author: Howell, J. Wrxr, J.,

text:
    No. 2589.
    M. E. Hebert et al. v. M. Hebert and A. Levert.
    A sale of succession property, for tlie purpose of effecting a partition among tlie lieirs, is not an act of administration, allliougli it be made by order of the court, through the administrator, and the sureties of the administrator are not liable to the heirs for loss which they have sustained on account of his failure to take good security for the credit portion of the price.
    A surety signs the bond of an administrator with reference to the law regulating his duties as such, and securing his recourse against the latter, in case of failure to administer the estate in conformity with such requirements. But if the heirs provoke a sale of the property, for the purpose of effecting a partition, and change the time for the payment of tlie credit price from that fixed by law for the sale of property by the administrator, they thereby make the conditions of the surety more onerous, and he is discharged, even if the proceeding be one in which he could be held liable under any circumstances.
    APPEAL from the District Court, parish of Iberville. Posey, J.

      Barrow & Poq>e and Samuel P. Greeves, for plaintiffs and appellees. Pen Linde Egan, for defendants and appellants.
   Howell, J.

Tlie question presented in this case is, whether or not the sureties on an administrator’s bond are liable for the failure of the administrator to take good and solvent indorsers on notes given for the price of succession property, sold for the purpose of partition among the heirs, who obtained an order of court, directing that said notes be indorsed to the satisfaction of the administrator. In other words, is the judging and accepting of indorsers on notes, taken for the price of succession property, sold for the purpose of maldng a partition among the heirs, an act of administration contemplated by the law which requires an administrator to give a bond, with security, for the fidelity of his administration ?

After a careful consideration of the laws and jurisprudence relative to the duties and responsibilities of administrators and their sureties, rve conclude that the question, as presented in this record, must be answered in the negative.

Mrs. Clarisse Bush died in May, 1859, leaving nine heirs of age, and! the minor children of a tenth heir, then deceased. A family meeting,, on behalf of these minors, advised a sale of the whole estate, on a credit, the purchasers to assume the mortgage debts, and for the balance, lurnish their notes, payable at fixed periods, secured by mortgage on the property sold, “indorsed to the satisfaction of the administrator, and in such coupons or divisions as will facilitate a -partition and settlement among the heirs.” All the other heirs, including the administrator, joined in the petition for the homologation of the deliberation of this family meeting, and an order of sale to the sheriff, in accordance therewith.

At the sale, so ordered, lour of the heirs, the administrator being one, purchased the bulk of the property for $129,100, assumed the mortgage in favor of the Citizens’ Bank, and for the balance — $121,324— furnished their forty notes, for $3033 10 each, to the order of and indorsed by Louis Hebert, one of the purchasers, and Dr'. P. M. Lambremont, who, though in good credit, owned no property, which indorsers, the sheriff’s deed says, were accepted by the administrator.

After the maturity of the first series of ten notes, the administrator filed accounts, in April, i860, showing the condition of the estate and debts paid, and proposing to pay to the heirs, who were not purchasers, their respective shares in said notes. Two accepted, but the four, who are the plaintiffs herein, refused to do so — opposedthe homologation of the accounts, on the ground, among others, that the notes offered were not such as were contemplated by the heirs and order of court, not being properly indorsed, and subsequently obtained an order of the court, directing the administrator to substitute a new tableau of distribution for the one first filed, and that the notes to be given to the opponents be indorsed to their satisfaction before delivery made, and receipt required.

Other proceedings were taken by them against the administrator, which resulted in a judgment, in 1866, against him, for their shares of the estate, less some credits; and, not being able to execute it, they instituted this suit, and obtained judgment against his sureties.

The creditors of the succession took no part in any of the said proceedings, and have not complained.

In our opinion a resort to judicial proceedings was had simply because some minors were interested, and solely for the purpose of a partition among- the heirs, who thereby put an end to the regular administration of the estate under the provisions of the law, and took entire control of it themselves, the payment of the debts being only am incident in the proceeding's, to all of which the creditors made no -objection.

By thus taking charge of the estate, fixing terms and conditions of ■sale, different from those prescribed by law for the settlement ot successions, and directing the administrator to accept notes indorsed to his satisfaction, and in sums convenient for effecting a partition, they constituted him their agent-, to superintend the various steps necessary to complete the partition, and which it was no part of his duty, under the law, to do as administrator. The heirs must be viewed as joint owners of the property, uniting in proceedings to effect a partition, and the first judgment rendered was little more than an agreement between themselves to sell the property at public auction, for the purpose of paying the debts and coming to a partition.

This was the view taken in the case of Bray v. Bray, 16 La. 352, where the two universal legatees were appointed dative testamentary-executors, and joined in an application for a sale of the property, on a credit of one, two and three yrnars, the purchasers to give their notes, with approved indorsers, for the double jrarpose of providing for the payment of the debts, and to cause a partition among themselves.

The plaintiffs herein had an opportunity to accept the notes given for the property sold and secured by a mortgage thereon, and upon their non-payment at maturity, to cause the property subject to the mortgage sold to pay them. They left the notes in the hands of the party directed by themselves to receive them, and in his hands they seem to have become unavailing. This they might, to some extent, have averted.

The obligation of the administrator is to administer faithfully, and according- to law, the effects of the succession intrusted to his care, and account for the same. The surety guarantees the faithful performance of these duties; and for informalities and irregularities in a salé, or the sale to an incompetent jrarchaser, or for worthless security, when tile sale is caused by the administrator, the surety would be liable to those immediately interested in its faithful administration, to wit: creditors and heirs. 10 An. 668; 6 La. 303. But a sale for partition is not an act of administration, and wo know of no law, which authorizes an administrator as such, to provoke such a sale.

The surety signs the bond with reference to the law regulating .the duties of the administrator, and securing his own recourse against the latter. Ho knows that the law requires the administrator to sell property' for cash or on twelve months’ credit, and that if the administrator should fail iu any duty in making a sale, he will have opportunity at the end of the twelve months at farthest, to ascertain the fact and take steps to protect himself. Where the term of credit is extended by the heirs, without his consent, bpyond that fixed by the law, his condition is changed and made more onerous, and he would be released, even if the proceeding be one in which he could, under any circumstances, be held liable under the law.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants, with costs in both courts.

Wrxr, J.,

dissenting. On the question of the liability of the sureties of the administrator presented in this case, I entertain a different view of the law from that taken by the majority of the court.

In conducting the sale which was ordered for the purpose of effecting “a liquidation, settlement and partition of the succession,” I think the administrator acted in his fiduciary capacity, and that his sureties are responsible for his unfaithful conduct, and acts of maladministration, whether the court ordered the property to be sold on one, two and three years’ time, or whether it ordered the sale on twelve months’ credit. It was his duty to see that good and solvent sureties were taken on the notes given for the price of succession property regardless of the time of maturity fixed in the notes. Whether the sale was necessary or not, he should not have parted with the property confided to 1dm without requiring the security contemplated by law on the notes given for the price.

The sureties of the administrator who has caused loss to the succession by not requiring solvent security on the notes given for the price of succession property, can not escape liability by setting up that the sale was not necessary for the payment of debts ; that the creditors might have been provided for by the sale of less property, or without causing a sale. This is no excuse. It is enough that the court having jurisdiction of the succession ordered the property to be sold on terms deemed most advantageous to those immediately interested in the succession. It was the duty of the administrator, the sworn and bonded officer of court pro hac vice, to have conducted the sale according to the order of the judge; and if he failed to take good security on the notes, as required, and loss occurred to those immediately interested, whether creditors or heirs, he and his sureties became liable ior the amount of loss or damage resulting from disobedience of orders or acts of maladministration. Now what excuse is it for failing- to take good security on the notes that they matured in one, two and three years’ time. Was it not just as easy to take good security on notes maturing at tlie dates named, as it would he to take good security on notes maturing in twelve months ? What has the time of maturity of the notes to do with failure, to take gooil security ?

It is, in effect, conceded if the sale had been made on twelve months’ time, the usual period fixed by law, that the administrator should have taken good security; and it is said that the sureties of the administrator signed his bond with reference to the time fixed by law for credit sales; that the order prolonging the time of the credit sale made the condition of the sureties of the administrator more onerous. Such I do not regard as correct. It was just as easy to take good security on notes maturing at one time as another. Prolonging the time of payment did not make the obligation of the administrator to take good security on the notes, more onerous.

In the case before us, there was really but one security taken and he was not, at the time, worth any thing — the other indorser being one of the purchasers who was already bound as maker.

Can it be said that an administrator has discharged his duty to those immediately interested in a succession in his hands, when he takes notes for the price, amounting, in the aggregate, to $121,000 00, with only one security, and ho known to bo without property?

But it is said the order of the judge was, that the notes given for the property should be “ indorsed to the satisfaction of the administrator.”

In Fontenel v. Debailon, administrator, etc., 8 An. 509, whore by the terms of sale in an insolvent succession, fixed by the creditors, the property was to be sold on a credit, the “purchaser giving Ms obligation, with two approved securities each,” etc., it was hold to be the duty of the administrator himself to require two good securities, and the responsibility was his if he failed to do so. But it is said the heirs having joined the administrator in applying for the sale on one, two and three years’ time, virtually took possession of the estate, as joint proprietors, and his duties as administrator terminated; that after-wards, in conducting the sale, he acted only as their agent; that the main object of the sale was a partition among the heirs, the payment of the debts being only an incident. I do not regard the administrator as only bound to the creditors. He is bound to the heirs as well as to the creditors, and his securities are liable for any dereliction of duty that may cause loss to the heirs or creditors. Such an agency as the securities contend arose hero between the administrator and the heirs, is unknown to our laws.

Part of the heirs were minors, and it would be strange that they could in any manner consent to such an agency. How minors’ property can be sold through any other agency than that provided by law, I can not conceive. How could they consent to appoint the administrator their private agent to conduct the sale, and see that proper security was taken on the notes given for the price of the property sold ? The sale was a probate sale, made by the sheriff under the-direction of the administrator, who was charged to see that proper security was given on the notes. The sheriff could not complete his adjudication without o-ctting notes to the satisfaction of the administrator.

In this case, the administrator, being one of the heirs, bought the property jointly with three of the other heirs. This suit is by three of the heirs of age, and by the minor heirs of Armant Hebert, who contend that they have lost all their inheritance by the maladministration of the administrator, against whom they have judgment, and now seek to hold his securities liable. Here the administrator himself bought the undivided fourth of the property, and failed-to see that legal security was taken on the notes, as his duty required. Are these minors to be divested of their share of the estate, and be told that they appointed the administrator their private agent, who ruined them, and the court can grant them no relief? I think not. The minors-could not appoint a private agent. They aro under the protection of the law, and the agents of court, who alone can sell their property,, are responsible, and their securities guarantee their faithful discharge of duty. The law employs no irresponsible agents to sell minors’' property.

In the case of Bray v. Bray, 16 La. 352, the court said: The parties wore joint owners of the property under the will of S. G. Bray, and although joint executors, also, they did not and could not act in that capacity in a contest between themselves in relation to the property.” There both the legatees were of age, and both had seizin of the estate-as joint executors, and the point on which that decision turned was-not analogous to the one presented in this case. Here only one of the-heirs had the possession and administration, and the question is, in. what capacity did he conduct the sale? Did he act as the private agent of the other heirs, majors and minors, or did he follow the -writ of sale in his fiduciary capacity?

To my mind it is very evident that his acts were administrative; he-did not obey the orders of court, and his sureties are liable for the-loss ho has occasioned to the heirs. Perkins, Campbell & Co. v. H. B. Cenas, 15 An. 60; 16 La. 72; 6 La. 392 ; 5 La. 322; 11 La. 329; 19 La. 462; 10 An. 668; C. C. 1140. The doctrine that a surety is released by an extension of time granted to the principal debtor without his consent, does not apply to the case of the sureties on the, official bond of an administrator. 9 R. 276.

Por these reasons I feel it my duty to dissent in this case.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 2381.
    Schmidt & Ziegler v. The First National Bank of Selma
    A non-resident may appeal from a judgment rcnclcro.1 against him on attachment any time within two years irom the date thereof.
    ‘Tlxo act of Congress, approved June 0, IfcGi, entitled “An Act to provide a national currency, secured by the pledge oí United States bonds,” gives to the United States a first and paramount privilege upon all the assets oí a banking associa'ion organized under the act, to reimburse to tho United States the amount expended in paying the circulating notes of such banking association. Therefore, the privilege given to an attaching creditor over tho assets oí the First National Bank of Selma must be postponed to that of the pnvilego of tho United States where it is shown, as in this case, that the Louisiana National Bank, a debtor of the First National Bank of Selma, had notice of the claim of the United State5? on the assets of the First National Bank of Selma before the seizure by tho creditors under the attachment.
    APPEAL from Seventh District Court, parish of Orleans. Collens, J.

      Jindd c£ Grover, for plaintiffs and appellees. 33. Pearson, for •defendant and appellant.
   Taliaferro, J.

Tho plaintiffs being holders of two drafts or checks drawn upon the Louisiana National Bank by the First National Bank of Selma, in Alabama, and their payment being refused, brought suit in New Orleans against tho Selma bank, proceeding by attachment and x>rocess of garnishment. The Louisiana National Bank answered, through its officers, that there were funds of the Scima bank in their custody, hut that they had been notified by tho Government prior to tho notice served on them of seizure by the plaintiffs, that it claimed a lien upon all the assets in their hands belonging to tho Selma bank, and ordered that they be held subject to tho claim of the United States. Cadle, who had been appointed receiver of tho First National Bank of Selma, appeared and filed an exception to the plaintiffs’ proceeding, on tho ground, that at tho time of tho institution of tho plaintiffs’ suit and long prior thereto, the Selma bank was in liquidation; that ho had been duly appointed receiver thereof, and that tho court before which the plaintiffs brought their action is without jurisdiction.

A curator ad hoe was appointed, who subsequently filed an exception of similar import, and these exceptions being overruled, the curator answered by general denial. A judgment was rendered in favor of the plaintiffs with privilege upon the property attached. This judgment was signed in the lower court on the nineteenth of June, 1868. An execution was issued and tho receiver came in as third opponent, claiming that lie was entitled to be put into possession of all the assets of tho Selma bank in controversy, in preference to any and every lion or privilege set up by Schmidt & Ziegler, averring his privilege to be •established by tho Currency Act of Congress, approved June 3, 1864; and that on or about the seventeenth of April, 1867, the First National Bank of Selma, having failed to redeem its notes as required by law, the Louisiana National Bank, the garnishee in this case, was duly notified thereof, and that the Government of the United States had and claimed a lion upon all the assets of the Selma bank in possession of the Louisiana National Bank, and that it was ordered to hold all such funds and assets subject to the claim and lion of the United States.

To this third opposition the plaintiff opposed the plea of res judicata, alleging that the same matters now set up in the opposition had been presented in this case by defendant before judgment rendered, and W'ere decided by that judgment adversely to him.

A judgment was rendered on this third opposition on the twenty-ninth June, 1869, by the judge of the Seventh District Court of Nerv Orleans, the case having been transferred to that court from the Third District Court.

The judgment was in favor of the plaintiffs, and the defendant, on the second of July, 1869, took an appeal irom both judgments; the appeal being devolutive as to the judgment of nineteenth June, 1868, and suspensive as to that of second July, 1869.

The plaintiff opposes prescription in bar of the opponent’s right to appeal from the judgment rendered on the nineteenth of June, 1868. This can not avail him; the opponent not being a resident of the ■State may appeal within two years.

The plaintiff acquired no right as against the United States by attaching the assets of the Selma bank in the Louisiana National Bank, of New Orleans.

It is expressly provided by the act of Congress, approved third of June, 1864, entitled “ An Act to provide a national currency secured by a pledge of United States bonds and to provide for the circulation and redemption thereof,” in regard to the associations for banking purposes authorized by that act, “ that for any deficiency in the proceeds of the bonds pledged by such association when disposed of as hereinafter specified, to reimburse to the United States the amount so ■expended in paying the circulating notes of such associations, the United States shall have a first and paramount lion upon all the assets of the association, and such deficiency shall be made good out ■of such assets in preference to any and all other claims whatsoever, except the necessary costs and expenses of administering the same.” This law enacted in the public policy of the country by the Congress of the United States none can be presumed to be ignorant of. It is shown that previous to notice to the Louisiana National Bank of ilie plaintiffs’ seizure in its hands of the assets of the Selma bank, the Louisiana National Bank had been notified of the lion claimed by the Government upon these assets, and ordered to hold the same subject to the claim of the United States.

The right of the receiver of the Selma bank to the possession and control of the assets in question, we think fully made out, and conclude that the judgment of the lower court is erroneous.

It is therefore ordered, adjudged and decreed that the judgment of the district court he annulled, avoided and reversed. It is .further ordered that there ho judgment in favor of the defendant and opponent, and that lie, in his capacity of receiver of the First National Bank of Selma, have and ho put into possession and control of all the assets of the Selma hank in the Louisiana National Bank, of New Orleans, and which constitute the subject matter of this controversy. It is further ordered that the plaintiffs and appellees pay all costs of this suit.


text:
    No. 2335.
    Succession of Susan Nitch—Opposition to the Executor’s Account.
    Expenses incurred for materials furnished and labor performed, at the request of tho executor,, for the preservation of the property of tho succession, are properly chargeable to tho estate, and are not prescribed by one year. • The iurnisher of materials, and labor done in repairs-to the property of a succession, does not come under the class who are subject to the prescription of one year, as designated by article 34.99 of the Civil Codo.
    An account founded on an agreement between the testatrix and her agent that she should pay board to the agent with whom she was living, is chargeable to the estate, and is not prescribed by one year.
    APPEAL from Second District Court of New Orleans. Buvigneaud, J.

      JS. Bermudez, for plaintiff and appellant. A. If. Briclcell, for defendant and appellee.
   Taliaferro, J.

The opponent claims from the succession $1269, which he avers is the balance due by the succession on an account presented. This account is made up of various items, of which the principal one is the opponent’s charge of $900 and $176 80 interest on that sum, alleged to be for hoarding, washing and lodging furnished Mrs. Nitch, the decedent, from January 15, 1863, to July 15, 1865. To all the items of the account the executor pleads the prescription of one and three years. To tho items charged for material and labor furnished for repairs of property of the estate since the death of the testatrix, he excepts that, if due at all, they are due by the executor,, in his individual name, and are not chargeable to the succession. The item $100 for expenses of the last illness was reduced to $53 50. With this exception the opponent’s account was sustained, and he had judgment for $1221 50.

The executor appealed.

The charges for materials furnished and labor performed, we think the succession properly liable. These expenses were incurred for tho preservation of the property from decay, and enhanced the price realized by the sale of it. The benefits inured to all interested in the succession, as well creditors as legatees. The executor relies on tho prescription of one year as barring the opponent’s claim for materials furnished and labor done in the repairs to tho property, and refers to Article 3499. Among the various debts .enumerated in that article, as prescribed by one year, is “that of workmen, laborers and servants, for the payment of their wages.”. Th.e opponent does not seem to us to come under the class here designated. .He, it appears, was an agent of the estate and acted in these matters as an employer who contracted for the material and engaged the workmen who did the work, and made payment for all. On the part of the executor it is argued that the item for board is prescribed by one year, according to articles 3499 and 3500 of the Code. The article 3499 declares the prescription of •one year against the claims of “ inn keepers and such others, on account of lodging and board which they furnish.” This prescription has been held to apply to claims for board in private houses where the proprietors or managers make it a business to furnish board at a fixed price. 2 An. 759 ; 3 An. 458; 5 An. 599.

It appears that the opponent in this case is a housekeeper; that Mrs. Nitch was a widow, childless, advanced in age and in infirm health; that she owned several houses and lots in New Orleans; that she was on terms of intimate friendship) with the opponent and his family; that she intrusted to him to a great extent the management of her property, the collection of rents due her, etc. It is shown that .there was an agreement between the piar ties that the testatrix should pay board; a verbal agreement, it seems, had existed in relation to a sale of a portion of her property to the opponent, and that conrpensation for board was to bo deducted from the price to bo given. This agreement was never carried out. It is not shown that the opponent ever had any other boarder, much less that he made a business of keeping a house for boarding persons. We can not, therefore, regard him as an innkeeper or as the keeper of a private boarding house, and, consequently, conclude that his claim is not subject to the prescription of article 3499. Neither does it seem barred by the prescription of three years. The opponent charges board for two years and a half, from fifteenth of January, 1863, to fifteenth of July, 1865. His opposition to the executor’s account was filed June 16, 1868.

We see no error in the judgment.

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


author: Howell, J.

text:
    No. 1951.
    Meeker, Knox & Co. v. Cummings, Brown & Co.
    If suit is brought by the holder of a protested draft against the drawer, as a member of the firm who are the drawees and acceptors, the fact that he is a member of such firm must he proved heiore judgment can he rendered against him as such.
    The f dlure to give notice of the non-payment hy the acceptor of a draft will discharge the drawer.
    APPEAL from the Fourth District Court for the parish of Orleans. Théarcl, J.

      Thomas JB. Mart, for plaintiffs and appellees. John M. New, for defendant and appellant.
   Howell, J.

Harry T. Hays has appealed from a judgment against Mm, individually, and as a member of the commercial firm of Cummings, Brown & Co., on a draft drawn by Mm in favor of Daniel W. Adams on said firm, all of whom are alleged to be members of the firm.

There is no evidence that Hays is a member of said firm, or that notice of the protest of said draft was served on Mm as drawer.

The plaintiffs have, therefore, failed to make out their ease against the appellant, who pleaded the general issue.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment dismissing plaintiffs’ demand, as of non-suit, with costs in both courts.


author: Ludeling, C. J.

text:
    No. 2465.
    The State of Louisiana, ex rel. A. Willoz, v. S. N. Burbank, Treasurer Metropolitan Police Board.
    A mandamus can not i^suc to a pub’ic officer or a public body to compel tlie performance cf any act where they have a discretionary power. Nor will the writ issue to compel the treasurer of a corporation to pay a demand when there is no money in the treasury.
    A writ of mandamus can not issue against the same body to compel tlie performance of two-separate and distinct acts, the one not depending upon or grpwing cut of the other. In such a case separate and independent writs must issue.
    The Board of Metropolitan Police can not be compelled, by mandamus, issued at the request of a creditor, to receive an amount of funds alleged to be in the hands of the State Treasurer to their credit, because they, (the board), have the discretionary power to receive or refuse to receive the funds.
    APPEAL from Fifth District Court, parish of Orleans. Beaumont, J.

      JE. Mlleul, for Board of Metropolitan Police, appellants. B. Bermudas, for relator, appellee. J. Hawkins, for S. N. Burbank, treasurer, appellee.
   Ludeling, C. J.

The relator represents that “ he is the holder and owner of one hundred and thirty-two warrants issued by the chief clerk of the Board of the Metropolitan Police, (for the j>ay of the police organized under the provisions of an act entitled An Act to establish a Metropolitan Police District, etc.), on S. N. Burbank, the treasurer of said board, who has accepted the same for payment, forming, in the aggregate, a sum of nine thousand nine hundred and ninety-nine dollars and seventy-five cents, as appears by said warrants, which are themselves annexed as parts of this petition. * * That said warrants being due, petitioner has applied for payment of the same to said Burbank, who stated that he had no funds at the time to meet the same; that the State Treasurer lias in his possession, to the credit of said Burbank and board, the sum of seventy thousand dollars and upwards, which he has offered to transfer to said board and treasurer for the purpose of paying the warrants issued in conformity with said law, and now due and exigible, but that said board and its treasurer refuse, without cause, to receive said sum from said Treasurer, and it is their duty to do; that petitioner has a right to compel said Burbank treasurer, to receive from said State Treasurer said sum of seventy thousand dollars and more, and to have the same applied to the payment, by said Burbank, treasurer, of petitioner’s warrants, amounting to $9,999 75. Wherefore, petitioner prays that a writ of mandamus issue herein commanding said Burbank, treasurer of said Board of Metropolitan Police to apply for and to receive from the State Treasurer the sum of seventy thousand dollars or more, and out of the same-to pay petitioner the sum of $9,999 75, as first applicant for payment, or show cause to the contrary, on such day and hour- as the court may fix; that, in the meantime, said Burbank be prohibited from receiving and issuing the same to the injury of petitioner, and that after due proceedings said mandamus be made peremptory,” etc.

The alternative writ was issued as prayed for. Subsequently a-supplemental petition was filed alleging that the city of New Orleans-had placed in the hands of the State Treasurer seventy thousand dollars and upwards to pay the police in said city; that the Board ol Metropolitan Police, has, without cause, refused to receive said sum from said State Treasurer and to apply the same to the payment of said city police, and that it still refuses to do so. He prays that said Metropolitan Police Board, through its president, Oscar J. Dunn, and its members, (naming them), be commanded, by mandamus, to receive said sum of money from the State Treasurer and to apply the same to the payment of petitioner’s warrants in preference to all other warrant-holders, as first applicant, etc.

An exception was filed, which we deem unnecessary to notice.

Burbank’s answer is simply a general denial.

The answer of the Board of Metropolitan Police averred that the-apportionment of expenses for the support of the Metropolitan police having been made by the board, the city of New Orleans was assessed at the sum of $805,635. The city offered to pay the said assessment to the State Treasurer, provided the board would, by resolution, authorize the treasurer to receive, at par value, city bonds bearing seven per cent, interest, which proposition the board refused to accept, on the ground that they had no authority, and for other reasons communicated to the State Treasurer on the seventeenth July, 1869.

On the nineteenth of October the State Treasurer informed the board that he had received from the city $805,635 of the said bonds, and had sold them at a large discount for account of the Board of Metropolitan Police, and presented to them his account of said funds for their approval and acceptance.

The board thus called upon to approve or disapprove an account, have exorcised their discretionary power by refusing ,to approve said account, leaving the difficulty yet pending and unsettled between the State Treasurer and the board.

That by reason of these obstacles the money in the hands of the Treasurer of the State has not been transferred to the Metropolitan, treasury, which is now empty.

That no mandamus can issue to public officers or public bodies to perform any act where they have a discretionary power.

That, there being no money in their treasury, a mandamus to pay money would be a vain thing, and on that ground can not bo granted.

That a mandamus, commanding your respondents to receive the amount tendered by the State Treasurer, would be a command to the board to ratify the receipts, salehmd discount of the city seven per cent, bonds (which is expressly forbidden by Act No. 49, 1869), and would involve the board in heavy responsibilities, and substitute the judgment of the court to the judgment of the board.

That the mandamus should not issue, because the relator has not made any demand on the board, nor has ho made any proffer of the warrants held by him, and that the acts to be performed are not specifically set forth, and accurately described.

That they are distinct acts, not.dependent the one upon the other, and can not bo included in one mandamus; that one of the acts to be performed, to wit: to receive money from the State Treasurer, does not depend upon the will of your respondents, but upon the will of the •State Treasurer, etc.

That no mandamus can issue to the treasurer of the board, distinct from a mandamus addressed to the corporation — the treasurer being a subordinate, subject to the will of the governing body, etc.

On the day fixed for trial, it appears, from the brief of the counsel for the Board of Metropolitan Police (but there is nothing in the record to show it), that the suit was discontinued, as against the Board of Metropolitan Police; and the following admissions were made by counsel for Burbank, to wit:

“ That, since the institution of these proceedings, to wit, on Tuesday or AVeduesday, Mr. Burbank has received from the State Treasurer $585,790 47, with $11,000 reserved for the payment of the Police Commissioners. A suit was brought in the Sixth District Court, on the twenty-first of this month, by J. B. Howard, agent, for the cams following, to wit: Antoine Dubuclct, $490,000; Mr. J. Hernandez, $16,000; Mr. II. Newgass, $10,000; Octave Belot, $26,000; and sundry other persons, in which the mandamas was made peremptory. On the same day, a mandamus on S. N. Burbank was made peremptory, in favor oí W. Pugh, for $37,538 07. On the same day, a like mandamus was made peremptory, in favor of Davidson & Hill, for $12,813 66. On the twenty-second day of October, Hughes & Dejean, representing numerous policemen, obtained judgment against Burbank for $16,277 18. On Monday, the twenty-fifth of October, S. N. Burbank, treasurer, obtained a mandamus on Antoine JDebuclet to pay over to him, as treasurer, $596,790 47, less $11,000, reserved for the commissioners. Mr. S. N. Burbank, treasurer, as lie understands, has paid to Antoine JDebuclet, as a citizen and holder of warrants, about $490,000.”

Upon this evidence, and tho pleadings, the judge a quo made the ■nitmdamus peremptory against Burbank,

It is lamentable to witness such flagrant abuse of legal remedies, and such shameful dereliction of Official duties as are shown by this record. The answer filed by the Board of Metropolitan Police furnish good and sufficient reasons why the mandamus should not have been made peremptory.

It is therefore ordered and adjudged that the judgment of the district •court bo reversed, and that the petitioner’s application bo dismissed, with costs of both courts.


text:
    No. 1829.
    Charles Case, Receiver of the First National Bank of New Orleans, v. Manheim Berwin.
    'The act of Congress authorizing the controller of the currency to appoint a receiver to take charge of any bank or association that has failed to redeem its circulating notes, and is in def mlt, with full power to collect all debts due such bank or association, authorizes such receiver, when appointed, to sue for and stmd in judgment in the courts of tho country in all cases involving the collection of debts due such bank or association.
    Parol testimony is not admissible to explain, contradict or vary a written contract of sale, nor can witnesses be heard to show what the understanding of the finance committee, the Common Council of the city of New Orleans, or the communiiy in general, was, aeout the meaning of an ordinance authorizing tho sale of city property.
    Iua sale of property by ike city of How Orleans, authorized by ordinance of the Common Council, the city fixed the terms in so far as to requiro the purchaser to pay one-fifth of tno amount bid m cash, at the time of sale, the balance to be pai l in insta.lments to suit the purchaser, with mortgage retained on the property sold, until final paymont, giving, however, the purchaser the right of paying the whole amount in cash, and, in that event, tho city was to take in payment her matured obligations at par. The purchaser declined to avail himself of this privilege of paying the entire indebte ness at the time of sale, but gave his note for the amount in dollars. Held — That not having paid the amount in city notes at the time of sale, he could not now claim to discharge the note in any thing but lawful currency; that the right to pay in city notes was forfeited by his failure to avail himself of tho conditions proscribed.
    APPEAL from Fift.li District Court, parish of Orleans. Beaumont, J.
    IjL O. B. Bright and J. B. Bouse, for plaintiff and appellant. B. Filleul, ior defendant and appellee.
   Ludeling, C. J.

The plaintiff, alleging- that ho is the holder and owner of a negotiable note, secured by mortgage, executed by Manheim Berwin, prays for judgment for the amount of the note, with interest and costs, and for a recognition of the vendor’s privilege and mortgage.

Tlie defendant filed the following exceptions to this demand:

First — The defendant denies specially that tho plaintiff has been ■appointed by any legal and competent authority, receiver of tho First ■National Bank of New Orleans; defendant specially denies that the plaintiff has qualified or given bond, as required by the laws of the United States, to enter upon tho duties of such an office.

Second — Defendant further excepts on the ground that this is a suit in which the United States are interested, and are the real plaintiffs, that the suit can not stand if not instituted in the name of the United' States.

Third — That the counsel who signed the plaintiff’s petition are not authorized to represent the United States; that, by law, it is made the duty of the District Attorney of the United States to represent the Government in all civil suits, in which they are interested. The United States can not be represented by any private person, but must appear in court through their constituted organ.

Fourth — And the respondent also claims oyer of the appointments and titles of the plaintiff to appear in this suit on bohaf the United States.

The appointment of Charles Case as receiver, by the controller of the currency, was filed in evidence.

The statute of the United States,' providing a national currency, directs that when the controller shall be satisfied that any association lias refused to pay its circulating notes, and is in default, lie may appoint a receiver, who, under the direction of the controller, shall take possession of the books, records and assets of every description, of such association, and collect all debts, dues and claims belonging to the association. Statutes at Largo, 1861, 114, Sec. 50. The power 1a colled debts embraces the right to use all necessary means to attain the object of the agency. The exception was correctly overruled.

The answer denies that the plaintiff is the holder of the note; he avers that it belongs to the city of New Orleans, and that it was given for the purchase of batture lots sold by the city to redeem city notes, and the condition of the sale was that the price might be paid in city notes ; that the National Bank was well aware of this condition, and that he tendered payment in city notes.

The defendant offered witnesses to prove that the understanding of" the finance committee of the Common Council, and of the community in general, was that the city property for which the note was given, was sold for city notes. The plaintiff objected on the ground that parol evidence was not admissible to explain, contradict or vary the written act of sale. The objection was overruled, and a bill of exceptions was taken to the ruling of the of district judge. The testimony should have been excluded. C. C. art. 2250.

The ordinance authorizing the sale is in the record, and its meaning-can not be explained by the understanding of individual members of the Council. It provides that the property shall be sold on the following terms: “ One-fifth cash, in matured and lawful obligations of the city, or in United States treasury notes, and the balance in equal installments, divided into coupons, if required, of one, two, three and four years'1 credit, with special mortgage on the property sold; said notes to bear interest at the rate of six per cent, per annum from date to maturity, and if not then paid, eight per centum thereafter until final payment, with privilege on the part of the purchaser to pay the whole or any part of their notes in cash.”

The proces verbal of sale contains a repetition of the language used •in the ordinance. The note is in the following -words and figures:

“New Orleans, June 6, 1866.

','• $2720. — One year after date I promise to pay to the order of myself tw'enty seven hundred and twenty dollars, value received, bearing interest at the rate of six ¡-.er cent, per annum from date to maturity, and thereafter, if not paid then, eventual interest at the rate of eight per cent, per annum from maturity until paid.

(Signed) Maniiedh Berwin.

(Endorsed) Manheim Bor win,

We varietur. — Secured by mortgage, by act passed before me this day, July 14, 1866, New Orleans.

W. J. Castell, Notary Public.”

The ordinance required the purchaser to pay, at least, one-fifth of the price cash, that is, at the time the sale was made. As to the remainder of the price, he might divide it into installments payable in one, two, three or four years, at his option. lie had the privilege to pay the whole, or any part over one-fitth, of the price, cash, that is, at the time of the sale. The cash payment could bo made in the matured and lawful obligations of the city.

The object of the ordinance is manifest; it was’to give credit and value to city notes, by causing a large portion of them to be withdrawal from circulation and canceled immediately.

The purchaser did not avail himself of the “privilege” granted by the terms of the sale, of paying the whole amount of the price “ cash,” but he chose the alternative, and gave his note for “dollars,” which means lawful money.

The evidence satisfies us that the note belongs to the First National Bank. The plaintiff is entitled to a judgment for the amount of the note, with interest and costs, in lawful money of the United States.

It is therefore ordered that the judgment of the district court be reversed; and it is ordered that there be judgment in favor of the plaintiff against the defendant, for the sum of two thousand seven hundred and twenty dollars, until six per cent, per annum interest from the sixth day of Juno, 1866, to the sixth day of June, 1867, and eight per cent, per annum from the sixth of June, 1867, till paid, and costs of both courts. It is further ordered that the vendor’s privilege and special mortgage retained on the property sold, be recognized and made executory.

Rehearing refused.

Justices Howell and Howe are recused in this case.


author: Ludelinu, C. J.

text:
    No. 1830.
    Charles Case, Receiver of the First National Bank of New Orleans, v. H. F. Sturcken.

      APPEAL from Fifth District Conrt of New Orleans. Beaumont, J.

      George B. Bright and J. B. Bouse, for plaintiff and appellant. tlollens id Wooldridge, for defendant and appellee.
   Ludelinu, C. J.

This case is similar to the suit of Charles Case, Receiver, etc., v. Berwin.

For the reasons given in that ca^e, it is ordered, adjudged and decreed that the judgment of the district court bo avoided and reversed, and that the plaintiff have judgment against the defendant for the sum of nine hundred and sixty dollars, with six per centum per. annum interest, from the first of Juno, 1866, to the first day oi June, 1867, and eight per centum per annum interest thereafter until paid, and the costs iu both courts. ‘It is further ordered that the vendor’s privilege and the special mortgage retained on the property sold bo recognized and made executory.

Justices Howell and ITowe arc recused in this case.


text:
    No. 1831.
    Charles Case, Receiver of the First National Bank of New Orleans, v. H. F. Sturcken.
    APPEAL from Fifth District Court of New Orleans. Beaumont, J.

      George B. Bright and J. J). Bouse, for plaintiff and appellant. Gollens cii Wooldridge, for defendant and appellee.
   Ludeling, C. J.

This suit is similar to the case of Charles Case, Receiver, etc., v. Bcrwin.

For the reason given in that case, it is ordered and adjudged that the judgment of the district court bo avoided, aud that the plaintiff have judgment against the defendant for the sum of eight, hundred and twenty dollars, with six per cent, per annum interest thereon, from tho first day' of June, 1866, to the first day of June, 1807, and eight per cent, per annum interest thereafter till paid, and the costs in both courts. It is further ordered that the vendor’s privilege and special mortgage retained on the property sold be recognized and made executory.

Justices Howell and Howe are recused in this case.


text:
    No. 1832.
    Charles Case, Receiver of the First National Bank of New Orleans, v. John Houley.
    APPEAL from Fifth District Court of New Orleans. Beaumont, J.

      G. B. Bright and J. B. Bouse, for plaintiff and appellant. Budd & Grover, for defendant and appellee.
   Ludeling, C. J.

This case presents the same questions decided in Charles Case, Receiver, etc., v. Berwin. For the reasons given in that case, the judgment of tho district court in this case must he reversed.In this case the defendant called the city of New Orleans in warranty. There is no just ground ior this call in warranty.

It is therefore ordered that the judgment of the district court he avoided and reversed. It is further ordered that the plaintiff have judgment against the defendant for one thousand and ten dollars, with six per cent, per annum interest from the first of June, 1E6G, to tho first of June, 1867, and eight per cent, per annum interest from tho first of June, 1S67, till paid, and the costs in both courts. It is further ordered that tho vendor’s privilege and the special mortgage retained ou the property sold be recognized and made executory.

Justices Howell and Howe arc recused in this case.


text:
    No. 1977.
    J. W. Zacharie v. R. Sproule & Co.
    3:i a case where the United States military authorities took possession of leased property iu the-city of New Orleans, during the lato war, it was held that the loss-ee was, from that date, absolved from all obligations to the lessor, on account of the lease; that, in a suit to enforce l>ayment of the rent for the unexpired lease, by the lessor, if the lessee showed a termination of the lease by the military authorities, he was discharged; that, in a case of this kind, the lessor could not invoke tho maxim, contra non valentón, etc., to dcieat the plea of prescription, even if this maxim could be applied m any case.
    APPEAL from the Fifth District Court of New Orleans. Leaimont, J.

      John Claiborne, for plaintiff and appellant. W. JO. Kgontg, for defendant and appellee.
   Taliaferro, J.

On the fifteenth of May, 1858, tho plaintiff and defendants entered into a contract of lease, whereby tho latter leased certain store houses, in the city of New Orleans, for tho term of five years, to commence on tho first of November, 1858, and to end on the thirty-first of October, 1863. Tho lessees were to pay $4000 annually, in quarterly installments of $1000 each, for tho payment of which they wore to give notes on the first day of November of each year.

In tho month of April, 1863, the lessees vacated the premises, with the consent and under tho direction of the United States military authorities, then in military occupancy of tho city.

It appears that the lessees paid to the military authorities, under a speeial military order, the rent from tho first of November, 1882, to April, 1863, when they vacated the premises. It also appears that they had paid the rent which accrued prior to November, 1862, to the plaintiff, or his agent.

The plaintiff brings suit for the last year’s rent — that is, for 1863— except the first quarter’s rent, which ho abandons.

The defense is, the seizure of the property leased, by the United. States military authorities, and the prescription of three years.

There was judgment in favor of defendants, and tho plaintiff appeals.

It is shown that, by the contract of lease, tho last quarter’s rent fell duo on tho first of November, 1803, and that tho citation in this suit was served on the second of April, 1807. Notes were not given for tho rents due in 1863.

The plaintiff invokes tho maxim, contra non valentcm agere non enrrit preseripiio. Tho plea will not avail him that tho defendant was an absentee. It appears that Robert Sproule left New Orleans in April, 1803; that he was then owner of real estate here, and that he loft an agent to represent him; that he returned in 1864, and in 1865, and again in 1866, and has resided here ever since. Tho pdaintiff, although absent himself, had, duriug this time, duly authorized attorneys in fact in New Orleans.

The pdaintiff returned in July, 18G5, and the defendant in August, 3860. Prescription had not been acquired at that time, as to all the plaintiff’s claim. Even if tho rulo, contra non valentcm, were admissible, the plaintiff would have no right to invoke it

We think the decision of the lower court correct.

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


text:
    No. 1930.
    Frederick Bauer v. The Succession of Jean E. Martin.
    If tbe record shows lhat the court below lias erred in maintaining tbe pica of prescription, it will be reverse i on appeal, and, if no other defense is set up, tbe Supreme Coiut will give judgment in conformity with the demand.
    APPEAL from Second District Court, parish of Orleans. Thomas, J.

      Whitaker & Hice, for plaintiff and appellant. Collens & Wooldridge, for defendant and appellee.
   Ludeling, C. J.

This suit is based on two promissory notes. The defense is prescription. An examination of the record convinces ns that the pilca is untenable.

It is therefore ordered and adjudged that tho judgment of the district court ho avoided, and that there bo judgment against tbe defendant for the sum of six hundred dollars, with six pier cent, per annum interest on three hundred dollars, from twenty-seventh July, 1861 to twenty-seventh July, 1863, and at tho rate of eight pier cent, per annum thereafter till paid; and six per centum per annum interest on three hundred dollars from the twenty-seventh of July, 1861, to twenty-seventh July, 1862, and eight per centum per annum interest thereafter, subject to a credit of seventy-six dollars and seventy-five cents paid on tho twenty-second day of March, 1867, and for costs of both courts, to be paid in due course of administration.


text:
    No. 2343.
    Elizabeth Murrison v. C. Seiler & Co. et al.
    A motion to dismiss an appeal comes too late, if not made within three days after the record is file3. 19 An. 27*5; 2 An. 138.
    The assignment by the husband of a judgment in his favor, to the wife in payment of her paraphernal claims against him, is a proper and legal transaction. And the fact that the amount of the judgment is far in excess of the amount of the wife’s claim is not sufficient, if the evidence shows that the real \ alue of the judgment is not above that of the claim of ihe wife, to raise ihe presumption of fraud in the transaction. All transactions allowed by law, calculated to protect the interests of married women, are legarded in a favorable light by ihe courts oí this átate.
    APPEAL sfrom Seventh District Court of New Orleans. Gollens J.

      Lacey <& Butler, for plaintiff and appellant. JS. Howard MeCaleb and Breaux & Benner, for defendants and appellees.
   Taliaferro, J.

There are several grounds on which the dismissal of the appeal taken in this case is asked, hnt the motion to dismiss, it appears, comes too late. The appeal was made returnable to this court on the first Monday of November, 1869. The transcript was filed on the twenty-fifth of October, 1869, and the motion to dismiss, on the eleventh of April, 1870 — more than three days having, in the interim, elapsed. 7 N. S. 271; 2 An. 138; 39 An. 276.

It is therefore ordered that tho motion to dismiss he overruled.

On the Merits.

The plaintiff, wife of J. B. Murrison, received, by a notarial act, a transfer from her husband of two judgments, which he had obtained against Ewing Chapman; and this assignment to the wife is declared to he to pay and reimburse her the sum of six thousand two hundred and one dollars, paraphernal funds of the wife, received by the husband and converted to his own use. One of these judgments, amounting to over $40,000, was seized under fieri facias as property of tho husband by C. Seiler & Co., judgment creditors of J. B. Murrison, and defendants in this case.

Tlie plaintiff enjoined this proceeding, claiming ownership of the judgment by virtue of the transfer or üation en payemmt, made to her by her husband as a reinvestment of her paraphernal funds, received and used by him, as acknowledged in the act referred to. The defendants, in injunction, allege that the protended sale or transfer of this judgment is a simulation and fraud on tho part of tho debtor who, as they aver, was in insolvent circumstances at tho time of the transfer, having no other property besides the judgment sought to he screened, from the reach of his creditors. They deny that tho plaintiff had any just claim against her husband. The defendants had judgment in their favor in the court below, and the plaintiff appealed. The evidence places it beyond doubt that the claims of the wife, in this instance, are bona fide, and that her husband was really indebted to her for a large-amount,of her separate funds, received aud used by him.' The-judgment given to her in payment is for $40,000, an amount greatly exceeding that for which lie was indebted. But the evidence makes it pretty clear that it is really worth not more than the amount established to bo owing to the wife by the husband. There has been no declared insolvency in the case of Murrison. lie is shown to be in embarrassed circumstances, but that fact alone does not necessarily imply that there was a fraudulent intent in the matter of his assigning the judgment in question to his wife, in payment of a just debt. Transactions of this kind, where they are honestly entered into, have always been regarded in a favorable light by the courts of this State, as being in the protection of the interests of married women. C. C., article 2421; 16 L. 1; 5 An. 631; 7 An. 343; 12 An. 889. We think the judgment erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there bo judgment in favor of the plaintiff, that the injunction be perpetuated- The defendants and appellees paying all. costs of suit.

Rehearing refused.


text:
    No. 1980.
    E. Marqueze & Co. v. Bloom, Kahn & Co.
    Tlio answer of tbc debtor to a cleric of tlio creditor, wlio presented a bill for payment, “ that lie will attend to it/’ is not a sufficient acknowledgment t j interrupt prescription.
    from the Fourth District Court for the parish of Orleans. Théarcl, J.

      A. <& M. VoorMcs, for plaintiffs and appellees. JE. IF. Huntington, for Bloom, Kalm & Co., appellees. Hace, Foster &• F. T. Merrick, for A. Levi, defendant and appellant.
   Howell, J.

The only question presented in this appeal is the interruption of prescription.

The whole of the evidence on this point is in the testimony of one of plaintiff’s clerks, in the following- words: “In about 1863, in the spring, Mr. Levi was passing by the store, and Mr. Marqueze stopped him, aud asked about payment of bill, and Mr. Levi stated that lie would attend to it. That was all I heard.”

This is not an acknowledgment of the creditor’s right, which, under article 3486, C. C., interrupts prescription. The statement that lie would see about a bill, does not prove that plaintiffs had the right to demand payment of the bill, in suit, from the appellant, who made such a statement, or that the bill was correct, and the appellant bound to pay it. At most, it merely implies that he will inquire into its correctness, and his liability to pay.

It is therefore ordered that the judgment against A. Levi, appellant,, be reversed, and that there be judgment in his favor, with costs in both courts.


text:
    No. 2685.
    A. Levi v. Corkern and Wife, Administrators.
    Tho allegation of ownership of promissory notes in favor of a commercial firm which has since been dissolved, by one of tho partners, with a notarial transfer by tho other partner, is a sufficient showing of ownership of the notes to entitle theholder to enf >rce their payment.
    In a suit against the coadministrators and a part ot the heirs, designating them by name, to enforce payment of promissory notes, and to annul certain donations made to tho heirs named, in iraud of (heir rights as creditors, where it is shown that the widow of the maker of the note is still living, and the debts of the creditors are community debts, the case will, be remanded, with instructions to make the widow and all tho heirs parties.
    APPEAL from the Sixth Judicial District, parish of St. Helena. Pi. JEllis, J.

      JMJeYea & Hunter, for plaintiff aud appellee. T. G. Ellis- and J. E. Wilson, for defendants and appellants.
   Taliaferro, J.

The plaintiff alleges that he is the owner and holder of five several promissory notes amounting to $6399 71, with interest, which notes were executed by the late Hezekiah Thompson, of St.. Helena, payable to the order of A. Levi & Co., formerly a commercial firm, composed of petitioner and Edward Neuman, but now dissolved. He brings suit on these notes against the defendants individually, and as coadministrators of the estate of Hezekiah Thompson, and joins, with these, Adeline, Martha Ellen and Benjamin W. Thompson, heirs of the decedent, prays judgment against the representatives of the succession for the sum claimed, and that certain donations of real estate made by Hezekiah Thompson to the four heirs named in the petition be annulled as having been made in fraud of his rights, and that the property so donated be returned to tho succession of Thompson and rendered liable to the payment of tho petitioner’s debt; there-being-, as he alleges, no other means out of which the debts of the estate can be paid. Letchford & Co., judgment creditors, intervened and joined the plaintiff, adopting his averments as to the fraudulent donations charged by him, and praying that they be revoked.

The coadministrators filed a general denial. They specially deny that the plaintiff is the owner, as he avers, of the obligations sued upon j that, if liable, at all, it is only for their virile shares •, and, lastly, the prescription of one year is pleaded in bar of the revocation-prayed for.

Tho judge a quo, deciding that the plaintiff had failed to establish •his ownership of the notes, rendered judgment of nonsuit against him, and dismissed the intervention.

The plaintiff and intervenor appealed.

The plaintiff and Neuman, it is shown, composed tho firm of A. Levi & Co. to whom the notes were made payable. The notarial act whereby Neuman transferred all his right and interest in tiie assets of the firm to A. Levi, seems to us a sufficient showing of ownership of the notes in plaintiff to enable him to enforce their payment.

One of the defendants excepts, in her answer, that tho widow of Hezekiah Thompson is living, and that there are other heirs of his,, all. ■of whom have received money from his estate, and that the surviving widow in community, and the heirs not proceeded against in this action, should bo made parties, for the reason that if these claims of plaintiff and intervenor are bona, fide debts against the succession of Hezekiah Thompson, they are community debts, and the widow and all the heirs should contribute to their payment. The testimony showthafc there are other heirs of the decedent besides those against whom tlie suit is brought, and that eacli of them has received a thousand dollars out of their fathers succession.

We think the case should be remanded in order that proper parties may bo made; and, to that end, it is ordered, adjudged and decreed that the judgment of the district court be annulled,. avoided and reversed. It is further ordered that this suit be remanded to the court of the first instance to be proceeded with according to law, the defends •ants and appellees paying costs of this appeal.

Rehearing refused.


text:
    No. 1936.
    D. Connors, for the use, etc., v. Citizens’ Mutual Insurance Company—G. W. Avert, Appellant.
    A. statement of facts on which the case was tried in the court below, showing a less amount than fivo hundred dollars to be duo, will not divest the appellate court oi jurisdiction, if the leadings on which the action is founded show an amount above five hundred dollars to be in dispute.
    'The sheriff is authorized by law to pay his own costs and those of the clerk of the court who issued the process out of the funds realized by the sale of property under a writ of fien facias, and the debtor can only claim the surplus alter such costs are paid.
    A tuIo asaiüst the sheriff to pay over certain amounts in his hands, realized from the sale of property under seizure, will be discharged if the evidence docs nofshow the amount he is entitled to retain for costs.
    APPEAL from Fourth District Court, parish of Orleans. Théard, J.

      Hays <£• Hew, for G. W. Avery, appellant. A. Robert and G. ■Schmidt, for liquidating commissioner, appellee.
   Howell, J.

II. Bezou, commissioner, took a rule on G. W. Avery, late sheriff, to show cause why he should not pay over the sum of ¡seven hundred and two dollars and twenty-five cents, proceeds of certain property belonging to the Citizens’ Mutual Insurance Company, and sold by said sheriff, and which he refuses to account for to the mover representing said company.

The rule was made absolute so far as to order the ex-sheriff to pay three hundred and eighty-three dollars and twenty-five cents, the ■amount oí proceeds remaining in his hands after paying the landlord’s ■claim j and he appealed.

No answer to the rule was filed, hut it seems to have been tried on The following statement of facts, comprising all the evidence adduced, «to wit:

“ It is agreed by counsel, on the trial of this rule, that the sheriff received ($702 25) seven hundred and two dollars and twenty-five cents, less (318 96) three hundred and eighteen dollars and ninety-six ■cents retained by the landlord under Ms lien, and the remainder is held by the sheriff for costs incurred in this suit for keeping, advertising and other charges.” ' -

It is contended by the appellee that this court is without jurisdiction, because the amount in dispute, as shown by the statement of facts, is less than five hundred dollars, and he refers us to the case of Municipality v. Corning, 4 An. 407, to support his position.

In that case, two defendants were sued for four hundred dollars, as a tax imposed on their calling. They admitted their liability for two hundred dollars, which they deposited in court. Plaintiff took judgment for that amount, reserving its right to the balance, upon which there was a trial and judgment rendered for plaintiff.

In this case, the demand is for seven hundred and two dollars and twenty-five cents, and the evidence shows how the demand is met, viz: that the landlord’s claim absorbed three hundred and eighteen dollars and ninety-six cents of the proceeds claimed as being in the sheriff’s hands, and that the balance was held by the sheriff for costs incurred in the-case. This result was attained, not by reducing the demand by pleading, but by proof administered. It was a matter of evidence, not of pleading, and under the pleadings, so fa.r as they appear in the record, the matter in dispute was over five hundred dollars.

Upon the merits : There being proof that costs were incurred in the suit, a portion of the record of which only is before us, and there being no proof or dispute as to the amount of the costs for which the money was held by the ex-sheriff, the rule should have been dismissed. The fact is shown that costs were due, and the sheriff is, by law and the writ under which he sells, authorized to pay his own and the clerk’s ■costs out of the proceeds of the property sold by him. It is only the .■surplus, after the suing creditor and the costs arc paid, that the debtor can recover. C. P. 704.

We are not enabled, in this proceeding, to determine whether or not the sum retained more than covers the costs which bear a privilege on the property sold. C. C. 3219 — 23. It does not appear that there are other claims of equal dignity with that of the sheriff's, and that there is no other property out which they can be paid.

It is therefore ordered that the judgment appealed from be reversed, and that the rule herein be dismissed, without prejudice to the rights ■of the parties. Appellee to pay costs in both courts.

Rehearing refused.


text:
    No. 2722.
    Succession of Mrs. Eliza B. Hardesty.
    An opposition to a tableau of an executor comes too late, if it is not iilecl, nor offered to be filed, until after tbe case bas been tried and submitted, and taken under advisement by the judge. In such a case the opposition should not be filed.
    A bequest in a will toa religious corporation ialls, if the legatee is not capacitated to take, at the-death of the testator.
    In this case the legatee was a religious body, known as the Baptist Church of Clinton, not incorporated at the death of the testator. Held — That the legatee not being incorporated at the death of the testa or was not capacitated to receive the legacy, and the subsequent incorporation of the church, designated in ihe will as the legatee, would not enable it to take, because the dispositions of the will must takc.effcct in x>ra¡senii.

    APPEAL from the Parish Court of East Feliciana. Hoedieker, Parish Judge.

      F. Hardesty and Gross & Hardee, for legatees. J. G. Kilboarnc, for executor, appellants. MoVea <& Hunter, ior appellees.
   Ludeling, C. J.

On the fourteenth day of May, 1868, the executor-of the last will of Mrs. Eliza B. Hardesty filed an account and tableau of distribution, wherein ho proposed to distribute the amounts-collected among the heirs of the deceased.

This account and tableau was duly advertised from the twenty-first of May, 1868. The Baptist Church of Clinton, and the St. Andrew’s-Church, legatees under the will, acknowledged service of the accpunt and petition, praying for the homologation thereof.

Ou the fifth of June, 1868, the Baptist Church of Clinton filed an. opposition to the account and tableau, claiming a legacy of two-thousand dollars, and to bo paid by prelercnco over the heirs and universal legatees.

Ou the twelfth of December, 1868, the heirs and universal legatees filed their answer to the opposition of the Baptist Church of Clinton.. They represent that the disposition of the will, in favor of the Baptist Church of Clinton, is null and void, because, at the time of the death of the testatrix, there was no corporation hearing that name, or having, any legal existence, which had the capacity to take.

The heirs subsequently filed au amended answer to the opposition,, which we deem unnecessary to notice. In January, 1869, the case was taken up for trial, the evidence was adduced, the arguments were made, and the case was taken under advisement by the judge. On the fifteenth of March, 1869, the St. Andrew’s Church, offered to file an. opposition to the account and tableau of the executor; to this, objection was made on the ground that it came too late. The objection was-overruled and the opposition was permitted to he filed. Wo think the judge a quo erred. It is true, as a general rule, that “ when an act is to be done within a given time, it may he done afterwards, if nothing occurs to prevent it. Thus, if a judgment by default has not been taken, an answer may ho put into the merits, although more than ten days have elapsed from the service of citation. 7 La. 344. But in this case something had occurred to prevent it. The case had been argued and submitted for decision nearly two mouths before the offer to file-tho opposition was made. See 14 La. 240, Long et al. v. Their Creditors; 3 An. 383, Succession of McCarty ; C. P. 1004; 4 La. 300; •9 La. 48, 59.

Tho opposition of tho St. Andrew’s Church should not have been permitted to be filed.

Had the Baptist Church of Clinton the capacity to receive at the ■opening of succession of tho testatrix ?

The evidence in the record proves conclusively that it had not.

Tho testatrix died on the thirteenth day of January, 1866. A number of individuals had associated themselves together, under the name ■of the Baptist Church of Clinton; and they had a house in which they worshipped, in the tóvn of Clinton, but they were not incorporated until after tho death of the testatrix. It is clear tho association had not the legal capacity to receive on tho opening of the succession. C. C. 1459; 19 La. 528; 3 An. 494.

Nor can the individuals, who composed the association at the death •of tho testatrix, take the legacy. No private advantage was intended for them. Besides, no one but the Baptist Church- is claiming tho ■bequest.

Did tho subsequent incorporation of tho association give it tho capacity to receive tho legacy? We believe it did not. The legacy was made inprwsenti. If the legatee had not the capacity to take when the succession was opened, tho property, by law, was transmitted to the heirs; and tho subsequent incorporation of the society could not divest their rights. See succession of Franklin, 7 An. 414; 4 Wheaton 28. Baptist Association v. Hart’s Executors.

It is therefore ordered and adjudged that the judgment of the court a qua be amended by rejecting the demand of the Baptist Church of Clinton, and dismissing the opposition of the St. Andrew’s Church, at their costs; and that in other particulars the judgment be affirmed. It is further ordered that the appellees pay the costs of this appeal.

Rehearing refused.


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    No. 1828.
    Charles Case, Receiver of the First National Bank of New Orleans, v. John Hurley.
    If the amount involved is under five hundred dollars, the appeal will he dismissed for want of jurisdiction. Constitution, art. U.

    APPEAL from Fifth District Court, parish of Orleans. Beaumont, J.

      J. B>. Bouse and G. B. Bright, for plaintiff and appellant. Budd Ch'over, for defendant and appellee.
   Ludeling, C. J.

We are bound to notice that this court is without jurisdiction in this case, the amount in dispute being less than five hundred dollars.

It is therefore ordered that the appeal be dismissed, at the costs of the appellant.

Justices Howell and Howe are recused in this case.


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    No. 1915.
    Daniel Edwards v. James G. Prather et al.
    The bonding of property under seizure, in order to regain the possession thereof, is no bar to subsequent proceedings to set aside the writ of attachment, and release the surety on the bond.
    The surety on a bond of release of proporty attached may, before making any payment, bring suit against the debtor to indemnify him for the liability incurred in signing the bond. But to enable him to sustain such an action he must bring himself within the requirements of the law conferring the right to demand indemn.ty, viz: 1. "When there exists a lawsuit against him for payment. 2. When the debtor has become bankrupt. 3. "When the debtor was bound to discharge him within a given time. 4. "When the debt has become due by the-expiration of the time for which it was contracted, etc. C. C. 3020.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      Maurice Grivot, for plaintiff and appellant. Hace, Foster dé F. T.. Merriclc, for defendants and appellees.
   Taliaferro, J.

The plaintiff sues the defendants to compel them to indemnify him against a liability incurred at their instance, and on their behalf, in becoming their surety on a forthcoming bond to release-their steamboat, the Bart Able, which had been seized under attachment by a creditor of the owners. lie avers that he was induced to-sign the bond at the solicitation of one of the defendants, acting for himself aiid as agent of the others who are non-residents, by the assurance that his liability would exist only for a short time, as the attachment would soon be set aside by judicial decree, and the bondi canceled. But to his great annoyance he finds that the result is quite different from what he was induced to believe when he became surety for the defendants, as the court maintained the writ. He avers having made frequent amicable demands of the defendants to indemnify and hold him harmless in the premises, but without effect. That he is informed, and verily believes, that most of the defendants are insolvent, and that he is in danger of having to pay the whole amount of the bond, which is $1300. Ho proceeded by process of attachment, by virtue of which the same steamer was seized. He prays judgment in solido against the defendants for $1300, or give him good and sufficient security to indemnify him against his aforesaid liability.

The seizure was released bjr the defendants, who executed a bond for that purpose, and they proceeded by rule against the plaintiff to show cause why the order taken, by him for the attachment should not be rescinded and annulled on several grounds, to wit:

First — That upon the face of the petition and affidavit, the plaintiff is not entitled to the process.

Second — That plaintiff could not proceed by attachment, as Harrison, one of the defendants, and part owner of the steamer, is resident of the city of New Orleans, which is the home port of the steamboat, •which runs wholly within the State.

Third — The attachment bond is insufficient. Neither is the affidavit sufficient to warrant an attachment; and lastly, that from the allegations of the petition the defendants are not iudebted to the plaintiff.

The plaintiff excepted to the rule, on the ground that the defendants, having entered into bond to release the seizure, thereby admitted its. validity, and could not move to set the attachment aside. This exception was overruled, and the attachment rescinded and annulled as having been improvidently granted. The plaintiff having ineffectually endeavored to obtain a new trial, took this appeal. We think the exception taken by the plaintiff to the rule to rescind the order of attachment not maintainable. It has been frequently decided by this court that the bonding of property in order to regain possession of it, is no bar to subsequent proceedings to set aside the attachment, and release the surety on the bond. 1 Martin 194; 14 La. 82; 2 An. 154;. 13 An. 549. The plaintiff relies upon article 3026 of the Civil Code to. sustain his claim against the defendants to indemnity. That article provides that a security may even, before making any payment, bring a suit against the debtor to be indemnified by him:

‘ ‘ First — When there exists a lawsuit against him for payment. ■

“ Second — When the debtor has become a bankrupt, or is in a state of insolvency.

Third — When the debtor was bound to discharge him within a certain time.

“ Fourth — When the debt has been due by the expiration of the term for which it was contracted.

“Fifth — At the expiration of ten years, when the principal obligation is of a nature to last a longer time, unless the principal obligation, such as that of guardianship, be of a nature not to be extinguished before a determinate time.”

The plaintiff does.not seem to have brought himself within the-provisions of this article. He has not been sued on the obligation he entered into with the defendants. No specific time was fixed for his-discharge. The promise made to him that the attachment of the defendants’ property, for the release of which he joined them in the release bond, was to be of short duration, was too indefinite to bo considered a fixed certain time at which he was to bo discharged from liability. It is not shown that the defendants had become bankrupts,, or that they were in a state of insolvency. True, the plaintiff states his belief, and fears that the non-resident defendants aré hopelessly insolvent; but he expresses no such fear or doubt in regard to thootlier defendant, who resides in. the city, and is part owner of the steamer attached. The term at which the obligation is to expire has-not arrived.

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


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    No. 2647.
    William Gegan v. Mrs. B. S. Bowman et al.
    Tlie renunciation by the wile, in a mortgage given by licr liusband, does not transfer to the mortgagee her rights of mortgage, but only transfers to him the rank to which her murt- . gage on the property of her husband was entitled at the time.
    Tho renunciation in an act of mortgage by the wife ceases to be evidence against her, if tho mortgage is not reinscribed within ten years. Therefore, whore a mortgage was given by the husband, with a renunciation of the wife, and afterwards a second mortgage was . given without the renunciation of the wife, and the first mortgagee failed fcoliavo his mortgage reinscribed within ten years, the mortgage ot the wife, being relieved from the effect of her renunciation, by the failure to reinscribe, will take rank oyer the second mortgage, and the first mortgage, having lost its rank by failure to reinscribe, the second will take rank over it.
    ‘The reinscription of a mortgage after the lapse of ton years, only entitles it to rank as a mortgage from the date of such reinscription. And, where tho wife has renounced, her consent must be given to the reinscription, otherwise it will be inoperative as against her.
    APPEAL from the District Court, parish of Tensas.

      Sough, J. S. B. Shaw and Mayo & Spence,r, for plaintiff and appellant. Julius Aroni and Farrar & Beeves, for defendants and appellees.
   Howell, J.

This is an action to fix the rank of mortgages.

On the second of February, 1855, Elam Bowman executed a mortgage in favor of Stephen Duncan, on 3400 acres of land in the parish of Tensas, to secure the sum of $45,000, and Mrs. Bowman intervened in the act, and made the usual renunciation of a wife’s mortgage rights in favor of said Duncan, binding herself and her heirs at all times to recognize and sustain the validity of her renunciation. This act of mortgage was inscribed on the next day, and reinscribed on tho thirteenth of September, 1865. On the tenth of January, 1861, Bowman ■executed another .mortgage, on 1920 acres of said land, in favor of William M. Shaw, tutor of William Gegan, the plaintiff, in which Mrs. Bowman did not renounce. This act was duly inscribed on tho same day.

On the eighteenth of May, 1866, Mrs. Bowman obtained a judgment ngainst her husband for $13,278 42, and interest, with a- legal and tacit mortgage on all his property, to take effect for $9325 from tho years 1840 and 1845, and for $3953 42 from January 1, 1862.

Prom the judgment fixing tho relative rank of those three mortgages, all tho parties have appealed.

The first question to be settled is, the effect upon Mrs. Bowman’s mortgage rights by tho failure of Duncan, within ten years, to reinscribo his mortgage, in which she made a renunciation in his favor.

By this renunciation she did not transfer to him her rights of mortgage, but simply yielded to him the rank to which, at the time, her mortgage was entitled. 12 An. 778. Her mortgage was an acccssory to the principal obligation, existing in her favor, on the part'of her husband, and could not be transferred, separately from the principal obligation. The law of 1835 (p. 153) authorized her to make this waiver or postponement, but.it was made with reference to tho existing law of registry, which became a part of tho contract, and its ■continuing- effect depended upon Duncan’s preserving' his rights under the law, as to all parties who might have interests conflicting with or •affected by her rights.

Now, when the inscription of his mortgage expired by tbe lapse of time, the effect of the inscription, that is tho evidence of the mortgage, ceased not only as to third persons, but tho parties to the act. C. C. 3333. Admitting Mrs. Bowman to have been a party to the act, at the end of ten years it ceased to be evidence against her of a mortgage upon her husband’s property, and all mortgages then having-legal existence and vitality upon that property, assumed their position the same as if Duncan's mortgage had never been created. Consequently, Mrs. Bowman’s mortgage resumed its legal force and rank, and the subsequent rcinscription of Duncan’s mortgage acquired or operated no greater effect than- a new contract of mortgage made between the parties on that day. 3 An. 100; 21 An. 204. To have any effect against her in displacing her mortgage rights, then existing in full force, her consent was necessary. We know of no law which implies her consent to a renunciation by the reiuscription of the mortgage given by the husband. Laws relating- to tho contracts of married women are strictly construed. The position and relation of her rights, as to her husband and third persons, had materially changed, and it is not certain that she would have renewed her agreement with Duncan, as she might thereby have complicated her rights as to the Gegan mortgage, in favor of which she did not renounce, and which then had priority over Duncan’s mortgage.

In this view of the case, which, in our opinion, is based on correct principles of law, all difficulty in settling the respective rights of the mortgagees disappears.

Mrs. Bowman holds the first mortgage for $9325 on all the property of her husband, and for the-whole of her judgment ($13,278 42, with interest as allowed,) on the 1480 acres not subject to Gcgan’s mortgage. Gegan has the second mortgage on the 1920 acres described in his act, and Duncan comes last, as his mortgage takes effect only from tho day of its rcinscription. It follows that, if tho 1420 acres will pay Mrs. Bowman’s mortgage, she will take none of the proceeds of the land mortgaged to Gegan; but if not, sbe can claim no part of tho -$3953 42 until Gegan is paid. And if there is any surplus after paying the said two sums to Mrs. Bowman, and that due Gegan, it will go to Duncan. As the record shows that tho land was not so.d at the date of the appeal, the cause must be remanded for distribution.

It is therefore ordered that the judgment appealed from be reversed, and this cause remanded to tbe lower court to be proceeded in. according to the foregoing views, and according to law; costs of appeal to be paid by Duncan, and those of the lower court to abide the. final •decision.