author: Breaux, J.

text:
    No. 11,756.
    Emile Muller vs. P. H. Legendre.
    It is alleged by the defendant in reconvention that a sale of shares in the Carroll' ton Railroad Company was effected for plaintiff’s account on the floor of the Cotton Exchange. The plaintiff denies that such a sale was made with his-authority. The defendant, upon whom rests the burden of proof, affirms. This being the only evidence upon that point, the alleged sale must be considered as-not having been made. The plaintiff and the defendants, as an accommodation to the latter, exchanged checks. The latter plead, that on the day they were to pay and return the amount of the check they made to the plaintiff’s order, they applied the amount to the payment of margins called for by the broker to whom they had sold shares, as above stated, for account of plaintiff.
    The check due by the defendants remained in plaintiff’s possession.
    In account furnished plaintiff, some time afterward, among the several debits, one is mentioned corresponding with the amount of defendants’ check. It is not identified in any respect, further than that there are several similar amounts charged at different times.
    The defendants conducted many business transactions for the plaintiff during a number of years.
    The total margins called fordo notcorrespsnd with total loss on sales short.
    The charge of an amount for margin is not proof of payment of amount due in a separate and independent matter not at all connected with the usual business between the plaintiff and defendants. Shares in bank and other stock, which the broker fails to show he can control, and which he fails to offer to deliver at the time of the trial, can not be charged to the principal as so much due by him, nor can he be charged with amounts and commissions the brokers testify are due to them for advances made for their purchase.

      As it may be that a settlement can be arrived at, just to all parties, and tender made o£ their shares, the plea in reeonvention is dismissed as in case oí non-suit.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Louque & Pomes for Plaintiff, Appellee.

      A. J. Lewis for Defendant and Intervenor, Appellants.
    Argued and submitted, April 13, 1895.
    Opinion handed down, May 20, 1895.
    Rehearing refused, June 3, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, alleging that he is the owner of two checks, one for one thousand dollars, the other for five hundred dollars, the last subject to a credit of two hundred dollars, brought suit upon them to enforce payment. He avers that these checks were presented to the bank for payment, and that payment was refused for want of funds to the drawer’s credit. That the firm by whom they were drawn, composed of H. Legendre and Pierre H. Legendre, was dissolved at the former’s death, in August, 1894. Joseph H. Legendre intervened in the suit and alleged that he and Pierre H. Legendre composed the firm of H. Legendre & Co. since the death .of H. Legendre.

The other, P. H. Legendre, denied the averment of plaintiff’s petition, and specially alleged in his answer that the firm was dissolved, and that he was the liquidator; that as brokers and confidential agents of the plaintiff, they had managed financial transactions of which they had furnished him statements; that the checks sued upon were parts of these transactions, for which he has received full credit, and which he should have long since returned in compliance with their request.

That in these different transactions the plaintiff remained indebted to them in the sum of nineteen thousand four hundred and seventy-five dollars and forty-four cents, for which they claim judgment-Plaintiff discontinued his suit as to the check of five hundred dollars.

The District Court rendered a judgment in favor of the plaintiff for the sum of one thousand dollars, and dismissed the demand of the defendants as in case of wow-suit.

From the judgment the defendants appeal.

Plaintiff and defendants exchanged cheeks on the 8th day of September, 1892. It was a matter of accommodation between them. The plaintiff promised to wait a few days before presenting the check he held for payment.

The defendants as brokers (among their many transactions for plaintiff) made two sales, the first on March 20, 1892; it was, in broker’s parlance, a sale short, seller’s option, to Isidore Newman for plaintiff’s account, one hundred shares of the stock of the New Orleans & Carrollton Railroad Company, deliverable in six months.

The plaintiff admits the first sale as having been contracted for his account, but he earnestly denies that he authorized the second sale. The defendant, Joseph H. Legendre, insists that he made the sale as broker for his (plaintiff’s) account, and that he paid the check in question by depositing a margin. The testimony is conflicting. The defendants earnestly contend that they were authorized to effect the sale, and that having previously deposited margins with the purchaser, in compliance with the contract of sale for plaintiff’s account, they paid over to the purchaser an amount of one thousand dollars on the day agreed upon for the payment .of the cheek.

In making the purchase the name of plaintiff was not mentioned.

We quote from the testimony of the plaintiff:

Q. Be kind enough to state precisely what took place between you and Mr. Legendre, in regard to the matter — the first knowlege you had about it — how did he come to do it ?

A. By his sending me a notice at the time in 1892.

The witness states, in addition, that he informed the defendant, Joseph H. Legendre, that this sale was unauthorized, and did not bind him. The testimony of this defendant is not corroborated. Aside from the conflicting testimony of the plaintiff and this defendant, there is no testimony regarding the alleged sale on the floor of the exchange. All that this defendant affirms about this sale is denied by the plaintiff.

We can not, upon such conflicting testimony, conclude that there was a sale. There were two contracts. It was to secure the last, however (the defendants testify), that the deposit of one thousand dollars was made. The evidence is that it was deposited to secure the last sale, which sale we have just determined is not supported by proof.

We think that it is equally as conclusive that the margins alleged to have been deposited with Isidore Newman, the purchaser, were not deposited to secure the first contract of sale, for the reason that it would have been out of all proportion to the fall in value of the stock, when account is taken of prior deposit, made to secure plaintiff’s interest in the first contract.

The amount of loss on the first of these sales was: New Orleans & Carrollton Railroad contract, one thousand one hundred and seventy-three dollars and seventy-six cents. The deposits, it is asserted, called (by the purchaser of these shares) from the defendants, was four thousand two hundred dollars; balance, three thous- and and twenty-six dollars and twenty-four cents larger than losses.

There was, therefore, no necessity to add the last one thousand dollars to that margin, if these margins were called to secure both sales, as we have reason to believe they were, although it was not proved that they were for the account of the plaintiff.

The loss oil the second sale (the sale plaintiff testifies was not authorized) was .................................................................................................... $2,936 70

First sale.............................................................................................. 1,173 76

Total loss on hoth sales...................................................................... $4,110 46

Margin........................................................................................................... $4,200 00

Still leaving in excess of margin over loss.................................................. $89 54

We are not informed that there was a remittance of eighty-nine dollars and fifty cents made by the purchaser, Isidore Newman, of amount of surplus of remittance over loss.

In any point of view, keeping account of the first sale, the whole of the last payment of one thousand dollars was not applied to the margin or loss on the last sale.

We are not impressed by the importance the defendants’ seek to give to an account identified in evidence by the letter A.” The entry of the account to which our attention is directed, reads: “ September 17, by margins deposited, one thousand dollars.” And it is invoked as notice to the plaintiff, that one thousand dollars was applied to the margin in the last contract and in satisfaction of plaintiff’s check. It is a brief reference to a margin, without any mention whatever of a check or sale.

The defendants say that as plaintiff’s brokers and agents they bought stocks, bonds and other values for him; they accepted delivery, borrowed money on them, divided the stocks and pledged it as occasion demanded to carry on his speculation; that he never saw one-tenth of these securities, amounting to as much as two hundred thousand dollars a year. In view of these extensive dealings, the entry was not notice of the payment of a check.

We have noted, supra, that the liquidator, representing the defendant partnership and one of the partners as intervenor, claims the sum of nineteen thousand four hundred and seventy-five dollars and forty-four cents in reeonvention.

The largest item of this alleged indebtedness consists of a purchase by the defendant for account of plaintiff of one hundred and forty shares of the People’s Bank stock, about December, 1891. In purchasing,’ the defendant’s put up nearly five thousand dollars in addition to plaintiff’s margin.

These shares were pledged by the defendants upon their own notes and in their name.

We are informed by the record that brokers carry contracts in this manner; in their own names for account of their clients.

Subsequently the pledgee of the defendants, Glandot, transferred the stock to his own name for his security and to collect the dividends on the shares and apply to the payment of defendants’ note, secured as to its payment by this pledge.

This transfer of the lender, also, it seems, has the sanction of custom.

We infer from the testimony that in these dealings among speculators and brokers, although the transactions are conducted in the name of the brokers, and although frequently the lender, as here, transfers the property pledged to his own name, yet it is understood that at a stated time the broker will control the investment.

The loan to the defendants was secured by other shares, as well as by the People’s Bank stock.

It is not manifest that the firm now dissolved can deliver these shares. In any event, it is not in proof that the defendants ever called on plaintiff to take up this stock, or that a tender was ever made.

At least the former was a condition precedent to a suit, and we think that under the circumstances even the tender was a requisite.

We have thus far treated this item as separate and independent of the others, But there are a number of items; some are admitted correct by the plaintiff, and others are admitted by the defendants; it follows that a tender of shares covered by one item (Peoples Bank stock, for instance), will not suffice, but that a settlement should be made of all the transactions, based upon the respective rights of the plaintiff and of the defendants.

The judgment of the lower court left these questions open for future settlement. We think it does justice between the parties.

It is affirmed, at appellants’ costs.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,810.
    State ex rel. J. Samuel Liggins vs. The Judge of the Third Judicial District.
    No badge of nullity being exhibited on the proceedings the restraining order must be dissolved, and relief by ceriiarart denied.
    APPLICATION for a Writ of Certiorari.

      Kidd & Van Hook for Relator.

      E. M. Graham iov Respondents.
    Opinion handed down, May 6, 1895.
    Rehearing refused, June 3, 1895.
   The opinion of the court was delivered by

Watkins, J.

Relator’s complaint is that he was sued as defendant in the cause entitled Hamilton & Brooks vs. J. S. Liggins, on the docket of the respondent’s court, for damages alleged to have been suffered by plaintiff by reason of his having made them lose a debt due them by one Arthur Kelly.

He avers that the petitioner’s allegation was that Kelly had traded with them during 1892 to the amount of ninety-two dollars and seventeen cents, and delivered to them two bales of cotton on account, and that the evidence on the trial showed that the cotton was worth sixty-eight dollars and ninety-five cents, leaving the balance of twenty-three dollars and twenty-two cents as the actual measure of damages due. But he further avers that in order to give the court jurisdiction, the plaintiffs averred that he, as defendant, had caused them damage to the extent of one hundred and four dollars in the manner stated above; and that on the trial he objected to the introduction of any testimony, on the ground that the court had no jurisdiction, but the objection was overruled and the testimony admitted.

That on the trial jadgment was rendered against him for the sum of seventy-seven dollars, from which he prosecuted an appeal to the Court of Appeals; and his appeal was dismissed.

That for these reasons he is compelled to apply to this court for relief from a judgment that is illegal, because of it having been rendered by a court without jurisdiction ratione materiee.

The respondent returns that, in compliance with the order of this court, he has annexed thereto a certified transcript of the cause relator refers to as depending in his court, and he affirms that his said court had full and complete jurisdiction thereof, because the allega - gation of the plaintiffs’ petition is that they had sold Kelly goods “to the amount of ninety-nine dollars and seventeen cents and more,” on which indebtedness the price of two bales of cotton had been paid and credited. He avers that thereupon the plaintiffs lay the amount of their damages at the sum of one hundred and four dollars and nineteen cents, and the further sum of twenty-five dollars as attorney’s fees, and for these two amounts they prayed for judgment against the relator as defendant. He further avers that the relator appeared and filed an answer, unaccompanied by any plea, to the jurisdiction of the court; but when the plaintiffs offered evidence on the trial, he interposed an objection to that effect, “ on the ground that he was not domiciled in the parish when the suit was brought.”

He further avers that the evidence adduced on the trial disclosed that, notwithstanding Kelly had paid to the plaintiffs the proceeds of two bales of cotton on his account, he still owed them ninety-nine dollars and seventeen cents at the time he absconded, and this sum, with the interest added, made the sum of one hundred and four dollars and twelve cents, for which the plaintiffs sued and demanded judgment, and attorney’s fees in addition.

Looking into the petition of Hamilton & Brooks against the relator, we find the allegations thereof conform to the statement of the respondent’s return exactly as to the amount demanded, being ninety-nine dollars and seventeen cents and more,” for which the suit was intended to make him responsible, and for which the plaintiffs demanded judgment.

That record shows that, in the first instance, judgment was rendered in favor of the relator, as the defendant, but on the plaintiffs’ application a new trial was granted; and, upon a second trial, judgment was rendered in favor of the plaintiffs, in the sum of seventy-seven dollars and twenty seven cents, from which decree the relator, as defendant, unsuccessfully prosecuted an appeal to the Circuit Court.

From the record and the respondent’s return, it substantially appears that the plaintiffs’ allegation, to the effect that Kelly had dealt with them “ to the amount of ninety-nine dollars and seventeen cents and more,” was by the relator, as . defendant, as well as his counsel, taken' to be the full amount of Kelly’s original account, which the credit of the proceeds of the two bales of cotton reduced to a sum less than fifty dollars, the lower limit of the original' jurisdiction of the District Court. Const., Art. 109.

But such was not the case, as, in point of fact, the total amount of Kelly’s account with Hamilton & Brooks was one hundred and sixty-eight dollars and twelve cents, and when the sum of sixty-eight dollars and ninety-five cents, the proceeds of two bales of cotton, were applied thereto as a credit, the net balance of ninety-nine dollars and seventeen cents was produced.

It was proper for the District Judge to hear and consider evidence on (he question, and to base his judgment thereon, as evidently he did.

For, on the face of the petition, Hamilton & Brooks demanded of the relator, as defendant, a judgment for a sum in excess of one hundred dollars, and relator’s reliance was evidently upon proof to exhibit an inflation of plaintiffs’ demands, for the purpose of maintaining the original jurisdiction of the District Court ratione materise.

His effort in this respect was unavailing in the District Court, and, possibly, he lost his appeal in the Circuit Court on account of the evidence not having been reduced to writing and incorporated in the record for the examination of the judges of the Court of Appeals.

Whilst not sanctioning resort to certiorari as affording proper relief, we are clearly of opinion that the proceedings of the respondent have been perfectly regular, and that no badge of nullity appears in them; hence we are bound to dissolve the restraining order and give judgment against the relator.

It is therefore ordered and decreed that the preliminary restraining order be dissolved, and that the relator be taxed with the cost.


text:
    No. 11,804.
    State of Louisiana vs. Marcus Duncan et als.
    A conviction resting exclusively upon the testimony of two accomplices, by a jury in part composed of persons who participated with a voluntary posse in chasing after and running down the defendant, and which jury was drawn from- a venire selected by only three of six jury commissioners, one of whom had, before and after the trial, taken a most active and conspicuous part in securing the defendant’s arrest.and conviction, can not be sustained as the result of the fair trial‘‘by an impartial jury ” which is guaranteed by the Constitution to one who is accused of crime.
    APPEAL from the Sixteenth Judicial District Court for the Parish of Washington. Reed, J.

      M. J. Cunningham, Attorney General, and Bolivar Edwards, District Attorney, for the State.

      George E, Williams for Robert Duncan, Jr., Defendant, Appellant.
    Argued and submitted, April 27, 1895.
    Opinion handed down, May 6, 1895.
    Rehearing refused, June 3, 1895.
   The opinion of the court was delivered by

Watkins, J.

The defendant, Robert Duncan, Jr., appeals from a verdict of guilty which was rendered against him on the charges of burglary and larceny, and a sentence to eight years’ imprisonment at hard labor on the first charge, and two years on the second charge.

The indictment preferred said charges, in two counts, against the several defendants, Marcus Duncan, Robert Duncan, Jr., Lucius. Payne and Walter Payne. On account of serious illness, Marcus Duncan could not be brought to trial. Lucius Payne and Walter Payne confessed, and “turned State’s witnesses,” the State producing no other witnesses on the trial, and the conviction of Robert Duncan, Jr., resulted.

Whilst there are several bills of exceptions to which attention has been attracted, there is but one which, in our view, requires discussion, and that relates to declination of the trial judge in granting a new trial.

Amongst others, the following grounds are assigned for a new trial, viz.:

1. That of the six jury commissioners, only three participated in drawing the venire, and one of them was violently prejudiced against this defendant, and his prejudice resulted greatly to his injury and to the violation of his legal rights.

2. That two of the petit jurors who formed a part of the panel who tried and convicted this defendant, constituted a part of the voluntary posse who searched for, and assisted in procuring the arrest of some of the accused defendants.

The motion and accompanying affidavit declare that the prejudice of the jury commissioners was only developed and took shape after the jury were empaneled, and the participation of the two jurors named in the proceedings of the posse only became known to the defendant after the trial and his conviction.

They further declare, that, prior to the trial, the two jurors named were put upon their voir dire and interrogated with regard to their qualifications; and that, in the course of their interrogation, they affirmed that they had no feeling for or against the defendant, and had neither formed nor expressed an opinion relative to his guilt or innocence.

On the trial of the motion the following facts, substantially, were developed, viz.:

That no summonses were issued by the clerk of court for the procurement of the attendance of the jury commissioners, but that officer made only a verbal request of the sheriff to let them know that their services were wanted. He did not even make that request of the sheriff personally, but sent a message to that effect by a son of one of the jury commissioners.

That this message was received by the sheriff; but he — to use his own language — “ failed to get a summons to either Mr. Brown or Mr. Burch.”

That, although denying any prejudice against this defendant, the jury commissioner, Yernado, admitted that he did take steps to render the District Attorney assistance in his prosecution, and made an effort, in connection with others, to employ an attorney to assist in his prosecution, but that these negotiations failed, because the lawyer whom they sought to employ demanded a fee larger than they felt willing to pay.

He admitted that he had assisted in procuring testimony for the State,” against this defendant; that he had, at different times, participated in public meetings that were held for the purpose of devising ways and means of employing counsel to aid the District Attorney in the prosecution of the indicted defendants, and that he had consulted with his neighbors for that purpose.

This jury commissioner, as a witness on the trial of the motion, said:

“ The object of the meeting was to devise means to hold the testimony here against the Duncans. I am not prejudiced against the Duncans. They have never injured me. I am prejudiced against crime.”

Then the following occurred, viz.:

Q,. Did you or any of your party send for Judge Reed ?

A. Well; as I understood the Payne boys had plead guilty, and there was a move on foot by Duncan’s friends to defer the trial of Duncan until the Payne boys would be sentenced, and deprive us of their evidence, and that was what we sent for Judge Reed for, to ask him to hold the Paynes until the Duncan trial could be gotten up. The District Attorney asked me about one of the jurors, who was related to the accused (defendants), and I recommended him as being an honest man; and I also told him of one or two that, in my opinion, would not be good for him to take,” etc.

The testimony further developed the fact that one of the jurors, who is named in the motion, was not in the particular posse who assisted this defendant. This juror, as a witness, said:

“I was in a posse that arrested Thomas Magee. I do not know whether he was an accomplice or not. The grand jury found no bill against him. I was not in the chase after Robert and Marcus Duncan and the Paynes. I am told that they were captured by a part of the posse I started with. I was not here when they came back. When I started out I did not know who we were after. We were after the robbers.”

A similar statement is made by the other juror who is mentioned in' the motion.

These jurors admitted that they were sworn upon their voir dire, and testified that they had no bias nor prejudice against this defendant, and that they had neither formed nor expressed any opinion relative to his guilt or innocence.

On this state of facts we are called upon by the State to affirm that the accused has had a fair and impartial trial, but we feel bound to decide that proposition in the negative. A jury thus composed can not be such a fair and impartial one as the law contemplates, and we can not altogether rid our minds of the impression that one of the jury commissioners was not sufficiently disinterested to exonerate him from the imputation of fault: in the premises.

To say that a conviction, resting solely upon the testimony of two accomplices, by a jury in part composed of persons who participated with a voluntary posse in chasing after and running down the defendants, and which was drawn from a venire selected by three jury commissioners, one of whom had, before and after the trial, taken a most active and conspicuous part in procuring this defendant’s arrest and prosecution, is legal, passes comprehension as well as credence.

There can be no doubt of the fact that all of these circumstances conspired together to do this defendant great and serious injury. These things were unknown to the defendant at the time of the trial, and could not, in the nature of things, have been anticipated by him in sufficient time to have guarded himself agaist the resulting injury. The answer of the jurors, when interrogated on their voir dire, threw his counsel off his guard. The discovery was not made until after the trial.

In quite a recent case we had occasion to speak of similar proceedings in a criminal ease in which “ one of the jurors empanelled on the trial was one of the posse that searched for the accused” (State vs. Defee, 47 An. 193), in which we said, viz.:

“A trial of a prisoner by the sheriff and the posse arresting him would certainly strike the mind, to say the least, as not consistent with the impartial jury guaranteed the accused in criminal prosecutions.. The empanelling of one of the posse on the petit jury, was, to that extent, an abridgement of the prisoner’s right to a fair trial. True, we have the rather scant expression of the juror on his voir dire (that) he thought he could try the case on the law and the evidence. (But) we think his relation to the subject disqualified him from, making the attempt,” etc. * * * “Those who take an active part in bringing the prisoner to justice should not have imposed upon them the other function of trying the accused in whose apprehension they have exhibited a zeal inevitably calculated to incapacitate them from giving him a fair trial.” For a stronger reason is that true in this case. The verdict and sentence must be reversed and a new trial granted.

It is, therefore, ordered and decreed that the verdict and sentence be set aside, a new trial granted, and the case remanded for. further proceedings according to law.


text:
    No. 11,710.
    The State vs. J. Payssan.
    The preservation of health and the maintenance of cleanliness are not foreign to the ends of a municipal corporation. Where the Legislature confers express powers upon the municipality to pass ordinances to protect health and maintain cleanliness, an ordinance adopted in order to remove and destroy animal and vegetable matter is not necessarily a nullity and unreasonable. The purpose of the ordinance is within the scope of the express legislative power.
    The ordinance being in harmony with the general laws of the State, it is not^erse, oppressive.
    One has, in so far as relates to health and cleanliness, in which the public is concerned, the right only' to a reasonable use of his property. He is expected to endure a reasonable amount of discomfort and annoyance for the public good without compensation. It is not a divestiture of vested rights, so long as the limitations upon private rights and personal liberty is not unjustifiable and unreasonable.
    The corporation may contract with the highest bidder in order to remove and destroy, under certain regulations, the offals that are annoying to health. The record does not disclose that the contract was entered into in violation of law. Under the state of facts here, the defendant, not being the occupant of the premises, had no interest to complain of the mode adopted for collecting and removing the garbage.
    In a civil suit, the amount involvedbeing less than the minimum limit of the court’s jurisdiction, only questions of legality and unconstitutionality of the ordinance can be brought up for review on appeal. -
    Upon the issues presented of which this court has jurisdiction on appeal, the ordinance is not illegal. Whatever questions regarding the. mode of enforcement (such as that the ordinance does not apply to the state of facts) can, be brought up, if at all, by Gertiorari under the supervisory jurisdiction of this court.

      APPEAL from the Second Recorder’s Court for the Parish of Orleans. Aueoin, J.

      Branch K. Miller, for Plaintiff, Appellee.

      P. L. Fourehy and Charles F. Claiborne, ior Defendant, Appellant.
    Argued and submitted, April 27, 1895.
    Opinion handed down, May 6, 1895.
    Rehearing refused, June 3, 1895.
   The opinion of the court was delivered by

Breaux, J.

The defendant, fined for violating the ordinance relative to garbage, urges here that the ordinance is unreasonable and oppressive, and that it was not adopted with the view of preserving health and to maintain cleanliness.

The defendant says: That during about ten years he furnished milk to a boarding-house, at which house the proprietor collected for him the waste bread, meat and soup in a can, which he carried away in the evening, and left another in its stead; that he, at times, gave small quantities of milk; that these substances are clean and healthy, and are used by him as food for his dogs, and that they are not garbage.

Plaintiff introduced proof that they were not as represented by the defendant — mere scraps and refuse of the table — but garbage.

The defendant interposes a number of grounds of defence to be considered, we understand, if the facts are as contended by the plaintiff — that is, if the preponderance of evidence is that the substances are garbage.

With reference to the unreasonableness of the ordinance and the oppression charged, we deem it in place, preliminarily, to state that the Legislature delegated the authority to the municipality to adopt needful regulations for the protection of health and to maintain cleanliness.

It is true that the word “ garbage ” is not used in the charter, but the equivalent is therein expressed. The council is authorized to adopt ordinances for the frequent inspection of buildings and premises and to compel cleanliness. This necessarily includes the authority to have garbage moved away and destroyed that is annoying to health. The .general power regarding health and cleanliness having been given, we are of the opinion that the ordinance can not be impeached as invalid on the ground of unreasonableness.

There are a number of well considered decisions upon that point, and text writers upon the subject of municipal corpo ations have approvingly referred to them. District of Columbia vs. Waggaman, 11 American and English Corporation Cases, 417; City of Peoria, vs. Calhoun, 29 Ill. 317, 320; Coal Float vs. City of Jeffersonville, 112 Ind. Rep.; City of St. Paul vs. Colter, 12 Minn. 49; 68 Cal.; Dillon on Municipal Corporation.

If we were to concede that the authority was not as we have just stated, express, we would nevertheless not be hasty to conclude that the ordinance in a matter as important as health and cleanliness is not within the inherent powers of the .corporation.

For it does seem to us, without reference to express power in the charter, that a municipal corporation does not legislate unreasonably by adopting ordinances to protect the community against the offensive and unwholesome smell of decayiug vegetable and animal substances, and that such ordinances are consonant with the purpose of such corporation and consistent with the laws.

In an early case this court pertinently said, in pari materias: “Thé police of cities require many regulations which grow out of their situation, climate and their population. A much stronger reason than that now before us must be presented to induce the court to interfere.” Milne vs. Davidson, 5 Martin N. S. 410.

The ordinance is general in its character and in harmony with the laws of the State, and, therefore, can not of itself be oppressive.

We are not here concerned with its enforcement, as that is not before us. As to the ordinance, we repeat, it is not oppressive.

As to the grounds of the defendant that the ordinance creates a monopoly, that it divests vested rights, we think it sufficient answer to say:

On this appeal we can only decide that garbage whicn may cause discomfort, and which is injurious to health, can be removed and destroyed under an ordinance adopted under a legislative grant of power, and that this ordinance may be adopted without creating a monopoly, or divesting one of vested rights.

The scope of the defence must be restricted to the questions that the defendant is in a position to raise and have decided.

He is without right to raise objections to the section of the ordinance which prohibits the occupants of premises from mixing ashes or other substance with garbage, and the section following, requiring the occupants to collect the garbage and have it ready for removal. In other words, not being the keeper of the boarding house, none of those acts devolved upon him. He was concerned only with getting the contents of his can to feed his4dogs.

We do not desire to belittle his cause by recalling the use he made of the contents of his can.

It is his right to feed them with such substances as he stated in his testimony. His testimony is contradicted by plaintiff’s witnesses.

Without undertaking the useless task here of determining who is right, as a matter of fact, about these substances, we will state that if the weight and preponderance of the evidence is with the plaintiff (and if it is as the plaintiff urges), it was not fit food for dogs, unless the dogs of the defendant are like those that a recent explorer saw in Africa. They were the descendants, he said, of the dogs that devoured the body of Jezebel, wife of Ahab, and they were prowling in the space in modern eastern language called the “ Mounds,” near the modern village which occupies the site of Jezreel; they were wandering without the walls of the village for offal and carrion thrown to them to consume.

The questions resolved themselves in the following:

If they were garbage, the ordinance upon the issues presented is not illegal and unconstitutional.

If they were sound scraps and refuse the facts were not brought up before the court in the manner required.

Questions within the supervisory jurisdiction of this .court can not be considered under our appellate jurisdiction.

We can only pass on appeal upon questions of legality or constitutionality of the law.

If the recorder has decided that substances were garbage that are not garbage, that is a question of fact which does not affect the constitutionality or legality of the ordinance.

The amount involved being less than the minimum jurisdiction of the court, whatever remedy there is here is under the writ of certiorari.

The defendant complains of a failure to properly advertise the ordinance, another objection founded on law.

The ordinance contains provisions to award the contract to the highest bidder.

The contract and the proceedings prior to the award, are not attacked. We are not informed that there was failure to follow the terms of the ordinance in making the award to the highest bidder.

We do not perceive that there is reason to complain of an ordinance authorizing the removal of garbage by contract.

The city government has the power of deciding in what manner a nuisance shall be removed. In having the work done by a contractor, employed in the manner required by law, they have not exceeded the discretion with which they are vested in such matters.

Such contracts are frequent, and when fairly entered into, give no rise to legal objection. The issues here do not justify an inference that a privilege has been granted, unauthorized and reprobated by law.

The judgment of the Recorder’s Court is affirmed, at appellant’s costs.


author: Nicholls, C. J.

text:
    No. 11,799.
    Jerisan Broussard vs. Abel West et als.
    The title of a purchaser in good faith from the vendee in a sale with a power of redemption, after the sale has become absolute by reason of the non exercise of the right of redemption, is secure against an attack from the original vendor or his creditors, on the ground that the “ sale with redemption ” was really a contract for security which did not shift the ownership. The purchaser is not affected by secret equities, unknown to him, or not disclosed by the record.
    Though the knowledge which the purchaser of a piece of property has of the pendency at the time of his purchase of a revocatory action against his vendor to have his title set aside for fraud may affect him should that action terminate in favor of the plaintiff, but it docs not, if it terminate in favor of defendant, charge him with general notice that the title is subject to attack on other grounds.
    APPEAL from the Twelfth Judicial District Courb for the Parish of Calcasieu. Sehwing, J., ad hoe.

      Edward L. Wells, for Plaintiff, Appellant:
    A creditor may bring petitory action -to recover his debtor’s property alienated to his prejudice, and for which the debtor fails or refuses to sue. 30 An. 733; 33 An. 898.
    The • prescription to this action is ten years and not one year. Idem.

    No one can convey a better title than he himself has. 4 R. 118; 2 An. 143; 4'An. 52, 104; 5 An. 10, 66; Hennen’s Digest, 1835, No. 9.
    Redeemable sales unaccompanied by delivery of which the consideration is inadequate, will be treated by the court, in the absence of proof to the contrary, as contracts by which the property nominally sold stands as security. 5 An. 99; 16 An. 11; 15 An. 386; 23 An. 665, 658; 38 An. 891, 154; 40 An. 307, 323; 2 An. 480; 42 An. 395; 44 An. 925; 32 An. 94.
    Such a sale does not have the effect of transferring the title or own - ership. Idem.

    Third persons may contradict a writing by parol. Hennen, 532, Nos. 1, 2, 3, 4, 5, 6, 7, et seq.

      Arsene P. Pujo for Defendants, West and David Bloch, Appellees:
    ESTOPPEL.
    The surviving widow and heirs joining in an attack upon the validity of a sale made by the husband and father, are estopped by the judicial admissions made in a former suit (wherein the verity of the same sale was at issue), that said sale was bona fide and for the consideration therein stated. Maples vs. Nutty, 12 An. 759.
    They have no standing in court unless they show affirmatively by allegation and proof that there would be something coming to them after the payment of the debts of the succession. 15 An. 140, McQueen vs. Sandel.
    Plaintiff, claiming to have resorted to a suit in Zoco debitur, is restricted to the proof which would have been exacted from his debtor. It can have no greater rights. 33 An. 898..
    Plaintiff having failed to allege error, fraud or simulation will not be permitted to show title to real estate by parol. O. O. 2255; 35 An. 1052, 505.
    PRESCRIPTION.
    The character of an action must be determined from the nature of the relief prayed for. In a suit attacking the validity of a sale a prayer for its avoidance, annullment and recision characterizes it as a revocatory action. Plaintiff’s action was forfeited by delay, having failed to bring his suit for revocation within the time required by law. 31 An. 592; 41 An. 102.
    MERITS.
    A debtor may validly sell with right of redemption, within a limited time to secure a creditor. The sale becomes absolute after the lapse of time agreed. 32 An. 96, 784.
    Failure to redeem within specified time ipso facto vests absolute title in vendee. 35 An. 855; 38 An. 271; 36 An. 404.
    Before courts are authorized to set aside a vente a remeré it must appear: (1) That the price was vile and totally inadequate. (2) That the parties intended the act as a mortgage or security for debt. (3) That delivery was never made to and possession never vested in the vendee. 40 An. 307; 44 An. 925.
    An act passed in Louisiana which appears upon its face to be a vente a remeré can not be shown as regards third persons to be a mortgage. 34 An. 797.
    Positive testimony of witnesses whose character and credibility has not been impeached can not be disregarded for mere suspicions. Especially is this true when the witnesses reside in the vicinity of the judge who is peculiarly competent and qualified to properly appreciate the value of their statements. 43 An. 61, 855.

      McDonald & Overton, for the Defendant, Solomon Bloch, Appellee :
    Redeemable sales, unaccompanied by delivery, of which due consideration is inadequate, will be treated by the court, in the absence of proof to the contrary, as contracts by which the property nominally sold stands as security. 5 An. 99; 16 An. 11; 15 An. 386; 23 An. 665-668; 38 An. 891, 154; 40 An. 307, 324; 2 An. 480; 42 An. 395; 44 An. 925; 32 An. 94.
    A petitory action corresponds to ejectment. Am. and Eng. Ency., Vol. 6, p. 226, note 1; Gilmer vs. Poindexter, U. S. How. 360. ‘ Inasmuch as the claim seems to be founded on the right of possession, the party seeking a recovery must show himself entitled to such right generally, at the time of the commencement of the suit and of the trial, or at the time of demise laid in the declaration.
    “ The question at issue is the legal right to the possession, as be- ■ tween the parties, andnot the question of abstract title.” Am. and Eng. Ency. of Law, Yol. 6, p. 228.
    “The fictitious proceedings in the action of ejectment are based upon the principle that, as against the one entitled to possession, the actual occupier or tenant in possession of the premises is wrong-doer, and this must exist as a fact at the time of the commencement of the action, or no recovery can be had.” Am. and Eng. Ency., Vol. 6, p. 229.
    “In some cases the defendant in a petitory action is permitted to assail plaintiff’s title as a consequence of the rule that the latter must recover on the strength of his title.” Cross on Pleadings, under act of nullity, Chap. 15, p. 227, Sec. 279.
    If the defendant, independent of the contest of plaintiff’s title, presents a title of his own, and sets it up as his muniment of title, and relies thereon, then, in that event, only can the plaintiff attack defendant’s title. 33 An. 438.
    “ Plaintiff in petitory action must be absolute owner of property.’ Oaze vs. Robertson, 14 An. 220.
    The Aetio Pauliana of the Roman law, which is our revocatory action, is to set aside contracts which have a real existence, but which the law will not permit to impede the creditor in recovering his debt. 29 An. 6 (bottom of page).
    Argued and submitted, May 11, 1895.
    Opinion handed down, May 20 1895.
    Rehearing refused, June 3, 1895.
    Plaintiff alleges that he holds a judgment against one John Miller for five hundred and forty-four dollars, with legal interest from 24th March, 1884. That he is unable to execute the same, because his debtor during his lifetime, on August 25, 1885, by an ostensible contract of sale, with the right of redemption in twelve months, ostensibly sold and conveyed to David and Solomon Bloch all of his property, consisting of one hundred and sixty acres of land in Calcasieu parish, with the buildings and improvements thereon, and the said David and Solomon Bloch on October 13, 1886, ostensibly sold the same to one Abel West, such title as they acquired. That West bought said property while a suit was pending before the District Court for Calcasieu for the revocation of the title to said Blochs, and before the decision of said revocatory action, which had been brought by creditors of Miller against the Blochs and Miller. That on the trial of said suit it was shown that Miller never intended to sell, nor the Blochs to buy said property. That while it was recited in the act of sale that eight hundred dollars had been paid in cash as the consideration of said sale, in truth the consideration was the giving by the said Blochs to Miller of their promissory note, of even date with said sale, payable twelve months after said date, without interest, which said note was by Miller discounted, and with the proceeds he paid to the Blochs the sum of three hundred and forty-three dollars in settlement of an account they had against him. That the pretended act of sale was intended by both parties to secure the Blochs from any loss on account of said note, and for the purpose of collecting the amount due them upon said account. That the pretended price of said ostensible sale was grossly inadequate to the real value of said property at the time of the passing of said sale; the total amount realized by Miller from said pretended sale was less than six hundred dollars, and the property was worth at least atthat time, and still, twenty-five hundred dollars.
    That said pretended sale was an innominate contract which gave to the Blochs the right of enforcing the same in a proper proceeding but did not divest the title of Miller in then' favor. That having acquired no title by said contract, they could not transfer one to another persoa. That the title of West being derived from those who had no title is inoperative and void. That Miller died several years ago, leaving a widow and six children, whom petitioner names, who all reside in Texas, except George Miller, who is a resident of Calcasieu. That Miller left no other property at his death than the property pretended to have been sold. That plaintiff, as a creditor, of Miller and of ¿his succession, is entitled to a petitory action to bring back said property into the mass of Miller’s assets, to the end that it may be subjected to his mortgage debt; to that end that said pretended act of sale should be declared by the court to be a contract for security, and nothing else, and that the title by the Blochs to West, is null, void and of no effect as a title.

      Abel West, one of the defendants, pleaded the prescription of one year in bar of plaintiff’s demand; that he purchased the property in good faith and with full warranty of title from David and Solomon Bloch for the price and sum of fifteen hundred cash. That immediately after his purchase, he moved upon it, and has resided there ever since. He especially denied that the sale from the Blochs to him was simulated or fraudulent, but affirmed its integrity in every respect; that he had paid all taxes due on the property as the same became exigible from and including the year 188V, up to and including the year 1894; that, in addition to this, he had built fences around the land, and had improved and bettered the property, at a cost) to him of not less than one hundred and fifty dollars; that he has completed and painted the house, at a cost of at least six hundred dollars; that he has planted orange as well as other fruit trees, which are now bearing, for all of which he is entitled to recover as a purchaser in good faith; that, at the time he purchased the property it was not worth more than eight hundred dollars, but desiring to reside near his daughter, he was induced to pay more than its real value to gratify his whim, and he specially denied that at the time of his purchase it was worth twenty-five hundred dollars. That at the time he purchased the property, there were no liens nor mortgages affecting the same in favor of plaintiff, nor any suit by him questioning the ownership of the property, nor the legality of the sale from bidder to his authors.
    David and Solomon Bloch, defendants’ vendors, were called in warranty. Both pleaded the prescription of one year in bar of plaintiff’s demand, and both, under reservation of this exception, answered, denying the allegations of plaintiff’s petition, and asserting and maintaining the reality of the sale and validity from Miller to themselves, and their own sale to West, and averring that all parties were in good faith. Solomon Block asked and was permitted to call David Block in warranty, upon the ground that in the settlement of affairs between himself and David, the latter had released him from all obligations of the kind described in their act of settlement, which he contended would cover the claims of West set up in this case. He asked judgment against David Bloch in the event of plaintiff’s obtaining judgment, setting the two sales aside.
    David Bloch, in answer to this call, denied that Solomon Bloch had been released from liability under West’s call in warranty, and prayed that he be adjudged to pay one-half of whatever amount West might be held entitled to recover.
    The widow and heirs of John Miller answered through counsel under reservation of the benefit of inventory, and disclaiming any liability for the debts of the husband and father, and joining plaintiff in his attack upon the title.
    Defendant subsequently pleaded, in bar of plaintiff’s right to recover, that he is estopped from asserting any other right than could have been urged by his debtor, Miller, and that the heirs and widow of Miller are also estopped by reason of the judicial admission made by him in his answer filed in the case of Turner & Oates vs. John A. Miller et al.

    The District Court rendered judgment, rejecting plaintiff’s demand, and he appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The evidence shows that on the 25th day of August, 1885, John A. Miller sold the property in litigation herein to David and Solomon Bloch for eight hundred dollars, with a power of redemption in the vendor within twelve months. The act was duly recorded. Miller remained in possession during the year allowed him to redeem, paying rent as a tenant. At the end of that time he vacated the premises, and David and Solomon Bloch, on the 13th day of October, 1886, sold the property for one thousand five hundred dollars cash to Abel West. This sale was also duly recorded. In the interval between the purchase by the Blochs and their sale to West, a revocatory action was instituted by Turner & Gates against Miller and the two Blochs to have the sale set aside as fraudulent, but the plaintiffs were defeated in the action, and the sale maintained. They seem to have renewed their attack through an hypothecary action directed against West, grounded upon the fact that before he bought they had recorded a judgment which they had obtained against Miller, and upon a contention that the contract between him and the Blochs was not one of sale or transfer of ownership, but simply one of suretyship, which, leaving the title still in Miller, the property became affected by their judicial mortgage in the nominal ownership of ihe Blochs.

The proceedings in that case are not before us, but are referred to by plaintiff’s counsel, and it would appear that Turner & Oates were again unsuccessful in their suit.

The present action was brought by Broussard, in January, 1895. A very large portion of the transcript is taken up with testimony as to the value of this property at the time of the contract between Miller and David and Solomon Bloch. It is obvious, from reading the prayer of plaintiff’s petition, that he is not seeking to have the contract between those parties set aside as a sale on account of lesion, or on account of fraud, but to have the act of the 25th of August, 1885, purporting to be an act of sale with power of redemption, declared to be, in fact, an act of mortgage. The prayer is “ that the pretended contract of sale be declared to be a quasi .mortgage or a pignorative contract not divesting the title of Miller or his estate, and that said sale by David and Solomon Bloch be declared inoperative, null and void, the property restored to the possession and ownership of the estate of Miller.”

The prayer as against West is based upon the theory that when he bought from the Blochs, the property to his knowldge did not belong to them, but to Miller.

So far from conceding that the contract evidences a sale, and directing his attack against it as such, the whole theory of plaintiff’3 case is that it is not a sale, but that Miller’s title has never been divested at all, and that the property has been all the time the pledge of his creditors. The testimony we have referred to, was an attempt, we presume, by plaintiff to bring his case within the line of decisions cited by him, which have declared that redeemable sales, unaccompanied by delivery, of which the consideration is inadequate, will be treated by the courts, in the absence of proof to the contrary, as contracts by which the property nominally sold stands as a security.” Baker vs. Smith, 44 An. 929; Watson vs. James, 15 An. 386; Calderwood vs. Calderwood, 23 An. 658; Groves vs. Steel, 2 An. 480; Payne vs. Hubbard, 42 An. 395; Wang & Cottam vs. Finnerty, 32 An. 94.

The contract in question stood upon the public records as a sale with a power of redemption, and the property had, after the period of redemption, and prior to the institution of this suit, passed from the parties who appear in the act as vendees, into the ownership and possession of a third person, who has paid, as shown by the testimony, a large price for it in cash. Whatever may be the difference of opinion as to the value of the land at the time of the contract between Miller and the Blochs, we think the latter could, beyond question, have maintained it, as a valid contract of sale, from any attack made upon it, either by Miller or his creditors, on the ground of lesion. There was nothing on the face of the deed which would have placed West on inquiry. Under such conditions he was authorized to deal with the Blochs as the owners of the land, unaffected by any secret, unknown equities between them and Miller. It would be too late now for the plaintiff, as a creditor, to attack the act for fraud, even if he could have done so against an innocent third person, who had dealt on the faith of declarations made by the vendor in an authenic act of sale, placed upon the public records, and matters have gone too far for the application of the theory of plaintiff’s case to this property (assuming it to have been justified by the facts) in the hands of West, unless he could bring home directly to him knowledge-of the exact situation. Plaintiff has attempted to do this, but we think unsuccessfully. Assuming that West had knowledge when he bought the property of the existence of a pending revocatory action for fraud between Turner & Oates, Miller and David and Solomon Bloch, the effect of such knowledge was done away with the moment that judgment was rendered in that case in defendant’s favor. In the dec ee West would have found justification for having dealt with the parties when he did, in so far as that particular kind of attack was concerned, and the existence of the suit would not have conveyed to him notice of the possibility of vices in the apparent title of the Blochs of a diametrically opposite character, for the first attack admitted the reality of the sale, but attacked it for fraud, while the second would deny the sale and attempt to hold the property as never having gone out of the ownership of Miller. The necessities of the case do not require us to make any declaration as to what was really the character of the act between Miller and David and Solomon Bloch, but we think it proper to say that, in our opinion, it was precisely what it purported to be, a sale with power of redemption.

John A. Miller himself, in his answer in the revocatory action brought by Turner & Oates to set aside his sale to David and Solomon Bloch, averred that he had sold the land to them on the 25th August, 1885; that the sale was for the consideration named in the deed, which was actually paid; that the whole transaction was in good faith; that the possession passed with the deed, and that he remained on the place for some time after the act, but as the tenant of Bloch & Bro., to whom he was paying rent.

If the statement of George Miller, one of plaintiff’s witnesses, was to be taken as showing the true facts of the case, plaintiff’s position would not be bettered, for according to that witness the act was passed as a mandate to Block & Bro. to sell, coupled with a promise on their part, that after a sale should have been effected they would, after reimoursement of the amount due to themselves, pay over to Miller the surplus. He says that after the sale to West, he, under directions from his father, John Miller, was sent to collect the surplus arising from West’s purchase, bub was told by the Blochs that the price had been exhausted by the indebtedness due them by Miller. West’s purchase was recognized; a money liability over from the Blochs to him was all that was claimed by Miller. This secret understanding (if it existed), inconsistent with, the facts shown by the public records, did not effect West, a purchaser in good faith.

We think the judgment appealed from is correct, and it' is hereby affirmed.