpose the least ■ objection to the form, or even to the name of the action, which was, unquestionably, an action to fix a boundary.

After this, he had no right to return to his first suit, his possessory action, and claim a right of possession which he failed to claim in the action of boundary.

It being evident, in our view, that the issues were all merged in the action of boundary by the effect of the pleadings, we do not discover that there was an error in admitting verbal testimony going to show that the boundary line had been fixed, as alleged by Scott in hi3action of boundary.

It is well settled that in an action of boundary, verbal testimony is-admissible in re-establishing lines.

W'e have given the record before us our careful attention, and from-it have gathered that there is no question of law to be reviewed, and’ no fact which we think we should consider on the application made. Toole vs. Minge, In re Ingersoll, etc., 50th Ann., 748.

It is therefore ordered, adjudged and decreed, that plaintiff’s-(relator’s) application be rejected, and his action dismissed.

Beheadings, under a rule of this court, are not admissible in this-class of eases.

Behearing refused.