author: Nici-iolls, C. J.

text:
    No. 13,666.
    Succession of Miss Emily C. Sinnot vs. Hibernia National Bank et als.
    Syllabus.
    1. There can be, in Louisiana, no legal manual gift "causa mortis” of a movable whether it be a corporeal or an incorporeal movable.
    2. Donations "causa mortis” differ from donations "mortis causa”; the former are not authorized in Louisiana by its law. Property can neither be acquired nor disposed of gratuitously, unless by donations inter vivos or mortis causa.

    APPEAL from the Civil District Court, Parish of Orleans— Ellis, ■/.

      Frank McGloin for Executrix and Universal Legatee, Plaintiff and Appellant.

      Horace E: TJpton and Solomon Wolff for Mrs. George Langtry, Defendant and Appellee.

      Bernard McQloshey for Hibernia National Bank, Defendant, Appellant.
   The opinion of the court was delivered by

Nici-iolls, C. J.

Statement op the Case.

Nicholes, C. J. Mrs. Nita Bohn, wife of O. Otto Weber, in her petition in this case, avers that the late Miss Emily O. Sinnot, at the date of her death, owned twelve shares of the capital stock of the Hibernia National Bank of New Orleans, said stock being covered by certificates Nos. 50 and 128 for nine shares and three shares respectively.

That she is the testamentary executrix and residuary legatee of Miss Emily Sinnot and as such entitled to take possession of all the property of said deceased. That considering and believing that said certificates were lost or destroyed, she applied to said corporation for new certificates, and' at its instance advertised for them for ninety days as lost; that applying at the end of that delay, she was informed by the officials of said Bank that Mrs. Annie Thompson, wife of George Langtry, had presented a written claim to said stock, declaring herself in possession of the certificates and owner of the stock. That said claim was pretended merely and untrue and her pretensions without warrant, and constituted a slander of title and had caused petitioner, as residuary legatee, damages in the full sum of two hundred and fifty dollars for annoyance, loss of time and attorney’s fees, for which she and her husband, who authorized and participated in her pretensions, were liable to her in solido.

That there are dividends accrued and to accrue on said stock to which petitioner in her said capacity was entitled, and payment whereof to her had been refused by the Bank. She prays for citation upon the said Mr. and Mrs. Langtry and the Hibernia National Bank and for judgment against Mrs. Langtry, decreeing the succession of Miss Emily O. Sinnot to be the owner of said stock, condemning Mr. and Mrs. Langtry to surrender said certificates if them they had, and to pay petitioner the said damages with interest; that if said certificates were not in existence the Hibernia National Bank be ordered to issue duplicates as demanded, that said Bank be condemned to render an account of dividends due upon said stock and to become due pending the litigation, and to pay the aggregate thereof to petitioner as executrix.

The defendant, Mrs. Langtry, answered, pleading first the general issue. She admitted having filed a written claim to the stock mentioned and described in plaintiff’s petition, and averred that she did 30 because, in truth and in fact, the said stock was owned by and was t'he property of respondent.

That some time prior to the death of Miss Emily C. Sinnot, viz., in the month of July, 3896, the said Miss Emily C. Sinnot gave and delivered to respondent the certificates for twelve (12) shares of the capital stock of the Hibernia National Bank of New Orleans referred to and fully described in plaintiff’s petition; that the same had been uninterruptedly, from said date, in the possession of respondent as owner thereof, with the full knowledge of plaintiff herein.

In view of the premises respondent prayed that there be judgment in her favor and against plaintiff, decreeing her to be the owner of the said twelve (12) shares.

The Hibernia National Bank answered, first pleading the general issue. It then alleged that there was of record* on the books of the said Bank certificate No. 50 for nine shares and certificate No. 128 for three shares of the capital stock of the Hibernia National Bank in the name of Miss E. C. Sinnot; that one Mrs. A. M. Langtry had notified defendant that she was the holder and owner of said certificate specified as aforesaid. That this defendant was informed that the same were neither nost nor mislaid and, therefore, it could not be compelled to issue to any person or persons new certificates of stock.

That Mrs. A. M. Langtry should be made party to this suit to defend any rights she might have in the premises.

In view of the premises defendant prayed that Mrs. A. M. Langtry be cited, and that there might be judgment dismissing this suit as to it, and that the court render such judgment as would protect this defendant.

The court rendered judgment in favor of Mrs. Langtry and against the plaintiff and against the Hibernia National Bank, decreeing Mrs. Langtry to be the owner of certificate No. 50 for nine shares and certificate No. 128 for three shares of the Hibernia National Bank of this city, and further decreeing that upon the surrender by her of said certificates for twelve shares of the stock aforementioned to said Hibernia National Bank, standing in the name of Miss E. C.. Sinnot on books of said Bank, that new certificates for same issue to said Mrs. Anna Thompson, wife of George Langtry.

It further ordered that plaintiff’s petition be dismissed.

Plaintiff appealed.

■ The certificates declare that Miss E. O. Sinnot is entitled to nine (and to three) shares of the capital stock of the Hibernia National Bank * * * transferable only on the books of the Bank by the said Miss E. O. Sinnot or her attorney on surrender of this certificate.

Opinion.

Mrs. O. Otto Weber, as the testamentary executrix and residuary legatee of Miss Emily O. Sinnot, claims the ownership of certain twelve shares of stock of the Hibernia National Bank to be in the succession of Miss Sinnot, and that the certificates for said shares are in the possession of Mrs. Langtry, who asserts ownership of the shares themselves. She brings this suit to have said ownership decreed to be in said succession and to have Mrs. Langtry directed to deliver the certificates to her in her said capacity. Mrs. Langtry claims ownership of the shares under an alleged gift to her from Miss Sinnot prior to her death.

Mrs. Langtry, as a witness on the stand, testified that she was the owner of the shares of stock claimed, covered by Certificates Nos. 50 and 128; that she had been in possession of the certificates since July, 1896, uninterruptedly; .that they were handed and given to her by Miss Sinnot, and she had them in her possession from that time up to the time of testifying; that she and Miss Sinnot had a conversation with reference to the certificates; Miss Sinnot told witness she should keep them, and she gave them to her saying: “They are yours — at least after my death they are yours.” During Miss Sinnot’s lifetime witness did not consider she had anything to do with them. She said “after roy death I want you to have them,” and she gave them to witness — that was in 1896. The ownership of this stock was to become absolute in witness at the time of Miss Sinnot’s death, but before that she had nothing to do with them. Witness collected no dividends paid upon the stock.

Mrs. Weber was aware that the certificates were in witness’ possession before she became executrix. She became aware of that fact about, a year before Miss Sinnot’s death in 1897 or 1898; she saw them in witness’ possession, she knew that she had them; Miss Sinnot was between eighty-two and eighty-four years of age when she died. She was delicate and had been so for many years. Miss Sinnot lived with witness from 1878 up to .six months of the time of her death; she boarded with witness and paid her board; she died on December 6th. 1897. Witness was not related to her nor was Mrs. Weber. She was an old friend of witness’ and had known witness since childhood. Witness paid her every attention when she lived with her; there was scarcely a day that she was out- of her sight; she was with her all the time, she was very fond of witness and went to live with her by preference.

In addition to this property Miss Sinnot gave her a bed-room set and some table silver which she said should be witness’ after her death; that also was in witness’ possession; she had possession! of it during Miss Sinnot’s life. A part of it was taken during Miss Sinnot’s life, but no matter what she asked for witness would have given it to her during her lifetime. Mrs. Weber knew witness also had the movables and silver.

On cross-examination witness produced the certificates and handed them to counsel of the executrix; saying they were in the same condition all the time; there were several dividends declared on these certificates while they were in witness’ possession; she made no effort to collect any of them; witness recognized them as belonging to Miss Sinnot. After her death they belonged to witness, before her death of course they did not. Miss Sinnot, or somebody else for her, collected the dividends because it was understood they were not witness’ until after Miss Sin-not’s death, just as the bedroom set and the silver. As she (Miss Sin-not) said to witness: “I will give them to you after my death,” naturally she was at liberty to take them at-any time. It was understood between witness and Miss Sinnot that the title of the stock remained with her until she died, and that witness’ right arrived at the moment of her death. There was no mistake about that; nobody was present when this conversation took place; she went into witness’ room and said: “Anna, I want to do something for you when I die, I want you to keep these and when I die this bed-room set and silver and anything else that is in your possession when I die, you can keep.” They spoke about it several times. Miss Sinnot said: “I want you to keep them.”

They were given to witness some time after Miss Sinnot had made her will. She went into witness’ room some six or seven months after the will was made, and she said: “I want.you to keep them after I am dead.” Witness knew nothing of the will then, witness did not expect Miss Sinnot would have a clause in her will to carry out this intention; she gave them to witness just as she did the silver and the bed-room set. Being asked whether the certificates were given to her only in the contingency that they should be witness’ after her (Miss Sinnot’s) death, she answered: “That is right.” Witness did not know to whom they belonged if witness had died first; that was not discussed.

This happened about two years before Miss Sinnot died; during these two years Miss Sinnot collected the dividends. She acted with complete dominion and control over them and she was free to come and get the certificates from her at any time. Witness did not tell any one about this happening between Miss Sinnot and herself. She made no more remarks about this than anything else given to her. It was a matter between witness and Miss Sinnot, just as it was about the other things she gave her. Witness was the only person who knew anything about that conversation.

On re-examination witness stated that Mrs. Weber knew that she 'had possession of these certificates about two or three years before Miss Sinnot died. Before Miss Sinnot gave them to witness Mrs. Weber had never made any demand of witness for possession of the certificates either as the representative of Miss Sinnot before her death or as her executrix, except by advertising for them in the newspapers. She had made no demand either by letter or in person for either the stock or the silver or movables. She had knowledge witness had them; Miss Sinnot, up to the time of her death, could have got them simply for the reason that she said that after her death they would be witness’, and during her lifetime if she had demanded the silver or the furniture she could have taken it. Witness claimed no interest in the stock or furniture or silver until after Miss Sinnot’s death.

The executrix (appellant here) urges that Mrs. Langtry’s testimony, uncorroborated, is'not sufficient to establish title to Bank stock worth twenty-three hundred dollars, particularly title by a manual gift from one dead through private conversation between the parties, and her counsel refer the court to Article 2277 of the Civil Code, and Cavalier vs. Collins, 3 Martin, 189; Derbes vs. Decuir, 5 Rob. 491; Brent vs. Slack, 10 Rob. 371; McCrea vs. Marshal, 1 Ann. 29; Andrew vs. Keenan. 14 Ann. 705; Gardes vs. Schroeder, 17 Ann. 142; Moore vs. New Orleans, 17 Ann. 312; Brady vs. McWilliams, 19 Ann. 433; Cutler vs. Collins, 37 Ann. 97; State ex rel. Care vs. Judge, 37 Ann. 380; Citizens’ Bank vs. Moreau, 37 Ann. 863; also to Succession of Fox, 2 Rob. 299; Succession of Segon, 7 Rob. 112; Bringier vs. Gordon, 14 Ann. 275; Bodenheimer vs. Bodenheimer, 35 Ann. 1007; Wood vs. Egan, 39 Ann. 687.

She invokes the presumption nemo facile presumitw donare and cites Packwood vs. Dorsey, 6 Rob. 331; Cooney vs. Ryter, 46 Ann. 883 and Am. and Eng. Ency. of Law, Vol. 14, p. 1049.

She directs our attention to Articles 1536 and 1538 of the Civil Code, which declare that an act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things such as rents, credits, rights or actions under the penalty of nullity, and that a donation inter vivos even of movable effects will not be valid unless an act be passed of the same' as before prescribed, and that such an act ought to contain a detailed estimate of the effects given.

She admits that by Article 1539 of the Code “the manual gift, that is the giving of corporeal effects, accompanied by a real delivery, is not subject to any formality,” but she contends that the manual gift refers to objects which can pass from hand to hand; that the property must be both movable and corporeal and capable of a “real delivery.” (C. C. 478, Succession of Webre, 3 Ann. 270.)

She contends that when a note payable to order and unendorsed or a certificate of stock unendorsed and not transferred in writing is handed by one person to another, even with the intention to give, the gift is not complete. (13 La. 410; 22 Ann. 144; 31 Ann. 485; 49 Ann. 1424; Am. and Eng. Ency. of Law, Vol. 14, p. 1006.)

That incorporeal rights, not negotiable or endorsed to bearer, are transferred only by formal written transfer in addition to delivery of the evidences of the rights. (C. C. 1905 ,2841; 30 Ann 1425; 35 Ann. 271; 41 Ann. 1425.)

That shares of stock are incorporeal things and can not be donated inter vivos except by act before a notary and two witnesses. (Civil Code, Arts. 460, 1536; 12 Rob. 76; 17 La. 148; 5 Ann. 539; 22 Ann. 97; 27 Ann. 97; 30 Ann. 1381; 50 Ann. 1035; 65 Md. 93; 57 Am. Rep. 301; 2 Gill, J., (Md.) 208; 45 Md. 155; 48 N. J. 455; 10 Pa. St. 373; Colonial Bank vs. Whinney, House of Lords, 11 App. 426.)

That where the certificate of stock is, on its face, not transferable on the books of the company except by the nominee in person and on surrender of the certificate, the mere delivery of the certificate unendorsed and not transferred in writing pa&ses no title. (11 La. 410; 22 Ann. 144; 31 Ann. 485; 49 Ann. 1424; Am. and Eng. Ency. of Law, Vol. 14, p. 1016.)

That a donation inter vivos must divest in the present and irrevocably the interest of the donor in behalf of the donee. Any reservation of interest or retention of control by the donee nullifies the donation, (C. C. 1467, 1468, 1529, 1533; Fuzier Hermann Code Civil Annote, Art. 946; Notes 1, 2, 5 Am. and Eng. Ency. of Law, p. 1015; 4 Ann. 130; 5 A nn.433; 12 Ann. 721; 14 Ann. 710; 31 Ann. 485; 46 Ann. 1378.)

That when it is stipulated that ownership is not to pass until the death of the donor, it is a donation mortis causa and being verbal such a transaction is an attempt to make a verbal will and hence nugatory. (C. C. 1467, 1574, 1576, 1595; 5 M. 614; 4 Rob. 468.)

The appellee insists that there was a donation of the certificates, accompanied by a real delivery; that a certificate of stock is a “corporeal or movable effect,” which may be given without the formalities prescribed by Art. 1536 O. C.; that it is not an incorporeal thing such as rents, credits or rights. That Art. 1539 of the Civil Code of Louisiana is not to be found in the Code of France. Counsel of appellee refers the court to Cook, Vol. 1, Sec. 12 (3rd Ed.); Cook on Stocks (3rd Ed.); Thompson, Vol. 1st, Sec. — , Vol. 1, p. 22; Note 6, 10, 66, and 1070; Morawetz on Corporations (2nd Ed.), Vol. 1, Secs. 193, 225 and 226; 31 Lawyers’ Reports, Annotated, 429 (Leyson vs.; Davis); Ency. of Law (1st Ed.), Vol. 23, p. 593, note 5 and text; Story on Sales, Sec. 263; Allenton vs. Long, 10 Bosworth (N. Y.), 362; Walsh vs. Sexton, 55 Barb (N. Y.); Grymes vs. Hone, 49 N. Y. 17; 2 Kent 444 (14th Ed.); North vs. Forest, 15 Conn. 40; South Ins. Co. vs. Cole, 4 Fla. 359; Schollmeir vs. Schoendelen, 78 Iowa, 426; 16 Am. St. Rep. 455; Scrivens vs. Northeastern Bank, 166 Mass. 255; Harris vs. Bank, 5 Ann. 539; Smith vs. Crescent City, Etc., Co., 30 Ann. 1378; 1380; Succession of Poilly, 22 Ann. 97; Burke vs. Bishop, 27 Ann. 467; Succession of Moore, 40 Ann. 541; Kern vs. Day, 45 Ann. 71; Civil Code, Art. 2643.

He quotes from Morawetz to the effect that “It is certain that shares in a corporation are not in reality intangible property, they are contract rights or choses in action,” according to legal terminology. Shares are usually represented by certificates. Although these certificates are in their origin merely evidences of the holders’ rights, they are really something more. They are treated in many respects as if they were the shares themselves and when passed from hand to hand are considered as passing to the assignee all the equitable rights of the holder. The certificates thus 'have a value in themselves and may be rightly treated as property. They are similar in this respect to negotiable paper. The debt of a maker of a negotiable note is a mere contract right or chosa in action belonging to the payee, but the note itself may properly he treated as a chattel or thing in the hands of the holders. So shares in a corporation are mere contract rights or choses in action, while the certificates are treated as the embodiment of those rights and may he considered as chattels. A distinction must be observed between shares considered abstractly as the sum of the shareholders’ rights and the transferable certificates which represent those rights. The rights of the shareholder are mere contract rights or choses in action, but the certificates are something more. They are constantly treated as tangible property, in commercial transactions, and by reason of their negotiable character are in fact tangible properly of great value just as negotiable notes and bills are. An action of trover may be brought for the conversion of a- promissory note, and it has been rightfully held that shares may be the subject of a gift causa mortis by delivery of the certificates.”

Counsel, after referring to cheeks as being tangible, movables, corporeal things which may be the subject of a manual gift without further formality, says: “So here a share of stock is not an obligation, it is an unconditional order to transfer the interest which Miss Sinnot had in the tangible .property of the banking corporations to Mrs. Langtry, the person to whom she delivered the certificates of stock. The shares of stock represent the property of the corporation and to all intents are the property at least in the sense that a cheek is money.”

Counsel further say: “It may be well to note here that the donation causa mortis of the common law is not the donation mortis causa” of our law, the Civil Law. With us the donation “mortis causa” can be made only by last will and testament; under the common law, however, three kinds of donations are made known. (1st) The donation “inter vivos.” (2nd) the "donatio causa mortis.” (3rd) That “ by last will and testament.” The second is a gift during life, but in expectation of death and not to take effect until after the death of the donor.

“It will thus appear that the "donatio mortis causa” of the common law is but the donation inter vivos established by our Code with this exception, that the first was not complete until the death of the donor, while the second becomes effective at once. There is nothing, however, in our law which prevents a donor from imposing upon his donation inte¡r vivos the condition that it should not be effective until after the death, as was perhaps done in the present case, and we therefore have a case before us in which all the doctrines of the cited cases as to whether a certificate of stock is such a chattel as may be the subject of a donation inter vivos without other formality than the mere giving, accompanied by delivery, apply with full force.” Counsel contends that the words used by Miss Sinnot referring to the certificates “after my death they are yours,” giving them the greatest weight, have simply the effect of imposing upon a donation inter vivos what might be termed a suspensive condition.

Our Code divides things into “corporeal” and “incorporeal,” “movables” and “immovables.” It declares that “corporeal things” are such as are made manifest to the senses, which we may touch or take, which have a body whether animate or inanimate. Of this kind are fruits, com, gold, silver, clothes, furniture, lands, meadows, woods and houses; that “incorporeal things” are such as are not manifest to the senses and which are conceived only to the understanding, such as the rights of inheritance, servitude and obligations. O. O. 460.

Referring to the division of things into “movables and immovables” the Code says:

“Incorporeal things consisting only of a right are not of themselves strictly susceptible of the quality of movables or immovables, nevertheless they are placed in one of these classes according to the object to which they apply, and the rules hereafter established.” C. C. 470.

Referring to the subject of “delivery,” where delivery is necessary for the completion of a title, Article 2478 declares that tradition or delivery of movable effects takes place either by their real tradition or by the delivery of the buildings in which they are kept or even by the bare consent of the parties if the things can not be transported at the time of sale, or if the purchaser had them already under another title; that “the tradition” of incorporeal rights is to be made either by the delivery of the titles “and” of the “act of transfer” or by the use made by the. purchaser with the consent of the seller. (C. C. 2478, 2481). Article 743 of the Code, referring to servitudes, declares that “servitudes are established by all acts by which property can be transferred, and as they are not susceptible of real delivery, the use which the owner of the estate, to whom the servitude is granted, makes of this right supplies the place of delivery.

Article 2247 refers to “delivery” as being of two kinds — one as “actual” the other as “constructive” delivery.

Under the heading of Donations Inter Vivos (between living persons), and Mortis Gausa (in prospect of death), the Code declares, in Article 1467, that property can neither be acquired nor disposed of gratuitously unless by donations inter vivos or mortis causa, made in the forms hereafter established. It then declares (Art. 1468) that a donation inter vivos (between living persons) is an act by which the donor divests himself at present and irrevocably of the thing given in favor of the donee who accepts it; that a donation mortis causa (in prospect of death) is an act to take effect when the donor shall no longer exist by which he disposes of the whole or a part of his property and which is revocable. (Article 1469.)

Article 1570 declares that “no disposition mortis causa shall henceforth be made otherwise than by last will and testament. Every other form is abrogated,” and Article 1576, that “the custom of making verbal testaments, that is to say resulting from the mere deposition of witnesses who were present when the testator made known to them his will, without having committed it or caused it to be committed to writing, is abrogated.”

Article 1536 provides that an act shall be passed before a notary public and two witnesses of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity, and Article 1538 provides that a donation inter vivos, even of movables, will not be valid unless an act be passed of the same as is .before prescribed, and such an act ought to contain a detailed estimate of the effects given, but Article 1539 declares that “the manual gift,” that is the giving of “corporeal movable effects, accompanied by a real delivery,” is not subject to any formality.

The French writers inform us that formerly the French law, in addition to donations inter vivos and mortis causa, authorized another form of gratuitous disposition of property — the ‘donation causa mortis” but that this character of donation had been abrogated. We quote on this subject from Dalloz & Yerge under Article 893 of the Code Nopoleon:

“L’Anden droit, outre la donation entre vifs et le testament, admettait encore une autre forme de disposer; ‘la donation a cause de mort.’ Cette libéralité participait á la fois du testament, en ce qu’elle était faite en vue de la mort et en ce que, toujours revocable, elle ne devenait definitive qu’ an décés du donateur, et de la donation, en ce qu’elle était faite sous la forme d’un contrat bilateral et pouvait etre faite avec tradition.”
“Le Code Civil ne reconnaissant que deux modes de disposer de ses biens á titre gratuit, la ‘donation entre vifs’ et le ‘testament,’ á, par cela méme, et sauf l’exception de l’art, 1082 en faveur du. mariage, proscrit les “donations a cause de mort.” Mais si un acte qualiíié 'donation a cause de mort’ présentait les caracteres et les formes d’uu testament, il vaudrait .comme tel, quelle que fut son analogie avec l’ancienne ‘donation á cause de mort.’ En supposant qu’une donation a cause de mort, faite et accepted dans un testament en forme authentique, soit valable, d’aprés la regie ‘utile per inutile non vitiatur/ elle ne vaudrait que comme disposition testamentaire, et la méme raison, par consequent, ne peut s’étendre au don manuel á cause de mort, l’éeriture'étant de l’essence du testament. Si la donation á cause de mort, faite p'ar un acte en forme, est radicalement nulle, il en doit étre ainsi á plus forte raison, du don manuel á cause de mort, qui 'n’est qu’une donation á cause de mort, moins la garantie de l’ecriture et de l’authenticité.”

A verbal donation "causa mortis” of a movable, whether it be a “corporeal” movable or an “incorporeal” movable, is invalid under our laws. According to the version given by Mrs. Langtry herself this was the character of the donation made to her by Miss Sinnot.- Appellee claims that the donation was a manual donation “inter vivos” but it can not be at one and the same time a donation “inter vivos” and a donation “causa mortis.”

In order to have been a manual gift inter vivos it was essentially necessary that the donor should have “divested herself at once and irrevocably of the thing given in favor of the donee who accepted it.” The moment the effect of the donation was to be postponed to the death of the donor it became an unauthorized donation causa mortis.

It is a mistake to suppose that because an understanding should have been reached between “two living persons” that the ownership of the property of the one should vest at her death in the other, the agreement evidenced a donation “inter vivos.” It is the “thing done” by the living persons and not the fact that what was done should have been transacted “between living persons” which gives character to the act. Independently however of this view of the situation the appellee’s claims could not be sustained. It is true that shares of stock in corporations “are movables.” Article 474 of the Code expressly declares them to be movables, but they are not corporeal movables. Stockholders in a bank are not the “owners of any portion of the bank’s property, though they are interested in its affairs and indirectly and consequentially in its property. Article 436 of the Code declares that the estate and rights of. a corporation belong so completely to the body that none of the individuals who compose it can dispose of any part of them. In this respect the thing belonging to the body is very different from a thing which is common to several individuals as respects the share which every one has in the partnership which exists between them, and according to the above rule, what is due to a corporation is not due to any of the individuals who compose it.” (Article 437.)

The stockholders are neither owners of the property of the corporation, nor are they creditors of the corporation. The certificate of stock which they may hold does not represent any portion of its property, nor do they evidence any “debt” due to them by the Bank.

Article 1763 of the Code says that the “contract” must not be confounded with the instrument in writing by which it is witnessed, and so “rights” must not be confounded with writings which evidence them. The certificates involved in this case are mere “admissions” of the Hibernia Bank that the party named therein is interested in the Bank to the extent therein named (Board of Trustees vs. Campbell, 48 Ann. 1549). The rights of the holders of the shares in the Bank are back of and beyond the certificates. The certificates could be lost or destroyed and the rights of the owners of the stock would remain intact. They are not orders of the owners on the Bank to pay money to any one, as counsel claim. Parties having the mere possession of these certificates would have no shadow of right from that single fact to demand payment of any money from it or to be recognized by it as shareholders. They are not negotiable in the commercial sense of that word, though by proper assignment and transfer thereof the legal title of the shares of stock referred to therein may be shifted. Until assigned or transferred, possession of the certificates and title to the shares do not go together. The right of a stockholder in a bank is an incorporeal right; it is not, when not transferred, susceptible of “a real and actual delivery” to the transferree or donee; it is susceptible only of a “constructive” delivery and this constructive delivery is not simply by the delivery of the titles, but by accompanying the delivery of the titles “with the act of transfer” of the same. (O. C. 2481.)

The certificates of themselves and without such act of transfer would not pass from hand to hand by simple delivery; something else would have to appear upon them to make them pass in that way. They are not "substantíve” and "completed things” in commerce without a transfer of some kind. We have no reason to doubt the absolute correctness of the testimony of Mrs. Langtry as to what took place between Miss Sinnot and herself. Her testimony gives evidence of candor and sincerity, but where the law, to support certain acts and contracts, requires evidence of a particular kind and sufficiency, the'courts are powerless to receive other or less as proof. We are constrained to recognize that the ownership of the shares of stock here involved has never passed from Miss Emily C. Sinnot, and that the same is now in the Succession of Miss Sinnot. Matters are not before us in such a manner as to authorize us to deal with the rights of Mrs. Otto Weber as residuary legatee; her rights are reserved to be determined hereafter.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the Succession of Miss Emily O. Sinnot is the legal owner of the shares of stock of the Hibernia National Bank of New Orleans which form the subject of this litigation; and it is further ordered and adjudged that Mrs. Annie Thompson, wife of George Langtry, defendant herein, be and she is hereby ordered to deliver the certificates for said shares of stock to Mrs. Otto O. Weber as executrix of the Succession of Miss Emily O. Sinnot. It is further ordered and decreed that all the rights of the Succession of Miss Emily O. Sinnot against the Hibernia National Bank, growing out of said ownership be, and the same are reserved.

It is further ordered, adjudged and decreed that all and any rights which the said Mrs. Weber may have in the premises, as legatee of Miss Emily O. Sinnot be, and they are hereby reserved. Costs of both courts to be borne by the appellee in solido.

Monroe, <L, concurs in the decree.

Provosty, L, concurs in the decree.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 13,780.
    State of Louisiana vs. Guillermo Arbuno.
    Syllabus.

      i. A prisoner on trial, under our laws, can only exceptionally be permitted to stand by and suffer irregular proceedings to take place and then ask to have the proceedings reversed on account of such proceedings. Particularly is this so where the steps taken were taken at his own request. The law, by furnishing an accused party with counsel to defend him, places him on the same footing with ail other defendants, and if he neglects, in proper time, to insist upon his rights, he waives them.
    The introduction of secondary evidence without laying, at the time of its introduction, prior foundation therefor, can not be urged in the Supreme Court to reverse a judgment, where the record does not disclose, by bills of exception reserved at the time, that timely objection was made. It is too late to raise these objections in a motion for a new trial.

      3. The Supreme Court- does not take judicial notice of the rules of the District Court. Parties urging on appeal an infraction of these rules in the lower court, must file them in evidence and bring them up in the record. Proceedings below will be presumed to have- been conducted in the District Court in accordance with its rules, in the absence of proof to the contrary.

      4. The transfer from one section of the Criminal District Court for the Parish of Orleans to another, and a trial therein, are legal and constitutional, when done at the request of the accused, made in open court, and this fact is evidenced by the minutes of the court.
    APPEAL from tbe Criminal District Court, Parish of Orleans— Baker, J.

      Walter Guión, Attorney General, and J. Ward Gurley, District Attorney (Lewis Guión, of counsel), for Plaintiff, Appellee.

      Paul W. Roussel (Lionel Adams, of counsel), for Defendant, Appellant.
   Statement op the Case.

The opinion of the court was delivered by

Nicholls, C. J.

The defendant, having been tried on an indictment for murder, convicted of manslaughter and sentenced to imprisonment at hard labor for twenty years, appealed.

The indictment was returned on the 20th of February, 1899, in open court, before Section “A” of the Criminal Court. Defendant was arraigned on the 27th of February, 1899, in Section “B” of the court. He was twice placed upon trial in Section “B.”

On both of these trials the jury failing to agree, mistrials were entered. On these two occasions defendant was represented by Philip ,1. Patorno as his counsel. He was succeeded by P. 0. Lasalle as counsel, Mr. Patorno, for some reason not disclosed by the record, having ceased to represent him. Mr. Lasalle was counsel of defendant under assignment of the court.

The minutes of Section “A” of the Criminal Court of November 8, 1900, disclose the following entry:

State op Louisiana vs. Guillermo Arbuno.
)Indictment for Murder

On motion herein filed by P. 0. Lasalle, Esq., for Guillermo Arbuno, defendant herein, and with the consent of the said Guillermo obtained and declared in open court, the court ordered the above cause transferred from Section “B” of this court to Section “A” of this court. Now comes J. Ward Gurley, district attorney, and S. A. Montgomery, assistant district attorney, who prosecute for the State, and the defendant, Guillermo Arbuno, in person, being placed at the bar of the court, attended by his counsel, Paul 0. Lasalle, the State and the defendant being ready, the following jurors (giving names) were regularly accepted, empannelled and duly sworn to act as such. The district attorney offered in evidence * * * Corporal Rawlins, Dr. LeMonnier, Anthony Pelegrinin, L. H. Delahoussaye and William J. Toung, sworn by the clerk, examined as witnesses on part of the State, and cross-examined on behalf of the defendant. By consent of counsel for defendant, the district attorney read to the jury the testimony of Captain Day, Suprino Alojado, Mrs. Suprino Alojado and Mrs. Emile Benovich. as taken on the preliminary examination of the case. Mrs. Tienan, Charles Tienan, Daniel King, Mrs. M. Dorion; A. H. Scara, J. C. Ben-net and Guillermo Arbuno were then sworn by the clerk, examined as witnesses on behalf of defendant, and cross-examined on the part of the State. After hearing the evidence, argument of counsel and receiving the instructions of the court, the jury returned the following verdict:

November 8,1900.
Guilty of manslaughter.
(Signed) Joseph A. Trelot, Foreman.

The court ordered the verdict recorded, the jury discharged from the ease, and the accused remanded to await sentence.

The motion referred to in the minutes was as follows:

State op Louisiana 7 vs. \ Guillermo Arbuno. ' \
No. 28,533. Criminal District Court. Section “B.”

On motion of P. C. Lasalle, of counsel for the defendant herein, and on suggesting to the court that defendant is ill and now in jail for some eighteen months, and his case is pending before Section “B” of the Hon. Criminal District Court, and which is now in vacation and will not open before the month of December, 1900, and therefore defendant is desirous of having his case transferred from Section “B” to Section “A” of the Hon. Criminal District Court, in order that defendant may have a speedy trial.

That by agreement the State is ready to give defendant a trial on November 8, 1900.

It is ordered by the court that defendant’s ease be transferred from Section “B” to Section “A” of the Criminal District Court as agreed. Defendant prayed for a new trial, which was refused.

The application was made upon the following grounds of complaint:

1. That the prosecution against him was allotted to Section “B” of the Criminal Court, in pursuance of Article 139 of the Constitution of 1898; that thereby the judge of that section had exclusive control over said cause from its inception to its final determination; that no consent or waiver which could be entered into or made could deprive him of his constitutional rights in the premises; that the indictment herein, under and by virtue of which the prosecution was instituted in the Criminal District Court for the Parish of Orleans, was allotted to Section “B” of said court, and that the judge of Section “A” was without jurisdiction over the person of defendant, and was without legal authority to preside or try said case. That the trial by said judge of Section “A” in the uremises was an absolute nullity.

2. That the verdict was contrary to the law and the evidence.

3. That the attorney who represented him upon his trial, viz, St. Paul Lasalle, was without authority in law to make any admissions or to waive any rights guaranteed to him by the Constitution and laws of the State that would infringe upon his rights, or which would in any way deprive him of any privileges granted him by law. That on the trial hereof, on the 8th of November, 1900, the said Lasalle, who had been appointed by the court to defend him, without his knowledge and consent and by an agreement entered into with the prosecuting attorney, which was a violation of his constitutional rights in the premises, permitted the State to read to the jury sworn herein illegal evidence, without objecting thereto; that said evidence consisted of the testimony of one Suprino Alojado, which evidence purporting to have been given by the said witness before Hon. R. B. Otero, judge of the Second Oity Criminal Court, on the 26th of January, 1899; that at the time the said witness, Suprino Alojado, testified in the said Second Oity Criminal Court in the Spanish language; that on the trial hereof the said Suprino Alojado was absent from the jurisdiction of the court; that the interpreter, one Alcee LeBlanc, who interpreted the said testimony before the said Second Oity Criminal Oourt was also absent from the court. That on his trial hereof there was no evidence to show that the said Alcee LeBlanc had accurately translated what the said witness, Suprino Alojado, had stated on the preliminary examination; nor did he at any time and at this time herein claim that his translation was true and correct, nor does it anywhere appear that the said Alcee LeBlanc was ever sworn to serve as an interpreter and to accurately and faithfully translate the evidence of the said witness, Suprino Alojado. That by the admissions of his attorney and his consent that the illegal testimony of Suprino Alojado should be read on the trial he has been deprived of his constitutional rights in the premises. That he made the testimony of said witness a part of his motion for a new trial, also a note made to said testimony by the official stenographer of that court at the time the said Alcee LeBlanc acted as interpreter, which reads* as follows:

“Suprino Alojado sworn. Residence, 936 Hospital street. Direct examination by Mr. Generelly. Note — This witness spoke Spanish and
Mr. Alcee LeBlanc acted as interpreter.”

That the reading of the said testimony of the witness-, Suprino Alojado, to the jury was calculated to mislead them.

4. That Paul Lasalle, herein appointed by the court as his attorney, and on his trial on the 8th day of November, 1900, in violation of law. by agreement, without his consent or knowledge, permitted to‘be read to the jury sworn illegal evidence of one Mrs. Suprino Alojado, without objecting thereto; that said testimony was taken on May 18th, 1899, by the then official stenographer of Section “B” of the Criminal District Court, viz: G. A. Mandeville; that said testimony of said witness, Mrs. Suprino Alojado,was not taken before any committing magistrate, but was taken on a former trial of mover, before Section “B” of the Criminal District Court for the Parish of Orleans, and which said trial resulted in a mistrial. That said witness, Mrs. Suprino Alojado, has since died, as mover is informed; that said testimony should not and could not in law be read to the jury, for the reason that there is no statute of this State which permits the reading of testimony taken in such a manner to be read at any subsequent trial; that furthermore the official stenographer, G. A. Mandeville, who took said testimony of said witness, is also dead, and that said testimony of said witness, Mrs. Suprino Alojado, was not certified, and hence could not be read in evidence on the trial hereof. That the consent to read in evidence the said illegal testimony was a violation of mover’s legal rights in the premises, and mover further says that there was no legal proof adduced before the court upon his trial to show that said evidence of Mrs. Suprino Alojado was evidence given by her; that mover, for the purpose of showing that said evidence was taken by said G. A. Mandeville, the official stenographer, at a former trial had in Section “B,” makes said evidence and endorsements thereon as it appears in this record a part of this motion for a new trial as if written and embodied as a whole. That said evidence as read to the jury sworn was a violation of mover’s rights in the premises and calculated to prejudice the jury against him.

5. That Paul Lasalle, the attorney who represented him on the trial of this cause, and who was appointed by the court to defend him, without his consent or knowledge, and by agreement entered into with the prosecuting attorney, which was in violation of his constitutional rights in the premises, permitted the State to read in evidence to the jury sworn herein, and on his trial, the illegal evidence of one Mrs. Evaline Benovich, without objecting thereto; that the evidence of the said witness was evidence purporting to have been given by her before R. B. Otero, judge of the Second City Oriminal Court, on the 26th day of January, 1899. That said evidence could not be read on the trial herein and that the consent to read the said testimony of Mrs. Evaline Benovich was a violation of mover’s legal rights in the premises, and mover further avers that there was no legal proof adduced before the court upon his trial to show that said evidence of Mrs. Evaline Benovich was evidence given by her or that she was dead; that the reading of the said illegal evidence to the jury was calculated to mislead the jury and to prejudice them against him; that the testimony of said Evaline Benovich is made part of this motion for a new trial.

6. That at the time the evidence of these witnesses, viz: Mr. Suprino Alojado and Mrs. Suprino Alojado and Evaline Benovieh, were read to the jury, the State did'not lay the proper foundation to show that the said witnesses were dead or permanently absent, or that they could not be found, or that they had permanently removed from the State, or that said testimony was a true and correct testimony of the said witnesses; all of which mover claims should have been done as a matter of law, before said testimony could be read to the jury on the said trial; and all of which said acts were calculated to prejudice the jury against him and to his detriment. That no consent could have been entered into by his attorney to deprive him of his constitutional rights in the premises, and that the reading of such illegal testimony of the said witnesses was a grave error which caused him irreparable injury. That Paul Lasalle, who was appointed by the court as his attorney, to see that all of his rights were preserved to him, had no power or authority to waive or consent in any manner, any of the rights guaranteed to him by law; that he was on trial for his life, and the attorney appointed by the court ought to have seen that every right guaranteed to him by law was strictly enforced.

That for the reasons herein stated and offered, your mover now represents that he is entitled under the law to be granted a new trial.

Opinion.

It is contended by appellant that the verdict of the jury and the judgment of the court based thereon are absolute nullities, for the reason that the cause was originally allotted to Section “B,” and was not reallotted or reassigned to Section “A,” but was transferred to the latter by the judge thereof, without the consent of the judge of Section' “B,” and without authority.

In the'examination of the claim we must start with the conceded fact that Ihe two sections of the Criminal District Court of New Orleans are not independent courts, but branches or divisions of a single court, and therefore the term jurisdiction, as applied to judicial action, in one or the other, has to be used in a limited or qualified sense. Pironi vs. Riley, 39 Ann. 304; Block vs. Marks, 41 Ann. 109.

We must not lose sight of the fact that there was in fact, an original allotment of the cause in compliance with Article 139 of the Constitution of 1898. There was, therefore, no selection by the State of a particular section of the court, through which ex parte selection the accused could have been prejudiced.

He occupied originally the position which he had the constitutional right to occupy. What we are called on to consider, therefore, are the circumstances under which a change from that situation was effected; at whose instance it was accomplished; who the complaining parties are at such change and whether the same was legally authorized or not.

Article 139 of the Constitution of 1898 is a reproduction, with some modifications, of Article 130 of the Constitution of 1879. That article confers upon the Criminal District Court authority to adopt rules not in conflict with law, regulating the order of preference and proceedings on the trial of cases and the method of allotting or assigning such cases and of reallotting and reassigning them, in case of vacancy in the office, recusation, absence or disability of one or more of the judges, or in case such action is deemed necessary for the proper administration of justice. All prosecutions instituted in and all the cases appealed io said Criminal District Court shall be equally allotted or assigned by classes among the judges, and each judge or his successor shall have exclusive control over any case allotted or assigned to him from its inception Lo its final termination in said court, except as herein otherwise provided.

The only later article of the Constitution which may have a bearing on the subject which we have noticed is Article 150, wherein it is de dared that the laws regulating the sessions of and practice in the Civil and Criminal District Courts for the Parish of Orleans, and the city courts of New Orleans, which may be in force at the time of the adoption of this Constitution shall, if not in conflict herewtih, remain in force until otherwise provided by the General Assembly.

In State vs. Williams, 34 Ann. 1200, Mr. Justice Manning declared that “the sole object of the constitutional requirement that criminal prosecutions shall be apportioned between the judges by lot is to prevent any selection of cases by preference. Chance must determine which judge shall try each case; when that is accomplished, I think it a matter of indifference how or at what stage of the proceedings the lot is cast. The constitutional provision is of that class that requires the most liberal construction in the interests of society and public order.”

These'remarks were approvingly referred to in State vs Beeder, 44 Ann. 1012. In State ex rel. Buisson vs. Lazarus, Judge, 33 Ann. 1425 (decided in 1881), this court declared that by the terms of the article of the Constitution the judge to whom a cause has been assigned has alone the power of rendering judgment on the merits. But the constitutional direction is not one of public order and does not strike with absolute nullity such a judgment when rendered by any of the other judges. The parties to the suit themselves may. consent that the judgment be so rendered. Therefore a judgment rendered by any other judge than the one to whom the cause is assigned, in case of absence or other disability of the latter, may be valid if no timely opposition be made thereto.

The court, after referring to the fact that the District Court was one court, though composed of several divisions, declared that “the objection of incompetency, which had been urged, was one levelled, not at the judicial power of the court, as a constitutional organization for the administration of justice in all civil ca^es contemplated, but directed against the right of one of the members of exercising its powers, who, in certain contingencies provided by the Constitution, could have lawfully wielded all of them independently of the will or consent of litigants amenable to the court. That it was argued that from the fact that in clear terms it provides that the judge to whom a case shall have been allotted and assigned, shall have exclusive control over it from the beginning to end, it follows that it impliedly prohibits every other judge from taking jurisdiction over it, unless in case of absence or sickness and then only for certain purposes, and therefore from passing upon the merits.

That is undoubtedly so; but is that one implied prohibition such that individuals can not renounce the benefit of the allotment or assignment established in their favor, when such renunciation is not actually prohibited, when it does not affect the rights of others and is not contrary to public good? We do not think so.

In State vs. Adotto, 34 Ann. 1, the defendant, who had been convicted of murder in Section “A” of the Criminal District Court, urged in behalf of a new trial that the cause had never been allotted as required by the Article 130 of the Constitution.

The application was resisted on the ground that the objection came too late; that it should have been urged before trial; that having failed to make it he had waived it. This coui;t was of opinion that it had not been waived, and by pleading could be raised after verdict.

In disposing of the question the court said: “It was not necessary to decide formally whether the accused could or could not have waived the advantage of the constitutional mandate in a criminal prosecution. It was certain he had not done so before the object of the prosecution, the trial, had been consummated by judgment and his sentence to hard labor for life. The accused was in time to object before judgment. His motion for a new trial was a proper proceeding. The objection might have come too late after judgment and sentence so as not to be reviewable on appeal or by habeas corpus

In a civil suit, Pironi vs. Riley, 39 Ann. 305, this court said: “What occasion has the defendant to complain of the transfer as made? Nowhere does the Constitution say that no division of the Civil District Court shall hear and determine a case not regularly allotted to it when the parties make no objection or consent. With a view to correct previous abuses the Constitution wisely provides for the allotment of cases before that court, and this court, after mature deliberation of the spirit and letter of the provision, has held that it is not mandatory, but merely directory. Therefore, in the absence of objection for want of an allotment,'the parties are viewed as assenting to the jurisdiction as though the allotment had'been made and the division is authorized to exercise over the controversy all the powers of the court itself. (Buisson’s case. 33 Ann. 1425.) The Constitution, however, provides and has been construed as meaning differently in criminal matters. (Adotto’s case, 34 Ann. 1.)’”

Hence, we conclude, that as the plaintiff voluntarily 'executed the order of transfer from one division to another rendered on exceptions of defendant, and has invoked the jurisdiction of the division to which the case, has been transferred, plaintiff has exercised a right of waiver if the transfer was objectionable and that the defendant can not complain.”

In 1890 the General Assembly passed an act entitled “An Act making it the duty of the judge of one section of the Criminal District Court for the Parish of Orleans to try with the consent of the accused or prisoner any cause allotted to the other section, in all eases of vacation of the other section, or whenever the judge thereof may be sick, absent or otherwise disabled from acting, or for any cause other than vacancy or recusation.”

The first section of the act follows the phraseology of the title. The second section declares that the consent of the accused or prisoner to be so tried shall be obtained and declared in open court at any time before trial, and shall be entered on the minutes of the court and the case shall be tried according to such rules as the court may make.”

In State vs. Beeder, 44 Ann. 1007 (decided in 1892), this court referred to a distinction between that ease and one therein cited, in which there had been an allotment, but one irregular as to the manner in which it had been made, saying: “If defendant’s intention was to eóntest merely the manner of the allotment, he should have urged it before going to trial and should have made known the specific grounds he relied on. To say that the allotment was not such as the Constitution required was entirely too general. But, as has been said, the Constitution (of 1879) is absolutely silent as to any details of the allotment in the Criminal District Court. In the first part of Article 130 (when referring to the Civil District Court) the allotment was ordered to be made under “rules of court,” to be adopted for that purpose, but in the latter part (when referring to the Criminal District Court) nothing was said on that subject. In the absence of any statute requiring it the only possible way for the Criminal District Court to carry out the provision of the Constitution was (as the Civil District Court was required to do) to establish rules to govern its action, and we presume not only that it has done this, but that" the allotment in this case has been made in accordance with them. If the allotment was not so made, it was defendant’s duty to have shown that fact affirmatively, and he should have introduced the rules in evidence and brought them up with the transcript. Only in that way can we come to a knowledge of them (Hennen’s Digest, p. 76, No. 4).”

We are not informed by the present record whether the Criminal District Court has or has not adopted rules on the subject of the reassignment or transfer of cases for trial, during the vacation of the court, from one division to another, but the transfer in this particular instance was made in exact conformity to and under the express authority of Act No. 117 of 1890. Defendant has not only not attacked the constitutionality of the act in his pleadings in the lower court, but he there invoked for his own benefit the provisions of that act and at his instance (the State not objecting) his case was tried before Section “A.” He was in prison at the time and sick and desired a speedy trial, and to that end sought a trial in Section “A.” In so doing he exercised what is referred to in law as a “right of waiver.” His position in this matter was not (as was the situation in the Adotto case) one of silent acquiescence until after verdict of what had been Omitted to have been done, and what should have been done by the public authorities.- They, in the present instance, had done all that the law required of them. Defendant’s case had been legally allotted. Allotments, under the Constitution, are made for the protection of the defendants in suits as against a possible selection by plaintiffs, for special reasons of their own, of particular divisions of the court. The object having been accomplished, the parties were free by common agreement and consent to alter the situation to suit their interests or convenience. We have before us no one complaining other than the very party at whose solicitation arose the condition which he now seeks to utilize by repudiating.

There is a factor in this case absent from that of Adotto’s. The State invokes not only acquiescence but estoppel.

We are of the opinion .that he had the right to waive trial in Section “B,” and that the judge of Section “A,’’ in granting his request to that effect, violated no law. In making his request he recognized his confidence in the ability, integrity and impartiality of the judge of that section. He urges no objections on that score now. As matters stand, we can see no possible injury to him in anything that has been done.

Appellant claims a reversal' of judgment on the ground that certain testimony was allowed to be introduced on his trial as secondary evidence without the prior laying of a legal foundation for its introduction. ’No objection was made or exception taken at the time this testimony was taken to the legality or propriety of the course pursued, and of course no bills of exception were reserved. It is conceded that a complaint of that character coming before this court under these conditions would not be ordinarily entertained. It is urged that matters are presented to us under exceptional circumstances and of character such as to call for a departure from the general rules of practice.

The particular fact depended on is that the defendant in this case was defended, not by an attorney selected and paid by himself, but by counsel assigned to him by the court. It is urged that this counsel was without authority to allow this testimony to have been introduced without prior proof by the State of the death and of the absence of the witness whose testimony was offered, and of the proof of the correctness of that testimony as taken down, by the testimony of the interpreter who translated the testimony and the stenographer who took it down. ■

It is not advanced that as a fact the testimony was not correctly translated, nor correctly transcribed, nor that that fact could not have been established, but simply that that fact was not affirmatively shown on the trial. The record shows that this same testimony had been used just as it was, without objection, from the defendant on a former trial. It is not advanced that the witnesses were not, in point of fact, dead and absent, nor denied that that fact could have been shown if the proof was exacted. It is simply claimed that the fact of absence and death should have been affirmatively shown; that a failure by his counsel to have required such proof was a waiver or renunciation of his rights which counsel was not authorized to make; that an assigned counsel was nothing more than an amicus curiae, and it was the court’s duty to protect him now, as it was formerly its duty when no counsel was assigned to defend accused parties. We can not agree with counsel in this last proposition. The very object of the assignment of counsel was to relieve the court from the burden of this duty. It still has the right to protect an accused party from illegal action, but its failure to take action is certainly no ground for reversal. We must not be understood as saying that the counsel of accused was not warranted, in the interest of his client and speeding his trial, in not raising the objections nor insisting upon the proof which present counsel contends should have been produced, when he was fully satisfied that the proof could have been made, and the insisting upon its being made would have simply entailed a continuance of the case. Neither must we be understood as saying that, under the circumstances of this case, it could have been exacted.

In McKinney vs. The People, 17 Ills. 556, it was held that “a prisoner on trial under our laws has no right to stand by and suffer irregular proceedings to take place, and then ask to have the proceedings reversed on error on account of such proceedings. The law, by furnishing him with counsel to defend him, has placed! him on the same platform with all other defendants, and if he neglects, in proper time, to insist upon his rights, he waives them.” (See also Perteet vs. People, 70 Ills. 171; Bulliner vs. People, 95 Ills. 394, and Graham vs. People, 115 Ills. 566.)

Bishop makes the following observations on the same subject: “It is a doctrine to which 'there are few exceptions that a party in a cause may waive any right which the law has given him, even a constitutional one.”' Bishop’s New Criminal Law, Vol. 1, Sec. 995, and cases there cited.

“A defendant who does not object to illegal evidence, but permits it to go to the jury, can claim nothing afterwards on the ground of its admission.” Same Vol., 4th division, Sec. 997.

“In natural reason, one should not complain of a thing done with his consent. Atad the law, in all its departments, follows this principle. It is analagous to estoppel, or a species of it.” Bishop’s New Criminal’ Procedure, Vol. 1, Sec. 117.

“If, except where some counter doctrine presses with a superior force forbidding, a party has requested or consented to any step taken in the proceedings, or if at the time for him to object thereto he did not, he can not afterwards complain of it, however contrary it was to his constitutional, statutory or common law rights.” Same Vol., Sec. 118, and cases there cited.

“Necessity is the chief foundation for this doctrine. Without it, a cause could rarely be kept from miscarry. The mind, whether of the judge or the counsel, can not always be held taut like a bow about to send forth the arrow, and if every step in a cause were open to objection as well after verdict or sentence as before, a shrewd practitioner could ordinarily so manage that a judgment against his client might be overthrown. Even by lying by and watching, if he did nothing to mislead, he would find something amiss, to note and bring forward after the time to correct the error had passed.” Bishop’s New Criminal Procedure, Vol. 1, Sec. 119.

We find no legal ground for reversing the judgment. It is therefore affirmed.

Mr. Justice Monroe concurs in the decree.

Rehearing refused.


author: Breaux, J.

text:
    No. 14,008.
    State ex rel. Henry Denis vs. Hon. Fred. D. King, Judge, Division “B.”
    Syllabus.
    1. Courts may restrain an excessive noise when it interferes with the comforts of life and impairs the reasonable enjoyment of a home.
    2. If, however, the judge of the first instance, in the exercise of legal discretion, declines to issue an unrestricted preliminary injunction, not being satisfied that there is sufficient ground to issue a sweeping order stopping the ringing of all bells for any purpose whatever and however moderately rung, the ap pellate court will not make a mandamus peremptory and will not set aside the action of the lower court. '
    0 N APPLICATION for a writ of mandamus.

      Henry Denis, Relator in propria persona.

      Respondent Judge pro se.

   The opinion of the court was delivered by

Breaux, J.

Relator seeks, by way of mandamus, to compel the District Court to issue a writ of injunction in accordance with his petition addressed to that court. The injunction in limine was refused after 'hearing on a rule nisi.

The relator resides with his family near the monastery of Discaleed Carmelites in which there are two large heavy bells suspended in two open steeples. The gravamen of his complaint is that the loud sounds from these two bells disturb the quiet and comfort of his homé and impair to. himself and family the enjoyment of their residence. He sets forth, in substance, that these bells are rung from 5 o’clock in the morning until 10 o’clock at night, making a loud resounding noise; that they are sometimes rung for as many as ninety continuous strokes; and that at times both bells are rung at once.

The judge of the District Court, in his reasons for refusing the injunction, avers that he has exercised a legal discretion which can not be reviewed and set aside in proceedings by way of mandamus. He further avers that relator can be heard on appeal and that, in consequence, he has no legal right which can be considered and passed upon in the mandamus proceedings.

There is no question in our minds that if relator is made to suffer from the loud resounding noise growing out of the incessant ringing of the bells, he is entitled to some relief. The many sweet emotions awakened when the air is resonant with the silvery tones of bells must give way to the right to rest in peace and quiet at one’s home. This right is above all sentiment, however pure and exalted. Well considered decisions have been accepted as law upon the subject. “The ringing of bells has already been mentioned as ground for injunction in behalf of a neighboring resident.” High on Injunction, § 779.

The judges of the courts of original* jurisdiction, after investigating the facts, have granted the writ in other jurisdictions than ours, and when the writ has been granted, courts of appellate jurisdiction allowed the restraining order to remain in force because it was decided the court had acted within the discretion with which it had been entrusted. In this jurisdiction also, by reason of the legal discretion vested in the lower court, mandamus will not lie to set aside an order refusing an. injunction.

In this State the right to ring bells lond and long has been exercised from time immemorial. For years and years, it has been exercised without much question. The ringing of bells is not of itself objectionable when rung with a degree of moderation having regard to the peace, quiet, and condition of the neighboring inhabitants. But of late years, an idea has become general that sounds and noises should, as far as possible, be reduced to a minimum. But here we have to deal with a particular case, and not with general conditions. Eegarding the case in hand, we feel no hesitation in stating that we know of -no reason why the bell ringing should not be, to some extent at least, abated, if needful to the comfort of one residing very near. But to secure this, the forms of law must be followed. The rights of the respective parties must be considered. Any family disturbed should be given rest and quiet, but, on the other hand, the other parties should not be denied the exercise of a right to the same extent that it is exercised by others.

The injunction, if issued, would not concede the exercise of the right of ringing bells at all. We are constrained to differ with the relator and to decline to go to the extent for which he sues, however much it be regretted that he has encountered obstacles to his rest and quiet.

We do not think that we should interfere with the discretion of tbe lower court, particularly in view of the fact that a more extensive right is asked in the petition for an injunction than should be granted. Ordinarily, the District Court is vested with discretion to withhold injunction where the right of the parties are not satisfactorily ascertained. The right sufficient to enable him to grant -the temporary injunction was not shown to his satisfaction. The terms of the law of practice provide that the judge may grant an injunction when necessary to prevent some one from doing an injurious act. Art. 303 C. P. The judge heard the parties on the rule nisi, and did not become convinced, after having heard the testimony on this rule, of the relator’s right to the injunction.

When an injunction is not issued ex debitore jusiitiae, as of right, mandamus will be refused. This view is sustained by the following decisions: New Orleans vs. Telephone Co., 37 Ann. 571; State ex rel. Savage vs. Judge, 38 Ann. 916; State ex rel. Daboval vs. Police Jury, 39 A. 750; Johnson vs. Judge, 40 A. 852.

In New Orleans vs. Telephone Co., 37 A. 571, the court decided that under Article 303 of the Code of Practice, the court of the first instance is vested with legal discretion to grant or refuse an injunction which will not be interfered with unless the action is arbitrary. We have found nothing- arbitrary in the lower court’s refusal to stop the ringing of all the bells in question.

We have stated above that the district judge gave as additional reason for refusing the writ that the relator’s right is by appeal. We are not disposed to hold that in all cases of refusal to grant an injunction, however arbitrary and erroneous the ruling, the petitioner for an injunction must resort to an appeal and not to mandamus.

Here, as we have said before, there is nothing arbitrary in the refusal of an injunction granting rights as sweeping and broad as those sought by the relator and, therefore, in this case, the remedy is by appeal.

At this point, when about to frame our decree, our attention was attracted by relator’s reference to churches in New Orleans, and specially (naming a few) to institutions of learning, religious and secular, and to the various charity institutions devoted to the care of orphans, all careful, so relator avers, to avoid making great noise by loud and long ringing of bells, in order to avoid, as much as possible, disturbing the rest and quiet of a neighborhood. We must say that this is worthy of the highest commendation. This, however, affords no ground to issue a writ of mandamus to set aside the refusal of the district'judge who has already acted in the exercise of a legal discretion.

It must be borne in mind that the injunction, asked is, at most, temporary and does not conclude a right, even if granted, and that the action granting or withholding the order of injunction, can well be left to the legal discretion of the lower court.

For these reasons, the original order, nisi is recalled and annulled and the application of relator for mandamus is denied.


author: Provosty, J.

text:
    No. 14,025.
    Frank H. Mortimer vs. Mrs. J. C. Hodgson.
    Syllabus.
    1. The ownership of immovables is acquired by possession as owner during thirty years.
    2. The ownership of movables is acquired by continuous and uninterrupted, peaceable, public and unequivocal possession during ten years in good faith as owner, under a title valid in form and translative of property.

      APPEAL from the Civil District Court, Parish of Orleans— Sommerville, J.

      Frank N. Butter for Plaintiff, Appellee.

      J. Zaeh Spearing for Defendant, Appellant.
   The opinion of the court was delivered by

Provosty, J.

The plaintiff, Frank H. Mortimer, brings this suit against Mrs. Amelia F. Dupeire, wife of J. O. Hodgson, to compel her to accept title to the following described property, to-wit: Two certain lots of ground, tobether with all the buildings and improvements thereon, situated in the Sixth District of this city in square designated by the municipal No. 178, bounded by Lyons, Laurel, Live Ooak and Bordeaux streets, said lots are designated by the numbers thirteen and fourteen and measure each thirty feet front on Lyons street by one hundred and fifty feet in depth between equal and parallel lines.

The plaintiff acquired said property at a sale made by the sheriff of the Parish of Orleans on the 17th of March, 1898, in suit of Frank N. Butler vs. Mrs. Florio Jonas, wife of Edward Jonas et als., No. 55,485 on the docket of the Civil District Court for the Parish of Orleans. The defendant in said suit had acquired Toy purchase from the Eureka Homestead Association on the 15th of May, 1894; said association had acquired on the same day from Thomas Powell; and the latter from the Peoples’ Homestead Association, on the 23rd of May, 1891. This association had acquired by purchase from Jean Oourrege, and Mrs. Severine, wife of Jean Lozes, on the 28th of January, 1891. Oourrege had acquired by the last will and testament of his wife, Pauline Edler, on April 16th, 1888. Pauline Edler and Severine Edler had acquired, on the 21st of October 81, 1843, by donation inter vivos, from Mrs. Jeanne Franeoise Levanier, wife of Pierre Martin, and the latter had acquired by purchase, on the 28th of June, 1841, from Martin Yalmont Soniat Dufoussat. How this last had acquired the record does not show.

All these transfers were by authentic act, in due form and duly recorded, and defendant impugns the good faith of none of them; and it is undeniable, under the testimony found in the record, that all the parties named held actual possession of the property under their several titles.

But it seems that the act of donation by Mrs. Martin to Pauline and Severine Edler. was signed neither by the donor nor by the notary before whom the act purports to have been passed, and in whose book of bound records the original act is found. Also it would appear that the property was acquired by Mrs. Martin during the existence of her marriage with Pierre Martin, and that the said property, therefore, was community property. Upon this non-signature of the act of donation, and on this legal presumption of the property having been community property, the defendant bases her objection to the title.

The act of donation was duly recorded on the 23rd day of October, 1843, two days after its passage. This registry was made on-a certified copy of the original act furnished by the notary, which certified copy contains the signatures of all the parties, including the notary. The evidence shows that- the husband of the donor, Mr. Martin, died in 1850, leaving no heirs, so far as any one knows; that Mrs. Martin, the donor, died in 1852, leaving no heirs, so far as any one knows, except possibly Severin Edler, the father of Severine and Pauline Edler, the donees. Severin Edler, it would seem, was an only son of Mrs. Martin, and, so far as any one knows, was an illegitimate child. Between the time of the donation and the death of Mrs. Martin, the rents of the property were collected by Jean P. Lozes, the husband of Severine Edler, for the account of his wife and of the sister Pauline Edler. The evidence establishes that the possession, or the title, of Severine Edl el- and Pauline Edler and of all those who have held the property after them have never been impugned by any one.

From the foregoing- statement of facts the legal conclusion is that, at the purchase of the property in question from Martin Valmont Soniat Dufoussat, one undivided half thereof vested in Pierre Martin, and that the title of the said Pierre Martin or his heirs, if any heirs he had, to said undivided half of said property, has never been divested otherwise than by prescription; and, further, that the said act of donation is invalid for want of the signatures of the donor and the notary; but that the said Pauline and Severine Edler and their assigns having held actual possession of the property during more than thirty years as owners, they have acquired title to said property by the prescription of thirty years; and, further, that the said Peoples’ Homestead Association having acquired the said property in good faith by act translative of property and having by itself and through its assigns held actual, public, continuous and notorious possession of said property during ten years, said association and its assigns have acquired title to said property by the prescription of ten years; and, that, consequently, the title to said property tendered by the plaintiff to the defendant is a good and valid title, such as the defendant is bound to accept.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs in both courts.


text:
    No. 13,954.
    State of Louisiana vs. Constance Adam and Poupon Baptiste.
    Syllabus.
    1. It is possible for two persons jointly to steal sis eggs, one pair of stockings and one undershirt.
    2. The granting or the refusing of a severance is a matter largely within the discretion of the trial judge.
    APPEAL from the Nineteenth Judicial District, Parish of St. Martin — Foster, J.

      Walter Guión, Attorney General, and Anthony N. Muller, District Attorney (Lewis Guión, of counsel), for Plaintiff, Appellee.

      Edward Simon, for Defendants, Appellants.
   The opinion of the court was delivered by

Provosty, J.

The motion for a severance and the motion in arrest of judgment in this case are based exclusively upon the supposed impossibility for two persons to have jointly stolen the objects charged to have been stolen, namely six eggs, one undershirt and one pair of stockings. As this supposed impossibility is not apparent to us, and as the granting or the refusing of a severance is a matter largely within the discretion of the trial judge, we find no reason for disturbing the judgment of the lower court. State vs. Cately et als., 52 Ann. 574.

The judgment of the lower court is affirmed.


text:
    No. 13,978.
    The Union Oil Mill Co. vs. John V. Kennedy.
    Syllabus.
    The suit was for damages. There was no stipulation in the contract regardinii tlie quality of the article of food for animals. In the previous years, it had given satisfaction. Plaintiff assumed that the quality would be as good as in previous years. It was not. Defendant did not timely complain.
    It was manifest that the food was not of a superior quality. One who receives an article of food and takes the chances that it will increase the weight of his cattle and improve them, has no ground of action after having met with disappointment, because he did not succeed in selling them for as much as he expected. After the feed and cattle have been disposed of, it is too late to urge complaint. Besides, defendant made partial payments that conclude him from claiming damages.
    APPEAL from the Sixth Judicial District, Parish of Ouachita— Hall, J.

      Stubbs & Russell for Plaintiff, Appellee.

      John Merritt Munholland (E. Tyler Lamhin, of Counsel,) for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff brought this action to recover judgment against the defendant for the sum of four thousand eight hundred and eighty-eight 35-100 dollars, with interest, claimed by it as due by the defendant for hulls and cotton seed meal bought by the latter from the former to feed his cattle. The price for the hulls and cotton seed meal was agreed upon in October, 1898. Nothing was said at this time regarding the quality of the hulls and meal. In November following, plaintiff commenced to supply defeiidaitt with hulls and meal to feed his cattle and it continued thus to supply him until the following April.

The cattle were brought to defendant’s pen at Monroe near plaintiff’s mill from time to time as he would make purchase of cattle in difieren r places in connection with his business as a dealer in cattle. Defendant would ship a. number of cattle from his pens to the market and sell them. Others would be bought and driven to defendant’s pen to be fed and fattened for the market. For instance, in December, 1898, he sold seventy head and continued to sell others at different times and in different lots. In February following, he bought a lot which greatly increased the number he already had on hand. They were cattle sold to him and numbered about one thousand and seven head. lie bought others at a later date and, altogether, the number fed with hulls and meal was about two thousand five hundred head.

The amount first above mentioned as due is a balance left after a number of partial payments made by defendant. The first payment was made in January, and the last on the 21st of April, 1898.

Defendant admits that he entered into a contract with the plaintiff, as plaintiff claims, and further admits that the number of tons of hulls and meal bought was the number claimed. But he seeks to offset the amount and to recover a large sum by setting up that plaintiff had failed to deliver to him prime cotton seed meal and hulls for fattening his cattle; that, on the contrary, they were not fit for the purpose for which he, to the knowledge of the plaintiff, had bought them. He charges that owing to the unsanitary condition of the food, he was subjected to great loss, as some of the cattle died, and those remaining, after they had been fed the required time, were not in first-class market condition; that he was compelled to accept a lower price for them than he could have otherwise gotten; and that the article sold was not animal food as it was only fit for fuel and fertilizing purposes.

Defendant, in the first place, interposed the plea of lis pendens. While he was in the Indian Territory attending to business as a dealer in cattle, plaintiff brought suit against him in one of the United States Courts in that Territory for the amount it now claims in this suit. Defendant joined issue with the plaintiff before that court. The suit was never brought to trial. Although that court had the first jurisdiction over the case, it does not have the effect of staying proceedings before a State court of concurrent jurisdiction. A suit in another State does not support the exception. The comity between the States will afford protection enough to the judgment debtor to enable him to escape from paying two judgments for the same claim. But it does not-have the effect of a bar to proceedings before judgment.

We take up the points for decision on the merits. They grow out of the reconventional demand based upon the asserted bad food supplied by plaintiff. While it is unquestionably true that for a number of years previous to 1898, the food supplied by plaintiff to feed defendant’s cattle was nutritious enough, it does not necessarily follow that plaintiff is liable because the meal and hulls in 1898 were not equal in grade to that of previous years. Defendant, doubtless, expected a quality equally as good, but none the less it remains that no stipulation at all was made regarding the quality of the article to be delivered.

The testimony discloses that the season in 1898 was not favorable to cotton. The seed was not as sound as it usually is. The rains were unusually frequent. The ground was damp and the winter was cold and damaging to cotton seed. .We infer that plaintiff’s pulverized seed and hulls were about the same in quality as that sold at other mills. Plaintiff left it to the defendant to pick out the best grades and sought to lay aside the best meal and hulls to be delivered to him. The effect that this difference in quality would have on the cattle does not seem to have been known to any one at the time. The defendant knew that it was not a prime article, and yet he continued to receive it and have it fed to his cattle. Several times he complained to plaintiff’s agent, but he continued to receive the food. He never made the least attempt to put plaintiff in default by demanding a better article. On. the contrary, he made partial payments on his account to a date near the end of his contract. He sold a number of his cattle and in the end drove away -those remaining in his pens without notifying plaintiff that the quality of the food furnished had been unsatisfactory to such an extent that he would not pay it the balance of his account. It was only when plaintiff called for payment of this balance that defendant informed him of his unwillingness to pay. In view of the facts and circumstances, it was then too late to raise the objections that are now pleaded.

The burden of proof was with the defendant. It was for him to sustain his demand with testimony showing, with reasonable certainty, that the food sold by plaintiff was the cause of defendant not realizing as much profit on his cattle as he had cause to anticipate at the time he placed them in his pens to be fattened.

There are many causes to be considered in matter of fattening cattle. The variation of temperature in the locality; the change from one locality to another; the difference in climates; the sudden change from one food to another; the dampness and the wind and rain — are all-causes which would tend to retard cattle in fattening. If food alone be the cause; we imagine that in order to recover damages the owner of the cattle must, with some energy, begin early, while the contract is being executed, to lay the foundation for his claim. This, in our view, defendant failed to do.

The causes which influence animal life must frequently be followed closely and studied in order to detect them with any degree of certainty. Under certain conditions, food will be ample that will not give any satisfaction under another condition. Eor that reason, we imagine that the average stable man, entrusted with the keeping of a horse, would be greatly surprised at the end of a certain number of days, the animal not having increased in weight and appearance while in his charge and having been sold for a limited price, if called upon for indemnity, because the food, to which no special objection had been made to him previously, was not of first quality, although it was the best he could find. The same, to some extent, is true of a drove of cattle. Unless it is shown with some degree of certainty that food is the immediate and direct cause of their failure to fatten, it can not well be concluded that the vendor of the food is the responsible party to be held in damages.

Erom the testimony of the witnesses, it is made quite evident that it is not difficult to find out the difference between an inferior and a superior quality of cotton seed meal. If the food sold was of too inferior grade for use, it should not knowingly have been used by the vendee. Proper complaint by the vendee is an important factor in business. The questions decided in the case of Commission Company vs. Oil Mill Company, 104 La. 664, were very similar to those in this case.

Eor the reasons assigned, the judgment appealed from is affirmed.

Eehearing refused.