author: Bermudez, C. J. Manning, J.

text:
    No. 9315.
    Succession of Edgar LeBlanc.
    A widow who has lived in concubinage with a man, from whom she has had children during her widowhood, and who is considered by persons of her class as depraved—is amenable to the charge of “ notorious bad conduct,” and should be excluded from the tutorship <of her minor issue with the deceased.
    The circumstance, if established, that she had ceased all intimate intercourse with her paramour, for the last eighteen months, is insufficient to show reform and to authorize the court to assume the responsibility of entrusting her with the custody of the persons ¡and with the administration of the property of such minors—as, both would be greatly .imperilled i n her control.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      JE. H. McGaléb for Appellant:
    i. The causes for exclusion and removal, established by Art. 308, B. O. C., are not applicable to the mother of illegitimate children, but refer solely to the tutorship of legitimate offspring. The surviving mother is of right tutrix to her natural children duly acknowledged. B. 0. O. 256. Art. 256 can only be reconciled with Art. 303, B. C. O., on the ground that the latter does not apply to the mother of illegitimate children ; for the fact that a woman has given birth to a natural child disqualifies her from the tutorship because of notorious bad conduct. D’Aix, 24 Aout, 1809 j Deleurie. T. 2, p. 283; Demodombe, T. 7, No. 485.

      2. The 0. N. is silent on the question of tutorship of natural children, and the jurisprudence of the French Courts is based on analogous provisions respecting legitimate children. Marcadé, T. 2, p, 190. In France, the family meeting determines the unworthiness of a person for the tutorship, but the decision is subjeot to appeal and review by the tribunals. C. N. 446, 447, 448. Thejprojet of the C. N. prohibited the exclusion of the father or mother of legitimate children for inconduite notoire Locré T. 7, pp. 137 and 138. The jurisprudence of Franco accords with the principle recognized by Art. 256, R. C. C. “La tutelle légale d’un enfant naturel appartient do plein droit au pére ou la mére qui l’a reconnu.” 4 few. 1811, Bruxelles [S. 43,1, 281; C. N. 4,1, 375—D. A. 8, 649]; Id. 24 Mars, 1813, Colmar [S. 14, 2; 2 C. N. 4, D. A. 8, 641]; 1 Septr. 1809 Toulouse, 21 Juilli 1836 Grenoble; Loiseau des Enfants Naturel, p. 537; Delvincourt 1.1, p. 425; Magnin des Minorités, 1.1, Nos. 502-4; Vazeille du Marriage, t. 2 Nos. 478, et seq; Marchand Code do la Minorité, p. 110; Chardon Puis. Patern, Nos. 80, et seq; Cubain Droit des Femmes, 82. Where a family meeting gave the tutorship of an illegitimate child to her step-father, the decision was reversed and the administration conferred on the natural mother. Pau. 13 fev. 1822.
    3. Notorious bad conduct, as used iu Art. 238, R. C. C., is a relative, not a positive term, and in deciding a question of morality the court should consider the station in life, customs, habits and ideas of the class to which the individual belongs. “Devant la loi toutes les classes de la societó sont au méme rang; mais elles no sout pas sur la méme ligne quand il s’agife d’apprécier la conduite qui rósulte do leur éducation et de leur état dans le monde. Telle action d’une personne distinguée sera taxée d’inconduite notoire par un conseil de famille honorable, qui sera & peine remarqué© & l’égard de toute autre personne, par un conseil de famille composó d’honnétes proletaires. Ainsi, sur ce point, tout depend encore de la situation des personnes dans la societe." Magnin des Minorités, 1-2, p. 125, No. 395; Marchand Code de la Minorité, p. 245. A fortiori the conduct of the applicant in this case, a colored washerwoman demanding the tutorship of her two illegitimate children, should not be measured by tbe rules and customs prevailing among the elite society of thoCaucasian race; because (1) there is avast difference between tbe moral standard of the negro and the white race [Encyclopcedia Brifcannica, verbo Negro]; also (2) in tbe legal and social status 'of mothers of legitimate and illegitimate children, as well as (3) of their offspring,
    4. In order to disqualify a mother from the natural tutorship of her children, because of' notorious bad conduct, tbe immorality complained of must be shown to exist at tbe time of tbe application or, at all events, witliin the 'recent and not tho remote past¡ for both the civil and moral code recognize the doctrine of atonement and reformation. Marcadé, T. 2, p. 236; 36 Ann. 382; St. John, ch. viii, v. 3 to 11; Berthet C. Jeannin, Besan9on, 17th Dec. 18u7.
    5. The evidence of notorious had conduct should be strong and conclusive to justify a court in excluding a parent from tbe tutorship of a child. 5N.S.32; 5R.489; 2Ann.299, et seq.

      Jerome Meunier for Appellee:
    1. The parent who, in his pleadings, presents such a state of facts as to show that his children are legitimate—said fact being un contested—cannot shift his position at will to a contradictory one in order to defeat the action of the law upon it. 4 Ann. 416; 5 Ann. 18; 18 Ann. 141; 22 Ann. 368.
    2. The fact that the mother of legitimate children has given birth to a natural child since the death of her husband, is irrefragable proof of notorious bad conduct, and of itself sufficient to exclude her from their tutorship. Cour d’Appel d’Aix, 24 aotit, 1809; Magnin, Traitó des Minorités, T. 1, p. 125, § 397; Démolombe, T. 7, Nos. 482, 487; Paillet, O. R. 444.

      3. Such proof of notorious had conduct as will debar a parent from the tutorship of his children being once established, if he pleads reformation he must prove such reformation "by strong, affirmative evidence; ot, when not possible, by irrefragable deductions from’ clear, definite facts or cln uiiustnnces.
   The opinion of the Court was delivered bv

Bermudez, C. J.

This is an appeal by a mother from a judgment excluding her from the tutorship of her two minor-sons, on the, ground of notorious bad conduct.

The appellant lived in open concubinage witli the deceased, who married her two weeks before his death in 1872. She had two sons of him, one of whom, now abone fifteen years, was born before, (he other,, now about eleven years, came to life after his dentil.

A number of years after the less of iter husband, the widow lived unmarried during about five years with another man, from whom she had three children, (two of whom are living) and with whom, she says,, she has lmd no intercourse for the last eighteen months,, because she would not follow him away. Among those of her class site is considered as ¡i woman of bad conduct.

The application of widow Edgar LcBlanc for the tutorship of her sons, to enable her to receive an inheritance of some .913,000 in the succession of their paternal grandfather, was oi>posed by his widow and tlioir grandmother asan informer, to whom, it appears, the care and custody of one of them had been entrusted by the father himself, but who is not an applicant for the tutorship.

The district court sustained the opposition and excluded the mother from the tutorship.

Article 303 of the E. C. C. authorizes both the exclusion and the removal from the tutorship of minors, persons of a conduct notoriously bad, including as well fathers as mothers. It does not discriminate between legitimate and illegitimate parents and children. Art. 304.

This article is identical with Article 444 of the French Code.

Under the law and jurisprudence of France, the fact that a mother has given birth to a natural child since the death of her husband is irrefragable proof of notorious bad conduct, and suffices to exclude her from the tutorship. Magnin, Minorité, p. 125, § 397; Demolombe V 7, Fo. 484-7; Cour d’Appel d’Aix 1809, 24 Aout.'

It has, however, been held that intimacies held secret, divulged by confidential letters of the mother, whose depravation was not of a nature to inspire alarm as to the education of the children, do not constitute that notorious bad conduct which the law brands and which must exert to justify an exclusion or a destitution from the tutorship. Bordeaux J5 plnv., an XIII; Rouen, 24 Janv., 1859; see Toullier Y. 2 § 1164; Demolombe. 7 § 484-6; Leeré, Yol. 5 p. 166.

Under that system the mother who has thus forgotten herself is even deprived de piano of the custody of her children. Paris,'Dec. 2, 1882; Baudry Laeanüniére, t. 1, No. 832.

The father is likewise reached by the same penalty. Lyon, 4 June, 1878.

The Court of Cassation, in construing the law, has recognized in courts called upon to pass upon questions of notorious bad conduct, a very extensive discretion in the appreciation of the facts constituting the offense. Cass, 15 Mar. 1864.

It is true that .an author of distinction says, and with good reason: '• Devant la loi, tontos les classes de la société sout nu meme rang; niais ellos ne sent pas sur la memo ligue quand il s’agit d’apprécier la conduite qui resulte, de lónr education et de. lour 6tat dans le monde. Telle action d’uno. personne distinguen sera taxhe d’iucohduitc notoire par un conseil de famille honorable, qui sera a peine remarqué© á l’égard de toute autre personne, par un conseil de famille composé d’honnétes prole-taires. Ainsi, sur ce point, tout depend encore de la situation des personnes dans la société." Maguin des Minoritós, 1-2, p. 125, No. 395; Marchand, Code de la Minorité, p. 245.

But we fail to see how, by whatever standard measured, the acts of concubinage charged and proved to have lasted for years, can, for a moment, not be frowned upon judicially as a most censurable misbehavior in any class or race whatever of society,

When it is considered that—in Louisiana as in France—so jealous is the law in the protection which it extends to the persons and property of minors, it is provided that where a widow marries again, without having been previously maintained in tho tutorship of her minor issue, she forfeits ipso facto the. tutorship—the legal mind is at a loss to perceive why a widow, who misbehaves by living, unmarried, with another man, from whom she begets children, and who is considered as depraved, should be allowed to take charge of the persons and property of her legitimate issue. R. C. C. 254; 0. N. 394.

In the instant case, tho habits of the appellant before her marriage were bad, and since her widowhood have continued to be highly reprehensible. She is twenty-eight years old, therefore still young. She has not absolutely reformed and may persist iu misbehaving, so as to ■endanger both the morals and property of her children.

The district judge decided correctly.

Judgment affirmed.

Rehearing refused..

Dissenting Ofinion.

Manning, J.

I cannot concur in this opinion. The opponent and. grandmother is a negress who lived in concubinage with Pierre Le Blanc a white man until within a week or two of his death in 1882 when the ceremony of marriage was gone through. Edgar Le Blanc was one of the children of this concubinage. He followed the example of his parents and lived in the same way with Louise Beattie, a mulattress, until two weeks before his death when they married. She is the applicant for tutorship of their children. If they are legitimate, she as-surviving mother is entitled to their tutorship. Rev. Civ. Code, art. 250. If they are illegitimate, she is of right their tutrix. Idem, art. 256. This last provision will be nullified by the opinion of the Court, in holding that art. 303, which excludes from tutorship persons of notoriously bad conduct, applies to mothers of illegitimate children. It is-notorious bad conduct for a woman to have an illegitimate child, and therefore to say in the same breath that a woman is of right the tutrix of her natural child, but a woman of notorious bad conduct cannot be. tutrix at all, is to utter contradictory rules.

But I think we can decide this case for the applicant without troubling ourselves in reconciling these seemingly contradictory provisions.

The evidence is that this woman Louise has lived an exemplary life-for eighteen months. She has abandoned her evil course and for that, period, has “known no man.” Four witnesses concur in giving her irreproachable character latterly. Four others it is admitted would testify in like manner if needful to offer them. They all say her conduct for a year and a half has been without blame, and her associates, have been respectable for her station. The standard of morality and virtue among such people is not high. But apply the highest standard—the proof is that her conduct has been notoriously bad but that, now it is notoriously good. Is she to be denied the grace of repentance and amendment? Or having repented and amended, is her previous bad conduct., not so very bad however in the estimation of her class, to be also a legal bar to the assertion of her maternal rights?’ See Ozanne v. Delile, 5 Mart. N. S. 32; and Kershaw’s case, 5 Rob. 489.

The devolution upon these children of a considerable sum of money has provoked this contest. It seems to be assumed that their mother-will waste it. Has not every lawyer’s experience furnished him with examples of reputable white -widows squandering the money of their children which the law permitted them to take possession of without, bond? The legislature must remedy that evil. It is not our province-to do it.s


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9445.
    The State of Louisiana vs. Alcide Delahoussaye.
    An accused who, on arraignment, pleads guilty of the charge preferred against him, may be allowed to withdraw his plea of “ guilty” and to plead “not guilty.” But the request to make the change must be made within reasonable time, and the discretion of the trial judge in refusing the request will not be disturbed on appeal unless the ruling be glaringly unjust.
    The ruling of the judge will be affirmed when nineteen days have elapsed between the dato of the arraignment and that of filing the motion for the change of the plea, and when the jury for the term had in the meantime been discharged.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. JDeJBaillon, J.

      JR. C. Smedes, District Attorney, and JMJ. J. Cunningham, Attorney-General, for the State, Appellee.

      C. JE. Girard for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The complaint in this case is that the accused was denied the right of withdrawing his plea of guilty.

The record shows:

That on the 5th of March, 1885, an information was filed against the defendant charging him with the crime of horse stealing.

On the 6th, the day following, the accused was arraigned and pleaded’ “Guilty.”

On the 25th of the same month, on which day sentence was to be passed on him, he filed, through counsel whom he had retained in the meantime, a motion praying for leave to withdraw his previous plea, on the ground that he had made it “under a misapprehension of the law applicable to the facts of his case,” and praying for a trial by jury.

In the bill taken to his ruling against the relief asked in the motion, the trial judge informs us that the jury for that term of Ms court had been discharged when this motion was filed, and that when Arraigned the accused had made no request for the assignment of counsel to assist him in his defense.

The charge of horse stealing does not involve any complicated points of law; hence in his motion, while the accused invokes a misapprehension of the law applicable to his case, we do not understand him as denying the facts which were admitted in his plea of guilty.

The main fact was the stealing of a horse, and we are therefore at a loss to conceive of what law he could have misa;>prehended, unless it be the law fixing the penalty for the crime which he had freely and vol an taril y con fosse d.

This error could surely not j ustify the conclusion that he had pleaded through, error as to the nature of the charge to which he was called to answer.

Jurisprudence recognizes the right of au accused to recant his confession made on arraignment and to supplant it by the plea of not guilty. But it is clear that the judge may in his discretion refuse to allow the change when he is satisfied by the surrounding circumstances that the ends of justice cannot be served by allowing the privilege.

Tire facts shown by this record are sufficient to satisfy us that the trial judge exercised sound legal discretion in overruling the motion in this instance.

Nineteen days had elapsed since the day of the arraignment; the jury had in the meantime been discharged, and the relief prayed for would practically have operated a continuance of the cause to a future term of the court. We entirely concur with the judge in- his ruling that the motion was made too late.

We find no error in the proceedings.

Judgment affirmed.


author: Manning, J.

text:
    No. 9307.
    John Pasley vs. Ann McConnell et als.
    Sequestration is a rigorous remedy and cannot be extended by implication nor beyond those cases for which, the law has expressly provided.
    An allegation that the writ is necessary to maintain the property pending the litigation in order that the revenues may bo promptly collected is insufficient. There should be apprehension of waste or of conversion to use.
    PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. 8. Benedict for Plaintiff and Appellant.

      J. Timony for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff brought this suit to be decreed the owner of certain real estate and prayed therein for its judicial sequestration for which a bond was given after our decree was sent down. A rule was then taken by the defendants to set aside the sequestration which was made absolute below and the plaintiff appealed.

The grounds alleged for the writ are “that a writ of judicial sequestration is necessary in the premises to maintain the property in dispute and herein claimed by your petitioner, pending the litigation to the ■end that the revenues thereof may be promptly collected, that the civil sheriff be. placed in possession thereof, that the taxes thereof may he paid, and the repairs necessary he made, to the end that your petitioner bo restored to the peaceable and quiet possession of said property.”

These allegations are insufficient to justify the issuing-of the'writ. 'There is no allegation that the party praying for the writ has good ground to apprehend that the defendants may make use of their possession to dilapidate or waste the fruits and revenues of the property or will convert them to their own use. Code Prac. art. 275. There is no allegation that the plaintiff apprehends anything, but merely an .assertion that the writ is necessary to maintain the property pending the litigation in order that the revenues may be promptly collected and the taxes he paid and repairs be made. So far from there being an apprehension of waste of revenues there is instead án allegation that they would not be promptly collected.

Sequestration is a rigorous remedy and cannot be extended by implication nor beyond those cases for which the law has expressly provided. Wilson v. Churchman, 4 Ann. 452; Barriere v. Feste, 9 Ann. 435.

The lower court set aside the writ.

Judgment affirmed.


author: Penner, J. ISermudez, C. J.

text:
    No. 9375.
    John W. Prescott vs. Benjamin Cooper and the Citizens’ Bank of Louisiana.
    .A party who seeks the annulment of Ms contract on the ground of error, must establish error as to the nature of the contract, or as to the substance of the object of the contract, or as to the substantial qualities of sucli contract.
    "Where the notarial act evidencing the contract read and signed by the complainant discloses fully and truthfully its nature and object with all its substantial qualities, the party cannot set up error on these points.
    "Where a party unconditionally assumes a liability contingent as to its eventual amount, as in the case of the stock mortgages of the Citizens’ Bank, he is bound thereby, although he erroneously believed that such liability wonld be nothing, or less than it proves to be, such error affects the accidental and not the substantial quality of the object, and cannot affect the contract unless induced by the fraud or false representations of the oth*r party.
    ‘He who alleges fraud must prove it. If the false representations which induced such error were made by a third person, without the knowledge or procurement of the other party to the contract, the validity of the contract is not affected thereby.

      Lesion, however enormous it may be, baa no effect to invalidate the contracts of persona of full age and under no incapacity, except certain designated contracts, of winch this i& not one.
    APPEAL from the Twelfth District Court, Parish of Rapicles. Overton, J.

      H. J. Howman and 7í. P. Hunter for Plaintiff and Appellee.

      White & Thornton, and M. Pyan and Miller & Finney for Defendant» and Appellants.
   The opinion of the Court was delivered by

Penner, J.

The substantial allegations of plaintiff’s petition for relief in this case are: that in 1879, being- in need of money, he applied' to defendant, Cooper, for a loan to meet certain immediate, pressing-obligations; that Cooper informed him that he himself was the debtor to the Citizens’ Bank for a stock note of $1840, secured by mortgage on his (Cooper’s) plantation, which was payable in nine annual installments, and bore 6-J per cent annual interest; that by obtaining the consent the bank to the transaction, he (Prescott) could assume Cooper’» place as debtor of the bank and transfer the mortgage from his property to that of Prescott; and that, in that event, he (Cooper) would pay him in cash the amount of the note and let him have the advantage of the long time allowed for payment of the note; that Cooper then assured him that this $1840 note was the whole amount of his liability to -the bank and all that Prescott would have to assume; that Cooper was subsequently joined in these representations and assurances by his attorney, Michael Ryan, Esq.; that, influenced thereby, he assented to the arrangement and made the necessary application for the consent of the Citizens’ Bank thereto; that some time thereafter he was informed, that such consent had been given and that the necessary act, which had. been prepared by the bank, was ready for his signature; that he repaired to the office of the notary, who proceeded to read to him the act, when he, for the first time, discovered from its recitals that he was to acknowledge therein that he had purchased from Cooper 230 shares of the capital stock of the Citizens’Bank, and that he was to acknowledge himself indebted to the bank for the full amount thereof, being the sum of twenty-three thousand dollars, and that he was to assume payment thereof, as well as of the stock note for $1840, and to grant a mortgage on his property to secure payment of the whole; that he then and there objected to these recitals, when he was informed by Ryan (Cooper’s attorney) that the stock mortgage was a mere formality and imposed no liability; and that, accepting and believing said assurance, he signed the act and consummated the transaction; that he has since discovered that said representations of Cooper and his attorney were false; that he has been called upon to pay, and has paid, a contribution of two dollars per share on said stock mortgage, and has learned that he is-held liable to future contributions to an indefinite amount; that lie-signed said act through error caused by the fraud, deceit and false representations of Cooper, and his attorney; and he prays that his mortgage in favor of the Citizens’ Bank be annulled; and that the former-mortgage of the bank on the property of Cooper be reinstated; or, in default of such relief, for judgment against Cooper for $23,000 damages-

If the formidable allegations of this petition were sustained by convincing evidence, the plaintiff would certainly present a strong claim, for relief.

But what are the facts disclosed by the evidence?

Whatever may have been the reticence of Cooper in the original interviews about this transaction, it is patent that the notarial act off mortgage read to Prescott before he signed the same, and at a time when he might have withheld his consent thereto, did affirmatively and distinctly inform Mm of every fact which it could have been his interest to know or the duty of Cooper to communicate; to wit: that he was1not only to assume the stock note for $1840, but that he was to purchase from Cooper the shares of stock, that he was to acknowledge liisindebtedness to the bank in lieu of Cooper for the amount thereof, and that he was to grant a mortgage on his property for the payment of the-same.

What else ivas it necessary that he should know, or that Cooper-should communicate to him?

All pretenses, however true, that he had no prior knowledge of the existence of such stock, or of his purchasing the same, or of his incurring any liability or granting any mortgage therefor, lose their effect, in the presence of the distinct recitals of the act admitted to have been read to him before the consummation of the transaction. These recitals are clear, comprehensive and unambiguous, and distinctly disclose-every fact of the ignorance of which Prescott now complains. On their-face, they represent fully and truthfully the entire nature, object and substance of the contract, and leave no room for a pretense of simple error as to any of these points.

Prescott is shown to be a man pf capacity and education, fully capable of comprehending the meaning of words; his attention and consid— eration were particularly given to them when read; and there is no excuse whatever for his not fully understanding their plain significance.

Unless, therefore, he -was induced to attach to them a different import from Unit which they plainly convey, by some false or fraudulent representation made by Cooper- himself, or -by some other person in Cooper’s presence or having authority from him, Prescott can have no ground of-complaint. The burden of proving such fraud evidently rests upon Prescott.

The evidence discloses but two interviews between Prescott and Cooper (or, as Prescott says, three) connected with this transaction. At the first one (or two) only Cooper and Prescott were present. Pres■cott swears that Cooper then told him positively that the stock note for $1840 was his sole liability to the bank and all that Prescott would have to assume. Cooper as positively swears that he made no such statement, but told him he would have to take his place in the bank.

In the absence of any impeachment of the character of either, can we give such preponderance to the testimonj- of Prescott as to accept it as sufficient proof of the alleged false and fraudulent representation1?

The last interview took place between Cooper, Prescott and Ryan. Prescott again swears that the above statement was again made by both Cooper and Ryan. In this, he is positively.contradicted by both Cooper and Ryan. We may remark here, in justice to that venerable jurist, Judge Ryan, that the first entry made in the note of evidence on the trial of this cause is the following: The counsel for plaintiff withdraws all charges of fraud against Judge Ryan, and also the allegation that h'e was the attorney for Cooper.”

There is no other evidence of any falso representations by Cooper, lie bad no further connection with the transaction until it was consummated. Prescott made his application -to the bank for the substitution and submitted liis titles and the appraisement of his property. After ■due consideration the proposition'was accepted by the bank and the act of substitution was prepared by it and forwarded for execution.

Nothing more whatever is shown to have passed between' Cooper arid Prescott, until after the completion'of the transaction. Cooper was not present when the’act was read and signed.

It does appear that, during the reading of the act, when the recitals touching the stock indebtedness and mortgage were reached, Prescott made objection thereto, and that Judge Ryan then told him'that this involved no actual liability, as be would nevér be called on to pay it; and-on this assurance Prescott withdrew his objection, suffered tlie .reading to proceed,-and signed the act.

It is needless to say that Judge Ryan was sincere in this statement. Nor is it so remarkable as, it might appear to one unacquainted with the constitution and working of thoso phenomenal monuments of her folly, the old property banks of this State. As a matter of fact, the liability for this unpaid stock depends upon the amount of the ultimate discrepancy between the value of the large assets of the bank and its bonded debt. Dow.n to the period of the war, the property was considered more valuable than the debt, and these shares actually possessed a value of about eight dollars per share. The emancipation of the slaves and the. deterioration in value of the real estate covered by the bank’s mortgages have changed this relation, and since .1870 it has-been apparent that, without some unexpected and improbable appreciation in the value of property, the stock must pay considerable contributions to. make up a deficiency. It does not appear that this change in the condition of affairs was known to Judge Ryan, who had doubtless superintended many such transactions before and even since the war, in which the stock liability ivas treated as immaterial, if not an actual advantage.

Be this as it may, it must be borne, in mind that Judge Ryan was not the attorney of Cooper and did not represent him in any way; nor does thfe evidence disclose that Prescott had any reason to believe that he did.

The act of substitution fully informed Prescott that he assumed the liability to the hank for the stock, whatever it might he, within the limit of 823,000; and if he accepted and acted upon the opinion of a third person that practically it would amount to nothing, how.can he hold Cooper responsible for such an error not induced by him1?

Before proceeding very briefly to sum up the law applicable to this state of facts, we may add that the evidence of Archinard shows that Prescott had received ample warning of the danger of the transaction into which lie was entering. Archinard was known to him as having had similar dealing with the bank and had been consulted by him on the subject. Archinard testifies that he warned him against it; told him that he would not only have the stock note to pay, hut that lie would have to pay contributions on the stock and that it would ruin him.

Moreover, Prescott’s conduct after the transaction does not strengthen his case. Notwithstanding his surprise at the stock matter, he never mentioned the subject to Cooper in tlieir subsequent interviews or complained in any way of Cooper’s conduct.

It further appears that in October, 1880, he voted at the bank, as a stockholder, in favor of accepting the provisions of the Act of the General Assembly, No. 79 of 1880, authorizing the bank to compromise with its creditors, and the stockholders to cancel their liabilities by paying twenty dollars per share on their stock. Surely this should have advised him of the error into which he had fallen—yet he says not a word to Cooper. In 1881 he received from the bank a circular ■call for a contribution of two dollars per share on the stock, which he .subsequently paid—yet not a word to Cooper. It was only in the summer of 1882 that, for the first time, he opens his mouth to Cooper and •claims that he has been deceived and defrauded, and that lie should be relieved of the bargain of which he had so long enjoyed the advantage.

Now, what is the law applicable to the facts heretofore disclosed? It is sufficiently exposed in the textual provisions of our Code. Nullity •of the contract is claimed on the grounds of error and fraud.

1. As to error. To constitute a cause of nullity, simple error must be either as to the nature of the contract, or as to the substance of the object of the contract, or as to the substantial quality of the object. Rev. ■C. C. 1841 to 1845. The recitals of the act disclose fully and truthfully the nature of the contract and the whole substance and substantial •qualities of its object. 11

So far as the stock transfer is concerned, that substance and the sole ■substantial quality were, that Prescott accepted the tiansfer of the stock and unequivocally bound himself for the liability therefor to the bank, whatever it might-be, within the limit of $23,000. That liability, as to its amount, was contingent in its character, and error as to what that amount might be or whether it might be anything, was an errólas to a purely accidental quality of the object. The accidental character of such a quality is much more apparent than in the example given by Mourlon:

“Les qualités non substantielles sont celles que n’entrent qu’acces•soirement dans le contrat. Yous me vendez une maison et vous affirmez qu’ello est solide et bien distribuée; elle n’est ni solidement construitc ni bien distribuée. II y a erreur de ma part; mais cette erreur ne vicio pas le contrat, parce qu’elle ne porte que sur une qualité ac•eessoire.” 2 Mourlon, p. 545.

It is obvious that Cooper, neither expressly nor by any implication, warranted Prescott against being called on to discharge the liability so deliberately assumed.

To say that it is a substantial quality of a liability assumed that "there should be no liability, is a contradiction in terms.

2. As to fraud, none is proved on the part of Cooper. All complaints .as to the silence of Cooper on the subject of the stock in their original interviews are silenced by the full and complete information on that .-subject conveyed by the act. Cooper, who had acquired the stock by a similar act, knew that Prescott must necessarily receive such information, and the imputation of sinister motives is absurd. Much complaint is made of the fact that Cooper did not communicate to Prescott the tact that he iiad himself paid some five or six hundred dollars in •contributions on the stock. We find no force in this. He knew that Prescott would be apprised of the full measure of his obligation's!, and the payments which had been made did not increase, bub diminished jpro tanto, the amount of that liability.

Prescott has no one to blame for his error except himself, in accepting too readily the sincere but mistaken opinion of Judge Ryan. But this entitles him to no relief against Cooper. Even had he been fraudulently deceived by Judge Ryan, which he does not pretend, the law on the subject is perfectly clear as laid down in the Code: “If the artifice be practiced by a party to the contract, or by another with his knowledge or procurement, it vitiates the contract; but if the artifice be practiced by a third person, without the knowledge of the party who benefits by it, the contract is not vitiated by the fraud, although it may be void on account of error, if that error be of such a nature as to invalidate it: in this case the party injured may recover his damages against the person practicing the fraud.” C. C. Art. 1847, No. 9.

We have shown that the error is not “of a nature to invalidate the contract;” it is admitted that there was no artifice on the part of Judge Ryan; and it is clear that his representations, such as they were, were made without the knowledge or procurement of Cooper.

■ Much is said about the lesion which affects this contract. It is greatly exaggerated in the statement of counsel, who pretend that Prescott has suffered an actual loss of $23,000, for which there is no foundation. But the law is emphatic that lesion, however enormous it may be, has no effect upon the contracts of persons of full age and under no incapacity, except in certain designated contracts of which this is not one. C. C. art. 1861; 2 Mourlon, p. 553.

While sympathizing with the plaintiff in his subjection to a hard bargain, we are constrained to conclude that he presents no legal ground for relief.

It is, therefore, ordered, adjudged and decreed, the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the i>laiutiff’s demand be rejected at his cost in both courts.

On Api-lication por Rehearing.

ISermudez, C. J.

The grounds urged were substantially pressed in-argument and received due consideration.

It is possible that plaintiff 1ms been injured and has suffered considerably for having signed the act in question. If that be the case, he lias no one io blame but himself and we are powerless to relieve him.

An inspection of the act shows that it formally conveys all needful data or elements of information touching the terms and conditions of the transfer and assumption, the rights acquired, and the obligations imposed and voluntarily assumed.

Tiie plaintiff might well have paused and considered the transaction more deliberately. His failure to have done so is a waiver, which has seriously involved him.

The frauds alleged have not been proved. The representations, acts and doings established are insufficient to vitiate the contract, which must retain the vitality which plaintiff has himself imparted to it.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 9420.
    The State of Louisiana vs. James Walker.
    If a mortal blow is unlawful ami malicious, and doatli ensues, the perpetrator is guilty of murder, whether ho intended or not to kill, as he is responsible for the effects of such blow, though he did not intend to kill.
    The intent need not be proved, as a matter of fact. It may be presumed, or inferred from the circumstances of the transaction.
    A motion for a new trial, on the ground of misconduct of the jury, when unacoompaniod by a bill of exception setting forth tho facts, cannot he considered.
    A motion in arrest, based solely on a charge of error against the decree refusing such motion for new trial, on the ground that it is contrary to law and evidence, is not entitled to notice,
    APPEAL from the First District Court, Parish of Caddo. . Mielas, J.

      M. J. Cunningham, Attorney General, for the State, Appellee:
    1. Malice is evil intent-. Wharton Cr. Law, § 106.
    2. The intent to do enormous or severe bodily harm, followed up by homicide, is murder*. Wharton Or. Law, § 315.

      3. Objections urged in a motion for a new trial, based upon the alleged misconduct of tbe jury, should be embodied in a bill of exceptions. 36 Ann. 310; 31 Ann. 804; 31 Ann. 1171; 35 Ann, 418 ; 30 Ann, 389, 403,

      M. S. Grain, District Attorney:
    1. Death ensuing immediately after a mortal blow, the law presumes intent. 2 Bish. Cr. L. §§ 689-679.
    2. An actual intent is not necessary to constitute murder. 2 Bish. Or. L. §§ 670-676.
    3. The probable consequences of the act presumes intent. 1 Bish. Cr L. § 735.
    Defendant and Appellant unrepresented in this Court.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a sentence of death passed on him on a prosecution and conviction of murder.

The record contains a bill of exception, a sworn motion for a new trial and another in arrest of judgment.

The hill recites as follows:

“The jury had retired for deliberation and returned into open court for instruction, and the foreman of the jury, Mr. W. E. Maples, stated to the court that one of the jury was not content, on the ground that., though satisfied that accused struck the blow which caused death, he was not satisfied that accused intended bo kill; whereupon, his honor, Judge A. W. 0. Hicks, presiding, briefly and distinctly charged the jury that ‘when a blow is struck and death ensues, it is murder, aud the intention has nothing to do with it;’ and whereupon the foreman instantly delivered into court an unqualified verdict of ‘guilty of murder, as charged.’

“To which instruction or special charge defendant, by his counsel, instantly objected as contrary to the law or laws of Louisiana governing the case, aud as depriving the jury of their capacity and jurisdiction to discriminate between excusable aud felonious homicide, which points of objection were overruled by the court.”

The district judge did not concur in this statement. He added:

“The above statement of the inquiry made by the juror aud the instructions given by the court is not correct. The juror stated to the court that all the jury save one was ready to return a verdict of guilty of murder. That one juror was satisfied that .defendant killejl Cates, and that the killing was malicious, hut was not satisfied that defendant intended to kill him and desired instructions on that point. The court ■ did- not tell the-jury where a blow is struck aud death ensues it is murder, aud the intention has nothing to do with it. . .. ■.

“The court did charge the jury in answer to the juror, that the intent to kill was not necessary in the ease, had nothing to do with the case.

“That the defendant was presumed to have intended the natural and probable consequences of his act. 1 Bisli. § 735; 12 Ann. 628. If a mortal blow is unlawful and malicious, and death ensues, the perpetrator is guilty of murder; whether lie intended to kill or not, he is responsible for the effects of such willful and malicious blow, although he did not intend to kill. 2 Bish. Cr. L. §§ 689, 679.”

The district judge simply meant, and said, that intent need not bo proved as a fact; that It might be presumed or inferred.

Those charges are sustained by the authorities to which reference is made, and by others besides. Wharton C. L. §§ 106,107, and notes 112; note to §§ 107, 313, 315; 30 Mich. 16, Weller vs. People.

The motion for a new trial on the ground of misconduct of the jury, is unaccompanied by any bill of exception with annexed evidence.

That, in arrest of judgment, is based on the ground that the judgment overruling thé motion for a new trial is contrary to law and evidence.

It is sufficient to say that no showing is made justifying a review of the rulings of the district judge on those motions.

Judgment affirmed.


author: Poché, J. Fenner, J.

text:
    No. 9414.
    City of Shreveport vs. Red River and Coast Line.
    A obarge of wharfage dues for artificial facilities furnished by a city or town in order to promote the convenience of loading and unloading ships and other vessels, is not amen* , able to the prohibitions contained in secs. 8 and 10 of Art. 1 of the Constitution of the United States,
    But such a charge will not be maintained and enforced unless it appears from the evidence that it rests on services rendered by the corporation to vessels or boats by means of wharves or wharfage facilities provided and maintained at the expense of the corporation, and by means of which the ioadiug and unloading of boats or vessels is materially and specially facilitated.
    Works by which the general commerce of a city, including the shipping, is benefited, will not justify a charge for -wharfage against the owners of ships or other vessels.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J. .

      E. 3. Randolph and 3. L. Edwards for Plaintiff and Appellee.

      W. .8. Bemdiet for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff seeks to recover $4409 04 as wharfage dues on several steamboats owned and operated by the defendant company, at the rate of. ten cents a ton foi eacli boat landing at the river front of the city, from the 4th of August, 1882, to the 20th of May, 1883.

The grounds of resistance are substantially: that the charge is really a tonnage duty; that no wharfage facilities or conveniences are furnished by plaintiff; and that the amount charged is beyond a reasonable compensation. The defendant appeals from a judgment against it in the sum of $428 97, and plaintiff prays for an increase of the judgment to the amount sued for.

The contention that the claim involves a tonnage duty, levied in violation of secs. 8 and 10 of Article l of the Constitution of the United States, is virtually abandoned on appeal. The whole theory of plaintiff, and the wording of the city ordinance on which the claim is predicated, show conclusively that the demand is based on alleged wharf facilities and conveniences furnished by the city and used by the defendant’s boats during the time claimed for.

The right of recovery in such cases depends upon the artificial facilities for landing, for receiving and discharging merchandise, furnished by the plaintiff for tire use or advantage of the ships or vessels sought to be made liable for such duties.

A charge for the privilege of entering a port, or of remaining there, would fall within the scope of the constitutional inhibition. But a claim for Services rendered in the shape of wharfage facilities is recognized in law and has been enforced by the courts. 2 Ann. 538, First Municipality vs. Pease; 30 Ann. 190, Ellerman vs. McMains; 32 Ann. 1293, Mayor and Trustees of St. Martiusville vs. Steamer Mary Lewis and Owners; Packet Company vs. Keokuk, 95 U. S. 88.

The pivotal question in this case involves, therefore, the existence during the time claimed, of wharves or other artificial facilities used by the defendant and provided and maintained at the expense of the corporation of Shreveport.

The undisputed facts in the recordare: that the main or principal landing in Shreveport is in front of Commerce street, which borders on and runs along Red river, between Texas aud Cotton streets, which run from the river to the interior of the town. Between those streets, for a distance of some 1200 feet, Commerce street, of the width of 132 feet, is rocked or covered over with cobble-stones; which, work was "made and is maintained at the expense of the city. , . '

. During the highest stage of water in the river,' which lasts about forty days in each year, boats may and do land right at (Commerce street, on which they discharge their, cargoes and from which they receive their return freights. ■ '

' But during all other portions of the year, all water-crafts land and carry on their traffic on a sand-bar in front of said street, but many feet below its level, under an inclining bank of the’ river, or on the .banks of a stream known as Cross bayou, which empties into the Red several blocks above the foot of Texas street.

The record shows beyond a doubt, and it is conceded by plaintiff ns a fact, that during low stages of water the city furnishes no artificial means whatever to facilitate the landings of boats or other water-crafts, and that all merchandise and other property shipped or received by water are deposited on the ground at the landing; and are kept dry in wet weather by being laid on dunnage, composed of planks and timber furnished by the owners of steamboats themselves.

Prom that circumstance derives the theory of the judgment appealed from, as it holds the defendant liable only for the landings made by its boats during high water, at Commerce street.

'At this point, we may dispose of plaintiff’s prayer for an amendment of the judgment; it can find.no sanction either in law or in the evidence before us. The argument that the defendant is liable for wharf-age duties in low water, when avowedly no artificial facilities whatever are furnished by the corporation, because their freights are hauled over Commerce street, because they leave thereon their skids and other material, and because they enjoy at that time as well as in high water the fire and police protection of the city, needs but to be stated to expose its utter weakness and its absolute lack of foundation in law, reason or common sense.

The remaining, and in point of fact the vital, contention in the case hinges therefore upon the question as to whether Commerce street, paved or rocked as we have stated above, and used as a landing in high water by the defendant’s and other boats, is a wharf within the accepted sense of the term. It is on that point mainly that the testimony is conflicting. Plaintiff’s witnesses all concur in treating it as a wharf, apd defendant’s witnesses are equally unanimous in denying the proposition. The witnesses on both sides all agree substantially on the facts, but the divergence comes out of their varied definitions of-the terms wharf and wharfage facilities. They all agree’ that Commerce street is one of the principal thoroughfares of the city; bounded on one side by the- river áiid lined on the other by a series of large stores and warehouses; that vehicles of all kinds and descriptions are constantly run over it, and daily bring to and from the stores thereon-large quantities of cotton and every kind of goods and merchandise used and traded for in commerce, as well to and from the steamboats as other points in the city, from and to railroad depots, and to and from the country. They all concur, as far as their means of knowledge extend, that the works by means of which the street, at that particular point, is rendered and made fit for constant use and passable at all times, were made by and at the enormous expense of the city; that it is maintained at the expense of the corporation, and that one-third of the original cost was charged to and paid by the owners of lots abutting thereon. The only point left open therefore involves the proper meaning of the terms wharf and wharfage facilities.

We adopt the definition suggested by plaintiff’s counsel and given by Webster: A wharf is “a perpendicular bank or mound of timber or stone or earth raised on the shore of a harbor, river or canal, etc., or extending some distance into the water for the convenience of lading and unlading ships and other vessels.” By Bouvier, a wharf is defined as “a space of ground artificially prepared for the reception of merchandise from a ship or vessel, so as to promote the convenient loading and discharge of such vessel.” These definitions substantially agree with those given by other authors.

The essential requisite is an artificial construction which facilitates the loading or unloading of vessels or steamboats. Now, what facilities are afforded in this case by the works constructed and maintained at the expense of the city of Shreveport?

Whether they land in low water at the sand-bar, or in high water at Commerce street, the boats are tied to posts provided by their owners, and launch their stages to the river bank, on which their freights are deposited, using dunnage in either case when the condition of the weather or of the soil requires that precaution.

It will not be gainsaid that when he has thus delivered the goods or merchandise entrusted to him for transportation, the common-carrier has fully complied with his contract of affreightment, whether the delivery takes place below on the sand-bar or above on Commerce street.

The only difference is felt in the hauling; from Commerce street it is shorter, and in muddy weather it is facilitated by the cobble-stone pavement. But, as to the common carrier, the evidence discloses no difference; and we have failed to discover any enhanced facilities afforded to him by the works which plaintiff erroneously holds out as wharf facilities, unless it be in the means of approaching his landing.

We conclude, and we therefore hold, that those works contribute to enhance the general commercial facilities of the city of Shreveport; but that they do not materially add “ to the convenience of lading and unlading skips and other vessels”'at that port.

This record, in our opinion, presents the attempt of a corporation to charge and collect wharfage “for the use of that which is rot a wharf, hut merely the natural aud unimproved shore of a navigable river.” Such pretentions have always been discountenanced by the courts. Cannon vs. New Orleans, 20 Wall. 577; Packet Company vs. Keokuk, 95 U. S. 88.

Hence the city has no power or authority to charge wharfage duties on the grounds set forth in this suit; aud the judgment appealed from is therefore erroneous.

Concluding, as we do, that steamboats are not specially benefitted by the works erected on Commerce street, and that their owners cannot he charged therefor simply because they are incidentally facilitated in their trade in comtpon with the balance of the commerce at Shreveport, we are not concerned with the question of the character or rate of charges made by the city in the premises.

The judgment rendered in favor of plaintiff is therefore annulled, avoided and reversed; and plaintiff’s claim is rejected and her action is dismissed at her costs in both courts.

Behearing refused.

Dissenting Opinion.

Fenner, J.

The reasons given by the district judge for his judgment in this case are satisfactory to my mind and supported, it appears to me, by the law and the evidence.

I think his judgment should he affirmed and, tkereforé, dissent from the opinion and decree herein.


author: Todd, J.

text:
    No. 9373.
    Mrs. Lizzie Coleman vs. Frank H. Coleman.—Geo. W. Sentell, Third Opponent.
    A third opponent claiming property seized under execution, cannot attack the judgment of the seizing creditor or the proceedings under it, unless he first establish his right or title to the property.
    If he is the owner of it, his right thereto must prevail, however valid the judgment of the creditor and the proceedings under it. If he is not the owner, ho is without interest to attack the right of the creditor making the seizure.
    «A conveyance of real estate, to have effect against third persons, must be properly recorded in the parish where the property is situated.
    A wife separated in property from her husband is a third person with respect to all sales and contracts made by the husband in which she does not join..

      A PPEAL from the Eighth District Court, Parish of East Carroll. jTA_ Delaney, ,T.
    TP. Montgomery for Third Opponent and Appellant:
    1. The right to secure a debt by a sale with right of redemption, is well established. 32 Ann. 94; lb. 784; 31 Ann. 384.
    2- The right to redeem falls ipso facto upon failure to pay the sum borrowed. 35 Ann. 855, Jackson vs. Lemle.
    3. Where the wife sets up her judgment of separation defensively, and it is alleged to be fraudulent and collusive, she must sustain its validity by proof. SeoPowles vs. Cook, 28 Ann. 546; 19 Ann. 96 j 4 L. 422; 12 L. 304; 11 L. 536; 4 Ann. 135; 10 Ann. 87.S
    B. J. Sage, on same side, on application for rehearing.

      F. F. Montgomery for Defendants and Appellees:
    Sales of property by instruments under private signature are valid against bona fide creditors or purchasers only from the date of registration or from the actual delivery of the thing sold. C. C. 2242 and 2243.
    An act under private signature, to have any effect as to third persons or bona fide creditors, must be acknowledged or proved up by the subscribing witnesses, and the certificate of such acknowledgment recorded with the instrument.! [C. C. 2250.
    If A borrows money from B, and makes title to real estate to secure the payment and reserves the right to redeem, hut all the time remains in the quiet, undisturbed and undisputed possession, leasing the property and collecting the rents and paying the taxes as owner, such a transaction will be considered a form of security and not an absolute sale.
    The debtor has the right to impute the paymant, or it can he done by agreement between the parties. C. C. 2159; 15 Ann. 526, Slaughter vs. Milling.
    If left to the law, payments will be imputed to the debt the debtor has most interest in paying. Where a mortgage or pledge exists on property, the payment will be imputed to such rather than an ordinary debt. C.C. 2161; Speller & Allen vs.'1 heir Creditors, 16 Ann. 294.
    The proof shows that Coleman’s entire interest in the property seized was about 75 acres, and 175 as claimed by counsel. The revenues amounted to about §200 per annum.
    Coleman was allowed to testify in his own behalf and not for his wife. (See Bill of Exceptions.)
   The opinion of the Court was delivered, hy

Todd, J.

The plaintiff, under a judgment against the defendant, her husband, seized a plantation described in the pleadings as his property, to satisfy her debt.

Gr. W. Sentell interposed as third opponent and claimed title to the plantation, and from an adverse judgment appeals.

There are a number of issues raised hy the pleadings and discussed at length by the counsel, to only one of which we need refer, as it is decisive of the case.

It is urged hy tire plaintiff that the deed or alleged act of sale, under private signature, on which the title claimed by the third opponent is based, was never recorded in the parish where the property was situated, or elsewhere; and was therefore without effect as to the plaintiff, a seizing creditor.

As a legal proposition, this cannot be controverted. Article 2266, C. C., declares that “all sales, contracts and judgments affecting immovable property, which shall not be so recorded, shall be utterly null and void, except between the parties thereto.” See also C. C. 2242, 2246, 2253; 25 Ann. 290; 21 Ann. 591; 28 Ann. 807.

In this case the plaintiff was separated in property from her husband, the defendant, and had seized the plantation then in his possession, and she was no party to the act under which the third opponent claimed title, and was and is, in legal contemplation, a third person even with respect to acts executed by her husband in which she did not join. Bank vs. Ferry, 32 Ann. 315; Insurance Company vs. Warren, recently decided and not yet reported.

Under this view of the case, it is unnecessary to consider other issues raised by the third opponent touching the rights and proceedings of Mrs. Coleman against her husband. If Sentell were the true owner of the property, with deed of record binding third persons, then his title must prevail against her, though her judgment and proceedings thereunder were unassailable. If he is not the owner, or has not a title that is operative against liei', then he is without interest to attack the validity of her said judgment and rights under it. He must stand on his own title and not the weakness of hers; and cannot be heard even to assert a want of title in the husband to the property seized under her execution.

The conclusion reached respecting the rights of Mrs. Coleman, maintaining her seizure against Sentell, virtually determines the whole case as to all parties to this controversy.

It is true that Sentell makes both Mrs. Coleman and her husband, Frank Coleman, parties defendant to his action for the land, but if he has no title to the property which can affect Mrs. Coleman, he would be without interest to press the suit against Coleman, unless the land was of sufficient value to leave a surplus when sold to meet the judgment that Sentell might recover against Coleman; but we find from the sheriff’s return on the fi. fa. that the land has already been sold and the entire proceeds of the sale amounted only to $500—much less than Mrs. Coleman’s judgment against her husband. So that it becomes unnecessary to determine the controversy between Sentell and Coleman, as presented by the pleadings.

The third opponent in his petition prayed that, in the event the court should determine that the act under which he asserts title to the land should be held not to be a sale with the equity of redemption, it might be held to be a mortgage, and asked for the amount claimed as owing by Coleman with the recognition of the mortgage. He complains of the ruling of the judge in ruling that the demands were inconsistent, requiring him to elect, and asks that the ruling be corrected.

Tiie record show's that he did elect to stand on his title to the land, without reservation or protest, or excepting to the ruling, and he cannot now'be heard in his complaint against the action of the judgment in this respect.

We are asked to amend the judgment appealed from by allowing damages upon the dissolution of the injunction. From the peculiar circumstances of the case, and particularly from the fact that the property was sold pending the injunction, as we construe the return on the writ, the claim for damages was properly disallow'ed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs.

Rehearing refused.


text:
    No. 9417.
    The State of Louisiana vs. Philogene Simon.
    The verdict of «a jury in a criminal trial need not be written.
    "Wo have no code of practice for criminal causes but follow the common-law procedure in them, and written verdicts are unknown to that system. Yerdicts in criminal Irials are delivered by the foreman of the jury ore temes and are recorded by the clerk.
    Where a witness introduced by the defendant has sworn that he did not know a certain thing to have happened, and other witnesses aTe offered by the defendant to prove that it did happen and he knew it, their testimony should be receiyed although the effect of it is to contradict his own witness. The main substantive thing to bo proved was a fact inconsistent with the prisoner’s guilt and the knowledge of that fact by the first witness was only an incident.
    APPEAL from the Twenty-first District Court Parish of St. Martin. Gates, J.

      O. H. Monton, District Attorney, for the State, Appellee.

      Felix Voorhies and Monton & Martin for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

From a conviction of larceny and a sentence thereon to two years’ hard labour the defendant appeals.

One of the grounds of the motion for a new trial is misconduct of the jury in asking and receiving instructions from the sheriff touching their verdict after they had retired for deliberation.

The facts were, after the jury had determined upon their verdict the foreman rapped the door, the usual signal for their officer to come, and on the sheriff appearing the foreman asked him how lie should write the verdict. The sheriff answered he must go and ask the judge, but the foreman clutched him by the sleeve and repeated the question, whereupon the sheriff said he must write guilty or not guilty whichever the verdict was, and then the sheriff went straightway in the court room and told the judge. The judge then sent for the jury and he says he instructed the foreman how to write the verdict and sent them back.

This is not such misconduct as vitiates the verdict, although the sheriff should not have answered the foreman’s question at all but have informed the judge at once instead of answering and then telling the judge.

It is curious however that neither the Court nor any of its officers seem to have remembered that the verdict need not have been written at all. We have no code of practice for criminal causes but follow the procedure of the common law in those matters, and at common law verdicts are not written. They are delivered by the foreman ore tenus and are recorded by the clerk, the following of which simple form would have obviated the necessity of sending the jury to and fro with worthless instructions.

Another ground is the refusal of the Court to hear the testimony of five witnesses offered by the defendant, says the bill, to impeach the testimony of a witness of his own. The circumstances were these;—•

Ulysse Lorins had been subpoenaed as a witness by the State and the accused. The State did not offer him. The accused did. The larceny charged was of a cow and the accused expected to prove by Lorins that he had bought the cow of one Victorin and Lorins had seen him pay for her, but Lorins swore he had not witnessed such payment and know nothing of the matter. The five witnesses were offered to prove that the defendant did buy the cow and paid for her. They were expected to prove also that Lorins did know of such purchase and payment having been present thereat, but that was not the main and substantive fact to be established but rather an incident, and although the bill states the object of the testimony was to impeach his own witness, we cannot permit clumsiness in draughting a bill of exceptions to deprive a convicted party of opportunity to vindicate his innocence, if so be he is innocent. It is manifest from the recitals in the bill what the object of the proffered testimony was, viz to establish a fact inconsistent with and repugnant to the guilt of the accused as charged, and the circumstance that in establishing it, another witness of the defendant would be shewn to have sworn falsely is not an obstacle to the introduction of the evidence.

The books say such contradicting evidence may bo introduced when the accused has been taken by surprise by an artful or untruthful witness when the main object of the evidence is to contradict another witness on the same side. 1 Greenleaf Ev. § 444; Eoseoe Cr. Ev. 170; Proffatt’s Jury Trials, 231.

A new trial must be granted for the correction of this error.

It is therefore ordered and decreed that the verdict of the jury is set aside and the sentence thereon is avoided and the cause is remanded for a new trial.


author: Fenner, J.

text:
    No. 9421.
    City of New Orleans vs. Great Southern Telephone and Telegraph Company.
    In cases not falling within those specially provided for in the Code of Practice, or other statuto, as proper for the issuance of injunctions, but based on the general discretion vested in judges by Art. 303 to grant injunctions when necessary to prevent any injurious act, the application is addressed to the sound and legal discretion of the judge; and his refusal to grant a preliminary injunction will not bo disturbed on appeal to this Court, unless we are clearly convinced that he has committed evident error. In this case we think his discretion was wisely exorcised.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      W. LL Rogers, City Attorney, aud Branch K. Miller, Assistant City Attorney, for Plaintiff and Appellant.

      Bayne <& Denegre for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The argument in this case has taken a most unwarranted range, embracing the entire merits of an important and difficult controversy, while the only appeal before us is oue from an order of the district judge refusing a prayer for a preliminary injunction.

Declining to follow the example of counsel, we shall carefully abstain from any discussion of the merits and restrict ourselves closely to the question before us.

The plaintiff’s petition is based upon a city ordinance of December 11, 1883, which provided that “no poles for the supporting or use of wires for telegraph or telephone purposes shall be allowed to bo ereeted, or any existing poles allowed to remain, in that portion of the city embraced by Jackson, Elysian Fields, Roman streets and the Mississippi river, except upon the payment of five dollars per annum per pole for every such pole erected or then in use within said portion of said city; said payments to be made annually in advance, and to commence January, 1884.”

The petition alleges that at and prior to the date of said ordinance, the defendant had in use and has since maintained six hundred poles within the terms of its pro visions; that, notwithstanding demand, the company had failed and refused to pay the $3000 due for said poles for the year 1885; that, without such payment it had no right to maintain such poles; and that to permit it to do so would inflict irreparable injury on the city. The prayer is for a preliminary injunction restraining the company from maintaining or using the poles until it shall pay said sum, and for a final judgment for the amount thereof and making the injunction perpetual.

After hearing the parties, on the face of the petition, the judge entered his order refusing the preliminary injunction.

Referring to the section of the Code of Practice regulating injunctions, we find that Articles 298 to 302, inclusive, prescribe particular cases in which the writ should be granted. This case obviously falls outside of those provisions.

Article 303 adds a general provision in these w.ords: “ Besides the cases above mentioned, courts of justice may grant injunctions in all other cases when it is necessary to preserve the property in dispute during the pendency of the action and to prevent one of the parties, during the continuance of the suit, from dilapidating the same or from doing some act injurious to the other party.”

There is nothing here affecting the, preservation or dilapidation of the property in dispute, and, therefore, this application, if it have any foundation, must rest on the final clause of Art. 303, authorizing injunctions to prevent one party “from doing some other act injurious to the other party.”

We look in vain for any other provision oí law7 authorizing an injunction in such á case as that presented in this petition, and have been referred to none.

It is not covered by sec. 21 of Act 7, of Ex. Sess. of J 870, authorizing the city to enjoin parties from pursuing business until they have paid their license, because it is admitted that the charge here involved is not a license tax.

Such, an express provision was deemed necessary to authorize an injunction in that case, and in its absence no doubt it would have been unauthorized.

In the case of Beebe vs. Guinault, 29 Ann. 795, this Court held that a party applying for a writ of injunction, who has complied with all the conditions prescribed by law for its issuance, has a right .to it and courts have no legal power to refuse it. But that dietum applies only to the particular cases in which the law has expressly directed that the writ should issue. It has no application to the general authority conferred on courts to enjoin injurious acts not embraced in those particular provisions. It is not every injurious act the prevention of which may be the fit office of an injunction; otherwise the prior specific provisions would have been superfluous. Under this clause of Art. 303, it is clear, therefore, that a discretion is vested in the judge to determine whether the injurious act set forth is one proper for the exercise of the remedy by injunction. This means, as was said in the case above quoted, “a sound legal discretion, and not an arbitrary one.”

The question for us to solve in the present appeal is simply, whether in his refusal of the injunction the judge exercised a sound and legal discretion. Unless clearly convinced to the contrary, we should not interfere with such an order.

We are not so convinced. We are disposed to concur with the district judge that it is not a proper case for a preliminary injunction. The injury to the city consists, not in the maintenance and use of the poles, but in the failure to pay the charge claimed. It is a question of dispute concerning legal rights.

The status quo may well subsist undisturbed until that question is judicially settled, when it will be time enough to apply injunctive remedies if determined in favor of the city.

Judgment affirmed.


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    No. 9462.
    The State ex rel. J. Cittarotto vs. Judge of Civil District Court for the Parish or Orleans.

    Ail order of the Civil District'Court dismissing an appealfrom the city court on the ground that the record of appeal was filed unstamped, is invalid in the absence Of‘any law requiring such records to be;stamped before filing.
    The stamp act of 1880 does not'apply to appeals in suoh cases, whioh had then no legal existence.
    The right to appeal from judgments of city courts in certain cases was conferred by the amendments of Articles 130 and 135 of the Constitution adopted in 1884.

      The Act of 1880 did not propose to repeal the anterior legislation regulating costs in cases of appeal from justices of the peace, •which is not on the same subject matter.
    Costs incurred in appeal cases from the city courts are limitable to five dollars, by rule of court, and recoverable in stamps.
    PPLICATION for Certiorari.

      Chas. Louqne for the Relator.

      F. A. Monroe, Judge Respondent, in propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari. Its object is to test the validity of an order dismissing the appeal taken by the relator from the judgment of a city court to the Civil District Court, on the ground that the filing of the record of appeal, though seasonable, was made in violation of a prohibitory law, which requires, as a condition precedent for the filing, the affixing of a stamp to the record of appeal.

The district judge in his return refers to sec. 2 of Act No. 136, p. 187, of 1880, in justification of his action.

That section declares that: {t no clerk shall file or permit to be filed any paper or document, or issue any process, copy, certificate or other proceeding, unless the requisite stamp has been affixed thereto,”

That law does not and could not provide, at the time it was passed, for the stamping of the record in appeal cases from the city courts, for the obvious reason that the judgments of such courts were not then receivable on appeal, but became final in the court by which rendered.

It is only since the adoption of the amendments of Articles 130 and 135 of the Constitution, that causes determined by those courts have become appealabe to the Civil District Court for the parish of Orleans.

It therefore follows that, as the law relied on did not provide for the stamping of records of appeal from city courts, the appellant was not required to affix any stamp thereto previous to the filing thereof, as a condition precedent therefor.

We have been referred to no law passed since the adoption of the constitutional amendments for the stain ping of such records.

The law of 188.0 did not repeal all laws on the subject of costs.in all judicial proceedings. It contemplated to recall only such as had b.een framed on the same subject-matter, or were iu-"conflict with its own provisions.

As that law did not provide for costs, or fees,-.or stamps, in cases of appeals to the district court, the anterior legislation relative to such costs, in cases of appeals from justices of tlie peace, could not be and was not, on the samó subject-matter or in conflict with it.

' Considering therefore that the record of appeal was duly and seasonably filed, we conclude that the order of dismissal complained of is invalid and that the relator is entitled to the relief sought.

It is, therefore, ordered and decreed that the said order of dismissal of appeal made by the Civil District Court of the Parish of Orleans, in the division presided over by the respondent judge, be avoided and annulled, and that the district judge be and he is hereby directed to try the cause in which the same was made as though it was never made, and to dispose of it in conformity with the provisions of the law.

Rehearing refused.

On Application roe Rehearing.

While we said that the anterior legislation touching appeals from justices of the peace had not been recalled, we did not announce that the costs in such cases could be paid in money to the clerk, for this the Constitution forbids.

It may be that by virtue of the power delegated by the Constitution to make rules not in conflict with law, the district court had authority to prescribe that in case of appeals from city courts (which are assimilated to justice courts, which they have replaced) there should be affixed to the record of appeal a stamp of five dollars, before the filing of the same; but nothing,shows that the rule on the subject made it a condition precedent, under pain of dismissal of the appeal.

In the present instance the relator has averred a state of facts to show his inability to have procured the stamp previous to the filing, which appear to justify the omission. The relator affixed the stamp the day after to the record, which had been filed by the clerk within the legal delay.

The suggestions of the district judge are valuable, conservative and well appreciated.

The rule of his court, to which he refers as requiring the stamp of five dollars to cover all costs in cases of appeals from city courts, is one which, under the exceptional features of the case, may legitimately be forcéd' in the absence of any adverse legislation, subsequent to the stamp act of 1880. :•

This explanation of our previous opinion can well be given without granting a rehearing.

Rehearing refused.


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    No. 9406.
    The State of Louisiana vs. John Daly alias Sonny Daly.
    In criminal caaes trial judges cannot be required to charge to the jury abstract principles of law, baying no connection with or bearing on tbe state of facts disclosed, or tbe nature of tbe charge in tbe cese on trial. State vs. Uiculfi, 35 Ann. re-affirraed.
    Tbo lact that stolen goods are shortly after found iu tbe possession of tbe accused in a case of larceny, creates a prima, facie presumption of bis guilt, and throws upon him tbe burden of accounting satisfactorily for tbe way that be came by said property, in default of which tbe legal presumption will be sufficient to justify conviction.
    APPEAL from the Criminal District Court for the Parish of Orleans. Homan, J.

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

      John J. Finney for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

1. On his trial for larceny the accused asked the judge to give the following special charge to the jury:

If the property alleged to have been stolen, be taken by another person than the accused and out of the latter’s presence, but subsequently found in the possession of the accused, and if it be shown that he knew that the property was stolen, he may be convicted upon a charge of receiving stolen property, knowing the same to have been stolen, but should not be convicted of larceny.” He complains of the refusal of the judge to give the charge.

His bill contains no averment that proof had been made of the fact embodied in his proposed' charge, and as he was being tried for larceny, he could not be convicted of the crime defined in his legal proposition. Hence, under the circumstances, the judge in giving the charge as suggested would simply have instructed the jury on an abstract principle of law which had no special bearing-on tlie case 'before them, and no application to, or connection with the state of facts which they were called on to consider.

' The duty of the judge is to expound to the j ury the law of the case, and he cannot be expected, as in fact he could not be allowed, to'give them a general lecture on law; ' ■

This Court has been frequently called to consider the duty-of trial judges in matters of this kind; and its examination of the jurisprudence, both in this State and in our sister States, has led to the adoption of the following rule, to which we shall uniformly adhere: “A judge not only jnay, but should refuse to charge an abstract legal proposition, which has no bearing upon the case on trial, whether the proposition be correct or incorrect, or whether it be correct in part and incorrect in part.”

We, therefore, approve of the judge’s refusal to instruct the jury upon matters not developed by the facts of the case, and therefore foreign to the real question at issue. State vs. Riculfi, 35 Ann. 775.

That issue involved the question of the taking of the property by tiie accused. If the evidence failed to show the taking by him, either by direct testimony or by legal presumption, the case was with him, and the jury had nothing to do with the taking by another person.

2. The accused was also refused the following special charge;

“The mere possession of stolen property, without some corroborative evidence of his guilt, is not sufficient to warrant his conviction.”

It was properly refused because it embodies a principle in direct antagonism with the well established rule on the legal presumptions in cases of larceny—and which we understand to be as follows :

“When there is no direct evidence of the larceny by some person who actually saw the defendant commit it, his guilt can only bo proved from his own admissions, or by evidence of facts from which the jury may fairly presume it.”

“When goods stolen are, very shortly afterwards, found in the possession of a man who is unable satisfactorily to show by evidence in what manner he came by them, the presumption is that he is the person who stole them.” Archbold’s Crim. Practice and Pleadings, Waterman’s notes, p. 397.

Under that rule the possession, shortly after, of stolen goods by the accused, throws upon him the burden of showing the way that he came by such possession, in default of which, the prima facie presumption becomes absolute and justifies conviction.

But, under the theory advocated by defendant’s counsel, the burden of proof of the guilt of the accused would still be on the State, even after proof of the possession by the accused of stolen goods, shortly afterwards.

The rule above quoted from Archbold, has been culled and crystalized from numerous decisions of courts of several States of the Union, and has been followed by this Court. State vs. Amelia Kimble, 34 Ann. 392.

In that case we said: “When stolen property is found in the possession of the person charged with larceny, it is for the accused to show how he came by said property, and it is for the jury to decide whether his account or explanation of such a fact is reasonable or sufficient or not. Such account is not to be taken for true, simply because the prosecution does not rebut it.”

It is true, as counsel contends, that the jprima facie presumption from the possession of stolen goods may be overcome by the accused ; but it is nevertheless true, that the burden is on him to make out the proof of rebuttal.

This is the true meaning and the spirit of the rule, and we find it • fully embodied in the general charge of the judge to the jury in this case. His charge is exhaustive, fair and impartial, and it affords no just cause of complaint to the accused.

Judgment affirmed.


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    No. 9464.
    The State ex rel. Susanne Jarvo vs. Judge of Criminal District Court for the Parish of Orleans, Section A.
    Revisory legislation, embodied into a system of laws and termed tlieRevised Statutes of the State, which embrace antecedent statutes of a general nature on various subjocts, and reduces them to one body and one text, repeals all prior statutes upon the same subjects not included in the revision, especially where it contains an express repealing clause.
    So, the third section of the act approved the22d February, 1817, denouncing the crime of concealment by the mother of the death of her infant child and declaring the penalty therefor, was repealed by the repealing clause of the Revised Statutes of 1870 (Section 3990 thereof), the said section not being included in said Revised Statutes and not being excluded from the operation of said repealing clause by express exception or mention therein.
    A PPLICATION for Prohibition and Certiorari.

      Jos. 0. WalJcer for the Relator.

      Lionel Adams for the Respondent.
   The opinion of the Court was delivered by

Todd, J.

The relator was convicted of an offense declared in the third section of an act.approved 22d February, 1817—the title of said act being: “An act supplementary to an act for the punishment of primes', and misdemeanors.” The act to which it was supplementary being an act of May 4, 1805.

The section referred to reads as follows:

“That if any woman shall be delivered of any issue of her body, and shall endeavor privately, either by drowning or secret burying thereof, or in any other way, either by herself or with the aid and assistance of others, so to conceal the birth thereof that it may not come to light, whether it be born alive or not, in any and every such case the said mother, together with all and every other such person or. persons so aiding and assisting shall, on conviction thereof, be punished by imprisonment for not less than five nor more than fourteen- years.”

After a verdict of guilty was returned by the'jury, the relator was remanded to prison to await sentence.

At this stage of the proceedings in the trial court, she applied to this Court for writ of certiorari and prohibition, with a view to have the prosecution annulled and to prevent the passing of the sentence and the infliction of the punishment authorized by the section quoted.

The case not being appealable, the relator invokes the aid of the supervisory powers granted to this Court by Art. 90 of the present Constitution. No question is raised by the pleadings as to the case coming within the scope of the powers referred to.

The relator bases her right to relief upon the proposition, advanced in her petition, to the effect that the law under which this prosecution was instituted is no longer in existence, but was repealed and annulled by the repealing clause in the revisory legislation of 1870—said repealing clause being Section 3990 of the Revised Statutes of that year.

This is the sole question for oúr determination.

The revision of the statutes of 1870 was made by virtue of Act 31 of 1868. This act provided for the appointment of a joint committee of the two houses, under whose direction the work was to be done. The preamble of the.act, explanatory of its purpose, reads thus:

“Whereas, It is a matter of great public importance that the public statutes of this State should be revised, their language simplified, their incongruities arrested, their deficiencies supplied, and the whole arranged in order and reduced to one connected text, with a view to their adoption as the Revised Statutes of the State, to the end that all may know the law,” etc.

The comprehensive language of this preamble naturally conveys the impression that it was the intention of the Legislature to authorize not merely a compilation or digest of the laws of the State, but to adopt a body of laws under the general head of “ Revised Statutes.” The plan of revision thus directed was to select separate subjects of prior legislation, each of which was to he the matter of a distiuct statute, and to embrace such antecedent statutes on the same subject or parts of the same subject as it might be thought proper to retain, and when the entire legislation upon a single subject was thus condensed, it was the obvious intention that no reference should be made to previous statutes to ascertain the law. This is the more apparent when we look at the title of the act adopting the revision (Act 96 of 1870) and the repealing clause. In the title of the act are designated all the distinct subjects of legislation embraced in the revision, in their alphabetical order.

Thus we find in this title, among other subjects, the following: “Relative to Crimes and Offenses; the definition of crimes and offenses and the penalties therefor.” “Relative to Criminal Proceedings,” etc.

The repealing section (3990) is in these words:

“ That all laws or parts of laws contrary to or in conflict with the provisions of this act, and all laws or parts of laws on the same subject-matter, except what may be contained in the Revised Civil Code and Code of Practice of the present session, be and the same are hereby repealed, except the thirty third section of an act entitled ‘An act for the punishment of crimes and misdemeanors,’ approved May 4, 1805,” etc.

The plain language of this repealing act, apart from the considerations above mentioned, is well calculated to convey the idea that it was the legislative intent to repeal or annul all laws or parts of laws on the subjects treated of in these revised statutes not included therein. We cannot reasonably conclude that it was from oversight or accident and not intentionally that any statute was excluded, and if purposely excluded, that it was the evident intent that such statute should cease to exist or have the force of law. This is the more apparent from the special exception made in the repealing clause of the section named of the Act of 1805; an exception which could only be construed as an affirmatory declaration that without its mention the act excepted, like all others not included in the revision, would be swept away by the effect of the repealing act.

For, if it was not the understanding at the time that all laws not included in the Revised Statutes, were then repealed, why make special mention of an act and expressly except it from the effect of the repeal ? If the act still remained in force unaffected by its omission from the body of the statutes, thb express exception made df-it was without purpose or meaning.

This conclusion is further supported by the consideration that all the crimes and offenses denounced by the act of 1805 and by the supplemental act of 1817, with the exception of that declared by section 3 of this last act, on which this prosecution is founded, and possibly a few others, are found, embodied either in the same words or in substance in the Revised Statutes of 1870.

Such being the case, no other inference is possible save that the exclusion of this section was by design, and that such exclusion meant that it was no longer to exist, or in other words that it was repealed and annulled.

It is true that we are referred to some decisions of this Court—14 Ann. 446, 668—construing the effect of the repealing clause in the revision of 1855, as opposed to the views now expressed. It is sufficient to say that even a cursory examination of that repealing act (1855), and of the repealing act of 1870, will satisfy any one that the language of the latter act is broader and more far reaching in its terms and at the same time, by the special mention and exceptions it contains, more significant of its repealing purpose and intent.

We are satisfied after an exhaustive examination of the' subject, that the correct principle is, that where a revising statute embraces antecedent general laws on various subjects, and reduces them to one system and one text., it repeals all prior statutes upon the same subjects not included in the body of the revision, if not by implication, certainly at least where it contaius an express repealing clause. 7 Mass. 140; 1 Pick. 43, 452; 10 Ark. 588 ; 19 Cal. 5ÓL

It is, therefore, ordered and decreed, that the proceedings in the case of the State vs. Susanne Jarvo and Sarah Brown in the Criminal District- Court of the Parish of Orleans, Section A, No. 5440 on the docket of said court, so far as they affect Susanne Jarvo, the relator herein, he avoided and dismissed, and that said court be prohibited from proceeding further in said case, and that said relator, Susanne Jarvo, be discharged from custody.


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    No. 9282.
    George Powell et al. vs. S. & I. Hernsheim et als.
    Where,, upon «the return of tosbimony taken belowfunder our order and the report of the lower judge thereon, it appours that the judgment appealed from lias been voluntarily executed, the appeal will bo dismissed.
    PPEAL from the Civil District Court for the Parish of Orleans. . RigMor, J.

      B. R. Forman for Plaintiffs and Appellants.

      T. Gilmore & Sons for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The testimony taken below under our order and returned here with the judge’s report shews that the cheque of August ' 16, 1884 was in full of Bessy Lutfc’s share of the Powell estate except a small sum left in the Hernsheim’s hands to cover certain contingencies, stated to he $247.16 in one place and in another $275.10.

The motion to dismiss must therefore prevail.

It is ordered that the appeal is dismissed, and that the defendants S. & I. Hernsheim recover of Charles Bauer tutor of Bessy Lutt the costs of taking testimony under our order and all other costs incident thereto.


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    No. 9442.
    The State ex rel. Poydras Planting and Manufacturing Company vs. The Judges of the Court of Appeals for the Fifth Circuit.
    Whore an injunction suit is submitted on a rule to dissolve and on the merits and a judgment is rendered dissolving the injunction with damages, which judgment is responsive to the issues on both the rule and the merits, and where, on appeal to the circuit court, the latter affirms the judgment, this Court, on application for certiorari and mandamus will not look into the reasons assigned by the district judge and the appellate judges respectively and interfere on the ground that the former based his judgment od the merits, while the latter based their affirmance on the grounds of the rule to dissolve. The proceedings being regular and the jurisdiction undisputed, wo are not concerned with the sufficiency or correctness of the reasons of the judgment.
    PPLICATION for Certiorari aud Mandamus.

      W. B. Sommerville for the Relator.

      JR. T. Beauregard for the Respondents.
   The opinion of the Court was delivered by

Fenner, J.

The relator was plaintiff in an injunction suit in the district court. A rule had been taken to dissolve the injunction on the ground of insufficiency of the surety on the bond. Answer having been hied, the rule was cumulated with the merits of the case, and the two were tried and submitted together. The district judge rendered a judgment dissolving the injunction with damages, which judgment was entirely responsive to the issue, either on the rulo or on the merits or to both.

In his reasons for judgment, however, the judge, after expressly holding that the rule was well taken aud afforded sufficient reasons for the dissolution, said that, as the case had also been submitted on the merits and as, under the dissolutiou on rule alone, the plaintiff might claim the right to rectify his bond, he would consider the merits also, proceeding to give reasons why,- in any event, the injunction should be dissolved. Appeal was taken to the circuit court of appeals, where, after healing, the judgment was affirmed. But in their reasons for judgment the. judges of that court considered the insufficiency of the bond a sufficient reason for affirming tbe judgment and did affirm it on that ground.

Relator asks for a certiorari and for annulment thereunder of the decree gendered, on the ground that, in effect, it makes absolute the rule to dissolve, on which no judgment had been rendered in the lower court; and for a mandamus compelling tbe judges to proceed to hear and determine the appeal from the judgment on the merits.

We can discover no foundation for the exercise of our supervisory jurisdiction in this case.

Tt is not for us to determine as to the sufficiency and correctness of reasons for judgment assigned by either the district judge or the judges of the court of appeals.

Our function is at au end when we discover that the issues on the rule to dissolve and the merits were together submitted to the district court; that a judgment was rendered responsive to either or both of these issues ; that an appeal was taken to a competent court; that, on proceedings entirely regular, the latter court rendered its decree affirming the judgment. If there was error, which we do not even suggest, we have no appellate jurisdiction over the case, and are without power to correct it.

The writs of certiorari and mandamus prayed for are, therefore, discharged.