author: Taliaferko, J.

text:
    No. 1454.
    Foster & McAllister, Erwin’s Executors, v. Bank of New Orleans.
    A deposit in tlie Bank of New Orleans in 1862, in cliecks and drafts, drawn by tbe Union Bank of Nashville, and by citizens of Tennessee, during tbe time that Confederate Treasury notes were shown to be bankable funds in Now Orleans and Nashville, must bo considered as having been made in such funds.
    A depositor of funds in Confederate Treasury notes, while such notes were shown to be bankable funds, cannot recover, from the bank in money, the amount so deposited.
    "Where a party purchased checks drawn by one bank on another, and drafts drawn by one party on another, all within the Confederate lines at the time, and paid for them in Confederate Treasury notes, he must be considered tLBpai'ticcps criminis in giving credit to that currency, and is without the capacity to obtain tho enforcement of any contract or obligation growing out of such transactions.
    from the Fourth District Court of New Orleans. Thcard, J_

      Breaux & Fenner, for plaintiffs and appellees, William IT. Hunt and X, Cetera, for defendant and appellant.
   Taliaferko, J.

Tlie plaintiffs as executors, the one of James Erwin, Sr., the other of James Erwin, Jr., bring this suit to recover from the Bank of New Orleans the sum of twenty thousand dollars with legal interest thereon from the twenty-seventh day of February, 1862. They allege that at that date the Bank received for account of the firm of James Erwin & Son, twenty thousand dollars, which it has failed to pay over or to account for.

The answer is a general denial. The defendant admits that it did receive about the twenty-fifth of February, 1802, from James Erwin & Son, two checks drawn upon it by the Merchants’ Bank of Nashville, one for $3000, the other for $4000, and also four drafts amounting in the aggregate to $13,000, drawn upon William Conner & Co. The proceeds of the whole, making $20,000, they aver wore placed on the books of the Bank to the credit of James Erwin & Son in funds then bankable, that is, in Confederate money which at that time they allege was the only currency used in commercial dealings in New Orleans. The defendant further sots out that from the circumstances under which the transactions took place between James Erwin & Son and the defendant, it was authorized to receive and pay back Confederate money to them which it has always been and is now willing to do. The defendant further pleads in bar of this action that the plaintiffs’ pretended claim is based on a contract, the consideration of which was Confederate money, an illicit currency gotten up to sustain the late rebellion against the United States Government, and the contract being against public order and policy is null and void.

In the court below the plaintiffs had judgment for $20,000 with legal interest from the tenth of July, 1863. The defendant has appealed.

On the twentieth of December, 1861, James Erwin & Son, of Nashville, purchased from the Merchants’ Bank of that place, two checks, one for $3000, the other for $4000, drawn on the Bank of New Orleans in the following form:

$3000. Merchants’ Bank, Nashville, Term.,

In Bankable funds,

Pay to the order of James Erwin three thousand dollars. To Bank of New Orleans, New Orleans, La. - •

II.. C. SIIAPARD, Cashier.

No. 9838.”

The four checks or drafts on Conner & Son, were purchased by the Erwins in Nashville, from the Traders’ Bank of that place, on the twentieth of December, 1861, and they, in like manner, with the checks upon the Bank of New Orleans bought at saíne date, wore drawn payable in “bankable funds,” Conner & Son in payment of the checks drawn upon them, gave their own chock .upon the Bank of New Orleans. Its amount was charged to Conner & Son, and passed to the credit of James Erwin & Son. The same thing was done in relation to the cheeks drawn by the Merchants’ Bank of Nashville.

The plaintiffs argue that neither the chocks upon the bank nor -upon Conner & Son, were collected in Confederate money. That Confed-crate money was not received for Erwin & Son, nor authorized to be received by them, and that nothing appears to connect the Erwins with any transaction in Confederate money throughout the whole business, that the Bank on receipt of the checks informed the holders, through its cashier, that it was in receipt of their letters of sixteenth and twenty-third of December, 1861, “with twenty thousand dollars, which as requested, have been placed to the credit of James Erwin & Son.”

It is shown that at the time these several checks were purchased, and afterwards when their proceeds were placed to the credit of the Erwins, Confederate money was bankable funds both in Nashville and New Orleans; that Connor Son knew when they gave their cheek to pay those drawn upon them, that it would be paid in Confederate money. The testimony in the record renders it clear beyond a reasonable doubt that the so-called Confederate money was the exclusive, the only currency at that time in New Orleans. All business operations were carried on in that currency. Nobody expected to pay or be paid in any other money. The president of the Bank of New Orleans at that time testifies that from the time of the suspension of specie payments, sixteenth of September, 1861, the banks of New Orleans, including that of which he was president, received and paid out Confederate notes — all.other notes, he adds, gradually disappeared from circulation; that on the first day of Januaiy, 1862, payments in the Bank of New Orleans were made in Confederate money. That it was then universally used in the payment of debts due to banks; that it was universally recognized in New Orleans as money; that it was bankable; that it was generally known and understood among the dealers of the Bank of New Orleans that checks on it would be paid in Confederate money; that notices were placed by the bank in the bank books of depositors that checks on it would be paid in Confederate money, and that that was the general understanding.

Another witness, a director of the same bank at the time referred to, corroborates the statement of the president in regard to the notices given to depositors, and says that the instructions to the officers of the bank were to give notice in all eases to depositors that the bank would pay checks on it in Confederate money, and that depositors worrld be required to receive the same currency deposited by them. He states that by the twenty-fifth of February, 1862, every bank in New Orleans had given the same notices. His testimony is to the same effect as that of the president as to the exclusive and universal circulation of Confederate money in New Orleans at that period.

Another witness, at the time in view, a note clerk of the Bank of New Orleans, and subsequently cashier of the bank, corroborates fully the testimony of the director. He says that the firm of James Erwin & Son never had any transaction with the Bank of New Orleans, except the solitary one out of which this suit has arisen. He shows that the funds placed by the bank to the credit of the Erwins were Confederate money, that the twenty thousand dollars deposited in court (meaning the Confederate money to the credit of James Erwin & Son), he found in the Bank of New Orleans wli.cn he took charge of its funds.

Other witnesses confirm to a great extent the testimony we have detailed. All the witnesses concur .in declaring the universality of the use at that time'in New Orleans of Confederate money. They establish most conclusively that it was the only, currency; that it entered into all commercial operations, that by it alone all banking business was carried on; all deposits made in all the banks wore made in Confederate money. All money paid out by the banks was Confederate money; in shore that every kind of trade, occupation and business carried on, used Confederate money as a medium of exchange. Finally that every species of negotiation whatever entering into the mercantile pursuits of the time and into the every day pursuits of life was performed through Confederate money as the sole medium of exchange, because the business purposes of the community could not otherwise have been accomplished.

It is in proof distinctly that at the time tiie Erwins bought the checks from the Nashville banks, Confederate money was bankable in Nashville, and it is also fully established that they gave for those checks either Confederate money or bank notes of Tennsssee banks in good credit. It is a matter of history that at the period of these transactions specie payments were every where suspended throughout the so-called Confederate States. From the broad array of evidence spread out in the record -we think the following deductions are legitimate and leave no reasonable doubt upon the mind -and conscience of their truth. That the large sum forming the object of the adventure and the mode of the negotiation, imply that the Erwins were capitalists, conversant with money transactions, acquainted with the state of exchange and having a competent knowledge of the character and condition of the currency and of the banking operations going on at the time within the large range of their business.

That they paid for the checks they forwarded for collection to New Orleans cither in Confederate money or in the notes of Tennessee banks, which nothing warrants us in believing were then in any better credit than Confederate money. Hence it results, that the probability is just as strong that they used Confederate money in the purchase of the checks as that they did not. That their implied knowledge of the course of trade and business at -that day, negative the-idea that they were ignorant of the kind of money the" Bank of New Orleans was receiving and paying out at the time they forwarded their checks to that Bank, and this without any notice to that effect from the bank, although the evidence raises at least, a reasonable probability that they had such notice from the Bank. That'under the existing state of facts, of which the inference is not admissible that they were ignorant, they tacitly and impliedly assented to receive in payment of their checks Confederate money, because Confederate money at that time constituted bankable funds in New Orleans. This deduction derives greater force from the fact that they gave no instructions whatever as to what kind of money they expected or required in payment of their checks.

That when they received the letter from the cashier of the Bank of New Orleans, saying: I am this day in receipt of your favors of the sixteenth and twenty-third inst., with $20,000, say twenty thousand dollars, and which as requested have been placed to the credit of James Erwin & Son,” they neither expected nor had they a right to expect that they would receive the twenty thousand dollars in anything but Confederate money.

That the force of the aggregate testimony in the record is such as to leave no reasonable doubt upon the mind of the complicity of the Erwins in these transactions in the illicit paper money called “Confederate money,” and at this late day it would be against law and conscience to permit their executors to retrieve their losses from the ill omened currency by extorting from the coffers of the bank near thirty thousand dollars in legal currency.

That the Erwins chose to deal with those who were trading in an illegal paper currency and to accept their conditions. They were therefore in the matter of giving credit to that currency partic&ps cHm-inis and entitled to no relief from this court, which has often announced that it will not entertain suits to enforce contracts reprobated by law and public policy.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that this suit be dismissed, and that the plaintiffs and appel-lees pay costs in both courts.

Eehearing refused.


source: Caselaw Access Project

author: Ludelihg, C. J.

license: Public Domain

text:
    No. 1589.
    Caldwell & Shannon v. Neil Brothers.
    A commercial firm having executed a power of attorney to their agent to draw hills of exchange upon them and never having given the public notice of the revocation of tho agency cannot avoid the payment of bills drawn by the agent, on tho ground of want of authority to draw tho bill.
    ■Where one of two parties must suffer, tho loss must be borne by him who contributed to bring it about.
    Evidence will not be admitted to establish a fact not alleged in the pleadings.
    from the Fourth District Court of New Orleans. Theard, J.

      Mmore t& King, for plaintiffs and appellees, McOay & Lunenburg,

    for defendants and appellants.
   Ludelihg, C. J.

This appeal is taken from a judgment against the defendants as drawers of a bill of exchange for £100 with interest and damages.

The only defense set up in the pleadings which is relied on in this court is that J. Briegleb, who drew the bill as agent of the defendants, had no authority to draw it.

Briegieb testifies as follows: “ I was, at the time I drew the bill of exchange as the agent of Neil Brothers, authorized to do so. I was authorized to do so by a written power of attorney, of which a copy is annexed. Neil Brothers have recognized my authority to draw bills of exchange as their agent, oil two previous occasions, by ordering J. C. Ollerenshaw, of Manchester, to accept and pay two drafts for £100 each, drawn by me previous to the one now in suit. They were paid. I drew under the authority of my power of attorney.” -

The power oí attorney referred to was dated fifth June, 1856, and was signed Neil Brothers <fi Co. The firm of NcilBrolhcrs & Co. was dissolved in 1859. A circular announcing the dissolution of that firm also announced that the business would be continued under the same name at Mobile and New (Means. Briegieb continued to act as their agent under the old power of attorney with their knowledge, and they paid his drafts drawn as agent. They thus induced the public to believe that Briegieb was their agent. If one of two parties must suffer the loss must be borne by him who contributed to bring about the state of things which caused the loss. Story on Agency, 856; 4 An. 19; 3 An. 400; 1 Parsons on Bills, 101. Besides the witness, Briegieb, positively swears that he was authorized by Neil Brothers to draw the bill.

Our attention has been called to a bill of exceptions taken to the ruling of the court a qua, excluding-certain-testimony. The testimony of Briegieb, plaintiffs’ witness, was taken by commission.

The defendants propounded a question to him, on cross-examination, to prove that the consideration was Confederate treasury notes or obligations. The question was objected to by the plaintiffs on the ground that this defense was not made in the pleadings, and they moved to strike out the answer of tlie witness to this question. The District Judge sustained the objection and rejected the answer. We think the ruling was correct. The proof must correspond with the allegations.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, and that the appellants pay the costs of the appeal. >


author: Howell, J.

text:
    No. 1441.
    Succession of Mrs. L. Wade.
    In a contest between, the heirs of their deceased mother and the surviving husband for a partition of the separate estate of the deceased, a declaration made in the act of sale of real property to the deceased mother that the purchase was made by the wife with funds derived from the income and revenue of her separate paraphernal estate is, as between the heirs of the wife and her husband, who signed the act, conclusive against him. 16 An. 270.
    "Where an unmarried woman enters into an agreement in writing before a notary public for the purchase of real property, and maltes a cash payment for a portion of the price, and executes her notes for the balance due at a future date, and she marries before the maturity of the notes, and the title is made in accordance with the agreement after the marriage takes place, the property thus acquired will, as between the husband and wife form a part of her separate paraphernal estate.
    The husband of his deceased wife is not a competent witness to testify in any suit, against the interest of her succession, to any fact which took place during her life time. Acts of 1867, page 143.
    A Jl. PPEAL from the Second District Court of New Orleans. Thomas, J,

      Boselius & Bhilips, for appellants, J. B. Cotton, for appellee.
   Howell, J.

One of the forced heirs of tlie deceased instituted this suit against her coheirs and the surviving husband for a partition of the property belonging to the succession, and the question to he determined on this appeal taken by the said husband is whether or not certain'real estate standing in the name of the deceased is separate para-phernal or community property.

In the act of sale, dated January 20, 1850, of the large property at the corner of Jackson and Magazine streets, it is stated that the purchase was made by the wife with “funds derived from the income and revenue of her separate paraphernal estate,” which declaration, as between the heirs of the wife and her husband, who signed the act, must be considered conclusive against him. 16 A. 271.

In the other acts of sale the purchases arc made in the name of the wife without any such declaration, and as a community existed between the spouses, the property thus acquired fell into the community, unless it is clearly shown to have been bought with the separate funds of the wife, which she alone administered independently of her husband, or which never came under Ms administration. C. C. 2363, 2371, 2373, 2374, 2375 j 17 L. 299.

The inquiry is, whether the evidence is sufficient to show that the funds used in making these purchases belonged to and were administered by the wife separately and alone.

The deceased was married to the appellant, II. P. Wade, in June, 1836, at which time she was keeping- a profitable boarding house, and owned the furniture therein;-four or five slaves, a tract of land in the parish of Terrebonne, and had by notarial act contracted for the property No. 55 Tchoupitoulas street, occupied as the boarding house, as follows:

On the sixteenth September, 1835, Thomas Banks, by act before a notary, acknowledging the receipt of $7000 cash from Mrs. Terrill (the deceased) and her two notes for $5500 each, duo at twelve and eighteen months from said date, as the full consideration for the property, bound •himself to make an absolute sale and transfer of the said property (No. 55 Tchoupitoulas street)', as soon as the said two notes were paid, in the mean time giving her the control, rents, etc., of the premises. On the twenty-fourth March, 1837, about nine months after the marriage, the contemplated act of sale was executed, in which it is stated that, “ for and in consideration of the sum of eighteen thousand dollars to him in hand, well and truly paid by Mrs. Lucretia Martin, of lawful age and wife of Henry P. Wade, also of this city, the receipt of which is hereby acknowledged,” the vendpr sells and transfers said property “to the said Mrs. Wade, herein duly assisted and authorized by her said husband.”

In the case of Lawson v. Ripley, 17 L. 251, similar in some respects to the case at bar, it was held that an agreement entered into between a deceased husband and his vendor prior to marriage, 'for the purchase of a plantation, on terms specified in the act signed by both parties, was a complete sale before the marriage, and the land was declared to be tbe separate property of the husband, with the announcement that if any portion of the price was paid with the funds of the community after the marriage it would bo a chargo against the husband in favor of the community. • ..

In this case, the act of sixteenth September, 1835 (before the marriage), was something more than a more promise to sell at a futuro date. It was in the form required for the sale of immovable property"; it declared that the full consideration for the property was given, to wit: §7000 paid in cash and two notes of $5500 .each, due at twelve and eighteen months, furnished, the receipt of all which was acknowledged, and that the premises were subject to the control of the party paying; and the rents, etc., arising therefrom belonged to her. - As between the parties the sale was complete. There was an agreement as to the thing and the price, and there was a virtual delivery. It is not shown that the notes or any part of thorn were paid with community funds, while the evidence satisfies us that Mrs. Wade had separate means with which she could have paid. What may have been the effect of the act as to the creditors of the contracting parties it is unnecessary to inquire.

We conclude therefore that the property described as No. 55 Tchoupi-toulas street was not acquired during the community, but was at the date of marriage as to the surviving spouse the property of the deceased, and consequently does not come within the operation of the doctrine invoked by- the counsel of the husband, if correct as stated, that there can be no acquisition of paraphernal property by the wife by an onerous title unless it be stated in the contract itself that the purchase is made by the wife, acting for herself, with -the-authorization of her husband for the purpose of investing or reinvesting her paraphernal funds.”

The other pieces of property in controversy áte in a different situation. They were acquired after the marriage, and the evidence does not make it clear that the wife retained the exclusive administration of her paraphernal, property or its revenues, or that she used her para? phernal funds in making the purchases.

Article 2362 says: The paraphernal property which is not adminis? tered by the wife separately and alone is considered to be under the management of the husband.” And article 2303 says: “When tho paraphernal property is administered by the husband, or by him and the wife indifferently, the fruits of this property, whether natural, civil or the result of labor, belong to the conjugal partnership if there exists a community of gains.”

In the most favorable view for the petitioner it can only be said that the whole property was administered by the husband and wife indifferently. The witnesses who speak to this point, not including Mr. Wade, do not make it certain that Mrs. Wade administered separately and alone. But there is in tlio record a judicial admission on the part of Mrs. "Wade as to what she considered to he her separate property in November, 1847, at which dato some of the purchases in question had been made. She then instituted suit against her husband for a separation of property, and in her petition only claimed judgment for the 2io. 55 Tchoupitoulas street property, the furniture and four slaves, as her separate property, and for $26,000, money brought in marriage, to be paid with preference out of the property belonging to her husband. The judgment rendered on this petition was never perfected by execution, and we refer to the proceeding only to show Mrs. Wade’s opinion, at the time, of her paraphernal rights. Of the property, which we are now considering as bought in her name, only one piece was purchased since that date, to wit: the property purchased from F. A. Conant on twenty-seventh October, 1855, and there is no satisfactory proof that she was then administering any paraphernal property separately, or that she used her paraphernal funds in paying the price.

The result at which we arrive is, that the property designated as No. 55 Tchoupitoulas street, and acquired by the act of sixteenth September, 1835, before Jules Mossy, notary public, and act of twenty-fourth March, 1837, before William Christy, notary public, and the property at the corner of Magazine and Jackson streets, acquired by act o twenty-sixth January 1856, before William L. Poole, notary public, are the separate property of Mrs. Lucretia Wade, deceased wife of Henry F. Wade, and that all other immovable property described in the petition herein for a partition, whether standing in the name of Mrs. Lucretia Wade or her husband, Henry F. Wade, belongs to the community which existed between them.

The testimony of Wade, the husband, was properly excluded under the statute thirteenth March, 1867, p. 143, which was in force at the date of the trial below, and which provided that no interested person shall testify in any suit against the interest of the succession of a decedent in relation to any fact which took place in the life time of such decedent.”

It was certainly against the interest of the succession of Mrs. Wade that the property should be shown to be community and not parapher-nal property, and he was called on to testify to facts which took place in her lifetime tending to show that the property belonged to the community.

No other questions have been urged before us, and we have only to amend the judgment, from which the husband appealed, in accordance with the foregoing views.

It is therefore ordered that the judgment appealed from be amended to read as follows:

■It is decreed that the property designated as No. 55 Tchoupitoulas street, in New Orleans, or lot No. 12 on a plan of Bourgeral, deputy surveyor general, twenty-sixth March, 1832, and acquired by the deceased, Mrs. Lucretda Wade, by and described in the acts of sixteenth September, 1835, before Jules Mossy, notary public, and of twenty-fourth March, 1837, before William Christy, notary public, and the property at the corner of Magazine and Jackson streets, New Orleans, and acquired by said Mrs. Wade, deceased, by and described in the act of twenty-sixth January, 1856, before William L. Poole, noipry public, be declared the separate paraphernal property of the said Mrs. Wade, deceased.' That all the other property described in plaintiff’s petition herein for partition, whether the titles thereof be in the name of the said Mrs. Lucretia Wade, deceased, or her husband, Henry F. Wade, be declared to be community property, belonging the one-half to said Ilenry F. Wade and the other half to the succession of the deceased; and that as thus amended the judgment be affirmed. The succession to pay costs of appeal.

Rehearing refused.


author: Howe, J.

text:
    No. 1966.
    State of Louisiana v. Frank Brown.
    The hill of indictment under the seventh section of the act of the Legislature, approved March 14, 1855, must charge the accused with two specific acts, the concurrence of which, in point of time, creates a capital offense.
    Where the indictment under this statute fails to set out the two distinct offenses which constitute the crime against which it is aimed, hut sufficiently describes the offense of burglary, and a verdict of guilty of a capital offense has been returned by the jury and sentence is pronounced thereon by the court, the case will'be remanded for sontence in accordance with the formalities prescribed against the crime of burglary.
    from the First District Court, parish of Orleans. Abell, J.

      8. JBelden, Attorney General, for the State. J. J. JE. Planchará, for defendant and appellant.
   Howe, J.

The defendant was tried npon an indictment preferred under tlie seventh section of the act of March 14, 1855, in which the' offense charged is set out in the following language :

“ That one Frank Brown, late of the parish of Orleans, on the twentieth day of June, in the year of our Lord one thousand eight hundred and sixty-eight, with force and arms, in the parish of Orleans, aforesaid, and within the jurisdiction of the First District Court for the parish of Orleans, did, with a dangerous weapon, to wit, a knife, and ■with the intent to commit the crime of murder, and while in the perpetration of the crime of robbery, stab and thrust one Ellen Elliott, contrary to the form of the statute,” etc., etc.

He was convicted and sentenced to death, and from the judgment this appeal has been taken.

The section of the statute under which these proceedings were had, is as follows:

If any person lying in wait, or in tlie perpetration, or attempt to perpetrate, any arson, rape, robbery or barglary, shall sboot, stab or thrust any person with a dangerous weapon, with the intent to commit the crime of murder, he shall on conviction thereof, be punished with death.”

’ Applying this section to the indictment in this case it will be seen that the indictment ought to charge the defendant with two specific acts, the concurrence of which in point of time creates the offense at which the statute is aimed. Neither of the offenses is in itself capital, but when the stabbing with a dangerous weapon and with intent to murder is done in the perpetration of a robbery there results a compound crime punishable with death.

In such a case we are of opinion that the indictment to support a sentence of death should state all the material facts and circumstances of each of the two offenses, which in their combination compose the grave charge against which the prisoner is called upon to defend himself. In the indictment now before us the first of these offenses is fully described, but the second, the crime of robbery, is not described at all. Whom did the prisoner rob ? Of what was this unknown person robbed ? On these points, at least, the indictment is silent.

It is true that the indictment follows the language of the statute, but this is not in all cases sufficient. For example, the twenty-eighth section of the same act provides that “whoever shall commit the crime of robbery shall, on conviction, suffer imprisonment at hard labor not more than fourteen years;” yet an indictment charging an accused with committing on a certain day the crime of robbery, without other description, would clearly be bad. And we are of opinion that where the “perpetration of the crime of robbery” is a substantive element in the offense charged, as it is in this case, and, in combination with another act, creates a capital crime, it ought to be set forth with as much distinctness of statement as if the crime of robbery alone had been charged. Archbold, vol. 1, p. 286, and cases cited.

As already stated, the crime of stabbing with a dangerous weapon, and with intent to murder, is sufficiently described in the indictment, and we are of opinion that the effect of the verdict of guilty must be limited to that offense. In this view the prisoner should have been sentenced under the eighth section of the statute to imprisonment at hard labor in the State penitentiary “for not less than one nor more than twenty-one years.” And we think the interests of justice require that the cause should be remanded for this purpose.

It is therefore ordered and adjudged that the judgment appealed from be avoided and reversed, that the cause be remanded to the court a qua for sentence in accordance with the views hereinbefore expressed, and to be further proceeded with according to law.


author: IIowe, J.

text:
    No. 1516.
    F. Avet & Cambon v. John Albo.
    The bonding of the property attached by the defendant is not an acknowledgment that the writ of attachment providently issued.
    The defendant in ¡<n attachment suit may have the attachment dissolved by a judgment of the court after he has come into the possession of the property attached, by giving bond, for its release.
    from the Fifth District Court of.New Orleans, Beaumont, J.

      A. L. Tissot, for plaintiffs and appellants. JE. Abell, for defendant and appellee.
   IIowe, J.

The plaintiffs have appealed from an interlocutory judgment setting asido and dismissing an attachment which they had obtained against the property of the defendant.

The only ground urged before us-for a reversal of the -judgment is, that before it was rendered the defendant liad moved to bond the property attached, and on the same day the j uclgment was signed gave bond and took the property, and that therefore he- acknowledged that the writ was providently issued and the judgment of dismissal was erroneous. We have not been referred to any authorities in support of this proposition.

The attachment was issued on the ground, substantially, that the defendant was about to leave the .State permanently without there being a possibility in the ordinary course of judicial proceedings of obtaining or executing judgment against him previous to his departure, and that he was about to remove his property from the State before the debt to plaintiffs should fall due, without leaving within the limits of the State any property to meet said claim. It would seem that the attachment was set aside because these allegations were disproved. Under such circumstances if tlie defendant had actually bonded the property and then moved to dissolve, the rule-would have been in time, and upon sufficient evidence would have been properly made absolute. Pailkes v. Roux, 14 La. 82; 1 Au. 372 ; 2 An. 154; 13 A. 550; and a for-tiori, It would seem that a mere motion to bond -would not prevent the defendant from -taking a rule to dismiss.

It is therefore ordered and adjudged that-the judgment appealed from he affirmed with costs.


author: Ludeling, C. J.

text:
    No. 1443.
    Charles S. Stewart v. R. Cohn et al.
    A purchased a lot of furniture at auction sale, and afterwards induced the auctioneer to make . tbe bill of salo to B. B then executed a notarial act of loan of the furniture to A. The furniture was seized by the creditor of A, and B enjoined. HAd — that A was the owner of ' the property and the bill oí sale from the auctioneer to B and the notarial act of Toan from B to A were a mere sham, a simulation, to screen, the property from the pursuit of the creditors of A.
    from the Third District Court of New Orleans. . Bellotees, J.

      A. T. Steel and Whitaker <& Bice, for plaintiff and appellee. Myers it Augustine for defendants and appellants.
   Ludeling, C. J.

E. Cohn obtained a judgment against one Kee-sacher for eighty-two dollars and forty-five cents, and he caused certain pieces of furniture, in the possession of Keesacher, to be seized as his property to satisfy the judgment.

Charles S. Stewart then obtained an injunction to prevent the sale of the property, claiming to be the owner thereof. He alleges the property is worth two hundred dollars and he claims five hundred and fifty dollars damages.

There was judgment in favor of the plaintiff, decreeing him to be the owner of the property and that he recover of the defendant fifty dollars damages as attorney’s fees, and fifty dollars special damages.

The evidence in the record convinces us that the property seized belonged to Keesacher, the defendant, in execution. He bought the furniture. The bills for the furniture were made in his name. A few days before the trial of this suit in the District Court, he applied to the auctioneers from whom he had purchased the furniture and induced them to give him bills of sale in the name of Stewart.

The notarial act whereby Stewart professes to loan this furniture to Keesacher is a mere sham — a cloak to cover the property of Keesacher from the pursuit of his creditors. The evidence establishes' that before this act, Keesacher had bought .the furniture and he had had it in his possession continuously since his purchase.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that there be judgment dissolving the injunction. It is further ordered that there be judgment in favor of E. Cohn and against Charles S. Stewart and Isaac T. Hinton, in solido, for fifteen dollars damages and costs of suit in both courts.


author: Wylt, J.

text:
    No. 1463.
    Succession of J. H. Hillebrandt.
    Parol evidence is inadmissible to prove any acknowledgment or promise of a party deceased to pay any debt or liability against bis succession. Acts of 1858, page 148.
    » PPEAL from Second District Court of New Orleans. Thomas, J.

      Ciarle & Bayne, for appellant, W. C. Budd, for appellee.
   Wylt, J.

The executor of the succession of Hillebrandt filed his account, which was opposed by J. Kohn, the executor of the succession of Samuel Kohn, because the claim of the latter, to wit, a mortgage note for $6500, due twenty-sixth day of January, 1857, was not placed on the tableau.

On the trial the executor of the succession of Hillebrandt set up various defenses against the note in favor of Samuel Kohn. The most serious one seems to be the prescription of five years, which we propose to consider first.

Tlie note on its face is evidently prescribed. Numerous credits, extending from fourth February, 1857, to the tenth of July, 1866, were indorsed on the note hut not signed by any one.

Parol testimony was received, which proves that the payments were made as the indorsements show; but more than five years elapsed between the last payment and the one preceding it. Prescription had therefore accrued before the last payment was made. The court very properly refused to receive the indorsements of credits as evidence, because they were not signed by the deceased.

Parol evidence can not establish the renunciation of prescription on a promissory note.

The second section of the act of eighteenth of March, 3858, provides “that hereafter parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability against his succession in order to take such debt or liability out of prescription, or to receive the same after prescription has run or been completed, but that in all such cases the acknowledgment or promise to pay shall bo proven by written evidence signed by the party deceased or his specially authorized ageiil;, or attorney in fact.” Acts 1858, page 148.

The opponent contends that the payment made after prescription had accrued revived the debt, and relics on article 34S4 of the Civil Code, which declares that “renunciation of prescription is either express or tacit, a tacit renuheiation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.”

The act of 1858 referred to requires a certain kind of evidence to establish the expfess renunciation of prescription. We apprehend the same character of evidence is required to establish the fact creating the presumption of relinquishment or tacit renunciation.

If parol evidence can not prove a direct promise to pay we do not see how it can prove a fact which creates an implied promiso to pay. We do not find in the record any written evidence of the alleged payments signed by the deceased nor any express renunciation. The bill of exception was'well taken to the introduction of parol evidence to take the note out of prescripton.

It is therefore ordered that the judgment of the lower court dismissing the opposition be affirmed with costs.

Rehearing refused.


author: Wyly, J.

text:
    No. 2221.
    State of Louisiana on the relation of Edward Pinac v. W. S. Mount, Treasurer, and J. O. Landry, Controller City of New Orleans.
    The Controller of tho city of New Orleans may be compelled by a writ of mandamus to warrant on the City Treasurer for bills which he has approved. Mandamus is the proper remedy to compel a ministerial officer to perform purely ministerial acts. C. 3?. 831, 835, 811; 15 An. 334.
    The Treasurer of tho city of New Orleans cannot be compelled by a mandamus to pay a warrant not yet drawn, by the Controller.
    from tho Fifth District Court, parish of Orleans. Léau-mont, J.

      II. J. Leovy, City Attorney, for appellants. Hays & New, for relator, appellee.
   Wyly, J.

Tins is a proceeding hy mandamus to compel the Controller to issue warrants and the Treasurer to pay them, in discharge of certain registered claims against the city held by the relator, which have heen duly authenticated and approved hy the Controller.

The defendants denied generally the allegations of the relator, especially that he owns the registered bills, and aver that he has no right to proceed by mandamus, having a remedy hy the ordinary mode.

The only evidence adduced was the registered bills made part of the petition.

From a judgment rendering the mandamus peremptory, the defendants have appealed.

The facts are not contested. The. only question to. determine is, has tho relator the right to proceed hy mandamus against these officers of the corporation of New Orleans Í Have they refused to discharge a ministerial duty iu declining to comply with the demand of the relator ?

The duties of the Controller and Treasurer are defined in the thirtieth and thirty-first sections of the act amending an act “ to consolidate the city of New Orleans, and to provide for the government and administration of its affairs,” approved twentieth of March, 1856. (Acts 1856, p. 136.

By said sections it appears to bo the duty of the Controller to audit all claims against the city, and the Treasurer to pay on the warrant of the Controller all claims authorized hy the Council.

The defendants do not allege that the claims held hy the relator are unjust, and not authorized hy the Council.

The approval thereof hy the Controller establishes their correctness.

Then was it the duty of these officers to issue the warrants and pay them as required hy the relator ? We think so.

These officers administer the finances of the corporation, receive its revenues and discharge its debts. The law has prescribed the mode of settling claims against the corporation, and has designated the duties to he performed hy its officers. The Controller, J. 0. Landry, in refusing to issue tlie warrants lias evidently failed to perform liis duty, and tlie relator lias resorted to a remedy provided by law.

A mandamus is tlie proper remedy to compel a ministerial officer to perform purely ministerial acts. C. P. 831, 835, 844; lo A. 331, and tlie authorities tliere cited.

This case cannot be distinguished from that of Shaw v. Iluvell, and another, 18 A. 195, whore a mandamus was made peremptory, compelling the Controller to issue and the Treasurer to pay a warrant to the sheriff on a voucher approved by the clerk and tho Judge of the First District Court of New Orleans for certain fees and expenses incurred in criminal proceedings. Tho principle involved is identical.

But we do not consider that the mandamus should bo made peremptory against W. S. Mount, Treasurer; he cannot bo charged with failure of duty in refusing to pay the registered bills of the plaintiff. He could only pay them on the warrants of the Controller, which plaintiff did not have to present to him. A mandamus cannot be addressed to him to pay warrants to be issued. The-writ will only lie to compel him-to perform a duty which he has unlawfully failed to discharge.

It is therefore ordered that so much of the judgment as renders tho mandamus peremptory against W. S. Mount, Treasurer, be avoided and annulled; that as to him tho mandamus bo set aside, and tho petition dismissed; and that in every other respect the judgment appealed from be affirmed.

It is ordered that plaintiff pay costs of this appeal.


text:
    No. 1506.
    John D. Champlin and others v. W. G. Bakewell and Ann B. Gordon, Executors of Alexander Gordon, deceased.
    The act of the Legislature of 1850, page 190, and-tlio subsequent acts of 1855 and 1885, mailing tlie Second District Court of New Orleans exclusively a probate court, and requiring all successions to bo opened therein, does not divest the other District Courts of Now Orleans of jurisdiction in succession cases pending in those courts at the date of the passage of tho law. In such cases the jurisdiction of the court wliore the succession was opened is complete and exclusive until the final termination of all disputes involved in tho settlement of tho succession. 20 An. p. 466.
    A judgment rendered by the Second District Court of the parish of Orleans, in a controversy wherein the Fifth District Court of the parish of 'Orleans "has exclusive jurisdiction, is null . and void, and the nullity will be so declared on appeal.
    from the Second District Court of New Orleans. Buchanan, J.

      G. T. Bemiss, for plaintiffs and appellees. G: IT. Gonrad & Son, for defendants and appellants.
   Wyly, J.

This suit against the succession of' Alexander Gordon was instituted in the Second District Court of New Orleans in May, 1866, to recover a certain draft and a sum- of money paid on the agreement of W. G. Bakewell, the executor, to sell'the plaintiffs the Mexican Gulf Railroad and the property belonging to said succession, which said agreement was never carried into effect by tile legal transfer of tlie titles of said property.

The executors of Alexander Gordon excepted to the suit on the ground that the Second District Court was without jurisdiction rations materias, the succession having been opened in the Fifth District Court of New Orleans, which alone had jurisdiction of the case.

The exception was overruled, and the case decided in favor of the plaintiffs. The defendants have appealed. The question of jurisdiction must first be considered.

If the judgment was rendered by a court without jurisdiction it must be annulled.

The succession of Alexander Gordon was opened in the Fifth Dis-. trict Court of New Orleans in 1848. That court alone had jurisdiction at the time this suit was filed in the Second District Court, unless the jurisdiction of said succession had been transferred to the latter court by the acts of 1853, 1855 and 1865, creating it a strictly probate court for the parish of Orleans.

In the case of the State of Louisiana on the relation of W. G. Bako-well, executor, and Ann B. Gordon, executrix of Alexander Gordon, v. the Judge of the Second District Court, 20 A. 466, this question of jurisdiction was determined. The court decided that the several acts referred to, making' the Second District Court strictly a probate court, did not divest the other district courts of the parish of Orleans of their jurisdiction over the successions already pending before them; and that the jurisdiction of the succession of Alexander Gordon and of this cause did not belong to the Second District Court, but to the Fifth District Court. The writ of prohibition was made perpetual, restraining the Judge of the Second District Court from proceeding further in the matter of said succession and in the suit now under consideration, which was then pendí g before the court on appeal.

Plaintiffs contend that since this appeal has been pending a law has been passed conferring the jurisdiction of this case on the Second District Court of the parish of Orleans, and therefore, under the circumstances, it would be a useless proceeding to avoid the judgment on the ground that the court which rendered it was then without jurisdiction.

It is quite immaterial what court is now invested with the jurisdiction of the case; the validity of the judgment must be determined by the jurisdiction of the court at the time it was rendered.

The Second District Court, as has been decided, had no jurisdiction at the time the case was tried, and the exception was improperly overruled. C. P. 164, 924, 986; 14 A. 333, 409.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is now ordered that this suit be dismissed without prejudice to plaintiffs’ right to sue the succession of Alexander Gordon in the court now having legal jurisdiction thereof.

It is further ordered that plaintiffs pay costs in both courts.


text:
    No. 1018.
    Cora A. Slocomb v. Manuel J. de Lizardi.
    In order to justify a court of justices in rejecting a demand as contrary to the authority of the thing adjudged, it is necessary that the thing demanded is the same as in the first suit, ia founded on the same cause of action, and the contest is between the same parties, acting in the same qualities. C. C. 22(34, 2265 ; Marcado, vol. 5, p. 156.
    To ascertain what is demanded in a particular suit resort must be had to the prayer of the petition. 16 La. 44; 1 Eob. 109.
    The plea of res judicata to a second suit will not be maintained, unless it is shown to be between the same parties and acting in the same qualities with that of the first, founded on the same cause of action and on the same demand ; if either of these requisites is wanting the plea will be overruled.
    Notice to one member of a partnership which indorses a bill or note is notice to all, and if one of the firm dies before maturity, notice to the survivor will bind the estate of the deceased partner. Parsons on Notes and Bills, vol. 1, p. 502. Where a commercial partnership has boen dissolved by the death of one of the partners, notice to the executor of the deceased partner will not bind the partnership on an indorsement of the firm name on a note made before tho dissolution ; in such a case notice should have been given to tho surviving partner, especially if ho he the liquidator or representative of the firm.
    The certificate of the notary that notice was given by a letter directed to the indorsor's barkeeper, he not being in, is defective in not stating that the service was made at the endorser’s residence or place of business. 1 An. 95 ; 2 An. < 50.
    The partner in commcndam, by failing to have a final settlement of its affairs, does not ipso facto become responsible for tho liabilities created by tho activo partner, after tho expiration of the term of the partnership.
    A partner in commcndam, having allowed his money to remain in the partnership after the expiration of the term, as shown by the recorded act, under the belief that ho was still a partner in commendam and only liable for tho amount invested, cannot be held liable as a general paitner, unless he has done something, or permitted something to be done, which the law declares will render him responsible as a general partner.
    PPEAL from tlie Fourth District Court of New Orleans. Theard, J.

      Bradford, Lea <£• Finney, for plaintiff and appellant. JZ. Sunt, P. S. Morgan and G. Le Gardeur, for defendant and appellee.
   Ludeling, C. J.

A judgment was rendered in this cause at the last term of this Court, by our predecessors, maintaining the defendant’s plea of res judicata.

Haying granted a new hearing, our first duty is to examine whether or not this exception is well founded.

The plaintiff seeks to recover from the defendant eight thousand dollars, with eight per cent, per annum interest on $4000 thereof from the eleventh of April, and on $4000 thereof from the eighteenth of April, 1801, being the amount of two promissory notes drawn and endorsed by Hugh M. Keary and endorsed subsequently by Juan Y. de Egana, upon the ground that these endorsements were made by the commercial firm of J. Y. de . Egana, and that the defendant was, at the time they were made, a general partner in said firm.

The defendant denied all the allegations in plaintiff’s petition, and especially that there ever existed between him and Egana any partnership, as alleged by the plaintiff. Subsequently he filed the exception of res judicata, and to support it, he pleaded the j udgment of the Second District Court of New Orleans rendered on the eleventh January, 1804, in the matter of the succession of Juan Y. de Egana.

It is true, as stated by the counsel for defendant, that the authority of the thing adjudged is not a mere technicality of the law, but it is a principle of jurisprudence which is founded in tlie interest of society. It rests upon tlie broad and necessary doctrine that the disputes of men must, at some time, bave an end, and it is, therefore, favored by the law.

But in order to justify courts of justice to reject a demand as contrary to the authority of a thing adjudged, a legal verity,- it is necessary that the thing demanded should be the same as in the first suit, that the demand should be founded on the same cause of action, and that the contest should between the same parties, acting in the same qualities. Thus, identity of the things demanded, identity of the causes of action, and identity of the parties and of their qualities are the conditions upon which alone the legal presumption is established in favor of the thing adjudged. C. C. arts. 22G4, 2265; Marcadó, vol. 5, p. 156.

What, then, was the thing demanded in the suit in which the judg-mont of the eleventh of January; 1864, was rendered? As between Caballero, the executor, and Lizardi, the liquidator, it was to make the latter return to the former the property of the succession of Egana, in the event that the court should decide that it had been impropierly delivered to him. On the eleventh of April, 1863, in consequence of proceedings by creditors of the succession of Egana against him, the executor filed a petition calling on the liquidator to file an account of his administration. The liquidator was ordered to file his account, which he did on the 30t.h of May, 1863. The executor opposed this account, prayed that it be rejected, and that, in the event that the court should decide that the executor had unlawfully turned over to the liquidator the money and property of the succession, that the liquidator should be ordered to return them to him. It is the prayer which indicates the thing demanded. 16 La. 44; 1 R. 109.

The prayers of the oppositions filed by the creditors do not show that Lizardi was sought to be made liable as a general partner.

But we deem it unnecessary to examine the oppositions, of the creditors further, for they certainly did not represent any body but themselves. And if we admit that the executor did represent, in those proceedings, all the creditors, we have seen that the thing demanded in that suit was not to make Lizardi responsible for the debts of the firm of J. Y. do Egana, as a general partner.

The demand must be founded on the same cause of action.

What is the cause of an action ? It is the immediate foundation of the right which one claims to exorcise. It is the immediate basis of the demand — and hence wo must guard against confounding the cause of action, cither with the various circumstances which constitute the mediate bases, or simple means which produce this last cause, or with the right itself, which is the object of the demand.

The cause of action in this suit is the alleged endorsement of two ■ promissory notes by Lizardi, as a member of the commercial firm of J. Y, de Egana,

The cause of action between Caballero and Lizardi was the wrongful possession and unlawful administration of the property of the succession of Egana by Lizardi.

It is true that some of the creditors charged, in their oppositions, that Lizardi was a general partner, to show fraud and complicity between him and the executor; bub this was not, nay, it is difficult to conceive how it could have been, the immediate cause of the action between the executor, creditors and liquidator.

Marcadé says: “ II ne faut pas eonfondre la cause avec les éléments qui viennent produire ou justifier cette cause. Sans doute, il y aura lii des principes du droit demandé, et des lors des bases de l’action par laquelle on reclame ce droit; mais' ce sont des bases éloignées et mediates, des causes de la cause, que la loi n’aurait pas pus prendre ici en considération, sans éterniser les procés et depouiller de toute efficacité les décissions judiciares. II n’y a pas a se préoccupcr de ces bases éloignés, et la caúse me se trouve que dans la base derniére, dans le principe immédiatemont générateur que les Romains appelaient fort exactement causam proximam aetionis.”' .* * Yol. 5, p. 165. “La régle est done de ne cousidórer ici que la báse, .immediate. Mais Mens entendre, dés la que cette base immédiate n’est pas la méme dans les deux demandes, il n’y a plus chose jugée, et la demande nouvelle est recevable.” Mercadé, vol. 5, p. 160.' - -

The demand must be between the same parties, and formed by them, against each other in the same quality.

Lizardi was sued in the first suit in his fiduciary capacity as liquidator ; in this cause, he is sued personally as a general partner of a commercial firm.

In the first case he was proceeded against by Caballero, executor of Egana; now lie is proceeded against by a creditor of the firm.

But it is said that Caballero, executor, represented the creditors, and that the homologation of his account and tableau bars all further inquiries as to the matters included in the account.. ..This is true, with some limitations. The effect of such a decree protects the executor of administrator in making the payments ordered or approved, and from liability for his gestión so far as that is approved ; and it settles the claims of creditors against the succession as to the funds distributed, unless there be other creditors who \vere not placed upon the tableau. 4 An. 450; C. C. art. 1176.

Again, it is contended that the plea of res judicata must be held to be good, because the plaintiff acquiesced in the judgment by receiving a part of the fruits thereof. There is no doubt that acquiescence in a judgment however. manifested, constitutes what is decided by that julgment the thing adjudged, that is, it becomes thereby a final judgment, from which there can be no appeal. C. C. art. 3522,

But that is all. If a judgment which had become final by the lapse of time could not be pleaded as a bar to another action on account of the want of one or more of the conditions, which we have seen are necessary to give it the authority of the thing adjudged, it could not be set up as an estoppel if the judgment had become final by acquiescence.

It is immaterial how a judgment becomes res judicata; what is decided, by such a judgment, must be held to be legally true between the parties to the suit. And whether that judgment can be a bar to another action between the same parties, will depend on whether the thing demanded in the new suit be the same, and founded on the same cause of action, as in the suit decided. It is not necessary, therefore, to determine whether or not Mrs. Slocomb acquiesced in the judgment pleaded in bar of this action.

The “authority of the thing adjudged takes place only with respect to what was the object of the judgment.” C. C. art. 2265.

The object of the judgment in the matter of the succession of Egana was to compel Lizardi to restore to the possession of the executor the property which Lizardi had received from him. “II est bien entendu que e’est uniquement dans le dispositif d’un jugement, et non dans ses motifs, que se trouve la chose jugue. * * * Bien plus, le dispositif lui-méme ne presente la chose jugée que pour les points qui sont vraiment décidés, et non pour ceux que ne s’y trouvent que comme de simples enonciations; e’est en examinant les questions sur les quelles les parties étcáent en disaccord et que leur debatprésentait á décider, le quid judicandum, que l’on arrivera facilement á comprendre ce qué a été jugé, le quid judicatum.” 5 Marcadé, p. 155; Serey’s Code Annoté, notes 58, 59 and 60, art. 1351 of the Code Napoleon.

In Jeannin v. De Blanc, 11 An. p. 466, this court said, “as this right is not put in controversy by the pleadings, so it is not barred by the judgment.” 15 La. 485; 17 An. 104.

The exception should have been overruled.

On the Mekits.

Assuming that a commercial partnership existed, as alleged by the plaintiff, we think that the defendant cannot be held liable under the indorsements, for want of due notice of the dishonor of the notes.

The partnership, if it existed, would have been dissolved by the death of Egana in 1860. C. C. 2847, 2851; Story on Part. sec. 317,319.

Manuel J. de Lizardi was appointed liquidator of the commercial firm, and he was put in possession of the property of the firm, which he proceeded to administer. Undér these circumstances to whom was it necessary to give notice of the dishonor of the notes 1 We think the notice should have heen given to the liquidator, who was in this case the surviving partner. Story on Bills § 305.

Mr. Justice Story says, “Notice to one of several partners is notice to all the partners, and tho notice may be given to any partner, either at his usual place of business or at his dwelling house, or at the usual place of business of the firm.” “In cases of partnership, notice sltould le given to the firm; but notice to either of the partners will he notice to the firm. * * * If, in case of a note of a firm, ono of the firm die, notice should he given to the surviving partner. Whether notice to the personal representative of the deceased would be valid does not appear to be settled by the authorities.” Story on Promissory Notes § 310. In his work on Bills he says, “ if one partner is dead, notice should be given to the survivor.” § 339; 2 Hill, p. 685.

Mr. Parsons says, “Notice to one member of a partnership which indorses a note or bill is notice to all, because each partner represents the interests of all the other partners and of the partnership, and the same has been held whore notice has been given after dissolution and publication. So if one of the firm dies before maturity, notice to the surviving partner is sufficient to hold the estate and legal representatives of the deceased.” Parsons’ Notes and Bills, vol. 1, p. 502.

The reason assigned by Mr. Parsons for holding that notice to one of the partners is notice to all is because he represents the other partners AND the firm.

Who represented the partners and the firm after the appointment of Lizardi as liquidator 1 It would seem that the reason, upon which is based the rule which requires notice of non-payment to be given to the indorser, to wit: to enable him to tako the necessary measures to obtain payment from the parties respectively liable, would require the notice to be given to tho surviving partner, especially if he be the liquidator or representative of the firm. IIow could he know that the notes, of which the firm was indorser, had not been paid when due, if the holder gave him no notice of it 1 How was lie to know, without notice, that the holder looked to the indorser for payment? Tho executor had no power to administer the partnership affairs nor did he represent the partnership — how then could a notice served upon him be regarded as a notice to the firm or to the surviving partner f 4 R. p: 276; 7 R. p. 13.; 9 R. 124.

The only evidence in regard to the notices of protests is to be found in the certificates of the notary who protested tho notes. The first certificate states that the notary served the notice in the following manner: “by directing the one for Hugh M. Keary,. drawer and in-dorser, to him at Cheneyville, Louisiana, which letter I deposited prepaid in the post office in this city, on the same day of said protest, and by delivering the one for Juan Y. de Egana, in duplicates, one to J. M. Caballero, the testamentary executor of said Egana — the' whole by my deputy, Lawson L. Davis — on the day below written, and by delivering tlie one for Cora A. Slocomb to her personally, by Lawson L. Davis, my deputy, on the day below written.” The other certificate states that he notified the parties by directing the one for Hugh M. Keary in the manner stated above, and by delivering the notices for Juan Y. de Egana, as follows, to wit: one to Mr. Dubreuil, the partner of the agent of the liquidator of said firm of Juan Y. de Egana, and another to the book keeper of Mr. Caballero, executor of said Egana, at his office, he not being in on the day below written.'’

The first certificate shows that an attempt was made to notify the surviving partner or liquidator. The second certificate shows that an attempt was made to servo a notice on the liquidator, but the service was improperly made. In 9 Rob. p. 75 this court held that a certificate' that a notice was served “ by leaving it with the cashier of a banlc, the indorser’s elected domicile,” is insufficient — non constat that the notice was not given to him at some other place, or that it was addressed to him there. So a certificate that notice was given by a letter delivered to the indorser’s bar keeper, ho not being in” was held-to be defective in not stating that the service was made at the indorser’s residence, or place of business. 1 An. 95; 2 An. 759.

The certificate does not state where the notice was served on Mr. Dubreuil, the partner of the agent of the liquidator. “If notice be not given, it is a presumption of law that the indorsers are prejudiced by the omission.” Story on Bills § 284. And they are discharged from all liability.

But as it is possible that the notary did give the notice to the liquidator, and that this fact might be established on another trial, it might be our duty to render a judgment of non-suit only. This, therefore, obliges us to examine another question raised by the pleadings.

The plaintiff alleges that, at the time when the notes sued on were indorsed by Juan Y. do Egana, there existed a- general commercial partnership between Egana and Lazardi, carried on under the • firm name of Juan Y. de Egana, and that Lizardi is responsible, in solido, with the succession of Egana for them.

In 1848 a commercial partnership was established in the city of New Orleans, in which Manuel J. de Lizardi was a partner in commendam. The business was carried on in the name of Juan Y. de Egana, and the partnership was to terminate in September, 1853. The act of partnership was duly recorded. The affairs of this partnership had not been settled at the period when Egana died. In 1860, Lazardi gave a power of attorney to his nephew to liquidate the affairs of the firm in case of the death of Egana, and after the decease of Egana, Lizardi, through his agent, filed a petition claiming to be appointed liquidator of the firm, as the surviving partner in commendami.

The counsel for the plaintiff infers from this that there existed a commercial partnership — that, as it is proved that no written act of partnership existed or was recorded, other than the one which expired in 1853, therefore Lizardi was a general partner and he is bound, in solido, under the indorsement.

We are not prepared to adopt these inferences. It is not correct to say that because Lizardi thought and said, in 1860, tha the was a partner in commendam, when in truth he may not have been, therefore he was a general partner. His admission is that he was a partner in commendam. It would be illogical and unjust to construe this admission so as to make him a -general partner, if ho wore not what lie supposed ho was. The admission cannot bo divided. It cither establishes the fact that lie was a'partner in commendam, or nothing. Ilis opinion on the subject could not affect the facts, or the law governing the case.

The question is then presented for decision: Does the partner in commendam become responsible for the liabilities created by the active partner after the expiration of the term of the partnership in commen-dam, by failing to have a final settlement of its affairs, ipso facto ?

We say this is the question presented, for there is no proof, nor is it alleged, that, prior to the de.atli of Egana, .Lizardi interfered with the business of the concern, or permitted his name to bo used in it, or did any other tiling, which under the provisions of the Civil Code would make him responsible as a general partner. We do not deem it necessary to decide whether a partnership in commendam, once duly recorded, may be extended or prorogued after the limitation thereof fixed in the recorded act, without complying with the forms set forth in article 2849 of the Civil Code. Whatever might be the consequences of such a state of facts, as between the partners, we cannot sanction the-doctrine that one who has supposed that the partnership in commendam continued, in which he had placed his money, with the sanction of the law that he should nofe be responsible beyond that sum, should be held to be a general partner, and liable as such, without having done anything which could have induced creditors to believe that he was a general partner, or done or permitted any of the acts which the Code declares will render him responsible as a general partner. The Code says: “In no case, except as in hereafter expressly provided, shall the partner who has no other interest in the concern than that of a partner in commen-dam he Malle to pay any sum beyond that which he has agreed to furnish, by his contract.” C. C. art. 2813.

Here, then, is a textual provision of the Code supported by the well recognized principle that courts of justice cannot impose a penalty, which is not imposed by the law itself, which prohibits us from changing a partner in commendam into a general partner, except in the cases expressly stated. These cases are mentioned in articles 2816 and 2820, and they are the following: When the original contract has not been made in writing and recorded, or when the partner in commendam takes any part in tlie business of tlie partnership, or permits his name to bo used in tlie firm, or knowingly allows any single jicrson to whom lie has made the advance, to add any words or name or firm that may imply that he has other partners besides the partner in eommendam, when in fact he has none.

These views are supported by commentaters on the Code Napoleon and by the French tribunals. Dalloz says (v. 40, v. Société, p. 682, No. 1420): Les tribunaux n’ont pas admis cotte pretention. Ainsi il y á été jugó que, lorsque deux personnes qui avaient contráete,, pour un temps limitó (trois ans, par example) une socióté en commendite, ont, & l’oxpiration do ce temps, continuó pendant une année los affairs communes sur los bases prócédemment établies, mais sans remplir les formalités legales de publication, cetto continuation n’a pas changó, memo a 1’ égarde des tion, la qualitó des associés, et n’a pas ótabli de solidarite entro eux.” (Paris, 17 Avril, 1839). Delangle, vol. 2 pp. 223, 220.

This position seems to be in consonance with law and equity. In conformity with the law, because it is no where declared by the law that a failure to record the prorogation of the partnership shall chango the partner in eommendam to a general partner; and in conformity with equity, because having always confined himself within the limits prescribed by law to a partner in eommendam, third parties could have no pretext to claim that lie was ever bound otherwise than in tho manner shown by the recorded act of partnership in eommendam.

Wo think the defendant is not liable under the indorsements on tho notes mfcde by Juan Y. de Egana.

It is therefore ordered, adjudged and decreed that the judgment of this court rendered on the twenty-third day of June, 1868, be annulled, that the judgment of tho District Court be affirmed, and the appellant pay the costs of the appeal.

Mr. Justice Howell took no part in this decision.

Note. — This case was pending on appeal before tho Supreme Court under the Constitution of 1864. On the twenty-third of June, 1868, a decision was had through Mr. Justice Ilsly, the organ of the court, sustaining tho plea of res judicata, and affirming the judgment of the lower court. A rehearing was granted by that tribunal, and the case' was transferred to the present court for examination on the rehearing. As tho first opinion is overruled by this decision its publication in tho reports íb omitted.


author: Ludeling, C. J.-

text:
    No. 1496.
    Simon & Loeb v. Steamship Fung Shuey, Captain and Owners.
    A common carrier is responsible to the shipper or consignee for the nondelivery of goods .which has occurred through his fault or negligenco.
    The omission of the consignee to instituto proceedings to recover goods which havo been stolon from the ship before delivery, will not relieve iho carrier from the damagos resulting from the failure to deliver.
    The estimate of damages for the loss of goods by the carrier is their net value at the port of destination.
    from tlie Fourth District Court of New Orleans. Théard, J.

      Phillips c& Levy, for plaintiffs and appellees. Randolph, Singleton & Ilardie, for defendants and appellants.
   Ludeling, C. J.-

Simon & Loeb sued the defendants for the value of a case of merchandise shipped at New York on the Fang Slmey and consigned to the plaintiffs at New Orleans, on account of the nondelivery of the merchandise.

The defendants filed a general denial. There was judgment in favor of the plaintiffs and the defendants have appealed.

The defendants rely upon the terms of the contract between them and the shippers, as shown by the bill of lading, to relieve them from responsibility in this case. The exceptions in the hill of lading are as follows: ‘

“ It is expressly understood that the articles named in this hill of lading, shall he at the risk of the owner, shipper or consignee thereof, as ■soon as delivered from the tackles of the steamer, at her port of destination, the collector of the port being hereby authorized to grant a general order for discharge immediately after the entry of the ship, and they shall he received by the consignee thereof, package by package, as so delivered ; and if not taken away the same day by him, they may (at the option of the steamer’s agent), he sent to store or permitted to lay where landed at the expense and risk of the aforesaid owner, shipper or consignee.'1'1 R. 70. ...

The evidence proves that the consignee was at the wharf ready to receive the goods as soon as delivered from the tackles of the steamer” from the moment she commenced to "discharge her cargo until she finished unloading, and that the box in question was not delivered. Patrick Hays, agent of plaintiffs, testifies as. follows: “I was at the steamer as soon as she commenced to discharge. I made the request for the goods as soon as she commenced, to discharge. I was there from the time she commenced until she finished discharging. I received three out of the four cases. The clerk told me I was entitled to another case. I applied for it on the evening of the second March. I told the clerk I had received hut three cases and wanted four. He told me to wait until the ship was discharged — it was not on the levee. I applied again on the third for the case.- He searched for the goods with me, but could not find the case. He said the case might come out by the next steamer. When she came, after the Fung Shuey was discharged, we could not find the case.” Eelix Yeaux who discharged the ship, says that “ Simon & Loeb had four eases, and he delivered three — that he does not-know whether the missing box was on the levee or not.” The testimony of all the witnesses tends to the same effect.

The case' of goods was not delivered to the consignees through the fault of the common carriers. The exceptions in the bill of lading did not exempt them from liability for loss occasioned by a want of due care, or by gross negligence.

The fact that a part of the goods was afterwards found in the possession of an auctioneer, where they had been conveyed by a person who had stolon them, docs not prove that the goods were delivered in accordance with the terms of the contract.

It is also contended that it was th& duty of Simon & Loeb, the consignees, to have obtained possession oí the remnant of the goods found at the auctioneers, and thus have lessened the damages which the com-ipon carriers had incurred. We think they did all that could have been required of them when they made affidavit for the arrest of the thief and notified the carriers that a part of the contents of the missing case was at Hoffman & Marks. If a carrier loses goods the net value thereof at the place of delivery is the measure of damages. Parsons on Contracts, vol. 3 ; 18 An. p. 1.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed and that the appellants pay the costs of, this appeal.


author: Lüdeling, C. J.

text:
    No. 1616.
    Succession of Mrs. Marie Epicharis de Roffignac, Widow of Theodore de Grehan.
    If the successionbe accepted with benefit of inventory no part of it goes into the possession of the heirs as such until the estate shall have been administered, and until such administration the estate must remain under the authority of the Court of Probates where it was opened.
    Real property situated in Louisiana, owned by a French subject residing in France, can not be administered in the courts of France; such property thus situated forms a separate succession from that in France, and must be administered according to the laws of Louisiana.
    Heirs residing in France must be recognized as such by the courts of Louisiana before they can be put in possession of properly situated in this State, which they have inherited from their ancestor in France.
    from the Second District Court of New Orleans. Thomas, J.

      Martin Blanche, for appellant, J). Augustine, for appellee.
   Lüdeling, C. J.

On tbe seventeenth of May, 1867, L. G. Luminais, administrator of L. E. Maxon, filed a petition in the Second District Court of New Orleans, alleging that the widow Marie E. de Gréhan died in France on the twentieth of December, 1864, leaving two children, one of age and the other a minor, her sole heirs, and that the succession consists of real property situated in the city of New Orleans. He alleges that lie is a creditor of the succession. He further alleges that the minor heir had been emancipated in Franco, and lie was represented by a curator ad hoc; that D. Augustin, Esq., of New Orleans, was the lawful attorney in fact of the curator ad hoc and of the-heir of age, and he prayed that the heirs be .cited, through their agent, to appear and declare if they accepted or renounced the succession of their mother; and he prays that the succession be administered according to law.

The defendants, through their agent and attorney, filed an exception to the jurisdiction of the court, on the ground that the successsion has been opened and finally settled by the judicial authority of Angoulesne, France, and they, the heirs, have been put in possession of the property of the deceased, situated in France and Louisiana, that they have accepted the said propertyand have been in possession of the property in New Orleans several years, and that the Probate Court is without jurisdiction.

The District Court maintained the exception tp the jurisdiction of the court, and the plaintiff has appealed.

The judicial proceedings in Prance in the succession of the widow de Gréhan show that both heirs accepted the succession of their mother with the benefit of inventory. So that even if the proceedings in the French tribunals could affect the property in Louisiana the plaintiff was sustained by the textual provisions of the Civil Code and Code of Practice in his proceedings before the Secopd District Court of New Orleans. C. C. articles 1029, 1034, 1030, 1040, 1051; C. P. articles 979, 976, 977, 983 and 924.

If the heirs are of age and they accept the' succession unconditionally, they must be put in possession of the property of the deceased, and they may be sued in the ordinary courts for their virile portion of the debts. If the succession be accepted with the benefit of inventory, no part of it goes into the possession of the heirs as such, until the estate shall have been administered. And until such administration the estate must remain under the authority and control of the Court of Probates where it was opened.

But it is an error to suppose that real property; situated in Louisiana, can be administered in the courts of France. The property of the deceased, situated in Louisiana, is a separate, succession from that in France and must be administered according to the laws of Louisiana. 1 R. 263; 14 An. 633; 9 R. 438. Until this suit was instituted the heir-ship of the defendants had not been established and recognized in Louisiana, and the plaintiff was justified in the course he took to provoke the appointment of an administrator unless the heirs would accept. unconditionally their mother’s succession.

The exception should have been overruled. But the defendants in their exception as well as in a document subsequently filed in this case, declared that they had accepted the succession, and the evidence in this record establishes their heirship, and that they are now both of age.

“ If the heir thus cited declares that he accepts, he shall be considered as having accepted the succession purely and unconditionally, and may be sued as if he had done so.” Article 980 C. P.

The object of the plaintiff’s suit was thus attained.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; that Arthur de Gréhan and George de Gréhan be recognized as the heirs at law of Mrs. M. E. de Gréhan, and that they pay the costs in both courts.


text:
    No. 1489.
    Maxen & Shearer v. William Landrum, Stoner & Turner, Intervenors.
    It is the amount In. dispute in the District Court that gives the Supreme Court jurisdiction of tho appeal.
    The privilege of the consignee, who has made advances on the goods or property in his possession through his agent is superior to that of the attaching creditor. O. C. 3214.
    from the Second Judicial District Court, parish of Jefferson. Gazabat, J.

      Mmilc Haynes, for plaintiffs and appellees, Harr <& Foute, for defendant and intervenors, appellants.
   Howe, J.

The plaintiffs, appellees, have moved to dismiss the appeal in this case on the allegation that the amount in dispute does not exceed five hundred dollars. The amount claimed by plaintiffs was the sum of $868. A number of cattle were attached and bonded by the intervenors, whose claim thereon for advances was the sum of $2045 93. The cattle were sold for $2089 50. Although, therefore, the plaintiffs had judgment for the sum of $350 only, this court has jurisdiction by reason of the amount in dispute in the court below.

Proceeding then to examine the case upon its merits, we are satisfied from the evidence that when on the twenty-ninth September, 1866, the plaintiffs levied their attachment on the cattle, the proceeds of which are in dispute, the cattle were already in possession of the intervenors. It appears that on or about the twenty-seventh September, 1866, the agent of the intervenors advanced to Landrum, at Sabine Pass, some five hundred dollars upon the cattle, which were then at that place, and himself shipped them to the intervenors. The other advances were made prior to the attachment, except the freight money, which was paid by intervenors with subrogation to the rights of the carrier. It can not be doubted that under such circumstances the privilege of the consignees, who were in possession through their agents, was superior to that of the attaching creditors. C. C. 3214, and amendments.

In this view the judgment of the District Court is erroneous, so far as it accords to the plaintiffs a privilege on the property attached superior to that of intervenors.

The defendant has not appealed, and the judgment rendered against him personally, upon his appearance and answers, in favor of the plaintiffs, and also of the intervenors, must remain undisturbed.

It is therefore ordered and adjudged that the judgment appealed from, so far as it decrees to plaintiffs priority of privilege on the property attached, and to the intervenors a privilege only on the remainder of the proceeds, be avoided and reversed.. .It is further ordered that the intervenors, Stoner* & Turner, be paid the amount of their judgment against defendant, by preference and priority, out of the proceeds of the property attached; that the plaintiffs’ privilege be recognized upon the remainder of such proceeds, if any; that in all other respects the judgment be affirmed, and that the appellees pay the costs of the appeal.


author: Taliaferro, J.

text:
    No. 1794.
    Succession of James Forsyth, Opposition to Executor’s Tableau.
    The declaration of tiio testator in his last añil and testament are presumed to have hcen made ■with deliberation and reflection, and are entitled to due consideration, but they can not be permitted to outweigh his express acknowledgment in an authentic act.
    from the Second District Court of New Orleans. Thomas, J.

      W. O. Denegre, for appellant, 0. Belcher, for appellee.
   Taliaferro, J.

This is a contest between two of the heirs of the deceased in relation to their distributive shores of the estate of their ancestor. James Forsyth died in March, 1866, leaving three heirs, Adelia Forsyth, widow of A. P. Simpson, Joseph Forsyth and Fanny Jones, a grand daughter, representing her deceased mother, Elizabeth Forsyth. The decedent left an olographic will, which was admitted to probate soon after his decease, and Mills Judson, named as executor, was duly qualified. The executor presented his final account and tableaux on the first of April, 1867, and by his plan of distribution, according to his conception of the purport of the will, he required Mrs. Simpson to collate the sum of $2100, $1600 of which being the value of certain property donated to her under an onerous title, and $500, a donation in money. The tableau was opposed by Mrs. Simpson, and her opposition was sustained, and an order was rendered for its amendment. From this judgment Fanny Jones, by her tutor, appealed.

On the twenty-ninth of July, 1840, the'testator passed an act before a notary of the city of New Orleans wherein he declared “that for the consideration of fifteen hundred dollars,-to him paid in ready money, the'receipt whereof is hereby acknowledged and acquittance granted therefor, he does by these presents grant, bargain, sell, etc., unto Mrs. Adelia Forsyth, wife of Andrew Pickens Simpson, of this city, a lot of ground, situated at the corner of Dryades and Clio streets.”

In his will the testator enumerates the advances he had made to his children. To Joseph Forsyth he had given $8500, a sum equal to or beyond his distributive share, and stated that this heir could expect nothing from his estate; to W. A. Jones he had given a negro woman of the value of $700; to Mrs. Simpson he had given a lot of ground, at the corner of Dryades and Clio streets, of the value of $1600; also, that he had given her a check on Now York, just before she was married, to be sent to A. P. Simpson, her intended* to buy furniture, and that he gave her in September, 1857, $1000, for which she gave her note with eight per cent, interest, the amount, at the end of seven years and a half, being $3700.

Mrs. Simpson filed her opposition to the tableau, and specially opposed that item by which she was required to collate the sum of $2100, and alleged that she had never received anything .from her father in advance of her share by checks, money or lot of ground. She averred that the lot of ground was purchased from her father by Simpson, her husband, and paid for by him.

The note was placed upon the inventory and specified in these words: One note of Mrs. A. P. Simpson, dated the nineteenth' of September, 1857, renewable one, two and throe years for $1000, with eight per cent, interest.” The opponent filed in this court the plea of prescription of five and ten years and all other prescription applicable against any indebtedness to the succession.

The question before us is one of evidence. The opponent claims title to the lot of ground by the act of sale. ’ This sale is not attacked under the provisions of article 2419 of the Civil Code, which provides that “the sales of immovable property or slaves made by parents to their children may he attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid or that the price was below one-fourtli of the real value of the immovable property or slaves sold at the time of the sale.” This article is not invoked to show the sale to have been a simulation or donation in disguise, but the appellant claims the collation of the lot of ground for the reason, as she avers, that there was no price paid for it by the opponent, and relies chiefly upon the declarations of the testator himself, made in his act of last will, to establish the sale to have been a mere donation. The opponent contends that these declarations are not evidence against her, that they are to her prejudice as a forced heir, and were intended to reduce her legitime in the estate of the father. We are willing to concede that the declarations of the testator, made, as doubtless they were, with grave deliberation, are entitled to due consideration, but we are not prepared to go to the extent of permitting them to outweigh his express acknowledgment in an authentic act that he had sold the property and received the price. The articles 1324 and 1326 of the Civil Code, as well as article 2419, already adverted to, seem to indicate the course to be pursued to set aside pretended acts of sale as being donations in disguise. The appellant should have resorted to the proof which these articles seem clearly to require in such cases. The sum of five hundred dollars given to Mrs. Simpson immediately preceding her marriage, to buy furniture, must be regarded as a marriage present, which, as it docs not exceed the disposable portion, is not subject to collation. The opponent’s idea of prescription it is not necessary to examine. _

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


text:
    No. 1962.
    State of Louisiana ex. rel. George W. Avery v. William S. Mount, City Treasurer.
    A mandamus is tbe proper remedy to compel tbe Treasurer of tbe city of Now Orleans to pay a warrant drawn upon bim by the Controller, and tbe writ will propcrly'be made peremptory when tbe Treasurer in bis answer discloses no sufficient reason for bis refusal to pay.
    Tbe writ of mandamus will not lie to compel tbe Treasurer of tbe city .of New Orleans to perform any act whore it becomes bis duty as tbe fiscal agent of tbe city to exercise a discretion.
    In a proceeding by mandamus to compel tbe Treasurer of tbe city of New Orleans to exchange certain bonds of tbe city for warrants drawn by the Controller,- tbe court will not, under tbe prayer for goneral relief, render judgment ordering tbe Treasurer to pay tbe warrants in money.

      A q_ PPEAL from the Fifth District Court for the parish of Orleans. liéamnont. J.

      J. U. Mew, for plaintiff and appellee, IT. J. Lcovy, City Attorney, for defendant and appellant.
   IIowe, J.

The relator in his original petition represented that he was the owner and holder of certain described warrants drawn by the controller of the city of New Orleans on the treasurer thereof, amounting in all to the sum of $37,286 92, which had been issued to bim in bis capacity of Sheriff of the parish of Orleans; that payment thereof had been amicably demanded of William S. Mount, tbe treasurer of the city of New Orleans, and refused": that by virtue of an act of the Legislature of Louisiana, approved September, 1868, tbe city of New Orleans bas issued certain bonds bearing ten per cent, interest to mature at not more tlian five years, and tbougli said bonds aro now at a heavy discount in the market, petitioner is whiling to receive them in satisfaction of his warrants, claiming however the bonds of the longest period as approximating nearer to the sum justly due him;” and, after various formal allegations the relator prayed that a writ of mandamus issue directing the Treasurer to deliver to relator the bonds aforesaid Laving tbe longest period to run before maturity to the ampunt of his claim,

By a supplemental petition tlie relator further claimed interest on his warrauts from their respective dates.

The defendant excepted on the ground that the claim of the relator was one for debt, and further that tho relator was nob entitled to the remedy in this case of mandamus. He further pleaded a general denial.

Upon the trial the relator testified that tho allegations of his petition were true, that he was the owner of the warrants in question and that lie had demanded payment of the defendant which was refused. This testimony, with the warrants themselves, constitutes the entire evidence in the case.

The court a qua gave judgment that tho writ of mandamus be made peremptory and that the defendant deliver to relator a sufficient number of the bonds above described to cover tho amount of the warrants, “said bonds to be of those having the longest period to run before maturity.” It was further ordered “that the defendant pay the costs of suit, and legal interests on the aforesaid warrants from their respective dates.”

From this judgment tho defendant has appealed.

We consider it well settled that mandamus is the proper remedy to compel the treasurer of tho city of Now Orleans to pay a warrant drawn upon him by the controller, when he has no legal discretion to refuse payment, and that a mandamus will properly be made peremptory when tho treasurer in his answer discloses no sufficient reason for his refusal to pay. 18 An. 195 •, State ex. rel. Pinac v. Landry, 21 An. p. 352.

But the facts of this case are peculiar. The relator does not ask tho defendant to do a duty imposed upon him by law, and which tho defendant has no discretion to decline. lie asks that tho treasurer be required to deliver to him certain bonds bearing the unusually high rate of interest of ten per cent, per annum; he asks for bonds having tho longest period to run, and on which, if delivered to him the city would be obliged to pay ten j>cr cent, per annum interest till maturity ; and he further asks that tho defendant be compelled to pay him interests on his warrants for considerable periods.

We are of opinion that tile defendant had a legal discretion to refuse all these demands. As far as the bonds are concerned, if there are such bonds under his control, the law of September 5, 1868, under which they are alleged to have been issued, simply authorizes the city of New Orleans to borrow one million dollars at a rate not exceeding ten per cent, for the purpose of meeting current expenses and paying “ the employes ” of the city. We can perceive nothing in this law which makes it the duty of defendant to deliver to tho relator ten per cent, bonds of the city for his warrants. The fact that tho relator is willing to accept these bonds does not impose on the defendant the duty of delivering them. Much less does this statute require the treasurer to deliver to relator, of those bonds, sucli as liave the longest time to run; on tlie contrary, a just regard for tlie financial interests of tlie city might well dictate to the treasurer tlie policy of withholding from use as many of such extravagant obligations as he possibly can. And lastly we are not furnished with any authority for the order that the treasurer pay interest on the warrants, and wo thiulc that' sucli interest, if exigible, should be made the subject of an ordinary action.

There is a prayer for general relief by relator, but we find ourselves unable, under this, to render a judgment in his favor directing the payment of the warrants in lawful money, for it may bo that if this specific relief had been demanded under proper allegations, the defendant might have shown some legal reason for a refusal of payment.

For the reasons given it is ordered and adjudged, that the judgment appealed from be avoided and reversed, and that the petition óf the relator be dismissed, without prejudice, witli costs in both courts.