author: Taliaperro, J. ■

text:
    No. 2849.
    R. P. Smith v. The City of New Orleans.
    The notes issued by tho city of Hew .Orleans, known as city treasury notes, which, on their face, were made receivable for all debts and demands due the city, arc not bills of credit within the meaning and intendment of section ten of article one of tho Constitution oí • the United States.
    The act of the G-eneral Assembly of 18G9, authorizing tho funding of these notes in interest bearing bonds of the city, was a ratification by the State which legalized their issue by tho city. Therefore, any holder of such notes is entitled to recover the amount from the city, with legal interest, from judicial demand
    The prohibition contained in article one, section ten, of the Constitution of the United States, against the States emitting bills of credit, does not extend by implication to a municipal corporation of a State. The State, although prohibited from emitting bills oi credit herself, may authorize a private or public corporation, within her borders and under her control, to do so. In tho exercise of this prerogative by the State, there is no difference between the authorization granted to a private and a public or political corporation.
    APPEAL from the Sixth District Court, parisn of Orieans.

      Oooley, J. Alexander Wallcer and James IAngan, for plaintiff and appellee.
    J. B. Beckwith, City Attorney, for appellant.
   Taliaperro, J. ■

The plaintiff institutes this suit upon twenty-six written or printed instruments, each purporting to he an obligation of the city of New Orleans to pay the bearer a sum of money. Twenty-five of these are for the sum of twenty dollars each, and one for the sum of ten dollars, making in the whole, five hundred and ten dollars, and are of that class of paper currency, known as “city money.” On each of these instruments or bills is the following endorsement:

“This note is issued in exchange for notes of the city of New Orleans, of smaller denominations, under and by virtue of ordinance No. 6250, approved October 12, 1864, and is receivable for all debts due the city of New Orleans, and for the redemption of the same the real estate of the city is pledged.” The plaintiff claims interest also on the aforesaid sum from the first day of January, 1869.

The answer of the defendaut repudiates, on several grounds, the instruments sued upon, and denies any indebtedness to the plaintiff. It declares that the supposed writings obligatory were not executed by the defendant; that no agent of the defendant now or heretofore ever had the power or right'to execute them; and, if signed at any time by the persons whose names are affixed to them, such signing was unauthorized; that the defendant is itself without power or legal right to issue the instruments in question, and, a fortiori, could not delegate such right to its officers or agents; that these supposed obligations are in form bills of credit, and null and void by section ten of the first article of the Constitution ot the United States, which declares, among the enumerated powers withheld from the States, that no State shall coin money or emit bills of credit. The answer denies that defendant has been put in mora by a demand of payment previous to the institution of this suit. The plaintiff had judgment for the amount claimed, with legal interest from the first of January, 1869. The defendant has appealed.

As to the authority of the city to issue the bills in question, we find that the Legislature of the State, by an act approved twenty-seventh February, 1869, entitled “An act to enable the city of New Orleans to fund its floating debt, and to liquidate its indebtedness,” authorized the city to issue bonds, to the amount of three million dollars, to bo “ given in exchange at par for what is known as city notes.” If the corporation had not been empowered by tlie legislative enactment to issue these city notes prior to the date of their issuance, we think this law of twenty-seventh February, 1869, ratified the act

The principal inquiry in this case is, are the instruments on which this action is founded, bills of credit, within the meaning and intendment of section ten of the first article of the Constitution of the United States, and therefore null and void ?

A recognized definition of bills of credit, as the term is used in the Constitution of the United States, is thus given: To constitute a bill of credit within tho Constitution, it must be issued by a State, on tho faith of the State, and be designed to circulate as money. It must be a paper which circulates on the credit of the State, and is so received and used in the ordinary business of life.” 11 Peter’s Reports, page 426. The instruments or bills in question were not issued by the State, nor on the faith of the State, nor did they circulate on the credit of the State. They would seem, therefore, not to fulfill the conditions necessary to give them the character of bills of credit within tho intendment of the Constitution. We imagine it is well settled that the Constitution does not prohibit private persons, or private partnerships, or private corporations, from issuing bills of credit. In the language of Judge Story, the Constitution does not prohibit the emission of all bills of credit, but only the emission of bills of credit by a State. The right to emit bills of credit is conceded to private corporations because under proper regulations and restrictions, which State Legislatures have always tho power to impose, the exercise of the right may be useful in facilitating the business affairs of the community, and can never be productive of permanent or very serious injury. The States are the guards over the safety of the people against tho perpetration of fraud by persons or corporations they invest with this power. But on the subject of currency a very grave question presented itself to the framers of the Constitution. The sad experience of tlie American people during the Colonial Government, and shortly after, justified them in appealing in the most earnest manner for protection, against tho unlimited power possessed by the States over the essential matter of the currency; a power fraught with dangers of the most frightful character, and from tho injudicious exer■cise of which ruin had spread over the land. It was seen by the convention, that, while the States were competent within their separate spheres to exercise a salutary control over the issue of bills of credit by corporations created by them, still tho States themselves ■should be restrained in this respect from abuses which, it was fair to ■conclude, they would prevent the practice of by others. Hence it is by the organic law, that the States may, within circumscribed limits, •authorize the issuing of bills of credit, while it is incompetent for them to exercise that power in their own names and on their own credit.

But it is urged by the counsel of tho defendant, that the city of New Orleans is a public corporation, holding territorial jurisdiction ■over a portion of the territory of the State of Louisiana, and is an integral part of the State; that it is vested by the State with a portion of its sovereignty, and that it is by virtue of this derived sovereignty,'that this public political corporation issued the bills of ■credit, for the payment of which it is now sued; that, tho issuing of these bills of credit being the exercise of sovereign power derived ■from the State, the act is null and void for the reason, that the State, being forbidden to do the act, can not delegate the power to the corporation, on the principle that no one can delegate greater powers than ho possesses. It is not easy to perceive a distinction in this respect between public and private corporations. If corporations of limited powers can exercise a right prohibited to the States, why may ■not public corporations exorcise the same right when authorized by the acts incorporating them? Instances in which the power is granted to public corporations to issue bills of credit, are frequent, • and the legality of their exercise of the power seems not to be questioned. In a case decided by the Supreme Court of New York, 39 Barbour ■522, it was laid down that “ A municipal corporation, having a power to purchase, has an implied power to incur an indebtedness for the purchase money and to provide for the payment of tho indebtedness, unless that power is so restricted as that it can not be exercised, unless there be sufficient funds in hand to pay for the property. When no ■such restriction exists, it may purchase on credit and may issue its obligations to pay the indebtedness at a future time, and make subse■quent provision for tho payment of them.”

The Supreme Court of the United States, in the case of Moran v. Commissioners of Miami County, 2 Black’s Reports, 722, said: “The object of this court has been,'in cases of a like kind, and it is ■still its purpose, to give to the contracts of counties, for the purchase of railroad stocks, and for borrowing money to aid in the construction of railroads and other internal improvements, a strict interpretation of the legislative acts, empowering them to do one or tho other, but at the same time to give protection to the bona fide holders of such contracts ■as have been nut on sale in the money market, by corporations or by counties, acting separately, against their efforts to be relieved from the responsibilities of official acts in putting such papers into circulation for capitalists to invest money in them on assurances that the principal and interest would be paid.”

In the case of Zabriskie v. Cleveland, Columbus and Cincinnati Railroad Company, 23 Howard, the same court said: “ Corporations are as strongly bound, as individuals are, to a careful adherence to truth in their dealings with mankind, and that they can not, by their representations or silence, involve others in onerous engagements, and then defeat the calculations and claims their own conduct had superinduced.”

Also, 21 Howard, 539, 24 Howard, 287, witn regard to the putting in delay, the plaintiff insists that it was dispensed with by the public ordinance of the city, of the twenty-eighth December, 1868, which directed its Treasurer and Tax Colle'ctors to receive in payment of taxes, licenses or any other duty no other than United States currency. The ordinance further directed the destruction by fire of all the bills known as city money,” then in its treasury. Non constat from anything in the ordinance, that tho bills sued upon may not have been paid, had payment been demanded. We think, therefore, tho defendant was not put in delay.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, so far as it decrees interest from the first of January, 1869, be annulled and reversed. It is ordered that the plaintiff recover from the defendant the sum of five hundred and ten dollars, with legal interest, from judicial demand and costs of suit

Rehearing refused.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 2732.
    The State of Louisiana v. Jacob Morningstar.
    The fact that a person was called to serve as a talisman on a jury in a criminal trial, who had been exempted from serving on tho regular panel, did not vitiate the jury. Per , cunam: Such a juror might have served on the regular panel, if he had chosen to waivo his exemption.
    The counsel for the accused ashed the judge to incorporate in his charge to the jury certain extracts furnished from decisions, to which tho judge informed tho jury that he had already given to them the substance of the extracts referred to as law. Hold — That tho reasons, given by the judge for not giving the charge, were sufficient.
    APPEAL from the Second Judicial District Court.

      Pardee, J. Z. McKay, District Attorney, for appellee,

      li. L. Preston, for appellant.
   Ludeling, C. J.

Tbe defendant was indicted for the murder of Alex. Wright on the twenty-fourth d^y of March, 1869; he was tried and convicted of murder without capital puuishment, aud he has appealed to this Court.

The first bill of exceptions is, that persons who were exempted from jury duty, were drawn as jurors on the venire and that this fact vitiates the whole panel.

'The law requires that the jury shall be drawn from the list of registered voters. Acts of 18G8/ No. 110, p. 142.

This seems to have been done. If from this list of registered voters the names of persons, who are exempt, were drawn, that fact could not affect the legality of the drawing — -nay, the exempted persons might have served as competent jurors, if they had chosen to waive their exemption.

The second bill of exceptions was to the refusal of the judge to incorporate in his charge certain extracts from the cases of the State v. Chandler, 5 An. 490, and Camonche v. Baris, 6 An. 97.

The judge states that he informed the jury that he had already given to them the substance of the extracts referred to as law. We think that was sufficient.

It is therefore ordered that the judgment be affirmed with costs of appeal.


author: Taliaeerro, J.

text:
    No. 2942.
    Succession of Robert Camble. Contestation between Legatees under the Will.
    A. pew in a cliurch, being attached to the realty, is of the character of an usufruct, and must bo classed as an incorporeal immovable. C. C. 470.
    isotes, given for the rent of real estate, do not partake of the realty, and are, therefore, not-to be classed as a part of the realty. Therefore a legatee, entitled to all the testator’s estate, except real estate, will take the rent notes or their proceeds, while the legatee, entitled to the real estate, will take the pew in the church, that being classed as a part oí the realty.
    APPEAL from Second District Court, parish of Orleans.

      Dmignccmd, J., A. L. Tissot, tor Mary Gamble, opponent aud appellant.

      OlarlcT Bayne & Bensliaw, for Mrs. Amanda L. Gamble and others, opponents and appellants.

      JS. Mllenl, for Thomas Robertson, executor and appellee.
   Taliaeerro, J.

The testator lived in Illinois at the time of his. decease. lie left a considerable estate, both in Illinois and in Louisiana. His debts were few and inconsiderable. He died without heirs, either in the ascending or descending line. He gave by his will to his wife the family residence and some other lots of ground in the town of Bunker Hill, in Illinois, and directed his executors to pay over tp her-six thousand dollars out of the proceeds of his real estate in New Orleans, which, with the exception of a few lots, made the subject of special legacies, ho directed to be sold. He also made to her a further donation in these words ■ “Also all my personal property, of whatever name or nature soever, intending this bequest to include every thing of which I am now possessed, except real estate.”

After directing several legacies of a particular kind^j the testator concludes the disposition of his ju'operty as follows: “I give and bequeath unto my sister, Mary Gamble, all the remainder of my property, not nereby otherwise disposed of, of every name, .nature and kino. whatsoever.’ Three executors were appointed, two of them citizens of Illinois, the other a citizen of Louisiana. The executor in Louisiana made an inventory of the property of the succession in this State, had the teal estate sold, that was required to be sold by the will, and filed a final account and a tableau, by which he proposed to pay the creditors and. legatees. As part 01 the property of- the succession, six several .promissory-notes, each for the sum of $350, were placed on the inventory. These notes were for the rent of property in New Orleans, and appear-in the account in the form «f two judgments in which they were merged, one for the sum of $1750 and interest, and the other for $875 and interest, 'fhere was also entered upon the inventory a pew in Christ Church. The executor placed, among the debts of the succession, the sun: of $2624 52, alleged to have accrued in Illinois, and, as was shown, allowed by the Probate Court of the county iu which the testator had lived, and in which his estate in Illinois was opened. The controversy in this case has arisen in relation to which of the two iegate.es, under universal titles, the wife or tne sister of the testator, the pew and the proceeds of tho rent notes aré to dc distributed, and in regard to the admission of the debts from Illinois, as charges against the succession in this State. The pew and the proceeds of the rent notes were treated by the executor as real estate, and assigned to Miss Mary Gamble as part of her legacy. An opposition was filed oru her part to the payment of the claims, allowed in Illinois, on the ground that they are not owing by the succession, On the part of Mrs. Amanda L. Gamble, an opposition was filed, claiming that undbr the provisions of the will, she is entitled to the pew ana to tile proceeds of tne notes m controversy as personaf property, and praying judgment accordingly. There was also an opposition filed by the sheriff, claiming costs against the succession to the amouni of thirty dollar's, which tho executor haa omitted -to place on the tableau,

A mass of stimony was ,alien in Illinois, under commission, m regard to the several claims, amounting to $2624 52 and transferred to this State for payment. The court dismissed the opposition of Mrs. Amanda Gamble, sustained that of the sheriff and that of Miss Gamble, except as to two items, the one for $1000, an attorney’s fee, and the other for $150, a medical bill. As thus amended, the court rendered judgment, homologating the tablean and ordering that the funds be distributed in accordance therewith. Prom this judgment Mrs. Amanda Gamble has appealed.

The principal questions arising in this case arc :

Mrst — Is the widow of the testator entitled under the will to the pew and the proceeds of the notes originally given for the rent of real estate 9

Second — Can the Illinois debts be legally acquitted out of the funds arising from the sale of the testator’s property in Louisiana 9

The right to the use of a pew has been defined to be an incorporeal interest in the property. In a few of the States of this Union, pews are considered as real estate •, in others as personal property. In the State of New York the precise nature of such property does not seem to be well settled. We incline to apply in this case the rule laid down in article 470 [402] of our Code. “ Incorporeal things, consisting only in a right, are not of themselves strictly susceptible of the quality oi movables or immovables; nevertheless, they are placed in one or the other of these classes, according to the subject to which they apply and the rules hereinafter established.” The right, therefore, being oi the character of usufruct, in as much as it applies to an immovable, we consider it an incorporeal immovable. The pew then was properly assigned to Mary Gamble,' as it is embraced by that clause of the will in which the testator declares: “I give and bequeath to my sister, Mary Gamble, all the remainder of my property, not hereby otherwise disposed of, of every name, nature and kind whatsoever.”

The rent notes, it is argued, being for the revenue derived from the rent of the real estate, partake of the realty, and should go with the real estate to the legatee receiving it or its proceeds. We can not adopt this view of the character of the notes. Article 474 [465] of the Civil Code describes as movables “obligations and actions, the object of which is to recover money duo or movables, although these obligations are accompanied with a mortgage.” Article 475 [467]: “All things, corporeal or incorporeal, which have not the character of immovables by their nature, or by the disposition of the law, according to the rules laid down in this title, are considered as movables.” Promissory notes have not the character of immovables by their nature or by disposition of law, and they must be taken as personal' property. Such instruments are sold every day and pass by indorsment or delivery. They are good in the hands of any holder acquiring them in good faith. Their character of personalty is not changed by the consideration for which they may have been given. The counsel of Miss Gamble aims to show that the testator treated his Illinois and Louisiana estates in accordance, as the counsel contends, with the statute of Louisiana, and would seem therefore to infer that the bequest, to Mrs. Gamble, of all the testator’s personal property should be limited to the personal estate in Louisiana.

Without adverting to the universally received maxim, mobilia segúntur personam, the legal fiction which locates all the personal properly of the testator wherever situated, at his place of residence, and subjects it to the law of his domicile, the language used by the testator is too broad, distinct and clear to admit of such a construction. After disposing of his houses and lots in favor of his wife, the testator adds: “Also, all my personal property of whatever name or nature soever, intending this bequest to include every thing of which I am now-possessed, except real estate.” This, unquestionably, embraced and included the promissory notes in question. In regard to the debts of the testator in Illinois no law' prohibits their payment, when duly proved, out of funds of his estate in Louisiana. Even under the bankrupt laws, both of Great Britain and the United States, foreign creditors áre permitted to prove their claims and participate in the assets surrendered by the bankrupts. And where' a debtor dies insolvent, leaving property in different countries, and separate administrations are taken out, this, perhaps with some limitations, is no bar to the right of all the creditors to participate in the distribution of the entire estate. But the complications and difficulties that frequently arise in regard to the adjustment and settlement of the claims ot creditors, residing in different countries, in • cases of insolvent estates, where part of the assets are in one country and part in another, and are under different administrations, principal and ancillary, do not arise in this case. The succession of Gamble was not burdened with debts. The liabilities were few and of but little importance, compared with the value of the property. The succession is amply able to pay all the creditors of the testator, wherever their domicile. There is then no good reason, why the executor in Louisiana may not pay the foreign creditors on sufficient proof, before our courts, of the legality and correctness of their claims. The claims that have been presented here and admitted by the executor, have been opposed and strictly scrutinized. Testimony in relation to them has been taken in Illinois under commission. More than one-half these claims, in amount, were rejected by the court below. Two only were admitted; the fee of the attorney, Walker, one thousand dollars, and a medical bill, amounting to one hundred and fifty-one dollars. The action taken by the lower court on these claims we think correct. The judgment-must be altered in regard to the disposition of the promissory notes taken for the rent of real estate in New Orleans.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, dismissing the opposition of Amanda Gamble, be annulled, avoided and reversed, so far as relates to her claim therein set up to the rent notes figuring on the tableau of the executor in the form of two judgments, one for the sum of $1750 with the interest. the other for the sum of $875 with interest. It is further ordered and adjudged that the said two judgments or their proceeds be decreed to be the property of the said Amanda Gamble-, widow of the testator; that the executor amend his tableau accordingly and pay over the proceeds of the said judgments to the said opponent. It is further ordered and adjudged that the judgment of the District Court, as herein altered and amended, be affirmed.

Rehearing refused „


text:
    No 2992.
    James O. Noyes v. Sigmund Loeb.
    This is an action to annul a judgment of the Sixth District Court of the parish of Orleans. The defense is that the petition disclosed no cause of action. The petition alleges that the plaintiff, availing himself of the absence of defendant’s counsel at the trial, obtained the judgment by fraud and ill practice and by suppressing the tr,uth well known to the plaintiff. The court a qua sustained the exception and dismissed the suit. The plaintiff in the action of nullity appealed. Held by the Supreme Court — That the allegations of the petition, being taken as true for the purpose of trying the exception, disclosed a cause of action, and, therefore, it must bo overruled and the causo bo remanded, with instruction to the court a qua to be proceeded with according to law.
    APPEAL from the Sixth District Court for the parish of Orleans,

      Oooley, J. IT. B. Kelly, for ulaintiff and aDDellant.

      B. B. For-man, for defendant and appellee.
   Ludeling, C. J.

This is an appeal from a decision sustaining an exception to the petition “for insufficiency' and uncertainty, and because no specific acts of fraud are set forth, such as would authorize the remedy sought, and disclose no cause of action.”

For the purpose of the trial of the exception, the allegations made in the petition are admitted to be true. They are as follows: That the plaintiff, Noyes, gave to Simon, Loeb & Co., for value received, his note, payable to their order, for $1791 09, dated on the fourth and payable on the tenth of April, 1865; that the original payees continued to hold the note until the ninth of December, 1867, at which time it was surrendered by them in bankruptcy; that, between the maturity of the note and its surrender in bankruptcy, it had been reduced by payment to $790 09, and that, when surrendered by Simon, Loeb & Co., they only claimed that balance to be due; that on the seventeenth oí February, 1866, prior to said surrender, the said Simon, Loeb & Co., in consideration of the conveyance by Noyes of all his property to a trustee for the benefit of said Simon, Loeb & Co. and other creditors, had granted him a full and unconditional release and acquittance from all liability on account of said note or any other account; that the note had thus been extinguished by payment, except as to $790 09; and that, as to this balance, Noyes had been released from all liability, as aforesaid, on the seventeenth February, 1866. It is further alleged that Sigmund Loeb, well knowing the truth of all the facts above alleged, corruptly and fraudulently combined and confederated with said Simon, Loeb & Co. to defraud Noyes by means of suit No. 1165, instituted in tlie Sixth District Court on the fourteenth of February, 1870, alleging, in the petition filed in said suit, that he was the holder and owner of the note, for valuable consideration, in due course of business, before maturity, and that the whole amount was still due and unpaid, he well knowing tlie falsity of all of said allegations.

It is further alleged that Sigmund Loeb, well knowing that the note had been extinguished by payment and release, as aforesaid, corruptly and fraudulently combined and confederated with Simon, Loeb & Co. to defraud Noyes by means of said suit, 1165, and by availing himself of the accidental absence of Noyes’ counsel on tlie trial, obtained a judgment by fraud and ill practice and by suppressing the truth well known to plaintiff.

We can not assent to the proposition that no cause of action is stated in the petition. It would be a reproach to any system of laws-to say, that it was inadequate to afford relief upon the state of facts admitted by the pleadings in this case. The law of this State is not liable to such imputation. Article 607, Code of Practice, declares that "a definitive judgment may be annulled in all cases where it appears that it has been obtained through fraud or other ill practices on the part of the party in whose favor it was rendered.” 12 La., Fox v. Bonner. 408; 7 N. S., 692; Beauchamp v. McMiken; Chitty on Bills, p. 212.

It is, therefore, ordered that the judgment of the district court be-annulled; that the exception be overruled; that the case be remanded to the court a qua, to be proceeded witli according to law, and that the appellee nav the costs of anneal.


author: Howe, J.

text:
    No. 2924.
    State of Louisiana v. Albert Push.
    A juror who does not spealc or understand the English language, jnay he challenged by the State, and excluded, by tlie judge, although lie be a qualified elector and possess all the legal requisites to constitute him a good juror. The accused is not deprived of any right or privilege by excluding him from the panel.
    A juror who does not understand the language in which the proceedings are conducted, is as-much an unfit person to sit on the trial, as though he was infirm, or incapable oi rendering such services; and the State, as well as the accused, may have him excluded by challenge for cause.
    APPEAL from'the First District Court of the parish of Orleans.

      Abell, J. 8. J3elclen, Attorney G-eneral, for the State.

      A. (?. Seinmes, for defendant and appellant.
   Howe, J.

The defendant has appealed from a judgment by which he was sentenced to imprisonment at hard labor for the crime of forgery. The only point presented is by a bill of exceptions to the action of the judge below in sustaining a challenge for cause made ay the State to a juror who did not understand the English language, hut only German.

We do not think the court erred in excluding such a juror, and we find it difficult to imagine of what right or privilege the prisoner was deprived by such a ruling.

It is insisted oy counsel that the juror was a qualified and registered voter, and, as such, a qualified juror; and that, therefore, the prisoner was entitled to have him sit upon the the trial of this cause. It must be remembered, however, that, while all jurors must be qualified electors, all qualified electors are not necessarily qualified jurors in a particular case. A challenge for cause may exclude many jurors, otherwise embraced in the general terms of the law. Thus, a qualified elector may be challenged propter affectum, by reason of some supposed relationship, bias, or partiality, or previous formation and expression of opinion. A qualified elector may be challenged propter defectum, as if he be an idiot or lunatic, though not interdicted; or if he be laboring under an attack of mania a potu-, or if he be blind, in a case requiring an inspection of writings; or if he be deaf, or deaf and dumb. This right to challenge for cause does not spring from any especial provision of law, but from the general rule that the method of trial shall be according to the common law. R. S. 1870, § 976; Archbold, vol. 1, p. 548

Now a person who only understands German, and does not understand English, is no more capable of sitting as a juror in the First District Court of New Orleans, where the proceedings are conducted entirely in English, than if he were deaf and dumb. The accused might desire him, it is true; for -such a juror would always be bound to acquit, inasmuch as he could never be satisfied beyond a reasonable doubt of the guilt of the accused; but this very desire, if founded on such a reason, is one that can not properly be gratified. The State has some rights in a criminal court; and among them is certainly the right to have a jury composed of men who understand the language in which are conducted those proceedings by which, against the presumption of innocence, she seeks to establish a conviction of guilt.

The juror in this case had, it is true, the general qualifications named in the law. R. S. 1870, § 2125. lie was “ a duly qualified elector.” He was properly summoned and was bound to appear. But this does not deprive the State of the right to challenge for the cause assigned in this case, any more than in a case where a juror is a deaf mute. The right springs from the necessity of things and the general rule that the proceedings in criminal courts of this State shall be according to the common law

The case of Gay v. Ardry, 14 La. 288, a civil case, can not control the right of the State in a criminal prosecution.

We may observe that tlie statute, now in force relative to juries, seems to recognize the want of ability to understand the proceedings, from whatever cause, as an exemption, by exempting persons “ who may be infirm or inccvpdble of rendering such services.” R. S. 1870, § 2126. It is true that a reason for exemption is no ground for challenge, § 2131, but it is likely that the judge might have excused this juror without giving the prisoner any right to complain.

Judgment affirmed Rehearins refused.


author: Taliaferro, J.

text:
    3071.
    State of Louisiana v. Vicente Lemodelio.
    Evidence to show that a translator, selected to interpret the testimony of witnesses wno testify in a language not understood hy tho counsel, tho court or the jury, is incompetent, can not he admitted after verdict, on a motion for a new trial. The objection is too late, if not made during the trial.
    APPEAL from the. First District Court of New Orleans.

      Abell, J. Simeon Belden, Attorney General, for the State.

      Samibola & Duoros, for defendant and appellant.
   Taliaferro, J.

The defendant was convicted of the crime of manslaughter, and sentenced to imprisonment at hard labor in the penitentiary for the term of five years. He has appealed. After the verdict of the jury was rendered, the defendant moved for a new trial on various grounds, the chief of which is the rofusal of the Judge on the trial of the motion to receive evidence alleged by defendant to have been discovered after tlie trial bad taken place, and which was offered to show the incompetency of the translator employed by the court to translate correctly tho evidence of three witnesses, who testified on the trial of the case in a language not understood by the court, the counsel or the jury.

The case comes before us on a hill of exceptions to the ruling of the court rejecting the evidence offered to show this alleged incompetency of the translator. Embodied in tlie bill of exceptions are tlie reasons assigned by tbe judge for excluding the testimony. These are, “that the translator was called in this case at the instance of the defendant’s counsel- and accepted by tbe attorney general, and throughout the examination exhibited a full knowledge of the language of the witnesses, and, there being no objection raised either by the accused, who understood tlie language of the witnesses, or his counsel, to tbe competency of the translator, the court deemed it too late, upon a motion for a new trial, to inquire into his competency.”

We think the court properly refused to admit tho evidence. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.

Rehearing refused.


author: Wyi.y, J.

text:
    No. 2402.
    Succession of Lydia Robinson, deceased wife of John McClean.
    If a judgment has been rendered by? competent court, adjudicating community property to a surviving spouse, and neither -fraud nor snoliation *s shown, ’ts correctness can not he inquired into collaterally
    The mortgage creditor whose registry has the priority of date, is entitled to he paid first out of the proceeds of the sale of the mortgage property.
    APPEAL from the Second District Court, parish of Orleans.

      JDuvigneaud, J. JBudd & Grover and Breaux & Fenner, for appellants.

      G. Sehmiclt, for appellee.
   Wyi.y, J.

In 1864, Lydia Robinson, wife of John McClean, died, leaving three minor children and a succession consisting only of her share of the community property. Iler surviving husband was appointed natural tutor, and as such administered her succession.

On the twenty-first of October, 1867, the minors’ share of the community property was adjudicated to their natural tutor, John McClean, at $5806 73, being the estimated value of half the community property, after deducting the community debts. To secure to the minors the sum due them under this adjudication, John McClean gave a special moitgage in due form, on twenty-fifth February, 1868.

On twenty-first May, 1868, Henry Bitters, claiming to he a creditor of the succession of Lydia Robinson, on account of a debt due him by the community which existed between her and her surviving husband, John McClean, instituted a proceeding under articles 993, 994 and 1057 of the Code of Practice, and obtained a writ of sale, under which all the real estate belonging to the community was sold, except that specially mortgaged to the minors.

The proceeds of this sale, to wit: $4444, form the subject of the present controversy.

Morris, Wheeler & Co. claim to he paid out of this fund, on the ground that they are creditors of this succession, because their debí was also a debt contracted by the community of which the deceased was a member. J. Dejean also filed an opposition to the application of this fund to these creditors of the succession on the ground that the proceeds do not belong to the succession of Lydia Robinson, being the price of the sale of the individual property of John McClean, upon which a judicial mortgage existed in his favor for the sum oi $7087.

The court below maintained the rule of Dejean, and gave judgment in his favor for all the funds, after deducting the sheriff’s costs.

Prom this judgment Henry Bitters and Morris, Wheeler & Co. have appealed.

The first question to consider is, was the adjudication of the property to John McClean an absolute nullity or not 1 If it was an absolute mllity, of course the property sold belonged to the succession of Lydia Robinson, and her creditors are properly before the court demanding ,ts proceeds.

If, on the other hand, it be not an absolute nullity, the property at ;he time of the sale did not belong to the succession of Lydia Robinjon, and there are no funds of her succession to be distributed among ler creditors.

There is no fraud or spoliation shown to have been practiced in obtaining the adjudication, and it was rendered, by a court of competent jurisdiction, on the advice of a family meeting.

We think tlie judgment was not an absolute nullity, and that it jan not be attacked collaterally.

In Sanders v. Carson, Administratrix, 2 An. 394, it was held that the sorrectness of a judgment, adjudicating community property to a surviving spouse, rendered by a court of competent jurisdiction, in the absence of any proof of fraud or spoliation, can not be inquired into lollaterally.

It has not been questioned in this case by a direct attack.

The adjudication therefore transferred the property to John McClean. The creditors of the succession of Lydia Robinson have nothing whatsver to do with the funds derived from the sale of John McClean’s property. He has not complained of the illegality of the sale; and tlie question is, whether J. Dejean lias a greater i ight to the funds than Henry Bitters or Morris, Wheeler & Co., all being creditors of John Me Clean.

The judgment of Dejean was recorded prior to that of Morris, Wheeler & Co., and Henry Bitters does not appear to be a mortgage jreditor.

We think Dejean, having the first mortgage on the property sold, is mtitled to the funds.

Judgment affirmed.


author: Howell, J.

text:
    No. 3085.
    Louis Tregre v. O. Baudry—A. Miltenberger, Warrantor.
    &. defendant, 'who lias allowed bis lands to be seized and sold to pay Ids debts, can not afterward maintain a petitory action, for tlie recovery of tlie lands, against tlie purchaser, at judicial sale. Being divested of title himself by the sale, he is estopped from setting up liis title against the purchaser.
    APPEAL from the District Court, parish of St. John Baptist.

      Bauvais, J. Charles Longue, for plaintiff and appellant.

      St. Maurice Berault, Legendre & Foche, for defendant and appellee.
   Howell, J.

This is a petitory action by Louis Tregre against Omer Baudry, the overseer and manager of A. Miltenberger, called in war • ranty, for a plantation situated in tlie parish of St. John the Baptist. The facts, necessary to an understanding of plaintiff’s demand, are as 'follows: A. Miltenherger & Co., of which firm the warrantor is a member, obtained judgment in the United States Provisional Court for Louisiana against Louis Tregre for about $80,000, with a recognitions of mortgage, and caused the property claimed in this suit to be sold, and, at the sale on third June, 1865, A. Miltenberger became the purchaser for $27,000 cash, and has ever since held it. Tregre, the defendant in that suit, simply alleges in his petition, in this that he is the owner of the said land and improvements, by virtue of acts of purchase long prior to said suit, and that the defendant, Baudry, has, without authoritj’-, taken possession thereof, and' claims as owner. We are unable to understand how plaintiff can recover. The title set up by him was divested by the sale in the above named suit, and, being the defendant therein, he is estopped from- setting up his said title against the purchaser, warrantor in this action.

Judgment affirmed.


author: Wyly, J.

text:
    No. 3098.
    Heirs of J. B. P. Bourgeois v. Theophile Thibodaux.
    In a deed to a tract ol' land appeared the following clause: “ Tbe said purchaser reserving to himself the right, after having effected the payment of the first sixth part, to postpone the payment of the last five-sixths from year to year, indefinitely, in consideration of an annual interest of ten per cent, from the maturity of the respective sums or terms, whose payment shall be thus postponed, which interest shall bo exigible from year to year. In default of payment promptly, the whole capital to be exigible, as if there had been no stipulation for that delay.” Held — That the stipulations in the act or deed, postponing payments on the five-sixths indefinitely, on condition that ten per cent, interest was paid annually and the other conditions did not change the character of the act from that of a salo to that of a contract of rent, and, therefore, the vendor could not maintain an action for rent on the deed, in case the conditions were not promptly complied with.
    APPEAL from Third District Court, pari»li of Lafourche.

      Gates, J. Taylor & Beattie, for plaintiffs and appellees.

      Bush & Goode, for defendants and appellants
   Wyly, J.

In 1639, J. B. P. Bourgeois conveyed to Charles Aubert a tract of land in the parish of Lafourche for $12,000, payable in six installments during the month of March of each of the years 1840, 1841, 1842, 1843, 1844 and 1845, with the following stipulations stated in the deed, to wit: “The said purchaser reserving to himself the right, after having effected payment of the first sixth part, to postpone the payment of the last five-sixths from year to year, indefinitely, in consideration of an annual interest of ten per cent, from the maturity of the respective sums or terms Whose payment shall be thus postponed, which interest will be exigible from year to year, and, in default of its prompt payment, the whole of the capital will be exigible, as if there had been no stipulation for that delay. For the security of which payments and eventual interest, the property hereby sold remains by special privilege .affected, bound and mortgaged.”

* * a- c- * -a a- a-

“Before the signature of these presents, it has been agreed that it shall be lawful for the purchaser to pay by anticipation the price oí the present sale, notwithstanding the stipulation as to time aforesaid, the said Mr. Aubert having the right to a discount at the rate of ten per cent, per annum for each payment made by anticipation.”

The sum of $6000 of the principal of said consideration has been paid, and also all the interest due up to the thirty-first day of March, 1861, leaving still due the sum of $6000, and ten per cent, pier annum interest thereon from the month of March, 1861,

The defendant in this suit purchased the property under a judgment against the vendee, Charles Aubert.

The plaintiffs allege that by virtue of the said conveyance to Charles Aubert, a perpetual charge was imposed upon said tract of land for the payment of the said ten per cent, per annum interest, and that said incumbrance follows it into whosever hands the said property may pass. They allege that six years of said ten per cent, interest are due, amounting to the sum of $3600, which they have amicably demanded of the defendant.

The prayer of the petition is, that the defendant be cited to answer, “and, after legal delays and due proceedings had, that said tract of land, its improvements and appurtenances be sold to satisfy said sum of three thousand and six hundred dollars, with recognition of the change, incumbrance, privilege and mortgage, as aioresaid; and for general relief.”

The defendant avers in his answer that at sheriff’s sale, in 1866, ho became the purchaser of the property; that at said sale the sheriff read a certificate of mortgages, showing the superiority of the mortgage under which the sale was made to him, and also showing that said land was not subject to the charge or incumbrance claimed by tlic plaintiffs; that the deed declared on by the plaintiffs, was, in truth and in fact, a sale from the father of the plaintiffs to Charles Aubert, as intended and interpreted by the parties; and that the principal demand of the plaintiffs is barred by the prescriptions of one, three, five,'ten and twenty years, and the accessory demand, to Wit: the mortgage and vendor’s privilege have perempted by the lapse of ten years without roinscription and by the extinguishment of the principal obligation, which -•“scr-'ntions and neremntion the defendant specially pleads.

The court gave judgment in favo» of the defendant, and the plaintiffs have appealed.

The question is, what is tne cnaracter o.. tne instrument aeciaren on; is it a contract of sale or is it a rent charge®

If it be a contract of sale, tbe defendant is not liable because lie was-not a party to tbe act, and if tbe mortgage has pereinpted by the failure to reinscribe it within the ten years, the right to the hypothecary action does not exist in favor of plaintiffs against the defendant, as third owner and possessor of the mortgaged property. Indeed, the plaintiffs have not sought in this action to foreclose the mortgage on the property. The demand is simply to have the property subjected to a rent charge, which the plaintiffs claim to exist in their favor by reason of the deed declared on, and to cause it to be sold to pay the sums alleged t.o be due for rent since thirty-first day of March, 1861.

An. examination of the deed satisfied us that it is not a contract of rent; it is simply a sale with a potestative condition, whereby the purchaser acquired the right either to defer the payments, after the installments matured, by paying ten per cent, per annum interest, or to pay by anticipation the price at ten per pent, discount om each of the installments so paid by anticipation. But the purchaser was bound to pay the first installment before he could postpone the others from year to year by paying the ten per cent, interest. And it was specially stipulated in the deed that, “in default of the prompt payment of the interest annually, the whole of the capital will be exigible,, as if there had been no stipulation for that delay.” The moment, therefore, there was a failure to pay the interest, the whole debt became due — the deed stood as though there had been no stijmlation. for tha delay.

Can an instrument with such features be regarded as a contract of rent? “ The contract of rent for lands is a contract by which one of the parties conveys and cedes to the other a trace of land or any other immovable property, and stipulates that the latter shall hold it, as owner, but reserving to the former an annual rent of a certain sum of money or of a certain quantity of fruits which the other party binds himself to pay him.” C. C. 2750.

“It is of the essence of this contract that it bo made in perpetuity.'”' C. C. 2751.

In the instrument before us, we do not see the essential requisites of the contract of rent. The land is ceded and conveyed to the purchaser, but we do not see that it is made subject perpetually to the payment of “ an annual rent of a certain sum of money or quantity of fruits,” as required by the articles of the Code to which we have referred. In the succession of Canonge, 1 An. 210, the question was before the court, and it was held, that “it is of the essence of the contract that it conveys the property in perpetuity; that the rent reserved is a charge imposed upon the property itself, which is inherent in it, to which it is perpetually subject, and which follows it into whatever hands it may pass.” C. C. 2752, 2758, 2763.

Can it be said of a party who has already received half tbe price of tbe sale of bis land, and who bad a cause of action to recover tbe other half on the thirty first of March, 1862, when tbe condition for extension of payments was violated, that he stands before the court on tbe deed which gave him these rights, not as a vendor, but simply as a renter of ground ? The proposition is too plain for argument.

Let the judgment of tbe court below be affirmed, with costs.


text:
    No. 2873.
    Succession of Milton Taylor.
    A dativo testamentary oxecutor, who has been appointed, according to the laws of another State of the Union, in place of tho executor named in the will, who declines to serve, can not be appointed dative testamentary executor to administer property of tho succession situated in this State. In such a case the public administrator for the parish where tho property, belonging to the succession, is situated, must be appointed to administer it. Revised Statutes of 1870, section 3677.
    APPEAL from the Second District Court, parish of Orleans.

      Thivigneemd, J. D. O. LábcUt and J. Aroni, for appellants.

      Hays t& Heiv, ■for appellees.
   Wyly, J.

This is a contest for tbe office of dative testamentary •executor of the last will of Milton Taylor, deceased.

On the thirtieth March, J870, John J. Rickey applied for tbe appointment of dative testamentary executor, alleging in bis petition that Milton Taylor, late of Kentucky, died in Cincinnati, Ohio, leaving bis will, which was probated on tbe twenty-sixth November, 1869, in the probate court of tbe county of Hamilton, State of Ohio, and tbat be was there appointed dative testamentary executor, tbe executor named in the will having declined to act. Tbe prayer of bis petition is, “tbat tbe will annexed be duly admitted to probate; that after due notice be be appointed and confirmed as dative testamentary executor of said succession, and that letters issue to petitioner according to law.” * ® * * * * *

On tbe same day tbe will was admitted to probate and ordered to bo executed by tlie Second District Court, parish of Orleans, and tlie application for letters of dative testamentary executorship was ordered to be advertised according to law.

Tlie public administrator of tlie parish of Orleans, appointed under act No. 87 of the acts of 1870, intervened and was appointed dativo testamentary executor by tlie court on tbe eighth of April, 1870.

Thereupon tlie counsel for the foreign dative testamentary executor moved to set aside tbe order, appointing the public administrator, on tbe following grounds:

First — Tbat the applicant herein was duly appointed and sworn •dative testamentary executor of the last will of the deceased by tbe probate court of a sister State, and is here present, praying to be recognized and confirmed as sucli under the comity of States and the Constitution of the United States,• and that this succession is not contemplated or embraced by the provisions of the act, appointing a' public administrator, and his interference therein is not authorized by law.

Second^-'That the provisions of the said act must be construed strictly, being in derogation of common right, and were clearly intended to apply to cases, where there was no one willing to act as executor; that it was not intended to, and does not, impair the right of foreign executors to be recognized, as they have the right to be under the settled jurisprudence of this State.

Third — That the act of the Legislature and the appointment of the public administrator are subsequent in date to the decease of the testator and the appointment of the applicant herein by the probate •court of a sister State, and can not be retrospectively interpreted so as to interfere with his administration of an ancillary succession.

The court refused the motion to set aside the appointment of the public administrator, and the foreign dative testamentary executor has appealed.

An examination of the Statute of 1870, “providing for the appointment of public administrators and defining the duties of the same,” and an examination of the record satisfy us that the district judge decided the case correctly.

The third section of the act referred to provides: “That in all testate successions, when, from, any cause, the executor can not discharge the duties of his office, tlie judge shall appoint the public .administrator of the parish dative testamentary executor.”

The ninth section repeals all laws on the same subject matter inconsistent with this law.

The application of tlie foreign dative executor shows that.the •executor named in the will has refused to act. It is, therefore, a testate succession, for which the law, in precise terms, has appointed a legal representative.

Where a person dies, leaving property in two or more States, his property in each State is considered a separate succession for the purpose of administration, the payment of debts and the- decision of claims of parties asserting title thereto; and the power of administrators, appointed in different States, extends only to the limits of the sovereigns creating them. 17 An. 15.

The successions of persons, domiciled out of the State of Louislana and leaving property in this State at their demise, shall be •opened and administered upon as those of the citizens of the State, •and the judge before whom such succession shall be opened, shall pro-need to the appointment or confirmation of the officer to administer it ■under the name and in the manner pointed out by the existing laws.” Revised Statutes of 1870, section 3677.

If all testate successions where, from any cause, the executors named in the wills do not act, are to be administered by the public administrator, and all successions of persons, domiciled out of the State, are to be administered upon, as those of the citizens of the State, and all laws on the same subject matter, conflicting therewith, are repealed, how can the foreign dative testamentary executor be appointed by the court?

Where a dative testamentary executor has to be appointed, thé law makes it the duty of the judge to appoint the public administrator, and repeals all laws in conflict therewith on the same subject matter.

The language of the law is not ambiguous; there is no room for construction, and we are not permitted to disregard its letter under pretext of pursuing its spirit. C. C. 13.

It will hardly be contended that the dative testamentary executor of the succession in Ohio is an officer of court, authorized to administer the succession in Louisiana.

We do not see in the record that the judge has made a retrospective application of the act of 1870, as complained of.

The act took effect on the fifth of March, 1870; the petition of the foreign dative executor was filed on the thirtieth of March, 1870. At the time the foreign dative testamentary executor applied to be appointed dative executor of the Louisiana succession, the law of this' State made it the duty of the judge to appoint to that office the publie administrator. I-Ie did so, and we think his appointment valid.

Judgment affirmed.

Rehearinv refused.


text:
    No. 3105.
    Succession of Thomas Supple.
    The «appointment of the public administrator to take charge of a succession, pending a contest for the administration, is provisional only, and the public administrator is •without authority, nor can the court that has made the appointment, authorize him to sell the property or pay the debts of the estate.
    APPEAL from the Parish Court of Assumption.

      Be Blanc, Parish Judge. Meholls <& Folse, for appellants.

      Carver <&_ Sims, for appellee.
   Howell, J.

The widow of the deceased, after having been confirmed as natural tutrix to the minors, applied for letters of administration. This application was opposed by R. N. Sims, who asserted a better right to the appointment; whereupon the public administrator applied for, and obtained, the appointment under the second section of article No. 87, of 1870, which provides: “ That, in all contestations for the administration of estates, tlie judge of the court in which the succession is open, shall appoint the Public Administrator of the parish to administer the same, until a final decree determines the rights of the respective claimants.”

' Soon after this he presented a petition for, and obtained, an order to sell all the property of the succession for the purpose, as he alleged, of paying the debts. Prom these two ex parte orders the widow and tutrix appealed.

The appointment of the public administrator seems to be clearly authorized by the above section, as the condition for the same then existed — a contestation for the administration of the estate. The second order was improvidently granted. The fact that the law directs the appointment to be made until a final decree determines the rights of the respective claimants, necessarily implies that it is provisional only, and the public administrator so appointed has only the powers of a provisional administrator, and not those necessary to settle up the succession. If he were authorized to sell the property and pay the debts, the contestation for a permanent appointment might be vain and fruitless. “Lex neminem cogit act vana sen inutilia.”

It is therefore ordered that the decree appointing II. L. Swords, the public administrator, to administer this succession pending the contestation for the appointment of a permanent administrator, be affirmed. And it is further ordered that the order of fourteenth November, 1870, decreeing a sale of all the property of this succession for cash, be set aside and annulled; the costs of said order and of this appeal to be paid by II. L. Swords, appellee


author: Ltjdeling, C. J.

text:
    No. 2628.
    A. D. Voisin et als. v. T. J. Leche et als.
    Private citizens of a municipal corporation can not enjoin officers from the discharge of their duties, nor can they contest or inquire into their right to the offices by writ of quo warranto, even though they bo taxpayers.
    fu a proceeding by quo warranto to test the right to an office, no person not disclosing an interest in, or right to, the office, can be heard in the contest. 14 An. 506; Act oi 1808, p. 197.
    APPEAL from Second .Judicial District Court, parish of Jefferson.

      Pardee, J. A. W. <& IT. K. Ogden, for plaintiffs and appellants.
    JR. King Cutler and G. G. MsJo, for defendants and appellees.
   Ltjdeling, C. J.

Sixty-three private individuals, alleging themselves to be citizens and taxpayers of the city of Jefferson, instituted this suit against the Mayor and Councilmen of the city of Jefferson to have them declared usurpers and to oust them from their offices, and obtained an injunction to restrain the defendants from exercising the. functions of said offices.

The exception that the petition contained no cause of action, was ^sustained by the court a qua, and the injunction was dissolved. The plaintiffs have appealed.

We liave not been referred to any law which authorizes private citizens, because they pay taxes, to enjoin de facto officers of a muni-' cipal corporation from exercising the functions of their offices, or to bring an'action of quo warranto, and we know of none. In the case of the State v. Mason, 14 An., p. 506, tliis court said: “It appears reasonable that no one but a person, pretending to have a right to an office, should be permitted to contest the right of the incumbent of that office. If each citizen be entitled to do so, then a hundred or a •thousand writs of quo warranto could be sued out.”

The statute of 1868, p. 197, of the session acts, provides the remedy for proceeding against those who usurp, intrude into, or unlawfully hold or exercise public offices.

It is therefore ordered that the judgment of the District Court be .affirmed with costs of"appeal.


author: Ludeeing, C. J.

text:
    No. 2511.
    Adele Gernon, wife of James G. Gernon, v. Josephine Dubois, wife of Thos. J. Horrell, et als.
    Tr> a suit for interdiction, tlie defendant, who is charged with insanity or mental unsoundness, must ho notified in person. He can not he cited through a curator ad hoc. 16 Id 67. 'The more application to have a person interdicted does not revoke or in anywise aííect a power of attorney given hy him.
    An agent, holding a full power of attorney to do everything in relation to the property and rights of his principal which occasion may require, may represent his principal in a demand against a succession of which ho (the agent) is a co-executor.
    APPEAL from the Fifth District Court for the parish of Orleans.

      Leatimont, J. Semmes & Mott, for plaintiff and appellee.

      Soselius ■cié Philips and Hays c£ Hen), for defendant and appellant.
   Ludeeing, C. J.

This suit is brought to annul a judgment rendered, iu favor of Almira Dubois, executrix of the last will and testament of •Oliver Dubois, against William Mish, by the Fifth District Court of Now Orleans, on the seventeenth of June, 1865, for $10,761 68, with eight per cent, per annum interest from the first of June, 1859, until 'paid. The alleged grounds for annulling the judgment are:

Pirst — That the power of attorney to McClellan (on whom citation ' was served) did not authorize him-to stand in judgment as a defendant. Second — That McClellan, being executor of Dubois, as well as the agent of Mish, occupied a position which debarred him from representing Mish in a matter in which the estate of Dubois wTas interested, and his conduct was collusive.

Third — That the power of attorney of McClellan was revoked hy the insanity of Mish and the proceedings for his interdiction in the Second District Court, of which McClellan was cognizant, and that he colluded with Mrs. Duhois to conceal from the Fifth District Court {which rendered the judgment) the previous action of the Second and Third District Courts.

For answer, the defendants denied all the allegations in the petition; they alleged that the proceedings in the Second District Court were .absolutely null and void, coram non judice; and that the plaintiff and her husband have acquiesced in the judgment and recognized its validity.

The substance of the allegations of the plaintiff is, that Mish, the ■debtor, was not legally cited.

We think the proceedings in the Second District Court, fortheinter■diction of Mish, were null and void, because he was never cited. His domicile was New Orleans, and he could not be sued there by the appointment of a curator ad hoc. The law does not authorize the appointment of a curator ad hoc in such a case. Article 391 [384] C. <3. directs that the interdiction may be solicited by any stranger, ■or pronounced ex officio by the judge, after having heard the counsel oj the person whose interdiction is prayed for, whom it shall be the duty ■of the judge to name, if one he not already named hy the party." This court held, in Stafford v. Stafford, 1 M. N. S. 551, “that the party, ■souyht to he interdicted., must he notified." And, in Segur v. Pollerin, this ■court said. “It is alleged that Pellerin is over twenty-one years of age; and it is sought not only to deprive him of the control of his property and person, but to hold him up to the world, as an idiot or a maniac, without his over having any notification of it. Such a doctrine would put many eccentric but sensible men completely at the mercy of any one who, through malice or error, might commence proceedings to interdict them.” 16 La. 67.

Even if there had been a notification to Mish, there-never was judgment of interdiction pronounced; and the mere institution of the suit did not suspend or revoke the power of attorney to McClellan. C. C 3027 [2996

We can not perceive the force of the objection that McClellan, the agent of Mish, could not be cited to defend a suit instituted by Mrs. Dubois, one of the executors of Oliver Dubois, because ho was a co-executor. There is no evidence of collusion; nor is it alleged that any just defense existed against the plaintiff’s claim, which ho neglected to make,

A careful scrutiny of the- power of attorney to McClellan satisfies us, that Misil intended to confer upon his agent ample power to do everything in relation to his property and rights which occasion might require, either for the protection or alienation of his property, to borrow money, grant mortgages, execute notes, make settlements of debts due by him by compromise, arbitration or otherwise, and. to appear in courts for all purposes and to do and perform whatever he himself could do, if present.

Furthermore, it appears from the record, that the plaintiff has acquiesced in the judgment by paying a part of it. This involved a renunciation of the means and exceptions that might have been opposed to the payment. C. P. 612, 567; C. C. 2252; 2 La. 265, Fluker v. Lacy; 4 Rob. 127.

It is therefore ordered and adjudged that the judgment of the District Court be avoided and annulled, and that there be judgment in favor of the defendant, rejecting the plaintiff’s demand and dissolving the injunctions, with ten per cent, on the amount of the judgment, as general damages. It is further ordered that the plaintiff pay the costs of both courts.


text:
    No. 2186.
    F. P. Martinez v. The New Orleans City Railroad Company.
    In a caso where the transcript of appeal is incomplete, on account of the record not containing ' the evidence offered on trial in the court a qua, and the fault is not imputable to the appellant, the cause will be remanded for a now trial do novo.

    APPEAL from the Sixth District Court, parish of Orleans.

      JDuplantier, J. Cotton & Levy, for plaintiff and appellee.

      William M. Hunt and L. A. Bradford, for appellants.
   Ludeling, C. J.

On the application of the defendant, and upon proof that the transcript of appeal did not contain any portion of the testimony of the witnesses who were sworn and examined and who gave their testimony in the case upon the trial thereof, and that the same was reduced to writing, a mandate of this court was issued, addressed to the clerk of the Sixth District Court, directing him to correct the transcript or show cause why he could not do so.

In obedience to this writ, the clerk of the Sixth District Court has certified that the testimony, taken and reduced to writing in the case, can not be found, although strict search has been made, and that the evidence was not in the clerk’s office at the time when the transcript of appeal was made.

It is impossible to examine the case, on its merits, without having before us the evidence upon which it was decided.

The fault for this condition of the case does not appear to be attributable to the appellant, and justice demands that the case should be remanded for a new trial.

It is therefore ordered that this case be remanded to the court a qiia, to be tried de novo.


text:
    No. 2904.
    State ex rel. Coons v. The Judge of the Thirteenth Judicial District.
    The application of a party to remoro a canse to tlio next Circuit Court of the United States, is analogous to a plea to the jurisdiction of the State court, and, wlion granted, tbe party against whom it is taken, has the right to appeal. The case -would be different, if tho application to remove is refused by the court a qua. In tho latter case no irreparablo injury would follow, and the appeal would not bo allowed. Rosonfield v. Adams Express Company, 21 An. 233.
    A mandamus will therefore issue, on application, from tho Supreme Court directing the Judge of the District Court to grant an appeal irom an order transferring a cause to the Circuit Court of the United States, if the case is in other respects appealable.
    APPLICATION for Mandamus.

      Thomas J?. Farrar, for relator. Wade II. Hough, Judge, respondent.

      A. F. & H. H. Ogden, of counsel for the Judge.
   Howe, J.

The case of Martin Cobb & Co. v. Coons was commenced in February, 18G7, in the District court of Madison parish. On the sixteenth day of May, 1870, Thomas J. Martin filed a petition, verified by his affidavit, stating that he is one of the plaintiffs, that he is sole owner of the claims in suit, that ho resides in the State of Kentucky, and that he lias reason to believe, and does believe, that from local influence and prejudice he will not be able to obtain justice in this .(the district) court. He prayed that the.cause might be removed, to the Circuit Court of the United States, under the provisions of the act of Congress of March 2, 1867. His co-plaintiffs did not join in this request, nor did he state that he or they are citizens of any other State than Louisiana. 18 Howard, 137.'

The judge granted the order of removal, and on the day following the defendant, Coons, applied for a suspensive appeal, which was refused, and thereupon a mandamus was applied for.

We had occasion to say in the case of Rosenfield v. the Adams Express Company, 21 An. 233, that an application to remove is analogous to a plea to the jurisdiction, and that, if granted, an appeal would lie. The remark was, perhaps, not entirely necessary to the decision oi that case, but we do not find any reason, on the most careful examination, to doubt its correctness.

In Beebe v. Armstrong, 11 Martin, 440, this court entertained suen an appeal, and reversed the order of removal. In Duncan v. Hampton, 12 Martin, p. 92, a similar appeal was entertained, and the question of the right of appeal seems to have been discussed; for, alluding to a difference of opinion on the merits, Judge Matthews said: “As we are unanimously of opinion that the judgment (of removal) rendered by the District Court is a decision from which an appeal ought to be sustained, it is unnecessary to investigate that part of the cause.” J udge Martin was in favor, on the merits, of reversing the order of removal. In 4 N. S. there are three cases where similar appeals were entertained: Louisiana State Bank v. Morgan, p. 344; Fitz v. Hayden, p. 653; and Fisk v. Fisk, p. 676. In tlie first of these the order of removal was. reversed. In Higgins v. McMicken, 6 N. S. 712, the court declared that it had several times entertained jurisdiction of such appeals, and. added:

“Such decisions or judgments were properly considered, as final, in consequence of sustaining the petitions for removal. A request to change the jurisdiction of a suit from a State court to one of the United States, under the law of Congress, is analogous to a plea to the jurisdiction of the court in which the proceedings commenced; and, when, a removal is ordered, the plaintiff would be without remedy against, such order, unless by appeal.”

In Stoker v. Leavenworth, 7 La. p. 390, a similar appeal was entertained, and the “judgment” of removal affirmed; and the same action-was had in Franciscus v. Surget, 6 Rob. 33.

We cannot undertake to disturb this well settled jurisprudence.

It is therefore ordered that the mandamus issued herein be made-peremptory.


author: Howe, J;

text:
    No. 2903.
    State ex rel. Towne v. The judge of the Thirteenth Judicial District.

      On Application for Mandamus

   Howe, J;

The reasons, given in the case of State'ex rel. Coons v.. same respondent, apply equally to this.

It is therefore ordered that the mandamus issued be made peremptory


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    No. 2011.

    John Rooney v. Miss Mary A. May.
    Tlie certificate of tlie surveyor of a municipal corporation, that public work, in making* wooden curbs and gutter with planks, under a contract with the corporation, is done in. accordance with the specifications, may be rebutted and overthrown by the testimony of witnesses to the contrary.
    APPEAL from the Seventh District Court for tlie parish of Orleans.

      Oollens, J. George L. Bright, for plaintiff and appellant.

      0. Rodney May and A. N. (6 M. M. Ogden, for defendant and appellee.
   Ludeling, C. J.

This is an action to recover the price of work done on the front of defendant’s property, under a contract with the-City of Jefferson, for making wooden curbs and gutter with planks, om Peters avenue, between Magazine street and St. Charles avenue.

The defense substantially is, that the work was not done in accordance with the specifications of the contract.

There was judgment in the lower court in favor of the defendant,, and tlie plaintiff has appealed.

We think the evidence establishes this defense. The presumption-in favor of the correctness of the surveyor’s certificate is fully rebutted by the testimony of several credible witnesses, who saw the materials before they were used in the work, and who have carefully examined the work since its completion. John Omond swears: “My occupation is a carpenter for the last thirty-eight years. I examined the lumber rrsed in the curbing in front of Miss May’s property, to-day. Some of the lumber is good, and some is bad and peehy and rotten. The lumber1 could never have been fit for this purpose, and never could have been first class lumber. I know the difference in lumber. It is the soft cypress, which is not fit for any such purpose. It is a low priced cypress. In a private eontraet, I would not like to try such lumber in filling out the contract. It is not salable- as third quality lumber.”' Being asked, if the lumber would not last a reasonable time, he answered: “No, sir; half of it is rotten now. The curbing is done in a pretty good style for rough worx, but the gutter bottom is not fast; the first flood would take it away.”

Thomas S. Elder says: “Considerable portion of it. (the lumber) was pecky and rotten, and had knot holes in it.” * * * “I can buy such lumber for half the price of first quality lumber. The work is done very rough; have never seen any such work done elsewhere.”

The same facts were substantially proved by other carpenters and by an architect, W. Thiel, all of whom, from their calling and experience, we may infer, were competent experts.

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


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    No. 3049.
    State ex rel. Beebe v. The Judge of the Second-District Court, Parish of Orleans.
    After a suspensive appeal has been granted and the bond lias been given and filed, the jurisdiction of tho judge a quo over the case is limited to testing the solvency and sufficiency of tho surety on the bond. 21 An. 152
    Tho judge a quo is, therefore, not competent, after he has granted a suspensive appeal and fixed the amount of the bond, to make an order declaring the appeal devolutive only on the ground that the bond is insufficient in amount for a suspensive appeal. But the remedy of the appellant in such a case is by a -writ of prohibition, and not by mandamus. 21 An. 113.
    APPLICATION for a Writ of Mandamus.

      Fellows & Mills, for relators.

      Louis JDuvigneaud, Judge, respondent.
   Howe, J.

Luc Beebe obtained a judgment against the succession of Charles Beebe, recognizing him as sole heir of Manette Dubreuil and decreeing the whole of the property contained in the inventory of the succession to be assets of the partnership, existing theretofore between Manette Dubreuil and the late Charles Beebe and Luc Beebe, as her sole heir, entitled to her share thereof, and directing the parties to proceed to a partition. William Beebe, tbe administrator, applied for, and obtained, a suspensive appeal upon condition, of giving a bond for three hundred dollars, which was accordingly given. Some days after, Luc Beebe took a rule to dismiss the appeal on the ground that the bond was insufficient (in amount) to suspend the judgment. This rule was made absolute so far as to declare the appeal a devolutive and not a suspensive appeal.’

Thereupon, the administrator, William Beebe, relator herein, applied to this court for a mandamus to compel the judge to grant a suspensive ajipeal from the original judgment and to restrain him from further action, etc. A rule nisi was issued.

It seems clear that the judgment above recited is not one, the appeal from which is regulated by articles 575, 576 or 577 of the Code of Practice. It is not for a specific sum, nor for the delivery of a movable, nor does it decree the delivery of real estate. See State ex rel. Hickey v. Judge Fourth District Court, 29 An. 108. Following this decision, we must think that the bond given was sufficient to cover costs and so to suspend proceedings. If, therefore, the respondent had a right to take any step in the case, beyond testing the sufficiency of the surety, 21 An. 152, 113, he erred in' declaring the appeal to be merely devolutive.

But the relator lias mistaken his remedy, which should have been the obtaining of a prohibition. He does not need another suspensive appeal. State ex rel. Johnson v. Judge Fifth District Court, 21 An. 114.

It is therefore ordered that the application for the mandamus be dismissed at relator’s cost, reserving to him the right to proceed, if necessary, by prohibition.


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    No. 2165.
    Lafitte, Dufilho & Co. v. Paul N. Rivera.
    An obligation to pay a certain amount in gold dollars can not be discharged by paying a like sum in United States treasury notes, although such notes be a legal tender. The Supreme Court of the United States having decided that such contracts can only be legally discharged by their payment in gold, the courts of Louisiana will follow their decisions and give judgment in gold. 7 TTal. 229, 529 ; 3 TPal. 609.
    . The judgment must, however, be given for gold and not for its supposed equivalent, predicated on the market value of gold, when compared with treasury notes at the date of the contract.
    APPEAL from the Fourth District Court, parish of Orleans.

      Theard, J. A. L. Tissot, for plaintiffs and appellants.

      Lambert & Murphy, for defendant and appellee.
   Ludeling, C. J.

On the twelfth of January, 1869, Lafitte, Dufilho & Co., the transferrees and holders, instituted suit against the acceptor ou the following bill of exchange :

“Paris, le 14 Octobre 1867. — Bon pour dollars en pieces d’or, $962 59. Au premier Janvier 1869 payez par cette seule de change, a l’ordre. de nous-mémes, la somme de nenf cent soixante-deux dollars cinquante-neuf cents, en pieces d’or, valeur regue en marchandises. que passerez suivant l’avis de Monsieur P. N. Rivera.

Par procuration, MAYAND ERERES,

A. CONSTANTIN.”

The plaintiff also obtained an attachment against the property of the defendant.

The attachment was dissolved and judgment was rendered against the defendant for $1266 56, in United States treasury notes, the equivalent of $962 59 in gold at the rate of exchange of the day. The plaintiff has appealed from the judgment dissolving the attachment, and the defendant has appealed from the judgment against him.

The evidence in the record fully sustains the order dissolving the attachment

We must regard the question presented on the merits, whether an obligation to pay a sum in gold dollars can be satisfied by paying a like sum in treasury notes, as settled by the decisions of the. Supreme Court of the United States in the cases of Bronson v. Rodes, 7 Wallace, 229, and Butler v. Horwitz, 259; Hepburn & Griswold, 8 Wallace, 609. The judgment should have been for the sum specified, with interest, in gold.-

It is therefore ordered that the judgment of the district court bp sot aside; that there be judgment in favor of plaintiffs against the defendant for nine hundred and sixty-two dollars and fifty-nine cents, with five per cent, per annum interest thereon from the sixth January, 1869, till paid, in gold, and the costs incurred in the lower court, except those occasioned by the attachment. It is further ordered that the plaintiffs pay the costs of appeal.


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    No. 3097.
    Mrs. E. G. Miller, Executrix, v. Franklin Curtis et al.
    In this case a broker liad entrusted to him the sale of a plantation in the parish of St. James. The purchaser, Curtis, was informed by the broker of the terms of the sale, which included the brokerage of two per cent, on the price to be paid by the purchaser. Curtis-joined another party with him in the purchase, who knew nothing of the agreement to pay brokerage. Held — That this fact did not lessen his liability to the broker.
    APPEAL from the Fourth. Judicial District Court, parish of St. James.

      Beauvais, J. Alfred Boman, for plaintiff and appellee.

      Legendre c& Boche, for defendants and appellants.
   Ludeling, C. J.

This is a suit by the executrix of G. W. Miller, a real estate broker, for his commission for negotiating the sale of “ Longview Plantation,” in the parish of St. James.

The petitioner alleges that the said G: W. Miller was entrusted with the sale of the, plantation by the owner under the stipulation that the purchaser should pay the brokerage of two per cent, on the price to be obtained; that Curtis, having been informed of the price and conditions of the sale, agreed to them, and subsequently he bought the plantation with another person.

The defendant admits that he and one Ball bought the place; that he had negotiated for it with Miller, but he denies that he agreed to pay the brokerage.

The evidence establishes the claim of the plaintiff. The fact that Mr. Curtis joined another with him in the purchase of the plantation, does not lessen his liability to the broker.

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


text:
    No. 3093.
    Pierre Daigle v. Alexander Lirette.
    The District Courts have original jurisdiction in all cases (not probate) where the amount-involved is above five hundred dollars, exclusive of interest, without reference to the defense which may be urged against the claim. Constitution, article eighty-five.
    Therefore the District Court has jurisdiction ratione materia; in a damage suit where one thousand dollars are claimed, although the verdict of the jury only awards one hundred dollars. ‘
    APPEAL from the Third District Court, Parish of Terrebonne.. Train, J.

      J. Ayeoclc, for plaintiff and appellee.

      Bush & Good,. .for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment against him. for damages founded on the verdict of the jury.

The petitioner prays for one thousand dollars damages for trespass,, committed by the defendant in cutting wood off his land. The verdict of the jury and the judgment, however, are for only one hundred dollars.

The damage being less than the amount claimed, tne defendant insists-that the district court was without jurisdiction ratione material. The amount in dispute is the amount for which the plaintiff prayed judgment, whether there was a good defense to it or not. The court may have jurisdiction even though the petitioner fails entirely to prove Ms demand. Article eighty-five, of the Constitution of 1808, is very plain. It says: “The district court shall have original jurisdiction in all civil cases when the amount in dispute exceeds five hundred dollars, exclusive of interest.” ********

The case was properly a jury case, and we find their verdict supported by the evidence. It should therefore remain undisturbed.

Judgment affirmed.


text:
    No. 2028.
    Bostick & Seymour v. J. R. Shannon.
    . A, the judgment creditor of B, caused a lot of tobacco in a warehouse to he seized, as tki property of his debtor. C, a third party, intervened and claimed the property. The facts elicited on trial show that B was the agent 'of C; that he had offered to sell the tobacco, and pointed it out to two brokers for that purpose; that A, being nresent when i1 was offered for sale as B’s property, caused it to be seized.
    C, the intervenor, showed a bill of sale of the tobacco, the warehouseman’s receipt, and the authentic act constituting 33 her agent.
    Held — That the evidence of tho brokers that B engaged them to sell the tobacco, which was pointed out to them in tho -warehouse as B’s property, was insufficient to overthrow the title of C, as established by tho bill of sale and the warehouseman’s recoipt; that the agent was under no obligation to disclose his capacity to the brokers, when he applied to them to have the property sold.
    APPEAL from the Fourth District Court, parish of Orleans.

      Iheard, J. IT. IT. Oohen, for plaintiffs and appellees.

      H. & H. Marr, for opponent and appellant.
   Howell, J.

On the fourth June, I860, plaintiffs obtained judgment against the defemlauts for $535 10, with legal interest from ninth June, 1882, andón tho twenty-first June, 1866, seized a lot of tobacco, in the warehouse of one D. Morgan, as the property of defendants. Thereupon Mrs. M. G. Kuorr enjoined the sale on the ground that tho property belonged to her. On the trial she introduced the receipt of the warehouseman in her name, lor the same tobacco, dated June 3, 1866, the correctness of which is attested by Morgan, who says the body of the receipt is in the handwriting of Shannon. She also introduced a bill for the purchase of said tobacco, made out in her name, dated April 3, 1866, and receipted by the vendor. It seems that this bill had been dated at Madison, and the words, New Orleans, written over it. Shannon acted for her in the handling of this tobacco and delivering it to Morgan “for storage and sale,” under a full and formal power of attorney, passed before a notary public, on twenty-first October, 1865.

To rebut this evidence the plaintiffs offered the testimony of a broker to the effect, that he was authorized by another broker, in the presence of Shannon, to sell this tobacco; that he offered it for salo as Shannon’s property, went with the party to the warehouse and asked for Shannon’s tobacco, and was shown this lot; the testimony of one of the plaintiffs, that, having heard it offered by the broker as Shannon’s property, he went with a deputy sheriff to the warehouse, asked for Shannon’s tobacco, was shown this lot, and caused it to he seized, and he believed the receipts in evidence, from their appearance, were ante-dated; and the testimony of another witness who also believed said receipts were ante-dated.

While these circumstances may have led plaintiffs to believe that Shannon was the owner of the property, yet they are not sufficient to outweigh the evidence in support of intervenor’s title, as shown by the warehouseman’s receipt, her bill of purchase and the agency of Shannon.

An agent or factor may not always disclose the name of his prin- . cipal, when endeavoring to sell property for the latter. And it is observable, that Shannon is not shown to have claimed or even admitted, that this tobacco belonged to him. The broker who testified does not expressly say that he spoke of it as Shannon’s property in his presence, but only that he and another broker spoke of selling a lot of tobacco, then in Morgan’s warehouse and there shown to him as Shannon’s. None of the witnesses appear to have been examined in presence of the judge a qiio, who gave judgment in favor of plaintiffs. The evidence brings us to a different conclusion.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of Mrs. M. G. Knorr, declaring her to be the owner of the tobacco seized herein, and that the same be restored to her, with costs in both courts.


text:
    No. 1992.
    C. Case, Receiver, etc., v. J. W. Cannon and D. C. McCan.
    ■Obligations, acquired subsequently to tlie insolvency, can not be pleaded in compensation by the debtor of the insolvent.
    Where judgment has been given in the court below for more than is demanded in the petition, it will be reduced on appeal to the amount demanded, and the plaintiff will be condemned to pay the costs of the appeal.
    APPEAL from Fifth District Court, parish of Orleans.

      Leamnont, J. George L. Bright and J. I). Bovse, for plaintiff and appellee.

      II. T). Stone, for defendant and appellant
   Howell, J.

This is a suit against the maker and indorsor of a promissory note for $5000, the defense to which is the idea of compensation, based on three drafts, amounting, as set out in the first answer, to $5077 42, and in the second to $2831 84, drawn by the First National Bank of New Orleans on the Fourth National Bank of New York

On the second trial, in the court below, judgment was rendered against Cannon alone for $7000, from which he has appealed. It is suggested that this is the judgment which was rendered in the suit of Case, Receiver, etc., v. J. W. Cannon, No. 18,157, on docket of the lower court, and improperly copied into the record of this suit, having the number 18,574, of said docket, and in the answer to the appeal we are asked to render judgment, as prayed for below, against both defendants in solido. The objection to this is, that if such error exists, one of the defendants, McCan, is not before us, except as appellee, and we can not amend a judgment as between appellees. Plaintiff should have appealed so as to have the parties properly before us. The plea of compensation is not sustained. It is shown by defendant Cannon’s vendor, that Cannon acquired these drafts after the bank failed; and there is in the record an admission, “that the First National Bank stopped payment on the thirteenth May, 1867.” Defendant alleges that he acquired the drafts on the fourteenth May, 1867. After this failure the debtors and creditors of the bank could do no act to change their relations to the bank so as to affect in any manner the pro rata distribution, to be made between the creditors. See 13 U. S. Statutes at large, p. 114, § 50. It is well settled that compensation can not be pleaded in cases of insolvency, when the debtor of the insolvent acquires the claim proposed to bo compensated subsequently to the failure of the insolvent. 2 L. 82; 14 L. 556; 2 An. 459; 6 N. S. 66; 3 N. S. 29 ; 1 N. S. 481.

The admission of defendant in the record sufficiently fixes the condition of the bank in this instance to apply this principle. The judgment, however, should bo reduced to the amount claimed.

It is therefore ordered that the judgment appealed from be reduced from $7000 to $5000, with five per cent, interest from June 5, 1867, and $3 30 costs of protest and costs in the lower court, and that, as thus amended, the said judgment he affirmed, costs of apneal to be paid by plaintiff and appellee.

Howe, J., recused.


author: Howeix, J.

text:
    No. 2225.
    A. B. James v. Fellowes & Co.—J. Hernandez, Appellant.
    A motion to dismiss an appeal which is founded on tlie want of a legal right to the appeal, may he made at any time. It is only such motions as go to the irregularity of bringing up the appeal, that must be made within three judicial days from the filing of the transcript in the appellate court.
    After the appeal has boon granted and the bond has been filed, the court a qua is without jurisdiction to examine whether the appellant has acquiesced in the judgment, and, therefore, not entitled to the appeal. In sncli a case, the appellate court being vested with jurisdiction of the appeal, and the court a qua being divested of jurisdiction over the case, the motion to dismiss, on the ground of acquiescence in the judgment, must be made in the appellate court, and if the fact of acquiescence do not appear in the record, the case will be remanded, with instructions to the judge a quo to take evidence on and. try the question of acquiescence in the judgment appealed from.
    APPEAL from tlie Sixtb District Court for the parish of Orleans.

      Cooley, J. P. M. Morgan, for plaintiff and appellee.

      Cooley dr £ldlli%)s, for J. Hernandez, defendant and appellant.
   Howeix, J.

A motion is made to dismiss the appeal on the ground! that the appellant has acquiesced in, and voluntarily executed, the judgment before appealing therefrom.

It is objected, first, that the motion was not made until long after the three days after the return day; secondly, there is no evidence before the court to prove any acquiescence, or ratification, or execution of the judgment appealed from; the evidence offered in the court below, on a similar motion made in that court, was rejected, and forms no part of the evidence in the case; thirdly, there was no legal judgment to satisfy or execute, the case having been tried and decided and the judgment signed in vacation; and, fourthly, the rule taken in the lower court to dismiss the appeal, on the' same grounds as now urged, was dismissed, and that judgment is res judicata.

I. "VVe think the motion is in time, as it is not based on any informality or irregularity in taking and bringing up the appeal, but on the want of the legal right to appeal. Article 567, C. P., declares that “the party against whom judgment has been rendered can not appeal, if such judgment have been confessed by him, or if he have acquiesced in the same by executing it voluntarily.” Here the right of appeal is positively denied, in case the judgment is voluntarily executed, and this fact may be brought to the notice of the court at any time. It may occur, and has occurred, that, pending the appeal, the appellant executes the judgment against him, see 10 An. G43, in which event it would be impossible to make the motion within the three days after the return day, and yet the appellee would have the right, in the proper mode, to show the fact and obtain the dismissal of the appeal. A party should not, and by law can not, be heard to complain of a judgment, the correctness of which he admits by satisfying it.

II. and IV. Those objections seem to be somewhat inconsistent. If the judge a quo refused to hear evidence on the fact of payment, his judgment, dismissing the motion based on that alleged fact, can scarcely be res judicata as to such fact. Although we can not revise proceedings had after an appeal has been granted and perfected, we must presume from the objections which we are considering, that the judge refused the rule on the ground that he was without jurisdiction, which is true according to our jurisprudence, and hence the evidence could not be heard, and the judgment, dismissing the rule or motion, does not debar the plaintiff from urging his motion in this court, which alone can dismiss an appeal once vested here. Upon the application made to the judge a quo, and with the facts before him, he did not err in granting an appeal to which the appellant was prima facie entitled; and, having granted it, this court, being vested with jurisdiction, could alone entertain the motion; but there is no such evidence before us as to enable us to act. Having, however, no original jurisdiction, we must remand the case to try the issue raised by the motion.

III. The third objection pertains to the merits, and can be examined only wdien the appeal is properly before us.

It is therefore ordered that this case be remanded to the lower court with instructions to the district judge to hear evidence on and try the question of acquiescence in the judgment, appealed from, by full or partial payment.