author: Bermudez, C. J.

text:
    No. 10,219.
    Jean B. Abadie vs. Mrs. C. E. Berges.
    A document annexed to a petition as part thereof does not injoet into it a matter not included in such document and which should ho an essential averment in tho petition. Documents thus attached are designed to render more certain, to control, to amplify tho matters alleged in the petition.
    A plaintiff who sets forth no cause of action cannot insist on judicial authority to amend his pleadings hy inserting a cause of action.
    A landlord cannot he held to warranty and indemnity against the “ acts of the hwu,” in tho absence of express stipulation to that end.
    Should a tenant sustain damage in consequence of a constitutional police legislation, adopted subsequently to bis contract of lease, sucb as tho “ ¡Sunday law," which forbids tho use of tho proporty rented, to a particular use to which tho lessee implies it. in a special way and on a spocinl day, such damage is injuria sine danvno, which is not compensable.
    ¡Such legislation could have been ioreseou and does not impair rights under the contract.
    A landlord cannot be hold for deprivation of the use of tho property leased, for a particular purpose, where tho lease is silent as to tho destination, or where tho deprivation is limited, temporary, or partial, and is the consequence of valid legislation.
    APPEAL from the Civil District Court, Parish of Orleans. Tissot, J.

      Alcée J. Key for Plaintiff and Appellant.

      Jerome Meunier for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff appeals from a judgment sustaining an exception of no cause of action.

The object of the suit which is brought by a tenant, is to obtain a judicial declaration that his lease, to the premises will expire on the 31st day of December, 1389, at an annual rent of $2090, subject to a credit of $15 for every Sunday from the 1st day of January, 1837, until the expiration of the lease as renewed.

It is stipulated, by an additional clause in the lease, which is made part of tho petition, that the lessee shall have the privilege of running it, for two years more, at $2000 per annum, or $166 66 per month, payable in advance, provided he gives a notice three months previous to the expiration of the lease, occurring on the 31st of December, 1887.

The credit is claimed, because of the expiration of tho use and enjoyment of the property, since the 1st of January, 1887, when the “ Sunday law ” went into operation, in consequence of which, plaintiff has been compelled to close tho barroom which ho previously kept open on said day, on said premises — the deprivation causing an injury of $15 per day.

Tho lease contains a clause on which plaintiff relies that, should the property be destroyed by fire, or should the lessee be deprived of the use of said premises by some other unforeseen event, not due to any fault or neglect on his part, then the lessee shall be entitled to a credit for the unexpired term of the lease.

I.

The petition does not set forth that three months previous to the expiration of the original lease, on.December 31st, 1887, the plaintiff has given notice of his desire to renew it.

It was not enough that the contract secured the renewal on the giving of tlie notice. It was essential in order that the renewal should take place, that the notice be actually given at the proper time.

The mere fact of annexing the lease to the petition does not inject into that document, an averment which is not in the lease, which, if true, ought to have been specifically set forth in the petition, which was not done.

This was a fatal omission, as the court is powerless to authorize an amendment which would insert a clause of action, when none was previously averred.

II.

The lease contains no stipulation that the landlord warrants against the acts of the law, or of God; without such stipulation, no recovery can be liad, on the well recognized principio that, liability in cases in derogation of common rights, should be specially agreed upon. Troplong, Vte. No. 465-6, Vol. 1.

In the absence of such special clause of warranty, the defendant could not he held liable^ for the old maxim reads; “ Aetus legis nemini Jaeit ■injuriam.

It therefore follows, that the damage said to have been sustained, if it was occasioned, is injvria si lie da-mno, and therefore not compensable.

But if the claim were pressed further and the clause in the lease insisted upon as fully applicable, the plaintiff could still be met by the further answer, that the lease docs not stipulate the destination of the property, viz: that it was leased for the purpose of being used as a coffee-house or barroom and that the petition does not allege that the plaintiff was absolutely deprived of its enjoyment. B. C. C. 2097, 2699 ; 10 L. 20; 11 L. 178.

So that it cannot he even argued that the passing of the law, which was adopted in the legitimate exercise of the police power which can never be abdicated, which could and should have been foreseen, has impaired the contract.

The clause in the lease refers to the destruction of the property by fine and to the deprivation of tlie use of-the same by some other unforeseen event, in which case the plaintiff was to be entitled to a credit for the unexpired time of the lease.

It did not contemplate a case like the present one in which the event could have been foreseen, in which the deprivation is limited and occasional, or temporary, and. tlie credit asked is partial and not entire. See Merlin Vo. Fait du prince, Laurent Vol. 24, No. 224; Vol. 10, No. 442; Vol. 16, Nos. 323, 331.

Jndgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,320.
    Wickman & Pendleton vs. W. T. Nalty.
    A judgment dissolving an attachment is an interlocutory decree which, to be effectually ax>. pealed from, need not be signed by the judge.
    The law requires the signature only of final or definitive judgments, which puss upon the merits of a controversy and which may constitute res judicata.

    The taking of steps in the course of proceedings, conducive to a final judgment on the merits, after the dissolution of a conservatory writ, cannot bo sot up as an acquiescence in the dissolving docreo.
    An agroement, after seizure of property attached, that the sheriff shall sell summarily and retain the proceeds until final judgment, debar the defendant from insisting on a dissolution of the writ.
    APPEAL from the. Ninth District Court, Parish of Concordia. Young, J.

      Steele é Dagg for Plaintiff and Appellant:
    1. The attachment bond is sufficient if if bo identified, either by its recitals or indorsements, with the petition.
    2. If the allegations of the original petition are sworn to, and are sufficient to authorize the issuance of the writ, there is no necessity of filing a supplemental petition, nor of making another affidavit, in order to obtain an alias writ. 4 R. 194: 5 La. 298; 32 Aim. 76.
    3. Wlion property attached has been sold by the sheriff, under an agreement betwoon the parties to the suit, that the proceeds shall remain in the sheriff’s hands “until final judgment,” the defendant cannot take advantage of an. irregularity in the writ of attachment, and thereby relieve himself of the said stipulation of the agreement.
    4. There is no law in Louisiana which prescribes a form for a writ of attachment. When the sheriff is commanded to seize a sufficiency of defendant’s property to pay and satisfy plaintiff's claim, the law is complied with. O. P., Art. 239. . The writ must be construed in connection with the pleading. See 4 if. 313; 3 N. S. 7; 7 La. 406, 413 ; 14 Ann. 704 ; 15 Ann. 573 •, 24 Ann. 296 ; 35 Ann. 41.

      Luce é Lemle for Defendant and Appellee .*
    ON MOTION TO DISMISS.
    1. The judgments should have boon signed. 22 Ann. 16 ; 23 Ann. 262, 400; 28 Ann. 451; 35 Ann. 388, 505; O. P. 5“6; 15 Ann. 711; 34Ann. 203 ; 28 Ann. 826.
    2. Plaintiffs having acquiesced in judgments of lower court cannot appeal. 18 Ann. 59, 264 ; 22 Ann. 305 ; 28 Ann. 743.
    3. Thoro are two separate and distinct judgments, and only one order and one bond of appeal, which are in no way identified with either judgment. 35 Aim, 1178.

      ON MERITS.
    1. Tliore is no merit in tlie pleas of estoppel.
    Estoppel should bo specially pleaded. 33 Ann. 748 and authorities cited.
    2. An attachment bond is fatally defective if it docs not contain mention of the person, or the property against which the writ issued. 35 Ann. 725.
    3. Tho recitals of an attachment bond should show unmistakably and without the aid or noed of extraneous proof, what or whose property is to be attached. 35 Ann. 725.
    4. An insufficient description of the parties or tho suit will vitiate the bond. Drake on attachment, 5 edition, p. 131, Sec. 129.
    5. If the bond is not entitled is must be gnashed. English and American Encyclopaedia of Law, p. 906.
    6. The recitals of the bond on which the first writ of attachment was issued does not show the stylo or number of tho suit; does not describe the parties or suit in which it is filed and doos not show what or whose property is to be attached.
    7. There was no order for tho writ of attachment to issue on tho 28th of September. Tho wilt should have been preceded by the necessary affidavit showing a necessity for tho writ to issue at that time and an order of court for the writ to issue. 4 Ann. 584; C. P. Art. 243.
    8. Tho writ should state the amount for which the levy is made, according to what is sot forth in the affidavit. American and English Encyclopaedia of Law, Vol. 1, p. 910; 5 Black (Ky.) 227; Page vs. Beet, 17 Mo. 263 ; Drake on Attachment, 5th edition, p. 190. Sec. 190; 42 Barbour 413.
   On Motion to'Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The appellee contends that the appeal should be dismissed, because the judgment appealed from is unsigned and because the appellant has acquiesced in it.

I.-

This judgment is one dissolving an attachment under which defendant’s property was seized.

It appertains to the class of judgments or decrees, known as interlocutory, which are pronounced on preliminary matters, in the course of the proceedings and which do not decide on the merits. It doos not belong to the other class of judgments, technically termed definitive or final, wliich decide all the points in controversy, between the parties, which constitute res judicata and become executory, after signature. C. P. 538, 539.

The law requires that the judge shall sign all definitive or final judgments— C. P. 546; but it does not exact this formality as to interlocutory judgments.

In the case of Cary vs. Richardson, 35 Ann. 505, this court took pains to establish the poiiited differences which exist between 'interlocutory and final judgments. A reference to that decision, establishes, beyond dispute, ‘that this first ground is of no avail in the present instance.

ii.

There can bo no doubt that, if the appellants have acquiesced in the judgment appealed from, they can have no standing hero to question its correctness.

Appellee claims that, because, after the judgments dissolving the attachments had been rendered, “ plaintiffs have proceeded in the lower court, talcing defaults, forcing' an answer and pleading and trying pleas as against defendants and intervenors,” “in the ordinary manner, * * * they have aequiesced in the judgment of the lower court and abandoned the appeal.”

Surely, the persistance by legal proceedings, of plaintiffs to have their rights recognized and enforced for the payment of the sum claimed, can not serve as a foundation for a charge of acquiescence. It has not been shown and it cannot be conceived, how it can bo deduced from any of the acts stated, that the plaintiffis and appellants have admitted the correctness of the judgment, or have ratified it, so as to divest themselves of the right of having it reviewed on appeal. None of those acts could have authorized the sheriff to release the property attached. Had the plaintiffs done anything, from which it could have been inferred that they had sanctioned or acknowledged the propriety of the judgment and which, in itself, would have justified the sheriff in turning over the property seized, to the defendant, — quito a different question would have been presented. 40 Ann. 028. But such not being the case, the second ground of the motion to dismiss is likewise untenable.

The motion is denied.

On the Merits.

The defendant has set up different reasons to obtain the dissolution of the attachments issued in the case; but the plaintiffs, now, in their turn, charge that the defendant cannot be permitted to question the validity of the merits attacked, because, since the seizure was effected, the defendant, together with the intervenors or third opponents and the seizing creditors, have agreed that the property seized would be summarily sold by the sheriff and the proceeds retained by him, until final judgment, and that the defendant shall have the right to bond said property, on furnishing satisfactory security to the plaintiffs.

This agreement, voluntarily entered .into, was evidently designed to accomplish at least some of the purposes for which the attachment was obtained and issued, namely: The seizure and sale of the property of the defendant and the subjection of its proceeds to the judgment to be reudored in the ease. By entering into it, the defendant, to all appearanees, lias acquiesced in tlie process against him and abdicated all rights, if any he had, to contest its propriety.

More than this, the parties litigant may be deemed as consenting to waive, all legal proceedings, otherwise necessary to realize the goods, as perishable and costly to keep and as substituting their will thereto, leaving otherwise matters and things in statu quo.

The consent was eminently conservative, one which the parties could give and did give, and one which lias operated beneficially to those concerned in the propertjc

Clearly, after entering into such an agreement, the defendant ceased to have any interest in procuring the dissolution of the attachment, for the plain reason that on the court dissolving tlio writ, the sheriff would have had no authority to release the property, as he unquestionably had a right to detain it and dispose of it, under the consent.

The dissolution could do defendant no good aud it has done him none.

The agreement was in evidence on the trial of the rule to dissolve and effectually debarred the defendant from questioning the validity of the process against him and his property.

It is, therefore, ordered and decreed that the judgment or decree appealed from he reversed, and it is now ordered and adjudged that the rule to dissolve tlio attachment heroin he discharged, at appellee’s costs in both courts.


author: Poché, J.

text:
    No. 10,230.
    Thomas P. Leathers vs. Andrew J. Sweeney et al.
    A steamboat builder is liable in damages for defects of construction which occasion loss to tlio owner.
    The measure of damages is tlio amount of reasonable costs incurred aud paid for by the owner, to remedy tlio delects and to place tlio boat in a proper condition, as contemplated by tlio contract.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Richard J)e Gray and O. B. San sum for Plaintiff and Appellant.

      Ilowe & Prentiss and Singleton, Browne & Ohonle for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

This litigation grows out of a building contract for the construction of a stem-wlleel steamboat for plaintiff by the defendants, who are boat-builders at Wheeling', in the State of West Virginia.

The contract was entered into in March, 1885, and the boat was delivered to the owner in August of the same year.

The cause of action is in the nature of damages flowing from two alleged defects of construction, as follows:

1. That the boat was imperfectly caulked, in consequence of which she made so much water that in less than three months of service she had to be placed in a dry dock, and recaulked, at an expense to the owner of $1930 37.

2. That her wheel'was set too low, from which cause it had too deep a sweep, much to the detriment of the boat, in consequence of which it had to bo re-set so as to be raised higher in order to cure the defect, at a cost to the owner of $330 77.

Plaintiff’s demand is for the reimbursement of these two sums, and for the recovery of the additional sum of $1000, as the alleged amount of earning's which the boat would have made during' the whole time that she was necessarily kept in dock.

The defense is a general denial, followed by a demand in reconvenHion for $25,000, as damages suffered by the defendants through plaintiff’s malicious charge of defective workmanship in the execution of their contract.

Plaintiff appeals from a judgment rejecting his entire demand, and defendants join in the appeal for the purpose of enforcing their claim for damages.

The record is very voluminous and the testimony is clashing and conflicting. Hence the labor of examination has been very great and exceedingly tedious; especially as our review of the case has led us to a conclusion entirely different from the views which prevailed with our brother of the district court; and which are expressed in an elaborate and able opinion.

I.

The undisputed salient facts on the first point of contention are as follows: The boat was delivered in appafent good condition, and was accepted and paid for by plaintiff in August, 1885, at which time she was put into service in the Vicksburg trade. After making eight regular or weekly trips, and two extra trips, she was found to make so much water that it became urgent and necessary to have her docked and recaulked. On examination in the dock it was discovered that she leaked in many places, through her seams and butts, that there was an insufficient quantity of oakum in both seams and butts, and hence it was concluded that she needed recaulking. The work was accordingly done, for which some 700 pounds of oakum were used.

From that state of things it appears, and it is not disputed, that the leaks in the hull of the boat were the result of an insufficient quantity of oakum in the seams at that time.

At this point arises the vital contention between the parties on this branch of the case, and of course, it is on this particular point that the testimony is most conflicting.

Plaintiff’s theory is that the defect can, and must be attributed, solely to insufficient caulking for the lack of oakum. Defendants, on the other hand, contend that the leaky condition of the hull is the result of ill-usage, bad management, and of injuries occasioned to the boat by two “ hard landings” at which the boat struck the river bank with great and unusual force; and they urge that the caulking was done properly and efficiently, with a largo and sufficient quantity of the best “navy oakum” to be found on the market.

In the concurrent opinion of numerous experts, such as owners of dry docks in this city, steamboat captains, boat-builders, ship-carpenters and caulkers, neither of whom has any interest, direct or remote, in the determination of this suit, it appears conclusively that a Mississippi river steamboat, plying between New Orleans and Yieksburg, originally well built and properly and sufficiently caulked, should not require re-caulking before at least two years of service.

It is in proof that several of the most useful and magnificent river steamers, which once adorned the port of New Orleans, such as the “Robert E. Lee,” the “J. M. White,”- the “Éd. Richardson,” the “ Frank Pargoud,” and the “Natchez,” ran from four to six years after construction without being recaulked.

And in this case, we have to deal with a boat, built for the same trade or service, shown to have been staunchly constructed, and well finished; and the question is to account for the fact that in less than three months’ service, she leaked so badly that she had to be docked and recaulked “ all over.”

Is the reason to be found in the alleged ill-usage or in the two “ hard landings?”

To our minds the preponderance of the evidence does not sustain that theory.

The first of these alleged “hard landings” took place on her third trip, and she continued on her journey, without interruption, and without making more water than she had done before. In point of fact, only one witness in the whole record testifies on that point, or attempts to trace any damaging result to that incident; and no stress is laid on the question on appeal.

The other alleged damaging accident occurred on the down run of her ninth trip which preceded the last trip which she made before going into dock.

On that point, the preponderance of the evidence shows that the collision of the boat with the soft muddy bank of the river was severe, and that it was due to aú accident caused by the breaking of a bell-wire, in consequence of which the pilot was unable to signal the engineer to back the boat in time to check her headway. But it does not show that the boat was seriously damaged thereby, or that she sprung any dangerous leak in consequence thereof. She was leaking before, she continued to leak after the collision; her pumps to draw up and throw off the water which “she was making, had been at work before, and continued after the accident. •

Some of the witnesses, who were then employed on the boat, and have since left her service, treat this accident as a very serious and damaging affair, while others treat it very lightly.

The fact that the boat continued on her journey to this city, a distance of 250 miles, with a cargo equal to the weight of 2500 bales of cotton; that on the next day after her arrival, she left on a round trip, which she made successfully, with a heavy freight, speaks louder and more pointedly than the language of witnesses. It shows to our satisfaction that the boat had not been seriously damaged by the accident; and we conclude oh this point that neither of the two alleged hard landings afford a rational explanation of the leaky condition of the boat in consequence of which she needed to be recaulked “all over.”.

It is in proof that when docked in November, 1885, the boat showed numerous leaks, scattered over the hull generally, and not concentrated in any particular spot; and her seams and butts showed general openings, not confined within any particular parts or portions of the hull.

That condition of things shows, in the opinion of experts, that the leaks could not have been occasioned by the collisions in question, for if that had been the case, those portions of the hull only, which had received the strain or injury, would have contained open or crooked seams or butts. It is also in proof, without any attempt at contradiction by the defendants, that when docked, the boat showed no signs of hard usage; her bottom was smooth and even, and her seams were natural in appearance and straight, without a scratch, a notch or a bump. And that condition of the hull is proof, in the opinion of experts, that the boat had not been damaged by bad management or ill-usage.

And yet the proof is that she made so much water that reéaulkin g became an urgent necessity. The testimony of all the experts is to the effect that in the absence of hard itsage, or of serious, if not fatal, accidents, the oakum properly applied to the seams of a river steamboat could not, in the short space of three months, have been knocked out, or (as they term it) “ shewed out ” of the seams and butts of the boat. Hence, in the face of testimony showing that the oakum was soft and insufficient in quantity in the seams of the hull, at the time that the boat was put in dock, the experts uniformly exclaim: A sufficient quantity of oakum was not put in at the original caulking.”

It appears from the record that the defendants did not retain the immediate control over the entire construction and outfit of the boat, but that the contract to build the hull was sublet by them to another firm of boat builders, and that the contract for the caulking of the hull was given by the latter to four other parties who make caulking a specialty.

The record contains the testimony of one of the defendants who was present in court, and that of the superintendent of the sub-contractors, of the caulkers, and of their employes and laborers, taken under commissions; and they all testify with vigorous unanimity that the caulking was done in workmanlike manner and almost to perfection. The statement is made by several of these witnesses that 2000 pounds of the best “navy oakum” were actually used, and securely forced into the seams of the new boat. Assuming these various statements to be proven facts, the learned district judge holds that plaintiff’s witnesses must be mistaken in their testimony, which is to the effect that with 685 pounds of oakum the boat was recaulked all over in the “ Yallette Dry Dock,” especially as in the “ Marine Dry Dock,” two years later,, it took 400 pounds to put one thread of okum in the seams of her bottom. Hence he concludes that the record utterly fails to show that the original caulking was in any way defective or insufficient. lie concedes, however, and in that we agree with him, that the quantity of oakum used is not, after all, the absolute test of the efficiency of the caulking.

But, be that as it may, we find from that combination of circumstances, a consideration which affords to our minds a solution of the problem under discussion.

It is either true or not that 2000 pounds of oakum were used in the caulking at the defendants’ ways; and it may be true or not that with 685 pounds of oakum the work claimed by plaintiff’s witnesses was done to the boat in November, 1885. Now it is undeniable that with the caulking clone under defendants’ contract, the boat became so leaky as to be dangerous or useless in less than three months’ service; and it is in proof that with tice recaulking as done in the “ Vallette Dry Dock,” the boat was actually used, in her regular trade., for two years before she needed any recaulking, and that when she was recaulkecl she only received 400 pounds of oakum. And the record shows that during those two years, during which she made no water, she was under the control of tice same management (be it good or bad) which had run her from September to November, 1885, and to whose “ inexperience and recklessness ” defendants attribute all the calamities which had befallen the boat during her incipient career.

In the detailed bill of the “Vallette Dock” plaintiff is charged with only 685 pounds of oakum, and it is absolutely safe to conclude that a greater quantity was not used. As the caulking originally done was included in the cost price of the boat, no detailed charge is made for the oakum therein used. But the quantity used by Valletto was sufficient to restore tne boat to a perfectly dry and tight condition from the admittedly leaky and dangerous condition in which she entered the dock, on November 14,1885, and as it irroved that the caulking thus done lasted for two years’s service under the sarnie management, the conclusion is irresistible that the original caulking, which lasted oniy three months, must have been defective, either because it had been improperly done, or because a sufficient quantity of oakum was not used in the work.

For the purposes of the case it is perhaps unneccessary for us to announce which of those two conclusions was forced on our minds by the record.

But under our finding that the expenses of the recaulking were necessitated by the defective original caulking, the requirements of the law and the ends of justice ajiply the legal consequence flowing therefrom, and that is the liability of defendants under their contract to reimburse the expenditure thus incurred by plaintiff.

Hence he must recover judgment for the stun of $1930 77, which is the amount of the detailed bill of the dock company for that work, and over which there is no dispute beyond the point which wo have just discussed.

II.

Our review of the case has led us to the conclusion that plaintiff’s complaint about the wheel is also sustained by the preponderance of the evidence.

The written contract was silent as to the dimensions-and other details concerning the wheel. It was subsequently agreed between the. parties that tlie wheel was to Tbe of a diameter of 23 feet, hut a discussion arose as to the proper height of hanging the wheel so as to* regulate the sweep thereof in the water. Both parties agreed that the wheel should have a dip of three inches above the level of the bottom of the boat.

But from the plans and drawings submitted to Captain Leathers by the builders, it appeared to him- from the location of the cylinder timbers that the proper dimensions were not given to obtain the desired result; and that as located in the plan the wheel would be lower than the bottom of the boat; that therefore it would he too deep in the water, and that in consequence the wheel would drive the boat with a force not commensurate with the power of the engine, or with the general build, frame and strength of the boat. Those objections were urged here and also at the defendants’ ways on both occasions when plaintiff visited them and saw the boat in progress of construction. And owing doubtless to the subsequent illness of Captain Leathers, which lasted until the month of Soirtember following, the point of contention, as above stated, was never definitely settled between the parties.

From the testimony of J. M. Sweeney, one of the defendants in the case, it appears that he considered the point as settled, in accordance with his views, as.detailed in the plans and drawings. He refers to a steamboat constructed in a similar manner, on which he took a trip with Captain Leathers, making lull explanations on the subject, after which the latter yielded his consent to the mode suggested by tliebuilders.

But in thus concluding, Mr. Sweeney .made an honest mistake, as it appears conclusively from other parts of the record, that the idea was never finally accepted by Captain Leathers.

Being too unwell to attend to the business, ho sent a trusted agent, a skilled engineer, to Wheeling, with the special mission of superintending the machinery for the new boat. After making necessary measurements, that engineer discovered the identical discrepancy which had hitherto concerned Captain Leathers, as to the height at which the wheel should be set; and he accordingly protested against the course which defendants had adopted on the subject-matter. As his objections were not heeded; he telegraphed to Captain Leathers, conveying the facts in the premises, and submitting his opinion, whereupon a letter was written to the defendants, by the commercial agents of Leathers in this city, communicating his instructions and wishes of tlie latter on the subject. Nevertheless the wheel was set in accordance with the plans of the defendants. It is also in proof, through the testimony of Sweeney himself, that on the occasion -of Leathers’ inspection of tlie boat at the wharf in this city, the latter liad made tlie remarle that “ lie would give $500 if that wheel was higher, but he supposed it was all right.”

We therefore conclude that the evidence is nob sufficient to commit Leathers to the mode adopted by the defendants, in hanging the wheel, and that they followed their own idea in the premises, at their own risk.

Now, from the testimony of numerous experts, who saw and inspected the boat, in the “Yallette Dock, ” it is shown beyond the peradventure of a doubt that the wheel was then from seven to ten inches below the bottom level of the boat, and that this was a mistake of construction. The wheel was then raised eleven or twelve inches by means of the proper aqqfiiancos, and that operation gave to it thopropor sweep or dip, which is throe inches above the level of the bottom of the boat.

The propriety and the necessity of the change thus made were verified by subsequent events. On inspection of the boat, when she was docked two years later, it was found by the experts that the wheel was yet properly hanging. That circumstance affords an answer to the argument made by defendants, that the fact of the wheel hanging too low in November, 1885, was due to the “hogging ” of the boat by the bending-down of its stem. After two years’ service the wheel was found at the proper height or thereabouts, although the stern did then appear to have dropped down a few inches. Conceding that the stern had dropped at the time that she was docked in November, 1885, a fact which is advanced by a few witnesses, and denied by more, and by the most competent experts, it is not even contended that it had dropped one foot; and that much was necessary to produce the result shown by the examination made at that time. It is conceded on all sides that the boat had been previously very efficiently chained, with the best known appliances, and that the hog'-chains showed no signs of having given way.

Defendants could not have contended, without involving themselves in a damaging admission of a defective construction of the boat that her stern had dropped lower in three months, than it did subsequently in two years.

The record shows that the boat was taken down the Ohio river during a low stage of water; that she was grounded once for inore than thirty hours, and that she several times rubbed or scraped the bottom of the river, for want of sufficient water to properly float her.

From that circumstance it is argued by defendants’ .counsel that the wheel could not have been lower than the bottom of the boat, as in that case it would have been broken off. To that effect is the testimony of several experts. But by the testimony of one of the pilots who had charge of the boat from Cincinnati to New Orleans, and who was a witness for defendants, it appears that-as often as the boat sCrax>ed the ground, the, wheel was imbedded in the ground, and that on such occasions, in'his own language, “the wheel walked the bottom.” But the wheel was not torn oif or injured, and that fact, although incompatible with the opinion of experts examined on behalf of the defendants, is satisfactorily explained by the following significant circumstance: The defendant, J. M. Sweeney, states that after passing Louisville, Kentucky, he caused the buckets of the wheel to be shifted several inches, by raising them on the arms, and thus the buckets of the wheel did not come in contact with the ground when the boat scraped the bottom; the arms alone struck the ground which yielded to the pressure of the same, which are strong upright beams or pieces of the best timber; and thus the wheel was enabled to “ walk the bottom ” without injury.

In that connection Mr. Sweeney states that unless the buckets had been thus shifted, the wheel would have driven the boat with too much force.

That was precisely the ground of plaintiff’s objection to defendants’ maimer of setting the wheel, and that is precisely the theory which necessitated the change made under plaintiff’s directions, and under which defendants must be held liable for an honest but unfortunate mistake of construction. The cost of that necessary improvement was $339 77, and plaintiff' is entitled to the recovery thereof in this suit.

But ho is not entitled to recover any compensation from these defendants for the earnings which the boat could have made while she was in dock.

The record shows that plaintiff then owned another steamer which was forthwith put in the trade in the place of the “ T. P. Leathers,” the name of the new boat; hence his business did not suffer by that incident.

The chances of his trade were not materially affected by the change from the “ Leathers ” to the “ Natchez.”

Instead of keeping the “Natchez” laid up, he simply laid up the “Leathers’’ for two weeks, and the business was carried on all the same.

In concluding to hold the defendants liable for the two errors in construction which we have labored to describe herein, we are not to be understood as casting the least reflection on either their good faith or their competency as boat-builders; for-we leave the record with the absolute conviction that they are not wanting in either. As to the deficient caulking, they were deceived themselves by sub-contractors, and as to the defect touching the wheel, it was the result of a mistake.

Under the views which we have taken of the case, it is imnecessary to consider the reconventional demand, which falls under its own weight.

It is therefore ordered that tho judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that qdaintiff do have and recover judgment against the defendants in the sum of two thousand two hundred and sixty-one dollars and fourteen cents ($2201 1-1), and that .defendant’s demand in reeonvention be rejected. It is further ordered that plaintiff recover all costs incurred in both courts.


author: Fenner, J.

text:
    No. 10,317.
    John H. Mossop vs. His Creditors.
    l. Pi-raoifptioii of one year is not applicable to actions in declaration of simulation. •
    2. A creditor may assail a simulation though not a creditor at the datio of the simulated ad.
    3. Tho consideration of a mortgage, debt may ho questioned by a third person having an interest, and ho may make proof of simulation by parol evidence and by tho testimony of a party to the act.
    4. The law creates a presumption that a promissory noto has an adequate consideration ; but when thoro is a idea of want of consideration supported by the ovidonce throwing serious doubt upon it, tho presumption may bo rebutted and tho payee may bo required to provo consideration.
    5. Evidence considered and conclusion of district judgo sustained.
    APPEAL from' the Twenty-third District Court, Parish of West Baton Rouge. Talbot, J.

      Read é Goodale for Appellee.

      Henry O. Miller for Appellee.

      Alex. Hébert for the Appellant.
   Tho opinion of the Court was delivered by

Fenner, J.

The controversy presented for our determination arises in proceedings for the distribution of tho proceeds of sale of mortgaged property amongst the mortgage creditors. A junior mortgage creditor, Zuberbier & Behan, attacks a senior debt and mortgage executed in favor of N. W. Pope, Esq. (now deceased and represented by his administrator, C. J. Barrow), as simulated, void, and given without consideration.

The plea of prescription of one year opposed to this action is untenable, It is well settled that this prescription, provided for revocatory actions, docs not apply to tho action in declaration of simulation. H. I). Proscription Til (c) (0) No. 9; IT. D. Obligations, VII (b) (2) A. No.l.

Tt is equally clear that in. such an action brought by a third person it is not necessary that he should have been a creditor at the date of the simulated contract. Such acts, in so far as they are simulated, vest no rights in any one, but only operate as shadows which any one interested may disregard and dissipate.

The evidence relied on by Zuberbier & Bohan is that of Glennon, the party who made the notes and executed the mortgage to Pope.

His testiarnony was objected to on two grounds, viz: 1. That parol evidence cannot be • received to vary or contradict a written act; 2. That Glennon, being a party, could not contradict his own declarations in an authentic act. Both objections fall under the direct authority of Smith vs. Conrad, 15 Ann. 579, where it was held that the true consideration of a contract (of mortgage) may be questioned by one who was not a party to it and who has an interest; and that such third person may make such proof by a party to the act, the objection that he was a party going to the credibility and not the admissibility of the testimony. See also: Davis vs. Stern, 13 Ann. 177; Dickson vs. Ford, 38 Ann. 736.

Glennon has not tho slightest interest in this controversy, or, if he has any, it would favor tho maintenance of the Pope mortgage. Iiis evidence is simple, straightforward, and presents every indicium of truth and candor. He states, in substance, that Pope had been his lawyer and that he was indebted to him for professional services in an amount not fixed, but which, ho says, did not, possibly, exceed $500 or $1000; that being threatened with insolvency and breaking up by his creditors, Pope suggested that he should give him a mortgage to secure his fees, and that ho should, make it for the sum of $3500, so that he (Pope) might get the excess and pay it over to Mrs. Glennon, and that the mortgage was accordingly executed with this understanding, that he was to give the difference between the fee and the amount of tho mortgage to Mrs. Glennon.

The law creates a legal presumption of consideration for a promissory note; blit this presumption may be rebutted; and though the mere plea of want of consideration may not alone suffice to throw the burden of proof upon the payee, yet when tho plea is sustained by evidence throwing doubt upon it, the payee may be required to prove it. Martin vs. Donovan, 15 Ann. 41; Wooster vs. Harrison, 9 Ann. 234; Clarke vs. Christine, 4 Rob. 196.

It is not even suggested that there was any other consideration for the mortgage except the professional fees due Pope as attorney. The records show no servicos rendered in judicial proceedings except in a suit brought, by executory process, against Glennon on a mortgage for $4000, which was enjoined by Glennon through Pope as his attorney, resulting in an adverse judgment dissolving the injunction, after slight litigation. Pope is shown to have rendered other advisory services, but it fully appears that the higher amount of $1000, fixed by Glennon will be a voiy liberal compensation for all services rendered. We think the district judge did not err in reducing the debt and mortgage to that amount.

The affirmance of the judgment on this point eliminates other controversies between the participating distributees, which would have arisen had the judgment been reversed.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,242.
    The State of Louisiana vs. Dennis Kirby.
    Section 1 of Act 99 of March 14th, 3878, which declares that it shall be the duty of the sheriff of ‘ ‘ each parish to have at each polling place in his parish a deputy sheriff, whose duty it shall be to attend the election, obey the orders of the commissioners of election, attend the transmission of the ballot boxes and commissioners’ duplicate returns to the cleric of court, and, also, the duplicate returns to the sheriff or other returning officer, and for any failure to perform such duties, the said sheriff shall be fvnedf does not affix either line or imprisonment, as a penalty against the disobedient deputy.

    APPEAL from the Criminal District Court for the Parish of Orleans. Balcer, J.

      Walter II. Bogers, Attorney General, and IS. II. Lu.eenbw.rg, District Attorney, for the State, Appellee.

      McMahon é Pratt for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The defendant appeals from a conviction under an indictment which charges that, on the 17th day of April, 1888, “being then and there a deputy to the civil sheriff of the parish of Orleans, and acting as such, being stationed as such deputy sheriff at a certain polling place in the parish of Orleans * * on the date before said, the same being a day on which a general election was held in the parish of Orleans pursuant to law * * Ms duties as such deputy sheriff being to attend the election, obey the orders of the commissioners of election, and attend the transmission of the ballot boxes and commissioners’ duplicate returns to the clerk of the court, and also the duplicate returns to the sheriff or other returning officer, (he) did fail to perform such duties, etc.,” and under which he was sentenced to pay a line of $500, and to suffer imprisonment in the parish prisou for three months.

lie first requested the trial judge to grant him a rehearing, and upon Ms refusal so to do, the accused filed a motion in arrest of judgment, which embraces the same grounds of complaint, which was, also, refused, and to each of said rulings his counsel retained a hill of exceptions.

The grounds assigned are the following, viz:

1. That because the defendant being, as alleged in said indictment, a deputy sheriff, is not criminally responsible by the laws of this State, for a failure to perform his duty relative to elections.”

Other grounds are set out in the motion, but same need not be enumerated, as the one quoted is, in our opinion, fatal ,to the indictment.

The statute of the State claimed to have been violated is Act No. 99, approved March lith, 1878, the first section which reads as follows:

Section 1. Beil enacted by the Senate and House of Representatives of Ike Mate of Louisiana in General Assembly convened, That section thirty-three of an act .providing the time and manner of holding elections and making returns thereof, (the general election law) being Act No. 58, approved April 11th, 1877, he amended and re-enacted so .as to read as follows: “ That it shall be the duty of the commissioners themselves, or at least two of them, to carry the returns and ballot boxes to returning officers and clerks of court, as required by law, and it shall he the duty of the sheriff of each parish to have at each polling place in his parish a deputy sheriff,- whose duty it shall be to attend the election, obey the orders of the commissioners of election, and attend the transmission of the ballot boxes and commissoner’s duplicate returns to the clerk of court, and also the duplicate returns to the sheriff or other returning officer, and for any failure to perform such duties,'the said sheriff shall be fined not less than five hundred dollars, and imprisonment (sic) not less than three months, at the discretion of the court., * “ * * * * ”

The sole question for our determination is whether the accused, as an acting and duly appointed deputy sheriff, is punishable, under the statute, by fine or imprisonment, for a violation of its provisions, in the nonperformance of the specific duties which are imposed upon him,

Paraphrased, the law reads thus:

u It shall he tho duty of the sheriff of each parish to have, at each polling place in his parish, a deputy sheriff, whose duty it shall lie, etc; * * * and for any failure (of the deputy sheriff) to perform such duties, the sheriff shall be fined and imprisoned,” etc.

This language is clear, unmistakable and free from ambiguity. There is no room for construction. The Legislature has not plainly, and, in terms of no doubtful import, declared that, for the failure of the deputies to perform the duties which are assigned to them, they shall bo lined and imprisoned; and it is our plain duty to so construe the law. Wo are not at liberty to consider what is the equity of a criminal statute, when its terms are positive and free from doubt. Tlie motion in arrest was well taken and should have been sustained.

It is therefore ordered and decreed that the verdict and sentence thereon pronounced, be annulled and set aside, the indictment quashed, and the prosecution against tho accused abated.


author: McEnery, J. Fenner, J.

text:
    No. 10,289.
    Theonise Maclas, wife of P. Rousseau, vs. P. E. Lorio, Sheriff, et als.
    Jn a suit against a shoriff hy a third party lor tho illegal and ■wrongful seizuro of his properfcy, if is not required that ho should allege in his petition that he had made oath as to the ownership of the property and had notified tho shoriff to execute an indemnity hond. Act 87 of 1882 fully protects the sheriff, and if lie fails to follow its text, he makes tlie seizuro of tho property at Ids peril. 2Io must know that tho property belongs to the defendant in execution.
    Tho third party, whoso property is seized, is not hound to give notice to tho shoriff and demand an indemnity hond.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      L. F. Suthon and Blalce & Blalce for Plaintiff and Appellant.

      Knoblooh, Moore <& Bademuo for Defendants and Appellants.
   Tho opinion of the Court was delivered hy

McEnery, J.

The plaintiff sued the defendant sheriff and tho sureties on 1ns official bond for $10,000 damages, alleging in her petition that she was separate in property from her husband and was on her own account pursuing, in tile town of Tliibodaux, tlie occupation of a merchant, and that the said sheriff illegally seized, while in her own possession, her stock of merchandise, destroyed her business and caused her great mental distress. The merchandise wa^ seized under a writ of attachment in the suit of Thompson vs. G-ourdain & Courcier, on the 18th day of June, 1888, and they were sold as perishable property, under an order of court, on the 21st of July ensuing. This suit was filed on the 5th day of July, 1888.

Defendants excepted, alleging no cause of action, because the plaintiff failed to make an affidavit as to her ownership of the proiserty, in conformity to Act 37 of 1882, and that she was estopped because she was silent and made no opposition at the time of the seizure.

The petition contains sufficient allegations for a suit upon which a judgment can he rendered for the plaintiff, if the allegations are true, that is, if Mrs. Macias was the real and bona Me owner of the property seized, and it was sold for a debt not due by her but to pay the debt of another party.

It was not necessary for her to allege that she had made oath as to her ownership and had required the sheriff to execute an indemnity bond. Act No. 37 of 1882 was enacted to protect the sheriff against all damages in case a third person should be adjudged the owner.

It does not exempt him from suit for an illegal and wrongful seizure of the property of a third person. To protect -himself he must demand from the plaintiff, after giving him or his attorney notice, an indemnity bond, but before the plaintiff is required to give the bond, the third party claiming the ownership of the property must make affidavit as to ownership.

The sheriff, by following the text of tins law, is fully protected from pursuit of the plaintiff in disobeying his instructions if he fails to give the indemnity bond after the oath of thfc third party as to ownership, and forces the third party, if ho makes the seizure on his failure, after notice, to make the required oath.

There was no notice given to Mrs. Macias, nor was she required to make oath as to her ownership.

The property was seized as belonging to Gourdain & Courcier, by the directions of the attorneys of plaintiffs in the attachment proceedings of Thompson.

Defendants .allege in their exception that Mrs. Macias is estopped from claiming damages because of her inaction and silence at the time of the seizure.

She is not suing for the specific property seized and sold in the hands of a purchaser. Her suit is for damages for the illegal seizure, and her silence can not give any right to the seizing creditor which he did not have at the time of the seizure. If it was her property, her silence, by itself, does not make it the property of Gourdain & Courtier. In the proof of ownership, her silence, at the time of seizure, may, however, be one of the circumstances going to prove this fact, and this part of the exception properly belongs to the merits.

The sheriff, in making a seizure of property, must know that the property belongs to the defendant in execution, and the defendant is not bound, on being notified thereof, to give notice to the sheriff. Ho may sue at once for the illegal seizure by a separate suit, and is not compelled to intervene in the suit in which the seizure was made. 9 M. 024.; 4 R. 39, 136; 31 Ann. 74.

Mrs. Macias sued -the sheriff very soon after the alleged wrongful seizure of her property.

The judgment appealed from, sustaining the exception, is reversed, and it is ordered that the case be remanded to be proceeded with in due course, defendants to pay costs of appeal.

On Aeflication eor Rehearing.

Fenner, J.

This application evinces a misapprehension of the purport of our decision herein.

The petition of the plaintiff, after reciting the facts of seizure, expressly alleged that your petitioner protested to said officer against the seizure of the property as that of another or others, urging the ownership and possession thereof, but without avail, he refusing to restore to her her property or to desist in his illegal acts.”

The action was met by two exceptions: 1. No cause of action. 2. Estoppel, on the ground that plaintiff had failed to make the affidavit prescribed by the Revised Statutes and Act 37 of 1882, which exceptions were maintained and the appeal was taken from that judgment.

For the purposes of the exceptions, the allegations of the petition were to be taken as true; and we hold the exceptions to be untenable.

We did not moan, or say, that a third person who sees his property seized, as that of another, may close his lips or suffer his property to bo taken without objection or notice of his claim, and then hold the sheriff in damages. What we held was, that when, as specifically alleged in this petition, the owner assorts his claim and protests against the seizure, the sheriff then proceeds at his peril, and if he desires to protect himself under the laws above'referred to, it is his duty to require the claimant to make the affidavit prescribed in the law as a basis for his exacting from tlie plaintiff in writ the bond of indemnity. If on such demand the claimant had refused to make such affidavit, we said that would exonerate the sheriff. But the mere failure to make the affidavit, of her own motion, when the sheriff had disregarded her protest and had never called upon her to make the affidavit, did not estop her.

We disregarded the evidence found in the record tending to contradict the allegation above quoted from plaintiff’s petition, because foreign to the exception as such, and clearly going to a defense on the merits, where alone the truth of that allegation, like all others, can be contested and decided.

Rehearing refused.


text:
    No. 10,330.
    Joseph Cointement vs. Chas. A. Cropper.
    To be relieved from an action in damages for malicious prosecution, the defendant must rebut the prima facie proof of implied malice against him, by showing honest belief, grounded improbable and reasonable cause.
    The circumstance that advice of counsel was obtained before making the charge, will be no shield, when it does not appear that a full disclosure of all the facts tending to show an honest belief, based on probable and reasonable cause, has been made at the time of consultation.
    Excessive damages awarded by a jury will be reduced, in proper cases.
    APPEAL from the Tweuty-tMrd District Court, Parish of Iberville. Talbot, J.

      11. N. Sims and Alex Hebert for Plaintiff and Appellee.

      A. Talbot, Geo. Wailes andF. O. Zaeharie for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The complaint is that the defendant has wrongfully, falsely, maliciously and without probable cause, prosecuted the plaintiff, accusing him of stealing a cow; that the grand jury ignored the hill and that plaintiff has sustained injury which lie sets down at $5135.

Tn answer, the defendant admits the prosecution; but avers probable cause, acting under advice of counsel.

A verdict for $1000 was returned in plaintiff’s, favor, on wliicli the court rendered the judgment from which the defendant appeals.

The following are the salient facts:

The plaintiff and the defendant were old neighbors and had been on had terms for some time. On the evening of the 4th of November, 1886, a cow, which defendant had turned out on the public road and batture, having failed to return, defendant dispatched his son to look her np. The search was fruitless that day; but was renewed during the course of the following day, without success, however. In the evening, the defendant was informed that his cow was locked up in the stable lot of an. adjoining property owned by x>laintiff, but under the management of a relative. Defendant then sent his son to claim the cow from tho manager, who explained the capture and detention, saying, that, on tho 5th he had driven a number of cattle, the owners of which he did not know, from his field, planted with cane and corn, and had led them into the lot to keep them from the field, with the intention of turning them out on the public road the following morning. On report of these circumstances, the defendant consulted a lawyer who advised the arrest of the plaintiff and of the manager.

On the charge being made, the plaintiff was arrested. He went three miles from his residence to give bail for his appearance, had to attend court during three days and was finally discharged by the grand jury.

The proof establishes clearly the prosecution and its termination ; that tho defendant was the prosecutor; that'hehadno probable causo; that he was actuated by malice and that plaintiff has sustained damages.

There is not in the record a scintilla of evidence, connecting the plaintiff with the capture and detention of the cow in question. The testimony of the manager, on the contrary, shows that ho knew nothing of it and had nothing to do with it.

Tim place to which the cow had been driven, with other cattle from the field, although it belonged to tho plaintiff, was not occupied by him, and was not in his possession; but was in that of the manager, who was working it for their joint account.

The parties had been on bad terms as neighbors for a long wliile but both enjoyed a deserved reputation for respectability.

The cow was not kept hidden, but was placed in a stable lot, where it could be easily seen by anyone in search of strayed animals.

Nothing shows any evil intent or wrongful act, oven on tho part of’ the manager.

It is impossible, after reading the testimony in tho case, to conclude, that the defendant 'lionenlly believed that the plaintiff liad stolen his cow, and, even then, that there existed any probable and reasonable cause, upon which to ground such belief. On the contrary, the mind remains impressed that the defendant acted under malicious instigations.

The attempted justification of the acts of the defendant, from the fact that, before making the charge, he had taken advice of counsel, cannot avail him.

It does not appear from the testimony on that subject, that the defendant stated during the conversation, that the place on which the cow had been taken and kept, was not in plaintiff’s possession; but was in that of the manager; that the defendant and the plaintiff were on bad terms ; that the plaintiff ever was called upon for a delivery of the cow, or for any explanation; that he knew that it had been placed in the stable lot, or that he had directed it to be caught and locked up there, or else where.

The certainty is, that, had defendant made, to the lawyer whom he consulted, a full disclosure of the material facts, ho would not have been advised to act as he luis done. Counsel would surely have paused and suggested differently.

So that, this advice is no shelter to the defendant.

It is evident that plaintiff has sustained injury in different ways, particularly in his feelings. It is easy to conceive what mortification he must have endured in seeing his name on the public criminal records, under the charge of the odious offence of larceny; in knowing that Ms name was in the mouth of every body under that accusation; in being taken from his family and brought as a criminal before the judicial authorities to give an appearance bond; in spending three days at the court-place, during the session of the grand jury, in a state af humiliation, vexation and perplexity, and otherwise.

True the grand jury did him justice by clearing him from the heinous charge; but this exoneration is no completo indemnity for the injury which ho has resented. Surely, no one added credance to the verity of the accusation against him; but even this is insufficient to compensate him.

The jury, by a bare majority, found that he should recover $1000; but we think the allowance, under the circumstances, too large, and deem that five hundred dollars would be a sufficient indemnity.

It is therefore ordered and decreed that the verdict of the jury and the judgment of the court on it should be amended by reducing the same to five hundred dollars, and that thus amended the same be affirmed, the defendant to pay the costs below and the plaintiff those on appeal. '


text:
    No. 10,325.
    Mary Pinckney et al vs. Charles Wolf, Administrator, et al.
    Although averments in the petition ancl prayer show that the matter in dispute is within the apx>ollate jurisdiction of this court, the appeal will be dismissed propHo motu, when it appears, from the record, that the matter in dispute ia really below the lower limit of such jurisdiction and the claim is considered as not serious and fictitious.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Favrot, Judge ad hoc.

      T. A. Moore for Plaintiffs and Appellees.

      Kernan & Laycoclc and K. A. Gross for Defendants and Apipellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs sue as the forced heirs of their mother, from two different marriages, to recover half of the community property which vested in her at the death of her second husband, in March, 1887.

They revendiente as piart of said property, certain real estate sold by the latter, after their mother’s death.

They also claim rents and revenues.

In their petition, filed in August, 1887, they value said half at $2605, and set down the other claims at $425, forming an aggregate of $3030.

The revendicated real os tato, which is included in that of which the half is claimed, appears to have been sold for some $700, piart cash and the rest on credit.

In the inventory taken in April, 1887, four months previous to the filing of the suit, of the estate of the deceased, the entire property, movable and immovable, was together appraised at $1144 50.

The proceedings were contradictorily carried on, with the administrator of the succession of the second husband and with the purchaser sought to be evicted.

There was judgment in November, 1888, for the plaintiffs, against the succession, recognizing them as entitled to the half claimed and to some $272, and against them, as concerns the vendee of the revendicated property.

Both, the plaintiff’s and the succession administrator, appeal from the judgment, as far as it affects thorn respectively.

So that, the record, from the standpoint most favorable to the parties, shows that the property and amount in ’ dispute together, foot half of $3030, or $1515; when probably, in all reality, it is worth much less.

Obviously, the averments of the petition appear to have been made for no other purpose than, if possible, to vest this court with jurisdiction over the matter in controversy; but, as they cannot be deemed serious, they cannot accomplish that object.

It has been repeatedly held that, whenever the matter in dispute appears to be really under the lower limit of the jurisdiction of this'court, though from the averments and prayer of the petition, it is represented as exceeding the same, the claim will be treated as not serious and as fictitious and garbed solely to bring it within appellate jurisdiction, and the apx>eal will be dismissedproprio mofa. ' II. D. p. 20 (8); L. D. p. 15 (16); Bright vs. Thompson, 38 Ann. 801.

As it clearly results from the record that the matter in dispute is really below the lower limit of the jurisdiction of this court, it follows that the judgment appealed from cannot be reviewed here.

It is, therefore, ordered and decreed that the appeal taken by the plaintiffs, as well as that taken by the administrator, be dismissed with costs.


text:
    No. 10,294.
    Camille D. Lalande vs. Lyman G. Aldrich.
    Xu a contract between a planter anti an overseer, under which the latter was employed for a series of years (at a stipulated salary, the fact that the overseer begins a new year without express agreement or renewal of terms, will be held as a tacit reconduction of the contract for the same term and at the same salary.
    The conduct of an overseer, who impedes by rudeness and otherwise reprehensible conduct, the inspection of the plantation under his charge, by persons who are thereto authorized by liis employer, and thereby jeopardizes the latter’s interests, is a just cause for his discharge before tlio expiration of the term of his employment.
    APPEAL from the Twentieth District Court, Parish of Assumption. Seattle, J.

      Sugh c6 S.ugh for Plaintiff and Appellee.
    IF. JE. Howell for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff seeks to recover his wages as defendant’s overseer oil a sugar plantation for the whole of the year 1887, although he was discharged on the 12th of February of that year, resting his claim on the fact that he had been engaged by the year and that he was discharged without just or sufficient cause.

The defense is a denial that plaintiff was engaged by the year for 1887, and an averment in the alternative that, if it is found that his employment was for the whole year, lie was discharged for a good and just cause.

Judgment was rendered in favor of plaintiff for the full amount of his demand, and defendant appeals.

I.

The first point of discussion involves the term for which plaintiff was employed in 1887.

The record shows that plaintiff had been employed as overseer by defendant at a stipulated salary for the whole year for each of the years 1883, 1884,' 1885 and 1886, and that no change was made or intimated by either party at the end of 1886.

Without any formal agreement, either of employment or of terms, plaintiff continued his services in the management of defendant’s plan - tation in the beginning of the year 1887, and conducted all planting-operations to the knowledge, and with the consent, of defendant, until he was discharged, on the 12th of February.

It is in proof that, owing to financial embarrassments, the defendant was unable to furnish the means necessary for the labor of the month of January, the full amount of which was advanced without any security and paid out to the laborers, out of his own funds, by plaintiff.

It is true that from correspondence between the parties during that time it appears that defendant had expressed the desire to decrease the salary which plaintiff had been earning during- the previous years, and that ifiaintiff had positively refused to submit to such diminution, expressing his intention of rather leaving the service. Rut the matter ai>poars to have been dropped indefinitely and no change was thereby effected touching the relative positions of the parties.

In our opinion that incident must be considered as confirmatory of the alleged tacit reconduction of the employment of plaintiff by the year, which apimars from all the circumstances affecting the question, as hereinabove stated, and otherwise contained in the record.

We, therefore, conclude, that plaintiff had been employed for the whole year in 1887, and that the burden of proof is on the defendant (o show that ho was discharged for a cause sufficient in law.

ii.

The alleged serious ground of complaint, on which defendant relies to justify the discharge of plaintiff grows out of the following facts and cimunstanc.es: To the full and admitted knowledge of plaintiff, defendant, who resides in the State of Mississippi, was very heavily indebted to his factor and commission snerchant in New Orleans, who held a snortgage on the plantation, equal in amount to the market value of the whole property. The crop of 3886 had not been profitable, but had, on the contrary, increased the indebtedness of the planter to his merchant, who, in consequence of the risky condition of things, was unwilling to make the advances siecessary for the crop of 3887. Hence followed the failure of defendant to meet the cost of labor for the month of January, as hereinabove stated. While negotiations were pending between him and his merchant affecting the fate of the plantation, and as the defendant had no available resources with which to supply the plantation, it was agreed between these two parties that the merchant and creditor would have the property critically examined and inspected by two trusted agents of his own selection, and that upon their report he would decide whether to make further advances or to foreclose his mortgago.

Accordingly, the selection of the two agents was made, and they went to the plantation, bearing a letter from the commission merchant to plaintiff who was therein informed that the visit of the bearers was in furtherance of an agreement between the writer and the defendant, with the request that plaintiff' should facilitate the agents in their inspection of the property, and with the information that their report would shape the merchant’s course as to future advances for the cultivation of the plantation.

The plan proved to be offensive to plaintiff, who refused to show any courtesies or to extend any facilities to the visitors, towards whom he behaved in a very abrupt manner, and who thereupon retired from the plantation without making- the inspection for which they had expressly gone there. On their report of the incident to their principal, the latter at once notified the defendant that he could have no snore business connection with him touching- the plantation, and that he would foreclose the mortgage, unless defendant made a change in the management of the property. On the question as to what transpired between the visiting agents and the plaintiff who was found by them in the field, and to whom they then tendered their letter of credentials, there is a conflict between his testimony and that of one of the agents,

But without going into unnecessary details, we reach the conclusion that plaintiff’s conduct was rude and reprehensible, and of a nature to justify the agents to abandon their investigation.

This conclusion is fully confirmed by the subsequent conduct of plaintiff, who consented, at defendant’s request, to apologize for his behavior on the occasion referred to. The motive of the defendant in making that request was to arrange matters in such a shape as to be able to retain plaintiff as his overseer, which he was anxious and eager to do. But that plan was likewise frustrated, and the defendant was left but one alternative, either to change his overseer, or to lose his plantation.

It is no answer to this position to suggest that he could have secured another merchant. It. is not a violent presumption to assert that a planter situated as the defendant was at that time, can find no other merchant; even when the mortgage creditor, whose claim is equal to the value of the plantation, is willing to grant time. But in this case the mortgage creditor, who was the irritated merchant himself, dictated the terms of his indulgence, and these involved the discharge of the overseer.

' We have no concern with the question of the propriety or justice of the ulimnatmn which was thus imposed on the defendant.

For the purposes of this case, it suffices to say that the defendant was completely at the mercy of his creditor and merchant, and that pliantiff’s conduct was the proximate cause of his employer’s embarrassment in that connection.

To the latter the situation was peculiarly painful;: he ardently desired to retain plaintiff; but if his property was sold, both were sacrificed; the one lost his plantation, the other his situation as manager. What was he to do % The law, as well as common sense, dictated the course which ho pursued, and the law cannot now punish him for an action which was forced on him by circumstances over which he had no control, and which resulted from the imprudence of plaintiff hjmself, who now seeks to assume the legal position of the aggrieved party.

There was nothing in the correspondence between the different parties, or in the relative positions between the defendant and his commission merchant, all of which were well known to plaintiff, to justify him to treat the proposed examination of the property by the designated agents as an intrusive interference with his employer’s business and affairs, or to qualify them as spies, as he did in a letter written to defendant on the same day that the visit occurred.

He was informed by the merchant’s letter that the examination was to bo made with the consent of defendant; he had no reason to suspect the good faith of the statement; he knew that the merchant was the authorized agent of the former; he himself had frequently corresponded with him as such, in ordering needed plantation supplies, and in other matters connected with his management of the plantation.

The visit was a plain and rational business transaction, which plaintiff had no reason to treat as anything offensive, or aggressive to him, or to his employment as overseer and manager. Through his ill-timed resistance to the execution of the plan, he seriously jeopardized the best interests of his employer, which it was his duty to protect, and his conduct must be held in law as a reprehensible violation of his duty. Youngblood vs. Dodd, 2 Ann. 187.

Hence his discharge was justifiable.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed, and it is now adjudged and decreed that plaintiff’s demand be rejected and that his action be dismissed at his costs in both courts.


text:
    No. 10,312.
    W. & F. Livingstone vs. Hardie Bros., et al.
    J. In a revocatory action, tlio amount of tlio (lelit, and not tlio value of tlio property convoyod by tlio sale sought to bo revoked, is tlio tost of jurksdictiou.
    2. Where tbe same judgment passes on an unappealable principal demand, and an appeal-able reconventional demand, tlio latter alone can bo reviewed on appeal.
    3. Li an action lor malicious prosecution of a civil suit, it is essential to prove both want of probable cause and malice, which are not established in this case.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Jade (& Disnmlees for Plaintiffs and Appellees.

      Chaplin, Breaseale & Chaplin for Defendants and Appellants.
   Tiie opinion of the Court was delivered by

Fenner, J.

We are clearly without jurisdiction to revise the judgment on the principal demand in this ease, which is an action to recover $251 41 with interest and costs, coupled with a prayer for the revocation of a sale of certain property and also for a recognition of a vendor’s lien. The value of the property, the sale of which is sought to he revoked and on which the privilege is claimed, is hot the measure of our jurisdiction, which, must bo dcterminocl only by the amount of plaintiffs’ demand, satisfaction of which is all that could be required. Loeb vs. Arent, 33 Ann. 1086; State vs. Judge, 34 Ann. 1215.

Nor do wo acquire jurisdiction over the principal demand because the defendant has filed a claim in recovention which may be appealed to this Court. Defee vs. Covington, 37 Ann. 659; Colombo vs. McQuaid, 36 Ann. 370; Goldman vs. Roos, id. 132; Lamorere vs. Avery, 32 Ann. 1008.

The reconvention al demand is in the nature of an action for-malicious prosecution of the principal suit. The latter was not accompanied by any process disturbing the defendants’ rights of person or property.

The petition contains allegations of fraud, of impoouniosity and other charges certainly not creditable or agreeable to defendant and tending to injure his credit and reputation and to wound his sensibilities. But we fiad therein none not strictly pertinent to the cause of action and conducive to the relief sought.

The law expressly authorizes such actions and formulates tire grounds on which they may be brought. Partios, who believe they have such grounds of action, have the right to embody them in the judicial petition, without'whioh they coirld never vindicate their rights.

In actions for the malicious prosecution of such a suit, they can only he held responsible in damages on the same grounds which are requisite to sustain an action for malicious prosecution of any other civil suit, and those require clear proof of two concurring facts, viz: First, want of probable cause and second legal malice..

This record fails to furnish such proof. On the contrary we observe the significant fact that, prior to the filing of the petition in this case, other judgment creditors of Hardie Bros, had attacked the sales of de-* fondant, Johnson, as fraudulent simulations, by directly seizing the property sold; and that Johnson, in an injunction suit brought by him to restrain said execution, set up against those parties the same claim for damages which he now propounds against the present plaintiffs.

He then claimed that those damages were occasioned by the seizure of his property which took place before this suit was brought. He now claims that they were occasioned by the instant suit. It further appears that, on issue joined in the injunction suit, the injunction was dissolved and the sales wore declared to ho fraudulent simulations. On appeal to this Court the judgment was reversed on the ground that the sales were not mere simulations, reserving the right of the creditors to bring a revocatory action, That action was subsequently brought and presented the same issues raised in the present suit. It resulted in a judgment annulling tho sales and rejecting Johnson’s demand for damages.

It certainly cannot be claimed that a cause of action, which lias been sustained by two judgments of a competent court, presents such' want of probable cause as would support an action for malicious prosecution.

This view is further confirmed by tho fact that several other actions of identically the same character have been brought by various creditor's, and against them also Johnson has propounded the same claim for damages.

We think the reconventional demand lias no foundation.

It is, therefore, adjudged and decreed that the appeal on the principal demand be dismissed and that the judgment on the demaud in reconvention be affirmed.


text:
    No. 10,318.
    J. F. Davis vs. Joseph E. Bargas. Joseph E. Bargas vs. J. F. Davis.
    consolidated.
    In case one (mil, in which tho amount demanded is $>100, ho consolidated with onothor, in which tho defendant in tho former is plaintiff, and claims $1670 '42, this Court has no jurisdiction of tho consolidated cases, hecauso. in no event could this Court render judgment for an amount in excess of tho latter sum.
    APPEALS from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews for J. P. Davis, Appellee.

      Ales Hebert for Joseph E. Bargas, Appellant.
   On Motion to Dismiss Appeal.

The opinion of the Court was delivered by

Watkins, J.

Appellee moves to dismiss this appeal on tho ground that the matter in dispute is below the lower limits of this Court’s appellate jurisdiction.

In Davis vs. Bargas plaintiff’s demand and prayer are that the defendant account to him for the proceeds of tlie sale of certain rent-rice which he collected of Allen Thomas, for him, valued at $400 with legal interest.

In Bargas vs. Davis plaintiff’s demand and prayer are for the litpiidation and settlement of a partnership in a certain rice crop adventure, and for a judgment against the defendant for $1676 42 on final settlement thereof.

As illustrative of the character of the transactions involved, the petitioned shows that he was a country merchant and furnished plantation supplies to the planting partnership of Bargas and Davis, to the value of $2353 90, of which there had been paid at various times sums aggregating $1020 06, leaving a balance due of $1333 84, for one-half of which defendant, Davis, is indebted to him, $666 92^.

He also claims that Davis is further indebted to him in the sum of $940 06ü balance in his favor after making a settlement with their factors,- S. Grumble & Co. And in the further sum of $69 43. These different items aggregate the capital sum demanded.

It is perfectly apparent that no judgment could be rendered by this Court in favor of Bargas, in the latter suit, in excess of $1676 42. It is likewise apparent that if judgment should he rendered against Bargas for the full amount demanded in the former suit, tliere would remain only a balance in his favor in the consolidated suits of $1276 42. Hence, in no event, could wo render judgment for or against either party for a sum exceeding $1676 42, and this Court is without jurisdiction ratione material.

It is therefore ordered and decreed that this apx>eal be dismissed at the cost of appellant.


text:
    No. 10,434.
    The State Ex Rel. Peter Kiernan and F. R. Waters vs. F. A. Monroe, Judge of Division C, Civil District Court for the Parish of Orleans.
    Proceedings in cases of contempt can never "be set aside and annulled 'in a proceeding for certiorari, unless the court has no jurisdiction to make the order disohoyed.
    A PPLICATION for Writs of Oertiorari and Prohibition.
    Bouse & Grant for the Relators.

      Mo'ise <& Galm for the Respondent.
   Tlio opinion of the Court was delivered by

Watkins, J.

It appears from the record that relators were prohibited and restrained from voting certain shares of stock at an election thereafter to be held for officers of a corporation known as the Daily News Publishing Company; that relators, as defendants therein, petitioned for and obtained an order for the dissolution of said injunction on furnishing bond in the amount fixed by the court with good and solvent security; that, in pursuance of said order, they filed a bond which purported to meet the requirements of said order, and appeared at the election and voted said stock; that, subsequently, plaintiff in injunction took a rule on relators to show cause why the injunction should not be reinstated and everything- placed in the same condition it was prior to the dissolution of same on bond, because the security furnished was not solvent; that said rule was regularly tried and made absolute, for the reason assigned, it appearing to the court that the injunction had never, in contemplation of law, taken effect, and hence the relators violated said injunction by voting said shares of stock at said election, and acted in contempt of same.

Thereupon, the. plaintiff in injunction proceeded against relators by a rule for contempt, which was regularly and properly tried, and they were adjudged and declared guilty of contempt.

These substantial facts were returned by the respondent judge in his answer, and lie thereupon affirms that he had the power and jurisdiction to so adjudge and decide, and that, under this state of facts, this court will not inquire whether they constitute a just and ample foundation therefor, and prays that the writs applied for be refused.

This case falls within the principle announced in State ex rel. Barthet vs. Judge, 40 Ann. 434, which was an exactly similar case, and in which similar relief was prayed for and refused. This Court said:

Such proceedings, in cases of contempt, can never be annulled, unless the court had no jurisdiction, or judicial power to make the order disobeyed, etc. * * Hence it is, that, when it is found that the court has such jurisdiction and power, and has proceeded in the manner and form required by law, the proceeding must remain unaffected, however erroneously the court may have determined the issue before it.
It has, consequently, been uniformly held that under an application for a certiorari, the intrinsic correctness of the judgment complained of could never be considered when the court had such jurisdiction and power and exercised it in the proper form, and the inquiry, when the court liad sucli jurisdiction and power, must he restricted to the intrinsic correctness of the decree.”

Again: “Finding, therefore, that, in issuing the injunction the court exercised a jurisdiction vested in it; that the injunction wns a proper exercise of judicial power; that the disobedience of such an order was punishable as a contempt, and that the proceedings were regular, wo conclude that, as wo have no concern with the question, whether the act charged was or not committed, or did or not constitute a contení])!, we are powerless to grant the relief sought.”

For these and other reasons assigned in that case, the writ of certiorari must be refused, and with it falls the requested prohibition.

It is, therefore, ordered and decreed that the preliminary order be rescinded and set aside, and that the application be refused wi(li cost.


author: McEnery, J.

text:
    No. 10,271.
    The State of Louisiana va. Charles Sherwood.
    It is not necessary to-set out a copy or fac &vnviUi of an instrument forged, in ilie indictment. If the description of the forged instrument is in conformity to Sec. 1040 It. S., it is suilioient.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Head, J.

      Waller II. Boyers, Attorney General, for the State, Appellee.

      B. Ij. ' Belden for Defendant and Appellant.
   The opinion of the Court was delivered by

McEnery, J.

The accused was indicted, and convicted of forgery. He has appealed. His defense is “that the order charged to be forged is not copied into the indictment.”

The instrument forged is described in the indictment by the name by which it is usually known, and the designation is in conformity to the provisions of Section 1049 R. S.

It was not necessary to set out any copy or foe simile of the order forged in the indictment.

It is therefore ordered that the sentence and judgment appealed from be affirmed at appellant’s cost,


text:
    No. 10,277.
    The State of Louisiana vs. Sylvester Hamilton.
    A trial judge does not err in refusing to give to the jury a charge already covered by previous charges. Ho cannot be required to reiterate unnecessarily tho exposition already made by him, of the law applicable to the case, which was not excepted to and which is not charged with not containining, or covering*, tho special charge asked.
    In order to determine whether the trial judge erred in refusing to charge the jury as to tho law of the case, the bill to his ruling* must show that the circumstances or facts before tho court justified a request for the charge. Particularly must this be done in cases in which the charge asked relates to the weight to be or not attached to the circumstance of tho flight of the accused. In the absence of such statement, the appellate court has no authority to say that the charge was improperly declined.
    A PPEAL from tho Twenty-Sixth District Court, Parish of Jefferson.

      Walter II. Rogers, Attorney General, for tho State, Appellee.

      Ghas. A. Baquié for Defendant and Appellant.
   Tho opinion of the Court was delivered by

Bermudez, C. J.

Tho accused, prosecuted and committed under a charge of murder, hut sentenced to hard labor for life, complains, in a bill of exception and in a motion in arrest of judgment, that the district judge erred in refusing to charge tho jury:

1. That it is within the province of the jury to determine whether at the time of the shooting, the accused had reasonable grounds to believe himself in danger of losing Ms life or of great bodily harm and had no other apparent means of escape than to take tho life of his adversary;

2. That the presumption of guilt resulting from flight applies generally to crimes committed secretly; hut, where the killing lias taken place in a public fight and before witnesses, the presumption does not apply.

In justification of his refusal so to charge, tho trial judge says that he did so because tho first charge asked had been already covered by him on the subject of self-defense and what constituted self-defense, and because the second was not considered good law.

I.

The judge was not bound to repeat a ebargo already given. Ilis refusal to give the charge first requested, implies that it was a proper one, for he distinctly says that it had previously been given. His reason clearly was: that he would not unnecessarily reiterate a charge, however well founded in law, which he had already given to the jury, the less so as he had accompanied it with appropriate explanations of self-defense and of its ingredients. As well might he have been asked to repeat again and again, any and all charges previously given.

Not even an intimation is made that the charge asked and refused, was not, as stated by the judge, covered by previous charges.

II.

If it be true that the second charge asked is one well founded in law, the accused has not submitted the question in the manner required, to enable this Court to say that it was improperly declined and ought to have been given.

In the case of State vs. Melton, 37 Ann. 77, after a review of the authorities on the question of prescription in cases of flight, which may become one of a series of circumstances from which guilt may be inferred, this court has said, that, when the killing has taken place in a public flg'ht, in the presence of witnesses; when there is no dispute that the defendant did the act; when the only question is whether the circumstances established self-defense or a mitigation of the crime to the grade of manslaughter, it is obvious that the flight of the accused would have no appreciable weight in determining those questions.

The court'then reviewed the circumstances of the case as presented, and considering the obscurity of the bill, the immateriality of the flight, the absence of any allusion to it as a circumstance imputing guilt, in the charge of the judge, or in the special charges asked by the defendant, it declared itself satisfied that it had no influence in the case and that, even if the ruling were erroneous, it did not prejudice the fair trial of the accused and would not justify a disturbance of the verdict.

In the present case the bill does not especially show, as it ought to have done, all the circumstances of the killing, so as to bring the matter within the provision of the law. Among other things, it does not state that the only question was, whether the act was or not done in self-defense, or was or not such as would have justified a mitigation of the crime to the degree of manslaughter. It may be, and in the absence of a clear showing to the contrary, this court must infer that, under the circumstances of the case, as developed before the trial judge, and of which it knows nothing, the charge was properly declined.

Ju d gm ent affirm ed.