author: Levy, J.

text:
    No. 6402.
    Nicholas J. Hoey, Liquidator &c., vs. Samuel Henderson and Others, Liquidating Commissioners &c.
    Ho fundamental change in the charter of a corporation, -which vitally and radically affects fixed and established rights, can he forced by the acts of the majority upon an unwilling stockholder.
    REPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

    O. E. Schmidt for Plaintiff and Appellee.
    G. Fernandez and E. B. Kruttschnitt for Defendants and Appellants.
   The opinion of the Court was delivered by

Levy, J.

The plaintiff, liquidator of the late firm of C. E. Girardey & Co., brought suit against the defendants, liquidating commissioners of the New Orleans Insurance Association, in which he prayed for judgment against the said commissioners, individually in solido, and also in their capacity aforesaid, for the sum of fifteen hundred dollars with interest from judicial demand, which sum he claimed as the amount due the late firm of C. E. Girardey & Co. for its share of the profits realized by the late New Orleans Insurance Association from the time it went into operation up to the date of its dissolution, this in the event of said commissioners refusing or neglecting to comply with plaintiff’s demand in his petition, that they should file a full and final account, as liquidators, showing how they have settled the affairs of the Association and the net amount of profit to be distributed among the stockholders, and that they should be ordered to pay over to plaintiff the amount found due to his late firm upon the rendition of the account, plaintiff alleging that said firm was a stockholder in said Association to the extent of twenty shares, at one hundred dollars per share. As the grounds on which his action is based, plaintiff in Ms petition alleges, further, that the charter fixed the capital stock of the Association at $600,000 (with the right to increase it to $1,000,000), this stock being divided into shares of $100 each, to. be paid as follows, viz : By the subscribers furnishing their notes for the amount of their shares, payable on the 31st of December, 1871, said notes, however, to be reduced by a credit thereon of the net profits made by the Association in the first and second years, and in case said net profits should not have extinguished the notes at maturity, the stockholders were then to pay the balance due thereon. That the Association was organized on the 7th of August, 1869, and shortly thereafter commenced business, and' in the beginning of January, 1871, presented its first annual statement of business done up to the 31st of December, 1870, whereby its net profits were shown to be $293,324 86, and its assets, independent of the stook notes of the stockholders or subscribers, were stated to be $433,779 86 ; that at the same time the Board of Directors adopted and published a resolution declaring their intention to pay to the shareholders a dividend of fifty per cent cash, payable from the 15th of February, 1871, by a credit on the stock notes pro rata of the amount of premiums paid by each stockholder. That an amendment to the charter to the above effect was proposed, and this even being insufficient and inadequate to authorize this mode of distribution, a vote of the shareholders was had, whereby the Association was dissolved, liquidating commissioners were appointed and a new association organized. That Samuel Henderson, Jules Aldigé and D. Bouligny were appointed commissioners to liquidate and settle the affairs of the late association. Plaintiff further represents, that, in the year 1872, the stock note given by the said late firm was returned to them; that subsequently, viz.; in September, 1873, a demand was made by the firm on the commissioners for an account of their liquidation, and sometime thereafter the firm was informed by the commissioners that they considered the firm as having waived and abandoned its rights as a shareholder and all claims to any part of the profits or assets of the corporation. Plaintiff avers that no such abandonment and waiver has been made, but, on the contrary, that said firm is entitled to all the benefits resulting from its subscription. Defendants filed an exception, to the effect that the plaintiff, as liquidator of the firm of C. E. Girardey & Co., had not the right nor authority to institute the action or the capacity to stand in judgment therein. On the trial of this exception, evidence was introduced to show the authority and capacity of the plaintiff as liquidator, and the exception was overruled. There was no error in this ruling.

For answer to plaintiff’s petition, defendants, after denying, 'generally, the allegations thereof, averred that on or about the 22d of March, 1872, the firm of C. E. Girardey & Co. canceled their original subscription to the capital stock of the late New Orleans Insurance Association, accepted in return the original stock note subscribed by them and re-cieved settlement in full of all claims, interest and benefits which had accrued to them by reason of their said subscription; that by the said cancellation of their original subscription and the reception of their said stock note, as well as by the provisions of the charter, the said firm abandoned, forfeited and lost any and all rights in and to the capital stock of said New Orleans Association, together with any and all interests and benefits therein, and ceased to be stockholders.

The sole question, then, raised by the pleadings, and submitted for decision, is that of abandonment and forfeiture of the rights and interest of the said firm in the assets and profits of the Association.

The evidence in the record discloses that on the 23d of March, 1872, a date subsequent to the dissolution of the old Association, a receipt was given by J. H. O’Connor, who was then the book-keeper and cashier of the firm, as follows :

“Ree’d, New Orleans, March 23d, 1872, one stock note for 20 shares, canceled by mutual consent, and also $25.75 for rebate of 15 per cent, on $165.
(Signed) O. E. Gibabdey & Co.,
Per J. H. O’Oonnoe.”

It is contended that this receipt operated as a cancellation of the firm’s subscription to the capital stock, and thereby ceasing to be a stockholder, it was not entitled to share in the profits of the Association, but abandoned and forfeited such right, and in the instance recited in the receipt, accepted the rebate of fifteen per cent on certain premiums paid, which rebate was paid in lieu of any right or interest, or claim in the accrued profits to which, as a stockholder, it would have been entitled. It appears that the old Association, by the vote required under its charter, had, on the 12th of April, 1871, been dissolved, and a new corporation was established, into which the stockholders of the old had a right to enter, and into which many of them did enter. The right of dissolution under the terms and stipulations of the charter was clear ] and indisputable; but we cánnot recognize the right to transfer its shareholders without their assent to the new corporation. The capital stock of the old Association was represented by the notes of the stockholders in the amount of their several subscriptions, which notes were made payable on the 31st of December, 1871, and it was provided in the charter that the notes furnished as above provided for, shall be reduced by a credit thereon of the net profits made by the Association in the first and second year ; ” also, “ at the maturity of said notes, if the net profits of the Association for the first and second years have not extinguished the said notes, the stockholders shall pay the balance due thereon.” In Article V of the charter, we find the following: “ Any losses, or balance due, or losses sustained by the Association at the beginning of its operations, and when' the Association shall not have sufficient funds to cover the same, shall be paid pro rata by the stockholders.” At a meeting of the stockholders, held in November, 1870, an amendment to Sec. 2. of Art. IV of the Charter was adopted by a. vote of upwards of two-thirds of the stock represented in the meeting, as follows : “ The notes furnished, as above provided for, shall be reduced by a credit thereon of the net profits made by the association in the first and second year pro rata to the amount of earned, premiums that shall have been paid during that twne by each stockholder,” On January 2nd; 1871, in accordance with this amendment, the Board of Directors resolved to “ declare a dividend of fifty per cent, cash, payable on or after the 15th of February next, by credits on stock notes pro rata to the amount of earned premiums paid by each stockholder.” On the 7th of February, 1871, before the day fixed for payment of the aforesaid dividend, a document was signed by 612 stockolders, representing 9001 shares of stock, wherein it is set forth : “ That a number of stockholders, who have not effected insurances and paid premiums, in utter disregard of the spirit which presided at the creation of the corporation, but which, accidentally, is not fully expressed in the charter, insist upon an undue participation in the profits realized by the corporation on an equal footing with those stockholders who have effected insurances and paid premiums, and that such unjust pretensions are ominous of dreadful complications and of incalculable injuries to the parties concerned, do now appoint Mr. Chas. Oavaroc, giving him authority to vote, at any called meeting, or otherwise, for them and in their name, for the immediate dissolution of the Association and the liquidation of its affairs, and to authorize the present Board of Directors to take the steps necessary to that, end, under the provisions of Article XI of the charter, and on such basis as they may deem advisable in the common interest to adopt, the said Board to continue in existence until the final winding up of said liquidation.”

On the 12th of April, 1871, a general meeting was held, at which, by a vote representing 9001 shares of the capital stock, out of 10,000 (the whole number of shares), the dissolution and immediate liquidation of the affairs of the Association were ordered. On the 14th of April, 1871, Messrs. Samuel Henderson, Jules Aldigé and D. Bouligny were duly appointed Liquidating Commissioners.

The first point for our consideration is : Had the majority of two-thirds of the stockholders the right to alter the original charter of the association, as affected by the amendment above recited, whereby the rights of the stockholders could, without their consent, be impaired or altered to their prejudice ; or does such amendment and alteration fundamentally change a contract, under which stockholders had acquired fixed rights, of which they could not be deprived without their consent, given at the time or by subsequent ratification ?

We think the amendment was a fundamental change of the original •charter, and could have no effect as to the rights of the stockholders who did not give their assent to such change. The firm of Girardey & Go. did not assent thereto. The terms and conditions under which it subscribed to the stock and became members of the corporation, and by which it became liable for the amount of its subscription, and entitled to a participation in the profits, are clearly set forth .in article 4 of the charter, and constituted a contract. The proposed change virtually and radically affects fixed and established rights, and could not be forced upon an unwilling stockholder. This principle is declared in 3 Caldwéll .(Tenn.) B. 488, where the court held: “ A charter of a corporation is, after acceptance by the persons incorporated, an inviolable contract between the corporation, as it is also between the corporation and stockholders. Neither can disregard its obligations, or alter its essential franchises, without the unanimous consent of the stockholdersand “if the alterations proposed in the charter of a private corporation by legislative enactment are merely auxiliary and not fundamental, they may be accepted by a majority of the corporators; and when so assented to, they are binding on the whole; but it is otherwise when the alterations are fundamental, radical, and vital, the acceptance must then be unanimous.”

In 2 Metcalf (Ky.) B. 314: “ An amendment which materially and fundamentally changes the responsibilities and duties of the company, or which superadds an entirely new enterprise to that which was originally contemplated, may be resisted by the stockholders, unless such amendments are provided for in the charter itself, or in the general laws of the State in force at the time the act of incorporation was passed.” See, .also, 11 Ga. 438; 11 Mich. 155 ; 8 Mass. 268 ; 9 Ill. 177.

In this case the plaintiff’s firm entered into a contract, whereby he furnished his note, rendered himself liable therefor, and this with the express agreement on the part of all the corporators, that the net profits profits of the corporation, made during the first and second years, of its operations, should be in a certain and clearly defined manner apportioned between them, by application thereof to the notes furnished by the stockholder corporators. The 'proposed change, whereby these profits were to be divided pro rata among the stockholders, as to the amounts of earned premiums paid by them respectively, was a material, essential, and fundamental alteration and change, violative of the contract between all the members of the corporation.

The subsequent dissolution of the corporation was regularly effected in accordance with the mode prescribed in the charter itself. The ne.t profits of the association, accruing from its organization up to the date' of its, dissolution, became then distributable among the stockholders. Those who did not assent to the transfer of the assets to the new association became entitled to receive their proportion of such profits, and the dissolution taking place before the maturity of their notes, and no further liability existing thereon, as shown by the statement of its affairs, they were entitled to the cancellation and return of their notes.

But it is contended by the defendants that the firm of Girardey & Co. canceled its original subscription to the capital stock of the late New Orleahs Association ; accepted in return their stock note, and received settlement in full of all claims, interest and benefits, which had accrued to them, and thereby abandoned, forfeited and lost all rights, interest and benefit to which they may have been entitled.

It appears from the evidence, that J. H. O’Connor, the book-keeper and cashier of Girardey & Co., on the 23rd of March, 1872, called at the-office of the Insurance Associadon, on business other than that connected with the stock note, or referring to the matters involved in this-litigation. The subject of the cancellation of the stock note was brought-forward by the Secretary of the Association, who asked O’Connor what the firm of Girardey & Co. would do about their subscription, and if they were going to cancel it ? O’Connor replied that he thought it better to cancel it. Whereupon'the following receipt was given :

“Received, New Orleans, March 23d, 1872, one stock note for twenty shares, canceled by mutual consent, and also $25.75 for rebate of fifteen-per cent on $165.
(Signed): 0. E. Girakdby &-Co.,
Per J. H. O’Connor.”

On this receipt defendants rely in support of their defense of abandonment and forfeiture by the firm of Girardey & Co.

There is no proof of any special authority in O’Connor to enter into any such agreement as is claimed, and we do not think he was competent to bind the firm without such power or authority. The mere receipt of the note and its cancellation were rights to which that firm was entitled, and the receipt of the.$25.75, for rebate of fifteen per cent on premiums paid by it, cannot be regarded by us under the facts and circumstances of the case, as being accepted by O’Connor in satisfaction or full settlement of Girardey & Co’s claims as stockholders of the-old Association. Their rights were fixed and known to the Association, if not fully known as to the amount by Girardey & Co., and we cannot, under the evidence of O’Connor, construe the receipt of this comparatively insignificant amount as being intended by O’Connor, even if he had authority to act in. the premises, as a settlement of the whole claim. O’Connor, in his testimony, says : “I receipted for the note simply, but really I don’t think I was very much inclined to give any opinion as to its merits. I was not acquainted with them, and therefore I am not very apt to have given any opinion. I got this money and the note, and I took it to the office of C. E. Girardey & Co., and mentioned the circumstance to Mr. Girardey, and I remember his expressing dissatisfaction at the arrangement; he said he would not comply with it, and sent me to inform Mr. Lanaux of that fact. I went to Mr. Lanaux, and he referred me to Mr. Cavaroc, the President of both the original and new companies, to whom witness related the dissatisfaction with the arrangement; Mr. Cavaroc said he would inquire into it. I certainly didn’t suppose that by a mere receipt for the note, it canceled any of the rights of C. E. Girardey & Co. I am satisfied Mr. Girardey didn’t think so.” Mr. Hoey testifies (and he was a member of the firm), that, “no member of his firm ever, to his knowledge, consented to the annulment of the subscription,” and that when the receipt was shown to him.at the company’s office, he objected to the authority of Mr. O’Connor to sign it. Thus we think there is no proof of the ratification, either express, implied, or by silence and inaction, of the act of O’Con-nor, but on the contrary, it seems to us there was a prompt disavowal and effective denial of any authority in O’Connor to bind the firm in the matter of the alleged cancellation of the subscription and abandonment of the rights of the firm. Under the views which we have expressed, we think the plaintiff is entitled to recover. The judgment appealed from is therefore affirmed with costs.

The Chief Justice recuses himself in this case, having been consulted at the time as counsel in the subject-matter involved.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 6802.
    City of New Orleans vs. Auguste Mannessier.
    An ice-oream confectioner is not a manufacturer in the sense of tho law which exempts the latter from, taxation.
    ^PPEAL from the First Justice’s Court, parish of Orleans. Childress,
    Sam’l P. Blanc, Assistant City Attorney, for Plaintiff and Appellee.
    E. Michinard for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Defendant appeals from the judgment of the lower court condemning him to pay a license tax of five dollars, for the year 1877, on his business as a peddler of ice-cream on the streets of the city.

Defendant resists the payment of the license on the ground that the sale of articles of one’s own manufacture does not subject the seller to the payment of a license-tax to the city, and that the ordinance is illegal in that respect. As the case originated in the year 1877, it must be decided under the constitution and laws then in force, and we must, therefore, ignore all arguments of counsel predicated under the requirements of the constitution of 1879.

Defendant contends that he is a manufacturer, and that as such, and selling goods or articles manufactured by himself, he is exempt from the payment of a license-tax under the operation of articles 2447 and 8344 of the Revised Statutes of 1870, prohibiting any municipal corporation in this State from levying any tax on persons engaged in selling articles of their own manufacture, manufactured in this State.

We cannot assent to the proposition that a person making and selling ice-cream is a manufacturer in the sense of the law, or in any other sense of the word. The attempt to magnify a confectionery, which is defendant’s business, into a manufacture, must fail. We are told that any one seeing the steam engine, complicated apparatus, and large force needed to produce defendant’s goods, would at once conclude that he is a manufacturer.

With as much force it might be said that any one visiting the mammoth kitchen of the Grand Union Hotel at Saratoga, together with their myriads of employees, and their colossal apparatus, would at once magnify the cooks and pastrymen into manufacturers.

Defendant’s position is absolutely untenable, and the judgment of the lower court is, therefore, affirmed with costs.


author: Todd, J. Bermudez, C. J.

text:
    No. 6397.
    James Stafford vs. W. P. Harper, Sheriff, et al. James M. Weymouth vs. W. P. Harper, Sheriff, et al.
    An Appeal shall not be dismissed because documents offered, but not vntroduced in evidence by the Appellee, have not been transcribed in the Hecord.
    The late Second. District Court for the Parish of Orleans had jurisdiction of probate causes in which the amount in dispute exceeded five hundred dollars. The limitation to that amount applied, under the then existing laws, only to the parish courts in the country parishes.
    The principal and surety should be sued, when legally practicable, in the same action.
    PPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

    James B. Guthrie and T. A. Bartlette for Plaintiffs and Appellees.
    W. S. Benedict for Defendant and Appellant.
   Oh Motion to Dismiss Appeal.

The opinion of the Oourt was delivered by

Todd, J.

This motion is made by the plaintiff and appellee on grounds substantially as follows :

That he (plaintiff) had offered in evidence on the trial of the cause in the court below certain records pertaining to proceedings in another case, which records were not copied into the transcript.

The record discloses that this evidence was offered by the plaintiff, but was not produced and filed by him during or after the trial. It was his duty to have done so. The appellant endeavored by a writ of cer-tiorari to supply this missing evidence, but plaintiff complains that it has not been done in the return made to this writ, and upon this claims the right to have the appeal dismissed. We do not see that the appellant is in fault. On the contrary, the omission complained of is directly attributable to the appellee himself, and as was well said by this Oourt in a case presenting a similar state of fact, “it would be unjust to permit him, appellee, to derive any advantage from a state of things he was instrumental in producing. 4 A. 276. See, also, 13 L. 82 ; 4 R. 325 ; 10 R. 387 ; 1 A. 40, 276.

The absence of this evidence compels us to remand the case.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be set aside, and that this case be remanded to the lower court for a new trial, and to be proceeded with according to law, appellee to pay costs of appeal.

On REHEARING.

The opinion of the Oourt was delivered by

Bermudez, C. J.

The plaintiff and appellee has moved the dismissal of the appeal herein, on the ground of the incompleteness of the transcript.

He complains that certain documents and proceedings, which he mentions, and which, he says, were offered in evidence by him, are not included in the transcript.

We declined to dismiss the appeal, and, with a view to afford him an opportunity to introduce and file in evidence the documents and proceedings which appear to have been offered, we reversed the judgment of the lower court and remanded the case.

With the decree so made, the plaintiff found fault, claiming that the only order that could have been made, would have been, either to sustain the motion and dismiss the appeal, or to overrule the motion and permit a trial on the merits on the transcript as it stands.

A rehearing was properly granted him. Since then, on defendant’s application, an order, in the nature of a certiorari, was issued to the clerk of the lower court to complete the transcript. The return of that officer, who is the same who certified the transcript as containing “ all the proceedings had, all the testimony and evidence adduced, and all the documents filed ” in the case, shows that he and his deputies have taken pains to ascertain in what respect the transcript is deficient, and that unable to do so, ho confirms his previous attestation, with the statement that no document whatever was filed other than those embraced in the transcript.

The clerk had a right to justify himself in this manner.

From the note of evidence, it appears that the plaintiff has offered in evidence a “ record (in the lower court), and all proceedings (in the case stated), the writs of -fieri facias issued therein, the provisional seizure, the return of the sheriff thereon, and all orders of the court rendered in that suit, and, in connection with that, also all papers and documents in the sheriff’s office, books, etc., or connected therewith ; ” but it does not appear from the entry that the plaintiff was allowed to introduce the same in evidence. One thing it is to offer, and another to introduce, evidence. Either litigant can offer, but it is not until after the offer has been made and not resisted, or permitted, that the evidence is introduced, and that the documents are filed. Even if the terms were convertible, it does not appear that the plaintiff has produced and caused to be filed the evidence offered.

Litigants, by such loose practice and entries on the note of evidence, have no right to expect that the court of the first instance will undertake to ascertain what was or not offered or introduced in evidence, either by searching for records in the clerk’s office or inspecting “ papers, documents or books in the sheriff’s office.” Neither can they expect from the clerks, who are ministerial officers only, who have no judgment to exercise, that they will assume the responsibility of determining what was or not offered or introduced in evidence.

It is not enough for parties to offer, they should introduce, in evidence. The offer precedes the introduction, with which the filing must be simultaneous. Litigants who introduce written evidence offered, should produce it and then see that it is properly noted and filed. 6 A. 162; 7 A. 65; 30 A. 833. The court has no authority in determining cases to consider, as in evidence, documents not introduced and not described and filed. Clerks have no right to include in a transcript such evidence which was not produced and filed. The entries in this case are qui,te irregular.

If the transcript be incomplete, it is so by the fault of the appellees and not by that of the appellant. We are at a loss to see how the appellee himself, under the note of evidence in the record, could force the clerk of the lower -court to include in the transcript the documents to which he refers as not embraced in it.

The previous decree herein is rescinded.

It is now ordered that the motion to dismiss the appeal be overruled with costs.

On the Meeits.

This is a suit in damages against a sheriff and his deputies for alleged tortious acts. The action was brought in this city before a court of ordinary jurisdiction.

The record does not show whether Harper, the sheriff, was living at the institution of the suit. N o citation appears to have been served' upon, or even issued to, him.

One of the sureties, R. E. Rivers, was reached by the process of the court.

The widow of Harper, in her capacity as executrix of the will of her husband, and Rivers appeared, denying any liability, and asked to be dismissed with costs.

The case was tried, and a judgment was rendered in favor of the plaintiff for a portion of his claim. From such judgment the executrix and surety have appealed.

The former claims here that the lower court had no jurisdiction over the case, as a suit on a money claim against a succession is a probate matter: the latter insists here that no recovery can be had against him, unless the property of the principal shall have been discussed.

I.

If Harper was dead at the institution of this suit, the Fifth District Court had no jurisdiction over the matter. C. P. 164, 924, 986 ; Art. 83. Const, of 1868. If he died since the institution of the suit, the case should have been transferred to the court having jurisdiction of the settlement of the succession. 3 N. S. 522; 11 L. 360; 3 R. 92 ; 13 L. 378 ; 5 R. 2 ; 6 R. 44 ; 6 A. 793 ; 4 A. 248.

The plaintiff’s reply is unwholesome, that the Fifth District Court had jurisdiction because the suit is for three thousand ($3000) dollars, and that the jurisdiction of probate courts on claims of money brought against succession representatives is limited to suits in which the amount involved does not exceed five hundred ($500) dollars. In support of that theory he points to articles C. P. 986 and 924, ¡J13, which do not justify it.

By reference to the Code of Practice, such as it existed prior to the adoption of the Constitution of 1868, it will be seen that the first article refers to the institution of suits on unliquidated money claims for whatever amount before the court of probates, and that the paragraph of the article last referred to, contains no restriction as to the amount.

The words “ or before the district court, according to the amount involved,” found in article 986 of the present Code of Practice, and the proviso found in the 13th paragraph of article 924 of the same present Code, are innovations inserted in the Code of Practice, as revised in 1870, in furtherance of the constitution and the laws then in force.

By article 87 of that constitution, parish courts for the country parishes were created. They were vested with probate powers. They were to have no jurisdiction in a suit in which the amount claimed was over five hundred ($500) dollars, even where a succession was a party. Acts of 1868, p. 60 ; C. P. 127, 128, 454; 21 A. 478, 610, 616 ; 22 A. 81, 101, 593 ; 24 A. 127, 206, 288 ; 27 A. 411, 366.

By article 83 of that constitution, district courts were created for the parish of Orleans. The Second District Court was clothed with exclusive probate powers ; the other district courts, among which the Fifth, were to have exclusive jurisdiction over all civil cases, e*cepí pro&aie, so that the Second District Court had exclusive probate, and the other courts had exclusive civil, jurisdiction. The Second Court could not exercise civil, and the other courts could not exercise probate j urisdiction.

Both the parish courts and and the Second District Court were, therefore, vested with probate jurisdiction. The limitation of their powers as to amounts claimed, applied exclusively to the parish courts, and in no manner to the Second District Court, touching which there was special constitutional and statutory provision, and which was to be ruled and governed by the law as it previously stood, unimpaired as it was by the Constitution of 1868. The restrictions found in the Code of Practice as to amounts apply to the parish courts only. C. P. 164; Ballen vs. Andrews, 10 L. 218 ; Smith vs. Adams, 14 A. 409 ; State vs. Judge, 20 A. 466 : Champlin vs Bakewell, 21 A. 354 ; Lauve vs. Van Horn, 25 A. 446 ; Succession of Haggerty, 28 A. 87 ; Boutte’s case, 30 A. 181 ; and authorities herein before just quoted.

The Fifth District Court had, therefore, no jurisdiction over the case, in so far as the succession of Harper is concerned. The question of jurisdiction was not raised below. It is here presented. We could notice it proprio motu.

II.

Whatever may be the rights of the surety, Rivers, under section 354, of the Revised Statutes, which he invokes as shielding him, and which provides that no sale of the property of sureties shall be made until the property of the principal shall be discussed, it cannot be insisted upon absolutely that, under the circumstances of this case, the surety cannot be sued and that, on an executory judgment, his property cannot be levied upon to satisfy it.

It is not always and under any circumstance that the property of the principal can be required to be first discussed by the creditor, of both principal and surety. R. C. C. 3046, 3047 ; 27 A. 324; 29 A. 843 ; 30 A. 486 Pothier, Obl. 410.

The principal and surety, in a case like this, can, and should be, when practicable, legally sued in one and the same action, as the claim springs from the same source and the parties are bound to the same extent, the surety having less means of defense, however, than the principal. R. C. C.3211, 2098, 3060 ; Troplong, Cont. p. 435, No. 494 ; p. 417, No. 470.

The lower court had jurisdiction over the suit as concerns the defendant, Rivers, who could not be sued before the probate court, and the defense made by him in this court is inadmissible under the pleadings and the circumstances of the case.

III.

We have looked into the record attentively to ascertain whether justice can be done to the parties, and find it in such condition that we cannot now udertake that responsibility. The interests of all concerned can be better protected and served by a new trial of the issues between them.

As the only certain date we have of Harper’s death is that of the appearance of his widow as executrix, we will not dismiss the suit as to his succession. The Second and Fifth District Courts for the parish of Orleans having ceased to exist, and being replaced by the Civil District Court for the same parish, the case, both as to Harper’s succession and as to defendant Rivers, must be referred for another trial to the last named court.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be reversed, that this case be remanded to be further proceeded with by the Civil District Court for the parish of Orleans; plaintiff to pay costs in both courts from the filing of the answers in the case.


text:
    No. 6606.
    Empire Parish Packet Company vs. Union Insurance Company.
    . Breach "by the insured of the -warranties stipulated in a policy of marine insurance: the insurer discharged by reason thereof.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.
    E. Howard McCaleb, J. S. Whitaker and W. S. Benedict for Plaintiffs and Appellants.

      Kennedy & Ohiapella for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs sue the defendants for f5340 under a policy of insurance issued by defendants on a steamboat named the “ Empire,” owned by plaintiffs, which boat was sunk at her moorings, in the port of New Orleans, on November 17th, 1874, and proved a total loss.

Defendants admit the execution of the policy, and the loss of the steamer, but resist payment on the following grounds of defense :

First. The captain was incompetent by reason of habits of intemperance.

Second. That there was only one watchman, who was incompetent.

Third. That the steamboat was overloaded, and sank in calm weather.

Fourth. The boat did not have proper machinery.

Fifth. That the boat was improperly managed in this port, her cargo not being properly stowed.

The judge of the District Court rendered judgment in favor of defendants rejecting plaintiffs’ demand, and they have appealed.

The policy was executed on the 3d of October, 1874, and contains the usual clauses and stipulations. Among other warranties assumed by the assured, we find the following:

' “ That the steamer shall be navigated in strict compliance with the provisions of any and all acts of Congress regulating or pertaining to the navigation or management of vessels propelled, in whole or in part, by steam.”

“ And free from any loss or damage occasioned ” * * * “by the negligence or misoonduct of those in charge of the steamboat at or before the time of any accident or disaster.”

' The judge of the lower court, after reviewing the evidence in a very able and impartial manner, concluded that plaintiffs had- violated both stipulations contained in this warranty, and discharged the insurer. After a careful review of the evidence and of the briefs of counsel, we reach the same conclusion.

The record, in our opinion, establishes the following facts:

The steamer Empire, on a trip from the parish of Plaquemine, reached the city on the 17th of November, 1874, at twenty minutes past twelve o’clock in the night, with a full list of passengers, and a very heavy and unusual load or cargo of sugar, molasses and rice.

While her registered tonage whs 203 60-100 tons, she carried on that trip 228 tons, which, in our opinion, was an overload ; this fact was notioed by some of her passengers, several of whom had, in consequence of such an injudicious load, and alarmed at the sight of the water, whioh swept over the steamer’s guards, spoken of leaving the boat be-. fore she reached the city. But being assured by the captain and other officers that the steamer was safe, they continued their journey on the boat. Notwithstanding rain and wind, and the lateness of the hour, several passengers, impelled by the danger which they foresaw, refused to sleep on board, and, fortunately, left for their homes. One of them, who had on board his wife, four children and two servants, failing at first to find the necessary means of transportation, had allowed his family to retire, but considering that there was danger, he had concluded to sit up and keep watch, when a passing cab-man, thrown in his way by the hand of Providence, was engaged at once, and with his family the passenger left the ill-fated steamer, notwithstanding the assurances of safety given by the captain, and his solicitations to induce him to remain. While danger was thus apparent, even tó a passenger without experience in navigation, we see this captain allow his engineers to retire, tolerate his clerk in hastily leaving the boat before her stages .were launched, and allow all hands to either leave the boat or retire to bed, destined to watery graves, save and except a sleepy watchman, who takes his seat on the upper deck, when the danger was below, and who admits to have visited the hold but once from the time of the landing up to the moment of the disaster.

Under the circumstances, it would be difficult to conceive of a case of more absolute negligence or mismanagement on the part of an officer in charge of a steamboat. The attempt to show compliance with the law of Congress, requiring all steamers of one thousand tons and under to have constantly two watchmen on duty, by proving the performances of that duty by a cabin boy or waiter, is too flimsy to require serious consideration or refutation at our hands. The conduct of the captain and owners, in this particular, is a direct and unjustifiable violation of the first stipulation in the warranty above quoted.

The omission of the captain in not keeping up fires ready to work the pumps in case of emergency, in allowing the boat, whose freight was badly stowed, causing a listing of the boat to one side, without discharging part of the cargo, trimming the boat, and exposing her to take in water, as it did happen, and retiring to bed under a sense of false security, are acts which satisfy us of his incompetency or misconduct, and therefore violate the second stipulation of the above warranty.

It is a well-settled principle of jurisprudence that a breach of warranty in a policy of insurance, by the assured, as shown by the record, discharges the insurer. 6 N. S. 51, and authorities there quoted.

In order to rebut the presumption of unseaworthiness of their steamer, raised by the fact of her rapid sinking and total loss without apparent cause, plaintiffs rely upon abstract theories to show possible causes of the disaster. But the evidence does not support or bear out their theories. Even if sustained, their theory would, at most, show that a well-built, staunch steamer, of only two years’ service, recently caulked and otherwise repaired, well provided with all necessary machinery and other appliances, not overloaded., well trimmed, commanded by competent and experienced officers, reaches the port, is thoroughly examined by her officers, who find nothing suspicious about her, see that she is well fastened to shore, and have her watched by competent watchmen, and that by the single action of the waves or swells caused by the wind and by passing steamers, her riggers are torn or separated from her hull, she suddenly fills with water and sinks out of sight in a few minutes. This theory is flatly contradicted by the evidence.

On the other hand, defendants contend that the boat was overloaded, her cargo badly trimmed, that, contrary to law, reason and custom, the boat is landed and left in such condition, without any effort to relieve her, her engineers leave or retire to rest, her fires are allowed to go down, an only watchman is placed on duty to protect the lives and the property on board, and he sits up on the upper deck, visits the hold but once, and the hatches are left open ; and thus the disaster becomes inevitable. This theory is more rational, it is supported by the evidence, and entitles the insurer to his discharge.

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


author: Todd, J.

text:
    No. 7891.
    State of Louisiana vs. Louis Cooper.
    In a trial for murder, the accused, after proving that the deceased liad threatened his life should not he allowed to prove that they had a fight the day before the hilling, for the purpose of showing to the jury the state of mind of the deceased towards him and the apprehensions he had that Ms life was exposed and the threats against it would he carried into execution.
    APPEAL from the Ninth Judicial District Court, Rapides parish. Blackman, J.
    E. G-. Hunter, District Attorney, and J. C. Egan, Attorney-General, for the State.
    M. Ryan, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted and tried for murder, and was convicted of manslaughter, and from the sentence of ten years’ imprisonment at hard labor in the penitentiary he has appealed.

We have been favored with no oral argument nor brief by the counsel of the accused, but, from an examination of the record, we find that the only matter for our consideration is the ruling of the judge a quo touching the admissibility of certain evidence offered by the defendant on the trial below, as presented by a bill of exceptions taken to such ruling. The bill of exceptions is as follows :

“ Be it remembered, that on the trial of this cause, the defendant, Louis Cooper, having established by the testimony of Moses Rogers and one Cronan, that the deceased threatened to kill the accused on sight; that he. would kill him before he slept; that these threats were made on the day on which the deceased was killed, and communicated to the defendant. The prisoner then offered to prove, by the said witnesses, that the deceased and the defendant had a fight on the day before the killing in which defendant was badly hurt, so as'to show to the jury the motives which actuated the deceased and the state of mind of deceased towards the accused and the apprehensions the prisoner entertained of deceased putting his threats into execution. The court refused to admit the testimony for the following reasons :

“ I did not refuse the defendant the right to show that there was a previous difficulty, to wit: the day before the homicide, but refused to admit evidence as to the particulars of that difficulty, as it was not a part of or connected with the res gestee. The State had proved the previous difficulty to show malice on the part of the accused, but no particulars connected with it. ”

Had the testimony been offered by the defendant to rebut the presumption of malice", sought to be established by the State, by proof of the previous difficulty, inasmuch as such proof had been made by the State for that avowed purpose, it would certainly have been competent for the defendant to have shown the particulars of that difficulty with a view of showing his justification and his freedom from malice. But a reference to the bill shows that this testimony was not offered for this purpose, but an entirely different one. And were it otherwise, we would not be warranted in remanding the case for another trial to enable the defendant, by such evidence, to rebut the presumption of malice, inasmuch as the jury, by their verdict of manslaughter, acquitted him of being instigated by malice, since the offense of which he was found guilty implies the absence of malice ; and, therefore, in a trial for manslaughter — and it is on that charge alone that the accused could be tried — the evidence would be inadmissible for the purpose mentioned. The testimony was not admissible for the purposes for which it was offered, as stated in the bill.

Evidence had already been admitted of the previous difficulty the day before. The defendant had also been permitted to prove the previous threats on the part of the deceased. Now the testimony rejected) was not offered to prove some act at the time of the homicide on the part oí the deceased going to show that he, the deceased, intended to carry his threats into execution. And it is only the-proof of some such positive act, tending to show such intention, or reasonably calculated to create the belief of such intention in the mind of the accused, that would justify the defendant in taking the life of the deceased. The testimony in question had no such object or purpose in view, and was not offered to prove any such act, and, therefore, was inadmissible, being wholly irrelevant. The right to resort to force, on the principle of self-defence, does not arise while the apprehended mischief exists in machination only.

People vs. McCloud, 1 Hill 377.

State vs. Bradley, 6 A. 554.

Nor does the mere belief that a person has formed a design to take the life of another justify such other in taking his life. Without some positive act on his part to excuse or justify killing him, it would amount to murder.

4 Iredell, 409.

1 East, 271.

We find no error in the proceedings.

The judgment of the lower.Court is, therefore, affirmed with costs.


text:
    No. 7890.
    State of Louisiana vs. Samuel Trivas, alias Samuel Fled.
    The physical condition of the deceased, as a test of the admissibility of his dying declarations, may be revised by this Court, in a trial for murder. State vs. Spencer, 30 An. 362, and State rs. Daniel, 31 An. 91, affirmed.
    It involve» a question of law blended-with, a question oí fact. State vs. Nelson, 32 An. 845, affirmed.
    The dying declarations are not the less admissible because made in answer to questions asVed by the wife and physician of the- deceased.
    The charge of the judge that, the State having proved the tilling, malice should be presumed, is erroneous and entitles the accused to a new trial. State vs. Swayze, 30 An. 1323, affirmed.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Blackman, J.
    E. G-. Hunter, District Attorney, and J. C. Egan, Attorney General, for the State.
    First — Dying declarations are matters of fact, over which this Court has no jurisdiction.
    Second — An exception to the ruling of the Court will not prevail where the accused'has suffered no injury thereby.
    Third — Malice is presumed from willful killing.

      H. L. Daigre ior Defendant and Appellant.
   The opinion of the Oonrt was delivered by

Poché, J.

From a verdict finding him guilty of murder, and a judgment of the Court, sentencing him to death, the accused has taken this appeal, and relies for relief on five bills of exceptions, which are in ■substance as follows:

First — “ The accused objected to the testimony of Dr. S. G. Compton, and Mrs. Mary Hanna, as laying the basis for the introduction of the dying declarations of the deceased, on the ground that it was not the dying declarations of the deceased, but merely answers to interrogatories propounded to deceased, by said DA Compton and said Mrs. Hanna, and the answers to which questions are irrelevant and opinions of the deceased, and would not be admitted in evidence if he were a witness on the stand.”

Second — “ The accused in open Court requested the Court to have taken down in writing, by the clerk of the Court, all the testimony of Mrs. Mary Hanna and Dr. S. G. Compton, being then and there admitted as the dying declarations of the deceased, for the purpose of making it a part of a bill of exception, all of which the Court refused, etc.”

Third — “ The accused objected to that part of the dying declaration as related by Mrs. Hanna, which stated that her husband said that ‘ Sam shot him, and that it was a willful murder.’ On the ground that it was merely the opinion of the deceased, and could not have been admitted in evidence in case he had been a witness on the stand.”

Fourth — “ Counsel for the accused asked the judge to charge the jury in writing: That intoxication may render a person incapable of forming or entertaining the intention of committing an assault with intent to commit murder.”

Fifth — •“ That while the judge was charging the jury, he stated that it was only necessary for the State to prove : First, the killing, second, that the prisoner at the bar was the person who did it; and that when this was done, the law presumed malice.

We have not been favored with a brief, by counsel for the accused, who has left upon us the labor and responsibility of doing justice to his client, without assistance on his part, to precisely understand the meaning of the language used in some of the points raised by him; or to appreciate the force and effect of some of his objections, which are vaguely stated in his bills.

1st. The .evidence objected to in the first bill, was properly admitted to show the condition of the deceased at, or immediately preceding, the time at which he made statements touching the wounds which' he had received at the hands of the accused. The Attorney General, urges, in his brief, that the investigation into the physical condition of the deceased, as a test of the admissibility in evidence of his statements as dying declarations, is a question of fact, and not subject to our revision as an appellate Court vested, in criminal cases, with jurisdiction over questions of law only; and he quotes two decisions which bear him out in his assertion. 14 A. 651; 18 A. 340. But we cannot adopt this doctrine, which was recently overruled by our immediate predecessors. 30 A. 362 ; 31 A. 91. See Greenleaf, vol. 1, Art. 160.

The statements of the deceased are to be received in evidence, when made by him under the belief of approaching death, under the theory7 that the party would not die with a falsehood upon his lips. The. test of the admissibility of the evidence is in the belief of the deceased that death is fast approaching; that he is, in other words, under a sense of impending dissolution, and his statements concerning the res gestae, under the circumstances, are to be accredited under the law, as would his sworn testimony in ordinary cases. The question, therefore, as to whether the circumstances under which his statements are made, should entitle them to be received as though they were clothed with the sanctity of an oath, as with ordinary witnesses, is one of law blended with facts.

The fact is, the condition of the deceased as to his chances of recovery from the wounds received; and the question of law is, whether his condition, as shown by the evidence, is such as to create upon his mind the belief of approaching death, under the effect of which his statements are to be received as evidence. The solution of the problem is within the exclusive province of the Oourt, and not of the jury, and is therefore subject to our revision. Our power to revise questions of law blended with facts, although they do not bear directly upon the guilt or innocence of the accused, has been carefully reviewed by us in the case of the State vs. Nelson, 32 A. 845, and we consider the question as finally settled. In this case, the evidence elicited as the basis for the introduction of his dying declarations, shows that the deceased stated that he was going to die, that he was resigned to die, that this was his last, that he asked and obtained religious consolations, as a preparation for death, and gave instructions as to- his worldly affairs, to be carried out after his death ; and-between these incidents and his death, which ensued an hour and a half later, he made the declarations which were admitted in evidence. It would be difficult to conceive of a case more thoroughly covered by the rule. There is no force in the objection that the declarations were made in answer to questions propounded to the deceased by his wife and by his physician. Greenleaf, vol. 1, Art. 159.

2d. The second bill retained by the accused refers to the refusal of the District Judge to cause to be reduced to writing the whole evidence of the two witnesses who testified in connection with the dying declarations of the deceased. The judge had caused to be written that part of the testimony which was intended as a basis for the introduction of the •statements of Hanna, the victim, and nothing more was necessary. The dying declarations, when once admitted, were within the exclusive province of the jury, who were the sole judges of their effect, as bearing upon the guilt or innocence of the accused.

3d. The statement of this proposition is an answer to the objection embodied in the third bill of exceptions, to the refusal of the judge to •strike out a, part of the dying declaration as recited by the witnesses, on the ground that the objectionable part was an expression of opinion by the deceased.

The declaration of the deceased, like the confession of an accused, must be admitted in its entirety, and its effect must be left to the jury.

4th. In his fourth bill, the accused complains of the judge’s refusal to charge the jury in writing: “That intoxication may render a person incapable of forming or entertaining the intention of committing an assault with intent to commit murder.” The judge answers that he had already instructed the jury on that point, charging, in substance, that the intoxication of the accused could mitigate the homicide to manslaughter, if such intoxication, in the opinion of the jury, was of such a character as to incapacitate the accused from forming a deliberate intention to kill the deceased, unless the evidence would satisfy the jury that he had intoxicated himself for the purpose of provoking the deceased into a difficulty, and of then killing him.

The objection to this charge should not come from the accused, whom it was calculated to favor beyond the limits prescribed by law.

The recognized doctrine is, that the state of intoxication of the accused may be invoked to negative malice or deliberate intent, in the ab•sence of evidence, aliunde, to prove premeditation. The intoxication must be of such a character as to create a state of mental confusion, excluding the possibility of a specific intent to take life, or positive premeditation. Wharton’s Oriminal Law, vol. 1, page 52.

In his instructions, the District Judge had given a charge entirely too liberal to the accused, who should certainly not complain.

5th. The fifth bill is levelled at the judge’s charge on the presumption of malice, as flowing from the proof of the act of killing by the •accused, which charge was, in substance, as follows : “ The State must prove : 1st, the killing, 2d, that the prisoner at the bar did it; when this was done, the law presumed malice.”

We think that this charge was too broad, and should have been •qualified, so as not to mislead the jury, by inducing them to believe that malice is presumed after proof of the killing ; and to shift upon the accused the burden of proving excuse or justification, even when such defense should appear from the very circumstances accompanying the act of homicide. Even if the charge was intended to comply with the-rigorous rules of the common law on this point, yet it was too stringent towards the accused, who was entitled, under such rule, that the judge,, in charging that malice is to be presumed from the proof of the homicide and throws upon the accused the burden of proving circumstances of alleviation, excuse or justification, should have added to his charge that such circumstances must be considered by the jury in favor of the-accused, if they are connected with and arise from the evidence produced against him, and affording proof of the killing. Russell on Grimes, vol. 1, page 483.

In point of fact, malice does not necessarily qualify every homicide,, and in many cases the necessity of the act may be dictated by self-defense, or for the protection of the property of the party killing, or in the lawful execution of a lawful mandate of a compel ent court; and the legal defense may be shown, by the mere recital of the deed of homicide, as being so intimately blended with the act as to be inseparable-therefrom.

Hence it is that experience in criminal practice has compelled the courts of this country to modify and to materially relax the rigor of the common-law rule on this point; and, recognizing that frequently the excuse for the deed is apparent on the evidence Offered to prove the homicide, the courts have shaped the rule so as to conform with undeniable-experience. These mild and able modifications were considered and adopted by our immediate predecessors in the case of the State vs. Swayze, 30 A. 1323 ; and we shall now be guided by the rule which requires-the judge to charge that malice is presumed from the proof of the homicide, when such proof is unaccompanied by circumstances of extenuation.

The jury must be instructed to weigh and consider all the circumstances arising from, or connected with, the evidence proving the homicide, and that the presumption of the innocence of the accused must yield to the presumption of malice or deliberate intent, only when the-evidence is unaccompanied by circumstances showing alleviation, justification or excuse.

We, therefore, conclude that in this ease the judge’s charge to the-jury was calculated to give them an erroneous impression under which to base their deliberations, and that the accused is entitled to a new trial.

It is, therefore, ordered, adj udged and decreed that the verdict of' the jury be set aside, and the judgment of the lower court annulled,, avoided and reversed ; and it is further ordered that this case be remanded to the District Court for further proceedings and trial, according to law and to the views herein expressed.


author: Bermudez, C. J.

text:
    No. 6401.
    Gaty, McCune & Co. vs. L. L. Babers.
    Defendant, acting in good faith and under tbe belief that it -was Ms property, sold certain macMnery belonging to Plaintiffs. Tlie action to recover its value is not one ex delicto, prescribed in one year, but arises from a quasi contract and is only prescribed in ten years.
    ^PPEAL from the Fifth District Court, parish of Orleans. Gullom, J.
    Edward Phillips for Plaintiffs and Appellants.
    B. E. Jonas for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs allege that the defendant has taken possession of and carried away certain machinery belonging to them, and has disposed of, or made way with the same, and that said machinery was worth two thousand five hundred dollars, $2500, which they claim from him. To this demand a general' denial was filed.

The case proceeded to trial, pending which, the defendant pleaded ’ the prescription of one, three, and five years.

The lower court heard the testimony adduced and passed judgment, in the following words :

“ In this case, the court considering the law and evidence to be in favor of defendant and, for the reasons orally assigned, the plea of prescription of one year being well taken,

It is ordered, adjudged and decreed that plaintiffs’ demand be dismissed with costs.”

From that judgment, the plaintiffs have appealed.

From the tenor of the judgment, we consider that the court held :

1st. That under the evidence and the law, which were found to be in favor of the defendant, and

2d. That insupra, the prescription of one year, pleaded, being a bar to plaintiffs’ action, the demand of plaintiffs should be rejected, and the defendant relieved from all liability.

We will first determine the question of prescription.

We do not view the action as one for the recovery of damages resulting from the commission of an offense or of a quasi offense, but as one based on a quasi contract, for the recovery of the value of property removed and disposed of by one who is represented as having no authority to do so.

To such an action the prescription pleaded does not apply. The nature of the action is determined by the averments and prayer of the petition, 11 A. 277 ; 19 A. 491; 11 Toullier, No. 28, p. 39 ; Pothier, Obi. 116 ; 1 Chitty’s Pleadings, pp. 126-147, “ Trover ; ” 10 A. 719 ; Marcadé 5, p. 267, 3 ; 289, 30 ; 293. The prescription of ten years alone applies.

The evidence shows that the defendant, acting in good faith, sold the machinery for five hundred dollars. The evidence does not satisfy us that it was worth more.

The character of the action was perhaps enlarged by the admission, without objection, of the testimony adduced. 18 L. 328 ; 11 M. 26; 1 La. 301; 3 M. 317 ; 6 N. S. 85 ; 12 M. 242; 2 La. 187; 5 R. 130 ; 11 M. 548 ; 25 A. 281.

The plaintiffs are entitled to recover the price at which the defendant has sold their machinery.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be reversed; and proceeding to render such judgment as should have been rendered by the said court,

It is ordered, adjudged, and' decreed that the plea of prescription be overruled, and that plaintiffs recover of the defendant five hundred dollars with legal interest from judicial demand, with costs in both courts. ^


text:
    No. 8087.
    State of Louisiana ex rel. Weber et al. vs. E. K. Skinner, Judge.
    The -writ of Prohibition only issues against a court •which acts without jurisdiction or authority.
    A Certiorari should not be granted when there exists a remedy by Appeal.

      Ex parte Application for Writs of Prohibition and Certiorari.

    C. W. Besangon for the Relators.
   The opinion of the Court was delivered by

Bermudez, C. J.

Considering that a writ of prohibition can issue only to courts which exceed the bounds of their jurisdiction, C. P. 845; that a writ of certiorari cannot be granted in a case in which there exists a remedy by appeal, C. P. 857. Considering that, in the case presented by the relators, the First City Court has jurisdiction over a case in which the city of New Orleans claims payment of a license of seventy-five dollars ($75), Const., art. 135; that said Court could legally issue an injunction as a conservatory remedy therein, O. P. 1096, and can punish for contempt the violator of such prohibitive order, C. P. 1154 ; that in granting a rule for contempt, it acts within the scope of its legitimate authority, and can pass upon the same without any intervention of this Court. C. P. 1152.

Considering that non constat, that on the merits of the writ the said Court will not render a judgment in favor of the defendants therein ; that were it not so, the constitutionality or legality of the license asked having been assailed, the question can, by appeal, be brought beiore this Court under the Constitution, Const., art. 81; that the defendants are not left without remedy against the issuing of an injunction against them in the carrying on of their business, even if the license claimed is not due, in this: that they can have it dissolved before trial on the merits, either on the face of the papers, or by depositing in court, under protest, the amount claimed, or by furnishing bond and security. C. P. 307; v. also C. P. 1096,1152.

Considering that, on the showing made, the relators are not entitled to the relief sought by them in this proceeding,

It is ordered that the application for a prohibition and for a certio-rari be refused wjth costs.


text:
    No. 5216.
    Pierre Laberie vs. Mrs. A. T. Freret.
    Th© Sheriff iu. the Pariah of Orleans, acting, under Sec. 67, !Rev. Sfca., a# umpire between the plaintiff’s and defendant’s appraisers, need not be sworn for the purpose of appraising the property. His oath of office is all that the law requires.
    ^PPEAL from the Fourth District Court, parish of Orleans. Lynch, J.
    A. Brieugne for Plaintiff and Appellee.
    A. T. Steele for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff, a mortgage creditor of the defendant, having caused the property securing his debt to be sold, became the adjudicatee thereof for more than two thirds of the appraisement thereof.

He subsequently applied for a monition. The defendant opposed the application on the ground that the property was adjudicated without any legal appraisement thereof.

The evidence shows that the appraiser appointed by the plaintiff valued the property at 558000 ; that the appraiser named by the defendant valued it at $12,500; and that, by reason of their disagreement, the sheriff, by his deputy, appraised it at $8000. The proceedings occurred in the parish of Orleans. The appraisers appointed by the parties were sworn. It is claimed that the sheriff had no right to act as umpire, and that he was not sworn.

Such a course is expressly authorized by the Act of 1869, p. 18, Sec. 1, incorporated in the R. S. as Sec. 67, under the title of Appraisement in the parishes of Orleans and Jefferson, and which is to the effect, that if the plaintiff and defendant, or the appraiser designated by them, shall disagree, the sheriff making the sale shall constitute the umpire, whose decision shall be final, and shall receive no fee.

By this law, which was in force at the time that the appraisement herein took place, it was made one of the duties, and a gratuitous one too, of the sheriff to act in that capacity in order to expedite the execution of writs and to save expense to litigants.

The law does not require that the sheriff, when serving in that manner,'shall be sworn. He is the officer who receives the oath of the appraisers, and cannot be expected to swear himself. His official oath, to discharge faithfully all the duties imposed upon him by law, was considered as affording sufficient moral guarantee that he would perform that function properly. That which the sheriff himself could have done, his deputy was authorized to do, particularly under a special appointment, as was done in this case.

The lower court correctly rejected the opposition and confirmed the monition.

The judgment is affirmed with costs.

Rehearing refused.


text:
    No. 5217.
    John T. Michel, E. R. Chevalley, Subbogated, vs. City of New Orleans, Benjamin Campbell, Warrantor.
    Plaintiff, as the de juré Recorder of the Sixth District of the (Jity of Row Orleans during part of the years of 1872 and 1873, has no action against said City for the emoluments of the office paid to the de facto officer. His recourse is against the latter, to recover the salary paid to him.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

    Chas. S. Rice for Plaintiff and Appellant.
    First — The dejure officer, though prevented by the officer defacto from performing the duties, is, nevertheless, entitled to the salary of the office.
    Second. — The City of New Orleans, which elects a person to fill an office, knowing that another person has been lawfully appointed by the Governor, is liable to the officer de jure for the salary of the office.
    Third — The payment of the salary for a part or all the time, during which the dejure officer was deprived of his office, to the defacto officer, is no defense to a suit for his salary brought by the de jure officer against the City.

      E. Howard McCaleb, City Attorney, for Defendant and Appellee.
    First — The right to draw the salary affixed to a municipal office grows out of services actually performed ; and an officer, who has been kept out of his office, and not performed his duties, cannot maintain an action against the city to recover the amount accruing from the office. Smith vs. New York, 37 N. Y. 518 ; Hadley vs. Mayor, 33 N. Y. 603 ; Benoit vs. Wayne Co., 20 Mich. 176 ; Dolan vs. The Mayor, 68 N. Y. 276.
    Second — Plaintiff’s right of action, if any he has, exists against Campbell, the intruder, who discharged the duties and received the fees of the office of Becorder, herein sued for. Glasscock vs. Lyons, 20 Ind. 1 ; Douglass vs. State, 31 Ind. 479 ; Dorsey vs. Smythe, 28 Cal. 21; Strat-ton vs. Oulton, 28 Cal. 44 ; City vs. Given, 60 Penn. St. 136 ; Allen vs. McKean, 1 Sumn. 117 ; State vs. Sherwood, 42 Mo. 179; People vs. Miller, 24 Mich. 458; Petit vs. Bousseau, 15 A. 239 ; George vs. Tucker, 27 A. 67.
    Third — At all events, it is now too late for plaintiff to complain. He should have prevented the city from paying and Campbell from receiving the salary, pending the suit brought under the “intrusion act.” Bev. Statutes 1870, Sections 2593 and 2600.
    Fourth — -The city could not have successfully resisted payment of the salary claimed by plaintiff to Campbell, he being the incumbent de facto, and as such entitled prima fade to the emoluments of the office. High’s Extraordinary Bemedies, Mandamus, g 108 ; State vs. Clark, 52 Mo. 508 ; State vs. Draper, 48 Mo. 213 ; 50 Mo. 353.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff sues the City of New Orleans for his salary as Becorder of the Sixth District, from the 20th of September, 1872, to the 20th of May, 1873, at the rate of ®2500 per annum, and for the sum of three hundred dollars as damages for expenses incurred for the recovery of his salary.

He alleges his appointment to the office by the Governor of the State, to fill a vacancy occasioned therein by the failure of the City Council to elect an incumbent to the office on the 4th of April, 1872, at which time the term of office of Benj. Campbell, then in possession, had expired, under the law creating that office.

He charges that, notwithstanding his appointment and his readiness to fill the office, and notwithstanding his demands for the same, Benj. Campbell, acting under color of an election thereto by the City Council, on the 24th of September, 1872, refused to surrender the office, which he continued to hold until it was abolished, in May, 1873, receiving the emoluments due for the same from the City Treasurer, for all of said time, with the exception of the last three months.

The-city for answer, denies any liability to plaintiff for the emoluments attached to said office, which was never filled by plaintiff, and which emoluments were paid to Benj. Campbell, the officer defacto, and whom it calls in warranty.

The call in warranty was dismissed by the lower court, and judgment on the merits was rendered in favor of the city, dismissing plaintiff’s action, and he has appealed. The city appeals from the decree dismissing her call in warranty.

The facts of the case are, that under the law providing 'for the election of six recorders for the term of two years, Benj. Campbell was elected Recorder of the Sixth District, on the 4th of April, 1870 ; that, at the expiration of his term, no election having been held to select his successor, he continued to hold over until he was re-elected for another term on the 24th of September, 1872 ; and that he continued to hold the office until it was abolished, on the 20th of May, 1873.

It appears that, on the 20th of September, 1872, the Governor of the State, hearing of the omission of the City Council to elect a Recorder, in April of that year issued a commission for the same office to plaintiff, who at once demanded the office, but was refused. Through the Attorney General, he then instituted suit against Campbell, under the act known as the intrusion-into-office act, in which suit he finally obtained a judgment in his favor, rendered by this Court in April, 1873, only a few days before the office was abolished by law. 25 A. 340.

The record shows that, with the exception of the months of March, April and May, 1873, the emoluments were all paid by the city to Benj. Campbell, who was discharging the duties of the office.

Two questions are, therefore, presented for our consideration :

First — Can plaintiff, the de jure officer, recover of the city the emoluments of the office, which were paid to the defacto officer ?

Second — If not, is he entitled to recover that portion of the emoluments attached to the office which has not been paid to the intruder ?

We are of the opinion that the city having paid the emoluments of the office to the officer de facto, while he was in possession and.discharging the functions thereof, cannot be held liable to the de jure officer for the same salary, after he has acquired possession or has been decreed lawfully entitled to the office.

It is contended that in this case the intruder was encouraged and maintained in possession through the wrongful acts of the City Council, who illegally elected him when there was no vacancy in the office by reason of the Governor’s appointment of plaintiff four days previous to the pretended election held by said Council.

But the question as to what authority in the State had the power to fill such a vacancy in a municipal office under the law of 1870 was very doubtful, and the City Council could, and, doubtless, did, honestly believe that such power was vested in their body and not in the Executive of the State. The problem was indeed of such doubtful solution, that we find a dissenting opinion of considerable force from the decree rendered in the Supreme Court in favor of plaintiff. The city Council, until checked by judicial interposition, had, therefore, reasons to believe that the eleotion of September, 1872, by that body was legal and conclusive, and consistently they could not resist the claim of their own appointee, in possession and in the exercise of the functions of the office, for the payment of his salary pending the contest between himself and plaintiff.

Sound public policy dictates the wisdom and the necessity of paying the salary of the officer in possession of the office and performing functions required for the protection of society and the maintenance of peace and order, and after this duty is performed, both law and equity forbid that the city or State be compelled to account for the same salary to any other party who may subsequently be decreed as the proper officer.

Several provisions contained in the very act on which plaintiff founded his action, clearly point out the remedy which he should have used for the protection of his rights to the emoluments of the office pending his contest.

We are clear that under our laws the right of the de jure officer in such a case must be exercised against the intruder for the recovery of fees or of the salary of the office, and no recourse exists against the State or city for such salary as was paid to the defacto officer. 15 A. 239 ; 27 A. 67. But as to that part of the salary which is shown not to have been paid to Campbell, we are equally clear that plaintiff having been judicially recognized as the lawful incumbent is entitled to recover all of such emoluments as were due and remain unpaid for any part of the term of the office which was decreed in his favor. The very reasons which militate against him on the first branch of his case, lead to a favorable conclusion on the second branch. Eor the very reason under which he could recover of the intruder the fees or emoluments paid to him during the occupancy of the office and the discharge of the functions, although the de jure officer had not and could not have performed the duties, while he was excluded from the office, it follows that he is entitled to recover such emoluments as have not yet found their way into the hands of the intruder and which are appropriated and due for said office. This right not only rests on reason and logic, but is affirmatively recognized by our law. R. S. 2600. The statement, submitted by the city on the trial, shows that the following amounts are due on account of the salary attached to this office, and not paid to Campbell or any one else, to wit: the sum of $175 for each of the months of March and April, 1873, and $99 16, for part of the month of May of the same year, and these sums are legally due to plaintiff. The view which we have taken of the case dispenses us from the necessity of considering the appeal of the city from the judgment dismissing the call in warranty. The damages claimed by plaintiff cannot be allowed.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended in so far as it rejects plaintiff’s claim for the salary due and unpaid for the months of March, April and part of May, 1873, for which the sum of four hundred and forty-nine 16-100, dollars is hereby decreed in his favor, to be paid by the city; and that in all other respects said judgment be affirmed ; and it is finally ordered that the defendant pay the costs of both courts. ■


author: Levy, J. Fenner. J. Fenner, J.

text:
    No. 7898.
    State of Louisiana vs. J. G. Ricks.
    The temporary and voluntary ahsonoe of the accused from Court; during some of the unimportant proceedings of the trial, especially as no injury therefrom is urged, is no sufficient ground to reverse the judgment rendered against him.
    Th* following charge to the jury, viz: “In cases where threats and hostile acts are proven, the jury may also oonsider the general character of the deceased. The fact, however, that the deoeased was a man of dangerous character does not justify the hilling, but only enables the jury to pass on the danger of the attack,” is too restrictive as to the effect to be given to the testimony and may mislead the jury, and, therefore, invalidates the verdict.
    This charge being in writing and embodied in the Record, and involving a question of law, can be revised by this Court on an assigment of errors, although, no Bill of exceptions was taken to the same.
    A juror stating on his voir dire, that he has formed a fixed opinion in re'gard to the guilt or ' innocence of the accused, but that said opinion would yield to testimony showing the facts to be different from what he heard, ia an incompetent juror.
    APPEAL-from the Eighteenth Judicial' District Court, parish of Tangi-pahoa. Thompson, J.
    J. C. Egan, Attorney General, for the State,
    Whitaker & Adams, Addison & Edwards, and J. H. Muse, for Defendant and Appellant.
   The opinion of the Court was delivered by

Levy, J.

The defendant was indicted for manslaughter, tried; convicted and sentenced to ten years’ imprisonment in the penitentiary. From the sentence and judgment he has appealed.

The grounds on which he seeks the reversal of the judgment, are :

1st. Because the prisoner was absent from the court during portions of the trial. It is not contended or shown that any injury resulted from such' absence. The prisoner was under bond ; if he absented himself, it was voluntarily done by himself. The record shows that he was present during the arraignment, empaneling of the jury, the charge of the court at the rendition of the verdict, and when sentence was pronounced. At no time during any of the material proceedings was he absent. His short absence occurred during the argument of one of his attorneys, and again during the examination of a witness by his attorney. This was known to his. counsel, who did not bring the fact to the attention of the court, and it is not urged that the prisoner suffered any injury thereby. The defendant chose voluntarily to absent himself from court on these occasions. It might be different if such absence were involuntary on the part of the prisoner; but under the circumstances of this case, we do not think that the temporary voluntary absence of the prisoner during the proceedings which were had during his absence, which did not include his arraignment, empaneling of jury, charge of the judge, rendition of verdict, sentence of court, or even motion for new trial, a motion in arrest of judgment, afford sufficient grounds for setting aside the verdict. Wharton’s Crim. Law, $ 3365.

In his assignment of errors, the defendant urges that the court a qua erred in its written charge to the jury, in giving the following instructions : “ In cases where threats and hostile acts are proven, the jury may also consider the general character of the deceased. The fact however, that the deceased was a man of dangerous character, does not justify the killing, but only enables the jury to pass on the danger of the attack.” •

We think the charge above quoted, and which the defendant has assigned as error on the face of the record, is too restrictive as to the effect to be given to testimony as to the dangerous character of the •deceased. The fact that the deceased was a violent, quarrelsome, vindictive, desperate or dangerous person, does not of itself justify one in killing him ; such a doctrine finds no countenance in law and reason ; but where threats and hostile acts or demonstrations are proven, the fact of the dangerous character of the deceased should not be confined in its consideration by the jury to the danger of the attack or hostile demonstrations by the deceased, but the accused is entitled to have the jury consider whether or not it afforded reasonable grounds of fear or apprehension in his mind at the time of the killing that the life of the accused was in imminent danger from such attack or demonstrations, or that he was in imminent danger of serious bodily harm. (Wharton’s Am. Crim. Law, g 641 and authorities there cited). This charge was calculated to restrict the jury to a consideration only of the danger of the attack, while they should have considered not only whether the attack in itself was dangerous, but whether from the character of tne deceased the accused had reasonable grounds to believe or to fear and apprehend that he was in danger. This charge was well calculated to mislead the jury on the point stated and to deprive the defendant of the consideration by the jury of the question whether accused had reasonable grounds for fear and apprehension, etc. This charge was given in writing, and is embodied in the record; it involves a question of law, and although no bill of exceptions appears to this portion of the charge, we think it must be considered by this Court under the assignment of error on the face of the record. In 20 A. 389 this Court held, that an appellate jurisdiction in criminal cases is limited to questions of law alone. These questions must be presented by bill of exceptions or assignment of errors; or the errors must be apparent on the. face of the record.” Wharton, in his treatise on Criminal Law, § 3162, says : The law is to come from the court, and the court is bound to give the aw, and it has been repeatedly declared that the defendant has a right to a full statement of the law from the court; and that a neglect to give such full statement, when the jury fall into error, is sufficient reason for reversal.” See authorities quoted in note, (c.) We think the error of law complained of in the charge appears on the face of the record, and therefore, is properly before us on the assignment of errors.

The objection as to the illegality of the jury, as set forth in the bill of exceptions, is in our opinion met by the decision of the court a qua on the motion to set aside the jury ordered -to be and actually drawn on the 5th of April, 1880, and summoned to appear on the eighth of same month. The challenge to the array, for the reasons given by the judge a quo, came too late.

The defendant excepted to the ruling of the court a qua, that R. C. Lanier was a competent juror. On his examination upon his voir dire, this juror testified that, “he had formed a fixed opinion in regard to the guilt or innocence of the accused; that said opinion was formed from conversation with different persons, but he did not know whether said persons are witnesses in the case or .not; and further declares that said opinion would yield to testimony showing the facts to be different from those that he had heard;” and, in response to counsel for the accused, said Lanier declared that, from what he had heard of the case from said persons, he had formed a fixed and deliberate opinion in regard to the guilt or innocence of the accused ; and being interrogated by the court, he reiterated his declaration that he had formed a fixed and deliberate opinion in regard to the guilt or innocence of said accused, but that it would yield to contrary evidence, whereupon the court decided that said Lanier was a competent juror (the question of competency having been previously raised by defendant’s counsel). We think the exception was well taken, and the court a qua erred in this ruling. While the decisions on this point are in conflict in many of the States of this Union, the weight of authority and reasons adduced preponderate in the opinion that it being the intention of the law that the accused should be tried by an impartial jury, unbiased and unprejudiced, and while mere vague impressions, based upon newspaper reports or general rumor, do not render a juror incompetent in the case in which such impressions or opinions have been formed, yet the formation of a “ fixed ” or “ deliberate ” opinion destroys his competency. Fixed and deliberate opinions must, of necessity, create bias in the minds of those who entertain them. An opinion fixed, after deliberation on the subject-matter to be tried, necessarily, from the very constitution of the human mind, prevents an impartial and unbiased state of mind on the part of the jury, which the spirit and policy of the law require. Our own Supreme Oourt held, in State vs. George, 8 Rob. 537, these views, and in that ease said: “ But where a deliberate opinion has been formed the jurors have, in most cases, been excluded.” This is, substantially, the rule laid down by G. J. Marshall, in Burr’s trial, and was adopted in the case just cited. We think that Chief Justice Merrick, in his dissenting opinion in the case of State vs. Bunger, 14 A. 472, also laid down the correct doctrine when he held : " The law gives the accused a right to twelve peremptory challenges, and he is not bound to use one of them, so long as he has a valid challenge for cause. Any other rule would embarrass the accused, and his peremptory challenges might thus be exhausted upon jurors against whom he had sufficient challenges for cause.”

The fact that Lanier did not serve upon the jury, and the argument that it is shown that the accused did not exhaust his peremptory challenges, cannot contest the doctrine nor refute the reasons supporting it.

It is, therefore, ordered and adjudged and decreed that the verdict and sentence of the lower court be set aside, and its judgment reversed, and that this ease be remanded to the said lower court to be proceeded with in a new trial according to law.

CONCURRING Opinion.

Fenner. J.

I concur in the decree herein on the last ground stated in the opinion just read.

I also concur in the legal correctness of the additional propositions stated in the opinion, which should have been added to the charge of the judge, had they been asked by counsel of the accused. But I am not prepared to say — in the absence oí any refusal by the judge to charge those additional propositions, and of any objection on the trial— that the charge, in the general terms in which it is given, is so exclusive, either in idea or expression, of such propositions as to justify the remanding of the cause on that ground alone.

To justify such remanding; charges, not,objected to when given, must either affirmatively state the law erroneously, or, if correct as far as they go but incomplete because they do not go far enough, they must be so inconsistent with the additions which might have been required, as to be equivalent, by implication, to a rejection of the latter.

I do not find such to be the case here, but think the court might, and probably would, have added the points referred to, if its attention had been called to them, without the necessity of altering a word in the charge as given.

Ex parte F. A. Schaefer, Esq., Applying to be Examined for License to Practice Law in the Courts of Louisiana.

Section 113, !Rev. Sta., -which, provides for the manner in -which attorneys from other States shall he licensed to practice in the Courts of Louisiana, is still in force and not repealed hy Act Ko. 136 of 1877.

The opinion of the Court was delivered by

Fenner, J.

The applicant, presenting licenses granted him by competent authority to practice in the highest courts of record of both the States of Ohio and Texas, together with proper testimonials of character, prays to be examined on the laws of Louisiana, and, if found qualified, to be licensed to practice in any and all the courts of this State.

Question having arisen as to whether the provisions of Act No. 136 of 1877, requiring all candidates presenting themselves before the Supreme Court for admission to the bar to produce evidence of having studied law for two years, under the direction of a competent attorney and counsellor-at-law of this State, and repealing all laws in conflict therewith, do not repeal section 113 of the Revised Statutes, and apply to duly licensed attorneys from other States as well as to all other candidates, we deem it advisable, for the guidance of all interested, to determine the question.

At the time when this statute was passed there were in force two sections of the Revised Statutes on this subject, (section 114 having been previously repealed), viz : Section 112, which provided for the granting of licenses by the Supreme Court, and which covered the cases, first, of graduates of the law department of the University of Louisiana; second, licensed lawyers o£ other States third, graduates of law schools or colleges of other States fourth, applicants found qualified after examination by the Supreme Court. As to all these classes, except the second, the Supreme Court was the only authority competent to grant licenses, and it was necessary that they should present themselves before that Court.

But by section 113, it was provided that “ any person having been licensed to practice law in the Superior Court of any of the States of this Union, on the presentation of said license to any one of the judges of the Supreme Court, or any two of the judges of the District Courts, with evidence of good moral character, who, after being duly examined by such judge or judges on. the laws of Louisiana, and found qualified, shall be, by said judge or judges, licensed to practice, etc.”

Thus it appears that there existed two classes of applicants, one of persons who must apply to the Supreme' Court and could not be licensed by any other authority, the other of persons who were not required to apply to the Supreme Court, but could be otherwise licensed. The statute of 1877, by its terms, applied only to candidates presenting themselves before the Supreme Court for admission to the bar, and did •not refer or apply to candidates who were not required to present themselves to that court, but could be licensed by other authority. It only repealed conflicting laws, and left section 113 of the Revised Statutes in full force. The applicant, therefore, may, at his option, apply for examination and license either to any judge of this Court, or to any two judges of the District Court, or since the five judges of this Court may •certainly do what any single one could do, he may present himself for examination before the whole bench of this Court, and, if found qualified, we will all sign his license.