text:
    No. 13,652.
    Henry Germann, Jr., vs. Paul J. Crescioni.
    Syllabus.
    In fixing damages to be awarded for slander, the court will take into consideration the fact that the objectionable words were uttered in the heat of passion, by one, who, for the time, believed that he had a grievance, and that it was probably so understood by those who heard him. ,
    APPEAL from the Civil District Court, Parish of Orleans — King, J.

      Sambola & Ducros, (Barnard B. Howard, of counsel), for Plaintiff, Appellant.

      Denegre, Blair & Denegre, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

This is an action in damages for slander, insult, and abuse. The defendant denies the use of the language attributed to him. The facts disclosed by the record are, that the plaintiff is superintendent and cashier of the New Orleans Contracting Company, Limited, lessee of the public markets in this city; that the defendant is a collector for the same concern; and that his business is to collect the dues in several of the markets and turn' them over to the plaintiff. Upon March 16, 1900, he appeared in the office of the company and handed to the plaintiff certain collections, made up in part, of silver. The plaintiff returned to him a one dollar silver coin, with the remark that it was counterfeit, to which the defendant replied, “this makes one dollar and a half that I owe you,” or words to that effect. After which he left the office, saying to himself, “Dieu est l)on” as indicating that he was not altogether satisfied. About twenty or thirty minutes later he reappeared, in an excited condition, and throwing the coin, or a coin, upon the desk of the plaintiff, said to the latter, in substance, that it was not his, that it did not come out of his bag, that he had his money counted in the presence of others before he brought it to the plaintiff, and that the plaintiff had taken the said coin out of his sleeve. To this the plaintiff replied, that the defendant would have to pay the amount, and that he (plaintiff) would take it out of his salary. There were a few other words, and then defendant applied to the plaintiff certain epithets, which are unfit for publication, invited him outside to be kicked, and, the invitation not being accepted, left the place. There were present at the time, within a few feet of the parties, three other collectors of the contracting company, and, a little further off, but within ear shot, a bookkeeper for another business house, the office of which is in the same apartment. These four witnesses, with the plaintiff, all give substantially the same testimony, which is to the effect, as above stated. There was no one else present save the defendant, who denies that he made use of the bad language and epithets attributed to him, and says, referring to the occasion of his returning to the office, which is admitted, “I said to him like this” (witness making a “motion with his hands), this is not mine, you can have that” (witness “motioning with his hands to Mr. Germann). “He says to me, TTou are a---liar.’ I was outside of the railing. He had in his “ hand a book or ledger. The safe was in this position” (witness indi- “ eating). “He had the safe open, like in this manner” (witness indi- “ eating). “He put the book in the safe and he runs back to the desk. “I says, don’t put your hand on that drawer; I says, ‘You punch peo- “ pie in this place, but you don’t punch me. You may punch Dagoes, “ but you won’t punch me’. He says, ‘You--rat, you’ll have “ to pay for that’, meaning the counterfeit dollar. I says, ‘I have been “ doing that ever since I have been working here.’ ”

“ Q. — Did you curse him? A. — No, sir;” etc.

“ Q. — What did you tell him when he called you a-liar % A. — T “ says, ‘You’re another one’. I asked him to come out of the office and “ I will punch your hea.d. These are the words I passed as I was going “ out of the office, ‘I will punch your head’. I passed those remarks as “ I was going out.”

It further appears, as a fact, that, before bringing in his collections upon the day in question, the defendant had had the money counted bjr a friend, who testifies that he made a memorandum of the amount upon a slip of paper, which is filed in evidence, and from which it appears that there were $51.35 in silver, and $84.00 in currency. And when the defendant left the office of the company, upon the first occasion, he went back to his friend and asked him whether, in counting the money, he had seen the piece which defendant exhibited to him (being the piece which he, defendant, had received back from the plaintiff). His friend assured him that he had not, and he testified, as a witness in the case, that there was no such piece among the coin counted by him. It was, then, with this assurance that the defendant returned to interview the plaintiff, with the result as has been stated. There was some testimony offered, for the purpose of showing that the plaintiff was aggressive, and some to show that the defendant is quarrelsome, but nothing that has any appreciable bearing upon the case; and we finish our reading of the record with the Conviction that the defendant wrongfully, and in hearing of, at least, four other persons, applied to the plaintiff epithets which are too vile, fon repetition. We have no doubt-that he was exasperated at finding the silver dollar returned upon his hands, and that, after consulting his friend, he believed, for the time at least, that there was some mistake and that he was imposed upon. But in this he was entirely mistaken. In view, however, of the fact that he spoke in the heat of passion, and that it was no doubt «-o understood by those who heard him, and hence, that the injury to the plaintiff was not so great as it might otherwise have been, we will fix the amount of damages to be awarded at one hundred dollars.

'It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that there now be jugment in favor of the plaintiff, Henry Germann, and against the defendant, Paul J. Crescioni, in the sum of one hundred, dollars ($100.00) with costs in both courts.


source: Caselaw Access Project

author: Provosty, J.

license: Public Domain

text:
    No. 13,951.
    I. D. V. Logan et als. vs. Parish of Ouachita et. als.
    Syllabus.
    Article 291 of the Constitution of Louisiana providing, as follows: “Other taxes “ may be levied by the Police Juries for road and bridge purposes, not to ex- “ ceed five mills for five years on the property of the parish, or any ward “'thereof, where the rate of taxation and the purpose thereof shall have “ been submitted to the property tax-payers of said ward or parish entitled “ to vote under the election laws of the State, and a majority in numbers and “ value of those voting at said election shall have voted in favor thereof,” is self-operative, and an enabling act by the Legislature is not needed to enable the Police Juries to proceed to hold an election to take the sense of the taxpayers on the Question of the levy of the tax in question.
    APPEAL from the Sixth Judicial District, Parish of Ouachita— ■HfflZZ, J.

      Stubbs & Bussell, for Plaintiffs, Appellants.

      William Francis Millsaps, for Defendants, Appellees.
   The opinion of the court was delivered by

Provosty, J.

Article 291 of the Constitution is as follows:

“Public Roads.
“The Police Juries of this State may form their respective parishes “ into road districts; and in order to raise funds for the purpose of con- “ strueting, mantaining and repairing the public roads and bridges of “ their parishes, they are authorized to set aside at least one mill per “ annum of the taxes levied by them, and to impose a per capita tax of “not more than one dollar per annum upon each able-bodied male “inhabitant of the parish between the ages of eighteen and fifty-five “ years, and to levy an annual license of not less than twenty-five cents, “nor more than one dollar per annum upon each vehicle, including “bicycles kept and used for locomotion over public roads, in their re- “ spective parishes; which license may be graduated. The provisions “ of this article relative to the per capita tax shall not be operative in “ incorporated towns and cities that maintain their own streets.
“To carry into effect the provisions of this article the Police Jury “ may enact' such ordinances of a civil nature as may be necessary to “enforce the property and license tax,'and of a criminal nature to “ enforce the per capita tax. Other taxes may be levied by the Police “ Juries for road and bridge purposes, not to exceed five mills for five “years on the property of the parish, or any ward thereof, where the “ rate of taxation and the purpose thereof shall have been submitted to. “ the property tax-payers of said ward or parish entitled to vote under “ the election laws of the State, and a majority in numbers and value “ of those voting at said election shall have voted in favor thereof.”

Under this ’article the Police Jury of the Parish of Ouachita levied a tax of three mills; and the plaintiff has enjoined the collection of this tax, on the ground that the said article is not self-operative, and that no enabling act has been passed by the legislature putting it into operation.

It being conceded that no enabling act has beenl passed by the legislature, the case reduces itself to the question whether Article 291 is self-operative. The article is one of four found to themselves in a division of the Constitution, under the caption “Public Roads.” The four articles are evidently companion articles, parts of one piece of legislation. On the face of this piece of legislation, as a whole, is plainly written, the intention of the framers of our Oonstitution to devise a scheme for the improvement of the public roads, and to put the whole matter in charge of the Police Juries with full and ample powers in the premises. Such being the plain intention, and the end being the promotion of important and beneficial public objects, it is proper to give to the legislation a construction liberal and large. Walcott vs. Pond, 19 Conn. 597.

Self-operativeness has unquestionably beein accorded to three of these four companion articles; why should it have been withheld from the fourth? A.s to two of the three different taxes authorized by the article, not only is legislative assistance not needed, but legislative interference is by implication prohibited; why, then, should legislative aid be needed as to the third tax ? As to two of these three taxes, there is conferred on the Police Juries most unusual and extraordinary powers of legislation. The provision reads as follows: “To carry into effect the provisions of this article the Police Juries may enact such ordinances of a' civil nature as may be necessary to enforce the property and license tax, and of a criminal nature to enforce the per capita tax.” Why, then, after this, should there have been withheld from the Police Juries as to the third tax the power to regulate matters of mere detail?

We shall adopt no such construction. As to this third tax all essentials are fully- provided for. Power to levy the tax is conferred. The assessment and collection of the tax are fully provided for by the general tax laws of the State. The manner of consulting the tax-payers is provided for sufficiently by the specification that it shall be by an election. Thé qualification of the voters is defined; and what shall constitute a majority for the purpose of carrying the tax is determined. These comprise all the essentials. The manner of holding the election could well be left to the discretion of the Police Juries. An election means a fair election, and what shall constitute a fair election is not a matter needing to be expounded by statute, so that any abuse on the part of the Police Jury of the discretion confided to it in the premises could easily be righted by the courts.

Judgment affirmed.


author: Monroe, J.

text:
    No. 13,962.
    State of Louisiana vs. George Benjamin.
    Syllabus.
    A motion for a new tria*l is, in a large measure, left to the discretion of the tria! judge, and'his refusal to grant it will not be reversed in the absence of satisfactory evidence that such discretion has been abused.
    APPEAL from the Twenty-first Judicial District, Parish of Iberville — Claiborne, J.

      Walter Guión, Attorney General, and Albin Provosty, District Attorney, (Lewis Guión, of counsel,) for Plaintiff, Appellee.

      Hebert & Hebert, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The defendant having been convicted of larceny and sentenced to imprisonment at hard labor, presents his case to this court upon a bill of exceptions to the refusal of the judge a quo to grant him a new trial. The bill relied on sets forth that the mover was convicted on circumstantial evidence, consisting of the fact that a pocket-book, containing two credit slips with 'his name on them, was found in the room from which the articles alleged to have been stolen were taken, and that, since the trial, he has discovered evidence, of the materiality of which he was previously ignorant by reason of the fact that 'he was without counsel to advise him; and said bill sets forth the character of the evidence, and the names of the witnesses upon which, and upon whom, the defendant relies, but alleges that he was unable to obtain the affidavits of such witnesses in support of his motion, because of their hostility. It further sets forth that the defendant desired to testify in his own behalf, but did not do so because he was ignorant of his rights. There is also an objection that he was sentenced too soon after his conviction.

The statement of the trial judge is, that the accused furnished a list of witnesses to be summoned on his behalf, and that they were summoned and testified; that, being asked whether he had any further evidence to offer, he answered in the negative; that hó did not ask for counsel, and made no objection to his sentence; that his motion for new' trial was not supported by the affidavits of the witnesses; and that the evidence to be obtained, as set forth in said motion, could have no material bearing in the case and would have no weight in determining the verdict, even if it had been offered on the trial.

It appears upon the face of t'he record that th§ defendant was convicted and sentenced March 29th, 1900, and the bill of exceptions states that he employed counsel, thereafter, upon the same day. It further appears that the motion for new trial was filed April 1st, heard and submitted April 3rd, and refused April 9th. As the judge states, said motion was unsupported by the affidavits of the witnesses named in it, nor is it supported by any affidavit save that of the defendant himself. And no witnesses appear to have been summoned, and no testimony was taken in its support. Under these circumstances, we find nothing to take the case from within the rule that “motions for new trial are, in a large measure, left to the discretion of the trial court. The refusal will not be reversed in the absence of showing that the court abused its discretion.”

State vs. Venerables, 46 Ann. 215; State vs. Bailey, 50 Ann. 537; State vs. Prade, 50 Ann. 914.

Judgment, affirmed.


text:
    No. 13,798.
    State of Louisiana vs. Maurice Biagas.
    Syllabus.
    On a trial lor morder, all twelve of the jurors must concur to find a verdict' for manslaughter; nine jurors concurring cannot find a verdict.
    APPEAL from the Sixteenth Judicial District, Parish of St. Landry —Lewis, J.

      Walter Guión, Attorney General, and B. Lee Garland, District Attorney, (Lewis Guión of counsel), for Plaintiff, Appellee.

      John W. Lends and Charles F. Garland, for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

The defendant was tried for murder, wás convicted of manslaughter and sentenced; and he appeals.

lie asks that the verdict and the sentence be set aside, on the ground that the verdict was found by only eleven jurors; whereas, the trial being for murder, the punishment of which may be capital, the concurrence of all twelve jurors was necessary under Article 116 of the Constitution. This article reads as follows:—

“ Cases in which the punishment may be at hard labor shall be tried by a jury of five, all of whom must concur to render a verdict; cases in which the punishment is necessarily at hard labor, by a jury of twelve, nine of whom concurring may render a verdict; cases in which the punishment may be capital, by a jury of twelve, all of whom must concur to render a verdict.”

The punishment of manslaughter cannot be capital, but is necessarily at hard labor; that of murder may be capital. For either murder or manslaughter the jury must be of twelve; but for manslaughter nine concurring may find a verdict, whereas for murder all twelve must concur. Under our statutory law the jury may always in a case of murder bring in a verdict for manslaughter.

This then being the legal situation, counsel for the State argue that a trial for murder is a dual trial, it being also a trial for manslaughter; and that in so far, or inasmuch as the trial is for manslaughter, nine jurors concurring may render a verdict. The argument looses sight of the fact that a verdict of guilty of manslaughter on a trial for murder is a dual verdict, it being also a verdict of not guilty of murder (State vs. Byrd, 31 Ann. 419); and that the latter verdict cannot be rendered by a concurrence of less than twelve jurors. A verdict that saves the prisoner’s neck is a verdict in a case in which the punishment may be capital, and the Constitution is express that “cases in which the punishment may be capital shall be tried by a jury of twelve all of whom must concur.” The twelve are required by the Constitution not alone for the prisoner’s conviction, but as well for his acquittal. A verdict in such a case if found by any number of jurors less than twelve is null and void; as null if found by eleven as if found by two or three.

The verdict and the judgment purporting to be founded thereon are decreed to be null and void, and the case is ordered to be proceeded with according to law.

Breaux and Blanchard, J. J., dissenting — the latter handing down an opinion giving reasons for dissent.


author: Monkoe, J.

text:
    No. 13,638.
    E. D. Moore vs. W. R. Pickering Lumber Co.
    Syllabus.
    1. Where an employee in a saw mill, whilst on his way to discharge a duty whi"h he has been ordered to perform, in passing along one of the open, public thoroughfares of the mill, stops to exchange a remark with a fellow em ployee concerning the operation of the machinery of the mill, and is struck and injured by a belt which breaks at the moment, he will not be held guilty of such contributory negligence as will preclude his recovery of damages because he happened to stop in front of (though eight feet away from) the pulley which carried the offending belt. If the place was too unsafe to be used for such a purpose it ought not to have been kept open as a common passage or thoroughfare.
    2. Nor is it a sufficient defense to say that he was not, when injured, engaged in the discharge of any work for the mill, but was merely idling, since it was not inconsistent with the proper discharge of the duty to which he was assigned that he should have exchanged a few words with a fellow employee concerning a matter of common interest to them and to their employer.
    Verdict and Judgment for $10,000 reduced to $3,500. 3.

      APPEAL from the Twelfth Judicial District, Parish of Vernon— Lee, J.

      Egan & Pegues for Plaintiff, Appellee.
    Pwjo & Moss, for Defendant, Appellant.
   The opinion of the court was delivered by

Monkoe, J.

This is an action in damages for personal injuries which the plaintiff claims to have sustained whilst in the employ of the defendant, and by reason of defendant’s negligence.

The defence is that whatever injuries may have befallen the plaintiff were the results of his own negligence, in that “he left his post of duty and exposed himself in a dangerous and hazardous position,” etc.; and, “in the alternative”, that, if plaintiff was injured in the manner set forth, the proximate cause of such injury was the omission of a fellow servant properly to discharge his duty, and that the plaintiff had assumed the risk of such omission and is therefore not entitled to recover.

The evidence, in which there is no serious conflict, establishes the following facts, to-wit:

The defendant company, during the year 1901, and prior thereto, was operating a saw mill in the parish of Vernon, for the purposes of which it employed about 150 men.

On or before the 1st of March, 1900, the mill was “shut down” for repairs and for the putting in of a new engine, and the plaintiff was, at that time, employed in the capacity of mill-wright and general helper.

It does not appear that his employment was limited to the particular work which was then undertaken, or that there was any understanding to the effect that it should terminate when that work was completed. On the contrary, he seems to have been employed as a general utility man, whose services might have been needed in such an establishment the year round. At all events, work having been resumed on the morning of March 19th, he was still in the employ of the defendant.

The evidence shows that the adjustment of certain! “line shafting” was not altogether true, that one of its bearings had a tendency to become heated; and that the plaintiff who though not continuously occupied at any one thing, had been engaged in various jobs during the day, was instructed by the foreman to watch said bearing, and, in the event of its becoming heated, to take such steps as were necessary in the premises, the idea being' that he was either to oil the bearing, or call the attention of the man employed as oiler to it. Acting in accordance with these specific instructions, the plaintiff, between three and four o’clock in the afternoon, was going to inspect the bearing, or “box” in question, when he met one Hinson, another employe of defendants, and stopped for a moment to exchange a remark about a “hot box” in another x>art of the mill.

The shaft which has been mentioned was in position five feet above the level of the floor, suxoported by two horizontal beams, six feet apart, the x>oints of contact between the shaft and the beams being the bearings where the heating was feared. Midway between these two beams, a driving pulley, four feet in diameter, and carrying a belt sixteen inches wide and forty feet long, was attached to the shaft.

■The place at which plaintiff stopped was in a thoroughfare, at a point about eight feet from this pulley and equidistant between it and a stairway leading into the engine room. And whilst he was thus stopped, the belt, which the pulley was carrying with great velocity, parted, and flying into space, struck him with such force as to lift him from the floor and to break both of his legá. It appears that the oiler, for his convenience, in order to get from the bearing ón one of the beams mentioned to the bearing on the other, had laid a plank across the two beams, at a distance of about three feet from the pulley, and between the pulley and the place wherd plaintiff received his-injury, and it is, no doubt, a fact that the plaintiff might have crossed in front of the pulley on this plank, instead' of passing along a thoroughfare some five feet away; or, he might have made a circuit which would have obviated the necessity of passing in front of the pulley at all. There is nothing to show, however, that he knew, or had any reason to suspect, that the belt which inflicted the injury was defective, or that the thoroughfare through which he had undertaken to pass was dangerous and should have been avoided. Upon the other hand, it is shown that Striker, the foreman, some time after November 1st, 1899, notified Mace, the superintendent, that “he had better order a new belt, as the one in use was liable to give out — the laps were beginning to show loosening, and better have another to take its place.” It appears from Striker’s testimony that he knew enough about the belt from personal-observation to justify his giving this notice, though he also testifies that he never really examined it, and that his idea in providing a new one was to avoid delay in case it gave out. He also testifies that before resuming operations, on March 19th, he had some conversation with Boatman, a man whose special duty it was to look after the belts, from which he concluded that the belt in use was still safe, and hence that it was not then necessary to substitute the new rubber belt, which several months before had been ordered and received at the mill. Mr. Striker, however, distinctly disclaims having examined the belt at any time, and although he intimates that there might have been some doubt upon the subject of the extent of his authority over Boatman, with respect to' belts, we understand him, upon the whole, to mean, that if he had directed that the new belt should be put on, his orders would have been obeyed.

Boatman testifies that he was the “belt man” for the mill and his examination proceeds as follows, to-wit:

“Q. — You say you had inspected that (belt) previous to the accident ? A. — Yes, sir; I had. Q. — Did you find anything wrong about that belt ? A. — -In a practical way, yes, sir. Q. — What was the matter with the belt ? A. — It was sixteen inch, double leather — in making the belts “nowadays, they make four and a half inch joints, or laps; this lap, “you understand, makes the lap of the belt break joints. Q. — Was “there anything wrong with those laps? A. — It needed mending; I “spoke to Mr. Striker, asked him; suggested that he get some leather n that I would repair the belt, that by a little work it would run, prob- “ ably two years. Q. — What was the matter with the belt, Mr. Boat- “ man ? A. — That the joint where it was cemented had become unce- “ mented about two and a half inches back( Q. — Did you do anything “for the belt? A. — I put some rivets in it. Q. — Did you or did you “not condemn that belt? A. — Well, when I go over a belt to work on “it, I take it off the pulley, for I cannot work them on the pulley. “When they are tight enough to work without a tightener, it is too “ tight to work, and when it has a tightener on it, it is too tight to work “ on, particularly when it is a round tooth shaft, or pulley; you have “ to take it off and put it on a bench or on the floor. Q. — Did you, or “ did you not, condemn that belt? (Objected to and the objection overruled.) A. — In a practical way, it was liable to have a shut down; “might have been a month or two months; or not but a day or two. “ Q. — Did you or did you not condemn that belt? A.- — The word ‘con- “ demned’ was not used when I was talking to Mr. Striker. I told him “ it was not practical to use it without doing some repairing; he sug- “ gested it might run, and I told him it might run a month or two or “ only a day or two.”

This witness testifies that persons who are in the neighborhood of a belt that breaks or jumps from a pulley are liable to be injured.' Considering the testimony thus recited, in connection with that of the foreman, Striker, we conclude that, whilst the latter abstained from mak ing, or neglected to make, a critical examination of the belt in question, he was sufficiently informed of its condition to know that it was likely to break at any moment; and that 'he continued said belt in use, notwithstanding this information, and notwithstanding the fact that he knew, or ought to have known, that its breaking would be attended with danger to anyone who might be in the neighborhood at the time.

Upon the subject of the extent of the plaintiff’s injuries, it is shown that both bones of the left leg were broken about three and a half inches above the ankle, and were also broken, at a point about four inches higher up, and -that the fractures were comminuted, that is to say, the bones were crushed. It also appears that the left ankle was badly sprained, and that there was a simple fracture of the large bone of the right leg, below the knee. At the date of trial, nearly four months after the accident, the plaintiff was barely getting around on crutches, the left ankle being stiff and considerably swollen, and the leg showing a great deal of “callous” which had not been absorbed, and which will never be entirely absorbed. Several physicians were examined, and the concensus of opinion was, that the plaintiff must have suffered a great deal; that the injury received by him will have the effect of permanently weakening his left leg; and that his right leg will recover its strength and be practically as good as before. We gather from this testimony that it was not considered likely that he would be able to do any physical work within ten months from the date of the accident. It is shown that he was thirty years of age and was earning $2.25 per day.

A good deal of attention was devoted during the trial in the lower court to the plank which the oiler had placed across iri front of the line shaft in order to facilitate him in going from the bearing, or “box”, on one beam to that on the other, the idea being, apparently, that' the plaintiff was guilty of negligence in not having sought to reach the bearing, which he started to inspect, by means of said plank rather than by the route which he was pursuing when injured. But, as this theory is not referred to in the brief, and finds no support in the facts disclosed, we assume that it is not insisted on. The defendant’s counsel, with equally good reason, appear to have abandoned that portion of the defence which was predicated upon the theory that the injury to plaintiff was caused by the negligence of a fellow servant, it being clearly established that the foreman of the mill knew, or ought to have known, that the belt which inflicted .the injury was in such a condition that it was likely to break at any time, and that, in the event of its breaking, there would be danger to those who might be nearby.

The positions upon which the defendant relies are, therefore, first'. that plaintiff, when injured, was not engaged in the discharge of any duty, but was merely idling about the mill, and drawing wages, although improperly carried on defendant’s pay-roll; and second, that the amount awarded is excessive.

The first of these positions is hardly authorized by, or consistent with, the defence, as set up in the answer, which distinctly recognizes plaintiff’s status as* an employee. It is, moreover, unsupported by the evidence, which shows that palintiff was originally employed as millwright and general helper; that he was expected to do anything that he was ordered to do; and that, upon the day of the accident, he had been engaged on various jobs and, when injured, was acting under specific instructions to inspect a bearing of the line shaft, and was on his way to discharge that duty, when, meeting another employee, he stopped to exchange a remark' concerning a “hot box,” or bearing, in another part of the mill, and at that moment met with the accident.

It is said that this was idling, and that plaintiff was guilty of negligence in stopping in a dangerous place, i. e., in) front of the pulley which carried the belt by which he was injured. We are unable to concur in this view. Thé mill had been started in operation that day, and there were “hot boxes,” apparently, in several directions. At the moment when plaintiff was injured, the oilers who testified in the case were engaged in pouring water on one or more of them in .order to cool them off, and to hold that plaintiff was guilty of idling, merely because he stopped long enough, whilst on his way to inspect another box, to inform Hinson that there was a “hot box” in the back part of the mill, would be unreasonable. And, equally unreasonable would it be, to hold that he was guilty of contributory negligence in stopping where he did. We attach to this opinion a diagram taken from the brief of defendant’s counsel and which is a copy of an original made at defendant’s instance, save as to the plank which has been mentioned, and which escaped the attention of the engineer by whom the original. was made, but which appears in the copy and is marked "R. Board.” We have also indicated upon this copy the direction from which the plaintiff had come, and the'particular “bearing” that he was on his way to inspect. From this it will be seen that he had taken the most natural and direct route to reach his .destination, and that, when injured, he was in a passage, or thoroughfare, intended for general use, and only about ten feet in front of the stairway leading to the engine room. Under these circumstances, he cannot be held' to have been guilty uf contributory negligence with respect to' the accident which happened because he stopped for a moment in such a place to make a remark to a fellow employe concerning the operation of the mill in which they were both engaged. If the place at which they stopped was considered safe enough to be used as a thoroughfare, the employees of the mill had a right to presume that it was safe enough to justify such use of it as is commonly made of thoroughfares. And if it was so unsafe that anyone stopping there for a moment should be held guilty of negligence, it ought to have been closed entirely by the owners of the mill, and not kept open for the general use of all who had occasion to pass that way, and who might stop to exchange casual remarks, or to speak with each other concerning the business in which they were engaged.

Upon the question of amount, we are of opinion that $10,000 is excessive. The age of the defendant, his earning capacity, and the character and probable effect of his injury have been stated, and these elements, together with the jurisprudence of this court in cases of similar character, being considered, we conclude that the amount allowed should be reduced to $3500.00. See Dickson vs. Pittsburg & Gulf Lumber Co., 52 Ann. 1109, and authorities there cited.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount allowed therein from ten thousand dollars to three thousand five hundred dollars, and, as thus amended, that said judgment be affirmed; the appellee to pay the costs of the appeal.


text:
    No. 13,805.
    Police Jury of the Parish of Avoyelles vs. Jules M. Descant, Mayor, et als.
    Syllabus.
    1. Ballots containing the words, “For Prohibition,” and “Against Prohibition,” are sufficiently intelligible for the purposes of an election called, agreeably to the provisions of Act 76 of 1884, by proclamation announcing such purposes in specific terms.
    2. It is competent for a police jury, proceeding under the authority of Act No. 76 of 1884, in adopting, for submission to the voters of the parish, a regulation with respect to tile sale of intoxicating liquors, to provide that such regulation shall take effect in the future. And, in such case, the regulation so adopted receiving the approval of a majority of the regular voters of the parish in the manner required by law, no municipal corporation or subdivision of such parish can interfere therewith until the expiration of one year from the date at which it shall have taken effect.
    APPEAL from the Fourteenth Judicial District, Parish of Avoyelles — Gouvillon, J.

      J. W. Joffrion, District Attorney, for Plaintiffs, Appellants.

      Adolph Yallery Goco, for Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, J.

It appears from the record in this case that, upon February 20th, 1900, the Police Jury of the parish of Avoyelles adopted an ordinance directing that an election be held upon April 3rd, following, “throughout the parish”,-to take the ,sense of the voters as to whether the sale • of intoxicating liquors should be licensed from and after January 1, 1901, the form of ballot prescribed being “For Prohibition”, for those who might be opposed to. such licensing, and, “Against Prohibition”, for those who might be in favor of it; that an election was held, agreeably to the provisions of said ordinance, in which the citizens of the town of Mansura participated (giving a majority in favor of prohibition), with the result that there were 1055 ballots cast “For Prohibition” and 237 “Against Prohibition”, which result was duly promulgated. It also appears that the town council 'of Mansura thereafter ordered a similar election in that town, which was held in July 1900, and at which the votes cast, twenty-three in number, were against prohibition, whereupon the Police Jury instituted this suit enjoining the authorities of said town from issuing licenses or otherwise taking action in opposition to the will of the majority of the voters of the parish, as expressed at the general parish election. It further appears that the, then, mayor, Jules M. Descant, and the, then, secretary, Abel L. Ducote, being opposed to the position assumed by the town authorities, resigned their positions and were succeeded by Thomas L. Roy, and Emile L. Berridon, respectively, who were, accordingly, made parties defendant.

The defense has been narrowed down to two propositions, viz:

1. That the parish election was irregular and illegal because the question submitted was, “Prohibition”, or “Anti-Prohibition”, and not “License” or, “No License.”

2. That, should said election be held to be regular, its effects should be restricted to the year immediately following the date upon which it was held.

The law applicable to the case is to be found in Act No. 76 of 1884, which reads as follows, to-wit: “* * * That the Police Juries of the “ several parishes of this State, the municipal authorities of the several “ towns and cities, and the City Council of the City of New Orleans, “ shall have the exclusive power to make such rules and regulations for “ the sale or prohibition of the sale of intoxicating liquors as they may “ deem advisable, and to grant or withhold licenses from the drinking “ houses and shops within the limits of any city, parish, part of a par“ish, or town, as a majority of the legal voters of any city, ward of a “ parish or town, may determine, by ballot; and the said ballot shall be “ taken whenever deemed necessary by the Police Juries of the several “ parishes, the municipal authorities of the several cities and towns, and “ the City Council of the city of New Orleans; provided, that said elec- “ tion shall not be held more than once a year; and provided further, “ that whenever at an election, held under this section, the majority of “ the votes cast in a ward, if only a ward election has been held, or the “majority of votes cast in a parish, if an election has been held for a “ whole parish, shall be against granting licenses for the sale of intoxi- “ eating liquors, said vote or decision shall govern and control the ac- “ tion of any ward, incorporated town, or city, within the limits of said “ ward or parish, as the case may be, as fully and completely as if said “ election had been held by authority of said town or city.”

In State vs. Harper, 42 Ann. 313, and Police Jury vs. Harper, 42 Ann. 777, this court, whilst holding that, under the foregoing statute, an ordinance of a Police Jury, imposing penalties, not known to the laws of this State, for the retailing of spiritous liquors, was unauthorized, held, that it was competent, under said statute, for the Police Jury to “prohibit the sale of intoxicating liquors within the limits of the parish”, and that any one violating the prohibition subjected himself to the penalties imposed by R. S. 1215. In Garrett, Blanks et als. vs. Mayor, 47 Ann. 618; Citizens and Taxpayers vs. Board, 49 Ann. 641; and Police Jury vs. Town of Mansfield, 49 Ann. 796, it has been decided that an election held throughout a parish, under the statute in question, is equally binding upon any ward or municipality within such parish as though held therein exclusively; but that, at the expiration of the year contemplated by the statute, such ward or municipality may hold a local election, and re-submit the question to its own voters.

Considering this law and jurisprudence with reference to the ground of defense first mentioned, there seems to us to be no answer to the proposition, that the Police Jury, plaintiffs herein, were entirely within the statute in the measures adopted by them for the “prohibition of the sale of intoxicating liquors,” within the parish of Avoyelles, since the authority exercised is conferred in express terms and has been expressly recognized by this court. It is true, that the question voted on might, with equal propriety, have been submitted to the electors of the parish by means of ballots reading, “Eor granting licenses”', and, “Against granting licenses”, or, reading,“For withholding licenses”, and,“Against withholding licenses”, as no particular form of ballot is prescribed, and the result, so far as concerns the obtention of the views of the majority of the voters, would have been the same. The form of ballot adopted was, however, preferable, as it is a matter of common information, that the word “prohibition”, when used in politics and elections, refers to the use of intoxicating liquors. Aside from this, the proclamation calling the election distinctly announced that it would be held “to take the sense of the regular qualified voters of the said parish of Avoyelles, whether or not intoxicating liquors shall be licensed or sold within the parish after January 1st, 1901”, etc., and “That the form of ballot shall be, ‘For prohibition’, for those favoring the prohibition of the sale of intoxicating liquors, and ‘Against prohibition’ for those favoring licensing the salé of intoxicating liquors.”

The other ground of defense set up is equally untenable. The law gives to the Police Juries “exclusive power to make such rules and regulations,” etc., as “a majority of the legal voters,” etc., may determine, by ballot, with the limitation, that elections shall not be held more than once a year. In this case, the regulation was that the sale of intoxicating liquors should be prohibited after January 1st, 1901. It is too well settled to admit of discussion, that laws may be enacted in the present, to take effect in the future.,State ex rel. Holson vs. Recorder, 48 Ann. 1384; State ex rel. Kinberger vs. Mayor, 51 Ann. 919; State ex rel. Gilmore vs. City, 52 Ann. 94; Lloyd vs. Hamilton, 52 Ann. 861; Feek vs. Township Board of Bloomingdale (Mich. Supr. Court), 10 L. R. A. 72. And the ordinance adopted by the defendants, the execution of which is here in joined, was so intended, that is to say, it was adopted in 1900, to take effect in April 1901. Attention is called to the fact that in Police Jury vs. Town of Mansfield, 49 Ann. 796, it was held that the defendant town was at liberty to hold an election, as to local option, upon the expiration -of twelve months from the date of the election which had been held under the authority of the Police Jury of the parish; but, that was because the regulation adopted at the election last mentioned took effect at once, and there was no attempt on the part of the town to interfere with its operation during the year following that date. In the instant case, however, the defendants held t'heir election ’within four months after the parish election, in which they had participated, and they now demand that the regulations adopted by them shall take effect within four months after the taking effect of the regulations adopted by the parish. It may be remarked, in conclusion, that the record, and the able argument of the plaintiffs’ counsel, furnish an excellent reason for the action of the plaintiffs, in fixing January 1, 1901, as the date at which the proposed parish regulation should take effect; in this, that the plaintiffs and the State had already issued, and had been paid for, liquor licenses for the year 1900, and, even assuming that such licenses could, and, in the case of the State, would, have been withdrawn, much inconvenience and injustice must, necessarily, have resulted. It may, also, be said, that, in most cases, and particularly in large parishes or cities, it would be, certainly, difficult, if not impossible to enforce a regulation, submitted for adoption under the law which we are considering, from the date of the election at which it may have been acted upon, for the reason that the result of such action eannoii be known until the returns of the election have been compiled, a process which sometimes involves considerable delay.

Judgment affirmed.


text:
    No. 13,936.
    State of Louisiana vs. Asa Burton.
    Syllabus.
    ' 1. The boundary line between Louisiana and Texas is along the middle of the Sabine river.
    2. The courts of Louisiana have no jurisdiction of a crime committed on the Texas side of this line.
    APPEAL from the Twelfth Judicial District, Parish of De Soto— Lee, J.

      Walter Guión, Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión of counsel), for Plaintiff, Appellee.

      H. T. Liverman, (James T. Polly of counsel), for Defendant, Appellant. ’
   The opinion of the court was delivered by

Provosty, J.

The defendant was convicted of selling liquor without’ a license, and from a judgment overruling his plea to the jurisdiction, he appeals. The case comes to us upon the following agreed statement of facts:

“It is agreed that the following is a statement of the facts in the cases pending in said court, Nos. 2453, 2454, 2462 and 2471, wherein the State of Louisiana is the plaintiff in each case, and Asa Burton is the defendant in'each case, viz: That the defendant has anchored in the Sabine river a boat; that said boat is anchored and tied to the Texas bank of said river and is resting in the water of said river between 35 and 50 feet west of the center of said river on the Texas side of same and in Shelby county, Texas; that said river at said point where said boat is resting therein is a navigable stream.
“It is admitted that the defendant about the time stated in the information and indictments sold from said boat, located' as before stated, spirituous and intoxicating liquors without first obtaining a license so to do from the Police Jury of De Soto parish, Louisiana, or any other lawful authority therein.
“It is admitted that the defendant has a license from the Internal Bevenue Department of the United States for Texas to sell spirituous and intoixcating liquors in Shelby county, Texas; that the only place where the defendant has sold spirituous and intoxicating liquors pursuant to said license is on said boat, located ini said river as before stated and that the internal revenue license as aforesaid is posted and tacked up'in said boat.
“It is further admitted that Shelby county, Texas, is prohibition, and that the boat on which whiskey was retailed was attached to the Louisiana shore by being directly attached to a gambling establishment by cable rope and the gambling establishment was attached to the Louisiana bank by a cable or rope and gang plank and located near the water’s edge of the Louisiana shore; that said boat has a skiff rope to facilitate the travel by skiff from the Louisiana shore to the boat; that he sold whiskey to people from Louisiana, and is prosecuted for these sales; that the boat is located in the open river'and not resting against the banks of the river; that the negro or negroes employed to wash bottles and glasses very often pull the skiff from the Louisiana shore to the boat, and back from the boat to the! shore.
“It is admitted that Burton lives, sleeps and eats in Logansport, La.
“This agreed to as a statement of the facts as far as it goes, but reserves the right to State and defense to contest the difference between them not herein stated.
“(Signed) Amos L. Ponder,
“District' A ttorney.
“(Signed) H. T. Liverman,
“(Signed) Jas. T. Poddy,
"Attys. for Deft.”

It being admitted in this statement of facts that the boat of the defendant “is anchored and tied to the Texas bank of the Sabine river and is resting in the water of said river between 35 to 50 feet west of the center of said river on the Texas side of same and in Shelby county, Texas,” and it being admitted further that the only place where the defendant has sold liquors is on said boat located in said river as before stated, we do not see how the plea to the jurisdiction can be contested. It cannot be contended that Louisiana courts have jurisdiction over Texas territory.

Sutherland on Stat. Constr., § 12.

That the middle of the Sabine river is the boundary line between Louisiana and Texas, see: — Act of Congress approved March 26th, 1804, and copied in Ray’s Digest of the Statutes of Louisiana, Vol. 1, page 27. Treaty between the United States and Spain made in 1819. Act of Congress of July 5th, 1848. Act of the Legislature of Texas, approved Nov. 24th, 1849, which act is under and in accordance with the Act of Congress of 1848. Act of the Legislature of the State of Texas, approved August 26th, 1856: Decision of the Criminal Court of Appeals for the State of Texas in Spear vs. State, 8th Vol., page 467. Preamble of the Constitution of Louisiana of 1812. See page 31 of Ray’s Digest of the Statutes of Louisiana, Vol. 1, page 31.

We do not see that the fact that the boat in question is tied to the Louisiana shore by means of a rope, and thereby made one, as it were, with a gambling establishment on the Louisiana shore — can make any difference in the matter. The jurisdiction of the Louisiana courts cannot be extended over Texas territory by means of a rope.

Nor do we see that Section 988 of the Revised Statutes of the State can have any application to the case. That section reads as follows:

“When any crime or misdemeanor shall be committed on the- boundary of two or more parishes, or within one hundred yards thereof, or within one hundred yards of any other boundary * * *, it may be dealth with, inquired of, tried, determined and punished in either of the parishes in the same manner as if it had been actually and wholly committed therein.”

Louisiana cannot extend the jurisdiction of her courts over Texas territory by act of her Legislature; so that the operation of the section must be restricted to territory within the State.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be set aside and that the plea of defendant to the jurisdiction be sustained and that the defendant be dismissed without day.


text:
    No. 13,926.
    The State of Louisiana vs. Frank Procella.
    Syllabus.
    1. Where the accused in a criminal trial considers that the conduct or language of the prosecuting officer is improper, he should invoke the action of the trial judge. Railing to do so, he will not be heard to complain in this court.
    2. Jurors, though not permitted to impeach their own verdicts, are competent to testify in rebuttal of charges of misconduct.
    3. Where there is neither bill of exception, nor assignment of errors, no alleged error in the charge can be considered, unless, upon its face, the charge complained of is glaringly unjust and erroneous.
    APPEAL from the Twelfth Judicial District, Parish of Sabine— Lee, J.

      Walter Guión, Attorney General, and Amos L. Ponder, District Attorney, (Lewis Guión of counsel), for Plaintiff, Appellee.

      Don B. Borelle, for Defendant, Appellant.
   The opinion of the court was delivered by

Monroe, J.

The defendant, having been convicted of manslaughter, and duly sentenced, has appealed, and presents his casé to this court by means of several bills of exception, as follows, to-wit:

Bill 1 sets forth that the district attorney", ‘in addressing the jury concerning the case, referred to one of the witnesses for the defense as “ an ugly, bandy-legged, 'knock-kneed, crooked-nosed imp of hell * * * Whereupon defendant reserved this bill to said language.”

It does not appear that any action by the court was invoked and the trial judge adds the following comment to this bill. “The district at- “ torney was criticising this witness about inducing his wife, who was “ a daughter of the deceased, to swear for the accused, and the district “ attorney, expressing himself, was a little more forcible than elegant, “to say the least. In fact, the argument on both sides took quite a “ wide range. I think the accused had a fair trial.”

The language used is undoubtedly open to criticism, but, as has been said by this court in eases heretofore decided:

“Had the accused desired any action on the part of the judge, he “ should have asked it.” State vs. Mack, 45 Ann. 1155. “To justify “this court in setting aside the verdict of the jury, approved by the “trial judge, on the-ground of improper remarks made by a district “ attorney, it would have to be very thoroughly convinced that the jury “ was influenced by such remarks, and that they contributed to the ver- “ diet found * * * The district judge, in this case, saw the jury, “ heard what the district attorney said, and listened to all the evidence “ adduced. If he thought that the verdict was not just, but was based “ upon prejudice resulting from anything said by the district attorney. “ we would be slow to believe that he would have overruled a motion for “a new trial, or let the verdict stand.” State vs. Johnston & Butler, 48 Ann. 90-1; State vs. Fourchy, 51 Ann. 241.

Bill No. 2 represents that as Mrs. Cole Baseus, a witness called for the defense, “was approaching the witness stand, the district attorney “ began to laugh at her, and smile at, and with, the trial jury, in a man- “ ner, in the judgment of the accused’s counsel, as was calculated to in- “ fluence the jury and to bring said witness to the stand as too contemptible to be worthy of belief.”

The trial judge was not called upon to interfere, and adds this statement to the bill: “ The witness came around, seemingly illustrated, o’- “ mad, and caused some merriment, and the court rapped for order. “ The jury was an extraordinarily good one, and I do not think they “ were, or could be, influenced by the above occurrence.”

The matter presented by the bill, under these circumstances, calls for no interference by this court.

Bill No. 3 was taken to the action of the court in overruling an objection to the district attorney’s exhibiting to the jury, in his closing argument, the shirt and suspenders said to have been worn by the deceased at the time of the homicide, said shirt and suspenders not having been referred to by him in his opening remarks, and the jury not having inspected them when the evidence was being introduced. The bill does not charge that the articles had not been offered in evidence during the trial, and it appears, affirmatively, that they had been so offered. The judge states that the district attorney was attemtping to show where the bullet entered the body of the deceased, in order that the position of the accused at the time of the shooting might be determined. We find no just cause of complaint disclosed by this bill.

Bill No. 4 represents that after the defendant had closed, the district attorney called to the stand one T. I. Cranford, the foreman.of a grand jury that had previously investigated the ease, and had failed to indict the defendant, for the purpose of impeaching one of the defendant’s witnesses, and that he produced a diagram, said to have been prepared by said Cranford, as showing the place of the killing, but which had not been offered in evidence, to the use of which defendant’s counsel objected, and that the objection was sustained, but that the district attorney, nevertheless, continued to hold the diagram in his hand, in interrogating the witness, in such a manner as to attract the attention of the jury to it. The trial judge says, upon this subject: “The dia- “ gram was in the hands of the district attorney, and the defendant’s “ counsel objected that the jury could see it, whereupon the court 3n- “ strueted the district attorney not to refer to the diagram, and it is my “ recollection that he then placed the same in his pocket. I do not “ think that the accused was in any way injured.” And this statement as to the facts is fully corroborated by testimony taken on the motion for new trial.

Bill No. 5 was reserved to the overruling of the motion for new trial. The motion in question recites the matters complained of in the bills of exception which have been considered, and sets up the further grounds; that the jury carried with them to the jury room the “Eree State,” a newspaper published near by, which had been issued just before the jury had been empaneled and which contained an item, reading: Court is still in session and the law-abiding people are gratified at the “course of proceedings up to the present time. Judge Leé seems determined to make men who defy the law to pay for it”;' and that, thereafter, the case having been submitted, the jury were brought back from the jury room into court, where there were law' books on criminal law to which they might have access, to spend the night. The evidence taken on the trial of the motion fails to show that there was any reading of papers by the jury or of books other than the bible. Upon the other hand, it does show that the night was cold; that there was no fire, place in the jury room; and that the jury was brought into the court, room after they had agreed upon their verdict, in order that the jurors might sleep on the floor, near the fire. The judge a quo failed to find any misconduct in what was done and properly overruled the motion.

Bill No. 6 was taken to the overruling of the objection of the defendant’s counsel to the admission of the testimony of several of the jurors tending to disprove the charges! -of misconduct. It is settled in this State that jurors cannot be heard, as witnesses, to impeach their own verdicts, but we are aware of no ruling to the effect that they are incompetent to testify in rebuttal of charges of misconduct, and the contrary doctrine is well established. Enc. of Pl. & Pr., Vol. 12, pp. 560.

The counsel for the defendant complains, in his brief, that the judge a quo “failed to charge the law as to dying declarations”, and “that, the .“ charge is not as full as to the law of self-defense, and is fragmentary, “ charging in various places what should have been better connected”, and that “the charge in the main, is too much from the standpoint if “ the State, and comes dangerously near indicating the opinion of the “ court, and that, too, adversely to the accused.”

There is no bill of exception to the charge nor assignment of errors in the record. Under these circumstances, no alleged error can be considered, unless the charge appears, upon its face, to be glaringly unjust and erroneous. State vs. Beaird, 34 Ann. 104; State vs. Curtis, 34 Ann. 1213; State vs. Ferguson, 37 Ann. 51; State vs. Melton, 37 Ann. 771; State vs. Mack, 45 Ann. 1155. The charge was reduced to writing, at the request of counsel, and appears in the record. It contains nothing in regard to dying declarations, and there is no reason, so far as we are informed, beyond the suggestion contained in the counsel’s brief, why any thing should have been said upon that subject. Upon the case, as presented by the record, it seems to us to be liberal in tone, consecutive in arrangement, sound in law, and absolutely non-committal as to the views of the judge upon the subject of the guilt or innocence of the accused.

Judgment affirmed.


author: Nicholls, C. J. Breaux, J.

text:
    No. 13,069.
    R. M. Walmsley & Co. and S. P. Walmsley vs. Jules A. Resweber; George W. Sentell & Co., Intervenors.
    Syllabus.
    A factor to whom a customer has delivered his negotiable notes to his own order and by him endorsed to secure him for advances made and to be made, subordinates his own rights under the notes and mortgage in favor of a second factor making advances to the same person, by transferring to him the notes with the maker’s consent to be held as collateral security until the latter’s advances made and to be made, are satisfied, at which time they are to be returned to the first holder.
    The notes under such an agreement pass with their mortgage to the second factor and his mortgage rights are unaffected by the fact that the transfer of the notes is made after their .maturity and that the accounts between the first factor and the common debtor may be subsequently settled and paid. (Levy vs. Ford, 41 Ann. 873.)
    A junior mortgage creditor has no ground of complaint so long as his own righ+s are not primed for a larger amount than they were before.
    In the case at bar the first factor at the time of such .an agreement was bound towards the second as security for advances already made to his customer, and in consideration of this transfer he was released as such.
    There were no equities existing at the date of the transfer.
    On Rehearing.
    Holders of notes, secured by mortgage, transferred in good faith, are entitled to hold them between themselves and their transferrors. Third persons had not acquired an adverse right prior to their transfer.

      As relates to tbe second series of notes, tbe condition being different, tbe right of the mortgage creditors, second in rank, is recognized as priming the mortgage first in rank to the extent that it was without consideration at the date that the mortgage creditors second in rank acquired their right.
    APPEAL from the Nineteenth Judicial District, Parish of St. Martin — Voorhies, J.

      Thomas J. Bemmes, Charles H. Mouton, James Legendre and Edward Righior, for Plaintiffs, Appellants.

      Albert Voorhies and Martin & Voorhies, for Intervenors, Appellees.
   The opinion of the court was delivered by

Nicholls, C. J.

On the rehearing, by Breaux, J.

Nicholls, O. J. The plaintiffs alleged that on the 21st of March, 1892, defendant, Jules A. Resweber, being indebted unto Beauregard L. Eournet and Cesaire B. Delahoussaye in the sum of three thousand dollars, subscribed six promissory notes, each for the sum of five hundred dollars, and bearing eight per cent, per annum interest from date, until paid, and made payable to his own order and by him endorsed and delivered to the said Fournet and Delahoussaye, the first of said notes maturing on the 15th of October, 1892, the second on the 1st of November, 1892, the third on the 15th of November, 1892, the fourth on the 1st of December, 1892, the fifth on the 15th of December, 1892, and the sixth on the 1st of January, 1893; and that to fully secure the payment of said six notes, in .capital and' interest, on the 21st day of March, 1892, by act passed before Alex. Y. Fournet, clerk, ex officio recorder of the parish of St. Martin, the defendant mortgaged and specially hypothecated in favor of said Beauregard L. Fournet and Cesaire B. Delahoussaye, and in favor of all future holders of said notes, certain described property in the parish of St. Martin.

That defendant, Jules A. Resweber, being indebted unto the firm of R. M. Walmsley & Co. in the sum of sixteen hundred and thirty-four dollars and ninety-seven cents, as shown by the note marked No. 1, which they annexed, upon which the said Beauregard L. Fournet and Cesaire B. Delahoussaye were sureties, and being also indebted unto Sylvester P. Walmsley, for which he, the. said defendant, made, subscribed and! delivered his promissory note for three thousand dollars (with, interest), which they annexed, on the third day of February, 1894, the said Beauregard L. Fournet and Desaire B. Delahoussaye, to be released as surety on the note of sixteen hundred and thirty-four dollars, aforementioned, with the written authorization and consent of the said Resweber and in accordance with a verbal agreement between him and PI. P. Fournet (who was then representing petitioners in this matter), transferred and delivered to petitioners in pledge the six mortgage notes as collateral security for the payment of the said note of sixteen hundred and thirty-fouk dollars and ninety-seven cents, and also to secure the payment of whatever indebtedness he, the said Resweber, owed or might owe to S. P. Walmsley, which indebtedness is evidenced by the aforesaid note of three thousand dollars, which they annexed.

That being the joint holders of the six first described mortgage notes transferred, given and delivered in pledge as collateral security for the paymentl of their respective claim against the said Resweber as averred, they had the right to enforce payment of the said six mortgage notes and to have the property mortgaged to secure their payment, seized and sold, the proceeds thereof to be applied to the payment of the indebtedness of Resweber to petitioners as averred and shown.

Petitioner S. P. Walmsley showed that the said J. A. Resweber was entitled to a credit of nine hundred and seventy-three dollars and twenty-two cents on his nóte of three thousand dollars annxed; said credit to be reckoned from the 7th of May, 1895, as shown by an account current statement and affidavit filed for reference.

In view of the premises they prayed! that Resweber be cited; that judgment be rendered against Resweber in favor of petitioners jointly for the sum of three thousand dollars, represented by his mortgage notes, described and annexed, with interest, and that the property described and mortgaged, to secure the full and entire payment of the six notes, which petitioners hold and owned in pledge as collateral, as averred, be seized and sold, and that the proceeds thereof be-first applied to the payment of the indebtedness of A. Resweber to petitioners, as averred and shown.

They annexed to their petition the act of mortgage referred to.

The defendant answered. He averred that during a period of several years, at about the time mentioned by plaintiffs in their petition, he was and remained in business with them on open accounts, sometimes aggregating yearly amounts as much as forty thousand dollars.

That of these dealings and transactions, which continued subsequently to furnishing the notes sued on in this ease and which consisted mainly in their advancing to him money for the purchase of cotton by him and his consigning and shipping'that cotton to them, no liquidation or settlement had yet been made. That during said period he purchased and shipped to said plaintiffs a large quantity of produce and cotton, which, as brokers and commission merchants, they sold for his account; the proceeds whereof, as understood and agreed, were to be applied first to the payment of respondent’s open account, and, accordingly, if any balance remained, to the extinction of the notes sued upon and at that time regularly held and owned by plaintiffs. That the cotton and other produce so consigned by him to them, and by them sold as aforesaid, realized more than sufficient to satisfy his indebtedness on open account with them, and if not fully, at least, enough to meet perhaps three-fourths of the debt evidenced by said notes.

Wherefore, he denied all and singular the allegations set forth in plaintiff’s petition and pleaded payment of the debt sued on in the premises.

He prayed that their demand against him be rejected.

George W. Sentell & Go. intervened in the suit.

They alleged that they were mortgage creditors of Resweber in the sum of four thousand four- hundred and forty-five dollars and sixty-five cents ($4445.65), as per act of mortgage recorded in the recorder’s office.

They especially denied that Resweber was indebted to any one upon the six notes of five hundred dollars each, sued upon. They averred that the said notes were given by him to Fournet and Delahoussaye merely to protect himself against the claims of petitioners and other creditors; that it was given without consideration and for a fraudulent purpose, and were, therefore, null and void. That after said notes were executed and their maturities arrived, they were turned over and delivered to Resweber. That long after their maturities and after Resweber became involved with R. M. Walmsley & Go. he returned the six notes of five hundred dollars each to B. L. Fournet and O. B. Delahoussaye, who were the representatives of R. M. Walmsley & Co., and they turned over those notes to the plaintiffs in this suit.

Intervenors averred that the only object of Fournet and Delahoussaye was to assist Resweber in giving an unfair preference to plaintiffs over the other mortgage creditors for payment of their ordinary claims. That) having once taken up those six notes from Eournet and Delahoussaye, Resweber could not again give them life and transfer them to plaintiffs. That Fournet and Delahoussaye were not the sureties of J. A. Resweber, but were simply endorsers, and could not be made to pay an obligation past due, without protest. That the whole transaction was fraudulent, and was a plan concocted to give a preference to plaintiffs for the payment of their ordinary claims, against the privileged claim of petitioners.

They prayed that their intervention be maintained; that the transfer of said six notes be decreed null and vqid and of no effect; that the pretended mortgage securing them be cancelled and erased and that plaintiffs’ suit be dismissed.

The widow in community and heirs of George W. Sentell intervened, adopting the allegations and prayer of George W. Sentell & Co. The plaintiffs answered the intervention, pleading the general issue, and specially denying the charge of fraud therein made. The District Court rendered judgment in favor of the plaintiffs againts the defendant for three thousand dollars, with interest from judicial demand, subject to a credit of nine hundred and seventy-three dollars and twenty-two cents, as shown by account current settlement and affidavit fil°d with plaintiffs’ petition for reference. It decreed further, that the six notes of five hundred dollars each, executed by Resweber, made payable to his own order and by him endorsed and delivered to Fournet and Delahoussaye and fully described in plaintiff’s petition, which notes were subsequently transferred, given and delivered in pledge as collaterals to plaintiffs by Fournet and Delahoussaye, be decreed to be extinguished for the reasons given by the court.

.It further decreed that the mortgage given to secure said six notes be annulled and of no effect in so far as the junior mortgage of intervenors is concerned, which took precedence over it. It further ordered that the intervention of G. W. Sentell et als. be maintained to that extent, and that the right to enforce their mortgage claim against the said Jules A. Resweber be specially reserved to said intervenor.

Plaintiffs appealed.

Opinion.

On the 21st of March, 1892, an act of mortgage was executed by the defendant before A. V. Fournet, notary public for the parish of St. Martin, to secure the payment of six promissory notes of five hundred dollars each, with interest, maturing at intervals of fifteen days, commencing the 15th of October, 1892, and ending the 1st of January, 1893.

The notes were drawn by Eesweber, the mortgagor, to his own order, and were by him endorsed, and the mortgage was granted to Fournet and Delahoussaye and in favor of all future holders of said notes. The recitals touching the note and mortgage as given in the act were, that Eesweber declared that he was indebted unto Beauregard L. Fournet and Oesaire B. Delahoussaye in the sum of three thousand dollars, for the reimbursement of which hel made and subscribed six promissory notes (describing them) and delivered the same to the said Fournet and Delahoussaye, and to secure the payment of said six notes at maturity, a mortgage in favor of said Fournet and Delahoussaye (present and accepting the same), and of all future holder or holders of said notes, consented a mortgage upon a certain property described in the act, the said premises to remain thus mortgaged until final payment of the six notes.

The evidence shows that at the date of this mortgage, Eesweber was indebted in point of fact to the mortgagees only for the sum of nine hundred and seventy-five dollars; that the parties had held and intended to continue to hold business relations with each other; that the debt of nine hundred and seventy-five dollars, then existing, was for advances already made, and the notes and mortgages were given to secure those advances and others expected to be made.

Although the act of mortgage declared that the six notes were delivered at the time of its execution to Fournet and'Delahoussaye, the truth was that they received at that time only two of the notes; the mortgagor retaining possession of the four others. It appears that Eesweber had for a number of years had business relations also with the firm of E. M. Walmsley & Co., and on the 18th of March, 1893, he made, subscribed, endorsed and delivered to S. P. Walmsley, the successor in business of Walmsley & Co., his promissory note for sixteen hundred and thirty-four dollars and ninety-seven cents, payable on the 1st of December, 1895, to the order of E. W. Walmsley & Co;

Fournet and Delahoussaye signed this ’note as sureties, whereupon Eesweber delivered to the latter two more of the mortgage notes. This note of sixteen hundred and thirty-four dollars was intended to secure advances to be made to Eesweber by Walmsley during the season of 1893 and 1894.

On February 3rd, 1894, Fournet and Delahoussaye wrote to S. P. Walmsley the following letter:

“In order to secure the claim of Messrs. R. M. Walmsley & Oc. against Mr. Resweber, represented by his note for about sixteen hundred and thirty dollars, endorsed by us, and also to secure your claim against him, we have, at his request and with his consent, forwarded to you by Mr. PI. P. Fournet, as collateral security, the-mortgage notes of the said J. A. Resweber, for the sum of three thousand dollars* in six instalments, each for. the sum of five hundred dollars, due Oct. 15, Nov. 1, Nov. 15, Dec. 1, Dec. 15, ’92, and Jan. 1, ’93, as per act in our favor, executed before A. Y. Fournet, clerk, ex officio recorder and notary public, in the year 1892, and duly recorded in the office of the recorder of mortgages for the parish of St. Martin, which said notes were held by us against the said Resweber to secure our claim against him.
“We make this transfer as a matter of accommodation, to both you and him. In consideration! of this transfer, our endorsement on his note due R. M. Walmsley & Oo. is to be annulled and of no effect against us, and the understanding had between you and Mr. H. P. Fournet in regard thereto is hereby approved by us. You will therefore hold said note bearing our endorsement until you shall have effected a new settlement with Mr. Resweber, and when his entire indebtedness shall have been paid, you will please return to us his said mortgage notes to secure his indebtedness to us.”

On February 3rd, 1894, Resweber wrote the following letter to S. P. Walmsley:

“Dear Sir: — This is to say that I have consented to the transfer to you by Messrs. Fournet and Delahoussaye of the six several mortgage notes which were handed to you a few days ago, by Mr. H. P. Fournet, said notes being for the sum of five hundred dollars each and secured by mortgage on my property, as per act before A. Y. Fournet, clerk, and ex officio notary, in favor of B. L. Fournet and O. B. Delahoussaye, in 1892, which said notes you are to hold as collateral security to secure whatever indebtedness I may owe R. M. Walmsley & Go. and S. P. Walmsley, -and then transfer them back to the said Fournet and Delahoussaye, being pleased that Mr. PI. P. Fournet has explained the situation of my affairs to your satisfaction and with the assurance that I may be able to pay you within the next ninety days (90) about $1000 or $1700 to reduce my debt.”

The arrangement referred to in this correspondence having been agreed to by Resweber, Fournet and Delahoussaye and Walmsley, the six mortgage notes of the former were turned over by Fournet and Delahoussaye, in February, 1894, to H. P. Fournet, plaintiff’s agent in St. Martinsville, and at once transmitted by him to Walmsley.

The exact situation of the accounts between Resweber, Fournet and Delahoussaye at that date is now shown, but they had not been closed.

Resweber had retained possession of the last four notes to be delivered to Fournet and Delahoussaye as they should make advances to him. Two of them were delivered to them afterwards, when they signed the $1634 note as sureties, and the last two were delivered to them the day before they themselves delivered all of them to IT. P. Fournet for transmittal to Walmsley. B. L. Fournet testified that all the advances made by them to Resweber were paid to them after the transfer of the mortgage notes to the plaintiffs.

The fact of Resweber’s indebtedness to the plaintiffs for the amount claimed in their petition is not contested, but it is claimed that the indebtedness is not secured by mortgage. We understand that intervenors have abandoned their charge of fraud and simulation, but If they have not there is nothing in the record which would in the least sustain it. Fournet and Delahoussaye were not endorsers, but surety, on the note for sixteen hundred and thirty-four dollars; it was made payable to the order of R. M. Walmsley & Go. and was delivered to them with Fournet’s and Delahoussaye’s signatures upon the back of the note.

It is well settled that parties signing in that way do so as sureties. They were at no time agents of the plaintiffs. There can' be no question as to the fact that these mortgage notes went into the hands of the Walmsleys as collateral security for Resweber’s indebtedness to them, with the consent of all the parties concerned. When intervenors accepted their mortgare the records showed it was primed by the three thousand dollar mortgage granted to Fournet and Delahoussaye. There were no equities existing against the six notes when received by plaintiffs as collateral at that time. If such was the fact, it was immaterial that the notes should have been past their maturities when so accepted as collateral. It is not pretended that Resweber has ever paid the notes to the Walmsleys, and their payment to anybody else since their transfer would have been totally unauthorized and could not bind them. Resweber was estopped from making such payment to Fournet and Delahoussaye after their transfer to plaintiffs.

The right of Fournet and Delahoussaye and Resweber by joint consent to turn over these mortgage notes to. the plaintiffs under the circumstances as collateral security cannot be doubted. Levy vs. Ford, 41 Ann. 873; Mechanics’ and Traders’ Insurance Company vs. Powell, 27 Ann. 647, 648; D’Meza vs. Generis, 22 Ann. 286; Brewer vs. Gay, 24 Ann. 37; Gardner vs. Maxwell, 27 Ann. 561. We do not find in the record any evidence of any reissue of these notes by the maker. When Fournet and Delahoussaye transferred them to the plaintiffs they transferred to them whatever claim or right the security was understood by the parties to represent. 47 N. W. 271; 40 Pac. 1049.

The judgment appealed from is, in our opinion, erroneous and it must be reversed.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiffs, R. M. Walmsley, John J. Barr and Sylvester P. Walmsley, composing the commercial firm of R. M. Walmsley & Co., and Sylvester P. Walmsley, plaintiffs herein, do have judgment ágainst and recover from the defendant, Jules A. Resweber, the sum of three thousand dollars represented by the six mortgage notes described in and annexed to their petition herein, with eight per cent, per annum interest thereon, from the 21st of March, 1892, subject to a credit of nine hundred and seventy-three dollars and twenty-two cents, on the 7th of May, 1895, until paid, and that the property described in their petition and mortgaged to secure the full and entire payment of the six notes which plaintiffs hold and own in pledge as collateral, as alleged in their petition, be seized and sold, -and the proceeds thereof be first applied to the payment of the indebtedness of Jules A. Resweber to the plaintiffs, as alleged and shown in their petition. Costs of both courts on the intervention to be borne by the intervenors.

On Rehearing.

Breaux, J.

An elaborately prepared brief is presented by the plaintiffs for our consideration, in support of our decree. Intervenors, on the other hand, in an earnest brief, argue that, in the main, our decree is erroneous and should be reversed and set aside in part, at least. We deem it necessary to reconsider the questions presented.

Before taking up these questions for decision, we will dispose of a matter we no longer consider a part of the controversy between plaintiffs and intervenors, for the reason that counsel for the intervenors, to some extent at least, recognize the legality of our decree. In the first brief filed by counsel for intervenors, after our decision had been handed down, said counsel concede that if plaintiffs held as transferees in good faith before maturity, the notes are not subject to the equities and claims set forth in their pleadings. They admit that two of the notes were transferred before maturity by Eournet and Delahoussaye, first holders, to Walmsley & Co., second holders.

In the second brief, counsel declare that if plaintiff held before maturity in good faith, no inquiry could be made with the view of defeating their rights, and they then aver emphatically that two of their notes of five hundred dollars each were transferred by Eournet and Delahoussaye, original transferrees, before maturity, and that this firm was the holder in good faith before maturity.

The position of intervenors regarding these two notes leaves very little to decide. As to these two notes, they are committed to the correctness of commercial law, under which it is held, “if the first endorsee has a right of action by being a bona fide transferee without notice before maturity, he could transfer a perfect title as well after as prior to the maturity of the note.” It follows that, as to these two notes, our decree must remain undisturbed.

We take up the remaining questions arising out of the transfer of four of these notes after maturity, also secured by mortgage. As to those four notes, the intervenors who hold the mortgages second in rank, who are third persons, have the right to avail themselves of any defense against the plaintiffs’ claim. They, as relates to their mortgage, stand in the shoes of their pommon mortgagor, Eesweber, and it follows that they have a right of action to compel plaintiffs to limit their claim to the amount properly due them. Plaintiffs, who hold from Eournet and Delahoussaye, cannot sustain their right to a claim of more than Eournet and Delahoussaye had at the time that they transferred or attempted to transfer their mortgage to plaintiffs. No one can transfer greater right than he himself has. Nemo plus juris ad alienum transferre potest, quam ipse habet. (Coke, Litt 309 b) Dig. 50, 17, 120. The transferee of a mortgage has no greater right than his transferrer had at the date of the transfer.. He only acquires the rights of the mortgagees. Schmidt vs. Frey, 8 Rob. 435. We repeat, plaintiffs can only acquire such rights as their transferrer had. The original mortgagees, Eournet and Delahoussaye, unquestionably were creditors of the mortgagor for a small amount at the date the mortgage was executed and at the time they transferred their claim to plaintiffs. To that extent they, Walmsley & Co., are subrogated to the rights of those mortgagees.

In order to make the position clear, we state here that on the 25th of March, 1892, Jules A. Resweber executed the act of mortgage on which Walmsley & Co. brought this suit. On the 29th of June of the same year, Jules A. Resweber executed an act of mortgage on which Sentell & Co. rest their claim.

In 1894, the first mortgage, that on which Walmsley & Co. brought their suit, was transferred to them, Walmsley & Co., by Fournet and Delahoussaye. It results that the Walmsley mortgage only had consideration (save as to the amounts admitted to be due by Resweber and Eournet & Co.) after the Sentell mortgage had been executed. Moreover, as to the consideration, the Walmsley mortgage contains the declaration that it was executed to secure the payment of the amount due at the time the mortgage was executed, that is the 25th of March, 1892. A mortgage containing such) a declaration, plaintiffs contend, secures as against a third person advances to Toe. made. We do not find it possible to sustain that view. A mortgage may be executed for any debt pour auiuri, conditional, and even for future debt, but it must be so stipulated. Instead of such stipulation, Resweber retained four of the notes in his possession, and while he had them in his possession, he executed a mortgage in favor of Sentell & Co., intervenors. After he had executed this mortgage in favor of Sentell & Co., it was no longer possible for him to give validity to a mortgage to the prejudice of third persons. To illustrate, A executes a mortgage in favor of B to secure the payment of six notes of five hundred dollars each. He delivers two of the notes to B and retains the four others in his own possession. Some time after, he executes a mortgage in favor of C. He cannot, after he has executed this mortgage in favor of 0, place the four notes in circulation to the prejudice of C’s mortgage. This'would be giving effect to a potestative condition in a manner the law never contemplated as possible. “Every obligation is null that has been contracted on a potestative condition on the part of him who binds himself.” O. O. 2034. We think that the following, which we translate •from Pothier, has direct bearing: “In that case, that is in case the mortgage creditor consents to a transfer of his mortgage as a security for another debt to another creditor, the first creditor becomes the last, but he becomes the last for the reason that the preference that he accords to the transference must not interfere with the rights of intermediate mortgagees.” (Dupin.) Oeuvres de Pothier, Vol. 10, p. 849. The following is the principle laid down in one of the articles of the Oivil Code (3293) : “But the right of mortgage, in this case, shall only be realized in so far as the promise shall be carried into effect by the person making it” — that is, so far as the transferring mortgagee has acquired a right.

Here let us concede for a moment that the original mortgagee had promised to make advances to the mortgagor, although the act of mortgage is absolutely silent on that point. That right was never transferred to the plaintiffs because "neither the agreement between the plaintiffs and their transferrers nor the act of mortgage contains any reference to any future obligation of the mortgagor growing out of the advances with which he was to be favored.

There may have been verbal stipulations in that connection between the original mortgagees and the mortgagor, but nothing is in writing on the subject. If there were verbal stipulations, they cannot be of any effect, for they were not made in compliance with the articles of the Code requiring written evidence of a mortgage. O. C. 3305. The stipulations of the act of mortgage in question do not refer to any advances to be made to any one. It is absolutely silent on that point. In Flower and King vs. O’Bannon, 43 Ann. 1047, this court said: “The mortgage was not given to secure advances generally or to secure any-resulting balance of account without- limitation as to time. Its terms explicitly declare that it is given to secure the sum of $2500 for money advanced and acceptances made and to be made during the.present year. Plaintiffs seem to consider that the present year means the year running from the date of the mortgage, but such is not a natural construction of the words in their ordinary use, which obviously suggest the year 1887; and this is confirmed by the fact that the notes given to represent the debt matured respectively on December 1st, 1887, aud January 1st, 1888.

“We cannot see our way clear to holding that this mortgage was intended to secure or did secure any advances or acceptances not made during the year 1887 or any balance of account beyond that existing on the last day of the year.”

We must look for the obligations of the mortgage in the act itself; to extend them beyond the plain terms of the act, on evidence such as that here suggested, would be to create a mortgage by parol or by implication, in violation of the articles of the Code which are cited supra.

True it is that between mortgagor and mortgagee, a mortgage may be executed for advances to be made and it may be that as between them, although the mortgage does not contain the stipulation that it should regarding future advances, it may yet be construed to embrace them as a consideration; but as between a transferee of a mortgage and a third person, the former cannot establish by parol a consideration not even hinted at in the act of mortgage or in any writing.

It is ordered, adjudged, and decreed that the judgment appealed from be affirmed to the extent that it decrees judgment in favor of plaintiffs for the sum of three thousand dollars.

It is further ordered, adjudged, and decreed that it be amended and that instead of interest as heretofore allowed, plaintiffs recover interest-thereon at the rate of eight per cení per annum from December 15th, 1894, subject to a credit- of nine hundred and seventy-three and 22-100 dollars.

It is further ordered, adjudged, and decreed that the mortgage executed by J. A. Résweber in favor of Fournet and Delahoussaye on the 21st day of February, 1892, and afterwards transferred in pledge by Fournet and Delahoussaye to R. M. Walmsley & Co., is a valid, mortgage to the extent that it secures the payment' of the two first notes and the costs of the District Court, and it is further ordered and decreed that the property described and mortgaged to secure the full and entire payment of the said two notes, interest, and costs be seized and sold, and that the proceeds thereof (to the extent necessary) be applied to the payment of the said two notes, interest, and costs.

It is further ordered, adjudged, and decreed that the judgment appealed from is annulled, avoided, and reversed in so far as it does not recognize plaintiffs’’ right to the said two notes and mortgage, and in all other respects that it does not conform with this judgment.

It is further ordered, adjudged, and decreed that the mortgage executed to secure the four other notes described in the act of mortgage 'is of no effect against the mortgage of intervenors which primes, under this decree, the mortgage of Walmsley & Co.j but between Walmsley & Co. and Resweber, the former’s claim and mortgage remain unchanged.

It is further ordered that the intervention of G. W. Sentell & Co. is sustained to the extent that they claim preference to the amount represented by the four last notes. Their rights under their mortgage are reserved to them, to-wit, the intervenors.

It is further ordered that defendant pay the costs of intervention in this case be reinstated only to the extent that it recognizes plaintiffs’ right to recover on the mortgage notes to the amount of one thousand dollars, interest and costs. In other respects, it is not reinstated, except as herein mentioned.

It is further ordered, adjudged, and decreed that our former decree in the lower court and that intervenors pay the costs of appeal.

Monroe, J., and Provosty, J., concur inthe decree; Provosty, J., handing down a separate opinion.

Nioholls, O. J., and Blanchard, J., dissented in part; Blanchard, J., handing down a separate opinion, in which Nioholls, C. J., concurs.