text:
    No. 4908.
    Josiah Fisk v. Police Jury, Parish of Jefferson, Left Bank.
    This case is not one in which tlie district attorney, acting as parish attorney, can claim under section 2761 R. S., “ a fee of five per ceDt. on the amount, for defending ” the said suit, as no amount was claimed or actually involved therein.
    It is manifest that the above mentioned section contemplates some servioes to be rendered for which the salary — -the minimum of which is fixed — should be a compensation, and it provides only for commissions when there is a suit by or against the parish for an amount on which the commissions can be assessed.
    Appeal from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Josiah Fish, in propria persona, and John Bay, for plaintiff and appellant. William Mithoff, Jr., for defendant and appellee.
   Howell, J.

The plaintiff claims his salary for a year and a half and also four per cent, commissions for his services as district attorney, pro tempore, in the case of The State ex rel. A. Bonnabel v. the Police Jury, parish of Jefferson, left bank,” by mandamus to compel the police jury to cause the construction of a shell road, which the relator therein alleged he had, as a citizen, an interest in having constructed. The plaintiff bases his right to the five per cent, commissions on the following clause of section 2761 K. S. The district attorneys shall represent the parish for which they are appointed “in any case in which such parish may be interested, and perform such duties as attorneys for the benefit of such parish as may be required by the police jury; they shall be paid by such parish a salary of not less than one hundred dollars ($10U) per annum, and as much more as the police jury may fix, out of the treasury of such parish, quarterly, on their own warrant, and the further sum of five per cent, commission on any amount they may recover in any suit in favor of such parish, and a fee of five per cent, on the amount for defending any suit in which said parish is defendant, to be paid by the parish.”

The question is, whether or not the plaintiff is entitled to commis sions, under the above law, for defending the parish in the above mandamus suit.

There was no amount claimed by the relator in said proceeding, nor could the parish be condemned therein to pay any amount. The only matter in controversy was, whether it was the duty of the police jury under the provisions of the law authorizing the construction of the shell road, to begin the proceedings and take the steps necessary for the construction thereof, and that question was presented by a citizen alleging that he had an interest in having the road made. It was decided in the district court, and the decision affirmed on appeal, that under the law invoked the police jury had a discretion and could not be compeded by mandamus to have the road constructed.

We think the case is not one in which the parish attorney can claim “ a fee oí five per cent, on the amount for defending ” the said suit, no amount being claimed or actually involved therein.

It is manifest that the above law contemplates some services to be rendered for which the salary, the minimum amount of which is fixed, should be a compensation, and it prescribes only for commissions when there is a suit by or against the parish for an amount on which the commissions can be assessed. In all other suits and for all other professional services the annual salary is to be the compensation. If the salary fixed in this instance is too small, we can not remedy it by a construction of the law, of which we do not think it susceptible. The construction contended for by plaintiff would enable him to claim a commission of five per cent, in every suit in which the parish is a party, and every professional advice given the police jury, upon showing that an ultimate money liability might be the result of such suit or the matter in which the advice is given.

We think the judgment of the court a qua for the salary due plaintiff is correct.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Howell, Howell, J. Morgan, J.,

license: Public Domain

text:
    No. 4623.
    Chaffraix & Agar v. W. P. Harper, Sheriff, and D. & J. D. Edwards.
    The material facts in this,case are as follows: The plaintiffs were, in 1871 and'1872, the com» mission merchants and factors of Wilkinson, who owed them in April, 1872, about $18,000 evidenced by two notes secured by mortgage, at which date their payment was extended to first of February, 1873. A pledge of other notes and another mortgage were given to secure the said indebtedness and the advances to be made for the crop of 1873, to the amount of $12,000, the planter obligating himself to ship the crop of that year and each subsequent year, if necessary, to pay the said sums with interest, and all commissions, expenses, etc. In December, 1872, the shipment in question was made of hogsheads of sugar and barrels of molasses, marked with the initials of plaintiffs, butwithout any special instructions from Wilkinson. The plaintiffs received the bill of lading early on the morning of the day of its arrival. A few hours afterwards, on the same day, the sheriff of the parish of Orleans, with a fi. fa. from the Parish of Plaquemines, in the suit of D. and J. D. Edwards v. Wilkinson, went aboard of the steamboat and seized the said sugar and molasses as the property of the said Wilkinson. Whereupon the plain» tiffs claiming the custody and control of the said property to the exclusion of Wilkinson’s creditors and as exempt from seizure by them, took an injunction.
    The court thinks that the property belonged to Wilkinson, the shipper, and that his creditors might seize, subject to the rights of the consignees to be settled contradictorily with the seizing creditors, inasmuch as the consignees were the agents of the shipper, and their constructive possession under the bill of lading, did not give them an ownership, nor exempt the property from the pursuit of the creditors of the owner, either by actual seizure under the fi. fa., or by the garnishment process. The latter mode is not exclusive. Either may be resorted to according to circumstances.
    The injunction was not the remedy to which the plaintiffs were entitled. The sheriff should have proceeded with the sale, leaving the plaintiffs and defendants to settle their respective rights to the proceeds.
    Appeal from the Superior District Court, parish of Orleans. Hcmláns, J.

      Gilmore <& Sons, for plaintiffs and appellees. BLornor & Benedict, for defendants and appellants.
   Howell,

J. The plaintiffs, commission merchants in New Orleans, and the factors of Dr. J. B. Wilkinson, a sugar planter in the parish of Plaquemines, injoin the sheriff and D. & J. D. Edwards, judgment creditors of said Wilkinson, from interfering with their possession and the sale and disposition by them of certain sugars and molasses shipped to them by said Wilkinson to be sold, and the net proceeds placed to the credit of said Wilkinson’s account with plaintiffs, for supplies ■and advances made by them and secured by mortgage. The defendants plead a general denial, admit the seizure under their judgment of the property in question as the property of their debtor, deny that any special instructions were given in regard to the shipment thereof, allege that if plaintiffs have any claim against Wilkinson they are protected by their mortgage; further that plaintiffs, under cover of their injunction, have obtained possession of said property and sold it for their own benefit, and they pray that the injunction be dissolved ;and for judgment against plaintiffs and their surety in soMdo for the •amount of their writ and damages.

From a judgment perpetuating the injunction the defendants have ■appealed.

The material facts are, that the plaintiffs were, in 1871 and 1872, the ■commission merchants and factors of J. B. Wilkinson, who owed them in April, 1872, about $18,000, evidenced by two notes secured by mortgage, at which date their payment was extended to first February, 1873; a pledge of other notes and another mortgage were given to secure the said indebtedness and the advances to be made for the crop •of 1873 to the amount of $12,000, the planter obligating himself to ship the crop of that year, and each subsequent year if necessary, to pay the said sums with interest and all commissions, expenses, etc., of shipment, sales, etc.; that in December, 1872, the shipment in question was made without any special instructions from the planter, the plain-stiffs receiving the bill of lading early in the morning of the day of its arrival; a few hours afterwards, on the same day, the sheriff of Orleans with & fieri facias from the parish of Plaquemines, in the suit of D. & J. D. Edwards v. J. B. Wilkinson, went aboard of the steamboat and seized the said sugar and molasses as the property of the said Wilkinson. Whereupon this injunction issued, the plaintiffs claiming the ■custody and control of said property to the exclusion of Wilkinson’s creditors and as exempt from seizure by them.

We think the property belonged to Wilkinson, the shipper, and that his creditors might seize it, subject to the rights of the consignees to be settled contradictorily with the seizing creditors, inasmuch as the consignees were the agents of the shipper and their constructive possession under the bill of lading, did not give them an ownership, nor exempt the property from the pursuit of the creditors of the owner, cither by actual seizure under' a fi. fa. or by the garnishment process. The latter mode is not exclusive. Either may be resorted to according to circumstances. C. P. 642.

Article 3247 (3214) C. C., gives a privilege to the consignee superior to the attaching creditor for any balance that may be due him, provided he has obtained possession or received a bill of lading. The language of this article plainly implies that the goods may be attached, and, as we have remarked above, a direct seizure by the sheriff may be made if he can take actual possession, the attachment not being exclusive of the direct seizure.

The conclusion seems to us to be clear that the injunction was not the remedy to which the plaintiffs were entitled, and that the sheriff" should have proceeded with the rule, leaving to plaintiffs and defendants to settle their respective rights to the proceeds.

Although the common debtor is not before us, there is evidence sufficient in the record, including plaintiffs’ account against him, to show that the right of the defendants to the proceeds of the property seized is superior to that of plaintiffs, who by their proceeding are liable,, under the evidence, to the defendants for the amount thereof in their hands.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of D. & J. D. Edwards dissolving the injunction herein, and that they recover of plaintiffs and their surety, S. Cambon, in solido, the amount of the judgment against Dr. J. B. Wilkinson, injoined herein, to wit: $2551 12, with interest and costs therein allowed, not to exceed $8800, the value of the property of said Wilkinson in the hands of plaintiffs as alleged by them. Costs of this suit in both courts to be paid by plaintiffs.

On Rehearing.

Howell, J.

The error which the plaintiffs’ counsel make is in considering the bill of lading in this case as plaintiffs title to a special ownership of the property, and that the latter have a privilege for advances on the crop, of which the property seized was a part.

They can not hold both positions at the same time, that of owner and a creditor with privilege. They do not claim however as owners but as creditors with a privilege for advances, and we think the record shows that they had no privilege for the debt, which existed at the date of the seizure, and that the shipment was made without speciaL instructions. They are merely the factors of the owner, with power to sell, and having no privilege and no special instructions, their possession of the bill of lading gave them only the possession and control necessary to make the sale, and until that was made, or special instructions had effect, their possession was, in law, the possession of the owner, whose creditors could seize the property subject, of course,, to any preierence in favor of all parties, having a preference on the-proceeds.

We can not assent to the proposition that the receipt by the factor or commission merchant, of a bill of lading in the ordinary course of business between planter and factor, without the existence of some special privilege or effective instructions, will give the factor such control of the property shipped.as to exempt it from the pursuit of the planters first creditor’s.

The cases of Felter v. Field, 1 An. 83, and Delgado v. Wilbur, 25 An. 82, do not apply to this case.

It is therefore ordered that our former decree herein remain undisturbed.

Morgan, J.,

dissenting. In the case of Felter v. Field, 1 An. 83, it was said: “Was the property sold by the plaintiffs in the possession of the defendants at the time of the attempt to enforce the vendor’s privilege ? It was on shipboard under a bill of lading. It was in the possession of the carrier who possessed it for the lawful holder of the bill of lading, who had the only symbol of ownership, and had the sole control of it and sole power of disposing of it. By putting the bill of lading in the postoffice the defendants parted with all control over it, for they addressed it to the consignees in whose favor the bill, was made, and on whose signature the shipment was to be delivered. In no sense could the defendants be considered as being in the possession of the property after the shipment and transmission of the bill of lading towards its destination.’’ The same doctrine was recognized by this court in the case of Delgado v. Wilbur, 25 An. 82.

These decisions rest upon what I understand to be the well recognized principles of the commercial law. It is based upon the doctrine that the bill of lading is the title to the property which it represents.

In this case Wilkinson, a debtor of plaintiffs, shipped to them a certain quantity of sugar and molasses. The sugar was marked with-their initials. The bill of lading under which it was shipped declared that it was to be delivered to them or to their assigns, at New Orleans. The produce reached New Orleans. The bill of lading was delivered to plaintiffs. After the bill of lading was in their possession, the property was seized under a fieri facias. I think the property was not liable to seizure. It was not in the possession of Wilkinson, nor was it under his control. Even had he sold it to Chaffraix & Agar on a credit, and they had failed before it had been delivered to them,‘he could only have prevented them from taking possession of it by stopping it in transitu. The assignment of the bill of lading by Chaffraix & Agar would have been good. As soon as the bill of lading reached their hands they could have sold the property which it represented f and this, because in law the possession of the bill of lading was their title to the property. If the legal title was in them, it could not be seized by Wilkinson’s other creditors under a fieri facias.

For these reasons, as well as for those given by the district judge, I think the judgment should be affirmed.


author: Ludeling, C. J. Morgan, J.,

text:
    No. 4733.
    Succession of Pierre Monette. On petition of Julien Joseph Monette praying to be recognized as sole heir and put in possession.
    Plaintiff, after having accepted the benefit and status conferred upon him by Pierre Monette in the act of marriage which legitimated him, can not attack the act creating his own status, and under which he is asserting his rights, by questioning the validity of the same rights conferred upon one who is recognized as his brother and also legitimated in the same document. The very words which establish the legitimacy of plaintiff, estab* lish also the status of the defendant. He can not accept the benefits of an act and repudiate its obligations.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      Ohcvrvet <& Euplantier, for plaintiff and appellant. 0. Morel and E. Eilleul, for defendant and appellee.
   Ludeling, C. J.

The defendant filed several peremptory exceptions to the demand, which were sustained, and the plaintiff has appealed.

It will be necessary to notice only one of the exceptions. It is this: That after having accepted the benefit and status conferred upon him by Pierre and Louise Monette, the plaintiff can not attack the act creating his own status, and under which he is asserting his rights.

He has annexed to his petition as a part thereof the act, which, with the marriage, is his title. It contains the following clause: “Devant moi curé, et les mémes témoins sous-signós, les susdits époux ont reconnu pour leurs enfants légitimes selon les lois, Julien Joseph Monette, agé de 32 ans, et Edward Monette, agó de 22 ans, les quels, aux mémes titres, auront tous les droits, priviléges d’enfants légitimes devant Dieu et l’état.” The plaintiff relies upon the marriage of his parents and this acknowledgment in the act of marriage to establish his legitimacy and his right to the estate, and yet he wishes to attack it. The very words which establish his legitimacy, establish also the status of the defendant. One can not be listened to by courts when he attempts to prove the falsity of an act, under which alone he asserts a right. He can not accept its benefits and repudiate its obligations. “II est de principe que les actes sont indivisibles dans leurs efféts.” Encyclopédie du Droit — verbo, acte.

See also the cases of Provost et Lallemant, c. Marie Liberté, in Palais Royal, vol. 10, p. 547, and Griffauliéres v. Griffauliéres, Palais Royal, vol. 24, p. 816.

If Joseph Julien Monette can attack the validity of the acknowledgment, so can Edward Monette, and the spectacle would be presented of adverse claimants claiming rights under the same act, and both attacking the truth of its representations. And as it is possible that each party might be able to prove that the other was not the child of both alleged parents, it might result that a suit would be prosecuted to final judgment, when neither party had a standing in court, for neither can question the act unless he be the heir of the parties to said act. If the acknowledgment be false as to one, what guarantee have we that it is not false as to the other? They are both acknowledged by the same stroke of the pen. The judgment of the lower court is correct.

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

Morgan, J.,

dissenting. I understand the decision of this case Btands upon the declaration that plaintiff and defendant holding their status by virtue of the same act, neither can contest its validity.

I can not assent to this proposition. I think the act can be contested by any one in interest.

If these persons had been recognized as required by law at different times, I do not understand it to be held by the opinion of the majority of the court that either act could not have been contested by either of the parties. Any act containing different provisions may be part good and part bad. So the act which declares ten children to be the offspring of the same persons may be in part true and in part false. Those who have an interest in showing its falsity in any particular? are, I think, entitled to do so.

The law prohibits adoption. The ruling of the court permits it in an indirect way.

The law prohibits the legitimating of adulterous bastards. The law permits the legitimating of a child, not an adulterous bastard, conceived by a woman between whom and the father no impediment to marriage existed at the time of conception. The acknowledgment may be made by public act before a notary public and two witnesses. A man may make his by public act. Suppose in the act by which he makes his will he recognizes a child sprung from an adulterous connection, giving him the bulk of whatever fortune he may have, and instituting a collateral relation heir for the balance, would not the instituted heir be allowed to contest the acknowledged child’s right upon the ground that he was an adulterous bastard, and consequently incapable of being legitimated ? Suppose he has two illegitimate children, one of whom is adulterous and the other capable of being legitimated, and he attempts to legitimate them both, will he be permitted to do so because he has acknowledged them both in the same act? Can a man make his grandfather his child? Yes, if the opinion of the majority of the court be correct, provided he declares him so to be in the act by which he legitimates a natural child, for the same act which legitimates the child transposes the grandfather into a child. Their status is established by the same title, and can not, therefore, be disputed by either.

There are some acts and declarations which a man can not repudiate. But there are no cases in which he can not plead fraud, want of consideration, error, etc., to his acts or declarations. And I know of no case where a person, not a party to an act, can not set up that.a declaration contained therein is not true.

Here it is alleged that a declaration in an act is false, and this declaration deprives a party of his rights. I am told that the party whose rights are destroyed by it can not contest it, because his claims rest upon a similar declaration with regard to himself. What will a woman who has lost her position not do to regain it? What sacrifice has she ever been called upon to make which she has not cheerfully submitted to, if it was to do tardy justice to herself and secure legitimation to her unfortunate child? Self-sacrificing in all things for those she loves; to her offspring tender, and of their interests jealous; of their good name sensitive, and, of all things, made most unhappy by any stain which she may have put upon their birth, what sacrifice will she not make to relieve them from the disgrace which a possibly censorious society places upon those who are brought into the world without the previous publication of bans, the license of the justice, the solemnization by the minister of God’s Holy law ? None, I believe. And so I can easily fancy how the declaration that both the children, whose legitimacy is now in question, are hers, was wrenched out of her in the act by which her own son was, as it were, given a new life too. The declaration may have been the sine qua non of the marriage. The man may have extorted it from her by a refusal to marry her without it. With her own position at stake, with the legitimation of her child dependent upon a word from her, she would have been more or less than woman if she had refused to say it. Her own wrongs righted, her own child’s status fixed, it mattered nothing to her what other results followed from her declarations. She would have been true to her own offspring, and this was all she had at heart. Suppose this to have been the fact in this case, why should it not be established? I can see no reason and can find no law prohibiting it, and I am therefore constrained to dissent from the opinion of the majority of the court.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 4710.
    Commissioners of Immigration v. C. L. Brandt et als.
    The second section of the immigration law of the State, enacted March, 1869, and re-enacted in the Revised Statutes of 1870, section 1722, is not in conflict with the constitution of the United States, which gives to Congress the exclusive right to regulate commerce with foreign nations and among the several States and with the Indian tribes. The State law in question is not a regulation of commerce between foreign nations, but a police regulation which the State may properly adopt for the protection of its own citizens.
    In regard to the bonds exacted by said immigration law, their execution can not be enforced, no penalty being prescribed for refusal to execute them.
    Appeal from the Superior District Court, parish of Orleans. HawMns, J.

      Sam. JR. & O. L. Wallcer, for plaintiffs and appellants.

      William H. Hunt, E. W. Huntington and Oliarles M. Emerson, for defendants and appellees.
   Taliaferro, J.

The Commissioners of Immigration, a body duly

incorporated by the laws of Louisiana, sue the defendants — master, owners and consignees of the North German steamship Saxonia, a foreign vessel plying between the ports of New Orleans and Hamburg— for the amount of penalty imposed for violation of- the provisions of the second section of the act of March 8, 1869, and re-enacted, Revised Statutes, 1870, section 1722. By that section of the act it is made the duty of the master and commander of any vessel coming from any State of the United States other than the State of Louisiana, or from any foreign country, to make a report under oath to the Commissioners of Immigration or their agent, which shall contain the names, ages, nationalities, condition, description, etc., of every passenger landed at this port and coming from such other State or foreign country, within twenty-four hours after arrival in port, and in case of failure on the part of the master or commander to report according to law, a penalty of $100 is imposed by the law in the case of each and every passenger •landed and neglected to be reported.

The steamship Saxonia, Captain Brandt, arrived at the port of New Orleans on or about the fourth day of January, 1873, and landed one hundred and sixty-four alien passengers, and failed to make the report required by law. It is established that the report which was furnished by the board of commissioners to the Saxonia was lodged in the Customhouse, and that the agent of the board obtained from the consignees, Williams, Ruperti & Co., an informal list, unsigned and not sworn to. The plaintiff further seeks in this action to compel the execution of the bonds required by the third section of said act (Revised Statutes of 1870, section 1723), by which the owners and consignees are required, in case they do not choose to commute within twenty-four hours by paying the sum therein stipulated, which bonds are required in order to secure the State, cities and parishes, that the immigrants will not become a burden upon the communities where they may remain.

To these demands the defendants oppose the following answer and exceptions: That the section of the act under which the plaintiff demands the bonds in question is merely directory, without sanction or penalty, and can not be enforced; that the exaction of said bonds is •without cause or consideration, and in hostility to the inalienable rights of defendants, and therefore illegal and unconstitutional; that the said section conflicts with article 114 of the State constitution, because its object is not expressed in the title of the act; that the act of the Legislature under which these claims are set up against the defendants is repugnant to and violative of sections eight and ten of the first article of the constitution of the United States and to the laws of Congress made in pursuance thereof, and that on the same ground the required bonds are without force.

In the court below it was decided that the law requiring bonds is inoperative, as it affixes no penalty for a refusal to give them. The court did not pass upon the money demand, $100 for each passenger not reported. The case was dismissed at plaintiffs’ costs, and they have appealed.

In regard to the bonds we concur with the judge a quo that their execution can not be enforced, no penalty being prescribed for a refusal to execute them. 14 An. 207 ; 7 Rob. 219.

We regard the immigration law of the State as not being in conflict with the constitution of the United States, which gives to Congress-the exclusive right “to regulate commerce with foreign nations and among the several States and with the Indian tribes.” We consider the State law in question not as a regulation of commerce between foreign nations, but a police regulation which the State may properly adopt to prevent the introduction among its own citizens of a destitute and helpless class of foreign population, without some security or indemnity against persons of that class becoming a charge upon the people of the State to maintain and support. That a State may make such a provision for the protection of its own citizens, we think well established. 7 Howard 523; 16 Peters 625; 5 Howard 471.

It is therefore ordered, adjudged and decreed that the judgment of the lower court, so far as it declares the law requiring bonds to be furnished by the defendants inoperative, be confirmed, but in all other respects that it be annulled, avoided and reversed. It is further ordered that plaintiffs recover from the defendants the amount claimed as the penalty incurred by the defendants for not reporting, as required by law, the number of alien passengers brought into the State on board the steamship Saxonia, on or about the fourth of January, 1873, viz : the sum of $16,400 and all costs of suit.

Rehearing refused.


author: Morgan, j.

text:
    No. 4742.
    James McCracken, Administrator, v. James Madison Wells.
    This being an injunction case originating in a suit on a promissory note, is not such as entitled parties to a trial by jury, as it does not come under the exceptions contained in the 494th article of the Code of Practice.
    More than a year having elapsed from the last payment of interest to the institution of this suit, the usurious payments which were expressly imputed by the parties to the interest can not now be recovered bach, nor imputed to the capital.
    Appeal from the Fourth District Court, parish of Orleans. Lynch, J.

      O. JS. Schmidt, for plaintiff and appellee; W. B. Hyman, Belden & Holey, for defendant and appellant.
   Morgan, j.

Plaintiff obtained executory process upon a note which he holds as the administrator of Wm. McCracken’s estate for $5000, and caused the property mortgaged to secure the same to be seized. There is a credit on the note for $500. The balance claimed to be due in principal and interest is $4635 55 with interest at eight per cent, since the twenty-sixth April, 1872.

Defendant, proceeding by opposition, obtained an injunction without bond staying the execution of the suit on the grounds—

Hirst — That the order of seizure and sale had issued for a greater sum than was due by him, inasmuch as he had paid $2900 on account of plaintiff’s claim, of which only $500 were credited to him.

Second — That the pretended copy of mortgage offered in evidence by plaintiff is, on its face, an untrue and incorrect copy of the original mortgage.

Third — That plaintiff asked and obtained an order to sell defendant’s property to pay costs to which he had no pretense of right. That the face of the papers show that time was given him to pay the claim sued on.

Plaintiff then took a rule on defendant to show cause on Tuesday, the eighteenth March, why the opposition should not be set aside on the grounds that the allegations contained therein were not true, and also why he should not pay $500 damages for the wrongful obtaining of the injunction. On the eighteenth, defendant excepted to the proceeding.by rule, because, first, the motion and rule are but an answer, and because it.is contrary both to the rules of court and the provisions of law to fry the case without fixing it for trial.

Second — Because if the case is to be tried summarily, it should have been fixed for trial on Monday instead of Tuesday, conformably to special rules of the court for the trial of summary cases.

Third — Because plaintiff by claiming damages, and by requiring defendant to show cause why rent shall not be seized does not confine himself to the questions to be tried summarily but asks for judgment on claims which are to be tried in an ordinary manner, and which entitles him to have the issue tried by a jury. Should these exceptions be overruled, then he asks for a continuance on account of the absence of a witness.

On the same day, but by a separate pleading, he asked leave to amend his defense by asking for a trial by jury, which was refused, to which refusal he took his bill of exceptions. The exceptions were overruled and the rule was thereupon continued to Monday the thirty-first March, on which day, on the affidavit of defendant’s counsel, it was continued to Sunday, fifteenth April. It was then continued to the eighteenth. On the eighteenth, defendant reserved .his bill to the ruling of the court ordering him to trial. The case was proceeded with and judgment was rendered in favor of the plaintiff for the amount claimed to be due on the note, and dismissing his claim for damages.

From this judgment defendant asked for a suspensive appeal, which was granted upon his furnishing bond in the sum of $8500.

The alleged error in the copy of the act of mortgage is that the notary, after stating that the United States internal revenue tax is paid, added “canceled stamps for five dollars being annexed to the original act on file in my office,” instead of saying “said stamps being hereto annexed.” There is certainly nothing in this objection.

The cost which he claims he is illegally called upon to pay is one dollar claimed for the certificate of the inscription of the mortgage. This objection is covered by the case of Weems v. Ventriss, 14 An. 267.

The answer to his complaint that he was not allowed a trial by jury is, first, that the original suit was on a promissory note, and second, that it was an injunction, and that he was not entitled to a jury, not coming under the exceptions contained in the 494th article of the Code of Practice.

The case was a summaiy one, and as such was entitled to a speedy trial. The rule to set aside the injunction was first fixed on Tuesday and then on Monday and afterward continued from time to time, the last time at the special instance of the appellant. This was a sufficient notice and sufficient compliance with the law.

The allegation that from the face of the papers it appears that time was given to pay the claim, is incorrect. The indorsements on the note show that it was renewed for one year from the twenty-sixth December, 1868, and again to twenty-lourth December, 1870, and again to twenty-fourth December, 1871. His letters from Alexandria of March 27, April 3, June 12, and September, 1872, acknowledge that the debt was due at their respective dates, and contain promises to settle it.

It does not appear that a greater rate of interest was contracted for than eight per cent. The note bears interest at that rate after maturity. The indorsements thereon as to the interest merely relate that the interest has been paid in advance up to the period to which payment was extended.

Neither is there any evidence in the record that he has ever paid on the principal of the note more than $500, for which he has been given credit. The $2900 which he claims to have paid, consist, outside of the $500, of twenty per cent, original discount and twelve per cent, interest, all of which he says is usurious, and which he has a right to have credited on the amount remaining due. He is mistaken. More than a year elapsed from the last payment of interest to the institution •of this suit.

“ The usurious payments having been expressly imputed by the parties to the interest, can not now be recovered back, nor imputed to the capital, the plea of prescription having been filed.” Johnson v. Phillips, 24 An. 156.

“ The owner or discounter of any note or bond, or other written evidence of debt for the payment of money, payable to order or bearer by assignment, shall have the right to claim and recover the full amount of such note, bond or other written evidence of debt, and all interest not beyond eight per cent, per annum that may accrue thereon, notwithstanding that the rate of interest or discount at which the same may be or may have been discounted has been beyond the rate of eight per cent, per annum interest or discount.” C. C. 2924.

Plaintiff asks for damages. Under the circumstances of this case, we do not think the damages should be allowed.

Judgment affirmed.

Rehearing refused.


text:
    No. 4913.
    Francis C. Mahan v. Accommodation Bank et als.
    This is an injunction suit, in which the plaintiff alleges that the judgment under which execution issued is a nullity, ou the ground that thore is no legal^corporation plaintiff therein, or owner thereof, such as the Accommodation Bank.
    There is no principle better settled than that a party is not allowed to arrest an execution on grounds that he might have set up in the original suit. Here the party taking the injunction, not only might have sot up in the original suit that the Accommodation Bank was not legally incorporated, hut did do it. Hence it is res judicata.

    Appeal from tlie'Superior District Court, parish of Orleans. Hatoláns, J.

      John Bay, for plaintiff and appellee. Hays t& Bew, for defendant and appellant.
   Taliaferro, J.

This is an injunction suit. Mahan, the plaintiff, was sued by the Accommodation Bank of Louisiana, the successor of the Louisiana Pledge Association, for $4933. The bank obtained judgment against him, and issued execution thereon. In this suit, Mahan injoius the execution, alleging that the judgment under which, it issued is a nullity, on the ground that there is no legal corporation plaintiff therein or owner thereof. The original suit of the Accommodation Bank against Mahan is the one numbered 375, and the one in which judgment was obtained against him as above. That suit was filed twenty-third November, 1872. On the fifth of April, 1873, the Attorney General filed a suit in the name of the State to prohibit the Accommodation Bank from exercising corporate powers to which he alleged they are not entitled by law. The Accommodation Bank filed an exception on the sixteenth April, 1873, which was overruled, and judgment by default was rendered against the bank. Mahan sets forth that if upon the trial of this case of the State v. the Accommodation Bank, No. 2755, judgment should be rendered in favor of the State, the judgment against Mahan in case 375 would become absolutely null and void for the want of proper parties. In the suit now before this court, Mahan sets forth that execution is out against him, and unless restrained by injunction, his property under seizure by the sheriff and advertised for sale may be sold before the suit of the State-v. the Accommodation Bank, No. 2755, can in the usual course of judicial proceedings be decided.

The defendant in injunction excepts that the petition for injunction-sets forth no cause of action ; that on the state of facts therein set out there is no legal right for an injunction shown. Defendant further pleads res judicata.

On hearing the rule filed by the defendant to dissolve the injunction with damages, it was overruled, as was also the plea of res judicataThe defendant appealed.

There is no piinciple better settled than that a party is not allowed to arrest an execution on grounds that he might have set up in the original suit. Here the party taking out the injunction not only might-have set up in the original suit against him, No. 375, that the Accommodation Bank was not legally incorporated, but he did doit. The judgment in that case became final. The appeal was dismissed and execution issued. It formed res judicata.

It is therefore ordered that the judgment of the lower court be annulled, avoided and reversed. It is further ordered that the injunction be dissolved, and that the defendant recover from the plaintiff in injunction and the surety on the injunction bond, jointly and severally, ten per cent, on the amount injoined. It is further ordered that plaintiff pay costs of these proceedings.

Rehearing refused.


author: Wyly, J.

text:
    No. 4641.
    Succession of A. H. D’Meza. On opposition of Myers & Levy to provisional tableau.

      A. contract or promise to transfer or deliver, a collateral to secure a debt resulting from, the payment by the indorsers of notes indorsed for accommodation, gives no privilege or pledge upon the collateral not transferred or delivered in pursuance of said contract or promise.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Mays & New, for opponents and appellants. Trist & Olivier, for executor and appellee.
   Wyly, J.

Myers & Levy opposed the homologation of the provisional account and tableau filed by the testamentary executor of A. H. D’Meza on the ground that they were not ranked as privilege creditors, but were placed as ordinary creditors on the tableau, and from the judgment rejecting their demand, dismissing their opposition and homologating the said tableau, they have appealed.

It appears that Myers & Levy have frequently been accommodation! indorsers for D’Meza; that on fifteenth February, 1872, they indorsed one note for him for $2225 .70, and on twenty-seventh March, 1872, they indorsed another for $1299 14, both payable at sixty days from date — in all, $3524 82 — which they as indorsers had to pay at maturity; that in obtaining these indorsements, D’Meza represented to Myers & Levy that he had an insurance on his life for $10,000, issued by a New York Company, and that he would send on and have the policy divided into two of $5000 each, and he promised, as soon as the policies were returned, he would deliver to them one as security for said two indorsements. The indorsements were made doubtless on the faith of this promise. It further appears that D’Meza sent his policy to New York and had it divided into two for $5000 each in his own favor, and when these policies were returned to him, he told Myers several times to go to his office and get the policy. He also told Myers to go to his office and to his book-keeper to get it, informing him that he had told the book-keeper that one of the policies was for Myers & Levy, but he did not go. The book-keeper, however, was not instructed by D’Meza to deliver the policy to Myers & Levy, although informed by his employer, D’Meza, that one of the policies was intended to be transferred to them. No transfer was made. After the death of D’Meza, the two policies were taken from his desk by the testamentary executor, and sent to New York and collected, and the proceeds are set down on the account to be distributed among the creditors of the succession.

That D’Meza intended to transfer one of these policies to the opponents to secure them as accommodation indorsers, there is no doubt; but the transfer was never made. The policies were never placed beyond the control of D’Meza. They remained in his desk, where he instructed his book-keeper to put them, till after his death. The theory that the policy for $5000 which D’Meza had promised to deliver to. Myers & Levy was transferred, because it was put in possession of D’Meza’s book-keeper for them, and the possession of the latter was their possession, is not borne out by the facts disclosed in the record. The bookkeeper never held the policy as agent or trustee for Myers & Levy. Although informed of his employer’s intention in regard to one of the policies, he was never instructed to deliver it to Myers & Levy or any one else. There was, therefore, no delivery of the policy to Myers & Levy, although the deceased intended to do so. Consequently they never held it as a pledge or collateral security for their accommodation indorsements. The proposition that there was a sale of the policy to them is not supported by the proof adduced by the opponents themselves, and besides, it is at variance with the judicial •admissions in their petition of opposition, alleging that they have a special lien on said policy of $5000 to secure their debt, resulting from the payment of the notes of which they were accommodation indorsers. The opponents, Myers & Levy, pray that they “be decreed to have a privilege upon the life policy or the funds received thereon.”

The averment and prayer of their petition, claiming a privilege on the policy, concede necessarily that the opponents have no ownership ■of the policy, because it would be inconsistent and absurd to set up a privilege upon a thing and claim the ownership thereof in the same suit. A privilege arises from the nature of the debt, and it gives a creditor a right upon the property of his debtor to secure the debt. If the opponents own the policy, there is no debt to be secured, and their ownership of the property would not establish their demand to be ranked as privilege creditors of the deceased on account of their payment of the notes of which they were accommodation indorsers. Under the averments of their petition the opponents could not introduce proof of their ownership of the policy, and they offered none in support of it on the trial.

The proposition that the policy was sold to them is utterly unfounded, and the authorities which they offer in support of the position are without application to the case presented in the record.

Whether the opponents’ remedy was an action to enforce the verbal contract with regard to the policy, or a suit for breach thereof, it is unnecessary to decide in disposing of this case. But it is proper to remark that a contract or promise to transfer or deliver a collateral to secure a debt resulting from the payment by the indorsers of notes indorsed for accommodation, gives no privilege or pledge upon the collateral not transferred or delivered in pursuance of said contract or promise j and this remark is pertinent to the case disclosed in the record.

Judgment affirmed.


author: Morgan, J.

text:
    No. 2996.
    Louis Parker v. Shropshire & Anderson.
    This case was originally brought before the parish court of Jefferson. Defendants excepted 'to the jurisdiction on the ground of the amount claimed, which they alleged to be above 0500. The exception was overruled, when the parish of Jefferson being divided and a. part of it being annexed to the parish of Orleans, the suit was transferred to the Fifth District Court of the latter parish. The same original exception being raised there, was set aside on the ground that it had already been passed upon by the court from which the case was transferred.
    This is an error. The suit should have been dismissed ior want of jurisdiction of the parish, court. The district court took the case as it was originally presented. It follows therefore that the court before which the defendants were cited not having jurisdiction over them, they were never subject to it: and not being under its jurisdiction, no judgment could properly be rendered against them.
    APPEAL from the Fifth District Court, parish of Orleans. Léaumont,-3\

      Bice & Smith, Bandolph, Singleton & Browne, tor plaintiff and appellee. Fellows & Mills, for defendants and appellants.
   Morgan, J.

This suit was instituted in the parish court of Jefferson. The amount claimed is $446 95, with interest from ninth July, 1866.

In the parish court defendants excepted to the jurisdiction upon the ground that the amount in dispute exceeded $500. The exception was dismissed.

The parish of Jefferson having been divided, and a portion thereof having been annexed to the parish of Orleans, the case found its way into the Fifth District Court of this parish. There the exception was again urged and again overruled, for the reason that it “had been passed upon by the court from which the case was transferred.” The exception having been dismissed, default was entered and confirmed. The appeal rests upon the ground of want of jurisdiction of the parish court of Jefferson. No question is raised as to the jurisdiction of this court, which seems to be conceded under the authority of the case of fjchlenker v. Taliaferro, 20 An. 565.

The suit should have been dismissed for want of jurisdiction of the parish court. The constitution gives to these courts exclusive original jurisdiction in ordinary suits in all cases where the amount in dispute exceeds $100 and does not exceed $500. Here the amount in dispute «exceeds $500.

The district court takes the case as it was originally presented. It follows, therefore, that the court before which the defendants were cited not having jurisdiction over them, they were never subject to its jurisdiction. Not being under its jurisdiction, no judgment could properly be rendered against them.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that this suit Ibe dismissed, appellees to pay the costs in both courts.

Rehearing refused,


text:
    No. 3064.
    J. C. Murphy & Co. v. McCarthy & Finnerty.
    The demand sot up by the defendants in this case is, in its nature, independent from tbe action brought by the plaintiffs, and should therefore be considered as a principal, and not areconventional demand.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      James Timony, for plaintiffs and appellees. JE. Phillips, for defendants and appellants.
   Taliaferro, J.

The plaintiffs in this case sue the defendants in solido for one hundred and forty dollars, the value of five barrels of eggs, the property of the plaintiffs, which they allege were stolen from the levee and found in .the possession of the defendants. The answer is a general denial, and it sets up a reconventional demand against the plaintiffs of five thousand dollars as damages, defendants allege they have sustained by the act of the plaintiffs, in getting up against them an unfounded and malicious criminal prosecution as receivers of stolen goods, arising, as plaintiffs pretend, from the fact that a portion of the plaintiffs’ eggs was found in the possession of defendants; the defendants asserting that the eggs in controversy found in their possession, were purchased by them in good faith from dealers in that article, and without knowledge that they were stolen property.

The court a qu,a overruled the reconventional demand and gave judgment in solido .in favor of plaintiffs-for $39 90 with interest. The defendants appealed.

The defense, so far as it relates to one of the defendants, McCarthy & Finnerty was abandoned in this court.

There are three bills of exceptions in the record. We deem it important to examine but one of them. The plaintiffs except, that all the parties to this suit being resident-i of the same parish, and the demand of defendants not necessarily connected with or incidental to the plaintiffs’ claim, it can not be set up in reconvention. Article 375 ■of the Code of Practice provides that: “In order to entitle the defendant to institute a demand in reconvention, it is requisite that such demand, though different from the main action, be, nevertheless, necessarily connected with and incidental to the same; as for instance, the demand instituted by the possessor in good faith against him who sues in order to evict him or for the purpose of obtaining the payment of the improvements made on the premises; provided, that when the plaintiff resides out of the State, or in the átate, but in a different parish from the defendant, said defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with or incidental to the main cause of action.”

In considering this bill of exceptions the proper inquiry seems to be, is the criminal proceeding complained of necessarily connected with and incidental to the civil action instituted by plaint ffs to recover the value of their property found in possession of the defendants'? The defendants allege that they have boen injured in character and business by the criminal prosecution instigated against them by the plaintiffs, and that they have sustained heavy damages thereby. They •do not pretend that the damages they claim have grown out of the suit the plaintiffs have brought against them to recover the value of the eggs. The civil action of the plaintiffs to recover the value of their property received by the defendants, can not be considered as a defamation of their character. It is not easy, then, to see how the claim for damages is necessarily connected with and incidental to the civil action. The two proceedings, civil and criminal, appear to be distinct and separate, and either may exist without the •other. Suppose the plaintiffs had chosen not to sue for the value of the property, and had sought only to have the defendants punished by criminal pioceedings against them. The damages in that case, if any had been sustained, would clearly have arisen alone from the criminal prosecution Set on foot by the plaintiffs; The demand in reconvention in that case could not be connected with or be incidental to a civil action that had no existence. The state of things would be the same if, as in the present case, a civil suit existed for the value of the property as well as a criminal prosecution. As, then, the damages, if any, arose solely from the criminal prosecution, it would seem that the article 376 of the Code of Practice would apply:

“If the demand instituted by the defendant be one in its nature independent from the action brought by the plaintiff, it shall be considered as a principal not a reconventional demand, and must be brought at the domicile of the plaintiff.”

Here, it seems the demand set up by the defendant is, in its nature, independent from the action brought by the plaintiff, and should be therefore considered as a principal and not a reconventional demand.

The exception should have been sustained, and, it being raw so ruled, this court is without jurisdiction.

It is therefore ordered that this case be dismissed at the costs of the appellants.


text:
    No. 4851.
    Albert R. Whitney, George W. Whitney, Administrator, v. Bertrand Saloy.
    Where the ground for the injunction restraining the executory proceedings of the defendant was, that there is a deficiency in the measure of the property bought by the plaintiff from the defendant — the price of which is secured by the mortgage sought to be enforced — and that, on account of this deficiency, there should be a diminution of the price;
    Held — That the sale being per aversionem — reference to the plan and to the streets bounding the squares controlling the expressions in regard to the measurement of, the ground — the alleged deficiency can not avail the plaintiff in injunction.
    APPEAL from the Second Judicial District Court, parish of JeffersonPardee, J.

      O. W. Pesangon, for plaintiff and appellant. O. FSehmidt, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment dissolving his injunclion restraining the executory proceedings of the defendant.

The ground for the injunction is, theie is a deficiency in the measure of the property bought by the plaintiff from the defendant, the price of which is secured by the mortgage sought to be enforced, and on account of this deficiency there should be a diminution of the price to the extent of $850. The property is described in the deed as follows:

“ The one-lialf of two certain squares of ground situate, lying and being in the city of Carrollton, in the parish of Jefferson in this State, and designated by the numbers fifty and fifty-one, on a plan made by Charles F. Zimpel, then a deputy surveyor of the United States, deposited in the office" of Felix Grima, a notary public in this city (New Orleans). Said squares being contiguous, and comprised between Madison, Fourth and Fifth streets, and Canal avenue; said one-half of said two squares fronting seven hundred feet on Fifth street, with like dimensions on the line dividing it from the other half of said two squares, three hundred and twenty-five feet on Canal avenue, and the same measurement on Madison street; all American measure; together with all the buildings and improvements thereon, etc. Being the same property which said vendor acquired from John E. Schaffer, sheriff,” etc.

From the description of the property we áre of the opinion that the sale was jper aversionem, reference to the plan and the streets hounding the squares controlling the expressions in regard to the measurement of the ground.

So, therefore, whether there he a deficiency of twenty-five feet in the measurement on Canal avenue or not, can not avail the plaintiff. Revised Code 2495; 14 La. 497. Besides, from the evidence, we are satisfied that the diminution complained of is not one-twentieth part of the totality of the objects sold.. Revised Code 2494.

Judgment affirmed.


author: Howell, J.

text:
    No. 4842.
    P. Gallaher v. J. T. Michel et als.
    Tli© plaintiff in injunction not having set up, in defense to the suit against him, as he might have done, that he was discharged in bankruptcy from all his debts, can not make it a cause for an injunction.
    APPEAL irom the Superior District Court, parish of Orleans. Ham-Icins, J.

      Given Campbell, for plaintiff and appellee. U. King Cutler and John -Ray, for defendant and appellant.
   Howell, J.

In August, 1867, Benner & Ranlett instituted suit against Michel & Gallaher. In December, 1866, Gallaher applied for the benefit of the bankrupt law. In March, 1869, judgment was rendered in the above mentioned suit, against Michel and Gallaher in solido for $1000, from which they took a suspensive appeal. On the eighteenth December, 1869, Gallaher obtained a final discharge in bankruptcy. On the eighth May, 1871, the Supreme Court affirmed the judgment against Michel & Gallaher. Michel, having paid, wassubrogated to the rights of the plaintiffs therein and issued execution, which Gallaher injoined on the ground that he was discharged in bankruptcy from all his debts.

It is contended on the part of the defendant in injunction, and we think successfully, that plaintiff , not having set up this matter as a. defense to tlie suit against him, as he might have done, can not make it a cause for an injunction. See 3 An. 208. This principle is well settled.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction herein be dissolved, and that defendant Michel recover of plaintiff Gallaher, principal, and Peter Casey, surety, on the injunction bond, in solido, three per cent, additional interest on the amount of the judgment injoined, from the date ofithei injunction until payment, and one hundred and fifty dollars damages and all costs.


author: Howell, J. Howell, J.

text:
    No. 4407.
    A. W. Walker v. E. Villavaso.
    "When an injunction was dissolved upon the face of the papers, no statement of facts, evidence or assignment of error is necessary to enable this court to pass on the correctness of the said ruling. This court has only to look into the allegations or grounds for the injunction to determine whether or not they are sufficient to authorize the writ; but ibis can not be done on a motion to dismiss.
    Where, after a first injunction, which was dissolved, the sheriff was simply proceeding with a sale long after the seizure had been made, and where, on a second injunction being taken, it was alleged as a ground for said injunction that no demand of payment and no notice of seizure were ever served according to law;
    Held — That these objections, if there be cause for them, should have been made on the first injunction.
    Article 666 C. P. and the two preceding articles must all be construed together so as to give ¡effect to each.
    Where the ground for injunction was that the advertisement purports to sell movables at the courthouse, which can only be done at the place of seizure;
    Held — That when a plantation and its fixtures are to he sold under a mortgage as in this case, the sale must b.e made at the seat of justice unless the debtor require it to be made on the- plantation.
    The advertisement, in this case, describes the articles, called movables by plaintiff, as constituting a part of the buildings and improvements on the plantation, and with one or two trifling exceptions’, they are what the law subjects to the mortgage existing on the plantation; but, if they were movables, it would not be a ground for injoining the sale of tho property subject to the mortgage, and besides, the plaintiff has not requested the sale to be made on the plantation.
    A judgment, after its transfer, may bo executed in the transferrer’s name, but if it be the transfer of a litigious right, as charged in this case, the debtor — the appellant herein— has not tendered payment of the price given, in order to put an CDd to litigation.
    An error in the calculation of interest on the judgment rendered and sought to be executed, is no ground for an injunction. If any error in this respect exists, it can be corrected on a settlement at or after the sale, should the property sell for more than the mortgage debt for which the seizure was originally made. The sale must proceed under the order of seizure and sale, even if the fieri facias ce issued for too large a sum.
    APPEAL from the Second Judicial District Court, par.sh of St. Bernard. Pardee, J.

      Walker, in propria persona. Poselius <£ Philips, for defendants and appellees.
   On Motion to Dismiss.

Howell, J.

The defendant moves to dismiss the appeal in this c ise on the grounds:

First — Because there is no statement of facts, evidence, nor assignment of error apparent on the face of the record.

Second — Because the injunction was obtained, the suit instituted and the appeal taken in violation and contempt of the peremptory mandamus issued by the Supreme Court, reported in 20 An. 521.

Third — When an application was made to the Supreme Court to punish the appellant, Walker, and the Parish Judge of St. Bernard, the first for applying for, and the second for granting said injunction, both purged themselves of the contempt under oath, and in consequence thereof the rule was discharged, but at the same time Walker persisted in the violation of the mandamus by taking the present •appeal.

Fourth — It is apparent irom the record in the case that Walker is •determined to abuse the writ of injunction to defeat the administration <of justice and to defy the authority of the court.

1. As to the first ground, it appears that the injunction was dissolved upon the face of the papers, and hence no statement of facts, evidence or assignment of error is necessary to enable this court to pass on the .correctness of the said ruling. We have only to look into the allegations or grounds for the injunction to determine whether or not they •are sufficient to authorize the writ; but this can not be done on a motion to dismiss.

2, 3 an d 4. It appears to us that the other grounds relate also to the merits, as it will be necessary to examine into the nature and •sufficiency of the grounds for the injunction in order to determine whether or riot the injunction is in violation and contempt of any -order of this court, and intended to defeat the administration of justice. When we come to the merits of the appeal, if we find such to be the case we can render the necessary order on the subject.

The motion is refused.

On the Merits.

Howell, J.

This is the injunction to which we' referred in the case <of Villavaso v. Walker, 24 An. 213, where we remarked that “ The grounds upon which he (Walker) bases his application for an injunction do not seem to be sufficient to justify the writ, but we are not prepared to say that the wrongful suing out of an injunction on alleged grounds, arising since the judgment, can be properly construed to be in contempt of the authority of this court; and we declined punishing him for contempt.

An examination of the record now before us has not removed the impressions we then had of the merits of the grounds for the injunction. The plaintiff herein has, since the year 1861 to the present time, successfully baffled the defendant in the execution of an ordinary writ of seizure and sale issued upon an act importing confession of judgment, and this is the fourth injunction that the plaintiff has obtained. It was granted by the parish judge in the absence of the district judge, and when the papers were presented to the latter in chambers, in a different parish and without notice to the plaintiff, he gave an order dissolving the injunction, from which this appeal was taken.

This ex parte order was clearly irregular, but as the question is presented, whether the petition sets forth sufficient grounds for the issuance of the writ and the parties are regularly before us, it is unnecessary to remand the case to be tried contradictorily. We will review the action of the district judge in dissolving the injunction, as upon a motion to dissolve on the face of the papers.

First — -The first ground is, no demand of payment and no notice of seizure were ever served according to law.

The seizure had been made long before, and the sheriff was simply proceeding with the sale after the dissolution of the injunction. These objections, if they existed, should have been made in the first injunction.

Second — The advertisement of the sale purports on its face to be made under three different writs, two in the name of different parties, and one being a writ of fieri facias.

This objection is totally without force.

Third — The advertisement purports to sell movables at the courthouse, which can only be done at the place of seizure, and art. 666, C. P., is quoted. It enacts that ‘‘animals and utensils attached U> plantations and manufactures, and such articles as can not be easily removed, 'must be sold on the spot where they are taken, on the day and hour appointed for this purpose by the sheriff.”

The two preceding articles provide that sale of the property must be made at the seat of justice, but in the country it may be made on the plantations which are to be sold, if the debtor require it, of which notice must be given in the advertisement. These articles must all be construed together so as to give effect to each. Where a plantation and its fixtures are to be sold under a mortgage, as in this case, the sale must be made at the seat of justice, unless the debtor require it to be made on the plantation. It is not intended that the articles attached to the plantation and which are mortgageable shall be sold in one place and the land in another. Under the writ of seizure and sale, all are seized and sold at one and the same time. The advertisement in this case describes the articles, called movables by the plaintiff, as constituting a part of the buildings and improvements on the plantation, and with one or two trifling exceptions they are what the law subjects to the mortgage created on the plantation. But if they were movables it would not be a ground for injoining the sale of the property subject to the mortgage, and the plaintiff has not required the sale to be made on the plantation.

This disposes of the fourth, fifth and sixth grounds of objection.

Seventh — No legal notice of appraisement was served on appellant, and no. legal appraisement was ever made.

The plaintiff has already obtained all the benefit of this objection if it existed, and it can readily be remedied in the future proceedings.

Mghth, Tenth and Eleventh — These grounds set up the discovery of a transfer by Yillavaso,- plaintiff in the seizure, to one J. E. Zunts, allege want of notice thereof, and charge it to be the sale of a litigious right.

They constitute no ground as presented for an injunction of an order ■of seizure and sale or writ of fieri facias. A judgment, after its transfer, may be executed in the transferrer’s name. 13 An. 324. And if it be the transfer of a litigious right, as charged, the debtor, the appellant herein, has not tendered payment of the price given in order to put an end to litigation.

Ninth — There is error in the calculation of interest on the judgment Tendered and sought to be executed, amounting to $3450.

This refers to the twenty-five per cent, damages allowed upon the dissolution of one of the previous injunctions in this proceeding, and for which a fieri facias is in the hands of the sheriff. If any error in this respect exists, it can be corrected on a settlement at or after the sale, should the property sell for more than the mortgage debt for which the seizure was originally made. The sale must proceed under the order of seizure and sale, even if the fieri facias be issued for too large a sum.

We have patiently and carefully reviewed all the grounds presented by the plaintiff in injunction, and we must express the hope that the parties and officers who are executing the writs in question will strictly and faithfully observe all the requirements of the law, and so conduct the future proceedings herein as to avoid any pretext for a continuance of this already scandalous litigation, by which the execution of a simple order of seizure and sale has been protracted for twelve years.

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

Rehearing refused.


text:
    No. 4814.
    State of Louisiana v. James Gallagher.
    After the regular panel of jurors was exhausted, and. only four jurors therefrom had been sworn, the district judge ordered the sheriff to summon and select one hundred talesmen* to appear on the following day to complete the jury, and continued the case. The challenge to the whole array of the talesmen when produced, was properly overruled.
    If the jury can not be completed by summoning bystanders, recourse may be had to other persons not within the presence of the court or its vicinity.
    It is not said in the challenge that there were any bystanders present when the panel was exhausted, and this court is bound to presume, in the absence of proper evidenc.e to the' contrary, that the district judge and the officers of the court a qua did their duty.
    APPEAL from the First District Court, parish of Orleans. J-Criminal case.

      D. Goldman and James 0. Walker, for defendant and appellant. A. P. Field, Attorney General, for the State.
   Morgan, J.

The defendant was indicted for murder, convicted of manslaughter, and sentenced to seven years imprisonment at hard labor. He has appealed. After the regular panel of jurors was exhausted, and only four jurors therefrom had been sworn, the district judge ordered the sheriff to summon and select one hundred talesmen to appear on the following day to complete the jury, and continued the case. On the following day, when Louis Ackerman was called to serve as a talesman, he being one of those summoned as above stated, and before he was sworn, the accused challenged the whole array of tales-men jurors, on the ground that the jurors in question were not drawn by the sheriff of the criminal court from any jury box containing the names of all persons liable to jury duty residing within the limits of the parish of Orleans, but that they were selected by the sheriff from certain portions of the parish, and that they were in no sense jurors de talibus eireumstantibus, and had not been obtained from among the bystanders within the vicinity of the courthouse during the trial.

This, the counsel appointed by this court to defend the prisoner,, assigns as error apparent on the record.

The replication of the attorney general shows that the regular panel having been exhausted and only four jurors having been obtained therefrom, the court ordered the sheriff to cause to be summoned one hundred good and lawful men as talesmen to serve as jurors in the case, and that in obedience to said order the sheriff produced in court the jurors so summoned.

In the State v. Bunger, 14 An. 464, the case is thus put by the court:

“ The sheriff having summoned the talesmen out of the presence of the court, and when the court adjourned over from day to day, it is contended that the persons so summoned were not bystanders, and as such not liable to serve as jurors. The counsel states in his brief: on this point, I am aware that the later American decisions have greatly relaxed the English common rule, but I contend that Louisiana has adopted the common law of England as it stood in 1805, and that the late innovations on this well established principle of the common Law do not apply to this State. The rule is undoubtedly as laid down by counsel, but it is obvious that if the jury can not be comjleted by summoning bystanders, recourse may be had to other persons not within the presence of the court. The bill of exceptions does not set this matter right before the court, and we are bound to presume, in the absence of proper evidence to the contrary, that the district judge and the officers of the court did their duty on this occasion. If the sheriff did not act with impartiality toward the accused, as the latter complains, that was a matter of fact which ought to have been submitted to the district judge, and which rested in his sound discretion.”

The object of the law is to secure a fair trial to the accused and his punishment if guilty. In this case, we fail to see in what respect the prisoner’s rights have been invaded by the course pursued by the district judge at the instance of the Attorney General. He does not complain in his challenge to the array of the mode by which the tales-men were summoned; he simply objects that they were selected by the sheriff from certain portions of the parish of Orleans, instead of being taken from among the bystanders within the vicinity of the courthouse during the trial. It does not say that there were any bystanders present when the panel was exhausted, and we are bound to presume in the absence of proper evidence to the contrary, that the district judge and the officers of court did their duty on the occasion.

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


text:
    No. 4875.
    Arnold Ellis et als., Trustees, v. Solomon Silverstein.
    "Where the object of the suit is to cause defendant to vacate premises, the occupancy of ■which he claims under a lease, and neither party claims a money judgment, it is the amount of the lease -which gives jurisdiction to this court. That amount not being sufficient, the motion to dismiss the appeal must prevail.
    APPEAL from the Fifth District Court, parish of Orleans. Oullo'm, J.

      Randolph, Singleton & Browne, for plaintiffs and appellees. T. A. Bartletle, for defendant and appellant.
   Morgan, J.

Motion to dismiss on the ground that the amount in dispute is under $500.

The object of the suit is to cause the defendant to vacate the premises No. 195 Poydras street. The defendant claims under a lease, which he says does not expire until the first January next, and he avers that if he were evicted it would damage him in the sum of $2000. Neither party claims any money judgment. We think it is the amount of the lease which gives us jurisdiction. Here the defendant only claims that he will owe, at the expiration which he assigns to it, $375. Hence we have no jurisdiction.

The appeal is therefore dismissed.

Rehearing refused.


text:
    No. 4809.
    Thomas Lynne v. City of New Orleans, and E. T. Manning v. the same. (Consolidated.)
    Tlie city of New Orleans, like any other plaintiff, has the right to control its own judgments and fieri facias, and had the right to cause those issued in these cases to be set aside, but by so doing, it could not deprive the clerk, who had properly performed his duties, of his legitimate costs.
    The objection made to his being paid, because, instead of turning over the fieri facias to the city attorney, as directed, he gave them to the sheriff, is not well founded.
    The clerk, at the time, was surrounded by a hostile body of men and driven by force out of the office to which he was by law entitled; under these circumstances, the court does not consider that, because the fieri facias were sent to the sheriff’s office at such a moment of tumult, for safe keeping, the clerk deprived himself of the right to claim the legal price of his work.
    'Where it was contended that, in a former proceeding -before this court, while acting as clerk of the Eighth District Court, Manning was punished in this court fbr a contempt of its authority, and therefore that -he had been recognized as clerk of said Eighth District Court, from which it follows that, having been recognized then, he must be recognized now:
    Held — That this court takes cases as they are found and decides them upon Ike pleadings by which they are presented. In the proceeding referred to, Manning’s right to office was not contested; in this case it is expressly put at issue. This court is therefore forced to declare whether he was, or not, entitled to the office when he took possession of it, and when the services for which he claims payment were made.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Frank N. Butler, for Manning, appellant. J. W. Thomas, for Lynne, appellee. II. II. Walsh, assistant city attorney, for the city of New Orleans.
   Morgan, J.

Plaintiff alleges that on the twenty-sixth October, 1872, the city of New Orleans, through its proper officers, filed in the late Eighth District Court, of which court he was clerk, various suits against delinquent taxpayers, numbering 5612 in all, which were entered that day on the docket of the said court by himself and his deputies, and numbered from 7907 to 13,517; thairon the fifth November following, the city, through its attorney, moved for judgments by default in 5350 of said suits, which were allowed; that on the eleventh of the same month they were confirmed and made final; and that on the fifteenth of the same month fieri facias issued thereunder.

He avers that his compensation for the services thus rendered by him is fixed by law at two dollars for each of said suits, which sum he says the city refuses to pay him. He prays judgment for $10,700, with legal interest from judicial demand.

The city specially denies having moved for a default in the 5350 «ases referred to by plaintiff, averring that on the fifth November •exceptions were pending in 993 of said suits, and that the city was therefore without the legal right to a default therein. She specially ■denies the plaintiff’s right to recover compensation for the services by him alleged to have been rendered in each of the 5350 cases for which he cliims payment, because no fieri facias had been lawfully issued by plaintiff in any one of said suits prior to the expiration of the term of his office as clerk, and that, for want thereof, plaintiff is not entitled to recover any sum whatever ; that if fieri faeias were issued by him they were improvidently and unlawfully issued in express violation of the instructions and orders of the city’s attorney.

The city, however, admits that certain proceedings against sundry tax delinquents were instituted in the Eighth District Court, and admits that in a few of said suits she is liable to pay the costs and fees prescribed by law, but says that the fees for which she admits a liability, are not alone claimed by plaintiff; that they are also claimed by E. T. Manning and John Burke, who deny plaintiff’s right thereto, and that, as it is impossible for her to determine the party to whom the amount due and owing by her shall be paid', she prays that Manning and Burke be made parties and cited to appear and defend the suit; that the court fix the entire amount of respondents’ indebtedness, and ■determine to whom it shall be paid.

Then Manning instituted his suit. He avers that he was duly elected clerk of the Eighth District Court and installed in the office thereof on the twenty-first November, 1872; that in the discharge of his duties, and in obedience to special instructions from the law officers of the city, he did certain work for the city in connection with a large number of suits instituted in the Eighth District Court against sundry tax delinquents, for which services he is entitled to be paid by the city $6878 25, as he says will appear by reference to accounts A and B, which he annexes to and makes part of his petition. He asks judgment for $6878 25. The numbers in these accounts correspond with the numbers in the bill charged for by Lynne. We suppose there is no doubt about their being the same suits.

Neither the bill presented with the petition, nor the accounts A and B, show what the services rendered by Manning were, nor does he declare in what they consisted in his petition. His bill is in the following words: City of New Orleans to Edward T. Manning, Dr. 1872,, December 9. To clerk’s fees in 2755 city tax suits for the year 1872, as per list A, $2066 25. To clerk’s fees in 4850 city tax suits for the-year 1872, as per lists A and B, $4850, less $38 received on account, $6878 25.” The accounts A and B give the number of the suit and the names of the defendants. The numbers include the Nos. 7907 and 13,517, alleged by Lynne to have been filed by him.

To this petition the city again admits that, in a few of the cases, she-is liable for costs, but avers that they are claimed by Lynne and Burke,, and prays for a decision which will protect her. Burke, after default, disclaims any right, title or interest to the fees claimed by Lynne and1 Manning, except such as the law allows him for filing documents in-order to transfer the same from the Eighth District Court to the; Superior District Court.

Lynne, answering Manning’s petition, denies that he was regularly and lawfully installed or inducted into the office of clerk of the Eighth District Court, or that he was ever lawfully commissioned thereto. He avers that he (Lynne; was discharging the duties of clerk, to which office he had been appointed, on the twenty-sixth March, 1870 ; that he was discharging his duties as such until the twenty-first November, 1872, when he was forcibly ejected from said office by Manning and others, and thereby prevented from discharging his duties from that period until the office itself was abolished; that Manning, combining-with others to wrongfully obtain possession of the office, procured and caused to be issued by Governor Warmoth a pretended commission of clerk, which commission was issued illegally and before his (Lynne’s) term of office liad expired, and before the votes of the parish of Orleans had been canvassed by the lawful board of commissioners. He therefore avers that Manning was never clerk of the Eighth District Court, de jure, and that he is not entitled as against him (Lynne)to claim any of the fees or emoluments thereunto appertaining. Upon these issues the parties went to trial.

There was judgment in favor of Lynne for $9742, and the claim of Manning was dismissed. Manning appeals. In this court the city, through its attorney, in the brief filed by him, says that she is only a stake holder, and desires only that such judgment may be rendered: as will protect her against a double payment.

The first question to be determined is, whether any work was done by Lynne, and if so, whether it was done, as is charged in the answer, improvidently and unlawfully.. The assistant city attorney, who says-in his testimony, that he has special charge of that class of the city’s business, being asked “who issued the writs of fieri facias from the Eighth District Court prior to the thirteenth December, 1872 V’ answered that. “ the writs were first improvidently issued by Mr. Lynne,. who was at that time clerk of the Eighth District Court, and after having been so issued by him, were countermanded and quashed by fin order from the Eighth District Court on motion of myself as attorney for the city.” And so in the record we find “on motion of H. H. Walsh, assistant city attorney and on suggesting to the court that Thomas Lynne, ex-clerk of the Eighth District Court, and Robert Lynne, ex-deputy clerk, in disobedience to a direct order from George S. Lacey, city attorney, have caused to be placed in the hands of C. S. Sauvinet, late sheriff of the parish of Orleans, 5618 writs of fieri facias in tax judgments, rendered in this honorable court, in favor of the city of New Orleans against sundry taxpayers for their taxes of 1871, that they were illegally and inadvertently issued; it is ordered that the said fieri facias be quashed and set aside, and the said Sauvinet be ordered to forthwith return them into court, at the costs of defendant.”

This is a judicial admission that the work was done. Of course, the city, like any other plaintiff, has the right to control its own judgments and fieri facias, and she had the right to cause those issued in these cases to be set aside. But the question is whether she could, by so doing, deprive the clerk, who had properly performed his duties, of his legitimate costs; and the question reverts were the fieri facias issued “illegally, inadvertently and without authority,” as is stated in the city’s answer and in the motion upon which they were “quashed?”'

On the ninth November, 1872, the city attorney addressed the following letter to Lynne : “ Sir : As much confusion has arisen in the issuing of fieri fadas in the city tax suits, before this office has made proper entries- in reference thereto, and as the interests of the city require that such writs should not be precipitately issued, you are hereby directed to issue no fieri fadas upon tax judgments unless specially-directed so to do. Signed, George S. Lacey, city attorney.”

This letter was handed to Lynne by the assistant city attorney, as appears from his certificate.

Then comes the following letter:

New Orleans, November 14, 1872. Thomas Lynne, Esq. Sir — As soon as the law will permit, you will proceed to make out the writs of fieri fadas in all the tax judgments taken in the Eighth District Court, and turn the same over to this office to be receipted for and registered here; a due protection of the city’s interest requires that no writs of fieri facias should be placed in the hands of the sheriff except through this office. Signed, George S. Lacey, city attorney.

These instructions clearly show that when Lynne issued the fieri facias, he was not acting illegally, inadvertently or without authority. He was acting under orders which he was bound to obey. • The motion to quasli the fieri facias show that he liad issued them Under these circumstances, we think he is clearly entitled to the compensation for the work which he did.

There is an objection made to his being paid because, instead of turning over the fieri facias to the city attorney’s office he gave them to the sheriff. The reason he gives for this, found in the following letter, written to the city attorney when informed of the motion to quash the fieri facias is, we think, satisfactory:

“New Orleans, November twenty-three, 1872. George S. Lacey, Esq., city attorney. This morning’s papers acquaint me of what was done in the Eighth District Court yesterday. The fieri facias stated to have been sent to the sheriff were not sent to his office for execution. They were sent there in packages by me for safe keeping, and until I could get an opportunity to convey them to your office in compliance with your order. Had you been present at the time and seen the tumult and excitement, you would have advised the course I pursued. I' may not deem il advisable to go to court to-day, and you would enable me to carry out the original intention if you send an order and cab for them at my expense. Very respectfully, Robert Lynne.”

He was surrounded by a hostile body of men, and driven by force out of the office to which he was by law entitled.

Under these circumstances, we do not consider that because fieri facias were sent to the sheriff’s office in such a moment of tumult, for safe keeping, that Lynne deprived himself of the fight to claim the legal price of his work. The city has not shown that she could not have obtained possession of these fieri facias on demand; it is not denied in any of the pleadings that the fieri facias were hot made out in due form of law; it must have been a matter of indifference to the city who performed the mere clerical labor of making them out and issuing them; and there was never any necessity that we have been able to discover for having them quashed, merely that they might be made over again by some other person. We think the judgment as to Lynne is correct.

Is Manning entitled to anything? He says he did the work for which he charges, under authority derived from the following entries on the execution docket:

“ Issue fieri facias in every city tax case wherein judgments have been signed ior 1871, and wherein the amounts are nod appealable, and wherein no exceptions have been filed.” November 30, 1872. Signed, H. H. Walsh, assistant city attorney. -■

■ Andón the ninth December: “ Issue fieri facias.'1'1 Signed by the-same counsel.

It was under these instructions that he. did the work for which he now claims to be paid. The cily has the right to make as many costs as it likes. The laborer, it is said, is worthy of his hire, and if Manning did the work under instructions, and was at the time he did it the lawful clerk of the Eighth District Court, he must be paid for it. ■

The question is, was he legally the clerk of that court 1

In the record we find the following admissions :

“It is admitted that Mr. Lynne was de facto and de jure clerk of the Eighth District Court, on the twenty-first day of November, 1872, and that on that day, Mr. Manning, one of the plaintiffs in this case, took possession of the clerk’s office of the Eighth District Court, with the assistance of certain persons claiming to be deputies oi W. P. Harper, who claimed to be the civil sheriff of the parish of Orleans.

“It is admitted that, on that day, the Board of Returning Officers, constituted bylaw, had not proclaimed the result of the election in the parish of Orleans, and that Mr. Manning’s commission, issued by War-moth, was issued in anticipation, and before the result of the election had been legally ascertained as required by law.

“It is admitted that Lynne was ejected from the clerk’s office of the Eighth District Court, and still claimed to be the clerk, up to and including the twelfth day of December, 1872, and that, during the period intervening between the twenty-first day of November, and the thirteenth day of December, 1872, when the act creating the Superior District Court went into operation, which act abolished the Eighth District Court, Mr. Lynne was prevented from occupying said office against his will.

“ And it is further admitted that, at the time the Eighth District Court was abolished, thirteenth December, 1872, the Board of Returning Officers had not proclaimed the result of the election in the parish of Orleans, and that Mr. Manning had not been commissioned to that office by virtue of such return, and never was commissioned to that office.

“ And it is still further admitted that, when the returns were proclaimed by the legal returning board, Mr. Manning was returned as elected to the office of clerk of the Eighth District Court, and this return was made three days subsequent to the abolition of the Eighth District Court.”

These admissions, it seems to us, make it impossible for any court of justice to give him relief. He admits that the commission under which he pretended to act, was issued in anticipation and before the result of the election in virtue of which he claims the right to the commission had been legally ascertained; that Lynne was ejected from the office of the court of which he was defacto and de jure clerk; that the work was done between the twenty-first of November and the thirteenth of December, and that during that time he (Lynne) was prevented from occupying the office against his will; that, when the Eighth District Court was abolished, the board of returning officers had not proclaimed tlie result of the election, and that no commission based upon such return (upon which return alone a commission could legally issue) ever was given to him. Finally, he admits that the returns of the election were only proclaimed three days after the court of which he had been-» elected clerk had been abolished. In other words, he admits that he strode into a public office and pushed the legal incumbent thereof from his stool; that he drove him out by force and kept him out against his-will, without even having had a commission legally issued as an excuse for this bold usurpation.

In this country we profess to be governed by laws, and not by mobs. Parties claiming rights to office assert those rights, as other claimants -do, through the courts; it is not permitted to them to take possession in despite of the legal rights of others, by force of arms. If they do, flieir tenure must necessarily be short, and their profit nothing. In a former proceeding before this court, while he was acting as clerk of the Eighth District Court, Manning was punished by us for a contempt of our authority. It is therefore contended that he has been recognized by us as clerk of that court, and that, having recognized him then, we must acknowledge him now. We take cases as we find them, and decide them upon the pleadings by which they are presented. In the proceeding referred to Manning’s right to office was not, that we are aware of, contested. Here it is expressly put at issue. We are therefore forced to declare whether he was or was not entitled to the office, when he took possession of it and when the services for which he claims pay were rendered. We conclude that he was not, and therefore it follows that he can recover nothing.

In the case of Lynne v. The City, the judgment was in favor of Lynne. In the case of Manning v. The City, the judgment was in favor of the city. Both judgments are correct.

It is therefore, ordered, adjudged and decreed that the judgments of the district court in these consolidated cases be confirmed with costs.