text:
    No. 9652.
    S. M. Bankston et al. vs. Cheston Forks.
    He who is in fault and sues for damages resulting from that fault, cannot recover for the injuries inflicted on him, although the perpetrator of them was not justified in law in his own conduct.
    In a civil suit for damages for injuries caused by the defendant's shooting the plaintiff, evi" dence of threats of the plaintiff that he intended to do violence to tlie defendant, and of their communication to the defendant piior to the shooting, is admissible to shew the impression made on the defendant’s mind by the communication.
    In such suit the indictment and verdict in a criminal prosecution of the defendant for the offence of shooting the plaintiff are admissible in evidence, not as conclusive of the plaintiff’s right or want of right to recover, hut as proper to be considered by the jury in determining the issue before them.
    APPEAL from the Fifteenth District Court, Parish of West Feliciana. Yoist, J.
    IF. IF. ch If. G. Leake for Plaintiffs and Appellants.

      Wiclctiffe <£ Fisher for Defendant and Appellee.
   Tlie opinion of the Court was delivered by

Manning, J.

S. M. Bankston and 1ns wife sue in behalf' of tlieir minor son, Marcus, for $2,793.20 as damages for injuries inflicted on him by Cheston Folks, by shooting him three times with a pistol. Of this sum $2,000 are claimed as exemplary damages, $500 as actual, $250 for lawyer’s fee, and $43.20 for doctor’s bill and medicines. The shooting was in the public streets of tlie town of St. Francisville, last August, Marcus being then in his twenty-first year. He was confined to bis bed four days, to his room a week, and was kept from work three weeks. He is a fanner and labourer, reuts a few acres of land and works it himself, and says he lost a dollar a day while disabled.

The defence is that the shooting was to protect his own (the defendant’s) life and to save himself from bodily harm.

The case was tried by a jury, who refused to give any damages and found for the defendant. A criminal prosecution of Folks preceded this suit, and resulted in his acquittal.

We shall not disturb the judgment.

The testimony conflicts, but it is manifest (hat Marcus Bankston brought the trouble on himself. He had taken offence because Folks rented a piece of land that ho wanted, and yet more “because (to uso his own language) you (Folks) ride by me and never speak, and think yourself better and above me.” This rankled, in his heart, and he often said to others that he would do divers things, such as rub his fist in Folks’ face, when lie next met him, cut his throat from ear to ear, and the like. lie even asked his interlocutors to tell Folks what he had said, and they did it.

1-Iis own testimony of what he said to one of the witnesses is as follows :

Question. , “Did you not then and there call Folks a damn son of a hitch?” and he answered

“I did, and then I said I will take that back. I said to Collier Carr, 'you tell Folks that he is a damn rascal. He laughed and made fun of me, and 1 can mb my fist in his face.’ And I said, ‘no, you need not dell him any of this,’ and he said no he was not going to tell him.”

Of course this is the most favorable version. Several witnesses assert that he used the coarsest and vilest expressions, and with oaths and threats of what ho should do to Folks, and which he requested should be communicated to him. They were communicated to Folks, and if this was done even without the dressing and ornamentation usual on such occasions, the delivery of the messages in their mm" domed biutality ivas enough to alarm Folks for his safety. This conversation of Bankston wo have quoted above was on Thursday night, and not that version hut a very different and more truth ful one was told Folks on Friday night. The shooting was on Saturday.

Folks passed Bankston and his party of relatives on the road to the town on Saturday, and bought or borrowed a pistol as soon as lie got there. On Bankston’s arrival Folks went up to him, Folies afoot and Bankston on horseback, not having alighted, and said: “What have 1 done to you to cause you to talk about, me this way?” Bankston’s reply was: “God damn yon, because you ride by me and wont speak to me, and seem to think yourself better and above me.” I said, “Bankston you have threatened to rub your fist in my face, and to cut-my throat from ear to ear. Is that so I” He said, “Yes, I said it and I can do it.” And I said, “Do you feel like doing it now?” And he said, “You can’t bluff me.”

This is Folks’ testimony of what preceded the rencounter. Banks-ton at that moment put his hand behind him, the movement he would have made if he were about to draw a pistol from his pocket. In fact he had none. Instantly leaning over to one of his party, he reached out and asked for a pistol, and then Folks drew and fired.

The whole affair is a disgrace to any civilized community. Folks should not have armed himself, nor sought Bankston, nor fired. If he apprehended violence from Bankston, his plain duty was to make oath of it before an officer of the law and have him bound over to keep the-peace.

But Bankston’s threats of violence caused the rencounter and his efforts to get a pistol provoked the shooting, and although Folks was not justifiable in doing what he did, Bankston cannot recover because he was himself in the wrong, and because the difficulty could never have occurred had he not invited it by sending' messages to Folks well calculated to alarm him for his iiersonal safety. Vernon v. Bankston, 28 Ann. 710.

Bills were reserved to several rulings of the lower court, of which only two need be noticed. The defendant was asked to state what tlireats of Bankston were communicated to him prior to the shooting-,, and by whom were they communicated. The objection was that all statements made to the witness out of the presence of the plaintiff are hearsay, and therefore inadmissible, and tile court sustained the objection.

The defendant was the witness. The object was to shew what was-the impression made on his mind by the communication of tlireats and other language of the plaintiff, for it matters not, so far as that object was concerned, whether it was true or false that Bankston had said what was reported to Folks as his saying. The evidence shewed the mental impression of the defendant and was admissible for that purpose. A number of other witnesses had already testified of the threats- and their communication.

The indictment and verdict in the criminal prosecution were offered in evidence and rejected as irrelevant. They were admissible. They-were not conclusive of the plaintiff’s want of right to recover in a civil ■action, but it was proper that tho jury should consider the result of the criminal prosecution for an offence for the legal consequences of which damages were claimed from jts perpetrator. Several witnesses had been interrogated about what they swore on the criminal trial.

These rulings were in favour of the plaintiff, notwithstanding which the defendant had a verdict and judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    9680.
    The State ex rel. J. L. Goodwin vs. The Judges of the Court of Appeals, Second Circuit.
    When a plea to the jurisdiction ration? personen has boon filed in the District Court and referred to and tried with tho merits, and judgment lias been rendered sustaining tlie plea and dismissing the demand, the party injured has the right to appeal from such judgment to the proper appellate tribunal. Sncli appeal vests the latter with full jurisdiction over the case and over all questions of l.aw and fact involved therein, including that of the jurisdiction of the District Comí. In determining such question and lovers ing tho judgment appealed from, the judges of said court do not transcend the bounds of their jurisdiction, and the application for the writ of prohibition has no foundation.
    A PPLICATION for prohibition.

      O. J. and J. 8. Boatner. for the Relators.

      MiUsaps (& 8holars, for the Respondents.
   The opinion of the Court was delivered by

Fenner, J.

Relator alleges that in a certain attachment, suit ponding in the parish of Ouachita, he, a resident of tlio parish of Jackson, was served with interrogatories as garnishee; that he filed bis answers to the same denying indebtedness; that, thereupon, the plaintiff filed a rule traversing his answers which was served on him; that lie pleaded to the jurisdiction of the court, raiione personas, on account o£ his residence, beyond the jurisdiction of the court and right to be sued at his domicile'.; that the plea was referred to and tried with the merits and, after hearing, the District Judge sustained the plea,; that plaintiff took an appeal to tho Circuit Court, which, after hearing, reversed the judgment of filie District Court, overruled the plea to the jurisdiction, .and gave judgment on the merits against relator.

We omit other allegations touching the existence of the writ of attachment, because they involve questions of fact not. touching the jurisdiction.

There is no charge that the case, in its nature and. amount, was unappealable, or that it was appealable to any other court than the Court of Appeals for the Second Circuit, or that it was not appealable to said court. Hence the Circuit Court’s jurisdiction over the case and over all questions of law and fact involved therein, was perfect and complete, and, in determining them, it did not transcend the hounds of its jurisdiction.

There is, therefore, no foundation for the writ of prohibition applied for.

It is, therefore, ordered that the restraining order herein granted he set aside, and that the writ, of prohibition he denied.


author: Manning, J.

text:
    No. 9685.
    A. D. Henkel vs. F. P. Mix, Sheriff, et al.
    When parties veally intend to create a mortgage for the security of an existing or contemplated debt and adopt the form of a sale with a counter letter which, taken together, exhibit such intention, the contract will bo construed as a mortgage and effect will be given to it accordingly.
    But when the act of sale and tho counter letter both concur in adverting that it is a sale, tho latter containing the agreement that the vendor may redeem within a given time, it must be held to he a sale with the right of redemption, and if tlio right is not exercised within the time agreed on it is forever lost.
    When the vendee or his representative, ho being dead, attempts to soli tho land before the expiration of the time for redemption, and the vendor injoins tho sale on other grounds and the time expires before the trial of tho suit, the defendant will be mulcted in costs that were incurred before the expiration of the time.
    A PPEAL from the Eighteenth District Court, Parish of Tangipahoa, .Ü. Thompson, J.

      lieicl & Held, for Plaintiff and Appellant.

      T. G. W. and 8. D. Ellis, for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

This is an injunction restraining the sheriff' and the .administratrix of B. S. Gullett from selling a tract of land.

In October, 1880, Henkel sold to Gullett the tract of land for $2,079 69 cash, and on same day Gullett made and signed an agreement reciting that he had bought the land but would recon vey it if within two years Henkel paid him the purchase price with eight i>er cent interest, and meanwhile Henkel might occupy it as his tenant free of charge except the interest specified.

G-ullett died in 1881 and his widow, as administratrix, inventoried the land as the property of the succession, and in the spring of 1882 she obtained an order of court for its sale, and advertised it, whereupon Henkel filed this suit.

Henkel died in July, 1888, and his widow and heirs were made parties. The case was tried in January, 1886, and the defendants had judgment dissolving the injunction.

Henkel had declared and recorded this property as his homestead in June, 1880. In the following autumn lie wanted to buy a stock of goods of Gullett, and offered to mortgage this property to secure the debt. Gullett refused to take it. It was then agreed that Henkel would sell the land to Gullett in payment of the debt he was about to ’contract-, and the hitter would reconvey it at the expiration of two years if the price he had given for it should then be paid.

The ground of injunction is that “it was not the intention of the parties” that the act passed by the notary as a sale and having that form should be a sale, but “ that it was intended by both parties thereto to constitute a mortgage or pledge of the land for the payment of the indebtedness of $2,079 with interest,” and that the “legal effect of the act and counter letter is to operate a mortgage or pledge of the land,” which is null and void as contravening the constitutional prohibition against mortgaging a homestead. Art. 222. Should the contract, however, be deemed a sale or giving in payment with privilege of redemption, he alleges that it is void for want of delivery.

This Court has held over and over again that when parties really intend to create a mortgage for the security of an existing or contemplated debt, and adopt the form of a sale with counter letter, which, taken together, exhibit such intention, the sale will be construed as a mortgage and effect be given to it accordingly. The whole subject with numerous decisions thereon was reviewed in Parmer vs. Mangliam, 31 Ann. 348, and very lately we applied the doctrine in Crozier vs. Ragan, not yet reported.

But the plaintiff, under cover of those decisions, wishes us to announce a very different doctrine, viz : That when the authentic act is in form a sale, and the counter letter repeats that the intention of’ the parties is that it shall be what it purports to be, and emphasizes the expression of that intention by a preamble, “Whereas, B. D. Gullett has this day purchased of A. D. Henkel the tract of land,” and he promises to recotwey after the lapse of a certain time and on certain. conditions, and Henkel expressly and-in terms accepts the position of tenant to the vendee, that then and in such case the intention of the parties shall he disregai ded and the act shall be declared to be a mortgage. The injunction explicitly rests upon what is alleged to-have been the intention of the parties. The counterletter as explicitly declares that intention to have been wholly different from what is now-alleged.

The notary was offered to prove wlmt was said to him by the parties when tiie act was about to be drafted and the defendant objected and tiie court admitted the testimony. It is unnecessary to cousidcr the objections since the defendant is not hart. The notary confirms the tiie counter letter and .says he asked Gullet.t if he should draw a mortgage and was answered, “ No, he would not take a mortgage, it must be a sale.” The act was recorded in the hook of sales and not in the mortgage hook.

If it were true that the parties intended the contract to be one of mortgage, but they or one of them put it in form of a sale to evade the prohibition of mortgaging a homestead, wtí should give effect to the intention, and let the party who tried to evado the 1'aw take the consequences. But the counter letter, the repository of the direct intention, rebuts and precludes the belief that either of them intended it to bo a security for a debt, but both understood and designed that it slionid be a sale with delivery and a faculty of redemption. Unquestionably one may sell property and immediately lease it from bis vendee at a stipulated rent, and Henkel did this, accepting the tenancy in express-terms.

Neither of the parties treat the contract as one of exchange. It was. a sale with right of redemption, and as that right was not exercised within the time agreed on the buyer became irrevocably owner. Rev. Civ. Code, Art. 2570.

Tiie sale of the property by the administratrix was advertised in-April, 1882, before the expiration of the time for redemption — two-years from October, 1880 — and the lower judge in consequence ordered the defendant to pay all the costs. He answers the appeal praying that the plaintiff pay the costs.

Neither is right. The defendant must pay the costs incurred up to October 19,1882, the date of expiration of the time for redemption, and the plaintiff must pay all other costs.

The equities of the case are all with the defendant. Tiie plaintiff-made with him a contract that lie deemed highly advantageous to himself. The defendant without concealment or subterfuge declared what the contract was and as plainly what it was not, and the plaintiff agreed and assented, reaped the benefit of it, and the instant it was to be enforced swore it was not what he had asserted it was. He could lawfully sell his homestead and having sold it and received and enjoyed the price, he cannot find shelter under a law that has no application to such a case as his.

It is therefore ordered and decreed that the judgment of the lower court is amended in this, that the defendant is condemned to pay the costs incurred prior to October 19, 1882, and the plaintiff to pay all others, and as thus amended it is affirmed.


author: Pociié, J.

text:
    9617.
    The State ex rel. Heirs of Gee vs. R. C. Drew, Judge of Second District Court, and G. W. Thompson.
    The writ; of prohibition, is the proper remedy to restrain a District Judge who attempts to ojvjoin the execution of a‘judgment rendered by the Supreme Court, on the alleged ground that said judgment is not yet final.
    District Judges are absolutely powerless to judicially investigate and determine the validity of the official acts of any of the clerks of the Supreme Court. The certified copy of a judgment of this court issued by one of its clerks and forwarded to the court whence the appeal was taken, is the mandate of this court for the execution of the judgment, and it must be obeyed by the lower court.
    That court has no power or authority to ascertain in an injunction proceeding or in any other mode whether the mandate issued properly or otherwise. Complaints for allegod errors of any of the clerks of this court, in issuing such certificates or in the performance of any of their official functions must be addressed to this court only ; the power to •correct snob errors is lodged in no other authority, A. district judge will not beheld in contempt for assuming jjowers which he honestly hut erroneously believed to be of the essence of his court.
    ^^PPLICATION for Prohibition.

      Cunningham <& Moise, for the Relators.

      Watkins, Scarborough <& Carver, on the same side.

      Merrick, Foster & Merrick, for the.Respondents.
   The opinion of the court was delivered by

Pociié, J.

The following facts have given rise to these proceedings: On the 26th of October, 1885, this court rendered at Shreveport a final judgment against G. W. Thompson, one of the respondents herein, in the matter of the “succession of'B. L. Saunders, on opposition- of the Saunders heirs aud of the Gee heirs,” aud that term of the court was adjourned at midnight on the next day.

On the 29th of the same month the clerk of this court, at Shrevepert, forwarded to the lower court a certified copy of the opinion and decree of the Supreme Court, on which execution was issued at the instance of the Gee heirs, relators herein, on the 4th of November following. That execution was enjoined on the 25th of the same month by the ■ order of the Respondent Judge in injunction proceedings instituted by Thompson, the respondent herein,, the defendant in execution under •the decree of this court.

The substantial ground of the injunction is that our judgment was-not final, aud that the certified copy thereof had been prematurely issued by our clerk.

Relators charge that in entertaining Thompson’s application for injunction the District Judge has exceeded the bounds of his jurisdiction, and that he has officiously and illegally impeded the execution of .a mandate of thi’s -court, from which he should be prohibited, and for ■which he should be punished as in case of contempt.

Respondents, after disclaiming any intention of contempt of the rauthority of this Court, urge in their answer that the writ of prohibition is not the proper remedy, and that the District Court was fully •vested with the legal power to enjoin the execution because it had been issued under a judgment not yet final.

Their grounds for the.latter assertion are in substance as follows:

That when the clerk’s copy of our judgment was issued, three judicial days had not elapsed since the day on which the judgment had been rendered.

They take cognizance of the fact that a waiver of two of the three judicial days granted by law for applications for rehearing at the county terms of the Supreme Court, had .been made in writing, in common with all the attorneys having business before the court at ■that term, and in -accordance with a long established custom as an ■acceptable courtesy to the members of this tribunal, by the law firm of Watkins & Watkins,” whose names were attached to the brief, who were attorneys of record in the case, and by one of whom the cause' was orally argued before the court. But they deny the right, and even the intention of the members of that law firm to bind the respondent Thompson by the waiver in question. . Their contention is that the firm of “Jack & Dismukes” were the only authorized attorneys of 'Thompson in the case, and that “Watkins & Watkins” had been •connected with the suit.by “Jack & Dismukes” as their representatives, and liad never been employed as counsel by Thompson. These allegations are supported by affidavits subscribed by J. 13. Watkins, the senior member of “Watkins & Watkins,’’ and by W. H. Jack, the senior member of the firih of “Jack & Dismukes.”

But, in justice to relators, and in justification of our own course, in allowing J. 13. Watkins, Esq., to present an oral argument in the cause, we must state that by inspection of the briefs in the case, of the transcript, of our docket, of our minutes, and of the petition of appeal, which is part of tins record, it appears that the firm of “Watkins & Watkins” figured in the case throughout as the counsel of Thompson and not otherwise. The answer to both of the propositions which are discussed by the counsel is suggested by a consideration of the pivotal ground of the injunction.

No complaint is made of the mode of execution, and no error is suggested as to the manner of executing the writ, after its issuance from the District Court, or in the order of the clerk for execution.

The substantial and exclusive complaint is tba't our judgment was not yet final for the reasons which we have herein above stated in detail, and that therefore onr clerk at Shreveport Imd committed an error in prematurely issuing the ceitified copy of the opinion and decree of this court which is the only mandate to the District Court for the purpose of proceeding to the execution of the judgment. C. P. Art. 915. As soon as this certified copy reaches the court whence the appeal had been taken, that court is fully empowered, and can be required without option on its part, and without further orders from this court, to issue execution of the judgment which has been rendered here.

Under the textual x>rovisions of the Code, the certified copy of the judgment of this court, forwarded to the lower court by our clerk, is the mandate of this court for the execution of the judgment which it has rendered.

The functions of the District Court in relation to a mandate which has issued from this court to have a judgement executed, are merely ministerial. It cannot render any new judgment which would authorize or render an appeal necessary.” State ex rel. Bank vs. Mayor, 35 Ann. 408; Lovelace vs. Taylor, 6 Rob. 92; Cox’s Executors vs. Thomas, 11 La. 366.

It follows from these rules and principles which find their strongest sanction in common sense and in natural order, that the District Court to which a mandate from this court has thus issued has no other alternative but to obey its behest, and that it has no power to examine into-our minutes or records to ascertain or determine the manner in which onr clerk executes our orders, or performs his legal functions.

If' that officer commits a wrong, or unjustly deprives a party of his legal rights, he is amenable to this tribunal and to no other power, and it is to this court alone that complaints against him for any alleged wrong should be addressed. Whence does the District Court of Bossier parish derive its power to judicially control the clerk of the Supreme Court? Whence comes its authority to say to this court, “Your judgment is not final, hence I must decline to obey your mandate which •directs its execution?”

It is too plain for further argument that District Courts are utterly and absolutely powerless to entertain, by means of injunctions any •complaint of alleged errors of one of the clerks of the Supreme Court. We can but repeat that these clerks, in the performance of their official duties are exclusively under the control of, and amenable only to, the • court whence they hold their appointments.

We note the great reliance placed by respondents and their counsel in our recent decision in the case of Sentell vs. Judge, not yet reported. The grounds on which the District Judge rested his .injunction in that case were alleged errors charged against the sheriff for acts committed or omitted after the writ had been placed in his hands; but in the instant •case the complaint charges errors committed in this court, before •execution had been ordered, and in the very proceedings which were intended to direct the execution of the decree of this court. We quote -the following language from the Sentell case: “If the injunction issued was based on any grounds assailing the plenary authority of our judgment or its absolute title to be executed according to law, the contention might have force. But we have examined the petition for injunction and we find no such questions raised. The attack is leveled exclusively against the form of the writ and the proceedings under •■the writ.”

As it is very clear that the injunction issued in this case places the District Judge in the attitude of regulating the proceedings of this •court, and of controlling the official acts of one of our clerks, it is equally undeniable that he has exceeded the bounds of his jurisdiction, hence the writ of prohibition is the proper remedy, and it must therefore issue.

Having thus concluded that the Respondent Judge had no power or authority to issue the injunction complained of, it becomes unnecessary to judicially consider the validity of the reasons urged therefor by the .respondent Thompson. Until the proper proceeding is resorted to we aro spared the painful duty of deciding how far an attorney of record' can he allowed to repudiate the legal effects of his own acts; how far he may be counsel for certain purposes and not for others in the progress of a suit; and to what extent a litigant maybe allowed to-divide the responsibility of counsel who appear of record in bis cases. We must now dispose of the rule for contempt.

Prom our knowledge of the character of the Respondent Judge we are satisfied and cpiite confident that he had not the remotest intention of resisting the authority of this court.

The palpable error which he has committed arises from a confused' idea of the line of demarcation between his authority and that of the Supreme Court, and is doubtless the result of hasty conclusions on a question which was perhaps new to his legal mind. The law does not contemplate the correction of such errors by rigorous punishment. But as the repetition of such errors would doubtless have a tendency to hamper the speedy administration of justice in the State, we entertain the reasonable hope that we will not often he called to correct similar irregularities.

It is therefore ordered that the preliminary writ of prohibition issued herein be made perpetual, and that the respondents he forever restrained from enforcing the injunction granted by the Respondent Judge in the matter of the execution of the judgment of this court rendered on the 26th of October, 1885, in the case entitled “ The Succession of B. L. Saunders on opposition of the Saunders heirs and of the Gee heirs.” It is further ordered that the rule taken herein for contempt against the respondents he discharged; and that respondents-ho condemned to pay all costs of these proceedings.


text:
    No. 9686.
    John Chaffe & Sons vs. McGehee & Co.

      A conventional mortgage granted by a debtor upon property which, at its date, constituted Tbe duly registered homestead of the debtor though inoperative while the conditions of' the homestead exist, may be enforced against tbe property when the homestead therein has ceased by reason of tbe removal of tbe debtor and his family to another State.
    APPEAL from the Eighteenth District Court, Parish of Tangipahoa. Thompson, J.

      Thos. O. TP. JSllis and d. J). JSllis for Plaintiffs and Appellants.

      JJeid & Beid for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The sole question presented by this appeal is whether a mortgage granted by a debtor upon his duly registered homesteadi under the Constitution of 1879, can he enforced against said prox>erty after the homestead therein has ceased to exist and the debtor, with his family, has removed from the State.

The contention of the debtor is that under Art. 222 of the Constitution, the mortgage was an absolute nullity ah initio, insusceptible of ratification and incapable of acquiring effect by any subsequent event.

We cannot concur in this view, which was entertained by the judge a quo.

Article 222 of the Constitution simply says: ‘‘The homestead shall not be susceptible of mortgage.”

It we were asked to enforce a moitgage upon a homestead, the article would he a conclusive bar. But a homestead is something more than a x>ieee of xu'operty — it is x>i'operty of a certain kind and value, owned and occupied by the debtor and set apart and registered according to law. The ownership and the other prescribed conditions must co-exist in order to constitute the homestead; and we have held that whenever any of the xwescribed conditions cease to exist, the property loses the quality and privileges of a homestead Gallagher vs. Payne, 34 Ann. 1057; Bossière vs. Roins, 37 Ann. 263.

Hence, the homestead only exists suh modo; and while the Constitution prohibits the mortgage of the homestead, it does not prohibit the mortgage of the i>roperty subject-thereto, which will bind it-ás against everything but homestead rights, and which, though inoperative so long as the property is subject to the conditions constituting the homestead, will become operative the moment those' conditions cease to exist. Thus a judicial mortgage, while inoperative against the preexisting homestead, would unquestionably attach to the property when it ceased to he a homestead, and we cannot see why the same effect should not he given to a conventional mortgage.

' A different construction would extend the operation of the law entirely beyond the necessities of the case, and beyond the reason and policy of the legislation.

A citizen of Texas, residing with his family in that State, certainly assumes an anomalous position when, in any proceeding and against any right, he sets up a homestead claim in property in this State.

We may observe that the case before us is exclusively between the debtor and his mortgage creditor, and presents no claims or rights of intervening creditors.

It is, therefore, ordered, adjudged and decreed that the judgment • appealed from be amended by striking therefrom all that portion thereof which follows the words u with recognition of plaintiffs’ rights as special mortgagees upon all the lands described in the act of mortgage filed with and made part of plaintifís’ petition;” and that, as thus amended, the same be affirmed, appellee, Spiller, to pay costs of this appeal.


author: Bermudez, J.

text:
    9505.
    James Barnes vs. Oliver Beirne.
    The owner of a building is responsible for personal injury sustained by the fall of part of it, when the accident is the result of his neglect to repair, or of a vice in the original construction.
    Ignorance of the condition of the building, or the circumstance that it could not be easily detected, is not exculpatory. Notice is not required as a condition precedent for the recovery of damages.
    APPEAL from the Civil District Court, for the Parish of Orleans, Bightor, J.

      Breaux & Hall, for Plaintiff and Appellee:
    1. An owner is responsible for damages caused by the ruin of his building, when it is due to vice of construction, or want of necessary repairs. G. 0. 2322; C. N. 1386; 37 A nn. 39.
    ■2. Absence of owner and his agent from the city, so that notice cannot be given them oí peril, is no excuse from liability for damage.
    3. No notice necessary under the Code or required, to render owner liable. Toullier, vol. 16, p. 263, 6 Ed., Paris.

      4. Amount of damages in such cases left to discretion of Court or Judge. Pike & Co. vs. Doyle, 19 Ann. 363; Payne vs. Taylor, 18 Ann. 26.

      Henry Cldapella. for Defendant and Appellant:
    “ The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it or when it is the result of a vice in its original construe’ tion.” 11. C. C. 2322.
    “ The owner of a slave, hired to another and drowned while employed, with the consent of his master, in a work not proved to have been of a dangerous character, cannot recover his value.” Hudson vs. Grout, 5 Pob. 499.
    •“ Where an action is brought to recover damages on account of injury done by the accidental falling of a structure, proof that there was no fault or negligence imputable to the defendant, and that there was no original imperfection in the structure, is sufficient to avoid liability on his part.” Burton vs. Davis, 15 Ann. 448,
    41 La ruine du bátiment doit rósulter, sort du défaut d’entretien, soP du vice de construction. Si elle était arrivée par cas fortuit et force majeure, si le propriótaire n’avait point nógligé de l’entretenir et qu’il reht construite suivanb jes regles de l’art, il cesseraib d’étre responsable. Aussi, lo demandeur doit-il eommcucer par établir que la ruine du bátiment est arrivée par une suite du déíaut d’entrctien ou p.ir le vice de aa construe tion. C’est lá une condition essentielle de laquello dépend le fondetnent de son action, sanf au dét'encleur ft, administrar tontos preuvea du contrairo.” 5 Larombiéro (obligations), p. 79IÍ; Ibid, pp. 800, 80L.
    *“ Si uno maison qui menaqaib ruino, ot pour ] aquello lo vowin avaib dononcé, est ensuito abattue par un cas fortuit-, comino par uu débordemont, ou par la violonco dos venta, cfc que sa chute ababte la maison voisine, lo propriétaire do la maison clout la chute a abattu l’autre, lie sera pas tonu do ce cas fortuit, si ce n'esb que lo dóbordonient ou l’orago no I’aifc abattue, qu’it cause du mauvaia état oü ello so trouvait.” 1 Domal (LoU Civiles), Bivio II, Section III, Ho, G, p. 478; Ibid, Section IY, Ho. 7, p. 481.
   The opinion of the. Court was delivered by

Bermudez, J.

This is au ¡lotion in damages against the owner of a ■building.

The eliurge is, that the front, cornice, which had been for some timo 'in a dangerous condition, fell, struck and injured plaintiff, who was then a wayfarer to his home, and that the injury was occasioned by the neglect of the owner to repair.

The defendant pleaded file general issue and appeals from ii jndg'ment against, him for $580, which plaintiff, by joinder, asks to be increased to $5,000.

It appears that earlyin the morning of October 21, 1884, the cornice •of certain buildings, owned by defendant, on one of tlie principal thoroughfares of the city, suddenly tumbled down on plaintiff, who ■happened to be just at that moment passing on the sidewalk, seriously wounding him. The wound on the. head was severe and the bruises •ou tlie body were numerous and painful. They are shown t.o have been dangerous, suscepiible of occasioning lock-jaw, and such ns required the attendance of a competent physician for some twelve •days. The plain tiff remained confined to his bed about a week and to bis room a fortnight. Id was not, however, until two months after-wards, that his wounds healed and that he ceased to resent materially the injury and pain to his body, although, as soon as he was .able to gather some strength, he went back to bis occupation, (that of a private watchman), he being poor aud bis family needing his .assistance.

Tlie City Surveyor, a witness for defendant, testifies that the rafters were not tied together with collar-braces; that the heel-plates receiving t.lie ends of tlie rafters had rotted away; that the nails fastening the heels of the plates to the ceiling joist, had rusted ; that had there been collar-braces and the nails not rusted, the accident would not have happened; that the defect is iu the construction and could have been detected; that he could have discovered it and suggested.!! remedy which could have prevented the occurrence.

His testimony is corroborated, by other witnesses. So that the evidence leaves no doubt that the building was, as regards the cornice, in a dangerous condition, duo both to a vice in the construction and to a want of necessary repair, and that this state of things could have been detected and remedied.

Article 670, R. C. C., provides that every person is bound to keep his-buildings in repair, so that neither their fall, nor that of any part of the materials compsing them, may injure the neighbors or passengers, (passans), under penalty of all losses and damages which may result from the neglect of the owner in that respect.

Article 2322, R. C. C., is to the further effect: That the owner is responsible for the damage occasioned by its ruin, when this is caused by neglect to repair, or is the result of a vice in its original construction.

The owner however is entitled to exoneration from liability when the accident is. the result of a fortuitous event or vis major. Larombiêre, 5, 795; Domat, 1, p. 481, N. 7; also 15 Ann. 448, Burton’s case.

The defendant contends that ho cannot be held liable, because the 'defect was not apparent from the outside, because he'was ignorant of it, and because he had not been notified of the condition of the cornice.

The law makes it his duty to keep his building in proper order, so that no one may be injured thereby. The defect could have been detected on inspection, if not outside, at least inside. He was bound to know whether repairs were or not necessary. Actual knowledge and willful neglect would have aggravated his responsibility. R. C. C. 670.

The law does not direct that any notice be given, or that any actual knowledge bo shown, as a condition precedent for recovery. R. C. C. 2322; Toul. 6 l. 3, til. 4; Marcadé, vol. 5, 272; Laurent, etc.

While commenting on article 1386 of the French Code, which is reproduced in ours, Marcadó says:

“Le propriétaire ost dé plein droit, présumé en faute. 11 a dfi. savoir que sa maison n’ótait pas en bon état; il á du connaítre les vices dont elle ótait affectée et lesreparations dont elle avait besoin et il ne serait pas admis á pr.ouver q’uil avait ótó trompé et qu’il les ignorait. Vol. 5, p. 272, II; also Toul., vol. 317; Laurent, vol. 20, p. 695, n. 642.

It is established, however, in this instance, that several attempts were made by the main tenant to notify the owner or his agent, but that neither could be found.

The circumstance that the property was acquired by inheritance by the defendant is not at all exciilpatoi’y and cannot be invoked in mitigut-ion of damages. It may serve perhaps to alleviate the acuteness of the pain which the infliction of damages may occasion and which would otherwise be more keenly resented.

The defendant has failed to show fortuitous event, or vis major, which was not even pleaded.

The authority of Sourdat ( Responsibility) vol. 2, p. 15, No. 256, and the ancient precedent (1810) of the Court of Liege, have heeu well considered and given all the weight to which they are entitled.

A perusal of a more, recent opinion ( 1857 ) of a previous Supreme Court, in which heavy damages Were allowed for injury sustained by the falling of a wall, will x>rove of interest to the parties in this case. Howe vs. City of New Orleans, Mrs. Graihle et al., 12 Ann. 481. Tt is no doubt because the application of article 2322 of the Civil Code does not, appear in the syllabus, that the case is not alluded, to in the Digests.

The defendant can derive no benefit from the ruling on the Burton case, 15 Ann. 448, in which it was held that proof that there was no fault or negligence imputable to the defendant and that there was no original imperfection in the. structure, is sufficient to avoid liability.

' We adhere to that doctrine but fail to perceive how it can be applied to a case where neglect and vice of construction are shown.

The defendant complains that the allowance of the district judge is excessive and should be reduced to $50, actual damages, sustained in physician’s and druggist’s bills paid, wages lost, etc., etc.

Tt is no great, venture to answer that had he been injured and had he suffered as much and as long as plaintiff has, the indemnity allowed would surely not have sufficed to placate him. We will not however, increase the judgment as asked.

The lower - court properly applied the law to the facts found. 18 Ann. 26; 19 Ann. 363.

Judgment affirmed.


author: Poci-ié, J.

text:
    No. 9539.
    Caroline Labatt vs. City of New Orleans.
    Certificates of indebtedness issued by tlie Board of Directors of tbe Public Schools of the city of New Orleans during tbe years 1874, 1875 and 1876, are not evidences of debt against tbo city. Holders of suob certificates have no otbor claim against tbe city of New Orleans, beyond the right to participate in tbe unpaid portions of tbe taxes levied by tbe city, in obedience to law, for tbe respective years in which tbe certificates were issued,' but they have no right to recover judgment against tbe city thereon with a view to have tbe same converted into bonds under tbe provisions of Act 67 of 1884, which is an act amendatory of Act 133 pf 1880, intended to authorize the liquidation of the indebt* ednoss of tlie city of New Orleans.
    That portion of Act No. 74 of 1880, which places the unpaid salaries of school teachers, sub - sequent to 1872 and prior to January 1, 1880, on the same footing with the valid indebtedness of the city of New Orleans, is unconstitutional and therefore null.
    PPEAL from tlie Civil District Court for the Parish of Orleans. Houston, J. --

      T>. O. <& Jj. L. labatt for Plaintiff and Appellant:
    1. The duty of establishing and maintaining public schools throughout the State was imposed by the Constitution of 1868 on the General Assembly, and it was authorized to provide legislation for their support throughout the State by taxation or otherwise. This has been done by legislation in 1870, 1877, and other acts, and the corporation of New Orleans directed to provide public schools and to levy taxation sufficient for their support and maintenance, and they have been levied. These city taxes, after eight or ten years, prove utterly insufficient to pay the teachers, meet expenses incurred, in 1874 and subsequent years, as part of the city’s obligation, and in 1879 there resulted a “floating indebtedness or claim,” which the convention framing the Constitution of 1879 required the city to liquidate, aud the Legislature of 1880 recognized their validity, and that of 1884 has authorized the city to issue bonds, at fifty years, to retire and cancel these “ debts ” when merged into judgments.
    *2. Now, the city contends that it is not a “debt," or ‘‘claim," or “floating indebtedness,” meant by the act, and resists plaintiff’s right to any judgment whatever. Plaintiff makes the following points:

      a. “The right to incuran obligation implies the right to raise money by taxation, or to issue bonds for payment.” Ill Mass. 4G0, Lowell vs. Boston, and 98 IT. S. 395; “ Hanger Case,” 25 Wis. 122; Hughes, 282, Parsons vs. Charleston.

      b, “It is always to be assumed, in the absence of clear restrictive provisions, that when the Legislature grants to a city the power to create a debt, it intends that the city shall pay it, and that the payment shall not be left to its caprice or pleasure.” C. J. Waite in Parsons’ Case, Hughes, 282.

      e. “When a power to contract a debt is conferred, it must be held that a corresponding power of providing for its payment is also conferred.” 98 U. S. 395. d. “When a legislative act provides that certain uncollected revenues of a corporation, which have been declared to be * vested lights * of certain creditors or claimants, may be diverted and lodged with the syndicate of its public debt by substituting bonds of the corporation therefor, and the claimants are willing to accept, the act is just, valid and constitutional, and furnishes ‘ adequate compensation,’ relieving it from repugnancy to any constitutional objection, Federal or State.” 33 Ann. Taxpayers vs. City.

      Walter II. liogers, City Attorney, Wynne liogers, Assistant City Attorney, and SamH P. Blanc, for Defendant and Appellee:
    'School certificates of indebtedness issued by the Board of Directors of tlie Public Schools of New Orleans for salaries and expenses due for the years 1874,1875 and 1876, are not debts duo by the city of New Orleans, and can form no part of her floating indebtedness.
    It is beyond the power of the Legislature to impose as debts upon the city of New Orleans claims which she does not. legally owe.
    Such legislation would bo unconstitutional, as violative of the provisions of Section 45 of the Constitution of 1879.
   Tlie opinion of tlie Court was delivered by

Poci-ié, J.

Plaintiff declares on certificates issued by the Board of Directors of the Public Schools of the city of New Orleans, during the years 1874, 1875 and 1876, amounting together to $4,475.85, for which she seeks to recover judgment; the ulterior object being to obtain therefor bonds of said city to be issued under the provisions of Act No. 67 of the Legislature of 1884, which is amenda'ory of Act No. 133 of 1880, passed for the purpose of liquidating the indebtedness of the city of New Orleans.

Tlie defense is a general denial, and the judgment is in favor of the defendant.

Two of the certificates in suit are copied in the transcript as samples; both were issued by the board of which H. C. Dibble was president, the largest in amount being for $738.01, payable to Henry Perry or bearer, “ for supplies on account of expenses of November, 1874 ;V and is dated December 3,1874.

The main contention hinges upon the question as to whether such certificates evidence, or not, an indebtedness of the city of New Orleans.

Plaintiff’s argument is that these certificates constitute a part of the city’s indebtedness, but that if, when issued, they were not debts of' the city, they have acquired that character under a correct construction of Article 254 of the Constitution of 1879, and of Section 3 of Act No. 74 of 1880, which purports to enforce the provisions of Article 254 of the Constitution.

The first line of her attack is lo demonstrate that these certificates are not a debt of the State, or of the school board, or of any other person or juridical being, ergo they must be a debt of the city of New Orleans.

The argument has at least the merit of novelty; it may be ingenuous, but candor compels us to say that we have not been impressed with the force of such a demonstration.

Tt might be shown on the other hand that they are not due by any one, and that no recovery could be had thereon under any circumstances.

Hence, we shall follow another line of inquiry, and we shall at first consider the proposition that, when issued, these certificates did evidence an indebtedness of the city of New Orleans.

The system of public schools which then prevailed in the State was-the result of the legislation of 1870 (Act No. 0, extra session of that year) and of 1873 (Act No. 36).

The most striking feature of that legislation, a feature which distinctly characterized the legislation of that disastrous period of Louisiana’s history, was to strip the city of New Orleans and the parishes of the State of all power of effective management and control of the-public schools and of other local affairs within their respective corpolimits, and to concentrate all powers connected therewith in the State authorities.

Under that legislation, the only power vested in the city of Now Orleans touching' the management of the public schools was the authority to select some of the component parts of the board of directors.

Plaintiff’s contention that the schools of those days were municipal institutions has consequently no foundation in law, and is therefore ■erroneous.

Through compulsory taxation, the city of New Orleans contributed the principal means for the support of public schools established within her limits, but her council had no control over the funds thus collected.

The law required the estimate of probable expenses to be made annually by the board of school directors, and to be presented to the city council, which was required to levy the tax necessary to cover the estimate, which tax could not be less than one-fourth of one per cent on the taxable valuation of all property in the city. Secs. 2, 4, of Act 36 of 1873.

No thought was further remote from the minds of the promoters of that system than the idea of establishing public, city or municipal schools in the city of New Orleans. Section 37 of the Act of 1870 con tains the following significant language: “The city of New Orleans, and other incorporated cities or towns, as well as all parochial authorities, are prohibited from organizing or maintaining separate public schools from those organized under this law, and controlled by the boards created hereby.”

An exhaustive examination and a close analysis of that legislation has forced a clear conclusion on our minds that the whole system of public schools created thereunder was decidedly a Stale institution, under the exclusive control and management of superintendents and boards of directors who derived all their powers directly from the State, and who were, responsible for their management to the State only.

Hence, they were absolutely powerless to fasten any indebtedness on the city of New Orleans or on any of the parishes of the State. In Act No. 36 of 3873, which provides additional regulations for the Board of school directors of the city of New Orleans, Sec. 10 contains the following-language: “That the board of directors of the public schools shall not be empowered to make contracts or debts for the year 1873, or any subsequent year, greater than the amount of the revenue provided for according to this act, oi: other school laws existing, it being tlie intent hereof that parties contracting with said board shall take heed that due revenue shall have been provided to satisfy the claims,otherwise they shall lose and forfeit the same.”

This section is very strongly suggestive of the correctness of our remark that perhaps these certificates might not be enforced against any one.

The record shows that in accordance with the annual estimates made by the board of school directors, the cit-v of New Orleans levied for the years included in plaintiff’s certificates, a tax aggregating $928,816, and collected a total of $842,411, leaving a delinquent list amounting to only $80,405.

In this connection we note the assertion, made, by the city’s counsel, that the amount of unpaid outstanding school certificates for said years aggregate the sum of $400,000. This is not denied by plaintiff, but she exclaims: “What a confession of official negligence is here discovered!” We think it amounts to something more grievous. But the record and Sec. 10 of Act 36 of 1873, point to a different sot of officials than those who are in plaintiff’s mind. To qualify their conduct, official negligence is a very mild term.

Hence, it is obvious that under the provisions of Act 123 of 1874, as well as under the effect of the section of the act of 1873, just transcribed, the holders of school certificates can look only to the uncollected appropriations of the respective years for which the same have been issued. This shows the fullest extent of plaintiff’s claim against the city of New Orleans, which is simply a collecting agent, owing no other account to the State or to any other authority, beyond an effort to collect and a payment of the amounts collected.

But plaintiff next argues that under subsequent legislation these certificates have been declared legal claims against, or valid indebtedness of, the city of New Orleans. Article 254 of the Constitution, relied on by her, reads: “The General Assembly * * * shall enact such legislation as may be proper to liquidate the indebtedness of the city of New Orleans, aud apply'its assets to the satisfaction thereof.”

It can hardly'be argued that by this language the convention can be construed to have meant that the Legislature could provide for the liquidation of claims which were not part of the indebtedness of the city of New Orleans, or that such language could possibly be strained to mean that the Legislature was therefore vested with the power to coerce the city of New Orleans into the settlement of school certificates which had been issued without her authority or consent, by an irre.sponsible board or corporation, for or without valuable consideration, and perhaps in direct violation of the very law whence such board could derive its only legitimate authority. Tt is admitted that in drawing against a fund of a possible aggregate of $922,81(5, based on its own annual estimate and demand, this board has issued certificates amounting to the enormous sum of $1,242,816.

The language of the Constitution can authorize no such deductions; and its proper construction would at once strike with nullity any attempt of the Legislature to fasten on the city of New Orleans the obligation to settle or liquidate any claims which are not legally and unequivocally included in the term indebtedness of the city of New Orleans. The very letter and the undoubted spirit of the Constitution are most obviously adverse to any such proposed legislation; they go to the extent of forbidding such action even with the consent of the corporation.

Article 45 provides in substance as follows: “The General Assembly shall have no power * * *' to authorize the payment of any claim against the State, or any parish or municipality of the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements or contracts shall be null and void.”

The framers of the Constitution were familiar with the history df the profligate legislation which had marked the era of the “rule of the stranger,” which is referred to by plaintiff’s learned counsel, and they intended to close all avenues to a successful realization of the many schemes of plunder which had been concocted during those dark days of misrule.

Hence, under a proper construction of constitutional provisions, plaintiff can draw no strength or derive no comfort from Sec. 3 of Act No. 74 of 1880, which reads: “That the said bonds may be issued to take up the unbonded indebtedness of the said city of New Orleans, and the unpaid salaries of school teachers and expenses of maintaining the jmblic schools created since 1872 and prior to January 1, 1880.” * *

The proposition that such an enactment touching school certificates in a law avowedly intended to carry Art. 254 of the Constitution into effect, is a contradiction in terms and is shockingly unconstitutional, is indeed too plain for argument.

But in addition to this consideration, that legislative provision, in so far as it refers to school certificates, can be stricken with nullity under another point of view, which is considered in our decision of the case of the Taxpayers’ Association, 33 Ann. 568.

An inspection of the list of plaintiff’s certificates shows that a number of them, amounting to $932 only, were issued previous to the constitutional amendment of November 2, 1874, under which the city of New Orleans was forbidden to “increase her debt in any manner or form, or under any pretext.”

Now, in reviewing this very legislation in the Taxpayers’ case, we held that any legislative enactment which tended to legalize any debt contracted by the city of New Orleans after the prohibited date, November 2, 1874, was unconstitutional and therefore null. Strange to say, plaintiff seeks relief under the very terms of that decision. It must have been sadly misconstrued in her mind.

Eor her certificates which were issued after that date were either debts of the city or they were not. If they were debts, they are null because issued in violation of the Constitution, and the funding of the same is forbidden under the terms of the decision; if they are not debts of the city, they find no place under the provisions of a constitutional mandate which is therein held to contemplate exclusively the valid indebtedness of said city.

We therefore conclude that plaintiff has utterly failed to make out a case of indebtedness against the city of New Orleans, and that she is not entitled to the relief which she asks of the courts.

Judgment affirmed.

On Application eor Rehearing.

The mainstay of this application is the following expressions in our opinion : “Hence it is obvious that, under the provisions of Act No. 123 of 1874, as well as under the effect of the section of the Act of 1873, just transcribed, the holders of school certificates can look only to the uncollected appropriations of the respective years for which the same have been issued. This shows the fullest extent of plaintiff’s claim against the city of New Orleans,” the quotation in the brief ends here, but the sentence in the opinion continues thus, “ which is simply a collecting agent, owing no other account to the State or to any other authority, beyond an effort to collect, and a payment of the amounts collected.” The last words of the paiagraph were doubtless inadvert ently omitted in the quotation; it appears that they materially modify and restrict the meaning of the opinion as construed by plaintiff’s counsel under the incomplete quotation. The inference drawn from our language is that we recognized thereby some right of action by holders of school certificates directly against the city of New Orleans, and itis suggested that such a judicial recognition should have been ‘'preserved by a consistent decree.”

We can but regret the faint hope which our inartistic language has inspired to plaintiff.

It is the more unfortunate from the fact that we had labored with great pains and caution to impress in our opinion the undisputed theory that there was no earthly privity between the city of New Orleans and any holders of school certificates, who were exclusively creditors of the school board, and not of tlie city.

We have been unfortunate in the use of language if our utterance can lie fairly construed to mean that any certificate holder could personally enforce any claim against the city for uncollected appropriations of the respective years for which his certificates had been issued ; we had thought that the formal declaration that the city was but a “collecting agent owing no account to the State or any other authority beyond an effort to collect,” etc., would leave no doubt of our real meaning, which was that the right to urge any claim for collected or uncollected balances on any one of, or the three years’ appropriations, rested in the State or the school hoard only, and that the funds thus received would be distributed pro rata among all the holders of valid school certificates.

We can hut repeat our unshaken conclusion that the school certificates for the years 1874, 1875 and 1876, which are yet outstanding and unpaid, never have been a part of the valid floating indebtedness of the city of New Orleans, and that no constitutional legislative enactment thus far adopted has had the legal effect to make them debts of, said city. Hence the holders of such certificates can under no possible contingency obtain, through the courts of this State, valid judgments therefor against the city of New Orleans.

A second and very thorough study of the case has satisfied us of the entire correctness of onr views as expressed in our first opinion.

Rehearing refused.


author: Todd, J.

text:
    9684.
    Mrs. S. A. Greening vs. J. M. T. Elliott, et als.
    When a widow residing in one parish entrusts the management of a plantation situated in another parish bo her son, who makes the purchases for the plantation and. ships the crops thereof in his own name, she will not be thereby estopped from claiming the working animals or the crops on the place when seized for the debt of the son and manager, especially wlion such debt has not "been incurred in the business or administration of the plantation.

      PPEAL from the Tenth District Court, Parish of Red River. Hall, J.

      Bogan & Head, for Plaintiff and Appellee.

      L. B. Watkins and Bierson & Hull, for Defendants and Appellants.
   The. opinion of the Court was delivered by

Todd, J.

Schmidt & Ziegler, of New Orleans, having a judgment against one J. R. Greening, issued execution thereon and caused to be seized a lot of mules and a number of bales of cotton on a plantation situated in the parish of Red River, as the property of the judgment debtor.

Mrs. Sarah A. Greening, the mother of J. R. Greening, enjoined the execution and claimed the ownership of the property thus seized and $1,000 damages for the illegal seizure.

The injunction was perpetuated, the plaintiff’s title to the property recognized and her demand for damages rejected.

Schmidt & Ziegler have appealed, and no motion is made for an amendment of the judgment.

The plaintiff’s residence is in the town of Mansfield, DeSoto parish, where her husband had resided before his death, and where he died. The plantation referred to was an acquet of the community between the spouses, and was purchased by the plaintiff at succession sale.

After her husband’s death, J. R. Greening took charge of the plantation, working stock, etc., and was manager and agent for his mother. He attended to the cultivation of the plantation, made the purchases therefor, gathered and shipped the crops and applied the proceeds thereef to the support of his mother and family in Mansfield. The mules seized were some of those purchased by the agent and manager for his mother, and. the place cultivated on her account, and the crops belonged to her. These facts are established by the testimony of both mother and son, and the plaintiff’s title to the plantation and the purchase of the mules thereon at the time of the sale of the place was a matter of record.

Her claim to the movables embraced in this suit is resisted on the sole ground that the plaintiff, by permitting her son to manage the plantation, to make the purchases and ship and sell the crops in his own name was estopped from disputing his title to the movables on the plantation seized in this case.

We see no force in this proposition, conceding that it was fully sustained by the evidence.

There was a peculiar fitness in plaintiff, an aged woman and in precarious state of health, consigning her plantation after the death of her husband to the management of her oldest son. The plantation and the movables, the stock or working animals were purchased by her, as stated. Her title thereto has never been diverted by any way known to the law, and Schmidt & Ziegler have no mortgage or privilege thereon. Though this is so, she, it is contended, cannot set up a claim to the' property because it has been seized for her agent’s debt, a debt, the consideration of which has not been shown to be in any manner connected with the cultivation or administration of the plantation. Whether the agent and manager conducted the busines in his own name or in that of his principal, under the circumstances of the case, it could not affect the title of the plaintiff to the property or her right to claim it against her agent, his creditors or anyone else.

Judgment affirmed.


author: Manning, J. Poché, J.

text:
    9716.
    Administrators of the Tulane Education Fund vs. The Board of Assessors et als.
    The University of Louisiana is a public institution that the Constitution has recognized, and commanded the Legislature to maintain and support it.
    By the Act of July 5,1884, a contract was made by and between the State and the Administrators of the Tulane Education Eund whereby the State delivered to the Administrators the rights, privileges, franchises, immunities and property of the University, and the Administrators engaged to dedicate all their revenues to its maintenance and development. This is a consecration of the income of the Administrators to public use, and the property from which that income i* derived is therefore exempt from taxation.
    The character or quality of taxability is not ineffaceably stamped on property and it may be removed by the act of its owner. The Legislature cannot exempt from taxation property that is constitutionally liable to it, but an owner of'property may translate it to the domain of constitutional exemption by dedicating it to a public use.
    Primarily the Legislature determines what is a public use, and when it has declared what may be so regarded, courts .will not interfere exceptin clear cases of usurpation or abuse of authority. What is for the public good and what are public purposes are for the Legislature to say, and it has a large discretion in determining these questions, which will not be controlled by the courts unless under the exceptions above noted and such like.
    Although the title to property be not in the public, if the revenues of it are dedicated wholly to public use and purposes, it is public property within the intendment of the Constitu- * tion, and possesses all the imraun Ities and is entitled to the exemptions from taxation of public property.
    APPEAL from the Civil district Court for the Parisli of Orleans. Mowroe, J.

      F. I). White, James MeCormell and' F. H. Farrar, for Plaintiffs and Appellants.

      M. J. Ounningham, Attorney General; W. H. Sogers, City Attorney, and Blanc & Butler, for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The Board of Assessors of New Orleans placed upon the tax roll for 1885 the property given by Paul Tulane to the plaintiffs to promote the education of the white youth of that city. The object of the present suit is to annul that assessment on the ground that the property is exempt from taxation.

The same property was assessed in 1883 and the plaintiffs then claimed the exemption of it from taxation and we held the claim not good. State ex rel. Board of Admrs. Tulane Ed. Fund v. Bd. of Assessors, 35 Ann. 668.

Since that decision was rendered the General^Assembly have passed an elaborate Act, the evident purpose of which is to effect an exemption of the plaintiffs’ property from taxation, and our construction of that Act will determine the question whether the machinery adopted has accomplished the intended purpose.

It is scarcely necessary to say that the General Assembly cannot exempt property from taxation by its own will. Unless the expression of that will is in accord with the Constitution, it can accomplish nothing.

There has been for many years an educational institution in New Orleans called The University of Louisiana.” It was founded by the State and has been fostered by it. Eor some time only two colleges were in operation in it, those of law and medicine. Later a college for the humanities has been added under the humble name of an academical department. Successive Constitutions of the State have repeated the injunction to the Legislature to maintain it. The last Constitution has emphasized this command and made it imperative — the General Assembly shall from time to time make such provision for the proper government, maintenance and support of the University ot Louisiana as the public necessities and well-being of the people may require. Const. 1879, Art. 230. The pecuniary aid was limited to ten thousand dollars a year, and every Legislature since has appropriated the full sum, and we have held that these appropriations have the character and rank of constitutional appropriations. State ex rel. Ad. Un. v. Burke, 35 Ann. 457.

Tlie Act of the General Assembly of 1884 begins its title with the expression that the fostering, maintaining and developing the University of Louisiana is one of its objects, and its preamble recites that the Administrators of the Tulane Fund are willing and desirous to take charge of that institution and to devote all the revenues they now have or may ever have to its expansion and development. It then exacts that the Tulane Administrators shall hereafter have full control and the exclusive government of the University of Louisiana, and shall have all the powers, privileges, franchises and immunities that are now vested in the Trustees of the University, and also all of its property; and in order to enable the State to realize the full benefit of the intention of the Tulane Administrators to devote all their revenues to the public purpose of maintaining the University, the Act declares that a contract is thereby made by and under which the Tulane Administrators are irrevocably vested with all the franchises, privileges and immunities theretofore granted them, and in- consideration therefor they bind themselves also irrevocably to devote all their revenues to the public, purpose already stated. And then in recognition of the beneficence of Mr. Tulane and of the fact that the Administrators of the fund created by that beneficence were hereafter to devote it exclusively to fostering and developing this institution of the State, the name of the benefactor was directed to be hereafter prefixed to its ancient name so that the future designation of it shall be the Tulane University of Louisiana. Acts 1884, pp. 48 et seq.

Our learned brother of the lower court construed this Act as being a charter of a new University to which was transferred all the property and privileges of the University of Louisiana. If that be so, the University of Louisiana is abolished, for if all its privileges are transferred to another institution and all the property it had to make those privileges effective and useful to the public is likewise transferred, there will be nothing left but the name. We. cannot attribute to the Legislature the intention to denude of its powers and privileges an institution which the Constitution has commanded them to maintain, and thus to make of it a simulacrum without vitality or pow-'er. Nor can wre attribute to the Legislature a purpose to evade the Constitutional recognition of the existence of the University. Obviously the Legislature cannot abolish the University. It has its root in the fundamental law and that law has ordered the Legislature to foster and develop it. But if without assuming to destroy, the Legislature desiccates it by removing the fecundating sources of its strength and growth, it does practically destroy it.

No doubt the Legislature had in mind the creation of a new University as a consequence or result of the Constitutional amendment that it has directed to be submitted to a popular vote, for among the objects of this act of 1884 expressed in its title is:

“ To give said Board of Administrators of the Tulane Education Fund, upon the adoption of said Constitutional amendment, not only the full powers of administration over the University of Louisiana, conferred by this Act, but also the power to create, develop and maintain a great University in the city of New Orleans, which University so to be created shall perpetually be under their full and complete control.”

But the Legislature so far from attempting to abolish the University, by its own Act expressly includes its maintenance in the objects of its legislation, and remitted to a Constitutional amendment the derivation of authority to replace the former University by a new creation.

The legislative purpose to preserve the University of Louisiana is unequivocally and constantly manifested in every part of the Act of 1884. The title mentions it, the preamble gives prominence to it, and the enacting clauses confirm it. The University is delivered to the Tulane Administrators with all its franchises immunities and property to be governed and developed by them. Its existence is continued, and if it is not perpetuated, the Constitutional amendment alone will confer the power to replace it by another.

But the real question lies behind this, and it is whether the dedication by the Tulane Administrators of all their revenues to the support and maintenance of the University of Louisiana is such dedication to public use as will exempt their property from taxati on propño rigore.

It is thus apparent that the question presented in this case is wholly different from that considered and decided in the former one — the question then being whether the property of the Board was taxable, its income being devoted to education, and we held that it was because it was private or corporate income.

The first exemption from taxation by the Constitution is “all public property.” Art. 207. The University of Louisiana is not only a public institution but the Constitution has taken it under its protecting care. The entire revenues of the Tulane Administrators are dedicated to its support. The State has contracted with them to deliver this public institution into their hands on the condition that their revenues shall be wholly applied to its maintenance and development, and they have accepted the contract and-thereby made the University the usufructuary of all their property. Whatever taxes are payable upon this property must necessarily be paid out of these revenues that have thus been dedicated to a public use, that is to say, must bo paid by the University. Whatever diminution of these revenues is made by the payment of taxes is a diminution pro tanto of revenues that have been consecrated to public use, and it is admitted that the taxes for 1885 and 1886 exceed the sum that the State has annually appropriated to the University. So that if taxes are collected from the Tulane Fund and the State continues its appropriation, she will receive money only to pay it back. But the plaintiffs have refused to receive this annual donation from the State since the passage of the Act of 1884, and they have expressly waived all right to it and all right to any future appropriation, and this waiver is stated in the Act to be an additional consideration supporting the contract made therein. Sec. 6.

The plaintiffs have complied with their part of that contract. From August 1, 1884, when they took charge of the University to the close of 1885 they have expended near a hundred thousand dollars (exact figures $98,259.50) upon it, including the cost of insurance and repairs of the buildings, and these were the property of the University before it was turned over to them. Their revenues have conserved its property, paid its current expenses, and have begun to develop a languishing and resourceless institution into vigorous and healthy life.

The usufructuary is bound to pay all the taxes on the property that is subject to the usufruct, Rev. Civ. Code, Art 578, and as the University of Louisiana is the usufructuary of the Tulane property, it follows necessarily that whatever taxes are paid will be paid by the University. The only reduction or diminution of the revenues of the University possible under the contract of the plaintiffs with the State is the diminution that would be wrought by the sanction of the State’s demand for taxes. Now the University cannot be taxed. The Constitution created it. Its property is public property within the intendment of the Constitution.

But the property of the Tulane Board is not the property of the University, and it is the property of the Tulane Board of which taxes are demanded.

The title of property does not invariably ñx the person who is obliged for the taxes upon it. As we have just stated, the usufructuary and not the titular owner pays on property held in usufruct. Familiar illustrations of the rule are found in those instances where private property's taken for a public road, or a dedication of a lot of ground is made on condition that a court-house is built on it. The ownership remains where it was but the owner pays no taxes.

And these illustrate another proposition, viz: that priva1 e property which is subject to taxation becomes exempt by the change that is made in its use. The character of taxability is not ineffaceably stamped on property, and it may be removed by the act of its owner. Whenever he dedicates it to public use it passes under thfe dominion of the exemption that is accorded to public property. And that is what we meant when in the earlier part of this opinion we said that the question was whether the consecration of the plaintiffs’ revenues to a public use did not proprio vigore operate an exemption. The Legislature cannot exempt from taxation property that is constitutionally liable to it, but an owner of property may translate it into the domain of constitutional exemption by dedicating it to a public use.

And primarily the Legislature determines what is a public use, and when it has declared what may be so regarded, courts will not interfere except in clear eases of usurpation or abuse of authority. Inhab. of Wayland v. Co. Com. Middlesex, 4 Gray, 501. The Act of 1884 declares that the plaintiffs’ revenues are devoted to public use, and as a legal consequence the property that produces them is exempt from taxation unless we are prepared to say that the legislative discretion has been unlawfully or evasively exercised, for that is said to be the criterion by which a court is to test it.

Says Cooley: “ Taxes should only be levied for those purposes which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does constitute a public burden, are questions which the Legislature must decide upon its oion judgment, and in respect to which it is vested with a large discretion which cannot be controlled by the courts, except, perhaps, where its action is clearly evasive, and when under pretense of a lawful authority it has assumed to exercise one that is unlawful.” Const. Lim., p. 157.

We do not announce a new legal principle when we hold that property, dedicated to a public use, the revenues of which serve a public purpose, is public property although the title be not in the public. When a judgment creditor of the Charity Hospital levied on its property, we maintained an injunction of its sale saying, “It may not be that the title to the. property from which their revenues may in whole or in part be derived is literally in the State; but nevertheless the State owns them, or holds them in trust, though it be for the benefit of those they were established to serve.”

“If, then, this Hospital is a State institution, maintained and administered as we have seen by State authority, it is the first duty of the State to secure and preserve to it the essential conditions of its existence for the purpose for .which it was established.” * * *

“ It is utterly inconsistent with this duty and the protection that the State owes to this institution to suffer it from any cause or at the instance of creditors or other persons, to be deprived of its property, without which its work of beneficence and charity cannot be accomplished.” State v. Finlay, 33 Ann. 114.

If it is the first duty of the State to prevent others despoiling the property of an institution under its protetion, much more is it its duty to abstain from despoiling that property itself. The sale of the property of the Charity Hospital at the instance of its creditor would have deprived it of a part of its revenue, and the sanction of the State’s demand for taxes of the Tulane property will have a like effect upon the revenues of the University. As we did not allow the one, neither can we the other, and the plaintiffs are entitled therefore to a judgment decreeing the exemption of their property from taxation.

We felicitate ourselves that the way to this consummation has been timely cut by the Legislature so that the stream of Paul Tulane’s bounty shall flow on undiminished, while the children of our State through successive generations shall rise and call him blessed.”

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiffs now have judgment against defendants annulling the assessment of the property donated them by Paul Tulane and decreeing the same exempt from taxation. It is further decreed that the plaintiffs recover their costs in both courts.

Fenner, J., recuses himself, being one of the administrators.

Concurring Opinion.

Poché, J.

Without yielding any of my views as expressed in my dissenting opinion in the case between the same parties in the 35th Annual p. 672, and believing now as I did then that the property donated by Paul Tulane for the purpose of education of the white youth in the city of New Orleans, is exempt from taxation under the provisions of Article 207 of the Constitution, irrespective of the subsequent contract between the Board of Administrators and the State of Louisiana under the provisions of the Act of the General Assembly of 1884, I concur in the opinion and decree in this case.


text:
    No. 9612.
    The State of Louisiana vs. Celia Harrison.
    The State, having once taken proceedings for the forfeiture of a bail bond in a criminal case, and having obtained a judgment against the parties, which is final and lias never been, in any mode, annulled, avoided or reversed, cannot recover another and new judgment on the same bond against the same parties.
    APPEAL from the Second District Court, Parish of Webster. Drew, J.
    Ilf. J. Cunningham, Attorney General, and J. A. W. Dowry, District Attorney, for the State, Appellee.

      Wafldns & WatMns, for Surety on Bail Bond, Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The facts of this peculiar case are as follows :

Celia Harrison, having been arrested on a charge of petty larceny, furnished a bond in the sum of $75 with T. B. Neal as surety for her appearance before the District Court. Subsequently she was indicted and appeared in the District Court and furnished the usual bail bond in the sum — of $150, with Neal as surety. Of course, this terminated and discharged the former bond.

At the April term of 1883, Celia failing to appear and she and her surety having been duly called, her bond was declared forfeited, and a judgment was regularly entered and signed by the Judge, but, in drawing it up, no doubt by clerical error, the amount inserted was $75 instead of $150, which the bond called for.

On this judgment the State issued execution under which property of the surety was seized.

Neal, the surety, then brought an independent injunction suit restraining tlie execution on several grounds; amongst others, that the judgment purported to be on a bond for $75, and that the only bond in that amount which he had given was terminated and discharged. In this suit a simple judgment was rendered perpetuating the injunction, without, however, annulling the judgment or stating the grounds on which the injunction was sustained.

Thereafter at the June term of 1884, the Court entered a new judgment for $150, without any reference to the former judgment, but based on the failure to appear and other proceedings at the April term of 1883, and purporting to be signed mmopro tune.

On this judgment fi. fa. issued and Neal brought another injunction suit, pleading, amongst other grounds, the former judgment as res adjudicata and the existence of two judgments against him on the same forfeiture, and also the nullity of the last judgment. From a judgment dissolving his injunction, Neal appealed to the Circuit Court of Appeals. That Court looked upon the last judgment as an attempt to correct the clerical error of the former judgment, but held that, even if such correction were permissible, it could not be made except by contradictory proceedings after due notice to the parties. Hence it reversed the judgment appealed from and perpetuated the injunction, reserving, however, to the State the right “to take such proceedings as may be proper according to law, either upon the original judgment or upon the bond for $150.”

Acting under this reserve, the State elected to take entirely new proceedings on the bond, and on fixing of the case for trial at the December, 1885, term of the court, called the principal and surety to appear as directed by the law. The surety, Neal, did appear and opposed the forfeiture, pleading, as a bar thereto, the former judgments.

The court, nevertheless, proceeded to pronounce the forfeiture and rendered judgment against the parties for $150, from which the present appeal is taken.

We think the judgment_must be reversed.

The State has had her day in court on the forfeiture of this bond, and has obtained a judgment against the parties, which is final and which has never, in any manner, been annulled, avoided or reversed.

Referring to Neal’s injunction suit against the execution of the first judgment, we find that the prayer of his petition to have the nullity of the judgment decreed, was not granted in the judgment thereon which simply perpetuated the injunction against the threatened sale of the property; nor has it been otherwise set aside. While that judgment stands, the State cannot recover a new judgment against the parties on the same bond.

This is not, in the slightest degree, inconsistent with the reserve contained in the decree of the Circuit Court, which merely extended to “ such proceedings as may be proper according to law,” without determining, in advance, whether they would be legal or not.

So we shall reserve the right of the State to correct the alleged clerical error in the original judgment, if it can be legally done, without deciding whether or not it can be legally done, and also to take such further proceedings in execution thereof as may be legal. We have mentioned the proceedings in the Circuit Court, only as part of the narrative of the ease, without intimating an opinion as to their jurisdiction in such a case.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed at cost of the State in both courts, without prejudice to the right of the State to proceed legally for correction of the original judgment of forfeiture, or otherwise in execution thereof.


author: Bermudez, C. J.

text:
    No. 9615.
    The State of Louisiana vs. Joseph Smith.
    Oral testimony is admissible to prove the official character of the witness on the stand, when his capacity is not a matter at issue.
    A witness cannot be permitted to testify to part of a conversation, his memory being deficient as to the other parts, unless such part of the conversation be essentially to make up a deficiency or connecting link, which otherwise would remain unexplained and a foundation has been previously laid.
    A motion for a new trial on the sole ground that the verdict is contrary to law and evidence, is not entitled to notice in this court.
    Where it is charged that an offense was committed at a certain point, the word at means in.

    In an indictment it is not necessary to specify that the deceased (Martha (Jalhoun) was a human being.
    The words, c: Foreman Grand Jury,” following the signature of the foreman, mean Foreman of the Grand Jury.
    A verdict finding the prisoner guilty is a verdict against the defendant.
    A PPEAL from the Fourteenth District Court, Parish of Calcasieu. LX. Read, J.

      M. J. Cunningham, Attorney General, and Andrew J. Kearney, District Attorney, for thfe State, Appellee.

      Randall H. Odom, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was indicted for murder, found guilty of manslaughter and sentenced to ten years hard labor. He appeals from the verdict and sentence.

The record contains four bills of exceptions.

I.

The first bill is to the admission of oral testimony to prove that the witness on the stand was a magistrate, it being claimed, that the best evidence, namely, his commission, should have been produced to prove that fact.

The official capacity of the witness was not at issue. The office of which he was the incumbent was known to the law and the object in view was to show that the witness was at the time in office and to establish his identity. It is difficult to perceive how the production of the commission would have proved those two facts. The evidence was properly received.

II.

The second bill is to the exclusion of the testimony of a witness who had declared that she could make a partial statement only, of a conversation — not recollecting the whole substance of the same.

The rule is that garbled testimony should not go to the jury, unless perhaps where it is essential to fill up a gap, or form a connecting link, which otherwise would not be explained.

There is nothing alleged to justify an exception to the rule.

The object of the question which the court did not permit to be answered, was to establish a conversation with the deceased who had, it is claimed, threatened to poison herself, if the accused whipped her.

The bill does not show that any foundation had been laid for such an inquiry; for instance, that the deceased had come to her death by the taking of poison.

Laying such basis was a condition precedent, in the absence of which the testimony was inadmissible.

III.

The third bill is to the refusal of the Judge to grant a new trial because the verdict was contrary to law and evidence.

It is entitled to no consideration in this court, as it refers to facts which went to the jury and over which this court has no jurisdiction.

IY.

The fourth bill is to the overruling of the motioh in arrest.

The first ground on which this motion was based is that the indictment charges that the offense was committed at instead of in the parish of Calcasieu.

The second ground is, that the indictment does not show that the deceased was a human being.

The third ground is, that the indictment does not show that H. C. Gill was the foreman of the grand jury.

The fourth and last is, that the verdict is illegal, as it finds the prisoner guilty of manslaughter.

It is sufficient to answer:

1. That the word at means in, charging that Joseph Smith at the parish of Calcasieu * * ■* unlawfully, feloniously, etc., did kill and murder, etc., clearly charges that Joseph Smith, in the parish, did, etc. If the use of the word was objectionable the accused should before trial have opposed it. He has not done so, but has gone to trial without any protest.

2. It was not necessary to have specified in the indictment that the deceased, Martha Calhoun, was a human being.

Those are a Christian and a surname which can be legitimately given to a human being only. The offense charged is murder. The use of the term implies the killing of a human being.'

The accused must have understood it so, for he did not object to the indictment by a motion to quash before trial.

3. The indictment is indorsed: “A true bill. Signed, H. C. Gtll, Foreman Gtramd Jury.'n The preposition “ o/” was not necessary and is implied.

4. A verdict finding the prisoner guilty of manslaughter is unobjectionable. The prisoner is the accused and the accused is the defendant. The prisoner is therefore the defendant.

Quibbles of that character cannot avail the defendant.

It is due to his counsel to say that he has not attempted to support them in this court, either by oral or printed argument.

Judgment affirmed.