author: Ludeling-, C. J.

text:
    No. 3682.
    A. Miltenberger & Co. v. W. H. Keys, Sheriff and als.
    "Where a fair and correct settlement was made between A. Verret and his sons-in-law, "W. H_. and J. M. Knight, in which the mortgage judgments in. favor of their wives against Verret were placed to their credit and reduced their own indebtedness pro tmto, and subsequently W. H. and ff. M. Knight transferred said judgments to Adams &. Co., and their wives ratified the transfer ;
    Held —That Adams and Co., obtained no mortgage under said transfer, because the judgments thus transferred had been extinguished by the settlement between W. H. Knight, J. M. Knight and A. ^Verret, which was a valid one. The husbands could have sold those judgments or collected the amount of the judgments and used the money in payment of their debts, or in any other way they had chosen.
    The power of tho husband to administer tho wife’s property is different irom that of an ordinary attorney. One essential difference is, that the husband may lawfully appropriate to his own use the money of his wile, collected by him. The attorney can not.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J.

      Bightor and MeGollwm, Legendre and Porche, for plaintiffs and appellants. Goode and Winder, for defendants and appellees.
    Justices concurring:- Ludeling, Taliaferro, Howell, Wyly, Morgan..
   Ludeling-, C. J.

Mavie Louise and Marie Elizabeth, daughters of Adolphe Yerret, of Terrebonne, had a legal mortgage upon their father’s property to secure the sum of eleven thousand four hundred and forty-nine dollars, as shown by a final account of A. Yerret, homologated on the twenty-seventh of April, 1852.

The general mortgage was converted into a special mortgage on the-undivided half of a plantation in Terrebonne. Louise and Elizabeth Yerret, having intermarried with William H. and John M. Knight, brought suit against their father and obtained judgments against him in July 1867, each for five thousand seven hundred and twenty-four dollars, with legal interest from twenty-seventh April, 1852, with recognition of their mortgages.

On the twenty-second of May, 1869, a settlement was made between A. Verret and Ms sons-in-law, W. H. and J. M. Kniglit, in which the •judgments in favor of their wives were placed to their credit, and reduced their indebtedness to Adolphe Verret pro tanto.

This settlement is evidenced by a written memorandum signed by the parties — and, in this case, the Messrs. Knight and Adolphe Verret have testified that the settlement was a fair and correct settlement of their affairs.

Subsequently, on the eighth of June, 1869, the Messrs. Knight transferred to Adams & Co. the two judgments obtained by their wives against A. Verret, and their wives ratified the transfer.

A. Miltenberger & Co., who hold a mortgage next in rank after the mortgages of Louise and Elizabeth Verret, on the property of Adolphe Verret, contest the right of Adams & Co. to a mortgage under the transfer to them of the judgments in favor of Louise and Elizabeth Verret v. A. Verret, on the ground that the said judgments were extinguished by the settlement between W. H. & J. M. Knight and Adolphe Verret, made on the twenty-second of May, 1869.

The question presented for our decision is, was the settlement made by the Messrs. Knight, of their wives’judgments, valid or not; had they the right to use the judgments as they did? We are at a loss to imagine why the settlement was not valid. The husbands could undoubtedly have sold those judgments or collected the amount of the judgments, and used the money in payment of their debts, or in any other way they had chosen; and we can see no reason why, instead of •taking the money from A. Verret and then immediately returning it to him, they could not accomplish the same thing by a written statement of their accounts and settlement. C. C. 2390, 2285; 4 R. 114; 12 Rob. 524; 19 La. 440; 12 An. 562; 13 An. 536.

The cases of Nolan v. Rogers, 4 N. S. 145, and Hickey v. Tharp, 4 La. 336, relied upon by the defendants, have no application to the question at issue in this case. They relate to the powers of an ordinary attorney. The case of Hourahan v. Leclercq, 15 An. 204, is also relied upon, and it appears to have some application to the case in hand. A careful examination of the case, however, satisfies us that the portion of the opinion which bears upon the question, to wit: the right of the husband to receive his own debts in payment of debts due to his wife, is an obiter dietum. In that case the court said: The husband, in the administration of the wife’s separate estate, acts as her mandatory or agent, and his power or authority to receive his own' debts in payment of debts due to his wife, must be determined by the rules of law which regulate the contract of mandate. And according to these rules, an agent has no authority to take his own obligations in payment of debts due to his principal. Hickey v. Tharp, 4 La. 337; Nolan v. Rogers, 4 N. S. 145.”

It is needless to say that the power of the husband to administer the wife’s property is different from that of an ordinary attorney. One essential difference is, that the husband may lawfully appropriate to his own use the money of his wife collected by him ; the attorney can not. C. C., 2390.

We are of opinion that the settlement made on the twenty-second of May, 1869, was valid, and that the judgments in favor of Marie Louise and Marie Elizabeth Verret, wives of W. H. and J. M. Knight, against Adolphe Verret, were extinguished by payment.

This view of the case renders it unnecessary to examine the bills of exception taken in this case.

It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the plaintiffs perpetuating the injunction, that the recorder of the parish of Terrebonne do cancel and erase the special and judicial mortgages in favor of the said Marie Louise and Marie Elizabeth Verret, wives of W. H. and J. M. Knight, against the property of Adolphe Verret described in the petition ior injunction, and that the defendants pay costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 3931.
    Joseph Le Blanc v. Louis St. Germain.
    The benefit of the homestead act can be pleaded in bar of the foreclosure of a conventional mortgage given on the homestead subsequent to the enactment of the law.
    It can not be rightfully contended that, in con enting to the mortgage, the plaintiff in injunction waived the benefit of this exemption, and thatjjit amounted to a renunciation of the right. Ko one is presumed to waive a legal right, and every contract is supposed to be made in reference to the law that governs it. In this case there was no express renunciation or waiver.
    APPEAL from the Second Judicial District Court, parish of St. Bernard. Pardee, J.

      P. if. McOaléb, A. & J. M. IAvaudais, for plaintiff and appellee. Marcel Pucros, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyly, J.

The plaintiff, who injoined the foreclosure of the mortgage of the defendant on the ground that the property seized is his only homestead, appeals from the judgment dissolving the injunction with ten per cent, damages.

That the property seized is defendant’s only homestead is not disputed. The question is, can the benefit of the homestead act be pleaded in bar of the foreclosure of a conventional mortgage given on the homestead subsequent to the enactment of the law 9 By section 691 of the Revised Statutes of 1870, in certain cases the homestead is exempt from seizure in addition to property and effects now exempt from seizure and sale under execution.” The defendant contends that the law has no application to a sale under the foreclosure of a mortgage, but only refers to sales under execution.” We can not accept this interpretation of the law. It has a broader meaning. The obvious purpose of the law-giver was to exempt from forced sale in certain cases the homestead of the debtor; and it is the intention of the lawgiver that we must seek and give effect to.

The defendant contends also, that in consenting to the mortgage the plaintiff waived the benefit of this exemption ; that it amounted to a renunciation of the right. No one is presumed to waive a legal right; every one is presumed to contract iii reference to the law. The plaintiff and defendant are presumed to have done so. Nothing was said in the contract in regard to the remedy thereon. This the law supplied as thoroughly as if inserted in the instrument. Section 691 of the Revised Statutes appertains to the remedy; and if in forced sales it can be disregarded at all (of which we here express no opinion) it must be by an express renunciation or waiver.

It is therefore ordered that the judgment appealed from be annulled, and it is now ordered that the injunction herein be perpetuated and that the defendant pay cost of both courts.

Rehearing refused.


author: Ludeuing, C. J.

text:
    No. 4592.
    Nancy Doughty v. The Sheriff and als.
    Where a wife had obtained a judgment against her husband, under which his property had been sold and purchased by h 9c;

    Hold — That after her purchase the judgment creditors of her husband could seize the same property as his, and that the wife had not the right to injoin the sale thereof, inasmuch. . as the sale to her was not recorded in the recorder’s office.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.
    D. G. Wedge, Pace, Poster & Merrieh, for plaintiff and appellant. Kernan & Lyons, for defendants and appellees.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeuing, C. J.

The defendants, II. B. Chase and John Effut, obtained judgments against Win. F. Doughty, the husband of plaintiff. She had obtained a judgment against her husband under which his property had been sold and purchased by her. After her purchase, the judgment creditors of her husband seized the same property as his, and the plaintiff has injoined the sale thereof. The defendants had a right to seize the property, inasmuch as the sale to the wife was not recorded in the recorder’s office. 21 An. 427, 241; 22 An. 113.

It is therefore ordered and adjudged that the judgment of the district court be affirmed with costs of appeal.


author: Howell, J. Wyly, J., Wyly, J.

text:
    No. 2945.
    A. Lartigue v. Clara White, Wife of Carl Kohn, and als.
    Where the motion was to dismiss the appeal, on the ground that the amount in dispute did not exceed five hundred dollars;
    Held — That the suit being for one thousand dollars against three heirs who are in pbssession of the estate they inherited, for services rendered as attorney in se tling the succession, and judgment having been asked and granted in the court a qua against them jointly for said sum, in proportion to the respective shares received by them, the motion must bo overruled, because the claim, as stated, is one against the succession, and the fact that there are several heirs who must pay proportionately, does not change the nature and amount of the matter in dispute.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      JS. Eoivarcl MeCaleb, for plaintiff and appellee. Miles Taylor and William Grant,, for defendants and appellants.
    On Motion to Dismiss the Appeal.
    Justices concurring: Ludeling, Taliaferro, Howell, Howe.
   Howell, J.

The plaintiff moves to dismiss this appeal because the amount in dispute does not exceed five hundred dollars. The suit is for one thousand dollars against three heirs, who are in possession of the estate, for services as attorney at law by special employment in settling the succession inherited by them, and judgment was asked and granted against them jointly for said sum in proportion to the respective shares received by them.

The claim, as stated, is one against the succession, and the fact that there are several heirs, who must pay proportionately, does not change the nature and amount of the matter in dispute. It grew out of one contract in relation to one matter, the succession of the deceased, which is an entire thing.

The authorities cited by appellee do not apply to a case like this.

It is ordered that the motion be overruled.

Wyly, J.,

dissenting: For the reasons assigned in my dissenting opinion in A. Lartigue v. Eliza White, wife of C. Bullitt et ais., I dissent in this case.

On the Merit's.

Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.

Wyly, J.

The heirs of Mrs. White, wife of Maunsel White, appeal from the judgment condemning them to pay the plaintiff one thousand dollars for professional services.

At the same time the plaintiff was employed to obtain the orders mentioned in the case just decided in the succession of Maunsel White; he was employed to obtain similar orders in the succession of Mrs. White, and this controversy arises in reference to the value of these services. As the orders were all obtained without opposition and by consent, we think one hundred dollars will be lair compensation.

It is therefore ordered that the judgment herein be reduced to one hundred dollars, and as thus amended that it be affirmed, appellee paying costs of appeal.

Rehearing refused.


author: Morgan, J. Taliaferro, J. Wyly, J.,

text:
    No. 4118.
    G. W. W. Goodwyn v. Perry & Co.
    Where judgment being rendered in this case on the sixth of May, 1872, in favor of defendants, an appeal was granted on the fourtoehtli of tho same month, returnable on the first Monday in November, on motion to dismiss the appeal on the ground that said first Monday in November was not the legal return day;
    Held — That the first return day after this appeal was taken, being the third Monday in May; that the judgment having been rendered on the tenth of the same month; and that the transcript of the case containing over two kundredpages; it must be presumed that the judge a quo thought it could not have been completed by that time, as the court adjourns before the first of Juno to the first Monday in November, and it follows that the first Monday in November was the proper return day.
    Where a creditor, ignorant of the fact that his claim on his debtor was secured, wrote to other creditors of the same, expressing his assent to accepting concurrently with them the surrender oí property offered on certain conditions by said debtor, because he believed that he was in no better condition than those creditors ;
    Held — That this was a contract which was void from error in the motive, inasmuch as it proceeded from a cause supposed to exist, which in reality did not exist, and because its existence was a condition precedent to the contract.
    APPEAL from tbe Seventh District Court, parish of Orleans. Oollens, J.

      Hyman, Wallace and Handlin, for defendants and appellees. Randolph, Singleton and Browne, for.,plaintiff and appellant.
    On Motion to Dismiss the Appeal.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan, Wyly.
   Morgan, J.

Judgment was rendered in this case on the sixth May, 1872, in favor of defendant. An appeal was asked for and allowed on the fourteenth May, returnable on the first Monday in November.

We are asked to dismiss the appeal on the grounds that there were six days to the third Monday in May, and that as there appears no proof or suggestion to the contrary, the presumption is there was ample time to prepare so small a record, and the first Monday of November was not the legal return day; and because this court was in session when the appeal was taken, and the law provides that, during the term, appeals shall be returnable on the first and third Mondays of every month.

The law relied upon (acts of 1870, p. 99, section 1,) provides that in all cases of appeal the judge of the court from which it is taken shall make the appeal returnable to the Supreme Court at the next return day for appeals from the parish, if there shall be time enough after granting it to give the notice required by law and to prepare the record j if not, then he shall fix the return day for some day within the next term after the appeal is granted, allowing sufficient time to give the citation required by law, and to prepare the record, if sufficient time within the term shall remain 5 if not, then he shall fix the return day for the following term.

The first return day after this appeal was taken was the third Monday in May. As the judgment was only rendered on the tenth of May, and as this transcript contains over two hundred pages, we must presume that the District Court thought it could not have been completed by that time.

As this court adjourns before the first of June to the first Monday in November, it follows that the first Monday in November was the proper return day..

The motion to dismiss is therefore overruled.

On the Merits.

Justices concurring: Ludeling, Taliaferro, Morgan.

Taliaferro, J.

This is an injunction suit which has grown out of the case of Perry & Co. v. Austin & Goodwyn, before this court in 1872.

See 24 An. p. —. Upon the return of the mandate of this court in the latter case, execution was issued against the defendants, Austin & Goodwyn. G. W. W. Goodwyn obtained an injunction to stay the proc -.'lings under execution, on the ground that subsequent to the appeal of Austin & Goodwyn to the Supreme Court in the case of Perry & Co. v. Austin & Goodwyn, and while that appeal was pending Perry & Co. accepted a proposition, made by Goodwyn, solely bound for tire debts of his firm, to pay the creditors a certain portion of their debts, the firm of Austin & Goodwyn being insolvent. The plaintiff alleges that he was entirely discharged from all futher liability to Perry & Co. by their acceptance and ratification of the surrender of his property. The defendants in injunction filed an exception to the proceeding, alleging various grounds, and prayed that the injunction be dissolved with damages. Judgment was rendered dissolving the injunction and condemning Goodwyn, the principal, and Philip Hallo-rand, surety on the injunction bond to pay insólido to the defendants, Perry & Co. seventy-five dollars special damages, with three per cent, additional interest on the principal of the judgment injoined till paid, and costs.

From this judgment the plaintiff has appealed. It appears that pending the suit of Perry & Co. against Austin &■ Goodwyn, the last named firm, finding themselves unable to meet their obligations, propositions were made through Goodwyn to make a surrender of their property and assets to their creditors, on condition that Goodwyn should retain his tools which he used in his trade, and a small amount in money to begin a small business. Bridgeford & Co., of Louisville, Kentucky, were creditors for the largest amount, and it appears that they accepted the proposition of surrender, and were active in urging the other creditors to do so. All the creditors, except Perry & Co., were prompt in closing with the proposal of Goodwyn. Bridgeford & Co. wrote at considerable length to Perry & Co., at Albany, New York, representing that the acceptance of the surrender was the best that could be done; that by acceding to the proposal the creditors would realize from fifty to sixty cents on the dollar for their debts ; whereas if they refused, the insolvents would be compelled to go into bankruptcy, and if so, the creditors would realize little or nothing. In reply Perry & Co. wrote on the twenty-third September, 1870, as follows :

“Messrs. Bridgeford & Co., Louisville, Ky.:
“Gentlemen — In reply to your favor of the nineteenth instant respecting our claim against Mr. G. W. W. Goodwyn, we leave the matter entirely in your hands, feeling confident you will act for us the same as yon would for your own interest. Whatever arrangement you may deem best to come to will be perfectly satisfactory to us.
“ Respectfully yours, Perry & Co.”
On the same day they wrote to their attorneys in New Orleans:
“Albany, September 23, 1870.
“Messrs. Wallace & Handlin :
“ Gentlemen — We have been informed by Messrs. Bridgeford & Co., of Louisville, Ky., that Mr. G. W. W. Goodwyn has assigned for the benefit of his creditors, retaining the right to hold $400 in cash and $150 in tools. We suppose you have obtained no special security on our account, aud that we will have to accept the terms with the others.
“ Yours, respectfully, Perry & Co.”

Their attorneys answer this letter on the twenty-eighth of September. After saying that they know nothing of any steps being taken by Goodwyn towards an assignment they write: “Instead of your case being in the fix you suppose, we, on the contrary, think we have good security, one who owns plenty of real estate. We have, therefore, no doubt about our ability to make the money as soon as the appellate court decides the case.. Our courts open again in November.

Your obedient servants,
“Wallace & Handlin.”
Perry & Co., therefore, wrote again to Bridgeford & Co.:
“Albany, October 8, 1870.
“ Messrs. Bridgeford & Co., Louisville, Ky.:
“Gentlemen — With regard to our claim v. Mr. G. W. W. Goodwyn, we have just received word from our attorneys that they hold ample security for the payment of the same, and, of course, we can not agree to give up this security.
“Respectfully yours.
Perry & Co.”

It seems there can be no doubt that Perry & Co. when they assented to the proposition communicated to them by Bridgeford & Co., believed their debt stood on no better ground than that of the other creditors, and were influenced by the letter of Bridgeford & Co. to agree to accept the surrender, thinking they would get a larger percentage on their claim by so doing than by forcing their debtor into bankruptcy, and thereby realize but little-after the charges of the bankrupt court were paid. Their debt, in point of fact, was secured at the time they wrote to Bridgeford & Co. under date of September .23, but they were ignorant of it. The consent given at that date proceeded from a cause supposed by them to exist, which in reality did not exist; and its existence was a condition precedent to the contract. The contract is, therefore, void from error in the motive. C. C. 1815, 1818, 1819, 1820, 1821. Also C. C. articles 1816-1840, et sequents. 2 L. 3; 6L. 511.

The defendants, as soon as they were informed by their attorneys that their debt was fully secured promptly retracted their consent given in ignorance to accept the plaintiff’s surrender. We think the -decree of the lower court correct.

Judgment affirmed.

Wyly, J.,

dissenting. On the thiiteenth of September, 1870, Goodwyn made an assignment of all his property, except four hundred dollars in cash and one hundred and fifty dollars worth of tools, to his creditors, in whose behalf Bridgeford & Co. accepted the assignment and gave Goodwyn a “full and complete discharge of their said claims,” * * * “ so that this agreement shall have the effect of being, as to such creditors and all of them, a receipt in full against their claims or the claims of any of them.”

On the sixteenth of September, 1870, Bridgeford & Co. wrote to Perry & Co. that: “ Wo asked Mr. Goodwyn if ho would be willing to assign everything to us for the benefit of his creditors, and he replied that he did not want everything in the wide-world taken from him, and have no support for his large family; that he had been unfortunate and was satisfied that he had not wronged any of his creditors out of anything, and would not make an assigment without a release from all his creditors of any further claim against him, and a small sum to support his family a short time, to enable him to get into a small business. We then went and consulted our attorney in regard to the matter, and he desired to know if we would take the responsibility of entering into an agreement with Goodwyn, releasing him from all further claims of his creditors against him, and we replied that it would be rather hazardous to do so. In the meantime Mr. Goodwyn had consulted his attorney and a meeting was called to consider the matter. Mr. Goodwyn’s attorney advised him to go into bankruptcy, and that would settle the whole matter at once. Mr. Goodwyn remarked that he did not like to go into bankruptcy; that as we had been so very clever to him he did not like to take such a step. But we could see at the same time that if something was not done very soon, Mr. Goodwyn’s attorney would have persuaded him to go into bankruptcy.”

“We then consulted our attorney if it would not be best to let it be settled in the Bankrupt Court, and he replied by no means; that the costs would consume everything, and we would not realize twenty-five cents on the dollar, and if we would settle it in the way proposed by Mr. &., it would be best for all parties. We saw that it was impossible to come to a settlement any other way, and something would have to be done at once to stop the enormous expense that was eating the whole thing up like a cancer. You are aware that he was paying four thousand dollars rent for the house he occupied, and that he had one year to run from the first of October next. Mr. G. then said that if we would draw an agreement to this effect, releasing him from all claims against him and give him four hundred dollars in cash and- one hundred and fifty dollars in tools that were in his shop, to enable him to commence business in a small way, he would consent to making the assignment. Our attorney advised us to do so, and the assignment was drawn in duplicate and signed accordingly. As it is now, we think wc will get from fifty to sixty cents on the dollar. We also took the responsibility of appointing Mr. Goodwyn our attorney to settle the business, making inquiry at the time of a number of the leading houses in the city if they would advise us to do so, and they replied that we could not get a better man, as he was as honest a man as lived, but had been unfortunate; and when we left there on last Wednesday, the fourteenth instant, he was progressing with the sale of the stock rapidly, and would endeavor to sell the entire stock by the first of October.

“ There was a party negotiating for the store when we left, and it is probably rented by this time. We went down with a determination to close it up and stop expenses, and we hope our action will meetyour approbation. One thing you may rest assured, that we will all fare alike. “ Yours, truly,

(Signed) Bridgeford & Co.”

To the foregoing letter, Perry & Co., the defendants, made the following reply:

“ORIENTAL AND AMERICA STOVE WORKS.
Perry & Co.,
September 23, 1870, 115 Hudson street, Albany,
250 Water street, New York.
“Messrs. Bridgeford & Co., Louisville, Kentucky:
“ Gents — In reply to your favor of the sixteenth instant, respecting our claim v. Mr. G. W. W. Goodwyn, we leave the matter entirely in your hands, feeling confident you will act for us the same as you would for your own interest. Whatever arrangement you may deem it'best to come to will be perfectly satisfactory to us.
“Respectfully yours,
(Signed) Perry & Co.”

It occurs to me, from the foregoing statement, that Bridgeford & Co., in order to get the assignment and secure something for the creditors, assumed to act as agents for Perry & Co.j and acting in good faith they promptly communicated to Perry & Co. all the facts, as well as the reason that induced them to assume the agency. With full knowledge of all the facts Perry & Co. wrote the letter of twenty-third September, 1870, which I can not construe to mean anything less than a ratification of what had been done in their behalf by Bridge-ford & Co.-

The moment the ratification occurred, the obligation to discharge Goodwyn of his debts became complete and binding on Perry & Co., and Bridgeford & Co.’s responsibility on account of assuming the agency ceased.

This assent was equivalent to previous authority, and the moment it was given the contract became as complete and irrevocable on Perry & Co. as if they had signed it. Story on Agency, sections 242, 243» 244, 250, 151.

Now the question is, suppose Perry & Co. had signed the discharge of Goodwyn and accepted the assignment of his property, just as Bridgeford & Co. assumed to do for them, would they be permitted, three weeks afterwards, to withdraw from the contract on the ground that they did not understand the exact situation of their claim; that they did not know that their attorneys had the security of a suspensive appeal bond?

Whose business was it to know the exact situation of Perry & Co.’s case ? It was theirs; and they are presumed to know what their attorneys are doing in their behalf. It is not pretended that Bridgeford. ■& Co. knew anything of the security existing in support of Perry & Co.’s claim, and it is not pretended that Goodwyn withheld any information or committed any fraud in going into the transaction.

Suppose Perry & Co. had applied to Goodwyn for the assignment, as was done for them by Bridgeford & Co., would they be heard in demanding the rescission of the contract, to say that they did not know that their claim, the equivalent they had given for the assignment, was as valuable as it was; that it was secnred'by a suspensive appeal bond 1 I think not. This was no excuse to Perry & Co. They pressed the assignment on Goodwyn through their agents, or agents whose acts they ratified, and prevailed upon him against the advice of his counsel to make the assignment of his property.

He saw certain relief from his embarrassments in surrendering his property in bankruptcy, and was advised by his counsel at once to do so; but upon the representation of those whose acts have been ratified by Perry & Co., that he would be discharged by his creditors if he would assign to them his property, he was induced to make the ■assignment.

In my opinion a commutative contract made under the circumstances detailed, ought not to be avoided for the cause set up by Perry & Company.

The relation of Goodwyn to Perry & Company is the same as if they had gone to him in person and procured from him the assignment of his property. As to him there was no error of motive in the contract. Perry & Company contracted for the assignment of his property and he for a discharge of their debt against him.

Now as to the value of that property or the value of the equivalent given by Perry & Company, or their agent, it is immaterial. If it turned out that the goods assigned were worth double the amount of Goodwyn’s debt, or that Perry & Company’s claim was worth double the amount of the goods, the contract would remain unimpaired. It was no part of Goodwyn’s undertaking to inform Perry & Company of the value of their claim or to advise them not to press the contract upon him till they had corresponded with their attorney.

If Perry & Company chose to ratify unconditionally the contract made in their behalf by Bridgeford & Co., and pressed upon Goodwyn, without waiting for the advice of their counsel as to the situation of their claim it was their own fault. It was not the fault of Goodwyn. Besides, if there were a good cause to annul the commutative contract there has been no return nor offer to return the property assigned.

I therefore dissent in this case.


author: Taliaferro, J.

text:
    No. 3904.
    State of Louisiana ex rel. E. J. Gay & Co. v. Judge of the Fourth District Court, parish of Orleans.
    'The ease of Block Brothers ■». Burthe, 20 An. p. 344, which, in the opinion of the judge a quo, covers the case at bar in every particular, was determined on the ground that the opponent was properly the defendant and had the right to release by bond, an act which could not be considered as operating an irreparable injury to the appellant.
    'There seems to be a conilict between the case of Block Brothers v. Burthe and that of Duperier v. Flanders, 20 An. 29. The court, however, inclines to recognize the doctrine laid down in the latter ease, and to follow the principles enunciated in the later case of Dawson v. “Williamson, 22 An. 535, as controlling.
    Rule for a mandamus on Paul Theard, Judge of the Fourth District Court, parish of Orleans, in the case of E. J. Gay & Co. v. Eaton & Barstow — B. Bihen and als. intervening.

      Hace, Foster and Herrick, for relators. Breaux, Fenner d Hall, for intervenors. Judge Théard, in propria persona.

    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Howe.
   Taliaferro, J.

The relators sequestered ten hogsheads of sugar and sixty-nine barrels of molasses, alleging that they, as the merchants of Eaton & Barstow, sugar planters, furnished them with provisions, supplies and money, to enable them to cultivate their crop of sugar and to gather and prepare it for market, and on that account they have by law, a lien and privilege upon the crop, of which the ten hogsheads of sugar and the sixty-nine barrels of molasses form a part, and which was then within the jurisdiction of the court. They averred that Eaton & Barstow was indebted to them in the sum of $4771 78. They prayed judgment for that amount, with privilege on the property sequestered, etc. Eaton and Barstow answered by general denial. John II. Bihen, who liad been the manager of the plantation on which the crop was raised, together with a number of laborers ■employed in its cultivation, intervened, alleging that the sugar and molasses sequestered were transferred and delivered to them, having been given to them in part payment of their wages, and that they are ■the absolute owners of the same, and as such had through an agent, who had advanced them $980 in cash upon the property, shipped it to New Orleans to be sold. Eaton & Barstow answered this intervention, admitting the facts stated to be true. These parties intervening were allowed to release the property by giving bond. The plaintiffs, who are the relators, objecting to the order allowing these intervening and opposing parties to give bond, applied for a suspensive appeal, which being refused, the relators applied to this court for a mandamus to the judge of the Fourth District Court to compel him to grant the appeal. To the rule nisi the judge answered that his action had been taken in conformity with the decision of this court in the case of Block Brothers v. Burthe, 20 An., page 344, which in the opinion of the judge covers the case at bar in every particular. That case was determined’ on the ground that the opponent was properly the defendant, and had the right to release by bond, an act which could not be considered as operating an irreparable injury to the appellant.

Sote. — The preceding case was decided on the twenty-second of April, 1872, and properly belonged to the Twenty-Fourth Animal. It having not appeared in that volume, it is, at the request of my predecessor, reported in this one. — Reporter.

There seems to be a confliction between the case of Block Brothers v. Burthe and that of Duperier v. Flanders, 20 An., page 29. We incline, however, to recognize the doctrine laid down in the latter case, and to follow the principles enunciated in the later case of Dawson v. Williamson, 22 An., page 535, as controlling.

It is therefore ordered that the rule be made absolute.


text:
    No. 3380.
    Patrick Irwin v. James M. Peterson.
    Where defendant was sued for half the value of a wall, which said defendant made a wall in-common by using it to support his buildings;
    Held — That he had no interest to question plaintiff’s title further than to ascertain whether the claim demanded could safely be paid to the claimant.
    Where evidence was admitted because it was confirmatory and explanatory of the title filed in answer to the prayer for oyer, and did not constitute a new and independent title ^
    Held — That the bill of exceptions thereto was not well taken.
    APPEAL from the Seventh District Court, parish of Orleans. Gollens, J.

      T. Gilmore & Sons, for plaintiff and appellee. Bentmele JEgan, for defendant and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyly, J.

The defendant appeals from the judgment condemning him to pay the plaintiff $591 77, the value of half of a wall, which the defendant made a wall in common by using it to support his buildings in 1868.

The plaintiff joins in the appeal, and prays that the judgment be increased to the amount claimed in his petition ($1001 97).

The plaintiff acquired the property from E. E. Norton, assignee of Jacob Barker, who erected the wall in 1852. When the defendant, in 1868, made it a wall in common, he incurred the obligation to pay half of what was laid out in its construction. Asserting the right conferred by article 676 Revised Code, the defendant must comply with the condition upon which that right is given, to wit: he must pay half the cost of constructing the wall. 20 An. 554; 22 An. 114; 23 An. 597.

He has no interest to question plaintiff’s title further than to ascertain whether the claim now demanded can safely be paid to him. We think whatever right Jacob Barker, the builder, had to demand remuneration for half the cost of the wall belongs to the plaintiff, and that. payment of this demand will protect the defendant from any further ■contribution that may be demanded for making the wall a wall in •common.

The bill of exceptions to the introduction of plaintiff’s title, resulting from the adjudication of twentieth June, 1868, and the confirmatory act of sixth July, 1868, was not well taken, for the reason given by the judge in refusing to reject this evidence.

The total number of bricks laid in the wall is 91,043, and the value per thousand in 1852, when the work was constructed, we fix from the ■evidence at $14. One-half the cost of the wall was, therefore, $637 30, for which plaintiff should have judgment.

It is therefore ordered that the judgment appealed from be amended, and that the amount thereof be increased to $637 30, and as thus amended that it be affirmed with costs of both courts.

Rehearing refused.

       The evidence was admitted hy the court a qua because it was confirmatory and explanatory of the title filed in answer to the prayer for oyer, not a new and independent title a8 argued by defendant. — Deporter.


author: Wyuy, J.

text:
    No. 4612.
    John Burk, Clerk of the Superior District Court, v. City of New Orleans et als.
    Where the plaintiff sued for the value of Ms services in transferring from the other district conrts-and docketing in the Superior District Court some fifteen hundred tax suits, and obtained judgment in his favor for the sum of fifty cents per suit on all of said suits;
    Held — That the extra compensation allowed the clerk in this instance was not authorized hy law.
    APPEAL from the Superior District Court, parish of Orleans. MawTcins, J.

      JBranlc N. Sutler, for plaintiff and appellee. George 8.

      Lacey, city attorney, for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyuy, J.

The plaintiff sued for the value of his services in transferring from the other district courts and docketing in the Superior District Court some fifteen hundred tax suits, and from a judgment in Ms favor for the sum of fifty cents per suit on all of. said suits.

The city of New Orleans has appealed.

By section 21 act No. 48 of the acts of 1871, it is provided that clerks of court shall be allowed and permitted to charge two dollars for all proceedings had ” in a tax suit.

The extra compensation allowed the clerk in this instance is not authorized by law.

It is therefore ordered that the judgment herein be reversed, and that there be judgment for defendants, plaintiff paying costs of both courts.


author: Howell, J.

text:
    No. 4609.
    State of Louisiana v. Oscar Burns.
    Whore a motion was made to quash tho panel of the jurors, on tho ground that the Criminal Sheriff has no legal right to furnish a list of persons liable to jury duty, keep tho samo in the Criminal Court, and array juries thereirom, because said list should be furnished by the ¿sheriff for tho civil courts, in conformity with section 2144 R. S., which says: ‘‘It shall be tho duty of the sheriff of the parish of Orleans, in the month of December, to furnish a list of all persons liable to jury duty residing within the limits of' tho parish of Orleans;”
    Held — That tho sheriff for the Criminal Court is a sheriff of the parish of Orleans, as much as the sheriff for the civil courts, and the constitution makes him the executive officer of the Criminal Court. It is his duty, as such executive officer, to perform the duty ira-* posed by the above law and section 2147 R. S. He is specially and solely the executive officer of that court.
    Where a hill of exceptions was taken to the refusal of the judge to charge the jury as requested, that, if they entertained a reasonable doubt as to the sanity of the prisoner at the time of the commission of the alleged act, they were hound to acquit him, and the judge charged, on the contrary, that the law presumed the sanity of every man and that it devolved on the prisoner, under a plea of insanity, to satisfy the jury by a preponderance of proof that he was insane at tho time of tho alleged act;

    Held — That the exception was properly overruled.
    APPEAL from the First District Court, parish of Orleans. Abell, J. Criminal case.

      A. P. Field, Attorney G-eneral, for the State. J, J. Foley, for the defendant and appellant.
    Justices concurring : Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Howell, J.

The defendant has appealed from a judgment sentencing him to imprisonment at hard labor in the State Penitentiary during Ills natural life for murder without capital punishment. The case is before ns on an assignment of error and two bills of exceptions.

The error assigned is that his application for a new trial should have been disposed of.

The record shows that it was waived.

The first hill of exception is taken to the overruling of a motion made to quash the panel of jurors on the ground that the criminal sheriff has no legal right to furnish a list of persons liable to jury duty, keep the same in the criminal court, and array juries therefrom.

The law is (R. S., sec. 2144) : '“It shall be the duty of the sheriff of the parish of Orleans, in the month of December, to furnish a list of all persons liable to jury duty residing within the limits of the parish of Orleans.”

It is contended that, as the law does not designate the sheriff for the criminal court, whose election is provided for in the constitution, as the officer who is to furnish said list, and as the constitution imposes on the sheriff for the civil courts all duties heretofore devolving on the sheriff of the parish of Orleans, except those therein delegated to the sheriff of the criminal court, the said list should he furnished by tho sheriff for the civil courts.

We think this an error. The sheriff for the criminal court is a sheriff of the parish of Orleans, as much as the sheriff for the civil courts, and the constitution makes him the executive officer of the criminal court, and it is his duty as such executive officer to perform, the duty imposed by the above law and section 2147 R. S. He is-specially and solely the executive officer of that court. The ruling of the judge was correct.

The second bill was taken to the refusal of the judge to charge the jury as requested, that, if they entertained a reasonable doubt as to-the sanity of the prisoner at the time of the commission of the alleged act, they were bound to acquit him, the judge charging, on the contrary, that the law presumed the sanity of every man, and that it devolved on the prisoner, under a plea of insanity, to satisfy the jury by a preponderance of proof that he was insane at the time of the commission of the alleged act.

We think the judge did not err in this charge. The true rule is, “the jury are to be told that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his-crimes, until the contrary be proved to their satisfaction; and that, to-establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong.” 2 G-reenleaf, § 373; 7 Mst. 500; 3 Parker’s Criminal Reports 299-301;. 5 Parker ditto 631, 644; Roscoe’s Criminal Ev. 952.

Judgment affirmed.

Rehearing refused.


author: Wtlt, J.

text:
    No. 2824.
    Edward Newman & Co. v. John Smoker and als.
    The common carrier is bound faithfully to perform his duty and he is responsible for the loss or damage resulting to the cargo confided to him, from neglect, imprudence, or want of skill, notwithstanding the stipulation to the contrary in the bill of lading.
    But in a case like this, where the shippers or their agents were present at the taking of the cotton on board the boat, and know from the rain storm then prevailing, that the cotton must necessarily be exposed to the rain and mud, it would be inequitable to permit the owners or their consignees to recover from the boat or its owners, the amount of the damages occasioned by this exposure, when the agent of the shippers accepted the bill of lading, prepared by himself, containing the clause: “ The boat not to be responsible for torn bagging, ropes or bands oil', wet by rain, old damage or mud.”
    APPEAL from the Seventh District Court, parish of Orleaus. Oollens, J.

      D. C. Labatt, for plaintiffs and appellants. R. H. Marr and J. N. Bricleell, for defendants and appellees.
    Justices concurring: Ludeliug, Wyly, Morgan.
   Wtlt, J.

The plaintiffs, who sued the defendants, the owners of the steamboat “ Governor Allen,” for $819 37 damages to a cargo of cotton shipped on said boat from Grand Gulf November 24, 1868, appeal from the judgment rejecting their demand.

It is conceded that the cotton was badly damaged on reaching New Orleans, its destination, and the amount of said damage is not disputed.

The cotton came from Port Gibson by railroad to Grand Gulf, and was there shipped by the agent of the railroad on the “ Governor Allen.” It was taken on the boat during a severe rain. “The surface of the ground between the warehouse, from which the cotton was taken, and the boat, was covered with water and slushy mud, through all of which the cotton was rolled, a distance of about one hundred yards; on arriving at the landing, the ‘Governor Allen’ found the ‘Belle Lee’ occupying the usual landing place, and was compelled to take another position about one hundred feet above the 1 Belle Lee.’ The ‘ Belle Lee ’ occupied her position during nearly the entire time consumed by the ‘ Governor Allen,’ in getting the cotton on board.. The cotton was shipped by the P. G. G. G. R. R. Co., two of whose agents and employes were present at the time the cotton was taken on the ‘ Governor Allen,’ one a shipping agent of said railroad; both participated in and assisted the delivery of the cotton to the boat. It was stored on the boat in the usual way, a portion in the engine room, a portion on the guards. That portion on the guards was covered by tarpaulins, except when the boat was engaged in receiving cotton at subsequent landings, and was delivered in New Orleans within forty-eight hours after its receipt on the boat, and thence removed by plaintiffs to the press, in a wet and muddied condition.”

It was the water and mud to which the cotton was exposed while being delivered on the boat that occasioned the damage of which the plaintiffs complain.

The bill of lading contained the clause: the “ boat not to be responsible for torn bagging, ropes or bands off, wet by rain, old damage or mud.”

The common carrier is bound faithfully to perform his duty, and he is responsible for the loss or damage resulting to the cargo confided to him, from, neglect, imprudence or want of skill, notwithstanding the stipulation to the contrary in the bill of lading.

But in a case like this, where the shippers or their agents were present at the taking of the cotton on board the boat, and knew from the rain storm prevailing at the time that the cotton must necessarily 'be exposed to the rain and mud, it would be inequitable to permit the owners or their consignees to recover from the boat or its owners the amount of the damages occasioned by this exposure, when the agent of the shippers accepted the bill of lading (prepared by himself) containing the clause limiting the liability of the boat as aforesaid. Without this limitation it is fair to presume that the boat, under the •circumstances, would not have received the cotton, because the clerk testifies that “there was no objection by the shippers, that is, Mr. Kearny, agent of the railroad, to the boat receiving the cotton in the rain and mud. He offered to allow us to take any exceptions that we wanted in the bill of lading; Mr. Kearny brought the bill of lading which was signed by the boat. The effect of the exception was discussed on the boat after the cotton was all aboard, and it was the opinion of all present that the exception was sufficient to cover any damage or losses on the cotton occasioned by wet and mud.” * * *

Considering the evidence of this case, we are of the opinion that the court a qua. did not err in rendering judgment for the deiendants.

Judgment affirmed.

Rehearing refused.


author: Morgan, J.

text:
    No. 2908.
    Philibert Rogay v. J. M. Juilliard and Louis Schneider.
    Where in the motion to appoint a curator ad hoc to the defendant, who is a non-resident, it is simply stated that he is absent and not represented, and where said defendant has not been proceeded against by attachmen-, and it has not been alleged or proved that he has or had, when the suit was instituted, any property within the jurisdiction of the court before whom the suit was brought;
    Held — That this is not sufficient, and that the suit can not be maintained.
    A surety on an arrest bond can not escape his responsibility, because his principal has put himself beyond the jurisdiction of the court.
    Whore a final judgment was ren ered, on the twelfth of April, 1869, against Juilliard, in the case of Juilliard v. Rogay, in which Juilliard had caused Rogay to be arrested on the ground of his departing permanently from the State without leaving therein sufficient property to satisfy the demand of his creditor ;
    Held — That the prescription of one year can not be opposed by the surety on Juilliard’s arrest bond against a suit instituted by Rogay on the fourth of December, 1869, to recover damages for his unlawful arrest in November, 1865, because his right of action did not accrue until the final judgment in his favor was rendered. Besides, it is not an action arising ex delietu. It is a suit upon a bond. It is an obligation entered into by the signers thereof, and can, therefore, be considered only as an obligation to be prescribed by the laws regulating the prescription of obligations, and not by the laws regulating the prescription of actions for damages arising from the commission of offenses or quasi offenses.
    Where it was objected to the claim for damages that the arrest of plaintiff on the ground that he was departing permanently from the State without leaving therein sufficient property to satisfy the demand against him, was not done with malice, but was the exercise of a mere legal right prosecuted in the form authorized by law, and, therefore, that the defendant could not be responsible on damages,*
    Held — That this objection is not valid.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      A. & P. J. Robert for plaintiff and appellee. Pergus Fuselier, ■curator ad hoe, for Juilliard. A. Voorhies for Louis Schneider, defendant and appellant.
   Morgan, J.

In November, 1865, Juilliard instituted suit against Rogay, to recover from him some $17,000, the value of seventy bales of cotton, alleged to have been purchased for Juilliard by Eogay, with funds belonging to Juilliard, which cotton, it was alleged, had been received and disposed of by Eogay, the proceeds of sale thereof not having been accounted for.

Alleging further, that Eogay was about to depart, permanently, out of the State, without leaving a sufficient amount of property therein, to satisfy his demand, Juilliard applied for and obtained a writ of arrest against him, and furnished his bond, in the sum of $26,500, to respond to such damages as Eogay might recover, in case it should be-decided that the writ of arrest which he had obtained wrongfully issued.

There was judgment in Eogay’s favor. See the case of Juilliard v. Eogay, 21 An. 259. This suit is now instituted by Eogay against Juilliard and Schneider, principal and. security on the arrest bond, to recover from them ten thousand dollars damages, caused by his-wrongful arrest.

He had a judgment for $1000 against them, m solido, and they have appealed:

The first objection is well taken. Juilliard "is a non-resident. Bebas not been proceeded against by attachment, and it has not been, alleged, or proved, that he has, or had when this suit was instituted,, any property within the jurisdiction of the court before whom the suit was brought. In the petition it is alleged, that although absent, he is represented by an agent, which does not appear to be the fact. In the motion to appoint a curator to represent him, it is simply stated that “ the defendant herein is absent, and not represented.” This was not sufficient to give the court jurisdiction. It is contended that this case should be governed by the case of Field v. Delta Co., 19* An. 3\ but we do not think it applies. In that case it was alleged in the petition, that the defendant, though absent, had property within the jurisdiction of the court. To this petition exception was taken. On the trial of the exception, the allegations were taken as true; and it was upon the ground that the defendant had property within the jurisdiction of the court, that the appointment of the curator was considered proper. None of these facis occur in this case.

As against Juilliard, therefore, the suit should have been dismissed.

It is different as to Schneider. He was the surety on the arrest bond, and is as much bound thereon as Juilliard was. He can not escape his responsibility, because his principal has put himself beyond the reach of the court. He, as well as Juilliard, bound himself to respond to such damages as might be caused by the arrest of the plaintiff, in case it should be decided that the arrest was improperly obtained; and that the arrest was improperly obtained has already been decided, by the final judgment rendered in Eogay’s favor, in the suit in which the writ of arrest’issúed.

To tlie plaintiff’s right of action, he pleads the prescription of one year, alleging that the demand made against him is one sounding in damages. Final judgment was rendered in the case of Juilliard v. Rogay on the twelfth April, 1869. This suit was instituted on the fourth December, 1869. His right of action did not accrue until the final judgment in his favor was rendered. Besides, this is not an action arising ex delictu. It is a suit upon a bond. It is an obligation entered into by the signers thereof, and can, therefore, be considered only as an obligation, to be prescribed by the laws regulating the prescription of obligations, and not by the laws regulating the prescription of actions for damages arising from the commission of offenses or quasi offenses.

His real objection is, that inasmuch as the suit of Juilliard v. Rogay was not i roseeuted with malice, but was the exercise of a mere legal right, prosecuted in the form authorized by law, he can not be held responsible therefor. He relies on art. 212, C. P., which prescribes that “any creditor, whose debtor is about to leave the State, even for a limited time, without leaving in it sufficient property to satisfy the judgment which he expects to obtain in the suit he intends to bring against him, may have the person oí such debtor arrested and confined, until he shall give sufficient security that he shall not depart from the State without the leave of court.”

This article does not give to the party claiming to be a creditor the right to arrest his debtor, under the conditions therein stipulated ; but this right is coupled with the obligation of responding in damages to the party arrested, in case it should be determined that the arrest was improperly ordered; and it is the existence of indebtedness which gives rise to the remedy of arrest. If no debt existed, the arrest would have been illegal; and the judgment in the case is the test of the existence of the debt.

It would be something intolerable, if any person, pretending to have a claim against his neighbor, could cause him to be arrested because he proposed leaving the State, and, when it should have been decided that he had no cause of complaint against him, shield himselt from a demand for damages upon the plea that he was not actuated by malice — that he meant to do no harm. A man’s liberty is too sacred a right to be thus trifled with.

In the present case the plaintiff was in this city on his way to France, where he proposed to invest what means he had in some of the manufactured articles .of that country, which he proposed to bring .here. He was arrested at the suit of Juilliard, Sehnpider becoming surety on .Juilliard’s bond, which w.as required .before the writ of arrest .issued. Rogay was taken to prison, where he reirmiped for more than two days and nights. He was then only released upon giving heavy bonds, and to secure his bondsman from loss he pledged with him all the property he had. His means being thus locked up, lie could not have left here even if he would have been allowed to do so. Although out of jail he was still practically a prisoner in New Orleans, and pai’alyzed in every commercial way. The suit was decided in his iavor. The best evidence of his intention to go to Prance, buy goods and return here is, that as soon as the case was decided for liim lie did go to France, and shortly after returned here. While his property remained subject to the obligation of his bondsman it depreciated largely in value; during his stay here, pending the suit, he necessarily was at an expense. To defend his suit, according to his own testimony, which is uncontradicted, he spent $500 in counsel fees and several hundred dollars more in procuring documentary evidence and the depositions of witnesses away from New Orleans. The judge of the lower court gave him a judgment for $1000, and we do not see how he could have awarded him any less.

As to Juilliard, as we have before said, he can not be condemned, because he is not properly before the court.

It is therefore ordered, adjudged and decreed that the judgment of the lower court in so far as it renders a decree against Juilliard be annulled, avoided and reversed, and the suit as against him be dismissed.

It is further ordered, adjudged and decreed that as against Schneider •the judgment be affirmed, Schneider to pay the costs in both courts.

Rehearing refused.


author: Ludelxng, C. J.

text:
    No. 4488.
    Jean B. Leche v. J. B. A. Claverie.
    Where the occasion of the discharge of the plaintiff was a quarrel between said plaintiff and defendant commenced by defendant, during which insulting expressions were used by both;
    Held — That, as the employer was in fault, he should not be permitted to discharge his employe without paying him for the whole term for which he was employed.
    APPEAL from the Fourth Judicial District Court, parish of Ascension, Bemwcás, J.
    Trial by jury. Nichols & Pugh for plaintiff- and appellee. II. N. Sims for defendant and appellant.
   Ludelxng, C. J.

The plaintiff alleges that he was employed by the defendant to oversee his plantation during the term of three years at three thousand dollars, payable in annual installments of one thousand dollars; and that the defendant discharged him, before the expiration of the term of his contract without legal cause, and he prays for judgment against him for the price stipulated for the whole term of the contract.

There was a trial by jury, who found a verdict for the plaintiff, and the judgment was rendered in accordance with the verdict.

The evidence sustains the verdict and judgment. The occasion of the discharge of the plaintiff was a quarrel between the plaintiff and defendant, commenced by the defendant, and during which insulting-expressions were used by both. As the employer was in fault, he should not be permitted to discharge his employe without paying him for the whole term for which he was engaged.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.


author: Wxly, J.

text:
    No. 4071.
    State ex rel. Board of State Assessors v. James Graham, State Auditor. State of Louisiana intervenor.
    ■Where the State Assessors have delivered to the Auditor the assessment roll and received in full their compensation for their services, the contract between them and the State for making the assessment is completely executed. The obligation of the State to pay them is discharged, and it can not afterwards be revived by any use the Auditor might make of said roll.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      B. Fillenl and John B. Howard, for relators. Hornor & Benedict, for respondent. 8. Belden, Attorney General, for State of Louisiana, intervenor.
   Wxly, J.

The relators filed a motion to dismiss this appeal on the consent of S. Belden, Attorney General; but before that motion was acted on, Mr. Bel den’s term of office expired, and his successor, the present Attorney General, withdrew the consent, as he had the right to do; the motion is therefore denied.

The State having paid the relators $114,978 65 for making the assessment of the parish of Orleans for the year 1871, is now sought to be held liable to them for $47,464; and for this amount the relators seek by mandamus to compel the Auditor to issue to them State warrants. The defense is : The relators, as State Assessors for the parish of Orleans, have received as compensation in full $114,978 65; that said sum is the total compensation to which they were entitled under existing laws; that the assessment roll, delivered to the Auditor before the close of the year 1871, after the payment of the assessors as aforesaid, became the property of the State; and the use of said roll by the Auditor as a basis upon which to levy a tax or taxes, subsequent to the deposit and payment as aforesaid, does not entitle the relators to. the compensation herein demanded.

The court gave judgment for the relators, rendering the mandamus peremptory, and the defendant appeals. It.is admitted that the relators received after the delivery of the assessment roll on the fifteenth of November, 1871, $114,978 65, “the total amount due at five per cent, on the face of the assessment roll.”

The question is: Are the relators, after making this settlement, entitled to demand the additional compensation of five per cent, on the total amount of the “ interest tax” fixed by the Auditor in January, 1872, on the assessment roll of 1871 ?

We think not. When the relators delivered to the Auditor the assessment roll and received in full compensation for their services $114,978 65, the contract between them and the State for making the assessment for the parish of Orleans for the year 1871, was fully executed. The obligation of the State to pay them was discharged ; and it could not afterwards be revived by any use the Auditor might make of said roll.

Regarding this settlement as conclusive between the parties, in the absence of fraud or error, we will not look beyond it to see whether the relators are entitled to a percentage on interest tax or not.

It is therefore ordered that the judgment herein be annulled, and it is now ordered that the mandamus be disallowed and the demand of the relators be rejected with costs of both courts.


text:
    No. 4558.
    State ex rel. Henry Shorten v. Board of Selectmen of the City of Baton Rouge.
    Where the Board of Selectmen of a city have the right to be the judges of their own election and of that of their officers, it is not merely a ministerial duty which they have to perform, it involves discretion and a mandamus can not be used to enforce the performance of a discretionary duty.
    Where the relator sought by mandamus to compel the Selectmen of the city of Baton Rouge to issue to him a certificate of election and to recognize him as mayor of that city, on the ground that the election commissioners had decided he was elected, and that the Selectmen can not determine that he was not elected, because no one but a judge can decide the question;

    Held — That the Board of Selectmen can, under the eighth section of the city charter, exercise their discretion so far as to determine the relator’s right to the certificate, and that the use of this discretion is not the exercise of judicial powers in the sense of the constitution, and therefore not repugnant to the article ninety-four of that instrument.
    The action of the Board of Selectmen is not conclusive of the rights of the relator. He can sue for the office, but he can not proceed by mandamus.
    APPEAL from the Fifth Judicial District Court, parish of East Baton -Rouge. Posey, J.

      J. O. Stafford, for relator and appellee. P. A. Gallaugher, for respondents and appellants.
   Wyly, J.

Henry Shorten, claiming that he was elected Mayor of the city of Baton Rouge at the April election of 1872, seeks by mandamus to compel the defendants, the Board of Selectmen of Baton Rouge, to issue to him a certificate of election, to recognize him as Mayor, and to deliver to him the books, papers and other documents pertaining to said office.

Prom the judgment making the mandamus peremptory the defendants have appealed.

The important question is, can the defendants be compelled by mandamus to issue the certificate of election to the relator? Is this merely a ministerial duty? We think not. Because by the eighth section of the city charter, “the Board of Selectmen shall be the judge of their own election, and that of all the officers elected under the provisions of this act.” The respondents were therefore authorized to consider the returns of the commissioners of the election, and to determine who were elected, before issuing certificates of election to the officers elected under the provisions of the city charter. This involved the exercise of a discretion. A mandamus can not be used to enforce the performance of a discretionary duty. But the relator contends that the eighth section of the charter is repealed by article 94 of the constitution, forbidding the exercise of judicial powers by any other officers except those mentioned under the title of “Judicial Department.” If this be true, who is to determine whether the relator was elected Mayor, or so far decide the question as to authorize the issuance of the certificate of election ? If the respondents can not determine relator’s right to the certificate by reason of the constitutional inhibition, how can the commissioners of election do so? How can the relator get the office, if no officers but a judge can determine from the returns that he was elected? He does not pretend that any judge has determined his right to the certificate. It is difficult to perceive the force of respondent’s logic, when he contends that he is entitled to •the office of mayor because the election commissioners have decided he was elected, and the respondents can not determine that he was not elected, because no one but a judge can decide the question.

We apprehend that the Board of Sell ctmen can, under the eighth section of the city charter, exercise their discretion so far as to determine the relator’s right to the certificate; and the employment of this discretion is not the exercise of judicial powers in the sense of the constitution, and therefore not repugnant to article 94. The action of the Board of Selectmen is not conclusive of the rights of the relator. Like every other suitor, he has a legal remedy; he can sue for the office, but he can not by mandamus compel officers vested with discretionary power to employ it in his behalf.

With only the commissioners’ returns, and without any evidence of his title to the office, the relator can not, in this proceeding, compel the respondents to recognize him as Mayor, and deliver to him the books, papers and other property appertaining to said office.

It is therefore ordered that the judgment herein be annulled, and that this suit be dismissed at the costs of relator.


author: Tallaferro, J. Wxly, J.

text:
    No. 2815.
    Charles Bell v. R. H. Short & Co. Battle, Thorn & Co., Garnishees.
    "Where, on execution being issued in this case, Battle, Thorn & Co. were made garnishees by addressing the citation to said firm and serving the same on BC. A. Battle, a member thereof, who answered the interrogatories under oath, but signed the name of the firm to* the answers, instead of signing his own;
    Held — That the answers were sufficient and that the interrogatories could not be taken for confessed. He answered in the precise name in which ho was cited. If the plaintiff wished him to sign his individual name to the sworn papers, the citation should have been addressed in that name.
    The answers were under oath, and could, if untrue, subject the garnishee, H. A. Battle, to a prosecution for perjury. This is the test.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Given Campbell, for plaintiff and appellee. J. M. Coon and Semmes & Mott, for R. H. Short, appellant. JE. Wool/ridge, for Battle,. Thorn & Co., appellants.
   Tallaferro, J.

In the case of Charles Bell v. R. H. Short & Co., just-decided on appeal, the plaintiff having judgment in his favor in the court below, issued execution and caused garnishment process to issue against the garnishees in this case.

Their answers being made to the interrogatories propounded to them, a rule was taken by the plaintiff against them to show cause why the interrogatories should not be taken pro confesso. The rule being made absolute the garnishees appealed.

We think the court erred. The answers are concise but clear and explicit; and we think fully responsive to the interrogatories.

It is therefore ordered and adjudged that the judgment of the district court be annulled, avoided and reversed. It is further ordered that judgment be and is hereby rendered in favor of the garnishees, the plaintiff and appellee paying costs in both courts.

On Application for a Rehearing.

Wxly, J.

The plaintiff having judgment against the defendants for $1048 46, issued execution and made Battle, Thorn & Co. garnishees-by addressing the citation to said firm and serving the same on H. A. Battle, a member thereof, who answered the interrogatories under oath, but signed the name of the firm to the answers, instead of signing his own.

On motion the answers were decreed insufficient and the interrogatories taken for confessed.

From this judgment the garnishees appeal.

We think the court erred. The answers are clearly responsive to the interrogatories. As to the objection that H. A. Battle signed the firm name to his sworn answers instead of his individual name, we-think that is no reason why his answers should be rejected and the-interrogatories be taken for confessed.

He answered in the precise name in which he was cited to answer-the interrogatories. If plaintiff wished him to sign his individual name-to the sworn answers the citation should have been addressed in that name. __

But after all the test is, were the answers under oath; and would they, if untrue, subiect the garnishee, H. A. Battle, to a proseeutionfor perjury ? In our opinion they would.

It is therefore ordered that the j udgment heretofore rendered by this court remain undisturbed.

Rehearing refused.


author: Wyly J.

text:
    2909.
    R. Semple Young v. Scott & Cage and C. Cavaroc.
    A factor can not secure lfis individual creditor by pledging tbe planter's cotton which has-been confided to him for sale. That power is not conferred by act 150 of the acts of’ 1868, entitled “An Act to prevent the issue of false receipts or bills of lading and to-punish fraudulent transfers of property by cotton presses, wharfingers and others.” There is nothing in the statute showing any intention of the legislator to enlarge the powers of factors, or to give them the right to pledge the property confided to them fon sale. ’
    APPEAL from the Fourth District Court, parish of Orleans. Théará J.

      A. Voorhies and F. Fuselier, for Cavaroc, appellant. Bays & New, for Scott & Cage. Labatt <& Aroni, for plaintiff and appellee.
   Wyly J.

About the twenty-sixth of December, 1869, Scott & Cage,, cotton factors, received from the plaintiff sixty-four bales of cotton for sale, he not owing them anything. On the twenty-ninth they suspended, and on the same day pledged the cotton to their creditor, C. Cavaroc, or C. Cavaroc, president of the Bank of New Orleans. The plaintiff sequestered the cotton, and it was subsequently released on bond.

The court gave judgment for the plaintiff, recognizing his ownership-of the property ,and maintaining the sequestration.

From the judgment C. Cavaroc appeals.

Tlie questiou is: can a factor secui e his individual creditor by pledging the cotton of the planter which has been confided to him for sale? We think not. This court has frequently decided that the factor can not pledge, or give in payment of his own debts, property intrusted to-him for sale. 17 La. 166; 1 An. 74; 19 An. 300.

But the appellant contends that that power is conferred by act No. 150 of acts of 1868, entitled “An act to prevent the issue of false receipts or bills of lading, and to punish fraudulent transfers of property by cotton presses, wharfingers and others.” If such a power were conferred by that act it would be void, because it is not covered by the title. Constitution, article 114. But we do not consider that act should be interpreted as contended for by the appellant.

It is the intention of the lawgiver which we must seek out and give effect to; and there is nothing in the statute showing any intention to

• enlarge the powers of factors or to give them the right to pledge the property confided to them for sale.

It is therefore ordered that the judgment appealed from be affirmed 'with costs.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 4532.
    William J. Rusk, Administrator, v. Warren, Crawford et als.
    Where there is community between husband and wife, the husband is the head of it, and is responsible for the debts of the community. The death of his wife docs not deprive him of the right to make bona fide settlements for the payments of the debts of the community, nor do such settlements novate the debts as to the community. The community-property is liable for the community debts.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Butler, J.

      Waddill & Barbin, for plaintiff and appellant.

      .Irion, Cullom & Walsh, for defendants and appellees.
   Ludeling, C. J.

The debts, which are the basis of the judgments injoined in this suit, were created during the existence of the community of acquets and gains between N. R. Selser and his wife, Martha Stampley. After the death of his wife, he continued to control and administer the property of the community, without any administration upon the succession of his wife. While thus controlling the community property after the death of his wife, he renewed the notes given by him during her life, and subsequently the holders of the notes obtained judgments against him individually; and, having seized and sold his ■undivided interest of the community property, they caused the other half interest to be seized to satisfy said judgments. In the meantime, ■ one of the heirs of the deceased wife was appointed administrator of the succession, and he has injoined the sale.

The plaintiff in injunction contends that by taking new notes and judgments thereon against the husband personally, after the death of the wife, the debts were extinguished by novation. We do not think so. The husband was the head of the community and he was responsible for the debts of the community ; the death of his wife did not deprive him ■of the right to make bona fide settlements for the payment of the debts ■of the community, nor did such settlements novate the debts as to the community. The community property is liable for the community •debts. Lawson v. Ripley, 17 La. 274 ; 23 An. 424.

It is therefore ordered and adjudged that the judgment of the lower ■court be affirmed with costs of appeal.


text:
    No. 2844.
    M. N. Radowitch v. A. H. Siewerd and als.
    Where it was established that tbe plaintiff, master of a boat, was authorized by his employer the captain of the boat, to collect freight bills of a certain amount which he held, with the understanding that said plaintiff accepted said amount of bills in settlement of his wages amounting to four hundred and sixteen dollars and fifteen cents, and advances to his employer amounting to two thousand dollars, and that said employer or the boat would make the amount of the bills good, if they could not be collected, and where it was admitted that plaintiff collected one thousand and thirty-eight dollars and thirty-five cents;
    IKeld — That of the sum thus collected there should have been imputed the amount due for the payment of plaintiff’s wages, as the privileged claim.
    APPEAL from the Seventh District Court, parish of Orleans. Col-lens, J.

      Bentinek Bgan, for plaintiff and appellee. Albert Voor!Mes, for defendants and appellants.
   Taliaferro, J.

The plaintiff sued the defendants, Siewerd & Kip, in solido, for seven hundred dollars, being, as he alleges, for wages due him as master of the steamer A. G-. Brown, owned by the defendants. These services he alleges were rendered from the twenty-first of October, 1868, to the twenty-ninth of December of the same year, when he was discharged by the defendants without good cause. He claimed a lien and privilege on the boat and caused her to be sequestered.

A judgment by default was entered against Kip, which was made final on the twentieth of February, 1869. A fi.. fa. was issued against Xip, which was returned nulla bona. To the petition sued on Siewerd the defendants answered on the twenty-sixth of January, 1870. But ■on the sixth of March, 1869, after the default judgment was made final •against Kip on the twentieth of February, 1869, both defendants filed a suit in the Seventh District Court to annul that judgment. On the third of April following they filed a supplemental petition for an injunction to restrain execution from issuing against them.

This contestation went on until the twenty-first of January, 1870, when judgment was rendered annulling the judgment of twentieth of February, 1869, against Kip ; but the decree restored and reinstated the proceedings in that case to the status they were in on the eighteenth ■of January, 1869, carrying things back to a period anterior to the time of the final judgment against Kip, thenceforth to be proceeded with according to law and the rights of the parties.

The defendants answered in the original suit, as we have seen, on tlie twenty-sixth January, 1869, denying the allegations of the plaintiff, and specially alleging that the plaintiff’s services, as master of the A. Gr. Brown,” were rendered to Captain Bassett, who had previously chartered the boat, to the knowledge of the plaintiff; that plaintiff' and Bassett had entered into partnership in running the boat, and that the plaintiff had contracted with Bassett to render the services he claims to have rendered. They deny that they ever assumed to pay this debt due by Bassett, or that they are in any manner bound for it. There was judgment for the plaintiff for the sum of $465, and the defendants have appealed. We find the facts to be that Bassett chartered the A. Gr. Brown ” on the twenty-fourth January, 1868, for one year, to run from the first of February, 1868, to the first of February, 1869. On the twenty-sixth of October, 1868, Bassett and the plaintiff, Radowitch, entered into a contract containing various stipulations, among them, one by which Bassett bound himself to employ Radowitch as master of the steamer, and to pay him for his services in that capacity the sum of two hundred and fifty dollars per month, to^ the first of February, 1869. . About the first of January, 1869, the A.. Gr. Brown, by collision with another steamer, went down, and. proved' a total loss. On the eighteenth of January, 1869, a settlement was-made between Bassett and Radowitch. The latter, upon entering into' the contract with Bassett, to which we have adverted, loaned the latter $2000. The sum of $464 15 was fixed as the amount of wages due the plaintiff. It was arranged that Radowitch should take for collection, to pay himself, fifty-seven freight bills due the boat. The written act of the parties in relation to this matter is in these'wordsr

“New Orleans, January 18, 1869.
“I hereby authorize Captain M. N. Radowitch to collect freight bills' which he holds, to the amount of twenty-four hundred and sixty-four dollars and fifteen cents, of the steamer A. Gr. Brown ; the condition of this receipt is, that Captain Radowitch accepts the above amount in-bills in settlement of wages and advances to Captain Bassett on steamer A. Gr. Brown. It is also understood that any errors or bills that are not collectable in above amount, said Bassett will make good, or steamboat A. Gr. Brown.
“(Signed) A. P. KIP, W. S. BASSETT.
O. CANTON, M. N. RADOWITCH.”

It is important in adjusting this controversy to ascertain the preponderance of testimony in regard to the true intention of the parties in making this settlement and as to the manner its terms were carried out.

A considerable amount of testimony was taken regarding the value and availability of this lot of freight bills. Radowitch presented a tabular statement of the amounts he collected and of the amounts not paid. He is very clear and direct in his testimony that he collected. all that could be collected out of the entire number of bijls lie received and gives the total collected at $1038 35. He is equally distinct in •asserting and reiterating that he was to credit what he collected, and any deficiency that might arise was to be made good to him.

The defendants, Siewerd & Kip, contend that the wages were to be paid by Bassett, and that they were in no manner bound for them. How they became bound unless it be by certain admissions we shall presently consider, we have been at a loss to ascertain. The boat it •seems went into the possession and control of Bassett under the charter party about the first of February, 1868. Radowitch had nothing to do with the boat until the twenty-sixth of October following, and by the written agreement between him and Bassett the latter was to pay his waces.

Yet Radowitch sues Siewred & Kip for the wages and for the time he had charge of the boat for Bassett, or rather on joint account. In his own evidence in the original suit against the defendants he does not say that they employed him, nor that they discharged him. Neither does his witness, Dodder, say anything on the subject. His allegations that the defendants employed him and discharged him are not made good by proof. In his reasons for refusing a new trial, the judge ■a quo seemed to think that by the contract entered into on the twenty-sixth of October, 1868, between Radowitch and Bassett, the defendants became not only proxies but parties to that contract, and made themselves co-obligees with Bassett. By examining the contract of the twenty-sixth of October, 1868, between Radowitch and Bassett, it appears that Siewerd & Kip intervened, but it seems they intervened only to bind themsel-ves to sell the steamer to Radowitch on the same terms they had bound themselves by the charter party to sell to Bassett, if the latter should not conclude to buy and the former did. Bassett in his contract with Radowitch was to turn over to him the option or preference to purchase if he himself declined, and Radowitch chose to purchase, Siewerd & Kip intervening to bind themselves to sell to Radowitch on the same terms they were bound to sell to Bassett. We do not construe this intervention as going any further, or to extend to any other matter.

In their suit to annul the judgment of the twentieth February, 1869, the defendants make the following statements, which are sworn to:

‘‘Your petitioners aver that on the nineteenth of January, 1869, a settlement and compromise was made between the said Radowitch and William S. Basset in behalf of petitioners, by which it was agreed that the above mentioned suit would be discontinued by the plaintiff therein; that the consideration of said compromise was the transfer for collection of fifty-seven bills or accounts, due by divers parties to •the said William S. Bassett, for the aggregate sum of $2464 15, as will more fully appear by reference to the annexed list, made a part of this-petition; that said Radowitch has proceeded with the collection of said claims, and has actually collected an amount more than sufficient to pay the claim due him by petitioners, which claim, instead of being, the sum of $700, was liquidated to the amount of $404 15.”

It is strenuously urged on the part of the plaintiff that these declarations of the defendants amount to judicial confessions which ought to-conclude the plaintiff. Taking into view all the facts elicited by the evidence, we are not inclined to consider these declarations in that light. It seems clear to us that there existed no personal obligation-on the part of the defendants to pay the plaintiff’s claim for wages. For the amount of these wages he had a lien and privilege on the steamer, which he might have enforced had she not been lost. We can take the defendants’ declarations in no other sense than as importing a liability upon their boat, arising from the lien of the captain for his services. Of the sum collected by him, $1038 35, the amount due the plaintiff ($416 15) for wages, should have been imputed to the payment of the privileged claim.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendants, the plaintiff' and appellee paying costs in both courts.

Rehearing refused.


author: Ludeling-, C. J. Wyly, J.

text:
    No. 2863.
    Vincent Battalora v. Albert Erath and als., and D. S. Ramelli v. Albert Erath and als. (Consolidated.)
    Where the appeal was taken by the plaintiff from a judgmei.t dissolving an injunction without damages, and in his petition of appeal plaintiff prayed for citation against the defendants only 5
    Held — Thdt the motion to dismiss the appeal on the ground that all the parties in interest-were not made parties to the appeal, must be overruled. It was not necessary that the surety on the injunction bond should have been made a party to the appeal.
    Whether there was a consideration or not between the makers and the payee of certain promissory notes, the makers were liable to the indorsees who acquired the notes before * due and gave á valuable consideration therefor.
    Whether a blank was filled up, before or after the signing of the notes, can not affect the* indorsees who knew nothing thereof and who acted in perfect good faith.
    APPEAL from the Seventh District Court, parish of Orleans. Collens, J.

      Mitchel & Brice and Face, Foster & Merrick, for plaintiffs- and appellants. Gustcwus Schmidt, for defendants and appellees.
    On Motion to Dismiss.
   Ludeling-, C. J.

We are asked to dismiss this appeal on the ground) that all the parties in interest are not made- parties to the appeal.

The appeal is taken by the plaintiff from a judgment dissolving an injunction, without damages. In his petition of appeal he prayed for-citation against the defendants only. It is contended that the surety on the bond should have been made a party to the appeal. We can not imagine why ? For if cited there could be no change made in the ■ judgment, as between the appellees.

In the case of B. Avegno v. S. Johnson, G. Metz subrogated, 22 An.,, it was said that it is “the settled jurisprudence of this court that the surety on an injunction bond is a necessary party to an appeal.” The principle was, too, broadly stated that the surety was a necessary party in that case, which was an appeal from a judgment in favor of the plaintiff perpetuating an injunction. He had an interest in maintaining that judgment. But it is different in a case where the judgment dissolves the injunction without damages, and the plaintiff alone appeals.

The additional grounds filed on fifteenth November, 1870, came too - late, and can not be considered. 12 An. 745.

It is therefore ordered that the motion be overruled.

On the Merits.

Wyly, J.

In 1865 Samuel Fasnacht and Louis Fasnacht sold their • brewery in this city to Albert Erath, and in evidence of part of the price took two notes for $5000 each, one made by Y. Battalora and the-other by D. S. Ramelli, payable to the order of said Albert Erath, who ■ indorsed and delivered them before due. They were not paid at. maturity, and the notes which form the subject of this controversy were given by the same parties in renewal thereof. A few days before-the maturity of these notes, Battalora and Ramelli injoined the defendants, Erath and Samuel and Louis Fasnacht, from transferring or disposing of said notes, on the ground that the same were executed without consideration, and with the assurance that the' makers were • not intended to be held liable, and that they Were made and given merely as a matter of form. Samuel and Louis Fasnacht in their-answers reconvened, and prayed judgment for the amount of the notes. The court in both these cases dissolved the injunction, and gave judgment in reconvention, as prayed for. The plaintiffs appeal..

An examination of the evidence satisfies us that the court did not err. Whether there was a consideration or not between the makers- and the payee, the makers are liable to the indorsees, Samuel and Louis Fasnacht, who acquired the notes before due, and gave a valuable consideration therefor. Whether the blank was filled up, fixing; the rate of interest, before or after the signing, can not affect the indorsees, who knew nothing thereof, and -who acted in perfect good. faith, giving the indulgence and allowing the renewal upon the understanding that the notes were to bear eight per cent interest. Indeed, the whole defense seems to be utterly without merit, and the appeal was doubtless for delay. There should be damages for frivolous .appeal, as prayed for.

It is therefore ordered that both of the judgments herein be affirmed ■with costs, and that ten per cent damages be added to the amount of •each judgment.

Rehearing refused.