text:
    No. 10,058.
    C. A. Fish & Co. vs. M. H. Sullivan.
    A contract of affreightment- by charter party is valid when made by parol, and wlien terminable at tbe will of tlie charterer.
    There are two kinds of contract of affreightment by charter party. The first is where the owner agrees to carry a cargo which the charterer agrees to provide. The second is the contract of the instant case, that is to say, where there is an entire surrender by the owner of the vessel to the charterer, who hires the vessel as one hires a house, takes her empty, and provides the officers, crew, provisions, etc.
    Tn such a contract, the charterer is substituted iu tlie place of the owner, and becomes owner for the voyage, or owner pro hoc vice. Here, therefore, the charterer and not the general owner is liable for materials and supplies.
    In an action on account against the alleged owner of a ship for materials and supplies furnished the vessel, under the general issue the defendant may prove a charter party showing a demise of the ship to the charterer during the time covered by the account. - Reaffirming R. R. Co. vs. Heirne, 2 Ann. 127.
    A PPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      Aug. Bernau, for Plaintiffs and Appellees :
    Where a ship owner is sought to be held liable for an iudebteduess of the ship as such, owner, he cannot, under the general issue, be permitted to introduce evidence to prove a charter party. 8M. 207.
    A bill of sale of a ship accompanied by possession does not in itself constitute a good title in law; it is only pHma facie evidence. It must be shown that the transfer is T)onafide and for a valuable consideration. 16 Pet. 218; Desty’s Manual Shipping and Admirably .
    The registry and enrollment of a vessel under the acts of Congress is, primarily, proof of her national character and of her home port, and the registry of a bill of sale of a vessel in the name of a person therein named as owner, without other proof of ownership, is not even prima facie evidence of such ownership, and a party may be shown to be the real owner, though the ship is registered in the name of another. 23 Penn. St. 76; 16 Pick 401; 1 Cliff. 370; Desty “Shipping and Admiralty,” 6 Cal. 343.
    Charter parties, though usually made in documentary form, may be made by parol. The presumption of law is agaiust the demise of the vessel by the owner, and in the absence of conclusive proof to the contrary, a charter party will be c onstrued to be a mere contract of affreightment. 78 N. Y. Hep. 50; Carver on Carriage by Sea; Desty on Shipping, etc.; 2 Curtis 102 ; 14 Wall. 607 ; 7 A. 337.
    The existence of a charter party must be brought to the knowledge of third parties, and where parties wore employed by a ship owner as agents and such agents made advances to the ship on the credit of his ownership, the burden of proof is upon the ship owner to show that the agents had notice of the charter party. Secret covenants, prejudicial to third parties, are not favored by the law. 7 Ann. 337; 6 Ann. 461; 30 Fed. Rep. 451, 452; 14 Fed. Hep. 3i?4, 355, 478 ; 17 Fed. Hep. 816 ; 12 Fed. Hep. 919 ¡'Pritchard Dig. Admiralty. 485; 2 Slack 372.

      C. H. I/<willebeuvre and Garleton Hunt for Defendant and Appellant :
    Where the facts show, as they do here, that the defendant was not owner of a certain steamship during the time covered by the account sued upon for materials and supplies furnished the vessel, no recovery can he had.
    A contract of affreightment by charter party is valid when made by parol, and when terminable at the will of the charterer.
    There are two kinds of contract of affreightment by charter party. The ñrst is where the owner agrees to carry a cargo which the charterer agrees to provide. The second is the contract of the instant case, that is to say, where there is an entire surrender by the owner of the vessel to the charterer, who hires the vessel as one hires a house, takes her empty and provides the officers, crew, provisions, etc.
    In such a contract the charterer is substituted in the place of the owner, and becomes owner for the voyage, or owner pro hac vice. Here, thereforo, the charterer and not the general owner is liable for materials and supplies. The Spartan, Ware’s Reports, 149, 156; Abbott on Shipping; 6th .Ainorican Edition of Perkins; Marg.242 ; 3d Kent’s Comm.; 12th Ed. of Holmes; Marg. page 204 • Likgettvs. Williams, 4 Hare 456,462; 2 Boulay Paty, 268. 269; Parsons on MavitimeLaw, 274, 275; Taggard et al. vs. Loring, 16 Mass. H. 339; Perry vs. Osborne, 5th Pickering’s H. 422; Cutler vs. Wiuser, 6th Pickering’s H. 338; Yinal vs. Burriil, 16th Pickering’s R. 406; Muggridge vs. Evelitb, 9th Metcalf*s H. 236; Pontchartraiu H. R. Co. vs. Hearue, 2d Ann. 131.
    The principleof the maritime law is, that whoever deals with the master is, in all cases where the latter is acting within the scope of his duty, entitled to look to the ship as security. The liability of the ship ,in specie is not derived from the civil law, but bad its origin in the maritime usages of tbe middle ages. The liability of the ship is primary, and not collateral or merely accessory. 1 Oonkling’s IT. S. Admiralty 185; ThePhebe, Ware’s Hepts. 263 ; The Rebecca, Id. 378; Norwich Co. vs. Wrigbt, 13 Wallace Reports 103.
   The opinion of the Court was delivered by

Todd, J.

This is a suit to recover of the defendant $3746.14 on account.

The petition alleges substantially that the defendant, a resident of Pensacola, Florida, is indebted unto the petitioners in the sum above named for advances, payments made and merchandise furnished the steamship Kate Carroll, navigating the gulf stream and to Central America, of which said defendant was the owner.

The answer is a general denial.

From a judgment in favor of the plaintiffs for the amount sued for the defendant has appealed.

There is no dispute about the correctness of the account. That is, that the advances and payments charged were made to the steamer Kate Carroll and the merchandise furnished as stated in the account; but the whole controversy turns upon the question, whether the defendant was the.owner of the vessel during the time covered by the account.

Tt is shown on the part of the plaintiff that they were the agents of the steamship during all the time she was navigating the waters mentioned.

That the steamer was brought to New Orleans by D. F. Sullivan, the brother of the defendant, and his partner in the lumber business in Pensacola.

That the vessel was first iuteuded to be used in the lumber trade, and was for a while so engaged, but was subsequently and after a short time placed in the fruit trade and made monthly trips between New Orleans and Central America. Also,

That she was constructed at Wilmington, Delaware, at a cost of $95,000, and paid for by D. F. and Martin H. Sullivan, the partners in the lumber business, or as the plaintiffs contend, by Martin H. Sullivan alone. Also,

That'the steamer’s accounts with the plaintiffs were regularly sent to D. F. & Martin H. Sullivan at Pensacola, and after the death of the former in June, 1884, to the latter alone.

It is further shown that the defendant in his conferences or conversations with the plaintiffs on the subject of the steamer and the business connected with the steamer, referred to it> using the language of the witnesses, as “my steamer,” “ my boat,” etc.

This evidence, if it stood alone, would, we are free to say, warrant a judgment in favor of the plaintiffs, as the judge a quo evidently concluded.

But it does not stand alone. The defendant produces a written act of sale of the steamer from the Harlan and Hollingsworth Company of Wilmington, Delaware, by whom it was built, dated May 28, 1883, purporting to convoy and sell the vessel to John J. Sullivan, of New York, and D. F. Sullivan, of Pensacola, 'for $95,000 cash, in the proportion of $• interest to the former and í to the latter, and the vessel was so registered at the port of New Orleans under the requirements of the U, S. R. Statutes prescribing the regulations of commerce and navigation. And in the specifications of the company which built the steamer, called for by plaintiffs and produced and filed, it is shown that the vessel was built for D. F. Sullivan, of Pensacola, Florida.

Martin H. Sullivan, the defendant, was heard as a witness in the trial in the lower court, and on this question of the ownership of the vessel we extract the following from his examination :

Q. Look at the charges in the bill, in' the first place, and say whether, at the time those charges were made, you were owner in whole or in part of the steamer Kate Carroll ?
A. No, sir. I wasn’t owner nor holder in whole or in part. I wasn’t owner in whole or in part.

Further on he was asked to explain his interest in or his relations to the steamer, and we again quote:

A. I was acting as agent for the steamer, and she was under my control.
Q.- I understand you were acting as agent for whom ?
A. For the owners of her.
Q. That is your brother ?
A. Yes,” sir.
Q. That brother who was interested with you in the same business ?
A. No, sir.
Q. What brother was that Í
A. My brother in New York.
Q. Wha,t were the initials of the brother in New York?
A. John J. Sullivan.
Q. Was there not another brother also in Pensacola with you ?
A. Yes, sir; there was.
Q. Was he interested in this steamer ?
A. Yes, sir; he was interested to the amount of one-eighth of her.
Q. Were you agent for him, too ?
A. Yes, sir; agent for him, too.”

It is shown that besides being engaged in the lumber business the defendant was, also, the owner and president of the First National Bank of Pensacola. The cashier of this bank, W. A. S. Wheeler, testified on this point as follows (quoting):

“ Q. Mr. Wheeler, will you look at the date of the enrollment of the vessel, and first the date of the bill of sale; what is the date of that 9
A. The 28th of May, 1883.
Q. Now turn over and see when it was recorded in the customhouse in New Orleans 9
A. November 4th.
Q. Of what year 9
A. 1884.
Q. Why was it that it was recorded as late 9
A. Because we did not know that it was necessary to have it recorded. I had it recorded myself in the customhouse.
Q. What was your reason for recording it 9 A. We did not know that it was necessary before.
Q. Why was it necessary to have it recorded 9
A. So as to protect the insurance, and there was a heavy fine for not enrolling it.
Q. Between these two dates, the date of recording and the date of the original bill of sale, in-whom was the ownership of the vessel?
A. In John J. Sullivan and D. F. Sullivan.
Q. Were there any other owners in it 9
A. No, sir.

Again we find in the record the testimony of McConnell, the clerk and book-keeper of D. F. & Martin H. Sullivan in (their lumber business, to the following effect:

Q. Do you know who the owners of the Kate Carroll were 9
A. Ido, sir.
Q. Who were they 9
A. John J. Sullivan and D. F. Sullivan.
Q. Do you know in what proportion 9
A. John J. Sullivan owned seven-eighths and D. F. Sullivan one-eighth.
Q. I recollect your being in court when Mr. W. A. S. Wheeler testified 9
A. Yes, sir; I was called as a witness and I was present.
Q. You heard what he said?
A. Yes, sir; I heard pretty much all. I may have been absent for a few minutes during the giving of his testimony.
Q. Are you able to say who the owners of tbe Carroll were during-the time covered by the account of the plaintiff in this action ?
A. Well, I am able to say, that from the time she was built up to the time she was sold, which covers the period during which*the business was done, in this interim she was owned just as I stated just now, seven-eighths by John J. Sullivan and one-eighth by D. F. Sullivan.

There was a rigid cross-examination of these several witnesses, and some of the facts elicited thereby might be construed as lessening to some extent the weight of their testimony, but the full force of their answers above reported cannot be considered as seriously impaired.

As corroborative of the alleged fact that Martin H. Sullivan was not the owner of the vessel when the indebtedness charged accrued, proof was made that, during the.time covered by the indebtedness, the steamer was chartered and run by another person, one John B. Guttman.

Objection was made that such proof was not admissible under the general issue, but that a charter party should have been specially pleaded.

Under the authority of the case of the Pontchartrain R. R. Co. vs. Hearne, 2 Ann. 129, where the precise point was adjudicated, we think the testimony was properly admitted.

This charter party was made by parol, and the contract was between D. F. Sullivan, one of the owners, and John B. Gufctman, and terminable at the will of the owners.

There is no dispute between the parties that a valid charter party maybe made by parol. 1 Parsons Maritime Law, 274; 16 Mass. R. 339; 5th Pickering, 422; 6th Ib. 338.

A charter party is of two kinds. One is where the owner agrees to carry a cargo which the charterer agrees to provide.

The second is where there is an entire surrender by the owner of the vessel to the charterer who hires the vessel as one hires a house, takes her empty and provides the officers and crew provisions; and, in short, the entire outfit.

In such a contract the charterer is substituted in the place of the owner, and becomes the owner for the voyage, or owner pro hac vice, and as such owner is liable for materials, supplies, etc. The Spartan, Ware’s Reports, 149, 156; Abbott on Shipping; 6th American Edition of Perkins; Marg. 242; 3d Kent’s Comm.; 12th Ed. of Holmes; Marg. page 204; Lidgett vs. Williams, 4 Hare 456, 462; 2 Boulay Paty, 268, 269; Parsons on Maritime Law, 274, 275; Taggard et al. vs. Loring, 16 Mass. R. 339; Perry vs. Osborne, 5th Pickering’s R. 422; Cutler vs. Winser, 6th Pickering’s R. 338; Vinal vs. Burrill, 16th Pickering’s R. 406; Muggridge vs. Evelith, 9th Metcalf’s R. 236; Pontchartrain R. R. Co. vs. Hearne, 2d Ann. 131.

This charter party is established by the same witnesses to whom we have referred.

Their entire testimony has been severely criticised and is charged to he unreliable, hut it was -not sought to be impeached during the trial by assailing directly their veracity; and unless we reject their testimony as wholly unworthy of belief and place the stigma of perjury upon it, and at the same time pronounce the act of sale of the vessel and its registry as fictitious and simulated, we eaunot escape the conclusion that the defendant was not the owner of the “Kate Carroll ” during the time covered by the account sued on.

It is denied that the plaintiff ever had notice of the charter of the vessel, and one of the plaintiffs testifies to this effect. He is, however, opposed by the testimony of at least two'witnesses ; and besides, it is shown to our satisfaction that the money for the charter of the vessel was paid by Guttman, the charterer, through the plaintiffs — a fact that certainly brings home to them a knowledge of the fact.

There are several bills of exceptions in the record besides the one noticed above touching the admissibility of evidence allowed; we have examined them all and do not pass upon them separately, because our determination of them one way or the other could not alter our conclusion announced touching the pivotal fact of the controversy.

We have made a close study of the evidence in this case, and this examination has been the more thorough, perhaps, out of a disinclination we always feel of disturbing the conclusion reached by the lower court upon an issue involving mainly a question of fact, hut this examination has served to make ns realize more fully the great preponderance of evidence in favor of the defendant and produced the conviction that he is not legally liable for the debt sued for.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the plaintiffs’ demand be rejected at their costs in both courts.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,088.
    The State of Louisiana vs. Louis Allen.
    To a charge of shooting with intent to commit murder, a verdict returning guilty of an assault with a dangerous weapon, is not responsive.

      APPEAL from the Nineteenth District Court, Parish of Terrebonne. Allen, J.

      M. J. Cunnmgham, Attorney General, and W. K. Wilson, District Attorney, for the State, Appellee.

      Chas. JBelden for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

On an indictment for “shooting with intent to 'commit murder,” the jury returned a verdict of “ Guilty of an assault with a dangerous weapon.”

The accused moved an arrest of judgment, on the ground that the ■ verdict is not responsive to the charge and formed no offense known to the law.

Prom the judgment overruling the motion, and from the sentence passed upon him, the accused prosecutes this appeal.

The charge is evidently made under Sec. 791 of the R. S. —, while the verdict is for an offense denounced by Sec. 793, which provides against assaults upon another, with a dangerous weapon.

The facts charged were shooting with murderous intent'; the finding is assaulting with a dangerous weapon.

If, on the charge as made, the jury could have returned the verdict they did, why should the Legislature have enacted Sec. 793 of the R. S.?

It is impossible to conceive how, under the charge of shooting with felonious intent, a verdict can be accepted as responsive which returns that no shooting, but that a mere assault has occurred, and finds no intent.

The offense for which the verdict convicts the accused is a distinct, independent one from that charged. It could not have been included in a charge of shooting with intent to commit murder, as from it the offense set forth in the indictment could not be traced back.

The assault must have preceded the shooting, because there can be no shooting unless an assault has previously been made, and there may be an assault without any shooting.

If it were claimed that assaulting with a dangerous weapon could be covered by a charge of shooting with intent to commit murder, the inclusion would come within the rule that two separate offenses cannot be embraced in the same count without vitiating the indictment. State vs. Murdock, 35 Ann. 729.

In the case of Hendricks, this Court held that, under a charge of shooting with intent to commit murder, under Sec. 791 R. S., a verdict of guilty of shooting with intent to kill was not only unwarranted because finding for no offense known to the law, but also because it was not responsive to the charge. The case was remanded. 38 Ann. 682.

In the present instance we therefore find that the verdict returned is not responsive, and that the defendant is entitled to the new trial which he asks.

It is therefore ordered and decreed that the verdict herein be quashed and the judgment and sentence upon it be annulled and reversed, and that this case be remanded to the lower court for a new trial and further proceedings according to law.


author: Poché, J.

text:
    No. 9341.
    President and Board of Church Wardens of the Congregation of the Roman Catholic Church of the Parish of Ascension vs. Right Rev. N. J. Perché, Bishop, et al.
    Acquiescence by appellant in the judgment appealed from defeats tbe right of appeal.
    Thus, in a contest between tbe bishop of a diocese and a board of church wardens, involving the right claimed by the latter, denied by the former, of administering the temporal affairs of a church, in which the legal existence of the corporation represented by the board, is the main issue in the cause, acts of the bishop by which he recognizes the authority of such board and deals with them as such touching the administration of the church, after rendition of the judgment complained of, will be fatal to his right of appeal.
    A PPEAL from the Twenty-second District Court, Parish of ajl Ascension. Di iff el, J.

      B. If. Sims and B. If. Pugh for Plaintiffs and Appellees :
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

In this suit, which involves the right contested between plaintiffs aDd defendants of administering the temporal affairs of the Catholic Church of the parish of Ascension, plaintiffs and appellees moved to dismiss the appeal on the ground that appellants had acquiesced in the judgment appealed from.

When this court came to consider that motion last year it was found that the facts on which it was grounded were not of record, and hence it was concluded to remand the matter to the District Court for the purpose of taking testimony on the question of the alleged acquiescence of appellants in the judgment complained of. 39 Ann. p. 223.

The record of that evidence is now before us, and on exa nination, we find therein full proof of the facts alleged in the motion of appellees.

Defendants’ contention had put at issue the very existence of plaintiffs as a corporation, in consequence of which the authorities of the diocese had removed the curate in charge of the church, which thus had been stripped of its spiritual functions or direction, at least during the pendency of the suit, by means of which the legal right of possession of the church and of its appurtenances was to be determined.

Now the record which contains the evidence taken on the motion to dismiss, shows that since the rendition of the judgment appealed from, the archbishop of the diocese entered into a written agreement with plaiü tiffs as church wardens, looking to a united administration of the temporal affairs of the church.

Under and by virtue of that agreement a priest, appointed by the bishop as curate of the church, has since been officiating as rector, receiving his instructions in temporal affairs from the church wardens, to whom he has accounted for all revenues collected by him, and from whom he has received his salary and that of his vicar assistant, and with whom he has continuously participated in all necessary acts of administration, reporting to them, and for their consideration and approval, all such acts which, in their nature, had to be attended to and performed exclusively by himself.

It also appears that the bishop himself has received from plaintiffs his share accruing from the revenues of the church, as specified in the written agreement herein above referred to. These and other similar acts.involve the appellants in an unqualified recognition of the legal authority of plaintiffs in all matters connected with the administration of the temporal affairs of the chuich, the absolute denial of which authority was the pivotal issue covered by the judgment appealed from ; and they therefore sustain appellees’ allegation of acquiescence. Stinson vs. O’Neal, 32 Ann. 947.

Hence, the present appeal cannot be sustained. It is therefore ordered that this appeal be dismissed at appellants’ costs.


author: Todd, J.

text:
    No. 10,098.
    The State ex rel H. Moss & Co. vs. S. Chas. Young, Judge of the Ninth District Court.
    Where numerous suits have been instituted against a common debtor by a number of creditors, accompanied in some crises by attachments and in others by sequestrations, and the property seized under the writs has been sold by written consent of all parties, and the funds are iu the hands of the sheriff, the debtor cannot be permitted to release the seizures and take the funds in his possession upon executing his bond (one bond) wherein the agreement for the sale signed by bim it is expressly stipulated “that the proceeds of the sale shall remain in the hands of the sheriff subject to the claims, rights, liens and piivileges of the seizing creditors.” Whatever may have been his legal rights, the agreement became the law to him
    APPLICATION for Mandamus.

      O. J. & J. 8. Boatner and Alfred Goldtlnvaite for the Relators.

      H. L. Lamms for the Respondent.
   The opinion of the Court was delivered by.

Todd, J.

There were instituted against the relators, in the District Court of the parish of Tensas, nineteen attachment and ten sequestration suits. Their property was all attached and part of it sequestered. It consisted mainly of a large stock of merchandise.

By agreement between the seizing creditors and the relators (defendants in the several suits), the property was sold and the proceeds received by the sheriff, who still holds them.

At this stage of the proceedings the-relators applied to the judge of the court, Hon. S. Charles Young, for leave to bond the property and have the same released to them. This application was opposed by a number of seizing creditors, and the judge refused to grant the same. Thereupon the relators applied to this Court for a mandamus to compel him to do so, and this is the proceeding before us.

The judge, in answer to the preliminary order requiring him to show cause for his refusal complained of, after reciting the number of the suits before him, the conflicting character of the claims therein prosecuted, expresses a doubt whether one bond executed by the relators would afford the proper security for all the creditors, and further points to the written agreement of the parties (including the relators) as being opposed to the right claimed by the relators to be put in possession of the property or its proceeds.

The clause in the agreement referred to, bearing on this point, is as follows:

It is further agreed that the proceeds of said sale shall remain in the hands of the sheriff, subject to the claims, rights and liens of the various alleged creditors, it being [agreed that this agreement is in no way to affect, waive or prejudice the claims, rights, liens and privileges of the various alleged seizing creditors, and that each party shall have the right to assail and contest the claims, writs, liens and privileges set up by all other parties as fully and completely as they now have and can.”

The application to bond was strenuously opposed by the seizing creditors upon the ground of this agreement. They urged that it was on the faith of the understanding that the funds werh to'remain in the hands of the sheriff that they consented to the sale of the property pendente lite.

Considering the number of suits, the conflict among the creditors as to their respective rights, and considering further that, with the funds in court, these rights of the contending creditors could not only be determined but realized and satisfied in the present proceeding so far as the funds went, but with the funds withdrawn, and a bond substituted for them, after such determination of their rights in the present proceeding they must necessarily be relegated to what might prove a protracted, uncertain and complicated litigation on the bond, it is manifest that this clause in the agreement must have been regarded by the parties — and was entitled to be so regarded — as an important and controlling feature therein.

The relators bound themselves that, when the property was soldj its proceeds should remain in the hands of the sheriff, subject to the judgment to be rendered in determining their respective rights thereto.

In view of this obligation of the relators and its materiality touching the interests of the opposing litigants, we can come to no other conclusion than that this agreement was virtually a renunciation of any right or privilege on the part of the relators to withdraw those funds from the sheriff’s custody and assume the control and disposition of them by means of the bond proposed. To do so would certainly contravene their plain, positive agreement.

Whatever the legal right of the relators was, apart from this agreement, the agreement became the law to all the parties thereto, and by its terms they must abide.

Thus concluding, we think the judge a quo was right in refusing permission to the relators to execute the bond proposed and take the funds in question into their possession and control,

It is therefore ordered that the provisional restraining order heretofore issued be set aside and annulled, and the madarnus refused at the cost of the relators.


author: Watkins, J.

text:
    No. 10,085.
    The State of Louisiana vs. Peter Demouchet.
    The right of a person accused of a crime, that is triable under act 35! of 1880, by a jury of five, to peremptorily challenge six jurors, was decided in State vs. Eveiage, 33 Ann. 120, adversely to the defendant’s pretensions, and correctly. That deoision is therefore affirmed.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Mouton, J.

      M. J. Cunningham, Attorney General, and C. H. Mouton, District Attorney, for the State, Appellee.
    -B. Simon for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The defendant was indicted for petit larceny and tried by a jury of five, under act 35 of 1880, and has appealed from a conviction, and sentenced to one year’s imprisonment at hard labor. His complaint of the proceedings is that the trial judge incorrectly disallowed his sixth challenge to a juror, on the ground that the law allowing six challenges is unconstitutional. In refusing this peremptory challenge, the judge relied on the opinion of this Court in State vs. Everage, 33 Ann. 120.

In that case the Court had under consideration the acts 35 and 36 of 1880, and carefully weighed and passed upon their validity and constitutionality, and decided that the prowso in the latter, permitting to accused persons, in such trials as this, six peremptory challenges, was unconstitutional and void, because such an object was not expressed in the title of the act, and that the former was in full force. We think that opinion is correct, and the ruling of the trial judge is approved.

Other questions are argued in the brief of defendant’s counsel which cannot be considered, for the reason that the record discloses that no bills of exception were retained by him to the rulings of the judge, at which he feels aggrieved.

Judgment affirmed.


text:
    No. 10,018.
    The State ex rel. J. W. Jacobs vs. the Judge of the Eleventh District Court, Parish of Natchitoches.

      Mandamus lies to compel a district judge to grant an injunction in limine to any purchaser whoso property is seized for the payment of tbe price of a thing sold to him, whenever suit has been instituted against him, for the recovery of the property; the more so when, from the showing made, it appears that a judgment of eviction was rendered con, tradictorily with the seizing creditor in favor of the plaintiff in revindication; that the judgment has been executed, and the debt has been partially extinguished.
    Id passing upon cases of this class the Court does not propose, in the least, to trench upon the merits of the controversy, as it acts merely on the face of the papers, and as, during the trial, facts may be established and a standpoint taken which would justify ad' verse conclusions.

      APPLICATION for Mandamus.

      Eycm á Pierson for the Relator.

      W. G. McDonald andF. F. Buelcner for the Respondent.
   On Rehearing.

The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus.

The relator complains that he has applied in vain to the district judge for an injunction to arrest the sale of certain property seized and advertised to satisfy part of the price of purchase, claimed by Yale & Bowling to be due them, and that it was the duty of the district judge to have granted Ms prayer.

He rests his demand ou the averment that suit had been brought against him by one Carter for tbe ownership of part of the property ; that on notice to them of this suit, Yale & Bowling intervened therein and that judgment was finally rendered in May, 1887, by the United' States Circuit Court for the western district of this State, in favor of the plaintiff, Carter, evicting' him, the relator, from the property claimed.

The district judge declined the injunction, on the ground that the same issues had been raised and adjudicated upon, adversely to the relator, by a judgment of his court in the same case, which was affirmed on appeal. Reference is made to the suit of Jacobs vs. Yale & Bowling. 39 Ann. 359.

There exists material differences between the first and the second injunction proceedings.

In the first case, the cause of action was apprehension of eviction, arising from the institution of the suit by Carter.

In the instant ease, the cause of action, which did not exist when the first suit was brought, is actual eviction after judgment in favor of Carter.

In the first proceedings Carter was not a party and, from the showing made in the second proceedings by the plaintiff in injunction, it appears that Yale & Bowling made themselves parties- to the suit in the federal court, by intervening therein, after notice had been'given them, by Jacobs, of its institution.

In the case on which this Court passed and in which it had been alleged that Carter liad brought before the United States Circuit Court an action to revindicate half of the property, it was held, as between Jacobs and Yale & Bowling only, that the threatened eviction of Jacobs in consequence of Carter’s ■ suit, was a ftaudalent scheme, gotten up to enable him to resist the payment of the price of the property to Yale & Bowling. This decision was rendered in March, 1887.

It now appears that the suit to which allusion was made in that decision was determined in the same month and year by the federal court.

It is therefore apparent that while the judgment of the Eleventh Judicial District Court, affirmed on appeal, was in favor of Yale & Bowling, it did not conclude Carter, who was not a party to it; and, again, that, although Carter is not bound by that decision, Yale & Bowling are concluded by the federal adjudication.

Hence it is clear that what had been previously declared to be a fraudulent scheme was not subsequently decreed to be so, and that Jacobs, in consequence of this adjudication, is entitled to protection, the more so, as what he had at first conceived to be threatened eviction has turned to be, imder his sworn averment here, an actual eviction.

If then it be true that Carter has obtained a judgment-, binding on Yale & Bowling, which recognizes him as the owner of an undivided half of the property sold by the latter to Jacobs, and that he has evicted the latter therefrom, it is clear that Yale & Bowling have no right to enforce the payment of the whole price of sale by seizure of the property which they had sold Jacobs and of part of which Carter was judicially recognized the owner, and that Jacobs, not being bound for that entire price, has a right to arrest their proceedings and seek relief.

The Code is explicit that an injunction will issue on the application of any purchaser whose property is seized for the payment of the price of a thing sold him, whenever suit has been instituted against him for the recovery of the property, and where the debt has been extinguished in some legal manner. C. P. 298 § 9, 739 § 3.

The writ of Yale & Bowling issued for the balance due on Jacobs notes, aggregating $3000, subject to a credit of $1300 and under it, the property was seized.

Jacobs does not seek to enjoin in order to obtain the nullity of the sale of the property, for he appears to be satisfied with owning an undivided half of it.

His purpose is simply to protect his half from sale for the payment of that portion of the notes which was the consideration for the purchase of the half recovered by Carter in the federal court, and which has been extinguished by the eviction mentioned. In other words, he opposes the sale of his half to pay $1500, which he says he does not owe.

The law clearly allows an injunction to suspend payment of the ■ price where danger of eviction is apprehended in consequence of a suit revindicating the property sold. A fortiori does it allow that remedy where the suit has ripened into a judgment on execution of which partial eviction has taken place and the debt haB been partially extinguished. C. P. 739 § 3.

It has accordingly been held that an injunction lies against an order of seizure for the price of land of part of which the vendee has been evicted since the sale; also where want of consideration is pleaded, or where a claim in diminution of price for deficiency in quantity of land sold is set up. 17 L. 75, Banaux vs. Cazeaux; 7 L. 65, Greenwell vs. Roberts; 14 Ann. 868, Davis vs. Millaudon; 15 Ann. 689, Walker vs. Cucullu.

Otherwise Jacobs could have no standing to champion the rights of Carter.

Whatever the views be, which we have just expressed, wé do not in the least propose to trench upon the merits of the controversy, as, during the trial, facts different from those which we assume to exist on the face of the papers, may be established, new issues may be raised, other standpoints taken, which may subvert that assumption and upturn the conclusions based upon it, howev.er authorized our course may presently be under the circumstances and this sort of a proceeding.

We are simply of the opinion that Jacobshas made a sufficient showing to entitle him to preliminary relief. R. C. C. 2557; C. P. 298 §9; 739 § 3; 36 Ann. 579; 38 Ann. 924.

The present judgment, by the formal consent of the district judge, becomes final on its rendition.

It is therefore ordered and decreed that the previous decree herein rendered be set aside and that a peremptory mandamus issue to the district judge directing him to grant the injunction in limine asked by the relator to arrest the sale of the undivided half, the title to which is undisputed, subject to the further order of his court on the merits of the cause, on plaintiff complying with legal requirements.

Watkins, J., recuses-himself.


text:
    No. 10,100.
    The State ex rel. John Schroeder vs. G. L. Vay, Mayor of the City of Baton Rouge.
    Under an ordinance of the city of Baton "Rouge the owner of a dog was ordered by the mayor of the city to produce the animal at his office that it might be killed. The dog was brought to the mayor’s office in compliance with the order, but the killing was prevented by an inj unction from a competent court. Thereupon the owner of the dog was sentenced to imprisonment in the parish jail for twenty days. Held, that the sentence was null and the action of the mayor arbitrary and oppressive.
    APPLICATION for Mandamus and Prohibition.

      Geo. H. Brauglm and Geo. W. Buelcner for the Relator.

      T. Jones Gross, City Attorney, for the Respondent.
   The opinion of the Court .was delivered by

Todd, J.

The relator, in his petition to this court, alleges substantially:

That on the 15th of December last he was arraigned before the mayor of the city of Baton Rouge, and was condemned to produce a Newfoundland dog — his property — -at the office of the mayor, to be shot to death, or, (quoting) in default thereof, to pay a fine of fifty dollars or be confined in the parish jail for twenty days, until the dog be shot.”

That he produced the dog at the mayor’s office in compliance with the order, but at the same time sued out an injunction before the district court of the parish of East Baton Rouge, restraining the killing of the dog; that the mayor, upon learning of the injunction, ordered relator to be confined in the parish jail in accordance with the sentence aforesaid.

He charges that thejjmayor in thus acting tianseended his authority and jurisdiction; that the sentence was illegal, and was neither authorized by any ordinance of the city of Baton Rouge or law of the State.

He accompanies his petition by a copy of the proceedings of the nayor’s court and of the ordinance of the city under which the mayor purported to act.

He asks for a writ of prohibition and such other and further relief as the law would afford him.

The mayor, in his answer to the application of relator, substantially admits the truth of relator’s allegations, but justifies his action in sentencing him to jail on the ground that the dog was not in fact produced to be killed, in compliance with his order, but the killing was prevented by a resort to a writ of injunction.

The record of the proceedings and copy of the ordinance produced verify fully the allegations of the relator and sustain the charge that the conduct of the mayor in the premises was arbitrary and oppressive and without the sanction of law and municipal authority.

The ordinance in question is entitled Dog Ordinance,” and merely provides for the killing of dogs running at large" on the streets, but denounces no penalty whatever against the owners of such animals or against any one for a violation of the ordinance. Nor are we pointed to any law of the State, and know of none, under which the action of this officer can obtain the least justification or its enormity be palliated.

Under the enlarged terms of the prayer of the petition, and all the proceedings before us, we feel authorized to grant full relief.

It is therefore ordered, adjudged and decreed that the sentence complained of by the relator be annulled and' set aside, and the writ of prohibition be made peremptory at the costs of the relator.


text:
    No. 10,096.
    The State of Louisiana vs. Joshua Perkins.
    The Supreme Court has no concern with the evidence adduced before the jury touching the innocence or guilt of the acoused. It deals with questions of law only, when presented in proper shape.
    A verdict may be legally rendered, received and recorded, where the accused voluntarily leaves the court room and fails to appear after the sheriff’s proclamation to come and hear the verdict about to be rendered. He cannot be permitted to take advantage of his own wrong to defeat the ends of justice.

      An accused cannot be allowed, in a motion for anew trial, to urge surprise at the reception of certain testimony during the trial, when he, at the time, sought for no relief. His omission implies a waiver of what right he may have l$ad on that score.
    The absence of a witness affords no ground for a continuance or new trial, when it appears that the testimony would be hearsay, and, if admitted, would have been merely contradictory in part, with a te'ndency to impeach the credibility of witnesses on the trial.
    APPEAL from the Fourteenth District Court, Parish of- Calcasieu* Bead, J.

      M. J. Owiminghmn, Attorney General, for the State, Appellee.

      Geo. H. Wells & Son for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from a conviction of larceny and sentence upon it.

He complains :

1. That his application for a continuance owing to the absence of a material witness was illegally overruled, and

2. That his motion for a new trial, based on several grounds, Should have been sustained.

It is useless to consider presently the bill to the refusal of the trial judge to continue the. case, as that refusal is made one of the grounds upon which the motion for a new trial rests.

Those grounds will be considered and disposed of seriatim.

They are the following :

1. That the verdict of the jury is contrary to the law and evidence.

We have repeatedly held that we have no concern with the sufficiency or insufficiency of the evidence adduced to show the guilt or innocence of the accused, and have authority to pass upon questions of law only arising in the course of the proceedings and presented in proper form for consideration.

2. That the verdict was rendered, received and recorded during the absence of the defendant from court and without his consent or request.

It appears that the accused, who was in the custody of his sureties, absented himself from the court house, and that, though he was several times called by the sheriff by proclamation at the court house door, he failed to come and hear the verdict, as required by the proclamation. The fact is that the accused has actually absconded, though he subsequently returned and was present when sentenced.

The accused cannot be permitted to take advantage of bis own wrong to defeat the course of criminal justice.

It has accordingly been well held, that a cause may proceed to verdict where the prisoner who was on bail, left the court room and went away. Bishop Cr. Prac., vol. 1, § 272.

It has again been held, that if the trial is once commenced and the prisoner, of his own wrong, leave the court, abandons his case to the management of his counsel and runs away, the proceedings will not be stayed and the verdict may be legally received. Wharton’s P. P., § 549.

3. That defendant was taken by surprise by the testimony of cer- ‘ tain named witnesses.

There is nothing to show that the accused pleaded surprise at the reception of the testimony. His omission to have done so implies a waiver of what right he may have had on that ground.

He sought for no relief; none was declined, and no bill was or could be taken.

The complaint on that score comes too late, on a motion for a new trial.

4. That if defendant could have had the benefit of the presence of his absent witness, named Ashworth, he would have established facts which would probably have changed the result of the trial.

The district judge, who heard all the testimony adduced and who. considered the lengthy affidavit of the accused, says that the evidence of that witness, if admitted, would certainly have been merely contradictory in part, with a t mdeney to impeach the credibility of witnesses heard on the trial.

A reference to that affidavit confirms that conclusion, as it is apparent that the object in view was to establish what one witness, at least, had declared, to the absent witness, a declaration which, after all, might have amounted to hearsay only, and would have been excluded.

It is somewhat strange that the affidavit on which such reliance is placed for a continuance appears to have been made the day preceding that on which the motion was calle'd, and that it refers to the absence of the witness, although made at the calling of the case.

The accused presents no case for relief.

Judgment affirmed.


author: Poohé, J.

text:
    No. 10,101.
    The State of Louisiana vs. W. B. Adams et al.
    In a criminal trial of two parties, jointly indicted for tlie same offense, the testimony of the wife of one of them is admissible for or against the other, under instructions from the trial judge to tie jury to restrict such testimony to the case of the other defendant.
    In a criminal trial of two parties, jointly indicted, where conspiracy has been proven, in the opinion of the trial judge, the declaratio* s of one of the conspirators, although made in the absence of the other, are admissible against all the defendants.
    The conduct of counsel who bring up appeals in criminal cases, and give no further attention thereto, is to be deprecated.
    APPEAL from the Fourth District Court, Parish of Winn. JBridger, J.
    ilf. J. Cunningham, Attorney General for the State, Appellee.

      H. Bernstein for Defendant and Appellant.
   The opinion of the Court was delivered by

Poohé, J.

This appeal is brought up by the defendant, Adams, who had been indicted for murder jointly with another. The latter was acquitted by the same jury, who convicted appellant of murder without capital punishment. His complaints are embodied in five bills of exception :

I.

He charges error in the ruling of the trial judge, who admitted the testimony of appellant’s wife over his objections. He invokes the legal restriction which prohibits husbands and wives from being witnesses for or against each other in criminal trials.

But the wife’s testimony was introduced by the State, not against her husband, hut against the other accused, and the judge guardedly instructed the jury to consider the testimony strictly within the restriction under which it was offered, so that the wife’s testimony should not have any hearing on her husband’s case.

Under the provisions of Act No. 29 of 1886, which allows the party accused in a criminal case to testify, one of two or more parties accused can make a witness of one of his or their co-defendants, under the restriction that the evidence of the witness should not he considered by the jury as applying to his case. And we see no objection to a similar course in order to secure the testimony of the wife of one of the accused.

We do not feel authorized to interfere with the ruling of the district judge on this point.

II.

The second bill involves the discussion of the judge’s ruling in admitting the testimony of a State witness touching a conversation between the witness and one of the defendants, not in the presence and hearing of the other. The judge justifies his course by the fact that previous evidence in the cause had proved, to his satisfaction, that a conspiracy had been formed between the two defendants then on trial to kill the deceased.

The question is thus [placed under the scope of the ruling in Ford’s case, 37 Ann. 459, by which the judge was guided, and by which he is unquestionably upheld.

III.

In his charge to the jury the judge reiterated his instructions pre-. viously given touching the restricted effect to be observed in the consideration of the testimony of the wife of one of the defendants.

Counsel for both defendants objected to the charge on the ground that it was “incompetent for the presiding judge to charge the jury as to what effect testimony given before them should have.” The objection is either frivolous or captious, or it was made in entire misapprehension of the true meaning of the charge. Its plain and justifiable object was to caution the jury within legal bounds in considering the testimony given by the wife of one of the parties on trial, and it cannot be subjected to a construction which would involve the judge in weighing or analyzing the effect of the testimony on the issue of guilt or innocence of the accused.

IY. and V.

The fourth and fifth bills have reference to the refusal of two special charges suggested by counsel for defendants. Both were refused because neither had any bearing, as principles of law, on the state of the case, as shown by the facts which had been established by the evidence heard on the trial. The contention of defendant’s counsel is now completely obsolete; it involves a point long since removed from the domain of discussion. State vs. Ford et al., 37 Ann. 464.

It again becomes our painful duty to note that in this, a capital case, counsel for the accused has thought fit to bring up an appeal, to which he has given no further attention since the date of its filing (January 4, 1888). Although our previous deprecations of such conduct appear to remain unheeded, we must reiterate our warning, in the hope that the subject may fall within the attention of the Legislative branch of the Government, and that the growing evil may there be checked or remedied. State vs. Paul, 39 Ann. 795; State vs. Williams, 37 Ann. 311.

Our examination of the record has satisfied us that appellant’s complaints are groundless.

Judgment affirmed.


text:
    No. 10,102.
    The State of Louisiana vs. Abe Venables.
    To entitle an accused {o a continuance on the ground of tlie absence of a witness, he must show due diligence to procure the testimony; and the continuance was properly refused where no subpoena issued for the witness until the ease was called for trial, although the witness resided in the town or city where the court was held.
    Motions fcr new trials are left largely to the discretion of the trial judge, and unless the record mates it apparent that his discretion has been unwisely or arbitrarily exercised, his rulings thereon will not be disturbed.
    A PPEAL from the Seventeenth District Court, Parish of East r\ Baton Rouge. Burgess, J.
    ilf. J. Cunningham, Attorney General, and L. B. Beale, District Attorney, for the State, Appellee.

      Buehner & Moore for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted “of shooting with intent to commit murder,” and appeals from a sentence of two years’ imprisonment at hard labor.

1. His first complaint is the refusal "of the judge to grant him a continuance on the ground of the absence of a material witness.

We find from the record that the witness was not subpoenaed until the cause was called for trial.

It is manifest that due diligence was not shown, and for this reason the trial judge very properly overruled the motion.

2. He complains of the refusal of the judge to grant him a new trial.

The ground of the motion was that of newly discovered evidence, supported alone by the affidavit of the accused. The overruling of the motion was not excepted to.

We find no reason to conclude that the discretion of the trial judge in refusing the motion was not wisely exercised.

Rulings on motions of this hind, which the law leaves so largely to the discretion of the judge, will not be disturbed unless it is made apparent by the record that this discretion was abused and there was an arbitrary use of judicial authority.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,115.
    The State of Louisiana vs. Columbus Evans.
    The crime of shooting with intent to murder while lying in wait, denoui ced by Sro. 790, E. S., and that of shooting with intent to murder, without the circumstance of lying in wait, denounced by Sec 793, not only belong to the same generic class, but every element of the lesser offense is necessarily included in a charge of the gre ter, which simply adds he aggravating circumstance of lymg in wait.

    Under an indictment for the major, the prisoner cou’d be convicted of the lesser crime, proof of the first necessarily involving proof of the last.
    The authorities fully sustain the righ' of the State to abandon or enter a nolle prosequi as to the aggravated circumstance enlarging the crime and to proceed under the indictment for the lesser offense alone.
    This does not alter or amend the indictment or convert it into an indictment not found by the grand jury. The minor offense was charged in the bill as found equally with the major.
    After such abandonment there was no necessity of a new service of the indictment.
    The-e was no error in permitting the original indictment to be read by the jury, with the accompaniment of the entry on the minutes showing the abandonment of the aggravating circumstance.
    The verdict is to be construed as responsive to the indictment as modified.
    APPEAL from the Tenth District Court, Parish of Red River. ffáll, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      JSgan & Pierson for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

It is important to state exactly the proceedings in the court below, which are complained of with great earnestness, ingenuity and learning by the defendant’s counsel.

Sec. 790 of the Revised Statutes provides : “ If any person tying in wait, * * * sball|shoot, stab or thrust any person with a dangerous weapon, with the intent to commit the crime of murder, he shall, on conviction thereof, be punished with death.”

The following, See. 791, declares: “ Whoever shall shoot, stab or thrust any person, with intent to commit murder, under any other circumstances tlian these mentioned in the preceding section, shall, on conviction, suffer imprisonment at hard labor,” etc.

It is obvious that the crimes denounced not only belong to the same generic class, but that every element of the lesser offense is necesarily included in a charge of the greater, which simply adds thereto the aggravating circumstance of tying in wait. It is plain that, under an indictment for the greater, the prisoner might be convicted of the lesser crime, because proof of the first would necessarily involve proof of the last. State vs. Delaney, 28 Ann.; Wharton’s Cr. L., §§ 384, 627; Bishop Cr. L., §§ 885 et seq.

In this case the bill of indictment found by the grand jury charged that the defendant did, while lying in wait, willfully, feloneously and of his malice aforethought, shoot one Sam Naley with a dangerous weapon called a shot gun, with the intent then and thereupon, the said Sam Naley, willfully, feloneously and of liis malice aforethought, to kill and murder, contrary to the form of the'statute of Louisiana in such cases made and provided, and against the peace and dignity of the same.”

Leaving out the words “while lying in wait,” the indictment is perfect for the minor offense denounced by Sec. 791, R. S.

On the 26th of J-uly, 1887, the following entry was made by the court on motion of the district attorney: “ The district atttorney formally abandons that part of the indictment which charged the defendant with lying in wait, and the trial is to be upon the charge of shooting with intent to murder, while not lying in wait. Defendant, present in open court, waives arraignment, and pleads not guilty and asks for trial by a jury,” 1 -

The entry further shows that the trial was thereupon proceeded with.

A bill of exceptions, however, shows that the defendant objected to going to trial, on the grounds substantially: 1. That the nolle proseqtd of the charge of lying in wait was in effect a nolle prosequi of the entire indictment, and entitled him to his discharge. 2. That he had not been served with a copy of any indictment except the original one found by the grand jury, and could not be tried without due service of the altered or amended one on which he was to be tried.

On the first point defendant’s counsel contends that a nolle prosequi of one part of an indictment containing but a single count is a nolle proseqid of the whole. Citing Brittain vs. State, 7 Humph. (Tenn.) 159; People vs. Porter, 4 Parker Cr. C. 524, and State vs. Byrd, 31 Ann. 419.

The case last referred to and the Tennessee case, we think, fully recognize the right of the State to strike out or abandon the words that charge the malice or felony or other mere aggravation which enlarges the crime, and to prosecute only for the inferior offense, which remains sufficiently charged in the indictment without such words of aggravation; and this is all that has been done in the instant case. We can see nothing but benefit to the defendant which could result from such abandonment; for since, without it, he could be lawfully convicted of the lesser offense, why should he complain of being relieved of all chance of conviction of the greater ¥

The case from Parker’s Reports seems to go further, but we think it is contrary to the overwhelming weight of authority as well as of reason.

Thus says Mr. Bishop :

“ While the simple form of the nolle prosequi is to the entire indictment, it may be equally well to a part of the counts, or even to a separable part of any one count; thus — on an indictment for assault with intent to murder, there may be a nolle prosequi as to the aggravated intent, and a conviction for simple assault.” Bishop C. P. § 1391, vol. 1; State vs. Merril, 44 N. H. 624; State vs. Burke, 38 Maine, 574; 21 Maine, 341; 24 Maine, 71; Aaron vs. State, 39 Ala. 75; 105 Mass. 586; 109 Mass. 349; Baker vs. State, 12 Ohio, 214; 11 Gray, 1; 20 Pick. 356 (leading case); contra: People vs. Porter, 4 Parker C. C. 524.

There is no question here of an amended indictment, or of trying a defendant upon an indictment so altered as to be no longer an indictment which wits found by a grand jury. As we began by saying, the indictment preferred by the grand jury, in charging the major offense, necessarily and unequivocally charged the lesser, as is demonstrated by the fact that when the aggravating words, “while lying wait,” are eliminated there remains a perfect indictment for the minor offense. Hence the indictment required no amendment, and the State simply elected to abandon the aggravating circumstance and to proceed on the remaining minor charge, as is undoubtedly authorized by the' authorities quoted.

For these reasons the case of ex parte Bayne, recently decided by the United States Supreme Court, does not apply.

The same considerations dispose of the other objection. Defendant was duly served with a copy of the only indictment found by the grand jury, which was the same on which he was tried and which was a sufficient basis for finding him guilty of shootiDg with intent to murder, either with or without “ lying in wait.”

Another exception was taken to the reading to the jury of the indictment as originally found. There was no other indictment to be read, and when accompanied by the reading of the entry on the minutes abandoning the element of “lying in wait,” it sufficiently informed the jury that, though the major offense had been charged, the defendant was to be tried only for the minor offense included in the same charge. The same view disposes of the objection to the verdict of the jury.

We have given careful consideration to the case and can discover no error in the proceedings prejudicial to defendant.

Judgment affirmed.


text:
    No. 9,955.
    Lehman, Abraham & Co. vs. James Godberry, Jr.—Emile Legendre, Third Opponent.
    In case a junior mortgagee, for a consideration that is satisfactory to himself, intervenes in a subsequent act of mortgage in favor of a senior mortgagee to secure plantation advances to the mortgagor, and postpones thereto the rank and priority of his own, has no ground of complaint if the proceeds of the crop, to which the advances were made, are applied to its discharge, even though the advances were not necessary plantation supplies, there being no clause in the act making such a limitation.
    Such a clause being incorporated in the proces verbal of the deliberations of a family meeting, recommending the postponement — the intervenor being an interdict — will not be considered as a restriction on the contract of mortgage in the absence of other provisions on the subject therein contained.
    The phrase “that said sum of $20,000 shall he exclusively used for the cultivation of the crop,” indicates that a duty was imposed on the mortgagor who borrowed the money, and not on the lender, who could not control its use or destination.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      White & Saunders for Plaintiffs and Appellees.

      J£. W. Huntington, James Legendre, and Lerault & Ohenei for Third Opponent and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This is a third opposition, in which Emile Legendre, a junior mortgage creditor of the defendant, James Godberry, seeks to regulate the distribution of the proceeds of the sale of the Terre Haute plantation, in satisfaction of the first mortgage of plaintiffs for the sum of $^§^58.00, and of his own for $60,000.00. His claim is that the amount of plaintiffs’ demand against Godberry is excessive and should be reduced to $15,400.58, and that when a sufficient amount of the proceeds of sale of the mortgaged property has been applied to extinguish it, there will remain a surplus of $12,000 to be applied to Godberry’s indebtedness to him.

This controversy arises on the following state of facts, viz.: On the 22d of December, 1883, the defendant consented a mortgage on his Terre Haute plantation iu the parish of St. John the Baptist, in favor of Edward. P. Stockmeyer & Co., to secure his six notes of $30,000 each, with interest, etc. On the 23d of January, 1884, he consented a mortgage in favor of plaintiffs, as his cotton factors and commission merchants, to secure liis four notes, aggregating $42,000, in which E. P. Stockmeyer & Co. intervened and granted them (Lehman, Abraham & Co.) priority in rank. This indebtedness to plaintiffs was subsequently reduced to the amount now claimed by them, by the application thereto of the proceeds of the crop of 1884.

On the 15th of November, 1884, E. P. Stockmeyer was interdicted, and Carl Stockmeyer appointed his curator. On these moneys, it seems the defendant had operated his plantation prior to the beginning of 1885, though unsuccessfully, and by which accumulated indebtedness he was embarrassed. In this position of affairs plaintiffs were unwilling to make him any further advances, and at first, declined to make them, and suggested that he look for another merchant who would take up the debt due them and advance him the amonnt he required to carry ou his plantation for the jmar 1885. He made the effort and failed and returned to the plaintiffs and renewed his entreaties for assistance. After some deliberation they consented to give it on the condition that he should obtain the postponement of r.he Stockmeyer mortgage to one he should grant in their favor, securing said advances for 1885. To accomplish this object it was necessary that a family meeting should be convened, on behalf of the interdict, to recommend said postponement.

Thereupon the curator presented to the court a petition for the convocation of a family meeting, in which the following representations are made, viz. :

That said Lehman, Abraham & Co. are on the point and have threatened to foreclose their first mortgage against said plantation; that at the present juncture and critical condition of the money market your petitioner is of opinion and aveis that a forced sale of said property at the present moment, under said first mortgage, would seriously and materially impair the interest and injure this s^ccmd mortgage claim of said interdict; that the said Lehman, Abraham & Co. are willing to forbear from foreclosing their first mortgage in consideration of their obtaining a priority of mortgage on said Terre Haute Plantation, to secure the future advances which they proposed to make to James W. G-odberry during the year 1885, to carry on and cultivate said plantation, which advances up to October, 1885, will probably amount to $20,000, and on the condition that a lien and privilege will be granted said Lehman, Abraham & Co. on the whole crop and proceeds thereof, to secure the advance which shall be made before and during the grinding, to be to such an amount and such an extent as may be necessary to take off and gather che crops, and as may be consented io by Lehman, Abraham & Co.; to which mortgage of $20,000 for advances made before grinding, the mortgage in favor of Edward Stockmeyer shall be subordinated in rank, and on condition that no means will be taken to foreclose during the present year the mortgage on behalf of said interdict; and on the further condition that the crops as received shall be first imputed to any advance made chiring its shipment and the mortgage to secure any ultimate balance up to $20,000 which may exist after imputation of the crops to the advances ; and the curator of the interdict to be forced to intervene in and sign the act with the above and foregoing stipulations. (The Italics are ours.)
That the object in view of all parties is to promote the interest of all concerned by enabling said Godberry to make a future crop on said plantation, which will, in all probability, enable him to reimburse not only said advances, but to extinguish the first mortgage of $23,000, above recited, to Lehman, Abraham & Co., and thus enabling the second mortgage of the interdict to become first in rank and priority.”

This recital was adopted by the family meeting, and incorporated into the proces verbal of their deliberations, and thereafter they made the following declarations and recommendations, viz.:

And the said members, after mature deliberation, and consultation on the subject matter of said petition, which is hereinafter expressed, unanimously declared that, considering the facts and allegations contained in said petition, and the reasons' therein given, which they adopt as their own, it is the interest of the interdict that the mortgage for $20,000 be granted by James W. Godberry, on said Terre Haute plantation, to secure Lehman, Abraham & Co. for the future advances which they propose to make to James W. Godberry, during 1885, to carry on and cultivate said plantation, and which advances, up to October 1, 1885, will probably amount to $20,000.
That a lien and privilege be granted said Lehman, Abraham & Co. on the whole crop and the proceeds thereof, to secure the advances that shall be made before and during the grinding season (which shall be considered as beginning from October 1,1885), the latter, l.e., those made during the grinding season to be to such an amount and such an extent as may be necessary to. take off and gather the crops, and as may be consented to by Lehman, Abraham & Co.
To which said mortgage of $20,000, for advances made before grinding, the mortgage granted in favor of Edward F. Stockmeyer, on the 23d December, 1883, before Zenon Miller, recorder of the parish of St. John the Baptist, shall be subordinated in rank.
“ That the said sum of $20,000 shall be exclusively used for the cultivation of the crop of 1885 on said Terre Haute plantation. That Lehman, Abraham & Co. shall not foreclose their mortgage against James W. Godberry, passed before N. B. Trist, notary, in January, 1884, during this present year. That no means shall be taken to foreclose, during the present year, the said mortgage on behalf of said interdict. That the crop, as received, shall be first imputed to any advance made during its shipment. That the mortgage shall secure any ultimate balance, up to $20,000, which may exist after imputation of the crop to the advances. That the curator of the interdict is authorized to intervene in and sign act with the above and foregoing stipulations.”

The proceedings of the family meeting were duly approved and homologated, and the act of mortgage executed, conformably thereto. The curator of the interdict intervened and consented to the stipulated postponement.

Under this contract plaintiffs made advances to the defendant, on open account, prior to the 1st of October, 1885, to the amount of $16, 424.44; and the same were subsequently increased, during the season, to $54,800.

In June, 1885, plaintiffs sued to judgment their account of 1884, which was secured by their mortgage of that year, and the mortgaged property was sent to sale under it, and that of Stockmeyer; but an insufficient sum was realized to satisfy both demands.

During the pendency of these proceedings the intervenor acquired the Stockmeyer mortgaged notes, with full subrogation to the rights of the interdict.

From the proceeds of the 1885 crop there was enough realized to pay the whole of plaintiffs’ advances, and leave a surplus of $790, which was withdrawn by the defendant in January, 1886.

Intervenor’s theory and contention is that plaintiffs advanced money to the defendant for purposes and objects foreign to, and in no manner connected with, the cultivation of the crop of 1885, and illegally and unjustly charged same to the proceeds thereof, to his injury and detriment ; and that the sum thus advanced and charged exceeds $8,000, which should have been applied to their 1884 account and mortgage ; and that, in this manner, Ms mortgage would have been promoted, jiro tanto, in pursuance of the tenor and spirit of the recommendations of the family meeting and the expectation of the parties.

He insists that the advances to be made under the act of mortgage were to have been exclusively used for the purpose of cultivating the defendant’s Terre Haute plantation; that the plaintiffs were specially charged with the duty of seeing that the money they advanced was thus applied; and that, to their knowledge, said sum of $8,000 was not so applied, and, for that reason, their distributive share of the proceeds of sale should be reduced accordingly.

The evidence shows it to have been the purpose and expectation of the parties that the $20,000 was to be the limit for the advances plaintiffs were to make, during the cultivation of defendant’s crop, and antecedent to the commencement of the rolling season, the date of which was indicated as the 1st of October, 1885. And that from that date until the crop was marketed the amount was not limited. In addition to the security of mortgage the defendant consented a lien, and right of pledge in favor of plaintiffs, on all his 1885 crop, to secure the payment of the whole debt for advances; and there is a special clause in the mortgage which provides that same shall secure any ultimate balance up to $20,000, which may. exist after the imputation of the “ crop to advances ” This stipulation was intended to secure by the mortgage any deficit there might be in the crop pledged.

Undeniably it was the purpose and expectation of the family meeting that defendant should negotiate a loan from plaintiffs of $20,000, to be exclusively used in the cultivation of his crop prior to the 1st of October, 1885; and that, subsequent to that date, defendant was to obtain additional advances — unlimited in amount — on the faith of his pledge of the crop.

The question is, at whose request and for whose benefit was this arrangement consummated 1

Most certainly, that of Godbeny and Stoekmeyer ; and why ¶ What was the position of the parties when the negotiations were initiated in the spring of 18851 The plaintiffs held a first mortgage on Terre Haute plantation for $23,000, and were disinclined to permit defendant to increase his indebtedness to them. He owed the Stoekmeyer mortgage of $60,000, and could not raise the means to cultivate his plantation. Stoekmeyer, curator, was quite apprehensive that the place would not be cultivated, and that plaintiff would enforce their mortgage, then past due, and his security be thereby impaired, if not sacrificed.

He yielded a reluctant consent to the further postponement of his mortgage to a new one in favor of the plaintiff, securing future advances to the defendant, in the hope that a surplus large enough would be yielded by the venture, when applied to their first mortgage, to satisfy it, and his own would be advanced to the first in rank.

The negotiations were begun and perfected by and between Stoekmeyer, curator, and Godberry, plaintiffs merely stipulating the terms and conditions.

When the notes and mortgage were executed, and the rank of the Stockmeyer mortgage postponed thereto, the plaintiffs discounted the defendant’s notes and placed the proceeds to his credit. Beyond this they did nothing other than disburse them on his orders. The proceedings of the family meeting formed no patt of the act of mortgage. Their only effect was to authorize the curator of the interdict to postpone the rank of his mortgage. Plaintiffs’ contract and obligations are to be found in the act of mortgage exclusively. When they paid money out of the fund to his credit, they had and -could exercise no further control over same.

They were powerless to control its «se or destination.

The covenant contained in the proces verbal of the family meeting’s proceedings that the money should be “ exclusively used in the cultivation of the crop,” was, necessarily, one between defendant and intervenor, inasmuch as the former was the sole recipient and beneficiary, and he was left free to draw at will. lie was the only one entitled to use this fund standing to his credit with the plaintiffs. He bad the exclusive charge of his Terre Haute plantation, and the cultivation thereof. Plaintiffs were, in no sense, the defendant’s or intervenor’s agents in the matter. The relations between the plaintiffs and defendant were those of lender and borrower, quoad the discount of the $20,000 j but, in. regard to the advances plaintiffs were to make, subsequent to the 1st of October, 1885, their relations were those of factor and customer. The situation would be quite different if this were a controversy between plaintiffs and intervenor as to which is entitled to preference on the proceeds of the crop of 1885, by reason of their conflicting privileges thereon. But the intervenor has no lien, or privilege on them, and claims none. He simply contends that plaintiffs had none, and illegally charged to them the moneys they improperly advanced defendant, and to which he would have been entitled.

He insists that plaintiffs should have desisted from making the advances complained of, and retained their value in money for .his account.

But, under the contract, was it in plaintiffs’ power to have retained any part of the fund resulting from the discount of the defendant’s notes, or the proceeds of his crop 7 If either or both were free from the mortgage and pledge of plaintiffs, were they not subject to the absolute control and destination of the defendant, quite as much as tlie balance of $790 he drew in January, 1886 7 They were in no way subject to the Stockmeyer mortgage. There was no imputation of payment made in the act of mortgage, or proceedings of the family meeting.

There was nothing to have hindered defendant from imputing to plaintiffs’ account, a part, or the whole of any such sum as they might have thus retained. It would have been out of the intervenov’s power to have subjected such surplus to their demands, except by garnishment or seizure.

The defendant having drawn the money from plaintiffs, and closed his account with them by receipting for the balance of $790 that was to his credit on the transactions of the year, imputed same to his 1885' indebtedness to them, and placed it beyond the control of the intcrvenor. If G-odberry violated any moral, or legal obligation in so doing, the intervenor must look to him for the reparation of the loss he has sustained and not to the plaintiffs.

There is nothing in the act of mortgage which imposed on plaintiffs the duty to see that the money advanced was “ exclusively used for the-cultivation” of Terre Haute plantation; and nothing which prevented the defendant from paying them out of the proceeds of his crop.

Plaintiffs are demanding nothing under the contract of 1885. It sub-served the purpose of postponing sale of the plantation and enabled the defendant to make the experiment of another crop. The intervehor’s expectations weie not fulfilled, the defendant’s crop being insufficient to discharge, in any part, plaintiffs’ mortgage of 1884.

This is the only loss he has sustained thereby.

At this time the situation of the parties is precisely the same as it was when the $20,000 mortgage was executed. The fatal injury was inflicted by thejftrsi postponement of the Stockmeyer & Co. mortgage. It was, in its maimed condition, transmitted to the interdict, and the intervenor acquired same with full knowledge.

For the loss he may have snffered, if any, he has no recourse against the plaintiffs.

Judgment affirmed.


text:
    No. 10,130.
    Pittsburg and Southern Coal Company vs. J. W. Bates, Sheriff, etc.
    Goods sent from one Slate to another are not lawful objects of taxation while they are in transit between tbe place of origin and the place of destination.
    Goods thus sent cease to be in transit and can be subjected to taxation the moment they reach their place of destination and are there offered for sale, provided they are taxed as other goods are and not by reason of their being brought into the State from another State and are not subjected to any unfavorable discrimination.
    It is immaterial whether they are unloaded or not, or were not consigned to any specially authorized agent within the State of destination. It is enough that they were in the charge and custody of one who had the power to sell, who disposed of the same in part and is ready to do so lor the rest.
    Taxation in such cases, in the absence of contrary congressional legislation, does not violate Art. 1. Sec. 8, Clause 3; Art. 1. Sec. 10, Clause 2, or Art. 4. Sec. 2, Clause 1 of the Constitution of the United States.
    A PPEAL from tbe Seventeenth District Court, Parish of East _1_~\1 Baton Rouge. Burgess, J.

      W. S. Benedict-, Bead <£• Goodále and H. O. Gage for Plaintiff and Appellant.
    ill. J. Cunningham, Attorney (General, and L. I). Beale, District Attorney, for Defendant and Appellee :
    1. The tax is levied under the provisions of Act 'No.. 98 of the Legislature of 1886, The coal on which the tax is imposed was brought from the State of Pennsylvania. The tax is a uniform one of six mills on the assessed value of all property within the'State, whether owned by tbe citizens of this or of other States, or aliens, regardless where the properly was produced.
    2. “ Coal brought from Pennsylvania to New Orleans for sale can legally be taxed by the State of Louisiana, and the fax thus levied upon it is not obnoxious to any of the three constitutional principles invoked in this case, viz :
    “1st. That the citizens of each State shallbe entitled to all the immunities and privileges of citizens of fcho sovtial States.
    “2d. That Congress shall have power to regulate commerce with foreign powers and among tlie several States.
    “3d, That no State shall levy any imposts or duties on imports or exports.” 33 Ann. #43 j 104 U. S. 622.
    3. The constitutional guarantee that tlie citizens of each State shall be entitled to all the l>rivileges and immunities of the citizens of the several States simply prohibits any injurious discrimination against the products of other States or the rights of their citizens. 8th Wallace, 140 and 152. The tax imposed bears alike upon all tlie pro’ erty within this State, no matter who may be the owner or where it is produced, and does not discriminate against the products of other States, or the property of citizens of other .States.
    4. The property taxed is not in transit, but is on consignment for sale in Louisiana, and mingled with the mass of the property of the State, and taxable as all other property.
    5. The terms exports and imports in the constitutional provision invoked have reference to goods brought from or carried to foreign countries alone, and not to goods carried from one State to another. 33 Ann. 843; 114 IT. S. 622.
    b. The taxation in queation-does not in any way infringe upon the constitutional provision relating to tbe regulation of commerce. “A tax on property that may be the subject of commerce under congressional regulations, is not a tax on commerce. Neither is a tax on property which has been the subject of such commerce, where it is taxed only as pioperty, and in common with property within the ¡state..’ 33 Ann. 845, and authorities
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff company appeals from a judgment ■dissolving an injunction obtained by it, prohibiting tlie defendant as ex officio State tax collector from selling a quantity of coal lying in boats at a distance of a few miles from Baton Rouge, in the Mississippi river, to pay taxes alleged to be due the State thereon.

The contention is, that the very law under which the sheriff and tax collector presumes to act exempts the coal from taxation, as property in transit for transportation and not on consignment for sale. Act 98 of 1886, p. 133.

It is urged at the same time that any tax on the coal which is in transit would violate the Constitution of the United States in several particulars, and reference is made to Art. 3, See. 8, Clause 3 ; to same article, See. 10, Clause 2, and to Art. 4, Sec. 2, Clause 1, and Art. 1, Sec. 9, Clause 5, of that Constitution.

Unnecessary pains have been taken to establish the elementary proposition that goods in transit from one State to another cannot be lawful objects of taxation during their passage or transportation in the State or through the States lying between that of the origin and that of the destination of the goods.

This indisputable doctrine was formally applied by this Court in a kindred case, Brown vs. Houston, tax collector, 33 Ann. 843, and •further recognized in the recent case of Simmons Hardware Company vs. McGuire, sheriff and tax collector, 39 Ann. 848.

The defenses urged in the present case, as far as the law governing it is concerned, were offered and considered Jin the Brown-Honston suit, which was carried by writ of error to the United States Supreme Court.

After an exhaustive examination of the matters involved, that Court-, in an elaborate, considerate andjivell reasoned opinion, held those defenses untenable and affirmed the judgment complained of.

The Court found and declared, that coal mined in Pennsylvania and sent by water to New Orleans, to be sold in topen market there, for account of the owners in Pennsylvania, becomes intermingled on arrival there (New Orleans) with the general property in the State of Louisiana, and is subject to taxation under the general laws of that State; although, it may be, after arrival, sold from the vessel on which the transportation was made and without being landed and forth e purpose of being taken out of the country, on a vessel bound to a foreign port.

In a subsequent case, alluding to this ruling, the same Court,, through the same learned organ, held that such goods having arrived at their place of destination may be taxed in the State to which they are carried, if taxed in the same manner as other goods and not by reason of tlieir being brought into the State from another State, nor subjected to any unfavorable discrimination. Coe vs. Errol, 106 U. S. 527.

A review of the constitutional articles invoked aud of the whole jurisprudence on the subject and mature consideration of the recent rulings just mentioned, torce upon the mind the irresistible conclusion that by “ goods in transit ” protected from all State, and municipal taxation, is meant goods moving from one State to another, although delayed in transportion, and that such goods become lawful objects of' such taxation the moment they reach their destination and are there kept ready and offered for sale at any point within the place of' destination.

Such, indeed, is the formal announcemenFof the Supreme Court of the United States in the Brown-IIouston case, in which the following language occurs:

It cannot be seriously contended, at least in the absence of any congressional legislation to the contrary, that all goods which are the product of oilier States are to be free from taxation in the State to which they may be carried for use, or sale.” Page 633.

Looking now into the facts of this case, it appeals that the coal in question was sent down the Mississippi river to supply the Louisiana trade; that it reached its destination and was there offered for sale,, and sold in part.

The facts, if true, that the coal was and is kept on board the fiats which carried it, was not unloaded, and not consigned at this or that, point to any specially authorized agent, are immaterial. It is enough, that it was in the charge and custody of one or more persons, who had the power to sell it, and who have disposed of it in part and are ready to do so further.

Judgment affirmed.


text:
    No. 10,119.
    Amelie Landry et al. vs. Joseph and Christopher Landry et als.
    In an action hy forced heirs to annul a sale by their ancestor to one of their eo-lieirs of an immovable for a stipulated price for cash, parol evidence is admissible to show that the real consideration of the conveyance was the obligation undertaken by the heir to support the aged ancestor and his wife during their natural lives. Such an obligation is in law a sufficient consideration for the conveyance.
    •Such a contract is really a donation inter vivos with an onerous condition, and such a donation can never be reduced below the expenses incurred by the donee to perform the charges.

      A PPEAL from the Twenty-third District Court, Parish of Iberville. AY Talbot, J.

      O. P. Moore and Alex. Robert for Plaintiffs and Appellants:
    Heirs may contest- tlie simulated sale of the ancestor. C. C. 2444.
    Heirs in case of simulation are third parties. Aots 1884, p. 12 ; 4 Ann. 500; 11 Ann. 227.
    In simulation plaintiif need only show that the title is a mask, and he interested in removing it. 11 Ann. 168.
    Burden of proof is on he who claims under the deed. 12 R. 95.'
    Every act is full of proof of itself. C. C. 2236, 2276; 7 N. S. 202; 8 M. 206 ; 23 Ann. 589.
    Parties cannot question their own acts. 4M199; 4 R. 290; 5 R. 200 ; 2 Ann. 481; 3 Ann. 280; 11 R. 275.
    Parol evidence not admissible against written instrumentvS, except to show want of consent through fraud, error or violence. 11 R. 275.
    •Conditions of the act cannot be altered by parol. 2 La. 446.
    Simulation, being a nullity, cannot be ratified. 4 R. 204: 8 Ann. 432; 15 Ann. 572; 39 Ann. 102.
    Ratification cannot effect the rights of third parties. C. C. 2272; 11 Ann. 98.
    Prescription cannotbe founded upon a nullity. 4 R. 20J : 8 Anu. 432 ; 15 Ann. 572 ; 39 Ann. 102.
    Good faith necessary to support prescription. C. ('. 3478, 3452; 31 Ann. 653.
    Donor cannot divest himself of all his property. O. C. 1497 ; 11 R. 302.
    Possessorin bad faithmust pay rent. 33 Ann. 1174 and cases there cited.

      Samuel Matthews for Defendants and Appellees.
   The oninion of the Court was delivered by

Poché, J.

The purpose of this suit is to annul a sale of an immovable made by Matlmrin Landry, plaintiff’s grandfather, to his sons, the defendants herein, in April, 1867.

The conveyance is assailed as a simulation, in which no price was paid, and the action is mainly predicated on the provisions of Article .'2444 of the Civil Code, which reads as follows:

“ The sales of immovable property made by parents to their children may be attacked by the forced heirs, as containing a donation in •disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold at the time of the sale.”

The defense is substantially that the true consideration of the transfer was the obligation undertaken by the defendants to provide for the maintenance and support, during the balance of their lives, of their aged father and mother, who were then helpless and unable to sup-' port themselves, owning no property but the tract of land thus disposed of by them ; and that in compliance with said obligation they had supported their father for four years, and their mother for thirteen years, to the date, of the death of both, expending in the discharge of that obligation more than the amount of the price stipulated in the sale, which was the sum of three thousand five hundred dollars.

Hence they aver that if not good as a sale, said conveyance should be legally viewed and maintained as fan onerous donation inter vivosr and that as such the donatiou cannot bo reduced below the expenses which they had incurred in performing the charges imposed thereby.

That defense having prevailed in the district court, plaintiffs have appealed.

The first contention made on the trial grew out of plaintiffs’ objection to parol testimony offered by defendants to show the alleged true consideration of the disputed conveyance, and turns upon the argument that parol evidence cannot be admitted against or beyond what is contained in the acts. C. C. 2276.

We find no error in the ruling which admitted the proffered testimony. It finds ample support in our jurisprudence and in Art. 1900, Civil Code, which provides that:

“ If the cause expressed in the consideration should be one that does-not exist, yet the contract cannot be invalidated, if the party can show the existence of a true and sufficient consideration.”

The construction which this article has uniformly received at the hands of this Court clearly authorized the admission of parol evidence to prove that by the stipulation of a price paid cash in the sum of $3500, the parties understood what was to them equivalent thereto-, the obligation of the purchasers to support the vendor and his aged wife during their natural lives. Delabiguarde vs. Municipality, 3 Ann-130; Brown vs. Brown, 30 Ann. 966.

In the recent case of Dickson vs. Ford, Clerk, 38 Ann. 737, we took occasion to make a thorough and extended review of our jurisprudence on this subject, by which we were confirmed in our opinion of the necessity and wisdom of such a rule, and in consequence of which we were induced to make the following reflections :

“ The reason or the philosophy of'the rule which, as an exception, flows logically from the very terms of the general rule, is that parol evidence, in such cases, is admitted, not against or beyond what is con1 tained in the acts as a contradiction of the clear recital or legal meaning of the stipulations contained therein, but on the contrary, to give effect to the contract arising therefrom, or to ascertain the true intent of the parties when the same is not clearly expressed or described therein.”
As thus understood and construed, the rule is not amenable to the charge that it tends to destroy or impair the sanctity or biudiug fore of authentic acts, but on the contrary, it tends directly to enhance the validity and efficacy of such acts, by substituting light for darkness, certainty for obscurity, and truth for error.”

In that case parol testimony was admitted to show that the consideration of a mortgage purporting to be an indebtedness was really to secure the mortgagee on his signature to a bond furnished by the mortgagor.

The evidence offered by the defendants in the instant case show's that, at a fair estimate, the expenses incurred by them for the support and maintenance, for medical treatment in their last illness, and for the burial of their aged parents, exceeded by far the.sum of $3500, stipulated as the purchase price of the property in dispute. Such obligations have been held to be a true and sufficient consideration in law' for the conveyance of immovable property. 9 M. 85, Vick vs. Deshantel; 39 Ann. -, Moore et al. vs. Wartelle et als (not yet reported.)

For the purposes of the decree which we propose to render in the cause, it is perhaps immaterial to specially define the contract which is herein assailed. But as precision is always desirable in announcing judicial conclusions, we feel impelled to hold that under the evidence the true nature of the contract was an onerous donation inter vivos, and that the evidence is amply sufficient to shield it from plaintiff's attack, even if it had been assailed as a donation. Having been held to be an onerous donation it is protected under the evidence herein-above stated, by Art. 1514 C. C., which reads:

Donations, by which charges are imposed on the donee can never be reduced below the expenses which the donee has incurred to perform them.”

But in answer to defendants’ suggestion that their contract is good as a donation, plaintiffs take the position that, as their ancestor had thereby divested himself of alL his property,wTithout reserving enough for liis subsistence, the donation was null and void ab initio under the provisions of Article 1497 of the Civil Code.

But a complete answer to that contention is furnished by Article 1526 of the Code, which reads:

“ In consequence, the rules peculiar to donations inter vivos do not apply to onerous and remunerative donations, except when the value of the object given exceeds by one-lialf that of the charges or of the services.”

As already shown, the charges imposed on the donees in the case in hand exceeded the value of the object given ; hence the attack on this donation was to be characterized by the rules of law applicable to an action for the dissolution of an ordinary commentative and synallagmatic contract, and it should have been preceded by an offer at least to return to the donees the sums disbursed by them in favor of the donor and of his wife as one of the beneficiaries under the onerous donation. The precise point was presented and discussed in the case of Pugh, executor, vs. Cantey, 33 Ann. 786.

In that case the Court ruled as follows :

a Therefore, as in a suit for the rescission of a contract, in which the plaintiff must put, or offer to put, the defendant in the same position in which he was before the contract, in the case of an onerous donation, the donor or his representative, who seeks the rescission of the donation, must offer to return what he has received from the donee, as a condition precedent of the suit.”

Of course no such offer has been alleged or proven in this case, in which the contention is presented only on appeal.

As far as the record shows, it never occurred to plaintiffs to consider the conveyance as a donation until the suggestion was made by the defendants in their answer. As replications are not allowed under ■our systems of pleadings, the alleged nullity of the donation must be considered as having been put at issue by the mere allegation of its ■existence in defendants’ answer. Hence the door was open to plaintiffs for proof of any offer which the3’ might have made to defendants as a means of placing themselves legally into line for an attack on the onerous donation.

But this was not attempted, and hence the issue now tendered by plaintiffs is not in the case, and therefore it cannot be considered.

Our conclusion is that the judgment rendered by our learned brother of the district court has done full justice to the parties, and that it should not be disturbed.

Judgment affirmed.