text:
    No. 11,413.
    L. E. Duvall and Wife vs. Henry Roder.
    The property was owned jointly by the husband and the wife. The latter held under a daiion en paiement made to her by her husband in satisfaction of her paraphernal rights.
    The attack upon the title on the ground that it was a donation in disguise was without foundation in fact.
    The consideration is proved, and shows that the declarations of the wife that she was the husband’s creditor are true.
    The forced heir of the husband under no contingency would have the right to annul the title placed on record in good faith and supported by ample testimony.

      Bightor, J. PPEAL from the Civil District Court, Parish of Orleans.

      Merrick & Merrick Attorneys for Plaintiffs and Appellees:
    Where both' husband and wife join in tendering iitle to a piece of real estate, a portion of which had previously been conveyed to the wife by the husband as an alleged dation en paiement, it is no defence for one who buys and declines the title to say that such dation en paiement by the husband to the wife was a disguised donation.

      When the husband and two corroborating witnesses and corroborating documents show a dation en paiement to be genuine and bona fide, the defendant, who offers no evidence, can not refuse the title.
    In cases where the defence is frivolous the appeal will be considered frivolous and ten per cent, damages awarded.
    If there had been a donation the sale to defendant would revoke it, “ All donations made between married persons during marriage,, though termed inter vivos, shall always be revocable.”
    “The revocation may be made by the wife without being authorized to that effect by her husband or by a court of justice.” O. C., Art. 1749 (1742).
    It is incredible that the legal title should be in two persons — one or both — and that an imaginary doubt of which by some one should make the property inalienable and place it out of commerce. Simplicity of title has, on the contrary, been an object of our code.

      Henry P. Dart Attorney for Defendant and Appellant:
    A purchaser is not bound to take a title tendered by a married woman, where the source of her title is a dation en paiement from her husband, unless she accompanies the tender with proof of the reality of the indebtedness, extinguished by thedation. 38 An. 813, 814; 35 An. 570-572.
    This proof can only be administered judicially. ,
    The costs and. expenses of so doing should fall on the plaintiff,, because it is her duty to tender a complete written title, and the judgment, if favorable, is the completion of such title in her, O. C. 2466.
    Dntil she does so, her title is afloat, and the facts necessary to-anchor it must be established, so that thereafter there may be some fixed and permanent record,
    By necessity the court must be the depositary of such record, and its judgment the evidence thereof.
    This proof of indebtedness can not be made by the husband only; his-testimony adds nothing to the authentic declaration in the act of dation, which, of itself, is of no protection to the purchaser,, who is liable to attack by the heirs of the transferror, or his creditors. The proof should be such as is required to establish any contract over five hundred dollars in amount. 88 An. 813-814.
    If the proof does not maintain the allegation of indebtedness, the act of dation en paiement becomes merely a donation inter vivos, and a donation can not convey such an absolute, indefeasible title as can be forced on a purchaser, unless the donor is dead, and the status of his estate, as to debt and heirship, fixed. The title is dangerous so long as he lives. Oarroll vs. Oockerham, 38 An. 813-814.
    The husband and wife sign the act of tender and join in the suit to enforce; that is, nevertheless, no protection to the purchaser, where it appears that the dation is of a moiety only of the property, the husband holding title to the other, so that both are necessary parties to act and suit to convey the moiety which ■each holds. If anything, their joinder is but a reiteration of the undivided ownership established by the dation. It can not be construed as a sale by the husband of the whole, for the act of dation stands until revoked or rescinded, good as a donation, if unmaintained by proof of the reality of the consideration. 38 An. 819-820.
    The rule that a purchaser can not be forced to take a. title about which a lawsuit may hereafter arise, or which is involved in question or doubt, is a liberal rule, which requires the court to examine the question in all its aspects, and practically to decide whether there is any real danger to the purchaser, even if eventually a suit should be brought by interested parties who are not now before the court. James vs. Meyer, 41 An. 1100; Hero vs. Block, 44 An. 1032.
    In suits like these the purchaser who acquiesces in the decision of the lower court saves nothing; it avails not even to force a purchaser under him. He must at his peril obtain the' opinion of the court of last resort.
    For so doing he should never be mulcted in damages. Such an appeal is not frivolous. James vs. Meyer, 41 An. 1102.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs sued the defendant to compel him to accept title to a house and lot described in their petition.

The title tendered is in the name of L. E. Duvall and wife. The-property had been sold to L. E. Duvall in the year 1890 for the sum of three thousand three hundred dollars.

The wife acquired her half in indivisión by dation en paiement from her husband on the 18th day of August, 1892, at a value of two thousand dollars.

In reference to the wife’s half, the defendant argues that he could not safely accept the wife’s title without proof of a real consideration moving the giving in payment by her husband; that the act is only a prima facie title and no more protection than would be a donation inter vivos between the same parties.

That if the dation was in reality without consideration or a disguised donation, there, could in a proper contingency be an attack upon the title by forced heirs.

The judge of the District Court rejected that defence and pronounced judgment in favor of the plaintiffs, from which the defendant appeals.

The record contains ample testimony, showing that L. E. Duvall,one of the plaintiffs, was indebted to Mrs. Duvall, his wife, for1 property brought him in marriage.

It was in satisfaction of that debt that the transfer was made.

Witnesses established that she had brought a larger amount in marriage than the sum at which the property was valued, and for which, she had become the owner.

The total consists of different items, in regard to which there is-some difference among the witnesses as to the respective amounts.

Adding the minimum amounts established by each witness as-sums for which the husband was responsible to his wife, the total is-more than sufficient to prove the complete reality of the consideration.

Moreover, the wife was in possession under a title placed of record some time prior to the sale to the defendant.

It operates as a notice that she was the owner in the absolute enjoyment of the property as owner; that she had, under a permissive article of the Civil Code, chosen to accept in complete satisfaction of the claims stated in the deed as due her by her husband.

We are not inclined to enlarge the principles held in the case of Tessier vs. Reussel, 41 An. 474, regarding donation inter vivos. If not kept within reasonable limits it would have the effect of placing property out of commerce in every case in which a discussion can be raised regarding the sufficiency of the consideration of a dation en paiement.

All considerations in law and morals unite to the conclusion that a married woman should be held bound by her declarations in an authentic deed that she was a creditor of her husband for the price of the property transferred.

Her forced heirs would not be in a better position, to have an act annulled, passed in the utmost good faith, with every appearance of fairness and valid consideration, amply supported by the testimony of the witnesses.

The appellees, in their answer to the appeal, pray for ten per cent, damages for frivolous appeal.

The defendant’s grounds of defence were not, by any means, devoid of all merit.

He sought to acquire a title translative of property, free from all claims in every possible contingency. The facts were such that it was entirely reasonable'to seek the decision of the court of last resort in order to place at rest all possible discussion about the title. •

The defendant urges that plaintiffs must stand the expense of making a perfect title, and that such expense covers the costs of this suit they should be condemned to pay.

We deem it sufficient answer to say that costs are due him who recovers judgment.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,414.
    Heims Abes and Wife vs. Aaron Davis.
    Donations between the spouses are revocable by mutual consent, and wlien revolted, the property returns to the estate of the donor freed from any claim of his heirs for their legitime, which might have attached to the property if the donation had not been revolted. Civil Code, Articles 1493, 1559; Seudder vs. Howe, 44 An. 1103.
    PPEAL from the Oivil District Court, Parish of Orleans. Monroe, J.

      James Wilkinson Attorney for Plaintiffs and Appellants:
    The revocation by mutual consent of a donation restores the property to the donor and dissolves the original donation. Scudder vs. Howe, 44 An. 1107.
    Donations propter nuptias between the spouses are subject to this right of revocation by mutual consent. Rev. O. C., Articles 1745, 1734, 1559, par. 4; 1740, 1749, 1564.

      A. J. Peters for Defendant and Appellee.
   The opinion of the court was delivered by

Miller, J.

The suit is to compel defendant to accept title and pay for property sold to him by plaintiff, Heims Abes. The defence is the property was donated by plaintiff to his wife 'in their marriage contract; that though this donation was afterward revoked, the property by the effect of the donation became and is now subject to any claims of the donor’s children for their legitime. The judgment of the lower court was in favor of defendant and plaintiff appeals.

Donations between the spouses are revocable. When revoked the property returns to the donor free from any claims of his children for their legitime they might have if the donation was not revoked. In other words the property returns to the donor not by any new title, but simply because the donation is deemed never,to have taken place. It follows that the plaintiff, Abes, can sell and his vendee can acquire the property as freely as if the donation had never been made. Oivil Oode, Articles 1749, 1559, par. 4; Scudder vs. Howe, 44 An. 1103.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided, annulled and reversed, and that thi,e defendant, Aaron Davis, be and he is hereby ordered to complete the sale of the property described in the petition, purchased by him from plaintiff, Heims Abes, and that he pay plaintiff the price therefor stipulated to be paid, to-wit: nine thousand dollars, with legal interest from judicial demand, with costs of appeal and of the lower ■court.


text:
    No. 11,387.
    Peter Fabacher vs. Bryant & Mather.
    Courts will not adjust a controversy arising out of the illegal purpose and attempt of a Draymen’s Association to deprive the presses of this city of the right to choose the labor required for hauling cotton, the association proposing to-accomplish this by passing a tariff of charges for hauling, designating their members to do the hauling, and subscribing money to prevent the presses from obtaining any labor except that furnished by the association, to be paid according to their tariff, and the testimony showing that the purpose was made effective by the money put up by the association and other methods by which nonunion men were compelled to abandon the service of the presses. Civil Code,. Arts. 1898,1895; India Association vs. I<j*fe]r, 14 An. 118; Gravier vs. Carraby, 17 La. 142, and cases collected in 2d Hennen’s Digest, 1007, No. 1.
    The court in aid of public policy and the law will notice irrespective of the pleadings that the controversy submitted for adjudication grows out of illegal purposes or combinations, and that illegality manifested by the record, it is obligatory on the court to dismiss the suit. Ibid.

    A PPRAL from the Civil District Court, Parish of Orleans. Monroe, J.

      Lazarus, Moore & Luee Attorneys for Plaintiffs and Appellants:
    Bryant & Mather refused to carry out in good faith the contract-into which they had entered, and because of the violation of said contract by them, Fabacher, in consequence thereof, sustained-damages which are fully and specifically set out in the petition,, and are as amply sustained by the evidence.
    As an excuse for this gross breach of their contract, Bryant & Mather, admitting that Peter Fabacher was given the contract to do-the hauling as set out in his petition, say that they entered into-this contract with Fabacher upon the supposition and representation of said Fabacher that he had been assigned to do the hauling by the Draymen’s Association, but that subsequently they discovered that Fabacher had not been selected by the said association to do their hauling, but that'one Thomas Egan, Jr., had been; that, thereupon, they withdrew from their contract with Fabacher and gave their hauling to said Egan, who defendants allege had truly been selected by the Dray-men’s Association to do the hauling of cotton for the Louisiana Press.

      'They further contend that Peter Fabacher never had been selected by the Draymen’s Association to do the hauling, and that any representation or pretext on his part that he had been is absolutely untrue and unfounded; and that, on the contrary, the minutes of the association show that Thomas Egan, Jr., had been allotted to do the hauling of the said press on August 6, 1891, and by reason of this allotment and the false representations of said Fabacher they had canceled and withdrawn the contract they had made with said Fabacher.
    They go on further and set up that Egan guaranteed to hold them harmless in the premises if they would withdraw their contract from Fabacher, and to pay and reimburse them all such damage, counsel fees, etc., which they may sustain in the event of the court holding them liable in damages for breach of their contract with Fabacher; and they call said Thomas Egan, Jr., in warranty.
    'The answer of Egan, the warrantor, is substantially the same as that of Bryant & Mather. He denies that Fabacher ever was selected by the Draymen’s Association to do the inhauling of the press. He admits that he (Egan) was selected for such hauling by the association, and joins Bryant & Mather in their general averments against Fabacher.

      E. D. Saunders, E. W. Huntington and H. L. Dufour Attorneys for Defendants and Warrantor, Appellees:
    Bryant & Mather were under compulsion, in order to carry on their business, to take such draymen as were assigned them by the Draymen’s Association.
    They first made a contract with Egan, a member of that association.
    Then Fabacher came to their office, introduced himself and declared that the association had assigned him their work. Believing this representation to be true they gave him an order on carriers for their cotton.
    Neither Bryant & Mather nor Fabacher said a word as to the rate at which the hauling was to be done.
    Egan next turns up and denies that the association had assigned the work to Fabacher.

      Por two or three weeks all parties, Bryant & Mather, Fabacher and Egan, are appealing to the association to decide to whom it had assigned the work.
    The final decision of the association was in favor of Egan and against Fabacher.
    There was no contract between Bryant & Mather and Fabacher.

      (a) Because the sole representation by which he obtained the order on the carriers, viz.: his statement that bis association had assigned him the work, was eventually declared to be untrue by the association itself.
    (b) Because there was no agreement as to one of the essential elements of the contract of hiring, viz.: the price at which the work was to be done. The order on the carriers did not fix the price, and nothing was said on that subject by either party.
    No damages recoverable even if there were a contract:

      (a) Because it was Fabacher’s duty to sell the mules promptly, and so diminish the loss; instead of which he kept them several months, said nothing to defendants, let the best season for selling pass, and sold at the worst season.
    (b) Because it is not shown, even by plaintiff’s own witnesses, that Fabacher would have made any profit if he had kept the contract.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, engaged in the business of hauling cotton for the presses in this city, alleges he was employed by defendants, proprietors of the Louisiana Cotton Press, to do what is termed the inhauling of cotton for that press for the seasons of 1891-92. The petition alleges the breach of the contract and claims large damages. The answer of the defendants is, in effect, that at the • period of the alleged coutract there was noAoption for the presses of this city in respect to the employment of draymen, but they had to engage those designated by the Draymen’s Association; that accordingly they contracted with Thomas Egan, a member of the association, that later the plaintiff called on defendants, announced himself as the choice of the association, and under that representation they were led to give him an order for cotton intended for their press, but the representation, the answer avers, was untrue; that, in fact, Egan, with whom they had already contracted, had been selected by the association, and he claimed his rights, which defendants recognized. That defendants, alleging that Egan was bound to defend them against the demand in the petition, called him in warranty. The warrantor answered, averring his selection by the association, his rights under his contract with defendants, and controverting the plaintiff’s demand. The case was submitted to a jury; the verdict was for plaintiff, but on the new trial granted by the court judgment was rendered in favor of defendants, and plaintiff appealed. The record of over seven hundred pages teems with exceptions to the testimony and ruling of the lower court, but the case as presented to this court submits the issue for our determination without reference to the exceptions.

It is in evidence that the Associated Draymen of the city, in the cotton season of 1891-92, adopted a tariff of charges for hauling cotton, and undertook to distribute among the members of the association the hauling of the various presses. In the theory of this association, the presses were to be consulted neither in reference to the price to be paid or as to those who should do the hauling. It is claimed, however, that in all this the association contemplated no compulsion whatever to be exerted on the presses. The weight due to this disclaimer of compulsion is well illustrated by the record. It is established that, not content with organizing the labor of the city on a tariff of charges and assigning to the various presses the dray-men to be employed by them, the members of the association subscribed money to put it beyond the power of the presses to employ any other than association or union men. The precise method in which it was proposed to use the money is not disclosed by the rec - ord. Whether to keep union men from working in the presses until the draymen’s tariff of charges was accepted, or to deter non-union men from that service, the effect was the presses were utterly unable to obtain any labor except that prescribed by the association, to be paid the prices exacted by the tariff. Any exertion of choice by the presses in respect to the labor required for hauling resulted in non-union men being driven from their drays. The defendants had exercised their supposed right of choosing their labor, and their choice had fallen on non-union men. But after a struggle of a few days the men selected by the defendants were compelled to leave their employment. In the language of the president of the association, tes - tifying in this case, the non-union men “quit.” The methods that made them “ quit ” were, to say the least, not pacific. In the letter we find in the record of the plaintiff, he congratulates the association on its success over the non-union men who for a few days of hopeless effort attempted to dray for defendants. The officers of the associ•ation who testify, strenuously disclaim violence, as not within the ■ scope of the association. An organization with its tariff of charges and . allotment of.'members, to be accepted by the presses, makes, we think, • a large advance toward promoting violence, when it puts up money to prevent the employment of any except its members, and this tendency of the measures of the association, we think, finds illustration in the record. Other methods serve as effectively as the money, the subscription of which is avowed, and, it is our conclusion, were employed.

In the condition existing in this city in the beginning of the cotton season of 1891-92, the defendants found themselves with no alterna.tive in respect to the labor needed for the hauling of cotton. It was •union men at tariff prices or no labor. The defendants acted on'the :theory that-at least they would be permitted to choose a union man, .■and accordingly selected Egan, the warrantor in this case, who ■claimed the Louisiana press had been assigned to him by the asso.ciation. Hardly had this contract with Egan been closed, when the plaintiff Pabacher presented himself with the claim he, and not Egan, had been chosen by the association. The plaintiff testifies it was not his purpose to force himself on defendants. There was, however, in his intercourse with defendants no discussion or preliminaries usual to the making of contracts when the parties occupy equal positions. The defendants recognized the potency of the selection of the plaintiff by the association stated by the plaintiff, and on the faith of that representation gave plaintiff an order for the delivery of the cotton intended for their press. It is this order the plaintiff deems his contract. Here the defendant supposed the trouble ended. They had under pressure discarded the non-union labor previously secured; they had next engaged Egan, a union man, and because he was a member of the all-powerful association, and now at the requirement of the association, as they supposed, they employed Pabacher. But Egan clung to his contract, strenuously denied that Pabacher had been selected, and notified defendants he would hold them for damages if they undertook to withdraw from him the hauling. ■Thus the unfortunate defendants practically, with no control over their contract, were involved from no fault of their own in the contention between two members of the association whether one or the other had been chosen to do the work of the press. The defendants in urgent need of labor, with no opportunity of obtaining it except from the association, and compelled to exercise their judgment between the two contestants, determined Egan had the better claim of recognition by the association gave him their order for all cotton intended for the Louisiana press. The result is this suit by plaintiff.

It is claimed the court is called on to determine the issue whether plaintiff had any contract with defendant and to annul damages if the contract exists and has been violated by defendant. In our appreciation there is another question forced on our attention by this ■record. The court is practically called on to find whether Egan or plaintiff was chosen by the association, and when that issue is ■determined to give effect to the actions of the association prescribing to defendants the employment of one or the other of these contestants. For plaintiff’s asserted employment rests on his representation of selection by the association, and if there was no basis for that representation there is no ground for plaintiff to complain that defendants gave their hauling to Egan. All the parties accept that this issue of the choice of the association is that to be solved by this •court, and to that end the minutes of the association and copious testimony of its proceedings undertaking to prescribe the persons, members of the association, to do the hauling for the presses of the city, have been put in evidence and discussed at the bar. It is the right of the members of the association to establish their tariff of charges and decline service unless on their terms. But when the association goes beyond this, and undertakes by subscriptions of money, or other means, to prevent the presses of this city from obtaining any labor for hauling cotton except, that furnished by the association, that purpose of the association is plainly repugnant to public policy and the law. It was in aid of and an essential part of that illegal purpose that the association designated its member, whether one or the other of the contestants, to do the hauling of the Louisiana press. It is said this designation was, after all, a mere recommendation. This argument supposes the presses were unable or unwilling to select the required labor, and referred that selection to the association. The so-called recommendation should bear .another name. It carried the significance, accept the recommendation or no labor will be attainable, and the power and machinery of the association it is manifest, from this record, were competent to enforce that significance. How was it until all had been made to realize the potency in this respect of the association, that the defendants yielded all choice? The non-union men originally selected by them were denied admission as union men, compelled to abandon their drays, and the letter of the plaintiff himself exults in this triumph over defendants’ rights. It is clearly, in the prosecution of the unlawful purpose of preventing defendants from procuring labor of their choice and compelling the employment of union men designated by the association, that the issue iu this cause arises, to be -solved by an examination of the proceedings of the association and when thus ascertained this court is expepted to enforce. If Pabacher is adjudged to have been the choice of the association, his asserted contract is to be maintained and defendants mulcted in damages. If Egan is found to have been more fortunate in the deliberations of this body, then defendant’s contract with him is to be permitted to stand. The designation of either is linked to an illegal purpose in aid of which there is on the plainest principles no appeal to the courts. It is trite in our jurisprudence that contentions originating in unlawful purposes are not to be brought into courts of justice. It is obligatory on the court to take notice, irrespective of the pleadings, of the phase of this controversy under discussion and conspicuous in this record. It is deemed appropriate on this occasion to convey the instruction that a controversy of this character can find no adjustment here, but the parties will be left as they stand.. Civil Code, Arts. 1898, 1895; India Association vs. Kock, 14 An. 168; Gravier vs. Carraby, 17 La. 142, and cases collected in 2d Hennen’s Digest, p. 1007, No. 1.

Our learned brother of the lower court was in some doubt whether duress as a defence was pleaded. He finally left it to the jury as an issue to be determined. He was right in this. The jury, notwithstanding his charge, gave plaintiff a verdict. That the lower court set aside and dismissed the suit fully. warranted, we think, by the record.

It may be added that the motive or consideration for the contract asserted by plaintiff, arising as it did from the representation that he had been selected by the association, the import of that representation was practically that the association had definitely settled for defendants the party they should employ. In point of fact, there had been no such settlement. There were meetings after plaintiff’s representation to determine the question. The fortunes of the contestants fluctuated, as one or the other had friends at these meetings. Egan claimed selection in August. Plaintiff asserted his selection in September. Plaintiff maintained his ground at three meetings, but the contention went on. The defendants had no access to the meetings, nor voice nor part in their deliberations, to determine who should do their work. This suit affirms they are to suffer because of the uncertainty in the councils of the association. If they yielded to plaintiff they were menaced with Egan’s suit. Assured by Egan he had been chosen, and abiding by their contract with him, they are subjected to this suit. But at the final meetings of the association on the 1st and 12th of October the choice of the association was declared to rest on Egan.

If there were no other ground, we think this final action should have relieved the defendants from this suit on an asserted contract, the assent to which, if assent it can be called, rested on the plaintiff’s representation that he had been chosen, not verified by the action of the association whose choice of himself he had undertaken to affirm.

It is-therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, at the costs of the appellant.


author: Nicholls, C. J.

text:
    No. 11,546.
    State of Louisiana vs. Joseph E. Touchet.
    1. Section 1010 of tlie lievised Statutes makes it the duty oí a justice of the peace to order arrests for alleged crime uron the oath of one or more “credible” witnesses. It is not the statement or even the affidavit of every person upon which he is called to act or which furnishes tho “knowledge conveyed to a public officer” which opens the running of prescription against a prosecution for crime.
    2. The law contemplates that an officer shall bring a sound legal discretion to bear in ascertaining whether a charge, if made, should be seriously considered, and where, under tlie special facts of a particular case, an officer was warranted in not taking action upon what is afterward set up in a plea of prescription as his knowledge of the commission of a crime by a particular person the plea is properly overruled.
    APPEAL from the Seventeenth District Court, Parish of Vermilion, Allen, J.

      M. J. Cunningham, Attorney General, and M. T. Gordy, Jr., District Attorney, for the State.

      L. L. Bourges and W. P. Bdwards} Attorneys for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, C. J.

The defendant was convicted of having stolen a coat and he has appealed. He urges in this, as he did in the lower court, the prescription of one year in bar of the action.

The crime is charged to have been committed on the 19th of April, 1892. The information against the accused was filed on September 12, 1898. It contained a declaration that it was filed within one year from the time that the information in relation thereto, came to the knowlege of a public officer having power to direct investigations and prosecutions.

Testimony was introduced to disprove the correctness of this statement.

It appears that one Sevenne Conners was originally charged with the crime upon an affidavit made against him before J. Nelson Greene, justice of the peace of the third ward for the parish of Vermilion. As the result of a preliminary examination he was sent before the District Court. He was twice tried. On the first trial the jury disagreed. After the second trial the record shows he was discharged, but does not show under what circumstances the discharge took place. We infer that he w7as either acquitted or there was another mistrial and an abandonment by the State of the charge against him, for on the day of his discharge the information mentioned was filed against defendant Touchet. The district attorney says in his testimony that it was only upon the second trial of Conners that the evidence pointed to the present defendant as the guilty party; that the evidence 'taken on the preliminary examination, and that on the first trial indicated that the charge against Conners was well founded. That immediately on ascertaining the new state of the evidence he filed the information against Touchet. That the change in the evidence resulted from the bringing forward of several witnesses who had not testified before. The justice of the peace before whom the affidavit against Conners was made, and who conducted the preliminary examination referred to, states that the daughter of Conners testified as a witness on the preliminary examination that Touchet ” had taken the coat, but that he did not believe her; he also states that after the preliminary examination was over, and after Conners had been sent for trial on the charge, Conners offered to take an affidavit against the defendant, but he declined to have it taken, assigning as a reason that Conners on the preliminary examination against himself had not then taken the stand and sworn to the facts against Touchet.

It is evident from the testimony of the justice of the peace that he did not believe either the testimony of the daughter or the statement of Conners, and that so far from eonsidering^that Touchet was the person to be prosecuted, he was of the opinion that the persons who were accusing him were attempting to improperly shield the person really chargeable — Conners.

His official action shows that he believed Connors to be the guilty party, and, as we have said, the district attorney says the evidence on the preliminary examination justified that belief. We do not think that under the circumstances stated, it could be held that the justice had such knowledge of Touehet’s having committed the crime, as would in law serve as the starting point for prescription. The knowledge conveyed to an officer to have that result, must be such as would have warranted him acting in the exercise of sound judicial discretion in ordering an arrest. It is not the statement or even the affidavit of every person on which the 'justice is to act. Section 1010 of the Revised Statutes makes it the duty of the justice to make an arrest upon the oath of one or more credible witnesses. The law contemplates that he should bring his judgment to bear in reaching a conclusion as to whether an arrest would be justified, and whether the charge if made should be seriously considered. The whole evidence in this case then at hand having been submitted to the justice of the peace, he could well refuse to receive Conners’ affidavit, he having himself just determined on that evidence (so far as he could determine) that Conners was chargeable with the act. The legal situation is not affected by subsequent developments showing that the actual facts of the case, were different from what they had every appearance of being, when official action was called for. We think, under the facts of this special case, that prescription only began to run when the district attorney became advised of the real situation.

There is no claim that prescription has run from that date. It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.

Rehearing refused.


author: Nicholls, C. J. Watkins, J. McEnery, J. Miller, J.

text:
    No. 11,526.
    State ex rel. E. S. Whitaker vs. Thomas R. Adams et al.
    The provisions o£ Article 201 of the Constitution, that for any of the causes enumerated in Article 19.6 district attorneys, clerks of court, sheriffs, coroners, recorders, justices of the peace, and all other parish, municipal and ward officers, shall be removed by judgment of the District Court of the domicile of such officer (in the xiarish of Orleans the Civil District Court) are not exclusive of all other methods by which municipal officers may be displaced. The power granted by the General Assembly in Secs. 58 et seq. of the charter of New Orleans to the Common Council to remove the recorders of the Recorder’s Courts by impeachment proceedings is constitutionally granted.
    APPEAL from the Oivil District Court, Parish of Orleans. Rightor, J.

      Farrar, Jonas & Kruttschnitt Attorneys for Relator, Appellee:
    When a Constitution provides for the qualification of certain officers, for their removal for certain causes, by certain authorities, and in a certain way, a Legislature is incompetent to prescribe, as to those same officers, for different qualifications, different causes of removal, different authorities or different ways. It can neither add nor take from the constitutional provisions on those subjects. State ea; rel. Downes vs. Towne, 21 An. 490; State ea; rel. Robinson vs. Dranguet, 23 An. 784; State ea; rel. Koppel vs. Thompson, 28 An. 444; State ea; rel. Lemonnier vs. Beard, 34 An. 273; Richard vs. Rousseau, 35 An. 933; Cooley’s Constitutional Limitations, 6th Ed., pp. 78, 79.

      E. A. O’Sullivan, City Attorney, for Defendants and Appellants:
    Sections 58, 59, 60, 61 and 62 of Act 20 of 1882, City Charter, are constitutional. They do not violate Arts. 196 and 201 of the ■ Constitution of 1879.
    The police recorder of the city of New Orleans is not a constitutional officer, but is a creature oí the Legislature. 10 An. 620, State vs. Ramos.

      The Constitution, giving the power to the General Assembly to provide for police or magistrates’ courts, likewise gave it the power to enact laws for the government of said courts.
    The power of impeachment and amotion is inherent to all political corporations, unless specially denied. Richard vs. Rousseau, 35 An. 933.
    Constitutional officers can not be impeached or removed for other causes than those specified in the Constitution; officers not mentioned may.
    Officers created by the Legislature under constitutional power may be impeached and removed for causes assigned by the Legislature. Behan vs. Judges, 35 An. 1075; Lemonnier vs. Beard, 34 An. 273.
   The opinion of the court was delivered by

Nicholls, C. J.

The question submitted to us for decision is whether, whilst the recorder of the First Recorder’s Court of the city of New Orleans is present, able and willing to perform the duties of his office, he can be suspended from exercising his functions and temporarily replaced by the recorder pro tem., through an order of suspension from the mayor of the city, this order being grounded upon the pendency of impeachment proceedings before the City Council directed against the recorder.

Defendants invoke, in favor of the affirmative of this proposition, Section 58 et seq. of Act No. 20 of 1882, known as the Charter of the City of New Orleans, which confer upon the common council the power of impeachment, and name the recorders of the pity, among others, as holding their offices subject to this power.

Relator’s contention, on the other hand, is that for high crimes and misdemeanors, for non-feasance and malfeasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office, or for gross misconduct or habitual drunkenness, an exclusive method of removal from office is provided by Article 201 of the Constitution, which declares that for such causes district attorneys, clerks of court, sheriffs, coroners, justices of the peace, and all other parish, municipal and ward • officers, shall be removed by judgment of the District Court of the domicile of such officer, and that the office which he holds is one of the offices covered by the article.

Recorders of New Orleans are part and parcel of the machinery of the city government. They are not constitutional officers. The Recorder’s Court is purely a statute court. It might be conceded that the recorders, as to removal from office, fall under the terms of Article 201 of the Constitution without determining the issue raised in this case.

The real issue is whether the power of removal referred to in the article of the Constitution is identical with the power of amotion, impeachment or quasi impeachment, on which the defendant ¡ base their right to act, and whether proceedings under Article 201 are exclusive of any other method by which municipal officers may be dis - placed. If the two proceedings are referable to separate and distinct powers as the source from which they spring, and the former method of removal is not necessarily exclusive of the latter, the provisions, of Article 201 of the Constitution do not control this case. Relator’s contention that he is not “ removable for cause,” otherwise than by the Civil District Court, could be well admitted as thoroughly correct-if “judicial” proceedings be referred to, and yet the course pursued by the defendants be perfectly sustainable as legal.

That the General Assembly conceived there was a difference between “ judicial removals for cause after trial,” and impeachment, quasi impeachment or amotion of its officers by a municipal body acting politically and in the discharge of an administrative duty, and that-both could be resorted to though under different circumstances and varying conditions, appears on the face of the act; for whilst Section 49 declares that for the causes specified in Art. 196 of the Constitution the recorders shall be “removed ” in the manner pointed out by Art. 201, Sections 58 et seq. confer expressly upon the council the-power of “ impeaching ” these same recorders.

"We are of the opinion that the Legislature was justified in making the distinction it did. Proceedings for the removal of officers, whether by. that name or that of impeachment, addressal, expulsion, amotion, or quasi impeachment, do not properly and regularly belong to the judicial department; they are universally recognized as arising in and from the exercise of the political power of the State, lodged in its legislative and executive branches. If the judiciary has jurisdiction in any manner, shape or form over such proceedings it is only by virtue of direct special exceptional grant. Whilst the distribution of the different powers in a State to the different depart-merits is of course under the control of the convention which framed the organic law, and it is at liberty in its apportionment of powers to depart in greater or lesser degree from what is and has been for generations regarded as the functions legitimately belonging to each and those separating each, and such action m'jst be maintained and enforced, it is none the less true that such action preserves a distinctive exceptional character. As exceptional in its nature it has to a degree to be construed as to its scope by the rules governing exceptional legislation. Whilst full effect is to be given to it, it should be kept within precise limits and not be extended beyond the cases evidently contemplated to be covered by it. The. reason, the object and the purpose to which it owed its origin must be constantly kept in view.

It must be conceded that in adopting Art. 201 of the Constitution the convention made not only a departure, but a very great departure from established principles. We are therefore of the opinion that when it provided a method for the removal of officers through courts, after a full trial and slow and regular judicial proceedings, it intended to establish special and additional, and not an exclusive method of removal, and that if the proceeding be exclusive it is exclusive only to the extent that it has been so specially made by express declaration. What was the object and purpose of this extraordinary grant of exceptional power to the judiciary ? In our opinion, it was to furnish a guard and a protection against the unjustifiable continuance in office of incompetent and unworthy officers, by giving to the people, acting directly in their own right, a special remedy to which they could themselves have free recourse, independently of the official action of others. Without this article the people would have to rely entirely for relief upon the Governor, or General Assembly or the municipal authorities, who, no matter how great the occasion or cause for action might be, would be free to act or not as they thought proper. With the article they could of themselves force an issue, in any given case — wilful inaction, misplaced friendship, or partisan favoritism to the contrary notwithstanding.

A second purpose was to substitute, in lieu of the removal of officers by addressal by mere resolution, the special method of removal through judicial proceedings, without interfering or clashing with other powers either of the Legislature or of the municipal authorities.

That the convention did not think that the method of removal of officers provided for by Article 201 was exclusive of others of and by its own force, but required a direct affirmative declaration to that effect to make it exclusive, will appear from Article 152, in which it is provided that' quoad addressals from office by the Legislature it should be so to the extent of its terms.

The absolute deprivation of the political right of holding an office under the State, or of holding a municipal office under the City Charter, brought about through the instrumentality of the Legislature or the municipal authorities, is something other and different from the temporary displacement of an officer from an office to which he might again be legally elected or appointed, operated through the courts by regular judicial proceedings.

The source of powder of the two proceedings is not only different, but the penalty is different and the character of the proceedings is different, one being political and administrative, the other being judicial by constitutional grant. A proceeding for the “judicial” removal of a district judge would not bar an “impeachment” proceeding by the Legislature against the same judge for the same offences whilst he was still in office. Pursuing the subject further, we find that the Constitution reserved and gave to the General Assembly full power and control over the creation of a government for the City of New Orleans. It did so with knowledge of and with reference to the well recognized existence inherently in municipal corporations of the power of removal or amotion of its officers, and in giving this unrestricted power to the General Assembly it must have contemplated and did contemplate that in creating the corporation the Legislature would deal with that power, either widening or restraining it, as in its judgment it would deem best. The General Assembly, under the Constitution, had the power to determine what the officers of the corporation should be, and to define and fix their respective duties. It had the right to fix and determine what the qualification for those offices should be — the terms and conditions upon which they should be assumed, and the terms, conditions and circumstances under 'which they should be vacated. Every person accepting office under the City Charter accepted it on the conditions constitutionally affixed to the office in the charter.

The Recorders’ Courts, as we have said, are part of the machinery of the City government. They were not organized by direct special act, under the grant of power conveyed in Art. 136 of the Constitution, but through the act organizing the City under the constitutionally reserved and granted power tf creating a government for the City. The courts are purely statute courts, liable to entirely disappear by legislative action, and subject to modification as to their powers, just as is the Oity government of which they form a part.

We do not think that any of the decisions quoted by relator reach this case. The only point decided in Richard vs. Rousseau, 35 An. 934, was that Art. 201 of the Constitution had no reference to minor officers elected by the various parish and municipal corporations of the State. The mind of the Chief Justice, who was the organ of the court on that occasion, was as to who was outside of the provisions of the article, not who was inside of the same, nor what' the effect of being v ithin it would be.

The fact referred to in relator’s brief, that the recorders are elected by the people and not by thejCommon Council, would perhaps have furnished a good argument before the Legislature in favor of withholding the power of amotion from reaching the recorders, but it does not legally affect the situation when the General Assembly has thought proper not to do so, and there was no constitutional obligation on its part to withhold it. It must be observed, however, that tee Mayor of the City and other officers elected by the people are brought under the operation of the same power. It may also be observed that the attention of the Legislature seems to have been directed to this subject, and to the cases of the officers elected by the people, as in one respect it distinguishes them from those elected by the Council, for Sec. 30 of the act declares “that in addition to the power of removal by way of impeachment the Council shall have power to remove at any time from office any officer of the Council elected by them by resolution declaratory of its want of confidence in said officer, provided that two-thirds of the members elected to said Council shall vote in favor of said reso - lution.” (Italics ours.)

In the minds of some persons it may doubtless be considered unwise to have lodged in the Common Council as much power over the elective officers as the General Assembly has granted to it, but we are not to deal with statutes from what we might consider impolitic or unwise. The issues which are presented in this case are similar to those in the case of the State ex rel. Behan vs. Judge, 35 An. 1075, though advanced at a little later stage of the impeachment proceedings and presented under a somewhat different form. The decision in that ease strongly supports the views herein expressed. We discover no unconstitutionality in Act No. 20 of 1882 in the respects complained of. The impeachment proceedings being legal, the order of suspension based thereon was also legal. Por the reasons assigned, it is hereby 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 relator’s demand be rejected at his costs.

Concurring Opinion.

Watkins, J.

The statement of this ease is best given in the Ian - guage of the relator’s petition, thus:

“That your relator was, on the 22d day of April, 1892, elected Recorder of the Pirst Recorder’s Oourt of the Oity of New Orleans, for the term of four (4) years.

“That he was thereafter duly commissioned, qualified and took possession of, and enjoyed the office of Recorder of the Pirst Recorder’s Oourt of the Oity of New Orleans, until the 18th day of January, 1894, when one Thomas R. Adams did usurp, intrude into and unlawfully take possession of the said office of Recorder of the Pirst Recorder’s Oourt of the Oity of New Orleans, and has ever since continued to usurp, intrude into, unlawfully hold and exercise the functions of said office, to which your relator is lawfully entitled, and which he has the right to exercise.

“ That the said Thomas R. Adams claims the said office by virtue of a certain alleged order of the Mayor of the City of New Orleans, suspending your relator as Recorder of said court, and by virtue of certain alleged proceedings taken by the Common Council of the City of New Orleans, through its Committee on Public Order, as also through all of its members, sitting as an alleged court of impeachment, to remove your relator from the office aforesaid.

1 ‘ That said alleged order of suspension, and said proceedings of said City Council are all taken under authority alleged to be vested in said Mayor and said Common Council, and its Committee of Public Order, under the Charter of said Oity, being Act No. 20 of the Acts of the Legislature of the State of Louisiana for the year 1882, and especially under See. 19, and Secs. 58 to 62, inclusive, of said Act.

“ Relator further avers that said Act of the Legislature of the year 1882, and especially the hereinabove named sections of said Act, in so far as the same purport to confer upon the Mayor of the City of New Orleans, or the members of the Common Council of said City, or any number of them, any power to suspend your relator as Recorder of said Court, or to remove him from his office as Recorder of said Court, are unconstitutional, null and void, for this, that the said Act, in so far as it vests any power in said City Council or in said Mayor to suspend or remove your relator from office, vests in said Mayor and Common Council judicial functions, in violation of Arts, lé and 15 of the Constitution of the State of Louisiana, and it also violates Arts. 193 and 201 of said Constitution, which confer upon the Civil District Court for the Parish of Orleans alone the power of removing your relator from said office.

That the said Thomas R. Adams, notwithstanding the premises, pretends and claims that he has the right to exercise the duties of the First Recorder’s Court of the City of New Orleans; that he is entitled to perform the duties of said office, and to receive the salary thereof, notwithstanding the fact that your relator is not sick, nor absent from the City of New Orleans, nor legally suspended from office.”

The prayer of the petition is that the said Thomas R. Adams may be ousted from the said claim, and debarred from asserting the same against relator; that it may be adjudged and decreed that he is the Judge of said First Recorder’s Court, and entitled to perform its functions and to receive its profits, honors and emoluments, notwithstanding said order of suspension and the proceedings of the City Oouncil looking to his impeachment and removal from office.

The answer is, practically, a general denial, coupled with an averment of the Mayor’s right to suspend the relator from the performance of the duties of his office, under the powers vested in him by law.

It further avers that the provisions of the City Charter in no manner conflict with the Constitution, the relator being a municipal, and not a constitutional officer. That recorders’ courts in the City of New Orleans were for the first time created by the City Charter of 1882, and for that reason the provisions of the Constitution (adopted jU 1879) did not include the judges of these recorders’ courts. That, as these offices were crea ed by the Legislature, io was competent for it to indicate the mode of electing and displacing the incumbents ■of them; and, for that reason, the act of the Legislature does not come in conflict with the Constitution.

On these issues the case was tried and judgment was pronounced in favor of the relator, and the respondent has appealed.

' The Judge a quo assigned as his “reasons for judgment ” that the relator is a municipal officer, and comes within the designation and provisions of Art. 201 of the Oonstitution, viz.: “ and all other, parish, municipal and ward officers;” and that “the formidable power and responsibility of removal having been, by the sovereign will, formulated in the Oonstitution, lodged in the judiciary alone, can not be delegated by the Legislature — a co-ordinate department of the State government — to another body of magistracy. A consideration of Arts. 14 and 15 of the Oonstitution makes this conclusion more inevitable and imperative. “The Mayor and Oommon Oouncil are without power in the premises.”

It is evident that the judge a quo accepted the theory of relator’s counsel, as set out in his petition, to the effect that the legislative grant of power to the Oommon Oouncil of the Oity of New Orleans— Act 20 of 1882 — to impeach, and to the Mayor to suspend a municipal officer, is unconstitutional and void, because it is a judicial power of removal, which, by the terms of Art. 201 of the Oonstitution, is confided exclusively to the Civil District Court, and, consequently, can not be exercised by any other department of the State government, “ nor by any person or collection of persons holding office in them.” Arts. 14 and 15 of Oonstitution of 1879. And it is equally evident that this supposed conflict between the Oity Charter and the Oonstitution arises from the fact that the power conferred on the Oommon Oouncil and the Mayor is the same power that is conferred on the Civil District Court; otherwise, Arts. 14 and 15 of the Oonstitution would have no applicability to the question under consideration.

No other ground is assigned for the unconstitutionality of the Oity Charter, and no other can be considered. This supposition of counsel must be correct, otherwise the position assumed is illogical. And attention is attracted at this time to the position that is assumed by the relator in order to disembarrass the argument of any reference to the question of the constitutional authority of the Legislature to impart political power to the municipality of New Orleans.

But, is the legislative grant of the power of removal by impeachment which the Oity Charter confers upon the Oommon Council of ‘-he Oity of New Orleans, and the power of suspension conferred upon the Mayor, in any sense a judicial power, incompatible with the power that is conferred by Art. 201 of the Constitution on the Civil District Court?

That question was, in effect, decided just the other way in State ex rel. Behan vs. Judge, 35 An. 1075. That was a case of prohibition-issued by this court against one of the Judges of the Civil District Court, who had granted an injunction restraining and prohibiting the Common Council of the City of New Orleans from further proceeding with the impeachment of City Treasurer Walsh, and the Mayor from in any manner interfering with said Treasurer in the possession and administration of his said office.

“The preliminary writ of injunction,” says the Court, “was granted at the instance and request of the Treasurer, and was predicated mainly on his allegations, and on the District Judge’s opinion, that the provisions of the City Charter' which authorize the removal of City officials by impeachment by the City Council were in direct violation of the Constitution.”

And in its analysis of the respondent judge’s defence to the writ of prohibition the court said:

‘ ‘ The alleged unconstitutionality of the proceedings is (subject) to two subdivisions, viz.: (1) that in organizing a court of impeachment, the City Council was usurping judicial functions, in violation of Arts. 14 and 15 of the State Constitution; (2) that the provisions of the City Charter on the subject of impeachment were violative of thej Constitution, Arts. 196 and 201, which had conferred (upon) the judiciary department the sole power of removing municipal officers.”

And in considering and disposing of that de.'ence, the court found the municipal corporation was controlled by a legislative charter, which had then been recently granted in pursuance of the authority delegated by the 254th article of the Constitution' — -this charter specifically recognizing the inherent power of amotion of municipal officers as existing in the corporation, and making additional provision for the exercise of that power by impeachment. •

“ We therefore hold,” said the court, in summing up its opinion on the two propositions above stated, “ both in reason and on abundant authority, that no court of justice had the legal power to interfere, by preliminary injunction, with the municipal council in the exercise of that franchise, one of its plainest and most essential ádministrative functions,” etc.

Entertaining this opinion, the court, of necessity, made the writ of prohibition peremptory, and the twofold effect of the judgment was, first, to maintain the perfect consonance of the impeachment proceedings of the Common Council, with removal proceedings contemplated under Art. 201 of the Constitution, because the former were legislative and the latter were judicial; second, because the power of amotion of municipal officers is inherent in all municipal •corporations, entirely distinct from and independent of the power of removal provided for in the 201st article of the Constitution; which inherent power of amotion found expression in the City Charter in the shape of provisions looking to the impeachment of such municipal officers.

That decision clearly shows that the power of impeachment is not a judicial but a legislative function, and being a legislative function the power of impeachment did not come in conflict with Arts. 201, or 14 or 15 of the Constitution.

That decision proceeds on the theory that the act of the Legislature did not confer a power of removal per se — being examined and considered extrinsically — but recognized the existence of a power of amotion that is inherent in all municipal corporations, and apparently conferred upon the Common Council of New Orleans authority to exercise it by means of impeachment.

Yet the court did not pass upon the question of the constitutional right of the Legislature to provide that means of amotion, but distinctly left that question open for future settlement.

A careful examination and consideration of the principles announced in the Behan ease clearly indicate that they must control the decision of the present case, because the issues are almost identical.

In that case the Common Council had inaugurated impeachment proceedings for the amotion of th6 City Treasurer for certain crimes and misdemeanors specified in the City Charter, and said treasurer resorted to an injunction in the Civil District Court for the purpose of arresting their further progress, and to prevent his suspension from office by the Mayor, pending the trial of the impeachment.

In this case the same council inaugurated like impeachment proceedings for the amotion of the relator as City Recorder for certain •causes assigned in the City Charter, and relator resorted to this suit in the Civil District Court for the purpose of ousting the respondent from the office to which he had been elected, and from which he had been suspended by the Mayor, pending the impeachment trial — ■ relator contending that his suspension and respondent’s appointment were illegal, because of the illegality of the impeachment proceedings resulting from the unconstitutionality of the City Charter in that particular.

The only possible difference that is discoverable between the two cases is in the fact that the impeachment proceedings have gone a little further in this case than they had in the Behan case — the Mayor having actually suspended the relator and appointed the respondent in his stead to act ad interim.

This being the exact situation of the case, was not the Civil District Court asked to do just what it was prohibited from doing in the Behan case — namely, restrain impeachment proceedings of the City Council? And does not this appeal invite this court to undo w'hat that court has done, on the same ground and for like reason that it made Mayor Behan’s writ of prohibition peremptory? Undoubtedly it does.

Realizing, doubtless, the difficulty of this situation, counsel for relator attempts, by argument, to break the conclusive force of the Behan caso, by citing from the opinion that paragraph in which the court states that the view taken of that controversy obviated the “ necessity of passing on the alleged unconstitutionality of the City Charter on the subject of impeachment ” — the court holding that its conviction was clear to the effect that the District Court had wrongfully exceeded the bounds of its jurisdiction in enjoining the City Council in the exercise of its power of amotion of a municipal officer, albeit the process of amoting the officer was by statutory impeachment. But it seems clear that counsel entertain a proper conception of the distinction that was made by the court when they make, in their brief, the following statement:

“ In the Behan case a judge of the Civil District Court had enjoined the City Council from prosecuting impeachment proceedings against Walshe. The Supreme Court issued a writ of prohibition against this exercise of jurisdiction by the District Court upon the old and well settled principle that a court will not interfere with the legislative or grwasi-legislative proceedings of a municipal body, but will restrict its interference to a protection of persons and property against unlawful interference with rights by any one claiming under color of a void municipal ordinance or resolution. This was the decision in the Behan case, and anything else was clearly dictum,."

But, as is shown in this argument, this controversy is in the identical situation of the Behan case — Whitaker, recorder, and Walsh, treasurer, occupying identically the same plane as municipal officers, and equally without right of action in the Civil District Court to arrest the impeachment proceedings pendente lite.

And while the proposition announced by counsel for relator, that the jurisdiction of the Civil District Court will be recognized — and was in the Behan case recognized — to protect the rights of “persons and property against unlawful interference by any one claiming under a void municipal ordinance or resolution,” may be accepted as correct as a general proposition, yet it does not go to the extent counsel claim it does. The theory of the court doubtless was that the rights of persons and property could be tested and determined by the courts after the impeachment proceedings were carried to the period of finality, and not while they were in motion; for, non constat, that the impeachment court would fail of convicting the municipal incumbent. But that, in the event of conviction, the removed official might then test before the courts of justice the constitutionality of the law which conferred the power to impeach; or, in other words, whether the terms and provisions of the Constitution were sufficiently broad and comprehensive to permit the General Assembly to confer on the municipal corporation the legislative power of impeachment as a means of amotion of municipal officer, and to entail as a consequence future deprivation of the right of the incumbent to hold municipal office.

But that is not the present situation of the Whitaker case. The impeachment court has not yet disposed of the questions before it, and having as yet arrived at no conclusion, and rendered no judgment, the stage at which the jurisdiction of the courts has its inception has not been reached.

My conclusion is that in so far as the question of the unconstitutionality of the City Charter, on the ground that it is an attempt to vest in the Common Council of the City of New Orleans and the Mayor a power of removal that, by the Constitution, is exclusively conferred on the Civil District Court of New Orleans, is concerned, it must be answered in the negative; and that, in so far as the question of the constitutional power of the General Assembly to vest in the Common Council of the City of New Orleans the power of impeaching municipal officers, and entailing, as a consequence of conviction, deprivation of the right of the ousted official to thereafter hold municipal office, is concerned, no authoritative opinion can be now pronounced, because (1) it is not made an issue in this case; and (2) it can become a question for the courts only when the impeachment proceedings have been completed, and the rights of persons or property are properly put at issue thereunder, and said proceedings and decree are set up as the foundation of some right or claim, or same are relied upon as the muniment of some title to office.

For these reasons I concur in the opinion and decree reversing the judgment appealed.

Concurring Opinion.

McEnery, J.

The principle contended for by relator, that when the organic law provides for the removal of an officer it is exclusive of any other mode than that pointed out in the Constitution, admits of no controversy.

The Recorders’ Courts in the City of New Orleans are part of the judicial system provided for that City by the Constitution. Const., Art. 136.

The recorder is a judicial officer, possessing generally the power and authority of a judge. 4 Dali. 299.

But the Recorder’s Court is not a court of record within the meaning of Art. 196 of the Constitution. Therefore that article providing for impeachment of judges of courts of record can have no application to this case. The recorder is excluded from the rule of removal provided by said article and Art. 197 by Articles 201 and 93.

There are three modes provided by the Constitution for the removal of recorders of the City of New Orleans for high crimes and misdemeanors : (1) by suit before the Civil District Court, Parish of Orleans, in accordance with Art. 201; (2) by impeachment; (3) on address of two-thirds of the members elected to each house of the General Assembly. The last two modes are provided for by Art. 93 of the Constitution.

It is generally conceded that Art. 197 of the Constitution, vesting the sole power of impeachment in the House of Representatives, applies only to the officers mentioned in Art. 196. Article 93 is as follows: “The judges of all courts shall be liable to impeachment for crimes and misdemeanors. For any reasonable cause the Governor shall remove any of them on the address of two-thirds of the members elected to each house of the General Assembly. In every case the cause or causes for which such removal may be required shall be stated at length in the address and inserted in the journal of each house.”

There is a clear distinction between Arts. 196 and 93. If it had been intended that all judges should be impeached by the House of Representatives the Art. 196 would have said so, and Art. 93 would have been unnecessary. The impeachment mentioned in Art. 93 is not vested in the House of Representatives, and it was competent for the General Assembly to lodge it elsewhere. In all matters not prohibited by the Constitution the General Assembly is supreme.

If the Constitution had said that the City Council could impeach the recorder for high crimes and misdemeanors there would be an ■end «f the controversy. The Constitution not having forbidden the delegation of this power either directly or by implication, the General Assembly in the exercise of its supreme authority could vest it in the City Council of New Orleans. That Article 93 contemplated in the case of recorders a delegation of this power to the City of New Orleans is very plain from the text of Art. 198. It is significant that in this article, instead of using the word Governor or executive the words “ appointing power” are employed.

The article says: “ All officers against whom articles of impeachment may be preferred shall be suspended from the exercise of the functions of their office during the pendency of such impeachment, and except in case of the impeachment of the Governor the appointing power shall make a provisional appointment to replace any sus - pended officer until the decision of the impeachment.”

That this article applies also to another “ appointing power ” than the Governor or executive who issues commissions for original vacancies or to elected officers is very clear because of the omission of the words Governor or executive, a,nd the delegation by Art. 253 of the Constitution to the citizens of New Orleans of the right of appointing the several public officers necessary for the administration of the police of said City. The recorder is a necessary officer for such purposes, and the Art. 93 seems specially to have been framed for the purpose of allowing the City Council, by permission of the General Assembly, to impeach for high crimes and misdemeanors the recorders of the City of New Orleans. State ex rel. Behan vs. Judge, 35 An. 1075.

In my opinion any offence embraced in the description of Art. 196 of the Constitution, which is not a crime or misdemeanor, must be, for the removal of the recorders, prosecuted according to Art. 201.

I concur in the decree.

Dissenting Opinion.

Miller, J.

My examination has brought me to a conclusion different from that reached by the majority of the court in this case.

The question is whether the relator, the Recorder of the First Recorder’s Court of the City of New Orleans, to which he was duly elected under the law creating it, can be removed by the order of the Mayor of the City, and under color of impeachment proceedings of the City Council. The Constitution of the State, under the rubric Impeachment and removals from office,” provides that district attorneys, clerks of court, sheriffs, coroners, recorders, justices of the peace, and all other parish, municipal and ward officers, shall be removed by judgment of the District Court of the domicile of such officer, specifies the mode of procedure and court, and designates the Civil District Court of the Parish of Orleans as the tribunal for all removal proceedings against officials filling offices in this Parish. Other articles under the same rubric deal with the impeachment and removal from office of the Governor and other constitutional officers of the executive department. The removal of the judges is provided for in another article, and there is found the provisions for the removal of recorders. (Const., Arts. 196 et seq., 201.) The article expressly mentions his office; and to make the scope of the provision more emphatic, declares that all other parish, municipal and ward officers are intended to be embraced. The Constitution uses the term “impeachment” only with reference to the Governor and other heads of the executive department. In dealing with the judges and municipal officers the words “shall be removed” are used. While impeachment has'a larger significance than removal, it certainly includes removal from office. The Constitution specifies the causes for impeachment and removals, and embracing every conceivable cause, thus: High crimes and misdemeanors, non-feasance or malfeasance in office, incompetency, corruption, favoritism, extortion or oppression in office, gross misconduct or habitual drunkenness. With this enumeration of causes, and of all the executive, judicial, parish, ward and municipal offices, the Constitution confides the impeachment and removal power to the Senate and House in respect to the Governor and chief executive officers, and to the courts is entrusted the removal of the judicial and parish and municipal officers. It seems to me the Constitution manifests plainly that the whole power of impeachment and removal from office was to be exerted solely by the instrumentality specified in the Constitution. There is plainly exhibited the appreciation that the power was judicial in its nature. Following the precedent of the Constitution of the United States, it clothed the House of Representatives with the function of preferring articles of impeachment of the higher State officers, and their trial is to be by the Senate, vested for that purpose with judicial powers, the highest judicial officer of the State, the Chief Justice, presiding. In respect to judicial and other officers, including recorders and all municipal officers, the courts are designated to exert the power of removal. It is, in my opinion, useless to discuss whether the power of removal of officers like recorders, on general principles, pertains at all to the City Council. All will recognize that it was for the framers of the Constitution to determine whether the grave power of removal from office, carrying with it the stain on character necessarily implied, should be vested in a body like the City Council, or reposed in that department of the government better qualified, from its structure and modes of proceeding, to deal with such questions. In my view, the Constitution expresses in the clearest language that the power of removal is not in the City Council, but in the courts. The opinion of the majority of this court affirms that notwithstanding the constitutional provisions on this subject, the power to remove the incumbent of the office of recorder, created by legislative act, is in the City Council. Const., Arts. 196, 201; Act No. 20 of 1882, Secs. 80, 58 et seq.

I can not appreciate the argument that there can be an impeachment or removal power in the courts by vir.ue of the Constitution, and the same power, whether called impeachment or removal, and for precisely the same causes as are prescribed by the Constitution, vested in the Oity Council. I see no purpose in the Constitution- to leave that power to be exerted by the courts or by the council. No such view, it is reasonable to suppose, ever occurred to the framers of the Constitution. When the organic law confided the power to the courts, in any reasonable construction it must be deemed to have intended the exclusion of any other instrumentality. Nor can I see the force of the argument that, because the recorders as now constituted are named in the City Charter of 1882, that therefore the Constitution framed in 1879 has no application to recorders. The Constitution announced a policy for the future as well as the present. It refers specifically to recorders known to the law since 1805 as exerting judicial functions in this city. The constitutional provisions in Art. 201 applied to the office of recorder as then existing, and to the same office thereafter modified or created by subsequent legislation. As soon as the act of 1882 was passed the Constitution applied itself to the office of recorder named in that act, and fixed for all time as long as the Constitution should endure the power of removal in the courts. No refinement of language nor of meaning can take recorders out of the scope of Art. 201. If the mode of removing recorders is not prescribed by that article, with equal reason it might be said sheriffs or coroners are not embraced. Recorders, sheriffs and coroners are named and ex industria, “all municipal and parish officers,” is added. The contention then admits consistently of no support that the Constitution does not provide for the removal of recorders. Is it now to be maintained that consistently with the constitutional provisions the Legislature could by the Act of 1882 provide another method of removal? Least of all, can I understand that the decision in the Behan case (35 An. 1075) controls the question here. It is familiar that courts never enjoin legislative bodies. The Behan case was an injunction to restrain the council from continuing pending impeachment proceedings against the City Treasurer. The issue was simply and only whether such injunction could issue. That determination disposed of the controversy. All the reasoning of the court was limited in legal effect to the point presented. The impeachment was never consummated. How then can it be affirmed that the court in that case determined the grave question here presented whether the impeachment is not exclusive in the courts? While the court in that case used language tending to affirm an impeachment power in the council, the reason.ing can not by any canon of construction be accepted as a decision of the issue here. Indeed, the view of the court in the Behan case seems to be announced thus:

“We are therefore clear in our conviction that in this ease the District Court has wrongfully exceeded the bounds of its jurisdiction, and that the proper and only efficient check is by the writ of prohibition. This view of the controversy obviates the necessity of passing on the alleged unconstitutionality of the City Charter on the subject of impeachment, which will be disposed of whenever it comes up in a proper proceeding.”

This is no case of an injunction to stay proceedings of the council. Right or wrong the council proceeds. But the ease calls on this court to determine whether the relator can be deprived of his office and emoluments by virtue of the council proceedings. While courts never interfere with the proceedings of legislative bodies, it is the-undoubted judicial function to determine the effect of such proceedings when they affect the rights of parties, and to protect such rights. That is the function this court is called to exercise. In its exercise the court must decide whether the removal power exists in any department but the courts, and in my opinion the question admits only of one answer, which finds apt expression in this language of the late Ohief Justice:

“ It is an axiomatic proposition that a Legislature is powerless to act where the Constitution has spoken and has left no room for its action. Hence, when a Constitution has provided for the qualification of certain officers, for their removal for certain causes, by certain authorities, and in a certain way, a Legislature is dncompetent to prescribe, as to those same officers, for different qualifications, different causes of removal, different authorities or different ways. It can neither add nor take from the constitutional provisions on those subjects, which must remain untouched and enforced as written.”

I think, too, that the previous adjudications of this court support the exclusiveness of the methods of removal prescribed by the Constitution. 34 An. 273; 35 An. 993.

In my opinion the relator is entitled to the relief he seeks.


author: Breaux, J.

text:
    No. 11,745.
    Widow A. Botto vs. Mrs. C. F. Berges et al.
    The purpose of the suit was to have an agreement annulled, in which plaintiff promised to buy and the defendant to sell immovable property.
    The formalities required have been complied with in the first adjudication of the property at tas sale.
    It was properly adjudicated to the highest bidder, under Act 82 of 1884, without regard to the amount due on the property.
    Since the adjudication the tases assumed by the adjudicatee have been paid, thereby perfecting the tas title beyond all question. But the ^subsequent tas sale of the property was a nullity. It was adjudicated as property of the State, although it was not shown that the J3tate ever acquired any right to make such a transfer. No proof was made of the fact of adjudication to the State for tases, and yet the tas collector undertook to sell it as property that had been adjudi - cated to the State for tases.
    The joint owners, who held under the first and legal tas deed, signed a “quit claim,” thereby transferring good title to the defendant. All, escept one, Signed a document in due form.
    The latter sans seing prive, authorized the relinquishment of his right as]owner.
    No attempt was made to procure authentic evidence or relinquishment as required.
    The purchaser has the right to a title authenticated in due form.
    The absence of such evidence justified the plaintiff in refusing to take title.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      E. J. Méral and Albert Voorhies for Plaintiff, Appellee.
    There must be two attesting witnesses to an authentic act; otherwise its execution must be proven as an act under private signature. C. C. 2234.
    The same rule applies to acts executed by a commissioner. Nor can the act be admitted even to prove rem ipsam, without proof of its execution. Leibe vs. Haversmith, 39 An. 1050; Miller vs. Werner, 22 An. 457; and Langley & Kinkead vs. Burrows & Co., 15 An. 392.
    A promise of sale subject to ezamination of titles means that the vendor must exhibit a regular chain of titles, free from all cloud.
    A chain of titles running back to less than ten years does not meet the requirement; more especially when the two first deeds of this chain are tax sales.

      A promise of sale, accompanied by a deposit of earnest money, is governed by provisions of O. 0., Art. 2463, which is of limited application, and recognizes the liberty of either promisor or promisee to withdraw from the main obligation. But when either party is at fault, and there is no cause to rescind the obligation, then recourse is had to general principles, as found under C. 0., Arts. 1779, 1797, 1883, 1893.

      Dart & Kernan for Defendant and Appellant:
    The title tendered plaintiff is valid and legal in every respect, and one from the acceptance of which no trouble or annoyance could possibly result. It is maintained by the ratification of the heirs of Piles (or Pyles), the prescription of three years, and the numerous adjudications maintaining titles of this nature. Martin vs. Langenstein, 43 An. 791, and cases cited; Henderson vs. Bllerman, 47 An. 306.
    The ratification of tax titles, under Act 82 of 1884, is unnecessary; therefore, whether document complained of be authentic or not, is of no consequence to the validity of the title tendered by defendant.
    A tax sale made in exact conformity with the requirements of Act 82 of 1884, and the principles announced in re Lake, 40 An. 142, and in re Douglas, 41 An. 765, will be affirmed to pass a legal and valid title, there being no question raised as to the legality in the assessment of the property. 47 An. 306.
    Argued and submitted April 23, 1895.
    Opinion handed down May 6, 1895.
   The opinion of the court was delivered by

Breaux, J.

This is a suit to recover two hundred dollars deposited by plaintiff as earnest of her promise to buy.

The plaintiff alleges that defendants’ title was not legal and valid; that the defendants have not made a tender of the title; that they are not the owners, and that there are mortgages and privileges recorded against the property.

That, although unable to give good title, the defendants refuse to return the money deposited.

The answer controverts plaintiff’s demand, and contains a plea in reconvention; it sets out the validity of the title, and prays for judgment condemning plaintiff to take title and pay the fine or forfeit the earnest money.

In the written agreement, in compliance with which the deposit was made, the property is described. The plaintiff promised to buy, to buy, subject to an examination of title.

The following is the chain of title:

On the 13th of July, 1886, the property was adjudicated at tax sale, under Act 82 of 1884, to W. A. Piles for Widow Wm. Piles for thirty-three dollars.

The taxes at the time amounted to one hundred and one dollars and twenty cents. In the deed the purchaser assumed all the State, city, parish and municipal taxes on the property for the year 1880 and years subsequent.

On the 21st of August, 1890, the same property was sold by the tax collector, under Act 80 of 1886, to Miss Alice M. Stiekney, for the taxes of the years 1880 to 1883 inclusive, who also assumed taxes for years subsequent to that last mentioned. Miss Stiekney sold to J. H. Black, and in 1891 Black sold to the defendant, Mrs. O. B. Berges.

In the last act, the heirs present, of Mrs. Wm. Plies intervened and signed a quit claim to the property.

One of the heirs was an absentee, represented by an agent under a procuration acknowledged in New York before a notary, without witnesses.

A clerk of a court of record certified that the notary was duly authorized to receive the acknowledgement, was genuine.

The Secretary of State of New York issued the usual certificate, showing that the clerk was duly authorized to act.

But no witnesses having signed the procuration, under Louisiana laws it was an act sous seing prive.

Moreover, the procuration does not in terms refer to any property ; it does not authorize the agent to relinquish any right to the property or to ratify the tax deeds, which are part of the chain of titles.

The judgment of the District Oourt rejected defendant’s reconventional demand, and condemned him to return the two hundred dol - lars, earnest money.

The defendants prosecute this appeal. The appeal is before us only in so far as relates to the plea in reconvention. The amount of the principal demand is not within the jurisdiction of this court.

The tax deed, bearing date 13th July, 1886, when Mrs. Piles became the owner at tax sale, has every appearance of being regular and legal in all respects.

The required formalities have been complied with under Act 82 of 1884.

Subsequent to this date the property was, at another tax sale, adjudicated to Miss Stickney.

The adjudication at this last tax sale was illegal, and the title did did not pass from the owner under that adjudication. The tax collector declared in the deed of adjudication that the property had been previously adjudicated to the State of Louisiana for the taxes of 1880 and subsequent years.

The adjudication was not proved, save the ex parte declaration of the tax collector contained in his deed of adjudication. There is no legal evidence before us of any adjudication, whatever, to the State.

The defendant doubtless felt the necessity of curing the patent defect in the chain of titles, and for that reason obtained from the heirs of Mrs. Piles a quit claim signed by all the heirs, in due form, except one, as we have already stated.

It is unfortunate for the defendant that the power of attorney is not authentic, and that the signature of the principal was not proven on the trial of the case.

The document produced by the defendant was an act under private signature, and not admissible as authentic evidence to prove title.

The notary public before whom the acknowledgment was signed was vested with authority similar to that exercised by notaries in Louisiana.

The acknowledgment before a notary in this State would not have made it authentic, without witnesses, and the same must be true of an act acknowledged in another State to effect the title to real property here. Langley & Kinkcad vs. Burrows, 15 An. 392, 393; Miller vs. Wisner, 22 An. 457, 458.

The promise to transfer property for cash, under a title in every respect legal, was a condition not complied with by the defendant, and it, in consequence, justifies the plaintiffs in praying that the written agreement of promise to buy be declared no longer of any effect.

The defendants’ reconventional demand is properly dismissed.

The judgment, is therefore, affirmed.


text:
    No. 11,674.
    Solomon Reinach vs. Maurice M. Levy.
    The husband deserted his wife after two weeks’ marriage and permanently disappeared.
    The wife bought real estate with her paraphernal funds during the marriage.
    She sold it after the dissolution of the 'marriage. It was her property and never belonged to the community. The title involved here is valid and legal.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Ohrétien & Suthon for Plaintiff, Appellant.
    The burden of proof is upon the wife to establish affirmatively and clearly that she bought with her own separate funds, under her own own separate administration. 17 La. 300; 12 R. 582; 2 An. 763; 5 An. 811; 8 An. 286; 17 An. 598; 15 An.- 119; 16 An. 214; 20 An. 532; 21 An. 344; & An. 521; 30 An. 170; 35 An. 570.
    Even when the act contains specific mention thereof, giving derivation of funds. 1 La. 206; 11 An. 326; 18 An. 126; 20 An. 531; 32 An. 612; 30 An. 169; 5 An. 741; 35 An. 570.
    The purchaser cannot be made to take a title which is not unquestionably good and which is subject to litigation. 41 An. 1100; 40 An. 571 (574).

      Benjamin Ory and Lazarus, Moore & Luce and Branch K. Miller for Appellees:
    When a husband has voluntarily lived separate and apart, and the wife during that time has purchased real estate, the title to which being on record in the name of the wife, as a donation made to her individually, was subsequently acquired by an innocent third person in good faith, under a chain of title from the Wife, it was held that the husband could not, after the wife’s death, recover the property, as having belonged to the community and having been sold by the wife without authority.
    The husband, by parol evidence, could not thus despoil the purchaser of immovable property, acquired under a chain of recorded titles apparently perfect, without notice, actual or constructive, of the husband’s latent claim, which has no basis in equity. Wooters vs. Feeney, 12 An. 449.
    Though it be not so stated in the act, the wife may show that property purchased in her name was purchased with her paraphernal funds, under her own administration. Such property is paraphernal, not community. Succession of Pincard vs. Holten, 30 An. 167.
    Where one of two innocent persons must suffer a loss through the misconduct of another, the loss ought rather to fall upon him who put it in the power of the third party to inflict the injury. McMahon vs. Dubuclet, 27 An. 45; Gardner vs. Maxwell, 27 An. 562.
    Submitted on briefs, April 26, 1895.
    Opinion handed down, May 6, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff was subrogated to the rights of the adjudicatee of property offered at auction. He made the usual deposit of ten per cent, with the auctioneer.

He sued for the cancellation of the adjudication and the return of the amount deposited, having ascertained, he avers, upon an examination of the title that it is defective, as it was bought from a divorced wife; that it was bought by her prior to the decree of divorce, and became part of the community existing before she obtained her divorce.

Defendant’s author married one Oohn about twenty-five years ago. Two weeks after the marriage he deserted his wife, ran away, and she has not heard from him since. She was a servant at Mobile, Ala., at the date of her marriage. Her employer testifies that to his knowledge she had a few thousand dollars — an amount larger than the amount she paid for the property involved in this case.

She had obtained her divorce some time prior to the sale by her to the defendant.

The good faith of the defendant is not questioned. The record does not disclose that he knew that the property was acquired by his vendor during the existence of a former marriage.

The proof is that it was not community property. It was bought by Caroline Weil in 1883, and the act of sale to her does not show that she had ever been married at that time. She appeared in the act as a femme sole.

Having contracted a second marriage, in her act of sale to the defendant she was authorized by her second husband. It is evident that in her business transactions, at least, she was quite reticent regarding a first marriage.

Having bought the property with her separate funds, it is manifest that her first husband, if living, has no right to recover any portion of the property.

Much less could he recover the property from the defendant, a third person, who purchased from a wife (duly authorized by her second husband) who was the owner by purchases, in her name, prior to her second marriage.

Even without reference to the great lapse of time since the date of her first husband’s desertion and disappearance, the title is not defective.

But long acquiescence is in itself a factor which must add great weight to existing conditions.

The conclusion of the court had much less support in Wooters vs. Feeney, 12 An. 449, 450, and yet the sale was declared legal.

The court regarding the husband, pertinently says:

“ He lived apart from his wife, unknown to the world as her husband; permitted her to manage her affairs as a femme sole, contributed nothing to the common fund and during her lifetime did not pretend to have any interest in her affairs.

“ He can not, by parol evidence, succeed in despoiling the defendant, who is a purchaser for a valuable consideration of immovable property under a chain of recorded title apparently perfect, without notice, actual or constructive, of the plaintiff’s latent claim which has no basis in equity, and is the result of his own negligence or misconduct.”

Such being the conclusion, under the state of facts in that case, we are convinced the judgment should be here affirmed.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.


author: Breaux, J.,

text:
    No. 11,700.
    Clara Coco vs. F. Gumbel, Liquidator; Perkins Bros. vs. F. Gumbel, Liquidator (Consolidated).
    One who claims the ownership of a note secured by mortgage and a subrogation by purchase, who is not shown to have been a creditor, is not entitled to legal subrogation. The defendant, on the notes paid by him for the maker, is not entitled to legal subrogation.
    APPEAL from the Tenth Judicial District Court for the Parish of Avoyeiles. Lafargue, J., ad hoc.

      J. G. Gappel and Joffrion & Joffrion for Plaintiffs, Appellees.

      G. H. Couvillon and Saunders, Miller, Smith & Hirsh for Defendant, Appellant.
    Argued and submitted, March 16, 1895.
    Opinion handed down, April 8, 1895.
    Rehearing refused, May 20, 1895.
   The plaintiffs, as holders of the notes of which Paulin J. Coco was the maker, secured by vendor’s mortgage, bearing in favor of his vendor, Robert Coco, assert by third oppositions, that F. Gumbel, liquidator, had no privilege or mortgage; that he was not subrogated to rights of Thorpe, the vendor of Robert Coco, but that he had absolutely paid the notes, and that he had thereby entirely extinguished the vendor’s mortgage.

The court having determined the question of law presented by an appeal, when i( appears that through error, there was an omission to introduce certain evidence to explain receipts given, and the court concludes such error should not prejudice the defendant and appellant, the case will be remanded.

Breaux, J.,

delivered the opinion of the court.