author: Bermudez, C. J.

text:
    No. 8993.
    The State of Louisiana vs. E. D. Chevallier
    Testimony offered to show that the deceased was not in the habit of carrying deadly weapons, is irrelevant, in a prosecution for murder, where the defense is self defense.

    That the deceased had large and influential family connections and friends; that the life of the accused, after the killing and before his bond was forfeited, was threatened by relatives of the deceased, is irrelevant testimony to rebut the presumption of guilt claimed to result from the forfeiture of the bond and flight from justice.
    The State has a right to reexamine a witness, before his leaving his seat, touching a matter testified to by him on cross-examination.
    Testimony to establish tln»t threats were made, is inadmissible, where it is not offered also . to prove that they wore communicated-to the accused.
    The testimony of witnesses, not yet heard, cannot be impeached. An attempt to do so, is premature.
    Evidence is admissible to show the condition of the weapon of the deceased, when found.
    The trial judge, at the request of the jury and in the presence of the accused and his counsel and where no objection is made, has a clear right to instruct the jury as to the different verdicts which they can render.
    The bill of es ceptions taken after the jury bad retired from tbe box and which does not show the ground upon which it is based, is not entitled to notice.
    The trial judge is right in refusing to charge the jury, that “where a witness, credible and “ of good character swears affirmatively to the existence of a fact; that they heard and “ saw things, that the testimony of witnesses as thus swear affirmatively is entitled to “ more weight than the testimony of witnesses of good character and credible who swear “ negatively that they did not see or hear.” The charge, as aslced, was too broad and laoked precision. Evidence of a negative nature, may, under particular circumstances, not only be equal, but superior, to positive evidence. Also, where a negative depends on the establishment of an opposite fact, such as an alibi for instance. '
    "Where the judge was requested to charge the jury in writing and has done so, and where he is subsequently asked to give a special charge and expresses areadinoss to give the same orally, or in writing, and it appears that counsel are willing that ho should give the same orally andhe does so, thereisno occasion to complain that the same was not givenin wilting.
    The ruling in 35 A. 535 and cases there cited, was made under quite a different state of facts.
    Testimony cannot he received to impeach the testimony of witnesses, who did not swear to a particular fact, which he declared not to remember.
    A continuance should not bo granted and is properly refused on the ground of the absence of a witness, where legal steps have not been taken and due diligence used to secure him and when the case was fixed by consent, without any reserve of rights; the more so, where the evidenco, if offered, would not be admissible. It is only where the exercise of the legal discretion was arbitrary and oppressive, that the appellate court will interfere, and then, provided the refusal has worked a manifest injury.
    Special charges are properly refused where they are substantially covered by the general charge, or other charges, already given.
    Hearsay evidence, not part of the res gestee offered to show uncommunicated threats is illegal and was properly excluded.
    APPEAL from tlie Seventh District Coiirt, Parish of Catahoula. .Wlrnn, J.

      ■T. C. TSgan, Attorney General for the State, Appellee.

      Boatner & Boatmer for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was indicted and tried for murder. On a conviction of manslaughter, he was sentenced to ten years at hard labor. He appeals from tlie verdict and judgment.

Tlie record contains twenty-two bills of exceptions ; four, taken by tlie State and eighteen, by tlie accused.

It is needless to consider tlie first four, as tlie State asks an affirmance of tlie judgment appealed from,

r.

The first of the other bills was taken to tlie refusal of the trial judge to allow evidence to show that the deceased was not in the habit of carrying- pistols, or other arms.

The testimonj- was clearly irrelevant, particularly when it is considered that its object was, as intimated at the time it was offered, to establish a case of self-defense.

II.

Tlie- second bill is to the refusal of the judge, to permit evidence to be heard to prove “that the deceased had large and influential family connections and friends, that the life of accused after the killing of deceased and before his bond was forfeited was threatened by relatives of the deceased.” The object for which the testimony was offered, was stated to be, to rebut the iiresuniption of guilt claimed to result from the forfeiture of the bond and the flight from justice.

The evidence was irrelevant. If admitted, it could not have justified the forfeiture of the bond and the flight from justice, or rebutted the presumption mentioned.

The district judge says that he permitted the accused to show, after tlie flight had been proved, any fact explaining why he had fled and that after thus ruling, no question was put to the witness.

III.

The third bill is to the ruling of the district judge permitting the State to examine a witness, after cross-examination had been closed by the accused.

It is difficult to realize what the objections were. They seem to be that the State had already dismissed the witness and that after such dismissal, the State could examine him no further.

The bill does not show that the witness had been dismissed. It avers that-.he liad not left Ms seat, when the State, offered to further examine him.

The State had a clear right to re-examine him, as was proposed to be done, touching “ shade trees ” which had been testified to by him, on the cross-examination by counsel for the accused and which, after all, it does not appear was a matter of any significance.

rv.

The fourth bill is to the. refusal of the judge to allow a question to be answered, the object of which was to show that on the Sunday morning preceding the homicide the deceased had made threats against the life of the accused.

The testimony was, properly, not allowed. It should have been offered also to prove that the threats thus made had been communicated to the accused. It is not pretended that it was offered for that purpose also.

The district judge states that he afterwards ruled that communicated threats could be received in evidence.

V.

The fifth bill is to the refusal of the district .judge of permitting State witnesses to be questioned on cross-examination, for the purpose of impeaching the testimony of other State witnesses not yet heard. The complaint has no merit. Witnesses who have not as yet been sworn and testified, cannot be impeached. The attack is premature. Waterman’s Dig. p. 657, No. 126.

VI.

The sixth bill is to the ruling of the judge permitting the State to offer evidence to show the condition of the pistol of the deceased when found and that it could not have been snapped.

It was perfectly legitimate for the State to establish such state of facts, particularly in a case where the defense was self-defense.

VII.

The seventh bill is to a charge given by the judge to the jury, who, after retiring and being oxrt all night had returned into court, asking for instructions as to the different verdicts they could render.

' The charge given by the Court is embodied in the bill. It appears to be legal and fair and to have been given, after the judge had asked, whether there was any objection to his charging the jury as requested and no objection being made..

The objection was made after the jury had returned from their seats though not from the room. The bill does not state the grounds upon which the objection rests. It should have done and is, therefore, hardly entitled to notice.

YÍII.

The eighth bill is to the refusal of the district judge to charge the jury : “That where a witness, credible and of good character, swears affirmatively to the existence of a fact, that they heard and saw things, that the testimony of witnesses who thus swear affirmatively is entitled to more weight than the testimony of witnesses of good character and credible, who swear negatively, that they did not see or hear.” (

The charged, as asked, was too broad and lacked precision.

The rule is that: when one witness swears positively that he saw or heal'd a fact, and another, who was present, merely swears that he did not see or hear it, and the witnesses were equally faith-worthy, the general principles would, in ordinary cases, create a preponderance in favor of the affirmative, where the position can be reconciled with the negative, without violence and constraint.

Evidence of a negative nature, may, under particular circumstances, not only be equal but superior to positive evidence. This must always depend upon the question: Whether the negative testimony can be attributed to inattention, error, or defect of memory and whether the witnesses had equal means and opportunities for ascertaining the facts to which they testify and exercised the same ¥

Suppose six persons, whose sense of hearing is excellent and who are, otherwise, equally competent, were placed in a room and told to watch whether the clock found in it strikes, or not, the hour; that faithful to their instructions, they had so watched when the large hand passed over twelve and liad so continued watching for five'minutes or more and that when interrogated, two were to swear that the clock had struck and four that it had not, it is manifest that it could not be claimed that the preponderance should be in favor of the testimony of the affirming witnesses.

The principle is further inapplicable, where a negative depends on’ the establishment of an opposite fact, such as an alibi for instance. Starkie, vol. 1, sec. 82, p. 516.

It has been often held that it is not true, as a matter of law, that negative evidence may not be sufficient to overbalance positive testimony. 98 Mass. 381; 18 Ill. 266; 8 Jones, N. C. 308.

In such cases, the jury or judge have to weigh, consider and decide for themselves somewhat regardless of general rules.

In the present case, it is clear that the district judge properly declined to give the special charge asked, as he was not bound to add to or take from the same. He, however, stated to the jury, without any objection being made, that they were the judges of the law and facts, as to innocence or guilt of the accused, virtually telling them that the weight which was to be given to conflicting testimony, had to he attached by them.

IX.

Tlie ninth bill is taken to a charge given orally by the judge, when he had been asked to charge the jury in writing.

The bill and the record show that the judge was requested to charge the jury in writing and that he did so and that it was after he had given the written charge that he was requested to inform the jury of the punishment inflicted for manslaughter and to give the definition.

The judge states that he expressed a readiness to give the charges orally or in writing and, that it is when he became satisfied that counsel were willing that lie should give them orally, that he did so.

There is nothing to show that the judge was asked and refused to give the supplemental charges in writing, or that he exhibited any unwillingness to comply with such request had it been made, or said, or did anything tending' to throw on counsel any blame for the inconvenience, if any, to which the jury might be subjected.

The ruling in State vs Porter, 35 A. 535, and in the cases cited there, was made under quite- a different state of facts and does not apply to this case.

X.

The tenth bill is to the refusal of the district judge to allow a question to be answered, the object of which was to impeach the testimony of a witness previously heard.

That witness, the bill states, had never denied the facts contended for, but had merely answered that he did not remember whether he had, or not, done the particular act.

It is evident that this witness, by such answer, had proved nothing and that his credibility in that regard could not be attacked.

XI and XII.

The eleventh bill is to the ruling of the district judge permitting the State to traverso the affidavit of the. accused for a continuance and to show that there was a witness present, for the accused, who could testify to the facts that could be proved by the absent -witness.

The twelfth bill is to the refusal of the judge to grant the continuance, on the face of the affidavit made by hire prisoner, to secure the same.

It is sufficient to say that the judge did not err in refusing the continuance, for the reason: that no legal steps had been taken to secure the absent witness and no due diligence had been used and, further, because the case liad been fixed for trial by consent, without any reserve of right.

Besides, there was a witness present, able ancl willing to testify as the absent one would have done, if present and testifying. It does not appear, nor is it claimed that this witness present ever was examined on the trial. 6 A. 556; 8 Mo. 606; 7 Tex. App. 549.

Finally, it is more than questionable whether the testimony expected to be given by the absent witness, if offered, would have been admissible, as its object was to prove hearsay declarations, not part of the res gestas.

It must be an arbitrary and oppressive exercise of power on the part of the court, in refusing a continuance to justify the interference of the appellate court and the remanding of the case — although such interference is trply due and will not be denied, when the refusal has worked a manifest injury. Waterman’s Dig. p. 112, No. 7.

In the present instance, the, refusal of the judge to grant the continuance has surely worked no such injury. Crim. Law Mag. 1, p. 683; 68 Mo. 305.

XIII and XIV.

The thirteenth and fourteenth bills are to the refusal of the judge to give special charges as to the law of self-defense and as to reasonable doubt.'

The charges asked are questionable, but' even if they were legal, it was unnecessary for the judge to have given them. His written charge, which covers some fourteen pages of the transcript, appears to he full, fair and legal, and covered substantially the charges asked.

XV, XVI and XVII.

The fifteenth, sixteenth and seventeenth bills are to the refusal of the judge to permit hearsay evidence not part of the res gestas and threats which, if made, had not been communicated to the accused. They are of no avail.

XVIII.

The eighteenth and last bill is to the refusal of the judge to grant a new trial, under which no evidence was adduced or even offered. It practically refers to matters already considered and determined and incorporated on the bills passed upon.

The judgment appealed from sentences the accused for the commission of a crime perpetrated more than five years previous.

Judgment affirmed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8978.
    The State of Louisiana vs. Joseph Hyland.
    An accused who offers to support his affidavit on a motion for a new trial on the ground of newly discovered evidence, by the testimony of the newly discovered witnesses themselves, when he produces them' in court on the trial of the motion, is entitled to such a hearing. On the judge’s refusal to hear such witnesses, the case will be remanded for the purpose of taking such testimony, or to give to the accused the benefit of the affidavit of said witnesses.
    APPEAL from tire. Criminal District Court for tire Parish of Orleans. 'Roman, J.

      J. G. TSgcm, Attorney General, for the State, Appellee.

      Jas. 0. Walker, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

After conviction of the charge of inflicting a wound less than mayhem, the accused moved for a new trial on the ground of newly discovered evidence.

In his affidavit he stated that since his trial he had found out that four witnesses, whom he named and whom he' produced in court, would, testify that the wonnd charged against the accused had been inflictecL by another person, and that the defendant had, at the time of the-affray, no altercation or difficulty with the wounded person.

His counsel, on the hearing of the motion for a new trial, requested the court to call the four witnesses, to examine them and to take down their testimony.

This was refused by the court on the grounds:

1. That the witnesses had not been summoned by authority of the court.

2. Because their names were already mentioned in the motion for a new trial.

3. Because the substance of their testimony was also given in said motion, and the court had thus been apprised of what their testimony would be.

The question involved in the motion for a new trial presents an issue of law blended with facts and is therefore subject to our review. If the facts disclosed in the affidavit are true, the law would clearly allow a new trial to the accused. The law is so imperative on that point that this Court would in such a case be compelled to review the discretion otherwise vested in the trial judge in dealing with motions for new trial.

But for the purpose of such an investigation, the appellate court must he supplied with the evidence bearing on the question of fact presented by the motion.

Under the ruling of the district judge, we have nothing before us but the affidavit of the accused and that has been held insufficient when not corroborated by the testimony or affidavits of other, persons. The general practice, is to support the sworn averments of the accused by the affidavits of other persons, and when possible, by those of. the newly discovered witnesses themselves. State vs. Young, 34 A. 346, and authorities therein quoted; State vs. Adams, 31 A. 718.

in this case the accused offered more than the affidavits of the newly discovered witnesses: he produced the witnesses themselves for examination, at which the State could have been represented for the purpose of cross-examination.

Under the rules of our criminal jurisprudence, this examination should have been allowed and the testimony should have been taken down for review by the apx>ellate court, or a. delay granted for their affidavits.

The learned judge, in overruling the motion for a new trial, states that he did not believe the affidavit of the accused, and that the latter had not shown the diligence required by law in the preparation of his evidence to entitle him to a new trial. The judge, who had heard the evidence on the trial, may have had reasons to justify his belief, but we have no such guide, and the proffered testimony would doubtless have afforded us all the light necessary to an intelligent understanding of the contested averments and to a legal conclusion in the premises.

As the affidavit of the accused contains all the necessary legal aver-ments to entitle him to a new trial if the facts which he recites are true, he has the legal right to - support his averments by testimony or by affidavit of the newly discovered witnesses.

To that end, the case must be remanded.

Under theSe views, it becomes unnecessary to pass upon the other question submitted by appellant, which involves the legality of the sentence rendered in the premises.

The judgment appealed from is therefore reversed. It is now ordered that the case be remanded to the lower court, with instructions to the judge to hear, and to preserve the testimony of the witnesses offered in support of defendant’s affidavit on his motion for a new trial, or to receive and consider the affidavits of such witnesses in the premises, as he may deem the best; said cause to be further proceeded with according to law.


author: Tonn. J.

text:
    No. 9025.
    The State of Louisiana vs. John Barfield et al.
    Where an indictment for a prescriptible offense is filed more than a year after its commission. and prescription is therein negatived by the usual averments, the onus is noton the State to prove the negative, but on the defendant to establish the affirmative; i. e., that the commission of the offense was made "known to some competent officer more than one year previous.
    Where a horse was stolon in one parish and sold in another, to a person .who, at the time, was a justice of the peace in the latter parish, from whom it was recovered by the owner, a knowledge of the crime thus derived by such officer, to whom the name and whereabouts of the offender is unknown, and being without authority or jurisdiction in the parish where the crime was committed, does not affect the question of prescription.
    The information to such officer, in contemplation of law, to have such effect must arise from a formal complaint before him.
    Where, after a, jury retires to make up their verdict, the court adjourns till the following morning, and subsequently the judge being informed that the jury has agreed and desires to deliver the verdict, convenes the court before the time to which it was adjourned has arrived, and receives the verdict, and the prisoner and his counsel are present and make no objection, such alleged irregularity caunot vitiate the verdict.
    APPEAL from tbe Third District Court for tlie Parish of Union. Graham, J.

      J. C. Ugan, Attorney General, for the State, Apollee.
    Defendant unrepresented in this Conrt.
   The opinion of the Court was delivered by

Tonn. J.

The defendants, John Barfield and E. C. Duval, after trial and conviction for horse-stealing, were sentenced to imprisonment at hard labor in tbe penitentiary, the former for one year and the latter for four year's, and have appealed.

No counsel has appeared for them in this Court, but we find in the record several bills of exceptions which disclosed the following facts:

The information was filed more than one year after the offense was alleged to have heen committed, and contained the negative averment that the offense had not been made known to a public officer whose duty it was to direct a prosecution within one year next preceding the filing of the information.

It apx>ears from the bills that tbe horse was stolen in the parish of Union and was sold to a person in the parish of Ouachita, who at the time was a justice of the peace in the latter parish, from whom the property was subsequently recovered by tbe owner. Tbe person thus injured, it is shown, did not know the name of the offender, nor their whereabouts at tbe time of the commission of the offense, but subsequently being informed in these respects, made the proper affidavit and caused their arrest in the parish of Union, where the larceny was committed; these steps being talcen within the year preceding the filing of the information.

The alleged errors complained of are:

1. That the judge refused to charge the jury in substance that, where the .indictment showed that the crime was committed more than a year previous to its finding, the defendants could not be legally convicted unless the indictment negatived prescription and the State had sustained said negative averment by proof.

The judge held, under the authority of State vs. Barnard, 31 A. 694, that the burden was not on the State to establish the negative, but on the accused to prove the affirmative; i. e., that knowledge of the crime had been imparted to a proper or competent officer more than a year before the institution of the prosecution.

The ruling is in accord with the authority invoked and sustained by the reasons given in the decision referred to, from which we quote, as follows:

Ordinarily, a negative, averment has not- to be proved, and often cannot be. The negation is not susceptible of proof, other than by proof of the affirmative fact which is denied. The negation here is, that knowledge of the crime was not brought to a xntblic officer of requisite authority. The proof must be of the affirmative fact, that such knowledge was thus brought to him. Upon whom is the onus?
“It must rest on the party who can most conveniently and most certainly make the proof. Now, an affirmative can more certainly, naturally and legally be proved than a negative. If the onus is on the State, then it must prove that knowledge was not brought to any of its officers who had authority to investigate the crime. It must prove a universal negative. If the onus is on the. defendant, he need only prove that knowledge was brought to one of such officers. He need only prove a particular affirmative.”

2.’ The trial judge was also asked to charge to the effect that the knowledge of the affair possessed by the person to whom the stolen property was sold, who was a justice of the peace at the time, constituted the knowledge or information in a public officer, from which prescription for the alleged offense would begin to run.

The judge, considering that the party injured by the theft was not an officer in the parish where the larceny was committed, and that both the names of the offenders and their whereabouts were unknown to him when the crime was discovered, and believing also that the information to a public officer intended by the statute touching the prescription of offenses, was that founded on a complaint made before a justice of the peace, so far ns relates to that officer, as directed bjr sec. 2065, R. S.,. refused to so charge.

His conclusion, in our opinion, is undoubtedly correct.

The law, in the requirements referred to, did not mean that the effect contended for should be given to the personal knowledge possessed by a person, though an officer, who had no authority or jurisdiction in .the parish where the crime was committed and where, the name of the perpetrator was unknown to him; and it is quite as evident that such a result touching the question of prescription would only flow from information made known to the justice in his official capacity in the manner prescribed by the statute.

3. Complaint is made that, after the jury were charged and retired, the court was adjourned till the morning following, but that the judge, having been informed that the jury had agreed and desired to deliver their verdict, immediately convened the court at night and received the verdict.

If this was an irregularity, as charged, it could not be held as sufficient to vitiate the verdict in the face of the fact that both the prisoners and their counsel were present at the convening of the court and the delivery of the verdict, and made no objection thereto, nor to any proceeding connected therewith, and they must be considered as acqui-escingtherein--at least as to the regularity of said proceedings — and their objection urged was evidently an after-thought and cannot be listened to.

4. There are. other bills which require no special notice or consideration, since from an attentive examination of them we find them wholly without merit.

Judgment affirmed.


author: Éennek, J.

text:
    No. 8972.
    The State of Louisiana vs. David Doyle.
    In the absence of any appearance on the record that the defendant requested the court to assign counsel, or applied for continuance on the ground of absence of counsel ot record, the mere fact that the trial proceeded without the aid of counsel to defendant does not constitute error.
    APPEAL from the Criminal District Court for the Parish of Orleans. Roman, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      Lionel Adams, for Defendant and Appellant.
   The opinion of the Court was delivered by

Éennek, J.

We find absolutely nothing in this record upon which any claim of error in the proceedings below can rest.

The only ground suggested is that the trial of defendant was had in absence of counsel.

The defendant was duly represented by counsel. The case had been repeatedly fixed for trial and three several continuances had been granted, on the sole ground of the absence of his said counsel.

At the fourth fixing of the case, his counsel was again absent, and the court proceeded with the trial.

It does not appear otherwise than by an averment to that effect in a motion for a new trial, that the defendant applied to the court for an assignment of counsel, or even asked for a continuance on the ground of absence of counsel of record.

The minutes do not show that such applications were made, and the statement of the judge in refusing- the motion for new trial equally ignores them. The mere affidavit of defendant attached to ids motion for a new trial and that of his counsel .who was necessarily ignorant on these points, cannot avail to supply these deficiencies.

The record, therefore, fails to exhibit any violation of the mandate of section 992, Revised Statutes, which declares: Every person shall be allowed to make his full defense by counsel learned in the law, and the court before whom he shall be tried, or some judge thereof, shall, immediately upon his request assign to him such counsel as he shall .desire.”

Judgment affirmed.

Rehearing refused.


author: Manning, J.

text:
    No. 9002.
    Hannah Coleman vs. Hibernia Insurance Company et als.
    An action for damages for a malicious prosecution cannot "be maintained, unless malice and want of probable cause are affirmatively shown, and a resulting injury therefrom.

      \ PPEAL from the Civil District Court for the Parish of Orleans. XX. Tissót, J.

      B. King Cutler, for Plaintiff and Appellant.

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

Manning, J.

This suit is for the recovery of ten thousand dollars as damages for an alleged false and malicious prosecution.

The Hibernia Insurance Company bought a certain house and lot at sheriff’s sale on October 12, 1874, in foreclosure of its mortgage, and wlien about to be placed in possession by the sheriff, the plaintiff interposed by injunction, and by means thereof maintained possession of the premises until a judgment dissolved her injunction June 30, 1879. During this time she paid no rent, and collected rent from her sub-tenants. Finally the company was placed in x>ossession by the sheriff under a writ, the execution of which was vigorously resisted, and she was prosecuted raider sec. 818 Rev. Stats, for forcibly taking possession of the property. On trial, she was acquitted by the jury, and hence the present suit.

The suit was dismissed as to the Insurance Company on an exception, from which judgment no appeal was taken. It was tried as to the other two defendants, John Henderson the president of the company, and John Purcell an employee thereof, and judgment was rendered in their favor.

No other judgment could have been rendered. Mrs. Coleman had become liable to a prosecution for trespass by her illegal invasion of the premises from which she had been ejected by process of law. The two defendants were acting as officers of the company in instituting the prosecution, and malice is conspicuously absent as an inciting motive to the prosecution, and abundant probable cause for it is apparent. Barton vs. Kavanaugh, 12 A. 332; Blass vs. Gregor, 15 A. 421; Godfrey vs. Soniat, 33 A. 915.

The plaintiff kept the company at bay several years by an unwarranted use of legal process, and when discomfited in the arena she had selected for the conflict, persisted in disobeying the mandate of the court for her expulsion from the premises, and provoked the interposition of the other arm of the law for her subjugation. She cannot be heard when demanding damages for the use of the criminal prosecution, instituted without malice and with cause.

Judgment affirmed.


text:
    No. 8990.
    The State of Louisiana vs. Michael J. O’Hara.
    Act No. 4, of 1882, sec. 10, is not unconstitutional.
    The license imposed is graduated and uniform, as is required by articles 206 and 208 of the C onstitution.
    The word “ graduate” there used, means ''proportion." The Legislature can levy a license tax, where the amount is regulated and fixed on an established basis, to which it must bear a certain proportion. The Legislature can divide trades, professions, vocations and callings into classes and assess a license on the persons composing the several classes, provided it be equal and uniform, on all the persons of the same class.

      A license for keeping places for “variety ‘performance," can-well be graduated or proportioned on flic basis of tbe population of ilio city or town in which the same are kept.
    A law which imposes suoli license for keeping such places in cities or towns, the population of which exceeds 25.000 souls and fixes the same at $1000, and which imposes Ruch license for keeping such places in such cities or towns, the population of which is less tlion 25 - 000 souls and fixes the same at $500, operates equally and uniformly on the two classes, and does not violate the constitutional provision against local or special legislation. It is general in its purpose and in its terms, and designed to reach all persons belonging to each class, throughout the whole territory of the State.
    APPEAL from the Civil District Court for the Parish of Orleans. Lascvnis, J.

      John MeJSnery and W. B. SommervUle for Plaintiff and Appellee.

      B. Ji. Forman and F. Kernam for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit for the collection of a license of $1000 from the defendant, for keeping a fixed place in the city of New Orleans for variety performance and a. bar-room.

The defense is, that the defendant oaunot he held liable for more than a license of $175 for the first object and $250 for the second purpose, which were tendered and declined; that the act under the provisions of which the action is brought. (Act 4, of 1882) is unconstitutional in this: that the license tax which it levies is not graduated as required by article 206, and is not equal and uniform as is required by article, 203, of the Constitution.

Prom an adverse judgment the defendant appeals.

He contends here that as the record does not contain any evidence in support of plaintiff’s demand, this is good ground for the. reversal of the. judgment.

This Court will presume that the lower court had before it a state of facts sufficient to justify its finding, if otherwise warranted by law. The plaintiff was not hound to have the evidence reduced to writing. Tt was the duty of the defendant,.if he. thought the facts did not justify the judgment,-to have caused a statement of facts to he prepared before applying for an appeal.

In that regard the transcript is likewise deficient^as concerns the defense itself, that the theatre kept by the defendant has a seating capacity of less than five hundred seats, a fact which he says would authorize a license of $175 only.

The real defense is, that the license tax claimed is not graduated and not equal and uniform.

Article 206 of the Constitution, provides that the Legislature may levy a license tax and, in such case, shall graduate the amount of such tax, to he collected from the persons pursuing the several trades, professions, vocations and callings.”

It is remarkable that while the Constitution requires that the Legislature shall graduate the amount of such tax, it lays down no rule and places no limitation for the exercise of that taxing power. So that any rational mode of graduation which in its wisdom the Legislature may deem advisable to adopt, comes within the tenor and purview of the constitutional language. 35 A. 76.

The word gra&uate, used in the article, can only maim' proportion. Under its requirement, the Legislature cannot levy a license tax unless the amount of such tax he regulated and fixed according to a certain established basis, to which it must bear a certain proportion. It implies the previously recognized power of the Legislature, in matters of this kind, to divide trades, professions, vocations and callings into classes and to assess a license, different and variable in amount, upon the persons composing the several classes. The only restriction placed upon the power by the Constitution is, that the license tax, likened in this respect to a tax on property, shall he equal and uniform on all persons of the same class.

The act under consideration, sec. 10, establishes, graduates and proportions the license tax for the occupations classified under the head of AMUSEMENTS.

It provides: “That for any place where can-can, clodoehe, or other similar female dancing, or sensation performance, or statuary exhibitions are shown, or any other fixed place for either theatrical, musical, minstrel, concert, dancing, or variety performance, exhibitions, amusements, or show, the license shall be one thousand dollars in cities with a population of more than twenty-five thousand, and in cities and towns with less population the license shall be five hundred dollars.”

The business of keeping such places of amusements is divided into two classes: first, that of keeping such place in cities with a population exceeding twenty-five thousand souls; and second, that of keeping such place in cities or towns having a smaller population. The license on persons composing the first.class is $1000, and on those belonging to the second is $500.

The licenses are graduated, are proportioned, are fixed, on the basis of the population of the place where the business is to be carried on, and are equal and uniform on all the persons of each class. The law is not therefore amenable to the charges of either ambiguity, obscurity, or unconstitutionality.

The objection is untenable that the law discriminates odiously and therefore violates the constitutional prohibition against local or special legislation.

The law is general in its purpose and in its terms. It is designed to operate throughout the whole territory of the State and to roach all persons within her borders belonging to both classes and carrying on the business taxed.

It does not say or mean that persons pursuing the business in New Orleans shall pay $1000, and in other cities or towns within the State $500, although it maybe that it does actually operate in that manner; but it muáít be remembered that laws are not passed to live a short life, and that it is not a mere possibility that towns now counting a population less than 25,000 souls may not labenMbus aomis, fortune and prosperity smiling on them, become large and populous cities, casting umbrage on the present great metropolis of the State-

Laws, as a rule, must be general in their scope and application. That under consideration emanates from a Legislature which had in mind and faithfully observed the ancient maxim, “Lex uno ore, omnes aMoguitw)'."

There being no error hi ths judgment appealed from,

It is affirmed, with costs.

Rehearing refused.


text:
    No. 8994.
    The State of Louisiana vs. Noah Jackson.
    Objections to the manner of drawing and summoning the jury, and of organising the grand jury must be urged before plea and trial, and come too late when made after verdict.
    Arrests of judgment arise from intrinsic causes appearing on the face of the record, hence irregularities in the drawing and the summoning of the jury, «and in the composition of the grand jury cannot be heard in a motion in arrest of judgment. • t/

    PPEAL from the Eighth District Court, Parish of East .Carroll. Delony, J.

      J. G. TSgan, Attorney Ceneral, for the State, Appellee.

      G. 8. Wyhj for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The defendant appeals from a conviction of murder and a sentence of death; and he relies exclusively on a motion in arrest of judgment, which was overruled by the district judge.

The complaint, set forth in his motion is “ that the grand jury that found the indictment was illegally formed; that at least one person who served on said jury, was not drawn on the venire for that term of court.”

His motion is answered by two fatal considerations:

1. All objections to the maimer of drawing and composing the grand jury must be made and urged before plea and trial, and come too late after trial and verdict.

All such objections, when made after trial, are met by the consideration that an accused cannot be allowed to take his chance of an acquittal in a trial by an alleged defective jury, and if convicted, to fall back on an objection which should have been urged before, trial.

'Phis rule can now be considered as elementary in our practice. State vs. Watson 31 A., 379. State vs. Miles, Ib., 825. State vs. Washington, 33 A., 825.

2. It is equally well settled in criminal jurisprudence that, “arrests of judgment arise from intrinsic causes appearing on the face of the record.”

If, in the present case, the objection could be entertained as timely made, it could only cover in the form or remedy adopted by defendant’s counsel, errors apparent on the face of the record, and apparent on mere inspection of the proceedings. But the record does not contain the venire from which the grand jury was drawn, and, therefore, the defect charged in the motion does not appear on the face of the record. Proof would have been required to establish the irregularity complained of, and such proceeding is not admitted in support of the motion in arrest of judgment, which can present only a question of law. But independently of these considerations, we hold that the defendant’s counsel has entirely mistaken his remedy in having recour.se to the motion now under consideration.

(himinal jurisprudence has crystalized the rule that judgment will not be arrested on the ground of irregularities in the summoning of the jury, or the composition of the grand jury. State vs. Swift, 14 A., 825. State vs. Thomas, 35 A., 24. State vs. White, Ib. 96. State vs. Harris et al, 30 A., 90. State vs. Wittington, 33 A., 1404.

The record discloses no error to the prejudice of the defendant, and we are powerless to avert his doom.


author: Todd, J.

text:
    No. 8897.
    The City of New Orleans vs. Nicholas Arthurs.

      Where a city tax is resisted on the ground that the property against which it is assessed is exempt undei the Constitution of the State, the question of the constitutionality of the tax is involved, and this Court has jvuisdiotion, though the táx is less than $1000.
    A manufactory of tish lines, ropes, packing and other hempen articles is exempt from taxation under Article 207 of the Constitution, where the required number of hands are employed therein. .Nor does it affect the exemption that the premises are occupied by the owner and bis family, where it is shown that the premises and the articles manufactured risid in process of manufacturing required protection and constant watching.
    APPEAL from the First. City Court of New Orleans. . tíkimter, J.

      (}. I<\ Buck, City Attorney, and Wynne. Rogers, fox Plaintiff and Appellee. §|

      .11. L. IQdimmrh for defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The city of New Orleans sues the defendant for thirty-four dollars and ninty-three cents, being amount of a tax assessed on certain immovable property situated in said city.

The payment of the tax is resisted on the ground that the property in question consists of a manufactory of fish lines, ropes, packing and other hempen articles and is exempt from taxation under Article 207 •of the present State Constitution.

The counsel for the plaintiff suggests, in his brief, that.this Court is without jurisdiction on account of the amount in suit and denies that the constitutionality and legality of the tax in question is involved.

It is to be presumed that the tax referred to was imposed by virtue of some ordinance of the city or law of the State and if, under such authority, the tax was assessed upon or against property which the Constitution declared exempt from taxation, we are at a. loss to discover why the constitutionality of the ordinance or law, and of the tax levied under it, is not directly involved. The suit, in such ease, would be an attempt to enforce the collection of a tax against a positive inhibition of the Constitution; and, upon such an issue, and state of facts this Court is vested with jurisdiction regardless of the amount in controversy. Constitution of 1879, Art. 81.

Among the. exemptions from taxation declared by Article 207 of the Constitution, we find mentioned “the capital, machinery and other property employed in the manufacture of textile fabrics,” subject to the proviso in the Article, that not less than five hands aré employed in the factory.

The statement of facts found in the transcript which, though questioned as insufficient, we deem proper and legitimate evidence satisfactorily establishes all the conditions in this case in which the exemption claimed is founded. The property is employed in the manufacture of “textile fabrics” and the required number of hands are engaged therein. Nor does the fact that the defendant lives in a part of the building or factory, where it is shown, as in this instance, that such occupation, day and night, is necessary for the protection of the premises and the goods therein manufactured and in process of manufacture, in any way defeat or affect the exemption claimed, as was thought by the city judge. It was a fact without significance or bearing upon the question at issue.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reverted, and that there be judgment for the defendant, rejecting the demand, with costs in hoth courts.


author: Fenner, J.

text:
    No. 8988.
    The State of Louisiana vs. Marshall Green alias Buddy Green.
    In an indictment for shooting with intent to commit murder, the intent must he described in terms which would he sufficient, in case the act had resulted in death, to sustain an indictment for murder.
    The qualification of the intent as ‘‘felonious ” merely, without the addition of “ wilfully and of malice aforethought, ” describes only an intent to commit manslaughter and not murder. K. S. sec. 1048.
    The defect is substantial and is a proper subject for motion, in arrest of judgment.
    PPEAL from the. Twenty-sixth District Court, Parish of St. Charles, Ilahv, J.

      J. 0. Egan, Attorney General, and Jas. D. Augustin, for the State, Appellee.

      L. .DeEoorier for Defendant and Appellant.
   The opinion of the Court was delivered hy

Fenner, J.

The information under which the defendant was found guilty, charged the crime in the following language, viz: that defendant did, with a dangerous weapon, unlawfully shoot one Sylvester Barthelemy, in the peace of the State then and there being, with the felonious intent, then and there, him, the said Sylvester Barthelemy, to murder, contrary,” etc.

Motion in arrest of judgment was made on the grounds that neither the shooting nor the intent to murder were charged to have been “ wil-fully, feloniously and of malice aforethought,” and that the information was, therefore, insufficient.

We have heretofore held, in discussing an indictment under'the same section (901 Revised Statutes), that “the crucial test of the sufficiency' of such an indictment is whether, in case of the death of the party shot and wounded, the description of the crime, as contained in this instrument, would he sufficient to warrant or justify a verdict for murder.” State vs. Bradford, 33 A. 921.

The application of this test is fatal to the information in this case. Section 1048 Revised Statutes, provides that “it shall he sufficient in an indictment for murder to charge that the defendant did feloniously, wilfully and of his maMoe aforeihought, kill and murder the deceased,” and in indictment for manslaughter, that he “ did feloniously kill and slay the deceased.” Obviously, the intent charged in the information before us covers only the crime of manslaughter and does not describe the intent essential to constitute murder. This Court cannot accept as sufficient, less than what the law prescribes should be sufficient.

The words “of Ms malice aforethought,” are quite as essential as the word “feloniously.” Wharton on Orim. Law, see. 399.

' The omission of the latter word has been held repeatedly by this Court as fatal in indictments for offenses which were felonies at common law. State vs. Flint, 33 A. 1292; State vs. Thomas, 29 A. 601; State vs. Curtis, 30 A. 814; State vs. Cook, 20 A. 145; State vs. Durbin, 20 A. 408; 8 Rob. 590; 10 A. 195, 698; 5 A. 324; 1 Martin O. S. 117, 173.

The motion in arrest should have prevailed.

The failure of the defendant to demur to, or move to quash, the information, in limine, does not affect the case, the defect urged not being formal but substantial, and as appears from above authorities, proper ground for motion in arrest.

It is therefore ordered, adjudged and decreed that the judgment and sentence appealed from be annulled, the information quashed as not good in law, and that the defendant remain in custody, subject to the orders of the district court for the parish of St. Charles.


author: Bermudez, C. J. Fenner, J.

text:
    No. 8760.
    Katie Newman, Widow Shelly et al. vs. M. Shelly, Sr.
    An appeal will not lie dismissed on the ground of incompleteness of the transcript, where the omission consists in testimony taken after the judgment appealed from, on a rule for execution and the judgment dismissing such rule is not brought up for review.

      Even parties to authentic acts and their privies have the right to contradict recitals therein by an appeal to the conscience oí' opposing party by means of interrogatories on facts and articles; and answers to such interrogatories confessing the falsity of such recitals are not parol evidence and have all the effect of a counter-letter.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      J. Ad. Hosier for Plaintiff and Appellee.

      Ohm. S. Rice and L. L. Levy for Defendant and Appellant.
   ON Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff and appellee moves a dismissal of the appeal herein,

1. Because the transcript is incomplete by the fault of the appellant.

2. Because the lower court erred in denying a rule for the dismissal of the appeal.

L

The alleged deficiency in the transcript consists in the omission therefrom of the evidence received on the trial of a rule to dismiss the appeal taken from the judgment brought up for review.

it was unnecessary to include that evidence in the rec.ord, for the reason that it was taken after the rendition of the judgment appealed from, and that the judgment of the lower court overruling the motion to dismiss the appeal is not before ns for revision.

That evidence, even if included, could not serve in determining whether the judgment on the merits, which is that appealed from, was or not correctly rendered.

II.

The appellee cannot ask this Court to revise the judgment of the lower court refusing the rule to dismiss filie appeal, as no appeal was taken therefrom. Neither can the same motion be renewed here. 9 L. 579; 16'A. 192; 21 A. 114; 32 A. 816, 1135.

The motion to dismiss is denied.

On ti-ie Merits.

Fenner, J.

The plaintiff, tutrix, avers that her minor child is the sole heir of her father, Michael Shelly, Jr.; that, prior to his death, the latter had sold, by authentic act, to his father, the present defendant, certain properties for the- price of $4500; that, though said authentic act contained a clause acknowledging receipt of the price by the vendor, yet tlie same had never been pa.icl and was still due; and that, as sole heir, she was entitled to demand and recover the same and prayed judgment accordingly.

We discard averments which, in our view of the case, we deem immaterial.

The defendant filed an exception of no cause of action which, by consent, was referred to the merits. He then filed a general denial. Plaintiff propounded interrogatories on facts and articles to defendant, probing his conscience as to the fact whether or not the price had been paid.

The defendant objected to the interrogatories on the grounds:

1. “That the consideration for and reality of the sale in question cannot he inquired into as between the parties 'thereto and their privies.”

2. “ If admitted at all, then that the effect of said testimony must be confined to the rights of the minor, as forced heir in respect to his légitme only.”

Under reserve of these objections, the defendant, in answering the interrogatories, ^confessed that the price had not been paid, and then proceeded to qualify his confession by a statement that no payment of the price was intended, hut that the sale was a mere simulation entered into for purposes needless to mention, but excluding the idea that even a donation was intended.

There is no question of forced heirship in this case. The right of parties to authentic acts, and their privies to contradict their recitals as to payment of price and to establish their simulation, etc., by means of the answers of the other party to interrogatories on facts and articles, is fully recognized by the authorities. Such answers have all the effect of a counter-letter. Hewlett vs. Henderson, 9 Rob. 379; Semeré vs. Semeré, 10 A. 704; Forrest vs. Shores, 11 La. 418; Succession Thomas, 12 Rob. 215.

The authorities quoted by counsel (12 A. 684, 789; 15 A. 142; 9 Rob. 29; 27 A. 267) apply to other modes of attack. The last one quoted, after stating the rule laid down by those authorities, proceeds to say: “As the ancestor of defendant, however, could have shown the simulation of the sale by a counter-letter, or by interrogatories on facts and articles addressed to plaintiff, the defendants, his heirs, have the same right.” Tesson vs. Gusman, 27 A. 266.

The only serious question in the case is, whether, having thus legally established that the stipulated juice had not been paid, plaintiff is entitled to recover it; or whether, under defendant’s statement that the sale was a pure simulation, she should be remitted to an action to recover the property.

Undoubtedly, on this state of facts, under proper pleadings, the action for the juice might have been defeated. But, by his simple answer of general denial, defendant has accepted the issue tendered by the plaintiff, as to the payment of the price and has relied upon the legal inability of plaintiff to assert or prove the non-payment. Defeated on this issue, he cannot be heard to say, “true, the price was never paid, but the sale was simulated, the price was never due and, therefore, you cannot recover.” Such defense would have been in the nature of a plea of confession and avoidance requiring to be specially pleaded.

It would have involved the necessity of an offer to surrender the property and its fruits, which has never been made. Defendant, while witholding the property, cannot dispute his liability for the price'. It. appears, moreover, that he has alienated a portion of the property.

If he shall suffer hardship, which, however, is not suggested, his own action is to blame for it.

Judgment affirmed.


author: Poohé, J.

text:
    No. 8991.
    Bridget Bornholdt vs. J. B. Souillard.
    Iii an action for a malicious prosecution, tlie discharge of plaintiff by the committing mag istrate, is pieria facie evidence of the want of probable cause, sufficient to throw upon the defendant the burden of proving the contrary.
    A charge made on information received, which is not supported by any evidence, is not based on a probable cause.
    PPEAL from the Civil District Court for the Parish of Orleans. i-1 Monroe, J.

      W. S. Benedict, for Plaintiff and Appellee.

      G. Duplanüer and E. Mmmier, for Defendant and Appellant..
   The opinion of the court was delivered by

Poohé, J.

This is an action for damages in the sum of $5000 for malicious prosecution.

The defense is want of malice and prohable cause.

The case was tried by a jury, who found- a verdict of four hundred dollars iu favor of plaintiff. Defendant appeals. The facts are these : Defendant’s grandmother died in this city in January, 1883, and immediately after her death, a great many things, such as clothing, bedclothes, jewelry, a clock, and a watch and chain, etc., were removed from her person and from her house by some person or persons with the intention of appropriating them. When the defendant came to tin; house, in the morning after his grandmother’s death, he was informed by a servant in the house, who was also a niece of the deceased, and by two other persons, that the above mentioned effects had been taken by the plaintiff, Mrs. Bornholdt and her two daughters and brought to their house, situated immediately across the street from that of the deceased. As soon as the funeral was over, and without further inquiry, Souillard preferred a charge of larceny against Mrs. Bornholdt and daughters, who were arrested, and brought to the police station, where they were incarcerated for a short time, until they furnished a bond for their appearance. On examination by the recorder, they were pronounced innocent and were at once discharged. Hence this suit was instituted.

The discharge of the accused by the committing magistrate is prima fade evidence of the want of probable cause sufficient to throw upon the defendant in a suit for damages the burden of proving the contrary. Greenleaf, vol. 2, par. 455; Plasscon vs. Lottery Company, 34 A. 246.

We have examined the record very attentively and we conclude that defendant lias utterly failed to show a probable cause for the prosecution which he instituted’ against plaintiff and her daughters.

The evidence shows that they are laborious and honest women, and good and serviceable neighbors. It further appeal's that defendant’s grandmother and Mrs. Bornholdt had been near heiglibors for upwards of twenty years, during which time they had been good friends, and had cultivated the closest social relations, and that the defendant himself had' been a frequent visitor at her house. The record shows that during the grandmother’s last illness, Mrs. Bornholdt and her daughters had taken constant and great care of the infirm old lady, and that they were among the first at the house at the moment of death, in order to give such assistance as would be needed at that solemn moment.

Tinder such circumstances it appears to us most extraordinary that on hearing that Mrs. Bornholdt and her daughters had removed certain things from his grandmother’s house, the defendant did not call on them for some explanation in the premises, and he should at once cause their arrest under such a grievious charge.

Had he followed such a course and sought for direct information, he would have discovered precisely what the evidence on the trial of this cause fully disclosed, that Mrs. Bornholdt and her daughters had been unmercifully slandered by his informants, and that the better part of the. things taken from his grandmother’s house, had been removed by one of his informants, his cousin, who was living with the old lady in the capacity of helinnate and servant; and that the rings taken from his grandmother’s Angers, had been claimed by and returned to a person from whom they had been borrowed.

The record discloses on the part of defendant, a most wanton disregard of the rights, feelings and reputation of his grandmother’s lifelong neighbor and friend, and a rei>rehensible abuse of the power of the law which he invoked for persecution and not for the vindication of his rights.

The- verdict against him was eminently proper, and it shall, therefore, remain undisturbed. It would have been increased under a timely motion.

Judgment, affirmed.


text:
    No. 8967.
    Board of Commissioners to superinted Repairs to State House, etc. vs. J. C. Riddell et als.
    Where, in.a case involving the settlement of accounts between the parties litigant, they agreed to submit their accounts to experts — so named in the writing — -and an umpire is appointed by the court and their report is made and opposed hy the parties, although the terms .of the submission might seem to give the experts the powers of amicable compounders, yet, if on the trial of the opositions, testimony is introduced touching all matters of fact submitted and no bill of exceptions is taken to its admission, the report as award will not be regarded as that of amicable compounders and as final and unreviewahle by the court, as to the facts determined, but the testimony admitted will be considered and the award will he changed if the evidence justifies it.
    PPEAL from the Civil District Court for the Parish of Orleans. \ LamtruB, J.

      F. L. Riehmrlson for Plaintiffs and Appellants.

      JBranglm, Finóle tí? JDinlcélspiél and Wynne Rogers for Defendants and Appellees.
   The opinion of the Court was delivered hy

Todd, J.


author: Bbmiudez, (!. J.

text:
    No. 9003.
    R. M. Flautt vs. M. Lashley et als.
    A boat used by its owners and managers for their own purposes and those of others who agree to pay certain rates for the transportation of their goods from one point to another and which is not shown to have been held out as a common carrier, cannot be declared to be such, at the instance of any of. such agreeing parties.
    PPEAL from the Civil District Court for the Parish of Orleans. LSl Lagcwus, J.

      Jonas & Nixon for Plaintiff and Appellee.

      W. S. Benedict for Defendants and Appellants.
   The opinion of the Court was delivered by

Bbmiudez, (!. J.

This is an action in damages against the owners and managers of a steamboat, alleged to be a common carrier, for injury inflicted from August 24th to October 12th, 1882.

The complaint is that the. defendants have discriminated against plaintiff iu their business, of transporting cattle across the, river, from the Morgan railroad depot on the west bank of the river to the slaughterhouse on the east bank, and that the. discrimination consisted in charging him unreasonably high rates of freight and refusing to carry his goods, unless such rates were paid.

The damages said to have been sustained, were assessed at $35,000.

The defense is, substantially, a general denial.

The case was tried by a jury who returned a verdict for $3500.

Prom the judgment on such verdict, the defendants have appealed.

The first and main question to be solved, is: whether the boat in question was a common carrier.

Bearing in mind the definition given to the word by text writers and by courts of justice, such as we find it stated and announced in Hutchinson on Carriers, p. 30 sec. — ; in 1 Peck 50; 1 Salk 249 ; 3 Wend. 161; in Parson’s on Cont., 5th Ed. 166, note; in Stay, on Cont. § 752 (a), we are satisfied that the “Ba/i-reinore'’ which was the boat used for ferrying accross and on the river, from one point to another, was not such carrier, at least as to plaintiff.

It api)ears from the evidence that two of the defendants had been running opposition boats, to their great mutual pecuniary injury, losing a large amount of money by' so doing; that they finally came to their senses and agreed to unite in the undertaking. The jfiaintiif endeavored to enter into it, was allowed to do so on his agreeing that he would have all his stock transported by the boat. He, subsequently, however, broke that contract by sending his cattle, etc., to the slaughterhouse, through the streets of the city, when the same arrived on that side of the river.

By making this contract, the plaintiff admitted that the boat was not a common carrier. 37 N. Y. 342.

There is nothing to show that the boat was ever held out as a common carrier and that it was advertised as such.

In order to establish that the undertaking was to carry for a compensation, the goods of all persons indifferently, who choose to employ the boat, it was sought to be shown that, in a few insignificant cases, different rates were charged and collected which did not amount in all to $2. The explanation given, that possibly the rate was reduced in those cases, because of the penury of the shippers appears plausible and satisfactory. For having thus acted, the defendants should not be held to have been common carriers.

This view of the case renders it unnecessary for us to announce specifically the result of oxir examination of the volumnious transcript in the case, which, if it was expressed, would not, even if the boat were a common carrier, favor a recovery by plaintiff.

ft is, therefore, ordered and decreed that the verdict be quashed and the judgment thereon be annulled and reversed; and, it is now ordered and adjudged that there be judgment in favor of defendants, rejecting plaintiff’s demand with costs in both courts.

Rehearing refused.


author: Pociié, J.

text:
    No. 8903.
    Jack Hardy vs. James H. Lemons.
    An intervenor in whose possession, other than as owner, pledgee or consignee, property has been judicially sequestered, has not the right in law to release said property on a forthcoming bond.
    Under our law that right is restricted to the parties to the suit, and to an intervenor who shows a prima facie case of a bona fide title as ownor, pledgee or consignee.
    PPEAL from the Civil District Court for the Parish of Orleans. Xjl. Bightor, J.

      Geo. Tj. Bright and Bayne <& Demégre, for the Intervenor, Appellant.
   The opinion of the Court was delivered by

Pociié, J.

The facts of this case are as follows:

J. H. Lemons, John O. Triskett and W. W. Mullen, were the owners of a very valuable race mare named “Lucy Johnson.” Some time in December, 1882, while Lemons had possession of the mare, at San Antonio, Texas, he entered into a contract with S. W. Street, by which the mare was placed in the possession of the latter, with the exclusive use of her running and racing qualities, on condition of his properly handling and training said mare, and of accounting for one-half of the net profits of her earnings. The contract was for ten months. Having acquired possession and control of the mare, as lessee, under said contract, Street brought her to this city, where he entered her in the races of last spring. Subsequently, the plaintiff in this case acquired the interest of Triskett and Mullen in the mare, and he brought this suit for a partition by sale of the animal, which was sequestered for the purpose of effecting the sale.

S. W. Street then intervened, alleging his possession of the mare at the time she was sequestered, and moved for leave to release the mare on bond.

He has taken this appeal from a decree of the lower court denying him the right to bond the mare.

The question presented involves the right of an intervenor to bond property sequestered from his possession, under the title of lessee.

Article 279 of the Code of Practice, as it stood originally, restricted the right to bond sequestered property to the defendant in the suit.

The act of the Legislature of the fifth of March, 1842, extended the right to plaintiff in cases where the defendant had failed to bond the property within ten days after the seizure by the sheriff.

The article was further amended by Act 51, of 1876, the first section of which reads as follows:

That in all suits in which property, real or personal, is attached, sequestered, or provisionally seized in the actual or constructive possession of one not a party to the suit in which said process issued, said third party may, on intervening in the suit, and on prima facie showing to the court that he is the bona fide owner, pledgee or consignee of said property, have the same restored to him, until the final determination of the suit, on executing a forthcoming bond in the same manner and amount, within the same delay, and with the same effect as a defendant in the suit now allowed.”

It will be seen that under the provisions of that amendment, the right to bond has been extended to an intervenor; provided, his possession of the property sequestered be that of an owner, pledgee or consignee. And under the pleadings in this case it is apparent that the intervenor is not included in either of the qualities contemplated in the amendment. But Ms counsel contend that the intervenor who has possession under a lawful title of property sequestered from Ms possession, must be assimilated to a defendant for all practical purposes under the light here invoked, and that the right could be exercised independently of the amendment of 1876.

In support of that reasoning he relies on the decision of the case of Catalogue vs. Bauvier, 4 A. 467, in which the intervenor holding as the owner of the jiroperty sequestered, was allowed to bond it, even though the delay for the defendant to bond had expired.

We cannot adopt the views announced in that case. The progress of the legislation amendatory of the Article 279 of the Code of Practice, is in itself a complete refutation of the reasoning of that opinion.

If the law-maker had intended by the amendment of 1842 to include inte.rvenors in the extension of the privilege which had heretofore been vested in the defendant alone, he would have provided for it, in express words. But that he did not thus intend at that time, is made manifest by the act of 1876, which was adopted for that express purpose.

The. Legislature cannot be supposed to create a right or remedy which already exists.

The question came up in the two cases of Clapp & Co. vs. Phelps & Co., 19 A. 461, and of Dupérier vs. Flanders, 20 A. 29, decided before the legislation of 1876: Tn both cases the court correctly held that under the law, as it then existed, the right to bond sequestered property could not be extended to the intervenor. We must adhere to the ruling held in these two cases.

Now, in this case the intervenor does not hold as owner, pledgee or consignee, hut as a lessee; hence the right which he claims is not sanctioned or warranted hy law, and was correctly denied Mm by the lower court.

Judgment affirmed.


text:
    No. 8992.
    The City of New Orleans vs. J. R. A. Gauthreaux et als.
    where, in a suit against tlio sureties of a sheriff, it is admitted that this officer has collected and failed to pay over on demand, city taxes, exceeding the amount of his bond, under judgments and writs in favor of the city, for part of which amount his sureties are sued; the fact, if true, that the sheriff, as an individual, under private contract has made collections of city taxes, cannot affect the liability of his official sureties in snoh suit.
    Nor. does the exaction of another bond, by the city, in addition to his official bond, in order to secure prompt collections and stated settlements of city taxes, have such effect.

      Where a delay is granted the sheriff dtu ing the pendency before tlio Legislature of a hill for his relief, it’ does not release the sureties for his defalcations occurring subsequent to the expiration of such delay. This Court can give no effect to documentary evidence not offered on the trial and placed in the transcript without the consent of the party or his counsel whom it is designed to effect.
    PPEAL from the Civil District Court for the Parish of Orleans. £Tissot, J.

      Blanc é Butler for Plaintiff and Appellee.

      W. S. Benediet for Defendants and Appellants.
   The, opinion of the Court was delivered by

Todd, J.

P. O. Fazende, and H. O. Seixas, sureties on the official bond of J. R. A. Oautbreaux, late Civil Sheriff of the parish of Orleans, each for $2500, appeal, from a judgment rendered against them as such sureties-.

Their answer to the action against them, besides the general issue, contains other defenses, which may be thus summarized:

1. That the money was not collected by Gauthreanx, as sheriff, but as an individual under private contract.

2. That the city, in its contracts with Gauthreanx, exacted from him a, special bond to secure, the collection and prompt return of the taxes collected.

3. That the city gave time, to Gauthreanx, without their consent, to pay Ms indebtedness and, thereby, released them from liability as sureties.

1st. We find in the record an admission of defendants’ counsel that G-authreaux, sheriff, had collected under judgments and writs in favor of the city and not accounted for on demand, city taxes, not less in amount than $77,463 78.

This sum, thus collected, exceeds the entire amount of the sheriff’s bond ($50,000)'. If any collections were made by him, as an individual under private contract with the city, it certainly was not included in the above amount admitted to have been collected by him as sheriff; and, for such collections alone, the defendants are sought to be made responsible.

Apart from this admission we find no evidence in the record of any contract or agreement which would affect or impair, in the slightest degree, G-authreaux’s responsibilities as sheriff.

2d. The letter of the ordinance requiring an additional bond from Gauthreanx, referred only to the taxes of 1879, which taxes were settled by Gauthreaux. Apart from this, however, we cannot see that the exaction of another bond from Gantlireaux, by the city, in addition to his official bond, with a view to secure prompt collections and weekly settlements, impaired in any way his liability or that of Ms sureties on his official bond. In the ordinance requiring the bond, it was declared that such bond was not intended to supersede or affect his bond as sheriff.

3d. In March, 1880, the council instructed the city attorney not to bring suit against the sheriff and his sureties during the pendency of a bill before the Legislature for the sheriff’s relief. This action of the council could only refer to the taxes of 1879, for which, as stated above, he settled shortly thereafter. His defalcation was for taxes subsequently collected and was not ascertained until his term of office had expired, some time after the delajr was extended to him.

We are asked, in any event, to amend the judgment by allowing credit for payments alleged to have been made by the defendants.

We find that a payment of $1,079 was made by Fazende before judgment in the lower court and a remittance duly entered for the same. There is no evidence we can consider, that shews any further payment by either of the defendants. It is true that we are referred to certain records in the transcript as establishing such additional payment, but these records were uot offered in evidence on the trial and, in fact, related to proceedings subsequent in date to the rendition of the judgment of the lower court and even to the appeal, and these documents were placed in the transcript without the consent of the plaintiff’s counsel and we must, therefore, decline to give them any further consideration than to make the proper reservations in the decree for the protection of the parties.

The case must be tried here upon the record and pleadings had in the lower court, up to and including the judgment therein rendered.

Tested by these, the judgment was correctly rendered.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs, reserving to the defendants or either of them the right to show what sums, if any, not herein recognized, they may have paid as sureties of Gauthreaux; since the rendition of the judgment appealed from, and to establish in consequence of said payments exoneration from further liability, in case the amounts thus paid equal or exceed that for which they respectively obligated themselves in -he sheriff’s bond on which they are now sued.


author: Bermudez, O. J.

text:
    No. 9044.
    The State ex rel. E. K. Bryant et al vs N. H. Rightor, Judge of the Civil District Court, etc.
    On an application for a mandamus the ruling of a district judge referring exceptions to the merits, cannot To© reviewed.
    The writ issues to proceed, not to recede: to do, not to undo.
    The judge is vested with a legal discretion and he lias exercised it.
    His action can cause the exceptors no irreparable inynTy,as it can he revised by himself, before the final determination of the suit, or on appeal by this Court, which, if lie have erred, will render such judgment as he aught to have pronounced.

      ^ PPLTC'ATION for a Mandamus.

      Percy Roberts and .E. E. Motee, for the Relators.

      W. 8. Benedict and F. IV. Baker for the Respondent.
   The opinion of the Court was delivered by

Bermudez, O. J.

This is an application for a mamdmnns.

The relators claim that the district judge, instead of either overruling or sustaining certain exceptions filed by them, has referred the same to the merits.

The judge returns, that the exceptions were twofold: Attacking and denying the capacity of the plaintiffs in the suit to stand on judgment and their title to the claim sued upon ; that, after full and fair hearing of the evidence and argument of counsel, believing said exceptions not well founded as far as the capacity of plaintiff to stand in judgment was concerned, hut thinking that the exception, as to the title of plaintiff, though not made out, could more truly, fairly and justly be decided, after hearing the evidence in full upon the merits, and desiring not to prejudice defendant’s rights, or to cut them off from said exceptions, he, (the judge) under the judicial discretion vested in him by law and under and in accord with the practice of his court and of the courts of the State generally, referred said exceptions to the merits to be tried and decided therewith.

This Court is clearly asked to review the ruling of the lower judge, which is claimed as erroneous. It is asked to reverse that ruling and to reinstate the exceptions, or to direct the district judge to do so, and to require him to dismiss or maintain those preliminary defenses.

This cannot be done, on an application for a numda/nms, which, when granted, becomes a mandate to proceed, not to recede ; to do, not to undo. 33 A. 268. The apprehension of tho relators that the ruling of the district judge may work them an irreparable injury, is entirely without foundation.

Tho district judge himself has the power thereafter to reconsider iris interlocutory decree, and also the preliminary defenses; and, were lie to find his ruling erroneous and the exceptions well founded, he can set aside and act on the excejrtions, sustaining or annulling them, as ire might think legal, even after evidence has been received and argument heard on the merits, should he not do so, his ruling referring' to the merits and his subsequent decision, on the same defenses and on the merits, can be brought, by appeal, to this Court, who will then render such judgment as the district judge might to have rendered, should he be found to have erred in making the reference complained of. State ex rel. Phlug vs. Judge Civil District Court, 35 A. 765.

T’he dist’.ict judge says in his return that he has heard evidence and argument of counsel, that, for reasons satisfactory to himself, he has decided that, part of the defense was well founded, but was not ready to’pass on-the other branch and that, in the interest of justice, he thought it preferable to refer the exceptions to the merits.

This shows clearly the exercise of a discretion vested in him bj^ law. It justifies his conduct, although it may not his.ruling which may nevertheless be incorrect and injurious to the interest of the parties. The injury, if any, can be repaired before or after appeal.

The application is refused with costs.


text:
    No. 8998.
    H. Dudley Coleman & Bro. vs. Their Creditors.
    Wliero a party applies for a respite under the insolvent laws of tho State and files his schedule aud tho usual order is rendered thereon, and a creditor representing that his dobtor is carrying on business as before and disposing of his property, prays for an order requiring the debtor to givo bond to cover his claim and as indemnity against tho alleged disposition of proporty pending tho proceedings for a respite, which order is granted, the samo can ho appealed from.
    This appeal is not premature because the appellant had failed to move for the rescinding of the order before taking tho same.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Brarnghn, Buck é Binkélspiel and IF. 0. Hart for Appellees.

      Jonas (fi Nixon for Appellants.
   The opinion of the Court was delivered by

Todd, J.

H. Dudley Coleman & Bro. filed on the 5th September, 1883, a petition for a respite and ,annexed thereto a statement of their assets and liabilities. The court rendered the usual order thereon. On the tenth of same month a supplemental petition and schedule were filed. On thfe 15th of September, the Germania National Bank, the. holder of two notes on which Coleman & Bro. were indorsers, reciting the proceeding for a respite and representing that their alleged debtors were carrying on their business as before and selling and disposing of their property, prayed that Coleman & Bro. be required to give a bond to cover the claim of the bank and that the property possessed by them be not disposed of pending the application for a respite.

An order was accordingly rendered requiring the execution of the bond, asked for, in five days from the service of the order.

From this order Coleman & Bro. appealed.

The appellee moves to dismiss the appeal on three grounds, substantially as follows:

1. That the order appealed from is not such as can work an irreparable injury.

2. That for this Court to determine whether the injury would or not be irreparable, would have to take original jurisdiction, there being no proceedings or testimony on the point in the record.

3. That the appeal was prematurely taken, there having been no motion to rescind the order for error.

1 st. We think, in view of the facts and proceedings appearing in the record, that an irreparable injury might ensue to the appellants from the order or interlocutory judgment in question. It is to be presumed that the appellants expect to derive some great advantage from the respite, and we can easily imagine a condition of affairs where such a relief would save them from hopeless financial ruin.

The order condemns them to give a bond for a large amount in favor of the appellee, who is'seeking to defeat their application for a respite. If they should be unable to give the bond and thus open the way for the pursuit of this creditor by regular action, it is easy to see that it would probably result in a failure to obtain the respite and a failure to extricate themselves from their embarrassments in the manner proposed. That the injury might prove irreparable viewing the order in this light, we think the appellants were entitled to appeal from it.

2d. The same record of proceedings upon which the lower judge acted is before us and we are only called upon to review the action of the judge in the light of‘these proceedings, not to determine, now, whether he did right or wrong in granting the order, but only to judge of the character of the order and whether appealable or not. This does not involve original jurisdiction. We fail to see force in tliis ground.

3d. If the order or decree in question was appealable, it was not incumbent on the appellants to try and have it rescinded, he was entitled to his appeal at once.

There are other grounds of dismissal discussed in the brief of counsel, but as they were not included in the motion to dismiss, we are not called on to consider them.

For these reasons the motion is denied.


text:
    No. 8668.
    Joseph E. Ealer vs. Widow Rufus Lodge et al.
    Eights of a creditor of the community cannot he defeated by an adjudication of the share of minors in the common property to the surviving spouse and by a special ^nortgage given in their favor by the latter, to secure their liquidated rights.
    Such creditor is entitled to be paid his claim, by preference, half by the widow who has accepted the community and half by the heirs, each for his virile share; the minors not to be bound for more than their share of inheritance.
    Simulation cannot be set up by the vendee against the reality of his purchase of real estate, after the validity of the same has been judicially asserted by him and recognized by the
    Want of consideration cannot be urged after a plea and proof of payment.
    Prescription does not run against notes which have been uninterruptedly sued upon via eje-cutiva and via ordinaria, although in one instance, before a court having no jurisdiction.
    A money judgment on appeal can be amended by allowing interest due, accidently omitted, without granting a rehearing. ,
    APPEAL from tbe Civil District Court for the Parish of Orleans. Lamms, J.

      W. S. Benedict and J. II. Spearing for Plaintiff and Appellant.

      M. M. Oohen for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action by the holder of several notes, originally furnished by Rufus Lodge, in settlement of the purchase price of certain real estate sold to him by Mrs. Spearing.

The suit is brought against Widow Rufus Lodge in her capacity of surviving spouse in community and of tutrix of two minors, the issue of her marriage with her deceased husband, and against the third child, who has attained the age of majority.

The plaintiff alleges that since the death of Rufus Lodge, proceedings were had in his succession, by which all the property belonging to Ms widow and his children and held in common, was adjudicated to the former, and that the rights of the minors, after being liquidated, were secured by special mortgage on the property of the widow and that adjudicated.

. He charges Hand and injury and prays for judgment for the amount remaining due on the notes as liquidated by a judgment, and for a recognition of the judicial mortgage resulting from the registry of such judgment anterior to the mortgage consented in favor of the minors.

The defenses are numerous and conflicting on the one hand, while the reality of the sale and the validity of the notes are attacked, payment and prescription are pleaded on the other.

The case was first tried by a jury who found for defendants. Dissatisfied with the verdict, the district judge granted a new trial. The jury again found for defendants and the judge refused, for reasons orally assigned, to set their verdict aside.

The evidence shows that, at the maturity of the notes, after the death of Rufus Lodge, executory proceedings were instituted to compel payment; that his widow, in her own right and as tutrix, pleading payment of the notes, applied for and obtained an injunction arresting-all proceedings; and, that on trial, judgment was rendered against them, from which no appeal was ever taken and which constitutes res judicata.

It also appears that the property was then seized and sold, but did not realize enough to pay the notes; that the amount realized ha.ving-been credited on the notes, a. suit was brought before the Second Distinct Court against the widow, as tutrix, administering the succession of Rufus Lodge, and that judgment was accordingly rendered in his favor.

Subsequently, on an attempt to execute this judgment, the defense was set úp that it was a nullity, as having been rendered by a court without jurisdiction, as, prior thereto, the -widow and heirs had been put in possession, and the defense prevailed.

The judgment rendered on that issue has never been revised on appeal and cannot be disturbed.

It is that judgment which was recorded and the registry of which the plaintiff claims has created, in his favor, a judicial mortgage affecting the property of the succession.

The proceedings had in the mortuoria for the adjudication, the liquidation of the rights of the minors and the execution of a special mortgage to secure them, even if not conducted and carried out to injure the plaintiff, cordd not have that effect.

Tlie plaintiff was nncl lias continued to be a creditor of the community. At the death of Rufus Lodge, the property comprising the mass of the community passed, by operation of law, half to his surviving wife and half to his children inheriting his share therein,'but burdened with the claims of the creditors of the community, one of whom was and still is the plaintiff.

No act of the widow, in her own name or as tutrix, and no act of the heirs, whether of age or not, could deprive the creditor of the community of his rights to be paid out of the common property in preference to any right of ownership which the widow or the heirs acquired thereto at the dissolution of the community.

The defense of prescription cannot be sustained. The plaintiff appears to have been restless during the nine years following the maturity of the notes, in seeking payment of the same. He first proceeded via executiva, but was kept in suspense by the injunction. He subsequently sued via ordinaria for the balance remaining due. If it be true that the court which recognized his claim had no jurisdiction, the fact-of the suit and the service of the citation were enough, effectually, to interrupt prescription. Since the judgment sustaining the plea to the jurisdiction, lie has brought the present suit which has been pending for more than three years.

We attach no imxiortance to the other defenses, set up as they were, raised and overruled in other proceedings.

The reality of the sale was'attacked by the assignees of Spearing & Co., in a bankruptcy proceeding before the United States District Court, in this city, in which it was sought to have it declared that the property did not belong to the succession of Rufus Lodge, but to the insolvents. The defense of the widow, in her name and as tutrix, was the validity of the sale. After trial, the bill was dismissed and title thus recognized in the succession of Lodge.

The answers to the interrogatories propounded to plaintiff and which remain uncontradicted, establish that he is the owner of the notes sued on and that the. original sale was real. Nothing shows that the defendants would have had any valid defense against the notes had they been sued on by Mrs. Spearing, who had sold the property to Rufus Lodge.

The plaintiff claims that he is entitled to a judgment in solido against the widow and heirs of Rufus Lodge. He is not entitled to such judgment and can recover only to the extent of one-half against the widow and one-lialf against the heirs, each for his virile share, the minors not to be bound for more than the amount of their inheritance.

It is, therefore, ordered and decreed that the verdict and judgment thereon he avoided, annulled and reversed; and,

It is now ordered and decreed that the plaintiff, Joseph E. Ealer, do have and recover the sum of four thousand six hundred and one dollars and seventeen cents ($4601 17) from the defendants, half from Hannah Jourdan, widow of Rufus .Lodge, regardless of the special mortgage in favor of her children, and half from the minors, Kate and Virginia Lodge and the heir of age, Olivia Lodge, jointly, each for her virile share, regardless of the adjudication ©f their half to their mother; the minors not to he liable to payment beyond the property inherited by them from their father, and the heir of age not to be liable for more than one-third of the half of the whole debt, recovered; the defendants to pay costs in both courts, in the same proportion.

Osr Application por a Rehearing.

The plaintiff asks an amendment of the decree herein rendered so as to be allowed interest from the date of the partial payments. He is entitled to that amendment, without being granted a rehearing.

It is, therefore, ordered that the decree herein be amended so as to recover eight per cent ‘per annum, interest on the amount allowed, $4601 17, from the 23d of March, 1875, till x>aid, and that thus amended the decree remain undisturbed.

Rehearing refused.