author: 3EP3IUDEZ, C. J.

text:
    No. 1284.
    Benjamin F. Edwards et al vs. Police Jury of Avoyelles et als.
    Act 104, of 1886, relative to the removal of the parish seat in Avoyelles Parish, is constitu* tional in all its parts*
    It embraces but one object, and that object is expressed in its title.
    It was within the power of the Legislature to allow the removal, on conditions provided for in such cases by the Constitution, viz: The adoption of the law hy the electors of the parish and the consent of the property taxpayers voting at such election to pay an increase of taxation beyond the constitutional limit.
    It was needless to express the conditions in the title of the law. The enumeration of the one without the other was a superfluity, and is not destructive of the law.
    Until the conditions prescribed by the Legislature had been complied with, there existed no authority to undertake the removal.
    It is shown that the property [taxpayers were not consulted and did not vote at all on the question of increase of taxation "beyond the constitutional limits.
    The announcement by the Secretary of State that the law had not been adopted was correct*

      Á PPEAL from the Twelfth District Court, Parish of Avoyelles. jL\. Blackman, J.

      Gullom & Son for Plaintiffs and Appellees.
    1. A special privilege, or power, must be availed of, Stricti Juris.

    2. The modo, manner, time and extent of enforcing any special right, privilege or authority, granted exclusively by the Consitution, must bo construed in accordance with it, and is mandatory.
    3. Any special tax authorized to be assessed by cho General Assembly, for special purposes, such as are mentioned in articles 202 and. 209 of the Constitution of Tjouisiana, m\\§{> he fixed ^definitely by the General Assembly, 2 Curt. 439, and the time, manner and mode of carrying such an act into execution must be regarded and t • at -d as mandatory. 12 Wheat 419; 2 A. K. Marsh 75; 3 Gill 14.
    4. Tho power to levy a tax i'» an incident of so\ordgnty and cannot bo delegated by the 2Ji souveraine to another subordinate authority, such as the x>olice jn.\. 4 Wheat 315; 33 H. Y. 161; to. C. Barb 550; 8 Hon. 73; 4Cal. 40.
    5. Sovereignty is necessarily a unit, tlie. incidents of which cannot hr exercised beyond constitutional authority, and then only fitricti Juris.

    O. That which the Constitution requires to bo dono for tho protection of tlie taxpayer is mandatory, and cannot he regarded as directory merely.
    7. Tho Act Ho. 104, of 188(5, is unconstitutional, becatiseit authorizes a vote of the property taxpayers to bo taken, without specifying tho sum to be raised, or fixing tlie limit of the tax. Parish vs. Gaddis et al., A, 931-2.
    8. Jf ii be held to be constitutional, tho election of Hov. 2, 188G, was illegal and void, because the entire act was not submitted to the voters of Avoyelles, which should have been done, and because of a necessary consequence the act was never adopted in its entirety ; and because tha property tax’)', or of Avoyelles were never permitted to vote as such, on the question of a specir’ >•:•. <,-• we:; provided for in the act, and required by article 209 of the State Constituí Vn.
    9. If the act be constitutional, then the special tax authorized by it was hut a necessary incident, of, not ivquirt d to he covert d by iiio title.
    10. If the tnv authorized to he voted upon was a necessary incident of tho act, then tho entire act has never been adopted, — the election of Hov. 2, 18.86, was null — the life of tho act has expired, and no election can hereafter bo held under it.
    11. XhocoiiMiil of the property taxpayers to the special tax was a condition pieeedenbto the adoption of tlie Act Ho. 104, without which the act was null, whatever was the vote on the question of its adoption. Or if this be not so,
    12 It follows: That a majority of the votes having been cast for the adoption of a part only of the act, it was adopted in its entirety, whether the property taxpayers are willing to pay a special tax or not. Tho reductio ad absurdum.

    13. By. the Act Ho. 104, of 18S6, the police jury of Avoyelles was 18 authorized and directed to pass ordinances and make nil and every provision for carrying out the provisions ” of the act. Ho other could do this. The polio< jury has not done it, either in whole or in part; and all that was done was ill; gal and null.
    |4. The General Assembly had't! e right to make, tlm adoption of the act depend upon specified conditions. The vote of the pr< perfcy taxpayer.; as such, first taken, on the question of consent to pay tho n- cessary special tax, was a condition precedent, under penalty.of the annulling clause of the act.
    15. The General Assembly cannot delegate its authority to legislate. Cooley’s Con.Lima., p. 116, ñor can it make more propositions to tho people, and constitute them law-makers by the ballot. It alone is the law-making power, and specially is it so with regard to all that tends to fix tho rate of a special tax.

      T. H* Thorjpe for Defendants and Appellants.
    1. Special elections authorized by Statute, fixing time and places, may be validly held’ notwithstanding the refusal or failure of the police jury or other local authority to order or proclaim the same, as required by the Statute. Cooley’s Con. Lim. 757; Dillon Mun. Corp. § 197 (3d ed.); Act No. 58 of 1877, sec. 4.
    . Omissions and irregularities in the holding of an election and return of votes will not viti ite the same, unless they are in matters of essence, and such as effect the result, and a party suing to avoid an election upon such grounds must both aver and prove that they changed the result. Cooley’s Const. Lim. 777, 778, 779 ; 12 Ann. 366; IB Ann. 175; Ibid. 301; 9 Ann. 573, 27 Ann. 507; 29 Ann. 610; Act So. 58 of 1877, secs. 18, 19, 35.
    The duties of the Secretary of State relating to elections are purely ministerial, and he is without jurisdiction to decide their legal effect. Cooley’s Const. Lim. 782, 783, 784; Act No. 58 of 1377, sec. 39; 32 Ann. 579.

      'K Courts will not declare a Statute unconstitutional where the record presents other clear grounds of judgment. Cooley’s Const. Lim. 196.
    5. A proviso repugnant to the body or purview of a Statute will he rejected and the Statute preserved, Kent’s Com. 462, 463,; Dwarris on Stát. 118.
    O. A part of a Statute relating to an object- not- expressed in i-lie title is v< id and will he rejected ; if the remainder of the Statute is complete, sensible, capable of being executed and effecting the purpose declared in tlio title, without the aid of that which has been rejected, it will he sustained. Cooley’s Const. Lim. 211, 212, 213; 13 Ann. 806; 32 Ann. 726 ; 33 Ann. 783; ibid 254; 35 Ann. 1141; 35 Ann. 960.
    rj. The title of a Statute is the conclusive index of the legislative intent as to what shall have effect. Cooley’s Const. Lim. 179,170.
    8. In order that the unconstitutionality of a part of a Statute shall have the effect of nullifying the whole, the two parts must be so mutually and necessarily dependent upon and connected with each other in essence and meaning that the constitutional portion is utterly incapable of effecting the apparent legislative intent without the aid of that which is unconstitutional. Cooley's Const. Lira. 211, 212, 213; 32 Ann. 726.
    9. An unconstitutional condition is powerless to avoid an otherwise valid law, unless it he a condition of necessity; if it he merely matter of option or permission, it will not have that effect. It d-ies not warrant the belief that the Legislature would not have passed the Statute without such condition, XT. S. Sup. Ct. Rep. (April, 1887), p. 588.
    10. When it is possible so to do, it is tbe office and duty of courts so to construe legislative enactments as to give tbem effect. Cooley’s Const. Lim. 220; 19 111. 376, 384; 4 N, H. t6, 18; 17 N. Y. 241; 16 Gray, 417.
    LI. The Legislature is powerless to add to the constitutienal qualifications of electors, or to take away or limit power directly conferred by the Constitution.
    12. The enabling act of an article of the Constitution can contain no provision antagonistic to the title or spirit of the article which the Legislature proposes thereby to render effective, and if such antagonistic provision he found, it will be rejected by the courts, and so much of the Statute will be sustained as gives effect to tbe constitutional article. 35 Ann. 960.
   The opinion of tbe Court was delivered by

3EP3IUDEZ, C. J.

Tbe object of this suit is to prevent tbe removal of tlie parish seat of <. e Parish of Avoyelles from Marksville to another point in tbe paiLh.

The grounds upon which the suit resis are : That the Act of 1880, No. 104. relative to such removal, is unconstitutional, and if not such, that the requirements of said act have not been complied with.

The defense is that the act is constitutional to a certain extent, and unconstitutional as regards part of a section, and that the constitutional exigencies having been observed, the removal can be legally effected.

The district judge considered the act as unconstitutional in all its parts, and made peremptory the injunction issued m limine to prevent the removal.

From this judgment the defendants appeal.

In relation to the grounds upon which plaintiffs rely to assail the constitutionality of the act, it may be sufficient to say that the power of the General Assembly cannot be doubted to authorize, by appropriate legislation, the removal of the parish seat; but that this power can be exercised only when the qualified electors, or a majority of them, consent to it, and, if the constitutional limit of taxation is to be increased thereby, where the property taxpayers of a parish, entitled to a vote, or a majority of same, voting at such election, shall have voted for such increase.

Indeed, the power to remove a parish seat is not only not denied the Legislature by any constitutional limitation or prohibition, but is expressly conferred by article 250, which is to the effect that any law passed, contemplating such purpose, shall not go into effect until after submission to and approval by the qualified electors of the parish. This is so truly so that it is left entirely discretionary with the Legislature to initiate the question, or refrain altogether from agitating it.

The electors of the parish have no constitutional right to operate the removal. All they can claim is a law authorizing the removal, subject to their approval; but this right is subordinate to the will of the Legislature to move or not in the premises.

The real ground of complaint urged by the plaintiffs is simply that the conditions imposed by the act of the removal have not been complied with, namely: That the police jury did not act as the Statute liad commanded, and that the sense of both the electors and the property taxpayers, touching the removal ahd the increase of taxation, have not been ascertained.

The contention of the defendants is that the act is constitutional so far as it refers to the action of the police jury and provides for an election by the electors; but that it is unconstitutional in that portion of it which requires as a sine qua non condition that the property taxpayers shall be likewise, and at the same time, called upon to vote.

In support of this position, it is urged: That the act could not legitimately embody the obnoxious provision and that the title could not and did not embrace it.

It is further contended that, although true it be that the General Assembly required that the police jury should make all necessary provisions to hold the election, yet the omission on their part, as a body, to observe those directions, did not invalidate the election held to take the vote of the electors, for the reason that the electors could themselves— the essential provisions having been made in the Statute — have held the election validly, independent of any action of the police jury.

It would be premature to consider, at this stage, the questions of fact raised by the plaintiffs respecting the non-observance of the conditions imposed by the Legislature, in as much as the validity or invalidity of the Statute must, at the threshold, be determined, for it is only on the assumption of its constitutionality in its entirety that the inquiry can arise, whether its behests have been observed.

The defendants admit and insist that the act is constitutional, as concerns all its provisions, save the portion of the fourth section, directing the taking of the sense of the property taxpayers, at the same election, and providing that, in the event of there being a majority of votes against the special tax, the act is to be of no effect, whatever may be the vote cast on the vote of removal.

We will therefore now proceed to consider the question of unconstitutionality raised by the defendants, viz : Whether the last proviso of section 4 could legitimately have been inserted in the act, and is or not covered by the title of the act.

The Constitution assuredly provides that every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in the title.”

Hence, it is argued by the defendants that, as the act contains two distinct and discordant objects, only one of which is indexed in its title, it follows that the other object, which could not be incorporated in the act and was not expressed in the title, must be deemed unconstitutional, and therefore not included in the law, which, without it can well stand and be executed as a piece of legislation.

The premises granted —jpositis ponendis — the conclusion would be irresistible; but the premises are a fallacy, resulting from a confusion of ideas on the subject.

It is elementary that, although no act can have more than one object in view, which must be announced in its title, still it is needless that the title should enunciate the various ways and means to which the law-giver may resort to accomplish the purpose in view, for it has been well observed, from a practical consideration, that otherwise the title would be ¡is lengthy as the body of the act, which by all means should be, as much as practicable, avoided, as tith s ought to be brief and generic.

It is error to suppose that the of the fourth section could not form part of the act, for not only is it germane and congruous, but also an eminently proper and wise appendage.

It is not, in itself, susceptible of forming the isolated purpose of independent legislation, disconnected from all reference to the other poitions of the act, without which it would be unintelligible.

The adoption of the act by the Legislature, and its approval, on submission, by the electors, without a vote, ordered expressly or impliedly, by a majority of the property taxpayers in case of an increase of taxation, might have proved brwtum fulmen, for how could the parish seat be removed, and another provided for, where the limit of taxation lias been reached, unless provision w°re made for the removal and relocation of the same?

In the petition it is alleged, and the record shows, and it is not denied, that an increase of taxation would be unavoidable.

It is apparent that the legislative intent, the sole object which the General Assembly had in contemplation, was the removal of the parish seat from Marksville to another point in the parish, and, as a precautionary measure, the ways and means required to accomplish such removal were provided for.

The General Assembly was well aware of the provisions contained in articles 250 and 209 of the Constitution, which provide: the former, that laws removing parish seats shall, before, taking effect, be submitted to the electors of the parish to be affected thereby, at a special election held for that purpose, and be adopted by a majority of votes cast at such election ; the latter, that for the purpose of erecting and constructing public buildings, the rates of taxation limited by the article may be increased, when the rate of such increase, and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of the parish, entitled to vote, under the election laws of the State, and a majority of same, voting at such election, shall have voted therefor.

The Legislature may well be presumed to have had knowledge of the financial condition of the parish in question, or at least to have foreseen the contingency of an increase of taxation, beyond the constitutional limit, to accomplish the removal, including the price of the acquisition of the necessary spot, and the cost of construction and fitting up of the building.

It was therefore legitimate and prudent for the General Assembly, when legislating on the removal,.to embody in the act the conditions upon which it would be effected, namely: the consent of a majority of both the electors generally and property taxpayers voting on the occasion.

The conclusion seems irrestible : That the act had but one object— the removal — ■ which was expressed in its title ; that the conditions attached to the removal are not discordant; but on the contrary, harmonious ; that it was useless to insert them explicitly in the title; that mention of the one therein, without the other, was a superfluity, and that the omission to mention that other is not destructive of the act.

The contention may also be considered from another determining standpoint.

The legislative power and authority to abstain from removing the parish seat are absolute and unlimited.

The first essential prerequisite to the removal is the expression of the legislative will to that effect, in the shape of a law for the purpose. It is perfectly clear that it cannot be removed, except in execution of such a law.

In this case the Legislature has clearly refused to give its consent to such removal, except in compliance with the condition expressed in the proviso.

The statement made by the counsel for the rembvalists establishes this beyond a doubt, for he tells us that the bill, as originally passed by the House, contained no such proviso ; that the Senate refused to pass it without such proviso, and amended the bill by inserting it, and that, as amended only, it received the concurrent vote of the two Houses and the signature of the Governor.

How can it be said that the Legislature has authorized the removal, except on compliance with the explicit requirements of the proviso ? not being complied with, the legislative authority does not exist, and matters stand as if the law had never been passed.

It is of no consequence, possibly, whether the proviso is constitutional or not.

If constitutional, of course it must be complied with.

If unconstitutional, then it is clear that the whole law must fall, because obviously the Legislature would not have passed the law at all, without the proviso, as it actually refused to pass it until the proviso had been inserted.

The legislative assent does not exist excepten condition of compliance with the proviso. The proviso has not been complied with. The parish seat cannot be removed without the consent of tbe Legislature. Ergo, it is not removed.

Coming now to tbe questions of fact averred in tbe petition, it is enough to say that it is needless to determine whether the police jury had to comply with section 2 of the act, which contemplated setting them in motion, for had the police jury complied with its provisions, our conclusions would remain unaffected.

It is evident that the sense of the property taxpayers voting at the election was not sought and ascertained.

Their abstention from voting at all cannot be construed into a vote infmor, but ought rather to be regarded as a vote against tbe increase of taxation, as the Constitution requires, to justify such increase, that a majority of same, voting at such election, shall home voted therefor.” Art. 209.

The Secretary of State was therefore correct when promulgating the result of the election he announced that the act had not been adopted.

Judgment affirmed.

Pocbe, J., absent.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 1285.
    The State of Louisiana vs. Thomas J. Newhouse.
    The true test of {lie admissibility in evidence of a dying declaration is tlie belief in tbe mind of tbe party making it that be would soon dio.
    It is not necessary to prove expressions implying apprehension of immediate danger if it bo clear that the party does not expect to survive the injury, which may be collected from tbe general circumstances of bis condition, as when a party suffering from a mortal wound expresses bis desire to make his dying declaration, stating that lie felt that be was going to die. and that his time was very short, and dies a few hours after making the declaration.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Gwvningham, Attorney General, and A. 1). Henriguez, Assistant District Attorney, for the State, Appellee:
    1. A dying declaration made under a sense of impending dissolution is admissible in evidence. 30 Ann. 362; 31 Ann. 95; 32 Ann. 1086 ; 36 Ann. 920, State vs. Moliss; 38 Ann. 660, State vs. Keenan; 1 G-lf. sec. 158; Wharton, Or. Ev. § 281.
    2. There is no law making it necessary for tbe dying man to say that be will immediately die, as a condition precedent to tbe validity of his declarations as evidence; it is sufficient if such belief is established by his actions and tbe surrounding circumstances. 1 G-reenleaf, sec. 158; Wharton, Or. Ev., § 282, 284; State vs. Keenan, 38 Ann. 662.

      3. The admissibility of the dying declaration, as evidence, is for the judge. When the circumstances under which the declarations were made are shown to the trial judge, it is his province to determine whether they are admissible. 1 Gif., §160; Wharton, Or. Ev., 297; Poscoe Or. Er., Sisth Ed., p. 34.
    4. The Supreme Court cannot review questions of fact; a question of law necessarily based upon certain facts will not be reviewed unless the evidence is properly presented. State vs. Ewena 32 Ann., 782; State vs. Nelson, 32 Ann., 842; State vs. Miller, 36 Ann., 158; State vs. Backarow, 38 Ann.,-317.

      Jomes G. Walker for Defendant and Appellant.
    It is the impression of almost immediate dissolution and not the rapid succession of death in point of fact that reuders the testimony admissible. Therefore, where it appears that the deceased, at the time of the declaration, had any expectation or hope of recovery, however slight it may have been, and though death actually ensued in an hour after-wards, the declaration is inadmissible. 1 Greenieaf, Ev. 158.
    On the other hand, a belief that he will not recover, is not in itself sufficient, unless tli re be also the prospect of “almost immediate dissolution.” 1 Greenieaf, Ev. 158.
    Says Lord Chief Baron Eyre, Ibid, 156, “ they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone. ”
    They are relevant only when the declarant is shown to the satisfaction of the judge to have been in actual danger of death, and to have given up all hope of recovery at the lime when his declaration was made. Stephen’s Dig. of Ev., art 26.
    “ A wishes to prove a dying declaration by B. Then A must prove B’s death, and the fact that he had given up all hope of life when he made the statement.” Stephen’s Dig of Ev., 119.
    “It must be first proved that the deceased was conscious of his impending dissolution, and had given up all hope of recovery.” Garde on Ev., 43.
    “ Are admissible only when it appears thatthey were made under a sense of immediate and impending death.” State vs. Spence; 30 Ann., 362.
    “ To render them admissible, the dying declarations must have been made while the deceased was under the settled conviction that he was about to die.” Circuit Ct. D. 0., 1834, D, S. vs. Woods, 4 Cranch., C. Ct., 484; IT. S. vs. Yeitch Id , 115. vol. 1.
   The opinion of the court was delivered by

Poché, J.

The complaint of the defendant, who has been convicted of manslaughter under a charge of murder, is that the trial judge erroneously admitted in evidence a statement of the deceased as his dying declaration. His contention is that the evidence introduced by the State as the test of the character of the declaration, was not sufficient to prove that the deceased was under the consciousness of an approaching death when he made it.

The record shows that the statement was made under the following circumstances: The deceased was in the Charity Hospital in New Orleans, under treatment for the wounds from which he subsequently died, when, at his request, a magistrate took down in writing the statement in question as his dying declaration, so designated by himself. Before making his declaration, the deceased said in connection therewith that “his time was very short,” and at the conclusion thereof he made the statement that lie felt lie was going to die, and he died but a few honrs later.

The mere recital of the foregoing facts and incidents is sufficient to bring the case within the scope of the familiar rule of law which regulates the admission of that kind of evidence, and to fully justify the ruling of the District Judge in the premises. No authority'can be successfully invoked to support the contention of counsel for the defendant that the only test of the admissibility of such declarations is evidence that the party making the same had stated in terms that he felt an immediately impending dissolution, or other impressions to that effect.

The true test is evidence showing to the satisfaction of the legal mind that the party making the declaration believed at the time that he was soon to die. The existence of such a consciousness in the mind of the declarant may be shown as effectively by his acts and the circumstances which surround him as by expressions or impressions which he may utter.

The rule has been variously formulated, but its uniformity is clearly traced in a strong array of concurrent j udicial authorities.

In the case of Morlisse, 36 Ann. 921, this court said: “ The test of the admissibility of a dying declaration is in the belief of the deceased that death is fast approaching (State vs. Trivas, 32 Ann. 1088), and that his mind and his heart are under the influence of that belief at the time that he makes the declaration.”

In State vs. Keenan, 38 Ann. 662, this Court held “ Dying declarations are those made under a consciousness of impending death, which, however, the declarant need not express in direct terms. His bodily condition and appearance, his conduct and language, as well as statements made to him by his attendants, may be considered and his con sciousness therein irferred.”

A similar rule has been culled by Wharton from numerous adjudications of English and American courts; he says : “But it is not necessary to prove expressions implying apprehensions of immediate danger, if it be clear that the party does not expect to survive the injury, which may be collected from the general circumstances of his condition, as when the party was a member of the Roman Catholic Church, and had confessed, been absolved, and received extreme unction before making the declaration.” Wharton’s Criminal Evidence, sec. 282.

A construction of the rule which would tend to require as a test of the admissibility of a dying declaration that it should have been made while the party was in the very agony of death would effectively defeat the very object of the law in sanctioning the introduction of that kind of evidence.

The circumstances exhibited by the record of this case show to our satisfaction that when the deceased made his declaration he believed that he would soon die and never recover from the injury which he had received in the conflict which he therein depicted, and hence we conclude that his statement was in truth and in fact a dying declaration, legally admissible in evidence as such, and that therefore the trial judge committed no error in the premises.

Judgment affirmed.


author: Todd, J.

text:
    No. 1291.
    State National Bank vs. Addie L. Cason.
    If it were known to the transferee of a negotiable promissory note, acquired for value and before maturity, on taking it that the consideration was future and contingent, and that there might be offsets against it, this Would not make him liable for the equities between the original parties.
    It cannot affect the negotiability of a note that its consideration is to be thereafter realized, or that from some contingency it may never he enjoyed.
    A PPEAL from the Twelfth District £jl Overton, J. Court, Parish of Avoyelles.

      Farrar & Montgomery and Wm. Hall for Plaintiff and Appellee:
    A bank taking a note before maturity as collateral security for money loaned, becomes the holder in good faith for a valuable consideration. 21 Ann. 555. One holding a note as colltaeral security is practically owner of it to the extent of his debt. 27 Ann., 561.
    The pledgee of a promissory note payable to the drawer’s own order and by him endorsed, may sue and recover on the note. 21 Ann. 555.
    The law, from considerations of public policy, and in order to favor the free circulation of bills of exchange and other negotiable paper, looks with favor upon the holder of a hill who has given value for it, and requires very , cogent evidence to convict him of mala jidcs. 7 Ann. 197.
    It cannot affect the negotiability of a note that its consideration is to be realized in future, or tbat from some contingency it may never be realized, and if the consideration of the note had not failed at the time of its transfer, the maker cannot set up'as a defence that the holder knew that there might be offsets against it. 14 Ann. 177.
    If the consideration of the note is legal in its nature, though contingent and so expressed on its face, its negotiability would not thereby be affected, and the holder taking it before maturity and with knowledge of the contingency of the consideration, and that there might bo in the future some offset to it, would not be liable to the equities between the maker and payee; for if such a defence could be successfully made against the holder, it would destroy materially the negotiability of notes. 14 Ann., 177.
    It cannot affect the negotiability of anote that its consideration is to be hereafter realized, or that from some contingency it may never be enjoyed. 14 Ann. 177.
    Any one having sufficient confidence in another to give his written obligation for something to be realized and enjoyed hereafter is at liberty to do so, and the maker cannot censure any future holder of the note for having purchased it and for seeking to hold him liable, for it was the faith of the maker in the payee that he would execute his promise, and allow no obstacle to defeat it, that created the note and gave it currency. 17 Ann. 177,
    The policy of the law is favorable to the holder of negotiable commercial paper and requires very cogent evidence to convict him of bad faith. 20 Ann. 141.

    A note being negotiable and having been acquired before maturity by the plaintiff, the equities between the original parties cannot be noticed. 27 Ann. 561.
    When one of the parties must bear a loss, he who has made it possible must suffer. 27 Ann. 561.

      Thorpe & Petermcm for Defendant and Appellee:
    1. The nature of a contract depends npon the obligation it imports; its form is subordinate to its real character. 3 Ann. 294.
    2. When the holder is aware of the conditions upon which a bill or note was given, ho is not entitled to invoke the law of negotiable instruments. 1 Ann. 148; 10 11.23; lk. 8; 1211. 486; 3 li. 159.
    3. To preclude the legal or equitable defences of the maker, the note must be transferred in good faith, in the ordinary course of business, before maturity and without any circumstances to induce a reasonable belief of the existence of such equities. 17 L, 152.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff, as holder and endorser of a promissory note executed by the defendant for $2,500, sued to recover the amount thereof, with interest.

The defence presented by the answer is in substance that the note was given as collateral security for plantation supplies to be furnished the defendant for the year 1884 by G-idiere, Day & Co., the payees of the note ; that shortly after the execution of the note, and when only a small part of the supplies had been furnished, G-idiere, Day & Co. failed. That one W. A. Pollack succeeded to the business of the firm, and he in turn was succeeded by one C. S. Earrar, by whom advances to the plantation were continued. That by shipments of cotton to the latter her accounts for supplies, which the note was given to cover, was fully paid. That the consideration of the note was known to the bank at the time it became the holder of it.

There was judgment in favor of the plaintiff! for the amount of the note, less $271.11, allowed as a credit thereon. Defendant has appealed, and plaintiff asks an amendment of the judgment, rejecting the credit allowed by the lower court.

It is shown that the note was transferred to the bank before maturity and for value, and that the bank was informed of the consideration of the note; and the single question is presented whether such knowledge bn the part of the bank deprived it of the right to recover on the note.

The consideration of the note was a lawful and valuable consideration. At the time the plaintiff became the holder of the note there had been no failure of the consideration, for it was before the surrender of G-idiere, Day & Co., and when the contract between defendant and G-idiere, Day & Co. was being executed, and part of the supplies had been advanced.

As the consideration of the note was a valid one, plaintiff could not have been affected prejudicially by the knowledge of it. If the consideration be lawful the knowledge of that consideration can of itself have no bearing on the rights of the transferee. It is the knowledge of the failure of the consideration or of secret equities between the original parties thereto that would prevent recovery thereon as between said parties.

The right of plaintiff to recover on the note is the more apparent when we consider that in this instance, in accordance with the mode in which business is usually conducted between commission merchants and planters, this note we must infer was executed for the purpose of being negotiated, that by means of such negotiation and discount of the note a sufficient sum might be realized and placed to the credit of the defendant to enable her merchants to furnish the promised supplies.

Of course there is no need to cite authorities in support of the proposition that the bona fide holder of a promissory for value acquired before maturity is not effected by equities between the original parties. The principle is elementary, but as peculiarly applicable to the instant case and touching the rule where the consideration relates to some • thing in the future is the case of Sadler vs. White, 14 Ann. 177, from which we quote:

“Plaintiff received the note before maturity and before a failure of the consideration. Even if it were known to him taking it that the consideration was future and contingent, and that there might be offsets against it, this would not make him liable to the equities between the defendants and payee.”

“It cannot affect the negotiability of a note that its consideration is to be hereafter realized, or that from some contingency it may never be enjoyed. Any one having sufficient confidence in another to give his written obligation for something to be given or enjoyed hereafter is at liberty to do so, and the maker cannot censure any future holder for having purchased it, and for seeking to enforce it, for it was the faith of the maker in the payee that he would execute his promise and allow no obstacles to defeat it that created the note and gave currency to it.”

However sensitive we may be to cases of individual hardship — and that of the defendant is particularly one, if the allegations of her answer are true — to swerve from this established rule touching the consideration of promissory notes, would be greatly to impair if not wholly destroy their negotiability, for in nearly all cases of the purchase of a note the buyer knows there might be equities between the original parties to the same.

We find no ground on which the credit on the note was allowed; there is nothing in the record that we can discover that justifies it. The amendment asked for must therefore be allowed, rejecting it.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by striking therefrom the words “ subject to a credit of two hundred and seventy-one dollars and eleven cents, to date from July 2, 1884.” And as thus amended, it be affirmed, defendant to pay costs in both courts.


author: Fenner, J'.

text:
    No. 1287.
    The State of Louisiana vs. Victor Moncla.
    An order made by tho judge, in course of a trial, in anticipation of tbe exhaustion of the regular jury panel, directing tbe sheriff to summon tales jurors and bold them to serve, if necessary, for tbe purpose of saving time and avoiding delay, is not illegal, and will not invalidate a jury formed from such talesmen tendered only after exhaustion of tbe regular panel.
    When immediately after the swearing in of the complete jury, and before any further proceeding is taken, one of tbe jurors is incapacitated by illness from serving, the judge may excuse him and fill bis place from tbe panel, particularly when tbe bill of exception exhibits no denial of any rights accruing to accused on account of such action.
    While concommant circumstances tending to explain a flight from justice, as arising from other motives than consciousness of guilt, are admissible, yet proof of subsequent return after some time, and submission to arrest are of doubtful admissibility, and at all events of too little weight to justify disturbance of judgment because excluded.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Overton, J.

      John B. Ogden, District Attorney, for the State, Appellee.

      Gullom & Barhin, Joffrion <& Bordelon, A. V. Ooeo and J. H. JDucoté for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J'.

Defendant, convicted of larceny, and sentenced to one year’s imprisonment in the penitentiary, assigns the following errors : I. While the empaneling of the jury was in progress, and before the regular venire had been exhausted, the judge, at the request of the State’s attorney, ordered the sheriff to summon twenty-five tales jurors, to be ready for service if required. To this .order the defendant objected, on the ground that “ no talesmen could be ordered under the law, before the regular panel was exhausted.”

The judge assigns the following reasons for his action : There were in attendance upon the court a large number of witnesses from every portion of the parish, summoned by the defendant to testify in the matter of the motion of the State for a change of venue, which motion had just been disposed of. This case had already undergone two trials, had been much discussed, and great difficulty would have been experienced in getting tales jurors from the neighborhood. Feeling-confident that the regular panel would be exhausted, and to save time and delay, I ordered the sheriff to summon twenty-five tales jurors, to serve as necessity might require.”

The complaint of accused is not that jurymen de talibus were imposed on him before the regular panel was exhausted, but simply that the order for their summoning was issued before the panel was exhausted.

Had the jury been completed from the regular panel, the order would have been of no effect. As the panel was exhausted, the order simply served to secure the presence of by-standers, from whom the jury was lawfully completed.

We think the action of the court was proper under the circumstances, and fail to perceive any injury or abridgment of his legal rights resulting to defendant.

2. The next bill of exceptions recites that: “ After the twelve jurors had been selected and empaneled to try the above cause, one of said jurors, viz: Christophe F. Bordelon, announced that he was sick. The judge ordered the discharge of the juror and caused the sheriff to call an additional juror to fill his place. Defendant’s twelve challenges having been exhausted, defendant, through his attorney, objected to the discharge of the juror, and also to the order to fill his place, for the reason that the proceeding was irregular and not authorized by law.” This took place immediately after the jury had been completed, and before the indictment had been read or any other proceeding had before the jury. It appears further, from the judge’s statement, that the juror was only excused after being first sworn as to his illness and then examined by” a physician, wlip'confirmed his statement.

Defendant relies upon the following passage from Mr. Bishop’s work on criminal procedure : Where, during the trial, a juror is taken too sick to proceed, this is a visitation of God which shows the prisoner never to have been in jeopardy, and he cannot claim to be discharged, though the hearing is here broken off. Still it is competent for the court to add another juryman returned in the panel; but the prisoner should be offered his challenges over again as to the eleven; the eleven should be sworn de novo, and the trial begin again. Bishop’ Cr. Proc., § 809.

We have not, at this place, access to the English authorities referred to by Mr. Bishop, but, from his own language, it appears to refer to cases where the sickness intervenes after the hearing has begun, and that in using the words “during the trial” he refers to proceedings before the jury after it has been impaneled and sworn.”

This appears from the words: “Though the hearing is here broken off,” and from the concluding phrase that the jury “ should be sworn de novo and the trial begin again,” showing that the trial referred to is something occurring after the swearing of the jury.

This accords with reason, for he himself states 'in the same section that if, while the jury is being made up, but before the list is completed, a particular juror is excused for sickness, the case stands on a different ground, and one more juror is simply elected in the usual course.”

It is difficult to conceive of any reason why a different rule should X>revail if a sworn juror should be taken sick when the eleventh juror is sworn, than if his sickness should happen immediately after the twelfth juror had been sworn, and before any other proceedings had been taken.

We should be loth to recognize so flimsy a distinction.

But under either rule, in this case, the bill discloses, on its face, no error. The objection was only to the discharge of the juror and to the calling of another to fill his place. The right of the judge to discharge the sick juror and to fill his place with another is distinctly recognized by Mr. Bishop in the very passage quoted; the only question is whether, in making such orders, he was bound to restore to accused his challenges and to swear the eleven anew. But the bill does not disclose that the prisoner asserted such rights and was denied them, nor even that the judge did not offer them. This, alone, is fatal to the bill, and such merely technical defenses, supported by no suggestion of injury to defendant, should be confined with the greatest strictness.

3. The next exception was to the exclusion of thejiollowing question, propounded on cross-examination to the sheriff, a witness for the State : “ You have stated in your examination in chief that the accused fled from your custody and made Ms escape; please state whether lie did not afterward return to this place, Marksville, and without any further arrest by you or your deputies'?” The judge says : “ The accused was permitted to show the circumstances attendant on his flight, such as that he was very much excited at the time, and his mother and brother advised him to it, and accordingly he made this proof. All this formed part of the res gestee. The alleged fact that some time after his escape he returned to Marksville, and appeared on the public streets, without further arrest, does not form á part of the res gestee, and was, therefore, inadmissible. The testimony showed that after escaping, the accused went to Natchez.”

We are compelled to hold that the reason of the court for excluding the testimony is not sound, and that the principle of res gestee has no application in this matter.

Under the humaner spirit of modern law the weight attributed by the old common law to flight from justice as a presumption of conscious guilt, has been greatly diminished. It is now merely regarded as a circumstance which, though “ by no means strong enough by itself to warrant "a conviction, yet may become one of a series of circumstances from which guilt may be inferred.” Wharton Cr. Ev., § 750.

Other circumstances explaining the flight and tending to show that it was prompted by other motives than conscious guilt, may undoubtedly be proved. Wilson Cir. Ev., pp. 89, 90; 1 Bishop Cr. Proc.

It appears, however, that the accused was allowed to prove all the circumstances attending and surrounding his flight and having any tendency to show the motives operating on his mind at the time of his escape.

His subsequent voluntary return and submission to arrest certainly do not form a circumstance tending to show the motives which prompted his flight; and, even if not absolutely irrelevant, they were of so little weight that we should treat them as we did a like matter in a much graver case, where we said: “We are satisfied that it had no influence-in the case, and that, even if the ruling were erroneous, it did not prejudice the fair trial of the accused, and would not justify us in disturbing the verdict.” State vs. Melton, 37 Ann. 81.

There are other bills of exception in the record, which even defendant’s counsel have ignored in their brief, and to which the remark last quoted is even more strongly applicable.

We can discover nothing in this record to show that defendant- has not had a fair and legal trial, or has been deprived of any substantial right which could have aided him in his defense.

Judgment affirmed.


author: Watkins, J.

text:
    No. 1288.
    Simon Block vs. Remi Bordelon, Administrator.
    A proceeding taken by an interested party, under the provisions of R. S., secs. 10 and 3698, on an administrator to show cause why he should not furnish additional security upon his bond, may be by rule.
    But with the demand for this specific relief, that for the destitution of such fiduciary cannot be cumulated. The latter can only be accomplished by means of suit in the ordinary form. •
    PPEAL from the Twelfth District Court, Parish of Avoyelles. Overton, J.

      A. V. Oooo for Plaintiff and Appellant.

      Joffiron & Bordelon and Thorpe & Peterman for Defendant and Appellee.
   The opinion of the Court was delivered by

Watkins, J.

Plaintiff alleging that the sureties on the bond of defendant as the administrator of his wife’s succession are insufficient, and have not means, or property, adequate to meet their liability thereon, instituted this proceeding, by rule upon defendant, to show cause why he should not furnish additional security.

The prayer of his petition is that said administrator show cause why he should not furnish additional security ; and that a day be fixed by the court for the return of the rulé/ and, after hearing, “that the same be made absolute, and that said * * administrator be ordered to give additional and sufficient security * * within a delap to be fixed/ etc.

Then follows the further and additional prayer, viz.: “and should he fail to give such security within the time thus fixed, that he be deprived of his office, and petitioner appointed in his stead, upon his furnishing the security required by law.”

Thereupon the District Judge granted the rule on defendantto show cause why he should not furnish additional security, and fixed the 28th of May, 1887, for the return to be made in open court; and directed that the defendant be duly notified thereof.

On the 20th of May, 1887, service of the petition and order was regularly made on the defendant.

Without making an answer to the merits, lie excepted m limine on the sole ground that plaintiff is not entitled under the law “ to obtain the relief and decree prayed for, by proceeding by rule, but is required to proceed thefor by direct action/ and he prayed that the rule be discharged.

This exception was sustained aud the rule discharged and plaintiff has appealed.

The statute on the authority of which this proceeding was instituted provides that any person interested shall have the right to~require an administrator to furnish new or additional security “ as often as once in every twelve months, and oftener, if the court, on motion to that effect, may judge it to be necessary.” R. S., sec. 10, 3698; R. C. C., 1195, 1673.

We do not understand this language to import the necessity of citation, in the ordinary form, to the administrator; nor does it, by any fair interpretation, imply that an ordinary suit should be brought against him.

In a similar matter a complaining heir proceeded by rule against an administrator to show cause why he should not furnish new and additional security, and it was approved by this court. Succession of Labauve, 38 Ann. 235.

The defendant’s reliance is placed on Fischel vs. Mercier, 32 Ann. 706, as expressing a contrary view; but we think there is no analogy between the two decisions; and the one is not opposed to the other. In the latter, the court had under consideration a clause of the revenue law of 1874, directing the mode to be pursued by purchasers at tax sales, in causing themselves to be put in possession of property purchased. It said of that statute, that it did not provide that such proceeding should be by rule, though it was “no doubt the intention of it, that the proceedings should be summary in their character.” The court held that the one authorized “was a judicial proceeding with all of its incidents and characteristics,” and must be governed by the general rules of law applicable thereto. “Those general rules undoubtedly require every judicial demand to be commenced by petition and citation.”

But the language of the law invoked by the plaintiff does not contemplate that resort be had to petition and citation, as in ordinary suits; but that such proceeding should be by simple motion. Nor is such a proceeding an independent one. It is merely ancillary to the mortuary proceedings, and pertains to the proper conduct and efficient administration of the succession, under the administrator’s control. In the attainment of that object, simplicity of form and celerity of action are manifestly necessary, as indicated by the statute.

The only difficulty that is presented here arises from the plaintiff’s alternative prayer, that the defendant be removed in case he fail to furnish such additional security as the judgment of the court shall require, and that he shall be appointed in his place and stead.

In so doing plaintiff lias improperly blended with his demand for relief under the statute above quoted that permitted under R. S. 17 and 3717.

Under the latter sureties maybe relieved from further liability, and, on due iiroof of maladministration by the administrator, he may be required to furnish a new bond; and upon his failure to do so, within three days after that fact has been judicially ascertained, he may be “forthwith removed,” and another appointed in his place.

But that statute, in terms, provides that such proceedings shall be by petition and citation.

The two proceedings are intended to accomplish different re suits. One is predicated upon the insufficiency of the sureties; and the other upon maladministration by the administrator.

If, after judgment has been rendered upon the trial of the rule to show cause, determining the insufficiency of the sureties on defendant’s bond, the latter should fail or refuse to furnish such additional security as is thereby required, he might be destituted; but it could only be accomplished by a direct action. Succession of Boyd, 12 Ann. 611.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and proceeding to render such j udgment as should have been rendered in the court below, it is ordered, adjudged and decreed that the defendant’s exception be overruled, and the cause remanded to the lower court to be further proceeded with, according to law, upon the rule taken upon the defendant to show cause why he should not furnish additional security; and that the plaintiff’s alternative prayer be disregarded; and that all cost be taxed against the plaintiff and appellee.


author: Bermudez, C. J.

text:
    No. 1289.
    H. C. Earquhar vs. H. S. Iles et al.
    A real tender is a condition precedent, sine qua nony to authorize a suit to rescind a judicial sale. When it is alleged, denied and not proved, the plaintiff’s action must be dismissed.
    APPEAL from the Pourteeth District Court, Parish of Calcasieu. Read, J.

      R. L. JBelden for Plaintiff and Appellant.

      Mitchell & Gorham for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellees claim that the value of the real estate, the judicial sale of which is sought to be annulled, is not shown to exceed two thousand dollars, and that this court has no jurisdiction over the controversy.

The plaintiff seeks to recover not only the land, but $500 besides, for the occupancy from the time of sale to the institution of the suit. He swore that the property is worth $2,850, with the buildings and improvements upon it, valuing the land at $900, the gin house at $1,200, the barn at $750, the dwelling and outhouses at $500. A witness places the value at between $1,600 and |1,800. Another appraises it at between $1,000 and $1,500.

The testimony of the defendants, who values the property at $280, which is the'amount at which it was adjudicated to him, and the sum at which it was assessed, $600, previous to the sale, are insufficient to outweigh the valuation put upon the property by the plaintiff.

It may well be that bidders were deterred at the sale, for the reason that, like the plaintiff, they considered that the proceedings in execution of the writ of seizure and sale were irregular and void, and did not expropriate the debtor.

The motion to dismiss is overruled.

On the Merits.

The plaintiff claims that the adjudication made of the property to the defendants is a nullity, for the main reason that the sheriff never did seize and take possession of the same, either actually or constructively, and never placed a keeper on it, though the same was worked as a plantation and was occupied by him and his family.

Other charges are made to affect the validity of services of notices issued under the writ and to establish a conspiracy between the adjndicatee and others, to secure an adjudication at alow price.

Then plaintiff avers a tender to the adjudicatee and to an alleged purchase from him.

The defence is a denial of the tender, the prescription of one year, and the general issue.

From a judgment of non suit the plaintiff appeals.

There is nothing to show that the alleged tender was made, previous to the institution of the suit, which is an essential condition precedent.

The offer, during trial, does not cure the omission which is destructive of the right to institute ths suit.

Article 417, C. P., relied upon, refers to tenders by a defendant at any stage previous to definitive judgment, and does not apply to those which ajpZaintiff is bound to make previous to suit, to have a standing-in court.

This view of the case renders it unnecessary to consider the other questions raised.

Judgment affirmed.


author: Poci-ié, J.

text:
    No. 1290.
    Eugenie Luneau, Tutrix, vs. Ellen Edwards, Administratrix.
    The privilege granted by law in section 128 of the Revised Statutes, in favor of attorneys-at-law for the amount of their professional fees on all judgments obtained by them, cannot be extended so as to affect property which the creditor may have acquired in execution or in satisfaction of the judgment.
    When the judgment has been satisfied it ceases to have a legal existence, and hence it cannot be applied to any privilege or other legal purpose.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blaekmcm, J..

      L. J. JDucoté for Plaintiff and Appellant.

      A. V. Ooeo and JS. JSÍ. Oallum for Defendant and Appellee.
   The opinion of the Court was delivered by

Poci-ié, J.

The only question presented on appeal in this case, which properly should have been entitled “ Succession of Fielding Edwards, on Oppositions to Tableau of Debts,” is the asserted privileges of an attorney-at-law, predicated on section 128 of the Revised Statutes (acts of 1868, p. 209), which reads as follows:

“From and after the passage of this act, in addition to the piivileges enumerated in title twenty-first of the Civil Code of this State, a special privilege is hereby granted in favor of attorneys-at-law for the amount of their professional fees on all judgments obtained by them, to take rank as a first privilege thereon.”

The following are the facts which bear on the issue presented :

Opponent was the counsel of Fielding Edwards a short time before his death in an action for the revindication of the possession of a tract of land established as a plantation, and its appurtenances, which had gone-into the possession of the defendant in the suit, under an agreement of a future sale between him and Edwards.

That litigation was ended by a compromise between the parties, which was made the judgment of the Court, and under which Edwards obtained possession of all the property in question, save a small portion thereof.

Opponent asserts a privilege, for the amount of his professional fees for obtaining the judgment above stated, on the property thereby revindicated, and which was inventoried in the succession of Fielding Edwards. He prosecutes this appeal from an adverse judgment.

The question for solution involves a proper construction of the statute which creates a privilege in favor of attorneys-at-law for their fees on judgments obtained by them, and whether the privilege thus created can affect property which the owner of the judgment may obtain or revindicate in execution, or by virtue, of the judgment.

Under our laws privileges arise from the nature of the act or contract as an effect of the law, and not as a result of the stipulations and consent of the parties. Hence flows the rule that privileges must be strictly construed, particularly when the enforcement of the same, as in this case, would affect the interests of third persons.

■ It appears from the foregoing statement of facts that the judgment obtained by opponent has ceased to exist as an effective j udgment, from the fact that the possession of the property which it called for has been obtained by the creditor, and that nothing could now or heaceforwarward be obtained or realized under it. As a mandate of the Court it has filled his mission, has served all purposes which it could accomplish, and hence it has ceased to have a legal existence. Therefore it does not appear in the inventory as an asset of the succession, and it thence follows that under the terms of the statute, opponent is asserting a privilege on “something nothing,” on a thing of the past, and which can no longer be reached.

To grant the relief which he now seeks, would require a construction of the statute under which the privilege would not only attach to the judgment which the attorney has obtained, but to the property which the owner of the judgment had acquired under the same.

This would simply be judicial legislation, by means of which a new provision would be interpolated in the statute.

The law has restricted the effect of the privilege which it created to the judgment obtained by the attorneys, and courts are powerless to extend it to another and different property. We therefore conclude and we hold that opponent has no privilege on the property the possession of which had been revindicated by means of the judgment which he had obtained.

Judgment affirmed.


text:
    No. 1296.
    Denaise Cole and Husband, Administrators, et al. vs. Jacob Cole, Jr., et al.
    By the act 5 of 1884 the right of forced heirs to establish by parol the simulation or acts or conveyances executed by those from whom they claim to inherit extends to the entire estate and the restriction of such right to the legitime is removed.
    Where an act of sale is attacked as simulated the attacking party is not debarred from proving its simulation, and committed to the truth of its stipulations, by the offering of the act in evidence without reservation. Where the vendor remains in possession and control of the property after the execution and date of the written transfer the sale will he presumed to be simulated.
    A PPEAL from the Twenty-fifth District Court, Parish of Vermilion. Be Baülon, J.

      O'Bryam, & White for Plaintiffs and Appellees:
    1st. Forced heirs when attacking simulated sales of their ancestors are not compelled to produce a counter letter; but may prove simulation by parol evidence. And in such proceedings their right of action is not restricted to their legitime. Act Ho. 5, of 1884.
    2d. Representation is a Action of the law, the effect of which is to put the representative in the place, degree and rights of the person represented.” C. O. Art. 894.
    3d. “In suits to uncover simulations, the largest latitude is allowed in the reception of testimony.” 33 Ann. 1057; S6 Ann. 684.
    4fch. “Conversations and admissions of one of the parties to a simulation are admissible in evidence, though made out of the presence of the other party.” 29 Ann. 4; 15 Ann. 177.
    5th. A price is an essential requisite of a sale. C. C. 2439.
    6bh. “Simulation is presumed where the vendor remains in possession.” 28 Ann. 357. “Where the vendor of property remains in possession until its death, it cannot be recovered from his suceession under a title by transfer from the deceased, unless the claimant establishes good faith, and the reality of the sale.” 15 Ann. 555.
    7th. Prima facie proof of simulation will be considered as conclusive, and sufficient to set aside the transaction complained of, if the parties charged with such simulation do not even attempt to rebut it by their own testimony. A party’s silence under such ciroum - stances is construed against him. 33 Ann. 1057; 10 Ann. 691; 15 Ann. 663.
    8th. Prescription cannot remedy the defects ot a simulated title. 30 Ann, 1099.
    9th. Where the simulation of a sale is the subject matter of a suit, and the party attacking offers the act in evidence in order to lay before the Court the cause of his complaint, he is not thereby precluded from contradicting the recitals of the deed.
    The doctrine of estoppel only goes to tbe extent of prohibiting a party from impugning his own self-serving acts.
    A harsh and rigid application of the doctrine of estoppel is not favored by the law, 24 Ann, 210; 38 Ann. 102; 93 TJ. S. 335. Succession oí Harris, 39 Ann. p, —.

      Mitchell & Gorham on same side.

      George H. Wells & Son for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

This is a suit by a number of the forced heirs of Jacob Cole, deceased, to have declared simulated certain conveyances of property made by tbe deceased to two of his sons, James Cole and Jacob Cole, Jr., a few years prior to his death.

Prom a judgment in favor of the plaintiffs, declaring the acts simulated, and restoring the property to the succession of the deceased, the defendauts have appealed.

Jacob Cole passed most of his life on an island off the coast of Vermilion Parish, known as Mulberry Island. There isolated from the world, with no neighbors nearer than twenty miles, a numerous progeny grew up around him. As his children and grandchildren attained their majority they left him, and for many years he led the life of a hermit, feeble and almost entirely blind, and was attended and nursed by an ex-slave, who remained with him, watched over him and cared for him with the greatest fidelity and devotion.

The wealtli of the deceased, besides his land, mainly consisted of his cattle, which rapidly increased in numbers, and at his death were estimated to be worth at least $16,000.

Shortly after his death these conveyances to his two sons, assailed in this suit, and which embraced his lands and his cattle, were produced, and which, it appears,’ up to.that time had remained unknown to his other heirs; and under these the sons, defendants herein, set up claim to his entire estate.

We have made an exhaustive examination of the record, and therein we find proof conclusive of the simulation charged.

1. In the first place it appears to have been a transfer of his whole property — a sale omnium bonorum — which, of itself, ordinarily carries with it a presumption of simulation.

2. It is shown that after this purported transfer, the deceased remained in the exclusive possession ’ and control of the property as before, selling cattle from time to time, and also part of the' land; and this continued up to his death — a condition of things that also gave rise to a presumption of simulation.

3. The stipulated price was wholly inadequate, bearing no comparison to the real value of the property.

4. James Cole, through whom the alleged purchase was made, and who signed the deed for himself and brother, was shown to have been without means, and could not have possessed, at the time, the money to pay the inadequate price stipulated in the acts of sale.

5. There is also evidence in the record that leads strongly to the conclusion that, in executing these acts, the deceased never really intended to convey the absolute ownership of the property to his sons. He seemed to possess a morbid sensitiveness respecting the interference of courts and officers of the law in the settlement of his affairs after death, and a horror of the attendant costs and charges, and was under the belief that these dire consequences could be averted by putting his estate in the hands of his sons, and leaving to them the distribution of his.estate and the settlement with his other heirs. And this impression is confirmed by the acts and declarations of the defendants themselves, who, at first, were profuse in fair promises to the other heirs of a just and full settlement of their rights in the estate, but which promises became fewer and more stinted in time, and at last ceased ; when on their vantage ground they gradually yielded to the silent but insidious promptings of avarice, which gradually and quietly led them to conclude that it were better and wiser to hold fast to what they had, as they thought, so safe within their grasp.

Their conduct best illustrates the wisdom and keen appreciation of the immortal Scottish bard when thus in verse he moralizes:

u I no say men are villians all,

The real, hardened, wicked,

Who hae nae fear but human law

Are to the few restricted;

But ah! mankind are unco weak

And little to be trusted,

When self the wavering balance shakes,

’Tis rarely right adjusted.”

It is to be noted that the- defendants made no effort to break the force of this strong array of evidence against them, nor to repel the legal presumptions confronting them, by any proffered personal explanation. The real facts were within their knowledge, the truth within their keeping, but their voices were not heard on the witness stand'giving testimony in their own behalf; they were wholly silent, and their silence was significant.

The counsel for the defendants urge, with seeming seriousness, the contention that plaintiffs committed themselves irrevocably to an affirmation of the truth and reality of the stipulations of the several deeds as to price or consideration therein expressed, by themselves offering these deeds in evidence without reservation. This contention is really trivial. These were the very acts assailed in the petition as simulated; they constituted the very gravamen of their complaint, the corpus of their action, and the first step could not have been taken in its prosecution until they produced and submitted to the Court the alleged acts against which the action was directed. The authorities cited by the counsel have no bearing whatever ou the point in question.

And there is just as little force in the further contention that the claim of the plaintiffs to the property, included in the deeds, and then-right to prove the simulation of the acts by parol is confined to their legitime.

This proposition could only have been made in ignorance of the existence of Act 5, of 1884, whicli expressly grants such right without restriction.

The judgment of the lower court is affirmed, with costs.


author: Fenner, J.

text:
    No. 1292.
    Miller, Lyon & Co. vs. Joseph Cappel and D. A. Curry.
    When suit is brought on a note in names of three members of dissolved firm, and is excepted to on ground that one is dead, plaintiffs may amend by striking out name on pi oof that his interest had been fully transferred to ne of the others.
    A judgment rendered on the verdict of a jury defective in being for plaintiff without specifying amount, cannot he sustained; but in reversing it this Court, when satisfied that the record presents all the facts and evidence necessary to a decision of the cause, will not remand it, hut will lender such judgment-following 13 La. 109, and 14 La. 343.
    Where the judgment maintaining exception to an intervention declares that it was Tendered hy reason of the law and the evidence taken theieon, and the record presents no such evidence, the judgment will ho affirmed.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blackman, J.

      T$. N. Oullom, A. V. Ooco, David Todd aud B. N. Oullom, Jr., for Plaintiffs and Appellees.

      Thorpe <£■ Peterman for Defendants and Appellants, and for Intervenor, Appellant.
   The opinion of the court was delivered by

Fenner, J.

The action is upon a mortgage note, and was brought in the name of Tilos. D. Miller, T. Lytt. Lyon and Branch M. King, members of the firm of Miller, Lyon & Co.

An exception was filed that Lyon was deceased at the time of filing the suit. Thereupon plaintiffs were allowed to amend their petition hy striking out the name of Lyou, on full proof that his entire interest had been duly transferred to Miller, and hy praying for judgment in the names of Millér and King alone, and the exception was then overruled.

We see no error in this, and the matter is too trifling for further consideration.

A plea of prescription was also filed, but it has no merit and is not urged in this Court.

The only serious defense is the charge of defendants that plaintiffs are not the owners of the note sued on, but that they acquired the same, with others, from a third holder, at the request of, and as agents of, defendants, to whom they merely advanced the money to buy or take up the notes; whereby the notes became the property of defendants and, with the rhortgage securing them, were extinguished by confusion, leaving plaintiffs in the position of mere ordinary creditors for the amount advanced.

This defense is not sustained.

The only evidence supporting it is that of Mr. Cappel, one of the defendants, and it is directly contradicted by the evidence of Mr. Miller, Mr. B. M. King, and Mr. Pred. King, as well as by the letters and acts of the parties.

The preponderance of the evidence is so overwhelmingly in favor of plaintiffs on this issue, that the matter needs no further discussion, particularly as it is confirmed by verdict of the jury and the judgment of the court.

We have also examined the accounts between the parties, and are satisfied that the amount accorded by the judgment, at least when reduced by the remittitw entered thereon by plaintiffs, is correct.

The verdict rendered by the jury is in the following form: “ Nine in favor of judgment for plaintiff, and recognize the mortgage.”

The defendants contend that this verdict cannot support a judgment m the court below, and none should have been entered on it. Article 522 C.’P. requires that the verdict shall be: “verdict for plaintiff for so much, with interest,” etc.

All authorities agree that a verdict not stating the amount either in exact terms or their equivalent is bad. But as to the remedy applicable in this Court, the decisions are apparently conflicting.

In two cases, it was held the judgment on such a verdict must be reversed, but that this Court, being in possession of all the facts and evidence necessary to pronounce judgment in the case, would proceed to render such judgment as should have been rendered in the court below, regardless of the defective verdict, but throwing the costs of appeal on plaintiffs, even though the same judgment be rendered. Hosea vs. Miles, 13 La. 109, Collins vs. Hamilton, 14 La. 343.

In another case, the Court reversed the judgment and remanded the case, but tbe remanding was made because there were errors in the proceedings in the court below. Hampton vs. Watterston, 14 Ann. 239.

In yet another case, the Court refused to disturb the judgment because defendant had failed to have the defect corrected in the lower court or to make it a distinct ground for new trial. Simon vs. Brashear, 9 Rob. 59. Also to same effect, 2 Ann. 472; 6 Ann. 727; 7 Ann. 678.

But in the instant case, defendants did seek relief in the court below by assigning this defect as a distinct ground for new trial, which was denied.

We shall, therefore, follow the practice adopted in the two cases first cited, being satisfied that we have before us all the evidence to enable us to determine the controversy, and that plaintiffs are entitled to the same judgment which was rendered below, though, as determined by those precedents, this will subject plaintiffs to costs of appeal.

On the Intervention.

An intervention was filed in the case by defendant, D. A. Curry, in the capacity of natural tutor of his minor children, alleging, nakedly and without any specification whatever, that “ at and before the execution of the mortgage of plaintiffs, one undivided fourth part of the property therein described belonged to said minors, and was, therefore, not stricken with said mortgage, neither of said mortgagors being authorized to bind the property of said minors; and that another undivided fourth thereof belonging to their tutor was, prior to the mortgage set up by plaintiffs, affected by a mortgage in favor of said minors for $3,075, resulting from the recordation of the inventory of their deceased mother on December 23,1872.”

To this utterly vague petition plaintiffs filed an exception that the said Curry, tutor, is without suable interest therein.”

The exception is almost as vague as the intervention; but it was separately taken up, tried and decided in the following terms: “Upon the exception of plaintiffs to the intervention of D. A. Curry, as natural' tutor in the foregoing matter, the law and the evidence fully sustaining the exception, etc., it is by reason thereof ordered, adjudged and decreed that said exception be sustained, and the said petition of intervention be dismissed at intervenor’s cost.”

It thus conclusively appears that the judgment was based on evá-. dence and rendered by reason thereof. The record fails to exhibit any evidence taken on the exception, and it is, therefore, impossible for us to revise the judgment or to say that it was erroneous. The jule is that this Court will presume that the evidence, with which it is not furnished and upon which.the judgment complained of was rendered, authorized it. Miller vs. Whittier, 6 La. 72; Thomas vs. Kean, 10 Rob. 80.

We take this course with less hesitation, because the rights of the minors, whatever they may be, will not be prejudiced but will be open to assertion in proper proceedings.

It is, therefore, ordered, adjudged and decreed, that the judgment dismissing the intervention be now affirmed.

It is further ordered, adjudged and decreed, that the judgment in favor of plaintiffs and against defendants, rendered by the court below, be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the said Thomas D. Miller and Branch M. King do have and recover of the said defendants, Joseph Cappel and Dudley A. Curry, the sum of four thousand dollars, with eight per cent per annum interest thereon from February 9, 1874, until paid, subject to a credit of one hundred dollars, to take effect from April 7, 1878, and subject to a further credit of $637.98, amount ot remittitur entered by plaintiffs in court below; and it is further decreed that the special mortgage made part of plaintiffs’ petition, dated at Evergreen, La., on May 6, 1873, before Wm. M. Ewell, notary public, and affecting the lots Dine, eight and six, situate in the corporate town of Evergreen, parish of Avoyelles, La., and all the buildings, improvements and appurtenances and privileges thereunto belonging, and containing eight acres, more or Ipss, bounded as follows, to wit; north, by property belonging to H. M. Miles, Mrs. S. E. Pearce and W. B. Buck; east, by property of Mrs. E. E. Fuqua and S. C. Cappel; south, by Mrs. E. A. Fuqua, S. C. Cappel, Mrs. E. H. Bassett and Joseph Cappel; and west, by H. and A. Kahn, Mrs. S. E. Pearce, H. M. Miles, Joseph Cappel, and the public road — be recognized, and that the said property be seized and sold to satisfy this judgment, interest and costs; defendants to pay costs of the lower court, and plaintiffs to pay those of this appeal.


text:
    No. 1293.
    Victor Garnier vs. L. A. Joffrion, Sheriff, et al.
    The homestead legislation of 1865 required no registration of exemptions claimed under it, and such a requirement cannot be now exacted.
    In construing exemptions under the law of 1865 reference must be had to the condition of things existing at the date of seizure,
    The^rowso incorporated into the act of 1865, which declares that "no debtor shall be entitlod to the exemption provided for in this section, whose wife’ shall own, in her own right, and be in the actual enjoyment of property worth more than one thousand dollars,” was evidently intended to operate as a restraint upon its exercise, under the conditions imposed, and has reference to the time of its assertion judicially, and to a wifé then in being,
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Overton, J.

      A. V. Ooeo for Plaintiff and Appellee:
    1st. The right to a homestead under obligations existing prior to the Constitution of 1879 must he discussed under the law of 1885. 35 Ann. 927. affirming cases 34 Ann. 331 and 32 Ann. 980 5 but the concurrence of facts necessary to a homestead must co exist at the time of the seizure. 33 Ann. 242; 35 Ann. 322; act Constitution, 219.
    2d. The cases reported in 26 Ann. 156; 28 Ann. 355 and 608, not applicable to the case at bai, Marcotte vs. Messiek, Manning’s unreported case*, p. 43. Luoques1 Digest, from p. 300 to 302.
    3d. The renunciation of the debtor to his homestead exemption is against public poliqp and is therefore void. 29 Ann. 333.
    4th, The homestead is .specifically exempt from seizure, whether the debtor owns any other property and whether he has disposed of property pending the suit to recover the debt. 29 Ann. 572.
    5th. Where plaintiff’s homestead is sustained and his injunction perpetuated it is proper to accord him reasonable counsel fees spent to protect him from further wrong. 29 Ann. 572.
    . J. O. Ga/pjpel and Da/wd Todd for Defendants and Appellants :
    Exemption under the homestead act does not apply to succession property. Therefore, if such property has passed into the succession property, it may be sold for the payment of the debts thereof. 23 Ann. 335.
    The homestead law cannot affect contracts entered into anterior to its passage. 25 Ann. 142; 20 Ann. 244.
    That no debtor shall be entitled to this exemption whose wife shall own in her own right • property worth more than one thousand dollars. 28 Ann. 667.
   The opinion of the court was delivered by

Watkins, J.

Plaintiff seeks to restrain, by injunction, a sale, under execution, of a certain tract of land he claims as his homestead. The writ issued under a judgment in a suit entitled S. Cambon & Co. vs. Victor Garnier, the plaintiff herein.

The debt evidenced by the judgment was one of the community previously existing between plaintiff and his deceased wife, Elizabeth Fouquier. It was contracted in 1871, and she died in 1879. Of her succession her surviving husband qualified as administrator; and one-half interest in the land constituted an asset thereof. In 1880 the plaintiff contracted a second maniage, and in 1881 he and the heirs of his former wife partitioned the property of the said community, and the land in controversy was allotted to him, in his own right, and the other half was allotted "to him as the tutor of his children — -upon the condition that he should assume the payment of community debts.

-On the 29th of September, 1880, the plaintiff set apart as a homestead, and had same duly recorded, the whole of this tract of land, and the buildings and improvements thereon situated; and which he occupies as a residence, and has so occupied since its acquisition in 1866.

There is in the whole tract seventy acres, and it is estimated to be worth about $1,600, i. e., $800 for the plaintiff’s one-half.

Plaintiff is the head of a family and has a wife aiid five children dependent upon him for support, two of the latter having been born since September 24th, 1880.

The plaintiffs present wife does not own and is not in the enjoyment (if any property of any kind.

The seizing creditor resists this injunction on two grounds, viz.:

1st. That at the date of the registry of plaintiff’s homestead, the property belonged to the succession of his deceased wife, and was at the time under administration.

2d. That plaintiff failed to establish that his predeceased wife owned no property in excess of $1,000 in value.

Prom a judgment í ejecting the plaintiff’s demand as of nonsuit, the defendant has appealed; and in his answer to the appeal, plaintiff prays the perpetuation of his injunction with $150 damages.

. I.

The foregoing statement of facts brings this case within the purview of the homestead law of 1865. Of it this Court said in Thomas vs. Guilbeau, 35 Ann. 927: “The homestead legislation of 1865 required no registry of homestead exemptions, and no such requirement can be invoked to affect the claim of the plaintiff to the present one. Hence, his declaration has no weight or effect, either for or against him, in the determination of his rights under the pleadings.”

We must therefore consider plaintiff’s claim without reference to the Constitution of 1879, or the recordation made in pursuance thereof. The property claimed as a homestead was not succession property in its entirety; though one-half of it was, at the date of said registry, but not at the date of the seizure enjoined. It had been partitioned long before, and plaintiff’s ownership restricted to the thirty-five acres that were seized. The succession, as well as the joint ownership, terminated therewith; and Henderson vs. Hoy, 26 Ann. 157, is not applicable. In that case the seizure was made of the plaintiff’s own undivided sixth interest, in indivisión, in a tract of land, in which he set up a homestead exemption.

In construing exemptions under the law of 1865 reference must be had to the condition of things existing at the date of seizure.

In Barron vs. Sollebillos, 28 Ann. 356, the Court said on this subject: As the plaintiff did not have this right (of homestead) when the seimre was made * * she cannot claim it now. The thing seized, and about to be sold, is an incorporeal thing — the undivided half of certain property — and to this right the homestead does not attach.”

The proof in that case showed that a partition was made after seimre, and it did not avail.

The more recent case of Marcotte vs. Messick, Manning’s Unreported Cases, p. 42, is applicable in principle to the state of facts- presented in this record. The Court said: In this case the thing seized is a tract of ldnd. The fact that it belonged to the community does not affect the right of homestead. The surviving husband has the usufruct during his natural life, or until his second marriage, of the share of the community inherited by his minor child. It may never be necessary to have a division of the property; and if it should become necessary, nothing in the record authorizes the presumption that the property is not susceptible of division in kind. The homestead, or family residence, might fall to the husband, on the partition.”

Just that particular contingency has happened in the instant case. In the partition of the effects of the community, the portion on whieh the family residence was situated was allotted to the surviving husband. While it is unnecessary to approve all that we have- quoted from that case, it furnishes a forcible illustration of the legality of plaintiff’s contention here. We are of the opinion that the property seized is, and was, at the date of seizure, exempt from seizure and sale under execution.

II.

The failure of the plaintiff to prove that his predeceased wife did not own and was not in the actualenjoyment of property, in her own right, of the value of $1,000, does not preclude the assertion of his homestead right. That was not a condition precedent thereto. The language of the law is: “ And provided further, that no debtor shall be entitled to the exemption provided for in this section whose wife shall oxvn, in her own right, and he m the actual enjoyment of property worth more than one thousand dollars.” R. S., sec. 1691.

This proviso was evidently intended to operate as a restraint upon the exercise of the right of homestead, under the conditions imposed therein : and it must, of a necessity, have reference to the date of its assertion judicially. The phrase and be in the actual enjoyment of property,” indicates that the “wife who shall own” it, is in being at the time.

The defendant’s second objection was not well taken.

iii.

We are of the opinion that the amendment prayed for by the.plaintiff and appellee should be made, and that a final judgment should be rendered, maintaining the homestead and perpetuating his injunction; but we are disinclined — under the circumstances of this case — to award him any damages. As we have declined to give effect to the registry of plaintiff’s homestead in one respect, wecannotiii another;

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and reversed; and it is further ordered, adjudged and decreed that plaintiff’s right of homestead upon the 'property seized be recognized, and enforced, and his injunction perpetuated.

It is further ordered, adjudged and decreed that the demands of both plaintiff and defendant for damages be rejected, and that all costs be taxed against the defendant and appellant.


text:
    No. 1294.
    Mrs. Clara J. Mullen, wife, etc., vs. Zuberbier & Behan.
    The Supreme Court lias no jurisdiction over a suit in nullity of a judgment rendered on an hypothecary action, when the amount, to pay which the property is sought to he subjeoi cd, does not exceed two thousand dollars.
    The circumstance that the demand in nullity is coaled with a prayer for damages exceeding that sum, does not make the case appealable.
    A PPEAL from the TweDty-fifth District Court, Parish of Lafayette. i\ DeBaiUon, J.

      L. L. Bourges for Plaintiff and Appellant.

      Felix Voorldes & Son for Defendants and Appellees.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a suit to annul a judgment. The complaint is, that the judgment was rendered without any citation issued to and served on the then defendant, but contradictorily with a curator ad hoe, whom the court was powerless to appoint and wiio could not represent her.

The suit in which the judgment complained of was rendered, had for its object the enforcement of a money judgment for five hundred and forty dollars and thirty-five cents ($540 85) by the hypothecary action. That judgment had been rendered against the party from whom the defendant; had acquired the property, and was recorded at the time of the transfer.

The action of nullity is therefore brought to relieve the property from, a claim which does not exceed $2000, the actual lower limit of our jurisdiction.

It is true that the plaintiff sues besides for $3000 damages, said to have been sustained in consequence of the judgment attacked, which it is said prevented plaintiff from selling the property, and also in attorney’s fees for bringing the present suit; but there is nothing to show that the judgment was executed and that injury was entailed in consequence.

The claim for damages clearly appears to have been made for the sole purpose of bringing the case within the jurisdiction of this Court; and, unfounded as it seems on the face of the papers, it must be deemed frivolous.

In the case of Young vs. Duncan, 39 Ann. 86, in which an attorney claimed a fee of $1500, with privilege on a judgment valued at more than $2000, the appeal was dismissed, the title to the judgment not being involved and the only question at issue being the value of the services of counsel and the existence vel non of the security claimed.

This Court could pass on the question of damages only after having annulled the judgment attacked.

Ttis tlieiefore ordered that the appeal herein be dismissed with costs.


text:
    No. 1295.
    The State ex rel. Joseph Levy & Brother vs. Judge Third City Court of New Orleans.
    Act Xo. 45 of I860, which is entitled “An Act to organizo the City Courts in tho city of Xcw Orleans, to regulate tho territorial jurisdiction thereof and proceedings therein, and to fix the salaries of the judges,” is not unconstitutional as violative of either Article 46, or Article 135 of the Constitution.
    Its provisions, which dotine the territorial jurisdiction of the city courts, far from conflicting with, were enacted in furtherance of. Article 135 of the Constitution, in which the courts aforesaid arc created, tinder its provisions, it is clear that no resident of the left bank of the city of Xcw Orleans can he sued in the Third City Court, whose jurisdiction is restricted to that portion of the city of Xew Orleans which lies on the right bank of the Mississippi river.
    ^^PPLICATION for Certiorari and Mandamus.

      Bernard Titehe for the Relator.
   The opinion of the Court was delivered by

Poci-ié, J.

This controversy presents the question of a proper definition of the territorial jurisdiction of the Third City Court of New Orleans.

Under the provisions of Act No. 45 of 1880, its jurisdiction is limited to that portion of the parish of Orleans which lies on the right bank of the river Mississippi; and in an attempt of relator to sue a party resididing in New Orleans on the left bank in that court, the respondent judge maintained the exception of the defendant to his jurisdiction rations persones.

Hence arises the complaint of relator, who makes the following points in support of his proposition that the jurisdiction of the Third City Court extends to all portions of the parish of Orleans:

1st. That the Legislature had not the constitutional authority to limit the jurisdiction of the city courts created by the Constitution, to any portion of the parish of Orleans.

The city courts were created by Article 135 of the Constitution, which provides: “There shall be in the city of New Orleans three city courts, one of which shall be located in that portion of the city on the right bank of the Mississippi river.” * * * “The G-eneral Assembly shall regulate, the salaries, territorial division of jurisdiction, the manner of executing their process, the fee bill and proceedings which shall govern them.” * * *

From this plain and unambiguous language it appears clearly that after creating three city courts, and providing that one of them should be located on the right bank of the river, the framers of the Constitution wisely vested the Legislature with full and exclusive power to enact all laws which might prove necessary to set those courts in motion. It is worthy of note that the power to regulate their jurisdiction as to' territory, which is contested by relator, was expressly delegated in the article.

Hence, it was competent, under that power, for the Legislature to enact the third section of the Act No. 45, which reads: “That no person shall be sued before any other court than the one having jurisdiction over the place of his residence; but all the constables of said city courts shall have authority to execute process throughout the entire parish of Orleans.”

There is no inconsistency, as argued by relator’s counsel, between ' the restriction of the territorial jurisdiction of the courts and the authority granted to their various and respective constables to serve process throughout the entire parish of Orleans.

Tiie manifest object of tbe Convention in creating the city courts was to facilitate and to expedite the administration of justice in New Orleans among litigants in suits involving sums not exceeding tine hundred dollars; hence, it created several courts and vested each with a well defined territorial jurisdiction. But foreseeing that witnesses might not all live within the territorial jurisdiction of the court, but within the limits of the parish of Orleans; and that it might become necessary to sequester, attach or seize property situated outside of the jurisdiction of the court, but in other portions of the parish, the Legislature properly extended to constables the power to serve such process, either of summons, sequestration, attachment or seizure and the like throughout the entire parish.

2d. Eelator’s second point is that Section 2, of Act 45 of 1880, which defines the territorial division of jurisdiction of the three city courts is violative of Article 46 of the Constitution, which reads: Thé General Assembly shall not pass any local or special law on the following objects: * * * regulating the practice or jurisdiction of any court or changing the rules of evidence in any judicial proceeding or inquiry before courts.” * * *

When weighed in the scales with the undisputed fact that the enactment of the section thus assailed was in obedience to the formal constitutional mandate contained in Article 135, the argument .of relator is too trivial to justify any further notice than a mere mention. Like all over-zealous litigants, relator, having gone beyond his depth, reaches out for a support which can but destroy him. If that enactment is unconstitutional, the city courts are yet in a state of chaos, and the very court which he invokes would thus be stripped of all power to entertain and determine his demand.

3d. His next contention is, that in extending the jurisdiction of the first and second oitv courts concurrently to all portions of the city of New Orleans on the left bank of the river, while it restricted the jurisdiction of the Third City Court to the right bank, the Legislature made an unconstitutional discrimination against said Third City Court. The injustice of the discrimination is not easily discernible. Under its effect the first and second city courts are denied jurisdiction over the right bank of the river just as clearly and effectively as the Third City Court is denied jurisdiction in that portion of the city which lies on the left bank of the river.

The reason which prompted the wisdom of locating a city court on the right bank of the river, which was manifestly the purpose of avoiding to litigants of that portion of the city the necessity of crossing a mightjT river for the purpose of minor litigation, is very suggestive of a like protection to the residents of the left bank.

But after all, the Legislature had the constitutional power to make the enactment, and the wisdom of its course is not a subject within the scope of judicial investigation.

4th. Relator’s fourth and last point is to the effect that the legislat tive delegation of power to the constable to execute process throughoutlie entire parish, necessarily includes that of citation, and that therefore the court must also have the power to issue such citation without territorial restriction.

That contention involves the proposition that the jurisdiction of the court must be measured by the powers of the constable. The argument is so weak that similar to brittle glass it falls to pieces by the mere handling. It has airead}' been shown what the law meant by the process which the constable can serve or execute in all portions of the parish. The Legislature surely did not mean process which did not and could not exist, under its own prohibition contained in the same section.

Our conclusion is therefore clear that the Third City Court of New Orleans has no jurisdiction ratione personw over residents of the left bank of the city, and that the respondent judge committed no error in maintaining defendant’s exception in the case of Joseph Levy & Bro. vs. J. F. Oser.

The writs prayed for by relator are therefore denied, and his application dismissed at his costs.

The Chief Justice takes no part.