author: Todd, J.

text:
    No. 10,143.
    R. K. Anderson vs. George C. Benham.
    Parol evidence is inadmissible between the contracting parties to an act of sale of an irnrnov able to prove its simulation. This can only be done by a counter-letter in writing equivalent thereto. To constitute a counter-letter it is not necessary that it should be contemporaneous with the act attached. It is sufficient tosetaside the act if the writing offered against it, of whatever date, contains an admission that the alleged sale was a simulation.
    !Nor is the plaintiff in such action debarred by any stipulation in the act, or by the warranty contained therein, from proving the falsity of the act.
    APPEAL from the Eighth District Court, Parish of East Carroll. Deloney, J.

      Montgomery & Bansclell for Plaintiff and Appellant.

      W. Gf. Wyly for Defendant and Appellee.
   ’ The opinion of the Court was delivered by

Todd, J.

The plaintiff, on the 22d of November, 1870, made a conveyance by act, under private signature, to the defendant, Mrs.. Benham, of one undivided half of the plantation described in the pleadings.

On the 22d of May, 1871, he executed another act, by which he purports to have conveyed the entire plantation to George C. Benham,. the husband of Mrs. Benham.

On the 5th of February, 1885, he instituted this suit. In his petition he declares, substantially, that in making said conveyances, it was not his purpose or intention thereby to sell the property referred to, or to pass title thereto to the defendants, or either of them, but that the acts were executed for the sole purpose of investing said parties with the ostensible ownership of the property, in order that they might mortgage the same for his benefit, and thereby raise money for him to cultivate the plantation. That such was the understanding of all the parties at the time and was so acknowledged to be by the defendants in a counter-letter subsequently executed. That the acts,. as sales, were pure simulations, and he seeks by this action to have-them so declared.

The defendants’ answer contains the general issue, claimed possession of the property of defendants, alleged the disturbance of their possession and slander of their title by the plaiutiff; and, further, pleaded prescription and estoppel resulting from the stipulations of the acts of conveyance and the express warranty therein contained. During the pendency of the litigation in the lower court, Benham died, and Mrs. Benham qualified as administratrix of his succession, and filed an appearance as his legal representative.

There was judgment in favor of the plaintiff against the succession of Benham, annulling the conveyance to him, and in favor of Mrs. Benham, rejecting the plaintiff’s demand as to one-lialf of the property claimed by her in her own right. Prom this judgment the plaintiff and Mrs. Benham, as administratrix, have both appealed.

On the trial of the cause, a document was offered in evidence by the plaintiff and received and filed. It was termed a couuter-letter by the plaintiff, but its character, as such, was denied, and its admission objected to on grounds that will be noticed hereafter. It was signed by the plaintiff and both the defendants.

To show the character of the document and the intent and meaning of the parties thereto, we extract from it the following clauses -.

“I, Geo. C. Benham, hereby acknowledge that R. K. Anderson is the owner of the undivided half interest of the Robertdale plantation, held-hy me under deed, dated the 22d of May, 1871, situated in * * * East Carroll parish. * * * And I do hold and respect said Anderson as the owner of the before-described land and all the-revenues arising therefrom and improvements and appurtenances thereunto belonging, notwithstanding any deed or act of sale of aforesaid date of May 22, 1871, and I hereby obligate myself * * * not to interrupt or disturb him in the quiet and peaceable possession of said undivided half of said plantation, which he now holds and enjoys. * * * The document signed by Geo. C. Benham and his wife, Carrie T. Benham, and R. K. Anderson, dated May 22, 1871, is hereby declared null and void.”

This document is essentially a counter-letter. To constitute a counter-letter, it was not necessary that it should have been contemporaneous with the deed to which it referred and purported to control and explain $ and if properly admitted must be held conclusive upon the question of sale or no sale.

Most of the objections made to the admission of the document related to the character of the instrument, and therefore went to the effect of it.

It appears that it was executed in duplicate — one copy being delivered to the plaintiff and one retained by Benham.

The copy of the plaintiff’s was first offered, and was objected to on the grounds, mainly, that it was mutilated ; that is, that several dates appearing therein had 'been altered, and that plaiutiff was bound by the stipulations of the deed and estopped from attempting to show, by any kind of evidence, that the act was false or simulated.

If the act offered was signed by the parties, and that is not questioned, the alterations made in the dates mentioned, if there was such, was not a sufficient ground for the entire exclusion of the document — it only went to the effect of it.

As to the other objection and the question of estoppel, if the act of the 22d of May, 1871, purporting to sell the property to Benham, was a real act, then, of course, the objection was a good one; but if the act was a simulation, as charged, and which it was the purpose of the suit to establish, and the sole question to be determined then, of course, the declarations of the deed, both as to the sale and the warranty, amounted to nothing — they were as if never written, nonexistent. The objection assumes that to be true and real — the deed attacked — which is charged to be fictitious and simulated, and is, therefore, wholly illogical. It is like pleading the judgment itself* which is charged to be null, as res judicata against the action to annul it.

This precise question was disposed of in the recent case of Cole vs. Cole, 39 Ann. 878, and adversely to the pretensions of the defendant in the instant case.

This counter-letter or writing was, therefore, properly admitted.

Parol evidence was offered to establish the simulation of the act of the 22d of November, 1870 — the conveyance to Mrs. Benham — and was properly rejected, for the reason that a counter-letter, or some Avriting equivalent thereto, is alone admissible and sufficient to establish the falsity of a regular act of sale of immovable property.

The case, therefore, stands thus :

'Ihe plaiutiff, by the two acts of the 22d of November, 1870, and May 22, 1871, divested himself of title to the entire Robertdale plantation, by the first-mentioned act, selling the one undivided half of it to Mrs. Benham, and by the other, the entire plantation to George C. Benham.

The counter-letter of the 24th of May, 1875, admits that the act of the 22d of May, 1871, was inoperative and void, and notwithstanding said act that the plaintiff was the owner of one undivided half of the plantation. But there was no admission in the counter-letter, and nowhere else in the record, or other competent evidence to establish the nullity of the conveyance of the 22d of November, 1870, to Mrs Benham. This act, therefore, must be left intact.

The plaintiff, by deeds regular on their face, having transferred to others the entire plantation, must make clear beyond peradventure and by competent evidence, that he is, notwithstanding said act, still the real owner, and that thei acts purporting to pass the title from him were false and fictitious.

He charges that the simulation of both acts is to be inferred from the fact that there was a community of acquets and gains existing between Benham and his wife, and his (plaintiff’s) conveyance to the latter was, in truth, a conveyance to Benham, and that Mrs. Beuham’s joining with Benham in the execution of the counter-letter was virtually an acknowledgement on her part that the sale to her was a simulation, and together with the signature of Benham, that both deeds were false or fictitious.

This is not sufficient. It is to be noted that in the counter-letter that there is no allusion to the act in favor-of Mrs. Benham, and this instrument admits or declares the ownership of the plaintiff in only one undivided half of the plantation, and not as to the whole of it, as alleged.

It appears,'from the record, that this plantation belonged to the matrimonial community that, existed between plaintiff’s father and mother, both deceased. That one-half of it plaintiff inherited from his father, who died first, and the other half from his mother.

There is a discussion by counsel as to which half of the property was conveyed to Mrs. Benham, whether the portion derived from the father or the mother, and as which portion, under the decree of the lower court, he, plaintiff, is to be recognized as the owner of.

This is a question with which, at present, we are not concerned, and which, if it were material, from the record before us, it would be impossible to determine.

There was a question raised by the pleadings touching the rents and revenues of the property, but by a written agreement of the parties found in the record, this question was reserved for future determination, and this reservation was properly recognized.

The case was tried by a jury, and the judgment upon the verdict, as before stated, was in plaintiff’s favor against the succession of Benliam, and rejecting plaintiff’s demand against Mrs. Benham.

From the conclusion reached by us and announced above, we see no reason to disturb that judgment, and the same is affirmed, with costs..


source: Caselaw Access Project

author: Fenner, J. Watkins, J.

license: Public Domain

text:
    No. 10,073.
    The State of Louisiana and Police Jury of the Parish of Jefferson vs. W. J. Isabel.
    "When a party, charged with violating a parish ordinance inflicting a fine for certain prohibited acts, appears and flies a plea or demurrer admitting the act, but setting up the* nullity of the ordinance, the case involves a contestation ns to constitutionality or legality of a flue or penalty imposed, and is appealable to this Court.
    The State and police jury having both joined in the appeal, and the defendant being duly cited, all proper parties are certainly before us, and even if the joinder of appellants was unnecessary, it obviates all ground of objection to absence of parties which is urged in the motion.
    Because a retailer of spirituous liquors ha* paid his license he does not become, on that account, exempt from the operation and effect of a police regulation, thereafter ordained by the police jury, in so far as his subsequent act, in violation thereof is concerned.
    An ordinance passed and promulgated, subsequent to the issuance of a license to a retailer of spirituous liquors, denouncing a penalty of fine against its violation, by such person as shall keep his saloon open after 10 o’clock p. m., is not amenable to the charge of being an ex post facto, or retroactive law, unless the act sought to be punished was committed antecedent lo its passage.
    APPEAL from tlie First Justice’s Court for the Parish of Jefferson. Ohapman, J.

      G. Tjéohe, District Attorney, anil 11. N. Gautier for Plaintiffs and Appellants.

      W. Tj. Thompson ior Defendant and Appellee.
   Motion to Dismiss

The opinion of the Court was delivered by

Fenner, J.

The Police Jury of the Parish of Jefferson passed an ordinance forbidding the keeping open of taverns, coffee-houses and retail liquor shops after 10 o’clock at night or earlier than 4 o’clock in the morning, and inflicting as a penalty for its violation a fine of twenty dollars for each offense.

Defendant, prosecuted for such a violation, filed a written plea in which he expressly admits the facts charged, but sets up that the ordinance was null and void, because he had paid licenses to the State and parish, and the ordinance passed after such payment was ex post facto. The justice sustained the plea or demurrer, from -which judgment the appeal is taken.

The motion to dismiss is based on two grounds, viz.:

1st. That the case is unappealable:

This is untenable. It is apparent from the above statement that the -case involves a contestation as to the constitutionality or'legality of a fine or penalty imposed by a municipal corporation. This authorizes an appeal to this Court under Art. 81 of the Constitution.

2nd. That the proper persons are not made parties to the appeal.

Both the State and the police jury are parties appellant, and the defendant was duly cited as appellee, What other party is required we -cannot conceive.

It may have been unnecessary for both the State and police jury to join in the appeal, bqt certainly their joinder obviates all possible defect of parties.

The motion to dismiss is, therefore, denied.

On the Merits.

Watkins, J.

The defendant was arrested on the charge of having violated the following ordinance of the Police Jury of the parish of Jefferson, Right Bank, viz.:

“ All tavern and coffee-house keepers, and retailers of spirituous liquors, are forbidden to keep their houses open later than 10 o’clock p. m., or to reopen them earlier than 4 o’clock a. m. following; provided, that they shall be allowed to keep open on each Saturday night until 12 o’clock, under ptnalty of a flue of twenty dollars for each and every contravention, unless they are authorized to do so by special permission from the police jury.”

On the trial the defendant filed a demurrer to the proceedings against him under the foregoing ordinance, on the grounds substantially, viz.:

1st. Rliat he had paid a State and parish license as a retailer of spirituous liquors previous to the enactment of the ordinance in question, under which he is entitled to keep his place of business open until 12 o’clock at night; hence it violates the law.

2nd. That this ordinance, passed and promulgated subsequently to the issuance of his said licenses — if intended to control him in the ex-ercise of all or any of his rights thereunder — is an “ ex post facto law, which is null and void and retrospective ; and, therefore, he prays to-be hence dismssed,” etc.

The justice of the peace sustained tire demurrer and dismissed the proceedings against the defendant; and, on iris decision, the jurisdictional contention of legality vel own of the ordinance is here jiresented by the State, and parish of Jefferson.

Said ordinance was enacted and promulgated on the 23d of March, 1887, aud defendant’s violation of it is laid on Monday, the 19th of July following.

He relies on the provisions of Section 1 of Act 18 of 1886, as authority for keeping his place of business open until 12 o’clock at night.

That act is commonly known as “ the Sunday law.” It provides “ that from and after the 31st day of December, 1886, all stores, shops, saloons and all places of public business, which are or may be licensed under the law of the State of Louisiana, or upder any parochial or municipal ordinance, and all plantation stores, are hereby required to be closed at twelve o’clock on Saturday nights, and to remain closed continuously for twenty-four hours,” etc.

There is no mention made of any other than Saturday night; and Sunday night, is included, by necessary inference. Argument is not needed to demonstrate the fallacy7 of defendant’s contention in this particular. This statute is one which contains prohibitions and penalties alone. It does not purport to grant any privileges to any one. It was enacted and promulgated antecedent to the said ordinance of the-police jury, and it is in no sense inconsistent therewith.

II.

It appears, from the record, that the defendant paid for, and procured his State and parish licenses, on the 28th of February, 1887, antecedent to the adoption of said ordinance, and hence his contention that, if intended to apply to such persons as may have procured their State and parish licenses previously, it is an ex post facto, and retrospective law, and cannot be enforced against him.

In answer to this proposition the plaintiff’s counsel contend that the police jury had ample warrant, in R. S. Sec. 2743, paragraph 6, for the enactment of the ordinance, as a police regulation ; and in this view he is correct.

For that section provides that “the police juries shall have power to make all such regulations as they may deem expedient.

*********

“ To o'egulate the police of taverns and houses of public enteitainment and shops for retailing liquors in their respective parishes,” etc.

It is an established fact that the alleged violation of the ordinance occurred long after its adoption.

We cannot understand in what respect it is an ex post facto or retroactive law-.

A statute is said to be an ex post facto law when it is intended to punish crimes or offenses committed antecedent to its enactment; and is said to be retroactive when it is to be applied to past transactions.

But neither view has any application here, because the act sought to be punished occurred subsequent to the adoption of the ordinance.

We are referred to no provision of law, in force at the time the defendant procured his licenses, under the authority of which he was entitled to keep open his establishment until 12 o’clock at night, and the privilege of enjoying which the ordinance in question purports to abridge. And we are not aware or any. But, if there was, it would not result therefrom that the ordinance in question was either an ex post facto or retroactive law.

The defendant’s counsel cites our opinion in Police Jury of Jefferson Parish (Right Bank), vs. Arleans, 34 Ann. 646, as conclusive against the enforcement of said ordinance.

An examination of 'it discloses that the defendant was proceeded against for an alleged violation of a police jury ordinance relating to ferries, and he was sought to be condemned to pay a line, or, in default thereof, to be sentenced to a term of imprisonment. Resistance was made on the ground that the police jury was not warranted by the law in passing an ordinance denouncing the penalty of fine and imprisonment against the violation of its ferriage laws, enforceable in a criminal proceeding in the name of the parish.

The court sustained this view, and held tint the law, “ whilst providing for punishment by fines, expressly declares that the same may' be recovered by suit brought in the name of the parish,” etc. R. S. Sec. 2750.

But the question here is not whether the police jury could promulgate and enforce an ordinance directing proceedings against the violation of her police regulations by indictment or information, but whethei it could enforce such an ordinance at all. It is not applicable.

We are of'the opinion that the ordinance, drawn in question is a police regulation, which the police jury had a right to ordain, and that it is not amenableto the charge of being an ex post facto or retrospective law ; and that the justice of tire peace erred in sustaining the defend ant’s demurrer, and in dismissing die prosecution.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and-reversed j and it is further ordered, adjudged and decreed, that the cause be remanded and reinstated for further proceedings according co law, and the views herein expressed ; the cost of appeal to be paid by the defendant and appellee, and those of the lower court to await the final decision of the J -cause therein.


author: Fenner, J.

text:
    No. 10,067.
    Mrs. Hattie E. Weymouth vs. The City of New Orleans and J. T. Aycock.
    Unciera contract with reference to a public market by which the solo light conveyed by the city to the thii d person is the right to collect and appropriate the market revenues, the market remaining subject to all the regulations,.control and authority of the city Applicable to every other market, the thing let is not the market-house, but only the privilege or franchise of receiving the revenues, the market remains the prerasies of the city and not of the lessee, and the latter does not incur the obligations of a tenant of property to keep the premises safe for those lawfully entering thereon.
    When, howevor, a person has, by contract with public authority, assumed obligations to keep a public highway or other public place ip repair, he may be held liable to one who has been specially injured by reason of his failure to perforin such obligation.
    Tn such case plaintiff must prove: Í. That defendant has been guilty of legal fault. 3. That such fault was Jhe cause of the accident.
    When the evidence fails fco show that the fault imputed to the defendant was the cause of the injury, and makes it probable that the injury resulted from a different cause, which operated independently of the fault, defendant cannot be condemned.
    Warranty is a covenant, express or implied, arising out of a contract. »A person sued for a quasi offense is responsible only on the ground that lie has committed a fault, and ho cannot call another to warrant him against responsibility for his own faults.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      J. B. Guthrie for Plaintiff and Appellee.

      W. II. Rogers, City Attorney, for the city of New Orleans, and W. 8. .Benedict-for J. T. Aycook, Defendants and Appellants.
   The opinion of the Court was delivered by

Fenner, J.

The petition recites that Mrs. Hattie E. Weymouth was the mother of Leila and Alice Weymouth, aged nine years and' seven months, respectively.

That her said two daughters were killed August 16, 1886, by falling into a well situated in the market-house, on Magazine street, between Berlin street and Napoleon avenue, known as the Upper Magazine Market.

That the death of these children resulted from the fault and was •caused by the negligence and lack of skill on the part of the city of New Orleans and Jordan T. Aycock, their servants and agents.

That said market and its approaches have been open to public use for years.

That same was built by Thomas Carey uiider a contract with the •city of New Orleans.

That by said contract, in place of a fixed price, Carey was vested •with the right of occupancy and possession of said market-house, 'buildings and improvements, and the portion of ground whereon same is erected, and with the right of collecting and holding the revenues -to be derived from said market-house, and with the right of carrying •on a market therein for a period of eighteen years under the conditions •of said contract, which is annexed to and made part of the petition.

That Carey had the right to assign and transfer his rights.

That since August 5, 1881, Jordan T. Aycock had been assignee of all Carey’s rights under said contract, and that all the duties devolving upon said Carey by virtue of said contract and the operation of the .law have devolved and attached to said Aycock since the 5th of August, 1881.

That the city' was bound to maintain the market, its walks, approaches and thoroughfares in good and safe condition, and that a like duty devolved upon Aycock as subrogee to the rights and obligations •of Carey, under the contract wherein Carey specifically binds himself and assigns to keep said market in good order and condition and to •make all necessary repairs thereto.

That at the end of said market property nearest Camp street as an ■appurtenace to the market exists and has existed for years a deep well nr underground cistern.

That said well is located upon and under a public thoroughfare, and on one of the walks and approaches to the. said public market.

That the opening down into said well consists of an iron tube or ring fifteen 10 twenty inches • in diameter, said tube being set down into the ground so that its upper rim is perfectly even with the surface •of said walk.

That no guard or railiug is constructed around the mouth of said well to give a hint of its existence or location to wayfarers.

That the well has been and is left without cover, or without adequate or secure cover over its said mouth, and is a deathtrap and a constant menace to life (7).

That said contract provides “ that a force and lift pump should be placed over said well with necessary pipe and hose, and the well to receive the necessary repairs ” (7).

That said provision has never been complied with, or if it has, Jordan T. Aycock has removed same and leaving the mouth of said well unguarded and insecurely,and improperly covered.

That on the 16th of August, 1886, her daughter Lelia, carrying m her arms the baby, Alice, while walking through said market-house, fell through the mouth of and into said well left open and unguarded or insecurely covered through the.fault and negligence of Aycock and the cicy of New Orleans, their agents and employes (8).

Under these allegations, coupled with appropriate averments as to-the nature and amount of the damages, she claimed a judgment against the city and Aycock in sólido for $25,000.

The city filed an exception of no cause of action, on vtliich a final-judgment was rendered sustaining same and dismissing the suit as against the city. Prom this judgment no appeal has been taken, and it is now absolute.

Aycock pleaded a general denial, and also filed a call in warranty against the city, which was cited as warrantor and answered denying its liability.

The case'was tried before a jury,;and resulted in a verdict and judgment for $10,000. in favor of plaintiff against Aycock, and in favor of Aycock against the city as his warrantor.

I.

The judgment against the city as warrantor is so preposterous thatAycock’s learned counsel hardly ventures to defend it in this Court. Warranty is a covenant express or implied, arising out of contracts. There is no allegation or pretence ihat the city has failed to comply with any of the obligations of its contract. The sole ground of this action is an alleged quasi offense, and if Aycock is responsible at all, it must be because he has been guilty of some fault which occasioned the damage. If the damage resulted from the joint or concurring fault of the city and Aycock, they might both be jointly or solidarity liable to the plaintiff, as claimed in the petition ; but the city’s liability on that ground, so far as this action is concerned, was finally settled by the judgment in her favor. Nothing remained at. issue except the question whether Aycock is liable by reason of his own fault; and certainly one party cannot be required to wairant another against the consequences of the latter’s own faults.

The city, therefore, passes entirely out of the case, and the sole question to be determined is whether Aycocls has been guilty of any legal fault occasioning the damage and rendering him responsible therefor.

II.

It is first important to determine Aycock’s precise relation to the market by a critical examination of the contract between the city and Carey, in whose shoes, as his assignee, Aycock stands.

The market-house, which had existed upon this locus jniblicus belonging to the city from an ancient date, was burned down. This contract embodies an undertaking on the part of Carey to build a new market-house in conformity to elaborate specifications, in consideration of the right to receive the revenues of the market during the period of eighteen years from the day the market should be completed and accepted by the city.

The only right conveyed to Carey was, in the language of the contract, “ the right and privilege of collecting and receiving, for his own use and benefit, the revenues of the market to be built by him,” as to which the city subrogated him “ to all and singular her rights, actions and privileges to sue for and collect said revenues, but, in no wise, guarantees to the said Carey the payment of any of the fees or charges required to be paid by occupants of the stalls.”

The right so conveyed was accompanied by the following obligations, viz:

1. Carey bound himself, “ at all times, to abide by, conform and comply with, all and singular, the terms, clauses and conditions of any and all ordinances or regulations that are <vr may be in force, or that may be hereafter adopted by the city, touching or concerning the government of the markets of the city of New Orleans;

2. He bound himself to keep the said market in good order and condition, and to make all necessary repairs thereto, and at the expiration of the present contract, to return the said market to the city^ in good order and condition and in thorough repair.”

It was further stipulated that the city would not, during the term of the contract, “alter, change or modify the fees, or charges that are now, by existing ordinances, required to be paid by occupants of stalls.”

We have no occasion to examine the terms of the subsequent transfers by Carey; since he could transfer nothing but the rights which he acquired.

• From the foregoing we consider it clear that the thing let was not the market, but the privilege or franchise of collecting aud appropri•ating the revenues; that the city accepted, owned and held the market-house as a public market and locuspuhlious, subject to her own control, regulation and police authority, precisely as was every other public market in the city; and that Carey and his assignee acquired no right, authority or control over the same except said right and privilege to receive the revenues.

The market-house was and remained the premises of the city and not the premises of Carey'- or Aycock.

Hence, Aycock cannot be held bound by the general obligations of ■a .tenant of immovables under a contract of lease, or of any other controlling occupant, under which such an occupant of premises is bound to keep, them safe for those lawfully enteriug upon them. Sherman & Redfield Neg. § 361; 1 Thomsou Neg. pp. 316 and 317.

The execution of the contract conforms to the foregoing plain significance of its terms. Defendant never pretended to exercise any authority or control" over the market except to collect the revenues and, clean it up as often as required. The city had her commissary' for this market as for all others, and no difference is indicated between the authority she exercised over this and that over other markets.

II.

There is, however, another well-settled principle of law, under which a person who has, by contract with the public authorities, assumed specific obligations to keep a highway or other public place in repair, is held liable to anyone who is specially injured by reason of his failure to perform such obligation. Sherman & Redfield, Neg. §§ 345, 353; Wilson vs. Jefferson, 13 Iowa, 181; Phillips vs. Com., 44 Penn. St., 187; Robinson vs. Chamberlain, 34 N. Y., 389; Pulton vs. Baldwin, 37 Ib. 648.

If Aycock is liable at all it can only be under the application of the •foregoing principle to the obligation assumed in the contract “to keep the said market in good order and condition and make all necessary repairs thereto.”

The well into which the children fell was situated in the rear of the market-house near the edge of its banquette, was built flush with the bauquette, had au opening about fifteen inches in diameter and was -covered by an iron lid, which moved by lifting it out the place into •which it fitted, and sliding it off like the top or lid of a common stove.

This well had existed in the same place and with the same covering from the time when the market wa* originally established, very many years before the contract with Carey. It was not injured by the fire It had never at any time been locked or guarded. It had always been regarded and used as a public well. It was situated in a part of the city to which the -waterworks did not extend. The neighbors came in dry seasons to get water from it for washing purposes or to water their stock. Drivers -watered their horses there and used it for washing off their vehicles. Eire companies used it for testing or exercising their engines.

At the very time when this accident occurred there were some buildings in course of construction near it, and the masons came to this wrell for water to mix their mortar and for like purposes. The surface Of the water was only about three feet below the banquette,' and this made access to it easy and convenient by tying a short rope or string to vessels and drawing up the water.

It is plain that nothing in Ca'ey’s contract imposed the duty, or even conferred the right, to interfere with this original and continuous public use, or to lock up the well, or to erect guards around it. He was, at most, only bound to maintain it in the condition in which it was when the contract went into effect and to suffer it to be used as it had always been used.

There is evidence, however, to show that, by long use, the lid liad become worn and loose, so that when stepped upon by a passenger it would tilt up and slide off the opening, thus creating danger. It may possibly have been the duty of Aycock to have corrected this defect by repairing the lid; and if it were clearly proved that the accident had resulted from such defect, the quesiion as to his responsibility might be more serious. But the evidence also shows that persons of the public using the well often forgot or carelessly omitted to close the lid. This was an incident of the public use which Aycock had neither the duty nor power to prevent. It wasequally likely to occur -whether the lid was in good or bad repair, and a person injured by stepping into the well while thus left open by one of the public who had the right to use it, surely could not hold Aycock responsible.

There was no witness to the accident in this case. The elder child with the infant in her arms, had parted with her companions to go home! the nearest route being through the market. They were missed, and, after search, were found drowned in the well. The evidence does not indicate that the weight of such children in stepping on the lid would have been sufficient to tilt and' open it, or that, if it had been, they would not have escaped falling into so narrow an opening. All the probabilities arising under the evidence strongly corroborate the theory that the well had been left open, and that the child having the infant in her arms, possibly in such position as to obstruct her vision, stepped into the opening and fell through.

The plaintiff necessarily carries the burden of pioving two things: 1. Fault on the part of Aycock. 2. That the fault was the cause of the injury. Cases are cited holding that, in the absence of direct evidence, these facts may be sufficiently established by circumstances and presumptions clearly supporting them. See Hays vs. Gallagher, 72 Penn. St. 139; Allen vs. Willard, 57 Ib. 380; Whitney vs. Clifford, 57 Wis. 158; Seyboldt vs. R. R. Co., 95 N. Y. 562.

But where, as in this case, the circumstances and presumptions point to a cause of the accident not occasioned by defendant’s negligence, and for which he is not responsible, such authorities are not applicable. The verdict of the jury obviously indicated that they considered the city, and not Aycock, responsible.

It is alleged in the petition, as one ground for Aycock’s liability, that under the specifications of Carey’s contract for building it was required that a force and lift jiump of suitable size be placed over the well, with necessary hose and pipes for cleaning the market, the well to receive necessary repairs.” The evidence shows that Carey ■^uilt the pump, not over the well, but some feet from it, as it had previously existed. This was a matter exclusively between the city and Carey, and as the city accepted the work it is conclusively presumed that the variation was made with her consent and approval.

It is further claimed, in argument, that Aycock’s failure to keep the pump in repair was a cause of the public’s opening the well. No such allegation of fault is contained in the petition. The evidence shows that even when the pump was in repair the public found it more convenient to draw from the well and often did so, as it had always done. Moreover, the cause, even if it had been alleged, is too remote and is not sustained by the evidence.

On the whole, we feel bound to hold that the plaintiff has not made out such a case against Aycock as would justify us in throwing upon him responsibility for the lamentable accident.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment appealed from be annulled and set aside, and that -there be judgment in favor of defendant and warrantor, rejecting plaintiff’s demand, at her cost in both courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 10,042.
    J. M. Seixas, Syndic, vs. Alfred Gonsoulin et al.
    Payment of a note by an endorser, actually bound, produces tbe legal effect of subrogating him to the rights of the last holder.
    Money borrowed, for account of the borrower and applied to the payment of a note, at the request of the drawer, cannot be claimed by the indorser as being Jds money, though he subsequently issued bis check to tbe original lender, in the absence of proof that the money was lent to him, the indorser.
    ■The unimpeaclied and positive testimony of the lender that he lent to the borrower, and that he had no previous communication with any one else on the subject, outbalances altogether that of another witness, however respectable, who practically testifies from hearsay.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Houston, J.
    Bayne, Denigre <£- Bayne, for Plaintiff and Appellee :
    An indorser or surety paying a note is legally subrogated to all of the rights of the holder of the note to whom such payment has been made, and this legal subrogation embraces tbe mortgage given to secure the note. C. C. 2161, 3052, 3053; 2 Martin H. S,. 16L; 8 Martin Rep. 484, 706; 15 La. 213 ; 6 La. Hep. 47£í; 9 Ann. 248; 12 Ann. Bep. 9 j Durao vs. Heriari, 25 Ann. Rep. 81.

      Henry G. Hiller for Defendants and Appellants :
    Tlie payment of a promissory note by or for tbe maker, or by one not bound for it, extinguishes the note and the mortgage securing its payment. C. C. Arts. 2130, 3411, 2161 j Kicholls vs. His creditors, 9th Bob. 476 ; 2dH. D., p. 1103, Hos. 1 and 9.
   The opiuion of the Court was delivered by

Bermudez, C. J.

The plaiutiff sues, as syndic of Carrier,e & Sons, to participate in tlie proceeds of certain real estate judicially sold.

He alleges that the note on which he declares, and two other similar notes held by the Citizens Bank and by the Louisiana National Bank, were originally secured by vendor’s privilege and special mortgage on the property in question ; that the note was, before its maturity, owned by the last named bank; that, as indorsers thereon, A. Carriére & Sons took it up. He then contends that, as they became thereby subrogated to all the rights of the last owner, the proceeds of the real estate judicially sold must be distributed pro rata among the creditors of A. Carriére & Sons and the two banks.

The defense is, that the note was paid at its maturity by L. Brnlatour, the drawer.thereof, and not by A. Carriére & Sons; that it was marked “paid ” at the time of payment and handed over in that condition.

There is no dispute that if A. Carriére & Sons paid the note they are entitled to the relief sought. The note was drawn by L. Brulatour, to his own order, and was by him indorsed. A. Carriére & Sons-were subsequent indorsers.

The suit is brought against the purchaser of the property, who-retained the proceeds, but the banks are the real defendants at 'stake.

From a judgment in plaintiff’s favor this appeal is taken.

It appears that on the day of maturity — May 19, 1884 — of the note-in question, which was for $5000, the drawer finding himself unable to honor it, requested the firm of P-. E. Brulatour & Co. to make provision for it; that they, not being in funds, applied to Bertus & Durel,. brokers in this city, to loan them the amount required; that these did so, by their check, to the order of P. E. Brulatour & Co., who deposited it in bank to their credit; that P. E. Brulatour & Co. then drew their check against the deposit to the order of the Louisiana National Bank; that on presentation of this check the note was-marked “paid," and delivered to the person who brought the-check.

Tt is also shown that A. Carriére & Sons, on the same day, issued a. cheek of $5000, which went to Bertus & Durel; that they sent to the-bank, in which the note had been deposited for collection, to ask that it be not marked “paid," as is occasionally done; but that the request came after the note had been paid, marked and delivered.

In order to determine the question as to who paid the note, it is necessary to ascertain whose money was used for the purpose.

If Bertus & Durel loaned the money, for which they issued their check, to A. Carriére & Sons, owing to some previous understanding with them, there can be no doubt that, although the check was made-to the order of P. E. Brulatour & Co., was deposited by them and the proceeds used to take up the note, A. Carriére & Sons must be considered as having paid the note with money, which became theirs by the loan to them by Bertus & Durel, through P. E. Brulatour & Co.

The plaintiff relies, to establish this material fact, on the testimony of Ñores, a member of the firm of P. E. Brulatour & Co., who says-quite distinctly that the brokers’ check was furnished at the instance-of E. L. Carriére, a member of the firm of A. Carriére & Sons.

On the other hand, Bertus, of the firm of Bertus & Durel, heard as-a witness, unequivocally says, that on the 19th of May, 1884, ThomasBrulatour, of P. E. Brulatour & Co., came to them and asked them to--¡pan them a check of $5000, which they would return during the day, which they did, and that, within an hour or two afterwards, before-3 p. m., P. E. Brulatour & Co., returned them a check of A Carriére & Sons for a like amount. He adds that they had no communication with A. Carriére & Sons about the check, and that the check was furnished Brulatour at the request of Thomas Brulatour and no one else.

This clear and positive testimony in itself suffices to outbalance that of Ñores (however respectable this witness be), which, on cross-examination, proved to be vague and indefinite, to lack substance and solidity, and, after all, nothing but hearsay.

It is unquestionable that had not Brulatour & Co. paid their debt with Carriére & Sons’ check to Bertus & Durel, these could have sued them and would have had no right of action against Carriére & Sons.

We are satisfied that the evidence given by Bertus and corroborated by the surrounding circumstances, decidedly preponderates and justifies judgment in favor of the banks.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and it is now adjudged that plaintiffs’ demand be rejected with judgment in favor of the defendants, with costs in both courts.

Rehearing refused.


author: Watkins, J.

text:
    No. 10,137.
    Mrs. R. A. McNair vs. Mrs. E. C. Gourrier, Executrix, etc.
    In a suit in .which the plaintiff makes claim for a definite sum invested as her share of the capital stock of a partnership, and also for another and indefinite sum as her share of the net profits thereof on final liquidation and settlement, a motion to compel her to elect will not prevail.
    During the progress of the trial it is improper to appoint ex parte a single expert, when there is no professional opinion to be given on any question on the decision of which the case depends.
    It is improper for the report of auditors to be admitted in evidence before it has been duly homologated. The proceedings for the homologation of the report of auditors constitute a trial of its acouracy and sufficiency to be admitted in evidence.
    The appointment of a liquidator is one of those matters that must be left, in a great measure, to the sound discretion of the court.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      G. O. Bird and Keman <& LayeoeTc for Plaintiff and Appellee.

      B. N. Sims and Bead & Goodale for Defendant and Appellant.
   I.

The opinion of the Court was delivered by

Watkins, J.

This is a suit for the liquidation and settlement of an alleged partnership and the adjustment of differences between the partners.

The plaintiff claims to be the surviving member of the firm styled Gourrier & McNair, and her suit is directed against the legal representative of her deceased associate, Clay Gourrier.

Her predeceased husband, Henry McNair, was a'member of a firm, also styled Gourrier & McNair, which had been engaged for many years in the business of insurance agents, in the city of Baton Rouge. He died on the 22d of September, 1884.

She represents that thereafter she became a partner of the surviving member, Clay Gourrier, in a new business, of like character as the old one, which was to continue for one year from the 1st of October, 1884, and under the old firm name, Gourrier & McNair.

She claims to have put into this enterprise $3125 as her proportion of its capital stock, which was to be first restored to her at its termination, and thereafter she was to receive one-half of the net profits of the business.

This partnership, she contends, operated a successful and prosperous business and realized large profits, aggregrating $3000 or more for her share.

In order that her interest be ascertained and the affairs of the partnership liquidated and settled, she prayed for the appointment of a liquidator, and, on suitable allegations, obtained the judicial sequestration of the books and other partnership property.

She asks judgment decreeing the restitution of her capital and for her share of one-half of the ascertained net profits of the business.

The defendant'executrix denies tne existence of the alleged partnership between the deceased and the plaintiff, but admits the existence of one between the deceased and Henry McNair, the plaintiff’s husband, prior to his death.

She represents that McNair kept the books of that firm and had exclusive .charge of the cash audits disbursement; that after his death, it was discovered that he had overdrawn his account, and had kept back funds belonging to the insurance companies whereby an indebtedness of $12,000 had been created — a sum far in excess of the assets of the firm,'and whicli endangered the personal estate of her deceased husband, Clay Gourrier, that of McNair being insolvent.

That her said husband caused an estimate to be made of the lowest possible sum that was required to meet the immediate emergency and discharge the most pressing liabilities, and to thus protect the good name of McNair from dishonor ; that it was ascertained to be $3024 01; that her husband’s defalcation was made known to the plaintiff and the amount required to meet and discharge it, and that'she contributed that sum for that purpose.

Her contention, further, is that after the death of McNair the business of the firm of Gourrier & McNair was continued under the name and style of that partnership, by the surviving partner, Clay Gourrier, simply for the purpose of liquidating and settling up its affairs, and that its earnings were inadequate to reimburse and make good the additional deficiencies of McNair that were ascertained in the interim.

She prays the dissolution of plaintiff’s sequestration and $500 damáges.

On these issues and pleadings the parties went to trial, and from an adverse judgment the defendant has appealed. In this Court the plaintiff has answered the appeal, and assigned as an error of the judge a quo the charge against her of $243, being one-half a debt of the old firm of Gourrier & McNair, with which she is improperly debited, and from which she asks relief.

On the trial there were quite a number of witnesses interrogated in the presence of the court, and some under commission, and, as in many other cases, unfortunately, they made numerous unsatisfactory, conflicting and contradictory statements that are exceedingly difficult to reconcile with each other or harmonize with the theory of either party.

We shall not attempt to follow them or reconcile their differences— indeed, it would prove futile if we should — but will rest content with a simple recital of those facts that appear from the record to be well founded and exercise a material bearing on the case.

They are as follows, viz :

The Lfirm of Gourrier & McNair was composed" of Clay Gourrier, deceased husband of the defendant, and Henry McNair, deceased husband of the plaintiff, and they were engaged in business as insurance agents, with their domicile at Baton Rouge. It was dissolved by the death of McNair, on the 22d of September, 1884.

Soon after Gourrier ascertained that there were some debts that the firm owed, and among the number some that were due to different insurance companies for premiums that had been collected and not remitted. He caused an examination of the books to be made, and the amount was ascertained to be $3024 01 — i. e., the amount of the debts, the payment of which-was pressing and immediately necessary, and not the gross sum, which was in excess of that — a sum which could not be presently realized out of the partnership assets, but which might be eventually collected therefrom.

Gourrier visited the plaintiff and represented to her this state of facts, and besought her assistance in making good this alleged shortage of her husband. She at first refused, assigning as a reason that her husband had requested her not to spend any part of her insurance money — $10,000—in payment of his debts. But Gourrier was persistent in his entreaties, and exhibited to her the statement that he had caused to be made from the partnership books, and she, after consulting her friends, yielded her consent and gave him a check for the $3024 01 that her husband was alleged to owe the insurance companies.

Prom the testimony of the witnesses we cannot precisely determine the object plaintiff had in view in furnishing this sum, but we think a fair preponderance of the entire evidence favors the theory that she advanced it to Gourrier for the purpose of enabling him to discharge the alleged confidential indebtedness of her deceased husband.

It is certain that she was in no manner personally bound for its payment, and that more than ordinary reasons influenced her to part with this to her large sum of money in disobedience to her husband’s request. Doubtless, she believed that it was necessary to shield his good name from dishonor. But there is nothing in the record to justify the conclusion that it was intended by her as a gratuity, and a gratuity is never presumed.

Our opinion is that she intended it as an advance of money to the surviving partner of her husband’s firm, with which he was to satisfy those urgent demands, and with the expectation of having it reimbursed to her out of its assets when a sufficiency thereof had been collected, and that she acted on her faith in his representations.

We are, further, of the opinion that, as an additional inducement to her to make this advance he proposed to continue the business of insurance agents under the firm name of Gourrier & McNair, for a period of one year from the 1st of October, 1884, and that they should participate in its profits equally.

We are, further, of the opinion that the plaintiff accepted this proposition, and that, in this manner, a new partnership was created between them. American Law Register, Vol. 27, p. 329, and authorities there cited.

The evidence discloses a good reason why such an arrangement should have been desirable to each of the parties, and that was, that by this means the credit and good-will of the old partnership could be utilized, so that a profitable business would be guaranteed for the future, and the collection of the assets of that firm would be better assured.

It does not appear from the evidence that the statement, on the faith of which the plaintiff made the advance, was corret. There is nothing to show in what way this money was applied, and it seems that Gourrier rendered her no account of it after he received it.

If, as we have concluded, this sum was advanced by plaintiff on the. hypothesis that it was imperatively necessary to make immediate payment of certain confidential debts of her husband, she was entitled to have the evidence of their discharge when same had been satisfied.

Under the evidence the plaintiff is entitled to one-half of the net profits of the new partnership business when liquidated and ascertained, the date of its formation being fixed as the 1st of October, 1884, and the date of its dissolution as the 29th of September, 1885, the date of Gourrier s demise.

Plaintiff is also entitled to reimbursement of the money advanced from the sum realized from the assets of the old partnership — not to payment or return of it as capital from the net profit's of the new firm— and to an accounting, by the decedent, of the assets of the old that were left in his hands at the time of dissolution, and of the entire business and affairs of the new, of which he had sole and exclusive management.

II.

The defendant filed a motion to compel the plaintiff to elect whether she would pursue her demand for the restitution of the $3024 01 capital invested, or that for the liquidation and settlement of the partnership.

It has been repeatedly decided that partners have no cause of action against each other for a specific sum resulting from a partnership transaction, until there has been a settlement of the partnership. 21 Ann. 582, Sewell vs. Cooper; 21 Ann. 3, Succession of Dolhonde; 24 Ann. 391, Staunton vs. Buckner.

As previously stated, plaintiff makes claim for $3125 — as the amount of her share of the capital put in the new partnership — to be first. withdrawn therefrom, and also for the settlement and liquidation of the business and affairs of the partnership and the recovery of one-half of the net profits thereof. Her demands are predicated on the dissolution of the partnership and payable out of its assets. In any event, they can certainly be considered as resulting from the partnership transactions.

But, viewing her case as we have construed it, no practical difference results, notwithstanding the two partnerships are, in some sense, involved. Their transactions were dual between the same parties, evidenced by the same agreement, and depend upon the same evidence. They are so completely blended as to form essentially one cause of action, which may be considered and decided in one suit. Their determination in this suit will inflict injury upon neither party, nor occasion inconvenience to either.

The motion was properly refused.

III.

During the progress of the tiial an expert accountant was appointed to examine the books of the firm in which plaintiff claimed an interest, and'he made a report which was admitted in evidence over defendant’s objection and exception.

At a subsequent stage of the proceedings, auditors were appointed by the court, at the suggestion of defendant’s counsel, to examine the books and accounts of the firm of Gourrier & McNair — i. e., the old firm, which, according to their theory, had been continued for the purposes of liquidation — and their appointment was opposed on the part of the plaintiff’s attorneys.

The auditors made an examination of the books, and a report; but the latter was not homologated, and on that account its introduction in evidence was opposed by the defendant, though unsuccessfully, and a bill of exceptions retained.

We think it was error on the part of the judge to appoint a single expert ex parte, inasmuch as there was no professional opinion to be given on any question on the decision of which the case depended. C. P. 441.

It was likewise error on the part of said judge to admit in evidence the auditors’ unhomologated report. C. P. 453, 456, 457.

The proceedings for the homologation of the report of auditors constitute a trial of its accuracy and sufficiency to be admitted in evidence. On such trial the court may rectify its errors, or order a new report. C. P. 458. This should be done, invariably, in case the account stated by the auditors between the parties is not sufficiently full, clear and succinct to enable the judge to intelligently and impartially determine their respective rights and interests.

Each of the parties have a perfect right to be heard pro and con on this question before it is admitted in the record as evidence.

“A report of auditors not homologated should not go to the jury.” 2 Ann. 892, Reynolds vs. Rowley.

The judge cannot arbitrarily sustain or dismiss an opposition to the report. “He must try it summarily on its merits, and hear evidence on such questions of fact as it distinctly puts at issue.” 12 Ann. 183, Thompson vs. Parisot; C. P. 456.

Inasmuch as we have arrived at a different solution of the questions at issue from that by the judge a quo — in greater part — the report of the auditors as made would not meet the present exigencies of the case in any event. It was improperly admitted in evidence.

IV.

The judge of the court below, considering the report as evidence, arrived at the conclusion that the statement of. the partnership accounts was sufficiently accurate to enable him to render a final judgment liquidating the affairs of the new partnership, to which it was confined; and he did not find it necessary to appoint a liquidator, as prayed for by the plaintiff.

There appears to be a large amount of assets that have been either uncollected or unaccounted for. There is no prayer in either petition or answer for the sale or division in kind of the partnership rights and credits, and they cannot be treated as cash, and, as such, used in settlement. Some disposition must be made of them before a liquidation and settlement of the partnership can be effected.

The appointment of a liquidator may be deemed necessary in order to effect their collection, if considered available; or, if not, to make a judicial sale of them.

But these questions are for the consideration of the lower court. The appointment of a liquidator is one of those matters that must be left in a great measure to the sound discretion of the judge. 11 Ann. 260, Pratt vs. McHatton.

On the whole, it is necessary that the case be remanded to the court a qua for a new trial, to be therein restricted to the issues not determined in this opinion and decree.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the plaintiff do have and recover one-lialf of the net profits of the business of the new firm of G-ourrier & McNair from the 1st of October, 1884, to the 29th of September, 1885, on final liquidation and settlement thereof.

It is further ordered, adjudged and decreed that the plaintiff do have and recover the sum of $3024.01 out of the moneys collected from the assets of the old firm of Gourrier & McNair on liquidation and final settlement contradictorily had in the suit.

It is finally ordered, adjudged and decreed that the demand of plaintiff for the restitution of $3125, capital invested, be rejected; that all other issues in the suit remain undetermined until a new trial is had in the court a qua, and that, for this purpose, the cause is remanded — further proceedings to be taken in pursuance of the views herein expressed.

The costs of appeal are to be paid by plaintiff and appellee, and those of the lower court to await the final determination of the cause therein.

On Application for Rehearing.

A careful re-examination of this case has led us to the conclusion that there is only one amendment necessary to be made in our opinion, and that is in reference to the date at which the business of the new partnership of Gourrier & McNair terminated. In the opinion it is fixed at the date of Gourrier’s death, on the 29th of September, 1885. There is evidence in the record going to show that the .business was continued until some time in November following. • We think-that the ends of justice would be best subserved by leaving this question open for the determination of the lower court.

It is, therefore, ordered, adjudged and decreed that our former decree be so amended as to leave the date at which the business of the new firm of Gourrier & McNair terminated open for the ascertainment of the judge a qua on the new trial of the cause •, and that, as thus amended, the same remain undisturbed.

Rehearing refused.


text:
    No. 10,118.
    Bertrand Cazes vs. Succession of Auguste Gassie et als.
    Real estate which cannot be conveniently divided in kind mnst be sold to effect a partition thereof.
    APPEAL from the Twenty-third District Court, Parish of West Baton Rouge. Talbot, J.

      Alex. Hébert for Plaintiff and Appellee.

      Samuel Mattheios for Defendants and Appellants.
   Tlie opinion of tlie Conrt was delivered by

Bermudez, C. J.

This is a suit in partition of certain property owned in common by the plaintiff with a widow in community and her minor children and another party, and of other property likewise owned in community, but with said widow and tutrix only.

The plaintiff claims that the property can be divided in kind, except the sugar-house, etc., which, it is admitted, necessarily must be sold.

On the other hand, the defense is that the remaining property cannot be divided in kind without loss and injury, and that it must likewise be sold to effect the partition.

The district judge thought with the plaintiff, and rendered judgment directing the partition to be made in kind, allotting part of the realty to the plaintiff and part to the widow and tutrix and ordering the sale of the sugar-house, etc.

The defendants appeal from the judgment thus rendered, and plaintiff answers asking an amendment — a money allowance.

We find no plan in the record showing the location of the buildings on the land'sought to be partitioned, and are not convinced by the proof adduced that the partition can be made conveniently in kind.

The very witnesses who affirm that the property can be thus divided, declare that a line dividing the land equally would leave more buildings on one tract than on the other. They add, however, that the buildings can be rolled and any inequality can be compensated in money.

There exists considerable and almost irreconcilable discrepancy in the testimony touching the value of those buildings and the cost of removal; the appraisement rising to $2550, the average being $850.

The valuation put on the whole land in the inventory is $3000.

When the worth of the land and that of the buildings, the trouble and inconvenience to which the parties would be driven in order to dispose the buildings so as to make the two halves of the land as far as possible equally valuable and the sum which eventually may have to be disbuised to equalize the lots, — are considered, the conclusion is irresistible that plaintiff’s theory, for a division in kind, is not practicable without injury. R. C. C. 1340; 34 Ann. 969; 39 Ann. 805; 5 Ann. 208.

It is apparent that the only safe way in which the differences of the parties can be fairly adjusted, with full justice to all concerned, among whom are minors, is to have the land and the sugar-house, etc., sold on such terms as may be fixed by those interested.

It is unnecessary to' pass upon plaintiff’s motion for an amendment of the judgment. He asks that a certain sum be allowed him, which is not embraced in the prayer of the petition and is not at issue. It cannot presently be considered, as it may hereafter form the object of a demand of payment out of the proceeds of sale by due proceedings and at the proper time.

The petition contains an averment that, in the sale by plaintiff of the undivided half of the land, which presently belongs to the widow and tutrix, he had reserved to himself and wife for their lives, the use of certain buildings and surroundings; but the petition does not ask judgment on that subject. It simply prays for a partition.

Besides, it appears that a material portion of the property has, more or less, been lost by excavation and otherwise and the right is waived in the brief.

It is, therefore, ordered and decreed that the judgment appealed ■*rom, as far as it directs the sale of the sugar-house, etc., be affirmed, and that in other respects it be reversed; and it is now ordered and decreed that the real estate described in the petition and which had been directed to be partitioned infkind be sold at public auction, after compliance with all legal requirements, by the Sheriff of West Baton Rouge Parish, or such other competent officer as the parties may designate, and on such terms as they may respectively fix, the proceeds to be distributed among them according to their rights and according to law, and that the costs in both courts be paid by the litigants in proportion to their relative shares.

Rehearing refused.


text:
    No. 10,123.
    Mrs. Varina B. Gaither vs. T. K. Green, Tax Collector, et al.
    The minutes of the proceedings of the Board of Commissioners of the Fifth Levee District, wherein a five mill district levee tax appears to have been levied, are to be taken as of unquestionable verity, and are not to be attacked, and proof entered into, in a collateral proceeding to which said commissioners are not made parties, to show that they are false.
    Parol evidence, in a collateral action, cannot be received to" contradict tlio records of a public corporation, which are required by law to he kept in writing, or to show a mistake in the matters therein recorded.
    If such record b & false, and the corporationVill not correct it, a party interested may, by mandamus, compel it to make correction so that it may conform to the truth.
    Mandamus will not go to the Board of Commissioners after the levy of the tax has been completed, the tax has been extended on the assessment roll, and the roll placed in the possession of the tax collector for collection, because it would be nugatory for want o* power in such board to make the correction that is required, it being functus oficio.

      The law confided the levy, assessment and collection of the special tax in question to three distinot and different sets of officials:
    1. Its levy to the Board of Levee Commissioner».
    2. Its extension on the parish assessment rolls to the parish assessors.
    3. Its collection to the State tax collectors.
    Once a tax is in esse, the tax roll placed in the hands of the tax collector, and the levying and assessing officers have become functus officio, the legality of such tax cannot be tested with the collector alone.
    In case there be difficulty in interpreting the qualifying words of a sentence, the rule is to apply them to such other words or phrases as shall immediately precede them therein, rather than to those more remote.
    Taxes levied under the authority of act 33 of 1879, and not collected prior to the passage of Act 44 of 1886, were not abrogated thereby. Thoy were preserved and kept in force after the passage of the laiter, by virtue of the saving clause contained in section 9 of said act.
    A collateral inquiry into the legality of a tax levy, or assessment, apparently legal and valid on its face, cannot be entertained in an injunction suit against the tax collector alone, and after the levying Or assessing officers have become functus officio.

    Such an inquiry may be gone into and determined in such a suit in case the levy, or assessment is void on its face, or made in plain violation of some provision of the constitution or law.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Conner & Conner and J. N. Luce, for Plaintiff and Appellee.

      Steele, Garrett & Dagg, for Defendants and Appellants.
   The opinion of the Court was delivered by

Watkins, J.

The questions raised in this case are the legality and constitutionality of the five mill district levee tax that was levied in 1886 for the Fifth Levee District.

The plaintiff’s contentions are:

First--That if the tax is claimed to have been levied by the Comsioners of the Fifth Levee District at a meeting alleged to have been held on the 22d of January, 1886, at Delta, Louisiana, it is null and void because there was, in point of fact, no such meeting held, and no such tax levied •, but that three members of said Board of Levee Commissioners did meet at Yiclcsburg, Mississippi, on the night of the said 22d of January, and then and there attempt to levy this pretended, false and fraudulent tax.

Second — That if the legality of said levy be conceded in this respect, then it is null and void, because act 33 of 1879, creating the Fifth Levee District, was repealed by act 44 of 1886, and such taxes as may have been levied under the former, and not collected prior to the passage of said repealing act, were thereby abrogated, and their collection cannot be now enforced in consequence thereof.

Third — That it said tax was levied by the General Assembly in section 8 of said repealing statutes, it is unconstitutional and void, because said section, thus construed, violates articles 203 and 214 of the Constitution.

On the trial, the district judge held that the tax which was levied by the Commissioners of the Fifth Levee District on the 22d of January, 1886, was abrogated by reason of the repeal of the law, under the authority of which the levy was made ; that, in so far as section 8 of the repealing statute was intended to operate as levy of said five mill tax by the General Assembly, the law was unconstitutional, and could not be enforced; and from a judgment annulling the tax and perpetuating plaintiff’s injunction, the defendant has appealed.

I.

The official minutes of the proceedings of the Board of Levee Commissioners show, that they levied the tax in question at a meeting, duly convened and held at Delta, Louisiana, on the 22d of January, 1886.

Plaintiff’s counsel sought to impeach this record with paroZ evidence, but the introduction of it was successfully resisted by defendants, on the grounds, viz:

First — That the official minutes of the board constitute a public record which imports absolute verity on its face, and same cannot be contradicted by parol, nor attacked in collateral proceedings to which said commissioners are not made parties.

Second — But, if parol proof • be deemed admissible, that F. S. Shields was not a competent witness by whom to prove its falsity, because he was a member of the board and attested the genuineness and correctness of said minutes as the secretary of the board.

It is elementary^that'paroPevidence cannot be received for the purpose of impeaching or contradicting the records of judicial proceedings and the decrees of courts ; nor for the purpose of explaining or amplifying a legislative or congressional enactment; and it is contended, on ’the part “of the defendant, that a similar protection is thrown around the proceedings of such political or municipal corporations as the Legislature may create.

But; in our view of this question, it cannot be examined and decided in this collateral way, and in a suit to which the commissioners, who levied the tax, are not made parties.

It is so held by Judge Cooley in his treatise on taxation in the following terse and apposite language:

“ It is generally held that the returns and certificates required of an officer, in the performance of official duty, are to be taken in the proceeding in which they are made, as of unquestionable verity. They are not to be attacked, and proof entered into, in a collateral proceeding, to whieh the officer is not a party, to show that they are false." Cooley on Taxation, p. 195.

This principle is in consonance with the views expressed by Mr. Justice Dillon on the subject:

“ Parol evidence, in a collateral action, cannot be received to contradict the records of a public corporation, required by law to be kept in. writing, or to show a mistake in the matters therein recorded.
The remedy is to have him (the officer), if in office, to correct the record according to the truth.” 1 Dillon’s Munic. Corp., Sec. 236.

This opinion is maintained by the courts of our sister States, and the following quotation is selected from a leading case in Connecticut:

If a town corporation makes an erroneous record of its proceedings, this cannot be contradicted in a collateral action.
In such action the record is conclusive. If false, and the corporation will not correct the record, a party interested may, by mandamus, compel it to make the correction.” Boston Turnpike Company vs. Pomfut, 20 Conn. 500.

But even this remedy must be seasonably applied.

It will be too late to resort to mandamus after the officers of the board, or corporation, have become functus officii.

On this subject Mr. High says:

Mandamus will not go to a board of supervisors, requiring them to make corrections in the assessment of taxes for the county, after the assessments have been completed, and warrants have been issued to the receiver of taxes, and the matter has passed beyond the control of the supervisors, since the writ would be nugatory if issued, and the rule is well established that mandamus will never issue when it would be nugatory, from want of power in the respondent to perform the act required." High’s Ex. Legal Rem., Secs. 140, 141.

This agreement, in opinion of text writers of first ability, appears to our minds conclusive and their reasoning irresistible.

It is equally clear to our minds that this is a collateral proceeding— a third opposition, ooupled with an injunction against the enforcement of the tax, and wherein the tax collector is the sole defendant.

The Legislature required the commissioners to levy the tax payable on the assessment roll” of each current year. Sec. 8 act 33 of 1879.

It imposed upon them no other duty. That duty is separate and quite distinct from that imposed on the assessor.

The law has confided the levy, assessment and collection of the special tax in question to three sets of officials :

1. Its levy, to the Board of Levee Commissioners.

2. Its extension on the assessment roll, to the parish assessor.

3. Its collection, to the State tax collector.

There is, between their respective duties, a line of demarcation that is well-defined and clear.

It is essential to the validity of the tax that proper and legal proceedings should be taken in its levy and extension on the assessment roll, because it is through the correct performance of the duties assigned that the tax is brought into existence. But once in esse, and the tax-roll placed in the possession of the collector, the levying and assessing officers cease to have any relation to the tax, and are fwnetus officii.

At this stage the legality of neither the levy nor the assessment can be tested by either injunction or mandamus, directed against the collector alone.

This contention of the plaintiff cannot be sustained, and the district judge decided correctly.

II.

Act 44 of 1886 only purports to repeal, in express terms, that portion of act 33 of 1879 which creates the Fifth Levee District, and it purports to create in lieu thereof the Fifth Louisiana Levee District. Additional territory was given to the new district, and provision was made for the appointment of other commissioners to take charge of, and administer its affairs. It is clear, then, from this statement, that, in all other respects than the one first mentioned, said act 33 remains in force, and has effect, except in so far as its provisions aremconsistent with those of said repealing law. 39 Ann. 439, State of Louisiana vs. Natal; 93 U. S. 266, Broughton vs. Pensacola.

On this hypothesis the plaintiff must place her reliance in establishing the abrogation of the tax upon an implied, and not on an express, repeal of the law.

In opposition to her .contention defendant’s counsel attracts attention to the saving clause contained in section 9 of the repealing act, and which is couched in the following words, viz :

“ That nothing in this act shall deprive this district of its share of the General Engineer Fund, and that all taxes hereafter collected on the rolls of the Fjfth Levee District, as now existing, shall be transferred to the credit of the Fifth Louisiana Levee District,” etc.

He relies on this clause as protecting the tax.

His theory is, that this provision of the statute, directing that “ all ■ taxes hereafter collected on the rolls of the Fifth Levee District * * shall be transferred to the Fifth Louisiana Levee District,” of necessity implies, and presupposes the continued existence and enforceability of such taxes.

But a different construction has been placed upon it by the judge a quo, and which, in substance is, that the phrase “as now existing” refers to the rolls, and not to the Fifth Levee District; and he argues therefrom that, if the taxes thereafter collected on the rolls, as then existing, are alone to be transferred to the credit of the new district, the tax in question was not embraced in its provisions, from the fact that, on the 2d of July, 1886 — the date said act 44 was signed and promulgated — it had not been extended on the assessment rolls of that year.

But we are of opinion that the quoted clause is not susceptible of such construction.

In case there be difficulty in interpreting the qualifying words in a sentence, the rule is to apply them to such other words or phrase as shall immediately precede them therein, rather than to those more remote.

To apply the phrase “ as now existing ” to the word “rolls,” in the sense of the opinion of the judge a quo, necessarily involves the complete elision of the phrase “ of the Fifth Levee District,” and thus results in the entire reformation of the sentence.

We do not feel ourselves at liberty to do this.

The language, as employed in the legislative enactment, is a mandate unto us; and we cannot consent to any construction of it that would do violence to its letter or spirit; but, in thus expressing our opinion, we do, not mean. to criticize the views expressed by our learned brother of the lower court, for whose opinion we entertain a high regard.

In our view, the plain significance of the clause under consideration is, that all taxes which had been levied by the Commissioners of the Fifth Levee District antecedent to the passage of the repealing statute, and which might be subsequently collected on the rolls of that district as that district existed when said repealing statute was enacted, should be transferred to the credit of the Fifth Louisiana Levee District.

Instead of abrogating the taxes which had been levied under the law of 1879, it. was the clearly expressed intention of the Legislature to leave them in proprio vigore. Had such not have been the legislative intent, this guarded phrase would not have been employed, but another, that would have been unmistakable in its terms.

The tax in question was not abrogated by the provisions of Act 44 of 1886, and in this respect the opinion of the district judge was in error.

III.

The views expressed in the preceding paragraph render it unnecessary for us to pass upon the constitutionality of Section 8 of Act 44 of 1886, whereunder it is suggested that the General Assembly has levied a five mill district levee tax.

The plaintiff’s proposition, as we take it, is stated and argued in the alternative that we should decide — with the district judge — that the tax in question was abrogated, and attempted to be replaced or supplied by this legislative tax.

As the former exists and may be enforced, there is no room for such an hypothesis, and the construction of the act is not drawn in question and it was error of the judge a quo to so decide.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, the demands of the plaintiff rejected, her injunction dissolved, and all costs of both courts taxed against her.

On Application por Behearing.

Plaintiff and appellee complains of our opinion on several grounds.

First — That it holds parol evidence to be inadmissible in a collateral proceeding to which the levee commissioners were not made parties— a ground of objection not taken in the lower court by defendant’s counsel. ¡

Possibly this precise objection was not urged in the court a qua; but plaintiff’s counsel evidently considered that it was, as his brief on the hearing of the case will attest. Indeed, we selected therefrom some of the most pertinent authorities that are cited in the opinion.

Second- That the following enunciation of the opinion, viz: “But once (the tax) m esse, and the tax roll placed in the possession of the collector, the levying and assessing officers cease to have any relation to the tax and are fimcti officii. At this stage the legality of neither the levy nor the assessment can be tested by either injunction or mandamus directed against the collector alone,” is opposed to the settled jurisprudence of this Court; and, in proof of this assertion, he cites the following cases, viz: 36 Ann. 801, Cobb vs. McGuire, tax collector; 36 Ann. 804, Enault vs. McGuire, tax collector; 36 Ann. 960, Budd vs. Houston, tax collector; 35 Ann. 996, Jones vs. Rains, tax collector; 33 Ann. 833, Surgett vs. Chase, tax collector; 33 Ann. 843, Brown vs. Houston, tax collector; 30 Ann. 1086, Gonzales vs. Lindsey, tax collector.

A simple glance at the opinions referred to will demonstrate the error counsel has fallen into. The legality vel non of the levy of the tax under consideration in this case, is dehors the proceedings of the Board of Levee Commissioners, exclusively. If there is any, the illegality is inirinsical. On the contrary, the illegality of the tax under discussion in the quoted cases was, either fundamental or extrmsical. It was apparent upon the face of the tax record, or raised on the law.

In 30 Ann. 1085, Gonzales vs. Lindsey, the objection urged to the tax was that the levy was in excess of the rate of taxation permitted by law.

In 33 Ann. 833, Surgett vs. Chase, the question was the constitutionality vel non of a twenty mill levee tax, it being in excess of the ten mill limitation.

In Brown vs. Houston, 33 Ann. 843, the question was whether a tax on a lot of Pennsylvania coal, on sale in New Orleans, was in contravention of the United States Constitution.

In Jones vs. Raines, 35 Ann. 996, the plaintiff claimed the nullity of a tax levied on a saw-mill, on the ground that it was exempt under Article 207 of the Constitution" as property employed in the manufacture of wood.

In Enault vs. McGuire, 36 Ann. 804. a similar question was raised as to the exemption of a certain alleged place of public worship.

Cobb vs. McGuire, 36 Ann. 800, was dismissed, because this Court was without jurisdiction.

In Budd vs. Houston, 36 Ann. 959, the tax collector and recorder were enjoined from placing a tax title on record, on the ground that there existed, in the proceedings leading up to the sale, ceitain “radical defects” which were not enumerated in the opinion. But enough can be gleaned from it to show that the acts of the tax collector were directly assailed.

The mooted question was the authority of the tax collector to stand in judgment for the State.

The plaintiff was appellant from a judgment dismissing the suit, on the ground that her petition disclosed no cause of action.

The Court held that “ it is well settled that when an officer is proceeding to collect a State tax illegally, either on account of a void assessment or irregularity in the mode of collecting, * * * the proceedings may be arrested by injunction in a suit against the officer alone.”

There is no question, in our minds, of the correctness of the views expressed in those cases; and there is nothing in the opinion we have quoted from that militates against our opinion in the instant case. Its object and purpose were to decide that a collateral enquiry into the legality of a tax levy, apparently legal, and valid on its face, could not be gone into, in an injunction suit, against the tax collector alone. It was not the object or purpose of the opinion to hold that a levy, or an assessment void on its face, or in plain violation of the Constitution or the law, could not be tested in such a suit, and with the tax collector alone. The fact that, notwithstanding the views we entertained on this branch of the case, we entertained and decided the controversy in relation to the legality of the tax, is conclusively against plaintiff’s hypothesis.

Third — That it erroneously holds that this is a collateral attack on the proceedings of the levee board.

In support of this contention her attorney cites the following cases as defining what is a collateral attack, viz: 36 Ann. 844, Gerac vs. Guilbeau; 35 Ann. 893, Ludeling vs. McGuire; 29 Ann. 112, Launes vs. Workingmen’s Bank; 30 Ann. 871, Workingmen’s Bank vs. Lannes.

The first three of these eases were injunction suits restraining sheriffs’ sales, at the instance of creditors of tax delinquents, of property in the possession of purchasers at tax sales, under recorded tax titles; and the same were perpetuated on the ground that the validity of tax titles could not be tested in such collateral way.

The last of the four was a direct action. The views expressed in each of those cases meet our unqualified approbation. They are only illustrations of what are collateral proceedings, and do not conflict with the views expressed in our opinion herein.

Fourth — That the opinion was in error in assuming that the plaintiff’s property was under seizure. This may be true; but there is an allegation in her petition to the effect that demand had been made on her by the sheriff for the payment of the tax complained of, and she was advised that if she did not pay the same her property would he seized and sold in satisfaction thereof.

In view of this averment, we must confess our surprise at the statement in counsel’s brief that ££no property had been seized.”

There is no practical difference between an aetual seizure and one that is apprehended.

But, if his intimation were correct, this”would be an hypothetical case; and it is hardly to be believed that he would insist upon that view being entertained by us.

Fifth — 'That if the five mill tax, levied by the Commissioners of the Fifth Levee District for the year 1886, is maintained, plaintiff’s property will be subjected to a double tax, inasmuch as, under Act 44 of 1886, creating the Fifth Louisiana Levee District, the General Assembly levied a five mill tax for the same year.

Hence, it is argued that our opinion is in error in holding the former valid, as the latter necessarily excludes it; or, if the former be maintained the latter must be invalidated.

As we understood plaintiff’s petition, it was aimed at the five mill tax that was levied by the commissioners oh the 22d of January, 1886; and the constitutional power of the Legislature to levy the tax indicated in Act 44 of 1886, was drawn in question, only in the alternative that we should hold the former was not enforceable. It was manifestly the intention of the plaintiff to resist the collection of but one tax, and our opinion was properly limited to its consideration:

Rehearing refused.


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

text:
    No. 10,077.
    Merchants’ Mutual Insurance Company vs. Board of Assessors, et al.
    Neither the State nor the city of New Orleans can be required to give'an appeal bond. The State Tax Collector and the Board of Assessors are State functionaries, and their appeal is the appeal of the State, and no bond is necessary to perfect it.
    Sec. 13 of Act 96 of 1882, which provides for the filling by each taxpayer of a list of his property, to be delivered to the assessor, is not mandatory. ‘ It provides no penalty for non-oompliance, and cannot produce the* effect of shutting out the taxpayer from all relief, owing to his omission.
    It ia unnecessary to adduce evidence to justify an assessment apparently legally made. It stands until it is shown to be erroneous by satisfactory proof.

      Assessors ought not to permit assessments to be made by others. Their sworn duty is to value the property themselves.
    The rule is well settled as regards corporations, that they are liable to assessment only for the excess of the market value of their capital stock over and above that of its tangible property otherwise assessed and taxed.
    Satisfactory proof that an assessment of the taxable property of a corporation is unwarranted and excessive, justifies a reduction to a reasonable amount.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. 8. Benedict for Plaintiff and Appellee.

      W. jET. Bogers, City Attorney, and Wynne Bogers, Assistant City Attorney, for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This is a suit for the reduction of assessment on the property described in the petition.

The city of New Orleans, the State Tax Collector and the Board of Assessments were made defendants.

There was judgment in favor of the plaintiff, from whicli the defendants appealed.

The motion to dismiss the appeal is, substantially, on the ground that there is no bond of appeal filed and none required by the order of appeal.

It is evident that the real and only parties in interest in this litigation are the plaintiff and the State and city of New Orleans. The Tax Collector is a State official and the Board of Assessors a State functionary. Neither the State nor the city of New Orleans are required to give an appeal bond; they are expressly exempted from any such requirement, and as the defendants are representatives of one or the other, there is no significance whatever in the omission of such bond.

The motion is, therefore, denied.

On the Merits.

Bermudez, C. J.

This is a proceeding for a reduction of assessments of property, as excessive and illegal.

From a judgment making the reduction this appeal is taken.

The evidence shows that seasonable application was made for the reduction, but that it was not allowed. On appeal to other authority no relief was had.

It is established by the president, the secretary and the cashier of the company that the statement which they handed is a correct exhibit of the taxable property of the corporation and of the value thereof.

The stock was assessed at its cash or market value, 55 on a par value of 100 — $330,000. After deduction of the real estate, etc., $223,000, and of various stocks ownedin different corporations, $41,000, the balance was $65,000, all in round figures.

This would appear to be sufficient to justify the relief asked.

. The defence, however, in the shape of a peremptory bar, is that the plaintiff has not complied witli Section 13 of Act No. 96 of 1882, which provides for the filling out by each taxpayer of a list of -his property.

It may be that this direction was not followed, but to the omission the law has attached no penalty. The provision is not mandatory, and failure to comply with it cannot have the effect of shutting out plaintiff from the relief asked.

The rule is well settled that corporations are liable to assessments only for the excess of the market value of their capital stock and above that of its tangible property. 31 Ann. 475; 3 Ann. 20; 34 Ann. 618.

It is also well established that assessments legally made are prima fade correct, and stand until shown to be erroneous by substantial evidence.

There was, theD, no necessity for the defence to have shown how and why the assessments were made in this case, unless in rebuttal; but the testimony of the witness produced proves that he, a mere clerk, made the assessments, which afterwards were accepted and placed upon the rolls.

It may well be here to observe that assessors ought not to permit assessments to be made by irresponsible parties, when the law imposes that duty upon them, and they have sworn to perform it.

That testimony shows the ways and means by which the witness arrived at the valuation of the taxable property of the plaintiff corporation. They are clearly at variance with the law and do not realize the true condition of things. Even were that testimony lucid and intelligible, which it is not, far from supporting, it would only be destructive of the assessments complained of.

The district judge correctly found that the reduction asked was reasonable and proper, and, adding to the net value of the stock that of the real estate, concluded that the total of assessment should be $288,683 50, and that the tax thereon should be accepted without interest or penalty.

Judgment affirmed.


text:
    No. 10,108.
    Joseph Dearmond vs. Joseph St. Amant.
    In. this action for malicious prosecution the evidence fails to establish that tiie defendant acted with malice and without probable cause, which are essential to support such a suit
    APPEAL from the Twenty-second District Court, Parish of Ascension. Duffel, J.

      B. N. Sims and F. N. Pugh for Plaintiff and Appellant.

      White (& Saunders and B. McOulloeh for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This is an action for defamation of character and malicious prosecution.

The defamation of character alleged consists merely in making public statements that plaintiff was guilty of the crime for which he was arrested and prosecuted upon the affidavit of defendant. Manifestly the slander is merged in the prosecution, and if the prosecution is not actionable, neither is the slander.

The record shows that an attempt was made in the night time to burn down defendant’s store. It was a palpable attempt at deliberate arson, only thwarted by a fortunate discovery and alarm in time to extinguish the ñames.

Arson is one of the most dangerous and cowardly of all crimes, and none is calculated to impress its victim with a deeper sense of alarm and insecurity. It was natural that defendant should have been anxious to discover and punish the perpetrator of such a crime.

He employed a professional detective in New Orleans and brought him to the parish to aid him in ferreting out the criminal. Evidence was obtained pointing to one Joseph Guédry as the guilty person, and he was arrested and confined in the parish jail.

While so confined he made to the sheriff a most circumstantial confession to the effect, substantially, that he had been engaged by plaintiff to burn the store; that (hey had gone together and set fire to it; that Dearmond had told him that a mercantile rival of defendant had promised to give $1500 for the burning of defendant’s store; that plaintiff had gone early next day to the rival’s store to claim the reward, but that the merchant had refused to pay, because the attempt had not succeeded.

This confession, repeated several times, was communicated by the sheriff to the defendant and also to the district attorney, and, after consultation between the three, it was determined that plaintiff should be arrested. The district attorney prepared an unqualified affidavit charging plaintiff with the crime, but defendant declined to make it in that form, saying that he could only swear from information received and not of his own knowledge; whereupon the affidavit was so changed, and defendant made oath to it before the judge, who issued his warrant for the arrest of plaintiff.

Unwilling, however, to have the arrest made without further inquiry, the defendant asked time to make such, and it was determined that the warrant might be held subject to his discretion, after further investigation. Defendant thereupon engaged another detective from New Orleans ho assist him in further investigations. After several days thus employed, resulting in the discovery of various circumstances tending to confirm the confession of Guédry, the arrest was made by defendant and the detective, to whom the sheriff had given the warrant, and plaintiff was incarcerated.

It turned out that Guédry’s confession had been obtained by the sheriff under threats of the certainty of his conviction and under promises that if he would tell all he" should be set free. Of course, such confession was inadmissible as evidence for any purpose, and upon the preliminary examination before the judge Guédry was discharged.

On the following day the district attorney entered a nolle prosequi in the case of plaintiff and he was discharged, after a confinement of about one week.

Neither defendant nor the district attorney was informed of the threats and promises by which the confession of Guédry was obtained.

The sheriff admits that, after getting the confession, he suggested to defendant to make an affidavit against. plaintiff. The district attorney states that, having no reason to doubt its truth, he “considered that confession alone sufficient for him to advise the affidavit and warrant.”

If plaintiff is innocent of this heinous charge, as the law presumes him to be, he has undoubtedly suffered a great wrong; and for him to be compelled to bear it without redress is, indeed, a hardship, but it is one of those sacrifices which the individual is required to make to the interests of society. It is not only the lawful right, but the civil duty of every citizen, to set on foot criminal proceedings whenever he believes honestly and on reasonable grounds that a crime has been committed. The social interests require, and tlie law invites him thus t° aid the State in the discovery and punishment oi crime ; and it would be equally unjust and impolitic to make him a guarantor of the success of the prosecution, or to make its failure an actionable wrong.

Hence, the law wisely holds the prosecutor harmless in such a case, notwithstanding the acquittal of the person accused, unless his conduct has been tainted by two concurrent vices : 1. Malicious motive. 2. Want of probable cause, i. e., absence of reasonable grounds for believing in the truth of the charge made.

. From the huge volume of testimony in this case we have selected and detailed a few of the pertinent and indisputable facts, the effect of which is not, in our judgment, destroyed by any others of the numerous facts and circumstances proved. It would serve no useful purpose to discuss the latter. Suffice it to say that the record fully satisfies us that the defendant acted throughout in good faith, from honest motives, on probable and reasonable grounds, and without malice, express or implied.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment appealed from be annulled and set aside, and that there be now judgment in favor of defendant, rejecting the demand of plaintiff, at the latter’s cost in both courts.