author: Breaux, J. Breaux, J.

text:
    No. 13,761.
    Mrs. Lavinia Swain and Andrew G. Swain vs. Mrs. Aloysia Weber and Augustin Reulet.
    Syllabus.
    Servitude of drain is due the upper estate. It was located more than twenty years, in accordance with a written agreement.
    Proceedings res inter aUos acta, will not be lield to prejudice the rights of one not a party.
    A servitude of drain will not be considered abandoned unless it is manifest that its abandonment was intended by parties in interest.
    The time to ground prescription will not begin to run before it is made evident that from the time pleaded, the servitude was not exercised at all. Failure to sustain a drain properly, on the part of all concerned, is not considered as an abandonment of one’s rights if the right continues to be of soüie use, even though limited.
    Concerning plaintiff’s and appellee’s motion to amend the judgment, her right to damages is not made evident.
    With reference to the attorney’s fees, no attempt having been made to prove their value in the District Court, they are not considered on appeal.
    APPEAL from the Twenty-First Judicial District, Parish of Iberville — Talbot, J.

      Benjamin Bice Forman, for Plaintiffs, Appellees.

      Hebert & Hebert, for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

On application for rehearing by

Breaux, J.

Breaux, J. Plaintiff’s action is for a servitude of drain in favor cf her property and due by the Trinity plantation which is owned by the defendants. The plaintiff’s land is known as the Bowling Green tract and was 'a part of a plantation known as the Live Oak place. •

It appears that Live Oak was owned from 1873 to 1880 by Dickinson and Gay. Afterwards it became the property of Ed. J. Gay, plaintiff’s vendor. On the south this plantation was bounded by the Trinity plantation, which is owned by the defendants.

In 1873, George W. Campbell, the owner of Trinity on the one hand, and Charles II. Dickinson and Andrew II. Gay, owners of Live Oak on the other, entered into articles of agreement by which they bound themselves to clean out the canal, now in controversy, on the line between Live Oak and Trinity. This canal, it appears, entered upon and crossed Trinity and “emptied its waters into a main canal running through from front to rear.” Each of the contracting parties was to pay half the expense of this work. It was, also, agreed that a designated bayou was to remain open until the canal above mentioned “shall be cleaned and made efficient to carry off the water collected and flowing through the bayou at the point the canal- intersects the bayou.”

The owner of Trinity agreed to close this bayou whenever the owners of Live Oak became satisfied that the canal was a sufficient drain. The right to close, as just stated, as we understand, was made subservient to the will of the owners of Live Oak. But plaintiff bases her action principally upon the stipulation contained in a deed of sale in which the late Edward J. Gay became plaintiff’s vendor. This stipulation sets forth that the right to a canal along the upper line of lot No. 8 (the Bowling Green place), therein sold, shall remain in force for the benefit of the other tracts of Live Oak plantation and the owners of the front land of Live Oak were to have the right to enter upon the canal, clean it up, and keep it open; that if the purchaser or future owner of lot No. 8 should use the canal for drainage, she and they would join in keeping the canal open and in order. The parties also agreed that the agreement of August 22, 1813, to which we have before referred, between the owners of these plantations, shall always remain in full force. The plaintiff, it is stated in this deed, agreed to contribute her pro rata, based on the number of acres she bought with reference to the remaining portion of the plantation, to maintain the canal so as to drain the adjoining Live Oak and Trinity places — a part of the former place being now owned by plaintiff.

Plaintiff contends that, in accordance with this agreement, a canal was built along the lower side of Live Oak and the upper side of Trinity and then across Trinity, at joint expense, and that a permanent servitude was established in favor of Live Oak, including Bowling Green. Plaintiff charges that the present owners of Trinity, who are defendants here, have obstructed this drain by dyking the canal and destroyed her crop and have caused damage in an amount within the jurisdiction of this court. Plaintiff asked for an injunction which was issued.

Defendants moved to dissolve, and filed a peremptory exception, in which they claimed that judicial action had put an end to the drain, as made evident by the judgments which they pleaded. In support of their exception, the defendants offered two judgments, one rendered in the case of Parish of Iberville vs. A. H. Gay, and the other in the case of Andrew H. Gay vs. Mrs. Aloysia Reulet. Objection was made by plaintiff on the ground that she was not bound by them as she was not a party to the suits in which they had been obtained. The court sustained the objections and excluded the evidence, to which ruling a bill of exceptions was reserved. The motion to dissolve and the exception were overruled.

The defendants pleaded a general denial, and especially averred that the drain had been abandoned, and that it was useless, as had been decreed in suits brought' to have it so decreed. Defendants set forth at some length their different grounds of défense.

We here insert a letter from the defendants to the plaintiff, as it has some bearing on the issues and will be referred to later on in our decision:

“Rosedale P. O., Iberville Parish, La., July 24th, 1900.
“Mrs. L. R. Swain, N. 0., La.
‘Dear Madam — Your communication of the 16th inst. has just been received, and in answer beg to state the following:
“It was far from our intention to dyke the canal of which you speak; but having been defeated by a judgment of court now on record as to the validity of that act of compromise which was entered into by Mr. Gay and Dr. Campbell, and which gave you the right of drainage through our place, we thought it our' right to dyke the canal and thereby cutting off your drainage as well as those of Shady Grove and Agustá plantations of Mr. Gay. If you take the court proceedings in the case of Andrew H. Gay vs. Mrs. Joseph Webre, you will find that we claimed that the same act of compromise which gave you the right of drainage through Trinity, was of record and should be enforced, thereby giving us the right to close the slough at Rosedale crossing and pass the waters by that canal, which was supposed to be the outlet.
“Upon that point, we got a judgment of court, saying that, said act of compromise was null and void and could not be enforced. It was only after that judgment that we took the liberty to close the canal as it is. We are sorry that it has inconvenienced your Bowling Green plantation, but we have a very big fight to make ourselves with those heavy rains, we cannot help you. As to that part of the canal on the road side, you may have it, as we do not use it any more than the road; should you want to move your fence on the line- you are welcome to it; we are not affected by it.
“Hoping you will understand our rights, we are
“Respectfully,
(Signed) “Mrs. Joseph Webre & Co.”

It appears by a map in evidence that the course of the canal, constructed in accordance with the agreement of 1813, runs along the lower limit of Joy’s place, and, also, along the lower line of plaintiffs’ place to about mid-way the place where it changes its direction by turning and crossing from plaintiffs’ land (leaves a public road which is situated'just below defendants’ line) into and across Trinity plantation.

At the point C there is a drainage machine. The contention of the defendants is that from, the point A on the map, to the Trinity Canal at point 0, the canal is filled with sediment, weeds, and trees, and that there is a ridge where this canal leaves the public road and crosses Trinity, through which ridge the canal runs.

After the present owner acquired Trinity, under a judgment, the defendants and Gay, the owner of Live Oak, reopened the old drainage (drainage up to 1873) canal up by the railroad on the east, and it is also evident that the reopening of this drain did not favorably affect Bowling Green, that is, plaintiff’s land.

The testimony shows that there are two canals or ditches, one, as we understand it, on each side of the road. The ditch above is on the land of plaintiff and the water from it runs into the ditch in question in one or two places, small laterals having been built to drain at least a part of the water.

The testimony shows that rain water is frequently injurious to crops in the locality in wet seasons. Evidently there is great necessity to keep drains open. Plaintiff’s land is cultivated by tenants, whose crops, are affected by the accumulation of water from the rains.

There is no question, in our view, that if the canal between Trinity and Bowling Green is left open, much of the water will drain down to point C, and from that point to the swamp. That is surely the weight; of the evidence. The owners of these properties, in 1813, saw that it would be a desirable drain, and, for that reason, doubtless, entered into the agreement before noted. In the deed by which plaintiff became the owner of part of Live Oak, it is stipulated that the agreement of 1813 shall continue in force and effect.

The principal grounds upon which defendants' rely to sustain their position are, in the first place, that the drain has been abandoned, and, in the second, that plaintiff is precluded by the judgments of the court which were offered in evidence, but which were excluded by the district judge.

Taking up the question of abandonment for decision, we have no difficulty in finding that the drain has been neglected and that for years no one has sought to keep it open as a drain. Nonetheless, some water passes through it, and to that extent the upper estate is drained.. When, not long since, the owner of the estate below, i. e., Trinity,' placed an obstruction in it, the result was that it dammed the water on the estate above and the crops thereon were injuriously affected by it., To the extent that it continued to be a drain, we are not inclined to the view that there was such an abandonment as justified the owner of Trinity in dyking against that much of -it.

It may be a very imperfect drain, yet if it carries off the water, it cannot well be closed without causing damage to the estate above. At this point, we are led to inquire, how has plaintiff actually abandoned the benefit, limited though it may be, derived from what remains of the drain ? We have not found that plaintiff relinquished it by any act or utterance. The record of the testimony shows that attempts, at least, were made as late as the year 1892 to clean out a part of the drain by working- in the canals or ditches leading the water to the main drain. This court, not long since, held that the abandonment of a servitude of drain is not to be presumed. “To sustain it, clear proof is required. The court finds no proof of intention to abandon.” Foley vs. Godchaux, 48 Ann. 466.

The bent and inclination of the soil is from north to south. The ridge, which was the only obstruction, has been cut down at this point for a drain following the inclination. We do not think that the obstructions placed in the drain should remain as they are.

We are informed by a letter from defendants to plaintiff, which we have quoted in full in our statement of facts, that originally it was not their intention to dyke the canal, but, having been defeated by a judgment of court annulling the agreement of 1873, they closed the canal. They expressed regret, saying at the same time, that they could not do otherwise, as they conceived that they were only exercising a right secured by the judgment. The judgment in question was not rendered contradictorily with plaintiff. She was not in any way a party to it. Besides it was a consent decree among the parties and binds only those on whose express consent it was granted. There was another judgment rendered in 1891. It confirmed a default previously entered, to which plaintiff was not a party. She cannot, in our view, be held concluded by these judgments to which she was a third party.

- Plaintiff acquired rights as owner of the estate above by the stipulations of the sale to her in 1881, of which she could not be divested in proceedings against others to which she was not a party. It was contemplated that she was to contribute her pro rata and the drain was to continue as previously. Without default, without notice of any kind,in proceedings among- owners of lands near or adjacent, she cannot be prejudiced in her rights. Our conclusion is that the judgment rendered in the District Court is legal.

The authority of the Police Jury invoked by defendants may be exerted for the purpose of draining public roads and places. It cannot be of any avail when questions arise regarding rights of interested persons exclusively among themselves in which the public can have no concern. Whatever authority that body may have to reopen a slough because, when closed, a public road is not sufficiently drained, it has no authority to order that as a set-off to the reopening of the slough another drain should be closed. The record discloses that the plaintiff has not been made a party and that she had no knowledge of the proceedings. Plaintiff, beyond question, in a matter of personal interest between her and the owner of the adjacent estate, was not represented by the Police Jury. Her interests were outside of the scope of the authority of the body.

But defendants further contend that plaintiff is as well concluded as in the case above by a judgment in the ease of A. II. Gay against the defendants in which a decree was rendered to reopen the slough in question. Those were proceedings entirely between Gay, plaintiff in that case, and defendants here. They cannot be prejudicial to any rights of the plaintiff.

We recall at this time that the slough was closed in accordance with an agreement of 1813; that eight years afterward, when the late Mr. Edward J. Gay sold the land 'to which plaintiff avers a servitude of drain is due, he, as vendor, and plaintiff, the vendee, stipulated, as made evident by the clauses of the deed of sale: “And it is well understood that the drain established by the agreement of date August 22, 1813, between George W. Campbell and Andrew H. Gay, and Charles II. Dickinson, shall remain open to serve as the drain of the land as contemplated by said act, recorded in Miscellaneous Book No. 3, Entry 543, and that the said purchaser agrees to contribute her pro rata according to the number of acres sold herein, to maintain said canal in the condition necessary to drain said lands, belonging to said Gay and Dickinson at the time of the date of the said act in accordance therewith.” The land in question passed into the ownership and possession of subsequent owners subject to the above quoted stipulation.

• The defendants claim the benefit of the resolutory condition arising, they allege, from abandonment, the judgments heretofore rendered, and the asserted uselessness of the drain. We have already passed upon the different issues and refer to them here only to add that in addition to the conclusion already reached in regard to them that another ground strikes us as rendering it difficult for the defendants to sustain their contention. It is that they are not the obligee of any right here, and, therefore, they are not in a position to claim the benefit of the resolutory condition. The right to reopen the slough, as we read the agreement of 1873, was reserved only to Gay and Dickinson, owners of Live Oak, and Campbell, the owner of Trinity, at the time does not seem to have sought to reserve any such right. We quote from the agreement of 1813: “The said G. W. Campbell hereby agreeing to close the said bayou and have it closed as soon as said Dickinson and Gay are satisfied that said canal carries off and relieves them of the water in its stead. Said privilege of closing said bayou is dependent upon, and contingent to the right hereby granted said Dickinson and Gay for draining through said canal to the outlet in the canal in the lands belonging to said Campbell.” The slough was closed in accordance with the agreement and the stipulations executed. After these many years have elapsed, we do not think it possible in law, and further, in view of the fact that it does not appear that any such right is secured by the agreement for the successor in title of Campbell to claim the exercise of a resolutory condition.

Defendants, in support of the right they claim to have decreed that the drain in question is a lost right of servitude, plead the prescription of ten years. The beginning of this prescription dates, defendants aver, from the first abandonment of the drain and from the time that it became evident that the drain was useless. In our view, while there was failure on the part of all concerned to sustain the drain properly, there was no such abandonment on the part of those interested as can be fixed upon as a period for grounding prescription. We do not understand that this drain was ever absolutely and entirely abandoned. Even if its use was limited, it remains that it did prove of some service as a drain, and for that reason the plea is not good.

As relates to the demand made for damages, we do not think it sustained. The extent of the damage is not satisfactorily shown, and, besides, we have very good reasons to infer that the damages were suffered by plaintiff’s tenants and not by plaintiff directly.

As to the fee of attorney, no evidence having been offered in the lower court in its support, this court sustains the prior ruling. Gathe vs. Broussard, 49 Ann. 312. The other grounds presented by plaintiff to secure amendment of the judgment are equally without merit. Our learned brother of the District Court, we think, decided the issues properly.

For the reasons assigned, the judgment of the District Court is affirmed.

Rehearing refused.

On Application op Dependant por Rehearing.

Breaux, J.

Admitting the error of fact in our statement of the case, for argument’s sake, we do not find, from any point of view, in the present action that our conclusion should be different from that heretofore expressed. We have not overlooked error asserted by plaintiff regarding certain facts.

We do not think that we should grant a rehearing only to have it appear of record here that an incidental fact, if erroneously stated, is not as heretofore found in the opinion, as the asserted error of fact has not the least bearing upon the conclusion reached. Although the- parties were not all parties to the sale made afterwards, the agreement in question none the less has full force and effect.

In any event, it is manifest that plaintiff alone cannot set aside the agreement of 1873. It must be done, if done at all, contradictorily with all parties concerned. . The defendant obtained the right from her vendor who held it by an agreement with other owners. Unless parties are reinstated in their ’original right rescission cannot be enforced. Bryant vs. Stothart, 46 Ann. 485. Plaintiff cannot question the validity or binding effect of the agreement to the extent of and for the reasons stated in our original opinion.

Rehearing refused.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,868.
    Frank Daly vs. Christ Kiel.
    Syllabus.
    1. One cannot be understood as contracting to take upon himself risks which are not apparent, and of which he has not been informed or warned against at the time of his employment.
    2. The warning required to be given is an unequivocal' one. It should not be left to inference. The situation should be explained, the danger pointed out, and the employee cautioned to be on his guard.
    3. When this is not done, and the danger develops, becomes real and actual and the servant is injured, the master is answerable in damages.
    APPEAL from the Thirteenth Judicial District, Parish of Rapides —Bla. ciernan, J

      Ryan & Blachman, for Plaintiff, Appellee.

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

Blanchard, J.

Defendant, under contract with a Railroad Company, worked a gravel pit. He was getting out gravel for the Company. The means employed to get it out was a steam shovel, which was operated by an engine.

This engine was placed upon a kind of car, which was run on wheels on a track laid after the fashion of railway tracks, and which had its connection with the main railway line.

The gravel was dug or scooped out of the hillside by the steam-shovel, which was attached to what is called “a crane.” This crane was a movable lift which transferred the steam-shovel with its load of gravel to open cars stationed on the improvised track, where it was dumped, thus loading the cars, and then the crane conveyed the steam-shovel back to the gravel bank where the scooping process was gone through with again, and so on.

The track on which the engine and cars moved had to be extended gradually as the steam-shovel worked its way into the bank of gravel.

For this purpose the ground about the machine and in front of the engine had to be levelled, and this work of leveling and of track laying devolved on three laborers who were employed for the purpose.

The plaintiff was one of these laborers. He had never before worked - in the gravel pit, and was a stranger in the neighborhood.

The evening before the day of the accident he reached, for the first time, the locality in question. He went there in quest of work. He applied to the superintendent in charge, representing the defendant, who engaged him as laborer, telling him to report at the pit for duty the next morning.

He did so, was assigned to work, and within an hour after beginning work met with the injury for which damages are herein claimed.

The amount sued for was $10,000. The case was tried by jury, who returned a verdict in favor of plaintiff for $1500, and defendant appeals. Plaintiff, answering the appeal, prays an increase in the amount awarded him.

The allegation of the petition is that plaintiff was placed in a perilous and dangerous position; that defendant, or his foreman in charge, knew it to be such; that plaintiff was ignorant of the, danger; and that no warning was given him of the same.

It is explained that the danger of the situation grew out of the fact that the gravel was being quarried by means of steam power from a perpendicular bank some twenty feet high, and that this bank was liable to cave, bringing down great masses of gravel and earth.

The averment is that plaintiff was assigned to service under or in close proximity to this bank, that it caved without warning, that he was caught under it, and received severe injuries.

He represents he suffered greatly, is a cripple for life, and incapaeitated from earning his livelihood by labor, and is otherwise without means of support.

The defense is that plaintiff was aware of whatever danger there was incident to the service in which he accepted employment, was duly and sufficiently warned of the same, and that he was injured as the result of his own negligence and want of care.

Ruling■ — Whether or not plaintiff was given sufficient warning of the dangers of the situation in which he was placed, is the controlling question in the case.

That the danger was not readily apparent, that plaintiff did not, himself, know of it, and thus needed to be warned, is, we think, sufficiently shown.

His statement, as a witness, is that when Mr. Self, the foreman of defendant, engaged him the evening before the day of his injury, he directed him to a boarding house, where he would find lodging, etc.

And then in answer to a question of his counsel as to the warning, if any, given him, he says:—

“No sir, he never gave me any warning. When I left the boarding house he said go down with Mr. Black, and one side is the bank where it caves, and the other side is the car side, and there ain’t much danger.”

About seven in the morning, at the time the work commenced, it seems Self, himself, went to the pit. He was engineer in charge of the work. And with reference to his presence there plaintiff testifies:—

“Mr. Self came down and told me to go over on the other side (meaning of the car on which the engine was) and dig that block out, that there was a rope attached and I could pull the block. He told me to keep both eyes on him and one on the bank. ‘Watch him,’ he says, ‘and you will know all about it’ — that was all the warning I got.”

The “block” referred to was, as we understand it, a short, thick piece of timber through which a jack-screw penetrated.

There was one, perhaps two, on either side of the engine car and their purpose was to hold the machine steady.

The “Mr. Black” referred to was an employee at the pit. He had charge of the “crane.”

His testimony is that where plaintiff was assigned to work was a dangerous place, because of the fact that the perpendicular bank of gravel was liable to cave at any time, and did do so several times daily. To the eye, however, he states it did not particularly present the idea 'of danger; that it looked safe.

He corroborates plaintiff’s statement as to what Self said to the latter. That is, that Self told him to go over to that side of the engine car next to the bank and work, and to keep one eye on 'the bank and two on him; that he “could tell more by watching me (him) than by watching the dipper on the steam-shovel.”

Asked in what manner was that said to Daly (the plaintiff) he replied :—

“Well, I don’t know; I would take it in rather a light way, as though there was not much meaning to it.”

And he further states he did not consider it “as any warning particularly.”

Mr. Self, defendant’s engineer, who employed the plaintiff, testifies that the morning the latter started to work, he was assigned to no particular place further than to level ofE the ground in front of the shovel. Asked if before plaintiff started to work, he (Self) had given him any warning as to the danger, he replied:— . .

“Efe and two other men were standing in front of. the shovel and I looked at him and said your main work is to keep two eyes on the bank and the other on me.”

Considering that the plaintiff was a new hand just employed, that he knew little of the character of the work and nothing of the dangers attendant on the same, that he was a stranger to the locality, and had never seen the gravel pit until the evening before, that he had not been around it or on the hill from which the gravel was being dug, that he had not seen a caving of the bank and had not been apprised of the danger to be apprehended from that source, we are of the opinion that what was said to him by the engineer and foreman the morning he started to work was not sufficient to warn him of the danger.

The caving of the bank was apprehended and expected by defendant. The danger from that cause was foreseen by him. It was not by the plaintiff.

Had the latter been sufficiently warned, had the situation been intelligently explained to him, and yet he had been caught and injured by the falling bank, he could not recover. But since he had no warning sufficient to put him on his guard he is entitled to recover.

McCarthy vs. Iron Works Co., 48 La. Ann. 980.

James vs. Lumber Co., 50 La. Ann. 717.

The principle that the servant assumes the ordinary risks and dangers of his employment and cannot hold the master responsible for an injury sustained in consequence of one of the risks incident 'to the service iu which he engages, is recognized; but this case is regarded as not being within the rule.

One cannot be understood as contracting to take upon himself risks of which he has not been informed or warned against.

Stucke vs. R. R. Co., 50 La. Ann. 189.

Telling the plaintiff simply to keep two eyes on him (the engineer) and one on the bank, or one on him and two on the bank, is not deemed a sufficient explanation to a new hand of the danger to be apprehended from the bank. The words did not clearly convey 'the meaning which might have been intended. At 'most they left it to inference to be drawn by plaintiff that he meant the bank was expected to cave, to look out for its fall and avoid it.

It should not have been left to inference. The situation should have been explained, the danger pointed out and unequivocally warned against.

Myhan vs. Electric L. & P. Co., 41 La. Ann. 964.

Plaintiff should have been given to understand clearly by plain words that the bank was dangerous and he must first of all be on his guard against it. To a workman who had had experience the words of the engineer might have sufficed; to one who had only entered the service that moment, and who was injured within an hour of accepting the employment, they are held insufficient.

In not thus definitely warning the plaintiff the master subjected his servant to greater risks than fairly pertained to the employment and this constitutes negligence which entitles the servant to recover.

41 La. Ann., supra, 966.

Lynn vs. Antrim Lumber Co., 105 La. 451.

The facts of this case distinguish it from the “gravel pit” cases cited by defendant and found in 124 Ind. 326, and 53 Wis. 661.

The contention of defendant that plaintiff was not at his proper place when the bank caved, or that he should not have been where he was at the time, is not borne out by the testimony.

Nor is there force in his other contention that plaintiff could have escaped injury by running, even when the bank began to cave, by the exercise of reasonable care and agility.

With regard to the estimate of the jury in the amount allowed as damages, while it is thought to be a low figure, we are not inclined to increase it, in view of the fact that the jury saw the plaintiff, had him before them, and, doubtless, gauged his injuries from the way he appeared and handled himself. The doctor who testified said he considered him temporarily injured, though there would “always be a limping or laming.”

The evidence on the ability of the defendant to respond in damages is meager, but the impression made by it is that he is a man of limited means, and it is likely the jury took this into consideration, as they could do, in arriving at the amount of their verdict.

Judgment affirmed.


author: Breaux, J.

text:
    No. 13,691.
    David McG. Means, Receiver, vs. Ross, Keen & Co.
    Syllabus.
    1. Defendants were employed by the plaintiff to obtain a cargo for the British ship Bombay. After part of the service had been performed, the employers failed. Although they had failed, defendants could not terminate their agency, put an end to the service partly performed, and become the employes of a third person to the contract between them and their principal.
    2. The question of reopening the testimony and admitting new evidence is largely left to the discretion of the nisi prius court.
    S. The accounting due by the agent to Ms principal does not fall within the prescription of three years.
    4. The facts do not sustain the charge that plaintiff’s claim is a litigious one.
    5. Defendants admit having received an amount (stated) from the owners of the vessel. This amount, by the terms of their agreement with the charterers of the vessel, is due to the charterers, less their charges and commissions. The total amount due of the ehafges and commissions having been fixed, they were deducted from the amount defendants collected from the owners of the ship.
    APPEAL from tbe Civil District Court, Parish of Orleans— Ellis, J.

      Denegre, Blair & Denegre, for Plaintiff, Appellee.

      Guy M. Horner, for Defendants, Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff seeks to recover the sum of four thousand dollars with interest, on the ground that defendants, agents of Latassa & Co., charterers of the ship hereafter named, of which firm he is the receiver, also the assignee, have collected the sum of eight thousand seven hundred and thirty-four 45-100 dollars and are indebted for the amount thus collected less charges and commissions.

The firm of Latassa & Co. employed the defendant firm to get a cargo for the British ship Bombay, then bound on a voyage in ballast from Philadelphia to New Orleans. The usual compensation was to be paid for this service. The cargo was obtained and was carried to Liverpool, the port of destination. The freight was earned and the portion collected by the defendants of this freight, to which plaintiff claims Latassa & Co. was entitled, less charges and commissions, is the amount involved here.

Defendants interposed an exception to plaintiff’s demand, pleading the prescription of three years and the litigiousness of the claim. The plea of prescription was overruled. The plea of “litigious right” was referred to the merits.

Defendants, while admitting that they collected for freight as before stated, deny that they ever collected any amount for Latassa & Co. Their account of the business as set forth by them is that in 1887, they were employed by the firm of Latassa & Co, through a broker in New York, to obtain a cargo for the British steamship Bombay of which Latassa & Go. were the charterers; that they did obtain the cargo and, while the ship was taking on this cargo, they made the necessary disbursements; that the charter party of the ship was about to expire and that, with the view of securing themselves, they took bills of lading signed by the captain of the ship; that on the return of the Bombay to Liverpool, her* charter to Latassa & Co. having expired, her owners did not honor the bills of lading held by. the defendants. The owners, after having dishonored the hills of lading, took the cargo, delivered it, and collected the freight' for their own account and failed to pay defendants; that one of the defendants went to England in quest of a settlement and, while there; placed the firm’s claims in the hands of Gilchrist & Co, shipbrokers, who failed to bring about a settlement, hut that they succeeded in obtaining the amount due by libelling the steamship Florida, another vessel owned by the owners of the Bombay. The amount was collected through Gilchrist & Co, to whom the owners paid in order to obtain 'the release of the Florida; that Gilchrist & Co. retained a stated amount for expenses, viz: one hundred and seven 58-100 dollars. After deducting this amount, the amount collected by defendants was eight thousand five hundred and fifty-three 18-100 dollars. In order to collect this amount, they aver that they were compelled to furnish a written guaranty to the owners of the Bombay against any counter claim for the money paid to them. Defendants charge, as per their account, amounts to the extent of nine thousand seven hundred and sixty-four 68-100 dollars due, they say, by the steamship Bombay. Latassa & Co. not having paid anything, defendants claim against them in reconvention a sum of one thousand two hundred and eleven 50-100 dollars, as still due and for which they, in this suit, ask for judgment.

To their petition, plaintiff had annexed interrogatories on facts and articles which were propounded under an order of court. The defendants answered the interrogatories, setting forth the facts connected with the business transactions of the parties in interest. The answers were substantially the same as the summary above made o£ their defense.

The evidence was heard and the case was continued to be argued on some day following. We are informed by the record that at the argument, the plaintiff offered in evidence the commercial books of the defendant firm. The defendants objected on the ground that the offer was not seasonably made, and also because books of the defendants should not be admitted in evidence without giving them an opportunity to prove the entries as being correct. The books were admitted over defendants’ objection.

The judgment of the District Court is in favor of the plaintiff for one thousand and ninety-two 12-100 dollars, with interest, and reserving to plaintiff the right to demand from defendants the return of such parts “of an item numbered 28, $2053 ,herein allowed, as may be composed of profits made by defendants.” In arriving at the conclusion that plaintiff is entitled to the amount just- stated, the learned judge of the District Court rejected certain items of defendants’ account and allowed other items claimed. The defendants set up that no item should have been rejected, and further claim that they have a -right to the four hundred and forty-one 40-100 dollars commission specially claimed by them in their reeonventional demand for their guaranteeing the owners of the Bombay as before stated.

We think it was within the discretion of the District Court to admit the defendants’ books in evidence. We do not understand that the argument had commenced. It is not shown that the defendants were illegally prejudiced by the order admitting their own books in evidence. When the case was argued here, it was not suggested that the case should be remanded in order to enable the defendants to explain the entries in their books. _ We do not think that the ruling was erroneous.

With reference to the objection urged by way of exception as relates to prescription, we deem it enough to say that the claim of the principal against the agent for an accounting was not prescribed. Such a claim is not barred by the prescription of three years pleaded. The freight had been earned for the account of Latassa & Co. It was theirs, subject to charges, in the hands of their agents for which the latter can be held, although three years have elapsed from the time that the amount was realized by them for account of their principal.

As relates to the litigious rights alleged as cause for defeating plaintiff’s claim, we have not found that this plea is sustained by the facts. The claims transferred were_not in suit. The possibility of a suit to recover an amount does not bring the right within the prohibition of Article 2622 of the Civil Code.

Whether or not the defendants were released from their obligation to account to Latassa & Co. for the amounts collected by them presents the first question of importance for our decision. Defendants had entered into agreements with Latassa & Co. as charterer of the vessel. For their services, under this agreement, they were to receive the usual compensation. When the vessel returned to Liverpool, the freight had been earned. The defendants were still acting for the charterer. They had no contract with the owners. The freight for the ship Bombay was engaged before the failure of the charterer. It had been, at least, collected together for the ship. The vessel was being loaded when defendants were informed of the failing condition of the charterer.

Defendants made advances for which they arie entitled to compensation and they also have a right to remuneration for their services as agents. Having gone into possession of the vessel for the account of Latassa & Co., the charterer, it was not in their power to change the agency as they attempted, and to become the agent of the owner. The vessel had entered the port of New Orleans for account of the charterer, and we do not think that we should hold, although they failed in business, that their agents could, themselves, change the charter party from their principals to themselves.

All the items in defendants’ account to number 23 were approved by the judgment of the District Court. We pass to the first contested item, No. 23, “river pilot and costs, $57.75.” We are informed that a double charge for extra pilotage is unusual. The services are limited to one pilotage. The charterer cannot be held for other pilot services growing out of personal contracts between defendants and another pilot who did not do the work, but had a right to charge because of some agreement between him and the agents by which he was to see to all their pilotage. In this case, it appears that the regularly retained pilot was not the first pilot who applied to render the service, entitled for that reason, under the law, to the work.

The next contested items are numbered 26, 27 and 37 and are for lawyer’s fees for libelling ship Florida, one hundred dollars, and for costs for libelling the said ship, seventy dollars and fifty cents. The last item of the three just stated consists of personal expenses incurred by one of the firm who went from New Orleans to Liverpool for the purpose of settling the firm’s account and protecting his firm’s interests. While in Liverpool he placed the bills of lading of the firm in the hands of Gilchrist & Go., a firm of ship brokers doing business in that city, with instructions to collect the total freight and pay the amount due the ship and retain the balance to the order of his firm. Grouping these three items, the District Court considering the percentage of defendants’ interest in the claim to that of plaintiff’s, reduced the amount to one hundred and fifty dollars. With reference to these claims we insert an excerpt from the judgment of our learned brother of the District Court: “Defendants claim these as their expenses for collecting the eight thousand six hundred and sixty 75-100 dollars first above referred to. The facts on which they base this claim for extra the answers of Messrs. Eoss to the interrogatories on facts and articles, the answer of Messrs. Eoss to the interrogatories on facts and articles. Conceding the correctness of amounts and the facts stated, the adjustment of their account shows defendants entitled to seven thousand four hundred and eighteen 64-100 dollars of the eight thousand six hundred and sixty 75-100 dollars collected, while plaintiff’s interest is one thousand two hundred and forty-two 12-100 dollars. The figures may vary in verification, but this is about the relative proportion of the interest of defendants and plaintiff in the sum of eight thousand six hundred and sixty 76-100 dollars. Argument is not needed to show that the defendants cannot charge the plaintiff with nine hundred and twenty-four 08-100 dollars, the entire cost of collecting eight thousand six hundred and sixty 75-100 dollars where plaintiff’s interest in said eight thousand six hundred and sixty 75-100 dollars was a trifle in excess of one thousand two hundred dollars and defendants’ interest exceeds seven thousand four hundred dollars. We therefore strike out and reject these four items, 26, 27, 37, and the Gilchrist item ($107.58) stated as a debt on the credit side of the account and allow the defendants one hundred and fifty dollars as a fair proportion of the expenses of collecting.”

In answer to the argument of the learned counsel for the defendants, that defendants could not,- under the circumstances, avoid making the advances and incurring the risk, we think it sufficient to say that defendants were not in a position to ignore their principal, although it must be conceded that the principal should have advanced the amount, instead of leaving the burden on the defendants. The latter, however, accepted the burden without objection. They could not, in the manner, attempted, put an end to the agency. Having assumed the risk they must bear the burden and costs for recovering back the amount they chose to advance. It was their claim in part, and to the extent that it was they were liable for the largest part of the charges in question.

In the main, we agree with the opinion of our learned brother of the District Court. Under the circumstances, however, we think the amount allowed should be larger. True the interest of the plaintiffs was comparatively small. They, however, were to some extent concerned about the amount due the defendants. They had not furnished the sums required to enable defendants to continue with the work of loading the ship with the cargo which they had gathered for the voyage. We will fix the amount later in our opinion.

Item 29 was reduced to the amount defendants’ books showed they had paid for compressing the cotton shipped. They were, under the circumstances, properly held bound by the entries in their books. It was the best evidence obtainable of the amounts due the defendants.

Item 30 was charged in defendants’ books and, as reduced, was properly allowed. If freight brokerage is chargeáble at all, we think of no good reason why it should be taken out of the commission of the ship’s agent,

Item 31, inland charges, was reduced to the amount charged in defendants’ books. These books were, we understand, kept at the time and are contemporaneous evidence and are binding. If other expenses were incurred, it is a loss for which defendants have themselves alone to blame.

Item 32, telegrams and cablegrams, was properly reduced to fifty dollars, the usual charge, as made evident by the testimony.

Item 33 was rejected. It was made for attendance to vessel’s business in port. It appears that such charges are not usually made when vessels are loaded as this was, besides defendants, on appeal, do not, as to this item especially object to the court’s action in rejecting the claim.

Item 34, commissions on freight, was reduced from five per cent, to two and a half per cent. The weight of the testimony sustains the last mentioned commission. The charterers spoke about the business of loading the Bombay to a ship broker in New York, who wrote to a ship broker’s firm in New Orleans, who was, through the agency of the former, brought into business relations with the charterers, by whom the latter was employed. If the first broker was entitled to anything for his very limited services, it was from the commission of the broker employed. This afforded no ground for charging two commissions; one for the broker in New York and the other for the broker in New Orleans. The agreement was that the defendants were to charge the usual commission. The difficulties they had to meet in this particular instance are not grounds for increasing the commission originally-agreed upon. The judgment will be amended so as to allow two and a half per cent, on the whole freight, which will amount to four hundred and thirty-two 75-100 dollars.

Item 36, one hundred and eighty-seven 03-100 dollars is rejected in the judgment. There was no written agreement regarding interest, therefore plaintiff was without right to charge a conventional rate of interest, but, in our view, he was entitled to the legal rate. It is therefore allowed, and, to that extent, also, the judgment is amended.

In our view defendants are without right to two and a half per cent, commission for “advancing” and two and a half per cent, for “disbursing” ; one charge is allowed for both, to-wit: one hundred and sixty-nine 68-100 dollars, on the amount advanced.

Defendants are, in addition, entitled to five per cent, for ninety-eight days’ interest on money in use for plaintiff. The sum so used amounted to six thousand seven hundred and eighty-seven 30-100 dollars, and the interest thereon amounts to the sum of ninety-two 38-100 dollars. This would increase the amount due to the sum of one thousand two hundred and twenty-nine 89-100 dollars, if we had Hot increased items 26, 27, and 37, as we have. We think that it is equitable to increase this group of charges by one hundred and thirty-seven 39-100 dollars and to let the decree remain as it is, as, in our view, it does substantial justice between the parties.

Defendants specially claim in their reeonventional demand a commission of four hundred and forty-one 40-100 dollars for a temporary obligation incurred by them in order to collect the amount due. We have seen that it was in nature a guarantee to protect the owners of the ship from all claim for the amount they collected from them.

Such services, particularly under the circumstances here, are quite exceptional. The value was not shown. We would be at a loss to fix the amount of the commission if we were to conclude that a commission is due. It is not. It was perhaps attended with some little risk. Bui defendants more than any one else were interested in taking this risk.

For reasons assigned the judgment is affirmed.

Rehearing refused.


author: Monroe, J.

text:
    No. 14,004.
    State of Louisiana vs. Thomas J. Slutz.
    Syllabus.
    1. A conspiracy Is a combination of two or more persons to do something unlawful, either as a means or as an ultimate end.
    2. Whilst the convenient and usual course is to prosecute all the conspirators, who are within reach, at the same time, it Is not legally incompetent to prosecute them separately, and, in such case, the charge that the particular defendant brought before the court has conspired with the others, whose names are given, is not open to the objection that it amounts to charging him with conspiring by himself, but means that there was a common agreement and a common purpose, without which there would be no conspiracy.
    3. In prosecutions under Section 5 of Act No. 8 of .1870 (extra session), it is sufficient to describe the crime of burglary by its name, where the offence charged is conspiracy to commit that crime; and the word “burglarize” may be used as the equivalent of the words “commit burglary,” as used in said statute.
    APPEAL from the Eighteenth Judicial District, Parish of Acadia— . DeBaillon, J.

      Walter Guión, Attorney General, and William Campbell; District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellant.

      David Todd, for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

Defendant was prosecuted and convicted upon an information drawn in the following terms (omitting such portions as are not involved in the issues to be determined), to-wit:

“Be it remembered that William Campbell, district attorney in and “ for the Eighteenth. Judicial District of the State of Louisiana, now “comes * * * and gives this Honorable Court to understand and “ be informed, that one Thomas J. Slutz, of the parish aforesaid, on the “ 14th day of December, A. D. 1900, did conspire with one Frank “Abbott and one Kirkendoll to burglarize the dwelling house of one “ David Meaux, contrary to the form of the statute, etc.”

The defendant excepted to the ruling of the trial judge in admitting certain evidence, and in refusing certain special charges, and, a motion for new trial filed on his behalf having been denied, excepted to such denial. He, thereafter, through his counsel, filed a motion in arrest of judgment, which was sustained, to, and from which, last mentioned, action of the trial judge, the State excepted and appealed. The only questions brought up by the appeal, therefore, are those presented by the motion in arrest, which reads as follows, to-wit: “Defendant “ moves the court to arrest the judgment herein:

“1. Because the indictment herein does not charge a conspiracy, “for which defendant has been convicted.
“2. Because such indictment is so drawn that it only accuses one “man, the defendant, Slutz, of wilfully and feloniously conspiring, “ and one man cannot conspire by himself.
“3. Because the indictment does not charge the defendant, Tom “ Slutz, and Frank Abbott and Kirkendoll (the latter two mentioned in “ the indictment of (with) conspiring together to commit the crime of “burglary, or that they conspired together for any purpose, or joined “ at all in the intent or for the object set out).
“4. Because the indictment does not charge that there was a con- “ spiracy to commit any crime known or defined by law; because the “ allegation that the defendant' conspired with Abbott and Kirkendoll “ to hurglarize the house mentioned is not a legal charge, or sufficient “ charge, that the accused and the persons named conspired together to “break and enter the said house, and the will or design to commit “burglary is not set out as the law requires, and said indictment is “void and cannot be a basis for.a judgment herein.”
“Conspiracy” is said to he an offense known to the ancient Common Law, antedating the statute of Edward I; the most widely recognized definition of which declares, “a criminal conspiracy to consist of a “ combination between two or more persons for the purpose of accom“plishing a criminal, or unlawful, object, or an object peither “ criminal nor unlawful, by unlawful means; or, as it has been more “ concisely expressed, ‘the combination of two or more persons to do “ something unlawful, either as. a means or as an ultimate end.” Enc. PL & Pr., pp. 823-833. In this State, it is made a statutory offense, when entered into -for the purpose of committing certain specified crimes, among which is the crime of “burglary.” The language of the statute declares, “That whoever shall conspire with “ another person, or persons, to commit or procure the commission of “ the crime of murder, rape, robbery, burglary, arson, perjury, or “forgery, upon conviction thereof, shall be imprisoned,” etc.

Section 5, Act No. 8, Extra Session of 1810.

“Conspire” is a word in common use, which, necessarily, carries with it the idea of agreement, concurrence, and combination, and hence, is inapplicable to a single person or thing. And, when one person is charged with conspiring with another, there are no words in the English language by which the idea of the action and co-operation of two minds could be more effectively conveyed, since one cannot agree or conspire with another who does not agree or conspire with him. The defendant is not charged with conspiring with himself, alone, but with conspiring with two other persons, whose names are mentioned. And, whilst it is true that the term “conspiracy,” and likewise the terms “combination” and “confederacy,” imply the necessity for, at least as many as two persons, to constitute the offense, and “the authorities concur that conspiracy is a joint offense and cannot be committed by one alone,” (Am. & Eng. Enc. of Law (2 ed.), Vol. 6, p. 846), it is equally true that all of the conspirators,whether known or unknown, need not be prosecuted at the same time, but, an indictment charging a person, named, with having conspired with other persons, unknown, or with other persons whose names are given, but who are not joined as defendants, is good.

We find the following paragraph applicable to the subject in Bishop’s New Criminal Procedure, Yol. 2, to-wit:

“225. More conspirators than one, in the one combination may, of “ course, be jointly indicted. And not generally will the court direct “ that they be- separately tried. But if one of the two dies, the living “ one may be indicted and tried, and it is the same of a known eon- “ spirator, where the other one is unknown. Probably it is competent “ to indict known and arrested conspirators, separately, while yet the “judge might interfere to prevent a procedure so inconvenient and “unusual. Where one is separately charged, it must be averred that “ another or others conspired with him; one form being that the defend- “ ants conspiracy was ‘with divers other persons, to the jurors “ unknown.’ ”

See also Enc. Pl. & Pr., Vol. 4, pp. 709 and 710.

A more serious question, perhaps, presents itself when we come to consider what the defendant is charged with having conspired to do. The information reads, “to burglarize,” etc. It is urged on behalf of the defendant that the words “to burglarize” are insufficient to express the offense sought to be charged; first, because it is not the language of the statute denouncing and defining said offense; and second, because the acts constituting the crime which defendant is charged with having conspired to commit should have been set forth specifically.

As to the first proposition, the word “burglarize” is now defined by standard English dictionaries to mean “to commit burglary upon,” and is, therefore, the exact equivalent, in meaning, of the language of the statute. Whether the conversion of nouns and adjectives into verbs, by the addition of the suffix, ize improves the language may be doubted, though certainly such words as macadamize, localize, particularize, etc., are not without their uses. It is, however, well established in criminal jurisprudence that words of equivalent meaning may be substituted in an indictment for those of the statute under which such indictment is found. State vs. Eames, 39 Ann. 986; State vs. Brown, 41 Ann. 345; State vs. Lewis, Ib., 593; State vs. Watson, Ib., 598; State vs. Washington, Ib., 778.

The second proposition has, no doubt, considerable support among both text writers and jurists, and, in Indiana, the jurisprudence is settled to the effect that the crime which the accused is charged with conspiring to commit must be set forth, in the indictment with the same particularity as though he were being prosecuted for that crime. We are of opinion, however, that the weight of reason as well as of authority sustains the view that under a statute such as the one by the authority of which the defendant is prosecuted, the gist of the offense denounced is the conspiracy, and that the charge, framed in the language of such statute, or in words of equivalent meaning, that the defendant has conspired with other persons named to commit a crime specified therein, and, elsewhere, and in other statutes, denounced and defined, is sufficiently intelligible to put him on his defense. In State vs. Kelly, 25 Ann. 381, it was held that it was not necessary that an information charging the defendant under R. S. 854, with 'having entered a vessel in the day timé, with intent to steal, should specify and describe the precise article which he intended to steal. The court said: “The offense consists in the prisoner having entered a vessel in “ the day time with intent to steal, and the indictment is drawn up in “ accordance with the statute upon this subject. * * * The law “ does not say that the precise article which he intended to steal shall “be described. Indeed, this would be impossible.” And in State vs. Jean Gay, Fils, et als. Ib. 472, it was held that an indictment charging the defendants with breaking and entering, in the night time, with intent to commit rape, need not set forth the common law ingredients of the latter crime, “with intent to commit which the said offense of burglary was charged.”

Mr. Bishop says, among other things, on this subject: “If the con- “ spiraey is to do what would be indictable, were it done by one, alone, “ all hold that the contemplated means need not be set out. Still, the “ instance must be particularized and the like, according to rules “ already laid down. It seems to be sufficient, within this requirement, “ to describe the proposed offense simply by its name, with the name “ of the person to be injured thereby. When it is not known by any “name, its constituents must be stated. And there may, probably, be “ named offenses which should be more minutely identified.”

Bishop’s New Or. Pr., Sec. 218, Yol. 2.

We, therefore, conclude that the motion in arrest should have been denied. It is accordingly ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that this case he remanded to be proceeded with according to law.

Rehearing refused.


author: Blanci-iard, J.

text:
    No. 13,996.
    State of Louisiana vs. George and John L. Hunter.
    Syllabus.
    1. What is meant by a “banking house,” in the sense of the statute denouncing a penalty against whoever shall keep such a house at which money or any other representative of value shall be bet or hazarded, is not left in doubt by the language used.
    2. There is no necessity for the judge, before whom a prosecution of this kind is being tried, to supply anything to eke out the meaning, purpose or intention of the law in order to make out the case.
    APPEAL from the First Judicial District, Parish, of Caddo— Land, J.

      Walter Guión, Attorney General, and J ohn R. Land, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      WeUs & Wells, for John L. Hunter, Defendant, Appellant.
   The opinion of the court was delivered by

Blanci-iard, J.

The indictment charged that the accused did “unlawfully keep a banking game, commonly called ‘faro/ at which money and various things representing money, and commonly called ‘chips’ or ‘checks/ were then and there bet and hazarded.”

And, further, that they did unlawfully keep a banking house at which money and various things representing money, and commonly called “chips” or “checks,” were then and there bet and hazarded at a certain banking game, in said banking house, commonly called “faro,” etc.

A motion to quash was made on the ground that Section 911 of E. S., under which they are charged with keeping a banking game or banking house, does not by its terms define what constitutes keeping a banking game or house. In this connection, it is contended that in Louisiana all crimes are statutory, and, hence, the definition of crimes, and the determination of what acts constitute crimes, are purely legislative functions, not to be delegated to or exercised by the judiciary; and that the failure of the statute aforesaid to define “keeping a banking game, or banking house” leaves it to the court to supply the definition, which the court is without constitutional authority to do.

The motion to quash was overruled, the accused were tried — one of them, George Hunter, was acquitted, the other, John L. Hunter, was adjudged guilty of keeping a banking house and sentenced to pay a fine of $1000, or to be imprisoned in the parish jail for a term of six months.

He appeals.

It will be observed that John L. Hunter was convicted not of keeping a banking game, but of keeping a banking house at which, or in which, money was bet or hazarded. There were two counts in the indictment. He was convicted and sentenced under the second count.

So the question as to what constitutes “a banking game,” or whether or not it is sufficiently defined and set forth in the statute, is not one of concern here, and need not now be considered.

It suffices to maintain this conviction if the statute is sufficiently precise and certain in the matter of denouncing as a criminal offense the keeping of a “banking house” at which money or other representative of value is bet or hazarded.

It is late for the issue here raised to be made. Laws denouncing banking games and banking houses at which money is hazarded have been on the statute books of the State since the year 1835, re-enacted from time to time, and none of them have been more specific in definition than the one under which the present indictment is framed.

Tet, repeatedly have appeals from convictions in such cases been before this court. It does not appear that the question of unconstitutionality on the grounds here advanced was even ever raised before.

In the case which came up in 1852 (City of New Orleans vs. Miller, 7 La. Ann. 651), Chief Justice Eustis, as the organ of the court, used this language:—

“That act (meaning the Act of 1835) evidently purports to prohibit and punish the keeping of gaming houses. The terms used in it of banking house, or banking game, present no difficulty whatever as to its meaning. The evil to be suppressed was the gaming house, with its capital always ready for play. Whether the capital, or stock, is owned or furnished by the house, or made up at the time by the players, the evil is the same and the offence is the same.”

This declaration, that the terms “banking house,” or “banking game,” present no difficulty as to the meaning of the same, has been followed ever since, and we shall not depart from it now.

See State vs. Lenares, 12 La. Ann. 226; State vs. Markman, 15 La. Ann. 498.

Similar rulings have been made in other jurisdictions.

People vs. Carroll, 80 Cal. 153; State vs. Thomas, 50 Ind. 292; In re. Lee Tong, 18 Fed. Rep. 296; State vs. Gett Lee, 6 Oregon, 426; Miller vs. State, 48 Ala. 122; Foster vs. Territory, 1 Wash. 411; Lowry vs. State, 1 Mo. 722; Evans vs. State (Texas Crim. 1893), 22 S. W. Rep. 18; Stearns vs. State, 21 Texas, 694.

The statute itself contains enough of description and definition to meet and parry the criticism and objection herein made against it.

It does not merely say “whoever shall keep a banking game, or banking house, shall, on conviction, be fined, etc.” It says “whoever shall keep a banking game, or banking house, at which, money, or anything representing money * * * shall he het or hazarded, shall, on conviction, etc.” (Italics ours).

What, therefore, is a “banking house” in the sense of the statute, making the owner or keeper thereof subject to the penalty prescribed, is not left in doubt.

There is no necessity for the court to supply anything to eke out the meaning, purpose or intention of the law in order to make out a case.

Judgment affirmed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,969.
    State of Louisiana vs. Jacob Jackson, alias Shamp.
    Syllabus.
    jl. A person indicted for a crime necessarily punishable at hard labor who pleads not guilty cannot, even with his own consent, waive trial by jury and be tried by the judge alone. (Articles 9, 116 and 118, Constitution 1898.) He is not estopped from urging this defense, as the constitutional requirements on the subject are in the interest of the State as well as his own. (C. C. 11.)
    2. An indictment for a statutory offense is generally sufficient if it follows the wording of the statute. It is not made defective by the insertion therein additionally of the words “unlawfully” and “feloniously.”
    3. An endorsement upon an indictment giving the date of its receipt and filing by the clerk as January 24th, 901, is an immaterial clerical error, especially so when the minute entries disclose that the indictment was received on the 24th of January, 1901.

      APPEAL from the Nineteenth Judicial District, Parish of St. Martin — Foster, J.

      Walter Guión, 'Attorney General, and Anthony N. Muller, District Attorney, (Lewis Guión, of Counsel), for Plaintiff, Appellee.

      Edward Simon, for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant has appealed from a judgment of-the District Court sentencing him to hard labor in the penitentiary for ten years.

In the lower court he unsuccessfully moved to quash the indictment, to arrest the judgment, and to obtain a new trial.

His counsel in his brief calls our attention to the fact that the defendant had pleaded not guilty, had waived trial by jury, been tried before the district judge without a jury, found guilty, and been sentenced to hard labor.

The matter to which our attention has been thus directed we are forced to notice and to act upon — intentionally reserved — as it manifestly was to be made use of at this late stage of the proceedings.

The crime for which he was indicted, and for which he was tried before the district judge and by the latter found guilty and sentenced was violation of Section 188 of the Revised Statutes, a crime “necessarily punishable at hard labor.”

Article 116 of the Constitution of 1898 declares that “cases in which the punishment is necessarily at hard labor shall be tried by a jury of twelve, nine of whom, concurring,- may ¡render a verdict,” wjhile Article 118 of the same instrument declares that district judges shall have authority to try at any time all misdemeanors and, when the jury is waived, all cases not necessarily punishable at hard labor and to receive pleas of guilty in cases less than capital.

We held, in State vs. Thompson, 104 La. Reports, page 167, that parties accused of crime necessarily punishable at hard labor had no right to waive trial by jury and insist upon being tried by the district-judge, assigning as the reason for so holding that the requirement of Article 116 of the Constitution had been adopted not only in the interest of accused parties, but of the State itself.

This opinion was reaffirmed in State vs. Ned, recently decided. 105 La. Ann. 696.

It has been suggested that we may not have sufficiently considered the last words of Article 118, to the effect that district judges are “authorized to receive pleas of guilty in cases less than capital;” that if the judges are authorized to receive a plea of guilty in cases less than capital, they must necessarily have the power after receiving the plea to adjudge the accused guilty and to sentence him.

The accused in this particular case did not plead guilty. He, on the contrary, pleaded not guilty, which fact carried with it the necessity of a trial which the Constitution declared should be before a jury of twelve, though nine jurors concurring could have rendered a verdict. Under the circumstances of this case a jury could not be waived by the accused.

Clark, in his work on Criminal Procedure, referring in Section 149 to this subject, says:

“Where the Constitution or a statute expressly requires a jury trial, and does not merely give the accused the right to such a trial, a jury can, in no case, be waived.” (Citing Arnold vs. State, 38 Neb. 752; 57 N. W. 587.) He adds: In all eases the right to a trial by jury may be waived by pleading guilty, for in such a case no trial at all is necessary.” (Citing Brown vs. State, 16 Ind. 496.)

We will postpone any expression as to the correctness of this latter proposition until a case presenting that particular feature shall arise. We adhere to our opinion announced in State vs. Thompson and State vs. Ned, See additionally on this subject Article 9 of the Constitution of 1898.

The conclusion reached by us, on this particular point, carries with it a reversal of the judgment of the District Court. In view of the new trial which must take place, it is necessary for us to pass upon the rulings of the district judge upon the issues raised in the motion to quash, the motion in arrest of judgment and the application for a new trial. The rulings of the District Court upon these motions and upon that application were correct, and we hereby affirm them. The crime charged is statutory. The indictment followed the language of the statute and was sufficiently explicit to inform the accused of what he stood charged, and sufficient upon which to base a legal verdict. He called for no bill of particulars. The insertion in the indictment of the words “feloniously” and “unlawfully” in addition to the words of the statute, furnishes no ground of complaint.

The objection to the endorsement upon the indictment, showing the date of its receipt and of its filing as, having been on January 24th, 901, is utterly without force. The omission of the figure “1” before 901, was evidently a slip of the pen. There is no question of prescription in the case. Under Section 1063 of the Revised Statutes, the omission was immaterial. Besides this, the error in the endorsement was cured by a proper entry in the minutes showing that on January the 24th, 1901, this indictment was returned by the Grand Jury.

For the reasons assigned the judgment of the District Court is reversed and set aside and the cause is remanded to it for further proceedings according to law.

Breaux, J., dissenting, handed down a separate opinion in this case.


author: Watkins, J.

text:
    No. 13,535.
    Coleman & Sharpe vs. E. S. Teddlie and J. M. Nugent.
    Syllabus.
    In suing out a writ of attachment, the creditor is entitled to state the grounds upon which he claims it disjunctively, substantially as the Code of Practice recites, and is not required to charge one or the other in precise terms.
    An intervenor to whom judgment awards the value of improvements, is not entitled to retain possession of land, as against a seizing creditor, until same is paid for.
    IN RE E. S. Teddlie and J. M. Nugent applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Grant, State of Louisiana.

      William C. Roberts, A. B. Clark and J. T. Wallace, for Applicants.

      J. A. Williams, for Respondents.
   The opinion of the court was delivered by

Watkins, J.

In the original suit, plaintiffs sought to recover a money judgment for the sum of $700.00 on a mortgage note, and accompanied their demand with an application for a writ of attachment, based upon the charge “that the defendants are now about to mortgage, assign, or dispose of their property, rights or credits, with the intent to defraud their creditors, or give an unfair preference to some of them; that they have converted, or are about to convert (same), into money or evidences of debt, with intent to place it beyond the reach of their creditors,” etc.

Under the writ, an improved tract of land was seized, and a third person intervened and claimed the bona fide ownership of a part of same, accompanied with actual possession thereof.

By the District Court, the attachment was dissolved, judgment for the debt and mortgage rendered against defendants, and the intervention went out of court; and from that judgment the plaintiffs appealed to the court of the respondents, and it amended same by sustaining the attachment, rejected the demand of the intervenor for the part of the land he claimed, but gave him judgment for the sum of $950.00 as the value of the improvements he had placed thereon.

It is of the judgment of the Court of Appeal that the defendant, E. S. Teddlie, and the intervenor, J. M. Nugent, complain, as being contrary to the principles of law and the jurisprudence of this court.

The following extract from the brief of the relators’ counsel puts their case very clearly:

“This ease commenced by suit on a note and mortgage against E. S. and E. W. Teddlie, coupled with an attachment.
“The attachment was levied upon the property mortgaged, and upon forty acres of land — other property, as the property of E. S. Teddlie.
“E. S. Teddlie sold part of this forty acres by .a verbal contract sometime before the attachment was levied to J. M. Nugent, and a portion to one, Seiss, no deed being passed; and by consent of Seiss, Nugent and Teddlie Nugent was substituted as the vendee of the portion that was intended to be conveyed to Seiss.
“Nugent intervenes and claims to be the owner of the forty acres of land described in his petition. Before answering, defendants excepted and moved to dismiss the attachment on the ground that the allegations of the petition were too vague to support the same, and that the grounds in the attachment are stated in the alternative. This exception was tried and overruled, whereupon, the defendant filed a general denial, specially denying that there was any ground for the attachment; prayed for its dissolution and for $15.00, attorney’s feete, as damages.
“The case came on for trial in the District Court. The court recognized the mortgage, gave judgment for the amount of the note, but dissolved the attachment and dismissed the intervention of J. M. Nugent as in case of non-suit.
“On appeal to the Circuit Court, that court sustained the attachment, gave judgment in favor of Nugent against Teddlie for $950.00 for improvements placed on the land claimed by him, and otherwise affirmed the judgment of the District Court.
“Defendant, E. S. Teddlie, complains of the judgment of the Circuit Court sustaining the attachment, and J. M. Nugent complains of the judgment of that court as affecting his intervention. So, at the ruling of the Circuit Court sustaining the attachment, and rendering an improper judgment on the demand of J. M. Nugent, this brief is principally directed.”

The defendant and intervenor join in one petition, though the grounds on which they claim relief are separately stated. Of these of the defendant, many relate to the course of the proceedings at the trial and the admissibility vel non of evidence, the regularity or correctness of which were matters for the respondent court to determine on appeal, but do not present questions of such an extraordinary character as to justify a review at our hands of the whole litigation.

The point to which the brief of relators’ counsel chiefly directs our attention is, that the respondent court gave no consideration to the defendant’s motion to dissolve the attachment, and which, in their opinion, if same had been considered, would have resulted in an affirmance of the judgment of the District Court.

The ground relied upon is, that the plaintiff’s affidavit affirmed that the defendants are about to mortgage, assign or dispose of their property, rights or credits, with intent to defraud their creditors, or give an unfair preference to some of them; that he has converted or is about to convert his property into evidences of debt, etc.; and said charges being made disjunctively, same are bad because of vagueness and uncertainty, or, in other words, neither one charge or the other is distinctly and clearly made, in such manner that the defendant might know how to prepare his defense.

We do not regard the objection as having been well taken; but that, on the contrary, the affidavit was entirely justified by the precise language of the law, the object of which was to enable the creditor to prevent a fraud being perpetrated on his rights.

The system of alternative pleading, both in petitions and exceptions, has been approved by this court in many cases; and it has especially found favor in matters of fraud and simulation. Johnson vs. Mayer, 30 Ann. 1203.

Obtaining a writ of attachment is often a strike in the dark, and were the creditor necessitated to state specifically the precise ground upon which he relied, he would often make a mistake and lose Ms claim.

We are not aware of any decision that so decides, and we are unwilling to set the precedent.

On the part of the intervenor, the point relied upon is that the respondent court erroneously declined to decree him entitled to retain the possession of the land until the amount awarded for improvements was first paid, before the attaching creditor could execute his judgment against it — his contention being that he is entitled to the rights of a possessor in good faith.

But his counsel make the admission that the intervenor was in possession of the land under a verbal sale, at the time plaintiff’s attachment was levied upon it. Of course such a sale is not evidence as to third persons and seizing creditors, and gives intervenor no protection..

We think the respondents decided the case correctly.

It is, therefore, ordered and decreed that the relief prayed for by the relators be denied at their costs.

Behearing refused.


text:
    No. 14,125.
    State ex rel. H. J. Periou vs. T. Don Foster, Judge of the Nineteenth Judicial District Court.
    Syllabus.
    A judge has the right on the presentation to him for signature of a bill of exceptions taken to his rulings to assign his grounds for the rulings. This right is not cut off by the provisions of Act No. 113 of 1896. If the judge in this assignment makes unauthorized recitals, the appellate court can disregard them. (State vs. Nash and Barnett, 46 Ann. 214; 48 Ann. 1491; 49 Ann. 283, 704; 50 Ann. 694; 51 Ann. 731; 52 Ann. 605, 2058 ; 104 La. 65, 164.)
    Counsel who decline to have filed a bill of exceptions signed by the judge, unless signed by him without an assignment of the grounds for his actions and such statements as he deems legal and necessary to sustain the same, cannot have the judge compelled to sign the bill as presented.
    APPLICATION for a Writ of Mandamus.

      Mouton <& Simon and Broussard, Dulaney & Dunbar for Eelator.

      Walter Guión, Attorney General, and Anthony N. Muller, District Attorney, for Respondent Judge.
   Statement op- the Case.

The opinion of the court was delivered by

Nicholls, C. J.

It appears from relator’s petition that while the case of the State of Louisiana against the relator, Horter J. Periou, who was charged with murder, was on trial, and while Laurent Ducrest, a witness for the defendant, was on the stand as a witness in his behalf a question was asked -him by counsel for the accused, the object of which was declared to be “to prove threats made by the deceased against the life of the accused half an hour before the shooting,” but that the district attorney objected to the question on the ground that before evidence of previous threats by the deceased to the accused and a previous difficulty could be shown, it was necessary under the law to lay the proper and legal foundation; until the overt act can be shown to the court, evidence of previous threats and previous difficulties could not be introduced to the .jury.

That thereupon the court, at the request of defendant’s counsel, opened the question for the proof of the overt act, and, after retiring the jury, the witness Ducrest was temporarily withdrawn and several witnesses were placed upon the stand, examined for the defense and cross examined by the district attorney. That the testimony of these witnesses was taken down by the stenographer.

That after the taking of the testimony, the court sustained the objection, to which ruling the accused excepted and reserved a bill of exceptions. That a bill was tendered to the judge for signature, which recited the question asked of the witness, the objection of the district attorney thereto, the sending out of the jury, the withdrawal of witness from the stand, the taking of testimony offered by accused in support of. the right to propound the question asked, the testimony given by the different witnesses called for that purpose by the accused, the ruling of the District Court sustaining the objection, and the reservation of a bill, but that the judge declined to sign the bill unless accompanied by his statement of his reasons for the ruling he had made; that accused declined to accept a bill, with the statement which the judge proposed to make part of it; that the district judge refused to sign the bill as presented to him. The present proceeding is an application to have the Supreme Court order the judge to sign the bill as so presented to him.

Relator alleges that the bills of exception were taken in strict conformity with Act 113 of 1896, by having the court stenographer, in open court, contradictorily with the State’s representative, and in the presence of the clerk of the court, take down in shorthand either the verbatim testimony of the witnesses, or a dictated statement of what each witness had testified of the facts adduced on the points involved in the several bills referred to. That the bills as dictated and taken down in open court had been presented to the judge, certified to by the stenographer and the clerk, all. as provided by the law referred to, but that he refused to sign the same as taken down, which the law commands him to do without adding thereto a statement by himself of what the witnesses testified to, and what he considered as proved, which statement covered facts not bearing on the points involved in the several bills of exception, but covering practically all the facts of the ease, and of making part of said statements (or synopsis of evidence as termed by the judge) all the testimony adduced before the coroner and his jury at the inquest, and the evidence adduced on the preliminary trial. That he was entitled under the law to have said bills of exception signed by the judge as they were taken down and without the addition of any other statement by the judge, or the annexing of either the evidence on the preliminary trial or the coroner’s inquest.

The bill as presented to the judge for signature is annexed to relator’s application. It closes with the words, “After hearing the evidence the court maintained the objection on the following grounds and for the following reasons ■/’

The district judge having been ordered to show cause why the mandamus should not be granted admits that he did refuse to sign the bills of exception unless there was coupled therewith a resume of the evidence and a statement of the conclusions reached, and avers that the defendant refused to have such a resume of the evidence and a statement of his conclusions attached to the bill and he refused to sign them otherwise. That in addition to thé facts stated in the bill, which were correct, he insisted that there should be added thereto other facts, which he recited had been referred to. He then proceeds to place before the court the same statements and reasons, evidently, which he had intended to have attached to the bills before signing them had no objection been made to his pursuing that course. After setting out these facts he assigned the reasons on which he grounded h’s conclusion that the testimony offered was not admissible. He avers that the statement as made by him was a correct statement of the synopsis of the evidence recited; that it was made in concurrence with the counsel of the defendant and accepted as correct by them. That all the synopsis of testimony was taken and submitted before the case had terminated, and that nothing therein related to any fact transpiring after the bills were reserved, but only facts taken and submitted before the bills were reserved. He states that the bills as written out were written by the stenographer, and that he would have dictated to him his statement and his reasons at once in open court, but that he was afraid that the reading of the same might indicate to the jury some opinion which the court had found of the ease, and that he reserved the right to place the same afterwards, and that in this defendant’s counsel concurred.

The bills as prepared do not seem to have been submitted to the district attorney, nor has the State through that officer been notified of this proceeding. Act 113 of 1896, upon which the relator relies, is as follows:

“Act 113 of 1896 — On the trial of all criminal cases in this State appealable to the Supreme Court, when an objection shall be made and a bill of exceptions reserved, the court shall at the time and without delay order the clerk to take down the facts upon which the bill has been retained, which statement of facts shall be preserved among the records of the trial, and if the case be appealed the clerk shall attach to the bill of exceptions a certified copy thereof, which shall be taken as a correct statement upon which the exception is based.”

Opinion.

We are not called on in the present proceeding to ascertain whether the testimony in the case which the judge recites as having been given additionally to that taken down by the stenographer be correctly recited or not, or whether the legal conclusions of the judge were correct, or not; our inquiry is limited to the inquiry as to whether or not it was the duty of the district judge to have signed the bill of exceptions which was prepared by the relator in the exact form and under the precise circumstances and conditions it was so presented, and as to whether a mandamus be the proper method to review the judge’s action in the matter. From the pleadings it appears that the judge did not refuse to sign the bill presented to him, but he was perfectly willing (and is still willing) to do so, after making the grounds or reasons for this ruling part thereof; but that this relator’s counsel declined to have done, preferring to test the legality of the judge’s claim to a right to assign the grounds for his ruling before signing the bill, through a mandamus proceeding.

It does not appear that the judge declined to have the testimony, which was taken down by the stenographer and certified to by the clerk under Act 113 of 1896, attached to the bill of exceptions. The Act in question does not look to a signing by the judge of this testimony, but to a bill of exceptions to be taken, to which this testimony is to be annexed. A bill of exceptions, which recites a ruling of the District Court upon a certain subject, and the grounds upon which the party taking the bill complains of the ruling, is always accompanied as part thereof by the reasons assigned by the judge for his action. When the Legisla - ture in the Act of 1896 refers to a bill of exceptions to be taken, to which the testimony certified to by the clerk was to be attached, it evidently Contemplated such a bill as had been in use from time immemorial. Eelator declares that the district judge, in this particular case, intended in giving the grounds for his ruling to make a recital of testimony which had been received on the trial other than that which was included in the note of evidence, which he had made out and which was certified to by the clerk; and that this he was not authorized to do. and the relator was warranted and justified in law in refusing to permit the judge to make such a statement, and in refusing to have a bill filed with such a statement made'part of it. That the only method in his power to disclose to this court the legal position he took in the matter was to refuse to have the bill signed as so made out, and through the mandamus to have the judge forced to sign the bill. We think that relator could have very easily placed his legal position in the mat-' ter before the court, in a way other than that to which he has resorted. He could have tendered for signature by the judge the bill as made out by himself, with a demand to have it signed as so made out without addition, and upon refusal of the court so to do, to have taken a bill of exceptions, and upon the judge’s signing the bill with additions which he thought unauthorized, he could have excepted to the filing of such a bill and reserved a bill.

Under such conditions the whole matter would have been before this court for review in a regular manner, inside of the record of the proceedings of this case before the court. As matters stand, we are asked to force the judge to sign a bill of eceptions, which he declares in his answer does not place fully before the court the circumstances under which his ruling was made, through an outside, independent, collateral proceeding. We do not think this the proper time or the proper method for testing the correctness of the judge’s ruling. If the judge, before signing the bill of exceptions tendered to him, had made additions thereto, which under the law he was not authorized to make, defendant’s counsel could call our attention properly to such a fact, and we Would disregard the same. They ought not to have refused to permit the judge to complete and sign the bill, as he considered he was authorized to do under the law, and then bring their case before this court without bills, and supplement and eke out the record by bills of exception procured under a mandamus proceeding. We think that the issue which relator seeks to raise and have determined here is one which was susceptible of being raised and determined before this court on the appeal of the cause to it. That is the proper place and occasion to determine it. If the district judge had refused absolutely to sign any bill of exceptions whatever, a very different case would be before us from that which we have now to deal with. The judge was willing, and is willing, to sign the bill tendered him with his reasons for his ruling assigned therein. We think he was and is entitled to do this, leaving to the court to give to the bill such effect as it is legally entitled to.

In State vs. Riculfi, 35 Ann. 770, this court (citing State vs. Ladd, 10 Ann. 271) declared that bills of'exception should always bring up with them the judge’s reasons and such facts as are necessary to show how the law was applied; that he should not sign a bill of exceptions containing a statement of facts at variance with his own; that he had the power and right to correct an erroneous statement in the bill. In State vs. Farrar, 35 Ann. 315, the court said: “District Judges are vested with a legal, not an arbitrary discretion. When they exercise such they should state all the reasons which have induced their rulings. Facts often transpire in the presence or are to the knowledge of judges, the existence of which is not established by the record.

Proper information, if known, would enlighten the court and enable it to test the correctness of such ruling. In the absence of such statements these facts cannot be divined by the appellate court, which; in default of them, is bound to assume that the grounds stated are the only ones.”

There are many things, of the existence of which the district judge has the right to take judicial notice, and which may affect his rulings (State vs. Jackson, 35 Ann. 769). In State ex rel. Ramsey, 50 Ann. 1128, the d.strict judge having refused absolutely to sign a bill of exceptions tendered to him for that purpose by the accused, a writ of mandamus issued from this court to show cause why he should not be ordered to do so. The court justified its action on the ground that under the rules of court the bill was presented too late for signature. The writ issued as prayed for. In its reasons the court said: When the bill was presented the objection of counsel for the State was leveled at the bill as drawn, not at the time of its presentation. If the bill, to make it perfect, should have embodied or had attached to it- a fuller reproduction of the re-examination of the juror Taylor, on the voir dire, it was within the power of the judge to require it to be done, or he could have embodied same in his reasons, written in the bill, for making the ruling he did, and thus have obviated the objections of the State. While the judge in the case cited was directed to sign the bill, the order was made “with the full reservation of the right of the judge to add to it the whole of the examination of the juror Taylor on his voir dire, and such statement of facts and reasons as he may choose for his ruling.”

The right of the court to assign the reasons for any action of. his complained of in the bill, was here expressly recognized. It was this right which the court- claimed to exercise in this present case and which relator refused to recognize. If the bill was not signed by the judge, it was because relator refused to have it signed.

Eor the reasons assigned, the mandamus herein prayed for is refused, the privilege being reserved, however, to the relator, on leaving a certified copy thereof, to detach from the plead'ngs herein, the bill of exceptions which he had heretofore tendered to the district judge for his signature, to have the same completed by the signature of the judge, with the reasons assigned by him for his rulings, and to file the same in this court in the record of the State vs. Periou, Ho. 14,125 of the docket, of this court, with'n ten days from the date hereof.

Provosty, J., dissents, and reserves the right to submit his views hereafter.

Breaux, J., concurs in the opinion for the reason that the questions involved may be considered on the appeal.