text:
    State, on the relation of J. N. Hanau, Jr., v. Cresent Mutual Insurance Company.
    Whore an exception is filed with an answer to the merits, what is admitted by the exception for the purpose of testing the plaiutiff’s petition, may he denied by the answer, and if the exception be overruled, final judgment can only be rendered after a regular trial on the merits.
    PPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      Hyams, Labatt S Jonas, for plaintiff. M. M. Cohen S Randell Hunt, for defendant and appellant.
   Merrick, O. J.

This case has been argued before us by the appellant’s counsel, on a question of practice.

The relator filed a petition, wherein, after alleging his right as a scrip holder of the company to inspect at reasonable hours, the book containing a list of the holders of scrip, he prayed that the President and Secretary of the company might be ordered to show cause why a mandamus should not issue to compel them to allow him to inspect, at reasonable hours, the books of the corporation.

The defendants were ordered to show cause on a day fixed.

The defendants filed an exception, and in the event said exception should be overruled, an answer to the rule.

It appears that the case was continued and argued from day to day, for four or five days, during the hours allotted by the rules of the court for that purpose, on the exception which was taken under advisement, and that the District Judge, instead of overruling the exception and hearing the parties on the merits of the rule, rendered final judgment, after having held the exception from the 25th day of February to the 16th of March, 1859, under advisement. Appellants counsel contend, that they were entitled to be heard on the merits ; and so it appears to us. The defendants were entitled to a decision upon their exception before they could be compelled to offer evidence under their answer to the merits. The answer contained a general denial, admitted that the plaintiff was a scripholder, and pleaded some matters in avoidance of the plaintiff’s action. The truth of the allegations in the answer, have not been admitted, and however wide the range of argument may have been upon the exception, it does not appear that the District Court has passed judgment upon the whole case, as presented by the defendants in their answer. Final judgment ought not to be rendered against them until they have been heard upon the same.

After overruling the exception, that, or another day, should have been fixed for the hearing of the rule on the merits.

The answer, as soon as the exception was overruled, was ready to perform its office, and, as it denied the truth of plaintiff’s petition, except as to his ownership of the scrip, the plaintiff could not invoke the aid of the court, without first showing that he had been aggrieved by the action of the company. What was admitted by the exception for the purpose of testing plaintiff’s petition, was denied by the answer. See 2 An. 221, Wood v. Henderson, and Syndics, &c. v. Mayhew, 4 M. 177.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and that this case be remanded to the lower court for further proceedings according to law; the relator paying the costs of the appeal.


source: Caselaw Access Project

author: Voorhies, J.

license: Public Domain

text:
    Maria Late v. Edward Armorer and Thomas J. Frisby.
    The warrantor is not liable for tlie fees of the attorney employed by the parly evicted.
    The warrantor cannot object to the admissibility of evidence regularly taken by commission, previous to his being made a party to the suit.
    from the Sixth District Court of New Orleans, Howell, J.

      H. J. Hays, for plaintiff. Ogden & Stansbury, for defendant. T. J. Semmes, for warrantor and appellant.
   Voorhies, J.

The warrantor, T. J. Frisby, who is appellant from the judgment of the lower court, asks relief upon the assignment of two errors.

The first is, that the court allowed counsel fees to the defendant. This point has been determined in the case of Heirs of Delord Sarpy v. City of New Orleans, 14 An. 311, on which occasion the court said : “ The warrantor is not liable for the fees of the attorney employed by the party evicted. Costs, in the third clause of this Article, (C. C. 2482,) refer to the taxed costs of suit, and not the fees of attorneys.” The judgment in the present case is, therefore, erroneous in this respect.

The record contains a bill of exception to the admissibility in evidence, as to the warrantor, of some testimony taken by commission previous to his being made a party to the suit. The objection is, that he has thus been deprived of the privilege of cross-interrogating the witness.

Had this suit been decided in the absence of the warrantor, the judgment would have been binding upon him, unless he could have shown that he possessed proof, which could have occasioned the rejection of the demand, and which had not been employed. C. C. 2494.

But, although regularly summoned by the defendant, and present in court by his answer to the call in warranty, he has suggested no facts or means of defence of which the defendant might have availed himself in this controversy. The evidence objected to by him, he admits to be good to make out a case against the defendant; if so, the judgment upon such evidence is binding upon himself, unless he can make out a case under the Articles 2493 and 2494 of the Civil Code. But we have seen that such is not the position he assumes or occupies.

Were we to grant the warrantor’s request by leaving the testimony in question to militate against the defendant alone, the result would, in this instance, be the same. The latter would yet have a prima faeie case ; and accordingly, the former having failed to show any means of defence whatever against the plaintiff’s demand, judgment must be rendered sustaining the call in warranty.

It is, therefore, ordered and decreed, that the judgment of the lower court be amended, by striking out the allowance of counsel fees; and that, in other respects, it be affirmed; the defendant paying the costs of appeal.


author: Vookhies, J.

text:
    The State of Louisiana v. Delia Swift, alias Bridget Fury.
    The mere belief of a person, that an assault is made upon him under circumstances denoting an intention to take his life, or to do him great hodily harm, will not justify taking the life of the person making the assault; there must have been a reasonable ground for such apprehension to render the killing justifiable homicide.
    Although the statute has fixed the number of Grand Jurors at sixteen, it is not necessary that sixteen |* should be in attendance at the time of finding an indictment: that number is not sacramental.
    An objection to the mode of drawing and empanneling the Grand Jury cannot be made the ground of a motion in arrest of judgment.
    from the First District Court of New Orleans, Hunt, J.

      E. W. Moise, for the State. B. F. Tappan, for defendant and appellant.
   Vookhies, J.

The defendant asks the reversal of the judgment of the court below, decreeing her incarceration for life in the State Prison, for the crime of of murder; she assigns as errors several rulings, which will be disposed of seriatim.

The District Judge was requested by her counsel to give the following charge to the jury:

That if the accused believed that an assault was made upon her by the deceased under circumstances denoting an intention to take away her life, or to do her some great bodily harm, and under that belief, at the time, she killed him, the killing was justifiable homicide.”

The District Judge properly declined giving the above instruction, the fallacy of which consists in making the mere belief of the accused, that his life is threatened, a sufficient ground to take the life of another. The court below gave a correct exposition of the law, in stating to the jury “ that if, in the opinion of the jury, the deceased made an assault upon the accused, &c., from the nature of the assault, the accused had reasonable ground to apprehend that there was a design to destroy her life, or commit some great bodily harm upon her person, and thereupon, at the time, the accused killed the deceased, — the killing was excusable homicide.” See the case of The State v. Chandler, reported in 5 An. 490.

The next objection is, that only thirteen Grand Jurors were present when the bill of indictment was preferred against the accused; whilst the statute is imperative as to the number, requiring sixteen jurors to constitute that body.

The fact, that only thirteen jurors were present when the indictment was preferred, does not vitiate the proceedings, although the statute has fixed at sixteen the number of Grand Jurors. The law requires the concurrence only of twelve of them for the finding of an indictment. It is not necessary that the sixteen Grand Jurors be in attendance: that number is not sacramental. Formerly, as the law stood, no less than twelve, nor more than twenty-three were to be em-panneled as a Grand Jury, although the presence and concurrence of twelve only were required for the transaction of business. The object of the statute was, to fix the exact number of persons who were liable to service as Grand Jurors, instead of the indefinite numbor above mentioned; but in other respects, the law is unchanged. The defendant’s argument proves too much : if the sixteen jurors must be in attendance, to transact business, the concurrence of all of them is necessary to find a bill. Such is evidently not the purport of the statute, which merely directs the court to draw sixteen Grand Jurors, without reference to the mode or maimer in which they transact business.

There is no irregularity in this respect in the proceedings.

III. The defendant’s counsel, in a motion in arrest of judgment, assigns as error patent on the face of the papers, that the Grand Jury was not drawn and empanneled according to law.

The informality as to the drawing and empanneling of the Grand Jury, consists, as alleged, in the fact that, instead of being drawn from a list of one hundred and twenty-five members, they were selected from two separate drawings of fifty each, at a time not fixed by law,

The defendant’s counsel contends, that there is no statute requiring the prisoner to challenge the array on the first day of the term of court, in the parish of Orleans ; but that the statutes which provide to that effect for the State at large, expressly exclude the First Judicial District. It is not necessary to determine this point, as the objection could not be urged in a motion in arrest of judgment. It is not at all stages of the trial or in every form of exception, that this matter can be brought up successfully.

The prisoner’s counsel urges that the defect, which he points out in the manner and time of drawing the Grand Jury, in the present instance, is a matter of record ; but this does not suffice to give the accused the right to move in arrest of judgment. The defect is one of form, and not of substance. Blackstone says : “ Arrests of judgment arise from intrinsic causes, appearing on the face of the record.” The rule is laid down by Wharton as follows : The practice also is, not to arrest judgment on the ground of irregularities in the summoning, or the procedure of the Grand Jury.” (Page 863).

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Oourt be affirmed.


author: Cole, J.

text:
    Green, Harding & Co. v. J. M. Relf & Co.—Same v. R. B. Sykes—Same v. Cady & Holmes.
    An obligation signed by the members of a stock company to pay a certain amount proportionate to the stock of each, is not a joint, but a several obligation.
    Where a majority of the stockholders have, by the charter, the right to order the winding up and liquidation of the affairs of the company, and a majority of them sign an obligation to pay then* proportion of the outstanding debts, they cannot be released from the obligation on the ground that it was not binding upon any of the stockholders until all had signed.
    from the Sixth District Oourt of New Orleans, Howell, J.

      Race & Foster, for plaintiffs. Durant & Hornor and Ogden & Stansbury, for defendants and appellants.
   Cole, J.

In 1852, a stock company or limited copartnership was formed, under the name and style of the “ New Orleans and Florida Steamship Company,” under the Act of the Legislature of the State of Louisiana, approved 13th March, 1837. B. & 0. Digest, p. 613.

The object of the company is expressed in Art. 1st of their charter : “ That the operations of said company shall be, to run a steamship or ships from the port of New Orleans to and from the coast of Florida, or any other part or places on the Gulf of Mexico, for the purpose of carrying- freight and passengers.”

The steamship “ James L. Day was purchased, and the company went into operation, with plaintiffs, Green, Harding & Co , as agents, to manage and carry on the affairs of the company.

The enterprise not proving successful, the members of the company, embracing the defendants and all the stockholders then forming the company but one, availed themselves of Art. 10th of the charter to wind up and liquidate the affairs of the company. Art. 10th is as follows :

“ That at the expiration of the term for which the said company is formed, or sooner, if the majority of the stockholders shall so decide, the President and Board of Control shall proceed to wind up and liquidate the affairs of the said company in such manner as shall be decided by said stockholders.”

Under this Article, document B was signed by all the stockholders but one. It reads as follows :

“ The undersigned stockholders in the New Orleans and Florida Steamship Company, believing it for the interest of all concerned, that the affairs of said company should be wound up and liquidated, agreeably to the Article 10th of the act of copartnership, recommend that the steamer James L. Day, alter due notice, be sold at auction on such terms as the President and Board of Control shall decide.

The proceeds of the sale of the boat and all other property and assets to be applied to the payment of the debts of the company; and in case they should prove insufficient for that purpose, and the claim of the company against the United States Government for carrying the mails cannot be immediately collected, then, in that case, the agents are hereby authorized to pay the outstanding debts of the company, and call upon the stockholders for their proportion of the same.”

Acting upon this authorization, the agents proceeded to liquidate and settle up the affairs of the company.

The steamship James L. Day was sold at auction upon the terms agreed; the other properties and assets of the company were disposed of, when there was found a deficit of §19,546 79 against the company.

The claim against the United States being rejected by the Government, plaintiffs called upon the various members of the company for their several proportions of the deficit. Several of them paid the amount of their obligations, in proportion to the amount of stock possessed by them. The defendants having refused to pay, these suits have been instituted to compel them to pay their proportion according to the stock owned by them.

There was judgment for plaintiffs, and defendants have appealed.

Our attention is called by appellants to their exception to these suits, on the ground that the obligations of defendants are based upon a joint contract, and that all charged as obligors should be made defendants in one action.

The District Court properly overruled this exception. The defendants, in signing document B, obligated themselves to pay respectively a certain amount proportionate to the stock of each. This was not a joint, but a several obligation. C. C. Arts. 2073, 2075, 2079. Each of the stockholders promised separately for himself to do a distinct act, which was to contribute according to the amount of his stock, to pay the plaintiffs the amount they may have disbursed for the outstanding debts of the company.

There is also a bill of exceptions taken to the admission of document B. It is objected that it was not signed by all the stockholders of said company, and that it was not binding upon any until all had signed.

By Art. 10th of the charter, a majority of the stockholders have the right to order the winding up and liquidation of the affairs of the company. It is unue-cessary for us to decide whether all the formalities required by law for a dissolution of the company have been followed; it is sufficient in the present case to say that the defendants hare voluntarily entered into a contract by which they assumed certain obligations, and they do not appear to have been induced to assume them either by error or fraud.

According to the 10th Article alluded to in document B, a majority of the stockholders had the right to wind up and liquidate the affairs of the company; a majority of the stockholders signed document B ; therefore, defendants cannot justly complain that every one did not sign it, and thus free themselves from obligations assumed on the strength of their signatures to document B.

Upon the merits, the judgment appears to be correct.

Judgment affirmed, with costs of appeal.


text:
    State of Louisiana v. Maitremme.
    .The bitten or verbal statements of a prosecutor, "are considered as merely hearsay evidence, and ' *n not//admissiblo, excopt to rebut his declarations on the witness stand, or when received after his ” dsath in a case of homicide, as dying declarations.
    from the District Court of the Parish of St. John the Baptist,

      Duffel, J. W. C. Lawes, District Attorney, for the State. H. St. Paul, for defendant and appellant..
   Voorhies, J.

The defendant was prosecuted for the offence of stabbing and thrusting, with a dangerous weapon, with intent to murder. The jury returned a verdict of guilty for assault and battery; and the District Judge passed sentence accordingly.

The case is brought up on a bill of exception to the ruling of the inferior court, refusing to admit in evidence a letter written by the prosecutor, who, it appears, died previously to the trial; and also to permit a witness to testify to conversations held with the deceased prosecutor. This ruling was correct. The written and verbal statements of a prosecutor, are merely hearsay, and can be received in evidence only for rebutting his declarations on the witnesses’ stand, or when they come within the category of dying declarations.

But, in the present instance, the statements of the prosecutor or injured party, are not offered as dying declarations, nor as discrediting evidence. Indeed, they could not be tendered for either of these purposes, as the question was not one of homicide; and, the prosecutor having died previously to the trial, there could have been no occasion to discredit his testimony. The defendant contends that they are original evidence, as emanating from a party interested.

This is a mistake. The injured party, in a criminal prosecution, is a mere witness : the State is the plaintiff, and the accused, the defendant.

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


author: Land, J".

text:
    William R. Bell v. Massey & Poultney.
    Judgments are interpreted witli reference to the pleadings and the nature of the obligations on which they have been rendered.
    When parties are sued on an obligation .on which they are jointly and severally bound, judgment will be rendored accordingly against them, without any allegation or prayer in the petition for a judgment in sólido.
    Whore a suit is brought against persons bound jointly and severally according to law as commercial partners, a judgment rendered against them carries soMdaHty with it even when not expressed in it.
    Where a promissory note made payable to the order of a firm, is endorsed by each member of the firm separately, in the absence of proof to the contrary, the payees will be presumed to be commercial partners, and each bound by his endorsement for the whole amount of the note.
    from the Sixth District Court of New Orleans, Howell, J.

      Michel <& Koomtz, for plaintiff and appellant. Durant & Hornor, for defendant.
   Land, J".

The question presented for our decision in this case, is the liability of the plaintiff on a judgment recovered by the defendants against him and others, on a promissory note, as follows :

$439 05. New Orleans, March 26th, 1856.

Twelve months after date, we promise to pay to the order of Hawes & Bell four hundred and thirty-nine dollars and five cents, value received.

(Signed) Medley & Oo.

(Endorsed) Peter Hawes,

W. R. Bell,

C. E. Christensen.

The judgment in question is in these words : “ That the plaintiffs, Massey & Poultney, recover from the defendants, W. R. Bell, C. E. Christensen and Wih Ham Phillips, the sum of four hundred and thirty-nine dollars and five cents, with legal interest from the 29th day of March, 1857, until paid, and five dollars and fifty cents, costs of protest and costs of suit.”

Judgments are interpreted with reference to the pleadings, and the nature of the obligations on which they have been rendered. The judgment against the plaintiff and other parties to the promissory note, tested by this rule, is a judgment in solido, or rather, a judgment against each one for the whole, because they were sued by Massey & Poultney as the makers and endorsers of the note, and the obligation alleged in the petition as the cause of action is, in law, an obligation joint and several, or several and not joint. "Where parties are sued on an obligation on which they are jointly and severally liable, judgment will be given accordingly against them, without any express allegation or prayer for a judgment in solido. Chapman v. Early, 12 La. 230. And where a suit is brought against persons bound jointly and severally, according to law, as commercial partners, the judgment carries solidarity with it, although not expressed. Prall v. Peet, 3 La. 283.

The promissory note on which the judgment was rendered against the plaintiff, was made payable, as above stated, to the order of Hawes & Bell, and is endorsed by each of them separately and individually. In the absence of proof to the contrary, in such a case, the payees are presumed to be commercial partners, and each is bound, by virtue of his endorsement, for the whole amount of the note.

The appellees have joined in the appeal, and prayed for an amendment of the judgment.

It is, therefore, ordered and decreed, that the judgment he amended, and that plaintiff he declared to be liable for the whole amount of the promissory note on which judgment was rendered; and that the judgment in this case, thus amended, he affirmed, with costs.


author: Land, J.

text:
    Frellson, Stevenson & Co. v. W. B. Stewart.
    A judgment creditor has no right to proceed against the property of his debtor by process of attachment.
    from the Pourth District Court of New Orleans, Price J.

      Elmore & King, for plaintiffs. Gaither <& McPheeters, for defendants and appellants.
   Land, J.

The plaintiffs obtained a judgment against the defendant in the parish of Madison in this State, for the sum of fl,7Yl 85, and afterwards instituted this suit on their judgment, in the Pourth District Court of this city, and on the allegations that defendant was an absentee from the State, and that the Liverpool and London Insurance Company and the Sun Mutual Insurance Company were indebted to the defendant, caused process of attachment and garnishment to he issued in pursuance of the prayer of their petition.

A rule was taken by the attorneys of the defendant on the plaintiffs, to show cause why the writ of attachment should not be quashed and set aside, and this suit dismissed on the ground “ that an attachment cannot legally issue after judgment, and that the enforcement of a judgment cannot he made by said writ," among other grounds, which it is unnecessary for us to notice, as we consider this ground alone sufficient to dissolve the attachment, and dismiss the suit, for the following reasons :

Pirst. Because a judgment creditor has no right, under our attachment laws, to proceed against the property of his debtor, by process of attachment. His remedy is by writ oí fieri facias for the collection of his judgment. C. P. Art. 641.

Secondly. Because a judgment creditor was not even entitled to the process of garnishment, before the passage of the Act of the 20th of March, 1839, p. 166, and the Act of the 18th of March, 1840, p. 43, amendatory thereof; and the plaintiffs did not comply with the provisions of these Acts, by applying for and causing a writ of fieri facias to issue on their judgment, as they were bound to do, in order to avail themselves of the remedy given by these statutes. Parties resorting to the remedy of attachment, or garnishment, have ever been held to a strict compliance with all the formalities prescribed by law, under the pain of nullity. Featherston’h v. Compton, 3 An. 380 ; Petway v. Goodin, 12 R. 445.

It is, therefore, ordered, adjudged and decreed, that the judgment he reversed; and it is now ordered, adjudged and decreed, that the writ of attachment issued in this case be dissolved, and that this suit be dismissed at the costs of the plaintiffs in both courts.


author: Land, J. Merrick, 0. J.,

text:
    James D. Swan v. George Moore.
    Where a party is interrogated on facts and articles, and his answer is ambiguous, but the fact sought to be established is rendered reasonably certain by the circumstances to which the party interrogated refers in his answers, it will be considered as sufficiently proved.
    The want of belief on the part of one who has been informed of the existence of an unrecorded title to property, does not impair tho effect of the notice thus received.
    Creditors are as much bound by the actual knowledge of a prior unrecorded title as subsequent purchasers are, tho law having made no distinction between them as to the effect of notice or knowledge derived from the registry of an act of sale or mortgage.
    Actual knowledge of an unrecorded title on the part of a creditor is equivalent to Icnowledg cor notice resulting from tho registry of such a title.
    PPEAL from the Fifth District Oourt of New Orleans, Eggleston, J.
    _Ol G. W. Christy, for plaintiff. G. S. Lacy and R. A. Upton, for defendant and appellant. L. Charvet, for warrantors.
   Land, J.

This is an hypothecary action, in which the plaintiff alleges, that on the 25th day of January, 1856, he obtained a judgment against one J. H. Cruse, for the sum of $931 38, and that on the 2d day of February, 1856, he caused his judgment to be duly recorded in the mortgage office of New Orleans. That on the 24th of July, 1854, the said J. H. Cruse, by public act of sale, conveyed and sold unto George Moore, the defendant, the undivided half of four certain lots of ground situate iu the Second District of said city ; and that although said act of sale was executed on the 24th of July, 1854, the same was never registered in the office of the Register of Conveyances in said city, until the 4th day of December, 1856, and more than ten months after the registry of his judgment. And that, by reason whereof, he has obtained-a lien and mortgage on said real estate, and that the same now stands hypothecated in law for the payment of his judgment, the interest thereon, and costs of suit.

The defendant’s answer, admitting the purchase as alleged, contains a special averment, that at the time the plaintiff pretends to have acquired the mortgage and lien, he was well aware that he, defendant, had become the bona fide purchaser and owner of said property, for a valuable consideration, and that it is in bad faith on the part of the plaintiff, to attempt to exorcise the lien claimed in his petition. The answer contains a further averment, that the non-registry of the act of sale was in consequence of the neglect of duty of the notary before whom it was passed, and calls in warranty the notary, and the sureties on his bond, and prays for judgment over against them, in solido, in the event of the plaintiff obtaining judgment against him.

Upon the issues thus presented by the pleadings, there was a judgment in favor of the plaintiff, and a judgment dismissing the call in warranty, from which the defendant has appealed.

Before considering the case on the merits, it may be observed that the reality aud good faith of the sale from Cruse to the defendant, are not put at issue by the pleadings, nor called in question upon the evidence.

For the purpose of proving the fact of knowledge alleged in the answer, the defendant propounded interrogatories on facts and articles to the plaintiff who answered the second interrogatory as follows : “ I have heard it said that Moore claimed this property; at what time I heard this, I do not recollect, bnt it was about the time that a case was pending between Johnson and Cruse, and the property was in the bauds of the Sheriff, so I understood, at the time I heard this report, I did not believe it. I have no recollection that I knew this previous to the 2d of February, 1856. I have no recollection that I was informed of this anterior to the month of February, 1856.”

This answer is ambiguous as to the date at which the plaintiff received notice of the defendant’s claim or title; but by reference to the suit of Johnson v. Cruse, mentioned in the answer, we find that suit was commenced on the 14th of January, 1854, and the property was in possession of the Sheriff, under a seizure, on the 8th of December, 1855, nearly two months prior to the registry of the plaintiff’s judgment, which was by confession subsequent to the seizure by the Sheriff; and we also find, by reference to the suit of the defendant, Moore, v. Hufty, Sheriff, that he had judicially claimed, and that the Sheriff had been enjoined from selling the property now in dispute, prior to the registry of the plaintiff’s judgment, on the ground of the defendant’s ownership of the property seized. And as the plaintiff has referred in his answer to the suit of Johnson v. Cruse, and the seizure of the Sheriff, as facts or circumstances fixing the date at which he heard it said that the property .was claimed by defendant, it is reasonable to presume, that he heard of the defendant’s claim prior to the registry of his judgment on the 2d of February, 1856. His want of recollection is not a negation of the fact, which is rendered reasonably certain by the circumstances to which he referred in his answer. His want of belief did not impair the effect of the notice which he received of the defendant’s title.

There are but two modes in which persons not present can acquire a knowledge of an unrecorded sale of real estate: first, by information from others of the fact, and secondly, by an examination or inspection of the act of sale itself. 'Whether the information is received from hearsay, or from inspection, the party may well be said to have a knowledge of the sale. Indeed, it is almost universally the case, that knowledge of an unrecorded title, or claim, is acquired from information, or hearsay, and if the plaintiff could free himself from the legal effects of notice, or knowledge of an unrecorded title, by saying, that he did not believe it, although he had heard it, then there would be but one mode by which his knowledge of the fact could be established, and that is, by evidence of his inspection of the act itself. This would be tantamount to holding that knowledge of the existence of a sale, not derived from the registry of the act, is without any legal effect. For a party who does not believe what he hears touching an unrecorded claim, or title to real estate, may decline to inspect the act of sale, and thus put himself beyond the reach of all notice of title, except that which results from the registry of the act itself. The plaintiff was informed of a fact which was true, and evidenced by a notarial act — but without any inquiry or investigation on his part, says, that he did not believe it. How, then, could notice of defendant’s title have been brought home to him, except by registry, as he declined to inspect the act of sale, if it be true that his incredulity freed him from the legal effect of his knowledge of title derived from other persons ?

It has been held, that actual knowledge of a prior unrecorded title, is equivalent to notice resulting from the registry of the act, from whatever source such knowledge may have been derived. Splane v. Mitcheltree, 2 An. 265. It is well settled, that the formality of recording is for the purpose of giving notice to individuals, and that if a party have knowledge of that of which it is the purpose of' the law to notify him, by causing an act or instrument to be recorded, the effect is the same, and he is as much bound by his knowledge, as if his information were derived from an inspection of the record. Planters’ Bank v. Allard, 8 N. S, 144; Rachal v. Normant, 6 R. 88; Robinett v. Compton, 2 An. 846. In the cases of Crear v. Sowles, 2 An. 598, and of Toulane v. Levinson, ibid 788, on which the plaintiff’s counsel relies as establishing a contrary doctrine, there was no proof in either case, that the creditor of the vendor had any knowledge or notice at the time he acquired his right of mortgage in the one case, by the registry of his judgment, or his right of privilege in the other, by the levy of his attachment, that the property of his debtor had been sold, and they are not, consequently, adverse authority to the cases cited. So true is this, that Chief Justice Eustis, who delivered the opinion of the court in the case of Toulane v. Levinson, and Judge Rost, who delivered the opinion in the case of Crear v. Sowles, concurred in the decision of the case of Splane v. Mitcheltree, which declared the doctrine of notice in relation to conveyances of real property to be a principle in the. jurisprudence of this State.

It is however contended, that the doctrine of notice does not apply to creditors. In the case of the Planters’ Bank v. Allard, 8 N. S., which is a leading case on the subject, the doctrine was fully considered, and it was declared to be a settled rule, that actual knowledge is equivalent to notice resulting from registry. And after reviewing the decisions of the court announcing the same doctrine, under the old Code, Judge Martin says : These last decisions in construction of the old Code have not escaped the attention of the Legislature, and the spirit of them lias been incorporated in Art. 2242 of the new Code.” In the case of Martinez v. Layton, 4 N. S. 368, referred to by Judge Martin, as a decision under the old Code, it had been expressly decided that the doctrine of notice applied to creditors.

Article 2242 of our present Code is in these words : “ Sales or exchanges of real property and slaves, by instruments made under private signature, are valid against bona fide purchasers and creditors, only from the day on which they are registered in the office of a notary, or from the time of the actual delivery of the thing sold or exchanged.”

This Article of the Code, so far as it establishes the doctrine of notice, was not repealed by the Act of 1855, “ relative to registry,” nor by the Act “ creating a Register of Conveyances for the Parish of Orleans,” because the repealing clause in each of said acts excepts what is contained in the Civil Code on the same subject-matter. See Acts 1885, pp. 335, 345.

If Judge Martin and his colleagues were right in the conclusion, that the Legislature had established the doctrine of notice by the enactment of Art. 2242 of the Code, then it follows, as a necessary consequence, that creditors arc as much bound by actual knowledge of a prior unrecorded title, as subsequent purchasers are,' — for so the Legislature has expressly declared, and by the force of its will, has put the question beyond the reach of opinion or argument. But if these learned Judges were in error, and Art. 2242 be repealed, it remains to consider whether there be any decision of this court against the doctrine, as applicable to creditors, and if not, whether the doctrine is well founded in principle. The cases of Crear v. Sowles, 2 An. 598, of Toulane v. Levinson, ibid 788, of Williams v. Hogan, 2 La. 125, of McManus v. Jewett, 6 La. 541, of Mary v. Lampré, 6 R. 314, and of Poydras v. Laurans, 6 An. 772, decisions cited against the doctrine, are but declaratory of our registry laws, as they are forrad in the statute books, the last ease deciding that possession is not evidence of a sale not recorded. In none of these cases were there allegations and proof that the creditor had actual knowledge of the vendee’s unrecorded title, before, or at the time he acquired his right of mortgage, or privilege. It is true that the dictum in the caso of Toulane v. Levinson is sufficiently strong and broad to expunge from our jurisprudence the whole doctrine of notice in regard to purchasers as well as creditors, and that the same dictum is reiterated in the case of Poydras v. Laurans, but this dictum was not necessary to the decision of either of these cases, and has not, therefore, the effect of a judicial decision, nor the force of authority. Indeed, one half of the doctrine announced by the dictum in the case of Toulane v. Levinson vms conceded, in the case of Poydras v. Laurans, to be against the decisions of this court.

The question under consideration is not, whether an unrecorded title is without effect as to third persons, for that is fully admitted, and our registry laws are so plain on the subject, that argument but obscures and clouds the text — but the question is, whether actual knowledge of an unrecorded title, on the part of a creditor, is equivalent to knowledge or notice resulting from the registry of the acts, for if this be so, then the act of sale is, in the eye of the law, a recorded title, in relation to the creditor having knowledge of its existence. As this question has not been decided in any of the cases referred to, under the Oode of 1825, or the legislation subsequent thereto, nor in any case which has come to our knowledge, and as the dictum of a Judge, or what is said in arguendo, has never been regarded as having the force and effect of a judicial decision, the question is, therefore, an open one, and has to be considered and decided on legal principles.

We find that creditors and purchasers are put on the same footing by our registry laws, whether contained in the Civil Oode, or in the Session Acts of the Legislature. We find that an unrecorded title is without effect as to purchasers, as well as creditors, and that a recorded title takes effect from the day of registry against creditors as well as purchasers, and that, consequently, the law has made no distinction between them as to the effect of notice, or knowledge, derived from the registry of an act of sale, or mortgage. Why should the courts make a difference between them, when the Legislature has made none? Cannot a creditor commit a fraud on the rights of a vendee, as well as a purchaser, and is not the former bound by the obligations of good faith, as well as the latter ? If a creditor witnesses an act of sale, and afterwards acquires from the vendor a special mortgage on the property sold, and attempts to enforce it by virtue of a prior registry, against the property in Jhe hands of the vendee, does he not thereby commit an act of fraud on the rights of the vendee ? If a creditor is present when an act of sale is passed, and afterwards obtains a confession of judgment from the vendor, and causes his judgment to be registered before the act of sale is recorded, and subjects the property to the payment of his judgment, does he not thereby perpetrate a fraud upon the rights of the vendee? If a creditor has actual knowledge of a sale, from whatever source derived, and afterwards goes to the vendor, and acquires a special mortgage on the property, or obtains a confession of judgment, and records the former, or registers the latter, before the act of sale is recorded, and claims a right of mortgage on the property, does he not like, wise commit an act of fraud on the rights of the vendee ? If the doctrine of notice is not applicable to the creditor, he may do any or all of these acts, which have been held to be fraudulent, and without effect, as to the vendee, in the case of a purchaser, who stands on the same footing with the creditor, in relation to the registry laws.

But, it may be said, that the want of good faith on the part of a creditor, in these instances, would prevent him from availing himself of the non-registry of the vendee’s title. If so, then the same reasons which have induced the court to apply the doctrine of notice to a purchaser, exist in full force against a creditor. For, if the creditor is in lad faith, what is it that constitutes his bad faith ? It is certainly his knowledge of the vendee’s unrecorded title, because if the mortgage were acquired without knowledge, or notice, it would be a legal right under the registry laws, which could be enforced in good faith. His knowledge, therefore, of the unrecorded sale necessarily constitutes his bad faith — which knowledge is all he could derive from the registry of the act, and which is the whole object of the law in requiring the act to be recorded, and he therefore stands with a purchaser upon the same grounds, in relation to the vendee, whether his knowledge be derived from registry, or from other sources, and the same law, and the same reasons which have induced the courts to apply the doctrine of notice to a purchaser, exist in full force against him.

The right to purchase property and to record the title, is not less absolute on the part of a purchaser, than the right on the part of the creditor to sue, and cause his judgment to be registered; and the former could with as much legal propriety urge his right to purchase, as a reason why the doctrine of notice should not be applied to him, as the latter could his right to sue, and to cause his judgment to be recorded; and therefore, no distinction can be made between them on this ground.

The maxim of our law, that the property of the debtor is the common pledge of his creditors, does not affect the question, because a sale in good faith is as valid and binding, under the registry laws, against creditors, as purchasers, and whenever notice, under these laws, is binding on purchasers, it is also made binding on creditors.

If, on the other hand, it be said that a creditor, with actual knowledge of an unrecorded title, may acquire a special mortgage, or obtain a confession of judgment, from the vendor, and by virtue of a prior registry, subject the property to the payment of his debt, the consequences of such a position would be these : although the Legislature has enacted a registry law which places creditors and purchasers on the same footing of equality, as to the formality of the registry of acts of sale and mortgage, and as to the effect of the notice resulting therefrom, and has, in plain and unambiguous language, declared that a registry of title as to purchasers, shall be valid as to creditors, yet the law of registry applicable to purchasers is different from the law of registry applicable to creditors; that purchasers are bound by their actual knowledge of title, from whatever source derived, and, consequently, bound by the obligations of good faith, but that creditors are not. The first of these consequences, is a disregard of the legislative will, which places creditors and purchasers on a footing of perfect equality as to the effect of notice resulting from registry. The second consequence is at war with the first element of jurisprudence, which is, that all men should live honestly. If it is dishonest for a purchaser, with knowledge of the vendee’s title, to defraud him by a subsequent purchase, it is equally dishonest for a creditor with knowledge to acquire and enforce a mortgage on property which he knows does not belong to his debtor.

Hence we conclude, that as the law has made no distinction between these two classes of persons, as to the character and effect of notice resulting' from registry, none can be made on principle; and that, if the doctrine is applicable to the one, it is applicable to the other.

It is, therefore, ordered, adjudged and decreed, that the judgment, as between plaintiff and defendant, be reversed; and it is now ordered, adjudged and decreed, that there be judgment in favor of defendant, with costs in both courts. And it is further ordered and decreed, that the judgment dismissing the call in warranty be affirmed with costs.

Merrick, 0. J.,

dissenting. The proof in this case is very far from showing, in my opinion, that the plaintiff had knowledge of a sale from Cruse to Moore, prior to the recording of his judgment. He says, he heard that Moore claimed the property, but he did not believe the report. So, too, as to the time ; the property was under seizure for some months, and it might have been long after the mortgage was recorded, that Swan heard the rumor. But as my colleagues have found the facts adversly to the plaintiff on this branch of the case, I advert to it only to show, that I do not think the plaintiff can be charged with a want of good faith in pursuing the remedies which the law has given him. Cruse was the debtor of plaintiff for work and labor, much of which was done and furnished prior to the act of sale from Cruse to Moore. There is, therefore, just as much reason to charge Moore with having bought to defraud creditors, as to charge Swan with an intention of defrauding Moore, and I see no reason to charge either with bad faith. They are innocent persons, each endeavoring to avoid a loss. Swan seeks to render the property which his debtor held, when he furnished him with the work and labor, liable for his debt. Moore seeks to withdraw this property from the creditor to whom the law had given a sort of pledge, by Articles 3149 and 3150 0. 0., and claim it as his own. Moore’s money never went into Swan’s hands, therefore, nothing estops Swan from pursuing his legal remedies and making that property, (on the faith of which the credit may be supposed to have been given,) responsible lor his debt.

In the further consideration of the case, I shall consider as proven, as my colleagues have done, that Swan had heard of Moore’s claim upon the property before he recorded his judgment. That Swan had seen the act of sale, or had any certain information of its contents, I do not hear contended.

It is supposed by a majority'of this court, that the case is controlled by Art. 2242 of the Oivil Code, and some decisions under it. The Article is under the title, Or Acts under private signature. It is in these words :

“ Art. 2242. Sales or exchanges of real property and slaves, by instruments under private signature, are valid against bona fide purchasers and creditors only from the day on which they are registered in the office of a notary, or from the time of the actual delivery of the thing sold or delivered.”

If this Article of the Code was the only law on the subject, as it was considered at the time when the decisions cited were rendered, there would be no reason to depart from them. But as the law itself has been radically changed, and new provisions and requirements added, and as the same court which rendered the decisions relied on, followed the new law, it seems to me no longer an open question. Indeed, I cannot see how the lawgiver can use more positive language in his enactments, or the courts could show a more willing obedience to his requirements.

The law with regard to the parish of Orleans, under the title of Register of Conveyances for the parish of Orleans, declares, sec. 27, that “ Acts, whether they aro passed before a notary public or otherwise, shall have no effect against third persons, but from the day of being registered.” Acts of 1855, p. 345.

By another Act, a similar provision is extended to the country.

“ Sec. 14. It shall be the duty of the Recorder to endorse on the back of each act transmitted to him, the time it was received by him, and to record the same without delay, in the order in which they were received; and such acts shall have effect against third persons only from the date of their being deposited in the office of the parish Recorders.”

Then, under the head of registry, the lawgiver says generally :

“ Section 1. That no notarial act concerning immovable property, shall have any effect against third persons, until the same shall have been recorded in the office of the parish Recorder or Register of Conveyance of the parish where such immovable property is situated.”

And in the last paragraph of the second section of the same Act, it is declared, that:

All sales, contracts and judgments, which shall not be so recorded, shall be utterly null and void, except between the parties thereto. The recording-may be made at any time, but shall only effect third persons from the time of recording.” Acts of 1855, p. 335.

This is the last expression of the legislative will upon the subject, and it is dear, precise, and contains no exception or qualification.

To me, the argument by which it is sought to be proved, that this last expression of the sovereign will is not obligatory and binding to its full extent, seems liable to many objections.

If I ask, did not the Legislature have the power to pass this law ? The answer from every quarter is, it did have the power. If I ask again, are not the precise, positive, and stringent provisions of this law, the will of the lawgiver ? There can, it seems to me, be but one answer : He would not have taken ihe pains to have expressed his will with such minuteness and enforced it by reiteration in other Acts, unless such had really been his will. As the lawgiver has the power, and such is his will; what is it, but the law ?

But it is said, the repealing clause of these statutes of 1855, does not repeal Article 2242 of the Civil Code. To this I reply, that it is not important to the decision of this case to decide, whether these Acts did or did not repeal the Art. 2242, for they are on a different subject. Art. 2242 relates to the registry of acts under private signature before the notary, doubtless in order to assure their dates.

These statutes are passed in order to give certainty, and publicity and perpetuity, to titles to real estate, and to furnish authentic evidence thereof, and the registry of all ads notarial or under private signature, is to be made before the Register or Recorder, and this difference must have been adjudged to exist, or the Act of 1810 could, not have been held to survive the repealing Act of 1828.

Again, these statutes of 1855, are but a reenactment of the Acts of 1810 and 1827 (well known to the profession). According to the decision in the Holmes and Wiltz’ case, their reenactment cannot be considered as destroying their former effect, and consequently their influence upon the Code.

But the repealing clause cannot bear the construction contended for. It is in these words, viz: “ That all laws contrary to the provisions of this Act, and all laws on the same subject-matter, except what is contained in the Civil Code and Code of Practice, be repealed.”

What is the object of a repealing' clause ? Is it not to abrogate all provisions of law inconsistent with the newly declared will of the sovereign power ? Is it to do the strange and inconsistent office of declaring the statute just enacted repealed by a former law ? Are the statutes of 1855 repealed by laws passed in 1825 ?

All subjects are presumed to know the law. Much more, therefore, must the lawgiver be presumed to know what he has previously prescribed as a rule of action, and it must be held, that the Legislature knew the provisions of the Civil Code and Code of Practice, which it had enacted and caused to be promulgated. It did not, therefore, solemnly exert the sovereign power to do an act which it knew would be entirely nugatory, or, in its own language, utterly null and void, because in conflict with other inconsistent provisions of the ancient law which it then and there determined to declare should stand.

The repealing clause is what it purports to be, a repeal. It repeals all laws inconsistent. It goes further, it repeals all laws on the same subject-matter, except what are contained .in the Civil Code and Code of Practice. If the Judge finds anything inconsistent with this new expression of the legislative will anywhere, he must declare it repealed, because lex posterior derogat priori. And he is not to regard anything on the same subject-matter unless he shall find it in the Civil Code and Code of Practice.

Having thus shown, as I think, that the new statutes are in force, or, in other words, not repealed by the ancient laws, I now proceed to show that these statutes, before they were reenacted in 1855, were repeatedly recognized as the law by this court, and carried into effect. It is sufficient for the purposes of this opinion to show that they have been so regarded by this court, and if it has made one exception, it only proves the rule and does not weaken the present case.

The exception admitted by the court is the solitary case, where the conduct of a subsequent vendee, who has recorded his deed before a former vendee, has been fraudulent. Here the courts deprive him of the advantage gained by his fraud, probably on the ground that a party ought not to be permitted to avail himself of a statute made to prevent fraud, in order to commit a fraud. See Splane v. Micheltree, 2 An. 265.

Not long after the Act of 1821 was passed, the same court, which had decided the cases of Martinez v. Layton, 4 N. S. and Planters’ Bank v. Allard, 8 N. S., gave effect to the latter statute, notwithstanding the previous decisions, and held that an attachment by a creditor, defeated a sale which had been made the preceding day by the debtor, to a third person, but not recorded. Williams v. Hagan, 4 L. R. 125. This doctrine was reaffirmed in McManus v. Jewett, 6 La. 541. In the case of Brassac v. Ducros, 6 Rob. 338, it was held, that the sale of property of the community by the husband could not bind the wife who subsequently renounced the community; that she was a third party and stood in the position of a creditor, and could only be bound by the registry of the act executed by her husband. The doctrine of this case was admitted in the case of Stockton v. Briscoe, 1 An. 249.

In the case of Many v. Lampré, 6 Rob. 314, the statute of 1827 was again considered, and enforced against a vendee with a recorded title, his vendor’s deed not having been recorded prior to the judgment. This last case has been overruled by the case of Stockton v. Briscoe, 1 An. 249, so far as it applies to a case where the junior title is recorded, but not as to the necessity of producing a recorded title to some of the vendees.

In the case of Crear v. Sowles, it being- a case of seizure under attachment, the court declares, in effect, that no case of notice can be made out against an attaching creditor, equal to registry, and, notwithstanding the notice, they maintained the attachment. 2 An. 598.

In the case of Tulane v. Levinson, the court says :

“It is in evidence that plaintiff’s attorney before the issuing of the fieri facias, under which they became purchasers, was apprised of the existence of the act of sale to Bartlette, and of its being recorded in the mortgage office ; but that on finding no record of it in the office of the parish Judge, he had the lot seized and bought in for his clients, the plaintiffs. As we consider the right of the plaintiffs to have the property sold to satisfy their debt, paramount to that of the defendant, under his unrecorded deed, by virtue of their recorded judgment, we do not know how that right can be impaired by this knowledge on part of the attorney. The theory, that notice is equivalent to registry in relation to conveyances of real property, we do not understand to have been adopted in our jurisprudence. The subject is one of great interest, and by no means free from difficulty.” 2 An. 789 ; 1 An. 80 ; 2 An 316 ; see also 4 Rob. 7 ; 2 Rob. 379 ; and 2 An. 610.

The doctrine of registry was again considered in the case of Poydras v. Laurans, 6 An. 772, and here Chief Justice Eustis, remarking upon the case before him,says :

“ The counsel for the plaintiff has urged to the court the rule which obtains in England and most of the United States, that notice to a party constitutes such an equity as entitles Mm to protection. The statutes of England relating to the registry laws, which apply to certain counties only, as well as those of several of the States, are not similar to ours on the same subject. The decisions under those statutes, as to what will serve the holder of an unregistered deed, forms no part of our jurisprudence. Nor has the doctrine ever been recognized by this court, that possession under an act of sale, not recorded, was sufficient evidence of notice to creditors and subsequent purchasers to defeat the operation of the registry laws. In the case of Toulane v. Levinson, 2 An. 789, we said : ‘ The theory that notice is equivalent to registry, in relation to conveyance of real property, we do not understand to have been adopted in our jurisprudence.’ ” The subject,” continues the Chief Justice, has been several times under consideration, and the difficulties attending every mode in which laws of that description have been carried into effect, in different countries, have been examined and weighed. The only cases in which there has been any exception to the effect of the registry of conveyances, are those of gross fraud on the part of purchasers.” Splane v. Micheltree, 2 An. 265 ; McGill v. McGill, 4 An. 269.

After these repeated decisions of the court, it would seem needless to quote further authorities.

All I can say is, here are the statutes which are absolute, and thei-e are the decisions recognizing their binding force. 'Why should we not follow them ? See also Bullard & Currys Dig. p. 603, and Armstrong v. White, 10 An. 609.


text:
    M. Brown & Co. et als. v. V. Duplessis and City of New Orleans.
    The streets of an incorporated city are destined for public use, but not for a particular mode of public use.
    The city of New Orleans has the right to sell the right of way in the streets to private individuals, for a specified timo, with the privilege of laying rails and running horse cars over them, according to a tariff to be fixed by the Common Council; this right is conferred upon the city by the Act incorporating it, and upon all incorporated cities or towns in the State, by the Act of 1855, relative to the organization of corporations for works of public improvement.
    from the Fifth District Court of New Orleans, Eggleston, J.

      Koontz & Roselius, for plaintiffs and appellants. Michel <ft Dufour, for defendants.
   Cole, J.

The principal question in this case is, whether the corporation of

the city of New Orleans has the power to sell the right of way for twenty years for the establishment of a railroad in the streets of the city ; the cars to be drawn by horses or mules, and to be run as often, per day or nig'ht, as the contractors may deem proper, but not at greater intervals than every ten minutes, from daylight until ten o’clock P. M., and every thirty minutes from ten o’clock until midnight.

The Comptroller, in pursuance of the authority vested in him by an ordinance of the Common Council of New Orleans, offered the right of way for sale.

The adjudication was arrested by an injunction, at the instance of the plaintiffs, who allege themselves to be owners of real estate in the city, situate on the streets through which the railroads are to be laid and run.

Plaintiffs allege that the Common Council of New Orleans is without authority in law to sell or lease the right of way aforesaid, because said right and authority are not by law vested in the Common Council, but in the Legislature of the State of Louisiana.

Theyallege, further, that the city of New Orleans has not the right to lease said right of way, without first having obtained the consent of the property holders on said streets.

That the construction of said railroad track, and the running of cars upon said road, in said streets, will cause their property to depreciate in value ; and further, will deprive petitioners and others, of the free and unreserved use of open streets, accessible at all times and places, for vehicles usually traversing the public streets of New Orleans, and will create and maintain an obstruction in said streets for twenty years.

Petitioners further allege, that the Common Council of New Orleans is not authorized in law to grant said right of way, in said public streets, for twenty years, for railroad purposes, to the exclusive use and benefit of the parties who may purchase the same, because said acts are an appropriation of a portion of the public streets of the city of New Orleans for private uses, which is illegal and reprobated by law. They also aver that the ordinance creates an obstruction, because it prescribes that on certain of said streets, the cars shall only be allowed to run in one direction, and never in the other direction.

The corporation of New Orleans took a rule on the plaintiffs to show cause why the injunction should not be dissolved, because the petition exhibited on its face no grounds for the issuance of the writ.

Upon the trial of the rule, it was made absolute, and the injunction was dissolved. Plaintiffs have appealed.

The material inquiry in the decision of this case is, what are the rights of plaintiffs to the streets of New Orleans ; for if their rights are not disturbed, they have no personal ground of complaint.

Streets, public walks and quays, are things which belong in common to all the , inhabitants of cities and other places, and to the use of which all the inhabitants of a city or other place, and even strangers are entitled in common. O. 0. 449, 444 and 445.

Plaintiffs cannot then claim an exclusive use of the streets, or complain if their use of the same be impeded by a similar use of the streets by other persons. No citizen is empowered to demand such an exclusive use of 'the streets, as will free him absolutely from inconvenience. It is an inconvenience for him who wishes to take an airing in his carriage, to be impeded by omnibuses and drays; but he cannot exclude them from the use of the streets.

Each citizen is entitled to the use of the streets in his mode of conveyance, whether in a carriage, buggy, cart, or on a dray, but he cannot complain if others adopt a mode of conveyance different from his own, and which prevents him from traversing the streets as rapidly as he might otherwise do.

No citizen has a legal right to complain that the streets are used by other citizens, in a peculiar manner, even if it causes him a little inconvenience, as long as he himself is allowed the free use of the streets in his peculiar mode.

The streets are destined for public use, but not for a particular mode of public use.

If the city of New Orleans wished to expend the money necessary for the laying of rails throughout the city, for the purpose of permitting all who wished to j run their own cars thereupon, drawn by horses or mules, no one could complain, i as long as it did not prevent other modes of traversing the streets, for traveling in cars on rails is one mode of using public streets, and there is no reason in the nature of things why it should be lawful to travel in a carriage or gig upon the streets, and not lawful to travel in a car upon rails fixed in the streets, but not so laid as to prevent the use of the streets by other modes of conveyance.

If it does not suit the public coffers, or the public convenience, that the city should lay rails for the free use of the public, it follows from the premises that the city has the prerogative of selling the right of way for a specified time, to one or more persons, who shall lay rails and have the privilege of running cars, drawn by horses or mules, according to a tariff fixed by the Common Council.

The selling of this right of way does not impede citizens from using the streets in any other mode of ordinary conveyance; it promotes trade and commerce ; unites the distant parts of the city, and benefits the health of citizens, by enabling them to have their residences at a distance from the crowded thoroughfares of the city.

The selling of this right of way is not an alienation or appropriation of a portion of the public streets for private uses, any more than the licensing of omnibuses or hacks for a specified period, is an alienation or appropriation of the public streets.

Property holders on the streets through which the proposed railroads shall be constructed, cannot complain, for they still have the use of the streets in their desired mode of conveyance, with the additional privilege of riding for a small compensation in the cars. If the running of these cars should depreciate their property, they cannot legally complain, because they are not divested of the use of the streets, aud the destination of public streets is not for any peculiar mode of travelling, but for all such modes as shall best suit the convenience of the public.

The preserving a certain space in a street, for the use of the cars, which pursue one direction without deviation, cannot be said to obstruct the streets, for they can occupy, but for a short time, any particular part of the streets.

An omnibus or carriage, and every other vehicle, occupies a certain space in the streets, and it does not seem to be a sufficient objection to cars, that they move iu a fixed direction ; on the contrary, it is more easy to get out of their way, than out of the way of those vehicles whose course depends upon the volition of the driver.

It cannot be considered as an objection, that on certain streets, the cars shall run up, and shall never be run in the opposite direction.

This is a mere arrangement for public convenience, dependant upon the discretion of the Common Council.

It does not abridge the rights of the public, for they are not obliged to use the cars unless they think proper.

If the running of cars in one direction benefits the public, the Common Council cannot be deprived of the right of doing this much good, because the running of them up and down might benefit the city still more.

The City Charter empowers the Common Council to establish railroads, such as are proposed in this instance, to be run by horses or mules. It says: “ The Mayor and Common Council shall have full power and authority to make and pass such by-laws and ordinances as are necessary and proper, and are not contrary to the Constitution and laws of the United States or this State ; first, &c. * * * Second, to regulate and make improvements to the streets, public squares, wharves, and other property. * * * Twelfth, to make regulations for the proper government of carts, drays, carriages, omnibuses, and other vehicles of every description, which run in the streets, or any where within the limits of the city, and to determine through what streets the same shall pass.” Revised Statutes, sec. 51, pp. 368, 370. Vide also, C. C. 859 ; 18 La. 284 ; Drake v. The Hudson River Railroad Company, 7 Barbour’s Supreme Court Reports, 524.

The City Charter vests the Mayor and Common Council with full power to make such by-laws and ordinances as are necessary and proper, for regulating and making improvements to the streets.

It is left to their discretion, under the control of the courts, to decide what improvements shall be made in the streets, and we cannot say that they have abused this discretion in the ordinances now under consideration.

We would also observe, that the 13th section of the Act of 1855, relative to the organization of corporations for works of public improvement, declares that: “No railroad, plankroad nor canal, shall be constructed through the streets of any incorporated city or town, without the consent of the Municipal Council thereof.” Rev. Stat. p. 11C, $ 13.

This section implies that the city has the power to establish railroads, if she thinks proper so to do.

Judgment affirmed, with costs of appeal.


author: Merrick, C. J.

text:
    Hughes, Hyllested & Co. v. Klingender Brothers.—W. Mure, Intevenor.
    The comity of nations extends only to enforce obligations, contracts and rights under those provisions of law of other countries which are analogous or similar to those of tho State where the litigation arises.
    A contract executed in England, by which a ship was transferred to a trustee to secure the rights of a third person, the vendor retaining possession of the ship, cannot be enforced in this State to defeat rights already acquired by an attachment undor our laws.
    A vente arémtiré, like any other sale, is perfected as to third persons, in the case of movables, by delivery, and the vendee becomes tho owner of the fruits and the property absolutely, if it be not redeemed at the time stipulated.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    Xjl Benjamin, Bradford <& Finney, for plaintiffs. H. T. Hays, for defendant. W. B, Hennen, for intervenor and appellant.
   Merrick, C. J.

This case was before us in January last, on the question of the right of the intervenor to bond the property attached. Ante, p. 52.

In the present case, the Bank of Liverpool, as vendee and trustee, claims tho legal title of the ship.

The petition of intervention was dismissed on the trial in the lower court, and the intervenor appeals.

The case perhaps merits a synopsis of the instrument upon which the intervention is founded. It (the instrument) is of great length, and is under seal. It is signed by the defendants alone, and purports to have been executed on the 25th day of September, 1854.

In consideration of five shillings, and to secure the Bank of Liverpool, Klin-gender Brothers nominally sell to Joseph Langton, chief manager of said bank, his executors, &c., the ship Warbler in trust, that the same may be a continual security to the bank for the payment of costs, and for all sums of money due or to become due, by Klingender Brothers to the bank, and for loans, &c. Another clause authorizes Langton, the trustee, to sell the ship, and directs him to apply the proceeds, 1st, to costs, 2d, to amount due bank, and 3d, the remainder to Klingender Brothers. Another clause obliges the trustee, on satisfaction of the trust, to reconvey. The instrument contains other covenants on the part of Klin-gender Brothers, warranting title, relative to policies of insurance, &c., &c. The instrument is no doubt executed in conformity to the Acts of Parliament and the English law. See Abbot on Shipping, pp. 29 and 30, ed. 1854. Under that law, the intervenor would have been able in the English courts to protect himself against subsequent purchases and creditors, and the effects of bankruptcy. If it be admitted, that the intervenor has such rights upon the ship by the English law, the question naturally arises, why are not those rights entitled to be respected in Louisiana, particularly as all parties to this controversy have their domicil in England ? It is not surprising that the question is repeated, and that the courts are again and again called upon to answer it.

The comity of nations extends only to enforce obligations, contracts and rights, under those provisions of law of other countries which are analogous or similar to those of the State where the litigation arises.

The instrument offered in evidence has no analogy to any mode known to our law of affecting personal property for the security of debts. It purports to sell to one man, to protect the rights of a third person, and yet the vendor is to retain possession. The contract is not a sale, nor a pledge; for there is no delivery, which our law deems essential in order to perfect either contract as to third persons. As our law would not enforce a similar contract between our own citizens, if made here, it will not enforce it to defeat rights already acquired by the attachment under our own laws.

In the case of Malcolm et al. v. The Schooner Henrietta, this court refused to recognize a mortgage upon a ship, executed in the form of a conventional mortgage under our own law, and declared that our law only admits of the hypotheca-tions of ships according to the laws and usages of commerce. 7 L. R. 488 ; ib. 486.

In the case of Grant v. Fiot, it was again declared, that instruments in the form of conventional mortgages on ships or vessels confer no right or privilege whatever. 17 L. R. 160.

The same doctrine was re-affirmed in Hill v. The Phenix Towboat Co., 2 Rob. 35, in which the court mention, as the only valid hypothecation, that made to procure the necessary supplies for ships which happen to be in distress in foreign ports, when the master and owners are without credit, and in cases in which, if assistance could not be procured by means of such instruments, the vessels and their cargoes must perish.

The subject was again fully considered in the case of Harned v. Churchman, 4 An. 312, and it was there said : “ It is the duty of courts in all commercial nations to extend the rule of national comity to bottomry bonds and such other maritime hypothecations as are recognized by the general assent of the commercial world. But the public policy of recognizing implied hypothecations or liens as following property from foreign countries may well be questioned.”

In the case of Wickham v. Levistones, the effect of a common law mortgage executed at Cincinnati, and registered in accordance with the Act of Congress, •was considered, and this court refused to give it effect, because “ such a mortgage is not recognized by our laws.” 11 An. 702.

In the case of the Succession of Broderick, 12 An. 522, we refused likewise to give effect to an act purporting to be a mortgage of a steamboat which was executed in this city, and recorded in the office of the Collector of the Customs, under the Act of Congress of 29th July, 1850 (9 Statutes at Large, p. 440).

In the case of Swasey & Co. v. Steamer Montgomery, 12 An. 800, we refused to recognize a privilege created by the law of Alabama, for tolls for passing a certain channel, and we there announced the general doctrine that privileges must be regulated by the law of th a forum, and that none can be claimed except such as are given by the Civil Code and statutes amendatory thereof. See also on this subject Abbot on Shipping, ed. 1854, p. 156, and note 2, and authorities there cited. See also a similar case stated by Savigny, 8th vol., p. 196-197, sec. 368, Berlin edition.; C. C. 3204, No. 7 ; 19 Howard, 22 and 82.

It may also be remarked, that the hardship of the rule adopted by the courts is not so great, when it is considered that in the case of ships it usually happens, that the parties holding liens and mortgages in the home port, have had the opportunity of enforcing the same, and have voluntarily permitted the ship to depart, without so doing. It may also be further remarked, that the statute of 1858, p. 3, bars privilege upon ships after the lapse of six months.

But in this case, it is contended by intervenor’s counsel, that the instrument is assimilated more to a vente a remiré of our law, than a mortgage, and may be upheld by our courts in this form.

The vente a réméré, like any other sale, is perfected as to third persons, in the case of movables, by delivery, (which is wanting' in the instrument under consideration,) and the vendee becomes the owner of the fruits and the property absolutely, if it be not redeemed at the term stipulated. Here Langton, so far from being owner, and making the fruits his own, had only authority, as an agent, to sell for the payment of debts. Klingender Brothers had received no serious price, and had nothing to return as such. C. C. 2414, 2439 ; 3 An. 218; 5 An. 99. The instrument cannot, therefore, be viewed in any other light than as a security for money.

There is a prayer, on the part of the appellee, for an amendment of the judgment in their favor, against the intervenor, so that the same shall be considered final. In order to avoid all doubt as to the effect of the judgment rendered, we will make the amendment.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be so amended as to reject and bar the demand in reconvention and third opposition of the said Bank of Liverpool; and that said judgment so amended be affirmed, the appellant paying the costs of the appeal.


text:
    Charles E. Knabe et als. v. J. B. Fernot et als.
    An. appeal will lie from an ex parte order setting asido an injunction, upon giving bond, under Article 307 C. P.
    TVliere the dissolution of an injunction is calculated to work an irreparable injury, by depriving members of a corporation of privileges, the value of which, cannot be estimated in dollars and cents, the injunction cannot be set aside upon giving bond.
    from the Third District Court of New Orleans, Duvigneaud, J.

      Tissot <& Filleul, for plaintiffs. Coñens & Woolridge, for defendants and appellants.
   Merrick, C. J.

The appeal is taken in this case from an ex parte order setting aside an injunction, upon giving bond, under Art. 307 C. P. The plaintiffs alleges :

“ That plaintiffs and defendants are all members of a duly incorporated society established for masonic purposes ; that the society owns a masonic hall and surrounding grounds, with the furniture and paraphernalia necessary for assembling masonically and performing masonic rites and ceremonies ; that the enjoyment of this hall and grounds, furniture, &c., and holding masonic assemblies therein, are franchises of the members; that the defendants, being a small majority, conspired to deprive the plaintiffs of these franchises, and of all use of the property, all the intellectual and moral enjoyment afforded by masonic meetings and rights, and of all the recreation and pleasure of visiting the garden, &c ; that defendants sought to appropriate the property and franchises exclusively to themselves, and for this purpose said defendants had procured a separate incorporation under the name of “ St. Andrew No. Five," and then at a meeting of the society owning the property, caused one of their number to present a resolution leasing the whole property for years to themselves, at a mere nominal price ; that the defendants carried this resolution by their own votes, and were about to carry out this fraudulent act by taking exclusive possession and expelling the petitioners from the common property and franchises, and depriving them of all enjoyment thereof. They pray for an injunction against this disturbance, and for the nullity of the fraudulent and simulated lease,” &c.

The simple question is, therefore, whether or not the dissolution of the injunction is calculated to work irreparable injury to plaintiffs.

It would be difficult to estimate in dollars and cents the damage the plaintiffs may sustain by being deprived of their supposed privileges as members of the corporation. A compensation even in damages could not’ therefore, be readily awarded plaintiffs. If the plaintiffs have any right at all, they are entitled to maintain their injunction until they can be beared contradictorily with their opponents. The ex parte order setting aside the injunction, seems to have been unadvisedly entered.

■Whether the proceeding is a proper one, or what are plaintiffs’ rights under allegations, cannot be considered, in the absence of an excej>tion or rule, or any issue formed by the proceedings.

It is, therefore, ordered, adjudged and decreed by the court, that the ex parte order of March 5th, 1859, dissolving the injunction, be set aside ; and the injunction granted in this case reinstated. And it is further ordered, that this case be remanded for further proceedings ; the defendants and appellees paying the costs of the appeal.


author:
Cole, J.
      Merbick, C. J.,

text:
    John Brown v. Bark Ladra Snow, Captain and Owners.
    A party who has boundhimsolf by a written, contract to perform certain services for another, may sue for liis services on a quantum meruit, where the contract has been violated and virtually annulled by the act of the other party.
    from the Sixth District Court of New Orleans, Howell, J.

      Elliott, Budd & Lambert, for plaintiff. Waples <& Eustis, for defendant and appellant.
   Cole, J.

The plaintiff alleges that he entered into a written contract to discharge the cargo of lime on board the bark “ Laura Snow,” for a specified sum, and in a designated time.

That defendants, by their own action, annulled the contract, wherefore he sues on a quantum meruit.

An exception was filed by the defendants to the suit, on the ground that it is on a quantum meruit, when by its own allegations it appears that there was a written contract.

The exception was overruled, and the plaintiff was permitted to prove the allegations of his petition. There was judgment for plaintiff and the defendants have appealed.

In this court, the defendants rely upon their exception for a reversal of the judgment.

In our opinion, the exception was properly overruled. As plaintiff considered the contract to have been violated and cancelled by the conduct of defendants, he was entitled to incur the risk of establishing this upon the trial and to sue upon a quantum meruit. lie was not obliged to sue upon a contract virtually annulled by defendants, unless he had wished so to do.

Judgment affirmed, with costs of appeal.

Merbick, C. J.,

concurring. I do not think a party who has entered into a written contract, may repudiate the same on the pretence of a violation of the contract by the opposite party. The very object of a contract is to make a special law between the parties, by which to adjust their rights in the event of a refusal to comply or a violation of the contract by cither.

Whenever, therefore, it appears that the parties have entered into a contract, and either party insists upon the same, it cannot be disregarded.

In the case of Hogan v. Gibson, 12 La. 460, this court held, that if the plaintiff sued upon a quantum, meruit, and the defendant proved a special contract, plaintiff could not recover. See also Allen v. Martin, 7 N. S. 300.

In the present case, the plaintiff has alleged the existence of a contract, but he avers that it has been annulled by defendants. The testimony (including the contract) lias all been, received without objection. It shows, as I think, that plaintiff is entitled to recover the amount awarded by the lower court, on account of the breach of the contract by the defendants, and I concur in the decree on this ground.

Laxd, J., concurred in this opinion.


author: Buchanak, J. Buchanan, J.

text:
    John Arrowsmith v. E. H. Durell et al.
    An action of jactitation cannot be maintained by a party who is not in possession.
    Where an exception to the petition in an action of jactitation on the ground that the plaintiff was not in possession of the land, filed in Zimina litis, had been dismissed by the court, previously to the empannclling of the jury — lldcl: That the question of possession was not before the jury for decision.
    When the plaintiff goes to trial without making the objection that issue is not joined on a roconven-tional demand, he cannot make objection afterwards, supposing even it is necessary to join issue upon a demand in reconvention.
    Where a defendant pleads title in general terms, and the plaintiff does not require that the title should be sot forth more specifically, nor crave oyer of the defendant’s titles before going to trial, evidence of a specific title offered by the defendant, cannot be objected to.
    A witness cannot be objected to on the ground of interest, because he is liable to tho defendant as warrantor, if ho lias not been cited m warranty in the suit in which he is called to testify.
    from the Fourth District Court of New Orleans, Price, J.

      C. Redmond and R. H. Marr, for plaintiff and appellant. D. S. Bryon, for defendant. L. Janin, for warrantor.
   Buchanak, J.

This is au action of slander of title or jactitation. The plaintiff alleges that he and his authors have been in full, peaceable, notorious, uninterrupted, undisputed, and exclusive possession, from the year 1758, to the institution of this suit, 1854, under a chain of titles particularly detailed, of a certain tract of land in this parish, described in the petition; that the defendant, Durell, has set up title to a portion of said land, and has even attempted to effect a sale of the same; that he has slandered plaintiff’s title, to his damage, ton thousand dollars.

Defendant, Durell, denies generally, all the allegations of the petition, and specially plaintiff’s possession of the land mentioned in his petition ; pleads prescription, and calls in one Mrs. Pontalba, from whom he holds, to defend his title; prays for judgment against Mrs. Pontalba, for restitution of the price of sale, in case plaintiff should be adjudged to be the owner of the land. Finally, by a supplemental answer, lie alleges that plaintiff had caused him, Durell, damage to the amount of $20,000, by pretending title to this property, and by certain vexatious proceedings previous to the institution of the present suit; all of which had prevented said Dwell from selling the property, which he might otherwise have done to great advantage and profit.

Upon these issues, the parties went to trial before a jury, which found a verdict in favor of defendants, upon the principal demand, and likewise upon the demand in reconvention, gave Dwell a verdict for four thousand dollars damages against plaintiff.

An action of jactitation cannot be maintained by a party who is not in possession. But the possession of plaintiff was specially traversed, and yet there was not a particle of evidence offered by him, to maintain that allegation of his petition. He argues that this issue of possession was made in the form of an exception, which was overruled. But such does not appear to have been the understanding of the District Judge, who charged the jury é that the issues of possession and title were both before them. Neither can we say that he erred. The entry on the minutes of the court is as follows :

The court, considering that the exceptions filed by the defendants, go to the merits of the cause, it is ordered that the said exceptions be dismissed, with costs.”

This order was made upon the exception being fixed separately for trial before the court, there being already a jury prayed in the cause, by whom the cause was subsequently tried.

The exception of want of possession presented an issue of fact, upon an essential part of plaintiff’s case, in regard to which the burden of proof was upon plaintiff; and as no proof upon the point was tendered on the trial of the exception, it is not seen how the Judge could have put this exception out of court. We concur with the Judge below, in considering that the question of possession was before the jury for decision.

The next point that is made by appellant in this court is, that there was no issue joined upon Durell’s reconventional claim for damages. But even supposing that it is usual and necessary to join issue upon a r.cconvention, of which we say nothing, plaintiff went to trial without making that objection. See Erwin v. Bank of Kentucky, 5 An. It was not even made one of the numerous grounds of the plaintiff’s application in the court below for a new trial.

It is not necessary to examine plaintiff’s objections to the warrantor’s proof of title, inasmuch as jDlaintiff having made no proof of possession, his adversaries wore, in strictness, not put upon proof of title in themselves.

The damages allowed by the jury, seem to bo sustained by the evidence.

Judgment affirmed, with costs.

Same Case — On a Re-hearing.

Buchanan, J.

A further consideration of the authorities on the subject of pleadings in the action of jactitation, since our previous judgment in this case, satisfies us that the question of possession of the locus in quo, was not properly before the jury which tried the cause. The exception, filed in liminie litis by defendants, that plaintiff was not in possession of the land, and could not consequently maintain an action of slander of his title to the same, had been dismissed by the court, previously to the empanneling of the jury. There only remained, therefore, the issue of title, and the reciprocal claims for damages of plaintiff and defendants.

Upon the question of title, the burden of proof was upon defendants; and the parties seem so to have viewed it, for all the evidence of title in the record, has been offered by the defendant, Durell, and his warrantor, Mrs. Pontalba.

Plaintiff and defendants both trace their titles to the same origin, namely, a grant from the Colonial Government of Louisiana, of date May 10th, 1758, to Mouléon. The petition alleges title in plaintiff by the following chain :

1. Mouléon, the grantee, conveyed to Brazelier on the 28th of June, 17 68.

2. Brazelier conveyed to Elizabeth Desvuisseaux, October 15th, 1774.

3. Frangois D’Hebecourt purchased at probate sale made by order of court, in the succession of Elizabeth Desvuisseaux, July 22d, 1820.

4. Ferdinand D'Hebecourt purchased at probate sale of Frangois D’ffebecourl’s succession, June 6th, 1833.

5. Plaintiff acquired from Ferdinand D’Hebecourt, by notarial act of September 7th, 1833.

Defendant’s warrantor pleaded title in general terms; and the first bill of exceptions, on the part of plaintiff, which the record presents, is to the ruling of the court, which allowed the warrantor to give evidence of a specific title. The court did not err in this ruling. Plaintiff might have required the warrantor to set forth her titles more specifically in his pleadings; he might have had oyer of the muniments of that title before going to trial; but he did not think proper to do so ; and by going to trial in the actual state of the pleadings, he could not deprive the warrantor of the right of establishing by precise and specific proof, the allegations thus generally made.

Tho next bill of exceptions was taken by the plaintiff to the admission of the testimony of L. T. Chalón, offered to prove that certain persons who signed notarial acts offered in evidence, were descendants and heirs of Elizabeth Desvuis-seaux. It appeared from the testimony of this witness, given on his voir dire, that he had accepted the succession of his father, who was one of the persons under whom, as heirs of Elizabeth Desvuiiseaux, the warrantor claimed .to hold by virtue of the notarial acts thus signed by them ; and the plaintiff objected to the competency of this witness on the ground of interest. This objection was properly overruled. Neither the witness nor any other descendant of Elizabeth Desvuisseaux, was cited in warranty in this case. The witness had, therefore, no interest in this suit, although he might possibly have an interest in the question. The objection only went to his crediblity; and that was matter for the consideration of the jury, which they seem to have resolved by their verdict in favor of tho defendant.

Two bills of exception were reserved by plaintiff to the admission of evidence of acts of civil possession of the premises by warrantor and defendant, on the ground of irrelevency — -the question before the jury being title, and not possession. Upon this point we agree with the appellant; but the bills of exception are immaterial, as the evidence is not of a character to have affected, in any event, the decision of the cause.

Two other bills of exception relate to evidence offered for the purpose of making out title to the premises in the father of the warrantor. It is unnecessary to consider these, because the proof of title derived from the heirs of Des- vuisseaux, appears to us sufficient to justify the verdict upon this branch of tho case.

Tho title of Desvuisseaux is not disputed by plaintiff. On the contrary, it is tho foundation of his claim. It is only necessary to decido in whom that title now vests.

The warrantor produces a compromise between herself and the heirs of Des-vuisseaux, of their conflicting pretensions ; and a partition by which they mutually released their pretentions 'to certain portions of land in favor of each other. The plaintiff’s petition, as we have seen, alleges that the rights of Desvuisseaux's heirs to the MoisMon grant, had been alienated many years before the date of these documents, by an adjudication at probate sale to D’Hebecowt. But this rests entirely on liis assertion. He has offered no proof of the fact.

. Upon the point of damages, we cannot say that the verdict of the jury has done injustice. It was admitted by counsel, in the oral argument before this court, that if there was a case for damages at all, the amount allowed by the jury was sustained by the evidence. And we think such a case has been made out.

The former judgment of this court must, therefore, remain undisturbed.


author: Vooriiies, J.

text:
    G. A. Sanford v. Eugene Waggaman et als.
    ■NVliere tho tutor of a, minor has created an indebtedness, without authority of law, which exceeds tile revenues of the minor, the creditor, to recover, must show that the indebtedness was absolutely necessary, either for the support of tho minor, or the preservation of his property, and that the supplies furnished enured to the benefit of the minor.
    PPEAL from the Second District Court of New Orleans, Morgan, J.

      D. L. MoConnell, for plaintiff. P. E. Théard and J. W. Duncan, for defendant and appellant.
   Vooriiies, J.

The correctness of the plaintiff’s account is not disputed ; but the defendant, on behalf of his ward, contends that her estate is not liable legally for the payment of this claim.

The minor, Adelaide Julie Cambot, was the owner of tho Holbrook House, which was destroyed by fire some time in the year 1857. This was the only property owned by her; but its revenues were amply sufficient for her maintenance and education. Her estate was burdened with no debts. Her father, J. B. L. Cabot, then her tutor, collected tho amount coming to her from the Insurance Company, and proceeded to rebuild the Holbrook-House, but on a larger scale. Several suits were instituted against Mm, in Ms capacity of tutor, by some of the material men and workmen, for the recovery of their respective claims ; but in the meantime he was removed from the tutorship, and the present defendant appointed in his stead.

The defence to the present action is, want of legal authorization on the part of the former tutor to create this obligation, which, as alleged, was not necessary to the preservation of the property, nor to the maintenance and education of the minor, and has not enured to her benefit; and that from previously accrued revenues, and the amount collected from the Insurance Company, the former tutor had ample means in hand to rebuild the house, without creating new debts, especially without the advico of a family mooting.

The defence raised by the present tutor should prevail, unless the materials furnished by the plaintiff have enured to the benefit of the minor.

It is proper to remark, that the provision of the Code, Art. 343, that the expenses of the minor “ ought never to exceed his revenues,” has reference to those incurred for his support and education. See the case of Tegart v. McCaleb et al., 10 An. 288. “ On tient pour máxime,” says Toullier (vol. 2, 1. 1, 1.10, N. 1210,) “ en cette matiere, que la dépense du mineur ne peut en aucun cas exeéder son revenu net, déduction faite des charges, rentes et reparations. Mais cette máxime est sans application lorsqu’il s’agit des dépenses utiles; e’est au juge á examiner ce qui est de l’intérét du pupille, et s’il était du devoir du tutour de faire la dépense qu’il a faite; et e’est par cette raison qu’on retrancha du projet du code un article qui proposait de faire une loi de la máxime, qu’on ne peut faire dépenser au mineur au-delá do son revenu.” C. N. 471. But this maxim was incorporated in the Civil Code, Art. 343, with regard to the expenses for the support and education of the minor.

The expenses incurred in this instance are of a different character; and the absolute necessity of rebuilding the Holbrook House is made manifest from the fact that it -was the only property which the minor had, and which was susceptible of yielding the revenues necessary to her support and maintenance. At all events, the house was rebuilt, and it is in evidence that, as presently administered upon, it yields a large revenue to the minor. The question then is, can she reap these advantages, and repudiate the contract by which these means are secured to her ? Evidently not. 12 An. 676, Urquhart v. Scott. If it be true that the minor’s former tutor has squandered moneys coming- to her, it does not follow that the loss must fall upon the plaintiff, whose claim is an honest one. Succession of Johnson, 4 An. 253 ; White v. McDowell, ib. 543 ; Hall v. Woods, ib. 85 ; Darse v. Leaumont, 5 R. 287, &c.

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