text:
    No. 51.
    The State of Louisiana vs. Harry Carter.
    The description oí tlie thing stolen, in an information ior larceny, being: “One hog, the prop* . erty of A. B., is sufficient.
    Act No. 35 of 1880, providing for the trial of offenses in certain cases, has only one object set forth in its title and is constitutional.
    It is competent for the Legislature to change the manner of criminal trials regardless of the time of the commission of the offense, without rendering the act in which such change is made, obnoxious to the Constitution.,
    APPEAL from the Twelfth Judicial District Court, parish of Grant. Barbin, J'.

    The State, Appellee, unrepresented.

      JDaigre &’Machen for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was tried on an information for larceny, was convicted and sentenced to one year’s hard labor in the penitentiary, from which sentence he has appealed.

We regret that we are not assisted in our investigation of the case by any argument, written or oral, by the District Attorney or other counsel for the State, there being no appearance whatever in this Court on the part of the State. It is, of course, of the utmost importance to the highest interest of the State and the administration of criminal justice, that the State should be constantly and faithfully represented before this Court in this class of cases; and if the laws are not now sufficient to secure this object, we trust that the needed legislation will be supplied: We know not whether any one is censurable for the omission in this case; we but state the fact with the hope that the mention may bring the remedy.

1. The first error suggested is that relating to the overruling by the judge a quo of the motion to quash". The accused is charged with stealing a hog, and the description given in the information is “ one hog, the property of Alice McKinney, worth the sum of seven dollars.” This has invariably been held to be a sufficient description.

Thus Bishop, vol. 2, Sec. 700, says: “ Assuming value and ownership to be duly alleged, the following expressions descriptive of the thing are severally sufficient: “ One sheep,” “ a horse,” " one certain hog,” “one cow,” etc. See McBride vs. State, 13 Bush, 337; Taylor vs. State, 44 Ga. 263, 300; Grant vs. State, 2 Texas Ap. 163; State vs. Mansfield, 33 Texas Ap. 129; Washington vs. State, 58 Ala. 355.

The motion was, therefore, properly overruled.

2. The accused was tried before a jury of five, under the provisions of Act 35 of 1880. A motion was filed by his counsel to quash the venire drawn under said act on the ground that it was unconstitutional, for the reason that it contains more than one object and that the objects are not set forth in its title. There is no force in this. The title of the act is: “ To provide for the trial of offenses where the penalty is not necessarily imprisonment at hard labor or death.” To make thé provision called for by the title:

The first section provides, that when the accused is arrested the sheriff shall notify the-District Attorney.

The second, that the District Attorney may file an information in the office of the clerk of the court.

The third, that the judges of the District Court shall have authority at other than regular jury terms to order a special jury to try such offenses.

The fourth, that trials under the act shall be before a jury of five persons, and further provides that the accused may waive jury, and be tried by the court, and that the State and the accused may have a number of peremptory challenges.

It will thus be seen that the act has but one- object, the trial of a certain class of offenses, and that one object is clearly, very clearly, expressed in the title; and every clause of the act relates exclusively to the mode and manner by which that one object is to be secured. The objection to the jury on this ground is wholly untenable.

3. It is, however, averred that the act is unconstitutional for the further reason, that it is retrospective in its operation, or, in other words, that the accused could not be tried in the manner provided by the act for an offense charged to have been committed before its passage.

There is-even less plausibility in this objection than in the other.

Had the statute declared an act an offense which was not so when ■committed, or imposed a heavier penalty for the offense than, was denounced against it by the laws in force at the time of its commission, the objection urged would have some point or significance. The record shows that the accused was not arraigned or even arrested until after the passage of the law. Until such arraignment, and when voluntarily or involuntarily he pleads to the indictment, and is put on his trial, an accused can claim no right or privilege whatever with respect to his trial, except that it be conducted in conformity to the law on the subject in force at the time of trial.

The construction contended for would make the change in the mode of trial provided for by this act, in effect a legislative pardon for all offenses of the kind described, committed before its passage, and present a complete bar to the prosecution of such offenses.

Even had the accused been arrested and arraigned before the passage of the act, he would be equally as subject to the mode of trial therein prescribed as if such arraignment took place after its passage. Indeed, it is entirely competent for the Legislature to change the manner of criminal trials regardless of the time of the commission of the offense or time of trial, without making the act prescribing such change obnoxious to the constitutional inhibition invoked.

We see no cause to disturb the sentence appealed from, and it is, therefore, affirmed with costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 50.
    The State of Louisiana vs. Morgan Sheppard.
    The verdict of the jury is not vitiated by the fact that it is signed by the foreman, without the usual addition of “foreman,” appended to his signature.
    An indictment is not had because it contains two counts charging the accused, in one, with severing certain produce from the soil of another person, and, in the other, with stealing said produce. The two offenses are of such kindred nature that they may he charged in the same indictment.
    But the indictment is defective in only charging that the article severed from the soil was part of a crop “produced” by A. B., &c. The averment of ownership of the soil from which the produce was severed, is indispensable under the statute.
    APPEAL from the Third Judicial District Court, parish of Lincoln. Gfraham, J.
    The District Attorney for the State, Appellee.

      J. B. Bblstead for Defendant and Appellant:
    In an indictment for severing from the soil it must he alleged who was the owner of the soil
    In a charge of larceny there must be some definite value fixed to the property stolen.
    You cannot cumulate the charges of larceny and severing from the soil.
    One cannot be convicted ot two offenses for one single act.
    Where there is more than one count in an indictment and the verdict of the jury is “guilty;" there is a conviction upon each count.
   The opinion of the Court was delivered by

Fenner, J.

The defendant assigns the following as errors :

1st. The verdict is signed by G. E. MeKinzie without the usual addition of “ Foreman” appended to his signature.

This does not vitiate the verdict, which might even have been rendered orally. 15 An. 648; 32 An. 854.

The record shows that G. F. MeKinzie was a member of the jury.

The foreman is chosen by the jury itself to act as its organ of communication with the Court. When MeKinzie, in presence of the jury, presented the verdict, in their behalf, he acted as foreman with their' knowledge and consent, and his signature must be presumed to have-been made in that capacity.

2d. That the indictment charges the accused with two separate and distinct crimes, which cannot be cumulated.

The indictment contains two counts, one charging defendant with severing from the soil of another, at a named time and place, one bushel of potatoes valued at fifty cents; the other charging him with stealing, taking and carrying away, at the same time and place, the same bushel of potatoes.

We think the offenses are of such kindred nature, subject to such, similar penalties, and so connected with each other in the same transaction, as to render the objection untenable. 4 An. 434, 435; 15 An. 498; 20 An. 145; 30 An. 61.

3d. That the indictment does not fix the value of the property charged to have been severed and stolen. Such is not the fact. The value is distinctly fixed.

The 4th, 5th and 6th assignments of error are levelled exclusively at the first count of the indictment, and one of them we consider fatal to the count.

The statute (Sec. 2, Act No. 8, Ex. Sess. of 1870) uses the words; “ Whoever shall fraudulently or maliciously sever from the soil of another any produce,” &c.

The language of the indictment is, that the defendant “ did, wilfully and feloniously, sever from the soil one bushel of potatoes, part of a crop produced by M. L. Gilbert,” &c. Neither expressly, nor by exclusive implication, is it alleged that the soil, from which the severance was made, was that of another, which is the vital element of the crime. Because the crop was produced by M. L. Gilbert, it does not follow conclusively that the soil was his, as owner, or even as tenant. Non constat that Gilbert may not have produced the crop on defendant’s own land and merely as his employee.

“An indictment, under a statute ought, with certainty and precision, to charge defendant with hawing committed or omitted the acts, under the circumstances and with the intent mentioned in the statute. * *- If the facts alleged do not make out the case, the indictment is defective.” State vs. Stiles, 5 An. 324.

This defect is one of substance, and was properly urged by motion in arrest.

It would not, however, have vitiated the general verdict and sentence in this case, upon the count for larceny, had the penalty imposed by the sentence been appropriate to the latter crime. Bishop on Crim. Proc., \ 1015.

But, in addition to the imprisonmént, the accused is sentenced to pay a fine, which is no part of the penalty attached by law to the crime of larceny, though it is attached to the crime of severing from the soil.

This shows that the sentence was based upon the verdict on the bad count, and it cannot be maintained.

It is, therefore, ordered, adjudged and decreed that the verdict and sentence herein be annulled and set aside, and that the-case be re¡manded to the lower court for further proceedings according to law.


author: Poché, J.

text:
    No. 73.
    The State of Louisiana vs. John White, Jr.
    The provision of the Constitution that the accused in criminal prosecutions shall have the right to be tried by a jury, does not prevent said accused from waiving the jury and electing to be tried by the court only.
    Act 3ÜTo. 35 of 1880, providing for the trial of offenses in certain cases, is not repugnant to any article of the Constitution.
    The Court a qua justly refused the application of the Defendant for a new trial, based upon the ground of newly discovered evidence and accompanied by the affidavit of'the persoa who was stabbed by the accused, stating that he, (the accused), was drunk at the time of the assault and did not know what he was doing.
    APPEAL from the- Twenty-third Judicial District Court, parish of Iberville. Cole, J.

      JE. B. Talbot, District Attorney, for the State, Appellee.

      Barrow & Pope and Wm. A. Seay for Defendant and Appellant:
    Urst — It does not appear that the accused was present during the trial.
    Second — The court erred in refusing the accused a new trial. 32 An. 842.
    Third — The trial by the court without the intervention of a jury, was illegal and unconstitu tional. The Constitution requires a jury in all criminal cases and a prisoner cannot con sent to the adoption of any other mode. Const. Art. 7 ; Magna Charta, cap. 29; 12 An 19; 15 An. 192; 9 An. 62; Blackstone’s Commentaries, IY, 280, 323, 341; 8 It. 586; "Wis consin case in Law Reporter ; 10 Mo. 498; 41 Mo. 470 ; 1 Pittsburg, 492; Cooley’s Const Lim. 319, 410; Proifat’s Jury Trials, § 113.
   The opinion of the Court was delivered by

Poché, J.

The defendant appeals from a conviction on a charge of stabbing with intent to kill and murder, and a sentence of ten years in the State Penitentiary, and urges the following assignment of errors:

1st. That the trial by the court was illegal, and not warranted by law and the Constitution of the State. That the Constitution provides only for the trial of all criminal cases by a jury and the judge, and any other mode is by consent, which is not allowed.

2d. That it does not appear that the accused was present at the beginning and during the trial of the case.

3d. That the judge erred in refusing a new trial prayed for on the ground of newly discovered evidence.

The first error assigned involves the question of the right of an accused to waive a trial by jury which is guaranteed to him by article 7 of the present Constitution which reads as follows:

“ In all criminal prosecutions, the accused shall enjoy the right to a speedy public trial by an impartial jury, except that, in cases where the penalty is not necessarily imprisonment at hard labor or death, the General Assembly may provide for trial thereof by a'jury less than twelve in number; provided, that the accused in every instance shall be tried in the parish wherein the offense shall have been committed, except in cases of a change of venue.”

As the question is brought up for the first time, we have given-it a great deal of thought and study, especially as we have not been favored with a brief on behalf of the State.

Counsel for accused, in an able and elaborate brief, contend that, under the language of that article, no criminal case can be tried without •the intervention of a jury. They hold that the trial by a jury in criminal cases is imperatively commanded by the Constitution, and that in all cases the accused is absolutely denied the power or right to waive a jury, as no other mode of trial is provided for or contemplated by the article under consideration, or by the common law from which we have derived our system of criminal jurisprudence. Our construction of the article differs widely from the conclusions of defendant’s counsel.

The language “ In all criminal prosecutions, the accused shall enjoy the right to a speedy trial by an impartial jury,” does not, in our opinion, prescribe an exclusive mode of trial of all criminal charges. It intends to secure the right of such trial to every accused, and to place such right when he claims it, beyond the reach of the power of the Legislature or any other department of the government.

But the language does not justify the interpretation so as to mean that, in all criminal prosecutions, the accused shall or must be tried by jury. It extends or secures to him a valued right, but the language used does not preclude or deny to the accused the power or option to waive the right thus secured.

The argument of counsel that the mode of trial provided for under the exception in the article, in.reference to offenses not necessarily punished by hard labor or death, means that trials by jury either of twelve or of a less number, are the only constitutional modes of trying criminal charges, is equally untenable. We construe the language to mean this: that in all criminal prosecutions the accused shall enjoy the right of trial by an impartial jury, that is a jury of twelve, “the historical or common law jury,” except that, in cases when the penalty is not necessarily hard labor or death, a trial by a jury of a less number than twelve may be provided for by the Legislature, But we fail to find in that or any other article of the Constitution, any language which excludes or denies the power of the Legislature to provide for a mode of trial, at the option of the accused, without the intervention of a jury.

Under the system of parish courts created by the Constitution of 1868, criminal charges for offences the penalty of which was not necessarily hard labor or death, were allowed to be tried without jury, by those tribunals, whose monthly sessions afforded to the accused the ■ option, by waiving the jury, of a trial without the delay of a session of the District Court. In abolishing those courts, the framers of the present Constitution, who provided for only two jury terms a year in each ■ parish of the State, felt the imperative necessity of preparing a mode for the trial of criminal cases of offences not punished necessarily by hard labor or death, at other terms than the regular jury terms, and hence they empowered the Legislature to provide for a mode of trial for such cases by a jury of less than twelve members, and hence they were .silent on the subject of the right of the accused to waive trial by jury altogether.

The object which they had in view is very apparent; it was to secure the chances of a speedy trial to the accused, and to relieve the parishes of the enormous expense and great inconvenience of drawing, summoning and empanelling large numbers of jurors five or six times a year.

In the light of that constitutional object, we are clear that the power of the Legislature to authorize, at the option of the accused, trials of that class of cases without a jury, was unmistakably contemplated by the framers of that instrument.

We cannot agree with counsel for the accused in their patriotic alarm for the safety of the principles of Magna Charta under such a construction, or that such a doctrine is repugnant to common law tradition or jurisprudence.

On this subject we find in Bishop’s Criminal Procedure the following emphatic recognition of the doctrine. If a statute authorizes the court to try, with the consent of defendants, their cases without a jury, a defendant who thus consents and is thus tried, has thereby waived his rights and he cannot complain.” (§ 894 and numerous decisions there quoted.) .. ...

The same doctrine is recognized and commented on by Wharton in, his " Oriminal Pleading and Practice.” (§ 733 and authorities quoted by ■ him.) . • i ■

Now, in section 4, of Act 35, of the Legislature of 1880, entitled An act to provide for the trial of offences when the penalty is not necessarily by hard labor or death,” the Legislature has specially recognized the right of the accused to waive trial by jury, and to be tried by the court.

There is no force in the argument that the proviso of the statute containing this declaration is not embraced in the title of the act, and is, therefore, null and void. The title is sufficiently broad to cover the proviso, and the act is not repugnant to any article of the Constitution.

We, therefore, conclude that the accused has been constitutionally and legally tried by the court under a charge for an offence the penalty of which is not necessarily imprisonment at hard labor or death.'

2d. The second ground of complaint urged by the accused- is yet more untenable.

The record shows that he was tried on the 7th of September, 1881, and that after evidence adduced and argument of counsel, his case was submitted, and the court, finding Mm guilty, ordered him to be remanded to jail to await sentence. The record shows no intermission between these acts, and it, is difficult to conceive how the court could have remanded him to jail if he had not been present. True, the clerk could, and should have been more explicit by making a special entry, noting Ms presence during the progress of his trial. But the entry, as it is, satisfies us beyond a doubt that the accused was present at the beginning and throughout the progress of his trial, and the requirements of the law are thus substantially complied with.

3d. The motion for a new trial is predicated upon newly discovered evidence, and the nature of that evidence is disclosed by an affidavit of the person who was stabbed by the accused, which comes up as part of Ms bill of exception to the judge’s ruling. The substance of theaffi-. davit is, that, at the ■ time- of his attack on affiant, the accused was drunk, and that, in the opinion of affiant, accused did not know what he was doing,” and if sober, would not have committed the deed.

Now, what was the newly discovered evidence ? It was evidently, not the fact ol, his- drunkenness, nor of the proof of such .fact. The judge in Ms reasons for refusing the new trial, making part of the Misinforms us that the fact of' the drunkenness had been testified to and proved on the trial, and had been considered by him, but that the state of drunkenness -Was not sufficient to exclude malice from the accused.

The opinion of the affiant as to the intention of the accused was clearly not admissible in evidence, and hence the accused has been deprived of no legal rights and suffered no wrong by the judge’s refusal of a new trial under such a flimsy pretext.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed.


text:
    No. 76.
    The State ex rel. W. P. Hall, District Attorney, vs. The Judge of the Tenth Judicial District.
    The Judge of a District Court has no right to refuse leave to the District Attorney to file-an Information, on the ground that, in his opinion, the statute under which the prdieoution is instituted, is unconstitutional.
    ApPLICATION for writ of Mandamus.

      W. P. Hall, District Attorney, Relator.
   The opinion of the Court was delivered by

Poché, J.

This is an application for a writ of mandamus to compel the Judge of the Tenth Judicial District to grant leave to the District Attorney of that district to file in the District Court for the parish of DeSoto, an information which that officer presented against one Miles Taylor, charging him with the crime of severing from the soil of another a portion of the crop then growing thereon.

The judge bases his refusal on the ground that, in his opinion, the statute under which the prosecution is brought — Act No. 8 of the Extra Session of 1870 — is unconstitutional, and cannot support a criminal' prosecution.

Both the judge and, the District Attorney confine their argument to the constitutionality or unconstitutionality of the statute in question; but, in our opinion, that question cannot be discussed and settled in this proceeding, which presents the question as to whether the District Judge can withhold his consent to the filing of a criminal information on the ground that he considers the statute under which the charge is made as unconstitutional and void.

An information is a criminal charge presented by the prosecuting officer of the State without the interposition of a grand jury. This mode of prosecution is recognized under the common law, and has been sanctioned by legislation in several States of the Union.

In this State it is specially authorized by the Constitution, for all offences not capital, Art. 5, and the mode of proceeding thereunder is-prescribed in section 977 of the Revised Statutes, which provides that- “ prosecutions for offences not capital may be by information with the-consent of the court first obtained.’ ’

After a diligent search, we have failed to find any legislation, or any adjudication of our courts, defining the discretion of the judge In granting or refusing his consent to file such informations.-

It has been intimated that the judge could refuse his consent, In a case where the District Attorney presents a charge against an accused at the same term of the court, at which the grand jury had ignored a bill, based on the same charge against the same accused.

But, in that case, State vs. Ross, 14 An. 364, the Supreme Court held, that the court having given its consent to the filing of the information, could not rescind its order, and quash the information, and ordered the District Court to reinstate the information and to proceed with the trial under it.

We conclude, from the reasoning of the court in that case, that the District Judge is not vested with unlimited discretion in granting or refusing his consent to the filing of informations before his court.

The object of the law in requiring the consent of the court in this mode of prosecution, was to protect the accused from being prosecuted-under an information when, from the nature of the offence, the prosecution should have been presented under an indictment, or to protect him from a prosecution under a charge not predicated upon any statute of the State, defining the offence and prescribing a punishment therefor.

Beyond that, and in all cases where an information is presented in a proper case, under a statute, not repealed and not declared unconstitutional by the highest tribunal in the State, we cannot sanction the interpretation which warrants the refusal of the judge on' the ground that, in his opinion, the statute under which the charge is based is. unconstitutional.

Such a latitude would present cases where, in a certain district, an accused could be charged, tried and punished for an offence under a statute recognized as binding- by the judge of that particular district, when at the same time, in an adjoining district, the accused would be protected from prosecution for a similar offence, on the ground that the same statute would be held unconstitutional by the judge of the latter district.

We think, and we therefore hold, that the unconstitutionality of the statute made the basis of a prosecution, either by indictment or information, is a matter of defence exclusively within the discretion of the accused, who can urge it in arrest of judgment, but that such a defence cannot be anticipated or supplied by the judge so as to justify his refusal to the filing of an information.

We, therefore, conclude that in this case the District Judge has erred in the course which he pursued, and that a writ of mandamus will' lie in the premises.

It is, therefore,’ordered, adjudged and decreed that the alternative writ of mandamus herein granted be made peremptory, at defendant’s ■ costs.


text:
    No. 77.
    The State of Louisiana vs. Damon Lowry.
    TJnder section 790, Rev. Sta., “thrusting ” a person may -well include thrusting with “ an iron bolt, rod or pin,” whether the point be sharp or not.
    APPEAL from the Sixteenth Judicial District Court, parish of East Feliciana. Kernan, J.

      Chs. J3. Lea, District Attorney, for the State, Appellee.'

      Stone & Brane and S. H. Childers for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The accused was indicted under Sec. 790 of the Revised Statutes, providing: “ If any person lying in wait, or in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shallshoot, stab or thrust any person with a dangerous weapon, with the intent, to commit the crime of murder, he shall, on conviction thereof, etc.”

The indictment charges that, under the circumstances prescribed in-the statute, the accused “ did strike or thrust with a dangerous weapon, namely, an iron bolt, rod or pin, one John P. D. Brooks, with intent to commit murder.”

The judge charged, as requested by defendant’s counsel, that striking is not thrusting, and the proof of striking, however severely, will not justify the verdict of guilty on the charge of thrusting, and that the word striking used in the indictment should be regarded as surplusage.”

Defendant’s counsel also asked the judge to charge that " thrusting-cannot be done except with a pointed weapon, thrusting being an attack with a pointed weapon.” This charge was refused by the judge, to which refusal exception was duly taken.

The gravamen of the errors assigned for our consideration, is :

1st. That the judge erred in refusing the above charge ;

2nd. That, as thrusting can only be done with a pointed weapon, the indictment fails to charge the offence denounced by the statute.

In Yoorhies’ Criminal Jurisprudence it is said: Stabbing means awounding with a pointed instrument (Waterman’s Archbold, 260-1; 3 An. 512), and thrusting is an attack with a pointed weapon.” The learned author cites no authority in support of the last proposition; counsel for accused refers to none; and, after some research, we have been able to find none. We are not informed that the word thrust has received any peculiar legal definition. It is not found in the law dictionaries of Bouvier or Burrill. We do not find it referred to in the indices of any of the text books on criminal law, nor, as far as our examination has extended, in the body of those works. We may, therefore, assume that the law-maker used it in its ordinary meaning as an English word. The lexicographers assign to it no such exclusive sense as that contended for by counsel. On the contrary, the verb transitive, to thrust, which is the one used in the statute, is defined: to push or drive with force, as to thrust anything with the band or foot or with an instrument; to drive, to force; to impel.” The intransitive verb is defined : '■ to make a push ; to attack with a pointed weapon, as a fencer thrusts at his antagonist.” The statute punishes .thrusting a person, not thrusting at a person. The noun thrust is defined “a violent push or driving, as with a pointed weapon, or with the hand or foot, or with any instrument.” See Webster and Worcester.

From this it appears, and we so hold, that “ thrusting ” a person may well include thrusting with an iron bolt, rod or pin,” whether the point be sharp or not. Such an instrument may well be a dangerous weapon — and as to whether a thrust therewith was with “ intent to commit murder,” that was a question for the jury.

Judgment affirmed.


author: Todd, J.

text:
    No. 62.
    Heirs of C. B. Thompson et al. vs. L. G. Barrow, Administrator, et als.
    There is no Inconsistency in the heirs bringing suit for the nullity of the sale of the property of the estate by the administrator, and, at the same time, demanding that the administrator be ordered to file his account and be removed from office, and that they be put in possession.
    APPEAL from the Second Judicial District Court, parish of Bienlle. Drew, J.

      McDonald & Richardson and D. 3. Patterson for Plaintiffs and Appellants.

      Boone & Howell for Defendant's and Appellees.
   The opinion of the Court was delivered by

Todd, J.

This suit was brought by- the widow and heirs of C. B, Thompson, deceased, against- the defendants, to annul a sale of lands - belonging to the succession of the deceased, made by one of the defendants, L. G. Barrow, in his capacity as administrator of the succession.

Subsequently to the institution of the suit, they, the plaintiffs, procured an order from the Court for the rendition of an account by said administrator, and in the same proceeding asked that he be removed from office, and they put in possession of the property of the estate. The defendant-Barrow, administrator, filed an exception to the action of nullity, the suit now before the Court, to the effect that the demands, made in the two proceedings were inconsistent and exclusive of each other. That the first suit was a demand for the nullity of the sale, and the latter proceeding presented a claim for the proceeds of the sale.

The exception was sustained and the suit dismissed; and from this judgment of dismissal the plaintiffs.have appealed.

There is manifest error in this ruling. There is no inconsistency in the two demands. The one is for the recovery of the land, and to have the sale of it declared null, and the other to compel the administrator to render an account of his administration and have him removed from office. There is no claim, directly or indirectly, for the proceeds of the sale. If judgment had first been rendered in the action of nullity in favor of the plaintiff's, decreeing them owners of the land, it would have been proper, as a further step, to make the administrator render his account, and cause his removal if the charges made against him of maladministration are true. And there is no reason why they might not take the same step during the pendency of the suit. Even if this land embraced all the property of the succession, as alleged by counsel, it would not, in’ the least, affect the question or render such proceeding improper. The appointment of an administrator is predicated on the idea of the succession owing debts, and the plaintiffs were certainly interested in the matter of debts against the succession, and were entitled to know their amount and character, and whether they were paid or not. The land, too, might have produced a revenue during the administration, and before its sale, and for this, if such were the facts, plaintiffs were entitled to an account. Besides, we notice in the petition that one of the grounds of nullity therein preferred, is that the debts of the succession were trifling in amount, if any existed, and that there was no necessity for an administration and sale of the property. In view of such ground of nullity being urged against the sale, it might well be that the proceeding to compel the administrator to account, and the rendition of the account, would, instead of being inconsistent with the action of nullity, prove auxiliary to the suit, by showing the absence of succession debts or other necessity for the administration and sale.

The judgment is reversed, the exception overruled, and the case remanded, to be proceeded with according to law and the views herein expressed; the cost of suit in the lower court, from and including the filing of the exception, and the costs of appeal, to be paid by the defendants; all further eosts to abide the result of the suit.


author: Levy, J.

text:
    No. 67.
    The State ex rel. Lucien Gabriel vs. The Judge of the Twenty-second Judicial District Court, Parish of St. James.
    Under the present Constitution, the accused in criminal oases, in which the punishment of death or imprisonment at hard labor may be inflicted, is eutitled to an appeal to this Court, whether the verdict of che jury or judgment of the lower court is or not for a lesser punishment. Similarity on this point between the Constitutions of 1853 and 1879, and difference with that of 1868. 14 An. 649.
    Application for Writ of Mandamus.

      U. Q. Bugué for the Relator.
   The opinion of the Court was delivered by

Levy, J.

The relator applies to this Court for a mandamus to compel the Judge of the Twenty-second Judicial District Court of the parish of St. James to grant him an order of appeal from the sentence and judgment of said Court, rendered in the trial of an information against him, charging the offence of “assault with intent to commit rape.” Relator, the accused in said information, was tried by a jury, who found a verdict of “guilty of assault,” and the judge sentenced him to three months’ imprisonment in the parish jail and to the payment of a fine of twenty-five dollars, whereupon the accused moved for an appeal to this Court, which was denied.

The punishment prescribed for the offence with which accused Was charged, is fixed by the statute at imprisonment at hard labor, not exceeding two years, the punishment of assault at a fine not exceeding one hundred dollars, or imprisonment not exceeding three months, or both, at the discretion of the Court.

We are to decide, in these proceedings, whether an appeal lies to this Court, under the jurisdiction vested by the Constitution of 1879. For a proper solution of the question and to fully understand the intention of the framers of the present Constitution, we are materially aided by a consideration of the clauses of our previous Constitutions on the same subject.

In regard to the jurisdiction of this Court in criminal matters, the organic law has not been uniform. Under the Constitution of 1852, article 62 provided that the jurisdiction of the Supreme Court shall extend “to all criminal cases, on questions of law alone, whenever the offence charged is punishable with death or imprisonment at hard labor, or when a fine exceeding three hundred dollars is actually imposed.”

In the Constitution of 1868 we find a very plain and material change- ' It provides, in article 74, that the jurisdiction of the Court shall extend, “in criminal cases, on questions of law only, whenever the punishment' •of death or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed.” The Constitution of 1879, which constitutes the existing organic law, and whence’ the powers and juris- • diction of this Court are derived and by which -they are limited, invests it with jurisdiction in all criminal cases, on questions of law alone, whenever the punishment of death or imprisonment at hard labor may be inflicted, or a fine exceeding three hundred dollars is actually imposed.” By the Constitution of 1868, an appeal in criminal cases could only be entertained where the punishment or fine was actually imposed. The wording of article 62 of the Constitution of 1852, and of article 81 of 1879, differed in the mode or manner of expression, that of 1852 extending the jurisdiction to cases in which “ the offence charged is punishable with death or imprisonment at hard labor,” &c., and that of 1879 to cases, “ whenever the punishment of death or- imprisonment at' hard labor may be inflicted,” &e. We think both these articles, although differing in mere verbiage, express the same intention and grant the same • right. Our present constitutional provision on the subject differs fofo ocelo from that of 1868, the latter limiting the right of appeal to those cases in which the punishment of death or imprisonment at hard labor, &c., is actually imposed, that is, where the sentence and judgment of the Court condemns the accused to suffer such punishment; the former • to those where, under the law governing-them, they may be inflicted;in other words, where the statute under which a party is prosecuted prescribes such punishment in the event of the conviction of the party. Under the present Constitution, we are of opinion that the appeal will lie just as it did under that of 1852, and that, regardless of the finding of the jury or the sentence and judgment of the Court, the accused is entitled to an appeal in all such cases after final judgment, although a lesser punishment is inflicted upon him, or the verdict of the jury may convict him of a. crime less than that with which he is charged in the indictment or information, when, if convicted of the greater one thus charged, he might be condemned to the punishment denounced by the' law defining the offence and its penalty. To some extent the right may' be likened to an appeal in civil cases, which is governed, not by the amount of the judgment rendered, but by that claimed in the petition. Regarding the provisions of the Constitutions of 1852 and 1879 as being' identical in meaning and conferring the same right, the decisions of the (Supreme Court having reference to the provisions of the Constitution of 1852 on that subject, are applicable to those of the present Constitution, this question being before the Court for the first time since the adoption of the latter.

In 15 An. 347, State on the relation of Cook vs. Keeper of Parish Prison, the Court said: “It is well settled that, in a criminal prosecution, this Court is without jurisdiction, unless the offence charged be punishable by death, or imprisonment in the penitentiary, or a fine exceeding three hundred- dollars has been actually imposed. And then there must be a final judgment before an appeal can be taken.”

In State vs. Slave Charles, 14 An. 649, it was held: “The right of appeal equally exists, if the accused has been charged with an offense punishable with death or imprisonment at hard labor, and has been found guilty of an offense not so punishable, for article 62 of the Constitution (of 1852) does-not make the right of appeal depend upon the nature of the verdict or the punishment that may be inflicted by the 'jury, but upon the fact whether the offense charged is punishable with death or imprisonment at hard labor.” See, also, 12 Am 390.

■ Eor the reasons stated, we think the relator entitled to the order of appeal,’and that it should be granted by the District Judge.

It is, therefore, ordered, adjudged and decreed that the alternative writ of mandamus herein issued be made absolute and peremptory, and the Judge of the Twenty-second Judicial District Court in and for the parish of St. James be directed to grant the suspensive.appeal prayed for by the relator, Lucien Gabriel, and that the defendant and respondent herein do pay the costs of these proceedings.


author: Fenner, J. Poché, J.

text:
    No. 59.
    The State of Louisiana vs. Isaac Dellwood.
    On Motion to Dismiss.
    An Appellant should not be prejudiced by the error committed by the jndge in fixing the return day of the Appeal. |
    On the Merits.
    A public officer vacates the office held by him by accepting another office incompatible with the former. 32 An. 193.
    The accused had the right to prove by a competent witness, that another person, accused with him of having stolen a hog and convicted on a separate trial, had asked him just before the time of the alleged offense, “ to go and help him to get his hog.” The circumstance was part of,the res.gestte, and the evidence admissible to show the absence of the animus /urancli.
    APPEAL from the Second Judicial District Court, parish of Webster. Drew, J.

      J. A. W. Lowry, District Attorney, for the State, Appellee.

      M. C. Moseley for Defendant and Appellant. •
   Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The motion is based on the ground that the appeal taken on the 3d day of May, 1881, was made returnable to this point, instead of to New Orleans, where this Court was then in session and so remained until the 31st of said month, which is alleged to be in violation of the provisions of Act No. 30 of 1878. This act requires appeals, in •criminal cases,.to be “made returnable within ten days after granting the order of appeal, whenever the Supreme Court may be in session on the return day;” but it contains a proviso “that the judge may, when necessary, fix a different plaoe for the return of the appeal when, in his opinion, such a change will conduce to a speedy determination of the appeal.”

It is manifest that the only discretion confided to the judge is baaed on the consideration of promoting a speedy trial of the appeal, and we find it impossible to see how this end could be promoted by carrying the return day beyond, not only the pending session of this Court in New Orleans, but also the succeeding sessions at Monroe and Opelousas.

Considering, however, that the statute was evidently passed in the interest of persons accused, and that this defendant should not be prejudiced by the error of the judge in fixing the return day, we shall overrule the motion'to dismiss. Chaffe vs. Heyner, 31 An. 595.

In this case it is held that where the order of appeal was the act of the judge, in the exercise of his own discretion, and not based solely on the suggestion of the appellant, a mistake in the return day will not be visited on the latter. Such is clearly the case here; for the judge says in his order, “ by reason of the law and the foregoing application, the appeal is granted returnable,” &c. If the court considered the law and by reason thereof acted, this must be treated as the exercise of his judicial discretion.

This differentiates the case from that of Wooten vs. LeBlanc, 32 An. 692.

On the Merits.

I.

The accused challenged the array of jurors and moved, seasonably, to quash and set aside the venire, on the ground that two of the jury commissioners, who participated in the drawing of the jury, were disqualified from acting as jury commissioners, because one of them was, at the time, holding the offices of member of the parish school board and tax assessor for the parish, and the other was holding the office of member of the police jury. Several questions, delicate and not free from difficulty, are presented on the briefs, touching the character of the offices referred to in Art. 129 of the Constitution ; but we find it unnecessary to decide them.

Conceding, for the sake of argument merely, and without so deciding, that the office of jury commissioner in the country parishes, and also that the other offices alleged to have been held by the parties here, were all “offices” within the meaning of the constitutional provision and incapable of being simultaneously held by the same person, — we yet find one reason assigned' by the judge a quo for overruling the motion to quash the venire, which must prevail, viz.: “If the offices are inconsistent, the parties, by qualifying as commissioners, vacated their former offices.”

The record not showing the contrary, we must accept this statement of the judge as establishing that the appointment and qualification of these parties, as jury commissioners, were subsequent to their appointment and qualification as to the other offices. It has been twice decided that the acceptance of an office incompatible with one already held, vacates the latter. State vs. Newhouse, 29 An. 824; State vs. Arata, 32 An. 193. The last mentioned case is identical with the present one.

II.

Defendant had been prosecuted, jointly with one Handy Jenkins, for larceny of a hog. Upon a severance, Jenkins had been separately tried and convicted. On the present trial of this defendant, he offered to prove by Isaac Harrison, a competent witness, that, “ on the same day and immediately preceding the alleged taking, Handy Jenkins, in the presence of said witness, asked defendant to go and help him to get his (Handy Jenkins’) hog, and that defendant immediately went, under the impression that he was assisting Handy Jenkins to do what he had a right to do.” The court rejected this evidence for the reasons assigned that Jenkins having been convicted of an infamous crime, evidence from him, or statements by him, were inadmissible, and that being himself an incompetent witness and unworthy of belief, his statements could not be received.

We think the court erred in rejecting this evidence. The statement offered to be proved lacks no element necessary to constitute it a part of the res gestae; and it seems to us to be legitimate evidence for the purpose of disproving the animus furandi. The competency of Jenkins as a witness and his credibility have no pertinency to the question. The purpose of the evidence was not to establish the truth of Jenkins’ statement, but merely to prove the fact that the statement was made to witness, and that, whether true or false, defendant, believing it to be true, acted upon it. We, therefore, think that defendant’s exception to the rejection of the testimony was well taken and the case must be remanded on this ground.

It is, therefore, ordered, adjudged and decreed that the judgment and sentence be annulled and set aside, and that this case be remanded to the lower court for further proceedings according to law.

Dissenting Opinion.

Poché, J.

'My solemn conviction’ compels' me to dissent from the opinion of the majority in overruling the motion to dismiss this appeal.

Act No. 30 of 1878, imperatively requires that all appeals in criminal cases “ shall be made returnable to the Supreme Court within ten days after granting the order of appeal wherever the said court shall be in session on the return day,” and directs the clerk in case the court shall have adjourned sine die at the place of return, to forward at once the record and briefs filed with it to the place where the Supreme Court next meets, etc.

In this case the order of appeal was signed on the 3d of May, 1881, at which time this Court was sitting in New Orleans, where the session ended only on the 31st of that month, and the appeal should have been made returnable at that point, unless it appears from the record that the judge, in the exercise of the discretion vested in him by the proviso authorizing him to fix a different place when necessary, and when in his opinion such a change will conduce to a speedy determination of the appeal.

The appeal was prayed for by petition signed by the defendant’s counsel, praying that the appeal be made returnable to this Court at its next regular session in Shreveport. The order of the judge predicated on that petition, reads as follows:

“ By reason of the law and the foregoing application .for appeal, it-is ordered that an appeal, suspensive and devolutive, be granted as prayed for, returnable to the Supreme Court at its next regular term at Shreveport.”

I fail to see in the language of that order or in the record, the slightest intimation that the judge did, or intended to, exercise the only discretion vested in him by the law, in changing the place of return, when, in his opinion, the change will conduce to a speedy determination of the appeal. •

I cannot be induced to attribute to the judge the thought that, in his opinion, the determination of an appeal made returnable by law to-New Orleans in May, 1881, would be speedy by returning it to Shreveport in October, 1881, when it could have been disposed of according to law, in New Orleans in May, in Monroe in June, or in Opelousas in July of the same year.

It is, indeed, too violent a presumption to attribute such reasoning to the mind of a judge who is learned in the law.

This circumstance alone shows conclusively that the judge in using-the words “ by reason of the law,” never intended to refer to the proviso of the Act of 1878, or could possibly mean that in his opinion the-change of the return from New Orleans in May, -to Shreveport in October following, would conduce to-a speedy determination of the appeal. I am thoroughly convinced that in granting this order the judge merely accepted the place of return suggested by appellant in his petition, and’ that, therefore, the erroneous return is to be attributed solely and exclusively to the fault of the appellant.

In the case of Wooton vs. LeBlanc, 32 An. 692, in which we took occasion to review the whole jurisprudence of this State on that point, we distinctly held, that whenever an appellant suggests in his petition for appeal an erroneous return day, which is adopted by the judge in. his order, the appeal, on motion, must be dismissed.

With all the desire which I have to agree with my learned brothers.I see no circumstance or fact in the case at bar, under which we can possibly or logically distinguish it from the Wooton case, and I see no-reason to justify a departure from the clear rule established by the majority of the Court in that case. Believing that the merits of this case-are not legally or properly before the Court, I take no part in the opinion rendered by the majority on the issues presented in the cause.


text:
    No. 61.
    John Murrell, Sr., et al. vs. Mary E. Murrell and Thomas W. Fuller, Tutor.
    The fact that the appeal bond is signed by only one Of several appellants, does not vitiate the appeal, in as much as, under the settled jurisprudence of the .State, such bond is valid even if not signed by the appellant.
    A partnership from which the parties have excluded some of their respective property, is not an universal partnership under our Code.
    An act of universal partnership must be registered in the Mortgage office, and the registry is necessary, even between the parties, to give such character to the partnership.
    A partner who, in violation of the act of partnership, enters into another firm, does not thereby give the right to his original co-partner to claim a share in the profits of the new firm. The violation of the agreement may give rise to an action for damages; but, in as' much as the said original co-partner could not be held, without his consent, for the debts of the new firm, he cannot claim that he was made a partner therein, even unaware, on the ground that the original partnership was an universal one.
    A partner is estopped, in the liquidation of the partnership, from denying to the prejudice of his co-partner any of the entries in the boohs of the firm, unless he charges and proves error.
    A elation enpaiement, made by a partner to his own wife, oí the property of the firm, in satisfaction of her claim against the firm for her paraphernal funds held by it, is legal and. valid.
    APPEAL from the Second Judicial District Court, parish of Webster-Drew, J.

      J. C. Egan, O. E. McDonald and W. G. McDonald, for Plaintiffs and Appellants:
    First — Every partner may, without the consent of his partners, enter into a partnership for the share he has in the partnership. G. O. 2871; 24 An. 317; 16 An. 418.
    Second — There must be at least two persons- to every contract, and one person cannot act as agent to two persons and make a sale with himself for them. 2 R. 556; 6 L. 407; 11 M. B. 298; C. O. 1798.
    Third — In order that the wife can make a valid purchase for herself with her paraphernal ■ ' property, she must have a separate administration of her paraphernal funds. 20 An. 531; 21 An. 343; 18 An. 105, 588.
    Fourth — The use of Mrs. Murrell's paraphernal property belonged to her husband, and the firm owes her nothing for it. 21 An. 343, 344, 345; 18 An. 105, 588; 16 An. 290.
    Fifth — The defendants claim sale of cotton, the onus is on them to prove a valid giving in payment.
    Sixth — The entries show no elements of a contract.
    Seventh — The entries are not correct in date.
    Eighth — To have any effect against John Murrell they should be shown to have been made at the date they bear and during the existence of the partnership.
    Hinth — It is not probable 1-hat a husband who was administering the property of his wife prudently, would invest her money in cotton on Bed Biver.
    Tenth — 'We are to presume that he would be as prudent in administering his wife’s property as the partnership business, and if he refused to take cotton for claims due the partnership, as he did, he would not at that time take cotton for his wife’s claim.

      J. D. & JT. Watlcins. for Defendants and Appellees:
    First — Plaintiff basis his claim to share in the commission house of Bawlins & Murrell upon the partnership articles of I. Murrell & Bro., dated in 1848. Plaintift’s petition and oath as a witness so states. Partnership of I. Murrell & Bro. was confined to Claiborne parish. The business of Bawlins & Murrell was conducted in New .Orleans. The first was planting and a retail business; the second was a commission business.
    Plaintiff's judicial declarations amount to Fall proof against them. B. C. C. 2291; 4 B. 457 ; 6 A. 397; 13 An. 369; 15 An. 676 ; 16 An. 22; 24 An. 300.
    Second — Plaintiff and defendant made all their partnership agreements in writing, and in the first one stipulated that any change should be in writing.
    Parol evidence cannot be admitted against or beyond these writings. B. C. C. 2276 and 2236 ; Story on Partnership, See. 278.
    Third — John Murrell was a planting partner with Isaac Murrell in Claiborne; this did not make him a partner in Bawlins & Murrell in New Orleans. A partner of my partner i», not my partner. PC. D. 1082, Ho. 3. .
    Fourth — The agreement of 8th March, 1848, limited the firm of I. Murrell &Bro. to six years, and didnot prevent I. Murrell from joining Bawlins in 1866. After the six years, it was a partnership at will and might be dissolved, or I. Murrell might withdraw at pleasure. Smith’s Mercantile Law, p. 54; Story on Partnership, Sec. 279.
    Fifth — Entries in partnership books at the time of the transaction are conclusive on the partners, The partners are mutual agents of each other, and the entry an account rendered of the transaction. 1 PC. D. 511, Ho. 6 and Ho. 8.
    Sixth — A partnership is a commutative contract. B. C. C. 2301. Something must be put in by each partner — credit, skill, industry, money or property, and profits and losses must be.shared. B. C.C. 2814; Smith’s Mercantile Law, pp. 43, 44 and 50,52, 54; Bonvier's Dictionary, Partner, pp. 285, 286, 291.
    There must he an agreement to be partners, otherwise there is no partnership. 30 An. 631.
    There must be a contract, and each partner must put in something to form a partnership. • Story on Partnership, Sec. 2; Story, Sec. 2, paragraph 3.

      Some important ingredients said to constitute its essence, a contract. Story, Secs. 3, 4, 5, 6, and p. 19, Sec. 15. Some common stock must "be brought in by each party — money, goods, effects, or other property, or labor, or skill — something must be contributed.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellees move for the dismissal of this appeal bn the ground that John Murrell, Sr., alone has signed the appeal bond, and his co-plaintiffs, his children, acting in these matters as the legal representatives of their deceased mother, and necessary parties in this appeal, have not signed said bond, or furnished any appeal bond.

The record shows that the appeal was prayed for by John Murrell, Sr., and his co-plaintiffs, William C. Murrell and Lucinda Murrell, wife of N. C. Walker, through her legal minor heirs represented by their tutor, N. C. Walker; that the names of all the plaintiffs are embodied in the appeal bond, as appellants and obligors, and that the sureties bind themselves for these two plaintiffs as well as for John Murrell, Sr. Under the well settled rule of our.jurisprudence, holding an appeal bond, even when not signed at all by the appellant, as sufficient in law to sustain an appeal, we cannot conceive how this bond is vitiated because it is signed by one of the three appellants alone, when by the tenor thereof, it distinctly appears to be the bond of all three. If not signed by any of the appellants, it would have been good (Louque’s Digest, page 32, No. 19);' and it follows that the fact of its being signed by one of the appellants only, cannot be held as excluding-the other appellants from any participation therein, or any responsibility thereunder. A different case would be presented if the bond had been made in the name of one of the plaintiffs, without mention, in the body of the instrument, of the other plaintiffs. In such a case, it would have been the act of that plaintiff alone, and could have conferred no benefit, and entailed no responsibility on the other plaintiff's. 26 An. 356. We think that all the plaintiffs are properly before us as appellants, and, therefore, conclude that the motion to dismiss cannot prevail, and hence it is overruled.

On the Merits.

This is an action brought by John Murrell,-Sr., and his children by-right of representation of their deceased mother, who was the partner in community of said John Murrell, for a final liquidation and settlement of the parnership which had existed between said John Murrell and his brother, Isaac Murrell, from the year 1848 to 1876.

We gather from the voluminous and very complicated record, the following salient facts, as bearing upon the issues presented for our consideration in this appeal.

In March, 1848, Isaac and John Murrell formed a co-partnership “ under the name of I. Murrell & Bro., in the business of merchandising and farming,” for a term of “six years from date and longer, unless each partner may mutually agree to dissolve then ;” and the written articles of partnership further stipulated that thé farming operations should be under the control and management of John, described as the farmer, and the mercantile operations were placed under the management of Isaac, the merchant. Each partner was to furnish, as part of his investment, a certain amount in cash, and all his lands, improvements, stock of all kinds, and other property, reserving certain notes and accounts, some cotton, and forage, and some real estate of John Murrell, situated in the State of Arkansas, reserving, also, each partner’s slaves, whose labor, however, was to be furnished to the partnership.

It was further stipulated that each partner should devote his whole time to the interest of said concern, and that during the partnership neither partner should engage in any trade, speculation or other business of profit, on his own account, without the consent of the other partner in writing, and that the accounts of each branch of business should be kept in books for that purpose, open at all times to the free use of each partner, and that profits and losses should be equally divided.

At the expiration of the term of six years, the partnership was continued by tacit consent, without any express stipulation to that effect in writing or otherwise.

Now, it appears that in 1866, Isaac Murrell formed a co-partnership in New Orleans with S. W. Rawlins, under the name of Rawlins & Murrell, for the purpose of transacting a cotton factorage and commis-i sion business, for a term of one year from June 8, 1866, the business of which in New Orleans was placed under the management of Rawlins, and that in the country, under the control of Isaac Murrell, and the profits and losses of which were to be divided in the proportion of three-fifths to Rawlins and two-fifths to Murrell.

After its limited term, this partnership was renewed from time to time, until its final dissolution in 1876.

The record shows that this partnership realized considerable profits. It also appears from the record that, as far back as the year 1855, a separate account was opened in the mercantile books of I. Murrell & Bro. in the name of Mrs. E. R. Murrell, wife of Isaac Murrell, and was continued from year to year until 1876, covering, in the main, sums of money which she inherited from the successions of her father and of her brother, and in which account she was declared in 1876, a creditor of that firm in the sum of $11,411 95.’. It also appears that, after the dissolution of the partnership of I. Murrell & Bro., in January, 1876, and previous to the death of Isaac Murrell, which occurred in June, 1877, the two partners had begun a settlement of their affairs and a partition in kind of the partnership assets, under which Isaac Murrell had been allotted lands and personal property, appraised by mutual consent at $29,168 49, and John Murrell, Sr., had received the same kind of property, amounting in its estimated value to $16,116 04, which partition is inscribed in full and in detail in the day book of the firm. The record further discloses that, after the death of Isaac Murrell, the partition thus begun was ratified in a notarial act of partition by John Murrell and his children on the one hand, and the heirs of .Isaac Murrell, represented by their tutor, acting under the advice of a family meeting, in so far as the division of the real estate in kind was concerned, and that since the institution of this suit, the division of notes, accounts, and other personal partnership assets, made as above stated, between Isaac and John Murrell, was enforced, by consent of both parties, with a slight amendment.

The main object of this suit is to have John Murrell recognized as a partner in the firm of Bawlins & Murrell, and as such entitled to an equal division with Isaac Murrell in his share of the profits of that business; and to cause the rejection of the greater part of the credit of $11,411 95 appearing in favor of Mrs. E. M. Murrell on the books of I.' Murrell & Bro., and to reject other and minor items.

• It must be noted that the settlement of all these accpunts was, on motion of parties, referred by the court to experts and auditors, whose report was satisfactory to neither side of the controversy, and on joint motion of counsel the report was disregarded in the determination of the issues presented in the case.

The judgment of the District Court rejected the claim of John Murrell to participate in the profits of the firm of Bawlins & Murrell, confirmed and ratified the partition begun by the two partners, I. Murrell & Bro., and established in the notarial partition of February 24, 1879, under which Isaac Murrell had waived real and personal property to the value of $29,168 49, and John Murrell, the sum of $16,116 04, allowed credit to John for the amount received in excess by Isaac, recognized the debt due by the firm to Mrs. E. B. Murrell, to wit; $11,411 95, debited John with one half of that sum, with one half of the sum of $9853 57, amount of a debt of I. Murrell & Bro. to Bawlins & Murrell, and paid in full by Isaac Murrell, and with a sum of $419 97, and another sum of $816 92, due by him to Isaac Murrell, and gave him credit for sundry small sums for excess of collections made by Isaac, and concluded by rendering judgment in favor of defendants and against plaintiffs, in the sum of $5229 48; costs to be paid in equal proportions by both parties. From that judgment the plaintiffs have taken the present appeal, which presents for solution the two following questions:

1st. Was John Murrell, Sr., a partner in the firm of Rawlins & Murrell, and as such entitled to share equally with Isaac Murrell in his proportion of the profits of that business ?

2d. Was Mrs. E. R. Murrell, wife of Isaac Murrell, entitled to the credit of $11,411 95, allowed her on the books of I. Murrell & Bro.?

1st. A proper solution of the first of these questions may be facilitated by an understanding of the kind of partnership which was formed by Isaac and John Murrell in 1848.

Plaintiffs contend, and defendants deny, that it was a universal partnership. In our Civil Code, Art. 2829, a universal partnership is defined to be a contract by which the parties agree to make a common stock of all the property they respectively possess.

In the case at bar, a reference to the articles of partnership shows that the slaves respectively owned by the parties were not to be included in the common stock, nor were certain notes and accounts and other personal property, and certain real property belonging to John Murrell, to be included in the partnership stock. And hence, the contract did not embrace all the property which the parties respectively owned, either immovable or movable.

Again, Art. 2834 C.- C. requires that all universal partnerships must be created by writing, registered in the manner hereafter prescribed, i. e., by inscribing the same in the mortgage office in the place where the principal business of the partnership is carried on.

In this case, it is not even pretended or alleged that the articles of partnership, which were signed in duplicates, had ever been registered in any office.

There is no force in the argument of plaintiffs, that they were not called on to prove such registry, and that, as between the parties, registry is not- necessary in law. The authorities which they rely upon in support of that position, have reference to the laws governing the registry of sales, mortgages and privileges, which specially provide that the object of registry is notice to third parties, and that unregistered acts of sales, mortgages or privileges are binding between the contracting parties. But no such provision or exception is contained or even implied in the positive and mandatory legislation requiring, under pain of nullity, the inscription of the articles of partnership, in order to create universal partnerships. But, even if this proposition admitted of a doubt, we are of opinion, after a most thorough examination and an exhaustive analysis of the evidence in the record, on that point, that John Murrell, Sr., never was a partner in the firm of Rawlins & Murrell, and is, therefore, not entitled to share in the profits of that concern.

Plaintiffs’ allegations on this point are substantially as follows :

“That with the consent of petitioner, John Murrell, and using exclusively the means and funds of said partnership .of I. Murrell & Bro., Isaac Murrell entered into a commercial partnership with S. W. Eawlins as cotton factors and commission merchants, under the style of Eawlins & Murrell to do business in New Orleans.” .

It is too elementary to be argued, that the proof must correspond with the allegations, or else the proposition is not sustained.

Now, John Murrell, in his testimony, admits that he was not consulted by his brother touching the formation of that partnership, and heard of it only after its organization, that he furnished no means, labor or skill to it, and that he did not consider himself bound for any of the debts and liabilities of that firm, further than he might be so held under the stipulations in his partnership of I. Murrell & Bro.

The articles of partnership of Eawlins & Murrell show that neither partner invested any capital in the concern, and hence, Isaac Murrell did not use, as investment in it, any of the funds or means of I. Murrell & Bro.

The books of Eawlins & Murrell show that separate accounts were kept in the name of I. Murrell & Bro., who did a very extensive business with them, and in the name of Isaac Murrell personally. John Murrell testifies that Isaac Murrell, in his cotton transactions, would discriminate between the cotton which he purchased for I. Murrell & Bro., and that which he bought for Eawlins & Murrell, in which latter case he purchased in his individual name.

The record further shows that John Murrell was present at the inventory taken of the property of Isaac Murrell, in which the latter’s two-fifths interest in Eawlins & Murrell was appraised, to which he made no objection or urged no claim of his in that partnership. In a word, his whole conduct from 1866 to 1876, as shown by the record, proves conclusively to our minds that he had never considered or thought that he had any interest whatever in the business of Eawlins & Murrell until the declaration of the first dividends by Eawlins, the liquidator, and until he had discovered a letter written by his brother Isaac to Eawlins, under date of August 26th, 1876.

In that letter, Isaac Murrell, giving instructions to Eawlins touching an inventory to be taken in the succession of his deceased wife, E. E. Murrell, used the following language:

“ I hope you and any friend you may select and request will act as appraisers, and you will attend to the matter at your earliest convenience and point out my interest in the business of E. & M. I am fully aware you cannot give a full nor clear correct inventory; still I hope you will be able to approximate the value of my interest, which of course is community, and as I always intended to divide everything with brother John it is also held in co-partnership with him; therefore the community is of the co-partneship of Isaac Murrell & Bro.”

This declaration, and similar statements made by Isaac Murrell to three or four persons, are all the elements of testimony which plaintiffs have introduced in support of their clear and unambiguous allegation, that Isaac Murrell had with the consent of John Murrell, using exclusively the means and funds of I. Murrell & Bro., formed a partnership with Rawlins.

The declaration in this letter simply means to indicate an intention on the part of Isaac Murrell to divide, in a spirit of liberality, with his brother, bis share of the profits in the business of Rawlins & Murrell, and is explained by a statement made by Isaac Murrell to his partner Rawlins, long previous to the date of the letter, to the effect that if the business of Rawlins & Murrell wound up with a profit, he would divide his share with his brother, John Murrell. This falls very short of proving a previous consent of John Murrell, and an agreement between him, Isaac Murrell and S. W: Rawlins, to form together the firm of Rawlins & Murrell, which is the substance of plaintiffs’ allegation on this point, and which is the element of proof required by law to show the existence of a partnership. Under our law, partnership is a contract between two or more persons for the mutual participation in the profits which may accrue from property, credit, skill or industry furnished in determined proportions by the parties. C. C. 2801.

Partnerships must be created by the consent of the parties. O. C. 2805; Smith’s Mercantile Law, pages 43, 44, 50, 52; Story on Partnership, Sec. 2; Bouvier, verbo Partnership; 30 An. 631.

John Murrell, in his testimony, admits that he was not consulted about the formation of this partnership, of which he knew nothing until its existence was publicly known, and, therefore, he could not have given his consent and become a member of the firm. He admits in his testimony, that he contributed neither funds, credit, skill or industry to the concern, and we thus find wanting, in his theory of partnerships, every element required by law. But he invokes, as a last resort, the effect of this article of their partnership: “5th. Each partner shall devote his whole time exclusively to the interest of said concern, advising with the other on any important matter that he would believe required counsel, and during the co-partnership neither shall engage in any trade, speculation or other business of profit, on his own account, without the consent of the other partner in writing,” and he argues that the labor and time which his brother contributed to the business of Rawlins &' Murrell was that much taken from the firm of I. Murrell & Bro., for which reason he, as a member of that firm, is entitled to participate in the profits realized from such time and labor; and that, as his brother was forbidden from engaging in a separate business without his consent, it follows that Isaac must hav.e intended to include his brother John in the new firm.

We consider that article as prohibitory, and, if in force in 1866, it was violated by Isaac by his entering into the new firm. This violation might have entitled John Murrell to a dissolution of the firm of I. Murrell & Bro., or to an action for damages against his brother and partner, but it cannot, under any possible contingency, have wedged him into the firm of Rawlins & Murrell.

Under his own theory, the only partnership which might be shown by the testimony and by his argument drawn from the article under consideration, would have been one in which he was entitled to participate in the profits, but not liable for the losses. In Art. 2813 of the. Civil Code, we read that “ A stipulation that one of the contracting parties shall participate in the profits of a partnership, but shall not con- • tribute to losses, is void, both as regards the partners and third persons.” A stipulation which is forbidden by law, in a contract, cannot be implied even as the result of a tacit understanding.

. The crucial test of the whole proposition is to be found in the answer, under the evidence in this record, to the following question: In case of losses by the firm of Rawlins & Murrell, could John Murrell have been held liable to the creditors of that firm, or by Isaac Murrell himself, for any part of such losses ? The question is most emphatically answered in the negative by John Murrell himself in his testimony, corroborated by all other written as well as parol testimony, which the record affords, and by all the equities of the ease.

The conclusion that he was not a partner in the firm of Rawlins & Murrell, and not entitled to any share of its profits, is, therefore, inevitable.

2d. As to the credit of $11,411 95 allowed to Mrs. E. R. Murrell, plaintiffs contend that, from the evidence it appears that she was partner in community with her husband, and that no evidence having been offered to show that she had retained the administration of her paraphernal funds, the presumption was that they were administered by her husband, to whose credit such funds should have been entered, and that, as a partner, he was not entitled to interest on such funds thus invested by him in the partnership stock. Hence, they contend that the interests, amounting to $4720, charged to the credit of Mrs. Murrell’s funds, should be stricken out. They further charge that, if even the balance of $2205 to the credit of Mrs. Murrell in 1861, was properly' charged as due to her, the proposed dation in payment, of fifty bales of cotton the property of I. Murrell & Bro., through Isaac Murrell in 1861, was null and void for the reason that it was not a sale, lacking the concurrence of two minds, as the transaction was carried on by Isaac Murrell alone, who could not represent two distinct persons in himself. Hence, they contend that the sum of $6300, realized as the proceeds of such cotton sold in 1866, by Rawlins & Murrell, should not be credited to Mrs. Murrell.

The record shows that, as far back as 1855, a separate account was opened and continuously carried on, in the books of I. Murrell & Bro., until January, 1876, in the individual name of Mrs. E. R. Murrell; that on a balance of her account after numerous entries on both the credit and debit sides, in February, 1861, she was a creditor of the firm in the sum of $2205 80, in payment of which fifty bales of cotton were transferred to her. It appears from the record that this lot of cotton was shipped in her name to Rawlins & Murrell, sold by them in her name, and proceeds the credited in their books in her name, and finally transferred to her credit to the firm of I. Murrell & Bro., in whose books they were credited to her, and in whose possession and control they have since remained. It is elementary that partnership books are evidence for and against the partners, who are each and all bound by entries made at the time in the partnership books, unless the same are proved erroneous. Hennen’s Digest, p. 511, No. 6, 1087, No. 18, and other authorities there quoted.

Hence, we think and we, therefore, hold that entries made on the books of I. Murrell & Bro., in the separate and individual name of Mrs. E. R. Murrell, to the knowledge of John Murrell, without any objections on his part, not shown to have been made through error, either of law or of fact, estop John Murrell from denying that the funds thus charged to Mrs. Murrell were her separate paraphernal funds, of which she had retained the administration ; and that such entries and dealings, covering more than twenty years, completely rebut any presumption which may be invoked in favor of the husband’s administration of his wife’s paraphernal funds.

As to the alleged nullity of the dation in payment of the fifty bales of cotton, we hold that Isaac Murrell, individually or as the agent of his wife, was an entirely distinct person from the firm of I. Murrell & Bro., and that he was competent to make a valid sale to his wife of cotton in payment of paraphernal funds which the firm owed her. Such a sale would, in law, have been valid between husband and wife. We find, further, in the record, that John Murrell, on being informed of this transaction by his brother and partner, said nothing, but urged no objection. His silence must be construed as a ratification of the sale.

A careful perusal of the testimony on this point fully satisfies us that the sale was made in consideration of a valid indebtedness of the firm of I. Murrell & Bro. to Mrs. E. B. Murrell; that the transaction was legal, fair and honorable ; that the cotton was accepted by Mrs. Murrell, shipped and sold in her name and for her account; that the proceeds received by the firm formed a binding indebtedness in her favor, and that she was entitled to the credit and to the interests allowed her on the same.

In making up the accounts between the two parties, the District Judge omitted a credit of $127 93, allowed John Murrell by agreement of counsel, made in ratification of the partition of notes and accounts made by the partners before Isaac Murrell’s death, and he also omitted another small item of credit of $53 25, admitted by defendants’ counsel to the same credit.

We find no evidence to support the item of $419 99, which he debited to John Murrell as a personal debt due by him to Isaac Murrell. In these particulars his judgment must be amended.

In keeping with the views herein above expressed, we make out the account of John Murrell, as follows :

To his debit—

His share of the firm’s debt to Mrs. Murrell, $11,411 95.......$ 5,705 97

His share of the debt paid to E. & M. by Isaac, $9853 57 ..... 4,926 78

His personal debt to Isaac Murrell.......................... 816 92

Total............!.............................$11,449 67

To his credit—

Amount received in excess by Isaac Murrell, in lands, notes and accounts, and through collections made, in excess over John, of bad debts................................$ 6,716 44

Balance debit against John Murrell.............$ 4,733 24

For which amount the defendants are entitled to judgment against the plaintiffs.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court be amended in so far as it omits to credit, John Murrell & Co., plaintiffs, with the two itéms of $127 93 and $53 25, in so far as it debits said plaintiffs with the sum of $419 97, and in so far as it renders judgment in favor of defendants and against plaintiffs in the sum of five thousand two hundred and twenty-nine dollars and forty-eight cents, which judgment is hereby reduced to four thousand seven hundred and thirty-three dollars and twenty-four cents; and it is further ordered that in all other particulars, and as thus amended, said judgment be affirmed ; the costs of this appeal to be paid by appellees.


text:
    No. 54.
    Mattie L. Dickson vs. Hannah P. Dickson. Palmer Dickson, Intervenor.
    It was contended in this case that the mortgage granted by the Defendant on her right, title and interest in certain property, was null and void, because she was a widow in community and the property an asset of an unliquidated community, in which she had only a residuary interest, which was not mortgageable. Held by the Court, without in any manner deciding whether such an interest is or not mortgageable, that, in the premises, the mortgagor appeared in the act of mortgage as any ordinary individual, not as widow in community; that she mortgaged such interest in the property as she might have, not her interest as widow in community, and that, therefore, the objection to the validity of the mortgage is not tenable.
    APPEAL from the Second Judicial District Court, parish of Bossier. Brew, J.

      J. B. Watkins for Plaintiff and Appellant:
    First — Defendant conld, as she did, mortgage all her right and title in community lands, where her deceased husband owed no debts. B. C. C. 3289 ; 30 An. 93; 24 An. 264; 26 An. 260; 12 An. 864.
    Second — Intervenor has no interest to attack the mortgage, where he fails to prove the mortgagee unable to pay his debt. C. P. 15; 1 B. 470; 5 B. 253; 5 An. 263.
    Third — He cannot be heard to say the mortgage is null, because mortgagor did not own the lands, and then to say the same lands were given in pledge by antichresis to plaintiff, and novated the mortgage.' B. C. C. 3142 and 3144.
    Fourth — Plaintiff could hold a mortgage and antichresis on the same thing. B. C. C. 3181, and 12 An. 364; 14 An. 663.

      Bichará W. Turner and J. Henry Shepherd for Defendant and Appellee.

      Lowry & Vance for Intervenor and Appellee:
    A widow’s interest in community is residuary only, and cannot be hypothecated, or alienated, to the prejudice of creditors of the community, who are preferred to individual creditors. 17 L. 247; 7 B. 404; 2 An. 30; 22 An. 513; 32 An. 968; C. C. 2403.
    A widow in community administering the succession of her deceased husband cannot specially mortgage and hypothecate any specific part of the community property. 31 An. 493; 32 An. 162 and 968; 33 An. £85.
    The mortgage — collateral security — surrendered, or novated, by antichresis.
    Antichresis terminates when the right of nsufruot ceases, O. O. 2730.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff sues the defendant on her promissory note for $10,000, and interest, subject to certain admitted credits. She alleges that the said note is secured by a mortgage granted by defendant, in her favor, upon all the defendant’s “ right, title and interest in and to the following described property, situated in the parish of Caddo, viz.: A certain plantation, fully described in the act, known as Rush Point plantation, together with all the buildings and improvements thereon.” She prays for judgment for the amount due, and “ that the said mortgage be recognized and enforced, and the lands sold to pay such debt and interest and costs.”

The defendant, for answer, admits the execution of the note and mortgage sued on, but alleges that, thereafter, she leased to the plaintiff one half of the Rush Point plantation, to be occupied and used by the plaintiff, the net ^proceeds of the crops raised thereon to be appropriated to the payment of the note aforesaid until satisfied; that plaintiff took possession under said lease and still holds possession thereof, and had never rendered an account of revenues, and has not offered to return the same ; that the use of said property was worth $3000 per annum, for which amount, for the several years of plaintiff’s occupancy, she prays for judgment in reconvention.

The intervenor and third opponent, Palmer Dickson, alleges or eon-, tends, in substance, that he is one of the heirs of Michael Dickson, the deceased husband of defendant, and that he is also a large judgment creditor of defendant'; that the property mortgaged belonged to the unsettled community of acquests and gains which subsisted between defendant and Michael Dickson, deceased, whose succession remains under administration, and that defendant, as widow in community, had no alienable or mortgageable interest in the particular assets of said community, but that her interest was only residuary, dependent upon the settlement of the community, and that said settlement will show that she has no interest therein. He further substantially adopts the defense of the defendant touching the contract of lease, which he denominates a contract of antichresis, and prays for the entire rejection of plaintiff’s demand.

Two principal questions are agitated in the argument, viz.:

, 1st. The validity of the mortgage.

2nd. The effect of the contract of lease upon plaintiff’s right of action.

I.

In the view which we take of the act of mortgage sought to be enforced herein, the learned arguments of counsel on either side touching the mortgageable character of the interest of the surviving widow in particular assets of a community unsettled and under administration, are from the purpose ” and not relevant to the present case.

In that act Mrs. Dickson appears simply as an individual, without assuming to act as widow in community or in any other special capacity; acknowledges her personal indebtedness to plaintiff, and the execution of the note sued on ; and then, to secure the same, specially mortgages and hypothecates unto and in favor of said Mrs. M. L. Dickson, all her right, title and interest in and to the following described property, etc.” She mortgages neither the property nor any particular share, divided or undivided, in the property — only her “ right, title and interest,” whatever that may be. Admitting, for the sake of argument, that, as widow in community, she has no mortgageable interest in this particular asset thereof, non constat that she may not have some other interest in the property which might fully support the mortgage. The foreclosure of the mortgage would convey nothing to the purchaser ^except her mortgageable interest in the property. He would step simply into Mrs. Dickson’s shoes, so far as this property is concerned, and would acquire only such mortgageable and alienable interest therein as Mrs. Dickson herself had at the date of the mortgage. If, in the subsequent assertion of his rights, it should .turn out that she had no such interest, then nothing was mortgaged and nothing would have passed under the foreclosure. We can conceive of no possible prejudice that can come to intervenor from the foreclosure of this mortgage, and of no right that he can have to oppose the same. So far as the defendant is concerned, her answer and amended answer confine her defense to special grounds, not affecting the original validity of the mortgage, which is not put at issue even by a general denial. We have, therefore, no occasion to discuss any defenses of any kind which she might have urged to the mortgage.

• We wish it distinctly understood that we neither express nor intimate any opinion whatever on the question of the right of the widow in community to mortgage its particular assets, or a particular share in such assets, claimed by her as partner in an unsettled community, or upon the right of creditors or heirs to attack such mortgages. These questions will be determined by us only when presented in a proper case. Nor will this decision, in any manner, affect the rights of any parties in interest to raise these questions in opposition to claims based on the foreclosure of the present mortgage.

II.

So far as the defenses to the principal claim ar-e concerned, they are now precluded by the failure of defendant or intervenor to appeal from the judgment of the court á qua or to file any answer praying for-amendment in that respect. The only prayer for amendment is that filed by intervenor, to be allowed the costs of his intervention, which, under our rejection of his demand, cannot be granted.

The plaintiff is the onlv appellant before us, and in her favor only, can the judgment be altered.

It is, therefore, ordered, adjudged and decreed, that so much of the judgment appealed from as decrees the mortgage attached to and made part of plaintiff’s petition to be null and void and orders.the same to be cancelled, be annulled, avoided and reversed; that the said judgment be and is, hereby, so amended as to declare that the said mortgage be recognized and enforced, and that the property mortgaged, being the right, title and interest of the defendant in and to the property therein described, be sold to pay the debt, interest and costs recognized by said judgment; and that, in all other respects, the judgment appealed from be affirmed; defendant and intervenor jointly to pay costs of this appeal.


author: Todd, J. Levy, J.

text:
    No. 46.
    The State of Louisiana ex rel. T. W. Jones vs. The City of Shreveport.
    The rule that a tutor cau act as administrator of his -ward’s parent’s estate as long as creditors do not object, is re-affirmed in this instance.
    Under the circumstances of the case, the action of the tutor, in the Motion to revive, is maintained pending the application for the appointment of the administratrix.
    The issue presented on the Merits is the same as in the case of Mrs. E. E. Griffin vs. City of Shreveport, just decided,
    APPEAL from the First Judicial District Court, parish of Caddo. Taylor, J.

      J. W. Jones for the Relator and Appellee.

      Wm. A. Seay, City Attorney, for Defendant and Appellant.
   On Motion to Revive.

The opinion of the Court was delivered by

Todd, J.

The relator having died since the appeal was taken, Thomas Phillips, the tutor of the minor heir and sole heir of the deceased, has filed in this Court a motion to revive the suit in his name, as the representative of the minor and of the succession of his deceased father, the relator.

This application is opposed by the defendant, on the ground that the tutor does not legally represent the deceased or his succession and cannot stand in judgment therefor. The earlier decisions of this Court sustain this position, 2 Hen. S. 11, p. 1476, but they are overborne by a long line of decisions, commencing over thirty years ago, with the case of Bryan vs. Atchison, 2d An. 463, and followed by many others, which settle the principle, that, where the heirs of a decedent are minors, their tutor can, as it were, ex officio, administer his succession, so long as not opposed by creditors, who may require the appointment of an administrator. C. C. 940-41-42, 945; C. P. 976; Bryan vs. Atchison, 2 An. 463; Succession of Story, 3 An. 502; Monget vs. Penny, 7 An. 134; State vs. Heirs of Leckie, 14 An. 641; Succession of Sutton, 20 An. 150.

It is, however, urged that it was admitted by counsel for the relator before this Court, that there was an application pending for the appointment of an administrator to the succession of the deceased, and this showed an opposition to the tutor’s administration oi the estate. Under ordinary circumstances, such fact might be sufficient to deny to the tutor the right of administration; but, it also appears from the record, that this application is made by the surviving widow of the deceased,' who first sought to revive the suit in her own name and who joined the tutor of the minor heir in her application, which was denied, and, thereupon, she applied to be appointed administratrix, thus showing that there is no antagonism between her and the tutor, but that her application for the administration was made to meet the contingency -of a denial of the tutor’s motion to revive in his name as the representative of the sole heir to the succession.

The motion to revive is, therefore, granted.

On the Merits.

The issues presented in this case ate the same as are involved in the case of the State ex rel. Mrs. E. E. Griffin and Husband vs. The City of Shreveport, just decided by us.

It is true that it appears in this case that, by an ordinance of the city council, which forms part of the contract on which the judgment sought to be enforced was rendered, it was provided that a tax of one-half of one per cent should be levied and collected to pay this debt. This, however, does not really differentiate this case from the one mentioned, for such special contract or stipulation is subject to the restrictions imposed by the city charter on the power of taxation, and must come under the same rules and regulations touching the mode of assessment and collection.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and the mandamus prayed for be refused at the cost of the relator in both courts.

On Application eor Rehearing.

Levy, J.

Relator applies for a rehearing, on the ground, that his contract with the City of Shreveport was made prior to the passage of its existing charter, which prescribes the mode and manner in which payments by the city shall be made, and that, when said contract was entered into, there was no limitation on its taxing powers.

The existing law governing the City of Shreveport, prescribes the manner in which estimates and appropriations therefor shall be made, or, in other words, defines and fixes the remedy. The reasons given in our previous opinion, are applicable to the circumstances connected with the contracting of the debt claimed by relator. Whatever rights plaintiff is entitled to may be enforced only by requiring the city to comply with the law, by placing, at the proper time, the claim or indebtedness, which may be due, upon the budget and making provision for the collection of taxes to pay the same.

The rehearing asked for is refused.