author: Poohé, J.

text:
    No. 8851.
    Lafayette Folger vs. E. C. Palmer.
    The judicial declaration hy the president of a bank, that a certain note is the property of his bank, will estop the same party from subsequently claiming that he was then the owner of the same note.
    PPEAL from tlie Civil District Court for tlie Parish of Monroe, J.

      Brecmx & Hall for Plaintiff and Appellee:
    The president of a bank who, in suing upon a note, avers that the paper sued on belongs to the bank, is bound individually by the averment and cannot thereafter gainsay it. Farrar vs. Stacey, 2 An. 211; Taylor vs Normand, Adm’r, 12 Rob. 241 ? Osborn vs. Legras, 29 An. 293; Denton vs. Erwin, 2 An. 22; Gridley vs. Conner, 4 An. 416; Greenleaf on Evidence, §22.
    Even the State has been held estopped by its averments. State vs. Taylor, 28 An. 460; State ex rel. Morgan, 28 An. 121.
    A party will not be permitted to contradict the statements made by him in a former litigation between the same parties.
    Execution will not be enjoined on a claim which could havebeen, but was not pleaded in compensation. Donnel vs. Parrot, 13 An. 253; Thomas vs. Bourgcot, 6 Rob. 436; Hennen's Digest, Injunction II (b 2) 19.
    Article 393, O. P., inflicts the penalty for not pleading compensation.
    - Blanc & Butler for Defendant and Appellant:
    The averment in the petition of the Louisiana Savings Bank and Safe Deposit Company, in its suit against Folger, that it was holder and owner of the §3200 note, pleaded in compensation hyPalmer in this suit, was the averment of the Bank and not of its President; and, therefore, does nob estop him from asserting his individual title to said note, in another suit.1
    If it was the averment of Palmer, it was made by him in his representative capacity, as President of the Bank, and cannot be held to estop him from afterwards asserting his individual title to the note. Bigelow on Estoppel, pp. 45, 274, and cases cited.
    Palmer’s testimony, in a former litigation with Folger, does not contradict his averments in this suit; and, therefore, cannot be held to constitute an estoppel.
    Palmer’s failure to assert title to the note in a former suit was not necessary, as title to the note was not a proper issue in that' case.
    Where issues have' been joined between tbe parties to a suit, and the defendant subsequently acquires a claim against the plaintiff, which is equally liquidated with the demand sued on, and is past due, the defendant does not, by suffering judgment to go against him in the original suitKwithout pleading such claim in compensation, lose any of his rights against the plaintiff, except that he must bring his action before the'eourt within whose jurisdiction'tlie plaintiff has his domicil. C. P. Aft. 373.
   The opinion of the Court was delivered by

Poohé, J.

Defendant enjoins the execution of a judgment rendered against him in favor of plaintiff, on the ground that, in April, 1879, he acquired the ownership of a note due by plaintiff, which, as far as its amount goes, compensates the claim and judgment sought to be enforced against him.

His petition for injunction was met by a plea of estoppel, urging that in June, 1879, the defendant, as President of the Louisiana Savings Bank, had brought suit against Folger on the same note, which was then alleged to be the property of said Bank; urging further, that in his testimony in another suit of plaintiff .against him, the defendant had stated that said note was the property of the Bank.

The plea of estoppel was maintained in the District Court, the evidence offered by defendant for the purpose of proving his ownership of the note was rejected, and judgment was rendered dissolving his injunction, and he has appealed.

We are satisfied from the record that the suit' of the Bank against Folger was brought with the full 'knowledge and consent of its president, the defendant herein, that he was called in warranty in that suit by plaintiff Folger, and that he did not then set up his alleged ownership of the note, and that in his testimony in another suit he unmistakably recognized the ownership of the Bank in said note. -

Our j urisprudence has uniformly recognized and enforced the wise and salutary doctrine, which firmly binds a party to'his judicial declarations, 'and forbids him from subsequently contradicting his' statements thus made. Farrar vs. Stacy, 2 An. 211; Gridley vs. Conner, 4 An. 416; Durham vs. Williams, 32 An. 962; Gilmore vs. O’Neal, 32 An. 979; Dickson vs. Dickson, 33 An. 1370.

The doctrine is so firmly sanctioned, bothby ..reason and justice, that our courts have unhesitatingly extended its operation to'the State itself. State vs. Taylor, 28 An. 460; State ex rel. Morgan, 28 An. 121; State vs. Ober, 34 An. 360.

Under the state of facts shown by the record, tested under the well established rule referred to, defendant is clearly es.topped from denying the ownership of his Bank in'the note which is yet.on file in the suit of the Bank against Folger. ' ,.. .

But he contends that he is not bound by his judicial declaration in the suit of the'Bank,' because it was made in his official capacity of president, and that he now sues in his individual capacity.

Admitting .the correctness of the rule which he invokes,that he'is not bound in his individual capacity by declarations made in his representative capacity,' we can hardly conceive that it could affect the declaration made by him in his testimony referred to, from which we glean the following statement, referring to the note in .question : I have a note now of Mr. Folger’s, or rather the Banlc has.”'

But the rule invoked finds no. countenance in our jurisprudence.

In the ease of Farrar vs. Stacy, 2 An. 211, this Court held: “ allegations in a petition signed by one as the attorney of a third person, inconsistent with claims set up by him in an action in his own name, commenced on the same day, will estop him from recovering.”

In Osborn vs. Legras, 29 An. 293, a party who had, as Judge, rendered a definitive judgment, was not permitted subsequently to invoke the nullity of such judgment, for want of jurisdiction in the court over which he then presided.

We find no error in the conclusions reached by the District Judge.

J udgment affirmed.

Fenner, J., recused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8922.
    The State of Louisiana ex rel. V. Baumgarden vs. W. T. Houston, Judge, etc.
    A mandamus lies to compel the granting of a suspensive appeal from an order directing fcKo delivery of a bank box, said to contain effects of a value exceeding one thousand dollars* The delivery might occasion an irreparable injury.
    On an application for the remedy, the appellate court cannot pass upon the correctness of the order of delivery.
    APPLICATION for Mandamus.

      J. Ad. Hosier, V. J. Hosier and L. L. Levy for the Relator.

      W. B. Koonts and T. Gilmore <& Sons for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the granting of a suspensive appeal from a decree made, directing the delivery to certain executors of a Bank Box, alleged to contain valuables estimated at $40,000, three-fourths whereof the relators claim to own.

The District Judge returns that his judgment is correct, and takes pains to establish that it is so.

With the correctness of that judgment we have no concern presently.

The question now before us is simply:

Whether a suspensive appeal lies from such a decree.

It is manifest that the execution of such an order may cause the relators an irreparable injury. The executors have given no bond, and even if they had, legal steps might be necessary for the assertion and vindication of the alleged rights of the relators in and to the effects said to be contained in the Box. 2 R. 342; 12 An. 455; 14 An. 57.

It is ciaimed, and not denied, that the contents of that Box belong to the successions of Nicholas A. Baumgarden and of Theresa Baumgarden, the father and mother of the relators, and whose only heirs they are in common with a fourth child, who is a minor. The relators are then the owners of three-fourths of those contents, and oven if they cannot now claim possession of their proportion in the half accruing to the succession of their mother, whom the executors represent, they are by law seized of that proportion in the half belonging to the succession of their father, which is not represented by those executors or any others.

• A succession is acquired by the legal heir immediately upon the death of the person whom he succeeds, by operation of law, before he has taken any step to put himself in possession or expressed any will to accept. The right of possession which the deceased had continues in the heir as if there had been no interruption and independent of the fact of possession. R. C. C. 940, 941, 942.

The relators have alleged an interest which would entitle even third persons to an appeal. No sufficient reason is shown why the relief sought by them should not be allowed.

We can pass upon the correctness of the order complained of, only when it will be properly before us for review.

The alternative mandamus is made peremptory, with costs.


text:
    No. 8545.
    The City of New Orleans vs. Ernst & Co.
    Persons engaged in rice milling are manufacturera, and as sucli are exempt from license under Article 206 of the Constitution.
    ApPEAL from the First City Court of New Orleans. SMnner, J.
    . J. Ward Gurley, Jr. and II. G. Morgan for Plaintiff and Appellant.

      W. B. Koonls for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The City appeals from a judgment' relieving the defendants from payment of a license claimed of themfor carrying on the rice milling business.

The judgment rests on the defense of exemption set up under Articles 206 and 207 of the Constitution in force.

Those articles exempt from a license, all manufacturers, except those engaged in the manufacture of alcoholic or malt liquors, tobacco, cigars and cotton seed oil, and shield from taxation all property employed in the manufacture of specified articles, among which is mentioned flour.

A manufacturer is defined to be : one who is engaged in the business of working raw materials into wares suitable for use, who gives new shapes, new qualities, new combinations to matter which has already gone through some artificial process. A manufacturer prepares the original substance for use in different forms. He makes to sell, and stands between the original producer and the dealer, or first consumers, depending for his profit on the labor which he bestows on the raw material. 34 An. 597.

Rice is an agricultural product, extensively raised in this State. The milling of it is effected by different processes, during which it passes from its original roughness to conditions in which it is fit for different uses. Deprived of its outer shell, and of the silica enveloping the denuded grain, it becomes an object of marketable value. It is only after several munipulations that various. substances or products are obtained, which are: the hull, the bran, the flour, the red grain and, finally, the cleaned and polished kernel, all of which become separate and distinct articles of commerce.

It is not easy to distinguish between the several processes to which rice is subjected by the manufacturer, who, from beginning to end, works it up into various forms for use. It may be said to undergo one and the same process throughout. Even if a distinction could be realized, the working of the raw material is accomplished continuously. The person who puts it through the process gives to it gradually new shapes, new qualities, new combinations, and thus is a manufacturer within the intent and scope, the spirit and letter of the constitutional immunity.

The Constitution apparently considers that one whose property is employed in the manufacture of flour, is a man ufacturer, for it exempts property thus used from taxation and license. Art. 207.

If one who transforms wheat into flour be a manufacturer, there is no reason, perceptible to us, why one who transforms a like grain (rice) into flour and in various other shapes, should not likewise be deemed a manufacturer, and as such embraced within the exoneration.

The Constitution clearly exempts all manufacturers not excepted. The excepted ones are: those who manufacture alcoholic or malt liquors, tobacco and cigars and cotton seed oil. As the defendants do not come within the exclusion, it is manifest that the license claimed cannot be recovered.

Finding no error in the judgment appealed from, it is affirmed with costs.


author: , Poché, J.

text:
    No. 8700.
    Widow Louise Bouligny et al. vs. Albert C. Janin et als.
    An act in which a party stipulates to make a donation inter vivos to a married woman, of a part interest of the donor's claim to lands' left by his and the donee’s common ancestor, on condition that the donee’s husband shall undertake, at his exclusive trouble and expense, the recovery of all the lands claimed under the common ancestor, with the stipulation that the donee will he put in possession as soon as the donor is recognized as the owner of the lands, is really and in law a contract of mandate under which the husband agrees to take the steps necessary to the recovery of the lands, accepting as his compensation in case of success, a part interest in said lands to enure to the benefit of his wife.
    His wife and her heirs cannot rooover from the so called donor, if her husband failed to execute the suspensive condition of his contract. The nullity of such contract, as a consequence of the failure of the suspensive condition, can be urged as a means of defense by • the donor or his heirs.
    APPEAL from tlie Civil District Court for tlie Parish-of Orleaus. Monroe, J.

      Albert Voorhies for Plaintiffs and Appellants.
    J. H. Stauffer, Jr. for Defendant and Appellee.
   The opinion of the Court was delivered by

, Poché, J.

The following facts have given rise to this litigation: Plaintiffs’ ancestor, Bernard Dauterive, laid claims to several valuable tracts of land in this State, under grants antedating the cession of Louisiana to the United States Government.

' In the years 1835 and 1836, several of his grandchildren began to agitate the question of their title to said lands, and with a view to. concentrate their efforts in that direction, they entrusted their interests to Louis Bouligny, then the husband of one of .their co-beirs, Elizabeth Virginie Dauterive, mother of plaintiffsin this case.

• To that end, an act was executed on August 7, 1835, by Antoine Bernard Dauterive, Joseph Valiére Dauterive, and Eleanore Dauterive, wife of Auguste Richard, who therein stipulated to make a donation inter vivos to Mrs. Bouligny of one undivided third of their respective shares of the lands claimed in this State by their ancestor, Bernard Dauterive, and of lands in Alabama claimed by another ancestor, “he Chevalier Montante de Monberault.n The condition of this donation, as designated in the act, was that Louis Bouligny, the husband of the donee, should undertake the task at his own exclusive trouble, cost and expense, of recovering the title and possession of all the lands claimed by the donors’ ancestors, by suit or otherwise, from the Government of the United States, or from any person or persons who might set up adverse claims to said lands.

On June 28, 1836, a similar act touching the same claims was executed by J. B. de Comires Dauterive, to the same Mrs. Bouligny. This act was amended by consent of parties on September 5th, 1837, so as to substitute, as beneficiaries under the act, the two minor daughters of Louis Bouligny and wife.

Similar acts were executed in favor of Mrs. Bouligny by Mrs. Adeline Dauterive in 1835, and by Mrs. Eanelie Dauterive in 1836.

Notwithstanding zealous efforts on his part, Louis Bouligny had not yet succeeded to recover any portion of the Dauterive claim in 1856, when, on his suggestion, all the heirs of Bernard Dauterive joined in a contract with Daniel & Steele, Attorneys-at-Law, to whom they entrusted their claim, on a contingent fee of fifty per cent, of the amount recovered. This contract shows no result, and fell through under the effect of the war between the States. Louis Bouligny died in 1862, before the recovery of any portion of the claim.

■ In 1869, a contract was made by all the Dauterive heirs with the law firm of Janin & Sons, who took charge of the claim under a stipulated contingent fee of one-third of tlie amount recovered.

These attorneys succeeded in obtaining a decree in the Supreme Court of the United States, recognizing the claim of the Dauterives to what is called the “Vermilion Prairie Grant,” for which they received from the Government land scrip for 135,000 acres of public lands.

Under their contract, they retained for their fee one-third of the scrip and, with the consent of their clients, they also retained ten per cent, of the scrip for the purpose of meeting incidental, expenses incurred during the progress of their proceedings.

The defendant, A. C. Janin, one of said attorneys, was about to distribute the residue among his clients when this suit, was brought by the plaintiffs, claiming the benefit of the various donations made to their mother, Elizabeth Virginie Dauterive, and to two of her daughters, Louise Bouligny, now widow Darow, and Estelle Bouligny, now the wife of Stanislas Plassan, alleged to result from the several acts herein-above referred to.

The descendants of the respective donors in said acts are. the real defendants in the suit.

Their defense is, substantially, that the alleged donations to Mrs. Bouligny and her daughters were suspensive and conditional, and are null, for the reason that the conditions on which they depended were never executed or complied with.

This appeal is taken by plaintiffs from a judgment sustaining that defense.

. We concur with our learned brother of the District Court in his conelusion, that while the acts relied upon by plaintiffs are designated as acts of donation, inter vivos, they really evidence a contract under which Louis Bouligny undertook to recover the laud claim of the Dauterive heirs, under a stipulation that, in the event of success, one-third of the respective shares which would accrue to the so-called donors would become the property of his wife and of his two daughters, Louise and Estelle.

At the date of these acts, the donors did not own the lands'which they claimed, and could not, under any legal possibility, deliver possession of any portion thereof to their donees. And, in point of fact, no portion of the lands mentioned in the acts has ever been recovered by the Dauterives. The judgment in their favor merely recognized the validity of their claim to the “ Vermilion Prairie,” in lieu and place of which they receive laud scrip to be located on Government lands. •

How, under this state of things, could the donees obtain the execution of the stipulation in the act under which they were to be placed in possession of the portion of lands donated to them, as soon as the donors themselves would be recognized as owners of the lands in question 9 En prendre possession a compter du jour que le dib donateur aura été reeonnu propriétaire des parties dans les di tes torres 9”

It is very clear, from this expression as well as from the whole tenor .of the acts, that the so called donors did not purport to be, as it is manifest that they were not, the owners of the lauds in question, and hence, they did not intend to then donate any portion of the lands which they might recover. If construed as a donation, the act must of necessity be construed as a donation of future property; and in such a case, it would be stricken with the nullity prescribed in Article 1528 of our Civil Code. This horn of the dilemma would yet more summarily destroy plaintiffs’ pretensions.

Testing their position under the mere favorable light of a mandate to their father, entrusting him with the task of recovering the Dauterive claim under a compensation of one-third of all that he may recover, to enure to the benefit of his wife, and a portion, that coming from Comires Dauterive, to his two daughters, we must now ascertain the manner in which Bouligny performed his part of the contract.

Prom our preceding statement of facts, as taken from the record, it appears that Bouligny had died many years before the Janin coutract was entered into, and before the slightest success had crowned his efforts, zealous though they may have been.

The contract with Daniel & Steele, suggested by Bouligny himself, explained in the light of his letters in which he speaks of the Vermilion Prairie ” claim as hopelessly lost, justifies the conclusion that, as far back as 1856, he had abandoned his mission as the sole agent and manager of the Dauterive claim, and that his subsequent efforts were intended to be in the interest of his wife as an heir, independently of the stipulations in the various acts referred to.

This conclusion is shown as manifestly as the conclusion admitted by all parties, that the Daniel & Steele contract had been tacitly abrogated and absolutely abandoned when the contract with Janin & Sons was entered into in 1869.

Our conclusion being, that the suspensive condition having signally failed of execution, and the contract having been abandoned by all parties, the defendants were authorized in law to set up the nullity of the contract sued upon, as a means of defense. C. P. Art. 20; Police Jury vs. Reeves, 6 N. S. 221.

We note plaintiffs’ effort to show that Mrs. Plassan, through her husband, contributed exclusively the assistance needed by Janin & Sons, either in the shape of information or of money. But we note, at the same time, Mr. Plassan’s declaration, that he has always looked to his wife’s co-heirs for the reimbursement of a sum of two hundred dollars, which he had advanced to the Janins. We must also keep in sightthe fact that the mass of the land scrip collected was taxed ten per cent, for the payment of incidental expenses.

Louis Bouligny and his heirs having failed to execute the mandate which was the essential condition of his wife’s rights under the acts invoked by plaintiffs, their claim lacks foundation, either in law or equity, and it was, therefore, properly rejected.

Judgment affirmed.


author: Manning, J.

text:
    No. 8752.
    Pedro Dominguez vs. The Orleans Railroad Company.
    A tramway, which occasions injury because its rail is out of place, is not protected from liability for damages by reason of the permission of the city to operate its road.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Albert Voorldes for Plaintiff and Appellee.

      Chas. Lauque for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff sues to recover ten thousand dollars as damages for injuries received from being thrown from his waggon because of a loose rail on the defendant’s track, the end of which was raised. A jury gave him fifteen hundred dollars, for which there was judgment.

The defendant operates a tramway in this city. The plaintiff was driving his waggon to and from the French market, laden with fish, and is thus occupied from midnight to daybreak. It was his usual business, and gave support to himself and family. He drove, as is customary, on the track. One of the rails had become loose. The spikes were out of place, and the end of the rail was elevated, pointed upwards. ■ The wheel of his waggon struck it plump, the vehicle leaped in air, and he was thrown violently to the ground. The wheel passed over his legs and chest, producing bruises and contusions. He was laid up two and a half months under medical care. His age is sixty-four years, and before this injury was hearty and vigorous, able to work and working constantly. Since then, and by reason of it, he is disabled not entirely but partially, and cannot exert himself as before. Slight exertion brings on blood-spitting, and pains in the chest. He sometimes earned twenty-five or thirty dollars a week, at others much less.

It was night—an hour after midnight—when the accident occurred; but this dangerous rail had been observed early in the evening, not by this plaintiff, but by others who predicted mischief from it. There is testimony in the record which goes far to shew habitual negligence of the defendant. There was certainly inexcusable negligence on this occasion.

The defendant’s counsel can scarcely be serious in contending that as the accident was caused by the defective condition of the street, the city is alone responsible. The defendant made the defect in the street. The defendant for its convenience and profit had iron rails on the street, and its rail occasioned the injury. It must answer for it.

Occasional questions by the jurors exhibit an intelligent comprehen- ■ sion of their duties, quite refreshing in that arena, and the verdict recommends itself to us as a fair estimate of what is due to the plaintiff without unduly and vindictively punishing the Company.

Judgment affirmed.

Eehearing refused.


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

text:
    No. 8766.
    The State of Louisiana ex rel. Rubera vs. The Board of Liquidation.
    The defendants have authority in law to set up the plea of prescription as effectually as if the same had been raised by the City of New Orleans.
    Bonds issued by the City of New Orleans are prescriptible by five years from their maturity.
    The Premium Bond Act and the compliance by the City with its provisions, in preparing a list or e# Mbit of the then outstanding bonds, matured or not, do not constitute an aclrnowl edgment and an interruption of prescription. Even if they did, five years had fully elapsed before the institution of this suit.
    •The right of action for payment of bonds held to be prescribed cannot be differentiated from one for an exchange of such for other bonds. The decision in 32 An. 1250, (Conger vs. City) affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe. J.

      Blanc & Butler for the Relatrix and Appellee.

      Miller & Finney for Defendants and Appellants.
   The opinion of the Court was delivered hy

Bermudez, C. J.

This is a proceeding hy mandamus, to compel the defendants to issue to the plaintiff, in exchange of two New Orleans & Jackson Railroad bonds due on the 1st of March, 1875, of $1,000 each, other bonds for a corresponding amount, known as premium bonds of -the City of New Orleans.

The defense is, that the two bonds offered in exchange are not valid obligations of the City, because prescribed by the lapse of five year's since their maturity.

The reply to this defense is, that the action is not based on the bonds ‘for a payment, but. for an exchange for other bonds; that the right is 'not such as can be prescribed against at all; that, even then, the prescription of five years invoked does not apply, and even then, that ■there has been such an acknowledgment of the right by the State and by the City, that that prescription has been interrupted and remains suspended.

From a judgment in favor of plaintiff, the defendants have appealed.

L

The objection to the right of the defendants to plead prescription is unfounded. It is claimed that the City alone could haye set it up, and therefore, that the defendants cannot do so.

The defendants are authorized to fund only such bonds as are due and valid. Where a bond has been paid or extinguished by prescription, it ceases to have any existence.

If it be true that, the bonds in this case exist no more, then the defendants had a right to say so and to establish their objection. If that defense is valid, the unavoidable consequence will be the justification of the resistance.

The bonds were issued by the City of New Orleans, under the provisions of Act 100 of 1854. They are dated March 1st, 1855, and are payable twenty years after their date. They matured on the 1st of March, 1875. This suit was brought on July 3d, 1882, more than five ■years after their maturity.

II.

The plaintiff contends that, by reason of the enactment of the law known as the Premium Bond Act, in 1876, No. 31, and of certain acts of the City, prescription has not extinguished the bonds sued on.

The action is on the bonds. If the plaintiff did not hold and own the bonds, no action could lie, either for payment or for exchange. It is only because of that possession and ownership that the plaintiff has a standing in Court and can be heard.

The relator claims that the legislation under which the premium bonds issued, and the acts of the City under it, are a continual acknowledgment of liability for outstanding bonds. He further urges that the City herselflms, by her acts and doings, in 1876, in furtherance of the Act and by her subsequent annual levy of taxes to meet those bonds, uninterruptedly admitted her liability, either to pay the bonds declared upon, or to give in exchange thereof the bonds provided for by the Premium Bond Act.

It is not of easy perception how an Act, which has provoked from the highest tribunal in the land, a severe stricture, flavoring of the charge of an attempt at repudiation, can be seriously invoked at this date, as an unqualified acknowledgment of municipal indebtedness. While it is apparent that the object of the legislature of those days was to coerce the funding of all valid outstanding bonds of the City into the premium bond scheme, thus to secure temporary relief to its tax-ridden inhabitants, It is no less evident, that its object was not to pay a solitary copper on any of its outstanding bonds or coupons. This is manifest from the tenor of the seventh section of the Act, which, in revolutionary terms, solemnly forbids the levy of any tax whatever for the purpose of either.

From the most favorable standpoint, that Act can only be viewed as an authority to the City to compromise with her pressing creditors, and to utter, according to a certain scheme or plan, bonds, to be known as “ Premium Bonds,” to be given for other outstanding bonds issued, by her, and valid at the time of delivery on the compromise.

The new bonds to be given in place of the old ones were designed to extinguish the latter by novation. This clearly results from the pro-1, visions of Sec. 9 of the Premium Bond Act, which formally directs that the funded bonds “shall be immediately cancelled by the Commis-sioners of the Consolidated Debt,” and other officials.

When the City complied with the Act, by preparing the premium bonds for the authorized amount, she told her creditors:

“ You hold certain bonds of mine, matured and unmatured, on which I do not intend to pay a cent. I propose, however, to give you, in their place, other bonds issued, on long credit, under the Premium. Bond Act, which I have prepared and hold ready.” In other words, the City said : “ I propose to take up the bonds which you hold, and which I will not pay, provided you give me time, surrender them, and receive in place other bonds of mine having fifty years to run.”

It is notorious, that holders of a very large number, of the ostracised bonds came forward and accepted the compromise, whilemany others, among whom the plaintiff, either refused or at least neglected to submit to the exaction.

We fail to perceive how the State or City ever acknowledged the debt which the relator claims was due him in 1876, in consequence of the ownership of the two bonds declared upon, unless it be, that they were specially included in the statement made of bonds outstanding shortly after the adoption of the Act. That statement was not designed to be, and in point of fact was not an acknowledgment of any right of the bondholders, and of any liability on the part of the City, in consequence. It is a mere tabular exhibit, describing and enumerating the bonds of the City then outstanding.

But, yielding arguendo that there was an admission which interrupted prescription, how can it be claimed that it is continuous and will indefinitely be such, never to end ?

The acknowledgment, which interrupts prescription, is the recognition of a right, of a debt, of a liability, as it exists at the precise time when the admission is made. Immediately thereafter, prescription begins to run again. It can no more be made so as to be perpetual, (unless it be a pledge) than prescription can be waived before it is acquired. Practically it amounts to that, and this waiver is prohibited.

It has long since been held that a conditional offer to pay, if long time enough was given, did not amount to a new promise and take the, case out of prescription so as to entitle plaintiff to recover. The doctrine is likewise well established, that where a debt has been due for i lapse of time necessary to bar it by prescription, and there is no clear and positive evidence to justify the averment of the relinquishment of the right acquired to plead, that plea must prevail. 15 L. 145; 5 An. 835; 9 An. 15; 11 An. 184; Troplong, § 156.

That acknowledgment, if such, was made-in 1876, and between that time and the date of institution of this suit, five years have fully-elapsed.

III.

Neither did the Act of 1876, nor the acts of the City under it, have the effect of suspending prescription. The plaintiff seems to consider that, because of the prohibitory clauses to which reference is made, cbntained in that Act, and perhaps also because of those in Act 5 of 1870, he was prevented from protecting himself against the evil effect of time, and that he is thus shielded by the maxim: Gontra non valentem, non eorrit preseriptio. But this is a mistake. Those prohibitive clauses were avowedly ctb initio unconstitutional.

• They could not, and did not impair the obligations of the contract under which the bonds held by relator were issued. He had a right to shé for the enforcement of his right to tax for payment, as Morris Ranger and others have done on similar bonds, and he had the conferred alternative right on presenting his bonds, to demand premium bonds in return. Prescription does not run against a creditor, when the courts were closed to him, or when, by some extraordinary and unforeseen event beyond his control, he was prevented from acting. What is it that has impeded the relator from' asserting his rights since the adoption of the Premium Bond Act, which could not, and therefore did not, impair the obligation of the contract between him and the City ? His inaction has Served as a solid basis for prescription, and has become an impassable obstruction to the accomplishment of his present object. He could have done, within five years after the alleged acknowledgment, precisely thaf which he has undertaken to do on the 23d July,. 1882, when he brought this proceeding. The laws on this subject, as ■ fhr as he is concerned, are to-day what they then were and, if at that time they abridged any of his rights and prevented him from acting, and this was good in law, there is no reason why he should not look upon them this day, as he then did, and why this Court should not act-likewise.

The relator has slept upon his rights, and cannot overcome the irre-: sistible defense which the law authorizes the City to advance, and which she has mercilessly urged.

IY.

In tlie case of Conger, 32 An. 1250, we lield, that similar bonds, of which payment was sought, were prescriptible and were prescribed.

It is true that the defenses raised in the present controversy were ■ not there set up, but that is immaterial.

The bonds now declared on are effects negotiable, or transferrable by delivery,” and are clearly embraced within the provisions of Article 3539 • of the Revised Code, which emphatically declares that actions on such effects are precribed by ñve years from the day when the engagements were payable. ,

We see no reason to alter our views on that subject.

The law does not distinguish between the different sorts of actions which can be brought on such effects, whether for payment or any other 2>urj)ose.

It does not discriminate, and where it does not distinguish, we are powerless to do so.

We hold that the bonds declared upon are prescriptible and prescribed; that being prescribed, they have no legal existence;' that they do not constitute valid outstanding and fundable obligations of the City of New Orleans, and that there can be no recovery upon them, either for payment or for replacement by other bonds, under the provisions of the Premium Bond Act.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and it is now ordered, adjudged and decreed that there be judgment for defendants, rejecting the application of relator for the funding of the bonds declared upon, with costs in both Courts.

' Fenner, J. concurs, for reasons in his separate opinion.

: Justices Todd and Manning concur in the decree.

Concurring Opinion.

Fenner, J.

My study of this case leads me to the following conclusions :

• L I am unable to appreciate the subtle distinction under which it is contended that, while the bonds may be prescribed as claims for-money, as held in the Conger case, they are not prescribed as claims' entitled to be funded under the Premium Bond Act. Under our sys-' tern, prescription is a mode of extinguishing debts. Obviously, the Premium Bond Act contemplates only the funding of debts of the” City, and if these bonds, though once debts, have been extinguished by pre-' scription, they are no longer debts, and are not entitled to be funded.

2. The Premium Bond Act creates no vinculum .juris between the' City and holders.of bonds who did not accept its provisions. As to them* until the moment of acceptance, the Act remained a mere proposition in behalf of the City, without effect upon their rights or obligations. Their right to avail themselves of its benefits depended upon their status at the moment of acceptance. If, at that moment, their bonds were valid and subsisting obligations of the City, they all would be entitled to fund, otherwise not. I am unable to agree with my brother of the District Court, that the case is affected by the facts that the premium bond scheme is laid out on a scale broad enough to embrace the entire bonded debt existing at its date, that an amount of premium bonds equal to the whole were executed and that a tax was provided and actually levied sufficient for the extinguishment of the whole.

¡ These were necessities of the scheme based upon the contingency that all might accept. But it is undeniable that non-accepting bondholders acquired no rights in or upon the unissued premium bonds or the taxes levied under the scheme. The unissued bonds remained the property of the City, and the surplus of the tax went to the City, not to be distributed among or held for non-accepting bondholders, but to be employed in reducing the bonded debt by purchase or payment. There is no foundation, therefore, for the idea that the provisions or execution of the premium bond scheme constituted a continuing recognition of the unfunded bonds. If the whole of the unfunded bonds were paid or otherwise extinguished, it would not, at least without further legislation, affect the premium bond scheme.

■.'3. The opinion of another learned District Judge, who has had this question before him, is filed with the brief, in which the position is taken that Act No. 133 of 1880 created a trust in favor of all creditors of the City holding debts valid at that date, against the execution of which the trustee cannot oppose prescription. It might be a sufficient answer to this position to say, that in this case the relator is not seeking the execution of any trust created by that Act. The relief sought is exclusively under the Act No. 31 of 1876, which in' express terms was left entirely unimpaired by the Act of 1880.

But, on broader grounds, I can discover no difference in the principles applicable to this Act from those already mentioned as applicable to the Premium Bond Act. It provides for the creation of new bonds and for their exchange for valid obligations of the City, or for their sale and application of the proceeds to the retirement of like valid obligations, and for the application of the surplus of the premium bond tax, in the manner prescribed. But it has no reference to any except subsisting valid obligations, and applies to them only so long as they continue such. Indeed, the Act denounces penalties against the members of the board, in case they should extend its benefits to any invalid obligation. It is a perversion of tlie legislative purpose to engraft upon tlie Act the effect of rendering the obligations of the City imprescriptible.

4. Nothing in any legislation deprived the holders of matured bonds of the power to interrupt prescription by judicial citation, and, therefore, the rule contra wo» valentem, has no application.

5. The effect of the statement of recognized liabilities, prepared by the City under the legislative direction found in the Premium Bond Act, needs no discussion, for, admitting its validity as an interruption of prescription, more than five years elapsed between its date and that of the institution of this suit.

Adhering to the principles of Conger vs. City, 32 An. 1250, the relator’s bonds are prescribed and afford him no basis for relief.

I, therefore, concur in the decree rendered herein.

Rehearing refused.


author: Fennée, J,

text:
    No. 8850.
    J. C. Morris vs. Mrs. Cain et al., Executors. Moses Lobe & Co., Intervenors.
    Tlie adjudicatee of property at judicial sale, being entitled to pay but once to receive a clean unincumbered title, when harrassed by conflicting claim» of mortgage and other rights, may call the various claimants to interplead and settle their claims contradictorily with each other, to the end that he may pay advisedly to his secure exoneration.
    Under the peculiar constitution and rules of the Civil District Court for the Parish of Orleans, such a proceeding, having all other elements of a direct action, may be filed in the suit in - which the adjudication was made.
    The erroneous styling of such a petition as an. intervention will not invalidate it, if it contains the essentials of a proper and lawful action.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      T. Gilmore & Sons for Plaintiff and Appellee :
    The appellant has waived his right to he heard on the appeal in this case, by voluntarily paying the debt of the seizing creditor. Ho is subrogated to the rights of the latter. C. C. 2161.
    There can be no intervention by one of the purchasers of mortgaged property, in a proceeding by executory process for the foreclosure of a mortgage. Intervention is only allowable in pending suits between parties. C. P. 389, 394.
    One of tbe purchasers alone cannot provoke aconoursus, and withoutmaking the other party.
    The sheriff has no right to demand and receive from a purchaser more than the writ calls for. He must leave the balance in the hands of the purchaser to pay other mortgages, if any. Scott vs. Peatherstone, 5 An. 313; Johnson vs. Duncan, 24 An. 381 j Howard vs. Schmidt, 29 An. 129. Consequently, the whole price cannot be paid into court, where there is only one writ, calling for a portion of it, in the sheriff’s hands. Ib.
    Where the law points out the mode of proceeding, a resort to the equity powers of the court is inadmissible.

      _Z?. JS* Moise for Intervenors and Appellants:
    The Courts of Louisiana have recognized the right of a holder of a fund, where there are many claimants and not suffeient in his hands to pay all, to compel them- to contest their claims to the fund contradictorily in a single suit. -7R. p.398; 1 .An. 144; 2 An. 987; 3t An. 305. , '
    'A.
    Where from the peculiar circumstances of a case, the textual provisions of the Code of Prac- * tic© give no action, the courts will give one to prevent injury to an innocent party and a failure of justice.
    In giving this remedy the court will look to other systems of law and adopt their mode of -• granting relief under similar circumstances. The courts of Louisiana have adopted ij “ chancery ” remedies.
    In examining these systems the Court will, find that where there are conflicting claimants, tp a fund, the “.chancery ” method is to allow the holder to compel all the claimants to liti- * * gate their rights in a-single suit.

      First, (a) Ho man can he injured because the Code of Practice does not give án action'. The court will give one unless prohibited. 12 An. 588. • ■

      (b) The Code of Practice is not exclusive of all other remedies. Conflicting claims to a fund can he litigated in a single suit. 2 An. 987.-

      (c) Ho mention of an action in the Code of Practice does not bar the court from granting one, where justice is served. 27 An. 138.

      (d) Humorous claimants to a fund* in small amounts—many suing, and others threatening suit—trustee has the right to enjoin the suits, $*nd parties from bringing suits, and file one account for all, although no such action is mentioned in Code of Practice, 31 An. 309.

      Second, (a) Our courts, while'not hound by technicalities of foreign systems, may still i • resort to foreign systems when our law is silent. 16 L. 395. . '

      (b) Under C. C. 21, when our own law does- not provide for an emergency, chancery < practice will he resorted to. 1 An. 138.

      (c) Imperative mandate to Judge to proceed when there is no law, chancery practice adopted; 3 An. 177, 182; 5 An. 740; 7 An. 2p7; 2 An. 87.
    . Hhird. (ct) Interpleader—our remedy—our law giving none—it is the chancery remedy un der facts similar to the case at b’ar. Wait’s Actions and Defenses, Yol. 4, p. 149. •, •
    ; ' (6) A more stake holder, having no interest save his own protection, has a right to force claimants to interplead and contest contradictorily. 2 Yes. J. R. 10.9; 15 Id. 245; 11 Sira. !47. . .
    (c) Stakeholder not obliged to exercise his judgment. 2 Ewd. Ch. (347.

      (d) Stakeholder need not await a suit. 30 H. H. 363; 6 Johns Ch. 44.'
    («) When stakeholder files his interpleader he must deposit or offer to deposit the fund. 1 Cow. 691; 30 H. H. 354 j 20 Tex: 399; 61 H. <16 Sick) 264, 2682 Beioh, S. C. 201.'
    ‘ ' (/) Ignorance or doubt as to the respective rights of claimants warrants an interpleader. . 3Barb. Ch. 391; 11 Ga,103. . .

      (g) Where a party does not claim, hut will not assent to payment, a proper party to interpleader. 5 Hare, 314. ' ' ’ : :"
    B.

      1 The right to have a mortgage cancelled ’cannot he tested unless all those having an interest he made parties. .21 An. 401; 8 R. 97. *
    '2. The right cannot he denied—yet all interested must he brought together ‘ in one suit. 34 An. p. 665.
    c.
    1. A purchaser at judicial sale will not he compelled to take a title with a cloud on it. Merrick, C. J. in 16 An. 422; citing 9 An. 232; 9 An. 560; 11 An. 109. f

      2., The purchaser has his action to recover hack the price he paid.

      3. Also bis aotion to retain price till title be decided good or bad.
    4. All persons interested in defeating or maintaining title must be made parties to a suit looking to settlement of tbe validity of the title.
    5. This can be done in one suit; and in no other way, ab as to bind all.
    D.
    1. If, as "Wilts contends that, we are in danger of eviction and entitled to retain price under B. C. C. 2557.
    2. Then we are entitled to deposit it under B. C. C. 2559. ’ • -
    3. The exception that the fund cannot be distributed till the question of the validity of the , mortgages is determined is for the merits.- . '
    1. The name given a pleading will not effect its validity.
    2. Becauso a petition is called an intervention, will not make it governed by the rules relative? to interventions. . ‘
    3/ Tbe question is, whether the proceeding is proper, not whether ap. intervention would hej-
    4. The fact, not the name, will govern.
    5. EuleVJI, of Civil District Court compelled the purchaser to file his petition in the suit? J and court which ordered the- sale of the property.' ’ ■'
    6. Conflict of privileges, no matter who are claimants, would not be- cognizable in any othefi court. '31 An. 100'; 29 An.,315.
    7. Eo other court could interfere with the fund. -Act 86 of 1870, p. 119.
    "tVTiere a purchaser at a judicial sale is harrassed by concurrent mortgages and privileged creditors of various kinds—where he neither knows who to payor how much to pay eacti one, and is a party to a snit seeking to declare all the mortgages a fraudulent eiraulqtioq, •T —and the mortgagor being dead, the fund must he distributed in the-court which issued the order of executory process, a petition setting forth all the facts, and calling upon the parties to come into court and contest their rights, in which the petitioner tenders the* \ whole amount of his hid to the court; the proceeding is proper and just and allowed by v. - the law of the land. - ,
   The opinion of the Court -svas delivered

Fennée, J,

Moses Lobe & Co., who are called intervenors,,the adjudícateos of valuable property at sheriff’s sale.made.under executory process in this case, file a petition called an intervention, in which they, allege that fact, and' further' aver, substantially, that various named; persons claim mortgage and other rights upon said property,, and “all; are claiming from petitioners the .proceeds of said property, and' claim priority.” They, therefore, prayed that said parties be cited to appear- and contest their claims to the fund contradictorily with each other,- and that after hearing, the price in .their hands be decreed to he paid; to such party or parties as shall effectually disburden the property .of all claims, mortgages, liens and 'privileges, and free petitioners from any claim 'whatever, and that the .property p.ass to them with a title, clear, clean and unburdened, and for all such general relief as the, na-,ture and circumstances of the ease may require. , , \

The various parties named were duly cited; and appeared and filed, exceptions óf no cause of aotion. Morris, in addition, excepted to the; ” proceeding by intervention, on the ground that there was no suit pending to justify the same. A different exception was filed by Wiltz, administrator, which will be separately considered.

1. As to exception of no cause of action,

"■ The proceeding is in the nature of a bill of interpleader in chancery practice, which is a bill exhibited by a third person, who, not knowing to whom he ought of right to render a debt or duty, fears he may be hurt by some of the claimants, and therefore prays they may interplead, So that the court may judge to whom the debt is due, and he be thereby safe on the payment.

It may be admitted, that the textual provisions of our Code of Practice do not provide for such a remedy ; but under Art. 21 C. C., and on' general principles, this Court has often held that the Code of Practice does not exclude all other remedies than those therein provided for, and that the courts will afford other appropriate remedies where not prohibited, and they have repeatedly enforced remedies identical with the one here invoked. Fortier vs. Slidell, 7 Rob. 398; Clark vs. Saloy, 2 An. 987; Lizardi vs. Gossett, 1 An. 138; Trustees vs. Dupuy, 3l An. 305.

When this identical case was formerly here, we indicated very clearly our own opinion that the petition of Lobe & Co. presented a good and substantial cause of action, though we threw doubt upon the propriety of his urging it otherwise than by a direct and independent action. The latter question however was not before us, and we distinctly declined to decide it. Morris vs. Cain, 34 An. 657.

■ The record, as well as the allegations of the petition, satisfies us that Lobe & Co., who owe only afixed sum, and are entitled to pay but once and receive a clean and unincumbered title, are harrassed by conflicting claims separately urged, exceeding together very largely the amount due by them, which they cannot be required to decide at their own risk, but are entitled to have settled by the Court in a manner final and conclusive upon all. Fortier vs. Slidell, 7 Rob. 398. Independent of the question of the modus of proceeding, we hold, therefore, that the petition discloses a good cause of action.

. 2. As to the mode of proceeding.

If the fact that the petition styles itself an intervention rendered it essential for its maintenance, that it should be an intervention within the definition and rules regulating that proceeding provided by C. P.Arts. 389 elseq., obviously it could not be supported. There exists a radical inconsistency between our intervention, and the chancery inter-pleader, which last is substantially the action at bar, viz: in the inter-pleader, the tertius disclaims interest in the subject, and calls on those who assert interest to discuss and settle their conflicts for Lis exoneration ) while it is of the essence of the intervention that the tertius should assert a right and interest in himself to support the claim of one party against the other, or to oppose both'. :

But courts concern themselves with things, not with names. Having decided that the petition sets forth a cause of action against the parties cited, the substantial matter left for our consideration is, whether it was properly filed in this proceeding, and if we should determine that it was, the fact that it is erroneously styled an intervention will be of • little consequence. Succession of Triclie, 35 An.

This proceeding possesses every element of a direct and independent action, except the single one that it is filed, docketed, and numbered as part of the former suit. The parties defendant are regularly cited, and; have in every respect the same opportunities of defense which would have been afforded by an independent action.

“The adjustment and ranking of conflicting mortgage claims fall, within the jurisdiction of the court from which the process issued, under which the sale of the mortgaged property was made, and would not be cognizable originally in any other tribunal.” Factors vs. DeBlanc, 31 An. 100; Adams vs. Dannis, 29 An. 320.

The same principle is affirmed by the express provision of Rev. Statutes, Sec. 1942. Therefore, it appears that the demand was brought before the only Judge who could have had cognizance thereof. Then, on general principles, to the exception under consideration the question might well be opposed, cui bono ? But a yet more conclusive objection' exists.

•Under the peculiar constitution of the Civil District Court, if Lobe’ & Co. had filed an independent suit, it might well have been allotted to different Judges or division of the court from the one under whose process the sale had been made, and who would have been entitled to exclusive jurisdiction thereof. To meet this very difficulty,* the Court had adopted the following appropriate rule :

“ All suits or proceedings not in their nature original, but growing out of suits or proceedings previously pending, such as actions of nullity of judgment, to restrain or regulate the execution of process, mesne or final, in suits previously pending, shallnotbe docketed as separate suits, but shall be treated as part of the original suit out of which they arise and be docketed and numbered as part of the original suit, and follow the allotment or assignment to the respective divisions of the Co'urt which shall have been made of the original suit.”

■ Under this rule, it seems apparent that Lobe' & Co.’s petition, even5 if prepared and offered for filing as an independent suit, would liave been treated, docketed and numbered as part of the original suit.

VUnder these circumstances, we must regard the exception as too insubstantial and objectless to merit further consideration.

: 3. The exceptions of Wiltz, concurred in by Roos, manifestly pertain to the merits of the case, and have no foundation as exceptions. What effect the pendency of Wiltz’s suit to annul the entire mortgage may have upon the settlement of the rights of the parties in and upon the fund, and what provision for the protection of Lobe & Co., the pendency of that suit may require, are matters to be determined in the final decision of-the cáuse.

< -It is, therefore,- ordered, adjudged and decreed that the judgment appealed from be reversed, the exceptions overruled, and that the casé be remanded-to the lower court-, to be proceeded with according to law, appellees to pay the costs of their exceptions in’ the lower court, and those of this appe'al.


text:
    No. 8883.
    The State of Louisiana vs. Charles B. Duck et al.
    The Supreme Court has no power, and will never attempt, to Interfere with the discretion of ,,; District'Judges in their manner of controlling their courts, or of enforcing rules of decor-rum, or propriety therein.
    Hence, the Court will not entertain a complaint that the District Judge erroneously refused ‘ to stop an attorney in the course of his argument, on the ground that his argument was unfair, improper or unbecoming. . *
    The charge that the acchsed is presumed innocent, until the contrary is proven beyond a rea* sonable doubt, and that he is entitled to the benefit of a doubt, if it be substantial, is good law, and sufficiently liberal to the accused.
    A PPEAL from the Twelfth District Court, Parish of Grant. Bar-, XX bm, J.

      J. 0. Bgcm, Attorney General, for the State, Appellee.
    JET. L. JDaigre for Defendant and Appellant. .
   The opinion of the Court was delivered by

, Poché, J.

This appeal is taken by Duck, one of the defendants,who presents his complaint in the form of two bills of exceptions:

... 1. He charges error in the refusal of the District Judge to stop the. District Attorney in the course of the latter’s argument, at the request, of counsel for accused, charging that the District Attorney was making an improper and unfair argument to the jury. There is no force in this complaint; This Court cannot, and will nob interfere with District Judges in the manner of controlling their courts, or of enforcing rules of propriety and decorum on the officers, of the court. . ■ • . ■ ' ;

2. The defendant next complains of the refusal of the Judge to give the following charge •: “It is. incumbent On the State to make; their prosecution certain, and to make it probable is not enough,” instead of which the Court charged the jury as follows : “ The law considers everybody innocent until the contrary is proven beyond a reasonable doubt; that the doubt must be a substantial doubt; and if they had a, doubt of the guilt of the accused, they were entitled to it, and should render a verdict of not guilty.”

, The charge is as liberal to the accused as they could possibly expect. It embodies principles of criminal law which are its ancient in this State as crime itself.

■ It leaves no ground of complaint to the accused, whose appeal is entirely without merit; .

• Judgment affirmed.


author: Pocirfi, J. . Bermudez, C. J.

text:
    No. 8886.
    The State of Louisiana ex rel. G. Pflug vs. The Judge of Division E, Civil District Court for the Parish of Orleans.
    A judgment not final in its nature and character cannot be made final by the mere fact of its being signed by the Jndge. .
    Am interlocutory judgment •which, does not cause irreparable injury is not appealable. The ruling in Harris vs. Stockett, 35 Am. reaffirmed.
    Application for a Mandamus,

      Albert YoorMes, Alfred'Shato and li. J. Harris for the Relator,

      H. L. hamrus, Judge, Respondent in pro. per., and J. JD. Séguin for Defendant.
   The opinion of the Court was delivered by

Pocirfi, J. .

Relator invokes the remedy of mandamus to compel the respondent Judge to grant him a suspensive appeal from a decree sustaining a motion to strike out a reconventionál demand presented in his answer -to- a suit in which he was the defendant.

The .case has not yet been tried, hence the decree complained of is: not a final judgment in the case; therefore it is an interlocutory judgment.

The right of appeal from such a judgment is recognized in our law when the judgment may cause irreparable injury to the party complaining.

If the Judge erred in striking out relator’s reconventional demand, his ruling can be reviewed and his error corrected on an appeal from the final judgment, in the same manner as his ruling would be reviewed on appeal, if the plaintiff had adopted the more regular proceeding of objecting to the introduction of any evidence under the plea in reconvention, and a bill had been taken from a ruling sustaining the objection.

• The character of the injury caused by an interlocutory judgment, even when it is signed by the Judge, must be tested under the following plain rule: If the decree of the appellate court can restore the parties, without the loss of any right under the pleadings, to the identical position which they respectively occupied before the rendering of ■ the interlocutory decree or order complained of, the injury to either party is clearly not irreparable, and therefore the right to appeal does not exist.” Fields vs. Gragné, 33 An. 340.

In the case of Harris vs. Stockett, recently decided by us, and not yet reported (35 An.) we applied this rule to a state of pleadings strikingly similar, with the exception that the interlocutory judgment in that case had not been signed by the Judge. While it is elementary in our practice that a judgment, not signed by the Judge, is not a final judgment, it is equally true that a judgment not final in its character cannot be made final by the signature of the Judge.

Eelator invokes our recent decision in the case of State ex rel. Ikerd vs. Judge, etc., not yet reported, as directly in point and decisive of the remedy which he seeks. But he is mistaken. In that case the judgment appealed from had partly sustained an exception, and had dismissed part of the petition and prayer. Under such aruling, plaintiff’s suit had been completely emasculated, and the relator is materially differenced from the present case.

The case last quoted by us is absolutely decisive of the question herein presented, and hence we conclude that relator is not entitled to a writ of mandamus.

The writ applied for is, therefore, denied at relator’s costs.

Dissenting Opinion.

Bermudez, C. J.

The judgment complained of is, to all intents and purposes, a final judgment. It is not one of dismissal or of non-suit, wliicli can cause no irreparable injury. It is based on an irregular proceeding, 3 R. 641, a rule to strike out certain parts of tbe reconventional demand. It rests on the main allegation of that rule, which sets-up res judicata, and it can itself become res judicata, as it determines an issue. Unless appealed from within the time fixed by' law, it would* be impossible for this Court to afford relief to the relator, and this inability may entail an irreparable injury. 6 L. 427; 15 L. 521. It is signed, as final judgments are required to be.

, This Court has lately held, that an appeal lies from a judgment striking out part of the allegations and prayer of a petition, although such judgment was merely one of dismissal. State on relation of Ikerd vs. Delauney, No. 8724. .

The correctness of the ruling of the District Judge is not before us presently, and cannot be inquired into. The very object of the appeal sought is to have that correctness tested in a proper form.

The relator is entitled to try his reconventional demand in conjunction with plaintiff’s demand. A severance might defeat his rights, and thus inflict irreparable injury.

If the effect of the judgment complained of cannot be arrested, the consequence would be, that the trial of the case would proceed below on the record, mutilated as it is, and the defendant could not recover on the allegation stricken out. In the event of a judgment for plaintiff, he could not practically satisfy it by a recovery on his claim, if founded in reality. Were the judgment complained of reversed, the case would necessarily have to be remanded for a new trial, if not of its entire merits, at least, of those portions which were expunged from the reconventional demand.

To all appearances the reconventional demand is intimately connected with the main action, from which it is alleged to grow. If so, there is no reason why it should not be passed upon simultaneously. 31 An. 170.

The appeal asked can wrong no one. Its effect would be to leave matters in the condition in which they stood before the judgment striking out was rendered; a different, appeal would not serve the purpose efficiently.

The argument is unsound, that the judgment is equivalent only to a ruling in the course of the trial, rejecting evidence on objection of the plea of res juclieata. Such a ruling would not be an interlocutory judgment, still less a final judgment. It could cause no irreparable injury. It would not impress itself on the record. To leave any trace, it would have to be incorporated into a bill of exception.

The ruling in the case of Harris vs. Stockett, upon which the opinion of the majority rests, lacks .similarity in material respects.

■ The Court there dismissed an appeal taken from a decree eliminating averments from a reconventional demand,-for want of proper parties'. The Court said properly, that if it was an interlocutory decree, it could cause no irreparable injury, and if it was not such, but a final judgment, it was unsigned.

In either case it could not be appealed from'. It was truly so. The-decree could cause no injury, because it passed, on no issue of merit, susceptible of becoming res judicata..

■ The decision in that case rests on the ruling in Fields vs. Gagné, 33 An. 340, which is a mere repetition of the doctrine as previously, announced, and which is to the effect, that where an interlocutory decree is of such a nature as to be covered by an appeal from the final' judgment, and if the appellate court can restore the parties without-the loss of any right to the identical position occupied before the decree was rendez-ed, the injury is not- irreparable, and the right of appeal does not lie.

•So that, as concerns interlocutory decrees, it is settled that no appeal lies when two conditions concur: 1st, that the decree can be covered-by the appeal on the merits; and 2d, that the appellate court can reinstate the status in quo.

- The judgment, from which an appeal is sought, is not an interlocutory decree. It is a final judgment, signed and treated as such, as final' judgments are signed. Even if it were an interlocutory decree, it is riot susceptible of being covered by an appeal from the jizdgment on the-merits, and the Court could zrot restore the- status in quo, because the judgment became res judicata. ■ ;

■ This Court has lately held in a majority opinion, (Tin-ley vs. Drey-: fus) that a mere decree, overruling an exception of no cause of action, was a judgment constituting res judicata, which had so passed beyond-reach that by its judgment on the Iiierits it could not revise it.

The indisputable principle -is, that all -judgments can be appealed suspensvvely in appealable cases, whether interlocutory or final; the5 former whenever susceptible of causing ah irreparable injury, the latter without1 qualification. - - -

The exceptional cases in which final judgments canzzot be suspended are enumerated. ■

The judgment complained of has the substance and form of a formal judgment and is not ernbraced within the excepted class:

I think that the relator is entitled to the relief sought. ' • ■


text:
    No. 8871.
    The State of Louisiana vs. Phil. Jackson.
    The trial Judge has the Tight to take judicial notice of the existence before his court of á prosecution for an infamous crime against one called on to serve as a juror, and is authorized to exclude him from service.
    Wuere a charge asked to be given to the jury is couched in terms calculated to tell them which of the wicnesses heard they should in preference believe, and the charge requires qualification, limitation or explanation, the refusal of the Judge to give it will not be disturbed.
    G-iviug such cliargo would be to trench on the facts, which the Judge is forbidden from doing. The appreciation of facts and of the credibility of witnesses is exclusively within the province of the jury.
    Where the ruliug of the court, refusing a now trial, although it he of record and accompanied by the evidence heard, is not excepted to, a bill of exception taken to the admission of testimony, on the trial of the motion, will not be considered by this Court.
    A PPEAL from ike Sixth District Court, Parish of Morehouse. ham, J. JBrig-

      J. G. JUgan, Attorney General, for the State, Appellee.

      Bussey & Naff for Defendant, and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant, indicted for murder and found guilty without capital punishment, appeals from the judgment sentencing him for life to hard labor in the State penitentiary.

The record contains three bills of exception.

The first relates to the rejection of a juror who, at the time, was charged with the crime of arson.

The District Judge had a right to take official knowledge of the existence of the prosecution of the juror for that offense before his own court, in sucli a case.

The offense charged was an infamous crime, punishable with hard labor, which disqualified the juror, under the formal provision of the law. Act 54, p. 52, of J 880.

The second bill is to the refusal of the Judge to give to the jury a charge, the occult but direct effect of which would have been to tell them which of the witnesses heard in the case they should in preference believe.

The Judge could not give the charge asked without trenching upon the facts, which he is forbidden from doing.

The appreciation of the facts testified to and of the credibility of witnesses are matters exclusively within the province of the jury.

The eharge asked was not full. It did not contain the whole law. It required qualification, ' limitation or explanation. The Judge was not bound to expound the law in part only. State vs. Riculfi, recently decided.

• The third bill is to the hearing of a witness charged with incompetency, on the hearing of the motion for a new trial, which was based on the ground of misconduct of the jury.

The ruling of the Court denying the motion, although of record with the testimony adduced, was not excepted to, and is not therefore presented in the form in which it should have been submitted. 32 An. 842.

As the proceeding in which the bill was taken is not before us, we are justified in ignoring it, the more so, as we feel that in doing so the accused is deprived of no ruling which could have been beneficial to him.

■ Judgment affirmed.


text:
    No. 8807.
    The State of Louisiana vs. Joseph R. Riculfi and Leonidas M. McClung.
    An assignment of errors is not the proper mode of bringing up for review alleged misdirections of the lower court to the jury. Bills of exception should be taken to such portions of the oharge as are objected to, or to the refusal to charge as requested, and when it is claimed that the particular facts in evidence justify or .require such charge, the facts should be stated in the bill to which the charge is claimed to be pertinent.
    A Judge not only may, but should refuse to oharge an abstract legal proposition which has no bearing upon the case on trial, whether the proposition be correct or incorrect, or whether it be correct in part and incorrect in part. Even if it requires qualification, limitation or explanation, it may be refused.
    A bill of exceptions should contain a statement of the facts which present the question of law, and the Judge should not sign a bill containing a statement of facts at variance with his own. He has the power and the right to correotan erroneous statement in the bill.
    Character is an important element in a criminal case when evidence of it is admissible, and it must be considered in connection with and as a part of the whole testimony, and due weight given to it, but it cannot destroy conclusive evidence of guilt.
    APPEAL from tbe Criminal District Court for the Parish of Orleans. Boman, J.

      J. O. Egan, Attorney General, for the State, Appellee:
    1. It is not permissible for counsel to assign as errors, patent upon the face of the record, alleged errors in the oharge of the Judge when there are no errors of law apparent, and no objection made to the charge at the time it was delivered. 11 An. 192; 22 An. 456.
    2. The Judge in his charge to the jury is not restricted to the language of the special charges requested by counsel; or to give the same to the jury without explanation or elucidation.
    3. Additional charges will be refused when they have no application to the case at bar.

      4. “It is well settled that, to excuse a homicide by a plea of self-defence, the apprehension» of the accused must have been excited by an actual assault.” 22 An. 454; 14 An. 827; 5 An. 428.
    5. “In like manner it is obvious, and so it is often stated to the jury, that a good character can have little or no practical weight, with them in a clear case, where the evidence against the prisoner is direct and otherwise satisfactory.” Bishop on Crim. Procedure, Sec. 1063; Yol. 1, Crim. Law Mag. p. 800; Yol. 2, p. *261; Yol. 3, pp. 256, 421, 757.

      Wm. It. Whitaker, Lionel Adams, Henry G. Castellanos aud A. Gastinel for Defendants and Appellants :
    1. It is the duty of the court to instruotthe jury on the whole law of the case, and not partially. Proffat on Jury Trials, § 325; \Yhar. Crim. Law, § 3162; 31 Cal. 409; State vs. Ricks, 32 An. 1100; State vs. Ranee, 34 An. 191; Ellison vs. State, 10 Tex. App. 361; Erwiu vs. State, 10 Tex. App. 700; Long vs. State, 5 Tex. Law J., Mar. 1882, p. 379; White vs. State, 10 Tex. App. 381; People vs. Cummins, Mich. Sup. Court, 11 H. W. Reporter, Jan. 21, 1882, p. 184; Reynolds vs. State, 8 Tex. App. 412; 12 An. 264; 13 Conn. 453; 12 Serg. & Rawle, 149; 2 Pet. 15; 3 Gra. <fe Wat. Hew Trials, §§ 805-8.
    2. If a good character for peace has been proven, such good character may he sufficient to. create or generate a reasonable doubt of guilt, although no such doubt would have existed but for such good character. Evidence of good character is not only of value in doubtful cases, but is entitled to be considered where the testimony tends, very strongly, to establish the guilt of the accused. It will sometimes create a doubt, when, without it, none would exist. Yields vs. State, 47 Ala. 603; Waterman’s Crim. Dig. p. 150, § 232; Lowenberg vs. People, 5 Parker, 414; People vs. Cole, 4 Id. 35; Hall vs. State. 40 Ala. 698 ; Jupitz vs. People, 34 111. 516; People vs. Ashe, 44 Cal. 288; People vs. Yenwick, 45 Id. 287 ; People vs. Kaina, Id. 292; People vs Lamb, 2 Keyes, 360, affirming, 54 Barb. 342; Stover vs. People, 56 H. Y. 315; State vs. Henry, 5 Jones, 65 ; Yelixvs. State, 18 Ala. 720; State vs. McMurphy. 52 Mo. 251; S. C. 1 Green’s Crim. Reps., 640.
    3. Threats made by the deceased against the life of the prisoner, can never be introduced for the naked purpose of justifying the killing, but they are admissible because they tend to show the imminence of danger to the defendant’s apprehension. Whar. on Horn. § 525; Monroe vs. State, 5 Ga. 85; Howell vs. State, 5 Id. 48; Dukes vs. State, 11 Ind. 557; Powell vs. State, 19 Ala. 577; Carroll vs. State, 23 Id. 28; Shorter vs. People, 2 Comst. 193; Prig&en vs. State, 24 Tex. 420; State vs. Keene, 50 Mo. 357.
    4. Actual and positive danger is not indispensable to justify killing in self-defence. It is only necessary that the danger should have been apparent. The true question is not whether such danger actually existed, but whether the prisoner had reasonable ground, in the opinion of the jury, to believe himself in danger of great bodily harm or loss of life. It is not essential that it should appear that the peril was imminent, or that the danger was great, or that the prisoner had no other means of escape than to kill his antagonise. Thereneed not have been actual impending danger. If the defendant believed, and had reasonable ground to believe, that there was immediate impending danger, and he had no other apparent and safe means of escape, he had a right to kill, although the supposed danger may not have existed. State vs. St. Geme, 31 An. 303; State vs. Chandler, 5 An. 489; State vs. Mullen, 14 An. 577; People vs. Campbell, 30 Cal. 312; Campbell vs. People, 16 111. 17; Hopkinson vs. People, 18 Id, 264; Adams vs. People, 47 Id. 376; Kaufman vs. Com. 10 Bush, 495; Munden vs. State, 37 Tex. 353; People vs. Lamb, 54 Barb. 342; Pond vs. People, 8 Mich. 150; Hurd vs. People, 25 Id. 405; State vs. Collins, 32 Iowa, 36; State vs. Sloan, 47 Mo. 604; State vs. Keene, 50 Id. 357; Logue vs. Com. 38 Pa. Stat. 265; Patterson vs. People, 46 Barb. 625; .Holes vs. State, 26 Ala. 3L; Taylor vs. State, 48 Id. 180; Dupre vs. State, 33 Id. 380; Wesley vs. State, 37 Miss. 327; Evans V». State, 44 Id. 762; Head vs. State, Id. 731; State vs. Martin, 30 Wis. 216; State vs. Porter, 13 Kan. 414; State vs. Connolly, 3 Oregon, 69.

      5. One need not flee or avoid Lis adversary, if a reasonable regard for bis safety from imminent death or great bodily harm require him to stand. Whar. on Horn., §§ 485, 480 ; 1 Bish- Cr. Law, Gth Ed. § 850, p. 474; 1 East P. G. 71; 1 Hawk, P. C. Ch. 29, § 14; 1 Hale, P. C. 481; Poster, 273 ; 3 Inst. 56; iielyng, 128, 129; 4 Bl. Com. 185; 1 Bussell, 668 j He* Hally, 562; State vs. Mullen, 14 An. 570 ; Creek vs. State, 24 Ind. 151 ; People vs. Cole, 4 Parker, C. C. 37 ; State vs. Pond, 8 Mioh. 150; Carroll vs. State, 23 A'a 28; Com. vs. Self-ridge, Hor. & Thomp. Cases, Self-Defence, 3, 18; State vs. Collins, 32 Iowa, 36 ; State vs. Thompson, Id. 188; State vs. Hill, 4 Dev. and Bat. 491; Oliver vs. State, 17 Ala. 587; Pforner vs. People, 4 Barker C. C. 558; Aaron vs. State, 31 Ga 107; Com. vs. Carey, 2 Brows. 404; Tressor vs. State, 77 Ind. 274; State vs. Potter, 13 Kan. 414; Kingen vs. State, 45 Ind. 518; Boss vs. State, 10 Tex. App. 455; Tweedy vs. State, 5 Iowa, 433.
    6. One need not await an attack, it it he reasonably apparent to him that his danger may inorease by delay, and in such ease he may act in self-defeuce. An actual physical attack need not precede a resort to the right of self-defence. State vs. Scott, 4 Iredell, 408; Harrison vs. State, 24 Ala. 67; Bippy vs. State, 2 Head, 217; People vs. Lamb, 54 Barbour, 342; 2 Keyes 360; Philips vs. Com, 2 Duv. 323; Smaltz vs. Com. 3 Bush, 32; Young vs. Com. 16 Id. 312; State vs. Martin, 30 Wis. 216; 9Kau. 119; State vs. Potter, 13 Kan. 414; Goodal vs. State, 1 Oregon, 333; 3 Id. 69; Cotton vs. State, 31 Miss. 504.
    7. The accused need not establish his facts beyond a reasonable doubt, or by evidenoe preponderating over that of the State, in order to secure an acquittal. He should be aoquitted, if a reasonable doubt of bis guilt remain after a consideration of all the evidence in the case. Whar. on Horn. § 649; 24 Pick. 366; 2 Met- 340 ; 1 Moody, C. C. 154; Tweedy vs. State, 5 Iowa, 433 ; 3 Greenl. Ev. § 28; Whar. Am. Cr. Law, § 707 ; 1 Hawk. P C. o. 62, § 2; 1 Buss, on Cr. 7 Am. Ed. 750 ; 3 Bl. Com. 121 ; 2 Met. 24; 9 Id. 116 ; 5 Cush. 305 ; 1 Gray, 63, 64, 65: Sumner vs. State, 5 Blaokf. 580; Davis vs. State, 10 Ga.101; People vs. Brannon, 47 Cal. 96.
    8. If the circumstances, whether proved by the State or the accused, preponderate even, in favor of the plea of self-defence, there instantly arises a reasonable doubt of guilt, and his acquittal should follow. See authorities cited under last preceding paragraph, and State vs. Hamilton, 13 Hev. '386; MeAdory vs. State, 62 Ala. 154; State vs. Payne, 86 H. C. 609.
    9. The plea of self-defence does not allege or assume to prove anything outside of the case on the part of the prosecution. It devolves upon the State to prove both the felonious killing and the criminal intent. If, Pom the testimony adduced on behalf of the prosecution, or from the evidenoe introduced for defendant, or from both, the jury he unable to say beyond a reasonable doubt that the killing was not excusable, the prosecution has failed to establish its charge, and there must be an acquittal. The evidence under such a plea relates solely to the original transaction constituting the alleged criminal act, and forms part of the res gestee. Whar. Am. Cr. Law, §707, n.,- Com. vs. MoKie, l Gray. 61; Com. vs. York, 9 Met. 116; Com. vs. Webster, 5 Cushing, 305; Tweedy vs. State, 5 Iowa, 433; 69 Mo. 451; State vs. Eowler, 52 Iowa, —; State vs. Morphy, 33 Iowa, 270; State vs Porter, 34 id. 131. 140, (Bop. in 2 Crim. Law Mag. 48); Dubose vs. State, 10 Tex. App. 230 ; Smith vs. State, 58 Miss. 867; People vs. Smith, Cal. Sup. Cfe. 8 Pacific Crim. Law J*., Jan. 28, 1882, p.. 970; State vs. Porter, 33 Iowa, 131; State vs. Eelter, 32 id. 49.
    10. The State mustprove that the killing was malicious; otherwise there should be an acquit* tal as to the charge of murder. The existence of the essential ingredient of malice is not decided by a presumption from the fact of killing, or the use of a deadly weapon. The true rule is that all the facts of the case taken together are to be considered, and from these the question to be decided is, whether the defendant acted maliciously.
    Where the evidence tends to show that a deadly weapon was used by the accused in self-defence, the law does not presume malice from its use. The presumption is repelled by such use of a deadly weapon. A pre-determination to kill does not necessarily constitute the malice aforethought essential to the crime of murder, when there is evidence supporting a plea of self-defence. Whar. Horn. § 39 5 Id. § 671, and authorities there cited; Coin. vs. . Webster, 5 Cashing, 305; State vs. Knight, 43 Maine, 11; McDaniel vs. Stare, 8 Stn. <fc Marsh. 40i; approved iu Green vs. State, 28 Miss. 688; Hague vs State, 34 Id. 616; State vs. Patterson. 45 Yfc. 308; Dixon vs. Stato, 13 Ma. 636; State vs. Gillick, 7 Iowa, 287; Kil- • patriok vs. Com. 31 Pa. Stat. 198; State vs. Bertrand, 3 Oregon 61; 1 Arch. Cr. Prac. & PI., Waterman’s note, p. 851; 4 Bl. Com. 201; State vs. Zellers, 2 Hnlst. 220; Head vs. State, 44 Miss. 731 5 Com vs Selfridge,-Hor. &Thomp. Cases Self-Defence, 19 ; Schlonker vs. State, 9 Hob. 241; 5 Td. 377; 6 Id. 136: Douglass vs. State, 8 Tox. App. 520 ; Id. 90; Id. 597; State vs. Cooper, 71 Mo 436; Sweeney vs. State, 35 Ark. 585 ; People vs. Crowey, 56' Cal. 36; Com. vs. Hawkins, 3 Gray, 463 ; Harris’s Crim. Law, p. 136, n.; Erwin vs. State, 29 Ohio St. 191; State vs. Trivas, 32 An. 1090; State vs. Swayze, 30 An. 1323; Poster's Cr. Law, 255; Boscoe’s Crim. Ev. 20; 2 Bish. Cr. Pro. § 621.
    11. It is proper for the jury to consider, in estimating the value of tbe plea of self-defence, ' -whether there be trustworthy evidence of threats made by deceased against the accused, indicating his disposition or purposes relative to him as a matter of fact; and if thejuryfind that such threats were made and communicated to the accused before the homicide, they wilL be regarded in coming to a conclusion whether the accused had ground to fear death or great bodily harm at the hands of the deceased. 2 Bish. Cr. Pro § 630 5 Bippy vs. State, 2 Head, 217; Pridgdon vs. State, 34 Tex. App. 420; People vs Scoggins, 37 Cal. 677 ; Jackson vs. Stato, Sup. Ct. Tenn. Hor. & Thom. Cases Self-Defence, 476 5 Howell vs. State, 5 Ga. 48 5 Monroe vs. State, 5 Id. 85; Dukes vs. State, 11 Ind. 557; Stokes vs. People, 53 Y. Y—; S. C. Hor. & Thom. Cases Self-Defence; State vs. Goodrich, 19 Yt. 116; State vs. Keene, 50 Mo. 357; State vs. Sloan, 47 Id. 604; State vs. Collins, 32 Iowa, 36; State vs. Bicks, 32 An. 1098.
    It. When ono honestly and reasonably believes that he is in imminent danger of losing his life or suffering great bodily harm at the hands of another, he has the right to take other’s life, if need be, to protect himself.
    Hia justification will rest upon and be found in his honest and reasonable belief, under the circumstances shown, notwithstanding it should afterwards appear that he had not been in actual danger.
    It was error to give the jury in charge, as a rule of law, that defendant could not avail himself of the pica of self-defence, under the circumstances here recited, unless he had been actually assaulted by the deceased. An actual physical assault is not necessary to constitute the overt act justifying a killing in self-defence. Stato vs. Cooper, 32 An. 1085-6; State vs. Jackson, 33 An. 1088, and cases cited in the 5th paragraph of syllabus.
   The opinion of the Court was delivered by

Manning, J.

The defendants were indicted for the murder of William E. Eackler. MoClung was acquitted. Riculfi was convicted, the verdict being qualified “ without capital punishment,” and was sentenced to hard labor for life.

The case comes up on a bill of exception, an assignment of errors, and a motion for a new trial.

The errors assigned are alleged misdirections of the court in its charge to the jury, a mode of presenting such matters for review so unusual, and so contrary to established practice, that the prisoners’ counsel have found it necessary to offer an explanation to excuse it, in the circumstance that the charge was delivered late at night. They assert however that their right to submit these matters for review under that form “rests upon repeated adjudications of this Court.” Eight cases are cited as sustaining this assertion, one of them being a civil cause and of course wholly out of the domain of the subject, and not one of the others, with a single exception, sustaining or countenancing the practice. That exception is State vs. Ricks, 32 Ann. 1098, which was qualified on the first opportunity the Court.had to intimate its incorrectness, State vs. Beaird, 34 Ann. 104, and which is as there admitted contrary to authority, and again in State vs. Curtis, not yet published, and may now be considered as overruled.

The reason why this practice is not permitted is obvious. By it the Judge has no opportunity to explain his charge—none to state that as given it was pertinent to the facts of the case, and that a fuller charge was not demanded by the circumstances attending the commission of the act for which the defendant is prosecuted. Bills of exception should have been taken to those parts of the Judge’s charge which were deemed to be wrong, which will always bring them up with the Judge’s reasons, and such facts as are necessary to shew how the law was applied. They cannot be examined on an assignment of errors. Even a bill of exception, taken to the charge as a whole, is not allowed. State vs. Chopin, 10 Ann. 458. An assignment of errors in criminal practice is for another purpose than correction of the charge of the court.

- The motion for a new trial is in the main a repetition of what had been already set up in the bill, and both consist of twenty special charges which the court was requested to make, part of which were refused, and a part given with modifications. Almost all of them are taken from works on criminal law of accepted authority, or from decisions of courts where the points were presented and the ruling was therefore apposite. As abstract propositions of law they are correct, but if it were permissible to require a Judge to charge every correct legal proposition because it is correct, although it had no bearing on the case on trial, criminals might postpone their punishment until the contents of every text book on criminal law were exhausted in tendering to the Judge separate and isolated charges, and juries would be so thoroughly mystified, that their modern vocation of “judges of the law” could scarcely be performed to the satisfaction of those who try to invest them with this startling prerogative.

So patent are the objections to this attempt to overload and encumber the law as expounded by the court, that it has been repressed universally, and it is no longer open to controversy that a court not only may, but should refuse to charge an abstract legal proposition which has no bearing upon the case on trial. Long vs. State, 12 Ga. 293; Daniel vs. State, 8 Smed. & Marsh., 101; Pate vs. People, 3 Gilman, 644.

And this is equally true whether the proposition be correct or in cor 7 rect. The refusal to charge a correct proposition, if it is inapplicable, will be sustained as readily as if it were incorrect. People vs. Cunningham, 1 Denio, 524; Murray vs. State, 18 Ala. 727; Morris vs. State, 25 Ala. 57.

Or if it be correct in part, and wrong in part, the Judge may refuse to charge it. Tomlinson vs. People, 5 Parker, 313. It is not for the Judge to eliminate what is right from what is wrong in the requested charge. The defendant who requests a special charge is supposed to know what principle of law he invokes, and how to state it in proper form.

This matter has been frequently adjudicated, and has been presented in every variety of aspect, so that even if the instruction, in the form in which it is asked, requires limitation, or qualification, or explana7 tion, it may properly be refused. State vs. Rash, 12 Ired. 382; Swallow vs. State, 22 Ala. 20; Preston vs. State, 25 Miss. 383; Baxter vs. People, 3 Gilman, 368.

. And this Court has all along been in accord with those whose decisions we have cited. In Stouderman’s case, 6 Ann. 286, it was said to be the duty of the prisoner’s counsel to have shewn by his bill of exceptions that he asked for instructions to the jury that would have had a material bearing on his case, and that he did not require the court to charge the jury upon abstract principles of law, p.287. And in State vs. Thomas, 34 Ann. 1084, this was affirmed, the court saying, it is not the duty of the Judge, nor is it proper, to announce to the jury abstract principles ,of law, not involved in the pleadings and evidence, however correct those propositions may be.

The refusal to give some of the special charges requested was that given in Roberts’ case 10 Ann. 264, i. e., that they had been substantially given already in the charge and the refusal to give others was for inapplicability. It is not possible for this Court to determine their applicability unless- the bill of exceptions informs us of the circumstances to which the legal principle is sought to be applied. The bill should therefore inform us of the facts to which the charge is claimed to be .pertinent, State vs. Jackson, 12 Ann. 679, State vs. Nelson, 22 Ann. 425, and this does not at all militate against the cardinal rule that this Court does not take cognizance of facts in a criminal trial.

. This requisite was perceived in drawing the bill of exceptions in this .case, which opens with the statement that evidence having gone to the jury that threats of the deceased to take the life of the defendant had been communicated to the latter prior to the homicide, as well as evidence of an assault upon the person of Eiculfl by deceased some two months before the homicide, and that shortly before the homicide the deceased was searching for Eiculfl, and evidence that Eiculfl apprehended that deceased would carry his threats into execution,” therefore the instructions set forth are .prayed.

Upon this the Judge emphatically declares : “ The court .positively asserts'there was no evidence'introduced in support of the plea of self-defence, and that although it was shewn that threats made by Fackler against Eiculfl had been communicated to the latter on one occasion two months before the killing, and on another occasion one month before, and though it was also established still on another occasion (but before any threats had been communicated to defendant) the deceased had seriously assaulted him at his (deceased’s) own house; not a particle of evidence was given to shew that at the time and place when and where Fackler was killed, he (Fackler) had exhibited the least-intent of carrying his threats into execution. In other words there was utter failure on the part of the defence to. establish any overt act whatever on the part of Fackler when defendant shot him.”

We are thereupon asked to apply the rule in Tompkins case, 32 Ann. 620, which is to reject both, and that being done, there would be nothing to inform us whether the requested charge is an abstract proposition of law, or one of practical importance and pertinence to the case on trial. The correct rule is that given in State vs. Ladd, 10 Ann. 271, viz., that the Judge should correct erroneous statements of facts in a bill of exceptions. But in truth the two statements do not materially differ about the facts of which both speak, viz., of what happened antecedent to the homicide, but of what the evidence was at the time of the homicide the Judge alone speaks, and where there was no evidence of self-defence then whatever, sufficient or insufficient, it was only needful to expound the general la.w touching it to guide the jury in considering what effect upon the guilt of the prisoner the testimony of antecedent acts and words would have, and this .was done correctly.

Evidence of the character of the prisoner appears to have been offered, since the court charged as follows :

“ Evidence of character is always admissible in behalf of an accused, and on many an occasion may- be of vast advantage to him. The ' accepted doctrine about it is that it tends, under certain phases of a case at bar, to create a doubt which otherwise might not have existed in favor of the accused, or to remove a doubt already existing against him. The jury should look upon it as part of the whole evidence adduced upon the trial; but such evidence, however precise it may be, cannot destroy the practical effect of direct and satisfactory statements of uncontradicted witnesses, nor should it be allowed to outweigh, still less destroy, any conclusive evidence of guilt.”

Should the jury regard it in any other way than in connection with the whole evidence? And if conclusive evidence of the commission of the crime is before the jury, must they be told that the proof of good character outweighs it? If so, Dr. Webster could not have been convicted in Massachusetts, nor the Duke of Praslin in Prance, each of a homicide committed with a cool atrocity that puts to shame the bloodthirsty instincts of the ordinary murderer.

The defendant excepted to it, and also to the refusal of the court to charge these two propositions, which we give as illustrations of the numerous special charges requested:

“ 16th. If a good character for peace has been proven, the law says that such good character may be sufficient to create or generate a reasonable doubt of his guilt, although no such doubt would have existed hut for such good character.”

“ 17th. Evidence of good character is not only of value in doubtful cases, but is entitled to be considered when the testimony tends very strongly to establish the guilt of the accused. It will sometimes create a doubt, when without it none would exist.”

That is very true and much more of the same tenor. There may he cases in which the same evidence, if against a person without character, would produce conviction, but if against one with a high character would not, and therefore character is an important element in a case. It would require stronger proof to have convicted Penelon of highway robbery, or the late Sir Robert Peel of malicious mischief, than it would require for others whose characteristics and mental proclivities are not, as were theirs, conspicuously antipodal to these particular offence*. But did not the Judge say all that was needful to be said in the case before him when he told the jury that evidence of character tends under certain circumstances to create a doubt which otherwise might not have existed in favor of the accused, or to remove one already existing against him ? 1 Bishop Crim. Proc. § 1063.

We cannot disturb the verdict in this case. The jury passed upon the question of guilt under instructions upon the law, which so far as we are enabled to review them, are correct.

Judgment affirmed.

Rehearing refused.


author: Manning, J. Poché, J.

text:
    No. 8742.
    G. M. Bayly, Executor, vs. M. A. Becnel et al.
    A suit for partition of a plantation may be cumulated with a demand for a settlement of accounts, created by its cultivation.
    An allegation that the property has been transferred to another is notan admission of the validity or completeness of the title of the transferree.
    It is not sufficient, as against a creditor of the husband, that a settlement of dowry is shewn by a marriage contract. The payment of it to the husband must be shewn by legal evidence, and by other evidence than the acknowledgment of the husband, or a judgment of court rendered between the husband and wife. When the money wras not paid in the presence of the notary, the wife must prove that it has been actually paid.
    The designation by the future spouses in the marriage contract of certain moneys as dotal property does not make it such. It must appear that it falls within the definition of dotal property in the Code.
    A donation by the future husband to the future wife propter nuptias does not form part of the dowry, and she has not a legal or tacit mortgage or privilege on the property of the husband for its restitution.
    The oath of a bookkeeper, that the accounts offered are correct, is not sufficient proof of them. His testimony can only establish that he charged the items on the books, and transcribed the accounts from the books, but does not prove that the items are correct unless he had knowledge that the articles were actually bought and shipped.
    When no objection was made to accounts and no complaint of their incorrectness through a series of years, and the accounts bear intrinsic marks of fairness, and there is no allegation of fraud or deceit, this acquiescence and unbroken silence will constitute an equivalent to an approval of them? to such extent at least as to make them admissible in evidence.

      1 PPEAL from the Twenty-sixth District Court, Parish of St. Charles. Malm, J. ...
    , Kennard, Mows & Prentiss for Plaintiff and Appellee.

      O. 0. Provosty for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

On rehearing, the Decree was modified and the case remanded. Opinion by

Poché, J.