author: McEnery, J.

text:
    No. 11,269.
    Albert Mallard et al. vs. Widow Pierre Dejan.
    A sale oí minors’ property without an order o£ court, and on the recommendation of a family meeting, is null and void.
    The adjudicatee at the sale of minors’ property, without an order of court, can not be compelled to accept the same, on the deliberations of a family meeting called to ratify such illegal sale. His assent to the ratification is essential under Article 1794 of the Civil Code.
    An order for the sale of minors’ property at private sale, under Act 25 of 1878, does not authorize a public sale of said property.
    When minors’ property has been illegally advertised for sale, no order of court having been granted for its sale, and a family meeting is convened, and they recommend the sale of the property on the terms and conditions as advertised, and the judgment of homologation is rendered only a few hours before the sale, said sale can not he construed into a private sale made under the judgment rendered.

      The adjudieatee, not having bargained for the property at private sale, can not be compelled to accept the title to said property, as it is on its face suggestive of future and serious litigation.
    APPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Geo. G. Andry and Ghas. F. Glaiborne for Plaintiffs and Appellants:
    A private sale within the meaning of Acts 184 of 1869 and 25 of 1878 is one which is not preceded nor governed by the articles of the Civil Code and the formalities in relation to judicial partitions.
    The order to sell at private sale is not violated if, by consent of all parties, and in order to obtain the best price possible, the property is advertised for sale and cried at auction and adjudicated for a price and on terms fixed by the family meeting. The advertisement was an act of supererogation beneficial to the minor and of which he can not complain.
    The ratification made by the principal of the unauthorized act of one assuming to act in his name is retroactive to the date of the act and is equivalent to an original authorization. 9 L. 51; Story on Agency, Sec. 239, and authorities quoted.
    The submission of the issues in a partition suit do not make it a consent judgment nor a nullity, if the judgment was rendered after legal formalities. 38 An. 110, 521.
    To sell minor’s property at private sale to effect a partition under Act 25 of 1878, it is not necessary that there should be a suit for partition, nor citation to the minor, nor judgment of partition contradictorily pronounced. It suffices if the order of sale is obtained with the assent of the tutor. 42 An. 481, 357.
    When there are defects in the title of property sold at private sale, or irregularities in the proceedings leading up to a judicial sale, or encumbrances upon the property at the moment of sale, on account of which the purchaser declines to take the title, he may be forced to comply with the sale to him, if afterward the defects in the title are remedied, the irregularities cured, or the encumbrances removed. 7 An. 477; 36 An. 989; 21 An- 282; 6 B. 266;7 La. 286; 38 An. 518.
    Under the letter and spirit of Art. 1794 (1788) of the Civil Code, all contracts made by minors and other incapacitated persons may be ratified by their tutors or curators either by their own action or with the concurrence of a family meeting and the judge in cases when these are required. Likewise all contracts made by tutors and others in excess of their authority or without the legal formalities may be ratified by the sameauthority which might have originally sanctioned the act.
    The overwhelming weight of authority is in favor of the power of the court and family meeting to do by ratification that which they could do by original act. In fact, such is the textual provision of our Code. C. C. 1794; Bank of Lafayette vs. Delery, 2 An. 648; Vaughan vs. Christine, 3 An. 328; Dunbar vs, Creditors, 2 An. 727; Charpaux vs. Bellocq, 31 An. 164.

      Ghas. J. Théard for Defendant and Appellee:
    Where the adjudication made at public auction was of property in which minors were interested and there was no order of court for such sale, and none of the formalities prescribed by law for the alienation of minors’ property by a sale at auction were observed, the adjudication is not legal and is null.

      Even if it were true (and in this case it is not true) that such a sale has been made by virtue of a judgment authorizing a private sale, the adjudication would be illegal and null.
    A private sale and a sale by auction are not the same thing. Civil Code, Arts. 2601, 2602, 2603, 2604, 2605, 2606, 2607, 2608.
    Acts Nos. 134 of 1869 and 25 of 1878 did not abrogate those articles, nor the articles of the Code on the subject of the alienation of minors5 property at public auction.
    Said acts merely provided an additional and distinct mode of effecting the partition of property in which minors were interested.
    The partition may be by private sale, under this special statute, if the parties so desire. But, if they do not want to sell by private sale, they must comply with the formalities prescribed by the general law for auction sales and for the alienation of minors’ property.
    The theory that Act 25 of 1878, when it speaks of a private sale, may be interpreted to mean a voluntary sale by auction, is not only contrary to the plain and unambiguous letter of said act, but would defeat its object, which is, clearly, to save to the minors the expense of an auction sale.
    The proceedings of the parties for a pretended partition by private sale were a mere scheme devised by the majors and the tutor of the minors at the last hour for the-purpose of maintaining (if found to be advantageous) an authorized auction sale already advertised. (This is conceded by the parties themselves.) The proceedings were a judicial farce, in which the tutor played the part assigned to him by the majors. They are utterly null.
    The sale of minors’ property, or-of property in which they are interested, must always be made by judicial authority (Code of Practice, Arc. 1020). The tutor himself can not order the sale, much less can an agent verbally (!) constituted do so. The court alone, on tne advice of a family meeting, has the power to order the sale.
    The sale of minors’ property derives its force and validity entirely from the law; and where that law is not followed the authority which stands in place of the owners’ consent is wanting.
    In regard to minors’ pi'operty any other mode of alienating but that which is directed is prohibited. The law must be exactly pursued, and the order of court strictly observed. Elliott vs. Labarre,‘2 La., at page 328; Lemos vs. Garcia, 1 Martin N. S,, at pages 338 and 339.
    A person who has contracted with an incapacitated person may, onk discovering his error, apply to the incapacitated person, or his legal representative, to have the imperfect contract affirmed or annulled.
    Where the adjudication of property is null and the purchaser does not apply for a ratification, he can not be compelled to accept a new contract of sale resulting from posterior proceedings, to which he was not a party, to which he gave no assent, and which, on the contrary, were resorted to against his express protest. *
    It is the assent of a party, or that of the person he contracts with, which gives the contract its binding force. Both parties must be bound, or neither
    As the application of the purchaser for a ratification of the sale could not have formed a contract without its acceptance by the family meeting, so the determination of the family meeting can not constitute a contract without the intervention of the purchaser. Civil Code, Art. 1794 (1788); Cavelier vs. Germain, 6 La. 215.

      The eases of Dunbar vs. Creditors, 2 An. 727, and Oharpaux vs. Gibert, 81 An. 164, cited by counsel for appellants as overruling Cavelier vs. Germain, 6 La. 215, are in perfect accord with that decision
    In every other ease cited by appellants the complaint was merely of “ irregularities” in the proceedings leading up to the sale. But in each Case the minors’ property had been sold with due authority of lavt, under a judgment of court duly rendered, and the sale had been duly and bona fide made in pursuance of the judgment of court. At such sales the purchaser is protected by the order of court.
    There is not a single ease in which an unwilling purchaser was ever compelled to accept a ratification of an unauthorized adjudication of minors’ property at. public auction.
   The opinion of the court was delivered by

McEnery, J.

Albert Mallard, Prudent Mallard, George Mallard, majors, and the minor children* of Maria Mallard, deceased, owned a piece of property corner of Royal and Bienville streets. ■

Some of the co-proprietors were desirous for a division of the property, which could not be divided in kind.

Without an order of court, based upon the recommendations of a family meeting, 'the parties, the minors being represented by their tutor, who was their father, agreed to sell said property at auction, and advertised the same for sale, on certain terms and conditions, on the 30th of November, 1892, the sale to take place on the 14th of December, 1892, Spear & Escoffler being the licensed auctioneers to effect the sale of the property.

During the interval between the date of the first advertisement of the property and the day of the sale the parties became aware of the fact that judicial proceedings were necessary in order to divest the interest pi the minors. Therefore, on the 7th of December, 1892, the major heirs filed a suit against the minor co-proprietors for a partition of the property and prayed for a judgment of partition by private sale, under Acts No. 134 of 1869 and 25 of 1878. A family meeting was held in pursuance of this judgment, and advised that the property be sold at private sale. Upon the petition of the major heirs and the tutor, who had accepted service of the petition in the suit, the deliberations of the family meeting were homologated a few hours before the sale was made by the auctioneers, on 14th December, at 12 o’clock, as advertised on 30th November, 1892. The property was adjudicated to the defendant, the Widow Pierre Dejan, who bid the price of $17,000, being $2000 in excess of the amount at which it was ordered sold at private sale.

There were two other properties cried the same day in pursuance of the advertisement, and sold under the same circumstances. The adjudícateos have complied with their bid.

Believing the adjudication of the property to her illegal, the defendant addressed to the auctioneer and the parties a communication in which she demanded the return of the amount deposited by her, and declined to accept title.

After the defendant had declined to accept title, the tutor and father of the minor children presented a petition to the Civil District Court of the Parish of Orleans, in which he recited all the facts leading up to the sale and the refusal of defendant to accept title, and averring that in his opinion the sale was advantageous to the minors and that it would be to their interests if the sale was ratified and the adjudicatee made to comply with her bid; he prayed for the convening of a family meeting to ratify said sale and to compel the adjudicatee to comply with her bid. The order for the family meeting was granted, and it was convened in pursuance of the order, and advised that all the said proceedings leading up to the sale, including the same, be affirmed and ratified.

The deliberations of this meeting were homologated. On the 30th December the defendant protested against the proposed ratification of the sale to her and declared she would not acquiesce in or assent to the ratification, and renewed her demand for the return of the deposit made by her.

The defendant in answering denies the validity of the adjudication for several reasons:

I.
That the judgment rendered by this honorable court, Division 1D,’ on 14th December, 1892, in the suit of A. Mallard et al. vs. The Minors Dechamps, No. 37,461 of the docket of this court, did not order or authorize the sale of said property at auction, but on the contrary said judgment and the family meeting held in behalf of said minors Dechamps, and upon whose advice said judgment was rendered, ordered that said property should be sold by private sale.
II.
That even if it could be pretended that a sale by auction for the purpose of effecting a partition between heirs of age and minors might lawfully be made under a judgment ordering that the property be sold by private sale, the auction sale herein would be and is an absolute nullity, because said auction sale was not made by virtue of the aforesaid judgment, and because the legal advertisements indespensably required for the sale at auction of minors’ property were not published, and in point of fact no advertisement whatsoever took place between the date of said judgment and the date of said auction sale.
III.
“That said auction sale was and is also a nullity, not only as to the minors, but as to the major heirs themselves, because the auctioneer did not receive from the sellers, before the sale, authority to sell at auction, and the terms and conditions of the sale in writing, as required by law.
IV.
“That the proceedings in the aforesaid suit No. 37,461 were consent proceedings carried on by the major heirs and the tutor of the said minors, apparently for the purpose of effecting a partition by private sale, but in reality with not the slightest intention of making a private sale, their sole purpose being to do away with the formalities prescribed by law for the sale of minors’ property at auction under an advertisement already made.
V.
“ That said pretended partition proceedings are moreover null and void, because there was no citation of the said minors, their tutor having without any authority in law waived the citation, and also because the deliberations of the family meeting in behalf of said minors were not homologated by the judge of the parish in which the said minors reside.”

There was judgment for defendant, rejecting plaintiff’s demand. They appealed.

The plaintiffs contend in answer to the first objection of defendant that the authority to sell at private sale includes the authority to sell at auction with all its formalities and advantages, provided the price is obtained and the terms followed as fixed by the family meeting, which advised and recommended the sale of the minors’ property at private sale.

Before the passage of Act 25 of 1878, it was sacramental that the provisions of the code in relation to the alienation or mortgage of minors’ property should be followed strictly. Articles 339, 340, 341, 342, Oivil Oode.

In the case of DeLemos vs. Garcia, 1 N. S. 338, the question was raised whether there was a distinction in the sale of minors’ property made by executors and that made by tutors. “We have found,” said Judge Porter, “in the law a difference in the formalities by which these sales are to be made, but we have found none in the necessity of pursuing those prescribed, and we dare not now introduce for the first time the principle that the sale of immovable property belonging to minors, no matter by whom made, can be legally made unless the law is exactly pursued.”

And in the case of Elliott et al. vs. Labarre et al., 2 La. 326, it was held that the sale of minors’ property, or that of a succession, where the heirs are absent, must pursue the forms of law directed for its alienation or the sale must be annulled, and this doctrine, based on the provisions of the code, has been held from these early decisions to the latest on the same subject announced by this court. Act 25 of 1878 in no way affects this jurisprudence. The forms of law prescribed are to be followed, whether at public or private sale, to effect a partition. Fix vs. Koepke, 44 An. 747.

Was the minors’ property sold in accordance with law, and has the law which directed the sale been complied with?

The property was advertised for sale by agreement among the major heirs and the tutor. There was no order of court based upon the advice and recommendation of a family meeting for its sale. The terms of sale were fixed by this agreement and the sale was made as advertised.

The sale would have been an absolute nullity if consummated as advertised; but during the course of the advertisement an order of court was obtained for the sale of the property at private sale to effect a partition in accordance with Act 25 of 1878. Was this order remedial in its effects, and did it cure the preceding defects ? We think not. The advice of the family meeting was for a private sale. The judgment of the court homologating the proceedings ordered the property to be disposed of by private sale. That in this particular case the sale was beneficial to the minors can make no difference in the law applicable to the sale of minors’ property. Public policy demands a strict enforcement of the provisions of the code for the sale of minors’ property — that is, that the law under which it is sold be pursued. Civil Code 1341; Succession of Morgan, 12 An, 153; Savage vs. Williams, 15 An. 250; Fix vs. Koepke, 44 An. 747.

Act 25 of 1878 only provides an additional mode for the sale of minors’ property which is held in indivisión. The record does not show that there was any attempt to sell at private sale. The public sale, already advertised, was used as the means of diposing of the minors’ interest. It is true the terms and conditions of the public sale were the same as those fixed by the family meeting.

But still it was a public sale, differing from a private sale, both in the proceedings necessary to provoke it for the sale of minors’ property and in the costs attending the respective methods.

A greater price might have been obtained at private sale, In the future the minor might have attacked the sale and alleged that he had been defrauded; that his property was sold at public instead of private sale, at which he would have received a greater price. The history of jurisprudence instructs us that such a proceeding is not only possible but probable, and the defendant in this case was therefore tendered a title suggestive of future litigation.

We have repeatedly held that an unwilling vendee can not be compelled to accept such a title. Succession of Weber, 16 An. 420; James vs. Meyer, 41 An. 11.00; Beer vs. Leonard, 40 An. 847.

The advertisement of the sale of the property without a decree to support it was continued until the last day, when it was sold. On this day, a few hours before the sale, the decree was rendered ordering the sale of the property to be made by private sale. The fact that this decree was rendered could not make the public sale, unauthorizedly advertised, a private sale. There is no evidence that any attempt had been made to sell at private sale. The fortunate circumstance that a bidder opportunely appeared and offered more than the appraised value does not negative the fact that more might have been obtained by a thorough canvass for a vendee. It is not improbable that bidders refrained from bidding because of the absence of an order to sell in the first instance. A prudent buyer would look to the source for the sale of the property. This is his protection, and not finding an order he would refrain from bidding. The effect of the advertisement and the .absence of the order were to destroy competition.

If the adjudicatee had complied with the bid and her title should afterward be attacked by the minors, when they attained majority, what would be the defence ? If she relied upon the order of court and the law for the sale of minors’ property, she would find both wanting.

If upon the judgment ordering the property to be sold at private sale the answer would be “ You purchased at public sale.”

lb was not offered to you at private sale, and your bid was invited by the advertisement for a public sale.”

It is evident that the sale was made in pursuance of the advertisement at public auction, without an order of court, and not in pursuance of the order to sell at private sale.

There was no agreement by defendant to purchase under the order to sell at private sale.

One purchasing at auction sale in pursuance of an advertisement must be viewed, as one purchasing at auction sale and not as a vendee in a conventional contract at private sale. Collens vs. Demarest, 45 An. 109.

The plaintiffs contend that the adjudication to the defendant was ratified by the proceedings of the family meeting and the judgment homologating the same. He relies upon Art. 1794, Civil Code, and a number of cases quoted in his brief, which do not support his contention.

We have earfully examined these cases and find thatthe facts bear no resemblance to these in this case. ' In them the property of the minors had been sold in pursuance of a decree of court which protected the purchaser. In all of these cases there was authority for the sale, and the informalities complained of were relative in their nature and curable by ratification.

In Bank of Louisiana vs. Delery, 2 An. 648, there were relative nullities which only could be taken advantage of by the minor, and which he ratified on attaining his majority.

Dunbar vs. Creditors, 2 An. 727, the contract had been executed. The father of the minors had surrendered in his insolvency community property, one-half of which belonged to the minors. It was sold by the syndics without an order of court, based on the advice of a family meeting.

The syndic filed a tableau of distribution, which the minors opposed, claiming, with privilege, their portion of the proceeds of the sale of the community property. Their demand was sustained. The court required the sale of the minors’ interest ratified through the intervention of a family meeting before they should receive their portion of the proceeds. This was, in effect, carrying out the letter and spirit of Art. 1794 of the Civil Code, as it was an order in behalf of the party, contracting with a minor, calling for a ratification of the contract by a family meeting and an order of court on their deliberations.

This case, we think, sustains the position of the defendant herein.

Vaughan vs. Christine, 3 An. 328: In this case the intervenor claimed that certain property which had been previously partitioned among the heirs should be restored to the succession of the father. More than five years had elapsed since the majority of intervenor, and the court declared the action barred by prescription.

In Charpaux vs. Bellocq, 31 An. 164, the contract of sale had been executed. In 1860 the property was sold by a surviving widow to the defendant. It was held in common with the minor children, and sold without the intervention of a family meeting.

The defendant sold the property to the plaintiff Charpaux on 14th June, 1866. In this act of sale it was stipulated that the notes given by Charpaux for the price should remain in his hands until the title could be perfected to the property. On the 25th March Charpaux instituted suit to annul the sale. The major heirs ratified the sale, and one of the heirs being a minor a family meeting was called and ratified the sale, which proceedings were duly homologated. The demand of the plaintiff was rejected. This case comes under the Art. 1794 of the code, the title being perfected in the interest of and on behalf of the first vendee, the vendor of plaintiff.

In Chalon vs. Walker, 7 An. 477, the parties were all majors. Two were married women, who in the act of partition were not authorized by their husbands, the answers in the suit for the same, however, alleging they were duly authorized. The property was sold at public sale. No experts had been appointed to determine whether the property could be divided in kind or not.

The court held that these informalities were such that the parties having an interest could alone waive them, and, having offered to do so, they should have time in which to ratify the sale.

In Melancon Heirs vs. Duhamel, 7 La. 286, the contract was executed. The suit was to recover the price of land sold. Duhamel was evicted from a large portion of the land by one Broussard. He had called his vendor in warranty. Broussard in act of renunciation renounced in favor of Duhamel all the advantages, benefits, etc., he had obtained by the judgment of eviction. The warrantor had fully answered the call by preventing the execution of Broussard judgment, and giving to his vendee absolute protection. Judgment was rendered for the price.

In Grimshaw vs. Hart, 6 Robinson, 265, the suit was for the specific performance of a contract for the sale of land. The defendants refused to' comply with the contract, because of mortgages on the property. The mortgage creditors offered to intervene in the act of sale and relinquish their claims; A specific performance was decreed.

In Misner vs. Fulshire, 21 An. 282, the decree for the sale of minors' property Was made on the advice of a family meeting. The adjudicatees brought suit to have returned to them the price of the property which they had paid, on the ground that the major heirs had not been made parties in the suit for partition. The major heirs accepted their portion of the price, and the court held by doing so they had waived their right to attack the sale.

In the unreported case of the Succession of James Leichleiter, 36 An. 989, the heirs were of age; some had ratified the sale, others had not. Held that the vendee had the right to retain in his hands the portion of the price going to the heirs who had not ratified the sale.

In the Succession of Byrne, 38 An. 518, the adjudicates of the property sued to effect a partition declined to comply with his bid. The court compelled compliance on the ground that the adjudicatee was protected by the order of court, and that the irregularities complained of were not such as to cast a cloud on the title tendered.

These cases are in line with the code and the jurisprudence of this State, and not in conflict with the early decisions of this court already referred to and the case now noticed, which interprets the Art. 1794 of the Oivil Code. This article authorizes a party contracting with an incapacitated person on discovering error to call on the person having charge of the incapacitated person for a family meeting to affirm or annul the contract. In the case Oavalier vs. Germain, 6 La. 215, the plaintiff sued out a rule on the defendant to show cause why he should not comply with his bid on a house and lot adjudicated to him.

The defendant alleged that the tutrix could not give bond until two days after the adjudication. The tutrix, two days after the adjudication, submitted to the deliberations of a family meeting whether it was for the interest of the minors to have a new adjudication made or the one to defendant ratified.

They recommended the latter.

The court held that the ratification by the family meeting was of no avail without the consent of the defendant.

The syllabus is as follows: The subsequent ratification of a sale made under such circumstances by a family meeting on the application of the purchaser might have rendered the adjudication valid, but such ratification is of no avail when obtained on behalf of the minors.”

Under the plain textual provisions of Art. 1794 of the code, and the authority of this case, we do not think that the subsequent ratification by a family meeting, without the assent of the defendant, made valid the sale of the property to defendant.

The contract was imperfect and could not be perfected without the assent of defendant.

An imperfect title was tendered to defendant and she was not compelled to accept it. ■

Judgment affirmed.


source: Caselaw Access Project

author: ■Watkins, J.

license: Public Domain

text:
    No. 9741.
    Ernest Puech et al. vs. Mrs. Celestine Daret.
    Notwithstanding the alfairs of the Consolidated Association of Planters of Louisiana are in process of liquidation in a Federal court, a court of this State is quite competent to entertain, and, on sufficient proof, make absolute a rule taken for the cancellation of a mortgage resting on property against which another special mortgagee is proceeding by seizure and sale on a competing mortgage.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      T. J. Semmes & Legendre for Plaintiffs and Appellees.

      Joseph P. Hornor for Defendant and Appellant.

      M. J. Cunningham, Attorney General, for the State, Appellant.
   The opinion of the court was delivered by

■Watkins, J.

Ernest Puech obtained an order of seizure and sale against defendant’s plantation, in the parish of St. James, in the enforcement and foreclosure of a special mortgage securing payment of a note of $5500 with interest.

Pending advertisement of same for sale, Mrs, M. Daret, Pierre Pootz and plaintiff presented a petition to the court to the effect that Mrs. M. Daret is the present owner and possessor of the plantation mortgaged, by purchase from Mrs. Celestine Daret, and that long antecedent thereto Armand Duplantier had subscribed for thirty-seven shares of the stock of the Consolidated Association of Planters of Louisiana, and mortgaged said property to secure the same, and a loan of f9250 additional, and on which said shares all loan instalments and contributions have been paid.

That the amount of said stock mortgage is greater than the actual value of the land, and if paid nothing would remain of the proee eds of sale when realized to apply to petitioner’s mortgage; but as said indebtedness no longer exists, the inscription of the mortgage should no longer remain as an apparent incumbrance on the land, to their detriment; and they allege themselves to be entitled to have same canceled, and they pray for the cancellation thereof.

. The State of Louisiana, being a party defendant, excepts that the same question is at issue in a suit now pending in the United States Circuit Court, entitled Cressy vs. Consolidated Association, and adopts the exception taken by John Calhoun, receiver, which is to the effect that he declines the jurisdiction of the Civil District Court on the ground “that he can not be sued as receiver before the court that appointed him * * unless by permission of said United States Circuit Court, which has not been granted.”

Prom a judgment overruling these exceptions, and making the rule absolute, the State and receiver have appealed.

The exception urged is the same in principle as the one tendered and overruled in Lanaux vs. Recorder, 36 An. 975, and to which suit the State was a party, and in the course of our opinion we said:

“ This is a proceeding to. compel a ministerial officer to do what is alleged to be his manifest duty in a matter wherein it has been judicially declared the State has lost all interest,” etc. Also the court said:
“ The point made that this court is without jurisdiction because receivers have been appointed for the Consolidated Association by the United States Circuit Court, is untenable when the object of the proceeding is to erase from the mortgage book of the State an incumbrance created by her law, and which the Circuit Court of the United States would have no authority to order.”

We can not see any force in the objection, and are of the opinion that our decree in the Lanaux case is controlling. This court is clearly competent to entertain the rule and decide it, notwithstanding the affairs of the Consolidated Association of Planters of Louisiana are in process of liquidation in the courts of the United States.

In State ex rel. Laloir vs. Consolidated Association and the Recorder, 43 An. 838, all of the questions herein raised were gone into and decided in keeping with the views expressed in the Lanaux ease.

From our opinion in that case, it appears that the case of Cressy vs. Consolidated Association, referred to as then pending in the United States Circuit Court, has since been decided by the Supreme Court of the United States, and on the principles announced in Association vs. Lord, 35 An. 438 — a parallel case — maintaining the plea of prescription and directing the cancellation of the mortgage.

This case has been kept under advisement for several years on account of the pendency of the Cressy case; and now that it has been finally decided, there is no occasion for longer delay.

For the reasons assigned in the decided cases referred to supra, our judgment must go in favor of the plaintiff — the evidence being conclusively in favor of the rule.

The judge a quo decided the case correctly in making the rule absolute.

Judgment affirmed.

The Chief Justice and Mr. Justice Breaux not having been present when this case was submitted, take no part.


author: McEnery, J,

text:
    No. 11,286.
    The State of Louisiana vs. Frederick Frisch.
    So far us the right of the State to pursue and punish a criminal is involved, the subsequent ratification of the act by the party injured will not bar a prosecution by the State.

      APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J,

      M. J. Cunningham, Attorney General, and Lionel Adams for the State, Appellee.

      Evans & Dunn for Defendant and Appellant:
    1. The defendant was the agent of Gassner & Co., in New Orleans, engaged in cotton speculations.
    Heavy losses occurred between March and August, 1892. Defendant overdrew his account during that time. On the 28th of August, 1892, after some controversy about the share of losses each was to bear, it was finally agreed that this defendant’s share should be $10,590.31. On the 10th of September, 1892, Gassner & Co. served on defendant an account current in conformity with that agreement, and asked defendant to acknowledge in writing its correctness, and thereupon defendant gave his written acknowledgment as requested. In that way the final settlement and compromise agreement was reduced to writing, in conformity with the code, Art. 3071. Antoin vs. Smith et als., 40 An. 569; Calhoun vs. Lane et als., 39 An. 596.
    On October 6, 1892, defendant was arrested and charged with embezzlement said to have been committed in April, 1892.
    Defendant claims that the settlement made and reduced to writing, as above related, was a ratification of all his acts, legal and illegal, up to September 10, 1892.
    That by the compromise agreement Gassner & Co. deprived the transaction in question of its tortious aspect and made it a matter of account. It established the relation of debtor and creditor between them.
    In a civil action, Gassner & Co. would have to rely upon the compromise settlement and agreement. They would not be permitted to select any one item in that account and sue on it. Robertson vs. Wilcox et al.» 3 An. 94-96.
    The compromise agreement “settled” whatever wrong there was, if any there were. Oglesby vs. Attrill, 15 Otto (105) TJ. S. R. 611.
    2. A principal may ratify the agent’s wrongful use of his money or property. Cook vs. Tullís, 18 Wall. U. S. R. 332, 338, 340; Ogden vs. Marchand, 29 An. 61 (Syllabus); Mancell vs. Payne, 18 An. 125; Warneken vs, Marchand, 18 An, 147; Rex vs. Levy, 4 Car. P. 241; People vs. Hurst, 62 Mich. R. 276 (28 N. W. Rep. 838) ; Ohallis vs. Wylie, 11 Pacific Rep. 438; Mulford vs. People, ¿8 N. W. Rep. 1096. It is a principle of law well settled that every ratification relates back to the time of the doing of the act.
    “It operates upon the act ratified precisely as though authority to do it had been previously given.” Cook vs. TulHs, 18 Wall. IT. S. R. 338; Bloodworth vs. Jacobs, 2 An. 23,24; Dunbar vs, Bullard, 2 An. 810; Szymanski vs. Plassan, 20 An. 92; Raymond, etc,, vs. Palmer et als., 41 An, 435,
    The act complained of in this case was ratified by Gassner & Co. on the 28th of August, and again on the 10th of September, 1892; therefore, that act was legal at the time this criminal prosecution was commenced.

      3. “ I£ the prisoner regularly admits the receipt of the money, the mere fact of not paying it over is not felony. It is but a matter of account.” Russell ou Crimes, 2 Vol., 9th Ed., 452; Archibold Or. Pr. and PI., 2 Vol., 7th Ed., 579 (Water, man’s notes).
    4. There was evidence of ratification before the jury and it was error to refuse instructions upon that point.
    The trial judge says: “ There was no ratification of any of the defendant’s authorized or unauthorized acts.” That was a question for the jury to determine. State vs, Thompson, 45 An.; State vs. Tucker, 38 An, 540, 791; State vs. Wright, 40 An. 592, 593.
   The opinion of the court was delivered by

McEnery, J,

The defendant was convicted of embezzlement and has appealed.

In the brief of defendant it. is stated, “We abandon all bills of exceptions in the record except the fourth bill of exception.”

The fourth bill is as follows:

“Be it remembered, that on the 27th day of February, 1893, this ease came up for trial, as appears in evidence; that a Mr. Jules Sugg, one of the witnesses for the State, reached New Orleans on the 6th day of August, 1892; that defendant was absent from the city at the time, for the benefit of his health; that as soon as he learned that Mr. Sugg, a partner of the firm of Gassner & Oo., was in the city, the defendant returned to the city as soon as possible; that he reached the city on the 26th day of August, 1892; that on the 28th day of August, he, the defendant, and Mr. Sugg, of Gassner & Oo., met in their office, had a long and full conversation concerning the losses of Gassner & Oo., and the defendant, whereupon Mr. Sugg asked the defendant for a full and complete statement of the entire transaction, to make a full and complete written statement, that he, Sugg, might forward same to the Liverpool house of Gassner & Oo.; whereupn the defendant then and there made out a written statement, fully, truthfully and fairly, showing how the losses occurred, and delivered same to Mr. Sugg, who read it over carefully and mailed it to the Liverpool house. It would be well for the court to be informed that a settlement had been proposed by Mr. Sugg, that the defendant should assume all the losses, amounting to thirty-six thousand eight hundred and sixty-six dollars and fifty-one cents ($36,866.51).
“ That defendant declined to assume the losses which had occurred in speculation in the name of Gassner & Co. and for their account; that he did assume the responsibility for the losses of the money which he had overdrawn and used and lost for his own account. ‘ “That on the 10th day of September following Mr. Sugg served upon defendant an account current, which is to be found in record page---, in which each item of overdraft from its date was mentioned, together with the charge of interest from its time of overdraft up to the first day of September 1892, together with certain law charges of the firm of Gassner & Oo., contracted, all of which will more fully appear -by an inspection of said account current; that after the second account current had been served as above mentioned, Mr. Sugg, of the said firm of Gassner & Oo., requested the defendant to acknowledge the correctness of the said account current in writing, which the defendant promptly acknowledged; that on the 6th of October of the same year the defendant was arrested and taken before the First Recorder’s Court and, after due proceedings had there, the case was transferred to the Oriminal District Oourt.
“ That at no time after the return of the defendant on the 26th day of August was any controversy held between the defendant and the firm of Gassner & Oo., except when Mr. Sugg wanted the defendant to assume the responsibility of the entire losses, amounting to |86,866.51, at which time it was agreed that the defendant’s loss should be the sum of |10,590.31, as appears in said account current. That on the trial and durirfg the argument it was contended by defendant’s counsel that the whole transaction had been ratified by Gassner & Oo., through Mr. Julius Sugg, and that the tort, if there was a tort, in connection with the entire transaction was entirely removed by the action of Gassner & Oo., as related above.”

And the trial court was requested to charge the jury as follows:

“ The general rule as to the effect of a ratification by a principal of the unauthorized act of his manager or agent is well settled. The ratification operates upon the act ratified precisely as though authority had been previously given. The principal may ratify the wrongful use of his money or property by his ‘ manager’ or agent, and thereby establish the relation of debtor and creditor between them. -Such ratification will remove the tort or wrong."

On the refusal of the trial judge to charge the jury as above, counsel for the accused reserved this their fourth bill of exceptions.

Upon this bill the following endorsement was affixed:

Per euriam. “ I can not concur in the statement of facts as given in this bill. There was no ratification of the defendant’s authorized or unauthorized acts. Where the victimized firm suffered losses by reason of the defendant’s unauthorized transaction, suit was brought against third persons and a great portion of the money recovered. Criminal prosecutions were instituted as to others.”

The indictment charges the defendant with embezzling $200, which was one of the items in the account current submitted to Gassner & Oo.

There was evidence before the jury of ratification by Gassner & Oo. of all the unauthorized acts of the defendant, and had the proof been sufficient, as alleged by defendant, the law applicable to the ratification by a principal of the unauthorized acts of the agent would be applicable in a civil suit between the principal and the agent.

But it has no place in a criminal prosecution when the act is of such character as to involve a crime denounced by the State as opposed to public policy. Embezzlement is an offence of this character. The loss -to the individual is a matter personal to himself. It is optional with him to recover the amount due him in consequence of-the embezzlement in the implied contract to reimburse him. But the crime concerns the public policy of the State, and no agreement, compromise or ratification can make that which she has denounced as a crime an innocent act, relieving the offender from the punishment attached to it.

The offence of embezzlement is of that nature which the public takes notice of as injurious to itself. 1 Bishop, Criminal Law, paragraph 282.

Mr. Bishop says in the paragraph referred to: Nothing can be more purely a tort to the individual alone than a simple larceny where there is no breach of the peace; no public loss of property, since it only changes hands; no immorality, corrupting the minds of the young; no person in any way affected but him who takes and him who loses the thing stolen. And as in larceny, so it is in many other crimes; a public offence is committed, while only an individual suffers.”

Any agreement to suppress the crime would be contrary to public policy and void, as the State has the right to pursue and punish the criminal. Meecham Agency, par. 116; Thisler vs. Vandike, 82 Pa. 447; McHugh vs. County, 67 Pa. 391.

The case of Faquer vs. Knox, 66 New York, 525, was for malicious prosecution for the crime of embezzlement. The court, upon request, charged: “If you find that the defendant, prior to the complaint against the plaintiff charging him with embezzlement, settled with the plaintiff for the moneys, the defendant afterward charged the plaintiff with having embezzled as and for a debt on a contract, expressed or implied, such fact would be evidence that the defendant did not believe the plaintiff had embezzled the said moneys.”

On appeal to the Court of Appeals the charge was held erroneous.

Ohief Justice Ohurch in the opinion of the court said the effect of the charge “was to produce an erroneous impression;” the effect of it was to convey the idea that the settlement and payment of the amount claimed by defendant was evidence that no crime had been committed, and the defendant did not believe that there had been.

The defendant had a legal right to settle with the plaintiff and to receive payment for the amount abstracted as and for a debt upon an implied contract, and such settlement was no bar to a criminal prosecution, nor did it furnish evidence that the defendant did not believe that the money had been embezzled.

In the case of People vs. Hurst, 28 N. W. R., page 838, relied upon by defendant, there was no question raised as to the “ratification” of the acts which constituted the embezzlement.

It was a question of felonious intent, whether the mere failure to pay the money indicated a design to cheat and deceive the owner.

A candid admission of the debt was made at once on inquiry, and partial payment was made and security given at different times for the debt.

No such question is presented here. The bill does not present the question whether or not the transaction between the parties had assumed the shape of the facts in the above case.

The bill of exceptions does not show that previous to the settlement the transaction assumed the shape of debtor and creditor, or that in the settlement offered in evidence there was any such relation between the parties other than the implied contract to make restitution for the amount embezzled.

The defendant was convicted. We must presume that all the constituent elements of embezzlement were proved, and among them, concealment. On this point there is no conflict. The question, then, is did the presentation of the account to defendant, or, as is alleged, the account presented to Sugg, made out by defendant at Sugg’s request or demand, showing his wrongful use of money in the management of the business, his acknowledgment of the account, and his promise to pay the amount converted by him, and his refusal to assume other obligations, constitute such a state of facts as to make the business relation between the parties that of debtor and creditor. We think not.

The embezzlement had been committed. No transaction between the parties could have prevented the prosecution, which was not to. enforce any right of the prosecutors, but to punish a crime committed against the State.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,190.
    Andris Jochams vs. Richard M. Ong.
    The plaintiff sold cement to the defendant, subject to a test.
    During the delay required to test the cement the defendant was to have possession.
    The bill of lading representing the cargo was tendered to the defendant, who refused possession. The plaintiff in thus tendering complied with his obligation as vendor.
    The defendant violated the conditions by not receiving the goods.
    After the defendant had refused to receive the property, the plaintiff did not sell the goods, but kept them a considerable time, and did not attempt to minimize the damages.
    The damages allowed are the price the defendant bound himself to pay, less the market value of the article.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Howe & Prentiss for Plaintiff and Appellant.

      White, Parlange & Saunders for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

In the summer of 1891, through agents in New Orleans, the plaintiff, of Charleroi, Belgium, offered to sell to the defendant a cargo of cement on board of a vessel, which was expected to arrive at the port of New Orleans on or about July 1 of that year.

The defendant agreed to buy of plaintiff this cargo, of 8372 barrels, at $1.73, and to pay the import duty.

The terms of the sale were payable ninety days from the date the vessel began unloading, and the defendant to give his acceptances only after he was satisfied by a test of samples of the cement. These samples were to be sent by him to an expert in New York so that he would know that it actually tested 350 pounds tensile strength.

Under their agreement, which was verbal, the defendant was to receive possession of the vessel on its arrival, so that he could reduce his expenses and have the cargo discharged at a point of his selection.

, Plaintiff drew drafts for the amount, which drafts were received by J.'W. Seligman & Co., his correspondents in New York.

They were subsequently received from Seligman & Co. by the Louisiana National Bank and were, by the latter, presented to the defendant for payment before the arrival of the vessel in New Orleans.

The total amount of these drafts was $14,486.26.

The letter of advice in which the drafts were enclosed contains the following:

Drafts to be accepted due three months from date of arrival of vessel and documents to be delivered upon acceptance.”

Acceptance was refused, the defendant claiming that he was not to accept drafts until the cement could be tested and found satisfactory.

On the 20th of June, 1891, the defendant addressed a letter to the collecting agent declining to accept these drafts, correctly stating the terms of acceptance and payment, and claiming possession of the cement upon arrival of the vessel.

The New York correspondents were informed of the refusal to accept the drafts. In their answer, addressed to the local agent, they state:

When we sent you the drafts we asked you not to present them until after arrival of goods; as to the examination (or test) we are not advised, but we would grant the delay.”

All parties agreed that the defendant should, under the contract, have possession of the cargo on the arrival of the vessel without accepting the drafts, before the “ test” had been made and found satisfactory.

Subsequently the bank, through one of its officers, the law firm for plaintiff represented by a law student in their office, and the defendant, met and discussed the conditions of the sale and delivery of the cement.

The two witnesses for plaintiff, viz.: the bank officer and the law student, testify that the bill of lading was tendered without any reference whatever to the drafts which the defendant was to accept later if the “test” of the cement proved satisfactory.

Before the arrival of the cargo the defendant had made preparations to take possession of the cement and to warehouse it for safekeeping free of charge.

The controlling idea of the defendant at the time obviously was that the contract secured to him not only the possession of the cement, but also the right to sell.

His possession, he declares as.a witness, “ was to include the right to sell.”

The contract proves that until the test was made and found satisfactory the defendant was to have possession; nothing is said as to the right to sell.

The letter in reference to the contract addressed to the plaintiff by his agents here states:

“When the cargo of cement comes here Mr. Ong will have it tested, and as soon as he has returns of tests he will send you his notes. While awaiting the result of the tests he will, however, care for the cement, and when notes are given they will be dated the day the vessel unloads, so that delay in testing does not result in disadvantage to you.”

The testimony of witnesses is that the sale was to be concluded after the test.

The defendant alleges in his answer that it is true that he agreed to purchase from said plaintiff a cargo of cement, ex sailing vessel Auguste, to contain about 8000 barrels.

That he was to pay $1.73 a barrel, and import duty amounting to $2679.04,

That it was expressly agreed that the cargo should be put in his possession, and under his control, so that he might control the landing and storing of the cement.

The pleadings properly do not disclose any such claim as a right to sell, for the facts would not sustain such a claim.

Moreover, “ things of which the buyer reserves to himself, the view and trial, although the price be agreed upon, are not sold until the buyer be satisfied, which is a kind of suspensive condition of the sale.” R. C. O. 2460.

The right of defendant was therefore a right of possession temporarily, to be followed by a sale if the cement had the strength the vendor said it had. Had he accepted the bill of lading tendered, it would have 'given him control of the landing and storing of the cement.

A negotiable instrument such as a bill of lading for delivery of certain goods to order confers right of possession.

Under the terms of the contract the collecting agent was authorized to deliver this bill of lading; its transfer, as proposed, would have, beyond question, placed the defendant in possession.

The authority of the cashier to deliver the bill of lading was not at any time .the objection, but the right denied him to sell that was asked of this officer and which he declined to grant.

Plaintiff’s witness, the cashier of the Louisiana National Bank, states that on the 26th or 27th of June the bank, through him, tendered the bill of lading to the defendant and informed him that he could accept the drafts after the “test.”

The defendant declined to receive the bill of lading unless he was given permission to sell as much as he could of the cement while awaiting the test.

The witness Wolf, the law student, who acted for plaintiff’s agent in New Orleans, was called on by the defendant regarding this alleged right.

This witness Wolf testified that while the cashier was willing to deliver him the bill of lading without acceptance of the drafts, he was not willing to permit him to sell any part of the cargo while awaiting the test, that this was part of the contract, and that he called upon him to decide this difference.

The witness says: “ I again visited Mr. Janin with him and told Mr. Janin that it was not part of the contract that Mr. Ong should sell any part .of the cement while awaiting the result of the test. Mr. Janin then again offered him the bill of lading without signing the notes or accepting the drafts, but said he would not give him the right to sell.”

Subsequently the defendant wrote to plaintiff that his correspondents in New York declined positively to put him in possession unless it was understood that he would make no sales.

On the day preceding the arrival of the vessel the defendant agreed with the cashier and the witness Wolff to write to Seligman & Oo.

The defendant in this letter again applied for a right to sell while awaiting the result of the test.

The two witnesses for plaintiff state that the defendant agreed to await a reply to the letter before deciding as to what he should do.

The day of the arrival of the vessel the defendant wrote to plaintiff ?s agent that he had just been advised of the arrival of the vessel; that the uncertainty of his obtaining possession will occasion loss to him; that he could have arranged to have the vessel landed at a point where the saving to him would have been considerable.

He informed them of the facilities he had for transporting and storing the cement, and expressed a willingness to cancel the contract.

On the next day, when informed by the cashier of the bank of the answer of the New York correspondents declining his proposition in some respects, he refused to have anything further to do with the contract.

The defendant had been offered possession, which he had declined unless he was given right to sell the cement.

This right to sell was insisted upon at all times.

It was the only cause of difference between the parties.

The tender was made, which the defendant did not accept.

He was in default from that date and responsible as a proposed vendee.

The property sold proved of the required strength, and the vendor complied with his obligation to deliver it at this port.

After the arrival of the vessel plaintiff and defendant, through their agents, joined in sending samples of the cement to a Captain Maclay, of New York, an expert, for the purpose of testing its tensile strength. In about three weeks he mailed to them his certificate, showing satisfactory strength. Again the cement was tendered, and again was refused.

There were two errors committed, the first by the defendant in not receiving possession when it was offered to him; the other error was committed by the plaintiff in retaining possession of the property seven months after the arrival of the cargo without any action on his part to compel compliance and relieve himself of the responsibility for the property.

Plaintiff sues for a loss of $4098.31, occasioned, he alleges, by defendant’s non-compliance with the contract.

With reference to damages. The vendor has a right of action against the purchaser for his breach of contract in noc receiving the goods sold.

The measure of damage, it is generally held, is the difference between the agreed price and the market value of the goods at the time they were tendered and refused, in addition to the costs and other damages.

There is no evidence before the court satisfactorily establishing the necessity of waiting to effect a sale.

The sale-should have been made at the earliest practicable period after an absolute refusal to accept.

The market value of the goods at the time of the tender is not proven.

The price paid for them seven months after is apparently a fair value.

By agreement, without prejudice to the rights of either party, the cargo was sold to plaintiff for $1.90 a barrel cash, to be deducted in the event plaintiff recovered judgment.

The perplexing and exceptional character of this case has forced upon us the conclusion that the full measure of damages should not be allowed.

The facts and circumstances are such that we have determined to limit the amount to the actual sum promised by the defendant, and to thus minimize the damages:

Amount price of tlie cement...........................................................$li,483 56
Import duty....................................................................................... 2,679 83 — $17,163 39
Less price at which sold...................................................................$15,906 80

It is therefore ordered and. decreed that the judgment of the lower court is avoided and reversed, and it is now ordered and decreed that there be judgment in favor of the plaintiff for the sum of $17,163.39, subject to a credit of $15,906.80, with legal interest on the amount of the judgment from judicial demand, and that defendant pay the costs of both courts.

Parlange, J., having been of counsel, recuses himself in this case.

Rehearing refused.


author: Parlange, J.

text:
    No. 11,318.
    C. C. Williams et al. vs. The Judge of the Eighteenth Judicial District Court for Lafourche Parish.
    1. Private property can not be taken unless for purposes of public utility. Wbat constitutes public utility and public purposes is for the courts to determine.
    2. Under Act 132 of 1890, expropriation suits may be tried in vacation.
    3. Where the proceedings are not void on their face, and show no arbitrary action on the part of the respondent judge, the writ of certiorari will be refused.
    y^PPLICATION for Certiorari and Prohibition.

      Olay Knobloeh & Son and W. P. Martin for the Relators.

      Beattie & Beattie for the Respondent.
   The opinion of the court was delivered by

Parlange, J.

Relators allege that seven suits for the expropriation of lands belonging oo them have been brought against them by the Laurel Valley & Rousseau Station Railroad Company, “ a pretended corporation claiming to have been organized under the laws of this State for public purposes, to-wit: to carry freight and passengers from the Laurel Valley plantation, in Lafourche parish, to and from Rousseau Station, a flag station on the Southern Pacific Railroad.” That the district judge endorsed on each petition an order allowing the same to be filed, and directing the clerk of court to give notice, according to law, to the owners of the lands described in the petition; that a copy of said order was served on each of said relators, and thai if any other order exists, the same has not been served on relators; that citations were served on them to appear at chambers in the town of Thibodaux on a specified day, said citations stating that the cases were to be tried then and there before a jury, but that no hour was fixed in said citations, nor was any order of court served upon relators showing that tile trial of the cases had been fixed for said day and wás to be had at chambers, and that the cases were to be tried by a jury. That on the day specified relators appeared before the court at chambers simply to except and protest that the plaintiff in said suits is not a corporation organized for public purposes, but is a combination of individuals whose sole object is to foster the private ends of two certain persons named, who own jointly two sugar plantations in Lafourche parish, about five miles distant from one another, and who wish to transport the sugar cane grown on one of the plantations to the refinery situated on the other. That relators protested against the trial out of regular term time of the issue raised by them, and claimed the right to issue commissions to take the testimony of witnesses residing out of the parish for the purpose of proving relators’ contention. That the district judge overruled the protest, refused to allow the commissions to issue, and insisted on proceeding at chambers to the trial of said exception and of the merits of said causes. Relators pray for writs of certiorari and prohibition, and that all said proceedings at chambers be set aside.

The district judge answers that said suits were filed in court on June 15, 1893, after he had endorsed on the petitions therein an order directing the clerk of court to file the same and to give notice to the owners of the different parcels of land. That on July 7, 1893, under Sec. 1480, Revised Statutes, at the court house, in the room appropriated to the regular sessions of the court, the causes came up for trial in chambers, the court not then being in term time. That relators excepted that the plaintiff in the suits was not a public corporation, but a private enterprise, and that relators were entitled to a delay to take out commissions to prove this fact, and that the issue could not be tried at chambers. That after argument respondent ruled that the issue could be tried at chambers; that he refused the delay asked for, because the facts desired to be proved by non-resident witnesses could be as easily and as conveniently proved by witnesses residing in the parish, but he granted time to procure the attendance of the latter.

The railroad company answers that it is a corporation duly established under the law of the State; it declares itself to be a common carrier and its roadbed a public highway, under Arts. 243 and 244 of the Oonstittition. It avers that it was lawfully proceeding to expropriate the lands of different persons to obtain its needed right of way. That the charge that it is a private concern is untrue, as will be conclusively proved on the trial of the suits. That it has so far been unable to introduce its evidence on the issue raised. That the matter was being heard on relators’ exceptions, when relators, who had not concluded their own testimony, by application to this court for writs of certiorari and prohibition, prevented the respondent corporation from making any proof. That all of said suits are appealable to this court. That the capital stock of said corporation amounts to §15,000, and that all of its rights will be destroyed unless it can expropriate the lands between its termini. That the issuance of the orders from this court has damaged said corporation in the sum of §2500, which it prays may be awarded to it, if it is within the power of this court to do so.

The president of said corporation has filed a sworn statement in this court that the interest of the corporation in each of said suits amounts to §15,000, the full value of its stock.

The property of the citizen can not be taken from him “ unless for purposes of public utility.”

“Private property shall not be taken nor damaged for public purposes without just and adequate compensation being first made.” Constitution, Arts. 155, 156; Civil Code, Arts. 497, 2626, et seq. Art. 11 of the Constitution declares that all courts shall be open and every person for injury done him in his rights, lands, goods, person and reputation, shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay.” In the case of New Orleans Pacific Railway Co. vs. Gay, 32 An. 474, this court said:
“ To entitle the public to take private property two things are necessary: first, the interest of the public must require it, and second, adequate compensation must be made.”

Relators have the undeniable right to contest'in the courts with the railroad company the question whether its purpose is one of public utility, and whether the use to which it seeks to put relators’ property is a public use.

What constitutes public utility and public purposes is for the courts to determine. Lecoul vs. Police Jury, 20 An. 308; Lewis on Eminent Domain, See. 148.

“ Where, under a general railroad law, a road is built for private use, its operation may be enjoined at the suit of an individual, or the franchise annulled at the suit of the people.” Lewis on Eminent Domain, Sec. 170.

But it does not follow that relators are entitled to the relief they ask. Since the decision of this court in the case of Telegraph Co. vs. Railroad Co., 39 An. 659, in which it was held that suits for the expropriation of property could not be tried at chambers, Act 182 of 1890 has been passed, providing that whenever any proceeding is instituted under Secs. 1479, 1480 and 1481 of the Revised Statutes for the expropriation of lands for public purposes the suit may be tried in vacation.

Relators contend that Act 182 of 1890 does not apply to the suits brought against them, because they are suits to expropriate their lands for private purposes. But this contention is without force. The suits, whether well founded or not, are within the description of the suits which the act makes triable in vacation, and the district judge had the right to try them at chambers, as also the issue raised by relators.

This court has held that it would not issue the writ of certiorari unless the proceedings are void on their face. The proceedings in this matter are not void; there is no arbitrary action here which entitles relators to the writ. The jurisdiction of the District Court is clear and the writ of prohibition does not lie.

We have no occasion in these proceedings to review the refusal of the district judge to allow the commissions to issue to take the testimony of non-resident witnesses, or the correctness of his rulings during the hearing of the issue raised by relators, to which rulings they reserved bills of exception. Such an inquiry would pertain to a court in the exercise of its appellate powers.

The district judge gave relators timely notice of the proceedings. It was fully effectual in causing relators to appear in ample time to make any defence they might have. Relators’ counsel state in their brief that they convinced the district judge that the issue raised was a judicial question. The district judge ruled however that the issue was triable at chambers, and proceeded to try the same. While he refused the delay for the issuance of the commissions he granted time to relators to summon their witnesses. These were heard during two days, and until the proceedings were arrested by the order of this court. Relators seem to have interrupted the hearing of their own evidence. The railroad company has not yet had an opportunity to produce evidence. It may be that relators will succeed in maintaining their position before the district judge. Three of the cases are conceded by relators to be appealable to the Court of Appeals. The railroad company urges that all the cases are appeal-able to this court, and that any error in them can be remedied here on appeal. However this may be, it is clear that relators are not entitled to the writs.

Application dismissed at relators’ costs.


author: Nicholes, O. J.

text:
    No. 11,310.
    The State of Louisiana ex rel. Jean Duffard vs. Hon. E. S. Whitaker, Recorder.
    1. A judge who refuses to grant an appeal in an appealable case, on the ground that the issues raised had been repeatedly determined by the Supreme Court adversely to the contention of the parly moving for the appeal, and that the applicant was through his motion seeking to abuse the right of appeal acts unjustifiably. He has nothing to do with the motives prompting the exercise of the legal right nor the final result of the controversy.
    2. Though the rulings of a judge in a cause be erroneous he is protected in that cause from liability for resulting costs, from motives of public policy.
    ^^PPLICATION for Writ of Mandamus and Certiorari.

      James C. Walker for the Relator.

      Longue & McGloin for the Respondent.
   The opinion of the court was delivered by

Nicholes, O. J.

Relator avers that on or about 23d of September, 1892, E. Gray, an inspecting officer of the Board of Health, assigned to duty in the city of New Orleans, made affidavit against him before the Hon. E. S. Whitaker, Recorder of the First Recorder’s Court of New Orleans, complaining that relator had violated Ordinance No. 6596 of the city of New Orleans, approved August 4, 1892, by refusing to furnish upon demand a sample of the milk contained in the cans carried by relator in his wagon as a dairyman, and praying for his arrest and punishment for the said reason.

That relator was accordingly arrested and held to bail, and finally on the 24th May, 1893, relator was put upon his trial before said recorder on said charge, and thereupon adjudged to pay a fine of $25, and in default of payment to. be imprisoned in the parish prison of the city of New Orleans for thirty days.

Relator avers that he did refuse to furnish the said health officer with the required half pint of milk or sample, but not at all because the said milk was impure or adulterated; that said milk was not impure or adulterated, but on .the contrary the same was equal in point of quality in all respects to the standard required by the laws of the State and the ordinances of the city of New Orleans, but that said refusal was based upon other considerations entirely, and had for its object to insist upon and to maintain his rights and privileges of liberty and property secured and guaranteed to him by the Constitution of the State of Louisiana and of the United States, and in the sincere belief that the provisions and requirements of the said city ordinance were in direct violation thereof, as he was advised and informed was really the truth and could be maintained.

Relator avers that said ordinance imposes a fine, penalty and forfeiture for such refusal aforesaid, and that said portion of the ordinance in question is unconstitutional, null and void for manifold reasons, which he pleaded specially and set up in his defence to said charge and affidavit before the said recorder of the First Recorder’s Court or New Orleans, and which said pleas and defences were overruled by him on the trial, and among which said pleas and defences were the following:

1. That said ordinance is an unreasonable, odious and oppressive regulation, and interferes with relator in a lawful and industrial pursuit which is not injurious to the community, and disregards re - labor’s constitutional privilege to be protected in the possession and enjoyment of his property.

2. That said ordinance compels relator to be a witness against himself in a criminal case within the meaning of the fifth amendment of the United States Constitution, and Art. 6 of the Louisiana Constitution.

3. Said ordinance is repugnant to the fourth amendment of the United States Constitution, and Art. 2 of the Louisiana State Constitution, and violates relator’s right to be secured in his person and effects against unreasonable searches and seizures.

4. It violates the State aDd Federal Constitutions by depriving relator of his liberty and property without due process of law, because it subjects him to fine and imprisonment for refusing to furnish evidence against himself, which is not due process of law, and compulsorily confiscates the merchandise (milk) in which he deals without compensation, and therefore also deprives relator of the equal protection of the laws. La. Const., Art. 6; La. Const., Art. 155; U. S. Const.

5. The said ordinance violates the fourteenth amendment of the United States Constitution for the foregoing and other apparent reasons.

Relator represents that all said reasons in substance, and many others also challenging the constitutionality of the said provision in the said ordinance, were by him specially pleaded in his behalf in his defence to said charge, all of which were overruled and set aside as of no avail, and relator was fined as stared, and thereupon relator applied to said recorder to be allowed a suspensive appeal from said fine and sentence, and prayed that the same be made returnable to the Supreme Court as the law required on furnishing bond and security in such amount and conditioned as the law directs..

That the said recorder refused to allow said appeal from his judgment and sentence, and assigned no reason for the said refusal other than that the people of the city of New Orleans looked to him to suppress the selling of adulterated milk within the city limits.

That said recorder insisted that said fine of $25 should be immediately paid by relator, and on default of payment of said fine that relator should be immediately locked up and imprisoned and therefore under duress, and protesting that said fine and sentence and that said refusal to allow an appeal to the Supreme Court and threat of immediate imprisonment were unlawful, and, moreover, reserving all his rights to insist that said appeal should be allowed and granted as prayed for, relator paid to the clerk of the said First Recorder’s Court, by direction of said recorder, the said fine, and obtained a receipt therefor as paid under protest and annexed to his petition.

Relator further averred that he was entitled to an appeal from the sentence of the recorder because the constitutionality of said ordinance and of the fine, penalty and forfeiture, imposed thereunder are directly called in question, and that there is no other remedy to enforce relator’s right to said appeal except to apply to the Supreme Court for a writ of mandamus to command the said recorder to grant said appeal, and for a writ of certiorari to the end that the said proceedings of the State of Louisiana vs. Jean Duffard (relator) be certified to the Supreme Court in order ■ that their validity be ascertained. That he has notified the recorder of his intention to apply for said writs; that he is entitled to a 'return of the said $25 which he has been compelled to pay under protest. He accordingly prayed that a writ of mandamus issue commanding the said recorder to allow relator a suspensive appeal from the sentence imposed by him against relator in the said proceedings, returnable to the Supreme Oourt according to law upon his furnishing bond and security according to law, and to return the said fine of $25, and for a writ of certiorari directing the said recorder to certify to the Supreme Court the said proceedings in order that their validity may be ascertained, and that the writ of mandamus be made peremptory and that said fine of $25 be returned to him; that he be allowed a suspensive appeal, and that the recorder be ordered to pay the cost of the pro - ceedings.

Alternative writs having issued as prayed for, the recorder sent up the record as he was directed, and filed an answer in which he declared that he considered the demand for appeal herein, upon issues passed upon by the Supreme Court in several other cases, expressly or by implication, as an abuse; that he declined after imposing the fine to grant any order releasing relator from custody and relator, in default of such order for release, paid the fine; that all of said proceedings took place May 24, 1893, and relator did not proceed for mandamus until May 26, and respondent received no notice thereof until May 29; that, meanwhile, in due course, the amount paid by relator went into the city treasury as directed by law, and that respondent has no control and never had over the amount of said fine and can not be ordered to refund the same; that he acted in good faith, according to his best judgment, and in the public interest as the same appealed to him to demand and as a public officer; and he denies that he can be mulcted in the costs of this proceeding, even if the court should hold that he acted in any way erroneously, wherefore, submitting himself to the orders of the court, he prays that he be not, in any event, condemned to pay the costs.

An examination of the record sent up shows that relator, charged with the violation of an ordinance of the city of New Orleans, imposing as a penalty for its violation a fine of twenty-five dollars, and in default of payment thereof an imprisonment in the parish prison for a period of not over thirty days, contested on his trial the constitutionality and legality of the ordinance and the fine and penalty therein imposed; that the issues so raised by him were determined against him; that he was convicted oí the offence and sentenced under the terms of the ordinance; that he applied at once for a suspensive appeal from this sentence, and that his application was refused. Relator was unquestionably entitled to an appeal under Art. 81 of the Constitution. The only reason assigned by the respondent judge for his action is that in his opinion the issues passed upon by him had on several occasions been decided by this court, either expressly or by implication, adversely to the relator’s contentions, and that the relator was, through his motion, seeking to abuse the right of appeal. If the relator was, under the Constitution, entitled to have the judgment of the court below reviewed by this court, that right could not be impaired by any belief which the judge of the City Court might have as to improper motives having prompted the party convicted to claim the exercise of the right. That was a matter with which he had nothing to do. So far as the question of appeal was concerned it was no part of his duty to consider what this court had said or might say on the issues raised. State ex rel. Natal vs. Davey, 37 An. 828. The course pursued by him was totally unwarranted. Relator’s rights in the premises have not been prejudiced by the payment by him of the fine imposed, under the circumstance of that payment. The respondent judge in his answer contends that even though he may have erred in declining to grant the appeal the costs of the present proceedings should not be thrown upon him, as he acted in good faith according to his best judgment and in the public interest as the same appeared to him and as a public officer. Although the action of the city judge in this matter was unjustifiable, reasons of public policy protect him from being made to pay the costs — they must be borne by the city of New Orleans.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the alternative writ of mandamus herein issued be made peremptory — costs of this proceeding to be paid by the city of New Orleans.

Mr. Justice Parlange takes no part.


author: Nicholls, C. J.

text:
    No. 11,343.
    The State of Louisiana vs. Lee Taylor et al.
    1. The State should not he permitted in a criminal case to cross-examine a witness for the defence on matters not growing out of facts and circumstances stated in his direct examination.

      2. The legality oí the cross-examination must be tested by the matters stated by the witness in his examination in chief, and not by the consideration of the purpose for which he had been introduced.
    3. The court is not justified in permitting one of defendant’s witnesses to be cross-examined as to matters not testified to by him on direct examination, for the reason that the same facts had been testified to by several witnesses both for the State and the defence, and the testimony was only cumulative. Cumulative evidence on the trial of the cause must not be confounded with cumulative evidence claimed to have been newly discovered and sought to be made available after verdict as a ground for a now trial.

      i. Evidence of the statement of a third person that he alone was guilty of the crime charged was properly excluded. It was clearly hearsay.
    APPEAL from the Eleventh District Court, Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. Dubuisson, District Attorney, for the State, Appellee.

      E. P. Veazie for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

Lee Taylor, Tom Cosey alias Joe Thomas and James Martin were indicted in the District Court for St. Landry, for having feloniously stolen, taken and carried away a beef;

On the trial both Lee Taylor and the present appellant, Joe Thomas, were convicted and sentenced to hard labor. Taylor acquiesced in the judgment but Thomas appealed, and the judgment as to him was reversed and the case remanded for further proceedings. He was put upon his trial a second time and convicted, and from a sentence to ten months’ imprisonment at hard labor he prosecutes this appeal.

His complaints are embodied in three bills of exception. In the first, he complains of the exclusion of testimony as to an alleged confession made by Lee Taylor after conviction and sentence, as he was about being sent to the penitentiary, to the effect that he Lee Taylor alone was guilty of the crime charged; in the second, that one of his challenges for cause was improperly overruled; and, in the third, that the State was permitted to cross-examine one of his witnesses as to matters not testified to in chief.

We think the evidence of statements made by Lee Taylor was properly [excluded. It was clearly hearsay. See State vs. West, 45 An., and State vs. West and authories therein cited.

See also the case of Mitchell vs. Commonwealth (Ky.), 14 S. W. 489.

The bill of exception relative to the juror Oonkling, who was challenged for cause by the accused and the challenge overruled, declares that “the juror being upon his examination on his voir dire, the following questions were asked, to-wit:

Q. Have you formed or expressed an opinion in this case?
A. Yes.
Q,. Is that opinion a fixed one?
A. Not exactly.
Q. Do you feel able to go into the jury box and do impartial justice as a juror between the State and the defence?
A. Yes, if the evidence is the same I heard.

The defendant through his counsel then challenged the juror for cause.

The court thereupon further examined the juror, and he further said he was conscious of no bias or prejudice for the person or against him — further he did not know whether the reports he had heard were correct or not — whereupon defendant renewed his challenge for cause, which the court overruled on the grounds:

1. Because the juror was closely examined by the court by questions in addition to those enumerated herein, and was satisfied by the juror’s examination that the opinion which he had formed would yield to the evidence, and that notwithstanding said opinion his mind was free from bias and prejudice, and that he would render an impartial verdict.”
2. Even had the juror been incompetent the ruling of the court could not have prejudiced defendant, because of the fact that the juror Conkling did not sit on the jury, having been peremptorily challenged by defendant without exhausting his peremptory challenges, nine challenges remaining in his favor after challenging him.” 43 An. 365.

The series of questions asked by the judge of the juror, which satisfied him that the juryman was competent, are not given. We must assume the questions and the answers thereto were such as to justify the court’s ruling. But even if it were erroneous defendant has evidently suffered no legal injury therefrom. The third bill states that the defendant called to the stand a witness, to whom he propounded the two questions:

Q. State whether at the time you and your brother went to the defendant’s house on the night of the arrest you saw a piece of meat hanging on the gallery of the defendant’s house?
To which question the witness answered No.”
Q. Did you not testify to that effect on the former trial?
A. No, I don’t believe I did.

Whereupon the witness, being tendered to the State, was cross-examined as to what transpired at the time just previous to the visit made to the defendant’s house on the night of the arrest by the witness, and as to what was said by the defendant at the time of said visit when questioned whether there had been a butchering at his house that day, and as to contradictory statements made by the accused on the occasion of such visit.

To such questions, and to further cross-examination on said subject, accused, through counsel, objected on the ground that the State could not, on cross-examination, question the witness of the defendant as to matters not testified to in his examination in chief in order to establish its case against the accused, (the State claiming the same right to cross-examine a witness as the defendant) which objection was overruled, and said questions and further examination allowed by the State upon matters not testified to by the witness on his examination in chief being admitted and further cross-examination permitted on the grounds:

1. That the purpose of the defendant was to establish the fact that a part of the stolen property was not concealed, but in full open view, and to also show directly and indirectly that the witness on another occasion had admitted as a fact that a part of the stolen property was not concealed, and because of this state of facts the court permitted the State to show that the only meat which the witness saw was secreted in an outhouse, which was locked on the inside, the defendant’s son being therein, and that when first interrogated the defendant denied that a butchering had been made at his house, and subsequently, a few minutes thereafter, admitting that a beef had been killed and butchered by Lee Taylor. That this evidence was competent on cross-examination, it being closely related, in fact inseparably connected, with the matters and things inquired about in defendant’s examination of the witness, and was proper to rebut the inference that the witness had testified differently on another occasion, and that even if the statements of the witness were illegally allowed it could not prejudice the defendant, inasmuch as several other witnesses, both for the State and defence, had testified to the same facts, therefore the testimony of this witness was merely cumulative.

Upon a comparison of the two questions propounded to his own witness by the accused, and the answers to the same, with the questions and testimony drawn from that witness on cross-examination by the State, we are of the opinion that the cross-examination was permitted to take a range not warranted by what had been testified to on direct examination. The intention and expectation of the accused was to establish a specific fact, that on the night of his arrest a piece of meat was exposed to full view on defendant’s gallery — the question went no further. The answer, doubtless to the disappointment of the accused, was in the negative. The testimony elicited utterly failed in its purpose, and the case stood as to that fact so far as that witness was concerned as if he had not been put on the stand. The answer left nothing for the State to rebut or to contradict. Defendant’s attempt to prove and failure to prove the desired fact could but redound to his injury. We do not think that by the simple fact of asking the question the accused opened wide the door to proof of concealment and to proof of damaging, contradictory statements and admissions made by the accused.

In allowing the testimony the judge lost sight of the difference between the purpose which the defendant may have had in view on asking a question and the question itself and its answer. As said by this court in State vs. Stuart, 35 An. 1018, “The legality of the cross-examination in this particular must be tested by the matters stated in his examination in chief and not by the consideration of the purpose for which he had been introduced.” State vs. Swayze, 30 An. 1327.

When the accused propounded the second question he evidently intended to challenge the veracity of his own witness, but the answer given negatived the fact he sought to bring out. Be that as it may, we think the subsequent cross-examination was not in aid of sustaining the witness’ credit. There was no legal connection between the testimony brought out and the inferential claim on the part of the accused that on a former trial the witness had sworn that on the night of the arrest a portion of the stolen property was exposed on the gallery. The question is not whether the testimony was in its character relevant and admissible nor whether it could have been properly elicited from other witnesses or even from this one under other conditions, but whether it could be elicited from him under the exact circumstances under which it was. 40 An.

If this particular witness could not be lawfully cross-examined as he was, the judge was not justified in permitting it, for the reason that other witnesses, both of the State and the defence, bad testified to the same facts, and the testimony was merely cumulative. Cumulative testimony on the trial of a criminal case must not be confounded with cumulative evidence when such evidence is sought to be used after verdict as having been newly discovered as a ground for a new trial. The judge states the accused was not prejudiced, but it may have been on the weight and strength of the testimony of this very witness that the case turned. We do not know what weight the jury might have attached to the testimony of the other witnesses. We decline to dismiss this appeal for the reason that the action of the district judge making it returnable to New Orleans instead of Shreveport was, under the facts of the case, justified under Section 4 of Act No. 30 of 1878.

For the reasons herein assigned it is ordered, adjudged and decreed that the verdict of the jury and the judgment thereon rendered be set aside, annulled, avoided and reversed, and the case is remanded to the District Court for further procedings according to law.


author: Watkins, J.

text:
    No. 11,292.
    A. P. DeBlois et al. vs. City of New Orleans et als.
    A mandamus proceeding to compel the erasure of tax inscriptions from the mortgage records on the ground that same were improperly assessed involves the tax and not the property; and in ease the amount of the taxes is less than $2000 this court has no jurisdiction ratione material.

    APPEAL from the Civil District Court for the Parish of Orleans, Ellis, J.

      Theo. Gotonio for Plaintiffs and Appellees.

      E. A. O’Sullivan, City Attorney, and Henry Benshaw, Assistant City Attorney, for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

Appellees move to dismiss this appeal on the ground that this court has no jurisdiction ratione mátense of the subject matter of the suit, respondents being appellants from a judgment compelling them to cancel and erase certain tax inscriptions from the mortgage records, on the ground that the assessments thereof were null on account of certain informalities, the aggregate amount of said tax inscriptions being $930.60, a sum less than the lower limit of its jurisdiction.

Their contention is that, in a mandamus proceeding like the instant one, the question is the illegality vel non of the assessment, and not the legality of the tax; while that of the respondents is that the suit involves a question of title to the property — though improperly pleaded in such a suit — and it is worth more than $2000, thus seizing the court of complete jurisdiction.

We are of opinion that relators’ contention is correct. While it is true that the respondents excepted on the ground “that according to the public records the relators are-not the owners of the property in question, and have not the interest necessary to prosecute the suit,” and in their answer denied the relators’ ownership of the property and asserted their own, yet these self-serving allegations are unavailing for the purpose of converting a mandamus into a petitory action.

The case of Raymond vs. Villere, 42 An. 488, relied upon by the respondents’ counsel, is not a parallel case.

That was an action by mandamus to compel the recorder of conveyances “to cancel from his books several inscriptions purporting to show ownership of certain real estate in this city, in various persons, made co-defendants;” and the court substantially held that the relator’s petition disclosed no interest in him, as he had ceased to be owner, and that his action was palpably one in disguise to annul the titles standing in the names of other persons — therefore the issue presented was not legally determinable in that form of proceeding.

For the reasons therein assigned by the court for deciding that case in favor of the respondents, the demands of the respondents herein might possibly be sustained upon a trial of the merits; but in determining the jurisdiction of this court we must look through relators’ spectacles.

There is a wide difference between a rule taken for the cancellation of a mortgage and one for the cancellation of an inscription of a conveyance; the former operating as an incumbrance on property, and the latter being an accessory of the title to it.

To our minds it is clear that this suit does not involve the title to the property, but the legality of the assessment of taxes only; and, as the taxes in question are less than $2000 in amount, this court has no jurisdiction — there being involved no question of the legality or constitutionality of the tax involved.

Of course we do not decide any question other than that of the jurisdiction of this court, as the case is presented on the relators’ petition; but as a precautionary measure, we will fully reserve the respondents’ right to contest in a proper form of action the relators’ title of the property assessed.

Motion sustained and appeal dismissed.

Rehearing refused.