author: MoegaN, J-

text:
    No. 4983.
    State ex rel. Eager, Ellerman & Co. vs. Charles Clinton, Auditor.
    The clerk certifies that the present record contains a full, complete, and correct transcript of the record, including all proceedings and documents filed, testimony and evidence adduced on the trial o£ the cause, etc., and there is no suggestion of a diminution of the record attributable to the appellant. This is all that this court can inquire into. The motion to dismiss is refused.
    The plaintiffs, as transferees of one Elder, allego that a certain amount of work contracted for on behalf of the State has boon done according to the contract;that it has been approved by the parties authorized to do so; that the bonds provided for in the act of eighth of September, 1868, have been signed, and that they are now in the hands of the Auditor, who refuses to deliver them .up. Wherefore-they pray for a mandamus oil the Auditor to compel him to deliver them.
    The present Attorney General, as well in behalf of the Auditor of Public Accounts as in behalf of the State, and intervening in that interest, opposes the issue of' the bonds.
    The contract under which relators did their work was entered into with the. Board of Engineers. This board had no authority to enter into the contract. They could" only do what they were empowered to do by the Legislature, and the Legislature-never empowered them to make any such contract. It is true that the commissioners originally appointed wore authorized to make a contract for placing a dam at Tone’s bayou. This they did. But it was stipulated in that contract that the work should bo done within a certain time, The time expired and the work was not done. There was therefore an end to that contract. Then the commissioners appointed by that act became fundi offioio, and their successors were only competent to inspect and cause to be completed the work which had been begun <un der the contract. But the work was at an end; the work was never commenced before the second contract was entered into, and this contract, as before stated, the Board of Engineers had no authority to make. It is true that in the opinion of the then Attorney General it was the duty of the Board of Engineers to carry on the work and to make the contract, and that it was sanctioned by the then Governor. But neither the Attorney General nor the Governor nor the Board of Engineers had any authority to renew a dead contract. This could only be done by the power which authorized, to wit: the Legislature.
    APPEAL from tho Superior District Court, parish of Orleans, llaio-Mm, J.

      tT. W. Thomas and A. G. Lewis, for relator and appellant.

      A. T. Field, Attorney General, and J. Q. A. Fellows, for respondent and appellee.
   MoegaN, J-

'William Durbridge moves to dismiss this appeal, on the .ground that the record in the case of the State ex rel. Durbridge, the ■ same defendant, is not copied into the record before us.

The two cases are docketed under different numbers in the court below. The court ordered them to be reopened for the purpose of hearing further testimony. It was also ordered that they be consolidated and tried ■as one.

The clerk certifies that the present record contains a full, complete, and correct transcript of the record, including all proceedings and documents filed, testimony and evidence adduced on the trial of the case, etc., and there is no suggestion of a diminution of the record attributable to appellant. This is all that we can inquire into.

Motion to dismiss is refused.

In 1868 the Legislature passed an “ act to provide for the improvement of Red river.” Acts 1868, p. 72. The act provides that “the navigation of Red river shall be improved by filling up at a proper point on Old river, so as to prevent the waters of Red river from running into Tone’s bayou during low-water season, and by removing logs, trees, stumps, and other obstructions to the navigation of Twelve-Mile bayou, Red bayou, Poison’s bayou, Poison’s lake, and other lakes above Shreveport, and also by making cut-offs on said bayous at 'different bends.”

In order to have 'the above works completed during the low water .(September, 1868,) William Mudgett, Charles W. Keeting, M. H. Crowell were appointed commissioners in behalf of the State, and were authorized to employ a competent engineer, who was to examine the projected work and prepare plans and specifications of the work to be done, and to make -the same so as to show the proposed and necessary work in convenient sections, with estimates of the .just and proper cost of each section ¡and of the whole work.

As soon as the estimates, plans, and specifications were prepared the commissioners were authorized to contract in the name of the State with a competent person or persons to do said work according to such plan and specifications, payable in installments on the completion of each section, and upon the certificates of said commissioners that the section had been completed according to contract.

The total cost of the improvements was not to exceed one hundred and thirty-five thousand dollars, for which the contractor was to bind himself to receive the bonds of the State, payable to bearer, at twenty years after the date of the contract, the bonds to bear seven-thirty per cent interest per annum.

The Governor was to cause to be printed the number of bonds necessary fc r delivery to the contractor on presentation of the certificate of the commissioners that he (the contractor) was entitled to the same, the bonds to be for one thousand dollars each, with twenty coupons for the annual interest appended thereto. The bonds were to be signed by the Governor, countersigned by the Secretary of State, under the seal of the State, the Auditor of Accounts, and State Treasurer; they were to be delivered to the Auditor, and issued by him to the contractor upon presentation of the certificates of the commissioners aforesaid.

If a Board of Public Works was created for the State, and the members thereof qualify and organize as may be provided by law, the commissioners were to turn over to the board whatever they may have done under and according to the requirements of this act, and said board shall take possession and control of said works, and contract for making the same, if not already under contract; and if already under contract,, were to superintend the work and direct the same according to the contract, and do all things required to bo done by the commissioners designated by the act.

On the tenth of September of the same year, the Legislature established a Board of Public Works. Acts 1868, p. 82.

On the twenty-fourth of February, 1871, the Legislature passed an act creating a Board of State Engineers. Acts 1871, p. 391. This act provided that as soon as the Board of Engineers should be organized they were to take possession of the books, etc., and all State property held by the Board of Public Works, and complete the labor or contracts then existing of that board.

It is tobe observed that the Legislature contemplated by the act of the eighth of September, 1868, that the work therein authorized to be done was to be finished during the then low stage of water in the Red river.

Two days after the passage of the act, to wit: on the tenth of September, 1868, William S. Mudgett, acting as chairman of the Board of Commissioners appointed by the above act, entered into a contract with. Andrew J. Oliver and George Alban, by which, the last-named parties agreed to do the work specified in the act aforesaid, according to the specifications annexed to the contract, which, the contract recites, had been prepared by W. J. McCulloh, the engineer appointed by the comr missioners.

The sum to be paid them was the exact amount which the appropriation was not to exceed, viz: one hundred and thirty-five thousand dollars. The work was divided into four sections. Three sections have been paid for. We have to deal with the first section, which provided for the “construction of a dam across Old Red river, at the most eligible point, near Scopini’s Cut-off above the mouth of Tone’s-bayou,” for which work, on the completion thereof, the contractors were to be paid fifty thousand dollars.

By the contract the whole was to be completed on or before the first of January, 1869, but in case the water should rise before that date the time in which it was to be completed was to be extended to the.first of November, 1869.

The work was not completed within the time specified.

Some time thereafter Oliver & Alban assigned all their right and interest in the contract above described to D. J. Elder:

It appears that Elder claimed that the whole work had been done-, and demanded settlement therefor, but on the twentieth of September, 1872, he withdrew his application for settlement' and payment therefor, and instead thereof filed a petition with the Board of "State Engineers asking for an extension of time in which to complete the contract, in consideration whereof the Board of State Engineers, assuming to act under the authority of the statute of the eighth of September, 1868, extended the time for the completion of the contract for the building of the dam in Tone’s bayou to the first of January, 1873. It is proper to state that these extensions were made under the opinion of the then Attorney General that the Board of Engineers had the power to grant them, and that they received the approval of the then Governor of the State.

Eager, Ellerman & Co., the transferees of Elder, allege that the work has been done according to contract; that it has received the approval of the Board of Engineers; that the facts have been reported,to the Governor; that the bonds provided for in the act of the eighth 'of September, 1868, have been signed by the Governor, Secretary of State, Treasurer, and Auditor of Public Accounts, and that they are now in the hands of the Auditor, who refuses to deliver them up.

They pray for a mandamus on the Auditor to compel him to deliver, them.

The Auditor answers and says that “the facts stated in-the petition, s.o far as his knowledge extends, are true, and the certificate, in due form, of the president of the State Board of Engineers accompanied the demand for the bonds.” He waived service and submits the question of the issue of the bonds (being act No. 59 of 1868) for adjudication.

The present Attorney General, as well in behalf of the Auditor of Public Accounts as in behalf of the State, and intervening in that interest, opposes the issue of the bonds on the grounds—

First — That act No. 59 of 1868 is in violation of article 111 of the constitution of the State, is null and void, and that no rights can be claimed under it.

Second — That the contract under which the bonds are claimed was a fraud upon the State, and never had any legal or valid object, and could, by reason of fraud and corrupt practices in obtaining the contract, confer no legal or equitable claim.

Third — That the work under the contract with Oliver & Alban was never clone as contracted for, and that the certificates therefor were improperly issued; and

. Fourth — Denies generally the averments of the petition, and specially denies any contract binding on the State with the relators or their assigns,

The fourth and last count is the only one which it is necessary to examine.

The contract under which relators did their work was. entered into with the Board of Engineers. This board had no authority to enter into the contract. They could do only what they were empowered to do by the Legislature, and the Legislature never empowered them to make any such contract. It is true that the commissioners originally appointed were authorized to make a contract for placing a dam at Tone’s bayou. This they did. But it was stipulated in that contract that the work should be. done within a certain time. The time expired, and the work was not done. There was therefore an end to that contract. Then the commissioners appointed by that act became fuvcü officio, and their successors were only competent to inspect and cause to be completed work which had boen begun under the contract. The first contract was at an end before the second contract was entered into, and this contract, we repeat, the Board of Engineers had no authority to make. We do not forget that in the opinion of the then Attorney General it was the duty of tlio Board of Engineers to carry on the work and to make the contract, and that- it was sanctioned by the then Governor; but neither the Attorney General, the Governor, nor the Board of Engineers have any authority to revive a dead contract. This could only be done by the power which authorized it, viz: the Legislature.

Judgment affirmed.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 5473.
    Succession of Mrs. Virginia H. Hall, Deceased Wife of Charles Robb. On Opposition to Application for Probate.
    Tho error in this caso is in supposing't-liat an omission or dofoot exists in the will in uolitrevorsy. Of course nothing can he added to that instrument to cure any want of legal requisites. But neither the laws of Illinois, where tho testatrix died, nor of Louisiana, whore she resided and left property, require that a will shall stale where it was made. The place where it was made is a fact dehors the will, which may be proved like any other fact. There is nothing in the objection that it would be establishing title to immovable property by parol evidence. The testament is in writing, and is the title to the property bequeathed.
    To prove where the aforesaid will was made, so as to ascertain what laws control its form, would no more conflict with the prohibition against proving title to real property by parol than would bo tho proving of the handwriting to an olo-graphic testament by parol, or the genuineness of a vendor’s signature to an act sons scing prive.

    The will, which is tho basis of this controversy, was made according to tho formalities' proscribed by tho laws of Illinois. Articles 1653 and 1654 of our Code contain similar provisions.
    The. objection to the testimony of Charles Robb on the ground that he is the legatee under the will was. properly overruled. He is not an attesting witness to the will. Bor that purpose he would have been incompetent. But, in a Louisiana court, he was a competent witness to prove any- fact in regard to tho matter in controversy which he might know.
    The article 1689 of the Civil Code clearly authorizes the probate of a foreign will in Louisiana. It declares: "This order of execution shall be granted without any other form than that of registering tho testament, if it be established that the testament has been duly proved before a competent judge of the place whence it was received. In the contrary case the testament cannot be carried into effect, without its being first prorerlhetovothe judge of whom the execution is demanded.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      J. McConnell, for opponents on the matter of probate of the will and appellants.

      Hymns & Jonas, for Charles Robb, legatee under the will, and appellee.
   Ludeling, C. J.

This is an appeal from a judgment of the Second District Court of New Orleans admitting to probate her testament.

It is alleged that the will was made in Illinois on the twenty-first of September, 1871. Mrs. Robb died in 1873 out of the i^tato of Louisiana, where she resided. The heirs-at-law, who oppose the probate, deny that the will was made in Illinois; and they allege that, inasmuch as it does not appear in the face of the instrument that it was made in Illinois, that fact cannot be proved by any other evidence. They deny the validity of the will under the laws of Illinois, and they deny that any witness can be permitted to testify in our courts in relation to the matters in dispute, except he would be a competent witness in the courts of Illinois, if the suit were pending there; and, lastly, they deny that a foreign will, void under our laws, and not probated when it was made, can be probated in Louisiana. In support of the first objection, that the omission in the will to state where it was executed cannot be supplied by parol evidence, the opponents urge the following reasons: That it would be engrafting the laws of Illinois on the instrument, and establishing title to immovable property in this State by parol evidence.

The error is in supposing that an omission or defect exists in the will. Of course, nothing can be added to that instrument to cure any want of legal requisites. Neither the laws of Illinois nor of Louisiana require that a will shall state where it was made. The place where it was made is a fact dehors the will, which may be proved like any other fact. Nor is there any force in the objection that it would be establishing title to immovable property. The testament is in writing — it is the title to the-property bequeathed. To prove where the will was made, so as to ascertain what laws control its form, would no more conflict with the prohibition against proving title to real property by parol than would the proving of the handwriting to an olographic testament by parol,, or the genuineness of a vendor’s signature to an act sous seing prive.

Is-the will valid according to the laws of Illinois? It is signed by the testatrix; and following her signature is the following statement or proces verbal: “ Signed, sealed, published, and delivered by the said Virginia H. Robb, to be her last will and testament, in the presence of us,, who were present at the same time, and we, at her (testatrix’s) request, and in her presence, and in the presence of each other, at the same time subscribed our names as witnesses.”

| Chicago, Ill. ISAAC C. DAY, JAMES H. MARSH. Witness.

The second section of the Illinois statute of wills — Revised Statutes-of Illinois, 1861 — which was offered in evidence, declares: “All wills, testaments, and codicils by which any lands, tenements, hereditaments, annuities, rents, or goods and chattels are devised shall be reduced to writing and signed by the testator or testatrix; or by some person in his or her presence, and by his or her direction, and attested in the presence of the testator or testatrix by two or more credible witnesses; two of whom declaring on oath or affirmation before the court of probate for the proper county that they were present and saw the testator or testatrix sign said will, testament, or codicil in their presence, or acknowledge the same to be his or her act and deed, and that they believed the testator or testatrix to be of sound mind and memory at the time of signing or acknowledging the same, shall be sufficient proof of the execution of said will, testament, or codicil to admit the same to record,” etc.

Also see Public Laws of Illinois, 1871-1872, pages 775 etseq., offered in evidence, which show that the act was still in force when the will was made.

Under the statute, the indispensable requisites of a will are that “ it must be reduced to -writing, it must be signed by the testator, or by some one in his presence and by his direction, and it must be attested in the presence oí the testator by two or more credible witnesses.” 43 Ill. Rep. 148; 42 Ill. Rep. 377.

These formalities were observed in the execution of Mrs. Robb’s will-Section seven of the same statute provides that “ in all cases where any one or more of the witnesses to said will, testament, or codicil as aforesaid shall die, or remove to some distant country unknown to the parties, concerned, so that his or her testimony cannot be procured, it shall be lawful for the probate justice, or other court having- jurisdiction of the, subject matter, to admit proof of the handwriting of any such deceased or absent -witness as aforesaid, and such other secondary evidence as is. admissible in courts of justice to establish written contracts generally in similar cases; and may, thereupon, proceed to record the same, as. though such will, testament, or codicil had been proved by such subscribing witness or witnesses in his, her, or their proper persons.”

Articles 1653 and 1654 of our Code contain similar provisions.

The execution of the will was proved by one of the subscribing witnesses, who also testified that the signature of the other attesting-witness was genuine, and that he was dead. The deceased witness’s, signature was proved by other witnesses, whose testimony was properly received. 3 R. 427; 2 R. 434.

The objection to the testimony of Charles Bobb on the ground that, he is the legatee under the will was properly overruled. He is not, an attesting witness to the will; for that purpose he would have been incompetent. But, in a Louisiana court, he was a competent witness to prove any fact in regard to the matters in controversy which he might, know. 9 An. 148; 25 An. 85.

The last objection is that a foreign will, not having the formalities required by the Civil Code, cannot be probated in Louisiana.

The cases of Robert vs. Allier’s agent, 17 La. 17, and Succession of Robert, 2 Rob. 427, are relied upon by the opponents to support this, position.

Whatever was said in the first case, which may seem to support-thia ■view was obiter dictum. That was a suit in the commercial court of New Orleans for the ownership of certain notes found in the succession of' Robert. • Allier, the legatee, claimed the notes under an olographic will made in France; the mother of Robert claimed them as heir-at-law-No probate of the will had been made either in France or in this State; and this court said that until it had been proved somewhere effect could not be given to it in Louisiana. Subsequently, a copy of this will was. probated in Louisiana, and it is reported in 2 Bob. 427. If the case of Allier’s agent can be regarded as bearing upon the question under consideration, it is an authority in favor of the plaintiff; for a foreign olo-graphic will was admitted to probate in Louisiana, without its production in the court, because it had been deposited by order of a French tribunal in a notary’s office, from which it could not bo withdrawn.

The case of the Succession of McCandless, 3 An. 579, seems also to ■recognize the right of Louisiana courts to probate foreign wills.

In the case of Allier’s agent this' court refused to give effect to the testament till it had been proved somewhere.

But the article 1689 of the Civil Code clearly authorizes the probate of a foreign will in Louisiana. It declares “ This order of execution shall be granted without any other form than that of registering the testament if-it bo established that the testament has been duly proved before a competent judge of the place where it was received. In the •contrary case, the testament cannot be carried into effect without its being first proved before the judge of whom the execution is demanded.”

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


author: MORGAN, J.

text:
    No. 4100.
    Gerard Brandon vs. T. H. & J. M. Allen & Co.
    'The seizure o£ the plantation in question under the attachment in this ease was in reality only nominal. The plaintiff either worked it himself or leased it, deriving whatever profit may have been made from it himself, and if any deterioration took place while the attachment rested upon it, the fault was with the plaintiff' or with those to whom he leased it. upon the question of damages therefore, as the immediate result of the attachment, the ease is with defendants.
    'The property of plaintiff, however, was illegally attached. To get rid of the attachment he had to employ counsel. The foe which his counsel earned, and which he was obliged to pay, was a damage to him for which defendants aro responsible.
    There is no foundation for the plea that the property attached did not belong to plain! iff. Defendants cannot set up such a plea, as it was only upon their allegation that it did belong to him that the attachment issued. They cannot be permitted to say that the property was his when the allegation was necessary to enable them to procure the attachment, and then say that it was not his when it is necessary to shield them from damages caused by the issuing of the attachment.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      A. K & W F. Ogden and J. C. Fierce, for plaintiff and appellant.

      Hays & Neiv, for defendants and appellees.
   MORGAN, J.

The facts from which this litigation springs will be found in the ease of Gerard Brandon vs. William Hughes. Hughes had sold a certain plantation in Tensas parish to Brandon. Brandon had assumed to pay certain mortgages resting upon the plantation and certain ■debts due his vendor. The defendants, among others, sued the plaintiff on his alleged assumpsit. As he was a nonresident they proceeded by attachment, which was levied on his Mondora plantation. In the lower court they obtained judgment. From that judgment a devolutive appeal was taken. Pending the appeal, the Mondora plantation was. sold, and purchased by the jiresent defendants. This court reversed the judgment appealed from. The plantation was returned to the plaintiff.. He now sues to recover upward of §30,000 damages caused by the seizure of his property.

The evidence satisfies us that the seizure under the attachment was-in reality only nominal; that the plaintiff either worked it himself or leased it, deriving whatever profit may have been made from it himself,, and that if any deterioration took place during the time the attachment rested upon it the fault was with the plaintiff or with those to whom he leased it. Upon the question of damages as the immediate result of the attachment we think the case is with the. defendant. His property was, however, illegally attached. To get rid of the attachment he had to employ counsel. The fee which his counsel earned and which he was obliged to pay was a damage to him. This fee, we think from the testimony, should be eighteen hundred dollars.

Defendants contend that the property attached did not belong to the plaintiff. We do not understand how they can set up such a plea, as it was only upon their allegation that it did belong to him that the attachment issued. They cannot be permitted to say that the property was his when the allegation was necessary to enable them to procure the-attachment, and then say that it was not his when it is necessary to shield- them from damages caused by the issuing of the attachment.. Besides, when the attachment issued it was his property.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed; and it is now ordered that there be judgment in favor of the plaintiff and against the defendant in solido for eighteen hundred dollars, with interest thereon at five per cent per annum from judicial demand, with costs in both courts.


author: Wyly, J.

text:
    No. 5811.
    Mary Malady vs. William Malady and Mary B. Caldwell. John Mooney, Third Opponent.
    In a previous ease it was decided by this court that the plaintiff was entitled to recover of defendants, as her community share, one-fourth of the entire property belonging to the partnership which existed between william Malady, her husband, and Mary B. Caldwell, and which was conducted in the name of Mary B. Caldwell. To effect a partition pursuant to decrees of this court, a sale was made of a certain piece of property cn which John Mooney hold a conventional mortgage, when the partition sale vas made this creditor Mod a third opposition claiming of the proceeds a sum sufficient to pay the amount of his mortgage on the property sold. This mortgage existed on the property prior to the suit of plaintiff against defendants and before the existence of such a person as plaintiff was known to the mortgage creditor.
    The plaintiff, Mary Malady, cannot ho allowed to take one-fourtli of the proceeds of ' the property in question and throw on defendants the payment of the entire mortgage debt bearing on said property, or on the three-fourths of the proceeds thereof.
    Tf plaintiff claims for the community between herself and William Malady one-half of the property of Mary B. Caldwell, on the ground that there was a partnership between her husband and Mary B. Caldwell, conducted in the name of the latter, she must allow the debts of that partnership to be settled out of the assets thereof before the partition is made.
    Therefore the court a aua erred in requiring defendants to pay the entire amount of the mortgage debt held by the intervenor out of the share coming to them from the sale. Plaintiff must discharge a proportional part of the debt.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      W jET. Rogers, for plaintiff and appellee.

      Merrick, Race & Foster, for ■defendants and appellants.
   Wyly, J.

In the litigation heretofore had between plaintiff and defendants this court has decided that the property acquired in the name of Mary B. Caldwell really belonged to the partnership which existed between her and William Malady, and the interest of the latter therein -composed the community of acquests existing between him and his wife, plaintiff herein: that plaintiff was entitled to one-half of the community property, which consisted of one-half of- the wealth of Mary B.■Caldwell. In other words, that plaintiff was entitled to recover of defendants one-fourth of the entire property belonging to the partnership which existed between William Malady and Mary B. Caldwell, and which was conducted .in the name of Mary B. Caldwell.

To effect a partition, pursuant to decrees of this court, a sale was :made of a, certain piece of property upon which John Mooney held a conventional mortgage for $2000. This mortgage existed upon the property prior to the suit of plaintiff against defendants, and before the ■existence of such a person as plaintiff was known to said mortgage ■creditor.

When the partition sale was made, however, this mortgage creditor filed a third opposition, claiming of the proceeds a sum sufficient to pay the amount of his mortgage bearing on the property sold. The court -decided that the intervenor, John Mooney, should be paid out of the three-fourths of the proceeds belonging to defendants, and that no part ■of the one-fourth of the proceeds coming to Mary Malady could be ■applied to the payment of the mortgage due to John Mooney, which bore upon the entire property sold.

From this judgment William Malady and Mary B. Caldwell have appealed.

As the appellants’ part oí the proceeds of the sale is sufficient to pay the mortgage creditor, he has not appealed.

And here the question is: Shall plaintiff, Mary Malady, be allowed to take one-fourth of the proceeds of the property in question and throw the payment of the entire mortgage debt bearing on said prop■erty on the defendants, or on their three-fourths of the proceeds thereof? The attempt of plaintiff to show the invalidity of the mortgage debt of intervenor we regard as a failure. The mortgage was given prior to the suit of Mary Malady for a divorce and for one-hálf of the property belonging to the community existing between herself and William Malady, and it was given while the partnership still existed between William Malady and Mary B. Caldwell.

As the business of this partnership was conducted in the name of Mary B. Caldwell we will presume the property standing in her name-belonged to the partnership, and the incumbrances thereon were due by the owner, the partnership. It would not be fair to presume that the property of Mary B. Caldwell belonged to the partnership, and the mortgage bearing thereon was due by herself individually.

If plaintiff claims for the community between herself and William Malady one-half of the property of Mary B. Caldwell on the ground that there was a partnership between her husband and Mary B. Caldwell, conducted in the name of the latter, she must allow. the debts of that partnership to be-settled out of the assets, thereof before the partition is made.

We regard the mortgage in favor of the intervenor, John Mooney, as a debt - due by the partnership which was conducted in the name of Mary B. Caldwell, and we conclude that it must be paid out of the entire proceeds of the sale of the mortgaged property.

The court therefore erred'in requiring defendants to pay the entire amount of the mortgage debt out of the share coming to them from ■the sale. Plaintiff must discharge a part of the debt.'

It is therefore ordered that the judgment herein be amended as between plaintiff and defendants so that the debt of the mortgage creditor, John Mooney, shall be paid out of the entire proceeds of the sale, and the balance thereof be divided between plaintiff and defendants in the proportion of one-fourth to plaintiff and three-fourths to defendants, and, as amended, that said judgment be affirmed, plaintiff paying costs of appeal.


author: Taliaeekbo, J.

text:
    No. 4527.
    John M. Brabazon vs. the City of New Orleans.
    It was within the discretion of Uio judge a ano to extend the return day to the first Monday of February, the next return day fixed by law, if he deemed the time too short for completing the transcript of appeal, or that it was impracticable from other causes to get the appeal up by the next return day after the rendition of the order of appeal.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      W. W. Ilandlin, for plaintiff and appellee.

      George S. Lacey* City Attorney, for defendant and appellant.
   On Motion to Dismiss.

Taliaeekbo, J.

There is a motion to dismiss this appeal on several different grounds, the first of which is that the appeal was not made returnable on the return day. The order of appeal was rendered on the sixteenth of January, 1873, and the appeal was made returnable on the first Monday of February, 1873. Appeals are made returnable for the parish of Orleans on the first and third Monday of each month. The next return day after the rendition of the order' of appeal in this case was the third Monday of January, which occurred on the twentieth of that month, three days only intervening. It was in the discretion of the judge a quo to extend the return day to the first Monday in February, the next return day fixed by law, if ho deemed the time too short for completing the transcript of appeal or that it was impracticable from other causes to get the appeal up by the next return day after the rendition of the order of appeal. 9 An. 14; 12 An. 825; 14 An. 737; acts of 1870, page —.

The other grounds for dismissal grow out of the one just examined. The motion is overruled.

On the MeRits.

The plaintiff complains that the defendant has taken possession of a. lot of ground belonging to him within the city of New Orleans and expropriated it illegally for the purpose of a street. He claims §585 rent for said property, if plaintiff should elect to abandon to the use and enjoyment of plaintiff the said lot, restoring the same to his possession; otherwise plaintiff prays judgment in his favor for the further sum of six hundred dollars, the value of the said lot of ground.

The answer is a general denial.

Judgment was rendered in plaintiffs favor for six hundred dollars, with legal interest thereon from the second of April, 1866, and defendant appealed.

We think the evidence sustains the plaintiff’s claim, and that the judgment was properly rendered.

It is therefore/ordered that the judgment appealed from be affirmed with c< sts.


author: Taliaeebko, J.

text:
    No. 5926.
    State of Louisiana vs. Alexander Newton.
    Act 94 of tho acts of tho Legislature of 187ÍS exempts, among others, from serving as jurors, “the judges and officers of tho several courts of this State.” Tlio juror exempted in this ease, being an assistant clerk of the Second Municipal Police Court in the city of New Orleans, was an officer of court within the intendment of the act, and was correctly discharged on his claiming the exemption.
    It appears that the clerk furnished the sheriff with blanks, to be filled with the names of talesmen as he summoned them. This form of summons was signed by the clerk, with the seal of the court affixed. No such summons was necessary; the sheriff could legally summon talesmen without serving a written notice upon them. In this case it appears that tho sheriff did summon tales-men, and his serving the blank forms given to him for inserting the names of such as he summoned gave no additional validity to his act, nor did it detract from if. Tho order of the court a qua overruling defendant’s exception on this ground was correct. *
    The judge a quo did not err in refusing to charge the jury as follows: “Malice excludes passion; passion presumios <s the absence of malice. In law they cannot co-oxisf.”
    The charge, of the judge, as it stands in tii' r '■* i -1, was sufficient, and ronderod it unnecessary for him to present to the jury the propositions offered by defendant, which are somewhat obscure, and the soundness of which does not readily appear.
    The gist of one of defendant’s exceptions is, that “ evidence, of the condition of the accused at tho time of the killing, whether drunk or sober, should be permitted to go to the jury in connection with other facts in determining tho question of malice,” and that tho court refused so to charge as requested by defendant. Tho refusal of the court below so to charge was correct, inasmuch as the question raised had already been discussed in the general charge, and evidence of the . condition of tho accused as to intoxication had boon given on the trial without objection.
    APPEAL from tho Superior Criminal Court, parish of Orleans. Braughn, J. Jury trial.

      G. H. Luzenlmrg and Alex. Dalsheimer, for defendant and appellant.

      A. P. Field,' Attorney General, for plaintiff and appellee.
   Taliaeebko, J.

The defendant was convicted of the crime of murder and sentenced to death. Ho has appealed.

The grounds set up for reversal of the judgment of the court a qua appear in six bills of exceptions found in tho record:

First — During the impaneling of the jury a juror being sworn on his roir dire stated in answer to a question by the Attorney General, that he was an assistant clerk of the Second Municipal Police Court in the city of New Orleans. Thereupon the Attorney General stated that he was an incompetent juror, and in this was sustained by the court for the reason that the juror was exempt by law, and that he claimed his exemption. The juror was discharged. The objection is that the juror was not entitled to exemption, and that his discharge was illegal. _

Act 94 of the acts of the Legislature of 1873 exempts among others “ the judges and officers of the several courts of this State.” The juror was an officer of court within the understanding of the act, and was correctly discharged by the court on his claiming the exemption.

Second — Tlie court had ordered the sheriff to summon a hundred talesmen to serve as jurors, and when one of them was called to' be .sworn the defendant by counsel challenged the whole array of tales-men on tho ground that they were summoned by tho clerk, and not by the sheriff.

It appears the clerk furnished the sheriff with blanks, to be filled with the names of talesmen as he summoned them. This form of summons was signed by the clerk, with the seal of the court affixed. No summons was necessary; the sheriff could legally summon talesmen without serving a written notice upon them. In this case it appears the sheriff did summon talesmen, and his using these blank forms for inserting the names of such as he summoned gave no additional validity to his act, nor did it detract from it.. The order of the court overruling the objection was correct.

Third — This bill of exceptions is not pressed.

Fourth — The judge in charging the jury said: “You have sworn, gentlemen of the jury, to truly try and deliverance make between the prisoner at the bar and the State, and to decide the case according to the law and the evidence; this will show that although you are the judges of tho law and of the facts you are morally bound by certain obligations. Being the solo judges, sovereign in your conclusions, you can disregard both the law and the facts, but you should not do so; while you have the power to disregard the law and the evidence, you have neither the moral nor legal right to do so.”

. The objection is that the judge should only have told the jury “ they were judges of the law as well as of the facts.”

We find no weight in this objection. The judge did say in his charge all that the defendant contends he ought to have said. His observations in connection with that part of his charge contain nothing contradictory to it, nor anything calculated to lead to any other meaning.

Fifth — This exception is to the refusal of the judge to charge the jury as follows: “ Malice excludes passion; passion presupposes the absence of malice. In law they cannot co-exist.”

The ruling was correct. The judge had already, in a very lucid manner, after clearly defining tho crime of murder, given in charge to the jury that “ if the evidence satisfies you that the accused is not guilty of murder; that the requisites of either express or implied malice, as it has been defined to you, are absent, and that -the crime is reduced to manslaughter, you will return a verdict accordingly. That drunkenness is hot an excuse for crime, but on the contrary an aggravation.”

This was sufficient, and rendered it unnecessary for him to present tq. the jury tho propositions offered by defendant, which appear somewhat obscure, and the soundness of which does not readily appear.

Sixth — The gist of ibis exception, is that “ evidence.of the condition of the accused at the time of the killing, whether drunk or sober, should be permitted to go to the jury in connection with other facts in determining the question of malice,” and that the court refused so to charge the jury as requested by the defendant. The court appended to this bill of exceptions the following:

“ The court so refused to charge the jury, as the question raised had already been discussed in the general charge, and evidence of the condition of the accused as to intoxication had been given on the trial without objection.”

We think this sufficient.

. There are no grounds to authorize a reversal of the judgment rendered in this ease.

Judgment affirmed.


author: Taliaeerro, J. Ludeling, O. J., Taliaferro, J.

text:
    No. 4444.
    Francois Gonthier vs. the New Orleans, Jackson, and Great Northern Railroad Company.
    This is a suit for clamases against dsfendant for having carried a trunk to Philadelphia, instead of Jaelcson, Mississippi. The trunk was not lost; there was only great delay in its delivery. The passenger seems not to have examined the cheek given to him, or to have made any inquiry about the trunk until he reached his place of destination, what happened may be attributed as much to his own laches as to the negligence of defendant’s employees. The plaintiff has sh own no right of action against defendant for any failure of duty.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      JS. K. Waefdngton, for plaintiff and appellant.

      L. E. Simonds, for defendant and appellee.
   Taliaeerro, J.

This is a suit to render the railroad company liable in damages for the carelessness and inattention of its agents and employees in mis-sending the trunk of a passenger taking the cars at New Orleans for Jackson, Mississippi, whereby he was deprived of his clothing, valuable papers, accounts, etc., important in making settlements of business affairs at Jackson, all of which caused him great inconvenience, expense, and loss, arising from his inability to make collections, deliver ready-made clothing to customers, exhibit patterns of goods, and loss of customers and business. The trunk, it seems, was by some oversight sent to Philadelphia, whence, after a delay of about fifteen days, it was returned to'New Orleans. Seven hundred dollars is claimed as dam-ages.

The defendants deny that the plaintiff or his clerk forwarded the trunk, and aver that another party, who had and exhibited tickets for Philadelphia, forwarded the trunk, and that checks were delivered according to the tickets presented by the party offering the baggage; that if the trunk was checked to Philadelphia, it was the fault of the plaintiff or his clerk.

Judgment was rendered in favor of the defendants, and the plaintiff has appealed.

The evidence conflicts, and is unsatisfactory as to whether the defendants incurred liability resulting from negligence on their part. The plaintiff is a merchant tailor of New Orleans. He sent one of his clerks-to Jackson, Miss., to see after his interests there, to malee collections, deliver clothing, receive orders, exhibit patterns and new styles of goods, increase the number of his customers, etc. He packed the trunk for his clerk, and it was taken in charge by another of his clerks, who swears that when it arrived at the depot he pointed it out to the bag-gago-master and required him to have it checked for Jackson, Miss. A check was given to the man who pointed out the trunk, and he gave it to the clerk who was going to Jackson. Here it is eloar if there were negligence on the part of the company’s agent, there was negligence also on the part of the two clerks, neither of them having looked at the chock when it was received, the mistake not having been ascertained until some time after and when too late to rectify it.

The baggage-agent says in his testimony that after the clerk who went to Jackson returned to Now Orleans he came to inquire about the trunk, when the witness asked him whether the man who received the cheek was going to Jackson or Philadelphia, and the person interrogated didn’t know what to answer,” and he said ho was going forward to Philadelphia afterward.

Erom all we are able to find in the record we conclude the j udgment of the lower court is correct.

It is therefore ordered that the decree of the district court be affirmed with costs.

Ludeling, O. J.,

dissenting. The plaintiff sues for seven hundred dollars damages sustained by him from the gross carelessness of the employees of the company in not delivering his trunk at its destination in proper time. •

The evidence shows that plaintiff, a merchant tailor, sent one of h'is employees to Jackson, Miss,, to collect debts and to exhibit samples of cloths to his customers and take their orders; that he bought a ticket for Jackson, Miss., and the foreman of Gonthier had the baggage chocked. He swears he asked to have it checked to Jackson, Miss.', and it appears the trunk had a card on it marked “Jackson, Miss.”. It appears that alter the clerk of Gonthier was on the car, and when the 'train was in motion, he told the conductor he wished his trunk put off at Jackson, Miss. Whether this request was the result of discovering 'that a wrong check had been given him or not, is not established. The conductor replied that his trunk was not on that train, but would come on the next day. The next day, on inquiring for his trunk, ho was informed that it had gone on to Philadelphia.

It is clear to my mind that the company alone was in fault in not delivering the baggage of the passenger at the proper point and at the ■same time with the passenger. He had paid for that service, and the •carrier had obligated itself to perform it.

Whether the_loss of business or profits be too’ remote and uncertain or not, I will not discuss; but it cannot be seriously doubted that the plaintiff has proved actual damages to the extent of the expenses of the trip, which, in consequence of not having the trunk, was made in vain; and also of counsel fees for bringing this suit. These expenses, exclusive of attorney’s fees, are proved to have been not less than forty -dollars. I cannot conceive on what grounds the court can refuse to •allow these damages, at least, and costs of suit.

I therefore dissent.

Morgan, J. I concur in this opinion.

On Rehearing.

Taliaferro, J.

A further examination of the evidence fails to convince us of error in the former decree of this court. The trunk of the ..passenger was not lost, and the delay in its return to him may be attributed as much to his own laches as to the negligence of the defendants’ employees, and he is not in a position to claim on his own behalf ■ (much less the plaintiff, the employer,) damages or expenses alleged to have resulted from such delay. The passenger seems not to have examined the check given to him or to have made any inquiry about the trunk until he reached his place of destination. The statement in the evidence that the clerk, when he went into the car, told the conductor 'that he wanted to get his trunk out at Jackson was not made by the ■clerk, but by the plaintiff in his testimony. The plaintiff himself did not go on the cars to Jackson, and did not even go to the depot. It is clear, then, that what he says about the clerk telling the conductor, :after he got on the cars and the train was in motion, that he wanted his '.trunk put off at Jackson, the plaintiff had no personal knowledge of, ■and is only what he heard occurred at Jackson.

There was no privity between the plaintiff, who was not a passenger on the train, and defendants. The former has shown no right of action, against the latter for any failure of duty to Ms employee.

It is therefore ordered that our former decree remain undisturbed.

Chief Justice Ludeling and Associate Justice Morgan adhere to the.opinion previously expressed by them.


author: Taliaferro, J.

text:
    No. 5876.
    Stephen Bird and Thompson Bird, Executors of John Bird, vs. John. Cockrem, Receiver, etc.
    Defendant’s exception to the plaintiffs’ proceeding with this casein the Fifth District Court, for the reason that the order of that court transferring the case to tho Circuit Court of tho united States was a final judgment, and, if erroneously rendered, could only be corrected on appeal to the Supreme Court of tho State, was properly overruled. The order rendered in the first instance by the Fifth District Court, transferring the case, was necessarily vacated by its subseauent order reinstating it upon its docket, leaving no order of transfer to appeal from..
    The only question on the merits in this case is about the ownership of certain promissory notes. The ground assumed by tho defendant that he acquired in these notes the right of pledge, is void of force. Tho notes were tho absolute and unqualified property of Bird, and without his knowledge o r consent, and without authority of law, no disposition of thorn after maturity could be legally made hyHorroll & Co., in whose hands they had boon left, that could in any manner affect his right to recover them upon identifying tho same and proving his ownership of them, which has been done.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Merrick, Bace & Foster, for plaintiffs and appellees.

      J. D. Bouse, for defendant and appellant.
   Taliaferro, J.

This is a suit for the recovery of three several promissory notes, each for the sum of forty-five hundred dollars, secured by mortgage, being the consideration in part given by one Abram B. Reading for certain real estate, situated in New Orleans and purchased by him. of John Bird, a resident formerly of the State of Missouri, now deceased, whose succession is represented by the plaintiffs, his executors. They allege that these notes were drawn by Reading, payable to his own order and by him indorsed; that they were received from him for said John Bird, of Missouri, by his agent and commission merchant, in New Orleans, B. M. Horrell, who receipted for them to the notary before whom the sale was .passed, and who placed upon the notes his paraph' nc varieteur to identify them with the mortgage retained upon the property sold to secure their payment. They aver that John Bird' never parted with his ownership of these notes, and that they compose-a part of his succession, and that John Cockrem, of New Orleans, in 'his capacity of receiver of the New Orleans National Banking Association, now in liquidation, has these notes in his possession and refuses to deliver them to the petitioners, who pray judgment ag;ainst Oockrem,. decreeing the notes to belong to the succession of the said John Bird, and for an order that he deliver them to the plaintiffs.

Upon the motion of Oockrem, made defendant, and on affidavit filed by him the cause was transferred by order of the Fifth District Court to the United States Circuit Court, and by order of that court it was sent back to the Fifth District Court, and by that court ordered to be reinstated upon its docket.

Thereupon the defendant excepted to the plaintiffs’ proceeding with the case in the Fifth District Court, for the reason that the order of that court transferring the case to the Circuit. Court of the United States was a final judgment, and, if erroneously rendered, could only be corrected on appeal to the Supreme Court of the State.

The exception, we think, was properly overruled. The order rendered in the first instance by the Fifth District Court, transferring the case, was necessarily vacated by its subsequent order reinstating it upon its docket, leaving no order of transfer to appeal from.

The defendant answered, denying- generally the allegations of the plaintiffs’ petition and alleging that the commercial firm of B. M. Hor-rell & Co., of New Orleans, in June, 1872, effected a loan with the New Orleans National Banking Association for the sum of ten thousand dollars, for sixty days, and to secure the payment of their note for the amount loaned pledged to the banking association aforesaid the three notes sued for; that Horrell & Co. having failed to pay their note for the money-borrowed, the banking association had instituted suit against them on their note and for recognition of the defendant’s right of pledge on the said three promissory notes, pledged as aforesaid.

There was judgment in favor of plaintiffs, and defendant appealed.

The only question in this case material to be considered is that of ownership. It is clear from the evidence that John Bird was the owner of the three notes his executors are seeking to recover, and that he never parted with that ownership. It seems that he was a resident of the State of Missouri, and that B. M. Horrell & Co. were his commission merchants in New Orleans, with whom he transacted business generally. He sold certain real property which he owned in New Orleans to Reading, who executed six several promissory notes drawn payable to his own order and indorsed by him, the payment of which was secured by mortgage on the property sold. These notes were delivered to Horrell & Co., to be kept by them for Bird. Nobody pretends that Bird ever vested title to these notes in Horrell & Co. or anybody else, and the (.inly defense is that Bird, by leaving the notes in the hands of Horrell & Co., nothing appearing on their face to indicate that he was a party to the instrument, or that he Owned them, placed it in Horrell’s power to commit a fraud by holding himself out to others as owner of them, and that the equitable rule may be invoked by defendant, that where one of two innocent persons must suffer from a fraud perpetrated against them, .he by whoso act the party committing the fraud was enabled to'effect it should bear the loss..

Neither this rule nor the principles and authorities cited and relied upon on the part of the defense to show, that although these notes passed into the hands of third parties after their maturity, the plaintiffs, under the state of facts existing, are estopped from setting up equities that existed between prior parties, have any proper application to the case at bar. The plain law, founded upon the simple, obvious principle of justice and equity, that the sale of the property of another is null, applies here with all its inherent force. Without his knowledge or consent Bird might, without sanction of law, be deprived of his property, if the arguments on the part of the defense were applicable and tenable. Equally void of force is the ground assumed by defendant that he acquired in these notes the right of pledge. The notes were the absolute and unqualified property of Bird, and without his knowledge and consent, and without authority of law, no disposition after maturity could be legally made of them that would in any manner affect his right to recover them upon identifying and proving his ownership of them, which has been done.

' The judgment of the court a- qua was properly rendered, and it is therefore ordered that it be affirmed with costs in both courts.

Rehearing refused.


author: Wyly, J. Ludeling, 0. J. Mobgan, J.

text:
    No. 5821.
    State ex rel. New Orleans Republican Printing Company vs. Charles Clinton, Auditor.
    In the- ims i Uio money to pay i-olator has boon previously appropriated by law, nlthomih the samo may" not yet bn collected and paid into the. treasury. It is undoubtedly, in yiew of the positive requirements oí sections l«:i and lHi of the Revised Statutes, the duty oí the Auditor to issue the warrant demanded bv ■ dutor for a claim audited by (lie Auditor himself, but of course the Treasurer - will not be required to pay until the money appropriated has been actually paid into the treasury.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      J. W. Thomas and A. G. Lewis, for relator and appellant.

      Charles S. Hice and II. C. Dibble, for defendant and appellee.
   Wyly, J.

Belator appeals from the judgment refusing to make peremptory the mandamus issued to compel the Auditor to draw a warrant for the claim of relator for State printing, which claim has been duly audited by Mm and is provided ior in the general appropriation bill of 1875. With regard to the policy of issuing warrants for valid claims against the State, payment of which has been provided for in the general appropriation bill before the money has been collected and is actually in the treasury, this court has nothing to say. That is a matter pertaining to the political department of the government. The sole question is, is it a ministerial duty of the Auditor to issue the warrant required of him ? That question we must answer in the affirmative, in view of the positive requirements of sections 183 and 184 of the Revised Statutes, which provide that: “ In all cases of accounts audited and allowed against the State, and in all cases of grants, salaries, and expenses allowed by law, the Auditor shall draw a warrant on the Treasurer for the amount due. * * N0 warrants shall be drawn by the Auditor, nor paid by the Treasurer, unless the money to pay the same has been previously appropriated by law.” Here the money to pay relator has been previously appropriated by law, although the same may not yet be collected and paid into the treasury. It is undoubtedly the duty of the Auditor to issue ■the warrant, but of course the Treasurer will not be required to pay it until the money appropriated has been actually paid into the treasury.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the mandamus sued out by relator be made peremptory, at respondent’s cost in both courts.

On Motion foe Reheabing.

Ludeling, 0. J.

In this case the only question raised and decided was that the Auditor could not refuse to issue a warrant for a valid claim for which an appropriation had been made, and which had been audited by himself, on the ground that there was no money actually in the treasury at the moment the warrant .was applied for.

Rehearing refused.

Mobgan, J.

In the appropriation act of the Legislature of 1875 is to be found the following item:

“ Appropriation to pay State Printer, ninety thousand dollars.”

On the eighth of April, 1875, relators furnished to the Auditor of Public Accounts 271 reams of printed notices and ono-half ream of printed circulars, for which they presented a bill for $4065.

On the thirtieth of April, 1875, they furnished the Auditor 137£ reams of assessors’ lists of taxable property, for which they presented a bill for $3029. The articles charged for were received by the Auditor.

The relators then seem to have applied to the Auditor for a warrant upon the Treasurer for the above sums. The Auditor refused. They then applied to the Superior District Court to compel him to comply with their demands.

The Auditor answered that the relators’ petition showed no cause of' action. That “ when demand was made upon him, which demand he admits, there was no money in the State treasury out of which the warrants demanded, even if issued, could have been paid.

“ That under the constitution and laws of the State he cannot issue warrants, nor can appropriations be made by the Legislature, in excess of the revenues of the State for the year for claims or expenses incurred during that year; that until revenue is collected and in the treasury no warrants can be legally drawn by him.”

This is his answer in full. It is admitted that the Republican is the official printer of the State. The bills upon which the claim is based were received in evidence without objection.

' The evidence shows that up to the time this proceeding was taken (eighteenth of May, 1875,) the Auditor had drawn no warrants whatever in favor of the relators or against the appropriation for printing.

As to the defense that the petition discloses no cause of action, I think this is answered by the fact that the demand is based upon work done-for and received by the proper State officer.

The second and third grounds of defense are so intimately connected that they may be considered together.

Upon the question of fact, as to whether when the demand was made for a warrant there was no money in the treasury, the testimony, I think, is at best uncertain. The Auditor, examined as a witness, and being asked why the warrants were not issued, says that he cannot remember distinctly the condition of the general fund at the time the warrants were-applied for, but .he is satisfied that on April thirtieth there had -been more warrants drawn against the general fund than there was money to pay,, and that if another warrant had been issued the general-fund account, would have been overdrawn. But the cashier of the treasury being asked whether the books in the Auditor’s and Treasurer’s offices are kept in such a manner that the Auditor can tell what money is in the treasury to the account of every fund from day to day, says that he don’t, think he can now.

I assume, however, that the Auditor, when he refused to issue the warrants, did so because he believed there was no money then in the treasury out of which they could be paid. I do not dispute the proposition that the constitution and laws of the State prohibit appropriations in excess of the revenues of the State for claims incurred during the year for which the appropriations were made. If this st'ate- of facts existed here, the-relators’ claim would come to a short end. But it will be observed that, there is no allegation to that effect in the respondent’s answer. He does. not say that the appropriations are in excess of the revenue. He does not allege that the appropriation has been exhausted. His defense is simply that at the time the warrants were applied for there was no money in the treasury to the credit of the fund out of which the warrants would have to be paid. This defense is not a good one in my opinion.

In my opinion, wheá the Legislature makes an appropriati m which is not justified, by the constitution, for work to be done.in the service of the State, and the work is done, and the appropriation therefor has not been exhausted, the party in whose favor the appropriation is made has the-right to demand of the Auditor, and it is the - duty of the Auditor to give him a warrant on the treasury for the value of the work done. Of course if the Treasurer has no money to the credit of the fund upon which the warrant is drawn the warrant will not be paid. But that is not. the question here. As to the right, however, of the relators, under the facts as they are presented in the record, to their warrants, I entertain no doubt.

I therefore concur in refusing the rehearing applied for.


text:
    No. 4500.
    George W. Graff vs. John Moylan.
    This is a petitory action. At the adjudication o£ plaintiffs property, sold for taxes, on the second of April, 1870, the constable was without authority to make the sale, because, on the sixteenth of March previous, the City of Jefferson was by statute annexed to the city of Now Orleans, and a constable of the parish of Jefferson could perform no official duty in the city and parish of Orleans.
    Plaintiff, the owner of the property, was a resident of the city of New Orleans, and. lie was not served with notice of seizure. He was in no’ sense a party to the proceeding whereby the constable attempted to make a forced sale of his property.
    The return day of the writ of fieri facias had passed long before the sale, and the constable failed to return it and retain a copy as reejuired bylaw. Besides, the whole proceeding seems to be a tissue of irregularities.
    APPEAL from the Seventh District Court, parish of Orleans. Gollens, J.

      H. G. Grover, and H. G. Morgan, for plaintiff and appellee.

      R. K. Gutter,' W. B. Hyman, and E. IL Washington, for defendant and appellant.
   Wyly, J.

Plaintiff, the owner of five lots of ground, formerly in the city of Jefferson, but now contained within the limits 'of New Orleans,, sues to recover from the defendant the said property; he, the defendant, having acquired the same on the second of April, 1870, for the price of ten dollars at a sale made by the constable of the Eighth Justice Court of the parish of Jefferson under a judgment of said court, rendered on the nineteenth of ■ October, 1869, against plaintiff for eighteen dollars, the amount of taxes due the city of Jefferson for -the year-1868.

The court gave judgment for plaintiff, requiring the defendant to restore to him said property upon plaintiff paying eighteen dollars, the amount of the tax judgment.

Defendant appeals.

There are several reasons why the judgment of the lower court should he maintained:

First — At the adjudication on the second of April, 1870, the constable was without authority to make the sale, because, on the sixteenth of 'March previous, the city of Jefferson was by statute annexed to the city of New Orleans, and a constable of the parish of Jefferson could perform no official duty in the city and parish of Orleans. He could make no sale of property situated beyond the limits of the parish of 'which he was a constable.

Second — Plaintiff, the owner of the property, was a resident of the -city of New Orleans, and ho was not served with notice of seizure; he was in no sense a party to the proceeding whereby the constable attempted to make a forced sale of his property.

Third — The return day of the writ of fieri facias had passed long before the sale, and the constable failed to return it and retain a copy ;as required by law.

Besides, the whole proceeding seems to be a tissue of irregularities. This case closely resembles that of George Jacobshagen vs. John Moy-.lan, the same defendant, 26 An. 735.

Judgment affirmed.


author: Howell, J.

text:
    No. 4421.
    Robert P. Tendick vs. Mary A. Lastrapes, Wife of A. G. Lastrapes, et al.
    In this ease there is ample authentic evidence to warrant the writ of seizure and sale, consisting of an act of mortgage in due form and a noto identified therewith. Any other matters of defense, heyond the sufficiency of the evidence on which the judge a quo issued his order, and such as may relate to the validity of the obligation and the proceedings following the issuance of the writ, must be raised in another form of action.
    APPEAL from the Fourth District Court, parish of Orleans. Titeará, J.

      Hice & Whitaker, for plaintiff and appellee.

      James & Joseph Brewer, for defendants and appellants.
   Howell, J.

This is an appeal from an order of seizure and sale, on which by the well-settled jurisprudence of this court the only question to be examined is the sufficiency of the evidence on which the judge a •■qtw issued his order.

In this case we find ample authentic evidence to warrant the writ, consisting of an act of mortgage in clue form and a note identified therewith.

Any other matters of dispute, relating to the validity of the obligation,, the proceeding's following the issuance of the writ, etc., must be raised in another form of action.

Judgment affirmed.


author: Ludelino, C. J. Taliaferro, J.

text:
    No. 5851.
    Louis Mathe vs. Parish of Plaquemines.
    Tlie judgment appealed from Is against the parish of Plaquemines, cited through • the president of the police jury. The application for the appeal was made through the attorney representing the parish, in the name of the president of the police jury, and the order of appeal was accordingly granted, and the appeal, bond was filed. The condition of the bond recites that the above-bound parish of Plaquemines, through the president of the police jury thereof, shall prosecute this said appeal, and shall satisfy whatever judgment may be rendered against said parish, etc. This is sufficient.
    This court has had frequent occasions to advert to the entire absence of any authority or power of police jurors, under the general law of the State, to make and' put into circulation negotiable instruments, and to announce that the exercise of that power can only take place under a special grant of the Legislature. No special grant of such a power is shown to have been conferred upon the parish of Plaquemines.
    APPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      T. Wharton Collens and JE. Howard Me Caleb, for plaintiff and appellee.

      A. JS. Livaudais, Parish Attorney, Sambola &■ Hueros, for defendant and appellant.
   On Motion to Dismiss.

Ludelino, C. J.

The motion to dismiss this' appeal is based on tile-following grounds:

That the defendant has taken no appeal; and that E. Dobso, president of the police jury of the parish of Plaquemines, has no appealable interest.

The judgment appealed from is against the parish of Plaquemines,, cited through the president of the police jury. The application for the-appeal was made through the attorney representing the defendant, the parish of Plaquemines, in the name of the president of the police jury,, and tlie order of appeal was accordingly granted; and the appeal bond was filed. The condition of the bond recites that “the above-bound parish of Plaquemines, through tlie president of the police jury thereof, shall prosecute this said appeal, and shall satisfy whatever judgment, may be rendered against said parish,” etc.

There can be no doubt that it was the defendant, the parish of Plaque-mines, that appealed.

The objections are not well founded. 12 R. 458.

The motion is overruled.

ON THE MERITS.

Taliaferro, J.

This suit is brought by the plaintiff to recover from the parish of Plaquemines the sum of -four thousand nine hundred and thirty-throe dollars and thirty.-five cents, the aggregate amount of fifty-two certificates of indebtedness or parish warrants of various amounts.

The plaintiff claims to be the owner and holder of these instruments by transfers to him by the drawees, and that he is entitled to all their rights in and to the same. He alleges amicable demand of payment without effect, and prays judgment against the parish for the amount claimed, with interest at five per cent per annum from sixteenth of .August, 1873.

The answer denies the liability of the parish on the instrument sued on, alleging that E. Lawrence and D. A. Thibaut, late president and secretary of the police jury of that parish, had no authority to issue these instruments, and that no provision was made at the time they were issued for their payment in the manner pointed out by law; that plaintiff has not shown that the said president and secretary of the police jury were authorized by that body to issue the instruments in question, or in fact to issue any warrant whatever; and that even if such authority had been given by the police jury its action in that regard 'would have been ultra vires and in violation of the law of the State.

The defendants aver that ‘ the warrants sued upon were negotiable, and issued for the purpose of being negotiated; that most of- them show by indorsement that they have been transferred several times before they reached the plaintiff; that during the years 1871 and 1872, when these instruments were issued, there were no funds in the parish treasury.

■ The court of the first instance rendered judgment in favor of the plaintiff as prayed for, and coupled with it a decree that'the board of assessors of the parish of Plaquemines forthwith assess, and that the tax collector of the parish immediately thereafter proceed to collect, a tax to constitute a special fund out of which to pay the judgment.

The defendant prosecutes this appeal.

The warrants in question were issued in the form of certificates, declaring the indebtedness of the parish to the person in whoso favor they were issued, referring to the voucher upon which the claim was allowed by its number, and then follows the warrant drawn upon, the treasurer in favor of the party, or to his order, and signed by the president of the police jury and countersigned by the secretary. The •evidence shows that the indebtedness ior which these warrants were issued was contracted mainly in the years 1871 and 1872.

There were estimates made, in the usual manner, oí the amount c f funds needed to defray the debts and expenses of the parish for the years 1872 and 1873, and ordinances were passed levying the tax to be raised for the same years to cover these estimates. But it does not appear that any of these taxes wore ever collected.

The parish treasurer, examined as a witness on the trial of the case, swears that “ during the years 1871 and 1872 there was no money in the treasury, the tax collector having received and paid in parish obligations instead of currency. By an ordinance passed in 1873 all holders of obligations against the parish were directed to come forward and have ■them registered.”

The claims of the plaintiff seem to have been registered on the sixteenth of August, 1873. The tax collector as a witness swears “ that from March, 1873, to the twenty-seventh of May, 1874, the last settlement I made with the parish treasurer during the time mentioned, I received parish obligations and turned them over to the parish treasurer; since the fourteenth of June, 1874,1 have received no warrants in payment of taxes, having been prevented by an order of court.”

To a great extent the evidence seems to sustain the allegations of the defendant’s answer. The warrants of the plaintiff bear various dates, from the sixteenth of August, 1871, to November; 1872. • They are negotiable instruments. Some of them passed through the hands of prior holders to the plaintiff. In some instances the amounts of vouchers were divided, and several warrants for smaller sums, aggregating the amount of the voucher divided, were issued, the certificate in such cases expressing that the amount is “in part payment” of the voucher referred to by its number.

The testimony leads to the conclusion that these warrants were intended for circulation and to aid the fiscal officers of the parish, and to subserve the purposes of money. They were paid into the parish treasury as money, and received in payment of taxes up to the twenty-seventh of May, 1874. It would seem that, for a period of near four years at least, no taxes were collected in money. No estimate for the year 1871 appears to have been made, and no provision made for the expenses of that year. We have had frequent occasion to advert to the entire absence of any authority or power of police juries under the general law of the State to make and put into circulation negotiable instruments, and to announce that the exercise of that power can only take place under a special grant of the Legislature. No special grant of such a power is shown to have been conferred upon the parish of Plaquemines.

This case in its prominent features resembles closely that of Sterling vs. Parish of West Feliciana, 26 An. p. 59. In that case there was no money in the treasury when the negotiable instruments sued upon were issued, and there had not been since the late war. No tax had been levied to defray the expenses of the parish. There had not been from the year 1806 to 1872 any taxes collected in currency. For several years previous to the institution of the suit against the parish it had been financiering on a paper currency of its own, taking up old issues with new ones, and disregarding the statute by not providing by a tax to pay the debts and expenses of the parish. The warrants, as they wore called, were drawn in the form of and intended to .circulate as commercial paper; and in that case they were declared upon as such by the plaintiff, who hold them under the assignment and indorsement of the payees.

The view wo have taken of the case now before us inclines us to adopt in this case the same judgment we rendered in the Sterling case. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiff paying costs in both courts.

The decree now rendered is not intended to conclude the right of the plaintiff to claim from the parish payment of all legal claims and dues . he may have against it; but only to decide as in former cases, that a parish unauthorized by legislative act is without power to make and put into circulation negotiable paper or instruments having the same character, payable to order or bearer by indorsement or delivery. See cases, in 23 An. pp. 190-232 and 251; and also 24 An. 457.

Rehearing refused.


author: Taliakebuo, J.

text:
    No. 5569.
    The State of Louisiana vs. E. B. Malone, alias Kinch Malone, and Patrick Jones.
    Thu accused parties, on a second information, were tried and convicted of the crime of breaking- into the shop of Antonio Muealouso, in the night time, with intent to steal, and at a time different from that charged in the first information. By the trial under said first information they were not put in jeopardy, because they were tried on a different charge. The plea of autrefois acquit cannot therefore avail the defendants, and was properly overruled.
    APPEAL from the Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.

      John McPhelin, District Attorney, and
      A. P. Field, Attorney General, for plaintiff and appellee.

      G. H. Braughn, for defendants and appellants.
   Taliakebuo, J.

The defendants appeal from a sentence of the Superior Criminal Court condemning them to imprisonment at hard labor in the Penitentiary for the term of seven years. . •

It appears from the record that these defendants were tried on the twentieth of April, 1874, on information charging them with breaking and entering the dwelling-house of one Antonio Mucalouso, in the night time, with intent to steal. The time when this crime is alleged to have been committed was the thirteenth of April, 1874. On the trial of the accused the State failed to prove that the crime charged was committed on that day. The jury, under the instruction of the court, rendered a verdict of not guilty. The verdict was recorded, and the jury discharged from further consideration of the case. On motion of the District Attorney, the accused were detained in custody, and leave granted him to file another information. This information, the one under which the parties were subsequently tried and convicted, contains four counts:

First — That on the eleventh of April, 1874, the accused broke and entered, in the night time, the dwelling-house of Antonio Mucalouso with intent to steal.

The second count is identical with the. first, except that the word “shop” is substituted for dwelling-house.

The third count sets forth that the same parties on the twelfth of April, 1874, broke and entered the dwelling-house of Antonio Muca-louso, in the night time, with intent to steal.

In like manner, the fourth count is identical with the third, except that the word “ shop” is substituted for .dwelling-house. '

On being arraigned on the twenty-fourth of June, 1874, and the information being read to them, they declined answering, and through their attorney filed the plea of autrefois acquit in bar of the indictment; and on motion the District Attorney was ordered to show cause on the twenty-ninth of June, 1874, why the information should not be quashed and the prisoners released. On hearing this motion it was overruled, to which the accused excepted and reserved their bill, which appears in the record.

Subsequently, in the month of October following, the accused were tried under the-second information, and the verdict of the jury was “ guilty on the second and fourth counts.”

A new trial was applied for, but ineffectually. The accused parties were tried and convicted of the crime of breaking- into the shop of Antonio Mucalouso, in the night time, with intent to steal, and at a time different from that charged in the first information. By the trial under the first information they were not put'in jeopardy, because they were tried on a different charge.

The plea of aulrefois acquit cannot therefore avail the defendants, and it was properly overruled.

Judgment affirmed.

Rehearing refused.


author: Ludeling, G. J.

text:
    No. 6018.
    State of Louisiana vs. David Fenderson.
    The only illegality «< m plained oí in this case is the selection o£ the grand jury by G. H. Braughn while he acted judve ol the Superior Criminal Court, under the appointment of Judge Ato the incumbent, then disabled by sickness, and before his subsequent appointment by the Governor. The question is whether this illegality can be inquired into, after conviction and sentence, on a writ of habeas corpus.

    To ascertain the eases in which the writ m ay bo granted recourse must be had to the English law and to the statutes of the State, which have provided specifically for particular eases. The habeas corpus act of 31 Charles II. has been re-enacted and adopted, if not in terms, yet in substance and effect, in all the united States. Article ¡®‘2 of our Code of Practico enumerates the circumstances in which the writ may be issued when the party applying for it, and to be restored to liberty, is confined by the order of some tribunal. On this occasion the applicant does not bring himself within tlio provisions either of the .English statute aforesaid or of those of our Code of Practice.
    Iu the case now under consideration there is a sentence of conviction of a court of competent jurisdiction. It is not denied that the Superior Criminal Court had jurisdiction of the case, or even that Judge Braughn was the judge of that court when the indictment was returned into court and when ho sentenced the convict. The State constitution recognizes the writ of habeas corpas, and designates the courts which may issue it, but does not point out the cases in which it may be used as a remedy, except that the Supreme Court, or the justices thereof, shall exercise this power only in eases in which the court might have appellate jurisdiction. But the writ of habeas corpus was never designed to be a writ of error by which the errors or irregularities of final judgments could be revised. The application of petitioner is rofusod.
    APPLICATION of David Eonderson for a writ of habeas corpus.

      8. Belclen, for petitioner.

      A. B. Field, Attorney General, for respondent.
   Ludeling, G. J.

The petitioner represents that “on the twelfth of May, 1875, there was returned into the Superior Criminal Court of New ■Orleans, by a body styling themselves a grand jury, a ‘ true bill,’ indicting petitioner for murder.” He represents that he was tried on said indictment and convicted and was sentenced to be hung. Ho representa that the men styling themselves a grand jury were not grand jurors, and had no right or authority in law to indict petitioner, because they were selected or organized by George H. Braughn, who was not judge ■of said court at the time, and that the indictment and all proceedings under it were null and void. He alleges that he is unlawfully imprisoned under said conviction and judgment, and he prays to be discharged.

• It appears from the evidence that the grand jury was impaneled on the fifth of April, 1875, by Geo.rgo H. Braughn, an attorney appointed by -Judge Atocha to preside in his stead. Judge G. H. Braughn was commissioned on the tenth of April, 1875, and he qualified on the twelfth as judge of the Superior Oriminal Court of New Orleans. On the twelfth of May, 1875, the grand jury returned into court the indictment. On the fourteenth of May the accused was arraigned, and pleaded not .guilty. On the twentieth of May a list of the petty jurors was served on the accused. On the twenty-sixth of May he was tried by a jury and convicted; and on the seventh of June, 1875, he was sentenced by Judge G. H. Braughn.

The only illegality complained of is the selection of the grand jury 'by G. EL Braughn while ho acted under the appointment from Judge Atocha and before his commission by the Governor. Gan this illegality bo inquired into alter conviction and sentence, by the writ of habeas corpus ?

The State constitution recognizes the writ of habeas corpus and designates the courts which may issue it, but it does not point out the cases in which it may be used as a remedy, except that the Supreme Court, or the justice's thereof, shall exercise this power only in cases in which the court might have appellate jurisdiction.

To ascertain the cases in which the writ may be granted we must recur to the English law and to the statutes of the State, which have provided 'specifically for particular cases. The habeas corpus act of II. Charles directs that “ a writ of habeas corpus shall bo granted on the complaint and written request of any one committed and charged with any crime, ■unless it be for treason or felony, expressed in the warrant,” etc., or unless “ he is convicted or charged in execution by legal process.” 3 Black, p. 136.

Chancellor Kent in his Commentaries says: “ The explicit-and peremptory provisions of the statute of II. Charles, c. 2, restored the writ of habeas corpus to all the efficacy which was requisite for the due protection of the liberty of the subject. That statute has been re-enacted and adopted, if not in terms, yet in substance and effect, in all these .United States.” 2-Kent, p. 23. Article 822 of the Code of Practico declares : “ If it appear to the judge from the return to the writ or from the accompanying documents that the party is confined by the order of some tribunal, he can only restore such party to liberty in the following cases:

“First — Where such tribunal has exceeded its jurisdiction, as defined ■by law.
“ Second — Where the original impiisonment was lawful, but by some act, omission, or event which has since occurred, the party becomes entitled to his liberty.
Third — Where the order of imprisonment is deficient in some legal requisite. .
“ Fourth — Where the order, although in due legal form, has been rendered in a ease where the law dees not allow the issuing of orders of arrest or imprisonment.
“ Fifth — Where the order is in due form, but has been rendered or executed by a person not authorized for that purpose, or where the person detaining the prisoner is not the person to whom the law has prescribed that duty.
“ Sixth — Where the order appears to have been obtained under false pretenses or by corruption.
“Seventh — Where there exists no general law, judgment, order, or-decree of a court of justice, if it be in a civil suit, or sentence of conviction, if in a criminal suit, to justify the imprisonment.”

In the case now under consideration there is a sentence of conviction of a court of competent jurisdiction. It is not denied that the Superior Criminal Court had jurisdiction of the case, or even that Judge-Braughn was the judge of that court when the indictment was returned into court and when he sentenced the convict. The writ of habeas corpus was never designed to be a writ of error, by which the errors or irregularities of final judgments could be revised.

It is therefore ordered that the application of the petitioner be refused,, and that ho be remanded to prison.


text:
    No. 6014.
    State of Louisiana vs. Andrew Lewis.
    The law docs not cleelai-e ignorance a disqualification in a juror which will authorize a party to challóngs him for cause.
    APPEAL from the Ninth Judicial District Court, parish of Iiapidcs. Orsborne, J. Criminal case.

      A. P. Field, Attorney General, for plaintiff and appellee.

      B. A. Hunter, for defendant and appellant.
   Ludeling, C. J.

The defendant was convicted of manslaughter and sentenced to hard labor in the Penitentiary for ten years.

There are two bills of exceptions in the record. The first is to the ■refusal of the judge to sustain peremptory challenges to four persons, on the ground that they were incompetent because of their ignorance; the second is to the action oí the judge in excusing a juror because of his ignorance, alter the State had accepted him.

In the last case, it seems that the judge did what the accused had .just complained oí the judge lor not doing. It is not pretended that the accused desired to accept the juror, or that he was deprived-of any right. The objection is frivolous.

In regard to the first bill of exceptions, it is sufficient to say that the .law does not declare ignorance a disqualification in a juror which will authorize a party to challenge him for cause. Nor are the cases of the State vs. Push, 23 An. 14, and 25 An. 472, in point. In these cases the jurors could not understand the English language, and were therefore held to be incompetent jurors, as they could not understand the lan.guage in which the witnesses testified and the lawyers and' judge spoke to them.

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


text:
    No. 4891.
    State of Louisiana ex rel. Jules Gourdon vs. A. Dubuclet, and C. Clinton, Auditor.
    However improperly the offices of Treasurer and Auditor may be administered, this court fails to perceive any right in relator, a mere creditor of the State, to obtain a mandamus, and by the process of the court assume to exercise a supervisory control over officers engaged in the revenue department of the State.
    'The Treasurer and Auditor are agents of the State, charged with the performance of the duties pertaining to their respective offices. If thev fail to discharge faithfully the trusts committed to them, they are answerable to their principal. A mere creditor of that principal has no right to supervise the settlement of accounts by these officers with the respective tax collectors.
    With regard to the Audi tor, the only duty he owes to the relator or any creditor of the State is to draw a warrant if he or they are entitled to it. But relator has already the Auditor’s warrants, and he sets up no breach of duty in regard to drawing him a warrant.
    Relator does not complain that the Treasurer has funds applicable to file payment of his warrants, and refuses to pay them out of the treasury as reguired by law. Indeed, there is no ministerial duty that respondents have failed to perform in behalf of relator and that he has the right to require.them to perform.
    APPEAL from tbe Superior District Court, parish of Orleans. Hawkins, J.

      Albert VoorMes, for plaintiff and appellant.

      A. P. Field, Attorney General, for defendants and appellees.
   Wyly, J.

The relator alleges he is the owner of certain warrants described in his petition; that he has repeatedly asked payment of said warrants at the Treasurer’s and Auditor’s offices without success; that 'the settlements^ made with the several State tax collectors during the past three mouths, and the mode of settlement adopted by the Auditor., and opposed by the Treasurer, are such as to out off relator from an equal participation in the general funds collected, and virtually to give a right of preference to the holders of warrants issued for the two quarters, of the present year, which is unjust, and not warranted by law; that in settling with the tax collectors the Auditor proceeds to audit separately all the special funds, leaving aside the item of general funds; that said tax collectors, upon the adjustment thus made, pay over to the State Treasurer the amounts collected for the various special funds, and the same are received by him without exacting át the same time the item fo r general funds; that the Auditor, by a separate transaction with the various. tax collectors, after adjusting- formally or informally the amounts.colleeted for general funds, causes the same to be deposited in the Louisiana National Bank of New Orleans, under his control and absolute right of' disposal, upon a voucher or receipt given by him to the said tax collectors respectively. So that the said Auditor, to the extent of the said general funds, virtually usurps the functions of the State Treasurer, and fails to do his duty, to wit: to audit at the same time the accounts of said tax collectors as a whole, including- the general funds as well as the special funds. That the State Treasurer failed in this respect to require the respective tax collectors to produce their accounts properly adjusted as aforesaid by the Auditor; that relator is entitled to have said general funds properly paid into the treasury, and to be paid the amount of his said warrants. Upon these allegations the'relator prayed for a mandamus against the Treasurer and Auditor commanding them to require of all tax collectors who apply to pay money into the treasury to produce an adjustment of their accounts duly made by the Auditor, including the item of general funds; commanding the said Auditor, in settling-with the respective tax collectors, to give them a full statement, including general funds, and to audit the same together with the special funds, -collected by said tax collectors in one and the same adjustment; commanding the said Auditor to pay over to the Treasurer the full amount of general funds illegally collected by him, say the amount of $103,000; and commanding the State Treasurer to pay out of said general funds the relator’s warrants, amounting in the aggregate to $4635 13. The court granted the preliminary order, but at the trial refused to allow the mandamus to be made peremptory.

Relator appeals.

However improperly the offices of Treasurer and Auditor may be administered, we fail to perceive any right in relator, a mere creditor of the-State, to obtain a mandamus, and by the process of tire court assume to-exercise a supervisory control over officers engaged in the revenue department of the State. The Treasurer and Auditor are agents of the-State, charged with tlio performance of the duties pertaining to their respective, offices. If they fail to discharge faithfully the trusts committed to them, they are answerable to their principal. • A mere creditor of that principal has no right to supervise the settlement of accounts by these officers with the respective tax collectors. With regard to the Auditor, the only duty ho owes to relator or any creditor of the State is to draw a warrant if he or they are entitled to it. But relator has already the Auditor’s warrants, and he sets up no breach of' duty in regard to. drawing huma warrant. He does not complain that the Treasurer has funds applicable to the payment of his warrants and refuses to pay them out of the treasury as required by law. Indeed, we fail to perceive any ministerial duty that respondents have failed to perform in behalf of relator that he has the right to require them to perform.

It is therefore ordered that the judgment refusing the mandamus and dismissing the petition be affinhed with costs.


text:
    No. 4471.
    Succession of M. R. Haggerty. On Rule against Purchaser to comply with Terms of Sale.
    The court a ana had power to order the sale of succession property, and, incidentally, to enforce a compliance with bids made by purchasers, or to order a resale of the property at the risk and expense of the purchasers. The defendant had refused to pay the price of the adjudication after a title was tendered him in open court on the return day of the rule.
    The object of the plaintiff in proceeding against the defendant was to render final and complete a matter pending and in abeyance in the court which had ordered the sale of the property. It was pro por for him to proceed by rule. By the silence of the defendant, after due notice, the plaintiff was entitled to the decree he prayed for.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Charles F. Claiborne, for administrator, plaintiff, and appellee.

      Me-Gloin & Nixon, for defendant and appellant.
   Taliaferro, J.

This case is presented on a statement of facts agreed upon by the parties. Philip McCabe became the purchaser of certain real estate belonging to the succession of Haggerty, which was sold under an order of the Second District Court of New Orleans, for the payment of debts of the succession. McCabe failing to comply with tlie terms of sale, a rule was taken against him by the administrator to show cause why he should not do so, or why the property should not be sold at his risk and expense.

The rule was served upon the defendant, and failing to answer it a judgment by default was taken against him, and made final after the legal delays. The defense is that the Second District Court was without jurisdiction in the premises; that the proceeding by mile was irregular and not sanctioned by law; that no tender of title was made to McCabe, and no refusal on his part to accept title; that the judgment was improperly rendered.

The court had power to order the sale of succession property, and, incidentally, to enforce a compliance with bids made by purchasers, or to order a resale of the property at the risk and expense of the purchasers. 4 B., p. 127. The defendant has refused to pay the price of the adjudication after a title was tendered him in open court on the return day of the rule.

The object of the plaintiff in proceeding against the defendant was to render final and complete a matter pending and in abeyance in the court which had ordered the sale of the property. It was proper for him to proceed by rule. By the silence of the defendant, after due notice, the plaintiff was entitled to the decree prayed for.

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