text:
    No. 8918.
    John Janney vs. John J. Brown.
    In an action for the settlement of a commercial partnership, it is 'unnecessary to join, as party plaintiff, the apparent transferee of a portion of the partnership interest, if it appears that such transferee ¶-as a person interposed, -with no real rights in the premises.
    In a litigation growing out of a-written contract between parties as common carrier, parol testimony is admissible to prove a subsequent verbal agreement, conferring certain privileges to the managing partner of the concern, such as carrying certain merchandise on the partnership boat for such partner free of charge.
    APPEAL from the Civil District Court for the Parish of Orleans. . Larnrus, J.

      JS. M. Barran• for Plaintiff and Ax>x>ellee.

      Singleton, Browne d¿ Ohoate for Defendant and Ax>x>ellant.
   The opinion of the Court was delivered by

Pociié, J.

This is a suit for the settlement of certain items alleged to have been omitted from the liquidation of a partnership formerly existing between plaintiff and defendant as common carriers.

The record shows that in December, 1875, plaintiff who owned two-thirds of the steamboat “Gov. Allen,” and who represented the other owners, entered into a notarial contract with the defendant with a view to run said boat, as carrier of freight and passengers, between New Orleans and Bayou. Sara, on the Mississippi river.

The main stipulations of the contract provided that Brown should liave the exclusive management of the boat, for which he was to receive a salary of $400 a month, fifteen per cent of the net profits of the boat’s earnings, and to have the privilege of carrying on the boat free of charge, the United States mail during the continuance of a contract which he had with the Government as mail carrier between New Orleans and Bayou Sara.

The contract was to last during the existence of the boat, and it further obligated Brown to furnish to Janney and other owners, a weekly statement of the business of the boat.

It appears that Brown then owned a sugar plantation on the river a short distance above Baton Rouge, and that during the continuance of the contract, he carried from New Orleans to his plantation large quantities of merchandise and other plantation' supplies, for the transportation of which he paid nothing to the boat or his co-partners.

The principal object of this suit is to obtain from defendant a full account and settlement of the charges which are due as freight on. such merchandise and plantation supplies, which freights are alleged to exceed two thousand five hundred dollars.

For defense, Brown first presented an

EXCEPTION.

Ho contends that plaintiff is without capacity to stand in suit alone, and that Charles T. Beard and Thomas P. Leathers, who were joint owners of the boat, should have been made parties, in default of which the present action cannot be maintained.

From the evidence taken on the exception, we are satisfied that T. P. Leathers, who was a creditor of Janney, on account of a transaction with Benson, a previous co-owner of the Gov. Allen,” had no pro-prh tary interest in the boat, and had, therefore, no concern with the contract between Brown and Janney. The other third of the boat, which was. really owned by Conery, but which stood in the name o.f Coleman, rvas subsequently transferred by the latter to Charles T. Beard, a half-brother of Brown, and the bar-keeper of the boat. But the testimony shows to our entire satisfaction that in this transfer Beard was a person interposed for the real and true purchaser, who was John J. Brown himself, and that Beard never did truly acquire the slightest interest in the ownership of the boat, or in 'the partnership formed between Janney and Brown. We deem it unnecessary to detail the reasons which have led us to this conclusion.

The exception of want óf propea' parties, was, therefore, correctly overrided.

On the Meeits.

The defendant urges that in a subsequent agreement between Jan-ney and himself, made verbally, he was allowed the privilege of carrying free of charge, all articles of plantation supplies shipped from New Orleans to his plantation in West Baton Rouge, and that such articles were thus brought free of charge on the “Gov. Allen” during the entire continuance of the partnership in question.

The report of experts appointed for the purpose of ascertaining the amount of charges due on these things under card rates, or ordinary rates, shows that the hill for such freight would have amounted to $2555 22.

The judgment of the lower court is in favor of plaintiff for the sum of $1448 27, and defendant appeals.

On the trial below plaintiff urged a claim of nine hundred dollars, for a like sum charged to have been misapplied by Brown, and for which it is urged that he should be held responsible.

As the district judge'gave no reasons for his judgment, we are not informed of the disposition which ho made of that claim, and whether it forms any part of his finding in favor of plaintiff.

But be that as it may, we think that the charge should be rejected.

1. Because the pefition contains no allegation touching such a charge, the demand is restricted by the pleadings to an account for alleged unsettled freight earnings of the boat.

2. But as evidence on the question was admitted without objection, we have considered the same and have, therefore, reached the following conclusion:

That the conduct of Brown in making the outlay of that amount was at the time sanctioned and was subsequently and unreservedly ratified by Janney.

The amount was entrusted to one H. C. Young for the purchasing of stock in a railroad connecting the town of Clinton and Port Hudson, a shipping point on the Mississippi river, the object being to obtain a voice in the board of directors of the* road, so as to secure shipments on the “Alien” from that corporation. Through the, inMelity of the agent,the scheme failed and the. money was lost. Under the circumstances developed l>y the testimony, ayo hold that the- loss Avas that of the partnership, and that, it should not be visited exclusively on BroAvn. The investment, when made, met Avith no objection from Janney, on AArhom the money Avas drawn under Brown’s orders, and by Avhom it Avas paid, Avith full knoAvledge of the projected venture.

The issue is thus limited to the alleged verbal agreement touching BroAvn’s right to carry his up-freights free of charge. Its main support is his oaa'u testimony. He states that after the execution of the contract Avith Janney, and on the same day, he remarked to the latter that he had forgotten to stipulate concerning the carrying of his up-freights, to which Janney had answered that it was a trifling matter, and that he (Brown) slnndd go on and run the “ Allen ” just as he had ran the “ Pike.”

In that connection, the record shows that the “W. S. Pike,” which was oAvned exclusively by Brown, had been ran by him, in the same trade, since her construction to the clay when she was destroyed by Are a short time previous to the date, of this contract, and that the “Allen ” Avas to liaA'o been, as she was, under the contract, placed in that trade in her stead, Avith the same days of departure and arrival. As the sole owner of the “Pike,” it stands to reason that Brown paid no freight charges on his own shipments from this city to his plantation, and it is undisputed that Janney knew it.

Hence-Ave construe his answer to Brown’s remark meaning unequivo--cally that touching his up-freights, Brawn would have the same privileges on the “Allen” AAdiich he. had enjoyed on the “Pike” when he was running her in the trade on Avliich they Avere together venturing with the partnership formed on that day.

To corroborate his testimony AAdiich Avas in the main denied by Jan-ney, the defendant offered the testimony of McCann, who Avas pi’esent at the conversation, and of Oonery aaJio was a part-OAvner of the “Allen.” On objection of plaintiff’s counsel the testimony was excluded on the ground that parol evidence cannot be admitted against or beyond Avhat, is contained in the Acts and under the provisions of Article 2276 of our Civil Code.

The agreement shown by Brown’s testimony, added nothing to and detracted nothing from the contract of partnership. His testimony Avas properly admitted to sIioav a subsequent A7erbal agreement on the subject of a matter which formed no part of the written contract and wlúcli had not been mentioned or discussed at the execution of the act. Tt was right and proper that he should have been allowed to corroborate it by other parol testimony. This rule is well settled in our jurisprudence. Cunningham vs. Caldwell, 7 Rob. 520; Mathias vs. Lebut, 10 Rob. 94; Jamison vs. Ludlow, 3 A. 492.

The judge, therefore, erred in rejecting the proffered testimony. As it comes up with the record under the bill of exceptions, we have considered it and give it due weight.

McCann testified that he was present at the conversation related by Brown, and he corroborates the latter’s testimony thereon.

Conery, the co-owner, testifies that the “Allen” had been running-in opposition to the “ Pike,” with a resulting loss to her owners of $30,000, and that the contract with Brown, had proved to be the salvation of. the former, by reason of his efficient management and of his great prestige in the Bayou Sara trade, and that if he had been consulted touching Brown’s request for the free transportation of his up-freights, he would have cheerfully made that concession, and many others, with a view to secure his valuable co-operation in the business of the “Allen.”

Our conclusion is that Brown’s defense is fully made out by the evidence, and that the judgment of the lower court is erroneous.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s claim be rejected and his action dismissed at liis cost in both «courts.


source: Caselaw Access Project

author: Todb, J.

license: Public Domain

text:
    No. 9038.
    The State of Louisiana ex rel. Richard J. Williams vs. A. E. Livaudais, Judge of the Twenty-fourth Judicial District and R. T. Beauregard, District Attorney.
    Under that oíanse of the Federal Constitution giving Congress power to regulate commerce with foreign nations, and among the States, it became vested with authority over the subject of the pilotage of vessels in all the ports of the Union.
    Congress lias, however, never so legislated as to repeal or supersede the laws of this State on the same subject.
    Neither the Act of June 1,1874, nor the regulations of the Secretary of "War under it, had such effect.
    So, where one holding a license, as pilot, from the United States Local Inspectors of the port of Hew Orleans, is being prosecuted for an alleged violation of the State law concerning the pilotage of vessels to and from said port of Hew Orleans, before a State court, the power or jurisdiction of such State court to entertain the prosecution and punish the offender, is not affected or abridged by any law of Congress, or order or regulation of any "Federal officer, or by an injunction from a Federal court directed against the parties charged with instigating the prosecution.
    PPLTCATION for Prohibition and Certiorari.

      JS. 11. MeOahb foY the Relator.
    1. Congress alone has power to regulate commerce with foreign nations and among ihe several States (Constitution, Art. 1. Sec. 8). The power to regulate commerce includes the regulation of navigation, and pilotlaws are regulations of navigation. 12 How. 299
    2. The States can provide rules and regulations on the subject of pilotage only in the absence. of the exercise of that power by Congress and if Congress has acted on the same subject, in so far as the South Pas9 is concerned,'thero is no placo left for the operation of the State pilot laws over that locality. 2 Wal. 450,
    3. The pilot laws of this State have been repealed or superseded by Act of Congress, of June 1, 1874, in so far as Eads Jetties and South Pass are concerned. The interpretation placed upon this act by the Secretary of War, the officer designated “ to establish such regulations respecting the use of, or passage through such channel, as he shall deem needful to fully protect the channel and to facilitate the excavation, improvement and use thereof,” must be followed and cannot be called in question by the courts. The Reporter, Yol. Ill, December 29, 1883, p. 228; 11 Wall. 650; 7 Wall. 347.
    4. The practical construction given to this Act of Congress, by the Secretary of War, in the regulations issued by him and-acted upon by all parties interested, should be considered by the courts in interpreting the statute and, in case of doubt, be deemed conclusive. 21 How. 35; 24 HI. 27.
    f>. An act declared lawful by a solemn decree of the United States Circuit Court, cannot be considered and prosecuted as a crime by a district attorney of the State, thereunto authorized by the District Judge — especially where such act arises under and involves the construction of a Federal statute. Judicial comity between the State and Federal courts induce them to% respect and defer to the decisions of each other upon matters within their jurisdiction. 33,A- 39; 10 Wheat. 160.
    6. The Constitution and laws of the United States are supreme and, to prevent collision between State and "National authority, the final decision upon all such questions arising in regard thereto, should rest with the courts of the Union, Cooley’s Const. Limitations, p, 12; Wheat. 334-336.
    7. Criminal prosecutions cannot he instituted and carried on in a State court in violation of an injunction issued out of a Federal court, especially where defendants in injunction are the prosecuting witnesses. In such case this Court will interfere to prevent a conflict of jurisdiction. 5R. 29.
    8. The Act Ho. 63, Extra Session of 1877, as well as all the State pilot laws, must be strictly construed, because the former is a criminal statute (Potter’s Dwarris, p. 245), and the latter create a monopoly and confer exclusive privileges on the Branch Pilots of this port. Sedgwick's Statutory Construction, p. 293; 3 E. &B., Q. B. 889; 21 Conn. 294-306 ; La. Constitution, Art. 248.
    9. Pilots are not public officers. Their avocation is a private profession, trade or calling. R. M. Charlton’s R. 310 and 311. In Admiralty a pilot is regarded as a mariner or seaman (Desty’s Shipping and Admiralty, § 141). and pilots’ fees fixed by State Statutes are recoverable in the Admiralty Courts of the United States. 13 Wal. 236; 101U. S. 520; Lord Tenterden’s Treatise on Shipping, Part 2, oh. 5, sec. 1, p. 148; 10 Pet. 108.

      James B. Beckwith for tlie Respondent.
    1. Under tlio restrictions contained in tho fifth sub-division of section 9, article 1, of the Constitution of the United States, and in the present state of Federal legislation, Congress lias no power to repeal the pilot laws in force in any State, without the repeal extends to all of tho State, harbor, seaport and pilot laws of all the States.
    2. The pilot laws nf this State are in full force and effect over all of tho waters at tho mouth of the Mississippi river, in all of the passes, and have not been repealed by any Act of Congress, or by tho act or regulations adopted by tho War Department of the Government of the United States, either directly or by implication.
    3. The pilot laws of this State are in full force and effect, not only in the passes and several mouths of tho Mississippi river, hut also at. sea, over waters adjacent to tho coast of tho Stato. off tho several mouths of the passes of tho Mississippi river; and. under tho provisions of Act Uo. (53, of tho Acts of 1877, offenders can bo lawfully punished for illegally piloting vessels without being lawfully licensed, even where the offense is committed or commenced within five miles to the seaward from the mouths of tho passes. Wilson vs. McJSFamee, 12 Otto 572; K. S. sec. 2594-2709.
    4. The Act of Congress, approved dune 1, 1874, entitled, “An Act to facilitate ilia excavation of and to protect certain works of improvement at the month of the Mississippi river,” related to and is, in effect, confined to certain works of excavation at that time being directly excavated and carried on by the Government of tho United States, by the expenditure of money directly appropriated for that purpose, to he expended under tho direct control of officers of the War Department; and not to any works carried on by Eads and his associates, at their risk, to ho paid for only in the event of the work being successful ; and does not apply to the South Pass, being improved by Eads and his associates.
    5. Under the terms of the Act of June 1,1874, no power was conferred upon tlio Secretary of War, sufficient to warrant him in taking possession of any territory or waters within tho limit of tho State, so as to impair the full force and effect of State jurisdiction and laws while so in possession: nor can this he dono without, the express consent of the State, formally and legally granted.
    6. So much of the Act of Congress, approved June 3, 1875, entitled, “An Act making appropriations for the repair, preservation and completion of certain public works on rivers, ha/rbors and for other purposes,” as authorizes a contract with Eads and his associates for jetties and improvement of tho channel of South Pass, places tho work entirely out of tho control,'direction and interference of the General Government and contemplates only improvements by tho contractor at his risk. The act does not. permit the Secretary of War to assume any control over the waters of that pass; but, on tho contrary, prohibits him from attempting any control whatsoever over tho navigation of that pass; and does not repeal, alter or change tho pilotage laws of tho State; and all the pretended regulations relating to South Pass, promulgated by tho Secretary of War, are both impertinent interference with tho affairs of this Stato. within its own limits, and aro null and void.
    7. The Act of this Stato, approved April 13, 1877, upon which tho informations referred to in the petitions of relator are based, is valid and in full force and effect. Tho Twenty-fourth Judicial District Court, in and for tho parish of Plaquemines, has full and competent jurisdiction to try and determine the issues made and punish the offender in the event of conviction.
   The opinion of the Court was delivered by

Todb, J.

The relator was charged, by informations filed in the District Court of the, parish of Plaquemines, presided over by the lion. A. E. Livaudais, with several violations of Section 2 of Act Ho. 73, of 1877, of the General Assembly of this State, which section reads as follows:

Section 2. Be it further enacted, that whoever shall be guilty of acting or attempting to act as pilot to any vessel, inward or outward bound to and from the port of New Orleans, who is not a duly licensed branch pilot, shall suffer fine not exceeding the sum of one hundred dollars, or imprisonment not exceeding two months, or both, at the discretion of the court.”

He was arrested under these informations and gave bond for his appearance before the saicf court.

He has applied to this Court for writs of prohibition and certiorari, directed against the judge of said District Court of Plaquemines and the district attorney for said parish, with a view to arrest said prosecutions and have the proceedings relating thereto declared null and void.

Alternative writs were granted by this Court commanding the judge named to show cause why the relief sought should not be granted, and his answer has beou tiled within the prescribed time, denying, for reasons which .will be more fully noticed hereafter, that the relator is entitled to the writs asked for.

The grounds set forth in the petition, on which relator bases his application are, substantially, these :

He alleges that he holds a license from the United States Local Inspectors of the port of New Orleans, under authority of which, and likewise under the protection of a restraining order issued by the United States Circuit Court at his instance, he was engaged in piloting vessels from the sea and said port of New Orleans, through the Jetties and South Pass, when the said prosecutions were instituted against him for the alleged violation of the State law referred to. That said prosecution -was instigated by the Branch Pilots of the port of New Orleans. That the said State law or statute, which he was charged with violating, was inoperative in the South Pass of the river and the Jetties, where relator was acting as pilot at tliq time of his arrest, for the reason alleged, that the said law or statute was in direct violation of the Act of Congress, approved June 1, 1874. That the said District Judge, Hon. E. A. Livaudais, refuses to be bound by the construction placed upon said Act of Congress by the Secretary of War and the United States Circuit Court.

The respondent judge justifies the proceeding before his court on the following grounds and for the following reasons set forth in his answer:

“ 1st. Because the Acts of Congress authorizing the States to legislate upon the subject of pilotage within their territories have never been repealed.
2d. Because the laws of the State of Louisiana, enacted under said authority, have not been repealed or superseded by any Act of Congress, nor by the Act of June 1, 1874, directing the Secretary of War to assume control of the channel at the mouth of the Mississippi river in course of excavation and improvement by the Government.
3d. Because under the said last mentioned Act of Congress, of June 1, 1874, the authorities delegated to the Secretary of War to establish regulations to protect the channel, etc., are special, should be strictly construed, and cannot be extended by implication and that the powers therein granted do not justify an interference with the pilotage laws of this State.
“ 4th. Because, in assuming control of paid channel at the mouth of the Mississippi river, Congress has in no manner divested the State of jurisdiction over that part of her territory where the said channel and works are situated.
“ 5th. Because the Circuit Court of the United States has no jurisdiction to enjoin, prevent or impede the execution and enforcement of the Criminal Statutes of this State.”

The application for the writs in question, is made under Article 90, of the present State Constitution, clothing this Court with supervisory powers over the proceedings of inferior courts; and the issues raised by the petition of the relator and the answer of the district judge, as above set forth, present a proper case, in our opinion, for the exercise of the powers conferred by that article and we cannot decline to consider them.

I.

For a proper understanding of the subject of this controversy, it is necessary to premise that the pilotage of vessels entering or departing from the port of New Orleans has been regulated by State legislation, which is to be found embodied in the Revised Statutes, from section 2686 to 2706 inclusive, with the amendments thereto, including that of 1877, above quoted, under which the prosecutions complained of by the relator were instituted.

These statutes, in brief, define the qualifications of pilots, provide for their appointment by the Governor of the State, the giving of bond and security by the appointees; prescribe the duties to be performed by them and the extent of their cruising ground or territory, etc.

The important question presented for our solution is, whether the above laws axe still in force, or whether they have been abrogated, repealed or superseded by any Act or Acts of the Congress of the United States or other competent Federal authority or their due administration and enforcement inhibited or interfered with by the action or proceeding of the Federal court, mentioned in relator’s petition.

To answer this question satisfactorily, it is essential, in the first place, to summarize the several Acts of Congress on the subject of pilotage.

II.

It may be considered as settled that, under section 8, article 1, of the Constitution of the United States, which vests Congress with power “to regulate commerce with foreign nations and among the several States,” that department of the Federal Government had control over the subject of the pilotage of domestic and foreign vessels to and from all the ports of the Union, subject to the restrictions found in section 9 of the same article, which provides that “ no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.”

The inquiry is whether Congress has exercised that right and exercised it in such a manner as to abrogate or impair the force of the State laws on the- same subject.

This leads us to review, briefly, the action of Congress upon this question of pilotage and the several acts relating thereto, and some adjudications of the Federal courts bearing on their construction.

1. The first legislation we find is the Act of 1789, passed at the first session of Congress, now section 4235 of the U. S. Revised Statutes, which declares:

Until further provision is made by Congress, all pilots in the baps, inlets, rimers, harbors and portas of the United States shall continue to be regulated in conformity with the exisimg lams of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for that purpose?"

This act was construed by the Supreme Court of the United States to be virtually an adoption or recognition by Congress of the State laws regulating pilotage. Cooley vs. Board Wardens, 12 Howard, 299-312; Wilson vs. McNamee, 12 Otto, 572; Ex-parte Hager, 14 Otto, 520; Ex-parte McNeill, 13 Wall. 236.

2. Next, was the Act of March 2, 1837 (U. S. Statutes 4236), authorizing a vessel entering or departing from a port situated upon waters forming the boundary between two States, to employ a pilot licensed by either State.

3. Tlieu followed the Act of August 30, 1852, entitled “An Act to amend an act to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steam, find for other purposes»” It is an act consisting of forty-four sections. It provided for the examination and licensing.of pilots by collectors of the port and supervising inspectors of districts. By its terms it applied tó and embraced domestic, vessels propelled in whole or in part by steam and made it unlawful to employ anyone as pilot on such vessel, unless he held the certificate of the inspector. It repeals all laws inconsistent therewith.

rt is unnecessary to recite its provisions more’at length. They are very full and voluminous and might seem, at first blush, to be intended to supersede the State laws on the subject of pilotage; but, in the case of Steamship Company vs. Jaliffe, 2 Wall. 450, the Supreme Court of the United States held that the act in question did not repeal the State legislation concerning port pilotage, recognized by the Act of 1789, above cited. This decision referred specially to the pilot laws of the State of California, but, it is equally applicable to those of this State, from a similarity in the provisions of the laws of the two States.

The Court, in that decision, declared that: “The clauses respecting . pilots in the act (Act 1-852) relate, in our judgment, to pilots having charge of steamers on the voyage and not to fori pilots; and the provision that no person shall be employed or‘servo as a pilot who is not licensed by the inspectors has reference to employment and service on the voyage generally and, not to employment and service in, connection with ports and harbors

4. Subsequently, the Act of February 28, 187.1 (U. S. Statutes, sec. 4444), was passed, which, though repealing the Act of 1852, enacted that “ nothing in this act shall be construed to annul or affect any regulation established by the laws of any State requiring vessels entering or leaving a port of any such State, OTHER than coastwise steam vessels, to take a pilot duly licensed or authorised by the laws of such State, or of a State situated upon the waters of such Slate."

5. We now come down to the Act of Congress of June 1,1874, which, it is expressly charged in relator’s petition, abrogated and repealed the' pilotage laws of this State, so far, at least, as relates to the South Pass of the Mississippi river, where, it is alleged, the acts or services of the relator were performed, that gave rise to the prosecutions of which he complains. This act is entitled “An Act to facilitate the execution of and protect certain public works of improvement at the mouth of the Mississippi river,” and reads as follows:

“That from- and after the passage of this act the Secretary of War is directed to assume full control- over the particular channel at the mouth of the Mississippi river, in course of excavation or improvement by the Government of the fruited States, so far as may be necessary to the carrying on and protection of sueh excavation and improvements and until the same shall be-completed; and he may establish such regulations respecting the use of or passage through sueh eh an ml as he may deem needful to fully protect the channel and to facilitate the excavation, improvement and use thereof, thmh regulations shall be promulgated by publieatipn thereof for ten days consecutively, in two daily papers published in New Orleans, Louisiana, and the same may in like mauner, be changed from time to time ; and- any person interfering with, or obstructing, or attemptingt to obstruct the said-improvements, and any person who shall wilfully or negligently strand or sink any boat or craft in said channel, or cause, any impairment, injury, filling up or shoaling therein, shall be guilty of a misdemeanor a/nd on conviction thereof, shall be punished by a fine not exceeding five Immd/red dollars or imprisomnent not exceeding six months, or both, at the discretion of the court.”

The conclusion that anything in the provisions of this act abrogated or superseded the operation of the pilot laws of this State could, in our opinion, only result from a strained construction of its language.

The control that the Secretary of War was authorized or directed by its terms to assume, was obviously and according to the express language of the act, for the sole purpose of carrying out and protecting the excavations and improvements then being made by the General Government in the river, with not one word therein of reference to the pilot laws, either Federal or State, or that would imply that it was intended to modify or in any manner affect them.

Besides, by the very terms of the act, the control over the channel of the. river, given thereby, was only to last till the completion of the worlcs; and, aecording to the admissions and averments in the petition, the improvements mentioned or referred to in the not were, completed at the. date of the filing of the petition.

Moreover, from the date of the act and the history of its passage and the report made thereon prior to its passage, we do not believe that it had any reference, whatever to the South Pass or the Jetties therein, as assumed by the relator’s counsel. This is the more evident from the fact that the works and excavations then being done and to be protected, it is stated and not denied, were in the Southwest Pass and the work of constructing the jetties in the South Pass, under what is known as the Eads contract, was not then begun. The act known as. tlie Jetty Act, which covered this contract with Eads, was not passed till March 3, 1875; and we look in vain for any clause in that act that enlarges or even refers to any control of the channel by the Secretary of War, conferred "by the previous Act of 1874.

It was under this Act of 1874, that that officer issued his regulations referred to in the relator’s petition and which axe relied on as an authoritative construction by him of its meaning, intent ard operation and as binding on all courts, Federal and State, and a construction which, it is contended,, is absolutely inconsistent with the longer existence of the pilotage laws of this State, so far as relates to the'South Pass of the river.

It may well be questioned whether the chief of au3' of the departments of the Federal Government, at Washington, could so construe an Act of Congress, as to give it the effect of completely destroying a. State law, and that his construction is so absolute and conclusive as to deprive a State or Federal court of all power, right or jurisdiction to interpret said act. We are, however, not required, under our view of the case, to decide that question. We cannot reproduce hero and embody in this opinion, on account of their great length, the regulations of the Secretary of War referred to, dated September 5, 1881, but we have critically examined them all, as well as previous rules and orders on the same subject by his predecessors, and we do not find, even giving them the broadest scope, that they in any way or in any part conflict, necessarily, with the existence, operation and administration of the State laws on the subject of pilotage.

We do not think they were ever designed to have any such effect, even could that officer have believed that such sweeping powers were delegated to him and could legally be exercised by him under color of the Act of Congress mentioned. The manifest design and purpose of these, regulations were for the protection of the improvements in the South Pass, and it may well be doubted whether the Act of 1874, which the officer invokes a,s his authority, had any reference whatever to the works or improvements intended to be protected by the regulations in question.

The contention of the relator’s counsel, that the State laws on this subject have been repealed or superseded to any extent by Federal legislation or Federal authority is, therefore, in our opinion, without merit.

III.

It is, however, claimed that the enforcement of these State laws, at least as far as relates to this prosecution for their violation, pending before the District Court of the Parish of Plaquemines, is rendered nugatory aud void from the effect of the injunction issued by the United States Circuit Court, heretofore mentioned and set out and relied, on in the jmtition. It is urged that the power of this State court, in view of the restraining order from the Federal court, was comijletely paralyzed, either to prosecute or punish for any such violation of the State law.

This order or injunction was issued in an equity proceeding, instituted in the United States Circuit Court, by the relator, against a number of persons alleged to be members of an association of Branch Pilots, formed under the laws of this State, to prevent any interference by them or any of. them with him, the relator, in the discharge of Ms duties as a pilot, under the Acts of Congress, known as the Steam Navigation Acts,” and whilst engaged in piloting vessels in the South Pass of said river.

The defendants by the order are enjoined from any such interference or from making any affidavits against him for piloting- in said pass.

We cannot perceive how this proceeding in the Federal court can have the slightest effect upon the administration or enforcement of the criminal laws of this State, even with respect to pilotage, in any court of the State.

The injunction is not directed against the respondent judge, nor against the district attorney who filed the informations, nor against any officer of said court. There is nothing, therefore, to impede, limit or restrain the full exercise of the powers and jurisdiction of the court and its officers over all criminal matters which, under the law, may come before them.

If the court is left free and untrammelled by the order in question, the fact alleged that the individuals against whom the injunction from the Federal court is directed, are among the witnesses, whose names are inserted in the information to sustain the prosecutions, is without any legal significance. If these individuals have in any manner violated the injunction, they may be subject to punishment for contempt and become liable to be dealt with by process from the Federal court, but that fact, admitting it to be so, does not in the least affect or impair the powers of the State court for the prosecution of offenses against the laws of the State, or the right of the court to sustain the prosecutions by any evidence within the reach of its process.

Nor can the construction placed by the Federal judge, who issued this order, upon the Acts of Congress, and the regulations of Federal officers, as to their effect upon the State laws, to bo inferred from his action in tlic premises, control or govern the courts of this State in construing the same.

It is also suggested in the brief of counsel that the pilot laws of the State are in conflict with that article of the Constitution of the State, prohibiting monopolies, but, as we do not And this ground set up in the petition, among those therein urged, we cannot give it consideration.

For the above reasons, we con elude that the relator is not entitled to the relief sought, and it is, therefore, ordered and decreed that the restraining order herein be rescinded and the application for a prohibition be refused, and the proceedings be returned to the lower court at the costs of the relator.


author: Fennek, J.

text:
    No. 8763.
    M. Roos vs. P. Goldman & Bro.
    Whore the writ of civil arrest has "been finally set aside by judgment of the court -which issued it, that ierras res judicata as to the wrongiulnesa of its issuance and subjects the party who provoked it to liability for actual damages.
    In absence of proof of malice or want of probable cause, none but aotual damages can be recovered.
    Counsel fees for prosecuting suit for damages not allowed.
    APPEAL from the Tenth District Court, Parish of Fed. River. Logcm, J.

      L. B. Watlcms for Plaintiff and Appellant.

      Jos. II. Bierson for Defendants and Appellees.
   The opinion of the Court was delivered by

Fennek, J.

Plaintiff sued P. Goldman & Bro. on a mercantile account for $448 64, less a credit of $50.

Upon proper averments that defendants were, about to remove from the State permanently, without leaving in it sufficient property to satisfy his demand and expected judgment, plaintiff obtained a- writ of civil arrest, which was executed by the arrest and imprisonment of defendants.

Upon a rule taken traversing the facts, after hearing and trial, judgment was rendered malting the same absolute, setting aside the arrest and discharging the defendants.

Thereafter defendants filed separate answers putting plaintiff’s demand at issue and claiming in reconvention large damages for the wrongful arrest, which was alleged also to have been made maliciously and without probable cause.

On trial by jury, judgment was rendered in favor of plaintiff on Ms principal demand, and, on the reconventional demand, awarding P. Goldman $500 as damages and N. (loldman $750, from which the plaintiff appeals.

We have no jurisdiction over the principal demand nor over the judgment on the rule setting aside the. arrest.

We must treat that judgment as res judicata upon the question that the writ of arrest was wrongfully issued and as fixing the liability of plaintiff for actual damages. Barrimore vs. McFeely, 32 A. 1182; Block vs. Meyers, 35 A. 220.

In this respect, such actions differ from those for malicious criminal prosecutions where, malice and want of probable cause are essential to sustain the recovery of any damages whatever.

But here, we are. only concerned with the question of malice and probable,cause as affecting the measure of damages.

Unless plaintiff’s resort to the remedy of arrest was malicious or without probable cause, he is liable for actual damages only. Byrne vs. Gardner, 33 A. 6.

The evidence convinces us beyond a doubt, that such is the limit of Ms liability in the present case.

The only question is, whether the amounts awarded defendants are in excess of the actual damages established by the evidence.

They were confined in jail for three or four hours.

It would not be useful, and certainly not agreeable, to defendants to recapitulate the evidence showing that they suffered no damage to their business, credit or reputation, and tending to show that, so far as their feelings were concerned, they were rather elated at the prospect of a suit for damages, than depressed by consignment to prison.

The evidence, of counsel on both sides agree in fixing $150 as proper counsel fee for procuring the discharge of the arrest.

The fee of counsel in prosecuting the claim for damages is not a proper subject of recovery. Chapuis vs. Waterman, 34 A. 61.

We are satisfied that in reducing the principal of the amount allowed each defendant to $200, we shall afford them ample relief.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the principal sums allowed therein in favor of P. Goldman and N. Goldman to two hundred dollars each, and that as thus amended the same he now affirmed, said P. and N. Goldman to pay costs of this appeal.


author: Manning-, J. Bermudez, 0. J.

text:
    No. 8946.
    Luc Dobard vs. Charles Bayhi.—Shakspeare, Smith & Co., Third Opponents.
    The purchase of an heir’s interest may he assimilated to that of a hope. If the interest realizes less than was expected, or nothing, the purchaser is none tho less hound for the price.
    The purchaser of such interest in successions composed in part of real estate, at a judicial sale made thereof at his instance, as a judgment creditor of such heir, is hound to pay to the sheriff so much of the amount of adjudication as may he required to meet judicial mortgages registered previous to his own, when the creditors under such mortgages have filed a third opposition asserting their rights, claiming a preference and asking that the proceeds of sale be returned and whore the order of court made in pursuance were served on or service accepted by the sheriff before the time of sale.
    "Where the purchaser does not comply and pay, the sheriff should resoll-on the spot.
    If the sheriff does not resell and permit the adjudicatee to retain, and loss ensues, he can be held responsible to the extent of the loss.
    Whatever the law be regarding the right of purchasers to retain the price of adjudication at judicial sales, to meet anterior privileges, special or other mortgages, it does not apply to a case like tho present one m which tho antecedent creditors step-'in and ask payment, the court orders the sheriff to retain the proceeds and tho opposition and order reach the sheriff before the sale is actually made.
    Where the service is accepted on the day of sale, the presumption is, in tho absence of plea and proof to the contrary, that this was dono prior to the time of sale.
    APPEAL from tlie Twenty-fourth District Court, Parish of Plaque-mines. Livaudais, J.

      JS. II. KoOaleb for Opponents and Appellants.
    1.Where the debtor is insolvent and the property sold the only asset out of which previous judicial mortgages can he paid, they must he satisfied out of the proceeds according to the date of their registry. Rev. C. C. 3322. Qid prior est tempore, potior est jure. 7 A. 344; C.P. 301, 403.
    2.A third opposition is the proper proceeding for a judicial mortgage creditor to assert his privilege where his debtor is insolvent. Pulton vs. Pulton, 7 R. 73.
    3.A sheriff, ordered by the court to retain in his hands out of the proceeds of sale an amount sufficient to satisfy opponents’ claim, should obey such order. If the plaintiff, purchasing at .the sale, fail to pay over tho price, the sheriff should immediately re-offer the property. C. P. art. 689; 31. 294; 8 M. 220; 3 L. 475; 4B. 39G ; 19 L. 307; 2 R. 319; 10 R, 89. The adjudication of itself perfected the purchaser’s title C.P. art. 690. The failure of the sheriff to exact of plaintiff immediate compliance with his bid and the failure of plaintiff to comply, cannot prejudice the third opponent’s rights to be paid out of the proceeds of the property sold. If there are no proceeds in the sheriff’s hands, there should be.
    4.A judicial admission cannot ho gainsaid or contradicted by the party making it. R. C. C. 2291.

      It. T. Beauregard and T, A. Flanagan, contra.

      James Wilhmson for tlie Sheriff.
   The opinion of the Court was delivered by

Manning-, J.

Luc Dobard had executions issued upon several judgments, obtained against tlie defendant Bayhi, which were levied upon Ms property, and advertisement made of its sale. Shakspeare, Smitli & Co. were also judgment creditors of Bayhi with the advantage of a registry of their judgments prior to the plaintiff’s, and they filed their third opposition Before the sale, asserting their superior lien, and praying that the sheriff he ordered to retain in his hands out of the proceeds of sale §1625, the amount of their claim. The sheriff sold the property pursuant to advertisement, and the adjudication was made to Luc Dobard for $3333 33. The pi oces •verbal of the sheriff states that “none of the proceeds were paid over to him, but the same were retained by Luc Dobard.”

When the opposition came on for trial, the plaintiff answered that no title had been made to him, the adjudication had not been perfected, and no proceeds of the sale had been paid to the sheriff, and there was nothing therefore out of which to pay anyone. This was followed by a supplemental answer alleging that “the seizure was abandoned through the sheriff,” and that no satisfaction of the judgments had been entered on the docket, and none made, and that the judgment of the Supreme Court on a rule to cancel mortgages left the plaintiff in the same position he has always been in, with his judgments unexe-cuted.

How such pretensions can be set up by the party who provoked these judicial proceedings is beyond comprehension. The plaintiff provoked the sale and bid in the property, and did not p>ay his bid in cash, doubtless because he was the judgment creditor, awaiting the trial of this opposition before paying. The attempt to foil the third opponent by pleading that no money was paid on the bid, when the pleader is the man who should have paid it, and no title had been made, when he is the person who alone can demand it shall be made, is to trifle with the process of the law.

The plaintiff, in the partition suit in the record, set up his purchase as adjudicatee and purchaser at the sale above mentioned, and claimed that he was owner of the property thus bought, and prayed that he be subrogated to all the lights of his debtor, and the court so ordered. If there is anything to break the force of this judicial assertion of ownership, and judicial decree maintaining it, we have not seen it. The sole source of the ownership is the sale provoked by the plaintiff, and the adjudication thereunder. That adjudication is his title. If he had been the first mortgage or judgment creditor for an amount sufficient to consume the bid, there would have been no need to pay any cash. With a competing creditor claiming priority of payment, and an order of court for service of his process, and service made, the detention of the bid, or so much thereof as was ordered in the hands of the sheriff was the proper thing to be done. That is what was done, except that the sheriff permitted the bidder to keep it.

There, is no escaping the liability for the amount of the opponent’s judgment, it primed the plaintiff’s judicial mortgages. The judgment debtor has no other property. Code Prac. arts. 301, 402; Deneufbourg vs. Didion, 7 A. 344. The sheriff should have compelled the plaintiff to comply with his bid, to the extent of the sum which the court had ordered him to retain in his hands. .Upon non-compliance, his duty is pointed out. Code Prac. art. 689. But the fact is, that the whole affair was managed in the way it was to suit the plaintiff himself. His attorney directed everything. The money was left in the plaintiff’s hands because it need never go out of them, unless this opponent could draw it with the magnet he is now using. The sheriff left it there at his risk. Walker vs. Allen, 19 La. 307. His plain course was to re-offer the property if the bid was not paid. Stoute vs. Voorhies, 4 La. 392; Galliee vs. Garcia, 2 Rob. 319. He is bound with the plaintiff to the ranking mortgage creditor for his claim, duly notified him by the court.

This transcript can be read only with difficulty. The transcripts that have lately come up from the court for Placpiemines parish are written with an ink that is scarcely visible. In future, transcripts that are thus written will be returned to the clerk of the Plaquemines court with directions to rewrite them legibly, and this will be done at his expense. No fees will be allowed for the rewriting'.

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that the third opponents have and recover of the sheriff O. V. Thibaut and the plaintiff Luc Dobard in solido the sum of sixteen hundred and twenty-five dollars with interest as set forth in their judgment, and the costs of both courts.

On ArPLioATiON fok Rehearinc.

Bermudez, 0. J.

The sheriff charges error in the judgment which condemns him to pay to the. third opponents part of the amount of the adjudication to plaintiff of defendant’s interest or share in the successions of his father and mother.

The complaint is indicated on the theory that, as that interest or share did not, in the partition suit, subsequently realize the amount of the bid, he cannot be held. Such defense cannot, avail. That which the plaintiff bought was the hope that the interest or share of defendant in the succession would realize something to satisfy his judgments, in whole or in part.

It is immaterial whether such interest realized anything afterwards. The purchase may well be assimilated to that of the fisher who sells the haul of his net before be throws it, for although he should catch nothing', the sale still exists, because it was the hope which was sold, together with the right to have what might be caught. R. C. C. 2451.

The plaintiff thought that he had bought the interest in question, for he subsequently, in the partition proceedings, was recognized as the transferee of it in place of the defendant, who was there a co-parti-tioner.

Had that, interest realized more than enough to pay the opponents and the. plaintiff, the surplus would have enured exclusively to the latter. He took his chances and cannot complain now that his expectations have been frustrated.

There can be no doubt as to his liability to the third opponents, for he has retained their money, has it and must pay it over to them. With this conclusion he must have felt satisfied, for he has not even asked for a rehearing.

The sheriff has no reason to complain, for the loss is the result of his own dereliction.

Whatever the law be noth regard to the rights to purchasers of real estate at judicial sales .to retain out of the price of adjudication an amount sufficient to satisfy claims, however secured, whether by privilege, special or other mortgage, provided registered previously, it cannot surely apply to cases in which the creditors of such claims intervene by third opposition filed before the sale, asking that the sheriff be ordered to retain the proceeds of sale and where the order of court is made and is notified to the sheriff likewise, before the sale. 1 A. 365; 28 A. 563; 34 A. 58,1.

By reason of such opposition and order thus served, it surely becomes the duty of the sheriff to require from the adjudicatee payment of the price, at least for an amount sufficient to pay the claims of the opponents when allowed. Where the adjudicatee fails to pay, the sheriff should resell on the- spot.

If he does not require payment, but allows the adjudicatee to retain, theu he makes the latter his agent and remains just as liable as if he had actually received the amount.

It is a significant feature in this controversy that the interest seized and sold is the only property owned by the defendant at the time. C. P. 301, 403.

It. is clear that, if the plaintiff and adjudicatee had paid to the sheriff' an amount sufficient to pay what remains due to the third opponents on their judgment, that officer would have had that amount in hand wherewith to satisfy that claim. If he has not it, he has no one to blame but himself. Having undertaken tlie risk of a disobedience of the order of the court, he must stand the. consequences of his own imprudence, and temerity.

In the present instance it appears that tlie opposition was filed, that the Older to retain was made and that service of both was acknowledged on the day of sale. In the absence of plea or'proof to the contrary, the Court will ])resume that all this was done before the sale, therefore- fully in time.

Under such circumstances the sheriff is clearly liable and should be held accordingly.

Rehearing refused.


author: Bermi'pez, O. J. Pooh 6, J.

text:
    No. 8745.
    The New Orleans, Baton Rouge and Bayou Sara Packet Company vs. John J. Brown.
    An application lor further time to file a transei ipt made during the course of a previous extension, and filed in tlio clerk’s office, the court not being in session, is ampio jirotection to the mover.
    The order of tlie court subsequently granting such application retroacts to the day when tlio motion was filed.
    The managing director of a corporation organized for tlie business of common carriers, has no right in law to use for bis personal benefit and advantage, the boats owned or chartered by the company. Hence, in the absence of a special contract or agreement granting him an immunity from charges for freight on his personal shipments, lie must be held liable for payment on his freights at ordinary or card rates.
    Parol testimony is inadmissible to show anything against or beyond what is contained in an act of incorporation or tending to show verbal agreements conferring to one of the incor-porators valuable privileges or prerogatives at variance with the essence ol' tlio act.
    The unauthorized acts of an agent of a corporation may be ratified by the board of directors, and such ratification is equal to a previous authority as in the case of natural persons. The knowledge of tlie board of directors of a corporation of common carriers, that tlie managing director bad assumed and performed the duties of master of one of its vessels, and this acquiescence by long silence, in his line of conduct operate a ratification thereof.
    The agents of a corporation, like tlie agents of natural persons, are entitled tn reasonable compensation for their services. In the absence of a special contract or agreement fixing their salary, the same will be regulated by the custom with regard to the particular services and their value. Ilonce, tlie managing director of a company owning steamboats, who performs the duties of master of one of the boats, when his functions as such are laborious and responsible, is entitled to compensation of the value 'shown by evidence, and for the rate charged, if shown to be acquiesced in by the directors.
    PPEAL from the Civil District Court for the Parish of Orleans-. Ú1. Monroe, J.

      F. H. Farrar for Plaintiff and Appellee.
    1. A managing director of a corporation stands in the relation of a fiduciary or trustee. he cannot oontract with himself, nor take any other position in his own interest which

      is adverse to liis trust. 103 V. S. 657-8:25 B(*avt586: 1 Younge & Collyer C. C. 326; 30 Barh. 553; 37 H. Y. 317; L. It. 3 App. Cases, 1218; 59 Me. 277. The principle is not new in Louisiana. 27 A. 641.
    2. Under tlie Civil Law his disabilities are likened unto tho-e of a tutor: Tutor rein pupilli emere non potest; idque ponigendum estad svmilia: idestadcuratores, procuratoras, et qui NEGOTIA ALIENA GEHUNT. The rule is inflexible. 9 Yroom, 503; 77 Ills. 426; 14 Mich. 477: 1 Younge & Collyer C. C. 326.
    3. In the absence of am resolution or act of the corporate body, granting a salary to the managing director, he is presumed to act gratuitously, and cannot claim any salary on the theory of an implied contract. 6 Allen, 207; 130 Mass. 391; 28 Vermont, 401; 3 B. & Ad. 125; 28Conn. 170; 28 Penn. St. 531; HeclfielcL on Hallways, §176.
    4. If he withdraws, without objection, amounts for his salary, with the knowledge and tacit acquiescence of all the directors, -it amounts to a ratification of his act by the corporation,
    5. But acquiescence necessarily implies two things : knowledge and silence or inaction.
    6. A ratification of an actual or constructive breach of trust would require the unanimous consent of all the directors, or of all the stockholders. 30 Barb, 553, 577; 11 H. I. 195;
    31 Ind. 283, 348; 2 Hed. Hep. 877; Aug. & Ames on Corp. 11th Ed. § 304. The knowledge or consent of a director acting* adversely to the corporation cannot bind the corporation 12 C. E. Green, 33; 47 Iowa, 575.
    8. Such knowledge must bo brought homo to the corporation, and the p&i'sonal knowledge of members of a partnership, as to tho terms of any contract mter se, is not their official knowledge uor is it tho knowledge of their co-directors of tho coi-poration. 3 Md. Oh. 381; 12 Bush,451; 26 Conn.376; 38 Conn. 208; 20 Mich. 419; 121 Mass. 490; 11 Yroom, 435; 47 Iowa, 575.

      Singleton, Browne & Choate for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermi'pez, O. J.

On the return day, i. e., January 15th, ult., tho appellant obtained an extension of ten days to file the transcript. On the 23d following, within that term', the court not being in session, he ñled a motion for an additional ten days. On the 29th, which was the first judicial day thereafter, he obtained an order allowing him ten days, from the date of the motion, filed in the clerk’s office. On the 1st of February, he procured another order granting him fifteen days. The transcript was filed on the 14th of February.

The motion to dismiss charges that it was filed too late.

The first delay was to expire on the 28th of February. Delaney vs. Rochereau, 34 A. 1123. As court was not sitting, the appellant had a right to file the motion, which he did, on the'23d, in the clerk’s office. State vs. Stillman, 31 A. 162.

It is all that he could have been expected .to do and he has done it. The filing of the motion, five days before the delay had expired, was ample protection to him.

The second delay allowed would have expired on the 4th, hut three days before it was out, i. e., on the 1st of February, the appellant procured a last extension, which was to end on the 15th of February. As said, the transcript was filed on the 14th of February.

We have held: That an application filed with the clerlr within the course of extension, when the court is not in session, was seasonably made and justified the extension granted on the next court day, and that the effect of the order retroacted to the date of the application. 33 A. 132 Chrétien vs. Poincy.

The transcript having been filed in time, the motion to dismiss is refused.

Oír the Merits.

Pooh 6, J.

The plaintiff corporation was organized by notarial act' under the general laws of the State, on June 7, 1878, with the following incorporators: John J. Brown, B. W. Cook, C. T. Beard, T. P. Leathers, B. S. Leathers and John Janney.

Its object was to establish a business, of common carriers for freight and passengers, by one or more steamboats to run between New Orleans and Bayou Sara, on the Mississippi river.

Among other stipulations contained in the charter, it is provided that the corporation should be controlled and managed by a board of directors composed of three stockholders, with a manager, who were selected for a term of five years; the first board was composed of John J. Brown, T. P. Leathers and John Janney, and John J. Brown was selected as the manager, whose functions and powers were stipulated to be as follows: “To appoint such officers, clerks and agents as may be necessary for the transaction of the business of the company, who shall be under his control and he .shall fix their salaries.”

In furtherance of the object of the enterprise, the board of directors built the steamer “Edward J. Gay,” which began operations in the contemplated trade on October 7, 1878, under the command of Capt. John J. Brown, with the assistance of Capt. A. Dugas. The latter was registered at the Custom-house as the captain of the boat, and who received a salary of $75 a month, paid by Capt. Brown out of his salary of $400 a month, which he retained, under his authority as manager of the company, out of the earnings of the boat. A small portion of Capt. Dugas’ salary, amounting to $772 50, was paid out of the funds of the boat.

That arrangement, under which the “Gay,” and at times another boat as a substitute in her place, were run in the Bayou Sara trade, continued until the month of October, 1881. On or about that time, difficulties sprang up between Capt. Brown and Ms co-directors and different arrangements were made in the management of tbe boat and in the transaction of the company’s business.

The trouble arose from the two other directors’-denial of ('.apt. Brown’s right to appoint himself as captain of the boat and to fix his salary at $400 a month; and from the contesting his right to carry, free of charge, all merchandise and other supplies shipped on the boat from New Orleans to his three plantations situated on the banks of the river between Baton Rouge and Bayou Sara.

The object of this suit is to compel him to account to the company for the funds which he retained in payment of his salary at $400 a month from October, .1878, to September, 1881, for the value of the freight on all up-shipments of merchandise, etc., to Ms plantations, and for the passage fare of many persons whom he carried free of charge on the company’s boat during the same space of time.

His defense is in substance that the enterprise of building the steamer “Edward J. Gay,” and running her in the Bayou Sara trade, was a continuation of the same business previously established by Janney, Leathers and himself, as partners, in running the steamboat “ Governor Allen,” which had been dismantled in 1878, many of her materials having been used in the construction of the Gay;” that the latter boat was virtually owned by the same parties, and that he had continued, as manager of the new companjq the identical functions and duties which he had previously filled as the captain of the “Allen,” with the same salary, the same privileges and the same prerogatives. And he further pleads the ratification of his acts by the board of directors.

• Both parties recognize plaintiff as a corporation, thus eliminating from discussion the question of the true and legal nature of the organization.

The district judge rejected plaintiff’s demand for the restitution of the amount retained by the defendant Brown in payment of his salary, as manager, and condemned him to pay the following sums:

For wages paid by the boat to Oapt. Dugas. 772 50

For passage fare on laborers for his plantations. 195 00

Total...$5772 84

with legal interest from judicial demand. Defendant appeals and plaintiff moves for an amendment of the judgment, with a view to recover the amount claimed in restitution of the wages retained by the defendant Brown during tlie three years of his management, which are now in litigation.

First directing our attention to the defense, which rests on the averment that the corporation which built and owns the steamer “ Edward J. Gay,” is virtually the co-partnership which fitted up and run the “Governor Allen” in the Bayou Sara trade, we find that defendant’s position on that point is absolutely untenable.

A similar point was ma.de by this defendant in the case of John Janney vs. J. J. Brown, decided this day (30 A. 118) in so far as Oapt. Leathers is concerned. We held in that case that the latter was not a party to the partnership which carried on the common carrier’s business on the “ Governor Allen,” and that he had no proprietary interest therein. Hence, he cannot be affected by any contract or stipulation made in or controlling that partnership.

And in addition, the act. of incorporation in this case contains no reference to the previous enterprise, and it affirmatively purports to be a new and entirely different and distinct contract between new and different parties. C. T. Beard, T. P. and B. S. Leathers, and W. B. Cook, incorporators in the new enterprise, had no connection with the previous partnership. We therefore find no error in the ruling of the district judge by which he rejected the parol testimony offered by defendant with a view to show that the new enterprise rested on the same foundation as the previous partnership, and that independently of the stipulations in the act, the parties had covenanted to allow the same powers and the same prerogatives to the defendant.

Such elements of contract were inconsistent with the very essence of the act of incorporation, under which all corporate powers were vested in a board of directors and not in a single individual, as was the basis of the partnership touching the “Governor Allen.”

The proffered testimony would clearly have shown a state of things contrary in their effect to what was contained in the act, and it thus fell under the prohibition of Article 227G of the Civil Code.

These views are sufficient.,to justify the exclusion of such testimony, independently of the consideration that the contract set forth by the defendant is not even alleged to be the act of the corporation contracting through its established board of directors, the only mode of binding the corporate body in a contract. Bright vs. The Metairie Cemetery Association, 33 A. 58; Angel and Ames on Corporations, p. 278, and authorities therein quoted.

Under these conclusions the defense is restricted to the alleged ratification of his acts by the defendant’s co-directors.

Such ratification must flow from 'the acquiescence of the directors with knowledge of the facts.

Oil the question of the free transportation of defendant’s up-freights and of his laborers, the record is absolutely barren of any evidence showing that Leathers had ever acquired any knowledge of the fact that no charges were made on Brown’s up-freiglits.

It is shown that janney had such knowledge, that he had, at one time, remonstrated about this matter with Brown, and that under the'pressure of a threat made by Brown to abandon the enterprise and, to run an opposition boat, he had given his assent as an individual, to the exercise of the prerogatives claimed by Brown. But the record shows that Leathers was absent at the time and that he was entirely ignorant of the negotiations. Hence, the corporation could not be bound by the acts of Janney, one of the directors, dealing with Brown in his interests as a planter.

For the same reasons the district judge correctly held that the defendant should be charged full rates on his freights. Reductions on card rates could only result from a contract or covenant to that effect.

The agreement urged by the defendant was an entire immunity from charges on his up-freights, or in the alternative, a ratification of his claim to such an immunity. Either hypothesis excludes the pretension of an agreement for lower rates.

We shall now consider the question of the right of defendant to retain the salary which he received from the boat for three years, under the light of plaintiff’s acquiescence in the defendant’s course in the premises.

Plaintiff’s counsel argues with force that, as no salary was stipulated in the contract, none can be claimed by the defendant and he cites numerous authorities in support of liis proposition.

Were we dealing with a claim urged by defendant for such a salary, we would cheerfully yield the correctness of that proposition,’ as it is amply supported by law and overwhelming authorities.

But the attitude of this case is to the reverse; the defendant is not suing for a salary not provided for or contemplated in the act of incorporation, but he is sued for the reimbursement of his salary already received and alleged by him to have been thus received within the knowledge and with the assent of the corporation, manifested through the acquiescence of its board of directors, represented byt Janney and Leathers.

The ground-work of plaintiff’s argument is that a procuration or mandate is gratuitous unless there has been a contrary agreement, C. C. art. 2991; and that jurisprudence has settled the rule that directors and other officers of corporations, even managing directors and presidents, are presumed to act gratuitously and .cannot claim a salary on the theory of an implied contract. Under a slight reservation, we must concede the correctness of the rule. But we must hear in mind, as shown by numerous authorities, that the rule applies to such officers cktmwny or suing for a salary. And hence, the rule must yield some of its force when applied to cases where the officer or agent has already and continuously received for several years a regular salary, alleged to have been legalized or ratified by the continuous acquiescence of the. corporation or of his principal.

But it must not be presumed that the rule is absolute in ail cases; some exceptions must he recognized, especially when the duties to be performed are onerous and toilsome. The services of the managing director of a corporation, including the management or command of a steamboat, must he conceded to be of that class. The rule invoked by plaintiff has, therefore, been modified in certain cases and very respectable authority has laid down the doctrine as follows: “The agents of a corporation, like the agents of a. natural person, are entitled, in legal presumption, to be paid for their servic.es by the principal, the corporation, what they are reasonably worth. The officers of a corporation, who are to-receive any compensation, are usually provided for by regular salaries. Tf there be no salary and no particular contract, much must depend, as in other cases, upon the custom with regard to compensation for the particular services and the expectation of the parties growing out of it.” Angel and Ames on Corporations, 11th Ed. $ 317.

Hence, it has been held that a hank clerk, for whose salary no provision had been made by corporate action, was allowed to recover a salary on a qwminm mermt. Waller vs. Kentucky Bank, 3 J. J. Marsh, 206.

And, on the other hand, a ban]? president, under similar circumstances, was denied the right to recover compensation. 6 Allen, 207; Sawyer vs. Bank, 130 Mass. 391; Pur vs. Bank.

In a case where the president of a'railroad company claimed compensation for services rendered in his said capacity, in superintending the. construction of a depot, this Court held, in keeping with that rule, that he conld'not recover. Levisee vs. Shreveport R. R. 27 A. 641.

The duties rendered by a hank president, or a railroad president-acting as superintendent of a construction, are not necessarily laborious, like- those of a clerk, hence the distinction has been, recognized and made by the courts.

Now, in the case before us, it is shown that the duties performed by the defendant were laborious, toilsome and very responsible, and that such functions are customarily paid for and liberally compensated.

From the testimony of several steamboat captains and of others examined as experts, it appears that under the circumstances surrounding this particular business, and in consideration of the defendant’s pecu-* liar fitness and of his exceptional energy and zeal, his services as manager of the company and of the boat were worth the amount retained, four hundred dollars a month. i

It is objected that under the charter, Brown had no authority to appoint himself as master of the company’s boats, and no right or power to fix his salary. But again we are forced to consult the acts of the directors in connection with this double exercise of power. The evidence is overwhelming on the point of the directors’ (Janney and Leathers) knowledge and acquiescence in the premises.

Janney once raised an objection, but as in the case of Brown’s up-freights, he immediately receded from Ms objections and at once gave his written consent to Brown’s pretensions.

The salary as paid was charged up every week in the books, which were accessible to the directors and which were frequently examined by them and by others for them. This charge continuously occurred for three long years and no objections were made thereto. A difference exists between the showing of the books on the question of the defendant’s salary, and his up-freights. As no charges were made on the latter, these items did not figure on the financial books of the concern.

These shipments went no further than the memorcmckvm books, for the guidance of the receiving- and discharging clerks, and were not brought to the knowledge of the other directors.

In Ms testimony Capt. Leathers states that he expected that Capt. Brown would be compensated for his services and the record teems with evidence that they were very valuable to the company.

To the argument that the rate of his salary was exorbitant, the answer of the record is that the salary covered the services of two employees— one a sailing master, known to be a man of experience and ability in his line, the other an active business man, a shrewd manager, who was very favorably known and very influential in the trade,’ and who was unrelenting in his efforts to secure business for the boats and to enhance the interests of the company.

The objection that he was very frequently absent from the boat, is met by the showing that whether on shore or traveling on other boats, lie never lost sight of the interests intrusted in his hands; that he constantly labored for the promotion of the boat’s business and that the vessel was always skilfully manned by Ms substitute, Capt. Dugas.

We find abundant evidence showing the unmistakable acquiescence of his co-directors in the manner in which he performed his duties as their manager, and in the amount of salary which he received in compensation thereof. Hence, the prayer for amendment of the judgment must be declined. The conclusions of our learned brother of the district bench are correct on every branch of the case.

The judgment appealed from is therefore affirmed, with costs.


author: Poché, J.

text:
    No. 9001.
    Jack Hardy vs. James H. Lemons.—S. W. Street, Intervenor.
    The joint owner of movable i>roperty can make a valid lease of tlie same, when authorized theieto by his co-owners.
    In case that one of the co-owners does not participate in authorizing the lease, his subsequent ratification of the same gives full validity to the contract.
    A lessee of movable property cannot be legally divested of his possession of the thing leased, by means of a sale of the same by the lessor to a third party.
    PPEAL from the Civil District Court for the Parish of Orleans. JT.A_ Bightor, J.

      L. O'Donnell for Plaintiff and Appellee.

      Geo. L. Bright and Bayne <& Denégre for the Intervenor, Appellant.
   The opinion of the Court was delivered by

Poché, J.

The salient facts of this suit are -stated in the opinion of the case No. 8903, between the same parties, just decided.

After the sequestration of the mare Lucy Johnson, Street intervened in the partition suit for the purpose of enforcing his contract of December 12, 1882, and of asserting his rights of possession of the mare thereunder.

His demand was resisted by plaintiff on the ground that Lemons had no right or authority to bind Triskett' and Mullen, his co-owners of the mare, in a contract of- lease; that there could he no lease without a fixed price; that the pretended lease was the result of a conspiracy between Lemons and Street, with the intention of defrauding the lawful owners of their possession and use of their property; and that the mare was not in Street’s possession when sequestered. Plaintiff’s defense was sustained in the lower court, whence the iutervenor prosecutes this appeal.

The evidence is conflicting; but, after a careful analysis of the record we find satisfactory proof of the following facts:

1. That Lenions.was the owner of one undivided third of the animal, which was then in his possession, and that he was without funds or means necessary to a proper care and training of the animal.

2. That, he had full authority and power, from Triskett, to control and clisi>ose of the mare as he thought proper.

3. That after making the alleged contract with Street, he notified both of the joint-owners of his action, hy letters properly mailed to each at his residence.

4. That by letter from Mullen to Lemons, the former unequivocally ratified the contract aforesaid, and highly approved of the same.

5. That the mare was in the custody and possession of Street, when she was seized hy the sheriff'.

The fact that at the very moment of the seizure, Lemons was leading her around the race track, did not affect Street’s possession under his contract. She was kept, fed and handled at his stable near the race course.

The feature of the contract which provided, as a consideration, the division of the mare’s net earnings, instead of a fixed price, did not’ invalidate the contract as a lease. The price of the contract of lease may consist in a portion of the fruits yielded hy the thing leased. ’ Civil Code, art. 2671.

The contract relied upon by the iutervenor, therefore, embodies all the elements of a lawful contract of lease, fully binding on Lemons and Ms co-owners, who could not, in law, defeat intervenor’s rights under Ms lease by a sale of the thing leased.

Hence, we conclude that he was illegally and wrongfully deprived of Ms possession of the mare, and that the lower court erred in dismissing his intervention.

The judgment appealed from.is, therefore, annulled, avoided and reversed. And, it is now ordered and decreed that the mare, Lucy Johnson, was wrongfully sequestered from intervenor’s possession; that iutervenor was entitled to the possession, control and use of said mare from the 12th of December, 1882, to the 12th of October, 1883, and that bis right to recover damages for said wrongful sequestration be reserved against all parties responsible therefor.

All costs incurred in the sequestration and costs of this appeal to be paid by plaintiff and appellee.

Rehearing refused.


author: Town, J.

text:
    No. 9041.
    The State of Louisiana vs. Philip Watson.
    When in a prosecution for murder tlie evidence shows that the accused was the aggressor and pursued the deceased with a drawn knife, with which he afterwards gave the mortal stroke, testimony of the dangerous character of the deceased was properly rejected.
    It is unnecessary to review the ruling of the trial judge, admitting as a dying declaration a statement of the deceased to the effect that the accused had inflicted the mortal wound, in view of the fact that the accused set up the pica of self-defense, which admitted the killing. The accused could not, therefore, he prejudiced hy tho admission of the declaration, as it only went to prove an admitted fact.
    Where, at the opening of the trial, an order is made for the removal of the witnesses from the courtroom, and a deputy sheriff, a witness for the State, inign'oranceof the order, came into the room during tho trial, such fact would not of itself operate absolutely to the exclusion of his testimony. The judge could, in his discretion, admit it.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      J. G. JSgan, Attorney General, for tlie State, Appellee.

      L. Jf. Suilion for Defendant and Appellant.
   The opinion of the Court was delivered by

Town, J.

Tlie defendant appeals from a sentence of ten years’ imprisonment at bard labor for manslaughter.

He supports his appeal by tliese bills of exceptions:

1. The first, hill was taken to the refusal of the trial judge to admit proof of the violent or dangerous character of the deceased, offered in support of the plea of self-defense.

Tho judge excluded the testimony for the reason, substantially, that the evidence shows that the accused was the aggressor, and pursued the deceased some distance with a drawn knife before resistance was made by the deceased and before the accused killed the deceased hy stabbing him with the knife.

This all appears in the bill. The ruling under such a state of facts was correct. To admit the proof offered there must have been threats made and communicated, followed by some act on the part of the deceased to induce the belief or apprehension that the threats were about being carried into execution. Wharton Grim. Law, § 041, and authorities there cited; State vs. Ricks, 32 A. 1099; State vs. Jackson, 33 A. 1087.

2. The second bill is taken to the admission of a declaration of the deceased, after receiving the wound, that such wound was inflicted by the accused. It was offered and received as a dying declaration.

Considering the character of the defense, as shown by the first bill above recited, that the killing was justifiable because done in self-defense, and that it is an elementary principle that such idea admits the killing, we cannot discover of what possible significance the admission of the declaration in question could have been. It at most could only have amounted to cumulative evidence of a fact that was already admitted by the accused; that is, of the killing of the deceased by him. Had this declaration referred to any of the attending circumstances of the homicide, tending to establish the guilt of the accused, then the question- of its admissibility c ould properly have arisen. But it (lid not so refer, but related only to the fact whether the accused inflicted the fatal wound. The admission of the declaration could not therefore have possibly prejudiced the accused, and it becomes unnecessary to decide whether it was properly received or not.

3. The third bill is to the admission of the testimony of a witness for the State, against the objection that an order for the removal of the witnesses from the court-room had been made at the. opening of the trial and that this witness had remained therein, or returned to the room in disobedience of the order.

It appears that this witness was a deputy sheriff and was absent from the court-room when the order was given and knew nothing of it.

We think, under these circumstances, that the testimony of this witness was not absolutely inadmissible, but was subject to the discretion of the judge; and we cannot say that its discretion was improperly or unwisely exercised in this instance. Bishop on Crim. Pro. vol. 1, secs. 1086, 1087, 1088.

The judgment is therefore affirmed.


author: EeNNER, J.

text:
    No. 8367.
    Frank E. Foucher vs. Duncan F. Kenner.
    A sheriff or United. States marshal cannot he made responsible, in damages, for executing a judgment, recognizing a privilege upon property provisionally seized in the suit, by the seizure and sale of said property.

      ■Where, in such a case, upon the demand of a third person claiming ownership of said property, an indemnity bond has been furnished, conditioned fortlie payment of such damages as might be recovered against the marshal in consequence of such seizure, the surety on such bond cannot be held for any damage other than those for which the marshal might have been liable, and, inasmuch as the marshal could be responsible for none, the action must fail.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Olías. 8. Hiee for Plaintiff and Appellant.
    The laws of the State giving to sheriffs the right of demanding from a party seizing personal property, claimed by a third person, abo?id of indemnity, is, by Act of Congress, made applicable to the marshal of the United States, in similar case of seizure under process, mesne or final, issuing out of the Federal courts sitting in the State. Rev. Stat. of La. sees. 3579, 3581,3584; Rev. Stat. U. S. secs. 914, 915, 816; Acts of Congress of 1824, U. S. Stat. at Large, vol. 4, pp. 62 and 63 ; Moneare vs. Zuntz, 11 Wal. 416, 421; Barras vs. Bid well, 3 Woods 5, 8, 9.
    The light to demand such indemnity bond extends to all cases where the property so claimed was seized, whether under mesne or final process. Rev. Stat. of La. 3579.
    Even under the theory of defendant, the marshal was not protected iu seizing other property than that specifically mentioned in tho writ; and. therefore, if he failed, through his own fault or the directions of a party, to keep himself strictly within the mandatory clause or the process, he was liable to the person damaged by his acts, and had the legal right to release the property seized at tbe demand of a third person claiming superior title, or to demand'bond of Indemnity from the party seizing. Buck vs. Colbath, 3 Wal. 343 et seq.¡ Elmore vs. Hufty, 13 A. 227.
    A third person is not estopped from suing on an indemnity bond, so given, because, after the same was given and assigned to him, he attended the sale and bid on his own property, and afterwards bought it at private sale from the person who purchased it at the marshal’s sale.
    The lien of the landlord for rent does not extend to movables removed more than fifteen days from the leased premises, or which, though removed within a shorter time, have ceased to be the property of the lessee. C. 0. art. 2709; Sillmanvs Short, 20 A. 513,* Hughes vs. Caruthers,20 A. 530: Bailey vs. Quirk, 20 A. 432; Merrick, Race <fcFoster vs. LaUache, 27 A. 87.
    The facts proved in this case establish ownership in plaintiff in, at least, 3390 cross-ties woi'th $1,258 06, which were not subject to tbe li$n of the landlord but seized and sold at the landlord’s instance.

      J. D. House for Defendant and Appellee.
    1. The United States marshal is without authority to exact a bond of indemnity for tbe execution of process issuing from a Federal court. The State statutes authorizing a sheriff to exact such bonds has not been adopted by any statute of the United States.
    2. A sheriff cannot be made responsible for the execution of a judgment by seizure and sale of any object upon which the judgment confers a privilege 13 A. 227 ; 14 A. 142.
    3. The officer being without right to require a bond in the premises, it is a non-judicial bond, and no action lies upon it 27 A. 557; 23 A.222 ; 7A.570; J&.539; 28A.244; 16 La. 174; 22 A. 535.
    4. Where no breach of the condition of a bond is alleged or shown there can be no recovery upon it. 12 How. Rep. 168; 14 Chicago Legal Hews, 297.

      5. One who purchases property is estopped from disputing the title of his vendor. 5. Hoi), 352; lb. 518 ; 8 Hob. 33J : 26 A. 188; 15 A. 531: lb. 68-1.
    6. Where articles are sold hv •weight, tale or measure, the sale is incomplete as against third person, until they are vreiglied, counted or measured, because until then there is no delivery. O. 0, 2458; 12 Hob. 51; 21 A. 414: 1 Domat, p. 213, sec. 7; 15 A. 438; 10 A 249; 17 A. 146.
   The opinion of the Court, was delivered by

EeNNER, J.

The defendant is sued as surety upon a bond of indemnity given by him in a certain suit of Davis vs. Hodges, in the United States Circuit Court.

In that suit, the plaintiff, as lessor, sued the defendant, as lessee of certain real estate, and caused- a writ of provisional seizure to issue, under which, the marshal seized sundry movables, including a large number of cross-ties which are the subject of the instant controversy.

Judgment was rendered for the rent claimed, with privilege upon the property provisionally seised.

Execution was issued, under which the property, on which the privilege had been recognized, was seized and advertised for sale.

Thereupon, the present plaintiff notified the marshal that he was the owner of certain of the cross-ties seized and warned Mm against proceeding with the sale thereof, under penalty of damages. On this claim, acting in supposed pursuance of section 3579, Revised Statutes, the marshal called upon the suing creditor for a bond of indemnity, which was accordingly furnished and on which this suit is brought.

Numerous objections are interposed to the validity of this bond, only one of which it is necessary to notice.

It is urged that the bond is non-judicial, because, the property having been seized in execution of a judgment recognizing a privilege thereon, the marshal had no discretion hut was required by law to seize and sell it regardless of mere non-judicial claims by third parties, and could have, incurred no responsibility therefor.

The position would have been impregnable as a ground for refusal, on the part of the seizing creditor, to furnish the bond of indemnity'. Such refusal would not have justified the marshal in releasing the property seized, without being responsible to the creditors in damages for so doing, as provided by section 3581, Revised Statutes.

But, it is forcibly urged that, the creditor, having voluntarily furnished the bond, is estopped from now urging this objection to its validity, because bis action misled the claimant and induced him to rely on the bond and to abstain from invoking other remedies.

The estoppel claimed seems well founded; but, however that may be, it cannot serve to enlarge the terms and conditions of the bond itself, or to extend the liability of the surety beyond their strict limits-

What are those terms and conditions Í

They are clearly expressed in the law itself, which provides that the bond shall be conditioned for the payment of such damages as the said sheriff (marshal) may sustain in case sad seizure may have been illegally and improperly made.” R. S. 3579.

The bond itself recites : “ the conditions are that the obligors shall save, harmless, the said United States marshal and shall defend every suit or suits that may be instituted against him, and shall well and truly pay all damages or judgments, with interest and costs, that he may be made liable for, in consequence of his having seized and detained the aforesaid property.”

Obviously, both under the law and the terms of the bond, the obligors are only liable for such damages as might have been recovered against the marshal on account of the seizure and sale of the property.

It is thoroughly settled in the law of this State that a sheriff cannot be made responsible for damages for executing a judgment, decreeing a privilege on certain property, by the seizure and sale of said property. In a case thoroughly similar to this, the Court said: “Defendants acted under a writ issued in conformity to a judgment decreeing a privilege on the vessel. .They had no discretion and were obliged to follow the order of court. The mere notification by plaintiff, to them, of his property in the vessel, could not be regarded, when they had a writ informing them of the inivilege and commanding them to execute the same. If there were any legal grounds of opposition, the plaintiff ought to have resisted the execution of the judgment by some one of the ways provided by law.” Elmore vs. Hufty, 13 A. 227; Hunter vs. Bell, 14 A. 142; see also, Ran. vs. Katz, 26 A. 463.

The fi.fa. in the case before us, recited the judgment and the privilege recognized thereby, upon this property, then already in the marshal’s custody under the writ of provisional seizure. He was bound to seize and sell it, unless restrained by judicial authority, and could have incurred no responsibility, in damages, therefor.

It follows, necessarily, that plaintiff’s action on this bond must fail.

Judgment affirmed.

Rehearing refused.


author: Manning, J. Poohé, J.

text:
    No. 8954.
    The State of Louisiana vs. John Kane and Gustave Hunter.
    The trial judge has large discretion in granting continuances, which will not ho interfered with unless for good cause.
    A refusal to permit a prisoner’s counsel to ash a State witness on cross-examination, if he was not anxious to have the prisoner convicted, is good ground for reversal of the judgment, hut when the question was answered without hindrance, and the court afterwards interfered solely to prevent the intimidation of the witness, it is not error.
    Great latitude is permitted in the cross-examination of witnesses on a criminal trial, and the feelings, motives and prejudices of a witness may he prohed hy either side*
    "Want of service of a copy of the indictment must be pleaded m limine^ and cannot he moved in arrest of judgment. A fortiori must non-service of a list of witnesses, upon whose testimony the hill was found, be pleadedbefore going to trial, even if the prisoner was entitled to have such list delivered to him.
    A prisoner has not the right, under our statute, to have delivered to Mm a list of the witnesses who appeared before the grand jury, and therefore it is not essential with us that the names of such witnesses shall he indorsed upon the hill.
    APPEAL from the Criminal District Court for the Parish of Orleans. Roman, J.

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

      F. O. Zaeharie and L. Mcurrero for Defendants and Appellants.
   The opinion of the Court was delivered by

Manning, J.

The defendants were indicted for the murder of one John Leahy. Hunter was acquitted, Kane was convicted without capital punishment, and was'sentenced to hard labor for life. He appeals, and relies for reversal on these points:

1. He was indicted on March 12, 1883, and arraigned on same day. His trial was fixed for April 25, and due notice given to him. On that day, at Ms instance a continuance was granted. The case was again set for trial on May 3, and on that day a second continuance was granted on his motion, and the case fixed for May 14, when a third continuance was prayed by him on the ground of newly discovered evidence. The judge refused it because he believed the only object of the defendant was delay, and that proper diligence had not been used.

The affidavit of the prisoner fails to allege that the facts, which he expects to prove by the newly discovered witnesses, are within their exclusive knowledge, and from his own showing there were many persons present. The trial judge is entrusted with large discretion in the matter of granting continuances, and we disturb the exercise of it only for good cause, which is not shown here. State vs. Nelson, 28 A. 46; State vs. Hornsby, 33 A. 1110.

2. The second bill was to a remalle of the judge which is alleged to be an expression of opinion on the credibility of a witness.

The witness was ashed by the defendant’s counsel on cross-examination, “are you anxious to have this man convicted "l” who answered promptly and decidedly, “no.” Then the judge remarked that the question under the circumstances was not a proper one, and that “nothing in the manner, still less in the answers of the witness, justified the counsel in thus rudely addressing him — that had the witness showed unwillingness or anything akin to prejudice, the court would allow counsel to ascertain that fact, but it never said or intimated even remotely anything of the credibility of the witness.”

The judge was in error in stating the question was not proper. A refusal to permit that question to be answered would have been good ground for reversal. State vs. Adams, 14 A. 620. But there was not a refusal — the witness had already answered the question — on the contrary, the judge said he would allow counsel to ascertain whether there was unwillingness to testify or prejudice on the part of the witness. His interference seems to have been to prevent rudeness to the witness — to prevent his intimidation — and it is certainly within his jirovince to do that. Great latitude is permitted in cross-examination on a criminal trial, and it is perfectly x>roper and may often be necessary to jirobe the feelings, x>rejudices and motives of a witness. Questions directed to that end are permissible, but when' once answered without evasion or quibbling, there seems no reason for a repetition of them. They may be repeated however, and in various forms, whenever the witness shuffles, or is obdurate, or from any other cause it becomes necessary to test his fairness and impartiality. The witness in this case had answered the question with directness and promptitude.

3. Arrest of judgment was moved for that the names of the witnesses, upon whose testimony the indictment was found, are not indorsed upon it.

It might be sufficient to say that the objection, if valid, comes too late, and cannot avail the prisoner in a motion for arrest. It has been held repeatedly that want of service of a coi>jr of the indictment must be pleaded before going to trial. State vs Jackson, 12 A. 679; State vs. Fuller, 14 A. 667 and authorities cited in both of these decisions; State vs. Clark, 23 A. 194. If the prisoner cannot plead non-service of the criminal charge against him in a motion to arrest, a fortiori he cannot jilead non-service of the names of the witnesses by whom that charge is to bo supported, in that way. But as the defendant’s counsel urges with earnestness that the defect or omission is of essence and uot merely of form, and the point has never been adjudicated in this State, it may be well to notice it further.

At common law no such right existed, but it was conferred by the Statute of Anne, and since then, this and kindred matters have been regulated by statute. The right to have. a. list of the witnesses duly served appears in all the statutes, along with the right to have served a copy of the indictment and of the venire. Under the statutes of many of our States the prisoner is entitled to have both a copy of the indictment, and a list of the witnesses examined before the grand jury, before going to trial. 1 Bishop, (him. Proc. sec. 959, and hence originated the practice of endorsing the names of the witnesses upon the bill. In the States that have no statute of their own upon the matter, their practice is regulated by the Statute of Anne, as ours would be by virtue of the Act of 1805, directing that criminal proceedings shall be governed by the practice in common law courts unless otherwise provided. But we have otherwise, provided by our own statute, which requires that an accused person “shall have a copy of the indictment and the list of the jury who are to pass on his trial delivered to him,” Rev. Stats, sec.. 992, and omits ex industria to accord to him a like delivery of a list of the witnesses upon whose evidence the bill was found, or of those who are to testify against him on the trial. That is, therefore, the rule for our practice, and it has been observed in this case.

Judgment affirmed.

Rehearing refused.

Dissenting Opinion.

Poohé, J.

I dissent from the opinion of the majority on the application for rehearing. I believe that defendant’s second bill of exceptions should have been sustained.