author: Bermudez, C.'J.

text:
    No. 8260.
    Henrietta Davidson, Executrix, et al. vs. City of New Orleans. John Crosley & Sons, Intervenors.
    A judgment for a Drainage tax will not be enforced, where it is shown that tbe property, far from being benefitted, was injured by tbe alleged drainage. Tbe consideration of tbe judgment, which was piospective, having failed, tbe eventual debtor is, in law and equity, entitled to relief from the judgment. Drainage warrant holders depend for payment upon the collection of drainage taxes legally due and exigible, and cannot be paid out of any other fund.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Bightor, J.

      IT. FT. Ogden and It. It. Forman, for Plaintiffs and Appellees.

      Lacey <£ Bnfler 8. P. Plane, for Defendant and, Intervenors, Appellants.
   The opinion of the Court, was delivered by

Bermudez, C.'J.

The object of this suit is to render inoperative a judgment for a drainage tax, and eventually, to regulate its effect.

The conspicuous features of the case presented by the Record, are the following :

In January, 1875, a judgment was- rendered on appeal, by the Supreme Court of this State, then in existence, reversing that of the lower court, and approving and homologating the assessment roll presented in 1871, by the Commissioners of the First Drainage District, the approval and homologation to operate as a judgment against the property described, as assessed in said roll and also against the owner or owners thereof, with ten per cent, in addition to the amounts assessed, to pay costs and counsel fees. 27 A. 21. This judgment was affirmed by the Supreme Court of the United States, who did so, saying that there was no error in the judgment of the Supreme Court of Louisiana, of which it has cognizance. 96 U. S. 96.

A piece of rural property, known as the “ Allard Place,” was mentioned on said roll as belonging to John Davidson. A tax of §40,253.85 was assessed upon it, as due for the drainage of the same.

Upon the complaint that the City of New Orleans, which had by law succeeded the commissioners, was about to take steps for the satisfaction of that claim, out of said property and of other property of theirs, and that said judgment had ceased to have any vitality, for reasons stated, and could no longer be enforced, the widow and executrix, and the heirs of John Davidson obtained an injunction arresting the writ, and prayed that it be perpetuated ; that it- be decreed that the City of New Orleans has no legal claim on any of their lands for drainage; that all inscriptions therefor be cancelled, and if this relief be denied, that said claims be restricted to the specific property upon which it was assessed, and not to be a personal debt against any of them.

The City filed exceptions to the jurisdiction of the court, and pleaded res judicata and no cause of action.

On appeal from a judgment dismissing the suit, this Court disposed of the exception to the jurisdiction and of no cause of action, and reserving the right of defendant to reiterate the other plea, and to set up other defenses^ remanded the case. 32 A. 1245.

Upon the remanding, the City renewed the plea of res judicata, and asserted the impairing of the obligations of a contract, alleged to have been formed, touching the levy, collection and application of the drainage tax claimed.

John Crosley & Co., representing themselves as owners of drainage warrants, $688,695, whereof $368,695 issued under Act 30 of 1871, and $320,000 under Act 16 of 1876, of the General Assembly of this State, intervened in this suit. They claim that the warrants were issued with due authority, for legal consideration, and are secured for payment, under the. statutes which constitute a contract, the obligation of which could not be, and were not, legally impaired by any act of the State.

They claim no judgment, either against the plaintiffs or against the City.

From a judgment in favor of plaintiffs, the defendant and the intervenors have appealed.

The grounds upon which plaintiffs seek relief, appear to be six in number: %

1. That all of petitioners’ land in the First Drainage District, between the Mississippi River and Metairie Ridge, having been drained, and the expense of the drainage having been paid under the drainage statutes of 1835, 1839, the subsequent assessment, under the Act of 1858, merged into the judgment enjoined, and is'not legally exigible.

2. That by Act 165 of 1858, the assessments for draining any one section or district, could not exceed $350,000, and payments of drainage tax having been made in excess of that amount, there is nothing due and exigible under the judgment aforesaid.

3. That the tax levied and imposed in the First Drainage Section for drainage purposes, is greater in amount than the benefit to be derived by the owner of the assessed property from the drainage work; taxation accompanied by such result is tantamount to cónfiscation and, by reason thereof, the tax is violative of the fundamental law and so void.

4. That the drainage acts passed in 1858 and 1859, 1861, and Act 30 of 1871, levy and impose a drainage assessment not equal and not uniform, and, therefore, are violative of the Constitution of Louisiana, in force at the time when those laws were enacted.

5. That the drainage work for which-the tax underlying the judgment in controversy was rendered, lias not been done, and that the scheme has been abandoned; that such abandonment works a cancellation, both of the drainage tax and of the judgment for the same, herein enjoined.

6. That the drainage assessment against the property of their author, John Davidson, and the judgment obtained therefor, have been released by Acts 48 and 67 of 1877, and Act 147 of 1878, of the General Assembly of the State.

In defense, the City pleads, that all these grounds, with the exception of those which relate to the non-performance and abandonment, and to the release mentioned, were advanced in the opposition filed by the succession of John Davidson, represented by his executrix, to the proceedings for an homologation of the drainage tax assessment roll or tableau; that they were directly passed upon by the Supreme Courts, both of Louisiana and of the United States, and that such judgment constitutes res judicata; that even if these grounds had not been specifically and fully set forth, they should have been thus alleged, as they then existed and could have been set forth, and that they cannot be propounded after judgment.

The City of New Orleans further pleads and argues, as concerns the additional defense of abandonment and release: that the work was done, as far as practicable, that there has been no abandonment on the part of the City, but merely a temporary suspension of operations, wholly occasioned by the fault of the property owners, in not paying their drainage tax; that an actual abandonment by the City would not have the legal effect of relieving the taxpayers of the drainage assessment and tax; that at the time of the pretended abandonment, the Mississippi and Mexican Gulf Ship Canal Company and its transferrees, and the holders of warrants issued by the-Company, had acquired a vested right to the entire ta,x levied in the four drainage sections; that such pretended abandonment, if supplemented by a release of the property owners from a payment of that tax, will impair the obligation of a contract, and divest the valuable rights thus vested in the Company and the parties referred to, and consequently, that the alleged abandonment and the pretended cancellation of the drainage assessment, must be treated as in violation •of the fundamental law, and so, absolutely void.

From the view which we have taken of the merits of the controversy, from an independent standpoint, we do not think it necessary to pass upon the defense of res judicata. If it were sustained, the first fouigrounds relied upon by the plaintiff could not be considered. If it were overruled, we would not adjudicate upon their sufficiency for relief, as there exists another ground upon which we can satisfactorily rest a decision of the case before us.

The same view dispenses us from determining, whether the judgment enjoined can or not be construed and regulated in its effect, so as to be restricted in its enforcement to the property on which the drainage tax was assessed, and from which it is claimed that it should primarily be paid; in other words, whether the judgment be both real and personal, or real only.

For the same reason, we are relieved from the obligation of considering and determining the effect of Section 12, of Act 165 of 1858, as well as that of Acts 48 and 67 of 1877, and of Act 147 of 1878, invoked by the plaintiffs for their further protection.

Conceding, for argument’s sake, that the first four grounds of the petition, and all other causes of complaint, which existed and could have been set up at the date of the opposition - to the drainage assessment roll, have been adjudicated upon, and that the judgment rendered constitutes an insuperable objection to their being again agitated, it does not at all follow that the judgment is one which necessarily must be executed, or one which cannot be nullified, that is: declared inoperative, and of no effect; in other words, paralyzed, as though it were' a nullity.

It is worthy of note, that in the opinion rendered in 27 A. 21, the Court expressly refers to the memorable decision in 11 A. 370, which both parties from different standpoints invoke as a shield in this litigation for their respective protection. That opinion contains a most material reserve, which leaves a wide door open for resistance to the judgment in question.

This suit is to have that judgment declared inoperative, because of what has occurred since it was pronounced, and which coidd not have been pleaded before it was rendered. '

As was said in our previous opinion: It is easy to conceive that *■ * * cases may arise in which causes occurring subsequently to the rendition of judgments may render their execution illegal and inequitable and violative of rights not within the contemplation of thé Court when the judgment was rendered, and not intended to be foreclosed thereby. Examples are suggested of eviction of the vendee áfter judgment for the price, or eviction of a tenant, or destruction of leased premises, after judgment for future rents, and such examples might be easily multiplied. Here would be failure of the only possible consideration of such judgments, and it could not be doubted that such failure would furnish just ground to enjoin their execution.” See 13 A. 249; 3 Á. 646 ; Story’s Eq. H 887, 889.

In its wisdom, the Spanish law, once in force in this State, but the spirit of which has survived intervening changes, and still abides with us, expressly provides for such contingencies on the subject of res judicata. It declares that, if the parties have appealed from the judgment and it is confirmed by the sentence of a competent superior tribunal, they shall be bound forever by it thereafter; “ yet if anything should happen to destroy its force, it will cease to have effect, either against the parties or their heirs.” Partidas 3, Tit. 22, Law 19.

This principle is necessarily inherent to all legislation, particularly where the consideration of the judgment is prospective and must have enured, as a condition precedent, to its execution or enforcement.

■ In the case in which the judgment invoked as constituting res judicata was rendered, the Court formally declared that the constitutional questions raised had been decided in II A. 370.

Referring to the opinion in that celebrated controversy, we find that the Court there used the following language:

We have not understood from counsel, that there are cases in which the property has not been so far benefitted by the work done as to be increased in value more than the cost of the work assessed. Were not this the. case, the property of each proprietor, to the extent of the difference between the increased value and the cost of the work assessed to him, would be taken for a purpose of public utility, without adequate compensation previously made, and consequently there would be a violation of Article 105, of the Constitution.”

Now, in the present controversy, it is claimed that the sole consideration of the judgment at stake was the prospective benefit to accrue by the contemplated execution of the projected work and the consequent enhancement of value of the land, to the extent at least of the amount levied upon it; that whatever work has been done by the commissioners or the City, has been a detriment, rather than a benefit to the lands of *plaintiff; that the work has been abandoned, and that there is no probability that it will be resumed; that whatever taxes might be collected would go, not towards the completion of the scheme, but to the satisfaction of the warrants in question; that all the labor expended in the first drainage district has been paid for; that there are no drainage warrants outstanding for the work said to have been executed in the first district, except for the insignificant sum of $450; that the judgment of homologation was of the tableau 'for the first drainage district, the proceeds applicable to the same; that the claim of intervenors is under warrants issued for liabilities of other districts, and finally, in substance, that the consideration of the judgment haying failed, it cannot be enforced.

We have considered the statements which the District Judge has systematically made of facts found by him; we have compared it with the oral and written evidence introduced on the' trial of the case, and we find that the averments made by the .plaintiffs are established, touching the absence of any benefit derived from the contemplated drainage; injury sustained ip consequence of what work was done; the nature and condition of their property, which' is' almost entirely and always under water; a place of resort for water fowl, hunting and fishing; the absence of any outstanding warrants for work of any kind done in the first drainage district, except for a small amount; the abandonment of all drainage work; the disposal of all drainage apparatus; the impotency of the City to resumé the enterprise; the value of the property on which the tax is assessed, which is shown to be at best one-tenth of the amount of the claim, with charges superadded.

In presence of such a state of facts, can it be insisted, in good conscience and in equity, that the judgment enjoined shall be enforced ? ' In answer, we are confronted with the saying of our immediate predecessors, in the case of the Canal Bank vs. New Orleans, 30 A. 1376, wherein they asked whether if they were to consider, as conclusive evidence, the declarations contained in the Acts of 1877, that would be sufficient to establish that the work contracted for and done, has not been performed at all, or not performed according to the terms of the contract, and that every outstanding warrant given as the price of that work, is without consideration 1

In answer to the formal question put by themselves, viz: “ Would those declarations, if taken as evidence, be sufficient to justify the Court to pronounce in this suit, that, in whosever hands those warrants may have passed, * * * they are invalid and void, worthless as to the creditors, binding on no one, and that every guarantee, mortgage and privilege securing their payment, must be cancelled, erased and destroyed;” they have answered: “ we tMnh not.” 30 A. 1376. ■

The suit wherein this language is found, was one- in which the plaintiff was asking the reimbursement of a sum of money paid without compulsion as a drainage tax. The ground for repetition was want of consideration and subsequent release from the tax and all liability, by the 1 egislation of 1877, previously noted. The Court did not stop there. They ended the opinion by saying: “We conclude that plaintiff has not shown that its drainage taxes were levied and paid without consideration, and that it was shewn, in so far as defendant is concerned, that said taxes were voluntarily paid and properly disposed of.”

The warrant holder who had intervened, was dismissed, on the ground that as no judgment susceptible of being rendered could affect him, he had no foundation upon which to stand, and, therefore, no interest to assert and to protect in that litigation.

The putting and the answering of the question were uncalled for. The matter was not discussed. It was not necessary to consider it at all for the determination of the issue presented, which was simply the return rel non to the plaintiff, of a sum of money willingly paid as a drainage tax — the ground .of repetition being, as already observed, want of consideration. The language used on the occasion, must, therefore, be taken merely as obiter.

Under the authority in 11 A. 370, which underlies the rulings in 27 A. 21, we are of a different opinion, and consider that where the consideration of a judgment is prospective and has failed, the eventual debtor is, both in law and in equity, entitled to relief and the consequent exoneration.

That authority and the conclusions to which we have arrived, are supported by text-writers and a long line of decisions, in a number of our sister States, declaring assessriients void, because the benefit to the .property could not be seen and traced. In all the cases in which it was clear that the district had received no benefit, the Courts have, without hesitation, interfered on this subject. Mr. Cooley, in liis work on Taxation, says :

The levy is made on the supposition that the estate, having received the benefit of a public improvement, ought to relieve the public from its expense. In such a case, if the owner can have his land taken from him, for a supposed benefit to the land, which, if the land is sold for the tax, it is thus conclusively shown he has not received, and he then be held liable for the deficiency in the assessment, the injustice, not to say the tyranny, is manifest.” Cooley oil Tax. 471-3.

Judge Burroughs, in his treatise on the same subject, writes more pointedly:

If there can be a personal assessment, or the owner can be made personally liable for the tax thus imposed, then we have the remarkable result that for a tax which is imposed on a lot of land, upon the theory that its pecuniary value is increased by the improvement, the lot may be sold, and if there is a deficiency, the owner may be required to pay it; or, in other words, for the benefit conferred on the property, the property may be confiscated, and the owner, for the privilege of having it confiscated, may be required to pay a tax into the treasury of the City.” Burroughs on Tax. p. 475, V. also p. 38, §§ 30,39; p. 459, §§ 145, 146, 147; pp. 466, 474; 31 Cal. 240, 254 ; 41 Cal. 525 ; 49 Cal. 546; 41 N. Y. 123, 126, 133; 36 Mo. 456 ; 50 Mo. 525 ; 56 Mo. 286, 356 ; 58 Penn. 320; 1 Gill. 480 ; 5 Gilman, 416; 59 Maine, 80 ; 3 Busli, 416, 423, 667; 4 Bush, 587; 34 111. 203; 24 Miss. 497.

Finding such to be the ease in the present controversy, we concur with our learned brother of the District Court, in the conclusions which he has reached in favor of plaintiff.

As the judgment sought to be executed by the City has become inoperative, and so caunot be enforced, and as the claim of the intervenors hinges and is contingent upon that of the City, the unavoidable consequence is, that the intervention must fail with the main defense, ashing the execution of the judgment enjoined.

AYe say, that the claim of the intervenors is based upon that of the City, for the reason which they themselves aver in their pleadings, and assert in argument, that, under the laws by virtue of which tlie warrants were issued, and also of the intervening Constitutional Amendment of 1874, they can only be paid out of the drainage taxes realized.

If the statutes and the amendments constitute a contract in their favor, it is one which, by its very terms, is subordinate to the collection of drainage taxes legally due aud exigible.

AVhere no such taxes are demandable, the contract, whatever it be, and the rights averred under it, necessarily fall through.

There exists a marked disparity between the present case and that of the State ex rel. Martin vs. Police Jury, Caddo Parish, 32 A. 1022, to which our attention has been called by the learned counsel of defendant and intervenors.

In that case, bonds had been issued with legislative sanction, in exchange of scrips and evidences of parochial indebtedness emitted for considerations, but without legal authority. They had been made payable by the parish in a manner indicated, but without restriction as to the source of payment.

Hence, on the refusal of the municipal authorities to levy the tax provided by the law and asked by the bondholders, a mandamus was allowed.

In the present instance, if the warrants held and produced on the trial by the Relators, for the amounts before stated, be legal and valid, under the Statute of 1871 and that of 1876, and the Constitutional Amendment of 1874, the last act resting on the former and on the amendment, no provision of subsequent law has been referred to, directing them to be paid in a manner different from that mentioned in the Statutes and in the amendment.

The payment of those warrants is, therefore, to be regulated by the provisions of the authority under which they were issued, and that authority expressly confines it exclusively to a special fund, when realized, and-if realized.. It is to. take place only from the drainage assessments or taxes, “ and not otherwise.” The payment was, therefore, to be completely hypothetical, contingent upon eventualities susceptible of happening, or not, and was glaringly restricted by well defined limitation.

The want of analogy between the two cases is manifest, both as to the facts and as to the law.

While charging an impairment of their alleged contract, the int.ervenors cannot be heard to ask to be permitted to assail and destroy its integrity, by demanding over and above that which may have been covenanted. 33 A. 386.

Their contract, if it exists, and whatever it be, is the law controlling their rights.

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

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8349.
    The State of Louisiana ex rel. Mrs. Jackson vs. The Recorder of Mortgages et al.
    Act Ro. 96 of 1877, which provides for the limitation to three years, of the privilege attaching to taxes, does not affect the mortgage securing such taxes.
    Act Ro. 77 of 1880, which provides for the limitation to three years, of all tax mortgages and tax privileges, only applies to future taxes.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      J. 0. Nixon, Jr., for the Relator and Appellee.

      J. 0. Hgan, Attorney General, for the Respondent and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The Relator heroin seeks, by mandamus, to compel the Recorder of Mortgages to erase and cancel certain inscriptions of taxes due the State, recorded in his books as privileges and mortgages on her property, on the ground that the said privileges and mortgages are prescribed.

It is not disputed that the taxes were secured by a mortgage as well as by a lien and privilege upon Relator’s property, under the express terms of Acts 68 of 1870, and 42 of 1871.

Prescription of both the privilege and mortgage is claimed on two grounds, viz:

1. By virtue of § 36, of Act No. 96 of 1877, which provided that the “privilege and right of pledge ” for taxes should not he considered as lasting for a longer period than three years.”

Conceding, arguendo, (what is more than doubtful under the whole terms of the section) that it applied to past taxes, yet it is clear that it does not affect the mortgage by which those taxes were secured. The distinction between mortgages and privilegefe is too .elementary and well understood, for us to extend the plain significance of a statute nominating privileges only, so as to cover and include mortgages also.

2. By virtue of § 24, of Act No. 77 of 1880, which provides that all tax mortgages and tax privileges shall be prescribed by three years from the filing of the tax roll.” We consider that this act cannot possibly receive application to either privileges or mortgages for pre-existing taxes, for the reasons: first, from the very language quoted, it appears that the prescription referred t.o only runs from the filing of the tax roll, an act evidently to be done only in the future, and especially regulated in the act, and only having reference to future taxes; second, if intended to apply to past taxes, the provision would evidently be unconstitutional, because not embraced within the title of the Act. That title is: “ To provide an annual revenue for the State of Louisiana, by levying of annual taxes upon all property not exempt by the Constitution from taxation, and prescribing the methpds of assessing and collecting the same, and enforcing the payment thereof.'1'1 This title clearly embraces provisions for future revenue, by the levying thereby, and thereafter of annual taxes and prescribing the methods of collecting and enforcing payment of the same, i. e., of,the taxes so levied. Provisions for liens and mortgages, and fixing the prescriptive terms thereof, might well be considered as germane to the methods of collecting and enforcing payment of the taxes contemplated by the Act; but such provisions, touching anterior taxes, would be entirely foreign to any object either expressed or implied in the title.

These reasons are sufficient to determine the case, without the necessity of solving other questions raised in argument.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be avoided and reversed, and that Relator’s demand be rejected at her cost in both courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 7314.
    Henry Levy vs. The Carondelet Canal and Navigation Company.
    Wliore one of two persons, either innocent or mutually negligent, must suffer, the one who knew of the cause which occasioned, the injury, and who could have avoided it and did nob do so, must bear the loss.
    APPEAL from tlie Sixth District Court for the Parish of Orleans. Itightor, J.

      A. L. Tucker, for Plaintiff and Appellant.

      JI.’l). Ogden and..6'. IS. Schmidt, for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff claims $2,174.52 as damages sustained by him, by tlie sinking of bis schooner JSmna Amelia, in December, 1877, at the mouth of the Bayou St. John, while attempting to go into Lake Pontohartrain. The charge is, that she struck against spiles or posts, which were obstacles and obstructions dangerous to navigation, and which it was the duty of the Company having the control and management of the Bayou and requiring toll, to have removed.

The defense is a general denial, an admission of tlie existence of the spiles or posts, and a charge of contributory negligence on the part of those in charge of the vessel.

After a protracted trial, during which sbme twenty witnesses were heard, the District Judge sustained the defense. From his judgment the plaintiff appeals.

We have considered the testimony adduced, and have been favored with an exhaustive argument, oral and printed, by the counsel engaged in the case. After a review of the authorities to which we have been referred, we are unable to say that tlie plaintiff is entitled to recover. We think that, tlie facts established are the following:

For several days previous to the accident, and at the time the attempt was made to sail out, there had been a high wind and a heavy sea dashing against the embankments and running the water with great force into the mouth of the canal, which made it dangerous for a vessel to venture into the Lake, particularly for the schooner in question, which was a flat bottom craft, requiring the use/ of a center-hoard which she could not use, on account of the shallowness of the water. Fouria, the captain of the schooner, conversed with several captains who had been waiting for a fair opportunity to go out and was advised and warned repeatedly not to attempt to sail out; notwithstanding this, Eouria had the temerity and recklessness to venture out, which had been attempted only by a lugger. The schooner left and was not long after dashed against the eastern bank, but did not remain there. In an attempt to return to a place of safety, she drifted to where the Company was constructing a pass and was dashed against the spiles, which were notoriously there.

It is true that since the accident has happened the Company has removed those spiles, but this does not prove a consciousness of neglect and of an obligation of providing against future liability, as the removal was made to improve the navigation by the Company, which was engaged in constructing a new entrance to the Bayou to the eastward.

On the theory of carelessness or negligence, on the part of the Company, it is clear to our mind, that the plaintiff has knowingly contributed to the occurrence of the catastrophe which caused the damages claimed.

In the case of the E. E. Co. vs. Jones, 5 Otto, 441, the Supreme Court of the United States says:

“Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion.”

In the case of Jolly vs. Company, 6 McLean, 242, where the charge was that a bridge was an unlawful obstruction, that Court said that, conceding it was, if plaintiff’s injury was clearly referable to the reckless and unskilful management of plaintiff’s boat, the company are not liable.

Lord Ellenborough said, 11 East. 60: “ One person being in fault will not dispense another from using ordinary care for himself. Two things must concur to support an action. An obstruction in the road, by the default of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.’’ Wharton on Negligence, Sec 1, and notes ; Eedfield on E. W., vol. ii. pp. 246, 247, and notes.

If it be true that there was mutual negligence, the principle is, that where the negligence of each party was a proximate cause of the injury, no action can be maintained. In such cases, there cannot be usually an apportionment of damages. Where the negligence of the plaintiff is proximate and that of the defendant is remote, or consists of some other matter than what occurred at the time, no recovery can be had for damages sustained. 5 Otto, 700; 24 Vt. 487; 24 Iowa, 515; 40 Mo. 131 ; 2 Car. and IC. 730 ; 34 Mo. 55 ; Redfield on R. W., 117, 330; Field on Damages, 171, 517; Weeks on Damnum Absque Injuria, p. 273; N. 132,

These principles have been uniformly recognized and applied by this Court. 3 A. 48, 441; 6 A. 71, 425; 7 A. 277,321; 8 A. 493; 10 A. 113; 11 A. 325, 292; 12 A. 377; 17 A. 19; 19 A. 309; 23 A. 264, 493, 729 ; 27 A. 55; 28 A. 320; 30 A. 15, 20; 32 A. 615; 33 A. 154.

From all these authorities, the rule of equity to be enforced in all such cases appears clearly to be:

Where one of two persons, either innocent or mutually negligent, must suffer, the one who knew of the cause which occasioned the injury, and who could have avoided it and did not do so, must bear the loss. Volenti non fit injuria.

The District Judge who hoard and saw the many witnesses who testified in the case, and who had better opportunities of judging of the questions of facts, said, in his reasons for judgment:

There was a stiff breeze from the west prevailing at the time captain Fouria tried to sail out of the Bayou on the trip when she was wrecked. It is clear to my mind, that although Fouria was a skilful seaman, he made a mistake in attempting to go out that day. Under the doctrine of contributory negligence, as settled by the Courts and sanctioned by reason, he had no right to complain of an injury, which would never have happened had he not himself perpetrated a serious imprudence in venturing out during-a perilous time.”

The authorities quoted and referred to by the able and learned counsel for the plaintiff have also received our attention. While we acknowledge them- to be good law, we cannot admit their applicability to the case of the plaintiff, whom the evidence shows to have been grossly and recklessly in fault, and who admits that the spiles or posts against which his schooner struck, were notoriously there.

This was a case which could have been tried by a jury, who are the best - judges of the carelessness and responsibilities of parties in such instances. The litigants have dispensed with a jury, and submitted their differences to the District Judge, whose finding in this case is . equivalent to a verdict.

In parri clelieto, melior est conditio defendentis.

We find no error in that finding.

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

Rehearing refused.


author: Pociié, J.

text:
    No. 7274.
    Edward Z. Labauve, Administrator, vs. Philip McCabe.
    In order to bold an adjudicate©, who refuses to comply with Ms bid, responsible in damages, under a sale a lajolle enchére under Article 2611 of the Civil Code, the property offered at the second offering must be identical in substance and in description; the conditions must be the same and on the same terms as they were at the first offering. M In 559; 3 it. 401; 4 A. 242.
    Any change-or variance in the quantity of property, or of the terms and conditions of the sale, will vitiate the second $ale, and will operate a release of the delinquent bidder from all damages in the premises.
    APPEAL from the Sixth District Court for the Parish of Orleans. Fightor, J.

      Chas. F. Claiborne, for Plaintiff and Appellee.

      J. 0. Fixmi, Jr., for Defendant and Appellant,
   The opinion of the Court was delivered by

Pociié, J.

At a public judicial sale of the property belonging to the succession of M. R. Haggerty, the defendant in this case became the adjndieatee of certain lots of ground, situated in this city, for the aggregate sum of $2325.

On his refusal to accept the sale, and to comply with the terms thereof, proceedings were instituted by plaintiff, administrator, with a view to compel the defendant to a compliance with his bid, or to have the property adjudicated to him, sold at auction at his risk, under the provisions of Art. 2611 of the Civil Code. On appeal to this Court, final judgment ivas rendered iu favor of plaintiff, whereupon the property alleged to have been adjudicated to defendant, was sold at public auction and realized the sum of $840, less necessary costs of second offering.

Defendant is appellant from a judgment rendered against him in this case, and condemning him to pay the sum of $1,031.84, as the difference between the amount of his bid at the first sale, and the amount bid at the sale a la folie enchére.

. Among other grounds of defense, he alleges, as reasons for the reversal of the judgment of the lower court, the following errors, irregularities and discrepancies, which vitiate, as to him, the second sale, and exonerate him from any liability for damages thereunder :

1.That the property offered at the second sale was not the same which had been adjudicated to him at the first sale.

2.That the property was not offered or sold in the same manner.

3.That the terms and conditions were not the same.

These three grounds of defense are fully sustained by the Record, which shows:

1. That at the first sale three lots, which it is unnecessary to describe here, had been adjudicated in block to defendant for $1800, and that three other lots, in a separate adjudication, had been purchased in block by defendant, for $525, and that at the second sale, three lots, corresponding in description with the three first adjudicated, and two other lots in the same square as thé three lots covered by the second adjudication, had been offered, all five together and in block, and all tints adjudicated for the sum of $840; from which statement it appears that the property adjudicated to defendant consisted of six lots, and that the inroperty sold a la folie enehere, consisted of only five lots.

Appellee’s counsel, calling our attention to the advertisements under both sales, which call for only five lots, argues that the mention of three lots in the auctioneer’s return of the second adjudication tO‘ defendant in the first sale, is manifestly a clerical error, which should not vitiate the proceedings.

But the Record shows that, in the first suit filed by this plaintiff against the same defendant, who was therein condemned to a compliance -with the terms of his bid, in an agreement signed by counsel on both sides, this identical piece of property is described as consisting of three lots, and it was upon that statement of the facts that the final decree of the Court was predicated.

If the adjudicatee of three lots of ground had been sued for compliance with his bid, a showing that only two, instead of three lots, could be-tendered or delivered to him, would have been a good ground for the plea of the nullity of the whole adjudication, and it is safe to conclude, that under such a showing, the judgment of this Court would not have been in favor of plaintiff in his rule on the defendant.

Tine discrepancy between the advertisement and the adjudication, a® evidenced by the auctioneer’s return, if a clerical error, is no fault of, and cannot be attributed to, the bona fide bidder, who cannot be held responsible beyond the terms of 1ns bid, as shown by the auctioneer’s return.

This error or irregularity would of itself be sufficient to exonerate the defendant from any of the consequences of the second adjudication.

2. But the Record shows further, and it appears from the foregoing statement, that at the first sale, two pieces of property, consisting each of three lots of ground, wore Offered and adjudicated separately and under two distinct bids, and that at the second offering five lots, comprising the tlvree covered by the first adjudication to defendant, and two other lots, were all offered together, and in Mode, as one distinct piece of property, and tlms adjudicated under one single bid, thus showing that the second sale was not made in the same manner as the first, and hence the difference between the amounts bid at the two offerings, cannot in law or in justice, be held as the measure of the damages against the defaulting bidder.

• 3. It also appears that, as a condition under the first sale, the purchaser was to assume over and above his bid, the taxes of 1871, and those of 1872, up to the 12th of March, 1872, the day of sale, and that under the second sale, the purchaser was to assume, over and above his bid, all the taxes due and exigible in 1876. If these terms meant to include the taxes contemplated in the previous offering, as well as those having accrued since, then the terms of the second sale were different from, and more onerous 'than, the conditions relative to taxes under the first offering. • If, on the other hand, it was contemplated that the taxes of 1875 only, exigible in 1876, were contemplated, then the terms were defective for want of certainty, and in this, at least, differed from the tax conditions under the first offering, which were clear and explicit.

The rule of law which provides for sales á la folie enehére, has been the subject of frequent interpretation in our jurisprudence, under which it is held as a summary and severe remedy,” which exacts from the party who seeks to enforce it, a strict compliance with all the requirements of the law regulating such proceedings. Municipality vs. Hennen, 14 L. 559; Hodge vs. Moore, 3 R. 401; Petit vs. Laville, 5 R. 117; Guillotte vs. Jennings, 4 A. 242; Jennings vs. Hodge, 16 A. 321.

Guided by reason, as well as by authority, we hold as settled doctrine, that in a sale a, la folie enehére, under Art. 2611 of our Civil Code, in order to hold the delinquent bidder to the damages contemplated in that article, the property offered must bo identical in substance and in description, the sale must be made in the same mode or manner and precisely under the same terms and conditions, in the second, as in the first offering or sale.

The record in this case discloses that the second sale is vitiated under each of these essential prerequisites, and that defendant must be shielded from the effects of these illegal and irregular proceedings.

It is therefore ordered, that the judgment Of the lower court be annulled, avoided and reversed, and it is now adjudged that plaintiff’s demand be rejected, at his costs in both courts.

Rehearing refused.

Having been of counsel in this case, the Chief Justice recuses himself.


author: Lew, J. Fenner, ■ J.

text:
    No. 8258.
    The State of Louisiana vs. Fernand de Rancé, Armand de Rancé and Henri de Rancé.
    Under the special plea of temporary insanity, the onus probandi is upon the accused and not the prosecution, and the alleged insanity must bo proved beyond a reasonable doubt.
    The accused, not having requested the court to give a more detailed or complete exposition of the law of self-defense in its charge to the jury, cannot afterwards make the alleged want of fullness of the said charge, a legal ground for the reversal of the judgment.
    A juror is competent when, being examined on his voir dire, he swears, in substance, that the opinion which he has formed and expressed against the accused, will yield to the evidence, and that he can do impartial justice between the State and the defense. Affirming previous decisions.
    APPEAL from tlie Criminal District Court for tlie Parish of Orleans. Roman, J.

      J. G. ligan, Attorney G-eneral, J. J. Mnney, District Attorney, and Whitalcer é Adams, for the State, Appellee:
    1. The action of the trial court in questions of continuance, when dependent upon matters of fact, cannot be revi-ed. 11 A. 81; lb. 422; lb. 479; 14 A. 40; lb. 42.
    2. Nor where the refusal to grant a continuance is because due diligence has not been used to procure the witnesses. 4 A. 441, ‘505; 6 A. 311, 556, 593, 651; 7 A. 47, 122, 531; 8 A. 114; 10 A 501; 14 A. 79, 673, 785; 23 A. 539 ; 28 A. 46; 31 A. 179.
    3. The improper refusal to continue a trial will be cured by the witness appearing and testifying. 31 Miss. 490; see 3 Burrows, 1515.
    II.
    The State is not obliged to furnish the accused with a list of the talesmen as they are summoned. 11 A. 685; 14 A. 461; 15 A. 297; 30 A. 536
    IH
    Light impressions which will yield to the testimony to be offered and which leave the mind open to its consideration, are no objection to a juror. In order to disqualify him. the opinion must have been deliberately formed. Itis only those strong and deep impressions which close the mind against testimony, and combat and resist its force, which constitute a sufficient objection. 8 R. 535 : 4 A. 505; 6 A. 653; 14 A. 673; 14 A. 651; 22 A. 43; 27 A. 692; 23 A. 148 ; 29 A. 642; 27 A. 375 ; 14 A 642: 28 A. 632 ; 74 Penn. St. 458; 77 Penn. St. 424; 70 N. C. 241; 22 Cal. 348; 18 G-a. 383: 7 Ired. 232 ; 23 lb. 231; 8 Iowa, 420 ; 38 lb. 51; 5 Cush. (Mass.) 57; 12 Mo. 223; 29 lb. 32; 37 lb. 343; 1 Dntcher, (N. J ) 566; 3 Denio, (N. Y.) 121; 4 lb. 9; 10 Ohio St. 598; 16 lb. 328; 4 Sneed, (Tenn.) 597; 11 Humph. 232 j 58 Me. 238; 5 How. (Miss.) 730; 7 Ired. 61; 7 Gratt. 593; 4 Parker, 535; 22 N. Y. 147: 5 Rand. 659; 2 Leigh, 769; 9 lb. 651; 18 Conn. 166 ; 2 Greene, 404.
    IV.
    1. The plea of self-defense was not set np on behalf of defendants, and, therefore, “ a full, clear and complete exposition of the law of self-defense ” was not required. Omissions to charge as to any point, must be supplied by requests submitted by the prisoner for additional instructions. 12 A. 264. If the whole case be substantially left to the jury, the omission of the Judge to specifically leave to the jury a point made in the course of the trial, will not furnish ground for a new trial, unless the court’s attention were expressly called thereto. 'Wharton’s Am. Cr Law, §3082; 2 Scott, 250; 4 Halst. 149 ; 19 Ga R. 1. No error ought to avail aprisoner to escape punishment, unless it manifestly appears that it may have done him some material injury. 65 Barb. 48. And tbe burden is on him to show that such is the case. 47 Cal. 338; s. c. 2 Green’s Crim. Rep. 444. In Louisiana, the Judge, in charging the jury in criminal cases, must limit himself to giving them, a knowledge of the law applicable to the case. R. S. 1870, § 1903; see also concurring opinion of Kenner, J., in State vs. Ricks, 32 A. 1101; 2 Zabriskie, 59; 4 Halst. 153; 1 Wash (J. 0. 198; 2 Peters, 15; 5 Cowen, 243 ; 13 Conn. 453; 12 Serg. & Rawle, 149; see Graham and Waterman on New Trials, 807-809.
    2. Every man is presumed to he sane until the contrary .appears — and if the defendant relies on insanity as a defense, it is for him ,l to make it dear” that he was insane at the time of committing the oifense charged. “If the matter he left in doubt, it will he the duty of the jury to convict.” Rolfe, B., in Regina vs. Stokes, 3 Car & K. 188; see also Wharton's Am. Cr. Law, §§ 55, 711; 2 Greenl. Ev. § 373 ; 1 Zabriskie, 202 ; 20 Cal 518; 21 Mo. 476 ; 5 Ala. 244 ; 27 A. 692, 693 ; 3 Brown C. C. 441; 4 McCord, 183; 4 Cowen, 207; 1 Peters C. C. 163; 5 Johnson, 144; 1 Strobbart, 479; 1 Parker, C. C. 649; lb 495 ; 4 Cox C. C. 155; 6 Cox C. C. 385; 3 Car. & K. 188; 4 Cox C. C. 155; 1 Car. & K. 130 ; 37 Miss. R. 383; 1 Harris C. C. 495.

      Castellanos & Qastinel, Luden Marrero and S. J. W. Smith, for Defendants and Appellants.
   The opinion of the Court was delivered by

Lew, J.

The defendants were indicted for the crime of murder, and found by a jury guilty of manslaughter, and by judgment of the-Criminal District Court for the Parish of Orleans, sentenced each to imprisonment at hard labor in the State Penitentiary, for the term of five years, from which sentence and judgment they have taken this appeal.

The principal complaints of the defense, and on which they mainly rely for a reversal of the judgment, are as follows :

1. Of error of the Judge a qtto in his charge to the jury, relating to the law of evidence, on the question of insanity.

2. Of error in the principles of law laid down by the Judge in the same charge, relative to self-defense.

3. Of error of the Judge in overruling several of defendants’ challenges for cause, to their manifest injury and prejudice.

First. Defendants except to the following portion of -the Judge’s charge: “ Among the different modes of defense relied on, in cases like the present, the plea of temporary mental derangement, or, technically, of transitory mania, may he set up in behalf of the accused, and facts to establish it are admissible in evidence, as tending to show want of criminal intent, and therefore of malice, and therefore of guilt, in the commission of the act forming the basis of the indictment. Here the burden of proof is made to shift from the State to the defense. The defense, and not the State, must then prove that sanity, the normal condition of the human understanding,’ did not exist in the accused on the occasion and at the occurrence referred to in the charge. But to have any serious weight in the eyes of the jury, such alleged unsoundness of the mind, or momentary insanity, must be shown to have been an undoubted fact, not before or after, but at the very time the unlawful act complained of was committed. It is at that particular time that it must be established beyond a reasonable doubt, that there existed, on the part of the accused, no capacity to discern right from wrong, as to the act forming the basis of the charge. Unless the jury be satisfied in this respect, such a plea necessarily falls, and the presumption of sanity remains unshaken, and needs no evidence in its support.”

The defense insists that the error lies in the instruction, that the alleged insanity must be shown to be an undoubted fact, or in other words, “ it must be established beyond a reasonable doubt, that there, existed, on the part of the accused, no capacity to discern right from wrong, as to the act forming the basis of the charge. Unless the jury be satisfied in this respect, the presumption of sanity remains unshaken and needs no evidence in its support.”

We have been at great pains to examine the text writers on criminal law, and not only the decisions cited both by counsel for the State and the defense,’ but such other authorities within our reach, which are applicable to and have a bearing on this question. We have considered also the English writers and English decisions on the subject.

In Wharton’s Criminal Law, Yol. 1, Sec. 16, it is said, quoting an English decision: The jury ought to be told, in all cases, that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction ; and that to establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.” In Section 55, same volume: By the common law every man is presumed to be sane until the contrary be proved; and the better opinion is, that when insanity is set up by the defendant, it must be proved as a substantive fact by the party alleging it, on whom lies the burden of proof; ” and he cites the following American authorities: 4 Cranch C. C. 514; Attorney vs. Parnther, 3 Brown C. C. 441; 1 Curtis, 1; State vs. Spencer, 1 Zabriskie, 202; 8 Jones N. C. 463; 1 Strobbart, 479; 5 Ala. 244; 20 Cal. 518; 20 Grattan, 860; 7 Gray, 583; and in Section 55, on the other hand, he states : “ If a plea to the jurisdiction is entered, to the effect, for instance, that the offense alleged was committed in a foreign country against a foreign prince, or if there be a motion for a transfer of venue, the court, in ruling the question, has nothing to do with the presumption of innocence or guilt. It is governed by a preponderance of testimony. A fortiori must this be the case on the issue of insanity, when the defense is not partial or 'exceptional, but universal and thorough unamenaUlity to criminal process.”

In 1 Arclibold’s Crim. Prac. and Plead., p. 87, note 1, 7th Edition, it is said: “ The law presumes a man sane until the contrary is proved. Hence, it has been repeatedly decided that the evidence of the prisoner’s insanity, at the time of the act, ought to be clear and satisfactory.” State vs. Spencer, 1 Zabrislcie, 196. “ The proof of insanity at the time of committing the act, ought to be as clear and satisfactory, in order to. acquit him on the ground of insanity, as the proof of committing the act ought to be, in order to find a sane man guilty.” Ibid. 21 Mo. 464, to the same effect.

In addition to the English common law authorities and decisions, we find the doctrine enunciated in the charge of the Judge .a quo, adopted in numerous decisions of the Courts of States of this Union.

■ “ The law demands such evidence in support of the defense of insanity as will satisfy the jury, that when the defendant committed the act he was insane.” 53 Mo. 267; 2 Green’s Crim. Rep. 597; 16 B. Mor. 587. “It must be proved, that at that time, the accused was laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or, that he did not know he wasdoing wrong, and this must be clearly established.” 3 Smedes and Marshall, 518; 47 Cal. 134; 2 Green’s Crim. Rep. 441. The contrary doctrine is held in 11 Kansas, 32; 2 Ind. 170; 3 Heiskell, 348.

In 20 Grattan, 860, we find: “ Where the prisoner relies on the defense of insanity, he must prove it to the satisfaction of the jury. If upon the. whole evidence they believe he was insane wdien he committed the act, they should acquit him; but not upon any fanciful ground, that though they believe he was then sane, yet, as there may be a rational doubt of such sanity, he is therefore entitled to an acquittal.” “ Insanity must be established by evidence in the case with the same clearness and certainty as any other fact alleged in defense; that is to say, the proof must be such in amount that if the single issue of the sanity or insanity of the defendant should be submitted to the jury in a civil case, they would find that he was insane.” 24 Cal. 230; 39 Cal. 690; aliter, 49 N. H. 399; 57 Maine 574; 7 Gray 583.

In Pennsylvania, when a homicide is admitted and insanity alleged as an excuse, the prisoner will be presumed to have been sane, until the contrary is made to appear in his behalf. The evidence to establish insanity as a defense must be satisfactory and not merely doubtful. 76 Penn. St. 414; 77 Ib. 205; aliter, 43 Mo.

In New Jersey, when the defense is insanity, the burden of proof is on the prisoner, and the jury must be satisfied of the insanity beyond a reasonable doubt. 1 Zabr. 197; 47 Cal. 134.

In the ease of Newomb vs. State, 37 Miss. 405, the Court held : The presumption is that a man is of sane mind, and unless that presumption be removed by proof, it must likewise stand. Hence, if it be established by legal evidence that he has committed an act criminal in law, the presumption in law being that he was of sane mind, that presumption is not overcome by the mere probability that he was insane, but will stand until overthrown by evidence ; and, therefore, mere probability of insanity cannot prevail over the presumption of sanity, so as to work the acquittal of the party on the ground of insanity. Accordingly it is laid down, that in order to establish a defense on the ground of insanity, it must be clearly proved.” 2 G-reenleaf Evid. § 373.

With all the conflicting views and authorities before us, we are of the opinion-that the rule, as recognized and laid down in the charge of the Jodge a quo, does not contain error, and should not be overruled.

To adopt the doctrine contended for by the defense, would, in our opinion, be productive of most baneful results to society, and tend to shield wrong-doers from the penalties of the law by the invocation of a plea containing in itself an affirmative proposition, the proof to sustain which would require only the flimsy evidence upon which a doubt might hang. We do not think that the onus of negativing the affirmation of insanity should be thrown upon the prosecution, but rather that positive and certain proof should be required to sustain it. The defendant should not be allowed to escape punishment for his wrongful act, unless it be proven clearly and satisfactorily that, by reason of insanity and incapacity 'to discern between right and wrong, existing at the time when the crime or offense is charged with having been committed, he was irresponsible for his act. When this special plea or defense is set up, to do away with a legal presumption, universally recognized as applying to persons charged with crime, based upon what is-regarded as a physical and physiological fact, the interests of the commonwealth and the safety of society demand that the affirmative allegation on which he relies to establish in his case an exception to such general rule and fact, should be established beyond a- reasonable doubt. We, therefore, do not think the prosecution should be required to prove sanity, but the proof of insanity is thrown on the accused, who affirmatively alleges its existence. The prosecution must prove all its essential affirmative allegations beyond reasonable doubt; the burden of proof on this plea rests upon the defense urging it, and its truth must be, also, established beyond reasonable doubt. See 27 A. 692.

Second. We next consider the objection of the defense in regard to the charge to the jury in regard to the law of self-defense, on the ground that it does not- give a full, clear and complete exposition of the law of self-defense.” The charge on this point, as given, purports to set forth that excusable homicide is caused by accident, or misadventure, or is an act committed in self-defense,” and then proceeds to give some illustrations of circumstances under which a killing of a person would fall under the head of excusable homicide. This was an instruction laying down the general principles as related to what in the abstract constituted excusable homicide. No effort was made by the defendant to have specific instructions given to the jury as ‡0 the application of the law of self-defense to a given state of facts. He had the right to demand of the Court specific instructions on the point, but failed to do so. In State vs. Bogain, 12 A. 264, the Court held: “ If the prisoner wished any additional instructions to be given to the jury, his counsel should have prepared them and submitted them to the Court.”

Under our view, the portion of the charge objected to, as above stated, contained no unsound law, but, as an illustration, cited one of the cases of self-defense which formed excusable homicide, and the defendant might have had, if requested by him, a more detailed and complete exposition of special or more extended cases; but lie did not ask for it, and we do not think that after the general instruction that self-defense was within the rule as to excusable homicide, he should enter into an exposition of all the circumstances under which the plea of self-defense would avail, or as to any particular state of facts, when not asked to do so by the defendant. See 2 Zabriskie, 59; 4 Halst. 153; 5 Cowen, 243. In 7 A. 284, it was held that even if an erroneous illustration be given, this will not vitiate a correct charge. See 8 A. 114; 6 A. 653.

The objection urged to the charge, in the respect above mentioned, cannot prevail.

Third. It is urged by the defense that there was error on the part of the Court a quo “ in overruling several of defendants’ challenges for cause, to their manifest injury and prejudice.”

We are unable to perceive any diiference between the substance of the answers of the jurors on their voir dire and those given in other cases on which the Court has made repeated adjudications, maintaining the competency of such jurors. In the,present case, the jurors all declared that they had formed no fixed or deliberate opinion which prejudiced them against the prisoners, and that they would decide the case according to the evidence adduced on the trial; that the opinions, which in some instances they had formed and expressed, would not prevent them from rendering justice between the State and the accused. The case of State vs. Johnson, 33 A. 890, recently decided.by us, covers the grounds of the objections herein, and is as strong as could bo preRented. There this Court said : “ The first bill of exceptions was taken to the ruling of the court as to the competency of the juror Putnam, This juror having been sworn on his voir dire, was asked by prisoner’s counsel if he had formed an opinion as to the guilt or innocence of the defendant, and he answered that he had; that it was such an opinion as would require testimony to overcome; that, at least, the testimony of one honest witness having knowledge of all the facts connected with the charge, would be necessary to put the juror’s mind in an even-balanced state. The court propounded the following question to the juror : ‘ Is your mind in that condition that you can go into the jury box and serve as a juror in this case, giving exact justice between the State and the accused, and try this case from the evidence as given to you by the witnesses, and from the law as given to you by the court, without regard to any impression or opinion you have formed with regard to his guilt or innocence ? ’ and lie answered, ‘Yes, sir!’ The prisoner challenged the juror for cause, and the court held that he was a competent juror, and that his answers showed that ‘he was impartial, although his statements were somewhat confused.’ The juror was then challenged peremptorily by the accused. We think the juror was competent. He had evidently formed no such fixed opinion as would disqualify him. The question propounded by the court was a clear and explicit one, which probed, to the core, the conscience of the juror, plain and intelligible and easy of comprehension by a mind of even ordinary intelligence, and, although, as remarked by the Judge a quo, his answers were ‘ somewhat confused,’ that given to the court was clothed with no ambiguity, but was direct and fully responsive, and established his competency.”

In 32 A. 1241, we said : “ Exception was taken to the competency of a juror who stated, on his voir dire, ‘ that he had heard a good deal of the case at bar and had formed and expressed an opinion as to the prisoner’s guilt or innocence, but that if what he had heard was proven to be untrue, and if the evidence proved the reverse of what had been told him, being open to conviction, and his mind not at rest as to the guilt or innocence, he was willing to change that opinion and would decide the case according to the evidence and the law, notwithstanding what he had heard.’ It has been repeatedly held by this Court that the formation and expression of an opinion as to the guilt or innocence of the accused, based on mere rumor, accompanied by no ill-will, prejudice or bias against the accused, and not such as to prevent the juror from deciding according to the evidence and the law, without regard to former impressions, is not a disqualification.” 14 A. 462; 14 A. 693; 23 A. 148; 29 A. 642.” See also 27 A. 692; 6 A. 653.

We, therefore, consider that there was no error in the ruling of the Judge a quo, as to tlie competency of the jurors, who iu this .case were challenged for cause.

The bill of exceptions taken to tlie ruling of tlie court on tlie motion for continuance, cannot prevail, nor that in regard to tlie right of the I>risoner to be furnished with a list of the tales jurors that were sum7 moiled, and those rulings must remain undisturbed. ...

The sentence and judgment appealed from, are affirmed at appellants’ costs.

Bermudez, C. J., takes no part in this decision.

On Arpihoation for Rehearing.

The opinion of the Court was delivered hy

Fenner, ■ J.

We have given much reflection and earnest consideration to the learned brief for rehearing filed herein by counsel for defendants, and especially to their views touching the law applicable to insanity as a defense in criminal prosecutions.

Tlie presumption of innocence and the presumption of sanity are both embraced within the class of disputable presumptions of law corresponding to the prcesumptiones juris of the Roman law, which may always be overcome by opposing proof. 1 Greenl. Ev. § 33; 1 Wharton Cr. L. § 707.

It cannot be sensibly urged that tlie presumption of sanity is the less powerful of the two, since it is the basis of all human responsibility, the foundation of all law, and the accepted guide of conduct in all tlie transactions and relations of mankind. Experience certainly demonstrates that, in prosecutions for crime, the presumption of innocence is rebutted a thousand fold more frequently than ■ the presumption of sanity, and the application of any other test would, not exhibit a different result. Inasmuch as human experience is the' foundation of presumptions, this would seem to indicate that the presumption of sanity is the better founded and more powerful of the two.

The doctrine that, in criminal cases, the guilt of the accused must be established beyond a reasonable doubt, rests on no other reason or principle than that such proof is necessary to overcome the presumption of innocence. Now, if, as we have shqwn, the presumption of sanity is of like character, and of equal, if not superior strength, why should it be overcome by a less degree of proof?

It cannot be successfully maintained, that in criminal cases, the presumption of sanity is neutralized or overcome, or .nullified hy the presumption of innocence. Tlie weight of authority is overwhelming in favor of tlie doctrine, that, when the State has established the corpus delicti in such manner that the accused, if sane, would he held guilty, the presumption of innocence is rebutted, and the presumption of sanity comes into full operation to complete, by its own force, the case of the State; and that, if the accused relies upon the defense of insanity, the burden of proof is thrown upon him and he- must establish it by such proof as will rebut the presumption of sanity.

Ths question upon which English and American courts are mainly divided is as to the kind and degree of evidence required to effect such rebuttal.

This question is not concluded by authority. Courts have propounded three theories, viz.:

1. That insanity, as a defense, must be proved beyond a reasonable doubt. 2. That the jury are to be governed by the preponderance of evidence. 3. That the prosecution must prove sanity beyond a reasonable doubt. Whart. Cr. L. § 55.

The last theory does not commend itself to our judgment, is supported, in its full extent, by few authorities, and is directly contrary to the jurisprudence of this Court, as established in the only casein which the subject was directly considered, and where it was held, that, when insanity is pleaded in defense of a criminal act, it must be clearly shown that it existed at the time of the act,” and that every person is presumed to be sane until the contrary is proved, and it is for him who sets lip this defense, to prove it by evidence which will satisfy the minds of the jury that the party was insane at the time of the commission of the offense.” State vs. Coleman, 27 A. 691.

The joint opinion of the Judges of England, delivered to the House of Lords, through Lord Chief Justice Tindal, declared that the jury ought to be told, in all cases, that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved, etc.” McNaghten’s case, 10 Clark and Pin. 210.

The doctrine, in nearly the same words, is announced by Mr. Green-leaf. 2 Greenl. Ev. § 373.

In Bellingham’s case it is said that Lord Mansfield instructed the jury that insanity ought to be proved by the most distinct and unquestionable evidence, * * * that, in fact, it must be proved beyond all doubt, * * * and that there was no other proof of insanity that would excuse murder or any other crime.”

In Oxford’s case, Lord Lyndliurst told the jury, that they must be satisfied, before acquitting the prisoner, that he did not know, etc.,” and then expressed his entire concurrence in the observations of Lord Mansfield, just quoted. 1 Russell on Cr. p. 9.

The'English authorities are uniform to the effect, that, in order to sustain the defense of insanity, the jury must be satisfied that it exists, and that the proof must be clear and convincing, and we do not understand even the decisions of Lords Mansfield and Lyndhurst to go further than this, being satisfied that they only meant that the proof must be such as to exclude all reasonable doubt.

The Supreme Courts of Virginia, of Alabama, of Missouri, of Massachusetts, of Pennsylvania, of California, of New Jersey, and perhaps other States, have all held in accordance with the doctrine of this Court in Coleman’s case, that the burden of proof to rebut the presumption of sanity, is on the defendant, and that insanity must be proved affirmatively, fully and clearly, and in such manner as to satisfy the jury. It is true that several of the courts referred to, qualify their expressions by saying, in effect, that though it must be proved clearly and to the satisfaction of the jury, yet it need not be proved beyond a reasonable doubt. The limitation is entirely inconsistent with the original proposition. That which leaves reasonable doubt in the mind, cannot be said to be clearly proved. A mind vexed with reasonable doubts about a fact cannot be satisfied as to the existence of such fact.

Proof beyond reasonable doubt means nothing more, in the oft-quoted language of Chief Justice Shaw, than that the evidence must establish the truth of the fact to a reasonable and moral certainty ■; a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.” Webster case, 5 Cush. 320.

As said by another learned Court, “ all that the law requires is moral certainty, which is that the jury, whether the evidence be positive or presumptive, should be satisfied.” Giles vs. State, 6 Geo. 276.

Hair-splitting distinctions, under which some courts hold, that if the jury entertain only a reasonable doubt of the insanity, they must convict, but if they entertain reasonable doubt of the sanity of the prisoner, they must acquit, do not commend themselves to our judgment. Sanity and insanity are opposite conditions, exclusive of each other. A reasonable doubt as to insanity is a reasonable doubt as to sanity, and vice versa.

We can understand, that as to indifferent questions, not primarily solved by any presumption of law, and which the jury must solve, one way or the other, there may arise a state of mind, in which, though not clearly convinced either way, the juror must find in favor of that side which is least doubtful. But on a question primarily, and until rebutted, conclusively solved by a powerful presumption of law, we cannot understand how a jury can be justified in disturbing that existing status of legal satisfaction, upon evidence which merely raises a doubt, however reasonable.

The doctrine that the jury must be governed by the preponderance ■of evidence, is vague, uncertain and unsatisfactory. The only evidence on the question of sanity or insanity, found in the case, might be evidence of the defendant, and although it might not be sufficient to raise more than tlie most shadowy doubt, tlie jury, under this doctrine, iuiglit be required to acquit. If, on the contrary, the presumption of sanity is to be considered as an element of weight in favor of the State, wo are then remitted to the original question, as to what weight of contrary testimony will constitute preponderance.

Much reflection has convinced us that the doctrine of the English courts, and of this and other American courts which have followed them, is most, conformable to reason, prindple and common sense.

The tendency of the opqiosite theory is, in our judgment, to emasculate our system of criminal justice, and to send juries adrift without any reliable chart or compass, upon a sea of doubt and speculation.

The phenomena of the human mind are so mysterious, the boundaries between its normal and abnormal conditions so shadowy, the transports of frantic passion and tlie powerful impulses of vicious tendencies are so nearly akin to temporary mental derangement, that unless juries hold fast to the wholesome presumption of sanity, responsibility for crime will be seriously impaired, ahcl society will lie at the mercy of evil disposed men, who, while too sane to be confined in asylums, can yet raise a doubt as to whether they are sane enough to be punished for crime.

AYe stand by the doctrine of this court in Coleman’s case, that insanity, when set up as a defense to a criminal charge, must be “clearly shown by evidence which will satisfy the minds of the jury that the party was insane at the time of the commission of tlie offense; ” and we know of no definition of “ proof beyond a reasonable doubt,” which is not fully covered by this statement. Certainly in this case, the Judge meant, and sufficiently informed the jury that he meant, nothing more than this, because in other parts of his charge he distinctly told the jury: Should the mental unsoundness of one or more of the accused, at the time of the commission of the offense, be established to the satisfaction of the jury, * * * you will acquit him or them; ” and again, if you believe, that at the time of the act they are accused of, they were not in such a mental condition as to create any responsibility on their part, * * * acquit them.”

As to the rulings of the Judge upon the qualification of jurors who had read the report of the evidence on the preliminary examination of the accused, as published in the newspapers, we do not think that the decisions of courts, disqualifying jurors who had conversed with witnesses in a ease, and had formed opinions based on their statements, apply.

In the rules adopted for the seeming of impartial and unprejudiced .juries, the law is guided by practical considerations, and can sanction none inconsistent with the existence of jury trial. The exclusion of those who hare personally conversed with witnesses will ordinarily ■embrace but a small part of the community. But as long as the law permite the publication of preliminary evidence in the newspapers, all readers of newspapers are likely, and in eases of public interest, almost certain to read such reports.

The exclusion of such persons from jury service would embrace the most intelligent class of the community, and among an educated people, the most numerous. Nor is it to be expected that they should read without forming impressions from wliat they read. The law Is satisfied if, notwithstanding such Impressions, the juror5» mind remains open to ■conviction, callable of doing- justice and of deciding according to the law and the- evidence, without being influenced by these previous Impressions.

We remain satisfied of the soundness of the Judge’s rulings on all points, and the rehearing is refused.


author: Levy, J.

text:
    No. 8132.
    The State of Louisiana ex rel. Smith & McKenna, in Liquidation, vs. The Funding Board, Under Act of 1880.
    The duties of the Funding Board under Act No. 104 of 1880, are ministerial,-and may be enforced by mandamus.
    Judgment having been rendered in favor of the Relators for their claim against the Charity Hospital of New Orleans, and for the interest thereon, in their original suit against the Board of Administrators of said Charity Hospital, the Funding Board cannot refuse to fund the amount of such interest as well as of the principal of the judgment, on the ground that the funding, under the Constitutional Ordinance and the Statute, is an act of grace on the part of the State, which cannot be extended beyond the express words of the law, in which the funding of the interest is not provided for.
    APPEAL from the Civil District Court, for the Parish of Orleans. Houston, J.

      Kennard, Howe & Prentiss, for the Relators and Appellants.

      J. G. Egan, Attorney General, for the Respondent and Appellee.
   The opinion of the Court was delivered by

Levy, J.


author: Todd, J.

text:
    No. 7195.
    Mrs. Adele Villars, Wire of Edward Drouet, vs. Louis Faivre.
    The strong circumstantial evidence in this case is sufficient to- establish the- alleged simulation of the sale to defendant.
    There is bo inconsistency in the plaintiff ’a averments that the saie vraa simulated and was also a disguised donation to defendant.
    APPEAL from the Second Judicial District Court, Parish of Jefferson. Pardee, J.

      Alfred Grima, for Plaintiff and Appellant.

      Joseph Brewer and Wm. J. McCime, for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, as the child and sole forced heir of the late J. L. Gaston Villars, sues .to annul a conveyance of the property described in the petition, from her deceased father to the defendant, on the ground that the sale was simulated, and was in fact a disguised donation made to a person interposed,, in favor of persons incapable of receiving.

The answer contains the general issue, and a reconventional demand for damages, claimed as resulting from the sequestration of the property in controversy. There was judgment for the defendant, and plaintiff has appealed.

The testimony establishes the following facts :

That plaintiff is the issue of the marriage of the said Villars with his pre-deceased wife, Adele Omer Fortier, and the only child of that marriage that survived her father j that after the death of his wife, Villars lived for many years in open concubinage with a colored woman, formerly his slave, by whom he had several children; that one of these children became the concubine of the defendant, and the mother of one, if not two children by him j that Villars, some years before his death, which occurred in 1877, conceived a violent animosity against the plaintiff, his only daughter, probably caused by her repeated remonstrances with Mm about Ms disgraceful mode of life, and her efforts to induce him to abandon it and make Ms home with her. Under this state of feeling, Villars frequently threatened that he would make such a disposition of his property that the plaintiff should receive none of it at his death; that lie would place it beyond her reach; that shortly after making threats of this nature, on one occasion he drew from the hank abo ut $4300, and in three days thereafter made the conveyance in question, for the price stipulated in the act, of four thousand dollars cash in hand paid j that after the alleged sale, he made some improvements on the place at Ids own expense, paid taxes thereon up to the time of his death, and 'before his death moved on the place and died there; after the alleged sale of the property in question, he sold the residue of his property for •cash, and at his death nothing was found in his name to be inventoried as comprising his estate, the possession of the property in controversy being claimed by the defendant and occupied by the former concubine of the deceased, and his illegitimate children, and descendants, at the time of and since his death.

It was shown, that at the time of the alleged purchase of the property, the defendant was a butcher, doing a small business, and had pursued this occupation for several years previous thereto, and his occupations before, had been those of wood chopper and gardener. His ostensible means were always extremely limited, being unable at times to pay the small monthly rent of $15 to $18 for the structure occupied by him as a butcher shop. We have the testimony of his lessor, J. H. Harvey, on this point, as follows:

He was asked if the defendant was punctual in paying Ms rent, his answer was : No, he withdrew without giving me proper notice, and owed me $70 unpaid rent.”

When asked what efforts were made to collect the rent, he said: u There were very numerous attempts made, and I threatened to bring suit a great many times, he always plead that he had no money * * he was invariably short of money all the time he had the shop.”

Asked as to the business done by defendant, whether lucrative or not, the witness answered: “ Enough to support a man’s family, that was about all.”

And, in regard to defendant’s habits, he said : He was very loose in his habits, as far as being so with the little money he had.”

And as to his credit, the witness stated: I suppose he eould command a credit of $75 or a $100, about the magnitude of any crediting he eould get. I would not do it myself.”

Question. “ Do you think he was a man that had any such sum as $4000.” Answer. I don’t think he ever had.” And in reply to a question whether he could have borrowed that sum, he answered: “ No, he could not to my personal knowledge.”

To the same effect, substantially, is .the testimony of Nicholas Harvey and E. Brou, the first named the son and the latter the agent of J. H. Harvey, whose testimony we have quoted above. In fact, all the witnesses concur that the defendant was a man of small means, and none of them show that at any time he was known to have a sum of money exceeding a few hundred dollars.

From the nature of the defendant’s business, and the character of the man, as disclosed by the testimony, it is in the highest degree improbable that defendant could have had so large a sum of money and no-one been cognizant of the fact. If it were a fact, it is much more likely that it would have been notorious in the little community in which he lived. We believe that he was disposed to pay his debts when he could do so, and Ms failure to do so was owing to Ms not having the money to pay with. He was the tenant of Mr. Harvey, the first witness named above, for several years before and one year after the alleged sale.

Against this array of facts and circumstances referred to, amounting; to such strong presumptive evidence, and supported as it is by direct testimony, as we have seen, we have nothing besides the unsupported testimony of the defendant himself. We cannot give it the weight and effect claimed for it. To our mind it is plain that the sale in question was but a device, a part of a scheme deliberately planned and long matured, prompted by an unnatural and undeserved hatred of a father towards Ms daughter, to deprive her of all part or portion of Ids-estate. The money displayed before the notary and witnesses at the time of the pretended sale, as representing the price paid, was doubtless the very money drawn from the bank by Villars for this express purpose.

We can come to no other conclusion than that the sale was a simulation ; that it did not and was never intended honestly and legally to-transfer the property to the defendant, but in reality, was a disguised! donation, for the benefit of the parties named above. Nor is there any inconsistency, as charged, between the allegations, that the sale was. simulated and that it was a disguised donation. The allegations are, in effect, that there was no sale, that what purported to he a sale was a mere simulation, and that the pretended sale, in fact, was a donation, in disguise.

The concubine of the donor and his illegitimate children, for whose benefit the act was entered into, were incapable of receiving from the deceased by- donation the property in question, and the act was an attempt to contravene the positive provisions of the law, and were therefore null. Art. 1486 C. C., declares: “When the natural father has not left legitimate children, or descendants, the natural child or children acknowledged by him may receive from Mm by donation inter vivos or mortis causa, to the amount of the following proportions,’’ etc.

In this case there was a legitimate child, and besides, there is no-proof of a legal acknowledgment of the illegitimate children by the deceased. Art. 1481: Those who have lived together in open concubinage are respectively incapable of making to each other, whether inter vivos or mortis causa, any donation of immovables,” etc.

C. C. Art. 1491: Every disposition in favor of a person incapable of receiving, shall be null, whether it be disguised under the form of an onerous contract, or be made under the name of persons interposed.” Bennett vs. Cane, 18 A. 590.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that the conveyance of the property described in the petition, from Jean Louis Gaston Villars to Louis Eaivre, by act of the 6th February, 1873, be and the same is hereby annulled, and the said property is decreed to belong to the plaintiff, and that she be put in possession of the same, costs of both courts to be paid by the defendant and appellee.

Rehearing refused.


author: Levy. J.

text:
    No. 8110.
    The State of Louisiana ex rel. Joseph St. Cyr et al. vs. Allen Jumel, State Auditor.
    On Motion to Dismiss.
    Plaintiffs, about seventy persons in number, are pensioners of the State of Louisiana, and claim, by mandamus against the Auditor, the payment to each, of twelve dollars a month. The District Court made the mandamus peremptory, and the State appealed. The Relators moved to dismiss the appeal on the grounds, that the amount of the matter in dispute is not appealable, and that the State has no interest to hinder and delay the execution of its own law, Act of the Legislature of 1S76, No. 61.

      Held, that the aggregate amount makes the case appealable, and that the other ground, that the State has no interest, is untenable.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Isaac 8. Hya/ms and W. W. Handlin, for the Relators and Appellees.

      J. G. JEgan, Attorney General, for the State, Appellant.
   The opinion of the Court was delivered by

Levy. J.

The Chief Justice recuses himself, having been consulted as counsel in the case.


author: Levy, J. Todd, J.

text:
    No. 8243.
    The State of Louisiana ex rel. Morris Ranger vs. The City of New Orleans.
    This Court will Dot look out of the Transcript and hunt up evidence among the records of other cases, simply because, by agreement of counsel, such evidence is to be considered as if in the Transcript, though not placed within the reach of the Court. Affirming the rule declared in Succession of Irwin, 33 An. 63. <
    This case is remanded to afford the Relator the opportunity of introducing evidence to show that his judgment was based upon a contract with the City of New Orleans, as was done in the case of Nelson vs. Parish of St. Martin, 32 An. 884.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      D. .0. di L. L. Labatt, for the Relator and Appellee, on the application for Rehearing:
    By reference to the reasons, it is seen that judgments are expressly based on contracts made by legislative authority, found in Acts Nos. 108 and 109 of the Legislature of 1834, the records of which are in this Court, “ and not another tribunal.”
    Courts will judicially notice that the bonds sued on wexe issued by legislative authority as a historical fact. 5 Rob. 123, LTnvilliers.
    A judgment of the Supreme Court need not be formally introduced in evidence, and is judicially noticed. 1 An. 283.

      O. F. Buck, City Attorney, for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

Por the same reasons as are given in Nos. 8132 and 8233, just rendered, the motion herein to dismiss, is denied.

On the Merits.

The opinion of the Court was delivered by

Todd, J.

This is a mandamus proceeding to compel the official representatives of the City of New Orleans, to levy a special tax to pay certain judgments which the Relator claims to have recovered against the City, amounting to about $170,000.

The answer, besides the general issue, avers ignorance of the consideration of the judgments, and requires strict proof of the same. There was judgment for the Relator, making the mandamus peremptory, and the City has appealed.

In the cases of the State ex rel. Folsom Bros. vs. City of New Orleans, 32 A. 709, and the State ex rel. Nelson vs. Parish of St. Martin, 32 A. 884, we held that a party seeking to compel a municipal corporation, by mandamus, to levy a special tax to pay a judgment held by him, notwithstanding the limitation contained in Article 209, of the present State Constitution, must allege and prove that his judgment was founded on a contract protected from impairment by the Federal Constitution. In this case, the special tax demanded requires a rate of taxation beyond the Constitutional limitation referred to, and therefore comes strictly under the rulings made in the cases cited.

It appears from the mass of evidence in the instant case, that the judgments declared on, together with the records of the suits in which they purport to have been rendered, were offered in evidence in the lower court, but neither the judgments, nor any part of the record mentioned, were actually filed in evidence or copied into the transcript. By an agreement of counsel, attached to the transcript, it was provided that the original judgments, though not copied into the transcript, should be considered as copied therein, and therefore should make part of the evidence in the case on this appeal. The agreement is silent as to the rest of the record. This agreement, therefore, limits our inquiry or consideration to the original judgments alone, and excludes, the balance of the record, because this balance is neither copied into the transcript nor included in the agreement of counsel providing for the bringing up the originals as relates to the judgments. This record, which might show what these judgments were founded on, and whether or not on contracts, is not before us. Nor are the judgments themselves in evidence, for in point of fact, the originals are not in the transcript nor attached thereto, and under the express rulings of this Court, in view of their entire omission from the record, either as originals or copies, we cannot regard them in evidence at all. A simple reference to them in the agreement, without attaching them to or placing them in the transcript, will not answer, for this Court will not look dehors the transcript and hunt up evidence among the records of another tribunal. Succession of Irwin, 33 A. 63; Tanneret vs. Ins. Co. 32 A. 663; 14 A. 67.

Even, however, should we go beyond the transcript, and find these judgments, it is not at all probable that they would enlighten us as to their consideration, for only in very exceptional cases do judgments show upon their face the consideration or causes of action on which they are based.

In the case of the State ex rel. Nelson vs. Parish of St Martin, above referred to, a case precisely similar to the instant one, except that, in that case, the judgment proceeded on was actually in evidence, we remanded the cause to enable the judgment creditor to prove, if such was the fact, that his judgment was founded on a contract. We will make a similar disposition of the present proceeding, and afford the Relator a like opportunity of establishing the existence and consideration of his judgments, with a view of determining', after the proof is administered, whether he 'is entitled to the remedy, which, for the present, we are compelled to deny him.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and the case remanded to be proceeded with according to law, and for the views and for the purposes herein expressed, Relator to pay costs of appeal.

Rehearing refused.


text:
    No. 6497.
    John A. Morris et al. vs. J. L. Lalaurie et als. J. L. Lalaurie vs. John A. Morris. Consolidated.
    1. A co-proprietor seeks to establish in this case, not only his right to a partition, but, in order that Ms own rights and those of his co-proprietors may be judicially recognized, he asks the Court to decide upon the claims of himself and the others who claim an interest in the property, in order to fix the true ownership of his co-proprietors, and thus enable Mm to obtain a decree which would make valid and binding the proceedings had to effect the partition. In such a case, there is no inconsistency in coupling his demand of a petitory character with that for a partition, and thereby avoiding a multiplicity of suits.
    2. None of the parties having made any objection to the terms of sale fixed by the Court upon the suggestion of the plaintiff in the partition suit, their silence was properly construed by the Court into an assent to such terms, which are, therefore, binding upon all.
    3. This Court having' decided that Mrs. G-orodias had no legal right to the two mortgage notes of J. L. Lalaurie, lier assignee and subrogee, John A. Morris can have no more or better rights in the premises than she could have herself.
    APPEAL from the Fifth District Court for the Parish of Orleans. F. Worth Gullom, J.

      B. It. Forman, for John A. Morris.

      Bornor and Benedict, for Alfred Marchand.

      F. Michinard, for J. L. Lalaurie.
   The opinion of the Court was delivered by

Levy, J.

Mr. Justice Fenner recuses himself, having been of counsel in the case.