author: -Watkins, J.

text:
    No. 11,931.
    State of Louisiana vs. Eugene Fontenot.
    Acts and declarations of participants in a transaction constitute parts of the res gestee, and proof of same is admissible.
    Testimony tending to show that the deceased had suspected the accused of stealing his wood, and had been, watching him, to the knowledge of the accused» is admissible for the purpose of showing motive in committing the homicide.
    It is not competent for the accused to prove, as an element of defence, that his conduct had been exemplary during his incarceration in jail. Such testimony exclusively appertains to the sentence.
    The peaceable character of the defendant can not be established by witnesses who have not resided in his neighborhood for seven and eleven years.
    Previous threats of the deceased can not be introduced, as the basis of proof of his bad and dangerous character, when the testimony discloses that the accused was the aggressor in the homicidal affray.
    APPEAL from the Eleventh Judicial District Oourt for the Parish of St. Landry. Perrault, J.

      M. J. Cunningham, Attorney General, and E. B. 'Dubuisson, District Attorney, for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

-Watkins, J.

The defendant having been indicted for the murder <of Charles Barfield, convicted of manslaughter, and sentenced to imprisonment in the penitentiary for the term of fourteen years, prosecutes this appeal, relying on a single bill of exception, embracing several rulings of the court.

I.

The first objection is, that during the progress of the trial a State’s witness said: “ That accused raised a stick just prior to the difficulty with deceased, and attempted to strike Joe Oarmouche;” and that defendant’s counsel objected to the statement, on the ground that it tended to establish a different offence from that for which he was being prosecuted and tried, and to prejudice the minds of the jury against the accused.

The judge declined to sustain the aforesaid objection “because it was part of the res gestee, and offered as such; and not to prove an independent substantive offence, and could not be excluded, because it was so inseparably connected with the homicide that the facts of the one included the other.”

We think this ruling correct.

The circumstance related, having occurred “just prior to the difficulty” in which the homicide ensued, formed part of the litigated act, and of the res gestee. ■'

It is true, as a general proposition, that collateral matters are inadmissible; but there are several important exceptions, as where evidence is admitted as part of the res gestee, as showing intent, knowledge and system. Wharton, par. 31, says: “When an extraneous crime forms part of the res gestae, evidence of it is not excluded by the fact that it is extraneous. Thus, on a trial for murder, evidence that the prisoner, on the same day the deceased was killed, and sTiortly before the killing, shot a third person, was held admissible, under the circumstances of the case, notwithstanding, the evidence tended to prove a distinct felony committed by the prisoner ; such shooting and the killing of- the deceased appearing to be connected as part of one entire transaction.” See Wharton’s Criminal Evidence, pars. 31, 32, 39, 46, 49; State vs. Benjamin, 7 An. 48; State vs. Munco, 12 An. 625; State vs. Goodwin, 37 An. 713; State vs. Lagage, 2 Am. Cr. Rep. (Hawley) 506; reported in 57 N. H. 245.

II.

The second objection relates to the following question propounded by the District Attorney to a State’s witness, viz.:

“ Did you suspect the accused of stealing your wood, and had you ■engaged deceased to watch him?”

The objection urged by defendant’s counsel was that of irrelevancy, and it was by the court overruled, on the ground that the tendency of the proof solicited was to show motive and hostility on the part of the defendant, who was suspected of larceny.

The objection of irrelevancy is regarded as the weakest of all objections ; and it is fully met by the reasons assigned.

III.

The same reason applies with equal pertinency and force to the statement of the same witness to the effect that about a week before the difficulty accused said that if deceased bothered him he would knock him.”

IY.

The fourth objection relates to testimony offered by defendant for the purpose of showing that, during his incarceration in jail, his conduct had been exemplary; and rejected by the court, on the objection of the State, that it is not competent to prove, as an element of defence, facts and circumstances which shall have arisen since the commission of act for which defendant was indicted and is being prosecuted.

This is elementary.

Such testimony is competent and proper for the judge to hear and ■consider in determining the sentence to be pronounced; but it has no place on the trial. The jury has plenary power to judge of the facts appertaining to the act of the accused in deciding upon his guilt cr innocence; but the penalty is matter of judgment and discretion •of the judge, restrained by statute.

Y.

The fifth and sixth objections relate to the testimony of several witnesses by whom defendant’s counsel proposed to prove the peaceable character of accused; but which was rejected, on the ground that one of the witnesses had not resided in the deféndant’s neighborhood for eleven years and the others for seven years.

In view of the great length of time which had elapsed since these witnesses had enjoyed any intimacy with or knowledge of the accused, they could not be said to have known his character within the-intendment and meaning of the rule.

VI.

The seventh objection relates to the rejection by the court of testimony on part of defendant to the effect that the deceased, had stated previously to the homicidal affray that he “had slapped the accused and run him out of his house. ’ ’

The objection which was urged and sustained was that, the testimony having been offered to show an overt act justifying the homicide, it was inadmissible because the proof showed that the accused was the aggressor in the difficulty and struck the first blow.

And the court sustained the objection and stated that, as the testimony did not fall within the limit allowed by law relative to overt-acts, it was objectionable as hearsay and irrelevant, and could not be permitted to be introduced in evidence to serve as the foundation for the introduction of proof of the dangerous character of the deceased.

There is no part of the evidence annexed to and made part of the record exhibiting a contrary statement of facts; and, accepting the judge’s statement, his ruling was undoubtedly correct.

We have examined defendant’s bill of exceptions with due care,, and feel convinced that his objections to the judge’s rulings are not meritorious.

Judgment affirmed.


source: Caselaw Access Project

author: Wateins, J.

license: Public Domain

text:
    No. 12,027.
    State of Louisiana vs. Ben. Dickerson.
    That a jury was ordered and summoned to attend at a civil term of the District Court in one of the parishes of the State, whereat the grand jury who found the indictment against the defendant, and the petit-juty who tried and convicted him, were selected and organized, is not ground for new trial or arrest of judgment.
    A PPEAL from the Twentieth Judicial District. Court' for the Parish ■i-*- of St. James. Guión, J.

      M. J. Cunningham, Attorney General, and Oscar D. Billon, District Attorney, for Plaintiff, Appellee.

      Edward N. Pugh and Henry L. Himel for Defendant, Appellant.
    Submitted on briefs January 11, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Wateins, J.

The defendant was indicted and tried for murder, convicted of manslaughter and sentenced to ten years’ imprisonment in the penitentiary, and from that sentence he prosecutes this appeal, relying on a single bill of exceptions.

The defendant having been indicted on • the 12th of November, 1896, was tried and convicted on the 20th of same month. Subsequently, a motion for a new trial was filed and overruled, and then amotion in arrest of judgment was filed and refused, the defendant’s counsel retaining a bill of exceptions to each ruling of the court.

The motion for a new trial charges, “ that all the proceedings had in the said matter” — the case on trial — “are absolutely null and void, and eoram non judiee. That defendant has been tried without any true bill having been found by a grand jury; and the petit jury empaneled were so empaneled illegally and without warrant of law, and consequently the whole proceedings had in said cause are entirely without force or effect.

“That the order of court, bearing date July 1896, ordering a grand jury to be summoned and-convened at the regular term of this court beginning on the second Monday of November, 1895, and under which said order the grand and petit jurors were summoned, is, on its face, an absolute nullity. That the District Judge is absolutely without power or authority to order a jury for a civil term; and that such order is in direct contravention of Art. 117 of the Oonstitution of the State, and all proceedings had before said jury are eoram non judiee,

“ That defendant could not .be legally tried except before a jury legally called and convened according to law, at the time and place fixed by law.

“ That the General Assembly of this State has made no provision for the trial of capital cases at a civil term of the court; and the action of the District Court is null and void, and the court without jurisdiction ratione materise to try your mover herein at the present civil term, said civil term being regularly fixed as required by law. That the finding of a true bill by a grand jury is a condition precedent to giving the court jurisdiction, and any trial without this finding is contrary to the Constitution of this State and to the Constitution of the United State's.”

The motion specifies other matters as grounds for relief, but which need no mention, as they appertain to matters in pais, of which the record furnishes no proof.

The motion in arrest of judgment is based on the same grounds condensed and stated as follows, viz.:

“ That the record shows that the present term of court is a civil term, and the court has no power, right or authority to order a grand or petit jury for said civil term, and its acts in so doing are null and void, the court being without jurisdiction and the proceedings coram non judice.”

The proceedings are perfectly regular in form, and predicated upon an indictment found and presented by a grand jury which was duly empaneled by a perfectly competent court, in term time.

After due and proper proceedings, in the presence and hearing of the defendant and of his counsel, the defendant was convicted by a jury of his peers, in the drawing of which he participated.

Manifestly his application came too late, after having taken the chances of a verdict of acquittal, and having a verdict rendered against him.

The grounds of his motion for a new trial should have been urged in a challenge to the array, and prior to issue having been joined on the indictment found.

In State vs. Jackson, 36 An. 96, the complaint was “that the grand jury that found the indictment was illegally formed,” and the court said that ‘ his motion is answered by two fatal considerations: First, (that) all objections to the manner of drawing and composing the grand jury must be made and urged before plea and trial, and come too late after trial and verdict.

“ Second. All such objections, when made after trial, are met by the consideration that an accused can not be allowed to take his chances of an acquittal in a trial by an alleged defective jury, and, if convicted, to fall back on an objection which should have been urged before trial.

“This rule can now be considered as elementary in our practice. State vs. Watson, 31 An. 379; State vs. Miles, 31 An. 825; State vs. Washington, 33 An. 825;” State vs. Johnson, 31 An. 368.

In the same case (36 An. 96) the court further said:

“ Criminal jurisprudence has crystallized the rule, that judgment will not be arrested on the ground of irregularities in the summoning of the jury, or the composition of the grand jury. State vs. Swift, 14 An. 825; State vs. Thomas, 35 An. 24; State vs. White, 35 An. 96; State vs. Harris, 30 An. 90; State vs. Wittington, 33 An. 1404.”

In State vs. Miller, 36 An. 158, there was presented the identical question we have before us, viz.:

“ The motion sets out the incompetency of the jury by reason of the term of the court at which the accused was tried being a civil term and not a jury term,” and the court said:

“Inasmuch as the principle is elementary that (a motion in arrest of judgment) must be founded on some substantial defect in the indictment, or in the proceedings of the prosecution under it, patent on the face of the record, it is evident that (it) is excluded from our consideration. Wharton on Criminal Law, Sec. 4043; State vs. Addison, 15 An. 185; State vs. Harris, 30 An. 91; State vs. Crawford, 32 An. 526;” State vs. Chandler, 36 An. 177; State vs. Claude, 35 An. 74; State vs. McGee, 36 An. 206.

On reason and authority the judgment appealed from is affirmed.


author: MillbR, J.

text:
    No. 11,934.
    State of Louisiana vs. Charles Pain.
    On an indictment for murder, threats of violence against the deceased by the accused are admissible to show malice on his part. 1 Bishop Grim, Law, p, 1110; 34 An. 1012; 86 An. 859.
    On the cross-examination of witnesses to prove the good character of the accused for peace and quietness, they may be asked if they had not heard particular acts of violence imputed to the accused. Reputation is derived from what people generally say of the party whose character is the subject of investigation, and the witness testifying to the good he has heard of the party may be asked on the cross-examination if lie has not also heard evil conduct attributed to the party. B Rice on Ev., p. 604, Sec. 376; 1 Taylor, Sec. 352; 2 Starke p. 804.
    The wife is not a competent witness for or against the husband in the criminal prosecution agamsthim. The Article 2281 and Acts of the Legislature Nos. 29 and 59 of 1886 and 1888, applying only to testimony in civil cases, have no purpose to affect the rule excluding the w ife as a witness for or against the husband in criminal prosecutions; the only exceptions in such proceedings are when from necessity the wife testifies to crimes in respect to her person, and the other, limited exceptions having no pertinence here. 1 Greenl., Sec. 343.
    PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Perrault, J.

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

      E. P. Veazie and John N. Ogden for Defendant, Appellant.
    Submitted on briefs January 4, 1896.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

MillbR, J.

Defendant appeals from a sentence for murder and relies on bills of exception to the rulings of the lower court,, permit - ting testimony of threat of the defendant against the deceased; allowing the State, on cross-examination of character witnesses produced by defendant, to ask whether the witnesses had not heard particular acts of violence imputed to the accused, and excluding the wife of the accused from testifying.

It is, we think, too clear to admit of discussion that threats of violence against the deceased, made by the accused preceding the homicide with which he is charged, are admissible in evidence to show malice: 1 Bishop Criminal Law, Ed., p. 1110; State vs. Edwards, 34 An. 1012; State vs. Birdwell, 36 An. 859. The learned judge of the lower court, in signing the bill, discriminates the principle, authorizing such testimony, from the test of admissibility of testimony of threats of deceased when relied on by the accused. In the decision cited by the defendant in this case, the accused sought to prove in his defence on a charge of murder a conditional threat against his life made by the deceased and communicated. The court excluded the testimony on the ground the condition of the threat had not occurred. It is manifest the decision has no application .here, in which the threat is not by the deceased, but by the accused, who followed it by killing the deceased against whom the threat was directed. State vs. Vance, 32 An. 1177. It was for the jury to determine the weight of the testimony, but its tendency to show malice on the part of the accused is, in our view, not to be questioned.

Witnesses testifying to the good character of the deceased for peace and quietness may properly be cross-examined as to the grounds on which they found their testimony. In testifying on direct examination on this point the witness is confined to his knowledge of the general reputation of the party whose character is under investigation. General reputation is made up of that which people in general say of the party of which the witness' has knowledge. 1 Greenleaf on Evidence, Sec. 101. It would seem, therefore, competent to ask the character witness on cross-examination if he has not heard evil conduct imputed to the party. In this case the questions on cross-examination were whether the witnesses had not heard the accused had whipped a woman, and whether the witness had not also heard of another instance in which the accused had drawn a pistol on another. , The court admitted the testimony, not to prove the particular acts, but to test the knowledge of the witnesses and enable the jury to properly appreciate their testimony as to the character of the accused. For that purpose, we think the testimony was admissible. Mr. Rice, in his volume on Evidence, in criminal cases, thus states the law: While particular acts of bad conduct are not admissible to assail character on direct examination, a witness deposing to character may be cross-examined as to particular facts, in order to test the soundness of his opinion and elicit the data on which it is founded, and the author supports the text by authorities. 3 Rice on Evidence, p. 604, Sec. 376; 1 Taylor, Sec. 352; 2 Starkie, 304.

' The other bill reserved by the defendant was to the exclusion of his wife, as a witness offered on his behalf. The purpose of the offer, the bill states, was to show that the defendant .made her, his agent to deliver a message to deceased bearing on this litigation. The general rule that disqualifies the wife as. a witness for or against her husband is conceded, but it is claimed, there is . an , except tion introduced by the acts of the Legislature No. 29 of 1886 and No. 59 of 1888. That of 1886 relates to the competency of witnesses in criminal proceedings. It declares the incompetency of the wife as a witness for or against the husband, except in cases then provided by law. The exceptions thus recognized are when the wife testifies to the crime committed in respect to her person, and in other cases having no pertinence to the question here, 1 Greenleaf, Sec. 343 et seq. The Act of 1888, amending Art. 2281 of the Oode, declaring the incompetency of the wife as a witness, but permitting her to testify for her separate interest whenever she may be joined as plaintiff or defendant with her husband, extends her competency when she is the husband’s agent, and permits her to testify to all matters within the scope of her agency. Neither the article in the Oode or the amendment of 1888 hsfve any applicability to criminal cases. They relate to civil suits. We think the proposition too clear to need discussion that the incompetency of the wife for or against the husband, is governed by the general principle laid down in all text-books and affirmed by our statute. No repeal or modification of this principle can be with reason deduced from an act amending the Civil Code in which criminal prosecutions, and the method of criminal procedure have no place. There was, in our opinion, no error in excluding the wife as a witness.

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


author: Miller, J.

text:
    No. 11,910.
    The State vs. William Armstrong.
    An application for a new trial of the accused, convicted of murder, supported by his affidavit that he has learned, since the conviction, of witnesses who will testify to his innocence; that the offence was committed by another, and that if allowed until the succeeding day he will produce the witnesses or their affidavit, affords a basis for the allowance of the brief delay asked and should have been afforded the accused. State vs. Hyland, 36 An. 87.
    PPEAL from the Second Judicial District Court for the Parish of Bossier. Watkins, J.
    M. J. Cunningham, Attorney General, and A. J. District Attorney, for Plaintiff, Appellee.

      J. A. W. Lowry for Defendant, Appellant.
    Submitted on briefs November 9, 1895.
    Opinion handed down January 20, 1896.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from a sentence for murder.

His reliance is on a bill of exceptions to the refusal of the lower court of his application for a new trial, on the ground of newly discovered evidence. The affidavit of the defendant is to the effect that two witnesses would testify that the accused did.not commit the crime, but that it was committed by another person not named, but whom they would recognize if presented; that’ another witness would testify he saw a man with whom the deceased had quarreled, on the night of the killing and a short time before, drag the body of the deceased and place it under the house, and the affidavit, besides, is that named persons had heard others state after the trial that the accused was not guilty, but another had done the killing.

The affidavit states the accused learned of the testimony after the trial, that he has been in jail since, with no opportunity to see the witnesses. The affidavits of none of the persons referred to by him are produced, but the affidavit is that if a short delay, i. e., until the succeeding day, is allowed, the witnesses or their affidavits will be. produced.

In refusing the application, the judge states several eye-witnesses; testified they saw the defendant shoot the deceased while defendant was lying in wait in a chimney corner; that the defence was an alibi not satisfactorily proved,that the application for the new trial was. to obtain testimony on a different line from that of an alibi relied! on at the trial, and- that the testimony suggested in the application, is hearsay and proposes the impeachment of the State’s witnesses.

The -statement of the judge of the testimony on the trial is in some-degree qualified by the additional statement the alibi was not satisfactorily proved. If the testimony administered left a doubt on the mind of the judge, it afforded some strength to the application based' on the ground of positive testimony, the accused did not kill the deceased, but that another committed the offence. The affidavit does, refer to hearsay, but also states there can be produced the testimony not hearsay, of the killing by another than the accused. The line of defence that the accused was not present, is in our view consistent with testimony that a person other than defendant perpetrated the crime. It is true the affidavit of the accused is not supported by the affidavits of those to whom he refers, but he asked but a short period within which to procure the attendance of the witnesses.

We think the affidavit affords a basis to allow a reasonable time for the defendant to procure the affidavits of those to whom he refers. The legal discretion of the lower court in refusing or granting new trials is always presumed to be properly exercised, and we have no doubt the judge will give the showing the accused may be able to make, the weight to which it may be entitled, and will refuse the new trial if the basis is not laid. We do not disturb the verdict of the jury, but in view’of the nature of the affidavit, and the brief time asked on behalf of the accused to support his application,we remand the case to afford him the opportunity for the showing he claims he can make.

It is therefore ordered that ,the sentence of the lower court be set aside, the verdict of the jury not disturbed; that defendant’s rule for the new trial be reinstated to afford defendant such reasonable time as the lower court shall prescribe to make the showing for the new trial he claims he can make, after that showing the court to dispose of the application of defendant for the new trial, grant it or sentence the accused according to law, the accused to be held in custody to abide the action of the court.


text:
    No. 12,025.
    F. C. Gladney vs. B. M. Manning, Sheriff, et al.; Ardis & Co. vs. T. R. Armistead et al.
    Without resorting to the revocatory action the judgment creditor may contest the judgment of another against the common debtor, ■when the contested judgment is assailed as a simulation, based on no consideration. C. 0;, Art. 1970; 2 An. 484; 11 An. 267; 2 Hennen’s Digest, p. 1031, No. 1.
    Hence the prescription of one year applicable to the revocatory action furnishes no protection to the contested judgment. Civil Code, Art. 1994.
    The judgment for an alleged loan, and the judicial mortgage, arising from registry of the judgment, will not avail against other judgment creditors, when there was no such loan at the date the judgment for the loan and of thejudi-cial mortgage, although the loan had been promised, and part furnished subsequent to such judgment; the article of the Code (3292) authorizing conventional mortgages to secure future engagements having no application to such a ease.
    APPEAL from the Second Judicial District Oourt for the Parish of Bienville. Watkins, J.

      D. W. Stewart and J. E. Reynolds for Plaintiffs.

      L. K. Watkins and W. U. Richardson for Ardis & Oo., Defendants, Appellees.

      J. F. Pierson for T. R. Armistead, Defendant, Appellant.
    Argued and submitted January 24, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, judgment creditors of the commercial firm of Theus & Armistead, seek to enjoin the execution of the judgment against the firm, recovered by T. R. Armistead. The petition avers there was no basis for the judgment; that it was confessed by one of the firm; intended to cover the property of the debtors from the pursuit of their creditors, and the prayer is for the injunction, and that the judgment be decreed void. The answer avers thatT. R. Armis-tead agreed to loan the firm eight thousand dollars, five thousand of which was furnished; that the loan was consummated to the extent of the five thousand' dollars about the-February, 1894, from which .date the money was at the service of the firm, though not actually furnished until a later date; that it was agreed the firm would secure the lender by confessing judgment, and the judicial mortgage arising from the registry; that the judgment was confessed and the judicial mortgage created, and there is the admission the confession and registry was before any portion of the five thousand dollars was received by the firm: the answer further denies there was any fraud in the transaction, insists the loan agreed upon, and and the extent to which the amount was obtained, constituted a legal basis for the judgment; there is a reconventional demand, subsequently withdrawn, for damages, the right to hereafter claim damages being reserved, the prescription of-one year is pleaded, and the answer concludes with the prayer that the injunction be dissolved. Defendant appeals from the judgment in favor of plaintiffs.

It is shown by the testimony that the firm of Theus & Armistead, in need of money for their business, applied to T. R. Armistead, a man of means, for a loan, i. e., eight thousand dollars; he agreed to loan five thousand dollars, and the additional three thousand dollars, if, at a later period, the affairs of the firm appeared satisfactory. The firm did not care to have the five thousand dollars at the time of the application, the end of February or beginning of March, 1893, but the testimony of T. k. Armistead is that the money, that is, the five thousand dollars, was subject to the call of the firm from the time he received from the clerk of the court the copy of the judgment agreed to be confessed in his favor, and on the faith of which the loan was to be made. The proof shows the confession was on the 20th of March, 1893, the judgment recorded and copy transmitted to T. R. Armistead, but it was not until April, 1893, that he gave the drafts on his merchants in New Orleans for the five thousand dollars; it is proved that the application for the loan was made by Theus for his firm, and the drafts were given to the other partner, W. W. Armistead, acting for his firm. The answer itself is a frank disclosure of the application for the loan, the basis on which it was to be made, the amount actually furnished and other particulars of the transaction as developed by the testimony.

The discussion between the parties has taken a wider range than required for the decision of the controversy. The judgment creditor, the plaintiff here, prior to the transaction between T. R. Armistead and the firm, had obtained judgment setting' aside as simulated transfers by members of the firm to their wives, and part of the property thus attempted to be transferred is that sought to be subjected to the execution issued on the judgment of T. R. Armistead, hence it is urged that the judgment creditors succeeding in that litigation had the right, to the exclusion of T. R. Armistead and all other creditors, of satisfying their debts out of the property the subject of the simulated transfers. We might take a different view of .the effect of a judgment dealing with simulated conveyances. Adams & Co. vs. Temple S. Coons et al., 37 An. 305. It is claimed, too, that Theus & Armistead derived no benefit from the loan, but that the money was returned and used by W. W. Armistead, to whom the drafts were given. But if the money was advanced on the faith, that it was for the firm on whose behalf the application was made, the defendant should not be prejudiced by any misuse of the fund. But in our opinion all the grounds assailing defendants’ judgment are subordinated to another urged on us, that there was no debt to sustain that judgment.

On behalf of the defendant it is contended there is property of Theus & Armistead, and of Theus, that plaintiff should resort to that property and not interfere with defendants’ judgment and execution he seeks to satisfy only from the property of Armi-stead. But we do not find the basis to control the method by which plaintiffs are to obtain payment of their judgment against the partnership and its members. The plaintiffs can not, in our view, be excluded from contesting the judgment against their debtors, alleged to be void, merely because it may be that without such contest they will be paid. There is no certainty of that payment, and there is the other serious difficulty as to defendants’ alleged judgment. The defendant further pleads the prescription of one year of the re-vocatory action. It is settled in our jurisprudence, that prescription applies to contracts, or other acts of the debtor, serious in their character, based on some actual consideration, and designed to give the creditor an advantage or preference over other creditors. Civil Code, Art. 1970 et seq.; Revised Statutes Sec. 1304; Dennistoun vs. Nutt, 2 An. 484; Dunn vs. Woodward, 11 An. 267; 2 Hennen’s Digest, p. 1031, No. 1. If defendants’ judgment had been based on actual cash paid at the time no protection from prescription would have been requisite, and if for an antecedent debt, prescription would have been the appropriate defence to plaintiffs’ action. But the defendants’ judgment is assailed, because it was based on no debt at all, and is a simulation. If of that character, the creditor interested in disputing the judgment may contest it without bringing the revocatory action. Ibid., 2 An. 483.

The answer of the defendant frankly places before us the fact that when the judgment in his favor was confessed and recorded, no part of the five thousand dollars, for which he claims the judgment should stand, was furnished the defendants. The amount was agreed to be furnished prior to the confession, and we appreciate the testimony that if called for by defendants, the defendant, J. R. Armi-stead, would have responded to the call. But it remains that on the 20th of March, 1898, when the judgment was confessed, no such call had been made. The argument is that as the agreement to lend was at the close of February or early part of March, 1893, the debt to defendant must be deemed to have been created at the date of the agreement to lend. With all due weight to defendant’s testimony that he deemed the five thousand dollars to be that of Theus & Armistead from the time he promised to lend the amount, it seems to üs that no debt arose out of the transaction until April, 1893, when defendant gave his drafts to the member of the firm who then c ailed for the amount.' It follows, we think, there was no debt until the defendant’s drafts were given. Delivery to the lender is of the essence of the loan. In this case the money was that of T. R. Armistead until he parted with it. If he had failed to deliver, the firm would have had only an action for damages. If lost before delivery, the loss would not have been that of the firm, but that of T. R. Armi-stead. In every point of view, we must hold that when this judgment was confessed there was no debt to support it. Civil Code, Arts. 2891, 2910, 2913.

Our Code expressly authorizes a conventional mortgage to secure an obligation not yet risen into existence, and such mortgage takes effect from the date of the promise, the fulfilment of which the mortgage secures. Civil Code, Arts. 3293, 3294; Pickersgill vs. Brown, 7 An. 298. This provision, in respect to conventional mortgages, we have no power of extending to judgments. It is not admissible under our law for the debtor to spread on the records judicial mortgages based on judgment for anticipated debts. Under our system the judgment for money ascertains and is based on an existing indebtedness, and such judgments can not be used as substitutes for mortgages for future debts, enforced because of the permission not to be extended contained in our Code.

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


text:
    No. 12,026.
    T. R. Armistead vs. Ardis & Co. et al.
    An injunction by an alleged judgment creditor against the execution o£ ’judgments of other creditors can not be sustained, if the judgment on -which the injunction is based is shown to be without basis, a simulation and void.

      In dissolving such injunction, a reasonable attorney’s fee should be allowed defendants, as damages. Code of Practice, Art. 304; Amendment R. S. S. 1755.
    PPBAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      J F. Pierson for Plaintiff, Appellant.

      L. K. Watkins, W. U. Biehardson, D. W. Stewart and J. E. Bey nolds for Defendants, Appellees.
    Argued and submitted January 24, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

Miller, J.

This is an appeal by plaintiff from the judgment of the lower court, dissolving his injunction, restraining the execution of judgments of defendants against Theus & Armistead, and the members of the firm.

This litigation is part of that the subject of the decision just rendered in Gladney et al. vs. Manning, Sheriff et als., ante p. 316. In that case the plaintiffs therein enjoined the execution of the judgment of T. R. Armistead against Theus & Armistead, and asked for a decree annulling that judgment. Our judgment maintains that injunction and annuls the judgment. In this suit T. R. Armistead based his injunction on the judgment now annulled. Of course, his alleged judgment being annulled, the injunction based on it must fall as decreed by the lower court, and as we have determined in the case between these parties just decided.

The plaintiff seized under his judgment. Defendants enjoined, and, under cover of their injunction, sought to sell the property first seized by plaintiff. Thereupon he enjoined. It is urged on his behalf his injunction was made necessary by that of the defendants; that he resorted to an injunction only to preserve the privilege he supposed he acquired by his seizure. This is urged on us, in answer to defendants’ demand for damages for the dissolution of the plaintiff’s injunction. Under the amendment to the Code of Practice, interest and damages are to be allowed defendant when the injunction of plaintiff in the suit is dissolved. Code of Practice, Art. 304. Amendment R. S. S. 1755. The lower court refused damages, but reserved defendants’ right to sue. We are asked to amend the judgment and give damages.

Under the law the damages to be awarded on the dissolution of the injunction is discretionary up to twenty per cent., unless damages to a greater amount be proved. We are not impressed with the claim for damages beyond the demand that the defendant be allowed the attorney’s fee for dissolving the injunction. A reasonable amount for such fee is usually allowed in dissolving the injunction. We are asked to give five hundred dollars.- In the matter of assessing fees, this court is expected to exercise its judgment, guided, but not controlled, by the testimony. We think two hundred and fifty dollars would be reasonable.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to allow defendants two hundred and fifty dollars hereby decreed to be recovered of plaintiff and his sureties in solido on the injunction bond, and as thus amended the judgment of the lower court be affirmed with costs.


author: Nicholls, C. J.

text:
    No. 11,990.
    Joseph H. Castille and Anna A. Reese, Wife, vs. Caffery Central Refinery and Railroad Company, Limited.
    Article 166, C. P., 9tli par., refers to damages resulting from positive acts; to acts of commission, and not to those resulting from those of omission. 30 An. 608; 33 An. 955; 36 An. 188; 39 An. 796; 40 An. 754; 46 An. 276.
    The condition of jurisprudence in this State shows that whenever a corporation in our courts has been compelled to submit to being sued outside of the place of its domicile, the actions were for damages ex delicto, and that even in an action ex delicto tor damages, the plaintiff then is required to have recourse to the court of the domicile where the corporation has only passively'contributed to the injury in failing to do something incumbent upon it to have done.
    In cases of personal injuries received by an employee in the course of his employ ment, when the party injured has died and an action has been brought for damages under the Acts of 1855 and 1884, the action has to be brought as a tort. The contract of employment, under such circumstances, will not be counted on in fixing the character of the action. Suit in the parish where the damage was done, held proper.
    APPEAL from the Seventeenth Judicial District Court for the Parish of St. Mary. Allen, J.

      D. Gaffery & Son for Plaintiffs, Appellants.
    Howe, Spencer & Cocke for Defendants, Appellees.
    Argued and submitted January 9, 1896.
    Opinion banded down February 10, 1896.
    Plaintiffs claim damages for the death of their son, who was, they allege, in the quiet discharge of his duties at the Caffery Central Refinery, owned and operated by the Oaffery Central Refinery and Railroad Company, Limited, a corporation organized under the laws of the State of Louisiana and domiciled in the city of New Orleans, and which corporation owned and operated the said refinery, in the parish of St. Mary, at the time of the death of their son, its officers, for whose acts it is legally liable, being then in control. The suit was instituted in the parish of St. Mary and judgment asked for seventy thousand dollars.
    Defendant excepted that the court was without jurisdiction ratione personse in that the defendant is domiciled in the parish of Orleans, and can not be’ sued or held to answer suit in the parish of St. Mary for the things and matters set forth in the plaintiffs’ petition as therein pleaded.
    The court sustained the exception and plaintiffs appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The ninth paragraph of Article 166 of the Code of Practice declares, as an exception to the rule which' requires that the defendant be sued before the judge having jurisdiction over the place of domicile or residence, “all cases where any corporation shall commit trespass or do anything for which an action for damages lies.” In such cases it provides that the corporation shall be liable to be sued in the parish where such damage is done or trespass committed.” This paragraph has been construed a number of times.

In Montgomery vs. the Louisiana Levee Company, 30 An. 608, plaintiff sought to recover of the defendant damages ex contractu, under Sec. 2, sub-Sec. 6 of Act. No. 4 of 1871, for failing or neglecting to keep up the standard dimensions of a certain levee, in consequence of which plaintiff’s plantation was inundated. The court in passing- upon an exception to the jurisdiction filed by defendant said: “ The general rule in civil matters is ‘that one must be sued before his own judge, that is t > say, before the court having-jurisdiction over the place where'he has his domicile or residence.’

“Itis a familiar rule that statutes in derogation of a common right must be construed strictly. The entire article 165 is an exception-to the general rule established by Art. 162.” Plaintiff claimed he was authorized to bring the suit as he did, as the section of the law under-which he brought the suit imposed liability upon the company for damages for failing or neglecting to do certain things. The court declined to accede'to this proposition, declaring that the Legislature contemplated the active violation of some right, the committing of a trespass or the doing of some illegal thing, which gave-rise to an action for damages; that the Legislature might have extended this exception so as to make corporations liable to-be sued for damages arising from trespass or any other act, or from mere inaction or neglect, in the parish in which the.damage was done, but that what the Legislature might have done and what it has done were entirely different, and that it had to deal judicially with what the Legislature had done, not with what it might have done and had not chosen to do. It, therefore, held the ninth paragraph of Art. 165 referred to damages resulting-from positive acts, acts of commission, and not to those from acts of omission. It said the action brought was one ex contractu, and it dealt with the case upon that theory.

In the case of State ex rel. Morgan Railroad Company vs. The Judge of the Twenty-sixth District Court, 33 An. 955, the company excepted to the jurisdiction of the Twenty-sixth District Court on the ground that its domicile was in the city of New Orleans, and this court held the suit to have'been properly brought.

The action was one ex delicto for damages, the charge being that “ plaintiffs were damaged through the carelessness and negligence of the employees of the company in charge of a locomotive and train of cars, whereby a mule, their property, was struck and killed.”

In Cossin vs. Williams and Morgan’s Railroad, 36 An. 188, the suit, was dismissed, the plea to the jurisdiction being sustained. The suit was against a common carrier for damages sustained in consequence-of want of proper care and attention on the part of the carrier to-goods delivered for transportation. It was claimed by plaintiff that the action was one ex delicto, the act as resulting from a violation of the general duty of a common carrier. The court said the action was clearly one for the recovery of damages, which were the result of negligence consisting in allowing the article to remain exposed to the inclemency of the weather: that the negligence was not the same as in the case of the mule killed, that it could not be pretended that through the negligence an act was “committed.” The ground for relief was the omission of an act. It then defined trespass as an unlawful act committed with violence, m et armis, to the person, prop- • erty or relative rights of another. An action for trespass was declared to be one instituí d for the recovery of a wrong committed against the plaintiff with immediate force. It did not lie for mere non-feasance. That the word was also defined to mean a hurtful use of violence which is wrongful. It excludes all varieties of wrongs in which force can neither be perceived nor implied, such as negligence. There must be a wrongful injury or taking. It is said that in the case before the court the charge was made that the company neglected to take proper care of the produce, hence the injury. The charge clearly implied an omission and repelled the idea of an act. As a consideration confirming the conclusion it reached, it declared that the damage arose from the violation of a contract, that of af-freightment, which existed between consignor and carrier. It did not come within the class of damages occasioned ex delicto. It flowed from the breach of a special obligation created by a special contract. The character of the action was that of an action for damages resulting from the failure to comply with a contract of affreightment.

The cases of Kohn vs. Carrollton, 10 An. 719, and 26 An. 677, were referred to.

In Houston vs. The Vicksburg, Shreveport & Pacific Railroad Co., 39 An. 796, the plea to the jurisdiction was overruled. The suit was one ex delicto for damages received by a person being run over by a locomotive while she was crossing a railroad track.

There were no contractual relations between the company and the person injured.

In Caldwell vs. Railroad, 40 An. 754, plaintiff sued defendant for damages for injuries sustained by the breaking through of a bridge constructed by defendant over a public crossing in the city of Shreveport. The plaintiff alleged gross negligence and default in the defend ant for not constructing and maintaining a safe and suitable crossing at the place where he was injured. The court held the act was one of omission, non-feasance, dereliction of duty, and not the commission of any act which implied force or violence, and the action should have been brought at the domicile of the company. There were no contractual relations between the parties. The action was evidently ex delicto, but the “ fault of the company ” lay in not keeping the bridge in proper condition. The crossing by the plaintiff was the “ act ” which led directly to the injury. The “corporation ” was “ passive ” in respect to that act.

In Dave vs. Railroad Company, 46 An. 276, plaintiff had purchased a ticket to convey him from Lafourche Crossing to Rousseau Station in Lafourche parish. The train passed the station without stopping, but stopped a mile beyond, at which point the conductor ejected the plaintiff from the car. He brought suit for damages in the parish of Lafourche. The jurisdiction of the court was sustained, the court holding that the action was one ex delicto. It said: “ The damages claimed were not those arising under a contract such as are classed ex contractu. They did not arise from the inexecution of an obligation or a mere violation of the terms of the agreement in the execution. Originally the parties- might have been bound under a contract, and their rights decided by a reference to it. Parties may remove from the obligations of the contract entirely, and torts may and frequently do occur independently of the contract. It may be founded upon or grow out of some violation of a right created or secured by contract.” The injury in the case at bar included the expulsion from the train and was more of an injury than there was in some adjudicated cases. (The court citing authorities from Redfield on the Law of Railways, p. 298, 6th Ed.).

An examination of these authorities will show that whenever a corporation in our courts has been compelled to submit to being sued outside the place of its domicile, the actions were actions for damages ex delicto, and that even in an action ex delicto for damages, the plaintiff was required to have recourse to the court of the domicile where the corporation had only “passively” caused the injury in having failed to do something which it was incumbent upon it to have done, and the immediate occasion of the injury was the doing of some act by the plaintiff himself, which in consequence of this neglect of the corporation led up as a concurring cause to his receiving personal injuries.

Such being the condition of the jurisprudence of the State, we are called upon to examine into the character of the plaintiff’s action, to see whether it be one ex contractu or ex delicto, and, if the latter, whether it be of a character such as to throw it outside of the principles announced in Caldwell vs. Railroad Company, 40 An. 754.

Plaintiffs contend that their action is grounded on a tort, and not only for damages resulting from tort, but damages from force and violence actively directed by the corporation against the parties injured. Their position is, that while it is true that there was a failure of duty and negligence in not putting up a proper pipe and keeping it in repair the corporation brought violent agencies actively to bear upon this imperfect pipe. That it was by positive acts of its employees that the fire was lighted and the steam produced which, striking with terrific force upon the weakly connected pipe, caused it to part, and by parting to precipitate upon the deceased hot, boiling water, and water which caused his death. That in this case the positive act which led to the injury was that of the corporation, the deceased himself being perfectly passive. That this feature of the case differentiated it from that of Caldwell.

At the threshold of our examination we meet a fact which was noted specially in the cases of Montgomery vs. La. Levee Co., 30 An. 608, and Gossin vs. Williams, 36 An. 188.

It is that, at the time of the injury received in this case, the plaintiff and the defendant company occupied toward each other contractual relations, those of employer and employee. The fact of this employment is averred in plaintiffs’ petition. Referring to the conduct of the corporation in placing the defective pipe in the refinery and permitting the use of the pipe in the state it was in the operation of the factory, the plaintiffs allege “it was gross, culpable, wanton and criminal neglect on the part of the officers of said corporation;” “that the corporation was bound to furnish safe apparatus and repair or discontinue the use of that which was unsafe, as was said pipe, in which duty toward their son they failed. That their son was in the quiet discharge of his duties at the time of the explosion, and was guilty of no fault contributing to his death; that, but for the negligence charged, their son’s death would not have occurred; that the same was wholly due to the wilful negligence of the corporation, as the killing was wantonly and recklessly done and could have been avoided by the exercise of ordinary care.”

Plaintiffs maintain that it by no meáns follows that because two parties may hold toward each other the position of employer and employee, the employer may not commit an act injurious to the employee of a character such as to be of itself a quasi-offenee and giving rise to a direct action in the employee’s favor, even though the same act might, in itself, constitute also a breach of one of the obligations of the contract of employment; that the employee has the right to ignore the fact of employment for the purpose of bringing an action for redress, and is not tied down in spite of himself to connecting the injurious act with the contract of employment.

This court has in the case of Dave vs. Morgan’s Railroad Company (cited above), recognized that cases of the character alluded to may arise.

Obligations resulting from tort may be superadded to those arising from contract, and conventional obligations superadded to those arising from torts. See Ballew vs. Andrus, 10 La. 219; Cooley on Torts, pp. 91 and 92 of 1st Ed., pp. 105 to 106, and 107 of 2d Ed.

The question is what, under the pleadings, in this case, the facts alleged in the petition and the law is the character of the ease before us.

The party injured died a few minutes after he had received the in - jury. The plaintiffs derive their right of action from Art. 2315, Civil Code. That article was originally Art. 2294 of the Code of 1825. It was amended by Act No. 223 of 1855, and by Act No. 71 of 1894.

The article read before amendment as follows:

“ Every act whatever of man that causes damage to another obligates him by whose fault it happened to repair it.”

In 1851, this court, in the case of Hubgh vs. New Orleans & Carrollton Railroad, 6 An. 495, in which plaintiff individually and as tutrix brought suit to recover damages for', the death of the husband and father, which had been occasioned by the bursting of a boiler in the service of the defendant company, of which the deceased had the management, said: “On general principles, the only private rights which laws recognize, and which constitutions are established to protect, are the rights of persons and the rights of property. The plaintiff and her children do not complain of wrongs to their own persons, and it can not be pretended that they had any rights of property in their husband or father. It appears to us, therefore, that without a special statute authorizing such actions, they can not be maintained. It is a strong argument in favor of this view of the law that in a country where private rights are so well protected as they are in England, it is settled that those actions do not exist at common law. Baker vs. Bolton et al., 1 Campbell, 493.

“ In 1st Cushing’s Mass. Rep., p. 475, a case similar to the present, the rule of the common law was reaffirmed, the judge being of the opinion that, if the facts stated were proved, they would not entitle plaintiff to recover. A verdict was entered in favor of the defendants. In England, of late years, this omission has been supplied by statute in a limited class of cases. 9 and 10 Victoria, Chap. 93.

“It is urged that under the civil law the present action can be maintained, but plaintiff’s counsel have not favored us with any authority from the Roman or Spanish law sustaining the position they assume. On the contrary, it is a genera] rule under these systems that actions for personal injuries are strictly personal. 24 Pothier Pandectes, p. 273, law 13; 7 Partida, tit. 15, 1, 3.

“ It is further urged that Art. 2294 of our Code * * * has enlarged the remedies given by the former laws in cases of damages resulting from torts and that the present action should be maintained under it. * * * The dispositions of Art. 2294 are found in the Roman and Spanish laws; so far from being new legislation, that article embodies a principle as old as the science of jurisprudence itself, and it must still be understood, with the limitations affixed to it by the jurisprudence of Rome and Spain. Domat Lois Civiles, tit. Domages causes par des fautes, p. 180, par. 1.”

There, is no doubt that this decision led to the enactment in 1855 of the amendment we have referred to, to Art. 2294. The amendment consisted in adding to it the words the right of this action shall survive in cases of death in favor of the minor children and widow of the deceased, or either of them, and in default of these, in favor of the father and mother, or either of them, for the space of one year from death.”

To the article as so amended were added by Act No. 71 of 1884 the further words: The survivors above mentioned may also recover the damage sustained by them by the death of the parent or child or husband or wife, as the case may be.”

It will be seen that in granting a right of action to the survivors, the lawmaker granted it under the heading of “Offences and Quasi-Offences,” as an action for tort and assigned to it as such the prescription fixed by Art. 2294 (old article).

The'character of such an action was therefore fixed by the law itself. It can not be altered by pleadings, but has to be tested and passed on as an action “ex delicto.” In cases of personal injuries, received by an employee in the course of his employment, where the party injured has died and an action has been brought by parents, widow or children, based on the Acts of 1855 and 1884, the action has to be brought as a tort. Under such circumstances the contract will not be counted on, though it will necessarily be shown in order to make appear the circumstances under which it occurred and the facts immediately connected with it. Ooiley on Torts, p. 91 (1st Ed.).

Taking plaintiffs’ allegations as true, we find the facts to be that the party injured was, at the time of the injury, in the factory under circumstances such as to make his being at the place he then was, legal and proper. That he by no act of his contributed to the accident; that his relations to it were purely of a passive character, and that the force brought into operation, which resulted in his death, was actively set and brought into action through agencies controlled by the defendant company. We think that, viewed from this standpoint, the action comes more nearly under the principles which controlled the case of Houston vs. Vicksburg, Shreveport & Pacific Railroad Company, 30 An. 796, than any other. Had the deceased at the time of the accident been legally standing upon a public road in St. Mary parish, in proximity to defendants’ track, and had a locomotive, by reason of its defective condition, as it passed opposite to him, exploded, killing him, we think an action for damages would have properly been brought in the parish of St. Mary. The case supposed is substantially the same as that before the court, the difference consisting simply in the fact that the pipe which exploded was in one ease stationary and the other on a moving locomotive.

We think the exception to the jurisdiction should have been overruled.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that defendants’ exception and plea to the jurisdiction of the District Court in and for the parish of St. Mary be and the same is hereby .overruled, and this case is ordered to be reinstated on the docket of that court, and the same is hereby remanded to the lower, court to be proceeded with according to law.


author: McBnbry, J.

text:
    No. 12,017.
    Louisiana & Northwest Railroad Company vs. Police Jury of Bienville Parish.
    A contract made by the police jury, in -which payments for a court house are provided for in instalments, is not a bond, promissory note, warrant, for the issuance of which Act 30 of 1877 and the organic law prohibit. A police jury has the authority to appropriate the excess of the current expenses of the parish, within the ten mills limit, for the purpose of building a court house, and can set apart the excess in advance, for future collection, to pay the instalments due, as expressed in the contract.
    A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      J. A. Richardson, W. U. Richardson, Ben. P. Edwards and J. F. Boone for Plaintiff, Appellant.

      L. K. Watkins and Dormon & Dormon for Police Jury, Defendant and Appellee.

      J. E. Reynolds for F. B. & W. S. Hull, Defendants, Appellees.
    Argued and submitted January 21, 1896.
    Opinion handed down February 10, 1896.
   The opinion of the court was delivered by

McBnbry, J.

In 1895 the Police Jury of Bienville parish contracted for the building of a court house. The ordinance providing for the erection of the court house and accepting a bid from the contractors, the terms of payment and the amounts to be paid in instal-ments were fixed as follows: Two thousand dollars 1st February, 1896 ; three thousand dollars February 1, 1897; three thousand dollars February 1, 1898; three thousand dollars February 1, 1899; three thousand dollars February 1, 1900, with eight per cent, interest on each instalment from the date of the completion of the court house. In the ordinance it is recited: “that as only six mills on the dollar of the assessed value of the property of Bienville parish is required to meet and pay the annual current expenses thereof, leaving four mills on the dollar of the ten mills allowed by law stilj assessable and collectible annually for other purposes, in order to provide for the payment of the indebtedness contracted for the building of the court house and the payment stipulated, a tax of four mills on the dollar of the ten mills allowed annually by law for parochial purposes on the assessed value of the taxable property of Bienville parish is hereby appropriated, levied and set apart, or enough thereof to pay the debt and interest contracted for the building of the court house.

This contract is assailed by plaintiffs on the grounds: First, that the current expenses and existing outstanding obligations of the parish will consume the entire revenues of the parish arising from the ten mills as allowed by law, and the current licenses, together with whatever funds may be in hand, belong to the parish; that therefore there are no revenues with which to carry out said illegal contract for the building of the courthouse. Second, that the police jury is without authority to enter into a contract for the building of a court house, or contract a debt or pecuniary liability without providing in the ordinance creating the debt the means of paying the principal and interest of the debt so contracted; and, third, that the police jury can not pledge the future revenues of the parish, or issue any obligation, warrant, promissory note or any evidence of debt, or incur any future liability.

There was judgment for the defendants. Plaintiffs appealed.

The parish of Bienville had the undoubted right to build the court house. This duty is imposed by law. The question presented is whether they adopted the proper means for defraying all expenses in connection with its construction.

On the first point it is alleged that the current expenses and outstanding obligations of the parish will more than consume the ten-mill tax — the full limit of parochial taxation, without a compliance with Art. 209 of the Constitution. If the parish for legitimate expenses has reached the limit of taxation prescribed, then there must be a strict compliance with Art. 209. But we are not to estimate the outstanding obligations of the parish, not provided for in the annual exhibit o£ expenses, for in such case we might inadvertently impose a burden on the parish for obligations not recognized by the parish, and to which it may have a just defence. For the purposes of ascertaining whether the limit has been reached, we must look and examine the official statement, unless it is shown that there is fraud in it, and necessary expenses which must be met, and existing obligations already acknowledged, have been excluded for the purpose of making a showing that the ten-mill limit had not been reached. The record shows no such misconduct, or we may say positive dishonesty, on the part of the police jury. There seems to have been on the part of the police j.ury an earnest desire to carry out the duty imposed upon them, and to erect a court house at the site selected for the parish capitol.

The ordinance exhibits a strict compliance with the law, in providing in the ordinance creating the debt the means of paying the same, as there is an appropriation of a part of the ten-mill tax for each year, until it is paid. We can not class the obligation on the part of the police jury to pay at designated times, certain sums of money on its contract, as a promissory note, bond or warrant.

Of course no warrant can issue on the parish treasury when there are no funds to meet it. The law positively prohibits it. Act 30 of 1877. The cases relied on by plaintiffs and reported in 23 An. 191 (Capmartin vs. Police Jury); 23 An. 232 (Breaux vs. Parish of Iberville); 23 An. 251 (Marionneaux et als. and other cases vs. Police Jury Parish of Iberville); 24 An. (Edwards vs. Parish of Bossier); 26 An. 59 (Sterling vs. Parish of West Feliciana); 30 An. 461 (Smith vs. Parish of Madison); 42 An. 886 (Snelling vs. Police Jury et als.), do not apply to this case. In these eases negotiable paper was issued, or bonds or warrants issued for the purpose of raising money.

In the last case cited, Snelling vs. Police Jury et als., 42 An. 886, there was a contract for the building of a bridge, and to pay for the same ten negotiable promissory notes were issued. But we were careful to say in that case that police juries have the authority to contract for improvements which they are authorized to make, to he paid out of the taxes which they are authorized to levy, and which are set apart for this special purpose. The money sp raised and set apart, however, must be in the treasury before a warrant could issue, for the Act No. 30, Secs. 1 and 5, of 1877, expressly says so.

The building of a court house is a considerable undertaking for a parish. Probably no parish in the State, out of the ten-mill tax, can pay in one year for a convenient and suitable building. Future appropriations become a necessity, and we had this in view in using the language in the case of Snelling vs. Police Jury. The proviso to Art. 209, referred to by plaintiff, has reference to the financial condition of the parish, when it is necessary to go beyond the ten-mill limit. So long as the parish keeps within that limit, for the building of useful and necessary public buildings, there is no law prohibiting them from setting aparta portion of the ten-mill tax in future years.

The budget, or exhibit of expenses, shows that in the year 1896, in which the first payment is provided for, the last instalment on the jail will have been paid, leaving six mills for current expenses, and an excess of four mills to be applied to other purposes.

We find in the ordinance no violation of Art. 209 of the Constitution, nor do we find that it conflicts with any statute of the State.

Judgment affirmed.


author: McEnbry, J.

text:
    No. 12,022.
    T. H. Mosley vs. C. S. Yearwood et al.
    Probable cause means the existence o£ such facts and circumstances as would excite the belief, in a reasonable mind, that the plaintiff was guilty of the offence for which he was prosecuted.
    Rumors are not, but the representations of others, and the conduct of the plaintiff inviting suspicion to himself, is a foundation for such belief.
    In order to recover, plaintiff must show a total absence of probable cause, the presumption of which exists until the plaintiff can show the contrary,
    A PPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      L. K. Watkins for Plaintiff, Appellant:
    Defendants can not justify their acts by a mere belief- in the guilt of the accusedsimply belief in his guilt will not shield them. If they act on information received they take the risk of the truthfulness of the information on themselves. 33 An. 392; 36 An. 378, 103; 41 An. 303, 51; 47 An., p. 254; 15 An. 492, 166, and Amer. and Eng. Ency. of Law, Yol. 13, pp. 402, 303; Vol. 14, pp. 26, 75.

      Acting on the advice of counsel can not protect the defendant in every case, and how far this protection is a shield, see 47 An. 264; 33 An. 392; 47 An. p. 36, and the advice of a justice of the peace is no shield at all. Amer. and Eng. Ency. of Law, Yol. 14, p. 57. The advice given must be by a licensed attorney learned in the law.
    Bad character, where proved, is only in mitigation of damages and does not go to the defeat of the action entirely. 46 An. 36.

      J. F. Pierson for Defendants, Appellees:
    The libel, slander and defamation charged in plaintiff’s petition, is manifestly merged in the cause of action for malicious proseeu-cution, and if it is not actionable, neither is the alleged slander or libel. 40 An. 274; 44 An. 978.
    It is not only the lawful right but the civil duty of every citizen to set on foot criminal proceedings whenever he believes honestly and on reasonable grounds that a crime has been committed. 40 An. 376; 44 An. 936; 41 An. 513; 46 An. 1464; 47 An. 34.
    The social interests require, and the law invites him, to aid the State in the discovery and punishment of crime, and it would be equally unjust andjmpolitic to make him guarantor for the sue* cess of the prosecution, or to make its failure an actionable wrong. The law holds him harmless unless his conduct be tainted with “ malicious motive and want of probable cause.’ 40 An. 375; 44 An. 938; 41 An. 513; 15-An. 422.
    Argued and submitted January 23, 1896.
    Opinion handed down February 10, 1896.
    Rehearing refused February 24, 1896.
   The opinion of the court was delivered by

McEnbry, J.

This is a suit by plaintiff against defendants for malicious prosecution, to recover the sum. of seventy-five hundred dollars as damages. The petition charges slander, libel, defamation, false imprisonment, all ending in the final accusation of malicious prosecution.

The defendants answered with a general denial, and specially pleaded that they honestly believed, and had good reason to believe, that the accusation was true; and that their prosecution of the defendant was a bona fide proceeding, without malice, in order to bring to justice the perpetrator of a crime. There was judgment for the defendants, from which plaintiff appealed. The record is voluminous, but the facts necessary for the determination of the case are few and not complicated.

This suit originated in the contest in Ward 4, Bienville parish, over the question submitted to the voters of the ward for or against license for the sale of intoxicating liquors. As is the usual result of such a question being submitted to the people, there was great excitement, heated discussion, and angry feelings engendered. We learn from plaintiff’s brief that he “was a leader on the whiskey side, and made denunciatory speeches in the campaign, denouncing the prohibitionists publicly and privately, for trying to intimidate the negroes.” This statement is made to show that the defendants, some of whom were denounced by plaintiff, were on the investigating committee hereafter alluded to, and for this reason the plaintiff had excited their hostility. There is no doubt but that the rancorous feelings on both sides was about of equal intensity.

The election was held on Saturday, the 14th day of October, 1893. On the Sunday previous to the day of election, the plaintiff, in company with one James McElroy, went from the town of Ringgold to Arcadia, the parish site, for the poll book.

They returned with it on Tuesday night about dusk. The poll book was thrown on the gallery store of McElroy. It remained there until it was sent for by a gathering of license men at the store of Page & Davis. The book was canvassed to see how the vote would result. There were then no changes in the book. The plaintiff was present in the store during the canvass of the vote. J. J. Davis took charge of the book and kept it locked in a desk until one T. R. Gid-dens, about sunup, came and took it away. This was on Wednesday. On late Wednesday evening it was ascertained that the book had been tampered with, a number of names erased and others substituted who were in favor of license. Great indignation followed this disclosure, and it seems that both parties condemned this illegal and unwarranted act. A committee of investigation was appointed at a called meeting of indignant voters. The evidence does not show that the committee acted hastily. It sent two citizens of Arcadia with a list of the erasui’es and alterations, in order to get a correct list.' The alterations ' in the poll book were made duriDg the time it was taken from Page & Davis’ store by Giddens, until it was returned. It was found that the erasures were made in two different handwritings. One of the committee who was familiar with plaintiff’s handwriting said he believed one of the handwritings was that of Mosley, the plaintiff. In the course of their inquiries the committee could not get'satisfactory evidence of the whereabouts of Giddens and the plaintiff. The plaintiff, in his testimony and in that of his father, attempted to prove that he was, during the time that the changes were made in the book, sick at his father’s house. On that point the evidence is unsatisfactory, and does not so locate the plaintiff that it was not probable that he could have participated in the changes and alterations of the book. Suspicion thus being directed against the plaintiff and Giddens, the committee went to one Livingstone, who they had reasons to believe knew something about the alterations. They mentioned their suspicions as to the plaintiff and Giddens, and were told by the man Livingstone that they were on the right track,” but he refused to mention names until he was called upon to testify in a judicial proceeding. On the day of the election, Giddens and Mosley, the plaintiff, were together in soliciting votes, and the evidence is convincing that the plaintiff approached men whose names were not regularly and legally registered, but whose names were on the altered poll list and soliciting them to vote, in many instances telling them that they were registered. At the close of the polls, or toward the nearing of the close of the polls, the committee talked over what each had learned and observed, and the result was that an affidavit was made against the plaintiff by the defendants, upon which a warrant issued. He was arrested. On the preliminary examination before the District Judge he was discharged, and the grand jury afterward ignored the charge.

We have carefully examined the testimony for the plaintiff, and had the defendants offered no evidence, we do not think the plaintiff would be entitled to a verdict. His own testimony throughout is unsatisfactory and ambiguous, and there are guarded expressions, showing that he was not as candid and open as a man ought to be, who knowing himself to be innocent, seeks to be vindicated.

Probable cause means the existence of such facts and circumstances as would excite the belief in a reasonable mind that the plaintiff was guilty of the offence for which he was prosecuted. Rumors are not, but the representation of others is, foundation for such belief. And we may add that when to the representations of others, the plaintiff has by his own conduct invited suspicion to himself, the defence is complete. Plassan vs. Lottery Co., 34 An. 246; Decoux vs. Lieux, 33 An. 392; Blass vs. Gregor, 15 An. 421; Laville vs. Biguenaud, 15 An. 605; Murphy vs. Redler, 16 An. 3; Robertson vs. Sprig, 16 An. 252; Dickinson vs. Maynard, 20 An. 66; Godfrey vs. Soniat, 33 An. 915; Coleman vs. Ins. Co., 36 An. 92; Dearmond vs. St. Amant, 40 An. 374; Brelet vs. Mullen, 44 An. 194; 37 Md. 282; 48 Barb. 30; 52 Penn. 419.

The law presumes that probable cause existed until the party aggrieved can show the contrary, hence he is bound to show the total absence of probable cause. Id.; 1 Camp. 199; 35 Md. 194; 1 Wend. 140; 7 Conn. 281; 12 Conn. 219; 3 Coll. 246; 3 Mass. 112.

The plaintiff has failed to show the absence of probable cause, and we think the testimony of defendants shows that they acted upon reasonable grounds of belief, based on the fact that a crime had been committed, on representations made to them by others as to plaintiff’s connection with it, and his own conduct inviiing suspicion to himself.

Judgment affirmed.


author: Brbaux, J.

text:
    No. 11,994.
    Town of Thibodaux vs. Constantin & Bragard.
    Appeal from a judgment for less than two thousand dollars ($2000) amount of dues for wharfage.
    This court only has jurisdiction when either the constitutionality or legality of the law is at issue.
    There was no “contestation” made by the pleadings, as required by the Constitution.
    APPEAL from the Eighteenth Judicial District Court for the Parish of Lafourche. Caillouet, J.

      Beattie & Beattie for Plaintiff, Appellee.

      Edward N. Pugh for Defendants, Appellants.
    Argued and submitted January 9, 1896.
    Opinion handed down January 20, 1896.
   MotioN to Dismiss.

The opinion of the court was delivered by

Brbaux, J.

The appellee alleges that the amount in issue is not within the jurisdiction of this court, and moves.to dismiss the appeal.

As relates to jurisdiction vel non, the facts are that plaintiff sues to recover the sum of three hundred and sixty-one dollars, with interest, for wharfage dues of one dollar for each landing. An agreed statement shows that on the front of the town, a distance of about two thousand two hundred feet, there is a construction made of the best cypress timber, at a cost of some eleven thousand dollars, and that there are posts for the convenience of water crafts; .also three stairways along the wharf to enable passengers to walk up to the crest of the levee when the river is low. By agreement, the word ■“wharf,” used in reducing the consent statement to writing, was not to conclude the defendant, who reserved the right to prove that it is not a wharf. A number of witnesses were examined relative to by-laws regulating the public markets, streets and levees; the plaintiff corporation has about the same authority delegated to the incorporated towns in this State. It is, under a special section, empowered to levy and collect taxes in such manner and for such amount as the constituted authorities may deem expedient, on all ships, vessels and steamboats mooring at the wharf of the town. Under the terms of the charter, the municipal corporation is a riparian proprietor. The council passed ordinances requiring all steamboats landing in front of the town to pay in advance, on demand of the collector, a wharfage of one dollar for each landing, provided the steamboat does not remain longer than one week at the landing.

The defendants pleaded the exception of no cause of action or legal right of action.

Under an agreement by counsel the right claimed under the exception was reserved to be passed upon prior to deciding the merits, in ease the court overruled the exception.

With this reservation, the defendant answered, pleading general denial. The dues claimed for wharfage, as we understand, are not. collected (or at any rate should not be collected) in aid of the treasury or to defray the expenses of the' jurisdiction by which it was. imposed, but to improve and repair the landing in the interest of commerce and navigation. That question, as we interpret the pleadings, is not before us for decision. The learned counsel for the defendants says that the first question raised under the plea of no cause of action is the right of the plaintiff to levy the tax or toll on the defendants, and that if his contention be correct as to the absolute want of authority of the plaintiff, then there can be no doubt that the legality of the tax is at issue.

We do not think that the exception pleaded is as far reaching as is here contended. It does not raise a question of the unconstitutionality of a legislative act and illegality of a municipal ordinance. The defendant could not set up the illegality of the law in avoidance of the claim without a special averment.

During many years the defendants paid these dues and complied with the law and the ordinance. Upon discovering their illegality and unconstitutionally it devolved upon them to raise these issues if their desire was to appeal to the court of last resort.

If we were to decide the exception and hold that there is a cause of action, in so far as relates to the authority under which the ordinance was adopted, on the merits we would not have jurisdiction of the questions here involved.

Having determined that the exception of no cause of action does-not raise issues within our jurisdiction, this brings us to a consideration of the merits of the case in so far as relates to jurisdiction.

The defendants and appellants do not, under the general issue, contest the legality and constitutionality of the ordinance under-which he was condemned to pay wharfage dues. They' question the right of the municipality bo hold them responsible, and to that end deny the facts in the petition.

In State vs. Tsni Ho et al., 37 An. 50, this court said: “ It is obvious that the contestation referred to in the Constitution must have existed in the lower court, and that the fact of its existence must affirmatively appear on the face of the record.”

In City of New Orleans vs. Hill, 32 An. 1161, 1162, it was held that without “ contestation,” touching the constitutionality or legality of the law, this court is without jurisdiction of a question similar to the one in the case here. The article of the Constitution is clear: The appellate jurisdiction includes all cases' in which the “ constitutionality or legality of any toll or impost whatever, or any fine, forfeiture or penalty imposed by a municipal corporation, shall be in con-testation,” whatever may be the amount.

Whether on exception, or on the trial of the merits, a “ contestation ” must be made by pleading íd the lower court, touching the constitutionality or legality of the law and the ordinance, in order that this court may exercise jurisdiction.

The questions here are considered with reference to jurisdiction and no further, and, in consequence, it leaves the rights of the defendant undecided, should he appeal to another appellate tribunal, save •as relates to our jurisdiction.

The appeal is dismissed at appellants’ costs.