text:
    No. 11,412.
    The State of Louisiana vs. Silas Hill.
    1. The trial judge declined to give to the jury the following requested special charge, viz.:
    “ If'the jury has a reasonable doubt whether the defendant was intoxicated to such a degree as to create a state of mental confusion, excluding the possibility of a specific intent to take life, or positive premeditation, then the verdict should be guilty of manslaughter.”
    2. Intoxication of the accused to such a degree as to render him incapable of malice in the perpetration of a homicide is a special defence, like a plea of insanity, and puts the burden of proving it upon the party urging it, and its truth must be established by a fair preponderance of evidence.
    -3. While it is the duty of the prosecution to make out the malicious intent of the accused in the perpetration of a homicide beyond a reasonable doubt, yet it is not its duty to prove a negative by showing that the accused was not intoxicated to such a degree as to render him incapable of entertaining malice at the time of the homicide beyond a reasonable doubt; and the trial judge was guilty of no error in refusing to so charge the jury.
    APPEAL from the Seventh District Court, Parish of Tensas. Montgomery, J.

      M. J. Cunningham, Attorney-General; Joseph E. Bandell, District Attorney, and B. B. Snyder for the State, Appellee.

      Young & Young for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant was convicted on a charge of murder and sentenced to death, and prosecutes an appeal from the judgment rendered, placing his sole reliance on the alleged error of the trial judge in refusing to give to the jury one requested special charge.

The special charge requested and refused was of the following tenor, to-wit:

“If the jury has a reasonable doubt whether the defendant was intoxicated to such a degree as to create a state of mental confusion, excluding the possibility of a specific intent to take life, or positive premeditation, then the verdict should be guilty of manslaughter.”

The argument of defendant’s counsel upon this proposition is that, inasmuch as evidence had gone to the jury as to the defendant’s state of intoxication at the time of the homicide, it was the province of the jury to determine the degree of intoxication, and whether it was sufficient to reduce the grade of the crime committed, from murder to manslaughter; and from that premise his contention is that, as the State must prove, beyond a reasonable doubt, every essential element of the crime charged, and as malicious intent or motive is an essential element of the crime of murder, the State was bound to prove that the accused was not so intoxicated as to render him incapable of entertaining malice toward the accused, and hence the defendant was entitled to the charge’ requested.

Or, in other words, that the defendant does not rely upon a special defence, but on the want of sufficient evidence to establish the existence of malice on the part of the defendant, on account of his drunkenness at the time of the homicide. Hence, if the evidence raised a reasonable doubt of such a degree of intoxication as to create an impossibility of the existence of malicious intent on part of the accused, the grade of the crime is reduced to manslaughter.

On the part of the State, the argument is that the intoxication of the accused is resorted to as a special defense, like a plea of insanity, and that the rules of law provided to test the latter should be applied in this case to test the degree of the defendant’s intoxication.

He cites De Ranee’s case, 84 An. 190, wherein the court had under consideration the special defence of iusanity, and in their opinion said, viz.:

“ The prosecution must prove all the essential, affirmative allegations (of the indictment) beyond a reasonable doubt, (but) the burden of proof on the plea (of insanity) rests upon the party urging it, and its truth must also be established beyond a reasonable doubt.”

He also cites Coleman’s case, 27 An. 692.

We are of the opinion that the plea of drhnkenness is a special defense, and, like any other, must be proved by the party urging it, to the satisfaction of the jury.

It was the duty of the State to establish the malicious homicide of the deceased, at the hands of the accused, beyond a reasonable doubt; and if in making that proof the drunkenness of the defendant was developed, it was a circumstance for the consideration of the jury, along with other proven facts of the case, in determining the felonious intent of the homicide. But it does not follow that it was the duty of the State to make proof of a negative, by showing, beyond a reasonable doubt, that the defendant’s state of intoxication was of a degree not to interfere with his judgment and intelligence, or preclude the possibility of his ehtertaining malice toward the deceased

The trial judge properly declined to give the requested special charge, aud the accused is without grounds of complaint.

Judgment affirmed.

Mr. Justice McEnery absent sick.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 11,411.
    Wm. L. Langridge, Sheriff, etc., vs. The Judge of the Twenty-First Judicial District Court.
    When a legal proceeding is commenced against a person, whether resident within the jurisdiction of the court in which it is begun or not, the defendant must be brought in court, in some one of the forms provided by law, or a voluntary appearance must be made on his behalf that jurisdiction may attach.
    When the proceedings are on a bond for the appearance of an accused, the call on the principal and the ¡surety, by the sheriff under the order of court, must be made in order that the judgment pronounced may be valid. This formality is jurisdictional.
    The plaintiff in injunction, having alleged that there was no process whatever, and having complied with prerequisites by taking- the oath required and furnishing bond to obtain an injunction, the court of her domicil has jurisdiction to hear the cause on the merits.
    Writs of certiorari and prohibition will not issue restraining the District Court from hearing the case on the merits; it being appealable to this court.
    y^PPLICATION for Certiorari and Prohibition.

      Alfred E. Billings for the Relator.

      William L. Thompson for the Respondent.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff in injunction, Eliza Roach, signed a bond as surety, in the sum of $250, for the appearance of one Thomas Jenkins to answer to the charge of forgery before the Seventeenth Judicial District Court for the parish of St. Mary.

A fi. fa. having been issued and her property seized by the sheriff of the-parish of Jefferson, the surety, Eliza Roach, sued out an injunction to prevent the sale of her property, consisting of certain lots in the village of McDonoghville, in the parish of Jefferson, in which she is domiciled.

The grounds of injunction are broadly stated:

That she has never received any legal notification to produce the body of Thomas Jenkins.

That no citation was ever served upon her or any other legal proceeding had against her; that she never received any legal notification to pay any sum of money; that Jenkins is now in jail in the parish of St. Mary, and that the bond for his appearance should be canceled, because its conditions are complied with.

That the seizure is void.

The relator interposed a rule in the District Court to dissolve the injunction, upon the ground that the Judicial District Court for the parish of Jefferson was without jurisdiction to enjoin the execution or declare null a judgment of the District Court of the parish of St. Mary.

Further, that the court was without jurisdiction to enjoin the execution or declare the judgment null.

There is no evidence before us that any judgment was pronounced.

The rule before the court a qua was discharged.

The District Court stated as reason for discharging the rule that, if the court is without jurisdiction to enjoin the execution or declare the nullity of the judgment, the plaintiff might show improper execution on the merits, and that certain allegations of the plaintiff in rule to dissolve the injunction were unsupported by needful proof.

After the court had thus ruled an exception was filed setting forth the same grounds as in the rule.

The respondent judge, in answer to the rule nisi issued by this court returns that the fi. fa. is a nullity for want of notice of judgment; that the only evidence submitted on the ¡trial of the rule to dissolve and in support of the plea to the jurisdiction was the writ of fi. fa. enjoined, and that there has been no joinder and no opportunity afforded him to determine the issues of law and fact.

The ease is appealable to this court.

The relator propounds one question as involving all the issues of the case.

Has the Twenty-first Judicial District Court for the parish of Jefferson jurisdiction to declare null a judgment pronounced by the Seventeenth Judicial District Court for the parish of St. Mary, and enjoin the execution of that judgment at the instance of a defendant?

Let us see:

In the first place the question contains a petitio prineipii, for it assumes as proven that there is a judgment enjoined, the nullity of which is sought.

There is no evidence before us of any judgment whatever.

The plaintiff in injunction, Eliza Roach, has assumed the responsibility of alleging in general terms that none of the required formalities to obtain a judgment against her have been observed.

At this stage of the proceedings the issue is the existence vel non of any of the required formalities.

There are grounds alleged for the injunction entirely ultra the law authorizing an injunction, and without the least foundation in law, such as that the surety received no citation or notice.

If this refers to a citation preceding the motion to forfeit the bond the position is absolutely untenable and should not be for a moment considered, for the law is clear that no notice or citation is required, nor is the surety to be notified to produce the body of the principal, further than the call made by the sheriff under the order of the court, on the principal first, and afterward on the surety if the principal fails to answer when called.

If this call, which is made in court, is the formality the defendant contends has not been complied with, it was indispensable and vitiates proceedings subsequent.

The broad allegation of the petition for the injunction includes non-service of any notice of judgment of forfeiture.

In some respects the grounds of injunction are not clearly defined.

Sufficient remains to justify the ruling that the case be heard on the merits.

The allegations upon the face of the papers suggest the unavoidable inference that there was not actual process to sustain a ft. fa.

In Lawes et al. vs. Chinn, 4 Martin N. S., page 388, this court held the injunction was a remedial writ against the sheriff to prevent an immediate injury which could not otherwise be effectually warded off, and the plaintiff was necessarily cited to gainsay the allegations of the party and assert his rights. Ex necessitate rei, it must-have issued by the judge of the parish in which the execution was to be carried into effect.

The question received brief consideration in case of Police Jury of West Baton Rouge vs. Michel et al., 4 An. 84, and in Hobgood vs. Brown, 2 An. 323.

The plea is not that the process is voidable, but that it is void.

It would be a hardship to compel a person to repair to a distant parish to plead if a process is absolutely void.

The jurisdiction quoad the seizure does not attach unless it is predicated of process sufficient to give the seizure the appearance of legal sanction.

If entirely wanting in process, there can be no seizure made that will divest the court of the domicil and of the situs of the property from arresting a void seizure.

We express no opinion with reference to any of the issues, save to decide that the plaintiff in injunction, having assumed the burden of proving that all proceedings are void, should be heard in support of the allegations.

The rule that the execution of judgment belongs to the court by which the cause has been tried remains unchanged, and is not enlarged by our decision in this case.

We adhere to the principles laid down in Arthurs vs. Sheriff, 43 An. 416, from which we do not depart by deciding that in proceedings entirely void a defendant is not without remedy before the court of his domicil.

That the litigation may be abbreviated and the plaintiff in injunction may be enabled to avoid costs to a large amount, adding to her burden as security, we have been led to analyse the allegations of her petition and to read between the lines. We are inclined to think, without assuming too much, that ultimately the issues will reduce themselves to the want, possibly of the service of notice of judgment, or possibly as to the effect of a waiver. In that case, the District Court of St. Mary parish alone has jurisdiction.

It had jurisdiction to have the principal called and his surety, and to pronounce judgment on their default. That was the condition of the bond. The want of notice of judgment is not jurisdictional.

It is therefore ordered and decreed that the rule nisi be rescinded, and the application herein be refused.


text:
    No. 11,352.
    State of Louisiana vs. Jean Dubarry.
    An ordinance within the power delegated is not illegal.
    Aet 116 of 1888 delegates to the City Council the authority to prescribe by ordinance “ the manner private markets shall be kept.”
    If the power is not specially announced, the terms of the act cover an implied power in the council.
    Under an implied power the reasonableness of an ordinance is a judicial question for the courts.
    The records do not disclose any evidence to show unreasonableness of the ordinance.
    Without evidence establishing the unreasonableness of the ordinance the court will not decide that it is unreasonable, and that the plan proposed by the defendant for his market house is reasonable, and offers every security for clean- ( liness and ventilation.
    The ordinance assailed by the defendant is reasonable; it is not oppressive, nor is it ultra vires,

    APPEAL from the First Recorder’s Court of the City of New Orleans. Whitaker, J.

      T. B. Bozier, Assistant City Attorney, and B. A. O’Sullivan, City Attorney, for Plaintiff and Appellee.

      W. J. Waguespaek for Defendant and Appellant.
   The opinion of the court was delivered by

Breaux, J.

The accused was convicted and fined for violating an ordinance of the City Council relating to private markets, and from the judgment condemning him he appeals.

His grounds before this court are that the ordinance is unreasonable, oppressive and ultra vires.

The ordinance assailed for illegality prescribes that the private market shall measure 10x15 in superficial area, 16 feet in height from floor to ceiling; that it shall moreover be separated from the nearest building by a distance of 3j^ feet, and be well ventilated; the floor to be of flagging or cement; that the stalls and stands be washed and cleaned daily, and kept in the highest state of cleanliness.

The defendant admits that his building is less than sixteen feet from floor to ceiling; that it is less than three and one-half feet from the nearest building; that the floor is of wood, and not of flagging and cement.

The right to keep private markets was granted by the Legislature, and in thus granting the right they were subordinated to the police power for the maintenance of cleanliness and salubrity.

To the Oity Council the power to govern and regulate the private markets was delegated.

It is not unreasonable in a city imperfectly drained, located on low lands near marshes and swamps, in a warm climate, to adopt an ordinance requiring that the building shall be ventilated and the floor cemented.

It is, on the contrary, reasonable to guard against local causes, and tobe alert not to expose a large population in a malarious atmosphere.

The defendant wishes to substitute his judgment regarding these market buildings to that exercised by the public authorities in adopting an ordinance they deemed the public health required.

Should we allow the demand, and the defendant were to establish a private market such as his interest or judgment suggests, others also would doubtless be pleased to make a similar departure from the requirement of the ordinance assailed by the defendant, and in a short-time all health ordinances regulating these markets would be defeated and rendered useless.

Such prostration of regulations for public health can not be thought of for a moment.

The defendant argues that the ordinance operates oppressively.

The ordinance is one ordained under a law of necessity.

In order that an ordinance may be declared oppressive it must be partial and unjust.

The ordinance is general and applies to all who follow the occupation followed by the defendant. They are all subject to the same law, and required to conform to the regulation imposed in public interest.

The licenses are issued upon the condition that the occupation shall be conducted in aecox'danee with the laws and ordinances adopted under proper authority.

Nor can it be said that the ordinance is unjust in the sense that it is oppressive.

The regulations of public corporations for their police and health are obligatory upon all persons who are within their authority, provided they contain nothing unauthorized or contrary to law.

In obeying this ordinance the defendant will not be subjected to anything unjust and unreasonable.

Ordinances to maintain the cleanliness of market places are not unjust, but are prompted by the highest regard for the safety of the community, and it is only an act of justice to take precautionary measures to suppress anything that may be hurtful to life or prejudicial to health.

Every person owes a certain duty to the public, and one of these duties require, that the public shall not be exposed to nuisances of any kind.

It was to prevent possible nuisances that the ordinance was adopted, and in thus guarding against the possibility of a nuisance no injustice has been committed.

The position of the defendant that the ordinance is ultra the authority of the council is equally as untenable.

The question suggests itself, why was the law No. 116 of 1888 enacted if it does not grant additional authority to the council?

Prior to its enactment the police power of the council was sufficient to enact all proper regulations falling under that power, under the terms of the charter.

If it did not delegate authority to the council to adopt the ordinance assailed, the act added nothing to previously existing authority.

We do not so interpret the act.

The legislative will is obvious and expressed with clearness sufficient not to be misunderstood.

By the terms of the statute the Oity Council is authorized to adopt such ordinances for the government and regulation of private markets as they in their discretion may deem proper, and they “ may prescribe by ordinance the manner in which such private markets shall be kept.”

This covers the authority to adopt such ordinances as will maintain proper cleanliness and secure sufficient ventilation.

The least negligence may be hurtful and affect the public; the injury possible being common to all the ordinance is reasonable, not oppressive and not ultra vires.

When properly regulated and conducted with due regard to cleanliness, defendant’s trade is not an offensive trade, and is as legitimate as any other business, but this lawful and necessary occupation must be exercised under proper regulations to protect the public.

Moreover, there is no evidence of record showing that the ordinance is unreasonable.

Without any testimony whatever before us upon the subject, we will not assume that the ordinance assailed is unreasonable.

Without any evidence to prove its unreasonableness the illegality on that ground can not be established. ■

The occupation being legitimate in every respect, highly useful as well as indispensable, we have heretofore held that it should not, for that reason, be subjected to needless restrictions.

We will not extend the scope of that decision so as to relieve them from the necessity of closely and actively observing every ordinance enacted under the statutes to protect against the least negligence that may be hurtful and affect the public.

The judgment appealed from is affirmed at appellant’s costs.


text:
    No. 11,283.
    Henry Caspar vs. J. G. Prosdame.
    Under the general issue in a suit for damages for injury to feeling and humiliation caused by an assault by the defendant on the plaintiff, and by the use of opprobrious epithets by the former, evidence of irritation and provocation was admissible in mitigation of damages, but was not admissible to defeat the action. ' /
    When the clear right of a person is invaded, he must be entitled to an action against the party who inflicted the injury.
    .Assaulting a person and denouncing him in the presence of bystanders in a court building, in the presence of officers of the court as a thief, and as having robbed the party denouncing him, and his threats to cowhide the person, are indignities and insults actionable in themselves, without reference to character or reputation.
    Even if a person has abad character he has a right to be let alone, and to immunity from personal attacks.
    Even if he has no reputation, he should not be denounced as a thief if he is not a thief.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Moise & Calm for Plaintiff and Appellant.

      Dinkelspiel & Hart for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, a young man, was the patentee of a collar and cuff rack, used for advertising purposes, by placing the advertisement in the rack.

He contracted in writing with the defendant to place his advertisement in his racks and put them in a stated number of shaving saloons' and billiard halls in the city of New Orleans.

No particular names or places where he was to place his racks containing defendant’s advertisement were mentioned in the contract.

The defendant having refused to pay the balance due to the plaintiff under the terms of the contract, the plaintiff brought suit against him before the First Oity Oourt for the amount he claimed.

At the first fixing of the ease for trial it was not tried.

Immediately after the continuance, as plaintiff was leaving the court room, he passed the defendant, who called upon him to stop, at the same time said that he wished to see him.

Walking together to the hall of the court building, the defendant, between his two friends who were standing near, pressed the plaintiff against the wall and assaulted him; put his hand upon him in a fit of anger.

The defendant, Prosdame, at the time, uttered words abusive, vituperative and insulting, and charged the plaintiff, Caspar, with having violated his contract; with having robbed him of his money; with being a thief, and threatened to cowhide him.

A short time after the occurrence the plaintiff called at the office of one of the witnesses, who testified that he was quite excited and began crying.

The petition alleges that defendant’s conduct was malicious, for the purpose of injuring petitioner, and prevent him from prosecuting his case against the defendant, and for the further purpose of humiliating and insulting him.

Prior to the date of the insult it had been the intention of the plaintiff to leave the city.

After he had been thus treated he determined to remain, and at his instance his case against the defendant was set for trial.'

After the testimony had been heard on the trial, the court pronounced judgment in his favor.

The defendant, without availing himself of the right of appeal, paid the judgment.

The judgment sustained Caspar’s interpretation of the contract.

The plaintiff subsequently brought suit and prayed for actual, punitory and exemplary damages in the sum of 15000.

The defendant pleaded a general denial.

The judgment of the court a qua rejected plaintiff’s demand.

The court admitted testimony which was offered to prove irritation and provocation.

The court admitted it and limited its effect to the mitigation of damages, and decided that it was not admissible under the general issue to prove irritation and provocation.

To the ruling a bill of exception was reserved by plaintiff.

The testimony offered to prove provocation and cause of irritation consisted of verbal conditions superadded to the written contract, the defendant contends.

The only evidence upon the subject is that of the plaintiff and of the defendant; one asserts that there was additional stipulation, the other denies.

The evidence was admissible in mitigation, and was properly admitted with the restriction made. Hitchcock vs. North, 5 R. 328.

There was no testimony offered of character or reputation of the plaintiff.

The plaintiff claims damages for injury to hi3 feelings and for the humiliation to which he has been subjected.

No claim is made for injury to his character or reputation.

Our first impressions were that the restricted character of the demand left no ground for damages, and that the cause of action alleged was not per se actionable; that character and reputation are requisites to be considered in suits of this nature.

Upon further consideration and examination of authorities we conclude that they are not always indispensable.

If a person has no character, or even a bad character, he has a right to be let alone; to immunity from personal attacks and assaults.

It is a personal right, independent of character.

If made without sufficient provocation the assault is grievous and wanton, and the lack of character of the person assaulted is not a sufficient defense or justification of the act, although it may be a fact considered in mitigation of damages.

Damages in the case of assault include 'the humiliation and the mental and bodily suffering.

Relative to reputation, as an indispensable elementof damages in cases of the character of the one at bar.

The person may be an entire stranger; still, he certainly has a right of action to protect himself from the charge of having committed larceny, if he is entirely innocent.

A man of a reputation not good, may have that said of him which is untrue, and thereby subjected to wrong.

The merest vagabond should not be denounced as a thief if he is not.

He would only be without right of action if the charge be true.

If it be untrue, it would be a sad condition to let him remain remediless on account of reports, true or false, not having the least bearing upon the offence charged.

The assault and the words charged as having been uttered are proven.

The character of the occurrence was aggravated by the time and place at which the indignity and insult were offered.

It was at the court building, in the presence of officers of the court, and immediately after the case, by agreement of counsel, had been postponed to another day.

In Mohrman vs. Ohse, 17 An. 64, the court held that the words were slanderous (the defendant was denounced as a thief), and from the nature of the epithets used and the place where uttered the evident purpose was to destroy confidence in the person slandered.

In the case at bar loss and impairment of confidence are not issues. '

The humiliation and the wrong are, and the place and circumstances add to the injury inflicted.

An assault was committed. The plaintiff was without cause charged with a crime.

The defendant therefore owes damages which must be assessed with reference to the testimony admitted in mitigation of damages.

“Damages may be assessed without calculating altogether on the pecuniary loss or the privation of pecuniary gain to the party. *

* * In the assessment of damages under this rule, as well as in cases of offences and quasi offences, much discretion must be left to the judge.” R. C. C. 1934.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed, that plaintiff have judgment against the defendant for the sum of |500, with interest from date of judgment, and that the defendant pay the costs of both courts.


author: Watkins, J.

text:
    No. 10,652.
    State of Louisiana vs. Maurice J. Hart.
    1. It appearing that constitutional bonds which had been, prepared by the proper officers appointed by law tor that purpose, possessing all the indicia, of genuine bonds of the State, had been delivered into the custody of the State Treasurer for the purpose of making an exchange thereof for consolidated bond,s of the State, in pursuance of the provisions of the Constitution and law, and that the said Treasurer had fraudulently and illegally entered in the blank spaces or shields upon said constitutional bonds numbers purporting to indicate the numbers of the consolidated bond surrendered in exchange therefor, and that he had subsequently and surreptitiously issued and placed same into circulation as bona fide and genuine obligations of the State, same are fatally stricken with absolute nullity in their inception, and antecedent to their issuance, and being placed in circulation as unconditional promises of the sovereign to pay.
    2. Such paper is void in the hands of any holder, as it is the settled rule of the law merchant that when it is shown that the instrument was given for a consideration which, by statute, is declared void, the original taint follows it, and it is void in the hands of every holder, however innocent, and that no party can enforce a negotiable instrument if it be not genuine or if it be executed by a party incapable of entering into the contract in which it was given.

      S. But the rule of law is, as established by the weight and current of authority, as well as the law merchant, that the fraud which shifts the burden of proof upon the holder to establish the bonafides ot his acquisition must be in the consideration or the representations used in obtaining the execution of the instrument, and not in the after breach of trust in diverting it from the uses for which it was intended.
    4. In order to constitute a valid security, any bond or negotiable obligation of the State must be issued on authority of the Constitution and statute law of the State; and the powers and duties of officers and agents of the Government, whether Federal or State, are defined by statute, which is notice to the world of the limitations that are placed upon their authority.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      M. J. Ounningham, Attorney General, and Walter H. Rogers for Plaintiff and Appellee:
    The State may not be sued in reconvention without her consent.
    Forged instruments convey no title. State bonds are not negotiable instruments in the sense of the law merchant. To so denominate them is an abuse of their true character and purpose.
    The government does not undertake to guarantee to any person the fidelity of the officers and agents it employs.
    This action is similar to the case of the State of Louisiana vs. Laura Gaines, No 10,619 of the docket of this court, now pending on rehearing.
    As to the character of the bonds (constitutional, issued under the terms of Act 121 of 1830) the facts are identical. The State found some $34,000 of these bonds in the possession of the defendant, caused them to be sequestered, and they are now in the hands of the, sheriff. The case was tried in the District Court before a jury and there was a verdict for plaintiff and judgment accordingly.
    Farrar, Jonas & Kruttsehnitt for Defendant and Appellant :
    1. Under Act 121 of 1880, p. 154 of the Acts of that year, bonds of the State, perfect in every respect and ready to be issued, were delivered to the Treasurer of the State of Louisiana, who had the power, without the concurrence, knowledge or consent of any other official whomsoever, to issue such bonds in exchange for consolidated bonds of the State of Louisiana, and the law provided for no record whatsoever to be kept in the Treasurer’s office of the fact of any exchange of bonds, nor did it require the performance of any formalities of any kind whatsoever in reference to such issue, save the trifling one of identifying the new bond with the old one for which it was exchanged, by placing a number upon the new bond the same as the one on the bond for which it was given in exchange.
    '2. When a State enters the markets of the world to borrow money or to pay her debts in bonds or commercial paper of any form transferable by endorsement or delivery, she becomes subject to the same rules of the law merchant that affect or operate on private persons dealing in the same class of paper, by which rules any “ innocent holder before maturity ” is exempt from inquiry into the circumstances under which the obligation was first put into circulation. Floyd Acceptance, 7 Wall. 675; Cooke vs. United States, 91U. S. 396; Murray vs. Charleston, 96 U. S. 445; Louisiana vs. Jumel, 107 U. S. 740; United States vs. Bank of Metropolis, 15 Pet. 392; United States vs. State Bank, 96 U. S. 30; Morgan vs. United States, 113 U. S. 483.
    3. When commercial paper is signed by one person purporting to bind another, the holder must, at his peril, see that the authority to issue the paper exists, but ii>the authority does exist, he is not bound to inquire whether or not it has been properly exercised.
    4. The bonds in this case having been issued by the officer authorized by law to issue them, and in manner and form required by law, are in the hands of any liona fide holder for value valid and legal obligations of the State, even though fraudulently issued by the Treasurer. The power to issue existed, however wrongful its exercise may have been. The holder was bound to see that the power existed; he was not bound to see that it was properly exercised.

      5. Even if it be assumed that the State can repudiate these obligations, by showing that the Treasurer issued the bonds fraudulently, and for a different purpose than that prescribed by the Constitution and the Act of 1880, nevertheless plaintiff is entitled to recover a most only $31,000 of bonds out of the $54,000 sued for, because no evidence whatever is produced tending to show the rest of the bonds to have been fraudulently issued by the Treasurer.
    6. Defendant is a bona fide holder, for value, of these bonds, acquired by him before maturity, unaffected by any knowledge of the frauds of the State Treasurer, and in his hands they are valid obligations of the State.

      1. The State is not authorized in law or in equity to invoke judicial process to wrest from the hands of her apparent creditor the sole evidence of the latter’s claim against her.
   The opinion of the court was delivered by

Watkins, J.

Olaim.ismade of the defendant for the restitution to the State treasury of the aggregate amount of sixty-one thousand dollars of alleged fraudulently issued and illegal constitutional bonds of the State of Louisiana, of the denomination of one thousand dollars and five hundred dollars respectively, on the substantial averment that all legal and valid bonds of the State are by law entrusted to the care and custody of the State Treasurer for safe keeping, and that, in violation of his trust, one E. A. Burke, Treasurer, did illegally and fraudulently embezzle and convert to his own use, $71,000 of certain constitutional bonds, taking same from the treasury of the State and placing them in the hands of the defendant and other persons, from whom he obtained large sums of money thereon.

More specifically stated, the averments of the State’s petition are,, that in pursuance of the constitutional debt ordinance, the issuance of certain bonds, known as constitutional bonds, was authorized, and outstanding bonds of the State, known as consolidated bonds, were permitted to be given in exchange therefor, at 75 per centum of their face value.

That thejjState caused $7,000,000 of such constitutional bonds to be engraved; and of those bonds the Auditor and Treasurer presented to the Governor for his signature $621,000, and he signed same, and caused the great seal of the State to be thereto affixed; and, when thus completed and perfected, same were turned over to E. A. Burke, Treasurer, for the purpose of consummating an exchange thereof for consolidated bonds.

That consolidated bonds amounting only to the sum of $290,200 were offered for exchange and actually surrendered and exchanged; and for which there were actually given in exchange constitutional bonds to the amount of $217,600; and that beyond that sum there has been no legal and proper issue of said bonds.”

That the said constitutional bonds were, by law, entrusted to the care and custody of the State Treasurer, and same can only be issued or used by him in lawful and proper exchange for consolidated bonds in the manner aforesaid.

That, notwithstanding such legal impediments, said Burke, Treasurer, “ did illegally and fraudulently embezzle and convert to his own use $71,000 of said constitutional bonds, taking same out of the treasury of the State and placing them, after fraudulently numbering them, in possession of divers persons, and among them M. J. Hart, and obtained large sums of money therefor, said Burke receiving a large portion of the money obtained.

“That said bonds are the property of the State of Louisiana, and represent, in value, the sum of $71,000, as well as (being) the evidence of the fact that $100,000 of valid consolidated bonds have been paid and destroyed.

“ That the interest at the rate of 4 per cent, per annum, from January 1, 1880, has been paid on said fraudulent bonds, and collected from the State, which sum, together with said fraudulent bonds, should be returned to the State.

“That Burke thus delivered to the defendant $61,000 of said fraudulent constitutional bonds, which are represented by certain specified numbers, forty-four of which are alleged tobe of the denomination of one thousand dollars each, and thirty-two of them of the denomination of five hundred dollars each.

“That said bonds had been pledged by Hart to various banks of the city of New Orleans, “ but since the first day of September, 1890, at the call of the banks, he has retaken possession of said bonds, and same are now in his custody and control.

“ That the bonds should be returned to the State treasury, where, as the property of the State, they of right belong.”

The prayer of the petition is for the maintenance of the sequestration of the bonds, and for judgment condemning defendant to return the bonds and interest to the State treasury.

~ Prefaced by a general denial, defendant’s answer is that, at date of institution of this suit he was in possession of seventy constitutional bonds, being in part the bonds described in plaintiff’s petition. It then gives a description and an enumeration of the bonds in his possession, which includes all of the five hundred dollar bonds, and thirty-eight of the one-thousand dollar bonds mentioned and described in plaintiff’s petition — only omitting from the list the one thousand dollars bonds bearing the numbers 243, 244, 245, 246, 247 and 248, aggregating in amount $6000.

It avers that defendant acquired said bonds in due course of business, before their maturity in good faith, and for a full and valuable consideration. That same were and are negotiable instruments, and he can not be, in any manner, affected by any defects of title in any one from whom he acquired same.

It then proceeds to specify in detail the time, manner and circumstances under which he acquired same, a fair summary of which is, that during the winter and spring of 1888 he made to E. A. Burke sundry loans of money, aggregating $60,000 in amount, and for which loans Burke executed his demand notes, payable to defendant’s order, to which said bonds, in similar amounts, were attached as collateral security; and that same were discounted at market rates prevailing at the time.

The answer further represents that the effort on the part of the State to recover the bonds is an attempt to impair the obligation of protected contracts existing between him and the State, and to divest him of his vested rights of property therein, in violation of the State and Federal Constitutions.

In reconvention, the defendant prays for the recognition of the bonds in suit as legal and valid obligations of the State, entitling him to hold and retain same in his possession in pledge to secure the amount of his loans to Burke, with interest and cost.

On the issues thus stated, the cause went to trial before a jury, and a verdict was rendered in favor of the State for the restitution of the bonds named without interest, and thereupon judgment was rendered accordingly against the defendant, commanding him to return same — rejecting and disallowing the State’s demand for interest, and the defendant’s reconventional demand.

After making an unsuccessful effort to obtain a new trial, defendant obtained and prosecutes this appeal; and, as this plaintiff has made no answer to this appeal, requesting any amendment of the judgment appealed from, the questions for consideration are limited to two, viz.:

First — Whether the constitutional bonds in controversy were fraudulent and illegal in their inception and issuance, thus entitling the State to judgment declaring same absolutely null and void.

Second — Whether, in any court, the defendant is entitled to take judgment against the State, upon his reconvention demand — there being invoked no enabling statute authorizing him to sue the State.

In the petition of the State the issue is squarely made that the constitutional bonds sued for were absolutely illegal and void in their inception — the specific averment being, that they were entrusted to the custody and safe keeping of the Treasurer, for issuance in exchange for consolidated bonds, in pursuance of the constitutional debt ordinance; the same having been engraved, signed and sealed, previously, as directed by a special statute, as contemplated by said ordinance.

The further specific averment of the petition is, that there were $620,000, in amount, of bonds thus prepared and turned over to the Treasurer for purposes of exchange, but only two hundred and ninety thousand two hundred dollars of consolidated bonds were surrendered in exchange, and for which only two hundred and seventeen thous- and six hundred dollars of constitutional bonds were issued legally and given in exchange; and ‘ ‘ that beyond that sum there has been no legal and proper issue of bonds.”

That notwithstanding said constitutional bonds had only been entrusted to said Treasurer for the single purpose of effecting the exchange aforesaid, and same could only be issued, or used by him in making a lawful exchange, said Treasurer did illegally and fraudulently embezzle and convert to his own use $71,000 of said constitutional bonds, taking same out of the treasury of the State, and placing them in the possession of divers persons, and among them M. J. Hart (the defendant), and obtained large sums of money therefor, said Burke (Treasurer) receiving a large portion of the money obtained.”

That is to say, that whilst the [bonds in question were perfect in form and possessed of all the indicia of legal and valid constitutional bonds, yet they were only entrusted to the State Treasurer for the purpose of exchanging them for consolidated bonds, and that the Treasurer embezzled them and put them in circulation fraudulently and surreptitiously, without any constitutional bonds having been received in exchange therefor — that is to say, without consideration.

In the petition it is further alleged that upon the face of each one of said constitutional bonds there are two spaces or shields left blank when same were delivered into the custody and possession of the Treasurer, same being intended by the terms of the statute in question for the number of the consolidated bond surrendered to be placed in one, and the number of the constitutional bond issued in exchange therefor to be placed in the other, and that said Burke, Treasurer, falsely and fraudulently forged the numbers in the said constitutional bonds that he embezzled, in order to give them the appearance of having been validly and legally issued in exchange for consolidated bonds, when in fact they were not.

On the trial the validity of the bonds at date of their issuance was the question principally mooted, and with regard to which a large amount of evidence was taken.

In the brief of the Attorney General is given a full and complete résumé of this evidence, and we have embodied it as the most accurate way of conveying an idea of it.

It is as follows:

The defendant does not seriously contest the facts enumerated, but rests his defence mainly on his alleged acquisition of the bonds in market overt and in good faith — they possessing all the indicia of valid and legal commercial instruments, entitling them to full faith and credit in commercial transactions — and that the effort of the State to recover them is an attempt to impair them as contracts protected under the State and Federal Constitutions.

Counsel for the defendant insist that the question presented for solution is res nova, and not covered by our decision in Pugh vs. Moore, Hyams & Co., 44 An. 209; and in their brief they insist that neither that case or any other decision of this court has involved the question in controversy.

In the Pugh ease the court had under investigation that series of bonds known as the Agricultural and Mechanical College bonds, claim being made that same had been rendered void by the precept of the 233d article of the Constitution of 1879 — same being consolidated bonds that were regularly and legally issued under and in pursuance of the funding laws, sanctioned by a constitutional amendment, and had, prior to the adoption of the Constitution of 1879, formed a part of bonded debt of the State.

The case of Herwig vs. Richardson & May, 44 An. 703, adopts and follows the opinion in the Pugh case, as it treats of Agricultural and Mechanical College bonds likewise.

Hence our conclusion is that defendant’s counsel is correct in stating the question to be res nova, but in our view the situation and strength of his defence is not improved thereby.

It is the recognized and fundamental doctrine of the law merchant, and accepted by text writers and acted upon by the courts of the country, that the holder of a negotiable instrument is one who has acquired it in good faith for a valuable consideration from one capable of transferring it in the ordinary course of business, without notice of facts which impeach its validity as between antecedent parties; that such a holder possesses a title unaffected by those facts and may recover on the instrument, although it may be without any legal validity as between antecedent parties; even though it was originally obtained by fraud, theft or robbery. 1 Daniels on Negotiable Instruments, Sec. 769.

That author further states the doctrine thus:

“ It is to be observed, as a general rule, the purchaser can never be placed on a worse footing than his transferrer, although he himself could not, in the first instance, have acquired the vantage ground occupied by such transferrer.

“And, therefore, even if he have notice that there was fraud in the inception of the paper, or that it was lost or stolen, or that the consideration had failed between some antecedent parties, or the paper be overdue and dishonored, he is, nevertheless, entitled to recover, provided his immediate vendor be a bona fide holder for value unaffected by any of these defences.” Id. 803.

That principle is recognized in Commissioners vs. Clark, 94 U. S. 285, and sanctioned by us in Levy vs. Ford, 41 An. 870.

Thus it appears that the possessor of a negotiable instrument by such title is fully protected against charge of fraud, or theft, or failure of consideration between antecedent parties, and that the rule of property in such paper is so strong that such holder can convey to another a valid and indefeasible title, although the latter knew of its inherent defects. i

But the learned author also states an important exception to that rule. He says:

“ That suspieion of defect of title, or knowledge of circumstances which could excite suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title, * * * subject to the following modifications, or qualifications, viz.:

“1. That when it is shown by the defendant that the instrument originated in fraud or illegality; the burden of proof will be shifted to the holder, and he must then prove that he is a bona fide holder for value.

“2. Where it is shown that the instrument was given for a consideration which, by statute, is declared void, the original taint follows it, and it is void in the hands of every holder, however innocent. And that no party can enforce a negotiable instrument if it be not genuine, or if it be executed by a party incapable of entering into the contract in which it was given.” (Our italics.) Id., Secs. 769, 806.

The author generalizes the principle and says:

■ “ But the rule of the text is, we think, in conformity with the current and weight of authority and the law merchant. The fraud which shifts the burden of proof must have been in' the consideration, or representations used in obtaining the execution of the instrument, and not in the after breach of trust in diverting it from the uses for which it was intended.” Id., Sec. 791.

This distinction has been taken, substantially, in many reported cases: Jackson vs. Commercial Bank, 2 R. 128; Dick vs. Leverich, 11 La. 573; Merchants Bank vs. Exchange Bank, 16 La. 457; Bullitt vs. Howell, 11 An. 327.

It has also been taken by the Supreme Court in many cases: Otis vs. Cullom, 92 U. S. 447; Orleans vs. Platt, 99 U. S. 679; Shaw vs. Railroad Company, 101 U. S. 557; Collins vs. Gilbert, 94 U. S. 753; Cromwell vs. County of Sac., 96 U. S. 59.

It is also succinctly stated in a recent treatise on commercial paper that “in order to constitute a valid security, any bond or negotiable obligation of the State must be issued on authority of the Constitution and statute law.” 1 Randolph on Commercial Ins., Sec. 348.

And the same author lays down the general proposition that the powers and duties of officers and agents “of the government, whether Federal or State, are defined by statute, which is notice to the world of the limitations of their authority.” Id., Sec. 440.

He also announces the principle that “the defence of original want of authority to issue a bond is available against all holders.” Id., Sec. 343.

On the facts above enumerated and on the various authorities cited, we are of opinion that the bonds sought to be recovered of the defendant were absolutely void in their incipiency, having been issued by E. A. Burke, Treasurer, without authority of law and in violation of the law — constitutional and statutory — authorizing their issuance, in exchange for consolidated bonds duly and lawfully surrendered.

It has been clearly shown that they originated in fraud and issued by a person incapable, under the law, of entering into such a contract on the part of the State as they represent, same having been issued without the sanction or authority of the State. And it was the manifest and evident duty of all persons dealing in this exceptional class of commercial paper to take notice of the laws authorizing its issuance; such laws operating full notice to them of the manner and circumstances of their issuance and of the limitations that the law imposes upon the officers authorized to issue them.

In such case the original taint follows the instrument and renders it void in the hands of every holder, however innocent.

Hence the defence of bona fldes can not avail the defendant — it being matter of no consequence that he acquires the bonds for a valuable consideration before maturity and without notice of the original informality of their issuance.

Counsel insist, however, that the statute authorizing the issuance of constitutional bonds gave to the Treasurer unlimited authority in the premises, and conferred upon him the power — without the concurrence or knowledge of any other officer — to issue such bonds in exchange for consolidated bonds, and that he was required to keep no record whatever of the fact, or manner of making the exchange; nor was he required to perform any given ceremony, or formula, “save the trifling one of identifying the new bond with the old one for which it was exchanged, by placing a number on the new bond, the same as the one upon the bond for which it was given.”

But this was not a “trifling” ceremony by any means. On the contrary, it was of the utmost consequence and importance. The numbers placed on the shields or spaces left blank in the bonds when delivered to the Treasurer furnished the only means of identifying one constitutional bond from another, and furnished the only evidence of his faithful performance of duty in obtaining a consolidated bond in exchange therefor. The surrender of the consolidated bond was the only consideration there was for the constitutional bond; and when the Treasurer entered false and fictitious numbers in those spaces, or shields, he was, to all intents and purposes, guilty of a forgery. Vide Benson vs. McMahon, 127 U. S. 468, and authorities therein cited.

The constitutional bond being intended for exchange for a consolidated bond, same was not complete and perfect until the exchange had taken place and the number of the consolidated bond surrendered had been entered in the appropriate shield, as the law required, as evidence of such exchange having taken place.

Until this was done the constitutional bond did not become complete and perfect evidence of an obligation on the part of the State. That was requisite to make it an unconditional promise to pay.

In this we find an essential distinction between the constitutional bond in question and the United States treasury notes that were .involved in Oook vs. United States, 91 U. S. 390; for, in that case, it was a fact conceded, that if the notes were genuine and unlawfully put in circulation, the government was bound for their payment to a bona fide holder; and the court said the notes were perfect and complete as soon as printed; that they did not require the signature of any officer; that “as soon as they had received the impression of all the plates and dies necessary to perfect their form they were ready for circulation and use,” putting their opinion evidently upon the ground that the notes were perfect in form antecedent to time of their issuance. Consequently those notes did not come within the principle announced by Mr. Daniels, as being fraudulent in inception.

The defendant’s counsel insist that the record furnishes no evidence of the bonds having been issued without consolidated bonds having been given in exchange therefor; and they deny the sufficiency of the proof which the Attorney General claims to have made by the introduction in evidence of a record found in the treasurer’s office of the exchange of bonds, such record being unofficial, same not being by law required to be kept.

But the then Auditor, as a witness states, that the bond book contemplated and required by the act authorizing an exchange of bonds, to be kept by the Treasurer in the treasurer’s office, was missing, and could not be found after diligent examination. He identifies an original list of the bonds exchanged as the one found in the treasurer’s office — that is to say, the list of consolidated bonds that were surrendered, and are supposed to be destroyed. This list is denominated “ Oampbell’s list,” and was obtained from the treasurer’s office at the expiration of the treasurer’s term of office. The data furnished by this list is corroborated by the testimony of the clerk who assisted the treasurer in effecting the exchanges that were made, and his testimony makes it evident that the bonds in controversy were fraudulently issued, without any consideration whatever.

We are unable to find in the record any evidence of the defendant’s possession of the bonds numbered respectively 243, 244, 245, 246, 247 and 248. These numbers are not included in the list of bonds furnished by the Attorney General as those held by the defendant and in possession of the sheriff under the writ of sequestration.

Hence we are of opinion that same were incorrectly included in the verdict and judgment, which is, in other respects, correct.

In so far as the defendant’s reconventional demand is concerned, little need be said, for the reason that it merely alleges the legality and binding force of the bonds in his hands as obligations of the State. And inasmuch as, in the course of our opinion on the merits of the principal demand, we were necessitated to pass upon the primary validity of the bonds, there is nothing left in the reconventional demand to decide. We therefore pretermit any expression of opinion on the question of law raised with regard to the jurisdiction of this court, under the circumstances of this case, to render a judgment against the State without the sanction of the General Assembly.

The judgment should be amended and affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be so amended as to reject and disallow the plaintiff’s demand in respect to bonds numbered, respectively, 243, 244, 245, 246, 247 and 248, for one thousand dollars each, and that in all other respects the same be affirmed — the defendant being exonerated from the payment of the costs of appeal.

Mr. Justice Parlange not being a member of this court at time of the argument and submission of this cause takes no part in the de - cisión.

Mr. Justice McEnery absent, sick.