author: Taliaferro, J.

text:
    No. 122.
    A. B. Hughes, Administrator, v. R. B. Patterson et al.
    'Tlie fact that suit has been brought for a tract or body of laud and afterward dismissed by the plaintiff, is not such a disturbance as will give the vendee the right to demand security against eviction before payment.
    If several persons bave purchased a tract of land and given their obligation for the price in solido, with a single mortgage on the entire tract as security therefor, the vendor or tho holder of the obligation may pursue either one of the obligors for the whole amount, hut if lie desires to sell the property mortgaged in payment of the obligation, then he must malee all tho obligors parties to the suit, otherwise no title of the interest in tho land of such obligors as are not made parties would pass to the purchaser.
    APPEAL from tbe Tenth Judicial District Court, parish of Caddo.

      Levissee, J. T. T. & A. D. Land, for plaintiff and appellee.

      Looney, Wells & Duncan, for defendants and appellants.
   Taliaferro, J.

The defendant Pattersou and John Walpole, Sr., in January, 18G2, bought at a succession sale of property belonging to tlie estate of William Arick a tract of land, which was adjudicated to them at tho sum and price of $4939 80. The adjudication was “to Robert B. Patterson and John Walpole, Sr., of the parish of Caddo,” etc. They executed in solido two promissory notes, each for one-lialf the price, payable respectively in one and two years from, the twenty-fifth of January, 1862, stipulating interest at tbe rate of eight per cent, per annum from date. Baer and W. M. Walpole signed tbe notes with them as their sureties. The purchasers specially mortgaged the land XUirchased to secure the payment of the notes.

This suit is brought by the administrator of Arick’s estate to enforce piayment of these notes. The defense is placed upon three grounds:

Jb'irst — That defendants should be released from tbe payment of all interest on tbe notes sued on.

Second — That before payment of tbe notes tbe defendants should be protected against tbe claims of tbe United States government, and those of tbe heirs of Wilkins Dales against tbe land purchased by defendants.

Third — That tbe mortgage should be enforced only against tbe interest of tbe parties before the court in the land mortgaged.

The court a qua rendered a judgment in solido against Patterson and Baer for the principal of the notes, with eight per cent, interest from judicial demand, and ordered that the plaintiff’s mortgage be enforced on Patterson’s undivided half of the mortgaged land. Prom the judgment so rendered the plaintiff has appealed.

This suit is against all the makers of the notes. After answers filed, John Walpole, Sr., and William M. Walpole died. It does not appear that the suit was revived against the heirs or representatives of the deceased parties.

The defendants have not succeeded in establishing disturbance in the possession of nor danger of eviction from the land purchased. In support of this plea they introduced in evidence the record of a suit of Dales v. Baer and Walpole, on the docket of the district court for the parish of Caddo,.in which Dales set up a claim to the land. The suit consists of a petition filed in April, 1862. There seems to have been no citation nor appearance of the defendants. In April, 18G6, the suit was dismissed on motion of plaintiff’s counsel. The defendant Patterson in his testimony says that possession was refused by Dales, who-pretended that he owned the land; but he admits' that he did not know who was in actual possession of the land or whether any person was, and that he never went to take possession of it at the time ol the sale or afterwards. He says that he offered to pay the administrator if he would make the titles good or give security, but that both the administrator aud the auctioneer refused to receive payment until the suit instituted by Dales was disposed of. This declaration that he was prepared to pay does not amount to a legal tender. C. P. art. 407; 2. An. 442; 6 La. 19.

We concur in opinion with the judge a quo that the defendants failed to establish a right to claim security against eviction as a condition, precedent to making payment. There was no disturbance. Where, in such cases, suit is brought and afterwards dismissed, the vendee has-no ground for refusing payment. 4 N. S. 352; 3 L. R. 432; 16 La. 501.

This view of the second ground of defense disposes of the first. The third point of the defendants remains to be considered.

The plaintiff maintains that a judgment against either of the joint-owners, being solidary obligors, authorizes an order of sale against the whole property. The defendants, Patterson and Baer, contend that the mortgage can be enforced only against the interest in the land of the party before the court. The position of the plaintiff is correct that in the case before the court there is but one obligation to pay the price — á single debt secured by special mortgage; that this obligation can not be divided or paid in part without the consent of the obligee; that each of the debtors in solido can be compelled to pay the whole debt; that the obligors may be pursued separately or all together;; that the mortgage is in its nature indivisible, and extends over all the immovables subject to it; that it is tota in toto, et tota in qualibet parte-

But does it follow that because the plaintiff may demand, the whole amount of his debt from any one of his debtors in solido, and each and every portion of the mortgaged property is affected for each and every portion of the debt, that the title and right to the undivided half interest owned and held by one of the solidary ’obligers and mortgageors can be divested judicially without making that joint owner, or his representatives, a party to the proceeding and decree by which the whole of the mortgaged property is ordered to be sold to satisfy the debt? The plaintiff refers to the case of Walton v. Lizardi, 15 L. R. 588; to that of Erwin v. Green, 5 Rob. 70, and to that of Gordon v. His Creditors, ib. 47. But we think neither of these cases presents the point raised in the case now before us.

The first of these cases merely determines the nature of the title acquired by Walton & Kemp from Lizardi and the extent of his liability under their contract of sale. The second, varying in its facts from the first, decides the nature and extent of the obligation contracted by some of the plaintiff’s vendees, who, as mortgageors, were, upon the supposition that their interest in the land sold was mortgaged with that of the other vendees, made parties to the suit and remained such until its final result. The third case was, where the whole tract of land being mortgaged, the undivided half interest of one of the mortgageors was, without objection, sold by his syndic, and thereupon a contest arose among the mortgage creditors over the proceeds.

Iu the case at bar the extent of the plaintiff’s right against all the solidary obligors and the indivisibility of the mortgage in his favor to secure the payment of his debt can not be contested. But what remedy does the law confer upon him to enforce his right ? Ilis debtors may be sued separately, or altogether, and the whole debt may be demanded from any one of them. He may, moreover, cause the whole of the mortgaged property to be sold to satisfy his claim and ho is not, under his contract of sale, obliged to submit to a sale of a fractional part of, or interest in, the hypothecated premises by which his security might be diminished or impaired. The mortgage, on the other hand, does not divest the owner of the property itself, but only of the right-on the property, the title to which, as well as the possession, remains in this case iu John Walpole, Sr., or his representatives. 2 La. 158. And as no one, however holding the title to property can, under our system of laws, be divested judicially of that property unless by due process of law, in which he, as owner, is made a party before the court, any judgment, unless rendered contradictorily with him, the effect of which would be to expose his property for sale, would not divest him of title or transfer to a purchaser his right to the property. The representatives of John Walpole, Sr., one of the joint owners of the whole tract of land sought by the plaintiff to be sold to satisfy the judgment in solido against Patterson only, were necessary parties, whose participation in the suit was essential before any judgment affecting their interest in the land could be made obligatory upon them or could form, a valid basis of a judicial sale of their interest in the property. To determine otherwise would be to ignore the fact that John Walpole, Sr., and his representatives, since his death, had and ■continue to have and hold a vested title and interest in the land in question which could only be divested according to law.

The judgment appealed from, so far as it condemns Patterson and Baer in solido, is a proper one; but so far as it decrees the sale of Patterson’s half interest only, it can not be maintained, and the case must be remanded for the purpose of making proper parties.

It is therefore ordered, adjudged and decreed that the judgment of the district court, so far as it orders a sale alone of the defendant Patterson’s half share and interest in the mortgaged property, be annulled, avoided and reversed, and in other respects that the judgment be affirmed.

It is further ordered that this case be remanded to the court of the first instance in order that proper parties be made, and then to be proceeded with according to law, the defendants and appellees paying costs of this appeal.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 190.
    Tutorship of Isabella P. Hewitt—Opposition to Tutor’s Account.
    .Prescription does not run against tlie tutor on a claim which, bo has against liis ward for board and lodging during the tutorship, nor are such items prescribed untiL the lapse of four years after the tutorship has terminated, that being the period of time allowed by law to the minor after emancipation within which the tutor may be called upon for an account. In like manner, the charges of the minor for services rendered the tutor during the time of the tutorship are not prescribed until four years have elapsed after the tutorship has terminated.
    APPEAL from tlie Parish Court of tlie, parish of Morehouse. James Bussey, Parish Judge.
    /S. G. Parsons, for tutor, appellant.

      Tocld <& Brigham, for opponent and appellee.
   Wyly, J.

Isabella P. Hewitt, wife of William D. Seal, opposes the homologation of the final account of her tutor, Benjamin Murrell, •alleging that the items thereof are incorrect, and pleading the prescriptions of one, three, five and ten years iu bar thereof. She also sets up that the charge for lier board, lodging and clothing claimed by her tutor is unjust and excessive, and avers that her labor and services ■during the period she was supported by him were worth more than the value thereof. She also opposes the credit of $420 allowed as her share of the proceeds of the land sold on the application of said tutor, ■on the ground that the sale thereof, without her consent, was illegal, the order of sale and the sale under the tutorship having beeu effected after her emancipation by marriage and the termination of the tutorship. She also avers that suit has been instituted and is pending for the recovery of said land.

The court, sustaining the plea of prescription, gave judgment for the opponent, rejecting the items debited in the account and reserving the rights of both parties in reference to the land sold under the tutorship, and the rights of the opponent, suggested in her supplemental petition, in regard to the succession of her grandmother, Mrs. Murrell.

From this judgment the tutor has appealed.

The correctness of the items charged is not disputed, except the -claim set up by the tutor for board, lodging and clothing of the opponent during minority, a period of nearly twelve years. This is ■averred to be unjust and excessive, because her services and work for the tutor during- that period are claimed to be adequate remuneration therefor.

In bar of each item of the account, however, the prescriptions of one, three, five and ten years are opposed. This account was rendered within four years after the termination of the tutorship by the emaucipation by marriage of the minor.

Undoubtedly the opponent had the right to call for an account of the tutorship at the time this account was voluntarily offered -, and if the claims of the minor against the tutor are not prescribed, we do mot see why the claims of the tutor against her should be prescribed. It is a fair and lawful adjustment of accounts between the minor and his tutor that the law contemplates may be demanded by the minor within four years alter arriving at the age of majority. It is not for the purpose of ascertaining and enforcing the claims of the minor against his tutor and rejecting the claims of the tutor against the minor on account of prescription. In the settlement of account between these parties we think the prescriptions urged are inapplicable. The tutor is a legal mandatory and he may claim any credit .arising- in his behalf in the performance of that duty at any time he may be liable to be called to account to the court which appointed him.

That he is to be required to institute proceedings or to cause to be issued citation to arrest prescription during the tutorship, is unreasonable, and it is equally unreasonable that he should do so during the period of four years after majority, within which time the law expressly gives the minor the right to call for an account. Within four years the tutor can be held to account for his performance of duty during the tutorship, and that duty was as much to protect and support the minor as to pay the debts of the tutorship and to preserve and account for the property. We think the account for board, lodging and clothing, as well as the account for moneys advanced in behalf of the tutorship, is not prescribed. 12 R. 155; 4 An. 368.

It remains for us to ascertain the value of the board, lodging and clothing claimed by the tutor for the period of nearly twelve years. On this point the evidence is conflicting. Some of the witnesses regard the services of the minor during this period to be worth more than her board, lodging and clothing; they mainly agree that the value of this account is $200 per annum, exclusive of the services rendered by the minor. When the tutorship was opened the minor was only seven or eight years old. The tutor was her grandfather, who had servants about the house, and it is shown that the minor was supported and dressed in about as good style as other children of the neighborhood; and that she did render valuable assistance in the family of the tutor, where she lived. We think during the first five years she was not able and did not render valuable services, owing toller extreme youth; after that and till the end of the tutorship her services were worth the value of her board, lodging and clothing. This we believe, from the evidence, to be an equitable adjustment of this item charged in the account. The claim, therefore, for board, lodging and clothing should be reduced to $1000, being $200 per annum for five years.

The other items for cash advanced for the benefit of the tutorship seem to be correct.

It is conceded that the tutor has had no funds of the tutorship, the property thereof being only a small tract of unproductive land. As the opponent repudiates the sale thereof and has instituted proceedings to annul it, we think the credit of $420 was properly disallowed and that the court did not err in reserving the rights of both parties in relation to it; also that the court did not err in reserving the rights of the opponent in the community property of her grandmother, Mrs. Murrell, which does not properly appertain to the settlement of this tutorship.

It is therefore ordered that the item for board, lodging and clothing of the minor be reduced to $1000 and allowed; that all the other items of the account, except the credit of $420, be allowed; and as thus amended that the account herein be approved and homologated, and the items thereof be the judgment of the court, reserving, however, the rights of both parties in relation to the land which the tutor-claims to have sold ; and also reserving the rights of the opponent ta tlie community property of Mrs. Murrell.

It is further ordered that appellee pay costs of appeal.

Eehearing refused.


text:
    No. 184.
    D. H. Williams v. Douglas, Sheriff, et al.
    In executory proceedings to enforce the sale of mortgage property belonging to an absentee, service of notice of tlie order of seizure and sale upon tbe attorney appointed by the court to represent tlie absentee is sufficient to interrupt the current of prescription.
    If a mortgage debtor invokes the conservatory remedy of injunction to stay tlie sale of the property mortgaged, •without showing any valid or legal excuse therefor, he will be condemned to pay to the seizing creditor the damages which the law has provided in such cases.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      May, J. _£>. p. Morgan, for plaintiff and appellant.

      Morrison & Farmer, for defendants and appellees.
   Taliaferro, J.

This case was before this court at the July term, 1869. The judgment of the District Court was reversed and the case remanded for further proceedings in due course of law. See 21 An., p. 468. Subsequently, from the destruction by fire of the court house in which were the public offices of the parish of Morehouse, the original papers of the suit were lost, but the transcript of appeal being preserved, it was substituted for the original record and the case was proceeded with and finally determined in May, 1871. Judgment was rendered in favor of tile defendants, dissolving the injunction and allowing them $200 as damages for attorney’s fees.

Tiie plaintiff has appealed. Defendants pray that the judgment be amended by awarding them twenty per cent, damages, ten per cent, interest, etc.

Warren, Gilmore & Co., being the owners and holders of a promissory note for the sum of $1700, drawn by the plaintiff, D. H. Williams, to his own order, and secured by mortgage on lands lying in the parish of Morehouse, proceeded via executiva against the mortgaged property to enforce payment of the note which bears date sixth March, 1861, and due twelve months after date. Williams being an absentee, tlie appointment of an attorney to represent him was prayed for. An order of seizure as prayed for was rendered by the district judge on the twenty-first of April, 1866. The order appointing the attorney to represent the defendant was rendered by the clerk of the district court and dated, as appears upon the transcript of appeal, May twenty-sixth, 1868.

The defense is prescription. The plaintiff contends that the note was extinguished on the sixth of March, 1867, and that this fact is apparent on the face of the papers, more than a year afterwards having elapsed before an attorney was appointed to represent the absent defendant. The plaintiff proceeds further to make the following points:

That if the appointment was made in time, it was nevertheless illegal and null, because the power or right to make appointments of attorneys to represent absentees in cases of executory process vests solely in the district judge, and .relies upon article 737 of the Code of Practice.

That, if under the provisions of the act of 1857, extending the powers of clerks of courts, that of appointing attorneys to represent-absentees in cases of executory process were granted to them, the power so granted was only conditional, depending upon whether the district judge was present or not in the parish at the time the process was asked for.

That, in the only case in which a clerk could appoint, that of the absence of the judge, such absence should have been shown to tlie clerk by the affidavit of the party or his attorney, and that in this case no such proof was made.

That, conceding the legality of the proceedings taken in regard to-the appointment of the attorney, and that he had been legally served with the proper notice, and that these steps had all been taken previous to sixth March, 1867, when the obligation became extinct by-prescription, still no legal citation necessary to interrupt prescription was made, because interruption could only take place by service of the ex parte order of seizure and sale made upon the debtor personally.

The position taken by the plaintiff that the appointment of the attorney to represent him was not made until after prescription had accrued, is not tenable. We are satisfied, from comparing the dates-of the several acts making up the executory proceedings had in the case, that the date appearing in the record to the order appointing an attorney was, through a clerical error, erroneously written May 26,. 1868, instead of May 26, 1866. The order of seizure is dated twenty-first of April, 1866. The notice of the order bears date twenty-sixth of May, 1866, and service of the notice appears in these words: “Received in office on the twentieth day of May, 1866, and on the thirtieth day of May, 1866,1 made service by handing J. Harvey Brigham, attorney, a copy of this notice of judgment in the town of Bastrop, Louisiana. J. L. Pratt, sheriff.”

Here, then, it is clear the dates of these papers were originally in their natural order. The judgment or order of seizure bearing date twenty-first of April, 1866. The filing of the petition and order on the same, on the twenty-sixth of May, 1866. The appointment of the attorney on the twenty-sixth of May, 1866. The notice of the order on the same day, the receipt of the order and notice by the sheriff also on the same day, and the service of them on the thirtieth of May, 1866.

In regard to the next point of the plaintiff in injunction that the clerk was without authority to appoint an attorney for the absentee,. we think there is no question that by the act of thirteenth March, 1857, lie was clothed with that power when the judge of the district was-absent. Coming to the next ground taken by the plaintiff, that if authorized in the absence of the judge to issue the order, such absence should be shown by affidavit, we remark that no affidavit showing the absence of the judge is required by the act. It is shown beyond cavil that the order appointing an attorney to represent the absentee was made by the clerk. The maxim omnia ^raesumintur rete esse acta applies, and against the presumption that the order was rendered in the absence of the judge, it was for the plaintiff to show that it was not

The last point made by the plaintiff is, that notice of the issuing of an order of seizure and sale served upon the attorney appointed to represent an absentee is insufficient to interrupt prescription, is a doctrine we are not willing to assent to. Executory process would otherwise, as against absentees, be nugatory. It would be conceding greater lights to persons residing without our State limits than tO' those living within them. While our laws deal fairly and justly with absentees by appointing persons to represent them, and to defend them in all matters affecting their rights in this State, still, that representation is intended as well to afford facilities to our own citizens to prosecute their claims against absentees. If citation and notice made upon the representative of an absentee would not suffice to interrupt prescription running in favor of the absentee, we do not readily see how it could be effected. We can not see that such a rule could be sanctioned by the broad principles of reason and equity.

We are of opinion that the equitable remedy of injunction has in this ease been abused. The plaintiff has found means to procrastinate the payment of a just debt to an undue extent, and seeks now through a tissue of technicalities to evade its payment entirely. We think he has thereby incurred the penalties justly prescribed for that character of litigation.

It is therefore ordered, adjudged and decreed that the judgment of ilie District Court be amended, so that in addition to the sum of $200 awarded to the defendants in injunction, Warren & Crawford, as special damages, it is now ordered and decreed that they recover from the plaintiff in injunction and his sureties on his injunction bond in solido, viz: David H. Williams, S. G. Parsons, E. B. Todd and J. Harvey Brigham, as general damages, the further sum of twenty per cent, of the amount adjudged against the said Daniel II. Williams by the-original order of seizure and sale rendered on the twenty-first of April, 1866. It is further ordered that the said judgment of the District Court, rendered on the twenty-third of May, 1871, as thus amended, be affirmed with costs.


text:
    No. 268.
    S. A. Markham v. J. J. O’Connor, Sheriff, et als.

      A judgment creditor who has caused a seizure of real estate, the ownership and possession of which is shown to he in a third party, can. not he permitted to attack his title thereto in an injunction taken out hy the owner to stay the sale, unless ho allege that the title is simulated. The allegation of fraud, if made, would not authorize the attack of the title in this iorm of action.
    If a creditor has intervened and made himself a party to the suit of the wife against her husband, he can not afterward and in another form of action attack the judgment rendered in favor of the wife.
    APPEAL from the Tenth Judicial District Court, parish of Caddo.

      Levisee, J. li. J. Looney, for plaintiff and appellee.

      Land & Taylor, for defendants and appellants.
   Wyly, J.

The plaintiff, claiming the ownership and possession since 1861 of a certain lot of ground and improvements in the city of Shreveport, and claiming a prior mortgage on a certain other lot in said city, sued out an injunction restraining the sale of the one, and prayed that the proceeds of the sale of the other be paid over to her by virtue of the superiority of her mortgage thereon, the sheriff having seized said lots under an execution issued in the case of I. W. Arthur & Co. v. Martin Tally, on the docket of the district court, parish of Caddo. To this demand the defendants pleaded the general denial, and prayed for $250 special damages as attorney’s fees.

The court gave judgment perpetuating the injunction as to the sale of one lot, and ordering the proceeds of the sale of the other to be paid over to the plaintiff.

The evidence shows that the plaintiff was in possession of the lot described iu the petition by a title ostensibly valid.

No simulation is charged. It is well settled that such a possession and ownership can not be disregarded. The title of the plaintiff can not be attacked collaterally, even though fraud were alleged, which lias not been. 9 M. 648; 1 N. S. 536.; 5 N. S. 361, 634; 6 N. S. 139, 325; 2 L. 214; 3 L. 479; 9 L. 484; HR. 288; 1 An. 299; 3 An. 640; 7 R. 237; 14 L. 189; 2 An. 912; 12 An. 347.

As to the validity ot the judgment of the plaintiff against her bus-band, from whom she was subsequently divorced, its validity can not bo questioned by the defendants, I. W. Arthur & Co. They having-intervened to oppose it, were parties and are concluded thereby.

As to the position that Henderson Markham, the husband of the plaintiff, did not own the lot at the time liis wife acquired it iu 1861, we will remark that the fact is judicially admitted in the petition of I. W. Arthur & Co. in the hypothecary action against Martin Tally, wherein they seek to enforce their mortgage against said property as judicial mortgage creditors of said Henderson Markham. This judicial admission is in the suit under which the sale of the property in dispute is sought, aud is in evidence iu this case.

The judgment of the plaintiff against her husband, under which she claims a prior mortgage on one of the lots, was duly recorded on the foui th day of March, 1865, in the parish where the property is situated. In it her tacit mortgage is recognized from the first day of January, 1851, for part of the amount decreed to be due her, and from the first day of November, 1860, for the balance. The registry was sufficient. Sec. 1, act No. 95, acts I860. The mortgage of the defendants, I. W. Arthur & Co., took effect from its registry, January 24, 1861, and is inferior in rank to the mortgage of the plaintiff.

We see no error in the judgment

Judgment affirmed,.

Rehearing refused


author: Howell, J.

text:
    No. 236.
    J. H. Thomas & Co. v. Thompson Scott.
    If an act of tlie General Assembly provides that it sliall take effect from and after its passage, the fact that it lias not been promulgated in tlie official journal, as required by law, will not abridge or affect in any manner tlie rights acquired under it. An attachment honil, which has been given in eomformity to law before such law has been promulgated by publication in tho official journal, is not therefore void if the law under which it was given directs that it shall take effect from and after its passage, even though the bond bo not in conformity with former existing laws on tlie subject. ,
    APPEAL from the Eleventh Judicial District Court, parish of Claiborne.

      Hgan, J. N. J. Scott and J. H. Watkins, for plaintiffs anfV appellants.

      J. <& J. W. Young, for defendant and appellee.
   Howell, J.

Plaintiffs have appealed from a judgment dissolving the attachment herein rendered on a motion based on several grounds, only one of which it is necessary to notice, to wit: “ Because the ,bond is not made payable to tho clerk.” ’ f

They contend that the defendant lias no interest in raising this objection, as the object of the law is to protect the parlies whosc/property is seized, and he is protected by the bond in this case, which is made in his own favor. t

To this tho answer is that in the exorcise of this and similar harsh remedies, it is a principle in our jurisprudence that the for'ms of the law must be strictly complied with under penalty of nullity, and the law invoked requires the bond to be made payable to the ¿lerk of tlie ■court, and provides that tho defendant, as well as every person party lo tho suit or injured by the issuing of the writ, shall have recourse thereon against tho principal and securities. Acts 1871 j p. 18. The interest of the defendant is to have a bond in conformity with the law.

But plaintiffs say this law can not affect their rights in this proceeding, because it was not published in the Homer Iliad, “a State and authentic paper,” and was not known to them until after the writ was issued, anti if allowed to take effect from and after its passage, some two and a half months previous, it would violate article 110 of the constitution, which prohibits retroactive laws and the divestiture of vested rights, article 109, which requires the laws to be promulgated in the English language, and article 10, which declares that the courts shall be open and every person shall have adequate remedy by duo process of law, and justice shall be administered without denial or unreasonable delay.

A reference to the volume of the acts of 1871 shows that the law in question, which is in the English language, was promulgated on tho thirtieth December, 1870, the day on which it was approved by the Governor, and was therefore in force when plaintiffs obtained their writ of attachment in March following. The statute itself provides that it “shall take effect from and after its passage,” and it has long-been settled that such a provision does not violate the terms of articles-109 and 110 of the constitution. 2 An. 68; 12 An. 390; 14 An. 487.

We are unable to see in what respect the law in- question is in conflict with article 10. It simply changed the form of a bond which was previously required.

The law under which plaintiffs claim to have given their bond was repealed by tho act thirtieth December, 1670, which requires that such bonds shall be made payable to the clerk. See 21 An. 75G,

Judgment affirmed.


author: Howe, J.

text:
    No. 263.
    W. B. Graves v. J. G. Scott and Leopold Baer.
    A guaranty is a promise to answer tho payment of some debt or the iierformauee of some-duty in the case of tho failure of another person who in the first instance is liable. It is-tho contract of suretyship expressed in the terminology of the law merchant-, and modiiied perhaps in some respects thereby.
    "When, therefore, it appears by the plaintiffs allegations that ho delivered cotton to S. on tho guaranty of tho defendant; that the defendant represented that S. would account for it, and that plaintiff still holds S. liable for it, a case is presented within the statute’of 181)8, which forbids the recoption of parol evidence to prove a promise to pay tho debt of a third person. 11. S. 1870, 2820.
    APPEAL from tbe Tenth Judicial District Court, parish of Caddo.

      Levisee, J. JS’ntt & Leonard, for plaintiff aud appellant.

      Robert J. Looney, for defendant and appellee.
   Howe, J.

The plaintiff made tho following allegations in his petition :

“That at tho special instance and request of the said Leopold Baer,, and on his special recommendation and the guaranty of the said Leopold Baer, your petitioner delivered to the said John G. Scott twenty-five bales of cotton, weighing five hundred pounds each, on tho thirtieth day of December, 18G7, as per receipt, a copy of which is-annexed and made part of this petition, and that on the twenty-eighth day of January, 1868, he delivered to tho said Scott twelve bales of1 cotton as agent of A. B. Pate, each weighing five hundred pounds, as per receipt, a copy of which is hereto annexed and made part of this petition.”

He alleges that the said Baer induced your petitioner to turn over the said cotton to the said Scott on the representation of the said Baer' that the said Scott would account for the same.

“Petitioner alleges.that the said Scott has wholly neglected to' account for the same, and has left the State of Louisiana after appropriating said cotton to his own use.

Petitioner represents that said cotton is worth the sum of $3750, for which the said Scott and the said Baer are jointly and severally indebted to him.”

And after alleging amicable demand from Baer, he prayed for judgment. in solido against both Scott and Baer.

The receipts annexed to the petition read as follows:

“Received of W. B. Graves twenty-five bales of cotton, to bo held thirty days subject to charges and advances, and if Doctor Graves places more cotton in my hands to secure me against decline, then to be held or sold as he may direct.

JOHN G. SCOTT.”

“Received, Shreveport, January 28, 18G8, of W. B. Graves, agent of A. B. Pate, twelve bales of cotton for shipment and sale at discretion of my commission merchant.

JOHN G. SCOTT.”

Scott was not cited. Baer answered by a general denial, and a special denial of any knowledge of or responsibility for the transactions between plaintiff and Scott. There was judgment for plaintiff, and Baer appealed.

The only evidence offered by plaintiff "was such as attempted to prove by parol the liability of Baer under the pleadings, and was objected to by the latter on the following grounds :

“1. Because the contract sued on is a commercial guaranty, and such contracts must be in writing, and show the consideration in writing.

“2. Because it is not competent to prove any assumption of plaintiff’s debt from defendant Scott except in writing.

“3. Because the petition discloses the fact that the contract with defendant [Scott'S] was reduced to writing, and it is not competent to contradict, vary or extend the writing, or to prove what was said before or after the execution of the writing.”

These objections were overruled by the judge a quo on the grounds “that the plaintiff does not sue on a contract in wilting, nor does the petition set up a contract to pay the debt of another person.”

First — by the statute of 1858 (R. S. 2820), it is provided that “ hereafter parol evidence shall not be received to prove any promise to pay tlie debt of a third person, but in all such oases the promise to pay shall b.o proved by written evidence signed by the party to be charged, or by his specially authorized agent or attorney in fact.”

Turning to the petition of plaintiff, we find that according to his averments ho delivered the ootton to Scott on the guarantee of Baer; that Baer represented that Scott would account for it, and that plaintiff still holds Scott liable for it. We think it plain from these allegations that Scott was the principal debtor in the obligation, and that tlie contract of Baer was collateral. A guarantee, in the sense in which it is here used, is a promise to answer the payment of some debt, or the •performance of some duty, in the case of the failure of another person who in the first instance is liable. Kent’s Com., vol. 3, p. 121; Menard v. Scudder, 7 An. 385; Rev. C. C. 3035; Hernes v. Canfield, 9 M. 335.

In other words, the contract of guarantee here sued upon is the contract of suretyship, expressed in the terminology of the “law merchant,” and modified perhaps in some respects by the provisions of that law, so far as they are incorporated in the jurisprudence ot Louisiana. 9 M. 387.

We must conclude then that the judge a quo erred in dec’ding that the petition did not set up (as against Baer) á contract to pay the debt of another.

The plaintiff insists that under the jurisprudence of England and the common law States upon the statute of frauds, from which statute the provisions quoted from tlie law of 1858 are derived, the agreement betw on Graves and Baer was an original contract, and need not be in writing; and he cites the cases of De Wolf v. Rabaud, 1 Peters 476; Douglass v. Reynolds, 7 Peters 113, and Lee v. Dick, 10 Peters 482. In every one of these the promise was in writing. In the first the question was whether the consideration of this promise could be proved by parol, and the other two cases do not seem to be in point in favor of plain-riff. The numerous cases in which this provision of the statute of irands has been discussed in England and the other States may bo divided into three:

1. Where the guarantee or promise is collateral to the principal contract, but is made at tlie same time, and is an essential ground of the credit given to the principal debtor.

2. Where the collateral undertaking is subsequent to the creation of the debt and was not the inducement to it, and here there must bo some further consideration shown.

3. Whore the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties.

The two first classes of cases are well settled to be within the statute. In the first the promise must be in writing. In the second the promise and its consideration must both be expressed in writing. In the third no writing D necessary. Kent’s Com., vol. 3, p. 121; Leonard v. Vredenburgh, 8 Johnson (N. Y.), p. 31. It is not necessary to decide that all these refinements will govern in the application of our statute of 1858. In some respects they do not. But we can say that looking at the plaintiff’s petition from the point of view selected by himself, its case as against Baer falls within the first of these three classes, being collateral to the principal contract, made at the same time, and alleged to ioiw an essential ground of the credit given to Scott, the principal deb-or. Such a promise must he in writing.

Second — This parol evidence being excluded, there is nothing left to support plaint iif’s case, and the view expressed renders it unnecessary to dwell upon the other objections.

It is therefore ordered that tile judgment appealed from he avoided and reversed, and the demand of the plaintiff dismissed, with costs in both courts.

Rehearing refuse».


text:
    No. 198.
    C. G. Nugent et al. v. Jesse M. Randolph, Tutor.
    A amt Ivy the licirs to sot asido and annul orders or decrees rendered bytlie district court homologating their tutor’s accounts, and to causo the tutor to render an account, is, strictly a probate proceeding, and tlie parish court is vested with jurisdiction of sueh action without regard to the amount involved.
    APPEAL from the Parish Court of the parish of Franklin. W. W.. Campbell, Parish Judge.

      Morrison & Farmer, for plaintiffs and appellants.

      Wells & Corlcem, for defendant and appellee.
   Taliaferro, J.

This is a proceeding against the detendant by bis former waids fora definitive settlement of his tutorship, commenced in 1853. The plaintiffs allege that on the second of October of that year the defendant, the.r former tutor, went into possession of their property, of which they give a detailed statement, and fix the amount: of it, and also of the balance they allege was due them by their tutor on the second December, 18G4. This balance they state to be $8826 83, subject to several small credits, amounting in all to $339 30. They attack and allege to he fraudulent, irregular and illegal two judgments-rendered the on in 18G3, the other in 18GG, approving and homologating two accounts of tutorship pretended to be rendered by the defendant-in 18G3 and J8G4. They point out in these accounts items-charged against them of large amounts unsupported by vouchers or proof of any kind, and others of large amount which the tutor is not entitled to charge against them, and still other items that are exorbitantly high. They pray that these judgments, orders or decrees of the district court of the parish of Franklin he annulled and set aside, and that tlio defendant be required to render a full, true, complete and just account of his administration as their tutor; and they claim as due them on final settlement the sum of $8437 53, with interest at five per cent, per annum from second December, 1864, for which they pray ju igment.

The defendant excepted to, the action of the plaintiffs on several grounds, the one chiefly relied upon being the want of jurisdiction of the court rations material. The exception was sustained on this ground, and the case dismissed as of nonsuit. The plaintiffs have appealed.

The judgment of the lower court is erroneous. The proceeding is one essentially involving the settlement of a tutor’s account. This is a private proceeding, the cognizance of which belongs to the parish court. Code of Practice, article 997. The evidence in the record sufficiently establishes that the two annual accounts homolgatod by orders of the clerk of the district court of the parish of Eranklin, rendered respectively on the third day of October, 1863, and the sixth of August, 1866, are in several respects materially erroneous and unsupported by proof. Justice to all the parties concerned requires that a full and complete account of the tutorship as prayed for by the plaintiffs should be rendered and duly settled.

To this end it is therefore ordered, adjudged and decreed that the aforesaid orders homologating the provisional accounts aforesaid be annulled and set aside; that the defendant, Jesse M. Randolph, late tutor of the plaintiffs, be required to file in the parish court of the prpper parish a lull, complete and accurate account of his tutorship of the plaintiffs; that this case bo remanded to the court of the first instance to be proceeded with according to law. The costs of this appeal to be sustained by the defendant.


author: I-Iowe, J.

text:
    No. 249.
    J. H. Beard v. G. W. Chappell. T. M. Gatlin, Intervenor.
    A privilege on the growing crop of cotton raised on a plantation in favor of a furnisher of supplies, which, commenced after tlio first of January, 1870, is without effect against third persons, if it has nob been recorded. The debtor for supplies being a lessee, the owner of the plantation and the stock thereon is a third person within the meaning oi article 123 of the Constitution. If, therefore, the owner of the plantation, a third person, was in the possession of tlio cotton at the time the privilege was asserted by tlio furnisher of supplies, then and in such case the furnisher could not hold tlio same, because not , having had his privilege recorded, and the cotton having passed into third hands, tlio privilege was lost.
    APPEAL from tlie Eighteenth Judicial District Court, parish of Bossier.

      Lems, J. Jigan, Williamson & Wise, for plaintiff and appellant.

      Griffin (& Snider, for delendant and appellee.
   I-Iowe, J.

Plaintiff sued the defendant Chappell upon a bill of goods sold and plantation supplies furnished, and money loaned to the latter in the year 1869, and claimed a privilege therefor upon certain •cotton on tlie Bear Point plantation, in the parish of Bossier, raised during that year. lie also claimed the ownership of certain mules and other personal property on that plantation, and at his instance, in June, 1870, a writ of sequestration was issued against both the cotton .and the other property.

The defendant Chappell answered by general and special denials, -and alleged that the plaintiff had lost his privilege for supplies by failing to record it. He also made a demand in reconvention

T. M. Gatlin intervened, claiming the ownership of all the property ¡sequestered, and damages for its seizure by plaintiff, which he alleged to be tortious.

The plaintiff answered the petition of intervention by alleging that any sale by which the property had been transferred to Gatlin was ■simulated.

The judge a quo, after trial of the issues thus made up, gave judgment in favor of plaintiff for his entire debt against the defendant, but rejected his claim of ownership of the mules, etc., and of privilege •on the cotton, and rendered judgment in favor of intervenor for all file property seized. The plaintiff alone appealed.

The testimony of the numerous witnesses is so vague, confused and •conflicting that it is difficult for us to settle the, rights of the parties to this litigation with entire accuracy. Under such circumstances we ¡attach even more than usual weight to the opinion of the judge below, who saw and heard the witnesses, and will not reverse his judgment unless manifestly erroneous. Bearing this familiar principle in mind, •we will notice the principal points made.

First — The privilege of plaintiff was not recorded, and in this case, ■commenced in June, 1870, could have no effect against third persons. We are satisfied that the intervenor was a third person in the sense in ■which that phrase is used in article 123 of the Constitution. The intervenor owned the plantation on which the cotton was seized, and that was in his possession. The contract under which he was thus in possession, whatever may be its legal name, was not a simulation. It was a real transaction, and the intervenor was a real party thereto, .and we therefore conclude that the plaintiff could not, in June, 1870, ■assert against him an unrecorded privilege.

Second — As to the other personal property claimed by plaintiff as owner, we also conclude that the transfer to the intervenor was not a ■simulation, and that the plaintiff is not the legal owner.

Third — The defendant has asked to have the judgment amended by reducing the amount as against him, but we see no reason to make the .amendment. The defendant has not clearly established the credit he •claims.

udgment affirmed.


text:
    No. 205.
    Hodge Rabun v. William H. Pierson.
    Tlio rule winch gives to a transaction the authority of the thing adjudged is founded upon the maxim that it is for the interest of the commonwealth that there should be an end of litigation.
    A transaction settling the amount due upon notes given for the price of land, movables and Slaves, and appearing to have eliminated the slave portion of the consideration, will not be disturbed because the calculations by which such elimination was effected were not exactly accurate, no error of calculation being pleaded.
    A transaction fixing the amount duo by the debtor at a date certain necessarily excluded testimony offered by him to prove a part payment made two years before such transaction.
    APPEAL from the Eleventh Judicial District Court, parish of Bienville.

      Watkins, J. Jack c6 Bierson and IF. B. JSgan, for plaintiff and appellant.

      John Young and J. J). Watkins, for defendant and appellee.
   Howe, J.

In 1860 W. H. Pierson sold to Hodge Rabun a plantation, slaves and movables attached, for the sum of $29,600, and gave for the price ñve notes of $5000 each, and one note of $4600, falling due respectively in March of the years 1861, 1862, 1863, 1864, 1865 and 1866. The two notes which matured iu 1861 and 1862 were paid. In September, 1865, Pierson obtained an order of seizure and sale on the four remaining notes. , Rabun enjoined the sale on various grounds, and among others that the land and movables included in the sale were worth but $9300; that the value of the slaves was $19,300; that he had already paid the value of the land and movables; that he had been deprived of his ownership of the slaves by the proclamation' of the President of 1863, and by various acts of Congress, etc., and that he was therefore discharged by failure of warranty from the debt for the price of the slaves.

On the fifth October, 1865, the parties entered' into a written, transaction, reciting the sale, mortgage, executory proceedings and injunction suit, and their agreement “to settle .the matters in dispute in said proceedings..” Rabun agreed to pay as follows: $2500 on the fifteenth October, 1865, and $2500 on the first January, 1866. It was then, stipulated that on the first payment of $2500 being made the said proceedings should be dismissed and all the notes save the one last falling due of $4600 delivered up to Rabun, which note of $4600 was agreed to be paid as follows: one-third on March 1, 1867, one-third on March, 1868, and the balance March 1, 1869. Sundry arrears of interest were also remitted.

In execution of this contract of transaction the two cash payments therein provided were made; the proceedings therein recited dismissed, and $1000 paid on the note of $4600 March 1, 1867. Further payment being refused, Pierson procured another order of seizure and sale on the note of $4600, less this credit and remitted interest. This proceeding in turn was enjoined by Rabun, on the ground that the note thus sought to be enforced was a note given for the price of slaves. In answer to this Pierson converted his executory into an ordinary proceeding, and prayed for judgment accordingly. There was judgment in his favor as prayed for and Rabun appealed.

From this statement it appears that at the time the transaction was made Rabun was indebted to Pierson in a considerable amount. The unpaid notes included the prices of land, slaves and movables, andi nominally amounted to nearly $20,000, with large arrears of interest. The value of the slaves, being alleged to be to that of the other property as about two to one, we may say, by way of approximation, that there was due to Pierson, on Rabun’s own showing, about six or seven thousand dollars. The question of the validity of slave notes was entirely unsettled, and the question of liability on notes with the mixed consideration of land and slaves was not finally determined by this-court until the latter part of the year 1869. 21 An. 757.

The circumstances then presented a proper opportunity for a transaction, which is a written agreement between two or more persons who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. R. C. C. 3071. But this transaction is now attacked by Rabun, the plaintiff in this case. He insists that the note in suit was given for the price of slaves, and that its nullity not being expressly mentioned in the transaction, can still be pleaded.

First — Tile note in suit was not, as we have seen, a note given for slaves alone, but for lands, movables and slaves. The effect of the transaction was to eliminate from the controversy between the parties the slave portion .of the debt, and to leave duo the portion which resulted from the sale of land and movables. The parties did for themselves, evidently, what the law would have done for them; what the law did for the litigants in the case of Sandidge v. Sanderson. The amount thus determined was represented by two payments to bo made in cash, and by the note in suit to be paid in three installments. The note in suit thus became by solemn agreement a representative for its face value of a debt resulting from a transaction, and having, as to all events happening beioro its date and included in its terms, the authority of the thing adjud ¡.ed. C. C. 3078; C. N. 2052.

“ Quand la paix et l’harmonie sout'troublées parmi los citoyens, il est pour les rétablir trois moyens ouverts aux parties:

“La voie judiciaire qui soumet leurs débats h l’autoritó publique. * * * * * * * * *

“La voie de l’arbitrage qui leur donne dos jugos amiables et deleur clioix. * * * * s “ 53 o *■’

“Enfin, la voie des transactions qui les rend elles-mémes leurs propres arbitres.” Gillet, Discours, 20 mars 1804.

Les transactions se font sur une contestation née ou á naítre, et les parties ont entendu y balancer et regler leurs intérets. C’est done un jugement que les parties ont prononcé entre elles, et lorsqu’elles se sont rendu justice, elles ne doivent plus étre admises á s’en plaindre. C’est l’irróvocabilité de la transaction qui met ce contrat au rang de ceux qui sont les plus utiles á. la paix des families et alasoeióté en gónéral.” Bigot-Préameneu, Exposé, etc., 15 mars 1805.

The law which gives to a transaction the authority of the thing adjudged is founded upon the maxim that it is for the interest of the commonwealth that there should be an end of litigation. We do not feel called upon to disturb this thing adjudged by the parties to this suit merely because their calculations may not have been accurate when they plead no error of calculation. C. C. 3078.

Second — The plaintiff insists that the nullity of the obligations given for slaves, not being expressly mentioned in .the transaction, can still be set up under article 3080 of the Code. To this we reply that the transaction shows that the question of liability on the slave portion of the debt was considered and settled. It makes no difference what theory of law the parties may have entertained at the time. C.- C. 3078. As a matter of fact the effect of their compromise was to separate the price of the land and movables from the price of the slaves.

'Ildrd — The judge a quo did not err in excluding evidence offered by plaintiff to prove a part payment in 1863. Tiie transaction in 1865 necessarily excluded such testimony.

Judgment affirmed.


text:
    No. 179.
    The State v. James Gibson
    bond conditioned for tbe appearance of a party chargod ‘‘witli having committed the crime of shooting at with intent to kill,” without further terms of description or words to render the sense more definite, is void and without effect.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita.

      Ray, J. W. W. Farmer, District Attorney, for the State, appellant.

      Field <& Smith, for defendant and appellee.
   Taliaferro, J.

The defendant being indicted for shooting Henry Boston, with the intent to kill and murder the said Henry Boston,” was arrested and gave bond, with one J. D. Anderson as surety for his appearance in the xiroper court at the proper time to answer the charge. Failing, however, to axrpear, a forfeiture of the bond was declared. The surety moved to set aside the judgment of forfeiture, assigning various reasons therefor, one only of which we deem it important to examine, viz.: that the bond sets forth no crime known to the law for which the defendant Gibson was to appear and answer. Judgment was rendered in favor of the defendant Anderson and the State appealed. The bond sets forth its condition to be that, whereas a warrant having issued from the Fourteenth District Court on the-day of-, 1870, “ charging the above bound with having committed the crime of shooting at with intent to kill,” and whereas the above bound James Gibson has been arrested, etc. Now if the said Gibson shall well and truly appear, etc., the bond to be null, otherwise to remain in full force and virtue.

We thiuk the judgment of the lower court correct. The words ■“ shooting at with intent to kill” are vague, indefinite, and alone desfine no crime known to the law. The bond can not, in our judgment, be construed as an obligation of the accused and his surety that Gibson .shall appear and answer the charge against him contained in the indictment. The surety Anderson was therefore properly released

Judgment affirmed.


author: Ledeling, C. J.

text:
    No. 182.
    Silbernagel & Co. v. L. D. Baker, Administrator.
    Under the allegation of ownership in a suit for a lot) of cotton, if the plaintiff fails to establish title lie can not, in the same action, he permitted to show that lie has a lien and privilege on the same cotton to secure the payment of the debt which has not been judicially demanded.
    A diction cn paiement is incomplete if the thing given in payment has not been delivered. C. p. 2G55, 2G5G.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse.

      Ray, J. Todd <fi Brigham, for plaintiffs and appellees,

      JTeivton c6 Ball, for defendant and appellant.
   Ledeling, C. J.

The plaintiffs sue the defendant for all the cotton grown on the plantation of John W. Baker, deceased, and'inventoried ns part of his succession, claiming to he the owners thereof by virtue of a verbal sale made by said Baker during his lile, and they had the ■cotton sequestrated.

The testimony of the agent of the plaintiffs shows that before his death John W. Baker covenanted and agreed to haul and deliver to plaintiffs, at Prairie Mur Kouge, all the cotton winch he made on his home place and on the McCord place, and three-fourths of the cotton made on the Tiimhle place. It further appears irom the testimony of the witness that the cotton was to he given iu satisfaction of a debt due by John W. Baker to Silbernagel & Co., estimating the cotton at fourteen cents per pound.

The cotton claimed in tins suit was never delivered to Silbernagel & Co.; a part of it seems to have been gathered after Baker’s death, and it was all sequestrated in the possession of the administrator of the estate of John W. Baker. We do not deem id necessary to consider tbe questions of law discussed by counsel, orally and by briefs, relative to sales, as tbe contract in question is lacking in one of tbe essentials of a sale, to wit: a price to be paid in money. The contract was a elation en paiement, and it was incomplete for want of delivery. C. C. arts. 2655, 2656.

'Pile plaintiffs’ counsel insist that if plaintiffs are not tbe owners they have a privilege on the cotton to secure tlieir claim against J. W. Baker, deceased. In their petition they allege that they are tbe owners of tbe cotton and they pray to have the cotton delivered to them because they are owners thereof. In this court they ask us to allow them a privilege on tbe cotton to secure an account, for which they have made no demand whatever. Tbe statement of tbe proposition is enough to show its unreasonableness.

The cases referred to in 5 An. 646, and 7 La. 51 and 152, are not analogous to the one before us.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided and reversed, and that there be judgment in favor of the defendant, setting aside the sequestration and rejecting the plaintiffs’ demand, with tbe costs of both courts.

Rehearing refused.


text:
    No. 224.
    W. J. Kilbourn v. A. J. Pennebaker et al.
    The parish court has jurisdiction of a question involving the validity of a will and. th©' recognition of the party claiming as heir, without reference to the amount involved.
    In this case the evidence shows that no witnesses that could he had at the time of mailing the will resided in the place; that a greater number than five who subscribed to the will could not have been procured without endangering the execution of the will itself, on account of the critical condition of the testator at the time.
    Held — That under these circumstances the attestation of the will by five witnesses was a substantial compliance with article 1576 of the Civil Code, and that the will was not void; on account of its not being attested by a greater number of witnesses
    APPEAL from tbe Twelfth Judicial District Court, parisíi of Franklin. W. W. Campbell, Parish Judge.

      H. JP. Wells, for plaintiff and appellee.

      J. C. Seale, for defendants and appellants.
   Taliaferro, J.

The plaintiff, setting himself up as the brother and sole legal heir of John II. Kilbourn, now deceased, institutes tills-suit to recover bis succession, which tbe decedent gave by act of last will to bis wife, Frances C. Jones. Tbe will was duly admitted to probate in tbe parish of' Franklin, where tbe testator died. Tbe executor named in tbe will accepted the trust and was duly qualified. Tbe plaintiff attacks tbe will on the ground of nullity as baviug been made without observance of the formalities essential to its validity. Tbe instrument is drawn in tbe form of á nuncupative will by private act and is signed by tbe testator and attested by five witnesses.

Judgment was rendered in tbe court below iu favor of tbe plaintiff, annulling the will and awarding the succession to the plaintiff as heir at law to the testator. The executor and the universal legatee, the parties defendant, have appealed.

In the outset the defendants except to the jurisdiction of the parish court on the ground that the amount in controversy exceeds five hundred dollars. The matters involved are the validity of the will and the recognition of the party claiming as heir — questions of which the parish court clearly has jurisdiction. The exception, therefore, is without force-

The testimony in the record as to the execution of the will is pretty full and seems to show that all the formalities required by the articles 1573, 1574, 1575 and 1576 of the Civil Code were complied with. The plaintiff seems to rely with more confidence upon the point that the will was not subscribed by the required number of witnesses. Article 1576 declares that: “In the country it suffices for the validity of nuncupative testaments under private signature, if the testament bo passed in presence of three witnesses residing in the place where the testament is received, or of five witnesses residing out of that place, provided that in this case a greater number of witnesses can not be had.” In this case the will was passed in the country and signed by five witnesses. Four of these witnesses, it seems clearly established, lived “out of the place” where the testament was signed; thatis, that they were residents of the parish of Madison, on the opposite side of the Bayou Mason from Warsaw, the place of residence of the testator, ■which lies on the west bank of the bayou, in the parish of Franklin. The residence of the other witness is not so clearly fixed.

It is argued that all the witnesses required to testaments of this form must be either residents of the place or residents out of the place where the testament is received; and that the residence of one of the five not being positively shown the presumption is that ho resided in the place where the will was made, and, therefore, the act is null because it was not signed by five witnesses living out of the place nor by three living in the place where the testator delivered his testament. If there were any force in this reasoning it lay with the plaintiff alleging the nullity of the instrument on the ground of the incompetcncy of the witnesses to show that one of them resided in the parish of Franklin. This he has certainly not done. Calvin Moore, a notary public of Madison parish, who drew up the will under the dictation of the testator, and who, from the instrument itself and the testimony he gave in regard to the manner in which the required formalities were observed on the occasion, it is clear is a competent person in matters of the kind, says in regard to the witnesses who signed the will: “Kilgore, Williams and I lived in Madison parish, and I think the other two did.” The executor states in his testimony that lie was not positive “whether T. J. Pennebaker (the witness whose residence is not fully established) lived in Madison parish or not.”' But whether he resided iu Madison or Franklin we deem it unimportant to inquire.

There were five witnesses to the will, and we think it fair to conclude they all resided iu Madison parish. The only inquiry remaining is, could a greater number have been obtained? The plaintiff assumes the affirmative of this question, and offers testimony to sustain it. Moore, who drew up the will, states that he lived at the distance of six miles from the place where the will was passed, and that Benjamin Kilgour and Jack Harper lived in Madison parish at the time, and nearer to the testator’s residence than Moore himself did; that Montgomery’s place, in Madison parish, was within a mile, and that there-were ñve freedmen there. But Moore also says that the testator had been removed only a short time previous from his former residence in Madison parish, and when called as a notary public of that parish to* draw the will, he set out to gó, as he supposed, to the previous residence of the testator, much nearer his own residence than Warsaw, and that if he had known of the removal of the testator to Warsaw, he should probably not have gone at all. He states that the dajr was-rainy, the section of the country around was visited with the calamity of overflow; that the people were occupied in driving their stock off to highlands, and that it was owing to that circumstance that they were enabled to obtain the witnesses who assisted in passing the will, they being men wlio had come that day to cross their stock over the Bayou Mason. Williams, a witness, says there were but two men at Warsaw, one of them the person who was appointed the executor, and the other a merchant who was importuned to attend as a witness, but refused positively for the reason that he had no clerk to attend the store if he loft it. The testator, although he lived about thirty hours-after he signed his testament, it is clear w'as in a dying condition. Moore, in his testimony, says of the testator: “He was very feeble; I had great fears that the exertion of dictating and signing the will would cause him to sink more rapidly. I believed at the time if there was delay sufficient to get a larger number of witnesses, the deceased would not be able to sign his will at all.”

It may not have been impossible to procure more witnesses, but the circumstances which are shown to have existed rendered greater efforts than were used to obtain them unnecessary. Under the facts existing,, the requirements of the law were sufficiently complied with. In the case of Maria and another v. Edwards, executor, and another, 1 Rob. 360, this court said: “Article 1576 does not contemplate a physical or absolute impossibility ; reasonable diligence to procure the witnesses, is all that is required.” 1 Martin, N. S. 488; 12 L. 483; 2 An. 724.

It is therefore ordered, adjudged and decreed that the judgment of the district court he annulled, avoided and reversed. It is further ordered that the act of last will of the testator, John II. Kilbourn, be confirmed and held valid; that the defendant, Frances C. Jones, widow of the testator, bo recognized as universal legatee under the said will, and that the defendant Pennebaker, the executor, be allowed to proceed with-the administration and settlement of the succession. It is-lastly ordered that the plaintiff and appellee pay all costs of this suit*


author: Taliaeerro, J.

text:
    No. 194.
    John W. Wansley v. John W. Willis.
    An unconditional offer to pay a debt is sucli an acknowledgment as will interrupt tlic current-of prescription. Such offer or acknowledgment may be proved by parol evidence.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin.

      Crawford, J. M. J?. Wells, for plaintiff and appellee.

      Morrison & Farmer, for defendant and appellant.-
   Taliaeerro, J.

The plaintiff brings suit on a promissory note for the sum of $880, with interest at the rate of eight per cent, per annum from the sixteenth of May, 1861, the day the note fell due. An exception was filed to the legality of the citation, on the ground that the device upon the seal attached or impressed upon the citation does not correspond with that upon the seal of the State. It appears, however, that the words “State of Louisiana, Twelfth District Court, parish of Franklin,” are clearly legible on the seal and its impress on the citation. The answer sets up the plea of usury. And lastly the plaintiff is met with the plea of prescription.

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

The plea of prescription is the only defense deserving much consideration. The plaintiff by his own testimony aims to show au acknowledgment of the debt of the defendant in 1863, and the contest turns upon the construction to be given to what was said by the defendant at that time, it being contended by him that he made no acknowledgment of the debt, but only an effort to pay the note, provided the plaintiff would receive Confederate money. The statement of the plaintiff is in these words: “In the year 1863 defendant acknowledged the debt and offered to pay it in Confederate money, which I refused to take. That was near about the time of the fall of Vicksburg.” Under cross-examination he said: “Near the fall of Vicksburg; think it was afterwards; can’t say positively. Mr. Willis and I were at Oakley Church in this parish when this conversation took place. There were several near; don’t recollect that any one was close to us. Willis was then on his way to Texas, -as he stated. He offered to pay me in Confederate money. Ho slated he had plenty of it and wanted to settle that. I told him that was not the hind I loaned him. He talked a good deal, trying to get me to take Confederate money. That is all the conversation we had on the subject in 1863.’'

The language of the witness here is broad and direct that the defendant in 1863 “acknowledged the debt,” adding, it is true, in the same sentence, “and offered to pay it in Confederate moneybut taking the plain import of the words used, we understand that the defendant recognized his obligation to pay the debt, and the recognition was not made to depend upon the condition that his creditor would receive Confederate money. The testimony is in substance that he admitted owing the debt, and was desirous to discharge it by the payment of Confederate money. We think there was an acknowledgment of the obligation that interrupted prescription

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


text:
    No. 234.
    Allen Green v. J. G. Huey, Sheriff, et al.
    Ifc being tlio custom in tlie country parishes of the State for the judge to sign all judgments on the last day of the term, an appeal will not be dismissed because it was granted bd'oro the -judgment was signed, if the judgment, as appealed from, has been signed afterward by the judge.
    An injunction that has been issued by the parish judge, acting in the place of the district judge, will not be dissolved on that ground, if it he shown that the district judge was absent from the parish at the time.
    The amount of the bond to obtain an injunction to stay the execution of a judgment must he fixed by the judge who grants tlio order.'
    In an injunction suit, the surety on the bond is a party to the suit, and is hound by the allegations in the petition, the affidavit, etc., the same as the principal
    APPEAL from the Eleventh Judicial District Court, parish of Jackson.

      J. 17 Pierson (attorney at law), judge ad hoe.

      Piahardson & MeEnery and John Pay, for plaintiff and appellant.

      J. <$>J. TV. Young, for defendants and appellees.
   Taliaferro, J.

C. Yale, Jr. & Co. having issued execution against John G. Randle & Co. upon a judgment rendered against that commercial partnership in 1858, and caused to bo seized by the sheriff certain lands, the property of Allen Green, who had boon one of the partners of the firm of John G. Randle & Co., Green sued out an injunction to stay the execution, alleging several grounds why the judgment of C. Yale, Jr. & Co. should not he executed, and chiefly that the judgment was prescribed by tlio lapse of more than ten years from its rendition before the issuance of the execution, the judgment not having been revived according to law to continue it in force.

The defendants in injunction moved to dissolve the writ, and assigned the following grounds:

First — That the parish judge who issued it was without power rations materia to do the act.

Second — That the bond is insufficient in amount.

Third — That the parties executing the bond are not bound jointly and severally, and they can not be condemned in solido in damages.

Fourth — That the bond is further defective for the reason that it does not set forth what proceedings of the sheriff the injunction is directed against.

There was judgment in the lower court dissolving the injunction, the judge a quo considering the bond insufficient in amount. The plaintiff appealed.

There is a motion to dismiss the appeal on the ground that it is premature, the appeal having been taken before the judgment became definitive by the signature of the judge. We think this is not a sufficient reason for dismissing the appeal. Our predecessors so decided in a case found in 12 An. 289, predicating their decision upon the general custom in the country of signing judgments on the last day of the term, deeming it sufficient that the appeal be taken at the same term of the court. To this view of the question we incline to adhere. See also 15 An. 521. The motion to dismiss is therefore overruled.

Recurring to the grounds of the motion to dissolve

First — It is shown by affidavit that the district judge was absent from the parish at the time the parish judge rendered the order for the injunction.

Second — The amount fixed by the order of the parish judge for-which the bond was to be given is $5000. For this amount the bond was given, and being for a stay of execution, we think the plaintiff complied with the law in executing his bond for the amount fixed by the judge. C. P. article 804.

Third — In becoming obligors on judicial bonds, the parties contract in reference to the law. C. P. article 304; 1 An. 157

Fourth — The surety is a party to the suit, and his obligation is regulated by the petition, affidavit, order of the judge, etc., and any descriptive omission in the bond is cured by reference to them. 12 An. 68; 15 An. 465. The bond being among the papers with the title and number of the suit upon it, shows sufficiently what proceedings of the sheriff are enjoined.

It is apparent from the record that the plaintiff would be entitled to another injunction if this should fail through informalitjj

It is therefore ordered, adjudged and decreed that the judgment of the district court bo annulled, avoided and reversed. It is further ordered that the injunction be perpetuated, the defendants and appellees paying costs in both courts.


text:
    No. 3492.
    Ann P. Harrison v. L. B. Jenks—The M. & R. F. Company, Appellant.
    iTurDitm'e.lodgod in a building by the lessee is pledged to the landlord for the payment of the rent. A seizure of it by the landlord, and a release of the seizure by the lessee’s giving bond, does not destroy or impair the privilege accorded by law in favor of the landlord. A seizure or sequestration by a creditor after the property has been released on bond will not therefore interrupt or affect the privilege already existing for the payment of the rent.
    APPEAL from the Seventh District Court, parish of Orleans.

      Col-lens, J. Cotton & Levy, for plaintiff.

      JXornor & Benedict, for third opponents, appellants.
   Howe, J.

On the nineteenth May, 1871, the Mitchell & Rammelsberg Furniture Company sequestered certain furniture in the house occupied by Jenks, claiming the vendors’ privilege. The furniture, does not appear to have been removed from the premises.

On the twenty-third May the plaintiff, Mrs. Harrison, provisionally seized the same property for rent of the house thus occupied by Jenks, the furniture still being on tbe premises.

On the twenty-fifth May the provisional seizure for rent was released and the property ordered to be restored to Jenks upon his giving bond mder article 287, R. C. P., which bond was given.

On the eighth of June the Mitchell and Rammelsberg- Furniture Company obtained judgment with privilege, and on the twenty-sixth June issued writ of fi. fa.

On the nineteenth June Mrs. Harrison obtained judgment with privilege, and on the twenty third June issued fi. fa. The property was sold under the latter fi. fa., and the contest before us, in which the Furniture Company is appellant, is in regard to priority of right to the proceeds.

The appellant contends that the bond given by Jenks in release of the writ of provisional seizure was a substitute for the property, that the property was no longer under the control of the court, and that therefore, as we understand the argument, it at once fell back into the grasp of the appellant’s sequestration issued to secure its vendor’s privilege, and the cases of Dorr v. Kershaw, 18 La. 58, and Bell v. Alexander, 1 Rob. 278, are cited in support of this theory.

The cases cited were of attachment, where the privilege sprung from seizure only, and perished with the release of the seizure. The case before us, however, is one of a privilege, properly so called, springing from thq nature of the debt, a privilege which a seizure does not give nor a release of seizure take away. The fact that Jenks gave a bond did not extinguish the lessor’s privilege. R. C. C. 3277. It only added another to the extraordinary safeguards with which our law chooses to hedge the landlord, and we do not see that the appellant, as vendor, choosing to deliver the property to a lessee, can legally complain of the result occuring in this case. Blanchen v. Fashion, 10 An. 49.

Judgment affirmed.


text:
    No. 1864.
    City of New Orleans v. George Ruleff et als.
    Tlie issuing oí* a writ of fieri facias on a judgment against the city of üfcw Orleans is prohibited by statute. An injunction will therefore issue restraining the execution of such writ if it has already issued.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. George 8. Lacey, City Attorney, for plaintiff.

      O. Poselius <& Philips, for defendants and appellees,
   Howell, J.

The city of New Orleans has appealed from a judgment dissolving an injunction restraining the seizure and sale of certain lots of ground seized under execution in favor of defendants.

Since the appeal was taken the Legislature has enacted a law prohibiting the issuance of writs of fieri facias against the city, and providing another method for satisfying moneyed judgments against said corporation. Under this law the injunction must be maintained.

It is therefore ordered that the judgment appealed from be reversed and the injunction herein perpetuated with costs in both courts.


author: Wxly, J.

text:
    No. 3422.
    Patrick Lyons v. Dymond & Lally.
    In nn action on account for work and labor performed under an agreement, tlio objections by tlie delbnclanfc that it was not done witliiu tlie time specified, and was not satisfactorily done, comes too late if not made until after tlie work has been done.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Cooley & Phillips, lor plaintiff and appellee.

      A. Pitot, for defendants and appellants.
   Wxly, J.

This is an action for the balance of an account. The controversy as to the correctness of the account is only in relation to the items for ditching- which embrace the largest part thereof.

The delense is that the work performed by plaintiff was not done according to the terms and conditions of agreement entered into by plaintiff, and that for the work as done the plaintiff was paid more than tlie value thereof j that the work was not completed at the time specified, some of it having to be done de novo, to the damage of $1000 to the defendants, and that by tlie amount paid irom time to time tbe plaintiff was overpaid for the value ot tlie work $938 83. The prayer of the answer is that the demand of the plaintiff be rejected, and that the respondents have judgment in reconvention for $1938 8?

The court, rejecting the recon volitional demand, gave judgment foiplnintiff for $1481 67, the balance found to be due him on the account. The defendants have appealed. After a full examination of the evidence we have come to the conclusion that the judgment is correct.

The account sued on by the plaintiff was rendered to him by one of the defendants, and the work now complained of as unsatisfactorily performed was received by the agent of the defendants. Their agent was on the premises during the time the work was being performed, and saw its progress from day to day. If it was unsatisfactory and not done according to the agreement, it should not have been received. If the items for ditching were not correct, the defendant Dymond should not have embraced them in the statement of account which he rendered to the plaintiff, and upon which this suit was instituted. There is no error shown for thus inserting these items in the account. On the contrary, from the defendant Dymond’s own sworn statement, he was aware of the objections he now urges to them; yet ho voluntarily debited himself therewith in the account rendered as aforesaid. Add to these important facts the testimony of the witnesses in behalf of the plaintiff, and there can be no doubt of the correctness of the judgment now under revision.

In the face of these facts and the testimony of the witnesses corroborating- them, we attach but little weight to the evidence of the defendant Dymond, the most important witness in behalf of the defense.

Judgment affirmed.


text:
    No. 1221.
    City of New Orleans v. E. A. Bienvenu.
    A notary public is an officer of tlio State, wlio bolds bis appointment from tbe Governor by and with tbe consent of tbe Senate. The city of jSTew Orleans has therefore no right or authority to impose a license tax on such officer in his official character.
    The permission given to the city to impose a license tax on trades, occupations and professions does not include an authorization to impose a tax on a notary public or other State officer.
    APPEAL from the Fourth. Justice’s Court, parish of Orleans. A. Yiavant, Justice of the Peace.

      George 8. Lacey, City Attorney.

      JP. B. JSarhart, in propria persona, defendant and appellee,
   I-Iowe, J.

The defendant has appealed from a judgment against him for the amount of a license tax imposed by the city of New Orleans upon him as notary public in and for tbe parish of Orleans.

The judgment was, we think, erroneous. A notary is an officer appointed by the Governor by and with the advice and consent of the Senate, and commissioned and sworn as such, and the city of New Orleans has no right, at least in the absence of some express permission, to impose a tax on such an officer in his official character.

A permission to impose a license tax on “trades, occupations and professions,” can not be held to include an authorization to impose a tax on a notary.

It is therefore ordered that the judgment appealed írom De reversed, and the suit dismissed at plaintiff’s costs.


text:
    No. 3501.
    State ex rel. W. B. Merchant, District Attorney Third Judicial District, v. Henry Train, Judge Third Judicial District.
    Under the act of 18C8, amending the act of 1855, relative to a change of venue in criminal cases, the judge of the district court is required to grant such change on the application of the Attorney General, the district attorney or the district attorney jpro tarn., on behalf . of the State, without giving any other reasons therefor than those embraced in the .application. The writ of mandamus will, therefore, issue from the Supreme Court on tbe application of the district attorney, directing tlio judge a quo to grant the change oí venue, such order being issued by the Supreme Court in aid ot its appellate jurisdiction.
    APPLICATION for a Writ of Mandamus.

      W. B. Merchant, District Attorney Third Judicial District, relator.

      Train, Judge, respondent.
   Taliaferro, J.

This is an application to this court by the district attorney of the Third Judicial District, for a mandamus to compel the judge of that district to grant a change of venue from the parish of Iberia to the parish of St. Mary, on the ground, as alleged by the attorney, that a competent jury can not be had in the pariah of Iberia for the trial of a criminal prosecution commenced there against one Alexander Blanc, and that it is necessary, in order to subserve the ends of justice, to procure a change of venue. The usual preliminary order was rendered and the judge answered, placing his refusal to allow the change of venue on the ground mainly that there was no sufficient showing made of the necessity for such an order, and that the case is one in which, by law, he is vested with discretion to grant or refuse a change of venue upon the evidence and state of facts presented. He relies upon the act of 1855, sections 48, 49 and 50, and deduces from the sections 1021,1022 and 1023 of Ray’s Revised Statutes the same discretionary power in the judge that is conferred by sections 48, 49 and 50 of the act of 1855, conceding, however, that there is a material difference between section 1021 of the Revised Statutes and section 48 of the act of 1855 as to the time when the application is to be made, the former not containing, as the latter does, the provision that prior to entertaining an application for a change of venue the judge must be shown that no competent jury of the parish can be had after exhausting two successive panels.

The respondent reviews at some length in the reasons assigned for refusing the application, the general law on the subject of change of venue and cites various authorities under the common law as well as decisions of our own court. He refers to the decisions by this court that it is without authority to direct an officer how to do an act the law requires him to do, and that it will not issue the writ of mandamus •ordering the doing of an act when there exists a discretion in the officer to do it or not.

On the part of the relator it is held that a material alteration of the law relating to a change of venue has been made by the statute enacted in 1868, under the constitution of 1868, and that the statute of 1855 is, to the extent of that alteration, repealed. The gist of the matter in issue, then, is as to whether there has been such alteration añade in the provisions of the act of 1855 as contended for by the relator, and whether, under the law as it now exists, it is the duty of the judge to render an order changing the venue in a criminal prosecution whenever an application for that purpose is made by the district attorney, and that without the exercise of discretion on the part of the judge.

The forty-eighth section of the act of 1855 (acts of 1855, page 158,) provides: “That upon the application of the Attorney General or ■any district attorney of this State, the judge shall have full power to ■change the venue in behalf of the State in any case where it shall be ■made apparent to the court that no competent jury of the parish can be had after exhausting two successive panels.”

The act of 1868, section one, provides: “ That upon the application ■of the Attorney General or any district attorney or district attorney pro tempore of this State, the judge of any court exercising criminal jurisdiction in this State shall, of his own accord, have full power to •change the venue in any criminal prosecution when, in his judgment, a competent jury of the parish can not be had, and in either case the venue shall be changed to any parish in that or any adjoining district where, in the opinion of the judge, a competent jury is likely to be obtained.”

Here, it is seen that by the act of 1855 no change of venue in behalf of the State was allowed, except on condition that it was made apparent to the judge that no competent jury of the parish could be had, and that, after having exhausted two successive panels in the effort to obtain a fair and impartial jury. This condition does not appear in the act of 1868. That act purports to amend and re-enact the forty-second section of the act of 1855. The amendment dispenses entirely with any showing to the court of the inability to procure a-competent jury. The language used is mandatory to the judge that he shall, in any criminal prosecution, change the venue in behalf of the State upon the application of the Attorney General or any district, attorney or district attorney pro tempore. When an application is made for a change of venue on the part of the State by any of the officers named, it seems that the judge is clearly left without discretion whether to grant it or not. He is clothed with the power propria motw to order a change of venue in behalf of the State when, in his opinion, a competent jury can not be had. In the exercise of this power, which is independent of any action on the part of the district attorney or other officer of the State, he may exercise a discretion. But it seems clear that he is without any when the application is made by the proper officer. This case comes within the category of cases in which it has been frequently announced this court may issue the writ of mandamus in aid of its appellate jurisdiction.

It is therefore, for the reasons stated, ordered that the mandamus in this case be made peremptory.


text:
      No. 3515.
    William Barrett v. A. P. Hard.
    A compromise between a creditor and bis debtor, whereby the creditor agrees to take a less amount than is due in payment of bis demand, provided the debtor makes payment within a given time, is terminated if the debtor fails to make tbe payments within the time specified in tbe compromise*
    APPEAL from the Seventh District Court, parish of Orleans.

      Oollens, J. JS. Filleul, for plaintiff and appellee.

      Nace, Foster ds J$. T. Merrick, for defendant and appellant. '
   Wyly, J.

The defendant appeals from the judgment perpetuating the injunction sued out by the plaintiff to restrain tbe execution of tbe judgment which the defendant has against Mm.

Tbe ground for the injunction is that subsequent to tbe rendition of the judgment against the plaintiff, he made an agreement with the. defendant by which the latter agreed to take fifty cents on the dollar for the amount of the judgment as a settlement in full therefor, stipulating the payment of the amount within a limited time to the attorneys of the defendant, and that in pursuance of said agreement the amount due thereunder on said judgment was duly tendered to the attorneys of the defendant, and refused by them..

From the evidence it appears that the defendant agreed to relinquish or compromise with the plaintiff in relation to the judgment which he hold against him, provided the plaintiff would within forty days pay to the attorneys of the defendant fifty per cent, on the amount of the judgment, and also their fees exceeding or beyond the $200 which had already been paid to them by the defendant. The amount of the fees of the attorneys was $450; $200 thereof having already been paid, the remaining balance was $250. It appears that the plaintiff failed within the time limited to pay the amount due on the judgment, and the amount due to the attorneys of the defendant according to the stipulations in the act of compromise. He, however, tendered part of the amount, which the attorneys refused to accept. Having failed to comply in full with the conditions of the compromise the contract terminated, and the defendant clearly had the right to execute his judgment against the plaintiff.

Let the judgment of the court a qua be annulled, and let there be judgment for the defendant dissolving the injunction herein, with costs of both courts.


text:
    No. 3443.
    State ex rel. Simmons v. The Judge of the Fifth District Court.
    Where an interlocutory judgment if erroneous would wort an irreparable injury, the party against whom it has been rendered has tho right to have it reviewed on appeal. In such a ease a mandamus will issue on application, directing the judge a quo to grant the appeal.
    APPLICATION for a Writ of Mandamus.

      Face, Foster di; JE. T. Merrick, for relators.

      Leaumont, Judge, respondent.
   Howe, J.

We think the appeal asked for by the' relators should have been alloived. The judgment directed the sheriff to return to the firm of Howard & Prestons the sum of $1000 in his hands, which relators claim was collected by the sheriff for them, and should be paid to them. If this judgment he merely' interlocutory, it is one which if erroneous would be held in a legal sense to work an irreparable injury. The relators have a right therefore to submit to this court the question whether it is erroneous or not.

Mandamus made peremptory.


text:
    No. 3588.
    State ex rel. Peyton B. Lynch et als. v. The Judge of the Second Judicial District Court.
    After the appeal bond has been given and filed in the record the jurisdiction of the appellate court attaches, and the jurisdiction of the court a qua, over the case is limited to the inquiry as to the solvency of the security on the bond. If a rule be taken by the appellee before the judge a, quo to set aside the appeal on the ground that the surety is not good and solvent, the Supreme Court will, on application for a writ of prohibition, examine the evidence taken in the court below on the rule to set aside the appeal.
    The failure of the appellant to qualify the surety on the appeal bond will not authorize the judge a quo to dismiss the appeal, but the writ of prohibition and not that by mandamus is the proper remedy for the appellant in such a case.
    APPLICATION for a Writ of Mandamus.

      Pardee, J. B. 0. Plliott, for plaintiff in rule.

      Pace, Poster & P. T. Merrielc, for defendant in rule.
   Wyly, J.

The complaint in this case is, that the judge has improperly set aside the devolutive appeal taken by the relators in the case of P. B. Lynch et als. v. A. J. Miller et als., on the ground that the surety on the appeal bond is not good and sufficient.

In answer to the mandamus the judge states that “ the plaintiff did not take any legal steps to justify the surety, as. will more fully appear by the annexed copy of the petition for appeal, appeal bond and proceedings upon the rule made a part of this answer and return marked A.’ T-he relator did not present any new bond for my consideration, and merely asked leave to file one at a future day. Not knowing any law to justify me in refusing to pass upon the rule taken, and allow a delay for the substitution of a new bond to be executed at a future day at the pleasure of appellants, I proceeded in my judicial capacity to pass upon the rule, and there being no proof of the sufficiency of the appeal bond the appeal ivas dismissed, and no bill of exceptions was taken to my ruling in refusing the delay to procure a new bond.”

Upon his own showing, the District Judge had no ground to render the order dismissing the appeal, there being no proof that the surety on the bond for devolutive appeal was insufficient.

The fact that “the plaintiffs did nob take any legal step to justify the surety,” did not authorize the judge to render the order setting aside the appeal. One might neglect to justify his surety and yet the latter might be the most solvent person in the State.

It is well settled that after the appeal bond has been given the court of the first instance can only inquire into the solvency of the surety, and that this court will examine the evidence taken in relation thereto on an application for the writ of prohibition. In order to justify the decree setting aside the appeal the insufficiency of the surety must be shown affirmatively by competent evidence. 22 An. 591. The surety accepted on the bond in such cases is presumed to be good, and if so, the jurisdiction of this court over the appeal is unimpaired, notwithstanding the failure of the appellant-to justify or prove the solvency of his surety in the c.ourt a qua. 21 An. 730, 733, 736; 22 An. 115, 591.

Bub the relators have mistaken their remedy. It is by the writ of prohibition and not by mandamus. 21 An. 113. The relief sought can not, therefore, he granted.

It is therefore ordered that the mandamus applied for be disallowed, and that the petition he dismissed at the costs of the relators.

Mr. Justice Howell took no part in this decision.