author: Taliaeekho, J.

text:
    No. 1117.
    Martha B. Nixon et al. v. Emile Houillon.
    It is a"recognized principle of jurisprudence in this State, that & perfect grant importing a clear dives* titure of title from the former sovereign, and transfer of that title to the grantee, requires no act of the new sovereign to give it completeness.
    All lands in the province of Louisiana, at the time of cession to the United States, which had not passed by a perfect title from the government then having control of the country, vested in tho government of the United States, by the act of session, as public domain.
    APPEAL from the Sixth District Court of New Orleans, Beaumont, J. ■

      Whitaker, Fellows c6 Mills, and Buchanan & Gilmore, for plaintiffs and appellants.
    Defendant, in propria persona.

   Taliaeekho, J.

The heirs of John Nixon, averring themselves to be the legal owners of a large tract of land lying between the Lakes Pontchartrain and Maurepas, hounded on the north by the Manchac Pass, and south by a bayou called Bayou Sueur, complain that the defendant has disturbed their possession of it, by entering upon the land and committing, and causing by employees to be committed waste, by cutting on, and removing therefrom valuable timber and wood, to their injury aad damage,which they estimate at one thousand dollars.

They took out an injunction to restrain the defendant from further alleged depredation, and pray that they have judgment against him, decreeing them to be the true and lawful owners of the body of land embraced by the boundaries specified, that the injunction be perpetuated, and that they have judgment beside for one thousand dollars, as damages for the trespass complained of.

The defendant answered by a general denial, and, in a supplemental answer, avers ownership, by purchase from the State of Louisiana of about five hundred acres of land, specifying the seelions, townships, and the ranges in which his lands lie. He denies that plaintiff's have any legal right to the said land, or any part of it, and prays judgment in his favor, and for all costs, damages, etc., caused by the plaintiffs’ proceedings against him.

The plaintiffs present, as the origin of their title, a grant of ten thous- and one hundred and twenty arpents of land by the French Government to Miss Mary Rillieux, on the 16th of July, 1764, deseribed as “lyingon Lake Pontchartrain, and extending from the river of Sueur to Manchac or river of Iberville, (not including the lot of ground of the new village, of the Choctaw Indians) running north and south, and bounded on the south, by the said creek of Sueur, on the north by Manchac, and on the west by a cypress swamp. ”

They show a chain of title from the original grantee. It appears that the grant was surveyed in the month of September, of the year following 1765, by Don Carlos Trudeau, Surveyor General of the Province of Louisiana, whose original jnlat and proces-verbal of the survey is in evidence in this case. By this plat the land granted has, for its boundaries, Lake Ponchartrain on the east, the Manchac Pass on the north, and Lake Maurepas on the west. Its southern boundary is formed partly by the creek or bayou Sueur, and partly by a line running from a point on that bayou, due north, to Lake Maurepas.

The plaintiffs contend that they are entitled to all the land within these specified boundaries, without regard to the quantity they embrace, and pray for a judgment accordingly. The controversy has grown out of the uncertainty which seems to exist as to the locality or identity of the bayou Sueur, named in the grant and marked on the plat of Trudeau. A bayou ■which it seems is now generally called bayou “ Deseret,” the plaintiffs insist is the “ Ravina de Sueur ” of the ancient surveyor. Between this bayou Deseret and the Manchac Pass, there are several bayous making into Lake Pontchartrain. A number of witnesses were examined as to the locality of the bayou Sueur. But their testimony is contradictory and quite unsatisfactory. The plaintiffs’ witnesses speak of the bayou Deseret, as having been formerly known as bayou Sueur, while those of' the defendant refer to a bayou several miles north of Deseret, as having been known as bayou Sueur. The Judge a quo, deeming the plaintiffs to have failed in establishing the identity of the bayou forming the southern boundary of the grant, dissolved 'the injunction, and dismissed the suit at plaintiffs’ costs.

•The plaintiffs have appealed.

On the trial in the court below, a surveyor general and two deputy surveyors as witnesses, were examined at great length. Numerous maps, plats and diagrams were introduced. ■ The deputy surveyor had. been employed in making surveys upon the lands claimed to be within the boundaries of the grant, as well as upon the contiguous territory. They appear to have been familiar with the topography of the district of country, lying between the lakes and south of the Manchac Pass. One of them had surveyed the township within which the grant lies, and made a location of the grant itself. Their testimony, as to the locality of the bayou Sueur, conflicts as much as that of the other witnesses. Important facts on other points in the controversy are stated by them; but they fail to remove the obscurity with which the real bayou Suer is enveloped. stat nominis umbra.

The view we are inclined to take of this case will relieve us of the labor of scanning the mass of conflicting evidence adduced, and enable us to reach a solution of the questions involved by an easier process.

The plaintiffs show the original grant to Mary Billieux, the survey of the grant by Trndeau, and the action of the United States Commissioners upon it after the cession of Louisiana to the United States. But it was not until May, 1858, that there was any confirmation of this claim by the government of the United States, and then it was confirmed for a much smaller quantity of land than that surveyed by Trudeau. The plaintiffs’ counsel contend, that there being a grant per aversionem, it is perfect, the extent of the concession being patent by clearly defined boundaries. That having this character of distinctness, no confirmation by the United States was necessary.

We concede that this Court has frequently recognized the doctrine, that a peifect grant importing a clear divestiture of title from the former sovereign, and transfer of that title to the grantee, requires no act of the new sovereign to give it completeness. But we think it equally clear, that where there are conditions imposed upon the grantee, and they have not been complied with, or from any other cause, title to the lands granted has not passed from the former government prior to the cession of the Province of Louisiana to the United States, the case is quite different. Eor, in the last instance, the title to the lands granted passed to the United States as-public domain, and it rests with Congress exclusively to dispose of claims standing on this basis.

Erom the final action of Congress upon the claim of the plaintiffs, and that action so long delayed, we infer that the title to the land granted to Mary Billieux in 1764, was inchoate, and incomplete at the time of the transfer of the province of Louisiana to this government. Before the act of Congress, of May 24th, 1858, the courts of this State could not have been invoked to decree a full and perfect title in plaintiffs to this large concession to Mary Billieux, and a fortiori they cannot now be required to do it, especially since by that act the grant has been so largely shorn of its proportions.

Assuming that we have to deal with the plaintiffs’ rights to the land in question, as we find them established by the final action of Congress in May, 1858, we shall proceed to inquire into the relative location of the lands of the contesting parties; for, upon the question of the confliction, if any, of the boundaries of these lands; lies the gist of their controversy.

We find, then, that an order was issued on the 22d of November, 1858, by Wm. J. McCulloch, Surveyor General of the State of Louisiana, directed to Theodore Gillespie, a Deputy United States Surveyor, and which is in these words: “You will survey the claim of M. E. and R. Malines, O. B., 383, in conformity with its confirmation, and with the French grant upon which it is founded, and also the part of this claim which has been confirmed to the legal representatitives of Maria Malines by the act of 24th of May, 1858. Copy enclosed. John Claiborne, Esq., of New Orleans, may afford you information with regard to the latter, as it is understood he preferred the claim to Congress.”

Under this order, the deputy surveyor located the Mary Rillieux or Mary Malines grant, commencing his work at the junction of the Manchac Pass, with Lake Pontchartrain, the only certain point in Trudeau’s survey that can now bo found, and extending the front on Lake Ponchartrain southwardly to a bayou, which he marks “ Bayou Sueur ” on his plat of survey. Then he forms the southern boundary in part by the bayou, and in part by a line run from a point on that bayou to Lake Maurepas, conforming in shape with the survey of Trudeau, and embracing the same quantity of land, viz: 10,120 arpents. This survey covers large portions of township No. 9, range No. 8, and of township No. 9, range No. 9. From this entire survey, the part of it confirmed by act of Congress of May 24th, 1858, is laid off in tho northeast part of the survey, and is bounded by the Manchac Pass, Lake Ponchartrain and the range line between ranges 8 and 9, extending from the lake to the pass. No part of the lands claimed by the defendant lies within this survey. His land lies in section No. 34, of township No. 9, range 8, east, and in section No. 4, of township No. 10, of the same range. The southern boundary of the “Melines” survey at no point, approaches the nearest part of the defendant’s land by a distance less than half a mile. That part of tho survey, sot apart to the legal representatives of Mary Malines, under whom plaintiffs hold, lies at a still greater distance. Gillespie’s survey received the approval of the surveyor general who issued the order.

For the reasons stated by the District Judge for the judgment of the court below, and the additional grounds expressed in this opinion, we think the plaintiffs have failed to make out their case.

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

Rehearing refused.


source: Caselaw Access Project

author: TaiiIareeko, J.

license: Public Domain

text:
    No. 1785.
    State of Louisiana, ex rel., J. J. O’Hara v. Edmond Heath, Mayor.
    Under the nets of Congress of March 2d and March 23,1837, commonly called reconstruction acts. The military commanders of the several military districts were clothed with full power to modify and control the action of State and municipal officers in their respective district.
    The order of General Sheridan while in command in Louisiana, under the reconstruction laws, annulling the contract between J. J. O'Hara and the city of New Orleans, was a legitimate exercise of his power under the law.
    A writ of mandamus will not lie to compel the Mayor of the city of New Orleans, to sign a contract that has been annulled and revoked by competent authority.
    APPEAL from the Third District Court of New Orleans, Emerson, J.

      A. Walker, for plaintiff and appellee.

      E. Filleul. for defendant.
   TaiiIareeko, J.

The relator complains that the defendant in his official capacity refuses to sign a certain contract which he entered into with the city for cleaning all and repairing the unpaved streets of New Orleans for the period of three years, that after due advertisements and specifications, the work was let by public auction, and adjudicated, to him by the Controller at the sum of §14,500 as the lowest bidder, that the adjudication was duly approved by the Common Council; that the notarial act detailing the contract in relation to the work was duly signed by him and his sureties, in conformity with an ordinance of the City Council; that the Mayor aforesaid refuses to sign the written instrument expressing the contract, as by law and the city ordinances he is required to do, and that this absolute refusal of the Mayor to perform his duty in this respect has caused great detriment and injury to the relator. He thereupon applied for and obtained a mandamus from the Judge of the Third District Court of New Orleans, requiring the defendant to show cause why he neglects or refuses to perform the required act as prayed for by the petitioner. The City Attorney on the part of the city intervened in this proceeding, and averred that the resolution No. 633, referred to in relator’s petition was void for want of precision in this, that it does not express the number of years the Mayor was authorized to sign a contract with the relator in relation to the work to be done. That by the terms of the resolution on the subject, the Mayor was authorized to sign the notarial act; but that it is not imperative upon him to do so. That the resolution mentioned, and the contract referred to by the relator were revoked by Special Order No. 122, of General Sheridan, on the 21ct of August, 1867. He then being Military Commander of the Fifth Military District. And lastly, that eight months having elapsed since the passage of the resolution No. 633, and six months since the military order No. 122, without any action in the matter being taken by the relator, by means whereof the said contract cannot now be executed. The intervenor joined the defendant in praying for a dismissal of the application for a mandamus be dismissed at the relator’s costs.

The answer of the defendant is substantially the same as that of the intervenor.

The defendant plead that by the reconstruction laws of Congress all interference with the exercise of the military authority in this District under color of State authority is forbidden. After hearing the parties, the Judge a quo ordered a peremptory mandamus to issue, requiring the defendant to affix his official signature to the written instrument evidencing the contract exhibited in evidence by the relator. The defendant and intervenor have appealed. The Judge a quo granted the peremptory mandamus on the ground that “the Mayor is bound by usage and by a fair interpretation of the city ordinances and the charter which is the organic law of the city to sign the act.”

It is argued on the part of the relator that the military commander was without authority to annul a contract, and that the plea of the Mayor, that the contract was abrogated by an order of General Sheridan is without weight. We shall proceed to examine this qucsuou.

By the act of rebellion on the part of most of the Southern States, and' a combined effort by force of arms to disrupt the National Government, the constitutional and legal State governments existing in these States, prior to the war were broken up. They had been in a state of antagonism to the United States, and by their own act, had destroyed the relations that had existed between them and the National Government. In the case of Louisiana, the Constitution of 18G4 was framed with the view to restore these relations, which she had lost by participation in the rebellion. But neither the State government of this State under that constitution, nor the State governments existing in the other States recently in rebellion, at the time of the enactment of the reconstruction laws were recognized as having a legal and legitimate existence. The State governments then in operation were for purposes of public policy and convenience declared provisional only, and subject at any time to be modified, controlled or superseded by the paramount authority of the United States. The preamble to the first reconstruction act, declares that no legal State governments exist in the several States that were engaged in the rebellion. The first section of that act, directs that the rebel States shall be divided into military districts, and made subject to the military authority of the United Siates. The third section of the same act, announces the duties and powers of the military commanders to be appointed for the several districts. The powers granted by this act, and those of the supplemental act, of the 23d of March, 1867, are quite ample, and seem to clothe the commanders of districts, with a paramount supervisory power over the civil jurisdiction of these States, and a controlling influence over all the administrative functions and powers of State officials.

By the second section of the supplemental act referred to, the military commanders are vested with power, in their discretion “to suspend, or remove from office or from the performance of 'official duties and the exercises of official powers, any officer holding or exercising or professing to hold or exercise any civil or military office or duty in such district under any power, election, appointment, or authority derived from or granted by or claimed under any so-called State or the government thereof, or any municipal or other division, etc. ”

The civil jurisdiction for the reasons noticed, exercised by State and municipal authority, was not suspended, but made subsidiary to military rule. In the ordinary routine of municipal business, the action of the military commander was invoked only in occasional cases; but whenever in his judgment it became proper, it necessarily superseded that of the municipal organization. The action of the City Council, in this view of the state of things, was not paramount and exclusive, but limited and subordinate.

The jurisdiction of the State tribunals in criminal cases was expressly made permissive only. The civil jurisdiction, it is clear, was-intended to be controlled by military power, leaving it within the discretion of the District Commanders when and under what circumstances to exercise that control. Coming then to the matter of the contract which the relator declares upon, we find, that in the judgment of the commander of the District, it presented a case calling for the exercise of his authority, as he declares in his order that “the said contracts being, it is believed, fraudulent in design, and injurious to the best interests of the city, the same are hereby declared to be null and void.”

The entering into the contract with the relator by the city officials, was the exercise of official power. The military commander of the District, we have seen, was clothed with authority to suspend these officials from exercising official powers; and if so, he clearly had the right to eontiol their official action, to suspend, modify or supersede it.

But it is contended that the order of' General Sheridan, if it ever had any force, was annulled by general order No. 40, of his successor. We do not so construe the order No. 40, of General Hancock.- It was not for him to declare inoperative the laws of Congress, nor has he done so. The utmost scope of General Hancock’s order, contemplates as full and general exercise of the civil jurisdiction as may be effectual to maintain the public security and to protect the rights of person and property. It does not directly or impliedly repeal the order of General Sheridan annulling the contract in question.

Some stress seems to be put upon the alleged duty of the defendant to sign the written contract, whether that contract is or is not annulled by the military order. It is contended that he is bound to affix his signature to the act, in order that the party in interest, may bring a direct action against the city to enforce the contract; as in such an action the question as to the effect of General Sheridan’s order, can only be properly inquired into. It would seem a vain and useless thing to require the signature of the defendant in his official capacity to a contract rendered null by competent authority. As this alleged nullity is the main ground of the defence, we see no irregularity in examining it in the present action.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that judgment be rendered in favor of the defendant and the intervenor, the relator paying costs in both courts.

Behearing refused.


author: Idshey, J.

text:
    No. 1826.
    The State of Louisiana, ex rel., Etienne Villavaso, v. The Judge of the Second Judicial District Court.
    The functions of a District Court, in relation to a mandate issued from the Supreme Court to have a judgment executed, are merely ministerial.
    Where the Supreme Court has rendered a final judgment on an appeal, and the mandate is sent back to the tower court for execution, no judgment can be pronounced thereon by the District court, from which an appeal will lie.
    Where an injunction, sued out against the execution of an order of seizure and sale, has been dis* solved by the District Court, and the judgment of the District Court dissolving the injunction has been affirmed on appeal, a second injunction, against the mandate of the Supreme Court, will not lie for any cause which might have been pleaded in the first injunction.
    APPLICATION for a Mandamus.

      Roselius & Philips, for petitioner.
   Idshey, J.

On the 18th October, 1861, the relator obtained from, the Second Judicial District Court in and for the parish of St. Bernard, an order of seizure and sale against the property of Augustus W. Walker, to satisfy certain notes secured by mortgage thereon.

Proceedings, under the said order of seizure and sale, were enjoined by Walker on various grounds, which it is not necessary now to set forth.

The injunction, so obtained, was dissolved, and by necessary inferable consequence, the order of seizure and sale was restored to its primitive force and effect.

Upon appeal to this court, the judgment in the injunction suit appealed from was affirmed, and from this last decree an appeal was taken to the Supreme Court of the United States, and was dismissed for want of jurisdiction.

Upon the return of the mandate of this court to the court below, the sheriff of the parish of St. Bernard was proceeding to execute the original order of seizure and sale, when, on the 12th May, 1868, proceedings under said writ, were again arrested by injunction, on the following grounds:

1. That the notes upon which executory process issued are prescribed, and the prescription of five and ten years is set up.

2. That all the officers who granted, and were proceeding originally with the executory process had ceased to be competent officers, as the State of Louisiana was then in a state of rebellion against the government of the United States, and that all judicial proceedings had during the existence and under the authority of the still-born government, are coram non judice.

3. That thevernaculur language of the plaintiff in injunction is French, and that proceedings and process in the suit, via executiva, were only written, and concluded in the English language.

4. That the sheriff is proceeding under the original writ, never having returned it into court, and withdrawn therefrom a copy in accordance with the act of the Legislature of 1855.

5. That the obligations are null and void, because prescribed, and for want of United States revenue stamps.

All these objections, if available, were pleadable in the first injunction suit, and being in contemplation of law, disposed of in the first injunction, cannot be set up as grounds for a second injunction, whereby, injunction for those alleged causes, was improvidently and illegally granted by the Judge of the lower court.

This Court held in Lovelace v. Taylor, 6 Rob., page 93, this doctrine: “ The functions of a District Court in relation to a mandate issued from the Supreme Court, to have judgment executed are merely ministerial. It cannot render any new judgment, which can authorize an appeal or render one necessary. Its duty is to obey the mandate, and to order the decision of the Supreme Court to be recorded on its minutes, that it may be legally executed. C. P. 609.

As soon as this is done, the party in whose favor the judgment has been rendered, has an absolute, immediate right to an execution, which cannot be suspended by any subsequent appeal. C. P. 623,- 629.

If the mandate of the Supreme Court be not obeyed, the party obtaining the judgment, must enforce it by a mandamus, and he, against whom it has been rendered, must seek relief by supersedeas. Cox’s Executors v. Thomas, 11 La. 3G0.

All impediments existing when the first injunction was granted, were removed by the dissolution of that injunction, and the order and writ of seizure and sale were thereby restored to their pristine efficiency, as a necessary logical consequence of the dissolution.

The decree of this Court, which affirmed the judgment dissolving the injunction, cannot be arrested for any of the grounds existing, and pleadable when it was granted.

The function of the court below, in the present case was, as has been held, merely ministerial; its duty was to obey the mandate of this Court, by executing its decree, and causing the original order and writ of seizure and sale to be proceeded with, and executed according to its contents, and according to law.

There is no law requiring the return into courts of writs of seizure and sale, and taking out copies, as in cases of writs of fieri facias. Taylor v. Graham, 18 A. 657.

The granting of a mandamus is within the discretion of the Court, and will be granted when a proper case is made out. We consider this such a case, deeming the grounds set up for the new injunction merged for all legal purposes in the first injunction, and disposed of by the decree dissolving it, and evidently intended to thwart the ends of justice, and to prevent the execution of the mandate of this Court for no legal cause.

The injunction granted on those grounds was a nulliiy.

It is therefore ordered, adjudged and decreed that a peremptory mandamus be issued to the Judge of the Second Judicial District Court of the State of Louisiana, having jurisdiction in the parish of St. Bernard, directing him, regardless of the injunction last granted by him, which is null and void, to cause the mandate of this Court to be executed in tho manner prayed for by the relator in the present proceeding.


author: Labauve, J.

text:
    No. 1691.
    T. T. Watts, admr. of Henry Arnold, v. C. T. Bradley, defendant in injunction.
    Where a promissory note is prescribed on its face, and nothing is shown in the record either suspend* ing or interrupting prescription, the plea will be maintained.
    The Judge cannot take notice of the fact that the note is prescribed in granting an order of seizure andsale; the plea must be made by the defendant. 19 An. 266.
    APPEAL from, the District Court, Parish of Livingston, Ellis, J.

      Addison & J. G. W. Ellis, for petitioner.

      J. S. Whitaker and G. T. Bradley, for appellant.
   Labauve, J.

On the 27th of August, 1866, C. T. Bradley, plaintiff in the original suit, and defendant in the injunction, obtained an order of seizure and sale against said plaintiff in the injunction, upon three* mortgage notes, all dated January 13th, 1859, payable respectively at six, twelve and eighteen months after their date. The first became due on the 16th July, 1859. the second on the 16th January, 1860, and the third,' on the 16th July, 1860.

The plaintiff in the injunction, obtained an order arresting the said order of seizure and sale, upon the ground that all of said notes were prescribed; the court below sustained the plea of prescription and perpetuated the injunction.

The plaintiff in the original suit, and defendant in the injunction, took this appeal.

It is evident that the notes sued upon are prescribed on their face, and we have seen nothing in the record suspending or interrupting the prescription. The Judge below has given along and able opinion maintaining the plea of prescription, and for the reasons given by him, the judgment appealed from must be affirmed.

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


author: Howe, J.

text:
    No. 1860.
    State of Louisiana, ex rel., George Ingram v. The Judge of the Sixth Judicial District Court.
    Where a party claiming the office of sheriff brings suit, by mmtbtmitst, against another holding the office, and on the trial the order is made'peremptory and final by the District Court ordering him to give up the office to the claimant, a suspensive appeal will lie from the judgment, if the amount involved is sufficient to give the Supreme Court jurisdiction.
    The right to a suspensive appeal is the rule, and it stays proceedings, except in cases specially excepted C. P. 564 565. 575 and 5S0.
    The law requires the same fovmalites to be observed in the execution of a bond for a devolutive appeal that it does for a suspensive appeal, though in a less amount.
    APPEAL from the Sixth Judicial District Court, Ellis, J.

      A. & M. Voorldes, for plaintiff.
   Howe, J.

The relator avers that on the 21st September, 1868, the, Judge of the Sixth Judicial District Court, Parish of St. Tammany, rendered judgment against him in proceedings instituted by the State on the relation of Timothy Doherty, ordering a peremptory mandamus to issue directing and commanding him to deliver forthwith to said, Timothy Doherty the office, books, papers, etc., of the sheriff of St, Tammany; that within the prosier time he applied to the Judge for a suspensive appeal, which was refused, but a devoluiive appeal was granted.

He therefore applies to this Court for a mandamus to compel the Judge to grant a suspensive appeal.

The answer of the Judge recites the proceedings in the case of the State, ex rel, Doherty v. Ingram, and the reasons for which he refused a suspensive appeal.

The merits of the controversy, in regard to the office of sheriff, are not involved in the matter now before us. Our enquiry is, not whether the judgment is erroneous, but whether the relator, Ingram, is entitled tó a suspensive appeal. In the language of Mr. Justice Slidell, in ex parte Emanuel, 4 An. 424, “ until the judgment is before us we cannot pronounce it right or wrong.”

The right of an appeal in this case is conceded by the respondent, yet he claims that it ought not to be suspensive. He cites the case of ex parte Emanuel, alluded to above, as authority, and presents also an able argument in favor of his position, drawn from considerations of public policy. He also enquires to whom an appeal bond should be payable, and how it could be collected.

The writ of mandamus belongs to the class of orders described in chapter 10, of the 2d part of the Code of Practice. The right of appeal from such orders, when final, has been repeatedly z-eeognized by the Supreme Court, whenever the amount involved has been sufficient to give the Court jurisdiction. See 6 M. 570; 8 N. S. 313; lLa. 421; 2 E. 496; 8 R. 5; 6 An. 38.

And, although in ex parte Emanuel, the Court refused a mandamus to compel the granting of a suspensive appeal from an order discharging, by habeas corpus, an insolvent debtor, yet the Court was equally divided on the point, and the decision of the court below, refusing a suspensive appeal, was affirmed only in virtue of the constitutional provision then in force. Constitution of 1845, Art. 68. We cannot regard this oase as binding in the matter now before us, inasmuoh as, firstly, the Court was equally divided; and, secondly, the case being one involving a question of personal liberty might well have presented considerations which do not urge themselves in the suit at bar.

The objection raised by the respondent, as to the appeal bond, and the impossibility of determining to whom it should be payable, or by whom it should be collected, applies with equal force to a devolutive appeal, which requires a bond also payable to a proper appellee, though in a smaller amount. Yet the respondent admits, and we think it well settled by decision, that a devolutive appeal will lie, and we are of opinion that a bond for a suspensive appeal could be readily framed, payable to the appellee, Doherty, in such amount as the Court below should determine.

We find therefore, that the right to some sort of appeal, in a case like the present, exists, and we cannot discover any provision of law which prevents such appeal from being taken in the suspensive form. A careful examination of Art. 564, 565, 575 and 580 of the Code of Practice, shows that the right to a suspensive appeal is the rule, and that it stays proceedings, except in cases specially excepted.

It is true, as urged by respondent, that inconveniences may result from such stay of proceedings. The “law’s delay ” is generally inconvenient for a plaintiif. But we think the inconveniences of the opposite course would be still greater.

It is therfore ordered, adjudged and decreed that a peremptory mandamus issue herein as prayed for, and according to law, directing the Judge of the Sixth Judicial District Court of Louisiana to grant a suspensive appeal to this Court, in the case of the State ex rel. Timothy Doherty v. George Ingram, with costs.


author: Wyly, J.

text:
    No. 1429.
    Mary G. Shaw, wife, etc. v. Artemus Hill et al.
    A married woman may invest in her own name, and for her individual benefit, her paraphernal funds under her separate administration and control.
    The declaration in th e act of sale, that the property was paid for out of the separate funds of the wife will not relieve her from the burden of proving that the purchase was made with her paraphernal funds under her separate administration.
    APPEAL from the Fourth District Court of New Orleans, Tlitard, J.

      Breaux <& Fenner, A. Eennen and Paris Childress, for plaintiff and appellee.

      E. A. Morse, for defendant.
   Wyly, J.

This is an injunction taken out by plaintiff, to restrain her husband’s judgment creditor, Artemus Hill, from selling two lots and improvements in Algiers, which she alleges is her paraphernal property, the same having been bought by her, in the month of May, 1855. The deed was passed before H. Paul Caire, Notary, and was not recorded till after the seizure, to wit: 2nd February, 1866.

Plaintiff was a married woman at the time the purchase was made in her name, and w'as duly authorized thereto, by her husband Charles W. Wilson. The act of sale recites that she paid $200 00 cash, “out of funds belonging to her personally,” and executed her note to the vendor for $150 00, the balance of the price.

In January, 1866, this property was seized by the sheriff to satisfy the judgment of the defendant, Hill v. Her Husband, Wilson, rendéreu on the 10th of November, 1865.

On the trial there was judgment perpetuating the injunction, and decreeing the defendant Hill, to pay $500 00 damages and costs. Defendant has appealed.

On a careful examination of the record, we find that only two witnesses were introduced by plaintiff to prove that the funds with which she bought the property in question was her separate funds; and their evidence is not conclusive. They do not testify that the funds paid by plaintiff, were actually her separate funds, administered by her.

Watkins testifies that he has known plaintiff since 1853, that “her brother gave her money for the purpose of buying a house for herself. I saw him give her the money; it was in gold, but I don’t recollect the exact amount. He said he gave it to her, for the purpose of buying her a home. It was somewhere about $400 00 or $500 00. This money was given her in 1853.” Cross-examined, he said, “I did not see the money that I have spoken of counted, and I do not know the exact amount, but-I saw the money handed to Mrs. Wilson.” (See Record, pages 67, 68, 69, 70.)

Abel Rollins, sworn for plaintiff, says: “I know Mrs. Shaw, plaintiff, and have known her twenty years, I am not exactly related, but I have been acknowledged and considered by our friends,-relatives, etc., as her brother. I have acknowledged her a-> my sister. I knew of the -purchase of property by Mrs. Shaw. I gave'her at one time $500 00, with the understanding that she was to purchase a lot in Algiers, as she said.This -was before she purchased the propert She afterward purchased it. She has lived there all the time since, and I have frequently been in and out of it. She built a house on it, etc.” This witness further states, on cross-examination, “I am a blood relative of Mrs. Shaw, her mother and mine are some how mixed up, and we are not exactly brother and sister, but are related. I can state nothing more definite in regard to my relationship, etc.” (See Record, pages 89 and 90.)

According to the testimony of these witnesses, Mrs. Shaw received about $¿00 00 from Rollins in 1853, for the purpose of buying her a lot in Algiers. But she did not purchase the property involved in this litigation till the Ith of May, 1855, at least 16 months thereafter. There is no positive proof that she used the gold, the identical funds, presented to her by Rollins, in the purchase of the property.

• There is an' allegation in plaintiff’s petition, that she purchased the property with-her separate funds, but there is no allegation that she had the administration of her paraphernal funds with which she bought the property. She does not claim t.o have had the separate administration of the $500 00 from the time Rollins gave it to her in 1853, till the time of the purchase in May, 1855; and there is no proof on this material point.

She was a married woman not separate in property, and the community of acquets and gains existed between her and her husband, of which he was the head and master. All property acquired, during marriage, whether in the name of the one or other of the spouses, is considered community, and the debts contracted during marriage belong to the community or are chargeable to it. C. C., 2371, 2372. This is the general rule. “This court has often recognized an exception to this general rule in relation to the purchase of property in the name of the wife, when it is paid for, with her paraphernal funds under her separate administration, or when it is received as a elation en payement made to her by a debtor for a separate and paraphernal claim-of hers, the property does not belong to the community, but she becomes the separate and exclusive owner of it.” 12 R'. 579, 580, 581 and 582, and the authorities there cited.

We fully recognize the right of the wife to invest her paraphernal funds, while in the administration of her paraphernal property, as a legitimate investment of money under her separate control. But in order to acquire separate or paraphernal property by purchase during the marriage, the wife must show that she has purchased the same in her own name, with paraphernal funds under her separate administration.

We do not think the plaintiff in this case has established this material fact. Indeed, under the allegations of her petition, she could not introduce proof if objected to, that she was administering her paraphernal funds, separately from her husband. The mere declaration in the act of Bale does not relieve the wife from the burden of proving that the purchase was made with her separate funds under her own administration. 18 A., 126.

We are of opinion that the note executed by the wife to the vendor for $150 00, the balance of the price, was a community debt. O. 0., 2372.'

And from the law and evidence, we are bound to conclude that the property involved in this suit, belongs to the community, and is not the separate or paraphernal property of plaintiff, and that the injunction-must be dissolved.

It is therefore ordered, adjudged, and decreed, that the judgment of the court below be avoided and annulled, and it is now ordered that there be judgment in favor of defendant dissolving the injunction taken out by plaintiff in this case, at the costs of plaintiff.


text:
    No. 1082.
    Abraham C. Myers, Testamentary Executor, etc. v. John Mitchell.
    In an ordinary suit for debt, where the amount in dispute does not exceed five hundred dollars, tho appeal will be dismissed Jor want of jurisdiction. Oonstitution of J.863, Article 74.
    A State Constitution may be retroactive, and may divest vested rights.
    A State is without power to pass any law impairing the obligations of a contract.
    A case appealed to the Supreme Court under the Constitution of 1864, and transferred by act of the Legislature to the Supieme Court created by the Constitution of 1868, stands before the courbin the same position with a case brought up on appeal since the adoption of the Constitution.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      C. M. Conrad & Sons, for plaintiff and appellee.

      T. II. Howard, for appellant.
   Howe, J.

On the 12th of June, 1866, judgment was rendered in this case in favor of the plaintiff by the court a qua, for the sum of three hundred dollars, with eight per cent, interest from the 21st February, 1862, until paid, and costs.

On the 13th of June, 1866, the defendant appealed, and on the 7th of November, 1866, the transcript of appeal was filed in this court.

The plaintiff now moves to dismiss the appeal, on the ground that the amount of the judgment is not sufficient to confer jurisdiction on this court.

By the Oonstitution of 1868, article 71, the jurisdiction of the Supreme Court in civil matters extends to “all cases where the matter in dispute shall exceed five hundred dollars, and to all cases in which the constitutionality or legality of any tax, toll or impost of any kind or nature’ whatsoever, or any fine, forfeiture, or penalty imposed by a municijial corporation, shall be in contestation, whatever may . be the amount thereof. ”

It is admitted that the case at bar, being an ordinary judgment oii. promissory notes, is not one of those included in this enumeration, bill it is contended on behalf of the appellant that inasmuch as1 he had the ’ right to appeal on the 13th of June, 1866, and took his appeal, his rights as an appellant became “vested rights,” which the Constitution of 1868, could not lawfully, take away.

In our opinion this view is erroneous. Even if a vested right exist, as claimed, (which we are by no means ready to admit,) it may have been lawfully taken away by a new constitution, provided the obligations of a contract were not impaired.

A prohibition which would control the people of the State in this regard, if in existence, would be found in the Constitution of the United State?, but that instrument will be searched in vain for any such limitation on the popular will.

A State Constitution may be retrospective in its operation, and may divest vested rights, yet if it do not impair the obligations of a contract or partake of the character of an ex post facto law, it will not contravene the Constitution of the United States. Satterlee v. Matthewson, 2 Peters, 380. Charles River Bridge v. Warren Bridge, 11 Peters, 420.

It will be readily perceived, that the prohibitions contained in the Constitution, article 110, respecting vested rights, are addressed only to the government organized under the Constitution, and cannot be deemed to control the’ people in framing and adopting the constitution itself.

It has been urged again, that the right to prosecute the appeal in this and similar cases has been preserved by articles 149 and 151, of the new Constitution; the former of which provides that all rights, actions, prosecutions, claims, contracts, and all laws in force at the time' of the adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not been adopted,” etc., etc.; and the latter of which directs that “the General Assembly shall provide for the removal of causes now pending in the courts of this State to courts created by and under this Constitution.” We cannot assent to this doctrine, but on the contrary, we think it i? clear, that the right of appeal in this case is one that is “inconsistent” with the terms of the new Constitution, and is not continued by article 149, and that article 151 cannot save it. It is true that by the latter article the Legislature is required to provide for the 'removal of causes pending in the late Supreme Court to the present Supreme Court, and has done so; but neither this injunction, nor its fulfilment seem to affect the jurisdiction of this court. The causes have been transferred, the records are on file in this court, and it seems clear that the question whether the cause shall be tried or dismissed, must be determined by article 74.

It is indeed urged in the discussion of this subject, that if this court has no jurisdiction by reason of the insufficiency of the amount in dispute, it can make no order in the case, and therefore, cannot make an order dismissing the appeal. This theory is ingenious, but unsound. A court can always say that it has no jurisdiction of a case, and dismiss it with costs. In this respect we can perceive no difference between a case transferred to us by an act of the Legislature in compliance with the constitutional command, and a case brought to us by an appellant, since the organization of this court.

It is therefore ordered, that the appeal herein be dismissed, with cosis.


author: Ilslet, J. Ludeling, O. J.

text:
    No. 1133.
    Edward Thompson & Co. et al., v. Alfred Moulton.
    An agreement to submit a controversy to arbitration, does not carry with it the idea of submitting it to a judicial tribunal for settlement.
    The words “ arbitration and amicable lawsuit,” used in an obligation or agreement between parties, ai*e nob oonvcrtib’o terms. Tno former carries with it the idea of settlement by disinterested third parties, and the latter by a iriendly submission of the points in dispute to a judicial tribunal to be determined in accordance with tho forms of law.
    Suit oannot be brought to enforce a conditional obligation, until the condition has been fulfilled.
    Where suit has bi eu brought on a conditional obligation, and the evidence discloses the iactlhab the condition has not been complied with, a judgment of nonsuit should be rendered against tho plaintiff.
    APPEAL from tlie Fourth District Court of New Orleans, Thcard, J.

      Miles Taylor, for plaintiffs and appellants.

      J¡. W. Iluniinglon, for defendant.

      Reporter. — This case was decided in the month of June, 1868, by tho Supreme Court, organized under tlie Constitution of 1864, and a rehearing was granted by that tribunal just bei'oro the adjournment of the Court. It was then by act or the Legislature, transferred with all other cases then pending to tho Supreme Court under the Constitution of 1868. This Court, on a re-examination of the case on rehearing, affirmed the principles on which the case had been decided, but changed the decree to a judgment of nonsuit instead of a final judgment for the defendant.
   Ilslet, J.

The plaintiffs sue to recover from the defendant tho amount of a penal obligation inserted in an agreement entered into by the latter, professedly as the agent of the master and owners of the steamship R. R. Cuyler, for whom it appears he was not authorized to act, blit by which agreement he bound himself personally, in the manner stated therein.

The plaintiffs wore the consignees, respectively, of certain articles of merchandise, shipped to them on the Cuyler, at New York, for the port of New Orleans, and which freight was delivered to them in a damaged condition.

The defendant, who was the general agent of the steamship R. R. Cuyler, disputed the liability of the master and owners, and in order that he might have time to confer with them respecting an amicable or legal settlement of the claim, the plaintiff's, consignees of the damaged articles, agreed not to institute in the meantime legal proceedings against the ship. Tho agreement contained the'following stipulations:

1st. That the said Alfred Moulton shall be allowed sufficient time, say about thirty days, to correspond with the owners of said vessel, touching the adjustment of the claims of the said consignees, for the damage aforesaid.

2d. That if, after tho lapse of the aforesaid time, the said owners should refuse to pay said damage, the dispute shall be determined by an amicable lawsuit, or submitted to arbitration, one of the arbitrators to bo selected by the consignees, and the other by the owners of the vessel;, and in case the arbitrators should not agree, they shall nominate an umpire, whose decision in the premises shall he final. •

3d. That in case either party should appeal from, or contravene the award, he shall pay to the other party a penalty of ten thousand dollars.

4th, That the said Alfred Moulion shall be liable in the place of said captain and owners, in case they should fail to satisfy such judgment or perform such award as may he rendered or made in favor of said, consignees, and against said captain and owners, of and concerning the controversy aforesaid.

At the expiration of the thirty days, during which no legal proceedings were taken against the steamship, the plaintiffs, having received no communication whatever from the owners or their agent, on the 5th January, 1866, gave notice in writing to Alfred Moulton, agent of the owners of the steamship, that they had selected a person to act as arbitrator, who had accepted the appointment, and called on him in his capacity of agent, for the owners of the steamship, and also as a party to the agreement or contract in question, to select an arbitrator, and to proceed to the determination of the dispute, as to the damage done to the merchan' dise, according to the true intent of the parties to it. To this notice Moulton replied by letter, dated 8th January, 1866, and stated that having no authority from the owners of the steamship “R. R. Ouyler” to act in their names, in the matter of “ your ” claims against the aforesaid vessel, I must respectfully decline to comply with the request contained in your communication; I would also add that my understanding and reading of the second article of the agreement entered into between us, does not make it compulsory to arbitrate the matter in dispute, but loaves the question to be determined by an amicable lawsuit, or submitted to an arbitration. Against the plaintiffs’ demand, the defendant, on his plea of the general issue, had judgment in the lower court, from which the plaintiffs appeal. The first question to be disposed of is, is the defendant, Moulton, personally bound by the agreement or contract entered into by him with the plaintiff, on the 28th October, 1865?

By Art. 2979, O. 0., “ the attorney cannot go beyond the limits of his procuration; whatever he does in exceeding his power is null and void, with regard to the principal, unless ratified by the latter, and the attorney is alone bound by it in his individual capacity.

In Richie v. Rass, 15 A. 668, it was held that: “ Where a contract is entered into by one assuming to act as agent of another, without having-been authorized to make the contract, such pretended agent is by law responsible personally in the precise terms of the contract.”

By Art. 2981, O. C. “If a mandatary communicates his anthority to a person with whom he contracts in that capacity, he is not answerable to the latter for anything done beyond it, unless he has entered into a personal guarantee.”

The plaintiffs knew that the stipulations of the agreement made by the defendant for the persons for whom he undertook to act, needed their assent and ratification; and, therefore, the personal guarantee of the defendant, contained in the sixth clause, was entered into by the defendant. He promised, and ‘ ‘ s'esl porté fort, ” that the parties for whom he professed to act, would accomplish what was stipulated for them; and if they did not do so, he would himself carry out the agreement, and by so doing he became conditionally, but personally bound. C. C. 1883. C. N. 1119, 1120, Marcadé, vol. 4, p, 362, g 430, et seq.

The third clause of the agreement imposes a penalty of ten thousand dollars on either party, who shall appeal from or contravene the award.

The second clause provides, that the dispute in relation to damages, etc., shall be determined “by an amicable lawsuit, or submitted to arbitration. ”

Each contracting party puts his own interpretation, as to the mode in which the dispute was to be settled — the plaintiff contending that it was to be solely by arbitration, whilst the defendant maintains that it was to be accomplished either by arbitration or by an amicable lawsuit.

No rule of construction is more inflexible than this, that the intention of the parties is to be ascertained, and effect given to it, and all the clauses of the contract.

No construction, rendering important expressions useless, is admissible; and all clauses must be construed the one by the other, giving the sense to each resulting from the entire act. Ex anliceclenlibus et consequeniibus Jit optima interpreialio.

From the general tenor of the whole act, two alternative modes of proceeding to ascertain the damages sustained by the plaintiffs were contemplated; “the dispute,” says the act, “shall be determined by an amicable lawsuit or submitted to arbitration.”

The words arbitration and amicable lawsuit were not used as convertible terms, nor does the word amicable, prefixed to the words lawsuit, convey the idea of arbitration. The correctness of this interpretation is manifest by the wording of the sixth clause of the agreement, read in conuection with the second clause, by which the defendant was to be liable for the captain and owners of the R. R. Cuyler, in case they should fail to satisfy such judgment, or perform such award as may be rendered or made in favor of the said consignees of, and concerning the controversy.

By the .terms arbitration and amicable lawsuit, as understood in their common and usual signification, the former means a reference or submission of a matter in dispute to the decision of one or more persons as arbitrators, whilst the latter, an amicable lawsuit is one instituted in a court of justice seriously, but in a friendly spirit, in order that some matter in controversy may, by a judicial decree, be settled definitely, as cheaply, and with as little delay as possible.

A submission to judicial arbitrators, in accordance with Art. of the Code of Practice, et seq, was not intended, as such a reference could have only been directed by a judge during the pendency of a suit, and that would have rendered necessary a resort to two modes of proceeding when only one mode was provided for, — arbitration, or an amicable law!, suit.

Rad it been agreed that the dispute should be settled solely by an amicable lawsuit, would it not be a strained construction of that term to hold that mode of proceeding identical with a submission to arbitrators? and would it be less so, to interpret the two terms, placed in opposition with each other, to mean one and the same thing?

The conditional undertaking of the defendant was “to satisfy such judgment, or perform such award as might be rendered or made in favor of the consignees and against the captain and owners of the R. R. Cuy•lei- and' if arbitration is now impracticable, it is incumbent on him to satisfy such judgment as may be rendered in an amicable lawsuit, if those for whom he acted refuse to do so, otherwise, he is liable on his penal obligation, after being put legally in morn, which is an essential prerequisite to an action on a penal obligation.” 0.0.1906. 6 R. 450. 10 R. 425.

The very able argument of the plaintiff’s counsel has failed to satisfy us that there is any error in the judgment of the lower court.

It is therefore ordered, adjudged and decreed that the judgment of the lower court appealed from be and it is hereby affirmed, the costs of appeal to be paid by the plaintiff and appellant.

On Rehearing.

Ludeling, O. J.

In this case, having decided that the potestative condition, upon which the penal clause was to become exigible, had not happened, the Court should have rendered judgment as in case of nonsuit.

Where the demand is premature, or if the obligation be conditional, and its execution be demanded before the condition has been fulfilled, the suit must be dismissed, leaving to the party his right to bring his action in due time. C. P., Art. 158. 13 La. 404. 18 La. 537.

It is therefore ordered, adjudged and decreed that the judgment of this Court, rendered on the 4th day of May, 1868, be amended, and that the judgment of the District Court be avoided and reversed. It is further ordered, adjudged and decreed that there be judgment in favor of the defendant as in case of nonsuit, that the plaintiffs pay the costs of the lower court, and that the defendant and appellee pay the costs of the appeal.


author: Howell, J.

text:
    No. 1381.
    Anne B. Wilkins v. Gillis & Ferguson.
    The words, “ protest waived,"’ written on the back of a promissoi*y note, will not dispense the holder from making demand, and giving notice to the endorser.
    The burden of proof is on the holder oí a promissory note, under the general issue, to show the date of the waiver of protest.
    APPEAL from the Fourth District Court of New Orleans, Thíard, J.

      A. XT. & H. XF. Ogden, for plaintiff and appellee.

      Clarice & Bayne, for defendants.
   Howell, J.

This is a suit against the endorsers of a promissory note, in which the main question presented for our decision is, whether or not the words, “protest waived,” dispense with demand and notice, and convert a conditional into an absolute obligation on the part of the endorsers?

It is conceded that by the jurisprudence of this State, for more than twenty years, such a waiver does not dispense with notice to the endorser; but plaintiff’s counsel contend that our jurisprudence on this point is erroneous, not founded on reason, and not in accord with that in other States and countries, and they refer us to Parsons on Notes and Bills, to sustain their position.

^V'e have examined this author attentively, and find that he adopts the doctrine in the case of Coddington v. Davis, 3 Denio’s New York Reports, page 17, which is contrary to the doctrine here; but that case was before our predecessors, and after full consideration, they adhered to the rule laid down by the Supreme Court of the United States, in the case of the Union Bank v. Hyde, 6 Wheaton’s Rep. 574, which lias ever since prevailed here, and we do not see that Mr. Parsons has adduced any authority or reasoning beyond that which has already been considered by this tribunal, nor shown that the doctrine recognized in this State is not in accord with that of most other States and countries. See Parsons on Notes and Bills, vol. 1, p. 576, edition of 1867, and contra, 1 A. 312. 6 A. 470. 14 A. 305. Story on Notes, $ 272. Bailey on Bills, 245.

The argument of plaintiff’s counsel, though justly entitled to much credit, and the authorities cited by him, are not sufficient to overthrow a rtde of commercial law, sanctioned by repeated, uniform judicial action, and entering into mercantile transactions for more than twenty years.

The question as to the date of the waiver, whether at, before or after maturity, cannot avail plaintiff in this case, as under the general denial of the defendants, the burden of proof was on her to show the date, if important, and no evidence to this point was adduced.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment dismissing plaintiff’s demand, with costs in both courts.

Rehearing refused.


author: Wydy, J.

text:
    No. 1390.
    Amaron Ledoux v. A. A. Jones et al.—G. A. Sanford.
    Where the lessee abandons the premises leased, he becomes from that moment responsible for the whole amount of the rent due on the lease, and the lessor may relet the premises. In such a case, the amount of rent received will go to the credit of the first lessee.
    The lessor is not bound to enforce his privilege against the lessee before pursuing the sureties.
    The failure of the lessor, to relet tne premises after they have been abandoned by the lessee, will not discharge the sureties.
    APPEAL from the Third District Oourt of New Orleans, Fellowes, J.

      T. J. Cooley, for plaintiff and appellee.

      McGay & Luzenberg, for defendant.
   Wydy, J.

This is an action by plaintiff against his lessee, Jones, and his sureties, Whitney & Sanford, based upon a written contract of lease, to recover of defendants, in solido, the sum of $3,437 50, and interest, for the balance due on the lease of a dwelling-house, from 1st December, 1860, till 30th October, 1863. There was judgment against all the parties, and Sanford alone has appealed.

On 21st July, 1862, Jones vacated the premises, and returned the keys to plaintiff’s agent, who received them, but at the same time declared his intention of holding all parties to the lease liable for the rent due, and to become due.

There is no contest over the facts.

The question submitted to ns for determination is, whether the sureties of this contract of lease have been discharged irorn their liability by any act of plaintiff ?

On the day of the execution of this contract of lease, the parties in curred the full measure of their respective obligations to each other. The legal obligation was perfected as to all the parties. Sanford, the appellant, by signing the written contract of lease as security, undertook to guarantee to the lessor that the lessee would in every respect discharge the duties of a faithful tenant, and pay the rent.

This guaranty or obligation of Sanford was one of the conditions upon which the lessee, Jones, was permitted to lease the dwelling-house from plaintiff.

Now, what act has plaintiff done in contravention of his duty as lessor? He accepted the keys of his own house, which the lessee had sent him after he had abandoned it.

He never agreed that said lessee might abandon the property, but promptly notified him that he would hold the sureties liable for all the rent due, and to become due.

Now Sanford contends that he should be released from his contract:

First. Because the lessor never notified him of the abandonment of the premises on 21st July, 1862.

Second. Because the lessee was permitted to remove his personal effects from the house, without any effort being made by plaintiff to enforce his lien.

Third. Because the lessor failed to relet the house, on the application of Dr. Ready.

Fourth. Because United States soldiers occupied the premises after they were abandoned by the lessee.

We will notice the points presented by appellant in the order in which they are made by him.

1. We know of no law making it the duty of the lessor to notify the surety of the lessee, that the premises have been abandoned.

It is enough that the lessor did no act to produce the abandonment, or impair the terms, of the contract of lease, or alter the thing “ during the continuance of the lease.” O. O. 668.

2. ■ The law does not require the lessor to enforce his lien against the lessee before the surety can be held liable.

In the case of Parker v. Alexander et al., this Court said: “It is not necessary, to enable a lessor to preserve her recourse against the surety of her lessee, that she should enforce her lien against the lessee himself. It is enough that she has done no act to destroy or impair the privilege, or which could have prevented her, at any moment, from subrogating the surety to all her rights. A surety, is- not discharged by the mere omission of the creditor to enforce or preserve a privilege. ” 2 A. 188.

8. The failure to relet the house, did not discharge the surety, Sanford.

In the case of Holden v. Tanner, this Court remarked that: “It is well-settled, as part of the law of landlord and tenant, under our' jurisprudence, that the lessee, who, without lawful cause, abandons the premises before the expiration of thelease, is at once bound for the rent of the whole term, and that the lessor does not destroy his recourse against the lessee, by letting them to new tenants, being, however, equitably bound to make an allowance to the original lessee for what he may thus collect.” 6 A. 74, 75 and 76.

Our predecessors further remarked in that decision, that “the lessor, if he thought proper, might have left the premises wholly unoccvpied, and the lessee, and then his surety, would have been answerable for a larger sum. ”

4. In answer to the fourth position taken by appellant, we will state that this Court cannot perceive any reason why the surety of the lessee should be discharged, because after the lessee had voluntary abandoned the premises, without any lawful cause, the United States soldiers may have occupied the premises, especially as it is not shown that the lessor was instrumental in producing this occupancy.

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


author: Tadiaeerro, J.

text:
    No. 1349.
    John Bird v. The Heirs of Henry Doyal, deceased.
    Notice of protest served on the attorney in fact will not bind the endorser, unless the power oí attorney expressly authorizes him to accept notice.
    The functions of an attorney in fact come to an end by the death of the principal.
    The holder of a promissory note, is required to show the use of reasonable diligence to find out thp residence of the endorser, when it is unknown to him.
    Where an endorsor oí a promissory note has died, notice of the dishonor must be given to his legal representatives.
    APPEAL from the Sixth District Court, of New Orleans, Buplaniier, J.

      Race, Foster & E. T. Merrick, for plaintiff and appellant.

      Campbell, Spofford & Campbell, and Elmore & King, for appellees.
   Tadiaeerro, J.

The plaintiff seeks to render the defendants liable, as heirfe of the late Henry Doyal, under his alleged endorsement of a promissory note for $5,700, drawn by R. A. Stewart on the 28th of January, 1859; and made payable twelve months after date, with interest at eight per cent, per annum from date of the note. The defence is, that having no knowledge of the existence of such a note, they can neither admit nor deny the signature of their ancestor; but they disclaim all liability whatever to the plaintiff, and hold him to strict proof. . ;

The defendants had judgment in their favor, and the plaintiff appealed. We consider the endorsement of Doyal fully established. The main question in the case is as to the sufficiency of the notices of protest to bind the endorser or his heirs. The note was drawn payable, to the order of Henry Doyal, and by him endorsed before maturity;' and as it seems, for the accommodation of the drawer. It was made payable at the Citizens’ Bank in New Orleans, became the property of John Bird, of Missouri, whose agent Abram Bird, being in the parish of East Baton Rouge in this State, placed it in the Branch of the Louisiana State Bank, at Baton Rouge, for collection. Pike, the cashier of the Branch Bank, transmitted it to the parent bank in this city, and when due, it was duly protested for non-payment. The notary’s certificate sets out that the notices of protest “were served on the parties respectively in the manner following, viz: On R. A. Stewart, drawer, H. Doyal, A. Bird, and Wm. S. Pike, cashier, all enclosed to the address of the latter at Baton Rouge, Louisiana, and put in the post-office of this city, on the date of said protest in. time for the first mail thereafter. Duplicate notice for H. Doyal, endorser, left at the office of Mr. Ph. Rotehford, his attorney in fact, with Mr. S. Brown, as directed by C. A. P. Rondeau, cashier.”

It is in proof thit Henry Doyal died on the 29th of January, 1859, one year and two days before the date of the protest. That suits were instituted against his executors; in one case, on the 16th of February, 1859, and in another, on the 26th of September of the same year; that the large commercial house of Rotehford, Brown & Co., of Now Orleans, were the factors of Henry Doyal for many years, and up to the time of his death, receiving and disposing of the sugar crops of four large plantations, and furnishing them with all needful supplies; that the same house continued to do the business of these plantations after Doyal’s death, doing the business of the executors; that Philip Rotehford the principal member of the firm, was appointed by Doyal, his agent and attorney in fact, with general and special powers, by a notarial act executed in 1845, and that he continued to act under this procuration during Doyal’s lifetime, some fourteen years or more. This act authorizes Philip Rotehford to draw and endorse promissory notes in the name of Henry Doyal, and to make notes payable to the order of Philip Rotehford, either for the use of said Philip Rotehford, or of Henry Doyal; to draw and endorse bills of exchange, domestic or foreign, and generally to do and perform all, and every other act that may be requisite and necessary, touching the premises as fully and effectually as the said Doyal himself might or could do.”

Henry Doyal lived in Ascension parish, and his post-office was New River. These facts seem to have been well known in New Orleans, within the range of his business transactions, which appear to have been quite large and extensive. The notary who protested the note appears to have been ignorant both of Doyal’s post-office, and of his decease. Pike, the cashier of the Branch of the State Bank of Louisiana at Baton Rouge, to whom the notary enclosed notices for the parties to the note, testifies that he has no distinct recollection of receiving any notice. He says: “It was my invariable habit on the same day on which I received notices to parties out of town, to send them by mail to their address at their proper post-offices, if known to us. I am positive they were disposed of, as I have stated, if I received them; but I have no recollection of having received them. Brown, to whom at the office of Philip Rotchford, the attorney in fact, the notary says in his certificate, that he delivered the duplicate notice to Henry Doyal, testifies, that had the notice of protest been left with him, as stated in the protest, it would have been handed to Philip Rotehford. ”

' James W. Rotehford testified, that if the notary had enquired at the office of Rotehford, Brown & Co., where Henry Doyal lived, he could have obtained the information from any person in the office.

In the case of Hoff v. Baldwin, 12 M., p. 701, quoted in the brief of the plaintiff’s counsel, the notary who protested the note, swore that he was generally in the habit of giving notices on all proti sted notes and bills, and that he presumed he gave notice to the defendant, as he was requested to be very particular about it; but that he had no distinct recollection about notifying the defendant, having had a great deal of protesting to do that summer. This court decided the testimony insufficient to establish notice. We think that case stronger than the one made out by the testimony of Pike, the most important introduced by the plaintiff in this case, for the notary in the case cited founds his presumption of having given notice, not upon his practice alone, but also, upon a fact stated, namely: that in that instance he had been requested to be very particular about giving the notice. There is no distinct fact stated in Pike’s testimony, to warrant a presumption by him that he even received the notices, much less that he served them. His testimony is altogether hypothetical. He has no recollection of having received the notices, but is positive if he did receive them, they were disposed of as he stated, because it was his invariable habit to transmit notices to the parties on the same day on which they were received.

The service of the duplicate notice to Doyal upon Rotchford, so long the attorney in fact of Doyal, is problematical, if we give full weight to the evidence of Brown, to whom the notary certifies he delivered it. The power of attorney does not specially authorize the mandatary to receive notice of protest; and the power to receive notice is not necessarily included in that of endorsing. 4th N. S. 88. But if the procuration had contained the specific power to receive notice, it could not have availed the plaintiff, as the mandate expired by the death of Doyal, a year before protest was made. C. C., 2996. 2 Cranch, 517. Ibid. p. 685.

In the case of the Louisiana State Bank v. Dumortract, 4th An. 484, relied upon by plaintiff’s counsel, a notice directed to a party then deceased, was regularly served upon the executor. The court held the service sufficient to bind the estate. In the case before us we find no evidence tending to show that the notice directed to Doyal was received by his executors. The evidence is equally defective to show that the notice to Henry Doyal, the decedent, was received by his son, Henry R. Doyal, as urged by plaintiff. There being executors in office at the time of the protest of the note, the service would more properly have been made upon them.

We consider it well settled that the holder of a bill or note, is required to show the use of reasonable diligence to find out the residence of the endorser when it is unknown to him. 1 N. S. 328. Ohitty on Bills, 267 and 275. 12 M. 81.

The evidence in the record satisfies us that the exercise of a moderate degree of diligence would have put the notary in possession of the fact of the decease of the endorser long before, and the names and residence of his executors.

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


text:
    No. 1222.
    Duncan N. Hennen v. The New Orleans and Carrollton Railroad Company, and John Kiddleton.
    Where a rule has been continued indefinitely by the District Judge, and afterwards fixed for trinbon motion of the party in whose favor it is taken, the party against whom the rule has been taken, must be notified of such fixing for trial.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.
    _D. N. Hennen, in propria persona.

      G. Hoseiius, for defendant. J: MeConñeü and Miles Taylor, for J. Kiddleton.
   Howe, J.

The plaintiff in this case alleged in his original petition that, in the year 1844, he and John Nicholson purchased from the defendant, the New Orleans and Carrollton Bailroad Company, ceitain lots of ground in the city of New Orleans, for the price of §19,050; and that in the year 1852, he acquired the interest of Nicholson; Chat afterwards a bill in equity was filed against him in the Circuit Court of the United States by Myra Clark Gaines, claiming these lots as heir of Daniel Clark, her father, and that on appi al, the Supreme Court of the United States rendered a decree in favor of Mrs. Gaines, declaring her to be the rightful owner of the lots in question, and remanded the case to the Circuit Court with orders to place Mrs. Gaines in possession, and to order an account of the rents and profits from May 13, 1844, to be given by petitioner to Mrs. Gaines ; that petitioner was thereupon evicted from, possession of the property; that the New Orleans and Carrollton Bailroad Company, sold the property to petitioner and Nicholson with fiill warranty, and petitioner had been subrogat'ed to all of Nicholson’s fights; and that he therefore, claimed judgment against the Company for the price ($19,050,) with -interest from the date of eviction, reserving his right of action for such further sum as he might be thereafter declared to be liable for, to Myra Clark Gaines.

The defendants answered, and called in warranty John Kiddleton, tliéir vendor, and Azelie Lavigne, the vendor of Kiddleton; and Kiddleton appeared and answered. The plaintiff thereupon, filed an amended and supplemental petition, claiming, in addition to the price paid for the lots, the reimbursement of such sums as he might be adjudged to pay .Mrs. Gaines for costs and for mesne profits, or rents and revenues; To this supplemental petition the defendant, Kiddleton, excepted on the ground, that he could not safely answer, until plaintiff should file a detailed statement of the amount and items of both the claim for costs, and for rents and profits. . .

The exception was maintained, and fifteen days allowed to plaintiff to file a detailed account. The account not having been filed within the -time thus prescribed, the defendant, Kiddleton, took a rule to show cause why the plaintiff’s petition and suit should not be dismissed. A copy of this rule was served on plaintiff, and the rule was continued several times. On the 18th of May, 1866, it was continued indefinitely; on the 19th, it was again fixed by the counsel of Kiddleton for the 23d; but no notice of such fixing appears to have been given to plaintiff, and, on the 23d, the plaintiff being absent, and not represented, the rule was made absolute, and the suit, including the original petition as well as the one excepted to, dismissed. From the judgment of dismissal, the plaintiff appealed to this court.

There was error in the judgment.

Even if the plaintiff had been regularly notified of the hearing of the rule for the 23d of May, it is difficult to see how the maintenance of the exception could have properly had any effect upon the plaintiff’s original petition. But without expressing any opinion on this point, it is enough to say that the plaintiff was entitled to notice of the fixing of a rule, which had been continued indefinitely, in the same manner as he would have been entitled to notice of a new rule, and the case should therefore be remanded, that the rule may be regularly heard.

It is therefore ordered and adjudged, that the judgment appealed from be avoided and reversed, and that this case be remanded to the District Court, for further proceedings therein, according to law, the appellee, Kiddleton, to pay the costs of the appeal.


text:
    No. 1371.
    Mrs. J. M. Elkin, Tutrix, v. Mrs. J. H. Harvy and Husband.
    The vendor's privilege on movables, can only be enforced while the goods are in the possession of the vendee, except in case of a special privilege granted by statute.
    APPEAL from the District Court, Parish of Jefferson, Gazabal, J.

      Randolph, Singleion & Browne, for plaintiff.

      R. Howard MeOaleb, for defendants.
   Howell, J.

The defendant, Mrs. Harvy, is sued as a married woman, separate in property, for the amount of a bill of certain house furnishing goods, with the vendor’s lien thereon, alleged to have been sold and delivered to her in November, 1866, by Lewis Elkin, since deceased. The defence is a general denial, with the allegation that if any one is indebted to plaintiff for said goods, it is Messrs. Banks, Loring & Co.

The District Judge came to the conclusion, that Banks, Loring & Co., were personally responsible to plaintiff for the payment of the account, but decreed that the goods sequestered in the possession of defendants be sold to satisfy plaintiff’s claim; from which judgment this appeal is taken.

Several bills of exception appear in the record, but the view we have taken of the case, renders it unnecessary to pass on them.

We concur in the opinion of the Judge a quo, that there is sufficient evidence properly admitted, to show that the contract of sale was really made between L. Elkin and Banks, Loring & Co., and that the credit was given to the latter, but we think he erred in giving a decree in rent. The vendor’s privilege can only be enforced in a proceeding against the vendee on the movables while in his possession, except in case of a special privilege granted by statute. C. C., 3194.

In this case Banks, Loring & Co., were the purchasers, and the goods were delivered by the vendor to the defendants for whom they were bought, hence they were not in the possession of the purchasers, but off third p. r -us not shown to hold for said purchasers, and against tho latter, this suit is not brought, nor is it a suit in rem. We think the defendants, against whom judgment is asked, is shown not to be liable, and besides she is shown not to be separate in property.

It is therefore ordered, that the judgment appealed from be reversed, and that the petition and demand of plaintiff be dismissed, at the costs of plaintiff in both courts.


text:
    No. 1375.
    E. H. Roquest and W.W. Gilkinson v. Charles C. Pickett.
    Tixe payee of a promissory note, endorsed by him after maturity, is not a guai'antor, and the holder, in order to bind him as endorser, must give notice of non-payment by the maker, the same as any other endorser.
    APPEAL from the Sixth District Court of New Orleans, Euplantier, J.

      li. Egan, for plaintiff's and appellants. H. G. Miller, for defendant.
   Wyly, J.

This action is instituted against defendant as an endorser, to recover 552,249 35, the balance due on the note of T. Coopwood and S. C. McThurson, for 556,150, due 1st Deoember, 1860, drawn to defendant’s order, and by him endorsed, and transferred after due.

Plaintiff's are the holders of the paper, and they allege in tlieir petition that “at the time of its transfer as aforesaid, said note was long past due, and required no protest, as it matured in the hands of said O. C. Pickett, the endorser, ” etc.

It was admitted by the counsel of both parties in open court, on the trial in tho District Court, “ that the note sued on was given by defendant to Charles Hall after its maturity, as set forth in the answer on file, and that it was transferred by Hall to the present plaintiffs, Eoquest & Gilkinson.”

The District Judge rendered judgment in favor of defendant, with costs, and plaintiffs have appealed.

The question presented for our consideration is, whether the endorser of a note, after maturity, can be held liable when there is no evidence of a demand of payment of the makers, and when there is no notice of nonpayment given to him. Is he conditionally or unconditionally bound by the endorsement?

It is laid down in elementary law that, “ although a note remains negotiable after it has been dishonored, still, in one sense, the endorsement and transfer of a note overdue is a renewal of the instrument, which is then declared by law payable within a reasonable time, upon demand, and the endorser is bound only upon the same condition of demand upon the drawer, and notice of non-payment as any other endorsement.” See Edwards on Bills and Promissory Notes, p. 261.

This same question was presented to this Court, in the case of Hugh McCall v. Simon Witkowski, reported in 16 A. 179; and the doctrine is there clearly settled, that the transferrer of a note overdue, is not a guarantor, but simply an endorser, whose liability is conditional.

This Court further remarked in that case, that “the defendant, if viewed as a transferrer of a debt, only warranted the existence of the debt at the time of the transfer.”

We cannot perceive the force of plaintiff’s argument, that defendant is unconditionally liable because he did not add the words “ without recourse” to his endorsement.

Nor do we recognize the applicability to this question of conditional or unconditional obligation, the principle of equity invoked by plaintiffs, that no person should be permitted to enrich himself at the expense of another.

We have not been able to discover, in the argument of plaintiff’s counsel, any sufficient reason to depart from the well-settled principle of commercial law, and the decision by our predecessors on this subject. The defendant cannot be held liable in this case.

Judgment affirmed.


author: Tamaeeebo, J.

text:
    No. 1862.
    W. S. Pike v. State of Louisiana.
    Where a judgment by default has been confirmed without sufficient evidence, if admissible, to authorize the judgment, the case will be remanded.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      Hays & New, for plaintiff and appellee.

      S. Belden, Attorney General, and Cooley <& Philips, for defendant.
   Tamaeeebo, J.

The plaintiff, with others in 1857, became lessees of the State Penitentiary, for the term of five years.

This suit, authorized by an act of the State Legislature in 1867, is instituted to recover the sum of $64,723, which the plaintiff, averring himself to be the sole owner of the claim, alleges to be unpaid. Citation was served upon the Governor of the State at the time, but no appearance was made on the part of the State, and a judgment by default was rendered, and afterwards made final.

A devolutive appeal was taken on the part of the State, after the lapse of several months.

The authorization to the plaintiff to institute this suit, clearly contemplated a full and fair investigation of the claim set up by the plaintiff, contradictorily, with the proper representative of the S ate. Most of the evidence introduced, we think inadmissible, and as a whole, the proof is insufficient.

We conclude that justice requires the case to be remanded to the lower court.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that the case be remanded to the lower court for further proceedings according to law, the plaintiff and appellee paying the costs of this appeal.


author: Taijaperro, J.

text:
    No. 1378.
    Nelligan & Von Zinken v. George Musbach.
    To make tbe exception of want of amioable demand available as to costs, the defendant must show areadiness to comply.
    Where no reason is shown for the appeal, damages will be awarded as for frivolous appeal.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      J. M. Dirrhammer and G. E. Schmidt, for plaintiffs and appellees.

      Houillon & Schmidt, for appellant.
   Taijaperro, J.

The plaintiffs allege that the defendant is indebted to them in the sum of six hundred dollars, with interest, at eight per cent, per annum, from 13th February, 1866, as shown by a promissory note drawn by defendant, and made payable on demand to their order. The defendant filed an exception, averring waut of amicable demand. Plaintiffs had judgment in their favor, and the defendant has appealed.

It seems clear that the defence «annot avail the defendant, even as to the question of costs; for he has not offered to comply with the demand, but on the contrary, resists it.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, with costs. It is further ordered, that plaintiff recover thirty-five dollars damages from the defendant, for, a frivolous appeal.


author: Taliapebro, J.

text:
    No. 1406.
    Thomas J. Cooley v. Joseph R. Shannon et al.—Maurice Langhorn, Appellant.
    In order to bind the endorser on a promissory note, tbe bolder must show duo diligence in giving notice oE dtshonor by the drawer.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      T. J. Cooley, for self.

      J. N. Briclcell, for appellant.
   Taliapebro, J.

This suit is brought on two promissory notes, falling due, respectively, in February and March, 1862. At maturity they were protested, and notices given. The controversy seems to be confined entirely to the note that fell due in March, the defendant, who is the payee and endorser, alleging that he was served with no legal^notice of protest. The plaintiff had judgment for the amount of both notes, and the defendant, Langhorn, appealed.

The notes were protested by different notaries. The notary who pro- . tested the note due in February, served the notice on Laughorn at his residence, in New Orleans. The other notary, upon making protest of the note due about the middle of March, served his notice by letter, addressed to Langhorn at New Orleans, and placed in the post-office of this city, and likewise by duplicate notice to the same party, delivered by the notary to J. M. Travis, at the office of Joseph B. Shannon & Oo. Bandall, the notary’s deputy, who served these notices, states in his testimony in the case, that “ he placed the notice in the post-office, because Mr. Langhorn could not be found,” and that “subsequently ascertaining that the headquarters of Mr. Langhorn was at the office of Joseph B. Shannon, a duplicate "notice for the same party was left at the office with Mr. Travis, as stated in the certificate of protest; that he made inquiries at various places of public resort for Mr. Langhorn, and could not ascertain where he could he seen; that he did not recollect particularly about making inquiry at to his residence. The only information he could get was, that Langhorn’s “headquarters” were at Shannon’s office; that he knew nothing of the business connections of Travis and Shannon; did not recollect whether or not he made inquiry of Travis where Langhorn could be found, but recollected that Travis told him the notice would be' handed to Langhorn.

It is in proof that Langhorn had a residence in New Orleans, and was living on Washington street at the time the protest was made. It is shown also, that his name appears in the City Directory for the year previous, 1861.

Langhorn was a steamboat man, and witness stated that he made inquiry of various steamboat agents where Langhorn could be found; 'that he had no recollection who informed him where Mr. Langhorn’s headquarters were.

We cannot understand by the term “headquarters,” that the person sought to be rendered liable as endorser, had a fixed place of business in New Orleans. His occupation seems to have been that of captain of a, steamboat. His home, and the residence of himself and' family, are clearly shown to have been in New Orleans at the time the protest of the note in question was made. Service of notice, as we. have seen, was made upon him in the other case at his residence in the city a month before. Under the state of facts presented, we think, negatives the idea that any proper diligence was used to notify the defendant, and, it follows, that he is thereby released. 2 A. 16. 6 L. 744. 8 L. 171.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed as to the defendant Langhorn; that the plaintiff recover from the defendants, Joseph B. Shannon and Maurice Langhorn, in solido, the sum of one thousand six 'hundred and ninety dollars and seventy-eight cents, with five per cent, interest thereon, from the 9th of February, 1862, until paid; that the defendant, Maurice Langhorn, have judgment in his favor, as to the nóte for seventeen hundred and three dollars and eighteen cents, releasing ■him from all obligation to pay the same, the plaintiff and appellee to pay the costs of this appeal, and all other costs to be paid by the defendant.


author: Tadiaeebbo, J.

text:
    No. 1078.
    Mrs. Armide E. Fitz, Widow of Geo. Chas. Wm. Vogel, Tutrix, etc., v. Augustus Reichard et als.
    Commprcial partners, having come into possession of pronertv belonging to the minor heir of a former partner, have no legal right to administer i( for the benefit of the minor. By undertaking the auministration on the part of the firm, witnouo authorization, of the minor’s interest, they create the relation of creditor and debtor, and, being commercial partners, they are bound i» solido,

    APPEAL from the Sixth District Court of New Orleans, Buplantier, J.

      O. Bufour, for appellee.

      F. A. Bradford and J. Finney, for Kruttschnett; J. N. Lea, for Schmidt; P. F. Laresche, curator ad hoe, for Beichard; appellants.
   Tadiaeebbo, J.

The plaintiff, in her capacity of natural tutrix to her minor daughter, Alice, brings this suit against the three defendants, Beichard, Kruttschnett and Schmidt, in solido, as commercial partners of the firm of Beichard & Co., which expired by its own limitation on the 15th July, 1861. She avers that defendants in their social name and capacity, without any authorization, took in charge and assumed the management and control of certain funds belonging to her minor child in her own right, viz: certain dividends on fifty-six shares of the capital-stock of the New Orleans Canal and Banking Company. These dividends, she avers yvere collected as they accrued, and were retained by them at the rate of six per cent, per annum interest, with which they charged thems< Ives That finally the defendants invested the moneys so collected by them, in bonds of the Confederate States, without authority and contrary to law. That this investment of the minor’s funds was and is illegal and void. She claims the sum of $2,2ál 90, with interest running from different periods on separate portions of that amount. The defendants severed In their defence, and filed general denials. The plaintiff had judgment in her fatfoi-, and the defendants have appealed.

It is shown that William Yogel ,the father of the minor Alice, had given to Augustus Reichard, in 1856, a power of attom y, de egating to him. plenary power to transact his business of every kind. Yogel in the early part of the year 1858, was missing from his residence in New Orleans and was never afterwards heard of. Soon after his disappearance Reichard,one of the defendants, assumed the management of his affairs under the power of attorney; Vogel for several years being considered an absentee-At the time of his disappearance, Yogel was a partner of the.commercial firm of Schmidt and Co. composed of himself, Schmidt and Reichard-

This partnership was dissolved soon after the absence of Yogel occurred, and a new one formed, composed of Augustus Reichard, John Kruttschnett, Leopold Christ andE. W. Schmidt, the last named being a partner in commendam. A few days after the formation of this firm-Augustus Reichard substituted his new partner John Kruttschnett to the power of 'attorney which he held from Vogel, and on the eve of entering into this new partnership, the assets of the house of Schmidt and Co. were divided, and the share allotted to Wm. Vogel, as well as his private property, seem to have been taken in charge by the new firm of Reichard & Co. It appears also, that the interest of the minor in tlie Canal Bank stock was likewise taken in charge by the firm. An account was opened in the name of the minor Alice on the commercial books of the firm, Commissions were charged on the dividends collected, and the firm charged with six per cent, interest on the balances as they accrued. The investment of the minor’s funds on hand in the bonds of the so-called Confederate States was made on the 27th September, 1861. These b,onds were purchased with a check drawn in the handwriting of A. Four, clerk of the firm, in 1 the name of the firm, against the funds of Reichard & Co., in the Citizens Bank, and with that check the bonds were purchased for the minor.

It is urged in the defence that Reichard & Co. made frequent requests of Mrs. Yogel, as the natural tutrix of the minor, for instructions as to how the minor’s funds in their hands should be invested, but receiving none, they acted in the matter of the investment upon the advice of the attorney of Mrs. Yogel, who was then residing in Paris; and on the part of one' of the defendants, it is argued that the mother of Alice acquiesced in the measure, and thereby ratified it. We do not so construe the letter of Mrs. Yogel which is referred to as evidence of aoquii seenee and ratification. It was not until June, 1865, that the succession of Wm. Yogel can be considered as being opened. Prior to that period Vogel was considered and treated as an absentee. His effects were so administered, and. it was not until May, 1865, that Mrs. Vogel, was confirmed as natural tutrix.

It is clear that the defendants had no legal right to take in charge and manage the affairs of the minor.

The power of attorney from Wm. Vogel to Reichard, certainly contains no such authority, Whatever may have been the motives of the defendants, we see no sanction of law whatever to sustain them in their acts.

The defence of Schmidt that he was a partner in commendam cannot, we think, avail him. 1 An p. 120. We concur with the Judge a quo that the undertaking- on the part of Reichard & Co., without authorization, to administer the affairs of the minor, gave rise to the relation of creditor and debtor between the minor and Reichard & Co., which, under the evidence, renders the defendants hable in solido, as commercial partners. C. C. Art. 2274, 2293.

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