text:
    No. 8421.
    Azema Dobard, Wife of C. Escande vs. C. V. Thibault, Sheriff, et al.
    A married woman was authorised by the judge to effect a loan of money, and to mate h»v note therefor and secure it by a mortgage upon her separate property. The note and mortgage were executed, the husband appearing before the notary with his wife and Joining in the Act and authorizing her. Executory process having been sued out thereon, held, that no other authorization, either by the judge or the husband, was needed to empower her to resist that process by injunction*
    A PPEAL from the Civil District Court for the Parish of Orleans. 1 jL Mightw, J. V '

      J. A. Seghers, for Plaintiff and Appellant.

      32. M. McGaleb, for Defendant and Appellee.
   The opinion of the Court was delivered by

Manning, J.

On January 26,1875, AzemaEscande, a married woman, %vas authorized by the judge to effect a loan of money, and to secure its payment by a mortgage upon her separate property. Under this authorization she and her husband appeared before a notary, and with Ids authorization she made her note for $1,891.16 drawing eight per cent, interest, and executed a mortgage upon a tract of land in Plaque-mine parish to secure its payment. D. K. Carroll became the holder and owner of this note by purchase for value before its maturity.

In June, 1878, more than two years after the note matured, Carroll obtained executory process upon the note and mortgage which was injoined by Mrs. Escande upon the grounds that Carroll was merely a nominal party ; and the note was made .at her husband's request and for his debt; and that she had demanded the note from Deguilliem (who was the payee) who answered that he had been paid except near $400, for which sum she gave him her due bill; and that the note was in Deguilhem’s possession until his death in 1877 when it was abstracted and put on the market.

On the trial these averments were not supported by proof and the injunction was dissolved with $50 damages as attorney’s fee. Her appeal to this Court was dismissed. Opinion Book 51, p. 173.

Mrs. Escande then obtained another injunction, averring that she ■ had never been authorized, either by the judge or her husband, to stand in judgment in the executory proceedings. A rule was taken to dissolve this injunction and was made absolute by the judge in chambers out of the parish. On appeal, this Court held there was error in thus trying and determining the rule, and remanded the cause. Escande vs. Thibault, 32 Ann. 281. The case was again tried below, and final judgment was entered dissolving the injunction with reservation of Carroll’s right to sue hereafter for damages. The plaintiff having appealed from that judgment, the case is before this Court the third time.

The plaintiff was authorized by the judge to make the note and mortgage. She was authorized by her husband also at the moment of their execution, and was assisted by him in that act. No further authorization is needed to empower her to resist executory process for the foreclosure of the mortgage thus executed. Stewart vs. Boyle, 23 Ann. 83.

If it was needed, the order of the judge, obtained by ber, granting the injunction, is of itself an authorization, for he it observed these authorizations are the emptiest of formalities. By a fiction, as bald as to the practitioner it is baseless, the husband is supposed to have graciously given his marital permission to his spouse for the performance of an act she is legally powerless to do without it, while in fact the expression of that permission is hut a piece of professional mechanism. It may well he doubted whether refinements of construction, which are based upon the turn of a sentence, have not already proceeded too far.

The chief reliance of the plaintiff’s counsel upon authority is Delacroix vs. Hart, 23 Ann. 192, wherein, he says, this Court after a careful examination ” held in accordance with his views. In that case Delacroix, having issued nfi.fci. upon a judgment against Hart, and having pu-opounded interrogatories to Mrs. Barrow, a married woman, which were not answered hut were taken pro confessis, held, that authority to the wife to stand in judgment was totally wanting. Its applicability to the present case is not apparent.

Tile pretexts upon which this litigation was commenced, and the failure to make good any one of the sworn allegations of the plaintiff’s first injunction; the persistence in obstructing her creditor’s legal process, and her resort to a second injunction upon frivolous grounds, will be considered by the tribunal that bears the suit for damages upon tlie bond, right to bring which is reserved by the judgment of the lower court which we shall affirm. The defendant Carroll has prayed for ten per cent, damages for a frivolous appeal, and we grant it. Therefore,

It is ordered, adjudged, and decreed that the judgment of the lower court is affirmed, and further that the defendant D. R. Carroll have and recover of the plaintiff Azema Escande ten per centum upon the amount involved in this suit as damages for a frivolous appeal, and his costs in both Courts.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8588.
    The State of Louisiana vs. Victor Eloi.
    Where a juror is challenged by the accused as incompetent on account of a defective memory, and the judge after examining the juror decides that he is competent, such ruling being on a matter strictly within his discretion will not be disturbed on appeal, unless the error is palpable. Judgment affirmed.
    APPEAL from the Criminal District Court for the Parish of Orleans. JRoman, J.

      J. G. JSgan, Attorney General, for the State, Appellee:
    1. This Court will not review the opinion of the Jndge a quo in determining whether a juror is competent or not because bis memory is defective $ this is a matter resting entirely in. the discretion of the lower court.
    2. It is a fixed and deliberate opinion as to the guilt or innocence of the accused which disqualifies a juror; but not such an opinion as will readily yield to evidence. 32 An. 1098 and 1241; 33 An. 890; 34 An. 191; 14 An. 462 and 673 ; 23 An. 148; 29 An.642; 27 An. 692; 6 An. 653; 4 An. 505; 11 An. 607; 3 B. 535; Burr Trial, Yol. 1, p. 416.

      L. Marrero, for Defendant and Appellant:
    1. Jurors being the sole and exclusive judges of the law and the evidence musthave sufficient memory to remember the testimony, in order to arrive at a just, intelligent and legal verdict. "Wat. & Grab, on New Trials, Yol. I., p. 62; Yol. II., pp. 272, 273, 286; 1 Ala. Bep. 302.

      2. Persons totally or partially deprived of memory or understanding, are inoompetent to serve as jurors, or witnesses. Aróla. P3. and Prao. 468; Hartford vs. Palmer, 16 John liop., 143.
    3. Persons to be jurors must be oorapotent and intelligent and in the full possession of their mental faculties. Dunlop’s Laws of Ponn., pp. 612, 622, Seo. 85; La. Acts 1880, 54, p. 52; Hogshead vs. State, 6 Hump. Hep. 50; Baxter vs. Poople, 3 Graham’s Pep. 368; See Statutes of La., N. Y., K. J., Mass., Maine, Ohio, Mich., and Codes of Iowa, Virginia, oto.
    4. Jurois aro forbidden to take witb them books, papers, documents or notes, when they retire to deliberate on their vordiot; they must rely on their memories. 1 Chit. Arch., 250; Gra. Prao. 272, 274; 2 Hale’s P. C. 300, ét seq.; Wat. & Grab. 67; The King vs. Sutton, 4 Maulé & Sel. 532.
   The opinion of the Court was delivered by

Todd, J.

The defendant was indicted for murder, was tried and convicted, the jury returning an unqualified verdict of guilty, and from a sentence of death has n'ppealed.

There ivas no motion for a new trial or in arrest of .judgment filed in tho court below. We find in tbe record, however, three bills of exceptions to several rulings of tbe Judge.

The first bill was taken to a ruling as to the competency of a juror who, in answer to a question asked him on his voir dire, said ho liad a bad memory, and was challenged for this cause. The challenge was overruled.

It appears from the bill, that after the statement made by the juror touching his defective memory, he was further interrogated by tho Judge and, after such examination, the Judge came to the conclusion that tho memory of the juror was sufficiently good to render him competent. This was a matter of fact which, was peculiarly within the province of the Judge to decide and strictly within his discretion. Tho juror was before Mm and opportunity was afforded to test his capacity in the respect mentioned and judge of his competency. And whilst we fully concede the force of the authorities cited by tbe counsel, prescribing the qualifications for jurors, among which are sound mind and memory, yet, under our settled jurisprudence, this Court will not interfere with a ruling of a Judge of the first instance on a question of this kind, unless that ruling is manifestly erroneous, which we do not find to be tlio ease in this instance.

The other bills of exception in the record are waived in the argument of counsel and, therefore, need not be considered. We find no reason to disturb tho sentence ax>pealed from and it is, therefore, affirmed, with costs.


author: Bermudez, C. J.

text:
    No. 8715.
    The State of Louisiana ex rel. Cremonini vs. The Mayor of Baton Rouge.
    A mandamus lies to compel a municipal officer, clofeliod witli judicial powers, to grant an appeal from a judgment imposing a fine under the provisions of a municipal ordinance charged with unconstitutionality.
    The defense, that the party fined and imprisoned for non-payment of the fine, was released on habeas corpus by the District Judge, owing to the unconetitutionality of the ordinanoe, is no reason why the appeal should not be granted to the party by the magistrate.
    A PPLICATION for a Mandamus.

      Cross d; Jones, for the Relator.

      C. C. Bird, City Attorney, for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the defendant, who is clothed with certain judicial powers, to grant n suspensive appeal from a judgment rendered by him, inflicting a fine; under the provisions of a municipal ordinance charged with unconstitutionality.

The answer of the defendant, is, that no appeal should ho granted, for the reason t-liat the Relator who had been imprisoned for nonpayment of the fine imposed, was released on habeas corpus by the local District Judge, on the ground. that the ordinance is indeed unconstitutional.

The defendant does not, by such answer, justify his conduct. It is a non seqtiitur to say that because the District Judge has, in the proceeding stated, declared the ordinance to he unconstitutional, the Relator is not entitled to have the judgment rendered by the defendant reviewed on appeal by this Court.

A flue having been inflicted under the provisions of a municipal ordinance, the constitutionality of which is assailed, the Relator is clearly entitled to the relief sought. Const. 1879, Art. 81.

It is, therefore, ordered and decreed, that the alternative mandamus issued he made peremptory and, accordingly, that the defendant do grant the Relator the suspensive appeal asked, on his complying with legal requirements.


author: Poché, J. Manning, J.

text:
    No. 8675.
    The State of Louisiana vs. John Williams.
    As soon as the affidavit or charge against an accused and other proceedings had in the case before the committing magistrate are forwaided to the proper criminal court, the prosecution must be construed as having been instituted in the latter court.
    At that phase of the prosecution, tlie cause may he legally apportioned between the Judges of the Criminal District Court, Parish of Orleans ; and such an apportionment is a compliance with the requirements of Art.-130 of the Constitution, providing that all prosecutions instituted in said Court, shall he apportioned by lot between the Judges. A complaint by the accused, that his case was not properly apportioned, because it was allotted before indictment or information, will not be heard. Judgment affirmed
    APPEAL from the Criminal District Coart for tlie Parish of Orleans. JRoman, J.

      J. G. JBgmi, Attorney General; for the State? Appellee:
    1. It is in the discretion of the Criminal District Court of the Parish of Orleans to adopt such method of allotting cases as may he decided upon by it.
    2. Allotting the cases on the affidavits filed is an allotment of cases as provided for in Article 130 of the Constitution.

      Ghas. T. Beauregard, for Defendant and Appellant:
    Art. 5 of the State Constitution provides that prosecution shall he by indictment or information ; and Art. 130, that all prosecutions instituted in the Criminal District Court shall be apportioned between the Judges thereof by lot. 34 An. 1, 349.
   The opinion of the Conrt was delivered by

Poché, J.

Defendant appeals from a conviction of tlie crimes of entering, etc., and of petty larceny, and from a sentence to hard labor of one year for each offense.

He complains that his case was not apportioned by lot, as required by Art. 130 of the Constitution, to Section “A” of the Criminal District Conrt, where lie was tried, because the case was allotted previous to the filing of the information.

The record shows that tlie cause was apportioned under the rules of tlie court, while the prosecution was pending under the affidavit and other proceedings which had been sent up from the committing magistrate.

Counsel for the accused contends that under the provisions of Art. 130, such an allotment is defective and cannot confer jurisdiction to the Court which tried the case, and he argues that there is no prosecution before the court until presentment by indictment or information.

The following is the language of tlie Article on the subject: ‘‘All prosecutions instituted in said court shall be equally apportioned between said Judges by lot. Each Judge, or his successor, shall have exclusive control over fevery cause falling to him, from its inception to final determination in said court.”

Counsel argues that the meaning attached to the word “ prosecution ” in the Constitution, is indicated by Art. 5, which provides that “ prosecutions shall be by indictment or information,” etc., and hence he concludes that before indictment or information, there can be no prosecution instituted for the purpose of being apportioned.”

We think that this is too narrow a definition of the word “ prosecution,” which is defined to be “the means adopted to bring a supimsed offender to justice and punishment by due course of law.” Bouvier, p. 396.

Under our system of criminal law, a prosecution has several phases or steps of proceeding: the first being usually an affidavit or charge; next a warrant of arrest, and so on through the hands of the committing magistrate, whose committal transfers the prosecution to the proper criminal court, where it undergoes the other phases of presentment, arraignment, trial and conviction or acquittal.

Hence, the meaning of Art. 5 of the Constitution, in referring to “ prosecutions,” imports a provision for the phase or form of presentment j and in speaking of all prosecutions instituted “in Art. 130,” the Constitution means all criminal oases which may be brought before the court.

The sentence providing that “ each Judge * * * shall have exclusive control over every cause falling to him,” etc., leaves no possible doubt on that point.

The inception of the prosecution before the criminal court dates from the day that the affidavit and other proceedings coming from the committing magistrate are filed or returned into the criminal court. If there is no “ prosecution ” in the legal sense of the term, or within the meaning of the Constitution, before presentment in open court, what then would have become, of the charge made and other proceedings had before the committing magistrate'?

From the moment that he has committed the accused to await his trial, or ordered and accepted his appearance bond and forwarded the papers to the trial criminal court, he is divested of all authority or jurisdiction over the case, and yet the cause exists as an entity, and must be pending somewhere and under the jurisdiction of some tribunal, and that tribunal must be the court to which the matter has been transferred.

If the proceedings had before the committing magistrate are not a “prosecution ” in the legal sense, where would be the authority for detaining the accused in legal custody, or what would be the legal value of the bond furnished by the accused for his appearance before the Criminal Court? It is elementary, in our jurisprudence, that such proceedings are the basis and primary inception of the prosecution, and that the order of the committing magistrate, accepting the bond of the accused, is a judicial act which is the basis of the judgment of the criminal court in case of a forfeiture of the bond.

. Hence, it lias been frequently held by our courts, that in default of sucli order, a bond of the accused accepted by the sheriff is null, (i An. 700, 744 j State vs. Gilbert, 10 An. 532.

From the moment that the papers in a criminal case are returned into the criminal court, the accused is under the custody of that court, whence he cannot be removed or released hut by the order of that court.

Therefore, it is easy t,o understand that from that moment a prosecution has been instituted before that court, and that such prosecution is a criminal cause which can he apportioned between the Judges of that court, and that the rule of that court, regulating the apportionment of causes at that phase of the prosecution, is strictly within the spirit and the letter of the Constitutional provisions on that subject.

Our conclusion is that there is no force in the complaint and no error in' the proceedings which have characterized the prosecution of the. accused, and have resulted in his conviction.

Judgment affirmed.

Concurring Opinion.

Manning, J.

The sole object of the Constitutional requirement, that criminal prosecutions shall he apportioned between the judges by lot, is to prevent any selection of cases by .preference. Chance must determine which judge shall try each case. When that is accomplished I think it a matter of indifference how, or at what stage of the proceedings, the lot is east. The Constitutional provision is of that class that requires the most liberal construction in the interests of society and public order. I concur in the disposition of the case.


author: Fenner, J.

text:
    No. 8665.
    The State of Louisiana vs. Hamp Wingfield.
    The appearance bond of defendant and its forfeiture for bis non-appearance are proper evidence to go to tbe jury, like evidence of concealment, flight, etc.
    The Judge did not err in refusing to charge that the open and undisguised possession of the animal alleged to have been stolen, in the public streets and in company with others, “ was incompatible with the gailt of the accused.”
    APPEAL from the Seventeenth District Court, Parish of East Baton Kouge. Sherburne, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      Burgess it- Burgess for Defendant and Appellant.
   The opinion of the Court was delivered l>y

Fenner, J.

The court below did not err iu admitting in evidence on behalf of the State, the appearance bond given by defendant and the judgment of forfeiture thereof for non-appearance. Such evidence falls in the same category with evidence of concealment, flight, etc., as a circumstance open to explanation by the defendant and to he weighed by the jury.

Nor did the court err iu refusing to charge that the possession of the animal alleged to have been stolen, open and undisguised, in the day time, on the streets of Baton Rouge, “ was incompatible with the guilt of the accused.” It was a circumstance proper for the jury to consider, but evidently not incompatible with guilt.

No other errors are assigned.

Judgment affirmed.


author: Manning, J.

text:
    No. 7884.
    E. de St. Romes vs. City of New Orleans.
    An actual physical ouster is not indispensably necessary to constitute an eviction.
    If a final decree of a competent court establishing1 title iu a third person is shewn, the loss of the land will be considered certain. The putting such decree in evidence by the party against whom it was rendered is a virtual dispossession, and compulsory, because the decree commands eviction, and is enforceable;
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      Olías. Eduque for Plaintiff and Appellant:
    An outstanding perfect title in a third person is an eviction as between vendor and vendee. 14 An. 717 j 13 An. 499; 7 L. 286; 10 L. 120; 1 R. 362; 11 It. 397; Duvergier, t. 1, Ho. 313; Duranton, t. 16, Ho. 249; Troplong, Ho. 413; Pothier, Vente, Ho. 97 ; Marcado, t. 6, p. 252.
    The warranty of the first vendor includes the losses occasioned to the last vendee, by the eviction. C-C. 2506; C. P. 385; C. H. 1630; Duranton, Vente, t. 6, Ho. 296; Troplong, Vente, 1.1, fo. 557-fi28; Dalloz, 1827, part 1st, p. 93; Marcadé, t. 6, fo. 273, 276; Pothier, Vente, Ho. 147-149; Journal du Palais, 1842, vol. 2, p. 60; Dalloz, 1831, part 2d, p. 851; 1826, part 2, p. 177.

      G. F. B-uelc, City Attorney, and Wynne Rogers for Defendant and Appellee:
    1. An action of warranty cannot be maintained without proof of actual dispossession or eviction, or that the plaintiff holds the property under a new and different title from that derived through the defendant warrantor. 1 Rob. 262; 7 La. 801; 11 La. 320; 11 Rob 397 ; 13 An. 499; 26 An. 588.

      2. As long as the plaintiff is in actual possession, under a title under which lie continues to acquire, by prescription, against the “ ©victor,” no eviction has taken place.
    3. A party who goes to trial, voluntarily offers his evidence and submits his cause, is not entitled to a non-suit, if ho takes the chances of a judgment on the case as made out. He must he presumed to have pioved every existing fact; and if this evidence does not make out bis case, a final judgment must be rendered against him.
    4. Taxes paid, and value of pennanent improvements, constitute a claim against the “©victor,” and not against the warrantor. 10 Hob. 178, Laizer vs. G-eneres ; 12 An. 534, Stanilusvs Weber,
    5. Use and possession are in lion of interest. 13 An. 499 ; 6 An. 304 ; 3 La. 395; 16 lia. 35.
    G. Under Art. 2482, Code of 182G, 2505 Ii. O. C.. any warrantor is only liable for the prico he received for the property. In this particular case, even if the court should deem tlie law different, no other amount could he award* d, because there is no proof of any increase, etc. 5 H. S. 559; 6 An. 297, Burrows va. Pierce; 10 An. 259; 14 An. 722,757; 12 An. 534.
   The opinion of the Court was delivered by

Manning, J.

Tlie City of New Orleans, claiming ownership of the Blanc, tract of land, had it divided into lots and sold them to various parties. These 'purchasers sold to others, and finally through several mesne conveyances Mrs. St. Romes acquired a number of the lots. Her title was successfully assailed by Mrs. Gaines, who obtained a decree in tlie U. S. Circuit Court, in a suit against Mrs. St. Romes, evicting her from the premises, which decree is certified to be final and executory. There lias not been any physical dispossession or ouster, nor could there well be, as the land is vacant.

The judge below noil-suited the plaintiff for want of evidence of forced or voluntary dispossession, and also for want “ of evidence that she holds the property under a title which is not that transferred to her by her vendor.”

The doctrine is well established that an actual ouster is not. absolutely necessary in order to constitute an eviction. Landry vs. Garnet, 1 Rob. 363; Thomas vs. Clement, XI Rob. 398. The loss of tlie land will be considered certain if a perfect outstanding title to a. third person is shewn to exist. McDonald vs. Vaughan, 14 Ann. 716.

The best evidence of dispossession that could be given by the plaintiff is the record of tlie suit against her transferror, in which there has been rendered a judgment in favor of a third person evicting her. Tlie present suit is a compulsory abandonment of the land made in obedience to a judicial decree. The plaintiff is the transferree of Mrs. St. Romes.

The judgment of non-suit, is error, and therefore,

It is ordered and decreed that the judgment of tlie lower court is reversed, and the cause is remanded thereto to be proceeded with in due course, the appellee paying costs of appeal.


text:
    No. 7878.
    Frank & Co. vs. John Chaffe & Sons.
    In a suit to recover damages resulting from the illegal attachment of cotton seized as belong» iug to the debtor in the attachment proceeding, in which proceeding tbe true owner intervenes and recovers judgment, recognizing bis title to the property, the party who bad taken out the attachment is liable to the actual damages resulting directly from the seizure, among which may be reckoned all the necessary expeuses incurred in the suit to recover tbe property, and also the actual loss iu the price of the cotton whilst under seizure.
    If, however, tbe cotton is sold by consent of parties by tbe sheriff during tbe pendency of tbe litigation and tbe proceeds go into bis bauds, and he fails to pay over tbe tbe money to tbe party entitled to receive it, such party cannot recover tbe amount from the attacking creditor as part of the damages resulting from the attachment. The loss is caused by tbe delinquency of tbe officer, and does not result immediately from tbe seizure. ‘
    APPEAL from tbe Fifth District Court for the Parish of Orleans. Rogers, J
    TP. 8. Benedict and J. P. Hornor for Plaintiffs and Appellees.

      Bayne & Denegre for Defendants aud Appellants:
    It is not tbe policy of the law to prevent or deter parties from asserting or defending their real or supposed rights through the apprehension of damages in the event of failure or defeat. Sage vs. Cain, 14 An. 193.
    A plaintiff who acts in good faith, and has reasonable grounds to believe that be has a good cause of action, is not in fault, aud is not bound to repair damages caused to others by tbe legitimate exercise of his legal rights. Henry vs. Dufilko, 14 La. 50 $ Osborne vs. Moore, 12 An. 714 ; Coco vs. Hardee, 25 An. 230; 15 An. 421, 605,716 ; 16 An. 3, 253 ; 8 An. 11 *, 7 An. 336.
    When any damages are allowed it is only tbe direct damage from the particular act, and not any remote or consequential damage. 13 An. 564 ; 11 An. 695; 12 An. 702, 787; 4 An. 81; 26 An. 360.
    If the party contributes to the loss by his own acts, he cannot recover damages. 30 An. 15 ; 1 1 An. 372.
    An intervenor in an attachment suit cannot recover counsel fees as damages, especially when judgment is rendered against defendant. 7 An. 336. * * *
    Parties making an agreement for the sheriff to dispose of property on terms or in a mode not provided for by law, aud makiug him the depositary of the proceeds, mutually constitute him «as their agent, and cannot recover damages from each other iu consequence of his failure to execute his agency «and pay over the proceeds of sale. Gay vs. Lojeuae, 26 An. 250*360; 20 An 88; 15 An. 16; Gorham vs. Gale, 6 Cowen’s Rep. 467; 6 Johnson’s N. Y. Rep. 12* Yigan vs Wiloock, 8 Hast. Rep. 1.
    In this rase judgment was formally rendered in favor of the pl.aintiffs ag«ainst tbe defendants, and tbe interveuors cannot recover any damages. If they ever had any right of recovery, under their supplemental petition and the matters therein, the same are prescribed by one year. 2 Martin (N. S.) 25; 6 Rob. 382 ; 9 An. 490; 20 An. 214, 323.
   The opinion of the Court was delivered by

Todd, J.

This is a suit for the recovery of damages alleged to have been sustained by tbe plaintiffs, from the wrongful seizure of their properly under a writ of attachment sued out by the defendants.'

There was judgment in favor of the plaintiffs for $1,015.25, from which they have appealed. The defendants ask an amendment of the judgment, rejecting the entire demand.

The facts are these :

On the 15th of February, 1877, the defendants instituted suit against one Heyner, anon-resident., and under an attachment iu the case caused to be seized 115 bales of cotton as the property of Heyner, their debtor.

Fifteen bales of this cotton were subsequently released.

The plaintiffs, Frank & Co., intervened in that suit claiming the cotton.

There was judgment in the District Court, in favor of Chaffe & Sons, maintaining the attachment and dismissing the intervention. On appeal this j udgment was at first affirmed by this Court, but a rehearing was granted and judgment finally rendered in favor of the iutervenors, Frank & Co., decreeing them the owners of the cotton.

Thereupon the present suit was instituted, in which the plaintiffs (intervenors in the former suit) claim as damages the costs and expenses attending the previous litigation, and in addition thereto, the estimated value of the cotton seized.

During the pendency of the former suit, by consent of all parties thereto, the cotton attached was sold by the sheriff, and on the termination of the suit this officer failed to pay over the funds arising from said sale, and the defendants herein — the attaching creditors — are sought to be made responsible for the amount thereof.

The Judge a qvo allowed the plaintiffs legal interest on the amount of sales of the cotton, less the charges for freight and weighing, making...............................................$ 489 25

Counsel fees............................................... 500 00

Costs of executing commissions............................. 26 00

Total..................................................$1015 25

1. The plaintiffs’ counsel contends that the 1st and 3d items in the above statement should be increased. That the interest, was calculated in too small an amount, that is, upon too low an estimate of the value of the cotton.

We have reviewed the evidence on these points and find no material errors in these items. The evidence leaves them somewhat in doubt, but we are not prepared to say that the Judge’s conclusions respecting them were incorrect.

2. We are, however, of opinion that the entire charge for the expenses of several trips made by one of the plaintiffs to this City, where the attachment was gotten out, should not have been rejected. The seizure of 95 bales of their cotton was, of course, a matter of considerable interest to them, sufficient to demand the presence of at least one member of tlieir firm, when they heard of the seizure of the cotton. It was necessary to employ counsel to institute proceedings for the, recovery of their property, arrange, perhaps, for giving bond and to attend to other matters incident to the suit, which might well require their presence. The expenses of the first trip at least should have, been allowed. We see no necessity for the two other trips charged for. Personal attendance at the trial was not indispensable. The expense of each trip was shown to have been eighty dollars.

3. We think $80.40 costs, for the printing of briefs in the attachment suit, shown to have been paid by plaintiffs, should have been allowed. It was a part of the actual expenses of that litigation.

4. The evidence shows that the cotton, on the 15th February, 1877, when attached, was fully worth $5,054.60. It sold for $4,682.15. We think the plaintiffs entitled to the difference, amounting to $372.55. Between its seizure and sale there was a decline in the price. This difference measures the actual loss to plaintiffs from this cause.

This sums up the actual damages sustained, according to our view of the case, from the illegal attachment.

5. The plaintiffs are not entitled to recover the proceeds of the sale of the. cotton sold under the agreement referred to. If that agreement had not been made, we must presume that the cotton would have been on hand to respond to the final decree of the court, under which plaintiffs would have been entitled to receive it. For reasons best known to themselves, they consented to its sale. The proceeds went into the hands of the sheriff who failed to pay them over. The loss to the jilaintiffs resulted not from the attachmentbutfromthe delinquency of the sheriff. This was the immediate or proximate cause of the loss. Ocuusa próxima et non remota spectator.

It is only the direct, and immediate damage from a particular act and not the remote or consequential damage that can be allowed. 1 An. 372 ; 30 An, 15 ; 13 An. 564 ; 26 An. 250, 359 ; Barremore vs. McFeely, 32 An. 1181 ; Huyghe vs. Brinkman, 34 An., not reported.

For the loss resulting from this malfeasance of the sheriff, a loss to which their own consent to the sale in some measure contributed, the plaintiffs must look to that officer and his official sureties.

We are satisfied that the defendants instituted this attachment proceeding in the honest pursuit of what they deemed their legal rights. In taking this step it is shown that they acted under the advice of experienced and able counsel, and that-, during the litigation two judgments were rendered in their favor, though subsequently reversed, is the best evidence of their good faith, and a complete vindication from the charge that the suit was wantonly instituted and prompted by malice.

The defendants must, however, pay the actual loss caused by the attachment, which we sum up in accordance with the foregoing-statement, as follows:

Amount allowed by judgment, lower court..................$1015 25

Expense of one trip to New Orleans......................... 80 00

Costs of briefs............................................ 80 40

Loss in price or value of cotton............................. 372 55

Total...................................................$1548 20

On this sum legal interest should be allowed from judicial demand.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by increasing the amount thereof to one thousand five hundred and forty-eight dollars and twenty cents, with legal iuterest thereon from the 8th February, 1878, and as thus amended it be affirmed. Defendants to pay costs of both Courts.

Poché, J. I dissent from that part of the opinion and decree of the majority which holds the defendants responsible for the difference between the price which plaintiffs’ cotton would have brought at the date of the attachment and the price which it actually brought.

' The cotton was sold under the following agreement:

“ To save further costs and expenses, it is agreed that the cotton held under seizure herein by the sheriff of the Parish of Orleans, may be sold by him for cash, after advertisement for live days in the New Orleans Picayune, Democrat and Times, without appraisement; and the proceeds of sale shall in every respect -represent said cotton ,in the same manner as it is now held, and without prejudice to the rights of the several parties.
“ [Signed] John Ciiaefe & Sons.
“Hornor & Benedict,
Attorneys for Franlc & Oo. and F. HeynerP

Through their own voluntary act plaintiffs agreed that the proceeds of the sale made under their own order, would represent and stand in lieu of the cotton held by the sheriff, and this act, in my opinion, estops them from asking anything else, or any other amount of money than that which was realized by such sale.

If they had allowed the law to take its own course, the cotton would have remained in the hands of the sheriff until the final determination of the suit, and they might, in such case, claim as damages the difference in proceeds which is allowed by the decree.

The same effect should be given to the agreement touching this question as that given to it touching the responsibility of the defendants for the funds not accounted for by the sheriff.

1 concur with the majority in all the other points disposed of in the decree.


author: Poché, J.

text:
    No. 7921.
    Francis Masich vs. The Citizens’ Bank of Louisiana.

      An agent is responsible to his principal for fclie acts of his sub-agent.
    A bank, which receives io pledge as security for a loan and undertakes to collect for another party Ilavaua lottery tickets which have won prizes, an-l consigns thorn to its own correspondent for collection, is responsible to its principal for the amount of commission which its correspondent or agent has overcharged for the collection of such values.
    Under such a contract, the bank is held to a prudent administration of its principal's interest, and must see at its peiil, that the commission charged by its agent do»-s not exceed the customary rates of commission established by usage in the placo where the collection is
    APPEAL from the Fifth District Court for the Parish of Orleans. Bogers, J.

      Thos. J. Semm.es for Plaintiff and Appellee.

      A. Pitot for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff claims of the Citizens’ Bank $1,260, as an alleged overcharge on the commission for the collection of a large amount of Havana lottery tickets which had won prizes, on which plaintiff had borrowed sundry sums of money from the defendant, and which he had authorized and instructed the Bank to collect for him in Havana.

Alleging that the customary rate of commission on such collections in Havana is .one-half of one per cent., and that in these transactions he was charged a commission of 2-J per cent., which ivas retained before remittance of bis funds, he prays for judgment of 2 per cent, on the amount collected for him, on which the 2i per cent, commission was charged.

The defense is that the commission charged was not received by the Bank, but was charged and retained by its correspondent in Havana, to whom the collection had been entrusted by the defendant, under its contract with plaintiff, who had not in his agreement with the Bank fixed any rate of commission or in any way restricted such charges to any specified rate.

The judgment of the lower court recognized plaintiff’s claim, and the defendant has appealed.

The record shows that plaintiff, as the holder of a large amount of Havana lottery tickets which had won prizes, entered into a double contract with the Citizens’ Bank, under which he obtained loans of money on pledging bis tickets to the Bank, and under which he entrusted the Bank with the collection of the pledged tickets in Havana. On receiving the return of sale of the first consignment, plaintiff and defendant were both astonished to discover that the Bank’s correspondent in Havana had charged and retained a commission of2i por cent, on the amounts collected by him, and the Bank thereupon ceased to send any further collection to that agent, and had the balance of plaintiff’s tickets collected by a house in this city on a stipulated commission of one-half of one per cent.

There is a serious conflict, in the evidence on the point of the rate of commission to be charged for the collection of the tickets, in the contract between Masich and the Citizens’ Bank.

Plaintiff and one of his witnesses contend that, the agreement stipulated the customary commission, known to the defendant t.o be onelialf of one per cent.; and the officers of the Bank are as positive in their denial of such an agreement, and in their assertion that they were ignorant of the accustomed rates of commission prevailing in Havana on such collections.

Recognizing- the difficulty which we experience in reconciling the conflicting testimony of witnesses of the highest respectability, we shall avoid an expression of opinion as to which of the two versions should be adopted, and we shall assume for the purposes of this case; that the agreement contained no stipulation fixing or determining any rate of commission.

Under the law and jurisprudence, as well as by the force of well established usages of trade and commerce, the obligation of the Bank under its contract was to effect the collection of plaintiff’s values in the most expeditious manner and under the most reasonable and most favorable terms. Under the legal obligations of its agency the Bank was undoubtedly held to a careful and prudent administration of its princip.al’s interests and affairs. Hence results the obligation to have secured the services of a prudent and reliable sub-agent, and to have ascertained in advance the rate of his charges for collection of this particular kind or description of securities, and t.o have provided with certainty that his charges would not exceed the rates established as usual and customary on that market.

We are clear in our conviction that the proper and legal course for the Bank, before making any consignment of plaintiff’s values to its correspondent in Havana, without advice restricting his rate of charges, was to have done what it subsequently did, after its experience with the Havana merchant, and to have ascertained, as it did subsequently, at what rate the collections could be made. It is in evidence that the New Orleans house which made the collection of the last tickets at the rate of one-half of one per cent., would Lave been willing, if entrusted with the collection of all of plaintiff’s tickets, amounting to $150,000 Spanish currency, of prizes, to have undertaken the collection on a commission of one-quarter of one per cent.

It. is therefore very clear that, had the Bank begun its administration of this business with the same prudence and skill with which it handled the last transaction, plaintiff would have sustained no losses and this suit would never have been heard of.

Although the testimony touching the, customary commission charged in Havana for the collection of such securities is somewhat conflicting, the preponderance of evidence satisfies us that, the charge made in this case is unusual, unreasonable and exorbitant, and that the usual commission for the collection of lottery prizes is similar to that prevailing for the collection of sight drafts and other 'commercial paper, and is fixed among merchants and banking houses at one-lialf of one per cent.

In his testimony in this case, the very merchant who charged the commission complained of, says that in other collections of the same kind "of values he had charged less than on this occasion, because, the other collections were of small amounts, and because the responsibility was less.

The New Orleans house and most, of collecting agencies take an entirely different view and, as a rule, decrease the rate of commission in proportion to the increased amount of collections made for the same person. As all agents are responsible for the acts of their sub-agents, we conclude that the defendant is and must be held responsible for the overcharge of commission made by its correspondent or agent in Havana, in the collection of values entrusted by plaintiff t,o the Bank.

The greater part of the brief presented by defendant’s counsel is devoted to the proposition that in its contract with pflaintiff, the Bank had made no stipralation touching the rate of commission on collections of lottery prizes in Havana, of which its officers were avowedly ignorant., and that pflaintiff was understood to have taken all the risks of such charges.

This view is conceded by plaintiff and has been assumed as correct by us; but. it cannot alter or modify the responsibility of the Bank in its undertaking as agent., to collect through an agent of. its own selection the values which it held in pledge, and for which it was responsible, to plaintiff.

Judgment affirmed.


text:
    No. 8625.
    Samuel J. Hart vs. H. L. Lazarus, Judge, Etc.
    In those eases where the amount of a suspensive appeal bond vests in the discretion of the judge, that discretion must he reasonable and just, nob arbitrary or absolute. It must be a sound judicial discretion.
    "When an injunction has been dissolved without damages the rule is that the party oast is required to give a suspensive appeal bond only for costs. It is the injunction bond that is designed to cover losses, and to answer for damages.
    But there are exceptional cases when the omirfc in its discretion may, and sometimes ought, to fix a bond, when there is an appeal from such judgmont of dissolution, in a larger sum than the appeal bond, and additional to tho amount of the injunction bond, such larger and additional sum varying with and being determined by the circumstances of each case.
    Application for Mandamus.

      Mekolls & Carroll and Chas. 8. Hice for tlie Relator.

      IE. ED. White for the Respondent.
   The opinion of the Court was delivered by

Manning, J.

The relator, having obtained a writ of injunction and given such bond as was required by the judge who granted the writ, and the injunction having been dissolved, prayed and was allowed an appeal from that judgment, but was required to give an appeal bond for two hundred and fifty thousand dollars, whereupon he applied to this Court for an alternative writ of mandamus and for a prohibition commanding the Judge to shew cause why he should, not he ordered to fix the bond in such reasonable sum, not including damages arising from or growing out of the issuance of the injunction, as is contemplated. by law.

The respondent shews for cause that the bond in such case was to be fixed by him within the limits of a sound judicial discretion, and lie considered the sum prescribed by him a just and proper one. The reasons which induced him to this conclusion are, that the relator had injoined the State Treasurer from investing in United States Bonds over six hundred thousand dollars of money deposited with the Fiscal Agent, which injunction had issued on a bond of two thousand dollars. Upon the dissolution of this injunction respondent deemed it his duty to fix a bond for a suspensive appeal in such sum as would save the State from any possible contingent loss.

The relator avers that he is deprived of his legal and constitutional right of appeal by the requirement of a bond which he alleges is unreasonable and excessive.

There are four classes of appeals: — 1, where there is judgment for a sum of money ; 2, where it is for the delivery of a specific thing; 3, for the delivery of real estate, ou all which, rules are given for ascertaining the amount of the appeal bond.. Code Prac., Arts. 575-7. The 4th comprises a large class of cases in which the amount of the bond rests entirely in the sound and reasonable discretion of the court. Ibid. Art. 574. That discretion must be reasonable and just, not absolute nor abitrary. It must be a sound judicial discretion.

We do not think the bond fixed in this case conforms to'this requirement.

A plaintiff in injunction must give bond when the writ is granted in a sum to be fixed by the judge, who must then determine, from the circumstances as disclosed in the petition, what sum will reasonably cover the damages that may be caused by the issuance of the writ, and should prescribe the amount, of the bond accordingly. The fact that his discretion is for the moment uncontrolled should make him especially vigilant over himself in estimating the possible damages. Of course men’s judgments will differ. What appears reasonable and sufficient to one is not so to another, and the present case illustrates the divergence in that respect. The judge who granted this injunction on a bond for two thousand dollars erred in one way, and the judge who fixed the amount of this appeal bond erred in the opposite way.

But when the injunction thus granted is dissolved without damages, the rule is that the party cast is required to give bond for appeal only for costs. Malain vs. Judge, 29 Ann. 794; State ex rel. Durand vs. Judge, 30 Ann. 285; State ex rel. Williamson vs. Judge, Ibid. 315; Bauer vs. Lochte, Ibid. 685; Stafford vs. Renshaw, 33 Ann. 444.

The injunction bond is the one which protects the party injoined from loss, and the signers thereof are responsible for the damages occasioned by the injunction. That was the object of that bond, and its sole condition. Cres. City Slaughter Ho. Comp. vs. Larrieux, 30 Ann. 741. It has been said with emphasis, when the judge granted the injunction he fixed the bond to cover the damages that might result therefrom. He had no authority to require other conditions than those prescribed by law in order that the relator might enjoy the constitutional right of appeal. There is no reason for a bond for damages other than the one given when the injunction was issued. State ex rel. Roudanez vs. Lynch, 28 Ann. 517.

There have been exceptional cases however in which this Court felt justified in requiring a bond for a larger sum than the costs, and additional to the injunction bond. Instances are to be found in State vs. Judge, 19 La. 171-3; State ex rel. Coons vs. Judge, 27 Ann. 334, which may be consulted to ascertain the particulars of each case. The relator in this case claims to own bonds of this State for $75,000, and his injunction was to prevent the conversion of the moneys in the State Treasury into TJ. S. Bonds to such extent as would imperill his interests, alleging that an investment in U. S. Bonds would he at a great premium, and their value hereafter would depend upon tho uncertain fluctuations of business, and the freedom of the U. S. Government from foreign or domestic troubles. The fluctuation in value of those Bonds, to the amount lie holds of State Bonds, can scarcely bo more than teu thousand dollars.

We think the relator is entitled to have liis appeal bond fixed in a sum which will reasonably cover the costs, but following the precedents of tho two cases above cited, and recognizing- this case as exceptional, we think it our duty to require that the relator shall file, besides Ms appeal bond, Ms bond with surety for ten thousand dollars conditioned to pay all such damages as shall have been sustained by tho injunction heretofore obtained in case it should bo decided that such injunction was wrongfully obtained, and illegally kept in force. Therefore,

It is ordered and decreed that the mandamus bo made peremptory, and the prohibition perpetuated, whereby the respondent is ordered to fix the amount of the appeal bond in such sum as will reasonably cover tho costs whenever the relator shall file Ms other bond as above prescribed conditioned as set forth herein, and that respondent pay the costs hereof.

On Rehearing.

The prayer of the plaintiff’s petition for injunction was to restrain the conversion of moneys in the State Treasury, amounting to $050,000, into U. S. Bonds, although Ms own interest in State Bonds is not more than $75,000. The injunction was granted as prayed. We therefore deem it prudent and proper to increase the bond to a sum which will save the State harmless from the consequences of an injunction of larger scope than was needful for tho protection of the interests of tho relator. Therefore,

- It is ordered that our former decree is amended by increasing the amount of the additional bond to be given by the relator to twenty-five thousand dollars, and as thus amended that it be and remain, tlic judgment of the Court.


author: Poems, J.

text:
    No. 8585.
    The State of Louisiana vs. Ed. Curtis.
    The eompl.iint of on accused that an erroneous charg© was given to the jury will not be hoot (l or ontcrtniui (1 on appeal, if the record (loos not show that the charge complained of had been given in writing, or that a bill of exceptions had been taken from the charge at the timo of delivery. Judgment affirmed.
    APPEAL from the Criminal District Court- for the Parish of Orleans. Homan, J.

      J. C. ligan, Attorney General, for the State, Appellee.

      Win. It. Whitaker for Defendant and Appellant:
    1. Wliero error of law in the charge appears on the face of the record, it is properly before the court. State vs. Ricks 32 An. 1098; Falk vs. People, 42 111. 332: Wharton’s Prac. § 449.
    2 The court will review the whole record on appeal, and when there is no bill of exceptions. State vs. Forrest, 23 An. 433 * State vs. O’Conner, 13 An. 486; State vs. Henderson, lb. 489 ; Rankin vs. Holloway, 3 Smedes & Marsh., 614; Murdock vs. Hurdon, H. & M. Ya. 200 ; Bish. Or. Pro , § § 1368, 1372; Stephens on Pleading, 120, 146 ; State vs. Gunter, 30 An. 538.
    3. Instructions “ that when alibi is set up by the prisoner as a defense, the burden is upon him to prove it, beyond a reasonable doubt,” are erroneous. It is sufficient for the prisoner, when alibi is a defense, to produce evideuce which raises a reasonable doubt. Chappel vs State, 7 Coldw. Tenn. 92; Snell vs. State, 50 Ind. 516; Adams vs. State, 42 lb. 373 ; West vs. State, 48 lb. 483; French vs. State, 12 lb- 670; Miller vs. People, 39 111. 457 ; Bin ns vs State, 46 Ind. 311; State vs. Josey, 64 H. C. 56 ; Toler vs. State, 16 Ohio State 583; Fife vs. Commonwealth, 5 Casey, Pa. 429; Bishop Crim. Pro. §1066; Pollard vs. State, 53 "Miss. 410; Gibbs vs. State, 1 Tex. Ap. 12; Ofcmer vs. People, 76 111. 149; Howard vs. State, 50 Ind. 190, 193; Commonwealth vs. Choate, 105 Mass. 451.
    4. An erroneous instruction cannot be corrected by another which states the law accurately, unless the erroneous one be thereby plainly withdrawn from the jury. (Bradley vs. State, 31 Ind. 472 ; Kingen vs. State, 45 lb. 519.)
    5. If error were committed in the court a qua, which could by any possibilityproduco injury to the defendant, it is ground of reversal.
   Tlie opinion of the Court was delivered by

Poems, J.

The defendant seeks relief from a conviction of the crime of robbery and from a sentence of fourteen years to hard labor, on the ground of an error in the charge of the Judge to the jury.

In a motion for a new trial the accused complained of the error of the District Judge in charging the jury “ that when alihi is set up by the prisoner as a defense, the burden is upon him to prove it beyond reasonable doubt.” If, after considering all of the evidence, the jury entertains a reasonable doubt as to the guilt of the prisoner, he must be acquitted.”

In a bill of exceptions taken to the refusal of a new trial, the District Judge makes the following statement: No exception was taken and ' no objection raised by counsel for the defense when the charge of the court was given to tlie jury.” That charge was a verbal one and counsel for the defense assumes more than he has a right to do, when lie quotes from it with such minute precision.” * * • “ The court

instructed the jury that the credibility of all the witnesses heard in the case was before them.” “ That they could believe or disbelieve this or that witness as they saw lit, if after due examination of the whole evidence adduced they thought they were justified in doing so.”

From the foregoing statement it clearly appears :

1. That the charge complained of is not brought up in a bill of exceptions taken at the time that the charge was given.

2. That the charge was not given in writing.

And we may add that from the record it appears that the charge complained of was not given at all.

If we concede to counsel for the accused the principle which he contends for, that “ where error of law in the charge appears on the face of the record, it is properly before the court,” it is clear that the error complained of does not appear in the record, in any of the modes prescribed by law and recognized by jurisprudence.

In the case of Ricks, 32 An. 1098, which he quotes, it appeared that the obnoxious charge had been given to the jury ‘‘ in writing, and was embodied in the record,” which is not the case here. That decision has been subsequently reviewed by us and ha's been considerably modified in the case of Baird et al., 34 An. 106, where we showed the danger of abuse in allowing the accused to complain on appeal of a charge, even in writing, to which he had not objected or excepted when it was given, by which course he would be at liberty to take his chances of acquittal on the charge as delivered, and if convicted, to urge his objections in subsequent proceedings.” And without absolutely overruling the previous opinion we laid down the following rule : “ Ouly in cases of gross and unambiguous error will we sustain objections to the charge; not made and presented by bill of exceptions at time of delivery.”

The rule is sufficiently favorable to the accused, and will be adhered to.

In this case the accused has to encounter two insurmountable obstacles : 1st, the charge was not reduced to writing •, and 2d, no objection was made, or exception taken, to the charge at the time of delivery. The circumstances ofthis case, in which the defendant complains of a charge which the Judge denies having given, and which therefore does not appear of record, justify the wisdom of the rule which requires in all but exceptional cases, that the objection to a charge must be presented by bill of exceptions taken at the time of delivery.

The record shows no error to the prejudice of the defendant.

Judgment affirmed.


text:
    No. 8637.
    The State of Louisiana ex rel. Zuberbier & Behan vs. J. L. Cole, Judge of the Twenty-Third District Court for the Parish of Iberville.
    Where suit is brought on a claim for less than a thousand dollars, coupled with a revocatory action to annul a fraudulent sale made by the debtor, so far as it affects the creditor, the purchaser at such sale cannot appeal to this Court from a judgment annulling the sale to the extent ashed for, though the property may be worth more than §1000. Mandamus refused.
    A PPLICATION for a Mandamus.

      Alex. Hébert for the Relators.
    Respondent in pro. per.

   The opinion of the Court was delivered by

Todd, J.

This is an application for a mandamus under the following state of facts:

On the 2d of May, 1882, Eenelon Robin, in his own rightand as agent and partner of his mother, Mrs. Julie Robin, sold and delivered to the Relators the contents of a store, consisting of a stock of dry goods, groceries, etc., for sixteen hundred dollars.

On the 6th of the same month and year, D. G-. Tutt & Co. of St., Louis, creditors of Mrs. Julie Robin & Son., the vendors of the stock of goods, instituted suit for $183.50 against them, coupled with a revocatory action to have the sale in question declared null, so far as it affected them, as having been made in fraud of creditors.

On the 30th of September following, judgment was rendered in favor of these creditors for their debt, and annulling the sale so far as it affects the interést of said creditors and ordering the sale of so much of the property as would suffice to pay their judgment.

. The Relators being parties to that s uit, applied for a suspensive appeal from that judgment, which was refused by the Judge who is the respondent herein.

This case comes clearly within the scope of that of Loeb & Bloom vs. Arent, 33 An. 1086. That was also a suit against an alleged fraudulent debtor for $234, joined with a revocatory action. In that case it was said : Plaintiffs do not seek absolutely to annul the transfers, complained of, but to avoid its effects as to themselves. In other words, to subject to their judgment of $234 the property of their debtor alleged to have been fraudulently transferred.”

“ It is therefore clear that the only issue between plaintiff and appellants is the right of the former to enforce the execution of their judgment against property held by appellants and acquired by them from Arent.” See also, 34 An. 595.

Por these reasons the alternative writ heretofore granted is set aside, and the mandamus is refused at the cost of the Relators.


text:
    No. 8646.
    J. A. Bajourin vs. D. S. Ramelli.
    An order by the ¿Tatlge of one division of the Civil District- Court for the Parish of Orleans, transferring a cause to another division to be there cumulated with the insolvency pioceediugs of the defendant, is a compliance with Sec. 1H16 of the .Revised Statutes, which wo hold not to be inconsistent with Art. 130 of the present Constitution.
    Such an order is not appealable.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J,
    On Motion to Dismiss.

      H. E. Forman for the. Appellee.

      A. GolMhwaite and Ohas. 8. like for the Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The judgment ajipealed from is in the following words: “ It is ordered, etc., that all the proceedings herein be transferred to Division “ E ” of this court, there to be cumulated with the insolvency proceedings of Daniel S. Ramelli.” It has been the settled jurisprudence of this Court, from a very ancient date, that no appeal lies from such an order. Kelly vs. Breedlove, 9 Mart. 492 ; Pooley vs. Moorhouse, 13 An. 300; Powell vs. Kellar, 1 An. 25 ; 3 Mart., O. S., 185 ; 3 Mart., N. S., 25.

We presume the Judge acted under Section 1816, R. S., which provides that suits brought anterior to the failure shall be transferred to the court in which the insolvent debtor shall have presented his schedule.” We do not think this statute inconsistent with Art. 130 of the present Constitution. The case is thus identical with Pooley vs. Moorhouse, 13 An. 300.

It is, therefore, ordered, that the appeal herein be dismissed at cost of appellant.

Rehearing refused.


text:
    No. 7877.
    James H. Breen vs. Andrew Downey.
    In a cause which requires the investigation of long and intricate accounts, in which the lower court (ltd not appoint auditors, tlio Supreme Court will remand tlio cas© for the purpose of submitting the investigation of its accounts to auditors, under Art. 443, C. P.
    Judgment reversed aud cause remanded.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      H. B. Forman for Plaintiff and Appellee.

      <T. H. Ferguson for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff brought this suit for judgment on a balance of $2,504.18, alleged to be due to him by defendant on an account of $5,958.94, covering a period of seven years’ duration.

After pleading the general denial, the defendant filed the plea of payment of $1,500 over and above the credits allowed him by plaintiff, and re-pleaded a general denial as to the balance.

The judgment of the District Court was in favor of plaintiff for $1,094.96. Defendant appeals and plaintiff moves for an amendment of the judgment, with a view to recover the whole amount of his claim.

A correct solution of the problem offered by the pleadings and the evidence in the record would necessitate a minute examination, a thorough consideration and a skilful comparison of long and intricate accounts, receipts and vouchers, amounting together to sixty-eight documents.

In the language of our predecessors, in the case of Spraggins vs. White’s Executors, 4 N. S. 298, u It is a matter of surprise to us that in cases like this, where the law authorized courts to aid their investigation by placing accounts before referees, the Judges of the first instance neglect or refuse to profit by their assistance. We think it would greatly promote the ends of justice to send all such cases before men accustomed to the examination and settlement of accounts; it is almost impossible Judges can examine them with the same accuracy or arrive at as exact results.”

The examination which we have made of this record has convinced us that the provisions of Article 443 of the Code of Practice were intended to meet precisely such cases as this.

In his oral argument before us, plaintiff’s astute counsel admitted his inability, even after days of tedious examination, of the interminable list of papers produced by the defendant,” to ascertain the precise drift of his defense.

In justice to other litigants whose cases are awaiting our action, we are compelled to refrain from such an improbable and useless undertaking, and we shall remand this cause for the purpose of submitting its long and intricate accounts to the examination of auditors. Bird vs. Black, 5 An. 192; McConnell vs. Pasley, 31 An. 532.

It is, therefore, ordered, that the judgment appealed from be reversed and set aside, and that this cause be remanded to the Civil District Court of the Parish of Orleans, now vested with jurisdiction in the premises, to be proceeded with according to law, with instructions to submit the examination of the accounts involved in said casé to auditors to be appointed according to law.

Costs to abide the final determination of the controversy.

Rehearing refused.


author: Mark, J.

text:
    No. 6799.
    Adolph Sickman vs. Charles A. Diamond et al.
    When one of the appellants dies pending the appeal, and appellee, suggesting his death, moves that the administrator of his succession be made a party, but offers no proof of the appointment of such administrator, and no appearance is made by him, the Court can render no valid judgment in the cause and the case will be reinstated on the docket.
    This case is taken from advisement and reinstated on the trial docket.
    The jurisdiction of an action of partition by one co-owner against another co-owner and against the succession of a third co-owner belongs to a court of ordinary jurisdiction and not to a probate court.
    The Supreme Court can receive or consider no new evidence.
    A court cannot grant a relief not prayed for in the pleadings.
    APPEAL from the Second District Court for the Parish of Orleans. Tissot, J.

      Uornor & Benedict for Plaintiff and Appellee.

      St. M. Bérault and Jas. II Grover for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Mark, J.

On the Merits, by Poci-ité, J.


text:
    No. 8677.
    The State of Louisiana vs. John Jordan.
    The testimony taken on preliminary examination of a witness who is a non-resident, only accidentally present in the state at the time, and who has never since been here, will be competent evidence at the trial of the accused, where the latter was confronted with the witness at the preliminary examination and was afforded the opportunity of cross-examining him.
    In an indictment for obtaining goods under false pretenses, where amongst the pretenses it is charged that the accused represented that “ he wanted to buy goods on credit, in the fair and usual course of trade, etc,” and that on the faith of such representations, the goods were delivered to him, this sets out such a colloquium as to a bargain of sale as connects the delivery of the goods therewith, and will support the indictment without more specific statement of the nature of the bargain.
    APPEAL from the Criminal District Court for the Parish of Orleans. JOnsenherg, J.

      W. JO. JEv&ns for Defendant and Appellant:
    The deposition of a witness taken on the preliminary examination before a magistrate, is not admissible on the trial before the jury, if the State or prosecutor can, by due diligence, bring the witness into court. The right to use such evidence grows out of the great doctrine of necessity. Wharton Cr. Ev., Sec. 229; IT. S. vs. Macomb, 5 McLean, 287; State vs. Staples, 47 H. H 113 ; Powell vs Waters, 17 Johns. 176; Wilbur vs. Sheldon, 6 Cow. 162; Crary vs. Sprague, 12 Wend. 41; Berney vs. Mitchell, 34 N. J. L. 337; Broggvs. Com., 10 G-rat. 722; Summons vs. State, 5 0. St. 325; Bergen vs. People, 17 111. 426; Kendrick vs. State, 10 Humph 479 ; Dupree vs. State, 33 Ala. 380; Hobson vs. Harper, 2 Blackf. 309; Collins vs. Com., 12 Bash. 271; Gerliauser vs. Ins. Co., 7 Nev. 174.
    As to the doctrine of necessity. 1 Bish. Cr. Proc 3d ed. Sec. 1195; Sullivan vs. State, 6 Texas Ct. Ap. 340.
    Where the charge is obtaining goods by false pretenses, the judgment should be arrested when the information f.uls to allege any bargain, or colloquium as to a bargain by which the goods were obtained. Com. vs. Strain, 10 Met. 521; State vs. Philbriek, 31 Maine 401 ; State vs. Bonnell, 46 Mo. 395.

      J. G. Egan, Attorney General, for the State, Appellee.
   I.

Tlie opinion of the Court was delivered by

Fenner, J.

The bill of exceptions to the Judge’s ruling in admitting the testimony of a witness taken on a preliminary examination cannot be sustained under the circumstances disclosed therein. The witness was a non-resident of the State, who only chanced to be here at the date of the preliminary examination and had never since been in the State. The accused had been confronted with him at the examination and had the opportunity of cross-examining him'. No amount of diligence on the part of the prosecution could have secured his attendance at the trial. The case falls fully under the doctrine of necessity, under which such evidence is held to be admissible. 1 Bishop Cr. Proc., Sec. 1195 ; Wharton Cr. Ev., Sec. 229.

We have ourselves had occasion to consider and apply this doctrine in a case of State vs. Stewart, recently decided at Opelousas, and not yet reported.

II.

The charge against the accused was obtaining goods by false pretenses. It is urged, on motion in arrest of judgment, that the information was fatally defective, because it does not allege any bargain or colloquium as to a bargain uuder which the goods were obtained.

Amongst the false pretenses set out in the information is this: that the accused represented that he then and there wanted to buy goods on credit, of the said firm of Flash, Preston & Co.,in the fair and usual honest course of trade, with intent to pay honestly for them, etc.” And this is almost immediately followed by the statement that said Flash, Preston & Co., on the faith of said pretenses, did deliver goods, etc.

We think this sets out such a colloquium as to a bargain of sale as connects the delivery of the goods therewith, and takes the case out of the authority of Strain’s case, 10 Metcalf, 521, and the other cases founded therein, quoted by defendant’s counsel, from 31st Maine, 401, and 46 Mo. 395. This case falls more properly under the authority of Com. vs. Hulbert, 12 Metcalf, 446, where the indictment, not substantially differing from the . present, was sustained. See also, People vs. Skiff, 2d Parker, (N. Y.) p. 139.

Judgment affirmed.


text:
    No. 8623.
    The State of Louisiana ex rel. G. A. Breaux et al. vs. The Judges of the Court of Appeals for the Parish of Orleans.
    A party will not bo heard to contradict and go behind the express jurisdictional allegations of his own petition, for the purpose of ousting the appeal of his adversary who, in good faith, has accepted and acted upon the same.
    Application for Prohibition.

      Barry B. Ball for the Relators.
    Respondents in pro. per.

   The opinion of the Court was delivered by

Fenner, J.

Relator seeks, by writ of prohibition to restrain the Judges of the Court of Appeals from taking cognizance of an appeal on the ground that the amount involved exceeded the hounds of their jurisdiction.

The suit in which the appeal was taken was a proceeding by mandamus to compel the Recorder of Mortgages to erase the inscription of mortgages resulting from the' recordation of State taxes for the years 1871,1875 aud 1876. The petition sets forth specifically the amount of said inscriptions and resulting mortgages, aggregating the sum of $828.15, and contains the further distinct allegation that “saidtaxes, together with accrued interest and penalties, exceed the sum of $500, and are less í/¡.a»$1000.” Judgment was rendered in favor of Relators, aud the State, in appealing therefrom, guided by the allegations of Relators’ own pleadings, naturally sought the Court of Appeals. Relators moved in that Court to dismiss the appeal on the ground that the amount in dispute exceeded $1000; and, that motion having been denied, they invoke at our bauds the remedy of prohibition.

Authorities are quoted in support of the doctrine, always recognized by ourselves, that consent cannot give jurisdiction. But no authority can ho found holding that a party may contradict and go behind his own specific jurisdictional allegations for the purpose of ousting the appeal of his adversary who has accepted and acted upon the faith thereof. Nothing in the record contradicts the allegations as to the amount of the mortgages. Legal argument is presented to show that the mortgages, as inscribed, cover not only the principal of the taxes but interest and penalties. The' State contends, and the Court of Appeals held, that the inscription covered the principal only. These extremely important questions were not at issue in the case; and certainly the present is not a proper proceeding- in which we should he called upon to decide them. Upon the face of Relator’s own petition the Court of Appeals has jurisdiction of the canse and we will not listen to his own impeachment of their truth.

The application for prohibition is, therefore, denied.

Rehearing- refused.


author: Fknnjsr, J.

text:
    No. 8663.
    Winkler & Ricks vs. Their Creditors.
    Section 1799 of the Revised Statutes, providing that in deliberations of creditors in insolvency proceedings, “ the opinion of tlie majority of tbe creditors in number and amount shall prevail; but in case of any equality, then tbe number of persons shall prevail,” requires unequivocally a majority of creditors, both in number and amount, in order to choose a syndic, and cannot be construed away.
    The term “ equality " in the last phrase refers to equality in amount, in which case only can the majority in number elect.

      In case of refusal of a majority of creditors in number and amount to agree upon a syndic, Section 18X0, K. S. applies.
    The same rule applies to all other questions submitted to creditors: in case of failure of a majority in number and amount to agree, the court will solve them according to the pioviaions of the insolvent laws or other laws in pmi materia.

    APPEAL from the Civil District Court for the Parish of Orleans. Tissoi, J.

      Braughn, Bitch & Dinhelspiel for the Appellant.

      Okas. 8. Bice for the Appellee.
   The opinion of the Court was delivered by

Fknnjsr, J.

At a meeting of the creditors of the insolvents, a vote was taken for syndic. W. 0. Hart received the votes of a majority of creditors in amount, while another party received the votes of the majority in number. Hart asked to he appointed syndic, as having been legally elected, and from the judgment of the court rejecting his application he prosecutes this appeal.

The Judge rests his conclusion on the ground that Hart had not received the votes of the majority of creditors in number and amount, as required by Section 1799 of the Revised Statutes, which reads as follows:

“ In all the deliberations which shall take place between the creditors, either for the choice of syndic, or for the sale or disposal of the property surrendered, or for any other object relative to the mass of the creditors, the opinion of the majority of the creditors in number and in amount shall prevail; hut in case of any equality, then the number of persons shall prevail.”

It must he admitted that the language of the Section is clear and unambiguous, in so far as it requires the votes of “ the majority of creditors in number and amount ” in order to elect a syndic, or to determine any other question which, under the law, may be submitted to the creditors.

An ingenious argument is presented to induce us to disregard the language of the Statute and to hold that the legislature meant to say that “the opinion of the majority of-the creditors in amount shall prevail,” and that the words, “ in number and ” slipped into the Statute through inadvertence and in violation of the legislative intention, and should be eliminated and disregarded.

In support of this it is urged :

1. That a literal construction would render the last phrase of the Section absurd and meaningless. That phrase is, “hut in case of any equality, then the number of persons shall prevail.” It requires no stress of construction to reconcile this with the previous provision, as thus : the opiuion of the majority in number and amount shall prevail, but in case of equality'^» amount, then the number of persons shall prevail. No other equality could be referred to, because, of course, if there was an equality in number, it would be absurd to say that the majority in number should prevail.

2. It is urged that the law prior to the adoption of the Revised Statutes had always been in accordance with the view now taken by appellant. This would rather seem to be an argument against his position ; for if it had not been the legislative intention to change the law, why should they have changed the language?

3. It is claimed that the words “in number and” evidently crept in through inadvertence or clerical error. This is possible; but, on the other hand, it is to be borne in mind that at the date of the revision, the. bankrupt law of the United States was in full vigor and it required a majority of creditors in numbers and amount to elect assignees. U. S. Rev. Stat., Sec. 5034.

It may well be that the legislature thought proper to assimilate our Statute, to this irrovision. A like rule is also followed in respite proceedings under our own Code. Art. 3086.

4. It is claimed that under a literal construction, in case of an equality in number of votes, there can be no appointment of a syndic or determination of any other question which may be submitted to creditors, and thus the insolvent proceedings would be clogged and stopped.

This apprehension is unfounded. So far as the election of syndic is concerned, Sec. 1810, R. S., fully provides for the case of failure of creditors to elect, and is again in harmony with the U. S. Bankrupt Law, Sec. 50.34. It is true Sec. 1810 provides for the case where the creditors “ refuse to appoint a syndic,” but when they refuse to vote in such manner as to appoint under the Statute, they may well be held “ to refuse to appoint.”

This Court, in construing the 29th Section of the Act of 1877, which is identical with R. S., Sec-. 1810, held “ that in case the meeting of creditors fail to elect a syndic, the court shall authorize the sheriff to perform the functions of syndic.” Morris vs. Williams, 6 An. 391.

So in the matter of determining the “ times, places, terms and conditions” of sale of property under R.. S. 1812, it was long since held that in case of failure of creditors to fix them, they should be governed by the law regulating execution sales. Mayfield vs. Comeau, 7 N. S. 180 ; Rivas vs. Hemstock, 2 Rob. 187; Egerton vs. Creditors, Id. 201.

Nor is there any matter submitted to the determination of creditors, for the disposition of which the court cannot find ample authority in law, in case of failure of the creditors to act.

The fear that the insolvency proceedings may be stopped is entirely illusory.

We find nothing in this case which would justify such a heroic operation as the excision of vital parts from the body of the law.

The Judge in this case did not err, therefore, in rejecting the application of Hart; and, in ordering another meeting of the creditors to afford a new opportunity of election by them, he exercised a discretion with which we have no disposition to interfere. .

Judgment affirmed at appellant’s costs.

Pochó, J., dissents, reserving the right to file his reasons.


author: Bermcdez, C. J.

text:
    No. 8035.
    New Orleans, Spanish Fort & Lake R. R. Co. vs. George Delamore.
    The law is well settled, that the franchises and corporate rights of a Company and the means vested in it for the purpose of its existence, canuot he granted away and tiansfened hy any act of its own, or by any adverse proceeding, unless with the consent of the oiiginal grantor, formally expressed. In the absence of any provision to that effect, either in the general law or in the charter of such Company, the franchise cannot he levied upon for debt.

      The franchise, so termed, in this case, is nothing more than a right of way or license conferred by the Municipal Ordinance, and cannot be treated as a corporate right, which deiives only from sovereign dispensation. It is, in this instance, only an incident of the corporate existence of the Company, as created by law, and determines with tho extinction of such corporate life.
    Hence, neither the franchise or corporate rights, nor the right of way of the Company, have passed at the bankruptcy sale.
    APPEAL from the Fifth District Court for the Parish of Orleans. Boyers, J
    (77ms. S. Bice and Breaux <& Hall for Plaintiff and Appellant.

      Mott & Kelly, on same side, on Application for Rehearing.

      W. 8. Benedict for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Bermcdez, C. J.

The plaintiff has enjoined the defendant from judicially selling % frame structure at the Spanish Fort on the Pontchartrain Lake shore, and a franchise granted hy municipal ordinance, of the right of way from a central point in the urban part to said Fort and shore.

The ground of opposition to tlie seizure is, that the building and the right of way belong to the plaintiff and not to defendant’s judgment debtor.

The defenses are: that tlie structure is not on plaintiff’s land, was not constructed hy plaintiff or any one for its account, and that the right of way, which was granted by the City of New Orleans to defendant’s judgment debtor, lias never passed to plaintiff an.d still is. the property of that debtor.

There was judgment decreeing the building to belong to defendant’s debtor, and the franchise to have enured to the plaintiff, and not to be liable to the seizure effected of it.

From the judgment so rendered both litigants appeal. '

For a proper understanding of the merits of tbe case, a clear Knowledge of the established facts, in their chronological order, is of great value.

On the 3f)tlx of May, 1873, a corporation styled “The Canal Street, City Park and Lake Railroad Company” was created. By Ordinances 22(54, 2548 and 3146, a right of way was granted it l>y the Municipal Council, to extend from the neutral ground on Basin street, near Canal-street, in the Second District of New Orleans, through a determined route to the Lake shore at the Spanish Fort.

This Company went into bankruptcy and on the 29th of November, 1876, the property surrendered was ordered to be sold, part cash and part on credit, with vendor’s lien and mortgage. The advertisement described the railroad, main track and branches, the stations, the buildings, car fixtures, stock and other effects and all the franchises of the Company.

On the 14th of July, 1877, at the sale, an adjudication was made to T. II. Handy, part cash aud part on time, the notes to be secured by vendor’s lien and special mortgage, with the clause de non alienando.

This sale was confirmed by the Bankrupt Court at its November term, and an act of sale was ordered to bo executed by the special master, winch was- passe(i on January 26th, 1878, describing what purported to have been sold, including the franchises or right of way granted by the City.

On the 31st of January, 1878, another corporation by the same name as the defunct one was formed for like purposes.

On the 22d of May, 1878, the City Council granted to it, by Ordinance 452.3, rights similar to those previously conceded to the first Company.

On the-15th of August, 1878, Handy assumed to transfer to the Company all the property which he had acquired on the 14th of July previous, on the assumption by the corporation of his debts and liabilities as adjudicatee and purchaser.

Subsequently, one of the notes thus assumed having matured and remaining unpaid, executory process issued, the property affected was seized and on the 8th of March, 1879, was adjudicated to Moses Schwartz & Bro.

On the 31st of March, 1879, another corporation, the present plaintiff, was formed for objects similar to those which the previous corporations-had proposed to carry out.

On the 9th of April, 1879, Schwartz & Bro. transferred to it the property, and in terms the franchise also.

On the 25th of October, 1879, the defendant, Delamore, who had obtained judgment against the second corporation, levied his writ on the frame building already mentioned, known as the “ Payillion,” and on tlie right, of way granted that corporation by the City by Ordinance 4523, adopted May 25th, 1878.

The questions presented are :

1. Whether the Pavillion belongs to the plaintiff.

2. Whether the franchises or right of way first granted by the City to the first Company passed to Handy; whether they next were transferred by him to the second Company; whether they, or those conferred by Ordinance 4523, afterwards passed from it under the executory proceedings to Schwartz & Bro., and whether they were finally transferred by the latter to the present plaintiff.

. First. We do not think it necessary to decide -presently, whether the soil on which the Pavillion” was built forms part of tlie realty which the plaintiff acquired from Schwartz & Bro. Tlie contention is not about that soil but about tlie building.

The evidence shows that the structure was connected with plaintiff’s undisputed land and was for its exclusive use; that it had been put up for his purposes by a third party, before the plaintiff had acquired any existence, and that it was finished or completed by the second Company. We hear no complaint in this suit, either from such party or from such Company, unless it be through Delamore championing its rights. The building was in existence, and such as it is attached to and in the use of the land when the writ was executed against the Company. The advertisements included the land and all its accessories. By the adjudication to Schwartz & Bro., the Pavillion passed from the ■Company to them and it afterwards was transferred by them to tlie plaintiff, who therefore owns it to the exclusion of the creditors of the Company, who had not previously expropriated it.

Second. The right of way granted by the City to the first Company ■was not transferred to its creditors. It did not-, therefore, pass to Handy at the bankruptcy sale. It had reverted to the grantor, Handy, who had not, therefore, acquired it, did not encumber and did not transfer it to the second corporation, which consequently never owned it. 2 Kent, Ed. 1867, p. 333, note.

The City authorities granted the second corporation a similar right of way, which was accepted by it. This acceptance negatives the theory that this corporation acquired the right of way adjudicated to Handy at the sale of tlie assets by tlie special master.

This right of way granted by the City to the second Company, by Ordinance No. 4523, was never mortgaged at all by it, still less seized and sold. The plaintiff claims that the grant was a superfluity, but this is not so. As the first right of way was not surrendered, was not sold, was not transferred to the second Company, but bad reverted to the City, it was not sold to Scliwartz & Bro., who did not, therefore, acquire and did not sell it to tho plaintiff.

The second Company was created under the general laws of the State, and had the right to “ borrow money” for the construction or repairs of the road. “ For that purpose,” it could issue bonds and secure them by mortgage upon tho franchises and all the property belonging to it. R. S. 692, 693, 2398 ; Redfield II, 408.

Had it done so, and on its failure to pay had the property and franchise encumbered been sold, the purchaser would have stepped in its place and would have acquired and held both.

But the Company had no right, when it made the purchase from Handy, to secure the price of sale, as it did, on the franchise which was inalienable. It did not mortgage for any purpose the franchise or right of way conceded by Ordinance 4523.

It could have mortgaged the franchise and thus made it liable to seizure, sale and. transfer, if the mortgage had been consented to secure the payment of money borrowed for the construction or repairs of the road. It has not done it, and what was otherwise done is of no effect.

It is settled by numerous authorities that the franchises and corporate rights of a Company and the means vested in them, which are necessary to tho existence and maintenance of tho object, for which they were created, are incapable of being.grantedaway and transferred by any act of the Company or by any adverse proceeding, unless with the consent of the donor or grantor form ally expressed. In the absence of any provision to that effect, either in the general law or in the charter, it is settled that the franchise cannot be levied upon for debt.

The argument is unwholesome that the Statute which authorizes the mortgage of the franchise in certain cases was designed merely to make the franchise mortgageable, which otherwise, not being a real right, would not be so. The intent of the law may have been such, but the main object was to make the franchise transferrable, as without such a law it would not be so.

The franchise so termed in this case is nothing more than a right of way. The franchise proper is the right to become a corporation, and when such to exist and operate. Tho right of way is an incident growing out of such existence and which determines with the extinction of corporate life. It is a personal servitude, the exercise of which was confined to the grantee in default of stipulation to the contrary', and which is dissolved when the grantee ceases to exist or forfeits the right to enjoy it. R. C. C. 722, 821.

The grant or license conferred by the municipal ordinance was a mere right of way. It does not come within the definition of a franchise, which the City could not confer and which derives only from .sovereign dispensation. 73 Ill. 548; 4 Kernan, 506.

A corporation is an artificial being which the law alone can create. When created it cannot transfer its own existence into another body, nor can it enable natural persons to act in its name, as its agents. The franchise to be a corporation is, therefore, not a subject of sale and transfer, unless the law by some positive provision has made it so and pointed out the modes in which such sale and transfer may be effected.

When the. sovereign covenants and agrees that a certain corporation ,shall administer certain franchises, its ordinary judgment creditors may sell its property, but not its franchises. They are beyond the reach of an ordinary execution. It is a State prerogative to put the administration of its franchises into such hands as it may choose. Those franchises cannot be transferred to other hands without the consent of the grantor. Neither the franchise nor the right of way could be transferred. Hence, neither has passed at the bankruptcy alleged sale thereof. If neither passed to Handy, he transferred nothing to the second Company, which having- acquired none, transferred none to Schwartz & Bro., who having purchased none, conveyed none to the plaintiff.

We do not understand the plaintiff as claiming any other title from Schwartz &Bro. thau such as they may have acquired from the second Company, at the seizure and sale brought about by the non-payment by it of the obligations of Handy, assumed by it in the sale from Handy to it, of the franchise said to have been acquired at the marshal’s sale,' in the bankruptcy proceedings. The plaintiff does not claim to have acquired through its authors the right of way granted by the City to the second Company by municipal ordinance. The petition repudiates the idea that the second Company acquired the right of way otherwise than from Handy and by him in the bankruptcy proceedings of the first Company. 2d Kent, Ed. J867, p. 333, Note; Stewart vs. Jones, 40 Mo. 140; Susquehanna Canal Co. vs. Bonham, 9 Watts & S. 27, (Pa.); Arthur vs. Commercial Bk., 9 Smed. & M. 394, (Miss. Ct. of Appeals) ; Randolph vs. Larned, N. J. Ct. of Errors, 17 N. J. Eq. 557 ; 73 Ill. 541; 28 L. An. 222 ; 93 U. S. 222; 12 How. 40 ; 10 Allen, 448; 2 Kent, 305, 307, 284; Angell & Ames on Corp., Ed. 1875, Sec. 191, pp. 163 to 165, and Notes; Redfield on Railways, 2d Ed. 1869, pp. 462, 466,478, 491, 553, and Notes.

Whether the right of way’ under Ordinance 4523 has continued to exist and vests in the second Company, is a question which we will not assume to determine in the present controversy. When the question will bo presented in proper form and between the proper parties, we will determine whether the right of way was or not a franchise., was or not a license, was or not personal and intransmissible, reverted or not to the City.

All that we are called upon now to determine is, whether it ivas or not acquired by the plaintiff, who has in this suit asserted title to it. That question we answer in the negative. 44 N. H. 127; 8 Gray, 575; 73 Ill.541.

We wish to be understood as not deciding whether or not that right of way exists and vests in defendant’s judgment debtor.

■ It is, therefore, ordered and decreed that the judgment appealed from be Reversed; and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed that the injunction herein issued be perpetuated as to the frame building known as the Pavillion,” and that in other respects it be dissolved, and that plaintiff’s demand be rejected, the costs of appeal to be paid equally by the appellants.

Rehearing refused.

Mr. Justice Fenner recuses himself, having been of counsel.

Levy, J. I concur with the Chief Justice and Mr. Justice Pocho in refusing the rehearing applied for in this case.

Todd, J., dissents 044 rehearing and thinks the rehearing should be. granted.