text:
    No. 9408.
    The State ex rel. New Orleans Gas Light Company vs. Judge of Second City Court of New Orleans.
    A city court hag no jurisdiction over a suit, the object of which is to obtain a perpetual injunction to prevent tbe exercise of a right exceeding in value one hundred dollars.
    PPLICAT10N for Prohibition.

      T. J. Semines <& Payne for the Relator.

      A. A. Ker and J. Diwigneaud for the Respondent.
   The opinion of the Court- was delivered by

Bermudez, C. J.

The relator prays that the defendant be prohibited from exercising jurisdiction over an injunction suit brought before the court over which he presides and that the proceeding's in said case be produced, for the determination of the issue presented.

The city judge, though personally served, has made no return.

The complaint is that one Lemarié has brought an injunction suit against the relator, for the purpose of prohibiting it from shutting off his supply of gas at his residence in this city; that the grounds on which the writ was asked and obtained are that, in the years 1880 and 1882, relator'held out that it would charge for gas $2.50 per 1000 cubic feeLwith 20 per cent off for prompt payment; that the advertisement made to that effect constitutes a contract; that relator had rendered a bill for $20.40 in violation of the alleged contract; that the relator is charging by the hour so as to avoid its charter requirements and has exceeded its chartered rights; that he (Lemarié) is not bound to pay the said bill as shown to be in excess of the charter of the company and its alleged contract,; that he has been notified that the gas would be shut off unless he pays said bill.

The relator contends that the* only matter before said city court is the right of the plaintiff to interfere with the control of the mains and pipes of the company and its possession of its gas flowing through said mains and pipes, into said residence, and whether he will be entitled to the indefinite control of said pipes and gas until relator changes its system, which will involve an expenditure exceeding $150,000.

The relator charges that of such a controversy, said city court has no jurisdiction ; that it has usurped power and exceeded its jurisdiction, in granting said injunction and entertaining said suit.

The jurisdiction of city courts in the parish of Orleans, which are otherwise assimilated to justices of the peace and regulated by the laws relative to such functionaries, is restricted to cognizance and determination of controversies in which the rights asserted to either money or to property movable in character, are not of a value exceeding one hundred dollars exclusive.of interest. It extends also to cases of ejectment of tenants. Const. 135; C. P. 1062; R. S. 2047,2057, 2156; 34 Ann. 1142;'32 Ann. 1222 ; 33 Ann. 15, 146; 34 Ann. 99.

In the case of State ex rel. Fredricks vs. Skinner, 33 Ann. 146, we had occasion to consider and determine the nature of jurisdiction of such city courts, and we reiterate the views therein expressed.

In the injunction suit brought against the relator before the city court, the plaintiff makes no money demand, but he claims rights which, if they are recognized, would bo worth to him largely in excess of one hundred dollars. The judgment of that court, were it to go in his favor, would affect rights of the company worth to them "an incalculable amount of money.

The plaintiff asks a perpetual injunction prohibiting the company from shutting the gas supply from his residence. It is manifest that the unlimited and indefinite use of gas secured by a final judgment to the plaintiff would by far exceed in value the sum of one hundred dollars.

The city court had clearly no jurisdiction over the suit, and the injunction issued by it is invalid and should be dissolved.

It is therefore ordered and decreed that the order of injunction rendered by said city court and the writ issued thereunder be declared to have been granted without authority and be dissolved, and

It is further ordered and decreed that the restraining order herein made be maintained and that the prohibition asked be made perpetual.

Rehearing refused.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 9322.
    James Sweeney vs. Nick Seiler & Son.
    The Supreme Court has no jurisdiction in a case involving the legality of wharfage dues, unless the amount in dispute exceeds §2000.
    The mere question of the constitutionality of a city ordinance does not vest this Court with jurisdiction irrespective of the amount involved,1 unless the question involves the legality or constitutionality of a fine, forfeiture or penalty imposed by the municipal corporation.
    A PPEAL from the First City Court of New Orleans.

      Olías. 8. Bice for Plaintiff and Appellant:
    1. The banks of the river are public, and within her corporate limits the city of New Orleans has the exclusive right to control, manage and administer their use for the public convenience and utility. Riparian proprietors have no right to interfere with the exercise of this right. C. C. Arts. 490, 491, 492, 455, 457;' 18 La. 228; lb. 284; City Charter, Sec. 12 of 1870, Sec. 8 of 1882.
    2. The city, and per consequence her lessee, has the exclusive right to all the profit,' utility and advantages produced or producible from the batture or banks of the river, and to make improvements thereon for the convenience of commerce. 34 Ann, 856; 18 Ann. 284; 6 Rob. 349.
    3. Wliaifago or levee dues are not taxes of tonnage, or regulations of commerce, or obnoxious to the Constitution of the United States; but are lawful charges for conveniences furnished to commerce. 107 U. S. S. C. 692; 20 Wal. 577; 95 U. S. S. C. 80; 100 U. S. 423, 434; 105 U. S. 559; 100 U. S. 430; 16 Eed. Rep. 890; 6 Rob. 349; 2 Ann. 540 to 544; 34 Ann. 857; 30 Ann. 190.

      Farrar & Kruttsohnitt for Defendants and Appellees:
    1. A charge of wharfage dues by a city or town will not be maintained and enforced unless it appears from the evidence that it rests on services rendered by the corporation to vessels or boats by means of wharves or wharfage facilities provided and maintained at the expense of the corporation, and by means of which the loading and unloading of boats or vessels is materially and specially facilitated. (See 3sTo. 94X4, City of Shreveport vs. Red River and Coast Line, decided Monday by this honorable Court.)
    2. Under the evidence in this case, it is clear that the defendants made no use of any of the facilities furnished by the plaintiff.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, who is the lessee of the wharves of the sixth and seventh districts of the city of New Orleans, sues the defendants for wharfage dues amounting to $33, and he has taken this appeal from a judgment rejecting his demand.

The matter in contestation does not involve the constitutionality or legality of any tax, toll or impost, nor does it present the question of the legality or constitutionality of any fine, forfeiture or penalty imposed by a municipal corporation.

True, the ordinance of the city which forms the basis of the claim is assailed by defendants as violative of Article 1 of the Constitution of the United States. But it appears clearly from the pleadings that this is not a claim for tonnage duty, but simply a demand for alleged wharf-age dues.

Hence, it follows that we have uo jurisdiction of the present controversy. Police Jury of Plaquemine vs. Mitchell, No. 9259, not yet reported.

This conclusion is candidly conceded by appellant’s counsel, in a motion in which he suggests that the appeal should be transferred to the court of appeals, for the reason that our jurisdiction has been divested since the filing of this appeal.” But it appears from the record that the order of appeal was made on the 9th of December, 1884, and that the transcript was filed in this Court on the 17th of January, 1885; and we are not aware of any constitutional amendment adopted since either of these dates which,purports to affect the jurisdiction of this Court in such matters, or on any other subject. The truth is that this Court bas never had jurisdiction over similar cases. Hence, we can enter no valid order but one of dismissal. Of course that order can destroy no right of appeal which plaintiff may successfully urge in any other appellate tribunal.

It is therefore ordered that the appeal taken in this case be dismissed at appellant’s costs.


author: Manning, J.

text:
    No. 9427.
    A. Lehman & Co. vs. Joseph Dreyfus.
    The bid foe a lease is merely a premium over ancl above the rental. The purchase of the lease superinduces the obligation on tho part of the buyer to pay the rents for the remainder of the term.
    Where the rents have been paid out of the assets of an insolvent or failing debtor, he or his creditors are subrogated to the rights of the lessor, and those creditors can successfully proceed by garnishment against the purchaser of the lease fer the rental due subsequent to his purchase.
    APPEAL from the Civil District Court for tlie Parish of Orleans. Houston. J.

      Percy Roberts and H. T. Floram.ce for Plaintiffs and Appellants:
    1. The purchaser of alease at judicial sale assumes as part of the.price the payment of the rent for the unexpired term. 11 Ann. 433; 14 Ann. 218; 17 Ann. 174; 12 Ann. 524; 32 Ann. 371.
    2. The purchase of a “lease and right of occupation” is tlie purchase of a “lease” 14 Ann, 218.
    3. Where the original debtor has been compelled to pay a debt-assumed by another, sueh original debtor is subrogated to the creditors right against such assumer of the debt. 32 Ann. 502; 6 La. 479, 475; 15 Ann. 381; 7 Yesey 333; 12 Cushing 228; 7 Cushing 132.
    4. The proceeds of seized x)roperty belong to the owner of such property until paid to the seizing creditors, and debts paid therefrom are paid with the debtor’s money. 7 Rob. 87 ; 11 Rob. 182 ; 3 Ann, 436 -4 KS. 317 ; 32 Ann. 354 ; C. C. 3228, 2709.
    5. Such a debt due to debtor can be garnished, C. P. 246, 264.

      Jos. Maille for the Garnishees and Appellees:
    JURISDICTION.
    The Supreme Court has only appellate jurisdiction, which it exercises in all cases where the object in dispute exceeds the sum of two thousand dollars, C. P. 874; Acts of 1884,
    Tho amount claimed by the plaintiffs in their brief is §1,373 35.
    The jurisdiction of the Court depends upon the amount claimed, and not that for which judgment was rendered. 23 Ann. 34, Daigle vs. Lirette; 25 Ann. 566, Sandell vs. Douglass.
    It is not the amount of the judgment, but the amount in contestation which gives jurisdicttion to tho Supreme Court. 21 Ann. 366, Maxen & Shearer vs. Landreau.
    Tho Supreme Court is without jurisdiction in a possessory action, when the amount of rent claimed does not exceed the appealable amount, and it does not appear that the value of the possession exceeds the appealable amount. 22 Ann. 272, Slawson vs. Meggel-t.
    When tho amount in dispute is less than the appealable amount, the court will ex ojjido notice this fact. 19 Ann, 276, Boutte vs. Maillard; 22 Ann. 400; 24 Ann. 94.
    When the amount garnisheed is less than the appealable amount, the Supreme Court is without jurisdiction, on any question between the garnishee and plaintiff. 27 A. H. R. Harrison vs. Carondelet St. and Carrolton R. R. Co.
    The Supreme Court caunot entertain jurisdiction of cases, * * * if the matter in dispute does not exceed the appealable amount. 21 Ann, 296; 20 Ann. 533, 567.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs proceeded by attachment against the defendant and made Spor a garnishee.

Dreyfus occupied, the building No. 33 Tchoupitoulas street under a lease. Under proceedings in the U. S. court his lease and right of occupancy was sold by the Marshall and Spor bought it for $250. In the same court the lessor of the building obtained payment out of Dreyfus’ assets of the whole of the rent due and to become due till the close of the term.

The garnishment of Spor is based on the principle that the sum he paid for the lease was merely a premium over and above the rental, and that his purchase or the lease superinduced of necessity the obligation to pay the rents for the remainder of the term. This principle was asserted in Bartels v. Creditors, 11 Ann. 432 and was reaffirmed in D’Aquin v. Armant, 14 Ann. 217.

As Dreyfus paid the rent or it was paid out of his assets, he was subrogated by operation of law to the rights of the lessor and his creditors can exercise his rights thereto.

As Spor’s purchase of the lease burdened him with the obligation to pay the rents, he owes them to Dreyfus and his debt is subject to garnishment by Dreyfus’ creditors.

A state of facts nearly alike to these is presented in the unreported case of Bach v. Cottingham, Opinion book 26, p. 332, which is a sequel to Hayden v. Shift, 12 Ann. 524.

Cottingham was lessee of the Shiffs and had failed and absconded. In the proceedings against him and his property the lease was bought by Hayden, and in the distribution of his assets the Shiffs were paid the full rent out of them. But the building burnt pending the lease, and Hayden as purchaser of the lease sued the Shiffs for the rent subsequent to the burning. The court held that Hayden could not recover. He had bought the lease with all its obligation, but the rental had been paid out of Cottingham’s assets, and the Shiffs therefore owed it to Cottingham or to his creditors. Whereupon Bach, a creditor of Cottingham, took process of garnishment against the Shiffs and recovered the money.

So in the case at bar the rent having been paid out of Dreyfus’ assets, the plaintiffs are entitled to recover it from. Spor who owes it to Dreyfus’ estate.

The judgment below is error.

It is therefore ordered and decreed that the judgment of the lower court is reversed, and that the plaintiffs have judgment against J. G. Spor the garnishee forthirteenhundred and seventy three .35-100 dollars with legal interest from service of the process of garnishment and the costs of bo+h courts.

Rehearing refused.


author: Fenner, J.

text:
    No. 9423.
    The State ex rel. The City of New Orleans vs. The New Orleans and Carrollton Railroad Company.
    The writ» of mandamus doe3 not lie to compel corporations to perform obligations arising simply from contract.
    Nor does it lie wben there exists other adequate legal remedy and especially when such remedy is expressly provided by the statute imposing the duly.
    Although a duty imposed by a municipal ordinance may become operative on the subject corporation only by virtue of its acceptanco in the form of a contract, this will not prevent its enforcement by mandamus, if the duty bo of a nature within the legislative power of the municipality in the exercise of its police powers and independent of tho consent of the corporation ; but when the obligation is of a character which could only arise from voluntary contract and could not, otherwise, be imposed, mandamus will not lie.
    A PPLICATION for Mandamus.

      W. H. Rogers, City Attorney, and Branch K. Miller, Assistant City Attorney, for the Relator:
    1. The city may institute a suit of the city of New Orleans without being authorized thereto by ordinance or regulation. Sec, 27, Act No. 20,1882.
    2. Where a party agrees to do certain work for another, and in the event of a failure to do such work, the obligee is, by the contract, authorized to have such work done at the expense of the obligor, this stipulation of the contract is no bar to a demand by tho obligee for specific performance. Mandamus is tho proper remedy íd this case. 37 dud. 494, 495, 489 etseq,, High’s Extraordinary Legal Remedies, Sec. 320.
    An ordinance granting a right of way for a street railway through a street, though part of contract, does not create simply a contract obligation. It creates a municipal regulation and a duty to obey it. 1L1 U, S. 237.

      John M. Bonner for the, Respondent.
    1. Where the city of New Orleans has provided a special remedy for the enforcement of a contract, the city attorney cannot, of his own motion, ignore this remedy, by bringing a suit to enforce a different one and one that would bring about a result never contemplated by the contracting parties.
    2. When, a remedy is specially stipulated for by the contracting parties, that remedy alone is to be resorted to' for the enforcement of the contract, as they thus make it the law for that purpose. K. C. C., Art. 1901 and Art. 1945, §§ 2 and 3.
    3. Under her contract, the < ity of New Orleans has an adequate legal remedy, and having an adequate legal remedy she is not entitled to a mandamus. High, Ex Leg. Remedies, §§ , 10, p. 16, note, § 15, note, p. 21; § 16, p. 22, note; C. P. 830.
    4. A mandamus issues only in cases where the duty to he performed is imposed by law. It is not issued to enforce contract rights. High, Ex. Leg.- Eemedios, § 321; C. P., Art. 829; 16 Ohio St. 308; 43 N. <L L,, 505; 20 Kansas, 404.
   Tli e opinion of tlie Court was delivered by

Fenner, J.

This is an application for a writ of mandamus, commanding the defendant company “to proceed at once to repair and correct the defects and had condition of Jackson street from Water to St. Charles street, atnl to proceed at once to put said Jackson street in good repair and condition, and to execute said commands of the court within a reasonable time.”

The application is based on the following allegations which we transcribe from the petition, viz “That by authentic act passed before Samuel Flower, notary public, on August 7, 1882, relator, for the consideration therein stated, sold and granted to the New Orleans and Carrollton Railroad" Company, the franchise or right of way for a double-track street railway, from Water street througli Jackson street to its junction with St. Charles avenue; that by the terms of said authentic act the said N. 0, & C. R. R. Co. agreed and bound itself to keep in good order and condition at all times the said Jackson street from St. Charles avenue to Water street, from curb to curb, including all crossings, bridges, curbing and intersections.” Failure and refusal to perform this obligation, after due demand, arc averred, and also absence of other adequate legal remedy, and hence relief by mandamus is prayed for.

Looking at the authentic act referred to, we find it to bear the caption of “act of sale.” The parties to it are Joseph A. Shakspeare, Mayor of the city of New Orleans, of the one part, and Van Benthuysen and Crouch, President and Secretary of the railroad company. The Mayor acts under and by virtue of a city ordinance No 7983, which is entitled “an ordinance to authorize the Mayor of the city of New Orleans to contract with the New Orleans and Carrollton Railroad Company, for a sale of franchise or; right of way offered under ordinances 7812 and 7830 A. S. The representatives of the railroad act under a similar resolution of the corporation.

The act itself is a formal contract of sale embodying a multitude of stipulations and considerations, amongst others, the obligation to keep the streetsin repair upon which this actionis based, and also tliefollowing, viz: that railroad company “shall, for the faithful execution of these specifications, give good and solvent securicy in the shape of a bond, namingreal estate unencumbered, to the amount of oneliundred thousand dollars. The said bonds shall befiledin themortgageofficeandaceepted by the Mayor. It shall be the duty of the Administrator of Improvements and City Surveyor, to notify in writing the company, of any violation of these specifications, giving them reasonable time to rectify any such violation; and if upon the expiration of said mentioned time, the company has neglected or refused to comply, the city council shall have the said violation rectified. The cost for so doing shall be recoverable before any court of competent jurisdiction.”

Thus, from the allegations of the petition and from the face of the authentic act referred to therein, it conclusively appears:

1. That the obligation here sought to be enforced by mandamus is an obligation created by, and resulting from, an express written contract.

2. That the performance of said obligation is secured by an ample and solvent bond.

3. That in the event of non-performanee, a distinct and specific remedy is provided, the pursuance of which is not left to the option, but is made the imperative duty, of the city.

The writ of mandamus is the most arbitrary of all the forms in which judicial authority is exercised.

It, shuts out the right of trial by jury. It substitutes for the ordinary and cautious modes of judicial proceeding, an extremely harsh and summary procedure.

Instead of a meie judgment settling simply the rights of litigants and subject to execution by ordinary process, it invokes an arbitrary judicial mandate, to be executed by the judge himself, and disobedience to which is punishable by imprisonment for contempt, or by the harsh remedy of distringas.

It is properly characterized as an extraordinary remedy, only to be api>lied in extraordinary cases, which law and jurisprudence have carefully defined and subjected to close limitations, amongst which may be mentioned the following:

1. It cannot be invoked except to compel the performance of some clear, unequivocal duty imposed by law, and never to enforce obligations arising simply from contract. High on Ext. Remedies, $ 321; State vs. Zanesville Turnpike Co., 16 Ohio, 308; State vs. Peterson R. R. Co., 43 New Jersey L. 505; State vs. River Bridge Co., 20 Kansas, 404.

One reason of this distinction is obvious. The obligations of contracts are commutative and reciprocal. The duty of one party to comply with the obligations assumed by him does not depend simply upon the fact of his assumption, but involves the question as to whether the other party has fulfilled his own reciprocal obligations, such fulfillment being a condition precedent to his right to exact performance from his adversary. A duty, thus contingent and dependent, is not, on its face, sufficiently clear and absolute to justify the application of such a remedy.

2. Not only must the duty be clear and imposed by law, but mandamus only lies when there exists no other adequate legal remedy. C. P. 830, 831; High on Ext. Rem. §§ 10, 15, 283; State ex rel. Fix vs. Herron, 29 Ann. 850; also 9 Ann. 250; 10 Ann. 415; 12 Ann. 342; Commonwealth vs. Rossiter, 2 Binn. 360; People vs. Head, 25 Ill. 325; King vs. Water-works Co., 6 Ad. & E. 325.

3. Wherever an express remedy is afforded by statute, plain and specific in its nature and adequate to redress, mandamus will not lie. High on Ext. Rem. §§ 16, 179; State vs. Supervisors, 29 Wis. 79; State vs. McAuliffe, 48 Mo. 112.

This is particularly applicable where the same statute which imposes the duty indicates and provides the remedy. L. & N. A. R. R. Co. vs. State, 25 Ind. 177; State vs. Supervisors, 29 Wis. 79.

In the instant case, every one of the foregoing rules applies to exclude the remedy by mandamus, and their concurrent force is irresistible.

The case of Hayes vs. Michigan R. R. Co., 111 U. S. 237, relied on by relator, is not applicable. The court there simply decided that the provision of a city ordinance requiring a railroad company to which a right of way was granted, “to erect such suitable walls, fences or other sufficient works as will prevent animals from straying upon its tracks, and secure persons and property from danger,” although accepted by the company in the form of a contract, was nevertheless a competent municipal regulation having the force of law, and hence that persons injured by the failure of the company to comply therewith could hold it responsible for the damage. Obviously such a regulation was not dependent for its validity upon the consent of the railroad company. Even had it been omitted from the contract granting the right of way, it could have been subsequently passed by the city as a measure of competent police power for the protection of persons and property. Such laws have been passed in many States and are held binding upon existing railroad companies regardless of their consent.

But the obligation of keeping “Jackson street from curb to curb” in repair, is of a different character, and could in no manner be cast upon the defendant company otherwise than by its own express and voluntary consent. It is, and could be, nothing else than a contract obligation.

Now, all important municipal contracts are entered into in virtue of ordinances which prescribe the terms of the municipal consent and authorize officers to represent the city in their execution. To say that because tlie terms of the contract have been antecedently embodied in such ordinances, therefore the obligations resulting from the subsequent concurrence of minds between the contracting parties are not obligations arising from contract, but duties imposed by law and enforcable by mandamus, is to obliterate all distinction between the lawmaking and contracting powers of municipal corporations.

If this company can be compelled by mandamus to fulfill its contract to repair this street, we see not why every other contract for the repair, paving or other work on streets , and indeed, every other muni-cipal contract, might not be enforced in a similar manner.

Nothing in the decision above referred to or elsewhere points to such a doctrine.

This might conclude the case; but even if we considered the contract in the light of a statute, the plain mandatory remedy expressly provided in its terms, would necessarily bar the relief by mandamus.

It is true that the Supreme Court of Indiana, in discussing the adequacy of such a remedy, concluded that it was not adequate; but that was in a case where that remedy had not been pointed out and embodied in the statute ; and the court was careful to emphasize that point, saying: “The case of L. & N. A. R. R. Co. vs. State, 25 Ind. 177, deciding that a mandate will not lie where the statute has expressly in'ovided another adequate remedy, has no application to the casé at bar. There an express remedy was provided by statute, while in the present ease, no statutory provision for the remedy of the grievance complained of and for the enforcement of the rights of relatrix, other than a mandate against the railroad company can be found.’) Ind. R. R. Co. vs. State, 37 Ind. 495.

It is clear that, in so far as we should accept' the authority of the Supreme Court of Indiana, this case is governed by the decision in 25 Indiana rather than by that in 87 Indiana.

The first-mentioned case was, in some degree, analogous to this. The statute made it the duty of the railroad company to file a certain statement within a fixed time and provided that, in case 'of failure, the auditor of public accounts should make up the statement. On application for mandamus to compel the company to file the statement, the Court said, if it were not provided by the statute, that upon failure of the company to file such statement within the time required by law, the auditor of the county should proceed to make the 'same, a mandamus would doubtless lie; but the rule is well established that mandamus will not lie where the statute has expressly provided another adequate remedy.” L. & N. A. R. R. Co. vs. State, 25 Ind. 181.

In this case, the mandatory terms of the ordinance leave no doutb that the remedy pointed out therein was the one intended and required to be pursued. Its complete adequacy, therefore, is not to be too nicely considered; but, in point of fact, it is not only adequate, but much more adequate than the remedy of mandamus.

The duty of putting and keeping a dirt street in repair is one of the vaguest and most undefined duties imaginable. What constitutes a state of proper order and repair ? It may be in repair one week and, by bad weather, out of repair the next. It is plain that the enforcement of such a mandate would practically throw upon the court the administration of the streets of the city; and its time would be consumed by constant rules for c'ontempt involving questions as to whether this hole should be filled up or that quagmire be made firm, and how these things should be done, and the like.

The learned judge of the court a qua did not err in refusing the mandamus.

Judgment affirmed.

The Chief Justice takes no part in this opinion.


author: Roche, J.

text:
    No. 9359.
    John W. Black, syndic, vs. John P. Richardson & Co.
    A mortgage granted by a debtor in favor of one of his creditors, in order to secure an antecedent debt and with the intention of unduly benefiting him, within three months next preceding his failure, is an unjust preference under Section 1808, Revised Statutes, although the state of his insolvency was not then known to the creditor, and although the latter was in good faith.
    The clear object of the law is to secure a perfect equality among the creditors of an insolvent debtor whose property is the common pledge of all his creditors.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Lamrus, J,

      Jos. P. Bornor and F. W. Baker for Plaintiff and Appellant:
    Seotion 1808, of the Revised Statutes of Louisiana, which declares: “Any debtor who shall, within three months preceding his failure, have sold, engaged, or mortgaged any of his goods and effects, or shall have otherwise disposed of the same, or confessed judgment, in order to give au unjust preference to one or more of his creditors oyer the others, shall' be debarred from the benefit of the insolvent laws, and the said deed or acts shall be declared null and void,” is absolute in its terms, and must be enforced; no matter • whether or not the debtor was insolvent when the preference was given; no matter •whether or not the creditor knew of the insolvency of the debtor; and no matter whether creditor or debtor, or both, were in good faith or not. -

      Bayne & Denegre for Defendant and Appellee,
   Tlie opinion of the Court was delivered by

Roche, J.

Plaintiff, as the syndic of the insolvent commercial firm of Edward Pillsbury’s Sons, seeks to annul a mortgage granted by said firm to secure the sum of §5500, which they owed to the defendants, in order to give to the latter an unjust preference over their other creditors. He appeals from a judgment of non-suit; and defendants pray for an amendment and for an absolute judgment in their favor.

For answer the defendants allege the good faith of the transaction, and their want of knowledge of their debtor’s insolvency.

The action is predicated on the provisions of Section 1808 of the Revised Statutes of 1870, which is Section 25 of Act No. 322 of 1855 entitled “An act relative to the voluntary surrender of property and mode of proceeding.”

It reads thus:

“Any debtor who shall, within three months next preceding his failure, have sold, engaged or mortgaged any of his goods and effects, or shall have otherwise disposed of the same, or confessed judgment, in order to give an unjust preference to one or more of his creditors over the others, shall be debarred from the benefit of the insolvent laws, and the said deed or acts shall be declared null and void.”

“If the purchaser of such property shall prove that the property was either sold or engaged to him for a true and just consideration by him bona fide delivered at the time of such deed, then, and in that case, the sales and mortgages shall be declared valid.”

The object of the law is to secure a perfect equality among all the creditors of an insolvent, in the enforcement of the wise rule that the debtor’s property is the common pledge of his creditors. The means proposed to accomplish that end, is to strike with nullity all acts of a debtor, performed within three months next preceding his failure, which have the effect of destroying the equality among his creditors, which the law proposes to maintain and enforce.

Construed in the light of its proviso, the section clearly means to strike with nullity a mortgage granted by a debtor, within the prohibited time, to secure a debt which is antecedent to the date of the mortgage, or which is not the consideration, by means of a loan made at the time, of the security given.

Under the terms of the law, it is immaterial whether the state of insolvency of the debtor was unknown to the creditor or whether the latter was in good faith. If, by and through the mortgage, the creditor who obtains it, is placed in a better position touching au antecedent debt than he would have occupied without it, or in a better or more advantageous -position than the other creditors of the debtor, the preference- which is thus given to him by the debtor, with the intention of preferring him to other creditors, is unjust within the meaning of the statute, and its nullity must be declared.

The record in this case shows that the mortgage assailed, was executed on the 31st of January, 1884, that the debtors who granted it failed on the 12th of February following, and that it was intended to secure a pre-existing debt which they owed to the defendant, and which they had contracted in due course of previous commercial transactions with the creditors, the defendants, whom they thereby sought to secure, to the detriment and manifest inj ury of their numerous other creditors.

This is one of the very acts which the section now under consideration contemplates, and which it proposes in unmistakable terms to avoid and to nullify. Hence the judgment of the district judge is erroneous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed. It is now ordered that the mortgage granted by the insolvents Edward Pillsbury’s Sons in favor of the defendants, under date of January 31, 1884, be and the same is hereby declared null and void, and that defendants pay all costs in both courts. •

Rehearing refused.


text:
    No. 9453.
    The State ex rel. C. H. Tebault vs. The Judges of the Fifth Circuit.
    The delay for filing applications for rehearing is the same in the Circuit courts as in the Supreme court,
    'Where there is an express provision of law regulating practice, a rule of court contravening it cannot be enforced and must be abrogated.
    PPLICATION for Certiorari.

      B. B>, Forman for the Relator.

      J. G. Gilmore for the Respondents.
   The opinion of the Court was delivered by

Manning, J.

In a suit by the Pacific Railway Co. against the relator for an expropriation of a strip of his plantation in Jefferson, he reconvened and had judgment for $850 as damages. The Railway Co. appealed to the Circuit Court which reduced the judgment to $392, rendering it on Friday March 20th. The court was to adjourn the next day and on that day the relator “called the attention of the court to his legal right to six or at least three judicial days within which to apply for a rehearing and asked the court to order the case to stand open for that time.” The court refused to make this order whereupon the relator says he offered a petition for rehearing with a brief and the court refused to permit it to be filed because one of its rules requires applications for rehearing to be made on the same day that the decisions are rendered. The respondent judges say they did not know of this application until they were looking over the papers to prepare their answer but that their rule would have prevented them passing upon or considering it.

This application for a certiorari was therefore made with the prayer that the respondents be directed to receive and consider the application for a rehearing and meanwhile be restrained from executing their judgment until the application has been considered and acted on.

The rule is clearly illegal. It is in the teeth of the express statutory provision that three judicial days are allowed in this court for receiving petitions for rehearing at country terms and of the constitutional provision that the Circuit courts must be governed by the rules that govern us."

The respondents insist that the qualification of this provision, i. e. that our rules govern them so far as they are practicable, justifies their rule because it is not practicable for them to grant three days. It is as practicable for them as for us. As well might we make a rule that decrees rendered by ns in the closing days of May should become final on the day they are rendered because the Constitutional limit of our city term is the last day of that month, and the delay for applications for rehearing cannot expire.

It has not often happened that cases have been decided by us in the last week of the term, but press of work or the intricate questions to be examined has occasionally deferred a decision until too late for it to ripen. Of course it does not become final until the requisite number of judicial days have elapsed in the following November.

■ Our learned brothers of the Fifth Circuit will see therefore that neither they nor ourselves can make and enforce a rule of court that contravenes an express legal enactment.

It is therefore ordered that the respondents receive and.consider the relator’s application for a rehearing of the cause above mentioned, and pending the same that the execution of the judgment therein rendered be suspended.

Rehearing refused.


text:
    No. 9356.
    Hannah P. Gee vs. George W. Thompson.
    'The District Court of the Parish of Natchitoches is without jurisdiction to enforce a judgment of the District Court of the Parish of Bossier, or to entertain a suit against the executor of a succession opened and pending in the latter parish.
    Tho only allegation up >n which tho jurisdiction in this case can he sustained, is the allegation of a personal contract between plaintiff and defendant individually and not as executor. That allegation is not sustained by the evidence.
    A PPEAL from the Eleventh District Court, Parish of Natchitoches. XjL Pierson, J.

      Watldns <& Scarborough for Plaintiff and Appellee:
    1. This suit is brought for the recovery from the defendant of eight per cent interest on $3444 44, same being the one-ninth of the succession of B. L. Saunders, of which the plaintiff was awarded the usufruct during her natural life, and at her death to he returned to the succession or the heirs of deceased. 11 Ann. 657, Gee vs. Thompson; 27 Ann. 593, Succession of Newman; 11. C. C. 23S2, 558.
    2. A document annexed to an answer and made a part of it, is a judicial admission and cannot be contradicted or explained by the parol evidence of the party who filed the answer, 14 La. 368, Nott vs. Braden; 111. 469, Le^erich vs. Walden; 7 Ann. 294, Hugely vs. Goodloe; 4 A. S. 193, Syndic vs. Puche.
    A party cannot deny a judicial admission solemnly made, nor shift Ms position at will to a contradictory one, in relation to the subject-matter of litigation, to defeat the action of the law upon it. 5 Ann. 18, Denton vs. Erwin; 4 A. 416.
    3. This is not a suit brought to enforce a money judgment in the sense of R. C. C. 3547. The original judgment only recognized a right—a usufruct for life. R C. C. 2382, 558, 533, 534.
    4. While the imperfect usufruct transfers to the usufructuary the ownership of the things subject to the usufruct, so that he may use or consume them, yet he is under the obligation of returning the same quantity, quality and value to the owner, or their estimated price, at the expiration of the usufruct. B. C, C. 536, 549; 3 Ann. 494, Fisk vs. Eisk.
    5. The interest on money is supposed to be obtained day by day, and belongs to the usufructuary in proportion to the duration of the usufruct, and is due to him though same may not be collected at the expiration of tho usufruct. B. C, C. 547, 549, 563.
    6. The failure of plaintiff to furnish security did not deprive her of it. B, C. C. 563, 547, 566.
    7. All personal actions are prescribed by ten years. B. C. C. 3544; C. P. 3; 14 Ann. 301, Konip as, Cornelius,
    8. Prescription libera/ndi causa is interrupted by an acknowledgment of the creditor’s right. B. C. C. 3520.
    Prescription of debt evidenced by a judgment may be interrupted by the same mode as the prescription of debts evidenced in any other way. 30 Ann. 1071, Succession of Patrick; 34 Ann. 413, Levy vs. Calhoun.
    The acknowledgment of a debt by a succession representative suspends the prescription of it while the succession remains under administration. 33 Ann, 305, Cloutier vs. Lemee; 30 Ann. 853, Benshaw vs. Stafford; 31 Ann. 713, Mariast vs. Guilbeau; 32 Ann. 337, Huer vs. Hornsby.
    9. Defendant’s plea of res judicata cannot be sustained, because the issues in this suit are not the same as in the one pleaded. 27 Ann. 593, Succession of Newman; 3 Ann. 104, Succession of Fortier; 24 Ann. 331, De St. Pomes vs. Carondelet; B, C. C. 2286.

      10. Plaintiff sues for use and usufruct of a sum of money. The damages due for delay in paying a sum of money are called interest. R. C. C. 1935.
    As plaintiff was not owner of the sum of money, but the legal usufructuary of it, the sum she claims is not interest, but capital; and she is entitled to interest on each annual instalment of same till due. R. C. C. 556.
    11. The objection that a party who declares on a contract cannot recover on a quantum meruit is waived by joining issue on the merits, going to trial and suffering evidence received in support of a quantum meruit. 6 Ann. 202, Cairy vs. Randolph; 9 Ann. 163, Beard vs. Evans; 14 Ann. 848, Brown vs. Snow; 18 La. 321, Powell vs. Aiken & Guind.

      Jaolc ds Disrrmlces for Defendant and Appellant:
    Courts of ordinary jurisdiction are not permitted in any way, or for any purpose, to usurp or interfere with the authority of probate courts in matters that pertain to the opening, administration and settlement of estates. The law confers upon the probate tribunal where the succession is opened, plenary and exclusive jurisdiction over this subject-matter and all its incidents db oHgine ad terminum. Its jurisdiction begins with the beginning and ends only with the end. It matters not where the fiduciary of the estate may reside, nor how long he may have it in charge, until the succession is settled and closed and he is finally discharged, he is just as subject as such to the jurisdiction of that court in one part of the State as in another, and for that very reason he is not amenable to any other court for any matter or thing pertaining to that estate and pending in that court.
    All debts in money which are due from successions administered by curators appointed by courts,’and by testamentary executors, shall be liquidated and their payments enforced by the court of probate of the place where the succession is opened. C. P. art. 983.
    “ The judges of the courts of probate who have appointed or confirmed the tutors or curators of minors, interdicted absent or other persons unable to administer their own property, testamentary executors, curators of vacant estates, of absent heirs, or other persons administering successions, alone have thepower of compelling themto account and pay over what they may be found to owe." C. P. 997, 924, 1007; C. C. 1141, 1149; C. A. S. 212 ; 7 A. S. 106; 2 L. 52, 484: 14 Ann. 236 ; 18 Ann. 156; 24 Ann. 278.
    Claims tor the marital portion come exclusively within the province of the probate courts. 3 Ann. 104; 5Ann.l59: 16 Ann. 352; 21 Ann. 354; 27 Ann. 593; 30 Ann. 468.
    A modus of enforcement of every character of judgment rendered by probate courts is provided for in Articles 1053 to 1058, inclusive, of the Code of Practice.
    There are but two cases under our law where a judgment can form the basis of a distinct and separate proceeding; one is where the judgment is a foreign, one, and the other is where the resident debtor dies after rendition of judgment and his estate passes under administration. 14 Ann. 301; 16 Ann. 352.
    A judgment that grants a relief wholly at variance with the pleadings and prayer, is ultra petitionem, and for that reason a nullity.
    When the judgment of the Supreme Court simply affirms that of the lower court, it is the latter alone that determines the amount, and no expression of the appellate court on a collateral question can be held to supply it.
    “In order to ascertain the matters which are adjudicated in a judgment, recourse must be had to the decretal portion of the judgment and not to the body or reasons of the same.” Succession of Haggett, 36 Ann., hTo. 3, p. 336.
    The contract of annuity is barred by the prescription of three years. C. C. art. 3538.
    All personal actions in general are prescribed in ten years. C. C. art. 3544.
    The rights of usufruct are lost by non-user for ten years. C. C. art. 3546.
    All judgments for money (not revived) are prescribed by lapse of ten years from the rendition ot such judgments. C. C. art. 3547.
    The rule that testimonial proof is inadmissible to prove a contract to pay interest at 8 per cent is imperative and inhibitory, and evidence of that character, though received without objection, will not be considered. O. C.2924; 15 Ann. 457; 17 Ann. 145; 21 Ann. 279; ■ 23 Ann. 201; 25 Ann. 600.
    When a written obligation is made the basis of the action and the plaintiff is ruled to produce it, she cannot, in answer, reverse her position by declaring it a pm'dl agreement instead of a written contract—a new and different cause of action could not be thus substituted by an amended petition, and much less by an answer to a prayer for oyer. She must stand or fall on the verity of her averments—parol evidence cannoc be admitted in support of a written contract. 19 Ann. 531; 28 Ann. 181.
    An executor is a third person in his relation to the debts of the estate, and parol evidence is not admissible to show his personal promise to pay them. The law is mandatory and no such evidence can be considered. B. S. 1443; 23 Ann. 747; 24 Ann. 401; 25 Ann. 492; 26 Ann. 221; 26 Ann. 421; 28 Ann. 181.
    Every obligation is null that has been contracted on a potestative condition on the part of him who binds himself. C. O. Art. 2034.
    The object of the contract must be possible; and the possibility of it, must be determined by the nature of the thing which forms the object of it. C. C. Arts, 1891 and 1893.
    It is the right of the usufructuary of the marital portion, and one of her obligations (when she cannot give bond in such a case as this) with the consent of the owner or the authority of the judge, to have the money put out at interest; but it is no part of the duty of the executor to do so. He represents the heirs in the premises, and stands in their place and stead. It is not for him to determine whether she can give bond or not, or to limit her time for doing so. Non constat but that she may abandon or forfeit it. C C. Art. 563; 12 Ann. 885; 13 Ann. 143, 157.
    Testamentary executors, unlike administrators, primarily represent the heirs of the estate, who at any time may take the seizin from them on complying with the conditions proscribed in Article 1671 of the Civil Code, hence, without their consent and that of the usufructuary they could not put out at interest money belonging to the estate, under the conditions contemplated in Article 563 of the Civil Code, and even with their consent, they could only do so on the principle Consensus tollit leges,
    An executor is so immediately and completely the servant of the heirs, that even after his administration has expired, he is still bound to continue to defend suits commenced by or against him until the heirs appear or cause themselves to be represented. C. C. 1673, 1676 ; 2 Ann. 923; 4 Ann. 169 ; 13 Ann. 582
    Article 563 of the Civil Code, so far from imposing a duty on the executor having charge of the imperfect usufruct in such a case, merely confers a right on the usufructuary, which he may or may not exercise at his option; three modes of relief are allowed him, under the provisions of the Code; to give the bond; to give a special mortgage; and lastly, to have the money put out at interest, with the consent of the owner or the authority of the judge—the executor is no more obliged, to put out the money for the behoof of the usufructuary than he is to give the bond or the special mortgage. , C. C. 563-564; 13 Ann. 143, 157; 18 Ann. 601, and Samuels et al. vs. Brownlee et al. 36 Ann. Ho. 3, p. 233.
    There need be but two enquiries to determine the validity of the plea of “res adjudícala— what does the plaintiff ask.” On what cause does he base Ins demand ? If the judgment in one court be based on the same cause of action that had already been merged and absorbed in a judgment of another court of exclusive jurisdiction over the whole subject matter, the plea should be sustained. 29 Ann. 772.
   The opinion of the Court was delivered by

Fenner, J.

In 1854, in the district court for the parish of Bossier, plaintiff, as indigent widow of Benjamin L. Saunders, recovered a judgment for the marital portion allowed her under Art. 2382 of the Civil Code, in the following terms :

“In this case, by reason of the law and the evidence being in favor of plaintiff, on her claim for marital portion, it is ordered, adjudged and decreed, that the plaintiff, Hannah P. Gee, be decreed to have onenintli of the net proceeds of the estate of Benjamin L. Saunders in usufruct as a marital portion, and that she do have and recover of and from the defendant, Martha L. Saunders, wife of Louis T. Steele, $213.88, and from Mary Saunders, a minor, $225; and from Maria Saunders, wife of Algernon S. Bailey, $202.77; and from Louis T. Steele, tutor for James L. Saunders, $227.77; and from Joseph A., Berry, tutor for Edwin Campbell, Mary Campbell and Sarah Campbell, children of Francis J. Saunders, deceased, $200; and from Louis F. Steele, tutor of Thomas J. Saunders, $211; and from Louis F. Steele,tutor of Ann F. Saunders, $244; and from Louis F. Steele, administrator of the Succession of Benjamin F. Saunders, deceased, $225 ; all of said sums bear five per cent interest from date hereof; and it is further ordered, adjudged and decreed, that said plaintiff recover of George W. Thompson, executor of the last will and testament of Benjamin L. Saunders, one-nintli part of the net proceeds of all the property belonging to the succession of Benjamin L. Saunders, deceased, with five per cent per annum interest from final settlement of said succession, except the slaves partitioned to the heirs, all said sums of money exclusive of interest, to be held by said plaintiff in usufruct, according to law, as her marital portion of the succession of said Benjamin L. Saunders, and to return after her death to the heirs of said succession, now living or their proper representatives; and it is further ordered that said plaintiff, by reason of the law and the evidence being in favor of the defendants, on the claim for community, take nothing therefor.” R. p. 14, et seq.

The foregoing judgment was affirmed by this Court. 11 Ann. 657.

The present action is brought in the parish of Natchitoches, against G. W. Thompson individually.

Plaintiff, after setting forth the judgment, alleges substantially: That the amount of capital, to the usufruct of which she became entitled thereunder, was $3444 44; that she was unable to furnish the security required by law in order to receive possession of said fund; that G. W. Thompson, “in Ms individual right and capacity, toóle possession of said capital sum and used, operated a/nd controlled the same, and therefore contracted and obligated himself in writing and in various other ways to pay to her interest upon said capital sum and its earnings of interest, the sum of eight per cent annually from and after the first day of January, 1367;” that Thompson had made her numerous partial payments prior to 1874, but had made none since that date; that her judgment is not prescribed, because the succession of B. L. Saunders had never been finally settled; and further, because said judgment was not a “ money decree, inasmuch as no money was recoverable by execution under it against said succession, but same only recognizes and establishes a right, which is m the nature of a perpetuity and is therefore imperceptible.” She prays for judgment against Thompson personally for eight per cent annually from January 1,1856, and interest on each annual instalment of said interest, subject to such credits for partial payments as Thompson may have made.

Stripped of the numerous parasitic issues with which it has been encumbered by the ingenuity of couhsel, the case is a very simple one.

Defendant filed exceptions of want of jurisdiction, no cause of action. res judicata, prescription, and others not necessary to mention. All were overruled or referred to the merits.

It is obvious that the court of Natchitoches parish is incompetent to enforce a final judgment rendered by a court of Bossier parish, or to entertain a suit against a succession opened and pending in Bossier parish, or against an executor qualified in the latter parish and administering under its authority. Of course the learned counsel for plaintiff makes no such pretense. His suit rests upon the allegation of a personal contract between his client and defendant in his personal capacity, as set forth in the italicized portions of our foregoing statement of his petition. If this allegation is sustained by proof, his action has a foundation to rest on; if not so sustained, it must inevitably fall.

The allegation was that such contract had been made “in writing and in various other ways.”

Defendant demanded oyer of the written contract so alleged.

Plaintiff responded, admitting that said contract was not in writing, but was verbal only; but alleging that payments had been made under said agreement for which receipts were given, and that she relied upon said receipts as “written evidence” of said contract.

Waiving technical objections as to this mode of proving an alleged contract in writing, the question remains: Has the contract been proved at all 1

It is too plain for discussion that it has not been proved.

The plaintiff died during the pendency of the suit and her evidence js wanting. The only witness in support of the contract is her son. and heir, Charles G-. Gee. With the confusion of ideas not uncommon in witnesses as to what they know and what they only believe, he testifies quite formidably in chief; but under cross-examination it conclusively appears that he knows absolutely nothing on the subject and he himself admits that he has always said that he could not establish the contract. His evidence has not the slightest value even as a beginning or as an aid of proof.

The receipts might have been of value as support and corroboration of other proof of contract; but they are utterly insufficient by themselves to establish it.

None of them refer to any contract. Some of them are from G. W. Thompson, without mention of Ilia capacity; others are from “Thompson, dative testamentary executor,” etc. They are payments made at irregular intervals and in amounts bearing no apparent relation to any particular rate of interest. They all describe the payments as made for “interest on the judgment”, not on any contract. They establish nothing except the fact that Thompson did make such payments, but they wholly fail to prove that he had bound himself personally to make them, much less to continue to make them.

The only one remotely tending in that direction is receipt No. 11, and that is a receipt from “Geo. W. Thompson, dative testamentary executor of the last will of B. L. Samiders, deceased,” thus 'negativing his personal ability.

On the other hand, the record presents the positive testimony of defendant denying the existence of any such contract, parol or written, express or implied, and explaining circumstantially his whole action in the premises.

For these reasons we are compelled to reverse the judgment appealed from, which, however, is itself totally at variance with plaintiff’s alleged contract, being a judgment for five per cent interest per annum on $3444.85 from June 17, 1874, to October 10, 1883. This is not the enforcement of any contract proved or even alleged.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be and is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that plaintiff’s demand be rejected at her cost in both courts, without prejudice to her rights against the executor and heirs of Benjamin L. Saunders, deceased.

.Rehearing refused.


text:
    No. 9284.
    Lucius W. Miller & Co. vs. Their Creditors.
    An insolvent, wlio avers in his petition of surrender that he was carrying on his “business under a firm name of'his own “and Company”, will not be allowed to prove in a contest over an account presented by himself as syndic that ihe firm was composed of himself and another person. In such a case, creditors who dealt with him under his firm name can obtain no preference over creditors who had previously dealt with him under his individual name. Hence all his creditors are entitled to an equal participation in the distribution of bis assets.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Breaux & Ball for the Syndic, Appellant.

      Julms Aroni for Opponents and Appellees.
   The opinion, of the Court was delivered by

Poché, J.

L. W. Miller, the syndic in these insolvency proceedings, prosecutes this appeal from a judgment recognizing the opponent, Solomon Michelbacher, as a creditor on the account in which he had been ignored.

Appellant does not deny that the opponent is a creditor of L. W. Miller, but Ms contention is that the creditors of the firm of L. W. Miller & Co. must he preferred to the creditors of L. W. Miller individually.

The question presented on appeal involves the issue of the existence of any firm, or partnership distinct from L. W. Miller individually.

In the petition for surrender, L. W. Miller avers that he “is carrying on a commercial business in New Orleans under the commercial style of Lucius W. Miller & Co,” and in his affidavit attached to his schedule he states, among other similar matters, “that the above schedule contains a correct and, faithful statement of all the property I possess,” etc., etc. On trial he offered the testimony of a witness to prove that the latter had been bis partner from 1879 to 1881, and that no public notice had been given of the dissolution of the firm.

The evidence was admitted over opponent’s objections. It should have been rejected. The insolvent, who was subsequently chosen as syndic, having alleged and sworn that he alone composed the concern known under the commercial style of “L. W. Miller & Co.” should have been held to his judicial declarations, and should not have been permitted to prove a state of things entirely different from that set fortli in his pleadings. This rule of practice is elementary and need not be supported by authority at this stage of our jurisprudence.

It is true that Miller was carrying on his business under a firm name in direct contravention of a prohibitory law. R. S. 2668. But under the issue which we are considering, we have no concern with the legal consequences of his violation of that law. He surely could invoke no advantage therefrom; and it could create no preference in favor of creditors who dealt with him during his career under a false color, over those who had dealt with him previously under his own name and in his legitimate business. We have held that a party who had dealt with an offender under that provision of our law could not be allowed to repudiate a contract which he had entered into with the offender under the false color of being a member of the firm. Kent & Co. vs. Mojonier, 36 Ann. 259. For the purpose of this case, Miller, the insolvent, must be dealt with as a single individual carrying on the business of “L. W. Miller & Co.,” although the concern had been conducted under his name alone. Hence all his creditors must stand on the same footing. These are the conclusions reached by the district judge, notwithstanding the testimony which had been admitted in support of the existence of a lawful partnership; hence we find his decree correct.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9454.
    The State ex rel. New Orleans Gas Light Company vs. Wm. Voorhies, Judge Second City Court.
    A court which has no jurisdiction over a cause ratione material, exceeds the bounds of its authority when it issues therein an injunction.
    Such court has in such cases no power to entertain a rule for contempt for violation of such illegally issued injunction.
    ^PPLICATION for Prohibition.

      T. J. Semmes & Payne for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.


text:
    No. 9472.
    The State of Louisiana vs. A. Vianna.
    Where an accused does not ask for the appointment of an attorney to defend him nor inform the court that lie has one engaged, but announces that he is ready for trial, chooses to defend himself unaided, cross-examines the State’s witnesses and examines his own, and is convicted, he cannot obtain a new trial on the ground that his counsel was absent from sickness or other cause.
    APPEAL from the Criminal District Court for the Parish of Orleans. _ Baker, J.

      M. J. Cwmingham, Attorney G-eneral, and Lionel Adcvms, District Attorney, for the State, Appellee:
    1. Tho judgment will not be disturbed because of the absence, occasioned by sickness, of counsel for the defense, when the defendant at the trial, instead of asking for a continuance, announced that he was ready to be tried. State vs. Doyle, 36 Ann. 91.
    2. The action of the district judge in overruling an application for a new trial in a criminal case, will not be reviewed when no bill of exception is reserved thereto. State vs. Williams, 35 Ann. 742; State vs. Beldon, lb. 824; State vs. Jackson, lb. 770; State vs. Nelson, 32 Ann. 842.
    If. O. Castellanos for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of inflicting a wound less than mayhem, was sentenced to eighteen months hard labour, and has appealed. His sole reliance for reversal is the overruling a motion for a new trial made “ on the ground that he was unrepresented by counsel at the trial notwithstanding the fact that he had secured the services of counsel in due and proper time”, and the counsel thus employed, Mr. Castellanos, was at the time of the trial confined at home by illness and “sent word to that effect to the District Attorney by a well known member of the Bar.”

No such complaint was made by the defendant at the trial. No information was given the court that he had counsel engaged, or that he wanted any, and'if a prisoner does notask the court to assign him counsel but jirefers to defend himself, he has a right to do it. The court cannot be expected or required to thrust counsel upon an unwilling defendant, aud a statement in a motion for a new trial, viz that he was without counsel is no reason for reversal of a verdict. State v. Kelly, 25 Ann. 381.

There is no excuse here of ignorance or inaction, The defendant was not a silent spectator of his own trial. When arraigned on Feb. II, 1885 he pleaded not guilty. When called for trial two months later lie announced, he was ready. Ou the trial he cross-examined all the witnesses for the State except two, and examined his own witnesses, six in number. He had ample notice of trial. His case was first fixed for March 18th, notice thereof given and the list of jurors served on him. The State continued and fixed it again for April 1st when the same notices were served, and a third time for April 14th, when the trial was had. ,

He seems to have preferred to defend himself. Having thus chosen, he cannot complain of a conviction for want of counsel whom he might have had if he had desired.

Judgment affirmed.


text:
    No. 9460.
    The State of Louisiana vs. Philip W. Collens.
    Error in excluding testimony offered to contradict a witness who has testified that the confession of the accused was voluntary, is inconsequential when the excluded testimony was afterwards heard and went to the jury, and when the judge states that it could not have affected his ruling admitting the confession.
    In prosecution for embezzlement of funds of a foreign corporation, it is sufficient to prove the de facto existence of the corporation, and it is not essential to prove the law of the State under which it was incorporated and the conformity of the charter thereto.
    A statement by the judge that the charter received in evidence is “in due form,” must be held to refer to the form as supporting its admissibility and not to its sufficiency as proof.
    There is no error in the judge’s permitting to be read to the jury documentary evidence which had been duly offered and received in evidence, even after submission of case and delivery of the charge. The iury had the right to hear such evidence read, and might themselves have ashed it, even after retiring to deliberate.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      M. J. Omrnmgliam, Attorney General, for the State, Appellee:
    1. A confession, if proven to have been voluntarily made, is admissible in evidence.
    2. In an indictment for embezzlement, if the ownership of the property stolen is alleged to have been in a corporation, it is sufficient if its defacto existence is established. 2 Bish. Cr. Pro. § 752.

      Wm. 11. Whitaker and A. E. Billmgs for Defendant and Appellant:
    1. It must he shown to the court that a confession has been voluntarily made before it can be admitted in evidence. • The evidence to this point is preliminary, and addressed not to tbe jury but to the judge. It is competent for the defense to contradict the testimony of a witness for the State relative to the absence of inducements tending to influence a confession, while the sole issue before the court is the admissibility of the confession. The proper time for such contradiction is before the rendering of a decision of the question of admissibility. State vs. Helson, 3 Ann. 499; State vs. Peter, 14 Ann, 522; State vs. Garvey and Earle, 25 Ann. 193; same case, 28 Ann. 927; State vs. Johnson, 30 Ann. 882; State vs, Platte, 34 Ann. 1062; State vs. Molíase, 36 Ann. 921; Greenleaf Ev. § 219,
    2. ‘Where embezzlement be charged, it is necessary that the relations of principal and agent, as laid in the indictment, shall be established as laid, and it is equally necessary that the proof should be sufficiently responsive to the allegations to establish tho existence of the principal at the time of the alleged violation of the trust imposed. Cohen vs. People, 5 Parker Crim. Rep. 337; Com. vs. Atwood, 11 Mass. 11; TJ. S. vs. Howard, 3 Sumn. 12; XT. S. vs. Porter, 3 Hay, 283; John vs. The State, 24 Miss. 569; State vs. Clark, 3 Roster, 429; State vs. Hughes, 1 Swan, 262; State vs, Copp, 15 H. H. 212; State vs. Shoemaker, 7 Mo, 177; Morrison vs. State. 24 Miss. 36.
    3. In this case, it having been alleged that the principal was a corporation organized under the laws of the State of Georgia, the State should have introduced in evidence the laws of Geoigia to have given the jury opportunity to ascertain whether those laws had been complied with in the incorporation of the alleged principal. The weight and value of testimony upon this head were solely for the jury, and were not to be commented on by the trial court. Rev. Stat. 991; State vs, Washington et al., 30 Ann. 49; State vs. As-berry, 36 Ann. —, (2sT. R).
    4. After the delivery of the charge of the court to the jurj', it was too late to permit the reading of hitherto unread evidence for the prosecution. 8 Geo. 173; 37 Tex. R. 121; State vs. Colbert, 29 Ann. 715.
   The opinion of the Court was delivered by

Fenner, J.

This case is before us on three bills of exceptions, viz:

1. A written confession of the defendant was offered in evidence.

The prosecuting witness was put upon the stand to prove its verity and that it was made voluntarily. He was then interrogated by defendant’s counsel as to whether he had not stated to the brother of defendant that he had promised defendant if he would make the statement he should not be prosecuted. The witness having denied this, the brother was offered,as a witness to contradict him; but the court refused to permit the brother to testify and admitted the confession— to which refusal and admission the bill is taken.

Inasmuch as the testimony of the brother was afterwards received and went to the jury, we do not see how the defendant was harmed.

So far as the jury was concerned, he had the full benefit of it.

So far as the judge was concerned, as to whom alone its reception at that moment was of importance as influencing his ruling on the admission of the confession, he informs us in the bill it would not have influenced his ruling; and that, notwithstanding the brother’s testimony, he believed the evidence of the confession was admissible.

So inconsequential an error would not justify our interference.

2. The prosecution was for embezzlement of funds belonging to a corporation chartered under the laws of Georgia—the Southern Express Company. The charter of the company, duly authenticated, had been offered and received in evidence without objection. After the court had made its charge-to the jury, counsel for defendant requested the court to give the following special charge: “In order to convict the accused, the State must have proved that the Southern- Express Company was duly incorporated under the law of the State of Georgia, and such law must be established by the production of an official copy of the statutes of that State or by a certified copy of the act under seal of the State.”

The judge refused this charge, holding that he had sufficiently stated the law in his original charge wherein he had instructed the jury that “they must be convinced of the corporate existence of the Southern Express Co.”

We think it very clear that the special charge involved more than the law required; for it is well settled that, in matters of theft or embezzlement of property of corporations, it is sufficient to establish the defacto existence of the corporation. 2 Bishop, Cr. Proc. § 752; People vs. Barrie, 49 Cal. 342; Smith vs. State, 28 Ind. 321.

In stating his refusal, the judge further said that the charter of Southern Express Co. had been admitted in evidence without objection and that it was in due form and that if it had not been, the court would not have permitted it to have been filed.”

This statement was also objected to on the ground that it trenched on the province of the jury to determine the sufficiency of the evidence. We do not understand such to have been the effect of the statement. It obviously refers merely to tlie/orm of the evidence as justifying its admission—not to its weight as proof.

Finally, counsel for defendant having suggested that the charter and accompanying certificates had not been read to the jury, the court permitted them then to be read to the jury. This was objeeted to on the ground that the evidence liad been closed, the charge delivered and said reading was out of time and illegal. Had new evidence been received, the objection might have had force; but we can perceive no possible objection to reading to the jury documentary evidence which had been seasonably offered and received at any time. It gave the jury no information to which they were not entitled, and even after retiring, the jury might have returned into court and requested that the evidence might be read over to them.

We discover no error in the ruling of the judge.

Judgment affirmed.

Rehearing re fused.


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

text:
    No. 9472.
    The State ex rel. P. J. Martin vs. H. L. Lazarus, Judge of Civil District Court for Parish of Orleans, Division E.
    1. The failure of a district judge to decide a cause within five months after its submission, amounts to a denial of justice.
    3. A mandamus will issue in such a case, to coerce a decision of the suit.
    3. The delay is unreasonable and furnishes good cause of complaint.
    PPLICATION for Mandamus.

      Thos. J. Semmes for the Relator.
    Respondent Judge m propria persona.

   The opinion of the Court was delivered, by

Bermudez, C. J.

This is an application for a mcundamus to coerce the decision of a cause ou its merits.

The complaint is that, though the case was tried, argued and submitted two years ago and though the district judge has been often requested and has frequently promised to pass upon the same, no decision has, afe yet, been rendered and that the delay thus occasioned amounts to a refusal to determine the controversy, and that this is a denial of justice.

The relator avers that although the facts involved may be numerous and complicated, yet the questions of law presented are few and simple; that the parties have, with a view to assist the judge in his examination and determination of the matters presented, in the year 1883 and in the beginning of 1884, submitted elaborate printed briefs containing references to the most important portions of the testimony.

He urges that he is seventy-seven years of age and fears that death will overtake him, before the cause is decided, if the future may be judged of by the past; that his death may seriously affect the vigorous prosecution of the cause and that he believes that it is important to his interests that the same be promptly decided.

The district judge, in elaborate return, represents the case as one of great complication and difficulty, requiring unusual consideration for determination. He says that the suit was brought in 1874, that it passed from one court to another, by operation of law; that the accounts involved were referred for investigation and report to experts and to an umpire; that the parties litigant disagreed; that the record is immense and that the whole responsibility of determining the-issues presented rests on Mm; that the cause was not actually submitted until November, 1884, since when he has diligently applied himself to the examination and study of the accounts, testimony and reports in the case; that there are grave and important legal propositions involved which counsel for plaintiff did not discuss and in which they have, in no manner, aided the court by reference to authorities; that he has used every effort and made every endeavor to reach a prompt decision in the cause; that he was in the active preparation of his opinion in the case; and, without stating now within what time specifically the cause is to be decided, respondent informs this Court that a decision will be rendered before the close of the present term, which means July 3d, next.

Tiie district judge charges that the statement in relator’s petition, that the delay operates a denial of justice is malicious, false and untrue and that whatever delay is incident to a prompt decision of this cause, results from the plaintiff’s action.

The case is strongly presented by both the relator and the respondent; but there can be no doubt that, under the law and under the showing of the district judge, the complaint is not without just foundation.

The right of this Court, in a proper case, to issue the writ cannot be questioned.

The Code of Practice is explicit to the effect, that the writ issues when the judges of inferior courts are guilty of a denial of justice, “ or of unreasonable delay in pronouncing judgment on causes before them.” C. P. 838,

Up to recently it was not so easy to determine what the Code meant by u unreasonable delay, but the last legislature appears to have construed it to signify thirty days. V. Act 72, p. 94 of ! 884.

Whatever be the standpoint from which, either article C. P. 838 or the Act of 1884 or both, be considered, it is clear that the district judge has had more than ample time to investigate the case and to render a conscientious judgment in it.

Prom the return made, it appears that the cause was submitted at least in November, 1884, if not before, that is, upwards of five months, or a period exceeding four times the delay within which the act of 1884 designs cases to be determined.

It is apparent that, had this cause been tried and argued before and submitted to a special jury two years ago, when the oral argument in it was closed, it would, long ago, have been disposed of.

The relator has presented a clear bona fide case in point of fact, in which it appears that tho respondent has failed to comply with a duty unequivocally imposed upon him by law.

Under the circumstances, we are loft no discretion and must allow the relief sought.

It is, therefore, ordered and decreed, that the alternative mandamus issued be made peremptory and that the respondent be commanded to decide the cause, described in the petition without further delay.

Concurring Opinion.

Poché, J.

In addition to the reasons contained in the opinion prepared by the Chief Justice, I think that the following considerations have a strong bearing in favor of the conclusions reached and announced herein.

It is admitted that the cause of the relator has been under submission at least since January, 1884, and that it had been preceded by a full hearing of the evidence and exhaustive oral argument by counsel of both sides. The judge, who had all tho evidence before him, was not compelled to postpone his examination of tho case until counsel had filed briefs.

But the respondent judge says in his answer that he has reached a conclusion in the case, and that he is engaged in the preparation of his opinion therein. Hence, there is no force in the suggestion that under the effect of our mandamus, his judicial discretion may be jeopardized, or that he may thereby be compelled to decide the case at haphazard. While the exercise of tho remedial and supervisory powers vested by law in this Court may and does often act as coercive on the judicial functions of judges of inferior tribunals, it is not true in law or in fact that the exercise of these powers has a tendency to abridge or im pair the dignity of judges who are compelled by law to obey the mandates of their superiors, under the constitution and the laws of the State.

This feature of jurisprudence is not absolutely hovel, and its application must create no alarm to the present members of the judiciary.In the case of Life Ins. Co. vs. Adams, 9 Peters 605, C. J. Marshall said: “Though the Supreme Court will not order an inferior tribunal to render judgment for or against either party, it will, in a proper case, order such court to proceed to judgment.” The same views have prevailed in our court. State vs. Judge, 14 La. 483; State vs. Judge, 4 Rob. 51.

The relative position and the respective authority of the different courts created under the constitution have been fully considered by the law-maker, who contemplates perfect harmony in the system, and who expects that the inferior shall obey the lawful mandates of the superior. Constitution, art. 90.

Under the provisions of the law applying thereto, and under the issue presented by the pleadings, the plain and sole duty of this Court was to ascertain the nature of relator’s complaint and to grant the remedy provided by law, without reference to ulterior consequences. It will be time to consider these when relator complains of the unjustifiable disobedience of the respondent, if such be ever the case.

Dissenting Opinion.

Fenner, J.

I am at an utter loss to understand what practical result is to flow from our mandate in this case.

The respondent judge, in his answer, informs us that the case in reference to which our interference is invoked, although held under advisement for an unusual length of time, is one involving complicated facts, a vast record, and numerous and difficult questions pf law. Far from refusing to decide it, he tells us that he is and has been actively engaged in its study and investigation, and will decide it as soon as he has completed the examination and reached a conclusion, which, he believes, will be before the adjournment of the court. In confirmation of this statement he has exhibited to this Court the huge record which filled up no inconsiderable portion of the private office of the clerk.

What more, I would ask, can our mandamus require of him than what he is doing and proposes to do? Is it to be supposed that, when our mandate reaches him, he is to decide the case out of hand, whether he lias reached a conclusion or not? Shall he toss up a penny and give judgment for plaintiff or defendant, as chance may determine?

When we are called upon to enforce our mandamus by process for contempt, what shall we do, if he makes then the same return which he makes now? Shall we fine or imprison a judge for nob deciding when he tells us that notwithstanding due diligence, his mind has not yet reached a conclusion as to how he should decide?

In my view, the judicial function is the most sacred of all the trusts confided to man. It involves something more than a mere exercise of the will. Its exercise requires conviction of the mind and satisfaction of the conscience. The power is not lodged in legislatures or supreme courts to dictate to the judicial mind, “Be convinced,” to the judicial conscience, “Be satisfied”; and that judge would be unworthy of his office, who, without a mind convinced and a conscience satisfied, would, under any compulsion, decide upon the controverted rights of his fellow-citizens submitted to him under the solemn sanction of his official oath.

’When a mandamus lias been made peremptory commanding an inferior judge to decide a case without further delay and he disobeys or fails to obey that mandate, the Supreme Court will order the recalcitrant judge to be arrested and imprisoned until he has obeyed its mandate.

From the very nature of things it is evident that the act of the legislature referred to is an unwarrantable encroachment of the legislative upon the judicial power and is mere brutwn†ulmén, in so far, at least, as specific performance of the duty imposed of deciding within thirty days is concerned. Whether the penalty denounced, or other proper penalties for dilatoriness in the discharge of judicial duty may be enforced or not, is a question not before us.

It is equally clear that such a case as the one here presented is not within the contemplation of the provision of Art. 838 of the Cede of Practice.

That provision obviously refers to wilful acts of a judge, such as a refusal to decide or a failure to take up a cause for consideration with a view to decision or to cases in which the delay is obviously unnecessary and not in good faith. In such a case he might be ordered to consider and determine the cause, certainly never to d.ecide without considering.

When, as in this case, we find the judge engaged in the active consideration of the cause with a view to speedy decision, it does seem to me that we exercise an unwarranted interference when we assume to order him peremptorily to decide forthwith.

For these reasons, I most earnestly dissent from the opinion and decree herein.

Manning, J.

Our mandate to the respondent judge to decide without further delay the cause wherein the relator is plaintiff and R. P. Aldige and Jules Aldige are defendants having been sent down and not having been obeyed, the relator has moved that the judge shew cause why an order of arrest and imprisonment should not issue thereon.

The judge answering disclaims that his non-decision of the cause is due to contempt of the authority of the court or to any desire to disobey or evade its mandate, and avers that he construed it to mean that he should examine the cause with all possible diligence and decide it according to the law and the evidence. He states that he has been “faithfully engaged in the preparation of his opinion every spare moment of his time for a long period prior to the application for a mandamus, and that as soon as he can finish this opinion, which will probably be in the course of the following week, he will render judgment as required in the mandate.” If however he has misconstrued our mandate he begs that we will instruct him what judgment he shall render.

It is beyond our province to instruct or our power to command what judgment shall be rendered in the suit at its present stage. We can only order him to proceed to judgment. We have done that, and the Code of Practice directs “if lie does not obey, an order of arrest shall issue and he shall be imprisoned until he has rendered obedience.” art. 843.

The terms of the article imply that all the reasons of the judge for his non-decision of the cause shall have been heard and passed on when the mandamus was made peremptory, for the language is imperative, “if his answer is considered insufficient, then a peremptory mandate shall issue” and the penalty of his disobedience shall be arrest and imprisonment.

Therefore the reasons now given for disobedience are merely those given or which should have been given why our peremptory mandate should not issue. That matter is closed and our decree rendered thereon was unambiguous and not difficult to be construed.

The application for the mandamus was made on f he fifth of the present month. It is now the twenty ninth and this term of our court must end to-morrow. We had hoped that as the respondent had been preparing his opinion long before the application for the writ was made, we should have had the satisfaction of knowing that its completion and the rendition of a judgmeutin the cause had relieved us of performing a disagreeable duty.

The law has given the relator the remedy now invoked by him and it has very distinctly and directly imposed on us the obligation to apply it. We have nothing to do with its reasonableness or unreasonableness.

Since however the respondent informs us that he will probably be ready to decide the cause within next week, we shall suspend the execution of the order for his imprisonment for one week from to day.

It is therefore ordered and decreed that the respondent Henry L. Lazarus be arrested and imprisoned in the jail of this parish until he lias obeyed the mandate of this court heretofore issued to him iu the proceedings for a mandamus in this cause. And it is further ordered that the execution of this decree is suspended for one week from this day, that is to say .this suspension expires with Friday the 5th. day of June next.

Dissenting Oeinion.

Fenner, J.

While I adhere strenuously to the views expressed in my dissenting opinion in this case, yet, as the decree therein rendered has now become final, it might be my duty to join in its enforcement; and if I were satisfied that the mandate of this Court had been willfully disobeyed, I should perhaps be bound to concur in inflicting the penalties imposed by law.

But when, in answer to this rule for his attachment, the respondent judge appears at our bar and, respectfully purging himself of all intentional disrespect, contempt or disobedience, declares that he is making all possible efforts to comply with bur order, that he has been diligently studying the questions involved in the case which he is ordered to decide and maturing his conclusions thereon, with a view to render speedy judgment, as he expects to be able to do within the ensuing week, I fail to discover such disobedience of our mandate as is contemplated by art. 843 of the Code of Practice, and find no warrant of law justifying us in proceeding, under these circumstances and at this time, to the harsh remedy of imprisonment.

If a court had issued a mandate ordering a party to remove a house forthwith, it would scarcely be deemed a punishable disobedience if the party -was engaged in tearing down the house with a view to its removal. It is surely not more necessary to tear down a house before removing it, than it is for a judge to investigate the facts and consider the law of a case before deciding it.

Therefore, accepting the return of the judge as true, I consider that he is obeying instead of disobeying the mandate of this Court, under the only reasonable construction that can be placed upon it.

The contingency, therefore, for the issuance of an attachment, provided by law, has not, under my view, arisen.

The consideration due to the official character of respondent should prompt us to accept without reserve the sincerity of his assurances that he is making due efforts to comply with our ordei’, and will do so as soon as practicable and within a reasonable delay. I cannot see the necessity or propriety of issuing an order of attachment, even under a suspensive condition.

Tlie powers of control over the action of inferior judges confided to this Court are of a very grave and delicate character, and should be exercised only with the most scrupulous caution and respect for their rights and privileges, and for the dignity of their office. And particularly should the derogatory penalty of imprisonment be avoided, unless absolutely essential to punish wilful contempt or persistent denial of' justice.

In this case, a judgment final at anytime before the adjournment of his court in July will accomplish all the necessities of justice and enable the inevitable appeal to reach us at the earliest possible return-day, viz: in November next.

Believing, in accordance with his sworn return, that respondent is honestly striving to perform his duty under our mandate, and will seasonably comply with it, I see no necessity for the harsh proceeding invoked. While I shall ever be ready to vindicate with emphasis the just authority of this Court, I most respectfully dissent from the conclusion of the majority of the judges that this case, as now presented, is a proper one for resort to the unprecedented remedy of imprisonment of a judge.

I, therefore, dissent from the opinion and decree herein.


text:
    No. 9485.
    The State ex rel. G. W. Edwards et al. vs. The Criminal Sheriff et al.
    In an application for a writ of habeas corpus, based on tbe alleged want of jurisdiction of a court to take cognizance of a charge of grand larceny—tbe affidavit charging that the crime was committed within the jurisdiction of the court; and the fact that alleged stolen goods were found in the possession of the accused, will be considered as showing prima facie jurisdiction in the court, thus throwing the burden of proving the reverse on the relator.

      \ PPLICATION for Habeas Corpus.

      J. M. Pratt for the Relators.
   The opinion of the Court was delivered by

Poché, J.

The relators complain that they are illegally detained in custody under a mittimus emanating from the second municipal court of New Orleans, charging them with the crime of grand larceny, alleged to have been committed within the jurisdiction of said court, and that from the evidence taken at the preliminary examination of said charge, it appears that the offense charged to them was committed on a British vessel, on which they were employed as seamen, at the port of Kingston, Jamaica, a British possession.

Their proceeding, therefore, involves the question of jurisdiction of the courts of Louisiana over the charge preferred against them. The prosecution began by an affidavit of the captain of the steamer, charging that the offense was committed by the relators on the vessel while she was at her mooring in the Mississippi river at the foot of Toulouse street in this city, and, therefore, within the jurisdiction of the Second Recorder’s Court of the city of New Orleans.

The record of the preliminary examination, introduced here by relators themselves, shows that the stolen goods, consisting of a number of razors, of shawls, packages of thread and of certain cooking utensils, were found in the possession of relators in this city.

Hence, it appears that the recorder’s court had prima facie jurisdiction of the charge, and that the burden was on relators to destroy that presumption.

This is conceded by their counsel, who claims that the record does contain sufficient evidence to that end, contained in the testimony of one of the State witnesses.

The statements of that witness, who is one of the sailors on the vessel, are in this connection, that while the steamer was lying at the port of Kingston, Jamaica, he saw two of the relators herein break open the case of razors, and that is all.

He does not state that he then and there saw the two men in question or the four others, or either of them take any goods out of the broken case— or that he saw at any other time and place, either of the accused take any of the other stolen goods which were found in their possession in this city, and unaccounted for by them.

It stands to reason that the testimony invoked by counsel, falls very far short of its intended effect, especially in a proceeding which does not debar relators of their right to plead to the jurisdiction of the court in which they may be subsequently indicted, and of other means of defense growing out of the alleged want of jurisdiction of the courts of Louisiana in the premises.

Under the present application, we cannot entertain relators’ complaint of the alleged dilatoriness of the district attorney, who has, as yet, taken no steps to have them indicted and tried. If it should be that they are thus deprived of their right to a speedy trial, the writ of habeas corpus is surely not the proper remedy for suoli a grievance. Hon constat that these same relators may not, at some future day, complain before us of the refusal of delay by the trial judge.

Our conclusion is that they have failed to establish any claim to be enlarged by means of a writ of habeas corpus.

It is, therefore, ordered that the writ of habeas corpus herein applied for be denied, and that the relators be remanded to custody for further proceedings according to law.


text:
    No. 9456.
    The State of Louisiana vs. William Hannibal.
    The charge to a jury in a criminal case must be taken as a whole. Isolated parts if objectionable may be controlled by other expressions and all taken together may be good law. It is not error to charge a jury that they could safely accept the law from the judge. The judge might have put it stronger and have charged that it was the jury’s duty to accept it.
    APPEAL from the Twenty-Second District Court, Parish of St. James. Duffel, J.

      J. D. Gaudet, District Attorney, and M. J. Cunningham, Attorney General, for the State, Appellee.

      JBobt. G, Dugué for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant appeals from a sentence to hard labour for life rendered on a conviction of murder without capital punishment, and relies for reversal on an exception to the lower judge’s charge.

The recital in the bill is as follows;—■

In my charge to the jury, I said : Gentlemen, you are the judges of the facts, also of the law as expounded by me, and which you are to apply to the facts proven. You are not compelled to follow my instructions, because you are at liberty to interpret the law yourselves. But you must not arbitrarily disregard my instructions.

However, if you are convinced they are wrong, and that you know the law better than I do, it is your right to follow your own conscientious convictions. It is safe for you to regard my explanation of the lam, for if I am mistaken the accused will home his remedy by bills of exception and appeal

The objection of the prisoner affects only the last sentence and consists in this, that it was a doubtful case, there having been two inistrials, and the remark of the judge tended to dispel any conscientious scruples tlie jury might have against a conviction and to induce them to wash their hands of the consequences of their verdict.

The sentence excepted -to is only a part of the charge. The -whole must be considered, and in another part the judge told the jury if they entertained a reasonable doubt of the guilt of the accused they must acquit him, that the State must make' out a clear and conclusive case and that she would prefer to see ten guilty persons escape punishment rather than one innocent man should suffer.

If there was any tendency to dispel the jury’s conscientious convictions and to invite a verdict of guilty by the sentence objected to, they were amply warned that the State did not desire a conviction where there was a reasonable doubt of guilt. The charge as a whole is not amenable to objection by even the most critical, but in truth the sentence that is obnoxious to the defendant is of itself and by itself not ground of complaint. It is not error to tell the jury it was safe for them to regard the judge’s explanation of the law and the reason of it. He might have gone further and instead have told them it was their duty to accept the law as expounded by him and to apply it to the facts of the case.

Judgment affirmed.


text:
    No. 9416.
    John W. Black, Syndic, vs. Nelson McStea.
    Ia a suit by the syndic of an insolvent for the purpose of annulling a contract alleged to operate an unjust preference in favor of one creditor over the others, the value of the property pledged or transferred is the test of the jurisdiction of the appellate court.
    If tho amount of the security sought to he recovered by the syndic does not exceed $2000, the Supreme Court is without jurisdiction.
    APPEAL from the Civil District Court for the Parish of Orleans. JRiglvtor, J.

      W. S. Benedict, Jos, P. JJornor and F. W. Baker for Plaintiff and Appellant.

      T. Gilmore & Sons for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

The object of this suit is to cancel and avoid a contract of pledge through which, it is alleged, the insolvent firm of Edward Pillsbury’s Sons gave an unjust preference to the defendant, to whom they were indebted in the sum of $4269 86, over their other creditors.

The property pledged consisted of certain stock of the alleged par value of $2000. Plaintiff appeals from an adverse judgment; defendant suggests our want of jurisdiction ratione materia.

The legal effect of our judgment under the pleadings would be to maintain or to cancel the contract complained of, and could not therefore affect either party in a sum exceeding two thousand dollars, exclusive of interests and costs.

Defendant’s claim against the insolvents could not be involved in its intrinsic merits in any judgment which could he rendered in this suit. His security alone, not exceeding two thousand dollars, could he wrested from him in the event of the reversal of the judgment appealed from.

It follows, therefore, that the matter in dispute does not amount to the lower limit of our jurisdiction.

The appeal herein taken is, therefore, dismissed at appellant’s costs.