text:
    No. 8507.
    H. & C. Newman vs. Joseph Kraim.
    íhe threats made by defendant in the premises, that he •would dispose of his property to protect himself, if he -were sued by plaintiffs, were a sufficient reason for the attachment taken by the latter.
    APPEAL from the Fifteenth Judicial District Court, Parish of West Feliciana. Yoist, J.

      Spencer & White and W. W. Lealce, for Plaintiffs and Appellants:
    Where one has made representations which justify an attachment, and a creditor has acted pn them, the representations, for the purpose of dissolving the attachment, are to he taken as true. Bigelow on Estoppel, p. 473 ; Livermore vs. Rhodes, 27 How. Prae. R. 506; Drake on Attachment, p. 53, Sec. 75; Cooke vs. Kuykendall, 41 Miss. 65; Morgan vs. Nunes, 54 Miss. 308; Roach vs. Brannon, 57 Miss. 490; Central Law Journal for Dec. 17, 1880, p. 481.

      Wielcliffe & Fisher and. B. K. Howell, for Defendant and Appellee :
    Pioof of subsequent facts is not admissible to sustain an. attachment, which must stand or fall according to the state of facts existing at the time when it issues, and cannot be cured by any subsequent event. 10 An 324 ; 14 An 426 ; 32 An. 348.
    To maintain au attachment, the evidence must make it clear that the defendant was about to dispose of or encumber his property with an intent to defraud his creditors. The intent to defraud is the esson tial ingredient 5 but it must be evidenced by or coupled with some act' or fact. 24 An. 269; 25 An. 500; 26 An. 258; 28 An. 819; 30 An. 394.
    Mere woids will not sustain an attachment. There must besóme act or fact shown. 32 An. 348.
   The opinion of the Court was delivered by

Fenner, J.

The defendant, after several years’ business with the plaintiffs as his commission merchants, quit them ill 1880, owing them a considerable balance. After repeated efforts to get a settlement, plaintiffs sent their agent, Worms, to see him. He refused to make any settlement of any kind, even to give his unsecured notes.

Worms says -. “ I then told him if he. did not do something to satisfy the firm, they would briug suit immediately. He then told me as follows : ‘I give you fair warning that I have my matters fised — cut and dried — by which I can cover myself at a moment’s notice. I hope you will not put me to this necessity, but if you bring suit I will be, bound to protect myself. I have a family, and I am not going to be turned out of doors by any one. I have always tried to do business in an honorable way; but if I am forced to do it, I am going to look out for myself.’ He told me that he would be down in the city during the following week to see wliat could be done. I told him I would submit what had been said to my firm. He said be had consulted his attorneys and was well posted. He said lie had other creditors, and the moment suit was brought, he would notify them all. lie said he owed Flyman & Lichtenstein for advances this year. He owed other accounts for goods bought, which he bad to pay in order to keep u}) his credit. After paying these parties, if I have any means at nay command, I will pay you all I can. I communicated with my firm after this, and consulted-counsel. The result was this suit.”

Upon the report by Worms to plaintiffs of these statements of their debtor, t-liey brought suit against him and attached liis property, upon the allegation that “Ivrai-m is about to mortgage, assign or dispose of bis property, rights and credits, or some part thereof, witli intent to defraud his creditors, or give an unfair preference to some of them.” Taking the testimony of Worms as true, we think the statements, beyond doubt, afforded sufficient and incontrovertible ground for the attachment, under Art. 243, C. P.

What a man has done is a matter of fact; what he is about to do is a question of intention. . ■ .

We can only ascertain the intention of another mind by inference or deduction from acts or words, and words declaratory of intention are, in tlie nature of things, the best evidence of the existence of such intention.

Attachment is unavailing against accomplished dispositions of property, even fraudulent, unless they are mere simulations. The object of this provision of the attachment law is to prevent the accomplishment of fraudulent intentions.

It is useless to criticise these statements of Kraim, as reported by Worms. Language, more distinctly declaratory of the very intention which the law prescribes as the foundation for attachment, could not be devised.

. We read with astonishment the statement in defendant’s brief that this-Court had decided, in 22 An. 531, that, though a defendant “had said and boasted that he would fix his things so they (the plaintiffs) could never recover , anything,” yet this would furnish no ground for attachment. A reference to the case shows that there was no such eZioium. The Court, indeed, quotes the above statement as having been made in plaintiffs’ affidavit, but does not say that it was proven. On the contrary, the attachment was dissolved because the evidence satisfied the Court that “there was no disposition, or intended, disposition, on the part of defendant, with the view of defrauding his creditors.”

But it is said the intention declared by Kraim was only a conditional one — conditional on plaintiffs bringing suit. True, but this condition being dependent on the will of plaintiff's, in the exercise of an unquestioned right, that condition being accomplished by the determination to sue, the declared intention became thereby a-ctnal and positive.

The evidence satisfies us that the statement of Worms is substantially true. It is contradicted by nobody but- Kraim, whose direct -interest renders his credibility inferior to that of Worms, and whose own statement is a very lame and unsatisfactory explanation of bis conversation with Worms.

Indeed, Kraim’s own statement of what he said to Worms, involves a distinct threat that, if sued, he would cause his property to he taken, or covered up, in satisfaction of a pretended claim or judgment of his wife against him, which tlie evidence shows had-no existence.

- Moreover, on one point, in which they conflict, to-wit: the refusal of Kraim to give his notes, Worms is corroborated by another witness ; and, indeed, his whole version is in harmony with prior statements of Kraim to Newman.

The representations of Kraim justified the attachment; and, while he was at liberty to dispute the fact tha.t he made them, yet, that fact having been established, ho was clearly estopped from denying the truth of his own representations, tlie most common example of estopx>el enpais being “that by which a party is estopped to deny the truth of representations made to, and acted upon, by another.” Bigelow, Est. p. 473.

In the language of the Supreme Court of Mississippi, in an attachment case: “ The affidavit was founded on facts fully justifying it, derived from the defendant himself. It does not lie in his mouth to say that his statements, made to the x>laintiff and ux>on the truth of which plaintiff relied and had a right to rely, were all false, and, therefore, plaintiff’s attachment was wrongfully sued out.” Cocke vs. Kuykendall, 41 Miss. 65; Morgan vs. Nunes, 54 Miss. 308; Drake on Attachment, Sec. 75.

It follows that the dissolution of the attachment and the allowance of damages for its wrongful issuance, were erroneous.

We think the claim of plaintiffs, in addition to the deduction made in the judgment, should be further reduced by reduction of the interest charged from 8 x>er cent, to the legal rate, and by rejecting the commission .charged for advances. According to the calculations made in defendant’s brief, which seem to be correct, these excessive charges amount to $665.98.

It is, therefore, ordered, adjudged and decreed, that the judgment apx>ealed from be reversed, in.so far as it decrees the dissolution of the attachment at the cost of xdaintiffs, and in so far as it condemns plaintiffs to pay damages, and that the said judgment, in so far as it is in favor of xdaintiffs and against tlie defendant, be amended by reducing the same by the amount of six hundred and sixty-five 98-100 dollars, and further amended by allowing plaintiffs a privilege on-the property attached, and that, as so amended, the said judgment of plaintiffs ag’ainst the defendant be affirmed, the costs in both Courts to be paid by defendant and appellant.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8515.
    Thos. J. Walton et al. vs. Andrew B. Booth.
    Tlie riglit of action for damages, under Article 2315, C. C., does not survive in fayor of the husband of the deceased.
    A druggist is held liable in damages, in the premises, for having sold Sulphate of Zinc instead of Epsom Salts.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      Thos. J. Walton and W. S. Benedict, for Plaintiffs and Appellants.

      Burgess & Burgess and Ilerron & Beale, for Defendant and Appellee.
   Tlxe opiixion of tlxo Court was delivered by

Bermudez, C. J.

Tlxe plaintiffs sue to recover ten thousand dollars from the defendant, who is an apothecary and dealer in drugs and medicines. Their averments are, tluxt their daughter Eleanor was, in September, 1878, the minor wife of G. W. Norton, and then in a state of advanced pregnancy; that, owing to her condition, she needed and sent for a dose of epsom salts at defendant’s store, wlxeve drugs and medicines are sold; that, through negligence, carelessness, and want of skill, he sold and delivered, being paid therefor, instead of said salts, a dose of sulphate of zinc, a deadly poison ; that this medicine was administered, and caused first, the death and bringing forth of the child their daughter was pregnant with, and second, the death of the mother herself, after endurance of lasting, terrible, and excruciating pain.

The plaintiffs claim to recover, in the right of their daughter, the damages to which she would have been entitled bad she survived.

The defendant offered an exception of no cause of action, which was overruled, and ho next pleaded the general issue.

The case was tried by a jury, who rendered a verdict for the defendant. ' Proxxx the judgment thereon, the plaintiffs appeal.

The exception was properly overruled. The right of action which plaintiffs’ daughter would have been entitled to exercise, if she had not died, did not survive in favor of her husband, lmt in favor of her father and mother. Such a right accrxxed only in favor of tlxe minor issxxe, the widow, the father and the mother, as regulated by the Code. Those not included are excluded. Ai'ticle 2315 of the R. C. C., appears quite clear in this particular, and cannot be construed so as to confer the right upoxx persons xxot expressly mentioned in it. In the absence of the amendment made to the original Article 2294 of the Code qf 1825, no right of action would exist at all.

It took special legislation to bestow it upoix certain named beneficiaries, and that legislation cannot be liberally interpreted. 6 An. 495; 11 An. 5; 17 An. 245 ; V. Statutes 1855 ; R. S.,1856, p. 271; 42 Ga. 331.

On txie Merits.

It may well be that plaintiffs’ daughter did not miscarry and die from the effects of the administered sulphate of zinc ; that those fatal results were occasioned by a severe attack of erysipelas, as was testified to by the physicians heard in the case; but it is no less true that, by reason of the taking of the dose of sulphate of zinc, she endured lasting and great pain and suffering, retelling and vomiting, for which she would have been entitled to damages had she recovered.

That the defendant was greatly negligent is apparent.

In the discharge of their functions, druggists and apothecaries, persons dealing in drugs and medicines, should be required not only to be skilful, but also exceedingly cautious and prudent, in view of the terrific consequences which may attend, as they have not unfrequently in the past, the least inattention on their part. Cooley on Torts, pp. 75, 76; 648-9.

All persons who deal with deadly poisons are held to a strict account-, ability for their use. The highest degree of care known among practical men must be used to prevent injury from the use of such poisons. A druggist is undoubtedly held to a special degree of responsibility, for the erroneous use of poisons, corresponding with his superior knowledge of the business. 6 N. Y. 397; 13 Ben Monr. 219; Shearman and Redfield on Negligence, § 592.

It is difficult to find an acknowledged correct standard by which damages, in cases like the present one, can be measured. Shearman and Redfield on Negligence, § 606; C. P. 686.

In the case of McCubbin vs. Hastings, 27 An. 713, which was a suit by a husband and father of a minor child, against a druggist for substituting spirits of camphor for camphor water, used for the purpose of an enema, the Court thought itself justified to allow $2,500.

In the present case, the sufferings of the plaintiffs’ daughter, unmistakably occasioned by the taking of the sulphate of zinc, although not apparently as intense as those in the McCubbin case, were certainly considerable. 30 Ga. 241; 8 Gray, 45 ; 11 Poster, 119.

Prom the evidence before us, we think the verdict of the jury manifestly erroneous in not allowing the plaintiffs reasonable damages, which, we think, should be assessed at one thousand dollars.

It is, therefore, ordered and decreed, that the verdict of the jury and the judgment of the court upon it, be set aside and reversed and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that plaintiffs recover from the defendant the sum of one thousand dollars, with legal interest from judicial demand till paid, and costs in both Courts.

Rehearing refused.


text:
    No. 8508.
    Succession of Matthew Coughlin.
    In a contest between tlie creditors of an insolvent debtor, in the settlement of his succession, notes and mortgages given by him whilst in insolvent circumstances, do not make conclusive proof of their own reality and validity, if assailed.
    APPEAL from tlie Twenty-third Judicial District Court, Parish of Iberville. Gole, J.

      Alex. Hebert, for Opponents and Appellants :
    If the notes were based on a valid consideration — which is not admitted — then the mortgage to secure them is a fraud, because Coughlin was hopelessly insolvent at the time of its execution and could not give one creditor an undue preference over the others. C. 0. 3359-3360.
    Ho direct action in this case is necessary, because the representative of a succession in his final account is plaintiff, being the mortgagee, he is doubly so. He sets up his mortgage, which is opposed. 5 An. 400 ; 27 An. 547; 29 An. 520 ; 33 An. 202.
    Prescription begins to run from the date of the judgment of the opposing creditor. C. O. 1994.

      Wailes, Grace & Matthews, for the Appellee :
    Unless the mortgage of the administrator be a pure simulation, it cannot be attacked by opposition to his final account.
    If the mortgage be a real contract, but is alleged to be invalid for undue preference over other creditors, such an issue must bo made by direct action, and the action on such issue is barred by the prescription of one year from the date of the mortgage. 31 An. 592, People’s Bank vs. A.melie G-irod, Wife; O. C. Art. 1987; 30 An. 745.
    The Articles 3359, 3360, Civil Code, refer to contracts made by a debtor within tlie three months immediately preceding his actual failure and surrender of property, and not to contracts made by the deceased whose succession is found insolvent in course of administration. ' 4 La. 247, Bauduc vs. His Creditors.
    There is nothing in the record to show that the mortgagee, or any one else, knew the mortgagor was in insolvent circumstances at the time of executing the mortgage. The witnesses say it was not known he was embarrassed, even.
   The opinion of the Court was delivered by

Bermudez, C. J.

The issues presented in this controversy relate : first, to tlie existence and rank of a claim for $4,890, placed by the administrator in his own favor, on his account; and second, to the validity of a claim on a draft of the deceased for $747.

The account proposes to distribute $5,187.71, by allowing $2,431.04 to privileged creditors; by applying the balance, $2,756.67, to himself as mortgage creditor for $4,890, leaving a deficit of $10,036.53. The ordinary creditors, whoso claims aggregate $8,903.20, receiving nothing. In other words the account shows as realized assets $5,187.71, and classified liabilities amounting to $15,224.24, leaving a deficit of $10,036.53.

Oppositions were made by creditors to many items placed on the account, particularly to that in iavor of the administrator, charging first, want of consideration as to the notes, and simulation against the mortgage given to secure them eventually; and second, undue preference by the deceased in favor of the mortgage creditor.

The administrator excepted to the last opposition, on the ground' that the action to annul the mortgage must be brought directly, and that it is prescribed by one and three years.

The District Court sustained the opposition, so as to rank among the ordinary claims mauy items to which a privilege had been granted, but recognized the mortgage claim to the extent of $2,058.33, striking a balance of $1,027.99, for distribution among the ordinary creditors, the total of whose claims had been increased.

From the judgment thus rendered, the opponents have appealed.

The notes held by the administrator are three in number. One dated Plaquemine, June 15th, 1872, for $2,500; another dated Bayou G-oula; November 17th, 1873, and a last one dated Plaquemine, May 19th, 1874. They were all past due on the 24th of August, 1874, when Coughlin gave a mortgage to secure them. Five days afterwards, Coughlin died by falling into the river in Iberville Parish.

The only evidence introduced by Beyris, who is the administrator, claiming to be a mortgage creditor, consists of the notes, the act of mortgage and his own testimony. After the filing of the opposition to his claim, Beyris admitted that the note of $2,500 had been paid by Coughlin, and so declared on the stand, where he merely testified, in addition to the date and signature of the notes, adding: The small note was for staves sold to him (Coughlin) in 1874, and the other note was for money I loaned him in 1873.”

It is established bj'the evidence adduced, that Coughlin, who was thoroughly insolvent and- under the pursuit of his creditors, was anxious to cover his property by a mortgage to secure, not his wife, with whom he did not appear to be on very friendly terms, but his children, for whom he evidently felt great uneasiness. But it is not shown that there existed any clandestine understanding between him and Beyris. The circumstances of the insolvency and of the desire of Coughlin to provide for Lis children are, however, calculated to cast strong suspicion on the claim urged by Beyris. We attach no import tanee to the charges made against the notes, as written on the same kind of paper, with the same ink, though purporting to have been executed at different places and at different dates. But it does appear very strange that the payment of those matured notes was secured by mortgage by Coughlin, without his obtaining, as a consideration for the mortgage, an extension or stay for temporary relief.

' Insolvent successions are regarded by law in many instances as insolvencies, and the rules applicable to the settlement of the latter are sometimes enforced as to the former we think properly, particularly in the cases of a concursus. R. C. C. 1224-1226.

In the Succession of Warren, 4 An. 451, the Court, Slidell, J., said:

“As the Succession of Warren is insolvent, and as the consideration of the notes of the deceased held by the appellants, and the genuineness and bonafides of their claim were expressly put at issue, it was necessary for the appellants to produce some evidence beyond the mere notes themselves. In Sabatier vs. Creditors, 6 Mart. N. S., 585, it was held, that in a contest between the creditors oí an insolvent, the notes or obligations do not make in themselves conclusive proof of debts apparently due to them. They must be supported by such additional evidence as will satisfy the mind of the Judge of the fairness and justness of the claim. We are not aware that the opinion in that case has been questioned and no argument has been adduced by the appellants against its correctness.” See also, 16 An. 178; 3 M. N. S. 256 ; 2 R. 219; 15 An. 87.

The administrator has failed to substantiate his claim. Ilis own testimony is of the weakest character, H. D. 487, 508, 698, and is unsatisfactory.

This view of the case renders it unnecessary to pass upon the second cause of opposition, relative to the undue preference charged to have been given in failing circumstances.

As concerns the claim on the draft, we will only remark that as the opposition did not oppose payment of it, on the ground that notice of protest had not been given, the District Judge did not err in allowing the amount of it.

It is, therefore, ordered, adjudged and decreed, that the judgment apppealed from be amended by striking therefrom the allowance of twenty-six hundred and fifty-eight dollars and thirty-three cents ($2,658.33) to Bertrand Beyris, as a creditor with mortgage, and by adding said sum to the one thousand and twenty-seven dollars and ninety-nine cents ($1,027.99) forming an aggregate of thirty-six hundred and eiglity-six dollars and thirty-two cents ($3,686.32) to be distributed among the ordinary creditors of the deceased ás recognized by the account. It is further ordered, that what rights Beyris may have and which he has failed to establish, be reserved to him, the judgment herein being intended merely as a non-suit.

It is further ordered and decreed, that thus amended, said judgment be affirmed at the costs of Bertrand Beyris, individually, in both Courts.

Rehearing refused.


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

text:
    No. 8401.
    State of Louisiana vs. Myles Diskin.
    When a juror, after his examination on his voir dire, has been accepted by the prisoner and sworn, the court may yet discharge him upon discovering from the statement and further examination of said juror that he is opposed to capital punishment.
    The admission as evidence to be considered by the jury, of the statement of the deceased made in presence of the accused, but not as a dying declaration, was illegal and vitiated-the verdict.
    Mere silence of the accused when the deceased said in his presence that the said accused had shot him, cannot be construed as an acquiescence.
    APPEAL from the Criminal District Court for the Parish of Orleans. Lusenberg, J.

      J. G. Egan, Attorney General, for the State, Appellee :
    1. Art. 8 of the Constitution of 1879, which reads: “In all criminal prosecutions the accused shall enjoy the right to he infoimed of the nature and cause of the accusation,” does not confer any right on an accused not heretofore enjoyed. It simply means that no prosecution can be conducted in secret. Criminal Law Magazine, pp. 181 and 182.
    2. The Judge, in the exercise of a sound discretion vested in him, may discharge jurors for various reasons after they have been accepted by both parties, and sworn. 13 Wend. 351? Parker’s Orim. Rep., vol. 3, p. 203; Kale’s Pleas of the Crown, vol. 2, p 296; Proifat on Jury Trials, Sec. 194, p. 249 ; Sec. 178, p 233 ; 40 Ala. 325.
    3. Evidence of the tacit admission by the accused of the charge which tlie deceased made in his presence is admissible; itmust.be received and go to the jury for consideration, like other proper evidence. Waterman’s U. S. Crim. Digest, Secs. 131 and 132.

      W. L. 'JEJuans, for Defendant and Appellant:
    1. No juror can he challenged or sot aside, either by the State or the prisoner, after he has been sworn, unless it he for some cause which happened since he was sworn. 3 An. 359; 5 An. 332, 429 ; 7 An. 122; 13 An. 276 ; 14 An. 464; 11 An. 685 ; 21 An 546 ; 8 Yerg. 508 ; Hawk. P. C., b. 2, c. 43; Proffat on Jury Traial, Sec. 198; 2 Dev. & Batt., 162; 18 Ga. 194; 10 Pick. 275 ; 4 Sneed, 340; 40 N. H. 477; 48 Me. 436; 24 Cal. 230; 53 Ark- 50; 3 Rawle, 498; 32 An. 1164.
    2. The defendant, while held in custody, had a right to keep silence as to the crime with which he was charged, and no inference against him was warranted by his failure to deny the truili of what was said in his presence. 123 Mass., 440; 12 Met. 235; 13 Allen, 570 . 32 Ala. 564 ; Wharfc. Cr. Ev. Sec 630
    3. The maxim qui facet consentirá videtur, is one which, in questions of evidence, ought to be applied with careful discrimination and with caution. Such evidence is dangerous and worth very little, and the jury should have been so instructed. 6 An. 378; Greenl. onEv., Sec. 199 ; Tavlor ouEv, 1, Sec. 740. •
   The opinion of the Court was delivered by

Fenner, J.

The defendant, convicted of murder without capital punishment, relies for reversal of the judgment on two grounds :

1. That after the jurors had been called to the book, and had been duly examined by tlie District .Attorney on tbeir voir dire, and had been then tendered, to the prisoner and had been accepted by him, and had been thereupon severally duly sworn, one of said jurors notified the court, through the deputy sheriff, that he had conscientious scruples against capital punishment, upon which point he had not been questioned on his voir dire. Thereupon, the Judge, over the objection of the prisoner, propounded to each of said sworn jurors the usual quesr, tion on that subject, and two of them answering that they had such scruples, he (the Judge) challenged them for cause, and discharged them as incompetent to serve in such a cause, to which ruling and action of the court, the prisoner took a regular bill of exceptions.

We are not disposed to favor objections of this character, the purpose of which is not to secure, but to prevent trial before a fair and competent jury, which is all that any prisoner should have the right to claim.

It is unquestionably the general rule, and. so recognized by this Court, that the proper time for both the State and the prisoner to urge objections to a juror for cause, is before the juror is sworn, and the’ right of further question or of challenge for cause is, as a general thing, waived and lost after the swearing in of the juror. State vs. Isaac, 3 An. 259; State vs. Dubard, 2 An. 732; State vs. Kennedy, 8 Rob. 596.

Had the Judge, of his own motion, officiously interfered by further questioning the jurors as to their qualifications, after they were accepted and sworn, or had he permitted the State’s counsel to do so, and thereupon to exercise a right of challenge, we should perhaps have enforced the rule and have considered such a proceeding as an irregularity vitiating the proceeding. But all general rules have their exceptions; and when, as in this case, a juror, who has been sworn, of his own volition, informs the court that he is subject to a cause of incompetency as to which he and the two other jurors, who had been sworn with him, had not been questioned, we think it would be a mockery, of common sense to hold that the court would be bound to close its ears to the information, and to permit the trial to proceed before an incompetent jury, who could not find an unqualified verdict in favor of the State, under any circumstances, however clearly the law and the facts might sustain and require it.

, Under such circumstances, arising before the empanneling of the jury is completed, we held that the court was justified, in the exercise of its discretion, to remedy the negligence thus called to its attention, and to examine the jurors sworn, upon the matter of incompetency suggested, and to excuse those found subject to challenge for that cause.

In this we are' sustained by respectable authorities, which go even further than wo have done. People vs. Damon, 13 Wend. 351; Todel vs. Com. 11 Leigh. 714; U. S. vs. Morris, 1 Curt. C. C. 23; 3 Wharton Cr. L. Sec. 3130, citing the following additional cases: 11 Harris; 12; 37 Miss. 369; 1 Edm. (N. Y.) Sel. cas. 36.

2. The defendant excepts to the ruling of the court admitting the evidence of two police officers as to statements made by the person killed, iu the presence of the accused.

The evidence was to the following effect: After the accused was arrested on this charge, and while in custody, he was conveyed to the bedside of John Driscoll, the man killed, who was then lying wounded in the Charity Hospital. A brother of the wounded man was also present, who was a corporal of police. The "wounded man said to the prisoner, “ Myles, you hit me, and shot me for nothing, own up..” Whereupon, Corporal Driscoll immediately said to the prisoner, “ be quiet, be still.” The witnesses said that they stayed in the room only from two to five minutes; that the prisoner was not told that he had a right to speak, and did not speak a word while he was in the room.”

It is not pretended that the declarations of the wounded man were made under a sense of impending dissolution. They were admitted solely on the ground that they were made in the presence of the accused, and to establish his implied admission of the truth thereof, because of his silence and failure to deny.

Implied admissions from the tacit acquiescence of the defendant in the statements of others made in his presence, only residt when the circumstances are such as afford him an opportunity to act or speak, and would naturally call for some action or reply from a person similarly situated. Mere silence, while a party is held in custody under a criminal charge, affords no inference whatever of acquiescence in statements of others made in liis presence. He has the undoubted right to keep silence as to the crime with which he is charged, and is not called upon to reply to or contradict such statements. Under such circumstance’s, it is held that the statements so made are not admissible against the prisoner, because they do not even tend to support the hypothesis of acquiescence. Com. vs. McDermott, 123 Mass. 440; Com. vs. Kinney, 12 Met. 235; Com. vs. Walker, 13 Allen, 570 ; Bob vs. State, 32 Ala. 560; Wharton Cr. L. Sec. 696.

The instant case, where it appears that the accused was not only in custody, but was actually warned by a police officer to keep silence, can leave no possible doubt that the evidence was absolutely inadmissible. The record shows that it was considered and weighed by the jury, and no doubt influenced their verdict. After they had been out about nine hours, they returned into court and asked whether the statements referred were admissible against the prisoner, and the court instructed them that they were admissible, and that the jury must consider it as they would any other fact, that is, the fact that John Driscoll had said so.” And the court refused to give an instruction asked by prisoner’s counsel, that, “ as a matter of law, such evidence was entitled to very little weight,” but charged that “it was admissible evidence, and that the jury were the sole judges of the credibility of witnesses, and of the weight of evidence and the importance to be attached to it, the same as any other fact.”

We are constrained to conclude that this evidence, thus improperly admitted, and thus shown to have been considered and weighed by the jury, vitiates the trial and conviction.

It is, therefore, ordered, adjudged and decreed, that the judgment and sentence appealed from be annulled, avoided and reversed, and that this case be remanded to the lower court, to be there proceeded with according to law.

On Application for Rehearing.

Bermudez, C. J.

The State has applied for a rehearing on the ground that we have committed a.11 error in stating that Corporal Driscoll said to the prisoner, “be quiet, be still; ” that the words were addressed to the wounded man and not to the prisoner.

The bill of exception is silent on that subject; but it is immaterial whether the words were addressed to the wounded man, because the declaration previously made by the latter to the prisoner, who was then in custody, could not be admitted in evidence, as it was not a dying declaration, and it is not jiretended it was. Such a declaration could have produced an effect and be admissible only if it was a dying declaration.

Prom the fact that a declaration of guilt was made in the presence of an accused, it cannot be inferred, if the prisoner does not answer, that his silence is an admission, unless he was not in the custody of the law, and it was not in the course of a judicial inquiry. The declaration in this case could not have been admitted, unless for the purpose of proving a confession of guilt on the part of the imsoner, to be inferred from his silence on the occasion.

Where a man is at full liberty to speak, and not in the course, of a judicial inquiry is charged with a crime and remains silent, that is, makes no denial of the accusation by word or gesture, his silence is a circumstance which may be left to the jury. Such silence, however, cannot be treated as an absolute admission. The rule does not apply to silence at a judicial hearing. So it is as to statements made in the presence of one under arrest on a criminal charge, to which the prisoner makes no reply. Wharton on C. L. § 696; 13 Allen, 570, and other authorities; also, 12 Met. 235; 123 Mass. 440. The statement in this case not forming part of the res gestee, and not being a dying declaration, should not have gone to the jury. Wharton, C. L. $ 680.

Rehearing refused.

Levy, J., absent.


author: Fenner, J.

text:
    No. 8446.
    McIlvaine & Spiegel vs. Mrs. M. C. Legaré and L. Godchaux.
    Registry of a note for “ balance due on thiee boileis furnished Use Souvenir Plantation,” is sufficient to preserve the vendor’s lieu.
    The time when the vendor’s lieu was recorded is no matter to a subsequent purchaser, if it was recorded before the subsequent purchase.
    A mortgage creditor who buys the mortgaged pi operty at private sale, and whose mortgage is, therefore, extinguished by coufusion, canuot, as creditor, contest existing liens on the property.
    This Court will take judicial notice of the fact that the common law is established in the other States of the Union, and that under that system, the vendor’s privilege upon movables is not recognized; hut the case is j emanded for further evidence, to show where the contract of sale was passed.
    APPEAL from the Twenty-second Judicial District Court, Parish of Ascension. Gheevers, J.

      JE. W. Pugh, for Plaintiffs and Appellees :
    1. Privileges are valid against third persons from the date of registry. 28 An. 365 ; 32 An. 315; 29 An. 416; 37 An. 246, 275 ; C. C. 3273; 33 An, 967.
    2. Yendor’s lien and privilege on boilers sold for the use of plantation is not destroyed by the boilers being attached to plantation. The registry of note in mortgage book reciting consideration, is good and sufficient. 28 An. 749 ; 32 An. 1287; C. C. 3277, 3348, § 4.
    3. Penalties are not to be implied or extended. 9 An. 252; 32 An. 661; 13 An. 376; 10 An. 346; 26 An. 30; 28 An. 554.
    4. Mortgage is extinguished by mortgagee becoming owner of property mortgaged, and by buying the property mortgaged at private sale he takes the property eum onere and subject to all the privileges and mortgages existing against it. C. C. 3411, §2 ; 33 An. 463; 32 An. 810; 30 An. 144; 28 An. 95; C. C.2217; particularly 32 An. 610; 5 An. 497; 31 An. 394, 791, 512; 26 An. 194; 7 if. S. 471; 6 R. 216; 26 An. 36,' 13, 24, 187, 487: 10 An. 23 j 23 An. 800 ; 7 An. 349.
    5. Defendant having in his answer set out specially and particularly his reasons why the plaintiff’s’privilege cannot he enforced against him, is restricted to the objections thus made. His general denial is controlled by his special defense, and it is too late in his brief to raise new points. Knickerbocker Life Ins. Co. vs. Schneider, Sup. Ct. of U. S., Oct. Term, 1879 ; 12 An. 739; Hen. 1151, Ho. 19 ; 19 An. 488, 495; 12 An. 13; 14 An. 777; 4 An. 107; 28 An. 456 ; 26 An. 575; 15 An. 222 ; 23 An. 55; 11 An. 407 ; 3 L. 219; Brief no part of pleadings, 12 An. 833; Object of pleadings is notice, 22 An. 479, 365; 3 An. 373 ; 2 An. 958.
    6. Defendant having in his answer admitted possession of the boilers on which plaintiffs claim a lien and privilege, he cannot be heard now to deny this fact. His admission deprived plaintiffs from proving the number of boilers sold, and was an admission on. his part that he had in his possession the identical boilers described by plaintiff in his petition. 5 H. S. 636; Hen. 1150, Ho. 6 ; 30 An. 674; 7 L. 265; 3 R. 201; 5 R. 486.
    7. Foreign laws must be proved as facts. In default of snob proof, they will be considered the same as our OWN. i H. S. 522-528; 3 H. S 149; 4H.S.419; 5 H. S. 176-254; 3L.358; 12 L. 465-594 ; 16 L. 557: 2 R. 1; 4 R. 140; 6 R. 29-104; 9 R. 151-293 ; 5 An. 63; 8 An. 124 ; 14 An. 391-821; 17 An. 73 ; 27 An. 96 ; 24 An. 222; Wharton on Rvid. YI. § 288; 11 An. 269; 28 An. 58.
    8. Heither will the courts of one State take judicial notice of the laws of any other State; and this upon the theory that the separate States are, as respects their political relations to each other, essentially foreign countries, whose laws must be proven as facts. • 30 Ala. 382; 39 Ala. 468; 62 Ala. 443; 10 Ark. 169; 27 Ga. 243; 14 Ind. 424; 12 Ind. 112; 46 Mo. 243; 32 H. Y. 102-104 ; 23 Tex. 639.

      9. “If tlie courts of one State recognize the statute of another State as law in such State, this recognition maybe permanently maintained by the courts of the former State, so far as is . necessary to determine the validity of the acts done in uniformity with such laws.” Wharton Ev. §289; 21 An. 597: 1 L. 541-255: 4 An. 129.
    10. The courts of this State have never recognized that the common law is the basis of'the jurisprudence of Ohio. 17 An. 228.
    11. In the cases cited by defend ant the sale was affirmatively and conclusively shown to have been completed and consummated iu another State.; whereas, in tlie case at bar it is shown that the i>roperty was delivered in Louisiana, that the note sued on was dated and given in Louisiana, and defendant’s theory is based on one single isolated 1‘act, viz: that plaintiffs are residents of the State of Ohio. 8 N. S. 34; 11 M. 23, 730 ; 7 An- 774 • C. P. 13; 10 An. 728.
    12. Lien and privilege part of the remedy, and governed by the 1 iw of the place whore tlie suit is brought. 13 An. 503; 24 An. 25; 32 An. 191; Hon. p. 7r9, No. 5, -

      II. N. Sims, for Defendant and Appellant.:
    Plaintiffs have utterly failed to establish a vendor’s privilege, because:
    1. The evidence in relation to the alleged sale of the boilers does not show what number was embraced in the contract, or that noy price was ever fixed and agreed upon.
    A fixed price is essential to a sale. 0. 0. Arts. 2104, 2465; 6 La. 346; 1 La. 383; 2 Rob. 523 ; 6 , Rob. 450; 11 An. 708.
    2. Plaintiifb compose a commercial partnership, domiciliated and doing business at Cincinnati, in the State of Ohio, since 1861. According to their own statements, no vendor’s privilege has ever existed on the boilers in their favor, not evon as between them and Mrs. Legaré.
    The vendor’s privilege upon movables, as recognized in our Code, is unknown to the common law. 8 Mart. 135; 2 An. 335, 984; C. C. Art. 10 ; 16 An. 158; 25 An. 232.
    Privileges are siricti juris; they cannot be extended by implication or analogy,* they are never allowed but when expressly granted by law, and then only by virtue of an exact compliance with the legal requisites essential to their creation and existence. Privilegia sunt strictissirnce interpretationis. C. G. 3185, 3312; Hennen 1238, No. 3, and cases noted; Succession of Cox, 32 An. 1035.
    As against third persons, they must be conclusively established. 10 An. 429; 13 An. 352.
    This Court will take> judicial notice that the vendor’s privilege on movables is unknown to the oommon law, and that the common law forms the basis of the jurisprudence of Ohio. 2 An. 335; 16 An. 158; 8 Mart. 135; 2 An 9i?4.
    The claim of plaintiffs was never recorded so as to produce any legal effect. The pretended registry in July, 1878, of the note purporting to have been signed by J. C. Legaré, as agent for Mrs. Legaré, on the 5th of January, 1*78, and to have been given for “ balance of payment dne on three boilei s furnished the Souvenir Plantation in lt77,” could produce no legal effect whatsoever. 32 An. 1035.
    The words, “furnished the Souvenir Plantation in 1«77,’’ were evidently inserted subsequent to the execution of the note — January 5, 1878 — and probably, as id may be reasonably inferred from the testimony, at the time of its delivery to tlie Recorder on the 19t i of J uly, 1878. R. 55.
    The note does not prove a sale, and its registry could not, therefore, support a vendor’s privilege.
    Godchaux, atthistime, held mortgages against the property to the amount of nearly forty thousand dollars.» He bought it from Mrs. Legaré in March, 1880; the debts which he assumed to pay as part of the consideration of the sale are specifically set fmtli and mentioned in the act of salo. He did not assume to pay any debt which might be due by Mrs. Legaré to plaintiffs.
    He took the property subject only to those encumbrances which legally affected it. The claim of the plaintiffs did not so affect it, and neither Godchaux nor the property is liable for its payment.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiffs claim a personal jndgment against Mrs. Legaré, and a recognition of a vendor’s lien on certain property’ now in the possession of L. Godcliaux, under purchase from the first named defendant.

Godcliaux bought the Souvenir Plantation from Mrs. Legaré by a private sale. At the date of his purchase, as appears from the mortgage certificate recited in the act, the claim' sued on stood recorded in the shape of the following note :

“ Souvenir Plantation, Jan. 5, 1878.
One year after date, I promise to pay to Messrs. Mcllvaine & Spiegel, of Cincinnati, Ohio, the sum of one thousand one hundred and seventy-five dollars, eight per cent, interest from date till paid. The above amount is the balance of the payment due on three boilers furnished the Souvenir Plantation in 1877.
[Signed] M. C. Legaré,
per J. Cecil Legaré.”

The case will be sufficiently understood from a statement and disposition of the various legal points raised.

1. Defendant claims that the above note is not sufficient evidence of a price due, to support a registry of a vendor’s privilege. We think there is nothing in this objection. “ Balance due on three boilers furnished the Souvenir Plantation,” would convey the idea to any reader that it meant balance of price due for boilers sold.

2. Plaintiff urges that Godcliaux has recognized this privilege and bound himself to satisfy it out of the property, under the terms of his purchase from Mrs. Legaré, in which he stipulated as follows : “ That the purchaser, as a further consideration, * * * without making himself personally liable or assuming to pay the same, further than herein agreed upon, takes the property subject to all the encumbrances recited in said mortgage certificate, and which ley ally affect the herein conveyed property and appurtenances.”

Our conviction is clear that Godcliaux is only bound by the encumbrances which “ ley ally affect” the property., and is not estopped from disputing the validity of any of them.

3. We think the fact that the privilege was only recorded a year and a half after the sale from which it sprung, is one which does not concern Godcliaux. Privileges are valid against third persons from the date of record. C. C. 3273.

This privilege was recorded anterior to Godchaux’s purchase, which was all that was necessary as to him, since he is before us solely in the capacity of purchaser. Recordation on the day of the contract, under C. C. 3274, is only essential to secure a preference over mortgages then existing. Gay vs. Bovard, 27 An. 290 ; Id. 246, 275 ; 28 An. 365 ; 32 An. 315.

Whatever mortgages Godchaux may have held at the date of the contract, were unquestionably extinguished by confusion when he became the owner of the property by purchase at private and non-judicial sale. Murphy vs. Factors, 33 An. 463.

He is no longer a mortgage creditor, and has, therefore, no right to dispute the validity of plaintiffs’ lien, which was duly recorded at the date of his purchase, and binding on him as such purchaser.

4. We consider the sale of the boilers to Mrs. Legaré sufficiently proved; but we must say that the loans contractus is not established with sufficient certainty to enable us to recognize and enforce the vendor’s lien on the evidence before us.

Plaintiffs are residents of the State of Ohio and made the boilers there on the order of the agent of Mrs. Legaré.

We consider it well settled that this Court will take judicial notice of the well known fact that the common law forms the basis of the jurisprudence of our sister States of this Union, and that, under that system, the vendor’s privilege upon movables is not recognized. Copley vs. Stanford, 2 An. 335 ; Whiston vs. Stodder, 8 M. 984 ; Colt vs. O’Callaghan, 2 An. 984.

It is absolutely necessary, in order to sustain plaintiffs’ claim, that they should establish, either that the contract of sale was actually consummated in Louisiana, or that the common law has been so modified by Statute in Ohio as to establish a privilege in favor of the vendor of ■ movables, similar to that granted under our system. Nor do we think that defendant has forfeited his right to urge this defense by his urging of other special defenses in his pleadings.

As the evidence, however, is inconclusive on the question of where the sale was consummated, and as it appears that the objection norv under consideration was not suggested in the pleadings, we think the purposes of justice will be subserved by remanding this case for the taking of further testimony on this point.

It. is, therefore, ordered, adjudged and decreed, that in so far as the judgment appealed from gives personal judgment against Mrs. M. C. Legaré, the same be now affirmed; and that, in other respects, the same be annulled, avoided and reversed, and that this cause bo remanded to the District Court, for the purposes herein indicated, to be there proceeded with according to law and to the views herein expressed ; the costs of this appeal to be borne by the plaintiffs and appellees, and those of the lower court to abide the final judgment in the case.

Rehearing refused.


author: Eenner, J.

text:
    No. 8281.
    Union National Bank vs. Cora A. Slocomb.
    Butler vs. Slocomb, 33 An. 170, re-affirmed and followed.
    Where notes are pledged to a bank before maturity, to secure the note of the pledgor, the extension or renewal of the pledgor’s note at its maturity, by substituting a new note, with interest paid in advance, in the ordinary manner of banks, does not extinguish the original obligation or the pledge securing the same.
    The new note furnished in renewal of the old was but a continuance of the same obligation, and did not operate a novation, or release, or impair the effect of the original pledge in absence of proof of such intention. 6 M. 430; 4 R. 493; 6 R. 443; 24 An. 193; 1 Evan’s Pothier, No. 559; 4 Marcadé, No. 778.
    Judgment affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Oarleton Hunt, for Plaintiff and Appellee.

      Kennard,-Howe & Prentiss, for Defendant and Appellant.
   The opinion of the Court was delivered by

Eenner, J.


text:
    No. 1035.
    Parish of West Carroll vs. Mrs. E. D. Gaddis et al.
    Oil tlio division of a public corporation, possessing corporate property, into separate new communities, each becomes entitled to hold in severalty the public property which falls within its limits. The rule is different when a new corporation^ is created, and the old one from which it is taken remains unchanged, preserving its original name.
    Property donated to a parish in fee simple, for its use and benefit, and upon which a courthouse was built and used, cannot be legally sold under a Police Jury ordinance, although the parish seat being changed the building was abandoned and threatened going to ruin. Such sale having been made without legislative authority is a nullity, and so conveyed no title. In such a case, the defendants are entitled to a reimbursement of the purchase price, as a condition precedent to the recovery of possession of the land by the iilaintiff.
    APPEAL from the Sixth District Court, Parish of West Carroll. Brigham, J.

      14. F. Newman and I). J. Norwood, for Plaintiff and Appellee :
    1. Where a now corporation is formed, the public property falling within its limits belongs to the corporation. Dillon, Municipal Corporations, Sec. 129 ; 32 An. 624.

      2. A donation of real property to a municipal corporation, is a sufficient dedication to public uses, and the ownership to such property is vested in the public. 6 Peters, 440; 3 An. 282 ; 5 An. 8; 14 An. 872 ; 18 An 560 ; 21 An. 244 ; 15 L. 170, 219 ; 16 L. 705.
    3. Peal property thus dedicated to public uses becomes extra, commercium, and none but the sovereign can ever place it once more suscojitible of piivate ownership. C. C. 449, 454; 4 An. 84; 7 An. 595; 18 An. 560 ; 21 An. 244; 32 Au. 624; Dillon, See. 531.
    4¡. A sale of property thus dedicated and acquired can be made only by the sovereign, through the legislature, and a sale, made by tbe Police Jury, of such property, without legislative sanction, is ultra, vires, and the sale is utterly null in its conception and consummation. * 10 Peters, 734; 7 Texas, 288; 29 An. 592, 261; 23 An. 191, 234, 251; 32 An. 628; Dillon, Secs. 372, 381.
    5. Property having been dedicated to public uses, does not lose the character of public property by the fact of non-usage. It matters not how long it may have remained out of use, the public has the right, at any time, to demand and occupy it. Dillon, Sec. 531; 4 An. 73 ; 18 An. 562; 20 An. 226; 30 An. 64; 33 An. 620.
    6. A sale of public proporty by a Police Jury is utterly null, and when it is shown that fraud or ill-practices were resorted to, to provoke the sale, or the preteuded. purchaser failed to comply strictly with his bid, he will not he entitled to a restitution of the purchase price, in case of eviction. Dillon, Secs. 372, 381 ; 29 An. 59*2.

      IT. JP. Wells, for Defendants and Appellants:
    1. The property of a parish, whether public or private, may be sold when not dedicated to public use, nor held in trust, nor necessary for the administration of its parochial government. Dillon on Corporations, 3d Edition, Sec. 575; 6 A. 570; 10 A. 497; 26 A. 498; 23 A. 61.
    2. When a part of a parish is cut off and created into a new parish, in the absence of any apportionment by tbe legislature, the old parish will hold all its property, and be liable for all its debts. Dillon on Corporations, 3d Edition, Secs. 188, 189; Boone’s Law of Corporations, Sec. 315.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a petitory action. The plaintiff alleges, in substance, that the defendants claim to own a certain lot and buildings tbereon, situate in the town of Floyd, and known as tbe courthouse, under a conveyance made thereof in 1872, in pursuance of an ordinance, of the local Police Jury; that the said property was donated in 1855, to the then Parish of Carroll, for its use, and benefit; that the pretended sale and purchase are nullities, for want of legislative sanction j that subsequent to said sale, tbe Parish of West Carroll was created, and embraces tbe said real estate, which has become its property. Tbe petition concludes with a prayer for the annulment of the defendants’title and a recognition of plaintiff’s rights of ownership to the lot in question.

Without denying the facts alleged, the defendants answered, averring that the plaintiff has no standing in Court; that the property was of such character that it could have been sold by the Police Jury, without legislative authority; that the sale had been ratified by a subsequent Police Jury, and by tbe legislature; that if tbe sale be a nullity, they are entitled to a repetition of tbe purchase price to be paid back before return of tbe property.

There was judgment annulling the sale, recognizing ownership in the Parish of West Carroll to the property in question, and entitling the defendants to a return of the price of sale, with interest.

Prom the judgment thus rendered, the defendants have appealed. The plaintiff has asked no amendment of the judgment.

The record shows that, in. 1855, George 0. Wilson and S. C. Ployd donated the lot in question, to the Parish of Carroll, in “fee simple,n for Us use and benefit; that, subsequently, a courthouse wa's built upon it and was used as such; that the town of Ployd, in which said lot is situated, was then the parish seat; that in 1870, the parish seat having been removed by law to or near Providence, on the Mississippi, the courthouse at Ployd was abandoned; that it was so fast dilapidating and becoming the resort of town stock, that the Police Jury ordered it to be sold; that it was then apparently purchased by J. M. Gaddis, through whom defendants claim; that the sale was ratified by a succeeding Police Jury.

In 1877, the legislature created the Parish of West Carroll, within whose limits the property in question is found.

It is not pretended that the Police Jury was specially authorized by the legislature to sell the property, but it is contended that the legislature ratified the sale which was made, by giving it an indirect sanction, resulting from Section 13, of Act 24 of 1877, which is to the effect: that West Carroll is bound for a pro rata share of the debts of the old parish, except those due for building and repairing the courthouse and jail in the town of Providence.

Two questions are presented for solution in this controversy:

1. Whether the plaintiff has a standing in Court, to claim the real estate in dispute;

2. Whether the property was susceptible of a valid alienation by the Police Jury.

I.

It is evident that the legislature, when it adopted Act 24 of 1877, the title of which is “ to abolish the Parish of Carroll,” contemplated some fundamental modification of the political organization then in existence. The Parish of West Carroll was carved but of the territory of the Parish of Carroll, and what remained was named East Carroll. New officers were appointed for the first parish. Although none were appointed for the second named, it is clear that those previously in existence became functi offieio, the moment the Act went into operation, as officers of the Parish of Carroll, which had been blotted out, and at once became officers of the Parish of East Carroll, which succeeded it. The legislature thought it wise to dispense with new appointments.

The Act. refers to two distinct and independent organizations, one actually, another virtually created. The old Parish of Carroll became defunct. It died away, but it was instantly replaced by the two Parishes of East and West Carroll; the former to be represented and governed by the officers, the laws and regulations in existence at the time the Act took effect.; the latter t.o be represented and governed in the manner provided for by the same Act.

Under the recognized rule that, on the division of a public corporation possessing corporate property into two separate new communities, each becomes entitled to hold in severalty the- public property which falls within its limits, the property in this case passed to the Parish of West Carroll. Dillon on Mun. Corp. 3d Ed. p. 215, 5 188, (128); 32 An. 624.

The rule is different where a new corporation is created, and the old one from which it is taken remains unchanged, preserving its original name.

The intention of the legislature no doubt was, that each new parish should consist of all the territory within the limits, as apportioned and fixed, and that each should own the corporate property included within its boundaries. The legislature made provision for the apportionment of the debt, but remained reticent as to the disposition of the corporate property.

Under the circumstances, the legislative intention announced may .be legitimately inferred. A different conclusion would be unreasonable, incongruous, abnormal and not practical.

We, therefore, conclude that the Parish of West Carroll has a standing in court to claim the property in dispute.

II.

We are next to consider whether the property was susceptible of a valid alienation by the Police Jury.

Parishes, like counties in other States, are involuntary political or civil divisions of the State, designed to aid in the administration of government, as State auxiliaries or functionaries, possessing no other powers than those delegated, ranking low down in the scale of corporate existence, and well distinguishable from municipal corporations XJroper, which are vested with more extensive powers and endowed with more important functions and a larger measure of corporate life. As a rule, they cannot acquire real estate, unless for public utility, and cannot dispose of the same, after it has been acquired and devoted to public service, without legislative authority. Dillon, 3d Ed., 25. They may, however, be the object of public and private bounty, in the absence of disabling or restraining Statutes.

They do not acquire for themselves as a political organization. They acquire for the benefit of the public, of the people, particularly the local community, which is represented primarily by the State, and secondarily by them, but so far only as the State has delegated to them the power to do so. As State auxiliaries, they cannot dispose of public property, unless with the formal sanction of the State, and even then, in those cases only in which the State, violating no trust and no contract, and infringing the rights of no one, could herself legally act. Creatures, they are wholly dependant upon and controlled by their creator. They have no life, no attribute, no power, no rights, no obligation, but such as have been conferred or imposed upon them.

It is undeniable that the property in this case could have been validly donated and the donation accepted, as was done. The defendants cannot controvert this proposition without destroying their own title.

It would have been legitimate for the donors to have dedicated the property themselves, for a specific object, and in default of such dedication, it was competent for the parish to have devoted it to such public purpose as, in its judgment, it deemed proper and advantageous for the community.

An inspection of the act of donation shows that the donors did not dedicate the property for any particular object, but gave it in ‘‘fee simple to the parish, for its use and benefit.”

The donation, with that limitation, was accepted. Unrestricted as it was by any special disposition of the property by the owners for a public object, the parish, through its representatives, determined to use it for the purposes of a courthouse, which is a public building necessary in every community. Such a building was constructed upon the property, and was subsequently used according to its destination.

Upon the principle that the acceptance of a conditional donation constitutes a contract, the terms whereof are binding on the donee, a long line of authorities underlies the well established proposition that a municipal or political corporation has no implied or incidental authority to alienate or dispose of, for its own benefit, property dedicated to or held by it in trust, for the public use, and cannot extinguish the public uses of such property, which is not liable for the payment of corporate debts. Dillon, 3d Ed. § 650, and authorities in note; 30 An. 66 ; 10 Pet. 734; 7 Texas, 288.

How far the legislature has the power to confer authority to dispose of property held for such purposes, depends upon the nature and extent of the dedication. If full title is held to the ground, for public uses, without restriction, the legislature may doubtless direct and regulate the purposes for which the public may use it. If the grant be made for a specific purpose, the public acquiring merely an easement, the donor retains an interest which deprives the legislature of the power to sanction a sale. Dillon, § 651.

In the case of Van Ness vs. Washington, 4 Pet. 232, in which the streets and public squares of the City of Washington had been granted by the original proprietors “for the use of the United States forever,’-’ it was held that those words conveyed an absolute unconditional fee simple, and that the original owners could not object to a sale, authorized by Congress, of such portions as were no longer useful for streets and squares. See also, 3 Lans. N. Y. 429; 45 N. Y. 234.

Had the property in this controversy been donated, without any restriction to its use, to a municipal corporation proper having the right to acquire private property, a different question might have been presented, as such an organization possesses the incidental or implied right to alienate or dispose of the property, real or personal, of a private nature, which it may own, as a natural person could, when not restrained by charter or statute. Whatever may be the right of those corporations, in such cases, the power could not be extended to instances of property acquired by dedication to public use generally, and devoted to some special purpose, for then the property becomes public property, and cannot be alienated withoutlegislativeauthority. Dillon, 3d Ed. $$ 574, 575, et seq., and notes.

The powers of municipal corporations proper being more extensive than those of counties or parishes, it has been held, that where property had been acquired by a city for a marlcet, and was constantly used for that purpose for forty years, the land was not thereby dedicated, but the market being abandoned, the land could be sold by the corporation. 18 Ohio, 563; Market houses are not classed among public things. 14 An. 875.

The only authority to which our attention has been called by the defendants, as militating against the principles before announced, concerning the attributes of parishes and the character of property owned by them, is that found in 10 An. 497. The case was one in which the United States had made, in 1823, an unconditional grant to the Parish of Ouachita of the land then in controversy, whichhadbeen previously used as a graveyard up to the year 1800, and which had not, since that last date, been dedicated expressly or by acquiescence to any public use. The Court held, that the temporary use of the land as a burial ground, which was abandoned twenty-three years previous to the donation, had not excluded it from commerce, and not exempted it from sale, and that inasmuch as it was not pretended that the property was essential to the existence or suitable administration of parochial government- and affairs, the judicial sale made of it, in 1827, under execution to satisfy a judgment against tlie parish, was valid and transferred full title to the purchaser.

Without affirming the doctrine there announced, we will observe that the differences between the two cases are glaring. The land involved liad been donated unconditionally, had not been dedicated either by the donor or the donee'at the time of or since the donation; it was not out of commerce, it was not necessai-y or even suitable for parochial purposes. The property in the present instance was donated by the proprietors themselves for public use and benefit, in a manner which substantially amounts to a dedication to the i>ublic; it next was devoted by the donee to a public purpose, by the construction and use of a courthouse upon it; it was ah' initio stripped of the character of private property; it was put hors de commerce, and although not used for a public purpose since the removal of the parish seat to Providence, it has not the less continued to be property suitable and, in a contingency, essential for some parochial object. '

The land, by the removal of the parish seat and by the discontinuance of the use of the courthouse upon it, did not revert to the original grantors, 34 Penn. St. 133, and has not ceased, therefore, to belong to the public, to whom it was donated.

It continues to be held under the same title, whether used or not for a public purpose. It is insignificant that it is not used. It is sufficient that the right to use it exists in the public. 30 An. 04; 33 An. 020. " '

We fail to discover in the Act of 1877, the essential elements required to constitute a ratification of the sale by the legislature.

The consequence is, that as the sale was wholly unauthorized by the legislature, it is illegal, and that no title of ownership has passed by the averred purchase. The plaintiff is entitled to have the sale annulled and to recover the property under the primordial grant.

The action of the Police Jury, which ordered the sale, and that of the succeeding one which approved' it, were altogether ultra vires, and so, of no effect. 10 Pet. 734 ; 7 Texas, 283.

The appellants ask that the judgment of the lower court, awarding them the price of sale paid directly to the parish, be amended, so as to require payment of said sum by the parish to them, previous to entry upon the land. The appellants are entitled in equity to that relief.

It is, therefore, ordered and decreed, that the judgment appealed from be amended, by requiring payment by the Parish of West Carroll, to the defendants, of the sums therein mentioned, as a condition precedent to the recovery of the possession of the land by the parish, and that thus amended, said judgment be affirmed at the cost of appellee in this Court.


author: Pociié, J. Poché, J.

text:
    No. 1059.
    John T. Ludeling vs. Francis P. Stubbs.
    The owner of the lowér lands of two adjacent estates can do no act'whioh would impede the natural flow of water on his lands from those of the higher estate. Hence, a dam or levee erected by the owner of the lower estate, across a natural drain, receiving waters naturally flowing from his and his neighbor’s lands, will be declared illegal, and abated as a nuisance.
    The owner of the superior estate may make all drainage works which are necessary to the proper cultivation and to the agricultural developments of his estate; to that end, he may cut ditches and canals, by wnioli the waters running on his estate may be concentrated, and their flow directed or increased beyond the slow process by which they would ultimately reach the same destination.

    But such owner cannot improve bis land, to the injury of his neighbor; and hence, he will not be allowed to cut ditches by which the waters running on his lands would be diverted from their natural flow, and concentrated so as to be thrown on his neighbor’s lands, at a point which would nob be their natural destination; nor will he be allowed to drain by means of ditches on his neighbor’s lands waters which would remain stagnant on his own lands.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      John T. Ludeling, Plaintiff and Appellant, propria persona:

    1.Change of owners makes no change as to servitude. C. C. 653.
    2.Proprietor cannot do anything to damage his neighbor, except there be an absolute necessity, and then he must indemnify. C. C. 667, 1965; 7 An. 291; 10 An. 689; 12 An. 554 ; 13 An. 587; 15 An. 497, 681.
    3.Plaintiff’s estate is notin any sense a “lower estate,” and does not owe any servitude to defendant’s lands. The lands all drain back from the front to the railroad, and south of the railroad to the Lafourobe swamps. 7 An. 292.
    4.If any of it were subject to a servitude to any part of defendant’s lands, such parts will have to receive the waters as they flow by the course of nature, and their course cannot be altered, except by agreement between the parties. “By nature they are only to receive such portion of the water as would occupy an extent on the upper ground equal to - the width of the lower estate.” 2 M. 233; 15 Au. 681.
    5.If the lower estate owe a servitude at a certain part of it, the owner of the upper estate has no right to change the natural flow of waters, so as to throw them on another part of the lower estate. 15 An. 681.
    6.The owner of the upper estate cannot make on his own lands any work which would change the natural passage of the water on the one below, or by collecting it at a certain point, by ditching ponds and low places covered wi!h stagnant water, in such a way as to throw the mass of water, which would naturally remain in pools or ponds, upon the lands of his neighbor, situated below. 12 La. 505 ; 14 J a. 161; 7 An. 291; Toullier, Yol. 3, p. 374; Marcado, 13 An. 587.
    7.“Every low place in a cultivated field is not a natural drain, although the rain water coming from above might flow through it, if the land was in its natural state.” 7 An. 292.
    8.Even if the natural drain in the lane across the Magenta and Dowell tracts were east, instead of south, defendant had no right to cut through the ridge between tbe slough at the end of said lane and the so-called Bennett Bayou, because said ridge would have interrupted the natural drainage east. 10 An. 689 ; 12 An. 554; 15 An. 681, 497, 300.
    9.Although the beginning and tbe exit of these ditches bo upon premises owned by the defendant, and even if it disgorged its waters into a natural coulee, which runs also through his land, yet, if it renders the natural servitude more burdensome, it is within the prohibition of Article 656. 13 An. 588; C. O. 1965. . *

      10. The principles announced in 2 Mart. 233 ; 12 La. 505 j 14 La. 161; 7 An. 291; 10 An. 689 ; 12 An. 554 • 15 An 300, 497, 681; 16 An. 151; 33 An. 800, are all in perfect accord.
    In 16 An. 15L, tlie Court says: “ In' determining cases of this hind, we must never lose sight of the interests .of both parties,” and “ wo must be guided by the vailed and peculiar facts of each case.”
    11. How public roads are established. R. S. 3369. Public roads cannot be changed or obstructed or closed, except with consent of contiguous owners and approval of Police Jury. Sec. 3385. Penalty for so doing. Secs. 33d0, 3386.

      JBoatner & Liddell, for Defendant and Appellee :
    Article 660 C. C., relating to the predial servitude of drain, is to be liberally constructed in favor of the estate to which it is due. Held, accordingly, that the owner of an estate whose waters flow by natural drain on the lands of his neighbor, has the right of cutting ditches or canals by which the waters may he concentrated, and their flow increased be¿ ond the slow, natural process by which they would ultimately reach the same destination. 33 An. 796; 12 La. 503 ; 15 An. 300, 68L.
    Police Juries are vested by law with the control of roads. R. S. 3364, 3380; 12 An. 169.
    The Court will mulct in exemplary damages those who abuse the equitable remedy of inj unction.
    The fees of defendant’s attorney may be allowed as special damages on dissolution of an injunction. 2 La. 102; 5 La. 246; 14 An. 333.
    Malice is inferred from want of probable cause. 9 Rob. 387, 418; 9 An 219 ; 6 An. 577.
    Any objection to the form of an action is waived by going to t ial without nrgiug it.
   The opinion of tlie Court was delivered by

Pociié, J.

This suit presents questions of drainage, damages, and the right to change a public road.

Plaintiff, owning a large tract of land adjacent to that of defendant, both fronting on Bayou De Siard, with lines running north and south, complains that defendant has recently cut across his plantation, in an easterly direction and in other directions, several ditches, by means of which he lias diverted rain waters from their natural flow and thrown them over plaintiff’s cultivated lands, which have in consequence been overflowed to his great injury and loss. He also complains of a change made, without legal authority by defendant, in a public road leading from Monroe to Bastrop, in this State, and to Vicksburg, Mississippi, by which change ho has impeded the travelling and hauling facilities between plaintiff’s plantation and Monroe, his shipping point.

I-Ie prayed for a writ of injunction, forbidding the acts complained of and for damages resulting from losses, and for expenses necessarily incurred in building a levee for the protection of his lands from the effect of the surplus waters thrown on the same through the acts of' the defendant.

For answer, the defendant admits to have cut the ditches complained of, hut avers that such ditches being cut conformably to the natural fall of the lands, has not increased the volume of waters which would naturally flow pn plaintiff’s lands, as the lower estate ; and he justifies the change made by him on the public road, by a special authorization of the Police Jury of Ouachita Parish, to whom devolves by law the control of all public roads in tlie parish. In reconvention he charges the construction of the levee or dam by plaintiff, as illegal and an unwarranted interference with a natural drain, in consequence of which defendant’s lands have been overflowed and damaged.

He prays for the removal of the obstruction made to the natural drain by plaintiff, and for damages caused by plaintiff’s injunction and by his suit, which defendant alleges to be malicious and without probable cause.

The District Judge rejected plaintiff’s demand, granted defendant’s reconventional demand, and allowed him damages in the sum of seven hundred dollars, aud plaintiff appeals.

Under the law governing like cases, the main issue presented in this suit involves the consideration of the following questions:

1. Does plaintiff’s land owe a servitude of drainage to defendant’s adjacent plantation ?

2. Has the defendant done anything whereby the natural servitude, which may be due by plaintiff’s lands, has been rendered more burdensome?

The question involving tire legality of the change in the public road, which has been engrafted in the controversy, will be considered separately as a distinct proposition. The law under which the rights of the contending parties are to be tested and settled is very clearly announced in the textual provisions of our Code, and the numerous adjudications of our courts on this subject, which is of vital importance to the owners of the soil in Louisiana, have presented an only difficulty • which was to correctly apply the facts presented in each particular case.

In the case of Gnesnard vs. Bird, 33 An. 796, we had occasion to make a thorough examination of the law and an exhaustive review of our jurisprudence on this question.

This review resulted in the expression of conclusions which we recently reaffirmed in the case of Kennedy vs. McCullom, 34 An., not yet reported. Prom our jurisprudence, as thus firmly established, we understand that the issues in this case are to be tested under the following rules:

The owner of the lower lands of two adjacent estates can do no act which would impede the natural flow of waters on his lands, from those of the higher estate. The owner of the superior estate may make all drainage works which are necessary to the proper cultivation and to the agricultural development of his estate. To that end, he may cut ditches and canals by which the waters running on his estate may be concentrated, and their flow increased beyond the slow process by which they would ultimately reach the same destination.

But tlie owner of the superior estate cannot improve his lands to the injury of his neighbor, and thus he will not be allowed to cut ditches or canals, or do other drainage works by which the waters running on his lands will be diverted from their natural flow, and concentrated so as to flow on the lower lands of the adjacent estate at a point which would not be their natural destination, thus increasing the volume of water which would by natural flow run over or reach any portion of the lower adjacent estate, or to drain over his neighbor’s lands stagnant waters from Iris, and to thus render the .servitude due by the estate below more burdensome. C. C. Art. 660; Martin vs. Jett, 12 La. 501; Becknell vs. Wiendahl, 7 An. 291 ; Sowers & Jamison vs. E. Shiff et al., 15 An. 300; Barrow vs. Landry, 15 An. 681; Delahousaye vs. Judice, 13 An. 587; Guesnard vs. Bird, 33 An. 796; Kennedy vs. Mc-Cullom, 34 An.

We shall now undertake the task of testing the facts of this case by those principles which are substantially recognized by both parties, and which rest on a foundation too solid to admit of discussion or even to justify comment.

As could be naturally expected in a case like this, characterized by a great deal of acrimony and animosity between the parties, the testimony of witnesses is considerably conflicting, and the search for the truth in a voluminous record containing a mass of irrelevant testimony, has by far been the most painful and most laborious part of our examination of this controversy. And our lack of acquaintance with the numerous witnesses who testified, and our consequent inability to absolutely test their veracity and credibility, would have left serious doubts on our minds as to the correctness of our conclusions, had it not been for the very material assistance which we received from maps made by skilled and competent surveyors, under the orders of the District Court, giving with mathematical precision, by means of levels, the exact rise and fall of the lands, and thus settling the question of the natural flow of waters.

After a careful perusal of all the evidence in the record, and a patient and tedious study of the official maps, filed with the transcript, we have found the following as the established facts bearing upon the issues in this case:

Defendant’s plantation, which adjoins that of plaintiff, lies west of the latter, and is composed of three different tracts forming, imtil a few years ago, three distinct plantations, known as the Gleason, the Dowell and the Magenta.

On Bayou De Siard, like on all other water courses in Louisiana, the fall is from the front to the rear, being on these plantations from north to south, and we find that previous to the .purchase of these various tracts of land by the defendant, the system of drainage used on each place by the previous respective owners, was by means of leading ditches running from the front to the rear of each property. With the exception of this natural fall, and of several ponds and low swales or sloughs, the surface of these lands is a flat level, interspersed by a few small ridges, and slightly elevated points or diminutive mounds. On the eastern line of plaintiff’s front plantation there begins a kind of stream or natural drain, called a “slough” by plaintiff and his witness, and designated by defendant and his witnesses as a “ bayou,” with the cognomen of “ Bennet’s Bayou,” which, for convenience sake, we shall adopt in this opinion. This drain runs across plaintiff’s lands in a westerly direction, and crosses into defendant’s lands in the same direction, up to within a short distance from a pond situated in the eastern part of the former Gleason tract, known as “ Willow Pond,” which lies a short distance north of the Monroe and Bastrop road. The bayou thence runs nearly due south, until it takes a southeasterly direction and again crosses into plaintiff’s lands, near the northern extremity of his rear plantation, known as “ Fox Hill Field,” and then continues in an easterly course.

The main ditch complaiued of begins at a point in the Monroe and Bastrop road, at the crossing of the former boundary line between Magenta and Dowell, and runs east until it empties into Bennet’s Bayou, as just described. Another ditch begins at the southern extremity of Willow Pond, and running nearly due south empties into the first mentioned ditch.

The evidence shows that “ Willow Pond ” is the lowest point on the north of the public road, on either of defendant’s three tracts of land; and that the most natural fall on all three of the tracts from the north, the east, and the northwest, is to that pond, and that the pond has no natural drain or outlet.

The evidence also shows that the natural fall from the point where the east running ditch begins, is not towards the “ Willow Pond,” and that this ditch is cut through a ridge elevated at one point more than two feet above the level of the starting point of the ditch.

From the evidence, we are satisfied that the most practicable and efficient drainage of all three of the tracts north of the public road, would be by a ditch beginning at the southwestern extremity of “ Willow Pond,” running south by west, so as to empty into “ Pin Oak Pond,” the lowest point on all defendant’s lands ; which pond discharges its waters in a slough running in a southeastern direction, and which has necessarily a lower water level than the pond.

From the evidence, it appears plain to us that the only servitude due by plaintiff’s lands to defendant’s estate is to the eastern portion of the Gleason place. Hence, we conclude that by cutting the ditch running east, he has diverted waters from their natural flow, and concentrated other waters, so as to make them reach plaintiff’s lands at a point which they would not have ultimately reached by slow process, as their natural destination; and that by draining by the southern bound ditch connecting with the former his Willow Pond, he has thrown in Bonnet’s Bayou, and by it on plaintiff’s lands, stagnant waters which would have naturally remained on his own lands, and that these acts fall within the prohibition contained in the Code, and that defendant has thus, by his acts, increased the burden of the servitude due by the lower estate of his neighbor.

The evidence shows that such a course is not the only one at his option for the accomplishment of the laudable, purpose of facilitating the cultivation of his lands, of increasing their productiveness and enhancing their value. Hence, in our opinion, plaintiff’s complaint was well founded in law, and he was entitled to the relief which he invoked from the courts.

But it follows as a corollary, from the proposition established in this opinion, that plaintiff was wrong in erecting the levee or dam which defendant complains of.

The error of his opponent could not justify an error on his part, or authorize him to take the law in his own hands.

As to the change made in the direction of the public road by defendant, the evidence shows that he was specially authorized thereto by an ordinance of the Police Jury, and that the change was made under the supervision of the road inspector.

The argument of plaintiff, that such a change was not preceded by the consent of the “ contiguous” property owners, falls under the evidence which shows that both the old and the new roads are on lands owned exclusively by the defendant, and that, therefore, he was the only “ contiguous ” property owner entitled to be consulted in the premises. As the Police Jury is vested by law with the full control of the public roads, we have no concern with the consideration that the now road may not be as good or as convenient to plaintiff and the public generally, as the old road.

On the question of damages, we find that both parties have reciprocally violated the law, and justice requires that we should leave them in the condition brought about by their own acts.

Hence, we shall allow no damages on either side. 15 An. 681.

On the question of costs, we think that defendant is entitled to his costs on his reconventional demand in the lower court, but that he must pay all other costs.

It is, therefore, ordered and decreed, that the judgment of the lower court be amended in the foliowing particulars:

1. In rejecting plaintiff’s demand for the abatement of the nuisance occasioned by the construction of defendant’s ditches, two from Magenta and one east, and of another ditch connecting therewith and beginning at “Willow Pond,” and it is ordered and decreed, that said ditches be declared illegal, and that the defendant be enjoined from continuing said ditches and to fill and stop the same, and that in default of his so doing, within sixty days from the date of this judgment, the sheriff be ordered to forthwith fill and close said ditches, previous to his destroying the levee or dam ordered to be removed by the District Court.

2. That such judgment be further amended, in so far as it condemns plaintiff to damages, which are hereby denied, and that as thus amended, said judgment be affirmed. Costs of appeal and of the lower court on the main demand to be paid by defendant, and the' costs of his reconventional demand to be paid by plaintiff.

On Application por Rehearing.

Poché, J.

As usual, in applications for rehearing on questions of fact, we are charged with very glaring errors in the conclusions reached, and with an utter failure to understand and properly appreciate the evidence in the record. The complaint in this case is made with so much reliance and apparent, confidence, that we have felt it our duty to re-examine the evidence in full, with a view to ascertain whether we had or had not wandered from the correct path.

This examination has had the effect of confirming our previous conclusions.

Defendant triumphantly charges that we signally erred in asserting that “ Willow Pond” has no natural drain or outlet, and he proceeds to prove our error by showing:

1. An escape of waters by running over its banks when too full.'

2. By escaping through two ditches made by the hand of man.

As both these means are natural drains unknown to ns, we cannot appreciate the force of the argument. We note defendant’s strenuous effort to show that the drainage indicated by us would not be as convenient to him as the enjoining ditches.

This may be true, but we understand the law to compel the use of the less convenient mode, when it appears that the other mode would cause injury and loss to the neighboring estate.

The levels on the lino of drainage pointed out in our opinion, from “Willow Pond” to “Pin Oak Pond,” are as follows: 95.24, 95.27, 94.77, 94.52, 94.19, 92.88. They speak for themselves. They are taken from the map relied on by defendant, and are very suggestive of the mode of draining the new road under the proposed change.

We note defendant’s statement as to the failure of previous attempts to establish that drainage. The irresistible conclusion, in the face of the above levels, is that the experiment must have been tried by very unskilled hands, by means of insufficient or deficient ditches.

We have given due consideration to the testimony of O’Neil and other witnesses, who are held up as the most reliable witnesses in the case. In fact, we had been particularly edified by the statement of O’Neil and other witnesses, to the effect that: “There is a decided decline from the north of the land on the Dowell tract to that Willow Pond,’ where thvfall (9) is shown on the map by the following levels, from the lane in the line to the pond: 96.21, 96.91, 97.65, 96.68.”

Understanding that a court of final resort is not always expected to detail the reasons which lead to the conclusions reached, and having seen that O’Neil had since departed this life, we had omitted this unjileasant criticism of his testimony, but the stricture has been forced from us by the undiminished zeal of defendant in upholding error.

We reiterate our reasons for refusing damages to either party in the case, and fail to discover in such a course the glaring inconsistency complained of. Defendant’s standard of consistency may be very correct and commendable, but until better advised, we prefer to be guided by the consistency in the case quoted from 15 An. 681.

Since writing the above, we have received an application for rehearing filed by plaintiff, who loudly complains of our refusal to allow him any damages for the acts of the defendant, herein declared to be unlawful. This application confirms the justice and the wisdom of the refusal of damages to either party.

We see no reason to justify us in reopening this case.

Rehearing refused.