text:
    No. 2449.
    State of Louisiana ex rel. William A. Freret v. Geo. M. Wickliffe, Auditor, etc.
    The appeal will be dismissed when the failure to make proper parties to the appeal is imputable to the appellant.
    from the Fifth District Court for tbe parish of Orleans. Leaumont, J.

      A. & M. Voorhies, for relator, appellee. 8. Leiden, .Attorney General, for defendant and appellant.
   Howe, J.

A motion has been made to dismiss tbe appeal taken herein by tbe State, a third party interested, on tbe ground that the defendant in tbe judgment lias not been made a party appellee. The appeal was taken by petition of the Attorney General, which prayed that tbe relator be cited, but contained no prayer for tbe citation of tbe defendant. Tbe necessary parties not being before us, and this defect being tbe fault of fixe appellant, it is ordered that tbe appeal herein be dismissed.


source: Caselaw Access Project

author: Wtly, J.

license: Public Domain

text:
    No. 2366.
    State of Louisiana ex rel. James P. Sullivan et als., v. William S. Mount et als. N. C. Kendall, appellant.
    In a controversy for office under the intrusion act, a third, party, not holding or claiming the office in dispute, cannot appeal from the judgment ol the court a qua.

    from tbe Fifth District Court for tbe parish of Orleans. Leaumont, J.

      Billings & Hughes and 0. 8. Lice, for appellant. JI. L>. Ogden and A. & M. Voorhies, for appellees.
   Wtly, J.

Tbe Attorney General, on tbe information of James P. Sullivan and otliors claiming to be members of the “ Board of School Directors for the city of New Orleans,” under act of tenth March, 1809, instituted this proceeding against the defendants under act No. 156 of the acts of 1808; commonly known as the “ intrusion act,” alleging that the defendants have intruded into or unlawfully hold and exercise the office of “Board of Directors of the Public Schools of the city of New Orleans,” which said office it is averred belongs to said informers, James r. Sullivan and others, together with all the.books, papers and other propelty pertaining thereto. The court a qua gave judgment for the defendants, from which plaintiff took no appeal. N. C. Kendall, however, claiming to be the secretary of the “Board of School •Directors of the city of New Orleans,” organized under the act of tenth March, 1809, took a devolutive appeal, alleging that his salary is $1800 per annum, “ and that he has an interest of more than five hundred dollars pending on the result of this suit.”

The case is now presented on a motion to dismiss the appeal on various grounds; the most important ones seem to be, viz :

First — The want of jurisdiction, the matter in dispute not exceeding five hundred dollars, and appellant’s interest in the matter in dispute not exceeding five hundred dollars.

Second — That as the proceeding is by the State under the ‘^intrusion act,” no appeal can be taken by N. C. Kendall, a third person.

It is quite evident that the motion to dismiss is well taken.

What is the matter in dispute t

It is the office of School Directors, and books and papers and other property pertaining thereto.

To these the appellant sets up no claim whatever.

His office, secretary of the board, is not in dispute.

From his own statements we cannot perceive that he has any interest whatever in the matter..

It is therefore ordered that this appeal be dismissed at appellant's costs.


author: Howell, J.

text:
    No. 2362.
    John Marks & Co. v. S. Herman.
    The appeal bond must be made payable to the clerk of the court from -which the appeal is taken. The appeal will be dismissed if the bond is not so taken.
    from the Fifth District Court for the parish of Orleans. Leaumont, J.

      Gotto'n & Levy, for plaintiffs and appellees. Oooley d¿ Phillips, for defendant and appellant.
   Howell, J.

A motion is made to dismiss the appeal in this case on the ground that the appeal bond is not made in favor of the clerk of the court, as the law requires.

The motion must prevail. Art. 575 C. P. as it now exists, requires that “appeal bonds, in all cases of appeals, shall be made payable to the clerk of the court which rendered the judgment appealed from,” and gives any appellee interested in the appeal recourse on such bond against the appellant and his securities. '

There is no room for construction. The bond in every appeal must be made payable to the clerk. If not made payable to him, as in this case, the bond is not such as the law prescribes.

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


author:
Wtly, J.
      Justice Taliaferro,

      Justice Howe,

      Chief Justice Ludeling

      Justice Howell,

text:
    No. 2473.
    R. S. Sandidge v. J. S. Sanderson, and J. S. Sanderson v. R. S. Sandidge. (Cumulated.)
    "Where a contract of sale of land, slaves and personal property was made for part cash and part credit, for which promissory notes were executed by the purchaser, “due at different periods of time before emancipation, and a portion of the notes for the credit price have been paid, the purchaser of the property for which the notes were executed, is only bound to pay that portion of the outstanding notes after emancipation which is found to be due on the land and personal property, in the proportion of the value of the land, slaves and personal property in the original contract of sale.
    The holder of a mixed obligation, the consideration of which is part land and part slaves, can not recover that portion for which slaves formed the consideration. Constitution, art. 128.
    from the Tenth Judicial District Court for the parish of Bossier. Weems, J.

      Nutt & Leonard, for plaintiff and appellee. S. T. & A. JD. Land, Griffin <& Snyder, for defendant and appellant.
   Wtly, J.

In 1858 Sandidge sold to Sanderson a certain tract of land, personal property and slaves for the price of $18,000, estimating the land and movables at $9000, and the value of tire slaves also at $9000. The purchaser paid $0000 cash, 'and gave his four several promissory notes for $3000 each, bearing interest, in evidence of the balance of the price, securing the payment thereof by special mortgage on the land and slaves.

All of said notes were subsequently paid to the vendor, except the last one, which became due on first May, 1802. This last installment is the subject of the present litigation. Upon it Sandidge sued out an order of seizure and sale; and Sanderson enjoined it upon various grounds. The most serious one is the alleged failure of consideration by reason of emancipation. Plaintiff in injunction contends that he has already paid far more than the value-of the land and personal property which, was only estimated at $9000. That, having already paid $.15,000, if he is compelled to pay the last installment of $3000, or any part thereof, he will be compelled by the court to discharge an obligation for the sale of persons, in contravention of article 128 of the 'Constitution of this State.

The subsequent transactions, partnerships and amicable partition by notarial act between the parties to this litigation did not embrace the note involved in. this suit and did not discharge the obligation. We therefore deem it unnecessary to enter ujion the discussion of matters which, from the evidence, appear to be irrelevant to the main issue presented in this case.

At the time of the proclamation of emancipation there existed a legal obligation evidenced by the note for $3000, upon which this suit is founded. It was for the balance due by Sanderson to Sandidge for the purchase of land, personal property and slaves. It was the deferred payment, one of the installments evidenced by note given at the time of the sale in 1858. If that note had been for slaves pure and simple, there would be no question that the obligation would be considered discharged, or at least could not be enforced by reason of emancipation and article 128 of the State Constitution. But what is the character or consideration of that obligation, regarding it as one of the installments, deferred payments, of the whole debt ?

The debt was half for slaves, half for land and movables. There were four notes issued. Can we say any one of the notes was specially intended to represent the debt lor the slaves ? Did the parties designate that certain notes were for slaves and certain others for lands 1 If so, the question might stand on a different basis.

The consideration of the debt was mixed. It was divided into convenient installments without designating the consideration of either of the notes. Can we now say that the three notes paid before emancipation were for the land and personal property, and that the remaining one, now in suit, was purely in evidence of the slave part of the debt?

In other words, shall we now mate for the parties an imputation of the payments made before the rebellion, when it .is perfectly evident that no special imputation nbr any imputation whatever was intended by the parties ? The payments made prior to emancipation were simply in discharge of the whole debt pro tanto. The original obligation had been so far discharged that Sanderson only owed San-didge a debt of $3000 for land, movables and slaves, the value of the slaves making up half the debt. The relation of the parties was just the same as if Sanderson owned all the property except one undivided share for which he owed Sandidge the $3000. The doctrine of imputation has no bearing on the case. It must be made by the parties or by the law in force at the time of payment. It was not made by the parties, and the law in force at the time- recognized the validity of a slave consideration.

Under the then existing law, the slitve was as valid an object of a contract as any other. The purchaser, when he paid the $6000 and made the notes, and afterward paid them all but the one in suit, did so in discharge of his obligation for the slaves as well as the land. He had contracted an obligation for them both; and he undoubtedly intended to make tlio payment and did make the payment as a pro tanto discharge of the whole debt.

In the midst of a great rebellion, jeopardizing the life of the nation, the sovereignty of the United States demanded emancipation. Tho slave was taken for a s'oldier to fight it3 battles and maintain its paramount authority. A great public emergency thus destroyed slavery, the object, in whole or in part, of numerous unexecuted contracts in this State. In organizing government under the reconstruction acts, the sovereign power of this State took into consideration the equity existing between debtor and creditor in the slave contracts remaining unexecuted, and it imbedded in fundamental law a perpetual inhibition against the enforcements of contracts of that character by the courts of this State.

Whether emancipation by the paramount authority of the United States discharged the obligations for slaves or not, the remedy or power • to enforce them has been withheld from the courts of this State.

We do not think the plea, of failure of consideration by eviction or the doctrine of warranty has any application to this case. Eviction by emancipation is not such failure of consideration as the vendor.was bound to warrant against. In tho contract of sale the clause “warranted slaves for life” meant that they were such by the laws in force at the time and not statu liberi. It would bo beyond the power of the vendor to warrant against superior force or'tlie acts of tho sovereign.

In our opinion the doctrine of immorality is also inapplicable. The validity of the contract must bo measured by the law in force at the time of its inception. Slaves were lawful objects of contracts in 1858, when the one under consideration was made, and we can not, with propriety, now say that that which was at the time lawful has tainted the contract with immorality. The morality of a contract, as well as its legality, must be tested by the laws in force at the time it was made. If the contract was then moral it could not be rendered immoral by subsequent laws. Laws provide only for tho future. They govern and regulate contracts made after their enactment. Payments made prior t'o the rebellion, if there be legal imputation, must be imputed by the laws in force at the time, Their imputation can not be regulated by posterior laws. Our laws, now prohibiting the sale of persons, and making it immoral, can not apply as tests of morality tc> contracts of the past, nor can they regulate the imputation of payments made prior to the rebellion. The title to tho slaves was then no more precarious than that to the land. The slave part of the consideration was then no mpre immoral than the other part of the consideration. The slave part of the debt was as binding and obligatory as the part for the land and movables. Hence the l*aw at the time made no imputation whatever. • ■

We deem it useless to discuss .the question whether emancipation discharged obligations for slaves or not. Article 128 of the Constitution prohibits the courts of this State from enforcing them.

The main question for consideration is, how shall we apply the prohibitory clause of the Constitution to contracts of the character presented in this case, where the consideration was mixed, part slaves and part land and movables ?

Shall we refuse to enforce the whole debt, or shall we only refuse to enforce the slave part of the debt ? The prohibitory clause of the Constitution should be construed strictly. We can only refuse to enforce the slave part of the debt. The debt was originally half for slaves and half for other property. The payments prior to the rebellion can not fairly be imputed to that part of the debt for land and movables. We can not presume the parties intended to apply payments to the amount of $15,000 to that part of the debt which was only $9000. The payments were obviously made in discharge of the whole debt pro tanto. The remaining note on which this suit is based therefore evidences a debt the consideration of which was half slaves and half land and movables. We are of opinion that the plaintiff, Sandidge, should have judgment against the defendant, Sanderson, for half the amount of his demand, and that his mortgage should be recognized and rendered executory.

It is therefore ordered that the judgment of the court below, decreeing to plaintiff the full amount of his demand, be avoided and reversed; and it is now ordered that the plaintiff, Richard S. Sandidge, recover judgment against the defendant, James S. Sanderson, in the sum of fifteen hundred dollars with eight per cent, per annum interest thereon from the sixteenth January, 1858, subject to a credit of one hundred dollars, paid on second March, 1863. It is further ordered that the mortgage herein be recognized and rendered executory on the following described larids to wit: The northeast and southwest quarters of tiie northeast quarter of section No. 2 in township No. 18, north of range No. 13 west, containing eighty-four and thirty-four one hundredth acres; the southeast quarter of section No. 2, same township and range, containing forty-one and sixty-seven one hundredth acres; the southeast quarter of the southeast quarter of section 35, in township 19, range 13, containing forty dcres, and the southwest quarter of section 36, township 19, range 13, containing 160 acres, with all the buildings and improvements thereon. All of said lands being situated in the parish of Bossier and State of Louisiana. That said lands bo sold to satisfy the judgment herein and costs hereof. It is further-ordered that the plaintiff pay the costs of this appeal.

Justice Taliaferro,

concurring: -

I concur in the main, in the opinion of tho majority of the court.

In resisting the plaintiff’s demand, the defendant avers that the con* sidcration of tlie notes sued on, being in part for tlie pnce of slaves, and to tliat extent reprobated by law, as being against good morals and public policy, the entire contract is vitiated and consequently null and void. He moreover contends that the payments he has heretofore made under the contract, can only be applied to the value of the land which has thus been paid for, and that there remains nothing due the plaintiff. That as the law repudiates that part of tlie consideration which relates to the slaves, it will not impute the payments to the price of both land and slaves.

The principles and spirit of the decision in the case of Wainwright v. Bridges, 19 An. p. 234, is invoked to sustain the main ground of the defense, and various authorities are cited to show that if any part of the entire consideration of a contract is illegal aud against sound morals or public policy, the whole is null.

This doctrine that the nullity arising from the illegality of a part of the consideration of a contract operates the nullity of the whole, is, I imagine, in the general well settled.

“ If any pa it of the entire consideration for a promise, or any part of an entire promise not in its nature capable of separation, bo illegal either by common law or by statute, the whole agreement is void.” Chitty on Contracts, page 692.

A distinction has been taken in the books between a deed or condition void in part by the statute, and the caso of such an instrument being in part void at common law. ***** * * * But this distinction cannot bo supported; anda contract is void in toto if a part of it is illegal either by virtue of a statute or at common law.” Chitty on Contracts, page 693.

“ There are, however, instances in which the invalidity of a part of a deed, even by virtue of “a statute, has been held not to destroy the whole; and the remainder, being legal and distinct, and capable of separation from the illegal provision, has been allowed to stand, there being no express words in the act to render the whole void.” Ibiclem, page 693.

“If any part of the entire consideration .of a contract is illegal, as against sound morals or public policy, tlie whole is void.” 6 Dana’s Reports, page 91.

“ Where the consideration of an agreement is in violation of a statute, no action can be maintained upon it by either party.” 17 Massachusetts Reports, page 258.

An action cannot be sustained in the courts of a State on an agreement entered into in violation of'the laws of the United States or of the laws of the particular State.” 4 Dallas, page 298.

This general doctrine is recognized in Parsons oh Contracts, vol. 1, page 455 et seguientes, vol. 2, page 673; 2 Pothier on Obligations, page 16; 9 Jowa Reports, page 384,

Where, however, the illegal part of the consideration is ascertainable with sufficient certainty, and may be separated from the illegal part, there seems to be no sound reason why the contract should not be enforced to the extent to which the consideration is legal. This principle has often been acted upon.

In the case of Greenwood v. Curtis, 6 Mass. Kepoits, page 358, a contract was entered into on the coast of Africa by which one of the parties, in cons:deration of a cargo of merchandise received, obligated himself to deliver to the other party one hundred and fifteen slaves. A part only of the slaves were delivered. Upon an account stated, the party in’default deducted the estimated value of the slaves delivered, and of certain supplies furnished by him, and acknowledged a balance due in cash. lie afterwards gave his note for this balance stated in his account, to be paid in slaves. Being sued subsequently on the account, the couit hold that the action upon the insimul computassent might be maintained, and gave the plaintiff judgment accordingly.

But the rule which vitiates the entire contract, on account of a partial defect in the consideration, seems, in general, to be restricted to and relate more especially to cases where such partial defect arises from a clause or stipulation in the agreement, which is violative of some law existing at the time the contract was entered into. This rule, then, would hardly seem to apply to the case now under consideration ; for at the time the contract was made by the parties, there was no law of this State prohibiting the buying and selling of slaves. The fact was distinctly recognized by this court, in the case of Wainwright v. Bridges, that, antecedent to the action of the sovereign power abolishing slavery, obligations for the payment of the price of slaves might be and wore judicially enforced. Slavery existed, it is true, in violation of natural right, and contracts having for their object the retention of human beings in the condition of involuntary toil and servitude would, in the forum of an enlightened conscience, be adjudged in derogation of sound morals; yet, such contracts had the sanction oi the then existing laws or regulations relating to slavery, and the sovereign power then permitted such laws or regulations by not having pronounced against them. So, in the later ages of the Boman empire, there were laws sanctioning slavery and enforcing contracts for the sale of slaves, and still the Digest of Justinian, then in force, expressly declared slavery to be in violation of natural right and natural j ustice.

Seeing, then, that at the time the parties entered into the contract in relation to the land and slaves, forming the object of the contract, the slaves constituted, to the extent of their value, as valid a part of the consideration as the land. I think the entire contract was not rendered null by reason of the alleged illegality of the sale of the slaves. Nor do I consider that the entire contract is null from the act of the sovereign power annulling, subsequently to the formation' of the contract, its consideration to the extent of the subsisting unpaid part of the price or value of the slaves.

An insuperable barrier is in the way of the plaintiff’s recovering the unpaid price of the slaves, either in whole or in.part. This point has been definitely settled and put to rest by the decision, before referred to, of Wainwright v. Bridges, and the more authoritative prohibition of article 128 of the State constitution.

I believe it is not out of the power of the parties to ascertain, in cases like the one before us, the portion of the entire consideration to be deducted; at least, that this can be done by an approximation sufficiently near and with sufficient certainty to form the basis of a judgment that will do justice between the parties. With regard to payments made on contracts of this kind before the enforcement of obligations for the price of slaves ceased, equity requires that they should take effect in the manner intended by the parties; that is, as payments on the entire sum stipulated to be paid by the purchaser, as the consideration for which the sale was made! Courts will not deal with the executed parts of these contracts otherwise than the parties themselves have manifestly done. Payments made under the circumstances in view were, beyond all cavil, made pro tanto by the debtor for land and slaves, and these payments were received by the creditor in like manner, as far as they went, in satisfaction of the price of land and slaves.

Courts make no imputation of these payments. They accept the disposition which the parties themselves have made of them. Their intention and consent that the payments were made upon the whole price, is patent upon the very face of the act. Even if it were a mere presumption, it would be for the party holding the negative to overcome the presumption, and prove that such was not their purpose. Executory contracts relating to the price of slaves were stricken with nullity by the final- action of the sovereign power; but that power went not back upon the dead past, nor authorized the courts to do it; for whatever was paid on such obligations, i>rior to that final action, there is no reclamation, nor can any other destination be.givon to such payments than that which the contracting parties themselves have given them. The law in such cases leaves the parties where it found them. It will not hear the absurd plea from -one of them that the partial payments made on a contract for land and slaves, were intended to be applied to the price of the land alone. It will give no countenance to the purchaser, who, willing to be relieved from his existing obligations to pay the price of slaves, is yet unwilling to lose what he has paid for them, and desires the seller’s land to bo given him as an indemnity. Such a litigant is in court with but little grace.

Article 128 of the State constitution declares that “ contracts for the salo of persons aro null and. void, and sliall not; be enforced by the courts of this State.” A contract originally for both land and slaves, shorn and divested of its legal force as to the recovery of the unpaid part of the price of the slaves, is not a contract for the sale of persons. Obligations originally entered into to pay a stipulated price for land and slaves, have since become utterly and absolutely null, to the full extent to which the estimated value of the slaves formed a part of the consideration. These obligations, then, are no longer obligations for the payment of the price of slaves. I see no violation of the constitution in rejecting that part of the contract which is null, and enforcing the part.that is valid. I think substantial justice between the parties can only be done by ascertaining the value, at the time of the sale, of the land separately, and that of the slaves separately; and, rejecting the latter in the computation, adjust the indebtedness for the land, and where partial .payments have been made before the nullity of a portion of the consideration arose, dispose of them as the parties have applied them, to the aggregate sum fixed for the entire purchase. I see no inordinate difficulty or inconvenience in thus disposing of cases of this kind, and I think it the most equitable mode.

Justice Howe,

concurring.

In this case there was a sale of lands, movables and slaves for the price of $18,000, and it is admitted that the estimated value of the lands and movables was one-half this sum. Six thousand dollars were paid in cash, and for the balance four notes were given of $3000 each. Three of these notes were paid. As obligations, they have been extinguished. There is no longer any legal question as to them. The remaining note of $3000 is now before us. It has never been paid or otherwise extinguished, and we are now called upon to enforce it. To the extent of one-half, its consideration is valid, and to that extent the holder is entitled to judgment. As to the other half, the jurisprudence of the State, as settled by‘repeated decisions, has declared that it can not be enforced. For these reasons I concur in the decree just pronounced, believing that it in no way enforces a contract for the sale of persons.

Chief Justice Ludeling

dissenting:

I cannot concur in the views expressed by the court in this case.

The prohibition in the constitution is : “All contracts for the sale of persons are null and void, and shall not be enforced by the courts of this State.”

In Groves v. Clark & Carnal (21 An. 567), this court, commenting on the article, said: Article 128 of the constitution is couched in clear and unambiguous language. Its terms are unequivocal, its expression imperative.” * * * * * * . *

“ In the face of this paramount authority, so plainly enunciated, can the courts of this State enforce contracts which it reprobates, whether the holder of the obligation is in good or bad faith, or the holder before or after maturity ? The positive prohibition of article 128 mates no exception in favor of one class of holders over another. Shall the courts make such an exception ?”

None dispute that obligations of the sort in question are, by the terms of the article 128 of the constitution, utterly and absolutely null and void in the hands of the original parties. If'thus stricken with nullity, what is to revive and give them validity ? We hold the purpose of article 128 of the constitution of the State to be clear and without doubt, aud that that purpose is, that the contracts, which it reprobates, shall be mill, in whose hands soever they are found,'and that the courts are forbidden to enforce them, whether held by owners bona ■fide or mala fide, and without reference to the time they acquired them.”

If we apply the reasoning of the court to this case, to what conclusion are we driven! “The positive prohibition of article 128 makes no exception in favor of one class of holders over another.” Does it make any exception in favor of a contract which is only in part for the sale of persons'? “All contracts for the sale of persons shall be null and void, and shall not be enforced by the courts of this State.” Does the obligation sued on arise from a contract for the sale of persons ? This is not denied. There was but one contract, and-slaves as well as lands and personal property were embraced^in it. In the same case we said : “By the decision in the case of Wainwright v. Bridges, followed by many decisions affirming it, it was fully settled that contracts for the payment of the price of slaves were null, and that the courts could not enforce them. These decisions were the settled law of. the State before the adoption of the constitution of 1868. ' There was no call for the insertion of the article 128 of the constitution if the framers of the organic law did not intend to render null and abortive, in the hands of any holder whatever, all obligations of the kind treated of A What are the kinds of contracts treated of V’ “ All contracts for the sale of persons.” The constitution does not say that only so much of the contract as relates to the juice of the slaves shall be null, for that much was already deci o l to be null by the courts, but it declares that all such contracts shall be entirely null.

Under a strict construction of article 128 of the constitution no part of the contract can be enforced by the courts of the State.

If we adhere to the doctrine enunciated in the case of Wamwright v. Bridges, so long followed by us, the result would be the same, even if we were permitted to disregard the prohibition in the constitution— because h contract which is tainted, in part, with an immoral consideration, is void in toto, under the English and American, as well as under the civil law and' the laws of this State. Cole v. Cole, 7 N. S. 423; 19 An. 33, 339 ; 2 Pothier (Evans) pp. 17 and 18 ; Story Promissory notes, page 190 ; Smitli Mer. Law, 344; Parson’s Contracts, vol. 1, page 445, vol. 2, page 073; 11 Wheaton, 258; 2 Peters, 527; 14 How. 38; 16 I-Iow. 314; 17 How. 232; Chitty on Contracts, pp. 692, 693.

Reference has been made to a case in 6 Mass. Rep. p. 380, in support of a contrary view, I humbly conceive that the authority supports my position, if it can be said to decide anything on the question. Parsons, C. J., said: This action is assumpsit on a promissory note for the delivery of slaves, and the payment of bars, which are an African currency, and also on an insimul eomputassent.'” * * a *

“The second objection that no action, upon either of the promises alleged, can be maintained in this State, is principally relied on by the defendant.” * * “ The slave trade, he has argued, is, or has been prohibited by a statute of the Commonwealth, in the preamble to which it has been declared to be an unrighteous commerce, and he attempted to show that in itself it was immoral. This objection deserves much consideration.”

The court then states, that, by the common law, upon principles of national comity, a contract made in a foreign place, or to be executed there, if valid by the laws of that place, may be a legitimate ground of action in the courts of Massachusetts, although such contract may not be valid by our laws. There are two exceptions to this rule: when the commonwealth or its citizens may be injured by giving effect to the contract, or when the giving effect to the contract would exhibit to the citizens of the State an example pernicious or detestable; and, the court says, such contracts cannot be enforced because the consideration is immoral, and a judgment in support of it would be pernicious from its example. And, perhaps, all cases may be considered as within this second exception, which are founded on moral turpitude, in respect either of consideration or the stipulation.” “ Laying the count on the note out of the case, we shall consider the question of moral turpitude, so far as it respects the count on the insimul computas-sent; and we are satisfied that the objection does not apply to the contract averred on in this count.”

What was the contract averred on in that count ? The defendant had agreed to deliver to the plaintiff a certain number of slaves and bars for a cargo of merchandise. The merchandise was delivered, and the defendant delivered a part of the slaves, and having become the creditor of the plaintiff for supplies furnished to his use, states his account, in which, after deducting the slaves delivered and the supplies furnished, he aclcnoxcledges a balance in cash, and the plaintiff having assented to the account, demands the balance in this action.” The suit was on a new contract in which money was acknowledged to be duo for merchandise received, not simes. The court said very properly, “we see no legal objection to bis recovery. The consideration of the implied promise, arising from this settlement is the sale of the cargo, which involves no moral turpitude — neither is the performance of the promise, by paying the balance in cash, immoral. And, although, on the same day, the defendant, in consideration of this balance due in cash, promises by his note to discharge it principally in slaves, and a small remainder in cash, yet this promise is no bar to an action, by the plaintiff on the account, even if the promise by the note is here considered as legal, and a fortiori if it be considered as void for its immorality.” 6 Mass. R. 380.

If, departing from the plain terms of article 128 of the constitution, we construe it to mean that contracts for the sale of persons shall not be enforced, except to the extent oí the good considerationr and wo determine further, that the good can bo separated from the bad consideration of the contract, still the result will be the same in this case, for we could enforce the payment of the price of the land and personal property only, and the payments already made largely exceed their price.

The vendor sold lands and slaves together for $18,000. It is admitted that the price of the slaves was $9000. Fifteen thousand dollars have been paid, and we are asked to enforce the balance. Would we not enforce the payment of the price of slaves, if by our judgment the vendor were enabled to collect any more money on his contract ? Nine thousand dollars was the price of the lands. Every dollar which he has received, or which he may receive, through the aid of this court, over nine thousand dollars,will be on account of the price of the slaves. And, yet the judgment of this court will enforce one-half of the balance claimed, thus enabling him to collect $16,500.

The conclusion of my learned brothers seems to be predicated upon the supposition that there were several debts, evidenced by four notes; that the consideration of each note was slaves and land, and that by the payment of three of these notes (which were mere installments of one debt), the parties themselves imputed or applied the sums of money paid, equally to the slave and land consideration of each note.

This, in my judgment, is an error. There was but one contract, from which arose one debt, to wit: the obligation to pay the price of the property bought, and which was secured by one mortgage.

The fact that the debt was payable in installments did not destroy the unity of the debt. C. P. article 686.

Suppose A sell to B a tract of land for $10,000, payable in four equal installments, evidenced by four notes. B pays two of the notes, and ihen he is evicted of one-half of the lands bought, worth $5000. A sues B on the unpaid notes, and B pleads the failure of consideration to the extent of the value of the land taken from him. Would any court hold that one-half of the unpaid notes could be collected because the consideration of those notes had only failed to the extent of one-half ?

In case there is only a partial want of consideration, the obligation is affected with nullity pro tanto. “ The same rule applies to cases wiiere there was originally no want of consideration, but there has been a subsequent failure thereof, either in whole or in part.” Story’s Prom. Notes, No. 187.

“ There is no difference between a want and a failure of consideration.” 12 M. 403.

If there was failure of consideration, there was no debt, and when there is no debt there can be no question of imputation of payment, or payment. 4 Marcadé No. 667 ; C. C. 2129.

There being but one debt, and that only to the extent of the price of the land, $9000, every dollar paid went to the extinguishment of that debt.

“It shall always bo intended, that if money is paid, it shall bo applied to the discharge of that which the debtor was legally owing, and not upon that which (so to.speak) he was owing illegally.” 9 Iowa 384; Smith, Twogood & Co. v. Coopers & Clark. “When the contract under whicli the wrong was perpetrated, and which has been in part performed, is brought before the courts by the immediate parties to it for further enforcement, reason and good morals, as well as law, dictate that, as far as possible, the wrong should be made right.” Ibid.

But if the courts of this State are powerless to recognize the existence of a debt for slaves at all, since the adoption of the constitution of 1868, and the iourteenth amendment to the constitution of the United States, and the question of imputation could have arisen under the contract, how would the payments have been imputed ? •

The imputations must bo made expressly and at the time of the payment, by one or the other of the parties, or the law will make it. C. C. 2160, 2102.

The record does not show that either of the parties expressly made any imputation — hence the law made it. How? By applying the money to the debt which the debtor had most interest in paying. After the decision of the case of Wainwright v. Bridges, and the numerous cases since decided, affirming the principles therein enunciated, the least that can be said of the titles to slaves is that they were precarious; and if precarious, the debtor had most interest in discharging the price of the lands.

In Hynes v. Cobb, 2 An. 364, this court said the amount promised to be paid in the note was composed of the sum loaned with twenty per cent, added thereto, on which interest was stipulated at the rate of ten per cent, after maturity. “An indorsement was made on the note of a payment of $240. Wo imputation is expressed in the receipt, nor otherwise shown. In an ordinary case the law would make the imputation to the interest. But the article of the code, which directs that imputation ninst be construed in connection with other rules in pari materia. One pi these is, where the receipt bears no imputation the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due.” 2 An. 262; 5 An. 620.

Bat I' consider that we have decided the precise principle involved in this case.

In Brou v. Becnel, 20 An. 254, the suit was tor the 'balance of notes given for lands and slaves. The answer alleged that the consideration thereof had failed by reason of the emancipation o. the slaves included in the sale, and that the full value of the land had been long since paid. The issue presented by the pleadings in that case was precisely the one now presented for decision. And this court said: “We conclude that Becknel can oppose the plea of failure of consideration as to both the personal arid real obligation; but the evidence does not show the relative value of the slaves and the other property sold; and we think that justice requires the remanding ot the cause to ascertain this fact, and the amount, if any, for which she is liable for property other than slave property.”

In Haden v. Phillips &. Foster, 21 An. 517, wo held that payments made on an obligation given for land and slaves must be credited on the price of the land. Why? Because “ the law will not presume that the payments made by hinfwere for their price, but must be held to have been made o-n that which was, and is property. And, besides, to make him pay the balance claimed, would virtually be enforcing a contract for the sale of persons, by mailing him pay more than the full value of the land and movables bought by him ? See, also, Dranguet v. Rost, 21 An. 538, and Armstrong v. Lecompte 527.

Again — Hortense Patin died in 1861, and on the twenty-eighth of December of that year, a sale of the effects of her succession was made. At the sale certain slaves were purchased by the heirs. In 1867 |an account was filed. The heirs opposed the account, alleging ¡that they were illegally charged with the amount of their purchases of slaves. There was judgment rejecting the opposition so fal-lís the inheritance of each was concerned, that amount being deemed lo be settled by confusion to. the extent of their purchases.

On appeal this court said,

| “We are constrained to think that the judgment was erroneous; Sender tire jurispiudenee of’the State, as well settled, the obligations contracted by the heirs, by their purchase of December, 1861, beingnuU and Boid, cannot be an elemént in either confusion or compensation. To recog-them as such would be practically to enforce them.” 19 An. 234; gonstitution, Art. 128; C. C. 2205, 2214. See 21 An. 661.

■ I feel authorized therefore to assume that the question presented jere has been decided; and I think the rule stare decisis should cod-trol us in cases like this, even if we doubted the correctness of the previous rulings; hut I am not convinced that there is error in these decisions; on the contrary my judgment approves the opinions rendered in Brou v. Becnel, Groves v. Clark & Carnal, Dranguet v. Rost, Armstrong v. Lecompte, Haden v. Phillips & Foster, and the succession of Hortense Patin. The plaintiff’s demand should be rejected.

Justice Howell,

dissenting.

I concur in the opinion of the Chief Justice, that the question involved in the controversy has been settled in several cases, decided during the recent summer terms of this court, in which the legitimate and logical application of the principles and doctrines of the Wainwright and subsequent similar decisions was made. See Haden vs. Phillips et al., 21 A. 517; Armstrong vs. Lecomte, ib. 527 ; Dranguet vs. Rost, ib. 538; Groves vs. Clark et al., ib. 567; Suc. Hortense Patin, ib. 661. The only theory on which the conclusion of the majority of the court, in this case, can in any way be reconciled with the existing jurisprudence on the subject, is that the contract has been voluntarily executed pro tanto by the parties as to the slave consideration. But a contract cannot properly be considered as executed, in the sense oí that term in this connection, as long as there is any portion of it to be enforced, and during such time, the debtor may set up any defense! he may have to its enforcement, and claim the benefit of any payments made by him. Without direct, positive proof that the payments wer< made on the price of the slaves, we should not, under our jurispru dence and the constitution, presume that they were so made. I cai but think that the decision in this case is in conflict with our jurispru dence on the subject.

Our Application for Rehearing.

In this case, the injunction having been maintained to the extent < the slave consideration, the costs of the lower court should be bon by the defendant.

It is therefore ordered that the judgment of this court, rendered c twenty-ninth November, 1869, be amended so as to make the defen< ant in injunction pay the costs of both courts; and the rehearii prayed for is refused.


author: Wylt, J.

text:
    No. 2495.
    Satterfield v. Spurlock; Spurlock v. Satterfield ; and Satterfield v. Spurlock ; cumulated.
    Where a sale of land and slaves was made before emancipation, and notes were executed for the price, and the purchaser aitcrwards reconveys or retrocedes to the vendor a portion of the slaves at a fixed price, and a credit is given to the purchaser on a particular obligation of his, given to the vendor as a part of the price of the sale, the vendor is bound by the act, although emancipation had taken place before it was passed. The vendor, having agreed to and accepted the retrocession, cannot afterwards invoke its immorality and nullity to avoid its effect.
    In a suit to enforce a contract founded on a mixed consideration, part land and part slaves, if the evidence fails to show what portion is for land and what i'or slaves, the case will be* remanded for the purpose of ascertaining by evidence the relative proportions of each.
    from tlio parish of Avoyelles — Edwards, J.

      J. II. Overton for plaintiff and appellee. A. E. Irion di E. North Cullom for defendant and appellant.
   Wylt, J.

On eighth October, 1857, Satterfield sold to Spurlock certain lands and movables, together with sixty slaves, in the parish of Avoyelles, for the price of one hundred and sixty-five thousand six hundred dollars, payable in ten equal annual installments, evidenced by notes for sixteen thousand five hundred and sixty dollars, each maturing respectively on eighteenth May, 1859, 1860, 1861, 1862, 1863, 1864, 1865, 1866, 1867 and 1868; and securing the payment thereof by special mortgage on the land and slaves.

On ninth October, 1857, as additional security to the first three notes (maturing in 1859, 1860 and 1861), Spurlock executed a special mortgage, in favor of Satterfield or any holder or holders of said notes, on Ms plantation and forty slaves which he owned previous to said purchase ; and Ms wife joined in said act, renouncing her tacit mortgage.

The first two notes were paid by Spurlock; but on failing to pdy the third, Satterfield sued out an order of seizure and sale against all the property mortgaged, which was enjoined by Spurlock on twenty-sixth of September, 1861.

On twelfth April, 1865, Spurlock, by notarial act, reconveyed to Satterfield thirty-seven of the slaves which he had purchased from him, estimating them at thirty-six thousand three hundred and fifty dollars. He also conveyed to Mm movables estimated at one thousand and thirty-five dollars, making in the aggregate thirty-seven thousand three hundred and eighty-five dollars given in payment of his indebtedness to Satterfield.

This sum was expressly imputed to the payment of the third note upon which the order of seizure and sale was granted, and the balance was imputed to the other note or notes then due.

And the said Satterfield further stipulated in said notarial act, that he specially ‘‘requires and authorizes the recorder of the parish of Avoyelles to erase and cancel the amount of thirty-seven thousand three hundred and sixty-five dollars on the mortgage retained by the sale of* the eighth of October, 1857, in the act of sale of E. H. Satter-field to Thomas J. Spurlock of land and slaves; applying the said sum, first, to the payment of the third note, principal and interest, that is as yet due and unpaid; and then if more than sufficient to the payment of the same, to apply the remainder to the payment of the fourth, fifth, etc., notes as it will suffice.” * * *

On seventh August, 1865, Satterfield obtained from the clerk of the District Court of the parish of Avoyelles a writ of provisional seizure, requiring the sheriff to seize and take into his custody all the cotton, cither baled or in the seed, found on the plantation heretofore belonging to said E. H. Satterfield and sold to said Thomas J. Spurlock; and also all the cotton found on the plantation belonging, on ninth October, 1857, to said Spurlock, and by him mortgaged to said Satterfield; and also about thirty-two bales lying at Simmsport, in this parish, as part of the crop of cotton raised on said plantations since and during the year 1861; also, all the stock attached to said plantations, and farming utensils thereupon found.” * * *

Under this writ, was provisionally seized by the sheriff a lot of cotton and movables on each of the plantations, viz: the one acquired from Satterfield and the one previously owned by Spurlock.

The pleadings are quite irregular, and do not fully present the prominent questions of controversy; but as proof disclosing them has been received without objection, we will consider the questions as though regularly stated.

The important question for consideration is : Did the act of retro-cession of the twelfth April, 1865, discharge the debt from Spurlock to Satterfield to the amount of thirty-seven thousand three hundred and eighty-five dollars, as stipulated in said notarial act ? If it was a discharge of debt, undoubtedly the note, upon which the order of seizure and sale was obtained, has been paid, because the amount of the giving in payment was first specially imputed to it.

If this note was thus discharged, then the plantation and slaves mortgaged on ninth October, 1857, as additional security, ceased to be encumbered. It was only mortgaged to secure this note and the two preceding ones, which were not in suit, having been previously paid Spurlock. As a consequence, the order of seizure and sale could not be enforced against the plantation and slaves owned by Spurlock previous to Ins purchase from Satterfield.

It appears that Satterfield, in April, 1865,-urged his debtor, Spur-lock, to reconvey to him part of the slaves, desiring to remove to Texas and still to cling to the desperate fortunes of the Confederacy. In answer, Spurlock replied that he would surrender them and certain movables valued at the prices of 1861; For which I want you to deliver me my third note and place the balance on the fourth as a credit, and authorize the recorder to erase the mortgage on my private property. In event, if tlie negroes ran off on account of your making an effort to remove them, it must be at your loss or risk. At present, they are all satisfied and doing well, and I am fearful that an effort to move them will cause trouble and loss. But at the same time, I know by right the property is yours, and therefore I will do all in my power to get them off with you.” ' •* * *

Spurlock also stated, in surrendering the slaves at that time, it would subject him to loss in his crops, having already planted, and he wished this taken into consideration. The terms’of the reconveyance or retro-cession were accepted by Satterfield, who informed Spurlock that: “If the negroes make their escape after I get possession of them, it will be my loss. All I ask, that they be put in line, named and delivered ; as you have them in possession, you can easily do it.” * * *

The agreement was carried into effect by notarial act, and the thirty-nine slaves and certain movables were given in payment of the exist-" ing indebtedness of Spurlock to Satterfield to the amount of thirty-seven thousand three hundred and eighty-five dollars, with the imputation and order for erasure of the mortgage, as heretofore stated.

Satterfield thus recovered the possession of part of the slaves which he had sold; he moved them to Texas in vain; they were emancipated, and he lost possession of them.

He now contends that the act of retrocession of twelfth April, 18G5. was unlawful, and he should not be bound by the pro tanto discharge therein granted on the obligation of Spurlock to him. That at that time the slaves he sought so anxiously to have reconveyed to him, were already emancipated, and the giving in payment was contra bonos mores.

This position cannot be maintained. He cannot expect this court to relieve him from the consequences of his own immoral transaction. If, for an immoral cause, he has granted an acquittance to the amount of thirty-seven thousand three hundred and eighty-five dollars on the indebtedness of Spurlock to him, imputing it to certain notes, and requiring and authorizing the recorder to make the erasure of the mortgage as heretofore stated, he certainly cannot expect this Court to relieve him. The policy of the law is to leave the parties where their immorality has placed them. The contract was executed, the giving in payment was carried into effect at the urgent solicitations of Satterfield, and he will not be relieved by this Court from the consequences of his own turpitude.

The objection that the title derived by the retrocession was defective on account of the claims of the heirs of Mrs. Spurlock is of no force. Satterfield had a mortgage and vendor’s privilege superior to the claims of any one : he was fully aware of the situation of the title; indeed, he was simply retaking, by consent, what he could have recovered by law had the slaves remained lawful objects of contract; but even if the heirs of Mrs. Spurlock bad valid claims to tbe objects retroceded, all be could do in. bar of tbe enforcement of tbe terms of that contract on him, if threatened with eviction, would be to require security against tbe disturbance of bis titles from that quarter. But we will not entertain tbe complaints of parties arising out of transactions reprobated by law. Tbe retrocession of slaves was, at tbe time, unlawful; it was executed, and this Court will grant no relief to either party.

As to tbe provisional seizure, we think it issued improvidently. The products of tbe predial estates accruing under seizure, cannot be held by the judgment creditor after the satisfaction of the writ under which the estates were seized.

Tbe giving in payment of the twelfth April, 18G5, discharged tbe note on which the order of seizure and sale was granted. It does not appear that plaintiff is the bolder of the fourth note of tbe series, although be is of the others.

We have arrived at the conclusion that the giving inpayment was an executed contract, extinguishing tbe indebtedness from Spurlock to Satterfield to the amount of thirty-seven thousand three hundred and eighty-five dollars, which sum was, by the parties, imputed to tbe third note, and the balance to the other notes next in order owned by the plaintiff.

Tbe discharge of the third note, being the last incumbrance on tbe property owned by Spurlock prior to his purchase from Satterfield, relieved that property from the mortgage.

As to the remaining notes, after the credit arising from the giving in payment of twelfth April, 18G5, we think they should be paid in proportion to the amount of the consideration thereof that was not for slaves. We cannot discover, from tire record, the proportion of the consideration for slaves, and, therefore, deem it proper to remand the base to ascertain the relative amount of the slave consideration in said notes which cannot be enforced. Tbe principle involved in Sandidge v. Sanderson, lately decided (21 An. 757), we deem applicable to this-case.

It is therefore ordered, that the judgment of the Court below be avoided and annulled; and it is ordered that the discharge of the indebtedness of Spurlock to Satterfield to the amount of thirty-seven thousand three hundred and eighty-five dollars, resulting from tbe retrocession of the twelfth of April, 1865, remain undisturbed, with the imputation as stipulated by the parties; that the third note, tbe one that was mature when the order of seizure and sale was granted, be considered discharged; that the mortgage granted by Spurlock on ninth October, 1857, on property owned by him prior to bis purchase from Satterfield, be also considered discharged; that the writ of provisional seizure be set aside at the costs of plaintiff therein; and that tbe cause be remanded to ascertain tbe relative amount of tbe slave and other considerations in tbe remaining notes of Spurlock filed in tbis cause by Satterfield, with instruction that no judgment can be rendered by tbe Court of tbe first instance for tbe slave part of tbe consideration of said remaining notes. It is further ordered that plaintiff pay costs of this appeal.

Rehearing refused.

Chief Justice Ludeling and Justice Howell absent.


author: Taliaferro, J.

text:
    No. 2410.
    State of Louisiana ex rel. A. J. Oliver et al. v. H. C. Warmoth, Governor, et al.—The State intervening.
    The writ of mandamus will not lie to compel the chief executive officer of the State to perform any act coming within the range of his duties as Governor.
    Under the division of powers as laid down in the Federal and State constitutions, the judiciary department has no jurisdiction over, or right to interfere with, the independent action of the chief executive, in the exercise of the functions of his office, even though the act he is required to perform he purely ministerial in its character. The question whether an act coming within the range of the duties of the chief executive is ministerial or political can not he determined judicially. It must rest with and he determined hy the chief executive himself.
    APPEAL from tlie Sixth District Court of New Orleans. Cooley, J.

      T. A. JBartleite, for relator, appellee. $. Belclen, Attorney General, and Henry C. Dibble, for defendants, appellants.
   Taliaferro, J.

This appeal is taken by the defendants and the intervenor from a judgment of the lower court, dismissing the intervention and rendering peremptory a mandamus issued upon the application of the relators against the Governor of the State to compel him to execute and deliver to them forty-eight State bonds, which, they allege, they are entitled to receive in payment of certain public work authorized to be done by the act of the Legislature, approved eighth of September, 1868, entitled An Act to provide for the improvement of the navigation of Bed river.” The State intervened, alleging that the act of the Legislature authorizing the issue of the bonds which the relators seek to obtain, is unconstitutional and void, on the ground that it is not in conformity with article one hundred and eleven of the State constitution. On the part of the defendants it is contended that the court is without jurisdiction of the subject matter; that it is not invested with power to compel by mandamus the chief executive officer of the State to perform acts within the sphere of Ms department. The defendants also allege the unconstitutionality of the act of the Legislature, under which the relators demand the bonds. That act authorized improvements to be made in the navigation of a portion of Bed river, above Shreveport, and provided for a survey and letting out of the work, and for payment for it, by State bonds to be delivered to the contractors upon completion of the work, and the presentation oí the certificate of the commissioners appointed on the part of the State that the work has been completed according to the contract. Section five provides that “the Governor of the State shall cause to bo prepared and printed the number of bonds necessary for delivery to the contractor,” etc., and which said bonds shall be signed by the Governor and countersigned by the Auditor and Treasurer, and delivered to the Auditor and issued by him to the contractors, etc.

The intervention, we think, was properly dismissed; the question of the constitutionality of the act can not be inquired into in this proceeding. The only inquiry is, as to the power or authority of the court to order by writ of mandamus the performance by the Governor of the acts required by the law to be done by Mm; and this requires us to refer briefly to the three divisions of power established in the foundation of the Federal and State Governments. In the organization of the United States Government its framers adopited, as a prin - ciple, that, in order to its stability and faithful administration, the powers of the Government should bo distributed between different orders of functionaries, watching and balancing each other. Three separate bodies of magistracy were therefore established: the legislative, the executive and the judicial. It was intended that the functions of these co-ordinate branches of the Government should bo conjointly exercised, but that the functions of each should be separately and distinctly exercised within its own sphere, and, as far as practicable, independently of those of the other branches. Neither branch is permitted to exorcise the powers appropriately belonging to another. An extreme jealousy of the least encroachment by one of the departments upon the powers of another has constantly existed ever since the adoption of the constitution of 1787; and very much of the political agitation that has arisen in this country had for its cause the alleged usurpation, by some one of the branches, of the powers and functions of another. The subject must always, from its nature, be a delicate one, and we accordingly find that, when cases involving-questions relating to such interference have been presented to the judiciary, either Federal or State, the courts have always proceeded with hesitancy and caution. Direct decisions on questions of this character are not numerous, and those determined by the State courts are not entirely in harmony with each other. Of the cases which have been presented to our consideration by counsel, a decided majority ignore the power of the judiciary to order by process of mandamus the performance of an act required by law to be done by the chief executive officer of the State. A difficulty of no inconsiderable magnitude, we apprehend, arises from the attempt to establish that a distinction is to be taken between an act purely and simply ministerial, and one in which a discretion to perform it or not remains with the executive, and thence to conclude that the performance of the mere ministerial act by the executive may be enforced by the judicial order of a court. We think this doctrine objectionable in this, that it accords to the judiciary the large discretion of determining the character of all acts to be performed by the chief executive officer, as being merely ministerial or otherwise. This would infringe the right of the executive to -use discretion in determining the same question. He must be presumed to have this discretion, and the right of deciding what acts his duties require him to perform ; otherwise his functions would be trammeled, and the executive branch of the Government made subservient, in an important feature, to the judiciary.

The celebrated case of Marbury v. Madison, 1 Crunch, p. 137, is one usually referred to in discussing questions of the kind under consideration, and different deductions have been drawn from it, so as to present authority on both sides of the question. The facts of the case are, that shortly before the retirement of the elder Adams from the Presidency, Marbury was appointed to the office of justice of the peace for the District of Columbia. His commission was made out, signed by the President, and the great seal of the United States attached. It was, however, not delivered before the expiration of Mr. Adams’ term of office; and, upon the incoming of the next administration, Mr. Jefferson instructed Mr. Madison, then Secretary of State, not to deliver the commission. Thereupon Marbury applied to the Supreme Court of the United States for a writ of mandamus ordering the Secretary to deliver the commission. The court decided that it had not original jurisdiction oí the case, and dismissed the application; but intimated very clearly that the writ might be issued by a competent court. But this case affords no satisfactory guide in deciding the one at bar. From tiie scope of the reasoning in the Marbury case, and in its entirety, we find nothing clearly announcing that a mandamus could properly be directed to the President of the United States ordering him to perform any act within the range of his official duties. In that case the court seems to have assumed that, over the matter involved, the President had no further control; that it had passed beyond his jurisdiction or cognizance; that all the action he was required to take in it had been taken; that ho had no further interest or concern about it; that it was not incumbent upon him to deliver the justice’s commission, and that he had not been required to deliver it; that the commission lay in the Secretary of State’s office, to be given to the appointee when he applied for it; that the act to bo done was simply the manual delivery of the document by the Secretary, or one of his clerks, to Mr. Marbury, and that, under this state of facts, the mandamus, had one been directed to the Secretary to perform the act, would have been no encroachment upon the rights of the executive. A right in the judiciary to interfere with or encroach upon the rights or functions of the executive is distinctly and ox industria disavowed. Nevertheless, it is a matter of history that Mr. Jefferson, one of the founders of the Government, and well versed in the knowledge of its character, eminent as a statesman and politician, and respectable as a jurist, never conceded the correctness of the views taken of that subject by the very learned and able Chief Justice, and ever held that the doctrine enunciated in the oMter dictum of Judge Marshall sanctioned an encroachment upon the powers of the executive department which is incompatible with their independent exercise.

When the official acts to be performed by the executive branch of the Government are divided into ministerial and political, and courts assume the right to enforce the performance of the former, it opens a wide margin for the exercise of judicial power. The judge may say what acts are ministerial and what political. Circumstances may arise and conditions may exist which would require the Governor of a State in the proper exercise of his duty, and with regard to the interests of the State, not to perform a ministerial act. Is the judge to determine his duty in such a case, and compel him to perform it ? The reasons of the executive for the non-performance of an act the judge may never know, or, if brought to Ms knowledge, he may review and overrule them, and, in so doing, assume political functions. He would determine in such a case the policy of doing the act. Tiie legislator himself who prescribed the act might hold the executive harmless, while the judge condemned him. In cases whore the question of the right of State courts to issue writs of mandamus compelling the chief executive officer of the State to perform acts appertaining to his functions, we find that decisions adverse to the existence of such right have been rendered by courts of the last resort in Maine, New Jersey, Illinois/ Missouri, Arkansas, Georgia and Texas, to which may also be added a very recent case decided in Rhode Island. In Ohio and North Carolina a different view has been taken. It was held in these States that a mandamus might issue against the Governor of a State to compel the performance of mere ministerial acts. Of the decisions of this question in our sister States, those determining against the right of the judiciary to interpose its authority in matters relating to the duties and functions of the executive department, we regard as greatly preponderating in number and weight of authority.

A case decided in Illinois, in 1857, The People ex. rel. v. Bissell, 19 Illinois Reports, 230, is identical with the one before us. An application was filed by the relator asking for a writ of mandamus commanding the Governor' of Illinois to issue to the relator certain interest bonds or certificates to which he claimed to be entitled. In that case the Supreme Court of Illinois said: We have no power to compel either of the other departments of the Government to perform any duty which the constitution or the law may impose upon them, no matter how palpable such duty may be, any more than either of those departments may compel ns to perform our duties. The Governor is and must be as independent of us as is the Legislature,'or as we are of either of them. So far as the question of pdwer or jurisdiction is concerned, there can be no difference whether the act or omission may affect one or many; whether it may be prejudicial to the rights of an individual or the whole community. What difference, whether the executive act required by law be to order an election, or appoint an officer, or issue a bond? Upon the Governor alone must the responsibility rest of acting, or refusing to act.”

A member of the court concurring adds : “ The executive has certain duties imposed upon him by the constitution and the laws of the State. Should he fail to perform them, without justifiable reasons therefor, and the public be injured, impeachment and deprivation of office would follow. This court has no control over him to compel him to perform any public duty. In his sphere he is independent of the court. Should he consent to appear, asking our opinion on a point of duty, it would bo readily given. We can not compel him to appear, and no order we might issue for such purpose could be available should he resist. In matters of public duty we remit him to the high tribunal of his own conscience and the public judgment.”

A supervisory control by one of the co-ordinate branches of the Government over the functions and duties of another branch would necessarily diminish the responsibility of the branch whose functions were encroached upon. The more distinct and independent the action of public functionaries, the stronger and more direct their responsibility. This ground of responsibility was doubtless one of the x>urposes aimed at by the framers of the Government, in the separation of powers. Constitutional provisions were wisely made for the punishment of officials, however exalted, for dereliction of duty. But, at the same time, something was necessarily to be intrusted to the intelligence and probity of the officer, who, from a consciousness of the trust and confidence reposed in him, would be thereby induced to discharge his duties honestly, from a sense of honor and propriety.

We are satisfied, from the views we have taken of this subject, that there is error in the order of the court below rendering the mandamus peremptory. It is therefore ordered, adjudged and decreed that the judgment offthe lower court be annulled, avoided and reversed. It is further ordered that the writ of mandamus be set aside and discharged, the relators paying costs in both courts.

Rehearing refused.


author: Wyly, J.

text:
    No. 1782.
    Valery Sulakowski v. Cyrus Flint et al.
    Tlie owners of a sea going vessel are responsible in solido, as common carriers, for money or gold taken on board as freight to be transported and delivered at the port of destination.
    Where the evidence shows that the captain of the vessel received money on board of the ship as freight, and afterwards applied it to the payment of the expenses of the vessel on the trip, the owners of the vessel are liable in solido, for the amount thus received by the captain.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      N. II. Bightor, for plaintiff and appellee. Hornor & Benedict, for defendant and appellant.
   Wyly, J.

The plaintiff claims of the defendants $815, in specie, with interest from — day of July, 18G0, for this: On ninth June, 1866, he drew a certain draft on the house of D’Oleire & Co., at Vera Cruz, said draft being made payable to bearer; “that he intrusted the same for collection to N. B. Merrill, captain of the steamer Potomska, plying between the port of New Orleans and the city of Vera Cruz, the same being' payable in gold, for the sum of thirteen hundred and nine dollars, the proceeds thereof to bo brought to this city as freight on said vessel; that in pursuance of said contract, the captain took charge of said draft, and collected the amount thereof, which he applied to the payment of the expenses of said vessel, of which the said New and Flint were part owners at the time, and for whose use and behoof the expenditure of said fund did inure.”

Plaintiff admits ho received $494 of said fund, leaving the balance due him as aforesaid, for which he prays judgment.

Tlie defendant, Cyrus Flint, who alone was cited, excepted to plaintiff’s petition, on the ground that it sets forth no cause of action against him. This exception was overruled by the court, and judgment was finally rendered on the merits in favor of the plaintiff for the amount claimed.

The defendant, Flint, has appealed.

The peremptory exception that the petition disclosed no cause of action was not well taken. It distinctly sets forth that the captain undertook to bring to this city, on freight, a sum of money in gold, on the vessel of which the defendant was part owner, which fund he applied to the payment of the expenses of said vessel, except $494 thereof, which was paid over by him.

The substance of plaintiff’s.case is plainly set forth; there is no obscurity or duplicity in the pleadings to surprise the defendant, and a judgment in favor of the latter would form res judicata; he can not, therefore, complain. 6 N. S. 128; 3 L. 292; 1 Rob. 470; 2 An. 655.

Our attention is directed to the bills of exceptions taken by the defendant to the introduction of the evidence. The first is as follows: The counsel for the plaintiff offered the testimony of Wm. Duncan and John Gilbert, to prove that the proceeds of a certain draft belonging to plaintiff had been used by Captain G. H. Merrill for the expenses of the steamship Potomska. The objection of the defendant was, that the testimony was hearsay, and not binding on defendant, Flint, who was not present; that there was no contract of affreightment, and the owners were not responsible for the funds of plaintiff as common carriers, no admissions of Captain Merrill being admissible against them; and that no bill of lading having been signed, and no freight charged, the vessel was not responsible, nor were the owners; and, therefore, the testimony was inadmissible as against them.

We think the District Judge did not err in overruling the exception. The plaintiff had the right to introduce the evidence of the witnesses to prove that his funds, collected by the captain, had been used to pay the expenses of the vessel, and that the admissions of the captain that he had done so could be proved by the witnesses; his admissions wore-not hearsay; a bill of lading or contract of affreightment is not the only evidence to establish the liability of the vessel and its owners for property taken on freight. Parol testimony is admissible to establish their liability as common carriers.

The next bill of exception is, that plaintiff’s counsel offered to prove by Y. Sulakowski, then on the stand, that Captain Merrill stated under oath, he had used the balance of my money for the benefit of the vessel in purchasing coal and provisions.”

The defendant’s objections were, that no bill of lading having been signed, and no freight charged, the vessel was not responsible, nor were the owners, and therefore the testimony was inadmissible against them; also, that there was no contract of affreightment, and the owners were not responsible as common carriers for plaintiff’s funds, and no admission of Captain Merrill was evidence as against them.

We see no force -in these objections, and think they were properly overruled.

The third bill of exceptions was to the admissibility of the testimony of the same witnesses to prove the funds of the plaintiff had been received on board the vessel and used by the captain for the purchase of coal and provisions.

This objection is but a repetition of the other two bills of exceptions, and we think the court did not err in admitting the testimony.

On the merits the case is clearly with the plaintiff. There is no doubt that the specie was received on freight on board the steamer Potomska, and that the captain used the amount thereof claimed, in payment of the necessary expenses during the voyage.

This case is not analogous to that of the Mechanics’ and Traders’ Bank v. Gordon, 5 An. 606, on which the defendant relies. There, Gordon, the captain, was merely the depositary of a letter or package, in the shape of a letter, and did not know whether it contained money or not. There was no information communicated to him to induce him to distinguish the package from others. It was notorious1' that letters and packages of those patronizing the boat were put into the letter box or clerk’s desk, and this was the care which was ordinarily given or expected, however valuable the letters or packages to the correspondents.

Under this state of facts, the court in that case held that neither the boat, nor the captain, was liable for the loss of the letter or package. In the case before us, however, the specie was received on board the vessel, and the amount thereof sued for was used by the captain in paying its expenses. Whether there was a bill of lading or not, the common carrier can not escape the liability attaching for the freight received on board the vessel. The defendant, as owner, became liable to solido, with the other owners for the funds of the plaintiff received on freight by the captain, and applied by him in the voyage for the benefit of the vessel. The act of Congress of third of March, 1851 (9 United States Statutes, 635), limiting the liability of shipowners for losses and injuries, to which we have been referred, has no application to the demand of plaintiff for the recovery of his funds on freight, used by the captain for the benefit of the vessel, of which the defendant was part owner.

On the whole, we are satisfied that the judgment appealed from is correct.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 1899.
    The State of Louisiana v. Ammey Bruington.
    The jurisdiction of the Supreme Court in criminal cases is limited to questions of law, and questions of fact as to the regularity of the drawing of the jury will not be examined on appeal.
    APPEAL from the First District Court of New Orleans. Howe, J.

      O. H. Lunenburg, District Attorney, for the State. J. & G. G. Lisle, for defendant and appellant.
   Ludeling, C. J.

There were no bills of exceptions taken in this case, and we are asked to set aside the verdict of the jury and the judgment of the court, on what purports to be an assignment of errors,, to wit: The defendant assigns for error — -The court erred in overruling the defendant’s motion for a new trial for the reasons set forth in his rule taken on the Attorney General. Defendant contends that there was irregularity in the drawing and impanneling, both of the grand and petit juries, and that the finding of the indictment of the grand jury was void, and the proceedings under the panel of the petit jurors were also irregular, and ought to have been set aside and a new trial granted.” There is nothing in the record to show that the allegations in the motion for a new trial are true, or which authorizes this court to consider them, our jurisdiction in criminal cases being limited to questions of law.

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

Mr. Justice Howe recused.


text:
    No. 2108.
    Succession of Charles Liddell.—On the Opposition of Mrs. Louise Liddell.
    The decree of separation from bed and board does not dissolve the bonds of matrimony, and the surviving widow thus situated, if in necessitous circumstances, may recover the amount of one thousand dollars, allowed by the a'ct of 1852, from the estate of her deceased husband. C'. C. 133.
    If a reconciliation tabes place after the decree of separation, the judgment is a nullity. O. C. 149.
    APPEAL from Second District Court of New Orleans. Buvigneaud, J.

      Koonts & JSlliott, for administrator, appellant. Brice <& Mitchel, for opponent, appellee.
   Wyly, J.

The administrator has appealed from the judgment maintaining the opposition of Mrs. Louise Liddell to his account, and allowing her one thousand dollars, under the Homestead Act of 1852, as the destitute and necessitous surviving widow of Charles Liddell, who died December, 31, 1867, without issue. He contends that she is not entitled to the benefit of said act because she was not the surviving widow of Charles Liddell, he having obtained in the Fifth District-Court of New Orleans a judgment of separation from bed and board, from her about one year before his death.

Mrst — She contends that that judgment is a nullity as appears on.tho face of the papers, because she was not authorized by her husband or the court to appear and defend the suit, as required by articles 123 and 126 of the Civil Code.

Second — That after said judgment there was a reconciliation.

Third — That said judgment, if valid, is no bar to her recovery of the homestead allowed by act of 1852; that even though separated from bed and board, she remained the lawful wife of Charles Liddell, the bond of matrimony not being dissolved, as declared by article 133 of the Civil Code.

In support of the last position, she refers us to the decision in Hannah Gee v. G. W. Thompson, 11 An. 657, which seems to be directly in point. In that case the widow separated from bed and board from her husband, and in necessitous circumstances, was permitted to recover the marital fourth under article 2359 of the Civil Code, on the ground that — “ The civil and common law writers agree that the decree of separation of bed and board does not dissolve the bonds of matrimony.” 11 An. 657.

If Hannah Gee, a necessitous widow, was permitted to take from the succession of her deceased husband the marital fourth allowed by article 2359 of the Civil Code, on the ground ,that the bond of matrimony was not dissolved by the decree of separation of bed and board, we do not see why the widow 'of Charles Liddell, similarly situated, should not take from the succession of her husband the amount allowed by the Homestead Act of 1852.

The act of 1852 declares that: “Whenever the widow or minor ■children of a deceased person shall be left in necessitous circumstances and not possessed in their own right property to the amount of one thousand dollars, tho widow or legal representative of the children shall be entitled to demand and receive from the succession of their ■deceased father or husband a sum which, added to the amount of the property owned by them, or either of them, in their own right, will make up the sum of one thousand dollars, which said amount shall be paid in preference to all other debts, except those of the vendor’s privilege and expenses incurred in selling the property.” Acts of 1852, page 171.

Under article 133 of the Civil Code, and the decision in Hannah Gee v. G. W. Thompson, 11 An. 657, and the authorities there cited, we are bound to regard the opponent, Louise Liddell, as the surviving widow ■of Charles Liddell. The evidence shows that she is in necessitous circumstances, and that Liddell left no children.

The District Judge who heard the delivery of the testimony (which is conflicting), arrived at the opinion that there was a reconciliation after the decree of separation. At least two witnesses, who appear to ■be disinterested, swear that ho returned to the marital domicile; and they testify to facts which, if true, establish a reconciliation beyond doubt. There is a large amount of negative testimony, however, but none to contradict the facts testified to, which are the best evidence of reconciliation. On this point we are inclined to adopt the opinion of the Judge who heard the witnesses deliver their evidence. Indeed, he seems to have carefully considered the case, and to have decided it according to the law and the evidence.

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

Rehearing refused.

Absent — Chief Justice Ludeling and Justice Howell.


text:
    No. 2521.
    Daniel Mulligan v. City of New Orleans.
    Where the certificate of the clerk of the court below shows that a portion of the evidence adduced has been lost, and is not contained in the record of appeal, the case will be remanded to be tried anew.
    APPEAL from Sixth District Court, parish of Orleans. Cooley, J.

      Colton & Levy, for plaintiff and appellee. J. B. Beckwith, City Attorney, for defendant.
   Ludeling, C. J.

The appellee has moved to dismiss this appeal, on the grounds that the certificate of the clerk is insufficient and incomplete, and the transcript does not contain all the evidence and documents adduced on the trial.

The certificate of the clerk is as follows: I, Wm. Woelper, clerk of the Sixth District Court, do hereby certify that the above and foregoing eight hundred and thirteen pages do contain a true and correct transcript of all proceedings had, as well as of all documents filed and evidence adduced on the trial of the cause wherein Daniel Mulligan is the plaintiff, and City of New Orleans is the defendant, instituted in this court, and noio of the records thereof, under the No. 77, with the exception of the certificate of Mount, City Treasurer, and certificates Nos. 302 and 303, offered in evidence, as per note of evidence filed July 24,1869, which three documents are missing from the records, and can not be found, although due and diligent search has been made,” etc.

Prom this certificate it does not appear that the record contains all the proceedings had, documents filed, and evidence adduced on the trial, ■except the missing documents mentioned, but only such of them as were of record when the certificate was made. The certificate is defective. But that is no cause for dismissing an appeal. Statute of twentieth March, 1839, p. 170, sec. 19. .

It appears, however, from the certificate of the clerk, that a part of the evidence filed on the trial is lost 5 and this loss is not attributable to the fault of the appellant. It would be a vain thing to grant time to correct tlie certificate, or to supply tlie missing documents, as tlie clerk lias certified that they can not be found. Justice demands that the case should be remanded to the court a qua to be tried anew. 5 An. 602; 1 An. 246; 12 An. 83; 13 R. 477 ; 5 N. S. 100; 13 L. 82.

It is therefore ordered that the judgment of the District Court be avoided, and that this cause be remanded to the lower court to be tried ele novo. It is further ordered that the costs of this appeal be paid by the party who may ultimately be cast in this suit.

Howell, J., absent.


text:
    No. 2238.
    Succession of C. H. Millaudon.—On opposition of Matthias Schumert to Executor’s Account.
    A judgment of tho probate court, declaring a seizure of succession property null, on tlie ground that nothing tangible had been seized, is conclusive against the seizing creditor, and the probate court is competent to pass on the merits of an opposition to a tableau filed by the seizing creditor, notwithstanding an appeal is pending from the judgment declaring the seizure null.
    APPEAL from Secoud District Court of New Orleans. Duvigneaud, J.

      John 8. Tully, for opponent, appellant. . 0. Dufour, for executor, appellee.
   Taliaferro, J.

C. H. Millaudon, son of Philip Millaudon, who died before the son, and whose widow married Adolphe Tamboury, left a will by which he gave to his mother one-fourth of his estate, one-fourth to his step-father, Adolphe Tamboury, one-fourth to the minor sisters of the testator, and one-fourth to his widow. Tamboury renounced the legacy, and the fourth part bequeathed to him went to the minor sisters. Generes, under tutor to these minors, children of Mrs. Tamboury, by her first husband, brought suit for the minors against her as tutrix, and on the seventh January, 1869, obtained judgment for $15,305 58 with interest, recognition of tacit mortgage, etc., against the property of both Mrs. Tamboury and her husband. On the same day process of garnishment was taken by Generes, under tutor, against Adolphe Tamboury, the executor, upon an execution issued upon that judgment. The executor was cited, and answered on the ninth of January. A sale was made by the sheriff of all the right, title and interest of Mrs. Tamboury in the succession of C. H. Millaudon, and it was bought by the under tutor. The act of sale was registered in the conveyance office. The judgment was recorded in the mortgage office the twelfth of January.

Schumert, the opponent in this case, as assignee of Docteur, who hold a judgment against Tamboury and his wife, issued execution on the sixteenth of December, 1868, and the sheriff returned that he had seized, on the nineteenth of that month, “ all the rights, title and interest of the defendants in and to the succession of C. H. Millaudon, as well as all of said defendant’s interest in and to tlie property and effects of said succession.” Notices of this seizure were served within a few days afterwards upon the clerk of the Second District Court, the two executors, and also on A. Tamboury, administrator of the succession of C. H. Millaudon. A sale of the property thus purporting to have been seized was advertised. An injunction was taken out, and a rule served upon the seizing creditor to show cause why the seizure should not be annulled and set aside. It was annulled on trial of the rule, on the ground ihat Tamboury had made a surrender of his property, and had placed Schumert on his bilan as a creditor; that no proceedings could legally be taken against the insolvent by seizure of his property; that in point of fact, no valid seizure had been made, for the reason that the sheriff had seized nothing tangibly or constructively. From this judgment the defendant in rule appealed to this court. The appeal was dismissed, on the ground that there was nothing showing the value of the rights seized, nor anything authorizing this court to take jurisdiction of the matter.

On the first February, 186!), the executor filed his account, and Schumert presented an opposition to it on the sixth of that month. He alleges that the executor has failed to place the claim of himself and wife on the account filed by him in its proper position or rank; the opponent averring that he had taken a suspensive appeal from the judgment annulling his seizure, and that the interest and those of his debtors in the succession-of Millaudon were subject to the seizure, and that his claim should have been set down upon the account as entitled to privilege by virtue of the seizure.

The opposition was dismissed, and the opponent has appealed.

This opposition, it will be observed, was filed and acted upon by the lower court prior to the dismissal by this court of the opponent’s appeal from the judgment annulling the seizure averred by him to have been made of the interest of his debtors in the succession of Millaudon.

We think the judgment rendered between the parties on the issue relating to the seizure made by the appellant precludes further controversy on his part as to the privilege claimed by virtue of the alleged seizure. With this view of the case, we conclude the decree of the lower court should not be disturbed.

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

Rehearing refused.

Justices Howell and Wyly absent.


text:
    No. 1871.
    Matthew Watson v. The Planters’ Bank of Tennessee.
    A party seeking to avoid a contract on tile ground o£ error must slimy that fraud, force or improper influences were perpetrated by tlie other contracting party. The allegation that he signed the written contract without reading it or knowing its contents, will not relieve him under the plea of error.
    APPEAL from the Fourth District Court of New Orleans. Tliéard, J.

      Sullivan, Billings & Hughes, for plaintiff and appellee. Thomas Hrnvton, for defendant and appellant.
   Howell, J.

The plaintiff alleges that in July, 1863, he made an agreement with W. A. Johnson, as agent of the Planters’ Bank of Tennessee, to invest a large sum of Confederate treasury notes in cotton, which the said bank was to sell and pay to him an equal part of the proceeds thereof; that on the first of August following ho signed a written agreement or contract in the premises, without reading it, believing it to contain the terms of the agreement made by him, and that he made the investment and shipped the cotton in accordance with his understanding of the contract; that the cotton was sold, and his share of the proceeds amounted to over $20,000; but that, to his surprise, when, in 1866, he demanded his portion and, for the first time, read the written contract, he found it to vary materially from the terms agreed on, and that by it he was to receive only one-third of the profits after refunding the sum advanced by the Planters’ Bank. He avers that he signed the said document in error, and never would have signed it had he known the terms thereof, and he asks judgment against the bank for the sum due him under the contract as set out by him. The answer sets up a general denial, admits the adventure, and maintains the written contract under which plaintiff has been paid.

The plaintiff has failed to allege or prove such error as will relieve him. The only error alleged is in signing a written contract without reading it, believing it to contain the terms of an agreement as he had understood them, which, in the absence of any charge or proof of fraud, force or improper influences upon the part of the other contracting party, is not an error from which the law will relioTo him. C. C. 1818, 1841.

In this case the plaintiff has no one but himself to blame for signing an agreement different from the one which he says he agreed to make. It was made out in duplicate and left with a third party for the plaintiff to sign, which he did'in the presence of said third party, and without any representations or statements authorized by the defendant or agent.

The written contract is sustained by the testimony of the agent as correct, and under it the plaintiff has received his portion of the profits, except a small balance in the hands of the agent, who holds it, as he did the whole amount, subject to the order of plaintiff.

Is is therefore ordered that the judgment apx>ealed from be reversed,, and that there be judgment in favor of defendant, with costs in both courts.


text:
    No. 2468.
    State of Louisiana ex rel. Andrew Hero, Jr., v. William J. Castell.
    The office of City Notary of the city of New Orleans, not being created or recognized by tho charter, is not a municipal office, and the provisions of the act of 1868, No. 156, usually termed the Intrusion Act, can not be invoked in a contest between two notaries for the position.
    APPEAL from the Fifth District Court of New Orleans. Beaumont, J.

      Hornor & Benedict, for plaintiff and appellant. T. Gilmore and /. IT. Ilsley, for defendant and appellee.
   Taliaferro, J.

This is a contest for office. The suit is brought under the Intrusion Act of 1863, p. 199. Both claim the office of city notary; the relator by virtue of an election by the City Council, in June, 1868, the defendant by an election of the City Council in June, 1869. The relator alleges the election of the defendant to he null, on the ground that the City Council itself, at that time, was not a legally constituted body, and that the election was held at a time different from that established by law, and that no legal election having taken place since the expiration of the term for which he was elected, beholds over and is legally in office until a successor is regularly elected. The defendant filed a peremptory exception, averring that relator has no cause of action; that the act of the Legislature under which the relator proceeds has reference solely to public offices and franchises; that the office of city notary is unknown to the law, and that it does not come within the purview of the Intrusion Act.

The exception was sustained by the lower court and the suit dismissed. The relator has appealed.

We do not find that the city charter authorizes or establishes the office of city notary. The charter declares there shall be a city attorney, a treasurer, a surveyor and one assistant attorney, but is silent as to a city notary. The act of 1868, usually termed the Intrusion Act, embraces both State and municipal offices of a public nature, and which are known to the law as such. The City Council, for its convenience and for the facility of business, selects a notary public, specially to draw up such deeds and instruments as may be required, and he is called city- notary. We regard his office as one merely incidental and subordinate, and not to be considered as of that character of public office contemplated by the Intrusion Act.

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


text:
    No. 1858.
    Charles J. Leeds v. Louisiana Manufacturing Company.
    A decree of the court rendered on a rule to compel the sheriff to credit a writ of seizure with a balance in his hands is a final judgment, and no appeal lies until it is signed by the judge.
    APPEAL from the Fourth District Court of New Orleans. Théard, J.
    D. 0. Ldbatt and Edward Eawle, for plaintiff and appellant. G. B. Singleton and E. Bermudez, for defendant and appellee.
   Howell, J.

This is an appeal from a judgment dismissing a rule taken by the plaintiff on the sheriff, to compel the latter to credit the writ of seizure and sale issued in this case, with the balance which plaintiff alleges should be in the sheriff’s hands, after paying all the legal costs, charges and taxes, and in addition to the amount recovered by the plaintiff on the writ. The judgment is, in its nature, a final, ■and not an interlocutory one, and not being signed, can not be revised on appeal.

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

Rehearing refused,