author: Egan, J.

text:
    No. 7046.
    Mary M. Pendegast, Administratrix, vs. Geo. Schawtz et al.
    The allegation of a plaintiff in a suit to recover property, (alleged to be unlawfully in the defendant’s possession) that he had bought the property, but had never paid for it, and hence that it still belonged to the vendor, is not a disclaimer of title, which can be pleaded by defendant in estoppel, in a subsequent suit to recover the property, brought by the legal representative of the plaintiffs.
    A defendhnt can not dispute the title of the person under whom he holds.
    Not only good faith, and possession of real estate for ten years is required, but also a legal and transferable title of ownership is required in order to acquire said property by prescription.
    The ownership acquired in virtue of a confiscation sale, under the net oí Congress of 1862 amounted to a mere usufruct. It was and could bo only imperfect, and was to terminate with the life of him against whose interests and property the confiscation proceedings were directed. There is wanting therefore in the title of one who purchased the property at a confiscation sale the quality of ownership necessary to enable him to prescribe.
    The fact that the price paid by a purchaser of property at a confiscation sale was used to pay off a pre-existing mortgage on the property, does not entitle such purchaser to demand that he shall be refunded the price, when, atthe expiration of his usufruct, the owners of the property call on him to restore it to them. Nor can he demand that he shall be re-imbursed what he has expended for repairs, and taxes on the property.

      APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J.

      Herron, Bird & Beale for plaintiff and appellee.

      J. W. Burgess and R. & E. L. Posey for defendants and appellants.
   The opinion of the court was delivered by

Egan, J.

This suit is by the administratrix of the late Michael Pendegast, who was also his surviving wife, to recover from the defendants a lot of ground-and improvements purchased under what is usually termed the Confiscation Act of Congress of the seventeenth of July, 1862, aDd sold as the property of Michael Pendegast. The latter died on the eighteenth of March, 1870, and this suit was instituted on the twenty-first of March, 1876. The defendants set up by way of defense — ■

First — That the plaintiff can not recover, by reason of the judicial disclaimer of title by Michael Pendegast in a suit to recover the same property as heir of his father. To this it is sufficient to reply, 1, that the allegation relied on was that he bad bought the property and never paid for it, and therefore it belonged to the vendor, a state of facts which did not divest him of title according to his own allegations. 2, that it was adjudged in that suit that he had title as purchaser and not as heir, and that he could not thus avoid the effect of the confiscation sale, which was therefore protected by the judgment; and lastly, that the only rights acquired by the defendants were by virtue of that confiscation sale of the property in controversy as belonging to Michael Pendegast whose original title they could not therefore dispute, as they held under him.

The second ground of defense is the prescription of ten years, based upon alleged possession in good faith for more than that time under a title translative of property. Not only good faith and possession for the time required by law, but also a legal and transferable title of ownership are requisite to acquire property by this species of prescription. This only is that just title which is required. O. O. 3479-3483. The ownership or right acquired by the defendants under the confiscation sale was and could be only imperfect, and was to terminate with the life of him-against whose interests and property the proceedings in confiscation are directed. C. C. 490. Section 3, article 3, of the Constitution of the United States, 7 Wallace, 339, 9 Wallace, 339,' and joint resolution of Congress of the same date with the confiscation act on the same subject. Had, however, Congress not interpreted their act by their resolution, as was held in the oases cited, the claim that it possessed any war or other power superior to the Constitution can receive no sanction from this tribunal, and, we trust, from no other American court at this day. There was then wanting that essential element in defendants’ title to enable them to prescribe — there was no title of perfect ownership, but only a right with us called usufruct, and elsewhere called a life estate during the life of Michael Pendegast. This would not support prescription as to the full or perfect ownership against any one, still less against the representatives or heirs of him under whom, and under whose title alone they claim, or can claim, even that imperfect right. The defendants claim, in any event, that the succession should be compelled to repay to them the amount of a mortgage existing against the property at the time of the confiscation sale, and which is claimed to have been reserved and paid out of the price of the purchase. They claim, also, the value of certain necessary repairs put down in the brief of counsel at $25 per annum, or $325 for thirteen years, and, also, the taxes during their possession since the confiscation. As to the claim, to be repaid the amount of the mortgage, it is sufficient to remark that it was paid not in addition to but out of the purchase price, which would otherwise have gone entirely into the hands of the Marshal, and that they paid no more by reason of the existence of the mortgage than they would otherwise have done. Their bid was regulated by the value of the right in the property belonging to Pendegast which was subject to the mortgage, and the whole amount of that bid was the consideration for the life estate or usufruct acquired by them, the duration of which depended on the uncertain event, the death of Pendegast. To repay the mortgage debt would be to return to the defendants the very consideration which they paid for the enjoyment of the property during all these years. Had they paid it otherwise there might be some pretext for its restoration; not so, however, when it was only paid out of the price, which was in no manner increased thereby.

The fact that the mortgage creditor instead of the Government was allowed without .contest by the latter to receive so much of the price bid, by virtue of a pre-existing right, is no more reason for its repayment than for that of any other part of the purchase price. As to the claim to re-imbursement for necessary repairs and taxes, these are charges imposed upon the usufructuary by the express provisions of the law, O. C. 570, 571, same, 578, and can afford no basis of claim by the defendants against the plaintiff. As to the statement of account pro and con in the defendants’ brief, accepting the figures as correct, it would only prove that had Pendegast lived longer the defendants’ rights acquired at the confiscation sale would have been more valuable because longer enjoyed.

¥e have-not been asked to amend the judgment as to the time from which rent should be charged against the defendants.

The judgment of the court below was in favor of the plaintiffs for the recovery of the property and rent or lease price from judicial demand. It is correct, and is affirmed.


source: Caselaw Access Project

author: Manning, C. J. Marr, J. Spencer, J. Egan, J.

license: Public Domain

text:
    No. 7014.
    School Board vs. Emile L. Weber et al.
    State and narish officers, and the sureties on their official bonds maybe sued, on account of any malfeasance of such officers, in the courts of the p'arish in which the officers exercise, or may have exercised their functions, no matter where their domiciles may be.
    APPEAL from the Seventh Judicial District Court, parish of West Baton Rouge. Yoist, J.

      Joseph P. Golsan, District Attorney pro tem., and Henry C. Meyers for defendants and appellees.

      Wickliffe & Fisher for plaintiff and appellant.
   The opinion of the court on the original hearing was delivered by Manning, C. J., and on the rehearing by Egan, J.

Manning, C. J.

Weber was formerly treasurer of the School Board of West Eeliciana, and this suit is upon his official bond, in which judgment is sought against him and his sureties. The suit was filed in Oct. 1877, and it seems that Weber had changed his residence to Ascension in the preceding January.

On Nov. 9, 1877, he pleaded to the jurisdiction, and on same day filed an exception, but with express reservation of his rights under the former plea, and without prejudice thereto. On 17th. of same month, he answered and in his answer, reconvened. There was no reservation of any rights under the plea to the jurisdiction in the answer, nor do the minutes shew that the court received it without prejudice to that plea.

The lower court sustained the plea to the jurisdiction, and dismissed the suit as to all parties — the grounds of dismissal as to the sureties being, that no judgment could be rendered against them until the amount of the defalcation of the principal shall first be judicially ascertained.

Prior to 1861, the Code of Practice declared the general rule in civil matters to be that one must be sued before the judge having jurisdiction over the place of his domicil, but that the rule was subject to several exceptions, art. 162. In that year, that article was amended so as to read — “it is a general rule in civil matters that,one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicil or residence, and shall not be permitted to elect any other domicil or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided by law.” Acts 1861, p. 137.

The two particulars in which the article was amended are, that the privilege of electing a domicil for the purpose of being sued was expressly denied thereafter, and the clause that the rule is subject to several exceptions is altered to read, that it is subject to those exceptions expressly provided by law.

Sec. 2. chap. 2 of the Code of Practice treats of the tribunals before which actions are to be brought. Art. 162 is the first one under that head. Art. 165 enacts that there are other exceptions to this rule (i. e. the rule of art. 162) and enumerates them. The 7th. class of exceptions is, in suits to enforce the collections of bonds of state and parish officers, the courts of the parish, in which the officers exercise the duties of their offices, shall have jurisdiction over the sureties, it matters not in what parish they may reside.

If the sureties on an official bond may be compelled to answer a. judicial demand against them, based upon the malfeasance of their principal, out of their own domicil, a fortiori must the officer himself be .amenable to the jurisdiction of the court of that parish in which he exercised his functions and to which he had subjected himself. The Code appears to assume as indisputable that the officer can be sued nowhere else, and in order that the rights of all parties may be determined in one action, compels the sureties to answer before one who is not their judge, and in order to compel them, is at pains to include them in a special exception to the general rule touching jurisdiction, the effect of which would be wholly nugatory if the principal were not suable at the same place and time with them. The exception should not have been sustained. Therefore

It is adjudged and decreed that the judgment of the lower Court is reversed, and the cause is remanded to be proceeded in according to law, the appellee paying costs of appeal.

Concurring Opinions.

Marr, J.

I concur in the decree pronounced in this case by the Chief Justice upon the ground that a parish officer and his sureties are amenable to the jurisdiction of the courts of the parish in which the official duties were to be performed; and that this jurisdiction is not divested by the removal of the officer to another parish.

I do not understand that the court decided, or intended to decide, in Marqueze vs. LeBlanc, 29 Annual, 194, that a defendant might be cited in any other than the parish of his domicile. The majority of the court held that, in a suit by attachment, a person residing in a parish different from that in which the suit is pending may be cited as garnishee, and thus be' made a party, and be compelled to answer in the court having jurisdiction of the attachment suit. The distinction was plainly drawn between garnishees in an attachment suit which is pending, and garnishees under fieri facias which issues on a judgment, in a suit which terminated with the judgment, and which is no longer pending. In the one case, the pending suit, the garnishee is compelled to answer in a parish other than that of his domicile; in the other, there being no longer a pending suit, the garnishee under fieri facias must be sued and cited at his domicile, because the proceeding against him is in the nature of an original suit, not as an accessory to the main action.

I did not concur in the opinion of the majority in that case; and I still adhere to the views expressed in my dissenting opinion. That decision has settled the case so far as garnishees in attachment suits are concerned; but it in no manner modifies the general law which requires suit to be brought at the domicile of the defendant, and the garnishee under fieri facias to be cited at the parish of his domicile.

Spencer, J.

I concur in the decree reversing the judgment appealed from, and overruling defendant’s exception to the jurisdiction of the-court of West Feliciana.

But I am not prepared to concur in the reasons and grounds upon which the majority of the court rest that decision. I am not satisfied of the correctness of the reasons given. I think there are far better grounds for our decree than those assigned. To say the least, it is very doubtful whether the principal on an official bond can be brought within the terms of number 7 of article 165, C. P. That article expressly limits itself to the sureties on such bonds; and article 162 says that a man must be sued before the judge of his domicile except in cases “ expressly provided for by lato.” The case of a principal on an official bond is nowhere expressly excepted, by law from the operation of the rule of article 162. I prefer, therefore, to rest my concurrence upon different principles. In the answer of Weber filed before any decision upon his plea to the jurisdiction, there is no reservation of his rights to urge that plea; nor did the court, so far as the minutes show, allow him to file it, “without prejudice to that plea,” as in the case of the exception referred to.

A plea to the jurisdiction of the court ratione persones, is a “ declinatory exception.” C. P. 884. It must be pleaded “previous to answering to the merits.” C. P. 336. “If one be cited before a judge whose'jurisdiction does not extend to the place of his domicile or of his usual residence, but who is competent to decide the case brought before him, and he plead to the merits, instead of declining the jurisdiction, the judgment given shall be valid, except the defendant be a minor.”' C. P. 93.

Where one answers to the merits without previously demanding a decision on his plea to the jurisdiction, or reserving the benefit of it, it is waived. 10 L. 228; 11 R. 418; 13 L. 373; 11 R. 402; 3 A. 222; 4 A. 350.

But here we are met with the objection that article 162 of the Code of Practice prohibits a defendant, even in a pending suit, from waiving by answer or otherwise the plea of want of jurisdiction ratione personae. That article reads as follows:

“ It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or. residence, and shall not be permitted to elect any other domicile or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided by law.”

It is of course contended that this article 162 is inconsistent with and repugnant to article 93, and, therefore, as the latest expression of legislative will, repeals the prior article. In my opinion it is not only not inconsistent with it, but provides for an entirely different case. Article 162 in its first clause announces that it is a general rule that one must be sued before the court of his domicile. By its second clause it announces that it is a general rule that one shall not be permitted to elect any other domicile or residence for the purpose of being sued.

By its third clause it says: “ But this rule is subject to those exceptions expressly provided for by law.” Now this third clause qualifies the second as well and as much as it does the first clause. The Code of Practice of 1870 is a single statute. Its different articles are all parts of one whole. The recognized principles of interpretation require us to give effect, if possible, to every article or section thereof. Now, the general principle announced in article 162, that one shall not elect another domicile or residence for the purpose of being sued, is declared by the article itself to be subject “to the exceptions expressly provided by law.” Now, if article ninety-three declares that where one has been actually sued in another parish than his domicile, and appears and answers .without pleading to the jurisdiction, “ the judgment shall be valid,” if such an appearance can be considered “an election of another domicile for the purpose of being sued,” why should not this case be considered one of those “ exceptions ” to the rule of article 162 ? But to my mind it is clear that the second clause of article 162 was enacted for a wholly different class of cases. It was enacted originally in 1861 to prevent persons from the country parishes in giving mortgages to their factors in New Orleans from electing New Orleans as their domicile and residence for the purposes of suit on these mortgages. This election of domicile had grown into almost a customary clause in such transactions, and had become a crying evil. The planter would elect, for the purposes of suit, the counting-house of his merchant as his domicile, and appoint and designate some clerk therein as his agent to receive service of citations. Tho consequence was that raen were constantly being sold out under proceedings of which they had no notice. Thereupon the Legislature re-enacted article one hundred and sixty-two and made it what it now is in the Code of 1870, evidently with no thought or intention of repealing article ninety-three, which continued a part of the old Code and is still retained in the new. Article one hundred and sixty-two, as well said by Mr. Justice DeBlanc, in “Marqueze vs. Le Blanc,” 29 Annual, 194, simply prohibits a party from agreeing to another domicile or residence for the purpose of being sued; in other words forbids agreements of the kind I have mentioned above, whereby the party chooses, elects, in advance another residence, for the purposes of a contemplated suit. With what propriety of speech can Weber in the case before us be said to have “ elected ” the parish of West Feliciana as “his domicile or residence for the purpose of being sued?” He has made no such election. The law provides how an election of domicile shall be made. “ It is made in writing, is signed by the party making it, etc.” C. C. 42. But the interpretation of article 162 contended for not only expunges article 93 from the Code of Practice, not only renders invalid and void judgments which that article declares “shall be valid,” but it renders nugatory and inoperative articles 333, 334, 335, and 336. It expunges from the Code the whole doctrine of declinatory exceptions for want of jurisdiction ratione personce. These articles declare that such exceptions must bo pleaded “in limine,” “previous to answering to the merits,” but under the construction contended for, they may be pleaded not only after answer, but after final judgment. Want of jurisdiction ratione personce is raised to the dignity of want of jurisdiction ratione materice. A party brings his suit against his debtor in a parish where he erroneously supposes him to reside. He cites him. The debtor appears, makes no exception and defends the suit vigorously, and is defeated — but not vanquished! He turns upon his creditor and says: “I am not a resident of this parish where you have sued me. I could not be sued here. I reside in another parish,” and “ could not elect any odier domicile for the purpose of being sued.” Your judgment is a nullity, as much so as though rendered by a court without jurisdiction ratione materice. If such a doctrine is- to prevail, how is a suitor to know when he has got a judgment? I submit that if argument ab inconvenienti is to be resorted to,' that the evils resulting from this, interpretation would be greater than are to be found from persons having themselves clandestinely sued away from their domiciles.

In conclusion, I insist that the “ election of a domicile for the purpose of being sued,” presupposes that the party has not yet been sued, and implies the selection and designation of a place of domicile for the purposes of a future suit. The doing of this is what the second clause of article 162 forbids. It presents a wholly different case from that contemplated by article 93, which provides for the case of a suit actually Wending, and where there has been no -previous election, selection, or previous designation of domicile for the purposes of the suit. I' can not give my assent to a construction of one section of a statute which, in my opinion, unnecessarily annuls not only preceding but subsequent sections of the same statute. So far, therefore, as our predecessors may have held that article 162 repealed or nullified article 93, and articles 333, 334, 335, and 336,1 think they were wrong, and that this is a proper occasion to so declare.

DeBlanc, J. I concur in the dissenting opinion of Mr. Justice Spencer.

On Application eor Rehearing.

Egan, J.

Section 351, R. S. 1870, provides that if it becomes necessary to enforce the collection of any bonds that may be taken under and in pursuance of this act (among which wras that of defendant, Weber,) and the sureties reside out of the parish in which the officer exercises, or may have exercised, the duties of the office for which the bond was given, shall have jurisdiction over the sureties, it matters not in what parish they may reside. The bonds when registered operate a mortgage on all real estate of the principal obligor in the parish where he exercises his office (same section), and whenever execution shall issue, any lands of the principal which belonged to him at the date of registry of the bond may be seized and sold without regard to any subsequent transfer or change of title, and in whatever hands the same shall be found. R. S. 1870, s. 354. But no sale of the property of the sureties shall be made till that of the principal is discussed — same section. All bonds of this class are required to be authenticated by the attestation of two witnesses, and the signature of the recorder, which makes them authentic acts. These several provisions indicate the legislative will in regard to the manner of enforcing these obligations, and if not in terms in spirit would seem to give jurisdiction to the court of the parish in which is the hypothecated property of the principal obligor, and where he “ exercises, or may have exercised his functions.” See C. P. 163 and 164, s. 7. Erom the very nature of the bond and of the obligations and duties of which it is intended to secure the performance, there must' first be judicially ascertained and declared some breach of its conditions and obligations on the part of the principal before any responsibility can be fixed upon the sureties, as their obligations are only for the faithful performance of his official duties by the principal. This necessitates suit against the principal to fix the liability and amount, and as the law abhors multiplicity of actions, it is apparent that in the very nature of things it is in contemplation of the law that the court of the parish where the functions of the principal are or have been exercised is clothed with jurisdiction to sue all the parties to the bond. So it is held in regard to bonds of administrators and other similar officers, though they may actually reside elsewhere. All the reason and analogies of the law favor this view, and the authorities cited relating to jurisdiction in case of private persons can not be held to apply. There is, however, one feature of the present case which is conclusive of the question of jurisdiction, independent of any other consideration, that is that the obligation of the defendants in the bond sued on is joint, and some of them reside in the parish where the suit was brought. O. P. article 164, s. 6. The sureties are hound jointly though in unequal amounts, and up to those amounts for the faithful discharge of the duties of the principal. .That is the principal obligation which the suretyship is intended to secure. It is therefore unlike a similarly drawn unconditional obligation to pay money in several amounts.

The rehearing is therefore refused.

Spencer, J. I concur in the decree on the grounds of my original opinion.


author: Manning, C. J.

text:
    No. 7127.
    The State ex rel. J. B. Baltor vs. Judge of Fourth District Court.
    In all appeals to this court the appellant is primarily liable for all the costs occasioned by the appeal, and may be compelled to pay them.
    ^PPLICATION for a writ of prohibition.

      Simeon Belden for relator.

      James David Coleman for respondent.
   The opinion of the court was delivered by

Manning, C. J.

The relator is appellant from a judgment in the Fourth Court against him for over seven hundred dollars and interest, •and having taken his appeal by petition, citations to the appellees became necessary, of whom there are several hundred. The clerk of that court issued these citations with copies of petition, and demanded of the appellant his fees therefor, amounting to two hundred and thirteen dollars and 84 cents, which not being paid, the clerk obtained the •approval of the Judge of the fee bills and proceeded regularly to compel payment by judicial process, whereupon the relator applied to us and obtained a temporary prohibition with an order to shew cause in the usual form.

The clerk and judge answer that the act of April 6,1872 justifies their proceedings, and so it does. In all appeals to this court, the appellant is primarily liable for all the costs occasioned by the appeal, and the-plaintiff, if appellee, can not be called on to pay these costs unless and until he is condemned to pay them by judgment on appeal.

The relator here, appellant there, is liable now for the fees and costs of the appeal, and the Judge rightly condemned him to pay them.

The writ heretofore issued is set aside and the petition herein is dismissed .at the relator’s costs.


author: DeBlanc, J.

text:
    No. 6851.
    The State vs. Bill Thomas.
    The objection of an accused that the property he was ■convicted of stealing was imperfectly, and incompletely described in the indictment, should be taken on a-motion to auash the indictment, before the jury is sworn. It is too late to urge-such an objection, being one apparent on the faeoof tho indictment, on a motion in arrest of judgment. /
    Evidence of an offense different and distinct from that charged in the indictment is only admissible in evidence, where it tends to show the intent with which tho act charged was done. Thus where the charge is stealing a certain hog, evidence-that the accused altered the mark of the hog is admissible.
    One who takes property, or, after having had it in possession for a time releases it. and subsequently retakes it, under a mistaken but honest belief that it was his property, is not guilty of larceny.
    When abill of exceptions is so expressed as to leavo in doubt what the lower.judge actually charged the jury on some important point, the accused will have tho benefit of the doubt, and the ease will be remanded.
    Declarations of an accused in his own behalf are only admissible when they are a part of the res gestee.

    To constitute a part of the res gestee it is not necessary that declarations should be precisely concurrent with the act charged to have been committed; it is only necessary that they spring from it, and are made under circumstances that preclude the idea of design. Thus where one is charged with stealing a certain thing, his declarations that it was his property, made before the alleged stealing, are admissible in evidence.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Parsons, J.

      H. N. Ogden, Attorney General, for the State.

      Newton & Hall for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

The charge against defendant is “ that, on the fifth of March 1877, he feloniously stole, took and carried away one small hog,, of the value of five dollars, the property of James Gallagher, etc.”

He was tried by a jury, found guilty of the charge and sentenced to hard labor in the State Penitentiary, for the space of twelve months. He attempted to obtain a new trial and to arrest the judgment, and— having failed in those attempts — he appealed to this court.

The grounds on which he bases his defence are detailed in three bills of exception and in his motion to arrest the judgment. Those grounds are:

1. That — on the trial before the jury — the State Attorney offered and was allowed to prove that defendant had altered the mark of a hog found in his possession, and that, inasmuch as such an act — if established — would constitute an offence distinct from that alleged in the indictment, the proof objected tp by the accused and received by the court, was not admissible and should have been excluded.

2. That — upon the request of the State Attorney, the judge charged the jury “that though the taking may be at first innocent, yet if the taker discovers his error and persists in taking and carrying away the property, the taking may be felonious at the time the error is pointed out to, or discovered by the taker.”

3. That he, defendant, offered to prove by Prank Allen,, then on the stand as a witness, that — prior to the time at which it is alleged in the indictment that the hog was taken, he had asserted his ownership of said hog.

4. That — in the indictment — the hog charged to have been stolen is not described by any mark, or by its color and sex, and that its description as “ one small hog,” is too vague and too indefinite to have properly placed him on his defence, or to bar a subsequent prosecution.

If — as it is — that description were incomplete, its incompleteness would constitute a formal defect apparent on the face of the indictment, and defendant’s objection should have been taken and urged, not • — as it was — on a motion to arrest the judgment — but by demurrer and on a motion to quash the indictment, before the jury was sworn. It was too late to do so, after trial and conviction.

Revised Statutes, Sect. 1064.

There is not, in the indictment against defendant, any averment that he has altered the mark of a hog, and — as a general rule — no evi■dence is admissible of the commission of any other but the offence charged in the indictment. To this rule, there are exceptions, one of which is that evidence of a distinct offence, not laid in the indictment, may be given to show the intent with which the act charged was done; , and — -inasmuch as the altering of the previous mark of an animal tends to show the intent of converting it to one’s own use, the district judge properly allowed the proof of such an alteration.

3 A. 512; 16 A. 576.

To constitute larceny, there must be an original felonious intent, general or special, and if there be at any time no reasonable means of discovering the ownei of personal property, and no belief that the owner can be found, then even a refusal to surrender the property, on the owner declaring himself does not make larceny.

Wharton, Criminal Law, 7th Edition, No. 1800, vol. 2.

In this instance, so far as we are informed by the bill of exception, the judge’s charge, as to the character of the original and subsequent intent, induces the belief that — at first — the hog was taken by the prisoner, under the impression that it was his property, and that, afterwards, though his error may have been pointed out to him, or though he may have discovered his error, he — nevertheless—persisted in taking and carrying away the hog referx-ed to in the indictment.

If there was a first and a second taking, did they occur at one place, on but one and the same occasion? Did they occur at a short interval from one another, in or out of the presence of the prosecutor? Was it openly, after a discussion between the prosecutor and the accused as to the ownership of the hog, or secretly, and after discovery by the accused that the hog did not belong to him ?

If — after the taking of an animal, by one who honestly believes that he alone has a title to it, he be — but for only a moment — persuaded that he is mistaken, and turns the animal loose; but — after a careful examination of its form, its color and size, he becomes again convinced that it is his property and again takes it, the second taking is as guiltless as the first.

Either the judge’s charge itself was, or the statement of that charge in the bill of exceptions is incomplete. As reported, it may be construed so as to conform to or conflict with the rule. In the doubt as to what were the views of the judge, or the expression of those views, we are unable to decide whether they were correct or incorrect. The law gives to the prisoner the benefit of that doubt.

As to the declarations of a prisoner in his own behalf, unless they form a part of the res gestee, they are not admissible for the defence. It is otherwise when they are a part of the res gestee. To be such,, it is not necessary that the declarations should be precisely concurrent with the act under tx-ial; it is enough if they spring from it and are made under circumstances which preclude the idea of design. It is only when the declarations are distinguishable in point of time, and are opened to the suspicion of being á part of defendant’s plan of defence, that they should be excluded.

Wharton, Criminal Law, 7th Ed, 1 vol. No. 699.

In this case, the prisoner should have been allowed to prove that, prior to the time at which it is alleged that he took the hog, he had claimed it as his own. That proof once admitted, it was for the jury to weigh, consider, believe or disbelieve it.

Wharton, Criminal Law, 7th Ed, 1 vol, No. 700.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed — the verdict of the jury set aside, and this case remanded to the lower court to be proceeded in according to law and the views herein expressed.


text:
    No. 7140.
    State ex rel. Ephraim Maurice vs. Judge of Superior District Court.
    No legal grand jury for the parish of Orleans nor petit jury for the Superior Criminal Court of said parish could be drawn after April 2, 1878, except from a panel of jurors drawn in accordance with the act of the Legislature passed the said second of April, providing for the drawing of grand and petit jurors.
    REPLICATION for a mandamus.

      Charles H. Luzenberg for relator.

      John J. Finney for respondent.
   The opinion of the court was delivered by

Manning, C. J.

Ephraim Maurice is in prison under an indictment for murder, and moved the Court to set the indictment for trial during the April Term, which was refused by the judge because there was no jury for that term. Thereupon the prisoner applied to this Court for a mandamus to compel the judge to set the case for trial.

The judge answers, that by the Act of April 2 present, a board of jury commissioners was created who supplant those of former laws, who with the sheriff are required to draw not less than seventy names for jurors, whenever a grand jury is necessary, and after its members have been selected, the residue of these seventy names shall constitute the list of petit jurors for the term — that the selection of a grand jury from the panel, drawn by the late commissioners in March for service in April, was deferred because of absence of many of the jurors, for whom attachments.were issued, and before the grand jury could be,selected, the new law went into effect — and that he can not use that panel for the petit jury now, because a grand jury has first to be drawn under the new law.

The act of the second of this month went into effect from its passage, and repealed all laws in conflict with it, and did not provide that the jurors already drawn by the commissioners under the old law should act, and be a valid jury, for the term or time for which they had been drawn, the new law to the contrary notwithstanding. A saving clause like that, or of similar import, would have obviated the difficulty, but since the Act does not contain it,*a petit jury can not be drawn for the Superior Criminal court; whenever a grand jury is also needed, until a panel of seventy or more names is made, and from it a grand jury is first selected. This can not now be done for the present month. A new panel, must be formed by the Board of jury Commissioners under the new law, from which the grand and petit juries must be drawn in the manner directed by it.

The prisoner can not be tried in any other mode than by a jury. There is no petit jury for the April term of the court before which he is arraigned, and none can now be drawn for it. His constitutional right to a speedy public trial is recognized, but it must be a legal trial, in and by the forms prescribed by law.

The mandamus is refused.


author: Mare, J.

text:
    No. 7043.
    Adam Dobel vs. J. M. Delavallade. E. P. Delavallade, Assignee.
    The transcript of an appeal from an order of seizure and sale need not contain any of the proceedings on the injunction taken out to arrest the seizure and sale, since such proceedings could not be considered by this court on such an appeal.
    The hold'er of a duly paraphed mortgage note, on which certain credits are indorsed, is entitled to proceed by executory process for the balance of the note, against the mortgaged property, and the purchaser of the property, whose assumption of the payment of the note appears by a notarial act of mortgage containing the pact de non alienando. If such purchaser has gone into bankruptcy, and is represented by an assignee, the certificate of a register in bankruptcy is sufficient evidence of the assignee’s appointment and acceptance.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Crowell, J., acting for McVea, J., recused.

      Chas. O. Lauve for plaintiff and appellee.

      George Wailes and Alex. Hebert for defendant.
   On the Motion to Dismiss.

The opinion of the court was delivered by

Mare, J.

This is a proceeding via executiva. Appellee moves to dismiss on the ground that the transcript is incomplete; that Delavallade applied for and obtained an injunction by which the sale was arrested; that the injunction was dissolved; and that the proceedings on that injunction are not copied into the transcript.

The appeal in this case is taken from the order of seizure and sale, which was granted on the eleventh of October, 1877. The clerk certifies that the transcript contains “ all the documents filed and proceedings had,” etc.

The appeal from the order of seizure and sale brings up for review ■ nothing but that order; and any subsequent proceedings, whether by injunction or otherwise, would be out of place in the transcript. Nothing that may have occurred subsequent to the granting of the order of seizure and sale could be considered in determining the only question which an appeal from that order brings before us.

The motion to dismiss is overruled.

On the Merits.

Adam Dobel sold to J. M. Delavallade a certain property, which he, Dobel, had purchased of Lacave. Part of the price was paid by Delavallado in cash, and for the balance he assumed the payment of two notes which Dobel had given to Lacave, which were secured by mortgage on the property; and Delavallade granted a mortgage with the pact ele non alienando to secure the payment.

Delavallade became a bankrupt; and failed to pay any thing on account of one of the notes. It seems that he paid part, made several payments which are indorsed on the other note. The holder of this note sued Dobel, and compelled him to pay the balance; and Dobel paid the other after maturity, to avoid further trouble.

E. P. Delavallade was appointed assignee of the bankrupt J. M. Delavallade; he was notified of his appointment, and accepted it in writing.

These facts are stated in the petition for seizure and sale. The two notes are annexed to and filed with the petition; also the act of sale, in which are the assumption and mortgage by Delavallade; and copies of the notice given by the register in bankruptcy to E. P. Delavallade of his appointment, and of his acceptance, certified to be correct by the register. Reference is also made to the suit, the papers of which were on file in the clerk’s office, and the number of the suit is given; and it is fairly to be presumed that they were exhibited to the judge, to show ■that Roth, the holder of one of the notes recovered and was paid by Dobel, the balance due on that note.

The assignment of errors is that there was not the necessary authentic evidence exhibited to the judge to authorize the writ; and, as we have said, this is the only question which we can consider on this •appeal.

The mortgage and assumption are proven by a certified copy of the notarial act. The balance due on the note sued on would appear by simple calculation, as the credits are indorsed. Both these notes are identified with the original mortgage granted by Dobel; and they are identified with the assumption and mortgage granted by Delavallade by a minute description. The register in bankruptcy was the proper officer to notify the assignee of his appointment; and his certificate sufficiently proves the appointment and acceptance.

The possession of the notes by Dobel was sufficient proof that Delavallade had not and that Dobel had paid them; and where the creditor demands a balance, admitting the reduction of the original amount, no further proof is required, since this admission is against his interest and in favor of the debtor.

We think the judge was authorized on the evidence before him to grant the order; and the judgment appealed from is therefore affirmed with costs.


text:
    No. 7020.
    C. D. Favrot et al. vs. Parish of East Baton Rouge.
    Where there is no community of interest between several co-plaintiffs in a suit, although the rights and relief sought are of the same character, the actions of these several parties can only be cumulated by consent of the defendant. Such a suit, on an exception of misjoinder of parties by the defendant, will be dismissed.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. McVea, J.

      Herron, Bird & Beale, C. D. Favrot, G. W. Buckner and J. &. G. W. Burgess for plaintiffs and appellants.

      John H. Halsey, Thos. B. Dupree, and Richardson & Magruder for defendant and appellee.
   The opinion of the court was delivered by

Egan, J.

Nine distinct judgment creditors of the parish of East Baton Rouge joined in this suit, which is in the nature of a mandamus proceeding, but not supported by affidavit, to compel the police jury and board of assessors of the parish to levy and collect a tax to pay the amount due upon their several judgments. Numerous exceptions were filed on the part of the defense, of which it is only necessary to notice one: That the plaintiffs have no cumulative form of action or remedy upon their distinct judgments, but that each creditor has his own separate action and remedy upon his individual judgment by another and distinct form of proceeding. This is substantially an exception of misjoinder of parties and causes of action, and must prevail. Where there is no community of interest, although the rights and relief sought are of the same character, the actions of the several parties can only be cumulated by consent. This is here expressly .refused. No one of the plaintiffs has that real and actual interest in the judgments of the others which would entitle them to be heard in relation to them. C. P. 15. Nor by the joinder of several plaintiffs can the defendant be deprived of its right to contest the demand of each separately. In Stevenson vs. Weber, 29 An. 105, we held that a number of co-plaintiffs or co-defendants whose interests are distinct can not be joined in the same action in order to give jurisdiction to a court. This is equally true whatever the object. See 14 An. 182; 15 An. 503. There was judgment in the court below dismissing the action. Prom this plaintiffs have appealed.

The judgment was not, however, based upon the exceptions, of which there are several others besides the one stated, all of which were referred to the merits, but was after a trial of and upon the merits.

We do not desire by our judgment to conclude the plaintiffs, who may be entitled to some relief in an action between proper parties and in proper form, though on this we express no opinion.

It is therefore ordered that the judgment appealed from be and it is avoided and set aside; and it is now ordered and adjudged that the defendant’s exception as to the misjoinder of parties and causes of action be and it is maintained and suit dismissed. It is further ordered that the plaintiffs pay the costs of the court below and the defendants those of appeal. It is further ordered that the right of the plaintiffs to proceed according to law to assert or enforce their rights be and it is reserved to them.


author: Marr, J.

text:
    No. 6881.
    J. W. Montgomery vs. the Louisiana Levee Company.
    Corporations can not be sued in any other but the courts oí their domicile lor damages arising out of their passive breaches oí contract, It is only ior damages caused by an.active breach of contract that they can be sued away from their domicile, and in the parish where the damage has been done.
    APPEAL from the Thirteenth Judicial District Court, parish of East Carroll. Hough, J.

      J. W. Montgomery, appellant, for himself.

      Thomas Gilmore and John A. Campbell for defendants and appellees.
   The opinion of the court was delivered by

Marr, J.

This suit was brought to recover of the defendant company damages ex contractu under section two, sub-section five, of act No. 4 of 1871, for failing or neglecting to ke'ep up to the standard dimensions a certain levee, in consequence of which plaintiff’s plantation was inundated by the overflow of the Mississippi river.

The company, through its president, excepted to the jurisdiction of the district court of Carroll parish, in which the suit was brought, on the ground that the domicile of the president and the domicile of the company corporation was at the city of New Orleans. This exception was sustained, and the suit dismissed; and our inquiry is limited to the correctness of that judgment.

Plaintiff relies on article 165, No. 9, of the Code of Practice, which is as follows:

“ In all cases where any corporation shall commit trespass, or do any thing for which an action for damages lies, it shall be liable to be sued in the parish where such damage is done or trespass committed.”

The general rule in civil matters is, “ that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicile or residence.” C. P., article 162.

It is a familiar rule that statutes in derogation of a common right must be construed strictly. The entire article, 165, is an exception to the general rule established by article 162, and in derogation of the common right of every resident of the State of Louisiana to be sued at the place of his domicile or residence.

Section two, sub-section five, of the act of 1871, No. 4, p. 34, imposed upon the defendant company liability in damages for failing or neglecting, etc.; and the argument of plaintiff is that No. 9 of article 165 of the C. P. authorizes' the liability incurred under this sub-section to be enforced by suit in the parish in which the damage is done. It seems to us that this view can not be maintained.

In addition to the rule, already mentioned, that statutes in derogation of a common right must be construed strictly, the entire phraseology of No. 9 of article 165 shows that the legislature contemplated the active violation of some right, the committing of a trespass, or the doing of some other illegal thing, which gives rise to an action for damages, in order to deprive corporations of the benefit of the general rule, the common right, recognized and formulated in article 162, of being sued at the place of their domicile.

It would have been competent for the legislature to have declared that the liability of corporations for damages resulting from trespass or any other act, or from mere inaction or failure or neglect, might be enforced by suit in any parish in which the damage was done. But what the legislature might have done, and what the legislature has done, are entirely different; and we are to deal, judicially, with what the legislature has done, not with what it might have done but has not chosen to do.

The plain language of No. 9 of article 165 of the Code of Practice is, that for things done, for acts of commission, for which an action for damages lies, the suit may be brought in the parish in which the damage is done; but that this rule does not apply to omissions, neglect, or failure to do, because wrongs of this latter class are not only not mentioned in this article, but are excluded by the use of the words commit and committed, do and done, which necessarily imply action.

It was a necessity of plaintiff’s case to sue ex contractu, in order to avoid the prescription of one year, which would have been applicable to an action ex delicto; and he maintains in his brief that this is an action ex contractu, under sub-section five, section two, of act No. 4 of 1871. We have dealt with the case upon that theory, which we accept as correct. We think that No. 9, of act 165, of the C. P. relates exclusively to actions for damages caused by positive acts, commission; that it does not include actions for damages resulting from neglect or failure, omission; and that the district court of Carroll parish was without jurisdiction.

The judgment appealed from is, therefore, affirmed.

Spencer, J. I dissent from the decision of the court, and reserve the right to file my reasons.


author: Spencer, J.

text:
    No. 6794.
    John Larrieux et al. vs. Crescent City Live Stock Landing and Slaughter-House Company.
    Wliou throo individuals, not partners, or otherwise associated in business, whose rights are several, and distinct, unite in one petition and claim that by some alleged wrong oí the defendant, they will be jointly damaged to the extent of only one thousand dollars, this court will not have jurisdiction, since the interest of each plaintiff is less than five hundred dollars.
    APPEAL from the Third District Court, parish of Orleans. Monroe, J.

      E. K. Washington for plaintiff and appellant.

      Robert Mott for defendant and appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Spencer, J.

Plaintiffs, alleging themselves to be three butchers on the Algiers side of the river, set forth that the defendant by its charter was required to maintain its grand slaughter-house on that side of the river; that it had been so adjudged and decreed by the Supreme Court; that in disregard of its charter, and in defiance of said decree, it had not re-established its said slaughter-house on said Algiers side of the river; but was nevertheless disturbing them in their business as butchers, and threatening to prosecute and imprison them for carrying on their occupations. That said company had no right to interfere with them, until it had complied with its charter and said decree, by re-establishing said grand slaughter-house, with capacity for slaughtering five hundred animals per day, on the said right bank. That if said company be permitted to continue its illegal interference with petitioners, they will be damaged in a sum of $1000. Wherefore they pray an injunction to restrain the company from so doing.

The judge a quo granted a rule nisi on defendant to show cause why an injunction should not be granted. After hearing the court refused the injunction. Thereupon plaintiffs moved for an appeal, which being denied, they applied to this court for a mandamus, which was granted nisi — but not heard as the judge a quo acquiesced and granted the appeal, which is now before us.

Appellee has moved to dismiss this appeal on several grounds, of which it is necessary to notice but one, that is, want of jurisdiction.

Plaintiffs in their petition do not pretend to have any joint interest in the issues of this suit. They are not partners, nor otherwise associated in business. If the defendant has wronged them, it is as separate and distinct individuals, and their rights and actions in damages are several, and in no wise legally inseparable. Threats and wrongs against one are no concern or business of the others. In other words, their rights and remedies are separate, several, and distinct. Their allegation is that by the threatened wrongs the defendant will damage them (three of them) in the sum of $1000.

This averment does not disclose an interest in any one of the plaintiffs, exceeding $500 in amount. It states the aggregate of tiie damage to be suffered by the three, without distinguishing the shares of either. The allegation is therefore at most that each of the plaintiffs will suffer damage to the amount of $333¿, which is a sum below the jurisdiction of this court. In Stevenson vs. Weber, 29 An. 108, this court held that “plaintiffs can not give jurisdiction to the district court by aggregating their own interests on one side and opposing them to the interests of sundry persons, holding distinct rights, aggregated on the other side.” That was where a large number of tax-payers, alleging that their aggregate taxes exceeded $500, united and sued sundry creditors of the parish to annul judgments obtained by them in the parish court, each judgment being for less than $500, but aggregating many thousands of dollars. That case therefore goes to the extent of holding that when persons have several and distinct rights, they can not by uniting and aggregating them, even when no misjoinder is pleaded, give jurisdiction to a court which would not have jurisdiction of their several separate demands. See, also, Dyas vs. Dinkgrave, 15 An. 503.

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


author: DeBlanc, J. Manning, C. J.

text:
    No. 7069.
    Lesassier & Binder vs. the Board of Liquidation.
    When a bond sued on is, from the manner of its indorsement, payable to bearer; or tho defendant tacitly acknowledges the title of the plaintiff; or no adverse title is pleaded, or suggested in the printed argument of defendant’s counsel; or when defendant merely pleads the general issue, the genuineness of the signature to tho bond is thereby admitted, and no proof of the payee’s indorsement is necessary.
    When an act under private signature is permitted to be read in evidence, without objection, proof of its execution is waived, l’ho State not being suable, except by her consent, prescription, as to debts due by her, is suspended.
    Tho bonds issued by the State in 1828 in favor of the “ Consolidated Association of the Planters of Louisiana,” are valid obligations of the State, and entitled to be exchanged for consolidated bonds of the State, under the funding act passed by ■ the Legislature in 1874. On such bonds the State is bound as principal, not as.
    surety, and hence is not entitled to the right of discussion.
    Bonds of the State, the exchange of which for consolidated bonds subrogates the State to rights against third persons, should not be destroyed by the Board of Liquidation, but turned over to tho proper State authorities for the benefit of the State.
    The application for a rehearing made by an amicus curia, althbugh filed within six days, will not suspend a judgment of this court, when not called to the attention of the court, and no order is asked, or made in relation to it, within that time.
    j^PPEAL from the Third District Court, parish of Orleans. Monroe,

      Breaux, Fenner & Hall for plaintiffs and appellees.

      J. O. Egan, Assistant Attorney General, for defendants and appellants.
   The opinion of the court was delivered by DeBlanc, J., and on the application for a rehearing by Manning, C. J.

DeBlanc, J.

Plaintiffs are the holders of three bonds, which — they allege — are exchangeable, and which they have sought to exchange for consolidated bonds, tinder an act adopted by the legislature and approved on the 24th of January 1874. The bonds thus held by plaintiffs were issued nearly half a century ago, on the 31st of December 1828, under an act of the Legislature of the State. They are signed by P. Derbigny — then the Governor of Louisiana, and countersigned by E. Gardére, then the Treasurer of said State.

In its answer to plaintiffs’ demand, the Board of liquidation denies that those bonds are fundable, and — in bar of the action brought to compel it to fund them, pleads the prescription of five and ten years. In the printed argument filed in its behalf, the attention of the court is called to only one fact, and that is that there is no proof of the genuineness of the signature of the payee of these bonds. In its report of the 1st of October 1877, the Board bases its refusal to exchange them, on the ground that the liability of the State thereon is exclusively that of a surety, and that — as a surety — -the State is entitled to the benefit of discussion of the property of the principal debtor, and — in the opinion of the Board — that principal debtor is the Consolidated Association of t.he Planters of Louisiana.

We, here, transcribe in full one of the three bonds held and declared upon by plaintiffs:

Know all men by these presents, That the State oe Louisiana, acknowledges to be indebted unto the President, Directors and Company, of the Consolidated Association of the Planters of Louisiana, in the sum of one thousand dollars, which sum the said State of Louisiana promises to pay, in current money of the United States, to the. order of said President, Directors and Company, on the thirtieth day of June, one thousand eight hundred and forty-three, with interest at the rate of eive per centum per annum, payable half yearly, at the place named in the endorsement hereof, viz: on the thirtieth June and thirty-first December, of every year, until payment of said principal sum.
“In testimony whereoe, the Governor of the State of Louisiana has signed and the Treasurer of said State has countersigned these presents, and caused the seal of the State to be affixed thereto, at New Orleans, this thirty-first day of December, in the year of our Lord one thousand eight hundred and twenty-eight.
“Signed” P. DERBIGNY, Governor.
“Countersigned” E. Gardhre, Treasurer.
The endorsement on the bonds is in these words: “We the undersigned, Manuel Andry, President, and Jacques Louis Prevost' Cashier of the Consolidated Association of the Planters of Louisiana, for value received, do hereby endorse and transfer the within bond, of one thousand dollars, bearing interest at the rate of five per cent per annum, to the order of......, and do hereby bind the Slate of Louisiana, and President, Directors and Company of the Consolidated Association of the Planters of Louisiana, to pay the said interest half-yearly, on the thirtieth day of June, and the thirty-first day of December of each year, in ■the city of London, at the counting-house of Baring Bros. & Co., at the exchange of four shillings and sixpence sterling per dollar, upon presentation and delivery of the dividends warrants, in the margin hereof, and also do bind the said President, Directors and Company to re-imburse the principal at the same place, at the exchange of four-shillings and threepence sterling per dollar, upon presentation and delivery of this bond on the day when this bond becomes due.
“Signed” MANUEL ANDRY, President.
J. L. Prbvost, Oashier.”

We have found annexed to the original bond which accompanies the transcript, the following agreement, to wit:

“Know all men by these presents, that the managers and Directors of the Consolidated Association of the Planters of Louisiana, by virtue of an act of the State of Louisiana, approved February 26, 1866, and entitled “ An act providing for the final liquidation of the Consolidated Association of the Planters of Louisiana,” hereby engage and bind the said Association, through me, their undersigned and authorized agent, to pay in New Orleans, at their banking house, the amount remaining due on bond of the State of Louisiana, C., No. 464, dated 31st December, 1828, and due 30th June, 1843, in the following mode and proportions, viz:
One hundred dollars on 30th June, 1870;
One hundred dollars on 30th J une, 1872;
One hundred dollars on 30th June, 1874;
One hundred dollars on'30th June, 1876;
against delivery of the respective warrants hereunto annexed, which will serve as receipts; and this bond shall be considered as a proof of the debt, from the State of Louisiana, and the Consolidated Association ' to the holder, for no other sum than the aggregate amount of such warrants as may remain in the possession of said holder. The last installment will be paid only on delivery of the original bond.

The C msolidatod Association of the Planters of Louisiana hereby engages also to pay regularly at its office in New Orleans, the half-yearly dividend warrants annexed hereto, at their respective maturities, aud solemnly declares that nothing in this document or arrangement, is intended to release the State of Louisiana from its engagements towards the holder of the Bond, C., No. 464 — -nor shall be construed to release or discharge any right of the holder to the securities given by the mortgages granted under and by virtue of the Act of Incorporation of the said Bank, and acts amendatory thereto, approved by the Governor of the State of Louisiana.

In testimony whereof, the agent and representatives of the Mana- ' gers and Directors of the Consolidated Association of the Planters .of Louisiana, holding full power to bind the said Association, has signed these presents in Amsterdam, the sixteenth day of September, in the year of our Lord, one thousand eight hundred and sixty-six.

[Signed] A. SCHREIBER, Agent.

The counsel representing the Board contends that the general denial filed in its name, puts at issue the title of plaintiffs to the bonds they hold, and that — as there is no proof of the genuineness of the signature of the payee of said bonds, the disputed title has not been established, and — on that ground — they ask the reversal of the judgment of the lower court.

Eor at least four reasons, that defence is untenable:

1. In their form and endorsed as they are, those bonds are really payable to any bearer therof. 10 R. R. 128; 3 R. 195; 3 N. S. 291 — 392.

2. The Board did not contest, but — from the tenor of their report, tacitly acknowledged the title of plaintiffs.

3. No adverse title is mentioned either in the pleadings or the printed argument, and none was otherwise suggested. 8 N. S. 509; 2 A. 97 — 441; 5 N. S. 512; 9 M. R. 469; 4 L. 430; 5 L. 48; 14 L. 254; 13 L. 13.

4. The general issue pleaded by defendant is equivalent to an admission of the genuineness of the signatures, which — though not acknowledged, is not absolutely denied, not even in counsel’s brief; and —besides—when an act sous seing privé is permitted to be read on evidence without objection, proof of its execution is waived. 8 A. 312; 12 A. 340.

Is plaintiffs’ action barred by prescription ? The -State not beingsuable, except with her consent, the course of the prescription invoked by defendant’s counsel was effectually suspended; and, were it otherwise,'the State — under act No. 92 of 1843 — took possession of and held in pledge — until recently, all the assets of the Consolidated Association of the Planters of Louisiana, and that pledge was a standing acknowledgment by the State of an obligation, which — tacitly or expressly— was ten times acknowledged by her Legislature, in ten different acts, and more particularly by those of 1847 and 1866, in and by which her Representatives authorized the extension of. the time of payment of those bonds.

See Acts No. 19 of 1828, of 1835, 1836, 1842,1843,1845,1847, 1848, 1853, and 1866.

Do the three instruments held by plaintiffs, presented to the Board and now under consideration, witness — in the language of the acts of 1874 and 1875 — outstanding and valid bonds, of the State, issued in strict conformity to her laws, not in violation of her Constitution or of the Constitution of the United States, and for a legal consideration? They do, and — with its undoubted impartiality — the Board itself has so declared: that declaration is published in their report:

“We wish it distinctly understood that we do not deny the eventual liability of the State, in case the assets of the bank, and of the stockholders prove insufficient, after legal discussion according and in conformity to the full measure of the obligation contracted, and we fully recognize that the faith of the State is pledged to redeem all promises made, and all liabilities incurred, but beyond this we hold that the State has no legitimate authority to extend her liabilities, and therefore we believe in this instance that the bondholders must look to the assets pledged to their re-imbursement, see that they are properly and legally administered and applied, and should these prove inadequate, they, in the meantime, having pursued all their legal remedies, then apply to the State for the fulfillment and redemption of her promises.
Respectfully submitted:
(Signed) LOUIS BUSH, Chairman;
LOUIS A. WILTZ,
ALLEN JUMEL.”

The Board is mistaken as to the character of these obligations, the very terms of which repel the construction contended for in its report.

•“ The State of Louisiana acknowledges to be indebted unto the President, Directors and Company of the Consolidated Association of the Planters of Louisiana, in the sum. of one thousand dollars, which sum ■ the State of Louisiana promises to pay to the order of said President, Directors and Company, at the place named in the endorsment hereof, etc.” Such words do not, can not constitute, embrace or evidence an accessory obligation, do not, can not create or describe an accessory' promise. Those words are the studied and clear expression of a principal obligation, of an unconditional promise.

Can we add to those terms? Can we arbitrarily presume that the-State did not intend to bind itself, as — in law and in fact — she is bound by the terms of her contract — that, when she said without reservation, I acknowledge to be indebted, I promise to pay, it meant — though she said the very reverse — indebted as a surety, the surety of one who, in the instrument is recognized as a creditor, and pay in case my recognized creditor fails to do so. This would be a perversion of the very letter of the contract submitted to our consideration.

According to. our Code, “ suretyship is an accessory promise, by which one binds himself for another already bound, and agrees with the ■creditor to satisfy the obligation, if the debtor does not. In this instance, if the State be but a surety, who — when she bound herself as such— was already bound as the principal debtor ? Who — then—was the ■ creditor with whom the pretended surety agreed to satisfy the obligation, if the unknown and nameless debtor did not? The most careful inspection and perusal of the instrument would not have left the impression that the Consolidated Association, therein represented as a. creditor, was in reality the principal obligor, that the State which alone-acknowledged to be indebted, and alone promised to pay, was but a surety, and of whom? Of its recognized creditor, of the party in whose favor the bond was subscribed, to whose order it was payable.

In its report, the Board — referring to the endorsements on the bonds — said:

“Leading to the same result, and confirming the views we have taken of the question, we refer to the subsequent dealings of the parties, to wit: the bank and the bondholders. Acting on the principle that she was merely a surety, and wishing to maintain her faith intact, the State gave her consent, by act 100, of 6th April, 1847, p. 77, sec. 4, to an extension by the bank of the bonds for six, nine, twelve, fifteen and eighteen years, and by act No. 38, of February 26, 1866, on the same terms as then existed, fora period of ten years, and no more [p. 66, see. 1],. thus waiving,'as asurety, the objection which might otherwise have been urged by her that the creditors, the bondholders, had done acts which impaired her rights, or had given a prolongation without her consent.. In these two acts nothing is left to inference, for in both it is the Managers and Directors of the Consolidated Association who are authorized to negotiate for the extension of the bonds, and it is they, who with the bondholders, agreed to the prolongation granted, with the consent of the State, given as aforesaid.”

The endorsement on these bonds does — in no way — change or impair the unqualified and unconditional obligation of the State to satisfy said bonds. It adds — to the State obligation — that of the Consolidated Association. It mentions the balance due on what is therein called “ the bonds of the State of Louisiana,” and specially provides that it shall not be construed as releasing the State of Louisiana, or discharging any right acquired by the holder of those bonds under the act of incorporation of the Consolidated Association, or any act amendatory thereto.

Whatever may be — as between the State and the Consolidated Association — the liabilities of the latter to the former, as to third parties and on those bonds, the State was and has not ceased to be a principal debtor; and — -as to third parties — can not be'legally regarded as the surety of one who — in those bonds — is represented as its creditor.

The obligations sought to be exchanged by plaintiffs bear signatures- and dates which repel suspicion: they are,-beyond any doubt, a-just, an honest debt of our State, and should be funded.

In only one particular, the judgment of the lower court must be amended. The 8th section of the act of 1874 provides: “ that the-bonds and valid warrants outstanding at the time of the passage of said act, shall — as fast as they are received in exchange for consolidated bonds — be cancelled and destroyed by the Board of liquidation, etc.”

- This instruction applies and refers to exclusively the- bonds and warrants which — when exchanged for consolidated bonds — are the useless evidence of a prior claim reduced by the exchange — the balance due on which — after the reduction — is witnessed by a new instrument; but it does not refer and should not be applied to any of the warrants and bonds which — as those sued upon — shall, after the exchange, constitute the evidence of a claim of the State against other parties — of its subrogation to every right securing said claim, and which — for that reason— should be preserved and delivered to tbe proper authorities of said State.

It is, therefore, ordered, adjudged arid decreed that the Board of liquidation be and it is hereby enjoined and prohibited from destroying, after their exchange, any of the bonds mentioned and described in plaintiffs’ pleadings.

It is further ordered, adjudged and decreed that every right and action of the State of Louisiana, in, on, or concerning said bonds, whether said right and action were acquired before, or be acquired by and after the exchange of said bonds, be and they are expressly reserved.

It is lastly ordered, adjudged and decreed that — as amended by this decree — the judgment of the lower court is affirmed with costs.

On Application fob Rehearing.

Manning, C. J.

A member of the bar applies as amicus curias for a rehearing of this cause. The application for a rehearing was filed within six days, but was not called to our attention, nor any order either asked or made in relation to it, within that. time. Although it is competent for the court to grant a rehearing, either on the suggestion of an amicus cuñas, or ex proprio mota, we are of opinion that the mere filing of an application for rehearing by an amicus cuñas has not the effect of suspending the judgment, as is the case when such application is made by one of the parties to the suit. The judgment has become final and is the property of the parties, and therefore

The application for a rehearing can neither be considered nor allowed.


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    NO. 6254.
    E. J. Barkdull, Tutor, vs. E. F. Herwig and Mrs. C. Smith.
    A judgment can have no effect on the rights oí those not parties to it, and who had no notice oí the legal proceedings which led up to tlio judgment. Thus a mortgage creditor may proceed in a district court against the mortgaged'property, without regard to tlio fact that the property had been sold under a judgment, to which ho was not a party,. rondorod by a parish court, in a suit brought after the institution oí the proceedings in the district court.
    A mortgagee who transfers part of the mortgage debt to another, can not compete with his transferee ior the proceeds oí the mortgaged property, where the amount is not sufficient to satisfy both',
    Where a suit involving conflicting lions and mortgages on certain property is instituted in one court, and all persons in interest are made parties to the suit, the subsequent institution oí another1 suit, in a different court, by two of the parties is a fraud on justice, and will not divest the formor court of jurisdietion to determine all the issues between the partios, in respect of the mortgaged property, without regard to any changes in the title or possession oí the property.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Kemp, J.

      Lewis E. Simonds for plaintiff and appellant.

      McEnery, Ellis & Ellis and E. F. Russell for defendants and appellees.
   The opinion of the court was delivered by

Marr, J.

Appellees were interested as partners in the “ Pelican Mills Wadding and Batting Factory.” Herwig borrowed a sum of money from Barkdull, which belonged to Barkdull’s minor son; and this money was used for purchasing materials, machinery, etc., for the factory.

In January, 1872, some sort of settlement was made between Her-wig and Mrs. Smith, the result of which was that she was indebted to him in the sum of $5191 19, for which she executed her two promissory notes, of the same date, to hor own order, and by her indorsed in blank, both payable twelve months after date, one for $3500, the other for $1691 19; secured by mortgage on the factory and the twenty acres of land on which it stands. Subsequently, about a month after, Her-wig delivered the $3500 note to Barkdull, in payment of the borrowed money.

At the time this mortgage was granted there were two liens in favor of mechanics resting on the property, and duly recorded, represented by two promissory notes, one for $212 50, the other for $90 66, .signed by Mrs. Smith, and the payment guaranteed by Herwig. When Herwig delivered the note, to Barkdull, he represented to him that the property mortgaged was amply sufficient to pay it and the other note for $1691 19 which Herwig retained.

Barkdull asked him about the mechanics’ liens, and called his attention to the fact that they were not mentioned in the mortgage. Herwig said the reason they were not mentioned in the mortgage was that “I have assumed them;” and he produced, and handed to Bark-dull a statement in his own handwriting, showing that he had already paid $215, on account of these liens, leaving only $180 due: and he added that Mrs. Smith would not agree to sign the mortgage notes until “ I guaranteed these payments of the mechanics’ liens.”

In July, 1873, Barkdull brought suit on the note, and to enforce the mortgage: and on the twelfth July, Herwig intervened setting up his mortgage note, and claiming also, that he had made advances to Bark-dull to the extent of $570, which he was entitled to haye paid by Bark-dull, out of the proceeds of the note held by him. He prayed that plaintiff’s mortgage be recognized, and that his own note, and the $570 due him by plaintiff be paid out of the proceeds of the sale of the mortgaged property.

In August, 1873, pending these proceedings, Herwig brought suit in the parish court against Mrs. Smith for the sum of $303 16, with interest, being the amount of the mechanics’lien debts assumed and guaranteed by him; and he prayed for judgment recognizing the lien and privilege by which these two debts were secured, and that the property be seized and sold to pay these demands, by preference, out of the proceeds. Mrs. Smith waived service, and the delays of law, and confessed judgment as prayed for: and on the same day judgment was entered accordingly. Execution issued on this judgment; the factory and ground were seized and sold by the sheriff, on the fourth October, 1873, and purchased by Herwig, for $1400, cash, something over two thirds of the appraised value. On the same day Herwig promised and obligated himself, in writing, to transfer the property to Mrs. Smith, “without recourse,” for $1800, on her assuming whatever liabilities the property was subject to in his hands.

The sheriffs return shows that after satisfying the judgment in favor of Herwig, the $303 16 with interest and costs, which constituted the first recorded privilege, the balance was not sufficient to pay the remaining privilege and mortgage; that is, the mortgage granted to Herwig to secure the two notes, one held by Barkdull, the other by Herwig; and he therefore left the balance, $1018 95, in the hands of Her-wig.

Barkdull’s suit against Mrs. Smith, in which Herwig was intervenor, pended until fifteenth April, 1874, when, on motion of Herwig’s attorney, judgment of nonsuit was entered on his intervention; and, on the. same day, final judgment was rendered in favor of Barkdull, against Mrs.' Smith, for the $'35’>U, and interest, with recognition of his right of mortgage; and decreeing that the mortgaged property be seized and sold, and proceeds applied to the judgment.

Barkdull lived in New Orleans, some eighty miles from Amite City, the seat of justice of Tangipahoa parish, where the property was situated, and where Herwig and Mrs. Smith lived. The attorney who represented Herwig in the intervention brought the suit, and was the sole subscribing witness to Mrs. Smith’s written confession and waiver, on which he obtained the judgment of the parish court; so that there was no occasion for the publicity which usually characterizes proceedings in court. The appearance of Herwig as intervenor, and his entire conduct in the business, have the aspect of a mere feint, specially designed to conceal the real formidable attack in the parish court, to delude Bark-dull, and to induce him to believe that the entire contest would be in the district court, and that the rights of himself and Herwig respectively would be determined and settled in that court, in the suit in which they were both parties.

In June, 1875, this suit was brought to subject the mortgaged property to the judgment of fifteenth April, 1874, in favor of Barkdull. The petition charges that the proceedings in the parish court were fraudulent, collusive and simulated on the part of Herwig and Mrs. Smith, to defraud and defeat the rights of Barkdull: and the prayer is that the property be decreed to be subject to Barkdull’s mortgage rights as recognized in the judgment of fifteenth April, 1874, in preferente to the judgment in the parish court in favor of Herwig;’ and for all other proper decrees.

Herwig excepted that the petition contains two causes of action which are contrary to and exclusive of each other: 1: that in which the judicial sale and judgment under which defendant holds the title to the property are attacked as unreal and simulated: 2: that in which the judgment and rule are attacked as real, but in fraud of petitioner’s rights: and he called upon plaintiff to elect which of these two causes of action he meant to proceed with.

This exception having been overruled by the court, Herwig excepted that plaintiff was without authority to stand in judgment herein. Should this be overruled, he excepted that the court was without jurisdiction ratione materia} to entertain an action to annul the rule made in virtue of a judgment of the parish court: in the event of the overruling of this exception, he excepted that plaintiff alleges no putting in default, and no tender, and' therefore exhibits no cause of action.

Should all these exceptions be overruled, he pleads that the judgment of the parish court and the rule of fourth October, 1873, were legal, real, and bona fide, in all respects: and he also sets up the prescription of six months and one year.

Mrs. Smith, made a party by supplemental petition, adopted Her•vvig’s pleas and defenses. The exceptions were referred to and tried with the merits; and this appeal was taken from the judgment in favor -of defendants, rejecting plaintiff’s demands and dismissing his suit.

We think none of the exceptions in this case were well taken; and that the plea of prescription is not well founded. The suit is not brought to annul a judgment of the parish court, nor to have set aside, for fraud, a conveyance between the defendants by which the rights of plaintiff are prejudiced. The object is to subject to plaintiff’s judgment and right of mortgage the property in question. So far as the .judgment in the parish court is «concerned, it must stand as between Herwig and Mrs. Smith: it is without effect as to plaintiff. The sale by the sheriff, and the adjudication to Herwig must stand as between Her-wig and Mrs. Smith; but they do not affect the rights of plaintiff,.who was no party to the proceedings, and was in no way notified of them.

Whatever right or title Mrs. Smith had in the property, it is divested, as between her and Herwig, except so far as Herwig may be bound by his written obligation to transfer the property to her.

It is settled, we think, that a mortgagee, who transfers part of the mortgage debt to another, can not compete with his transferee for the proceeds of the mortgaged property, where the amount is not sufficient to satisfy both. As this court said, in Seligman vs. His Creditors, in 2 Rob. 244: “it would be contrary to good faith, that the vendor of a claim, after receiving the price of it from the assignee, should by his own act prevent the latter from receiving the sum he has paid.” See .also Troplong, Hypotheques, volume 1, number 367.

Herwig was indebted to Barkdull, for a loan; and the money was used to enhance the value of the factory, by the purchase of machinery, "etc. Herwig, in settling with his partner in the factory, Mrs. Smith, took from her a mortgage on this property; and he gave to Barkdull, in payment of this debt, one of the notes secured by that mortgage. He -assured Barkdull that the property cost from fifteen to twenty thousand dollars, and was amply sufficient to pay both the notes. He quieted Barkdull’s apprehensions about the mechanics’ liens, by showing that the amount had been reduced to $180: that he had assumed the payment: that Mrs. Smith had refused to sign the mortgage notes until he had assumed the payment; and that this was the reason for mot mentioning these lien debts in the act of mortgage.

The plain meaning, the effect of this is that Herwig guaranteed the sufficiency of the property; and that it was upon his representations that Barkdull took the note in payment of the debt that Herwig owed him.

After Herwig’s statements that the lien debts had been reduced to $180, and that he had assumed the payment of them, he could not, without the grossest fraud, set them up as incumbrances outranking the mortgage.

The suit which Barkdull brought against Mrs. Smith, and in which Herwig intervened and asserted his mortgage right, was a proceeding in personam so far as judgment against Airs. Smith was concerned ; and in rem so far as it sought to have the mortgaged property seized and sold. The law had laid its hand upon this property, and all the parties having any pretension of right or claim to it were before the court, which was competent to adjust the respective claims, liens and priorities: and when Herwig and Mrs. Smith went into the parish court, pending that suit, and there undertook to withdraw the property from the control of the court which had acquired full and complete jurisdiction as to property and parties, they attempted to practice a fraud upon the administration of justice which no judicial tribunal will tolerate. Whatever the proceedings in the parish court may have effected, as between Herwig and Mrs. Smith, they did not divest the district court of its power and authority, nor relievo it of its solemn duty and obligation to pass upon definitively and to settle the rights of the parties with respect to the mortgaged property as, in its judgment, the law and the.evidence required. The judgment ordering the mortgaged property to be seized and sold in satisfaction of plaintiff’s debt, is a judgment in rem, the execution of which the other parties to that suit had no power to forestall or to defeat: and that judgment must be executed, according to its tenor and terms, without regard to any changes either in the title or possession of the property which may have occurred pendente lite.

The judgment appealed from is, therefore, annulled, avoided, and reversed: and, proceeding to render such judgment as the district court should have rendered, it is now ordered, adjudged, and decreed that the property described in the mortgage granted by Mrs. Clementine Smith to and in favor of Ernest E. Herwig, of date fifteenth January, 1872, as set forth and described in the judgment of the Sixth Judicial District Court in and for the parish of Tangipahoa, in the suit number 149 of the docket, rendered on the fifteenth of April, 1874, in favor of Enoch J. Barkdull, tutor of his minor son, Charles R. Barkdull, against Mrs. Clementine Smith, in which Ernest F. Herwig was intervenor, be decreed to be subject to seizure and sale, under and in virtue of that judgment, to pay and satisfy the said judgment by preference and priority over any right, title, claim, mortgage, lien, or privilege whatsoever, of or in favor of Ernest E. Herwig; and that the said Ernest E. Her-wig and Airs. Clementine Smith, defendants and appellees, be condemned, in solido, to pay the costs of this suit in this court and in the district court.


text:
    No. 7010.
    Picard & Weil vs. J. J. Wade. S. B. Newman & Co., Third Opponents.
    Where in a contest between a seizing judgment creditor and a third opponent for the proceeds of the seized property, amounting to more than a thousand dollars, the latter claims the whole proceeds, and the former only four hundred and seventy-three dollars of it, no appeal will lie to this court; because the amount really in dispute is only $473.
    When the original claim of a judgment creditor when first sued on in a district court is over $500, the mere fact that subsequent payments made by the defendant have so reduced the amount of the judgment that it can not be appealed from, can not have a retroactive effect so as to divest the district court of jurisdiction of the suit, or impair its right to issue executions as long as any part of the judgment remained unsatisfied.
    APPEAL from the Seventh Judicial District Court, parish of West Eeliciana. Yoist, J.

      Wickliffe & Fisher for opponents and appellants.

      W. W. Leake for plaintiffs and appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Marr, J.

Picard & Weil recovered judgment against Wade, in March, 1876, for $735 30, with interest and costs; and in September, 1877, execution issued on this judgment, on which credits were indorsed amounting to $453 54.,

Under this writ the sheriff seized certain property, the interest of Wade in two plantations, which lie advertised for sale on the third of November, 1877.

On the second of November, S. B. Newman & Co. filed a third opposition claiming the right to be paid by preference out of the proceeds of the sale about to be made, in virtue of a judgment recorded and operating as a judicial mortgage, anterior in date to the judgment in favor of Picard & Weil: and they prayed that their debt be paid and satisfied in preference to Picard & Weil, and all others.

Newman & Co. purchased the property for $1025. The case was tried on their opposition; and judgment rendered in favor of Picard & Weil, and dismissing the opposition. From this judgment Newman & Co. took a devolutive appeal; and the sheriff collected of them the amount of their bid, of which $473 28 were applied to and satisfied the writ in favor of Picard & Weil; and the balance $551 72, was credited on the judgment of Newman & Co.

Picard & Weil move to dismiss the appeal, on the grounds^:

1. That this court is without jurisdiction, because the amount in controversy is less than $500.

2. That appellants have acquiesced in the judgment by executing it voluntarily.

First. It is well settled that it is the amount of the plaintiff’s demand that gives jurisdiction. The original demand of Picard & Weil was above $500, exclusive of interest; but at the time the third opposition was filed the amount had been reduced, so that it was, exclusive of costs, about $420.

There was no question as to the right of Newman & Co., except with respect to the seizing creditors, Picard & Weil; and the amount in controversy was the balance due them, which at the time it was paid, Januuary 2, 1878, was $473 28, including costs. This was really the whole amount in dispute,

Counsel for appellants say that the amount in controversy is the price of the adjudication to Newman & Co., $1025, because they claim the entire proceeds, which would not suffice to pay their judgment. But, as we have seen, no other person pretended to any right to be paid out of this fund except Picard & Weil; and the]’- only claimed the balance due them, which, with costs, was less than $500; and the $1025 paid by Newman & Co. to the sheriff, were first applied to the debt of Picard & Weil, which was paid in full, and their writ was returned satisfied; and the balance of $551 72 was paid by the sheriff to the attorneys of Newman & Co. on account of their judgment.

It is also urged that if this court is without jurisdiction because the amount in controversy is less than $500, the district court was without jurisdiction, forthe same reason; and the whole proceeding is void. But this is not necessarily true. The district court had jurisdiction of the demand of Picard & Weil originally; and it belonged to that court alone to enforce the judgment which it had rendered. R. C. P. 617, 629. As long as any part of that judgment remained unsatisfied, the plaintiffs had a right to cause execution to issue; and the credits to which defendant was entitled on the writ in no manner impaired the jurisdiction to enforce, by execution, the payment of the balance. The district court necessarily had jurisdiction of opposition by which the right of plaintiffs to enforce payment of the balance was attacked, without regard to the amount of that balance. The controversy was touching that balance alone; and, while the jurisdiction of the district court was wholly independent of the amount thus brought into controversy, the jurisdiction of this court would depend upon that amount alone, not on the amount of the original demand, more than half of which had been paid, and was not in dispute. The right of Newman & Co. to the proceeds was not in controversy except to the extent of the balance due the seizing creditors, and this is conclusively shown by the fact that, although the judgment on the opposition rejected their demand, more than half the proceeds were paid to them on account of that demand, and pending this appeal.

j The counsel for appellants cite numerous decisions to show that this court has jurisdiction. They establish, what is not to be questioned, that an appeal will lie from a payment on an intervention or third opposition claiming less than the appealable amount, when the demand of plaintiff is for an appealable amount. See 8 La. 167; 11 L. 462; 2 An. 189; 16 An. 430; 21 An. 366; 22 An. 292, 331; 24 An. 442.

No case has been cited, and we know of none establishing the proposition that the amount claimed by intervenor or third opponent, gives jurisdiction, where the amount demanded by plaintiff is not appealable.

Authorities are cited to show that the proceeding in this case is in the nature of a concursus; and that the sum to be distributed gives jurisdiction. The case cited from 3 Rob. 5, Succession of Field, is not applicable; and the appeal was dismissed on the ground that the person opposing the account of the administrator had no right to come into the concursus, and his demand was below the appealable amount. In Colt vs. O’Callaghan, 2 An. 189, the court decided that an intervenor might appeal, although he claimed less than the appealable amount, where the demand of the plaintiff was appealable. In Smith vs. Charles, 27 An. 503, the sheriff had sold under execution the interest of defendant in his father’s succession. A number of creditors had recorded judgments which operated as judicial mortgages; and the sheriff would'not pay the seizing creditor. Thereupon the seizing creditor took a rule on the sheriff: and he called in the other judgment creditors. This proceeding the court said was in the nature of a concursus, as it actually was. In Succession of Cloney, 29 An. 327, it was decided that the amount of the fund to be distributed by an executor or administrator determines the right of appeal.

We understand there can be no concursus except where there is a fund in the hands of an officer, syndic, executor, receiver, etc., which is claimed by different persons, and the officer calls them in by filing an account or otherwise to litigate their claims, and to have their respective rights and priorities established contradictorily. There was no such thing in this case. The opposition was filed .before the sale; and the-purchasers being first-mortgage creditors in rank, retained the amount, of their bid until after the judgment on their opposition had become final; and the opponents had taken merely a devolutive appeal. The judgment being exigible, they paid the amount into the hands of the sheriff, who immediately paid and satisfied plaintiffs’ writ, and gave the balance to opponents on account of their unquestioned claim.

In Gore vs. Kendig, 3 Rob. 387; Hanna vs. Bartlette, 10 Rob. 438; Goodwin vs. Glendower, 11 R. 12; and Pesant vs. Heartt, 22 An. 292, it was decided that where the amount demanded by plaintiff was not appealable, but the demand set up by defendant in reconvention-was appeal-able, an appeal would lie from the judgment on the reeonventional demand, but that the judgment on plaintiffs’ demand could not be reviewed, and nothing could be inquired into but the judgment on the reeonventional demand. The right to appeal in these cases was put upon the ground that the reeonventional demand is in the nature of a new action. See 3 Rob. 388.

There is no analogy between the reeonventional demand, in which the defendant asserts a right to recover of plaintiff, as a means of defense to the suit brought by plaintiff against him, and a third opposition which sets up no claim or right to recover of plaintiff, but merely asserts a right to be paid in preference to him, out of the proceeds of a sale about to be made at his instance.

On the reeonventional demand the amount in controversy is the amount claimed in reconvention; and if that amount be appealable, the judgment on that demand may be reviewed on appeal, although the demand of plaintiff is not sufficient to give appellate jurisdiction. On the third opposition the amount in controversy is the amount of plaintiff’s demand, which the third opponent asserts must be postponed to his claim and demand, which is not questioned either as to amount or as to priority, except by plaintiffs to the extent of the amount due them under their writ.

Ibis not necessary to consider the other ground; but it is manifest, as third opponents, since this appeal was taken, have received the entire amount of the proceeds of the sale, except the amount due plaintiffs and the costs, that the controversy is limited now, as it was at the time the opposition was filed, and at the time the appeal was taken, to the balance due plaintiffs and costs; and that this amount, $473 28, when -paid, is not sufficient to give this court jurisdiction.

The appeal, therefore, taken by third opponents, in this case, is dismissed.