text:
    No. 5208.
    John H. Pleasants & Sons vs. John Kemp, Jr.; J. H. Oglesby, C. L. Chase, I. W. Arthur & Co., Garnishees; I. W. Homan, Intervenor.
    It sooms eloar that thoro was no effective soizuro in this easo. To make a valid soiz-uro o£ a negotiable noto under tho circumstances of this ease, it was essential that tho sheriff should have taken actual corporeal possession of it.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J.

      W. II. Hunt and James Lingan, for plaintiffs and appellees.

      Randolph, Singleton & Browne, for garnishees, appellant.

      Breaux, Fen-ner & Hall, for intorvonor, appellant.
   Howell, J.

The plaintiffs, having judgment against the defendant, Kemp, issued garnishment process against T. W. Arthur & Co. and J. H. Oglesby and C. L. Chase as tho assignees of Arthur & Co. Tho answers of tho garnishees show that the firm of Arthur & Co. owed defendant, Kemp, $1112 79 for services as clerk, and in settlement gave ■him their two notes in negotiable iorm lor the amount, and that defendant with tho other creditors accepted the assignment of the assets of the firm before service of this proceeding, and three of the creditors, including Oglesby and Chase, were chosen to settle up the affairs as a committee or agents of the creditors, but they did not know who held the notes, the holder, however, being entitled to the payment of the same.

Tho plaintiffs moved for judgment against the garnishees on their answers, and, the rule being made absolute, the garnishees appealed.

It seems clear that there was no effective seizure in this case. To make a valid seizure of a negotiable note under the circumstances of this case, it was essential that the sheriff take actual corporeal possession of it. See 14 L. 449; 6 An. 531, 581; 19 An. 58.

Under this view of the case it is unnecessary to consider any other questions presented.

• It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of tho defendants in the rule (garnishees) with costs. Plaintiffs to pay costs of appeal.


source: Caselaw Access Project

author: Taliaeeebo, J.

license: Public Domain

text:
    No. 5925.
    Citizens’ Bank of Louisiana vs. Widow J. C. de St. Romes et al.
    In the case of tho Police Jury of west Baton Rouge ot al. ys. J. Y. Duralde et al., 22 An. 107, and in tho caso of tho Citizens’ Bank vs. Louis Muh, 27 An. — the identical points of proscription and unconstiCutionality were raised by the defendants and decided adversely. Those, decisions have established a precedent by which tho present controversy must bo governed.
    APPEAL from the Superior District Court, parish óf Orleans. Hcm-kins, J.

      A. Pitot, for plaintiff and appellee.

      Sambola & Diteros, for defendants and appellants.
   Taliaeeebo, J.

The bank sues on stock notes, and also to compel the defendant to contribute the two dollars per share assessed by the bank in pursuance of the act of March 11,1873, to assure the prompt payment of the interest on bonds of the State issued in favor of the Citi7 zens’ Bank.

The defendants enjoined tho seizure taken out by plaintiff, and maintain that the bank has no right to claim either the stock notes or the eon-.tribution, as tho defendants nndei the bank charter could not be legally ■ required to pay for-the stock or stock note or any portion thereof prior to the expiration of the charter of the bank; that if any portion of the stock note were payable at any time during the existence of the charter tho bondholders themselves are tho only parties who could lawfully claim the payment or enforce the payment of the stock notes by executing executory process under the mortgage or otherwise; that the payment by defendants of the contribution'would be no discharge of their liability to the bondholders who have accepted the stipulation pour autrui contained in the charter of the bank and other acts.

Defendants contend that the act oí 1878 in relation to the contribution of two dollars per share is contrary to the provisions of the charter of the bank and violative of article 110 of the State constitution and of the analogous article of the constitution of the United States; unconstitutional, in other words, as it impairs the obligation of contracts. The defendants plead the prescription of five and ten years in bar of plaintiff’s action on the stock notes.

The judgment of the lower court dissolved the injunction and was 'rendered in favor of the plaintiff.

The defendants appealed.

The points contended for by defendants scorn to have been determined adversely to the grounds set up in the injunction proceeding to sustain thorn. See the case of the Citizens’ Bank vs. Louis Midi, 27 An., not yet reported.

The plea of proscription can not be sustained. See case of Police Jury of "West Baton Bouge et al. vs. J. V. Duralde et al. 22 An. 107.

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

Rehearing refused.


author: Ludeling, C. J. Howell, J.,

text:
    Nos. 4504, 4615, 4621.
    Anna E. Drouet et al. vs. Francois Lacroix and C. S. Sauvinet, Sheriff.
    The plaintiff in this case prayed for an injunction to prevent the sheriff and pretended purchaser from disturbing her possession of property which she.owns, and also.prayed to have the deed which he offoeted to defendant, Lacroix, declarod null and void.
    ‘The exception that plaintiff can not carry on this suit until she shall have tendered the amount of the prico paid by the. purchaser, can not bo maintained. Besides that there is no evidence in the record that the price was paid to the judgment creditor, the principle evoked does not apply to a suit like this, which is notan action in revendieation to recover back property sold and delivered to a third party. This is an action to provontthe consummation of an illegal and void sale, to stop the sheriff and others from porpetrating a wrong against the right of the plaintiff, by dispossessing lior of her proporty illegally.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      Thomas J. Cooley and. John Bay, for plaintiffs and appellants.

      Charles Jbouque, for defendants and appellees.
   Ludeling, C. J.

By consent the appeals in the cases numbered 4504, 4615, and 4621, have been consolidated in this court.

The plaintiff alleges that she is the owner of certain real estate in New Orleans, which is in her possession; that O. S. Sauvinet, sheriff,did illegally deed under a pi’etended adjudication unto Francois Lacroix the said property, acting under and by virtue of two alleged fieri facias writs in a suit entitled Wm. McCracken vs. Anna E. Drouet, and Geo. Purves vs. same defendant. She alleges that the pretended sale or adjudication is null and void, because no notice to appoint appraisers and ho appraisement was ever made, as contemplated by law, and that the said property was adjudicated as aforesaid for a sum greatly below two-tliirds of its value. She prayed for an injunction to prevent the sheriff and protended purchaser from disturbing her possession, and to have the deed to Lacroix declared null and void. The injunction was granted, and, on motion, was set aside. The objections urged against the injunction are, that the bond is not for a sufficient amount, that the sureties are not solvent, and that no injunction could issue till the plaintiff had tendered the amount of the price of adjudication to the purchaser.

The bond is for-tho amoxmt fixed by the judge, and the suretie/j are Solvent and good for the bond, according to the evidonco in this record. The other objection is a peremptory exception to the suit, and Wül be noticed hereafter.

In the progress of the case defendant took a rule against plaintiff to show cause why the appeal taken by plaintiff from the judgment dissolving his injunction should not be dismissed; After hearing, the rule was dismissed, and the defendant took an appeal, No. 4615. The plaintiff had a right to appeal; the bond was for the amount fixed, and the securities are good, Lacroix filed an exception to the suit* alleging that the amount of his bid was paid by him to the sheriff, and by the sheriff to the judgment creditors, and that the plaintiff can not carry on this suit until she shall have tendered the amount of the price paid as aforesaid. This same exception is made in the motion to dissolve before alluded to. There is no evidence in this record that the price was paid as alleged. It is not probable that the price has been paid to the jxxdgmont creditors, inasmuch as the property has not been delivered unto the buyer.

But the principle invoked does not apply to a suit like this, which is not an action in revendication to recover back property sold and delivered to a third party. This is an action to prevent the consummation of an illegal and void sale; to stop the sheriff and others from perpetrating a wrong against the right of the plaintiff by dispossessing her of her property illegally.

Purves alleged no cause of action. Enough has been said already to show there is no merit in this exception.

It is therefore ordered and adjudged that the judgments appealed from by plaintiff be reversed, that the injunction bo reinstated, and the exception be overruled, and that the case be remanded to be tried on the merits, according to law, the defendants to pay the costs.

Howell, J.,

dissenting. There are three appeals taken in this case, two by the plaintiff and one by the defendant, F. Laoroix, which hayo been consolidated in'this court. The plaintiff, Mrs. Drouct, instituted this suit to annul the adjudication of certain property belonging to her made by the sheriff to F. Lacroix, under writs of fieri facias issued in two suits against her, on the grounds that no notice of appraisement was given to: her, no appraisement made, as contemplated by law, and the adjudication was made for much less than two-thirds of the value of the said property, and she obtained an injunction enjoining the defendant, La-croix, and the sheriff, from attempting to evict her from the possession of the property. Lacroix moved to dissolve the injunction on the grounds:

■ First — That the securities on the injunction bond are not good and solvent, as the law requires.

Second — That the bond is insufficient in amount and informal.

■ Third — That no such injunction could issue in the premises until plaintiff had deposited in cash to the credit of defendant the amount paid by defendant for the purchase price of the property, the same having been used to pay her debts.

Ho also filed an exception as an answer to the petition, that the plaintiff has no right of action, because the amount of the adjudication was paid to the sheriff according to law, who paid it to the plaintiffs in the two executions, who were mortgage creditors of this plaintiff, thus paying her debts, and she has not paid or tendered the same, which she is bound to do before instituting a suit to annul the adjudication. Goorgo Purves, one of the plaintiffs in the executions, excepted that the petition shows no cause of action against him. The injunction was dissolved, and the plaintiff appealed. The defendant, Lacroix, moved in the lower court to set aside said appeal, on the grounds:

First — That no appeal lies from said judgment, there being no case before the court.

Second — The amount of the bond is insufficient.

Third — The security is not good and solvent as the law directs.

This rule was dismissed, and Lacroix appealed. On the trial of his exception to the petition it was sustained and the suit dismissed, and the plaintiff appealed from said ruling.

The appeal taken by Lacroix from the judgment on his rule to sot aside the appeal taken by the plaintiff can not prevail. The only matter which the lower court can examine after an appeal is granted is in reference to the sufficiency of the surety and the question of execution, and the remedy for error in his ruling on such subjects is not by appeal.

As to the- appeals taken by the plaintiff, disposing oí that on tho exception disposes of the whole case. She complains that the exception was improperly tried when she was not present nor represented. If this point was properly reserved so as to be examined by us, the record shows that the exception was regularly fixed and posted for trial, and that notices of trial of exceptions are not given. This was binding on her.

She next complains that there is no evidence in the record to sustain tho allegations of the exception. The record shows that the court heard tho pleadings and evidence, and wo must, I think, either dismiss this appeal because the record is incomplete, which will leave the judgment in force against the plaintiff, or presume (which is the more regular course) that the judge did his duty and rendered the judgment on sufficient evidence. See 15 L. 232. The Code off Practice does not make it essential that the evidence be reduced to writing, but authorizes either party to have it done or provide a statement of facts. Arts. 601, 602.

The primary, principal object of this suit is to annul the adjudication to P. Lacroix, which by law vested the title and possession in him. In New Orleans it is not necessary for the sheriff to take actual possession of real estate to effect a valid seizure and transfer the property by the adjudication. In this case I think the adjudication transferred the property and the legal possession to the adjudicatee, and the presumption, in addition to the evidence on the exception, is that the sheriff did his duty in requiring the bid to be paid and turning it over to the plaintiffs in the executions. Hence the exception was properly sustained.

I therefore dissent.


author: Howell, J.

text:
    No. 5930.
    State of Louisiana vs. Edward Washington, alias Johnson, alias Blubber.
    Tho plea o£ autrefois aegwit or convict must ho made heEore verdict, and is not allowable as aground for a new trial, or arrest of judgment. In amotion in arrest of judgment, the party is confined to matters patent on tho record, and can not ' seek matters aliunde to support it.
    If the plea could bo a ground for now trial, as it must rest on facts to be established this court would be without jurisdiction to pass on it.
    APPEAL from the Superior Criminal Court, parish of Orleans. Steele, J.

      A. P. Field, Attorney General, for plaintiff and appellee.

      T..H. Ferguson, for defendant and appellant.
   Howell, J.

The defendant having been found guilty on the charge of. burglary in the Superior Criminal Court, moved for a new trial on the plea of autrefois convict, based on alleged proceedings against him in the First District Ccrart on an information for larceny committed at the same time as the burglary. On the trial of this motion the plea was, by consent, considered also as one in arrest of judgment, and it having been overruled, and the prisoner sentenced, he appealed.

The motion, in its twofold character, was properly refused. The plea, of autrefois acquit or convict must be made before verdict, and is not allowable as a ground for a new trial or arrest of judgment. See 25 An. 537, and authorities there cited; Wharton’s Criminal Law 5£S; Bishop’s Criminal Procedure 580. In a motion in arrest of judgment the party is confined to matters patent on the reeord, and ean not seek matter aliunde to support it. 6 An. 310; 8 An. 513.

If the plea could be a ground for new trial, as it must rest on facts to be established this court would be without jurisdiction to pass on it. See 11 An. 478.

Judgment affirmed.


author: Wvly, J. Howell, J. Morgan, J., TaliafeReo, J.,

text:
    No. 4364.
    John L. Lewis et al. vs. Behan, Thorn & Co. et al.
    The distillery complained of as a nuisance in this ease was established under authority from the city. The defendants aro in pursuit of a lawful business, and the evidence does not show anything to warrant the conclusion that they are not conducting it properly and with a due regard to the police regulations of the city.
    The smoke and noise may disturb the plaintiffs, but it is an inconvenience from which, under the provisions of article 669 of the Revised Code, they can not be relieved.
    As the city of New Orleans authorized the establishment of the distillery, it ean not be presumed that it is in violation of its police regulations,
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      T. H. Kennedy & Chiapella and Canonge & Cazabat, for plaintiffs and appellees.

      Woolridge & Thomas and A. C. Lewis, for defendants and appellants.
   Wvly, J.

The plaintiffs, who are property owners in the neighborhood of the whisky distillery of defendants on Ferdinand street, bring this suit to abate the operation of said whisky distillery as a nuisance and to recover damages. The court gave judgment enjoining the defendants from operating said distillery, but rejected the demand for damages. The defendants appeal, and the plaintiffs, joining in the appeal, pray for an amendment of the judgment so as to allow them exemplary damages, they “ waiving only actual damages.”

The distillery was established under authority from the city. The defendants are in pursuit of a lawful business, and from the evidence we find nothing to warrant the conclusion that they are not conducting it properly and with a due regard to the police regulations of the city.

. The smoke and noise may disturb the plaintiffs, but it is an inconvenience from which they can not be relieved. Article 669 of the Revised Code provides that “if the works or materials of any manufactory or ■other operation cause any inconvenience to those in the same or neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police or the customs of the place.”

As the city of New Orleans authorized the establishment of the distillery, we can not presume it is in violation of its police regulations. 14 An. 247.

It is therefore ordered that the judgment herein be annulled, and it is decreed that plaintiffs’ demand be rejected with costs of both courts.

On Rehearing.

Howell, J.

After a careful re-examination of this record and the authorities cited, we find no cause to change our conclusion.

It is therefore ordered that the decree heretofore rendered by us in this case remain undisturbed.

Morgan, J.,

dissenting. The distillery in question is situated in a populous part of the city. The inhabitants in its immediate neighborhood are quiet, orderly, and most respectable people. Many of them have occupied the houses in which they now live for many years. The evidence in the record satisfies me that the defendants’ distillery is to them a nuisance, and that it greatly deteriorates the value of their property. The noise of its machinery is heard by day and by night; the smoke from its chimney, when the wind fe from a certain point of the compass, fills their houses, blackens the walls thereof, soils their furniture, settles upon the roofs, whence it is carried into their cisterns,. thus polluting the water which they use for all family purposes; the nauseating smell which heated grain gives out infects the air which they breathe. What is this but a nuisance ?

If the distillery had been ereoted and was in operation when the plaintiffs purchased their property,, they would have no right to complain. But they did not, many of them having been living in the same many years before the distillery was ever thought of.

The defendants claim that they are protected by a license from the city. I do not think that the Council has any power to authorize the erection of a nuisance in a populous portion .of the city.. If its power is- unlimited in tins regard, it can authorize the establishing of a soap factory in the neighborhood of tho St. Charles Hotel, for instance, and make that building and that neighborhood uninhabitable.

Defendants urge here, in their brief, that they give employment to many persons and add to the commerce and consequent wealth of tho city. I fear if they placed the number of persons employed by them in one column and the number of persons who are destroyed by the uso of the product of their manufactory in another, the balance would be greatly against them. But this is not the question. The question is •whether the defendants’ manufactory is a nuisance to the neighborhood in which it is operated. I think it is.

Tho next question is whether the city has the power to allow a nul-■sance to be established in a populous portion of tho city. I think not.

I am therefore of opinion that the judgment of the district court should be affirmed.

TaliafeReo, J.,

dissenting. I concur in the dissenting opinion of Mr. Justice Morgan.


author: Taliaferro, J.

text:
    No. 5975.
    J. T. Buffington et al. vs. Charles Clinton, Auditor.
    The Auditor refused to issue tho warrant demanded by plaintiffs, because tlieir claim, under the constitutional amendment of 1814, haying its origin in 1870, could not bo paid out of the rovoriues of 1876, and because the revenues of the year 1870 had been exhausted by warrants previously drawn against thorn.
    Tho Auditor was wrong in his refusal. The payment of tho amount directed by the Legislature to be made to the plaintiffs was not necessarily reauired to bo paid out of the rovenuos of 1870. Tho Legislature ordered it to be paid out of any moneys not otherwise appropriated, whether the revenues of 1870 were or wero not exhausted, plaintiffs were entitled to a warrant upon which they could draw their money whenever there might be funds in tho treasury to be disbursed within the purview and meaning of the act of the Legislature ordering this debt to be paid.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      John Bay, for plaintiffs and appellants.

      Charles 8. Bice, for defondant and appellee.
   Taliaferro, J.

The plaintiffs applied to tho Superior District Court for a writ of mandamus ordering the defendant to issue in their favor a warrant on the Treasurer for $2214 30 out of any moneys in tho treasury not otherwiso appropriated, in pursuance of an act of the Legislature numbered 35 of tho regular session of 1875, by which that sum was appropriated for their relief. To tho rule nisi the Auditor answered that tinder tho constitutional amendment of 1874 the relators’ claim, having its origin in 1870, could not bo paid out of the-revenues of 1875, and that tlie revenues of the year 1870 had been exhausted by warrants previously drawn against thorn. The rule was discharged by the judge of the lower court, from which judgment in favor of defendant the relators have appealed.

The payment of the amount directed by the Legislature to be made to the plaintiffs was not necessarily required to be paid out of the revenues 'of the year 1870. The State owed this debt to the parties demanding a warrant for it. The Legislature ordered it to be paid out of any moneys in the treasury not otherwise appropriated. Whether the revenues of 1870 were or were not exhausted by warrants drawn against them, the relators’ right to be paid at some time was not annulled. They were entitled to a warrant upon which they could draw their money, whenever there might be funds in the treasury to be disbursed within the purview and meaning of the act of the Legislature ordering this debt to be paid.

It is therefore ordered that the judgment of the lower court be annulled and reversed. It is now ordered that the mandamus be made peremptory, and that the Auditor be required to issue tho warrant asked for by the relators,_ and that respondent pay all costs of these proceedings.


author: Ludeling, C. J. Wyly, J.,

text:
    No. 4689.
    William Francis Higgins vs. New Orleans, Mobile, and Chattanooga Railroad Company.
    . All contracts may bo made, except those reprobated by law or pnblic policy; and a contract, by which one stipulates lor exemption from responsibility lor losses occasioned to another from tho negligence oí his agonts or servants, is not against public policy or forbidden by law; but if the losses resulted from tho fraudulent, willful, or reckless misconduct of the agent of employee, it would be.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J. Jury trial.

      Gibson & Austin, for plaintiff and appellee.

      George H. Braughn, Levy & Monroe, and J. A. Campbell, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sued the defendant for twenty-five thousand dollars damages for injuries inflicted on his person while a passenger on the cars of said company.

The defense is that tho defendant was riding, free from charge, under an agreement by which he assumed all the risks of injury to his person or property, and released defendant from all liability, and that the company was guilty of no fault which occasioned the accident.

Tho evidence shows that C. C. Haley made an agreement with the company by which ho had tho privilege to sell papers and books; etc., on the train, and that he employed tho plaintiff as his agent to go on tho trains for that purpose. Mr. Haley paid no money for this privilege, but his agent or assistant rendered services on the train, such as handing water to the passengers.

.The condition on which this privilege was granted was that the employee on the train should sign a contract by which he assumed all risks from accidents, and that the company was not to bo liable for personal injuries, or for loss of or injury to property. This condition was explained to the plaintiff by Mr. Haley, and the plaintiff signed such a contract.

Is the agreement lawful ? All contracts may be made, except those reprobated by law or public policy, and a contract, by which one stipulates for exemption from responsibility for losses occasioned to another from the negligence of his agents or servants, is not against public policy or forbidden by law; but if the losses resulted from the fraudulent, willful, or reckless misconduct of the agent or employee, it would be.

The evidence satisfies us that the accident was not occasioned by the fraudulent, willful, or reckless conduct of the defendant, and that the vordict of the jury is erroneous.

It is therefore ordered that the verdict be set aside; that the judgment of the lower court be reversed, and that there be judgment in favor of the defendant rejecting the plaintiff’s demand with costs.

Wyly, J.,

dissenting. As a man has no right to imperil his own life, ho has no right to consent that a railway carrier may imperil it by the fault or negligence of its agents and employees.

In my opinion, the condition attached to the free ticket given to plaintiff, whereby the company was released from all responsibility for the injury ho might sustain in consequence of the neglect, imprudence, or want of skill of the officers and servants of the company, was void, because it was against public policy,

A railway carrier is bound to employ the utmost diligence which human skill and foresight can effect, not only in providing suitable appliances of transportation, but also in the arrangement thereof. A stipulation with a passenger to be released from the consequence of a failure to discharge its duties, is, in my opinion, a stipulation which the carrier has no right to make. It ought not to escape responsibility by such a device. It must discharge faithfully the duties it has assumed, and public policy requires it.

. The jury found that plaintiff had sustained actual damages to the amount of five hundred dollars by the fault of defendant, and I think the judgment on said verdict should remain undisturbed.

I therefore dissent.

Rehearing refused.


author: MORGAN, J.

text:
    No. 4677.
    Sophia Quinn vs. the Manhattan Life Insurance Company, New York.
    There is no law in Louisiana which requires that foreign insuranco companies talcing policies in this State shall keep an agency within its borders.
    In this instance, within a year after the first premium was paid by plaintiff on the insurance of her husband’s life, the defendants withdrow their agency from Now Orleans. Notice of this withdrawal was published in one of the city papers; the plaintiff was informed thereof by letter. The fact was known to her; for the second year’s premium was forwarded to New York.
    As to the third year’s premium, no effort seems to have been made to forward the sum duo to Now York, and, the promiunj not haying been paid on the twentieth of August, 1868, according to the stipulation between tho parties, the contract was at an end on that day, and the plaintiff could not recover on hor policy, tho ' death of her husband occurring on the twenty-sixth of said month.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      J. W. Thomas and B. Shackelford, for plaintiff and appellant.

      Labatt & Aroni, for defendants and appellees.
   MORGAN, J.

On the fifteenth of August, 1866, plaintiff made application to the Manhattan Life Insurance Company, through their agent, O. C. Hathaway, representing them in this city, to effect an insurance on the life of her husband, H. S. Schuermann, in the sum of ten thousand dollars.

Her application was forwarded to the company, whose domicile is in New York, and was accepted, and a written policy made out on the twentieth of the same month, to take effect when countersigned by Hathaway. On the fourth of September, 1866, the policy reached New Orleans. It was countersigned by Hathaway, and delivered to plaintiff, and the first year’s premium was paid. On the twentieth of August, 1867, she paid the second year’s premium. Up to this point the facts are agreed upon.

She avers that on the twentieth of August, 1868, she was willing and prepared to pay the third annual premium, and that she made inquiry and diligent search for an agent of the company to whom payment could be made, without avail. Her husband died on the twenty-sixth of August, 1868. She claims from the company the amount of the policy, ten thousand dollars.

The answer is that the third year’s premium, due on the twentieth of August, 1868, for the ensuing year, was not paid, and that no proper ton-der or attempt at payment thereof was made, therefore that when plaintiff’s husband died the policy had lapsed.

Plaintiff meets the objections of tho defendant by asserting that she endeavored to pay the premium before noon on the twentieth of August, but that she was prevented from doing so by the fact that the defendants had no agent in New Orleans to whom she could make payment.

There is no law in Louisiana which requires that foreign insurance companies taking policies in this State shall keep an agency within, its borders. Within a year after the first premium was made the defendants withdrew their agency from New Orleans. Notice of this withdrawal was published in one of the city papers, and the plaintiff was informed thereof by letter. The fact was known to her, for the second year’s premium was forwarded to New York.

As regards the third year’s premium, her husband communicated .with the defendants, requesting a reduction of the policy on account of Ms anticipated inability to pay tho amount thereof when it should become-duo, to which the defendants refused to assent, and no effort seems to have been made to forward the sum due to New York. The premium was to have been made on the twentieth of August of each year, before twelve o’clock, m. Plaintiff contends that she was only bound to pay on the fourth of September, the day upon which the policy was countersigned by the agent hero. But the time is fixed by the policy, twentieth of August. That was the contract between the parties. It was therefore due on that date. Besides, there was some delay in making tho second payment, upon which notice was given that, in future, tho premiums must be paid on the twentieth of August.

The premium, not having been paid on tho day stipulated, the contract was at an end.

Judgment affirmed.


author: Wyly, J.

text:
    No. 5894.
    Rudolph Beer vs. George Dirmeyer.
    This is an appeal from tho refusal to grant an injunction. Defendant has also joined in tho appoal, praying for damages. As there has been no injunction granted, the defendant has no right to the twenty per cent damage? which ho claims in his answer to tho appoal.
    As tho appeal is moroly from an interlocutory order refusing to grant an injunction after hearing tho rule nisi, the appelleo has no right to ten per cent damages for a frivolous appoal. .
    APPEAL from the Sixth District Court, parish of Orleans. Saucier', J.

      Buck & Binkelspiel, for plaintiff and appellant.
    P. W. Kramer and Gabriel Fernandez, for defendant and appellee.
   Wyly, J.

Plaintiff applied for an Injunction to restrain the defendant from proceeding with the foreclosure of the mortgage note described in the petition, on the ground that defendant had given him an extension of time for paying the debt. The court granted a rule nisi, and, after hearing depositions on each side, refused to grant the injunction. Thereupon the plaintiff took this appoal. Defendant also joined in the appoal, praying for damages,

The evidence in. the record in our opinion sustains the conclusion of the judge a quo. . ;

As there has been no injunction granted, the defendant has no right to the twenty per cent damages which he claims in his answer to the -appeal.

As the appeal is merely from an interlocutory order refusing to grant an injunction after hearing the rule nisi, th.e appellee has no right to ten per cent damages for frivolous appeal.

Judgment affirmed.


author: WiLY, J.

text:
    No. 6102.
    Succession of Marx Schonberg. Opposition of Schneider & Zuberbier.
    Tho only quostiou in this ease is one of law, and it is whether the tolls reooivdd from Schonberg’s ferry across tho Lafourche at Donaldsoimllo, since Ms death, are liable for the payment of his debt to opponents.
    The motion to dismiss the appeal íqnst be denied, on the ground that, under the written agreement of the partías in the record, the incruiry being limited to a simple question of law, it is immaterial whether or not the clerk has certified that tho transcript contains all the evidence adduced; and, besides, the insufficiency of the clerk’s certificate is attributable to him, and not to the appollants. ■
    The funds in the hands of the administrator arising from the earnings of the ferry, belonging to the estate of the deceased, are certainly liable for his debts.
    APPEAL from the Parish Court, parish of Ascension. Maher, J.

      A. B. Phillips and JR. Beauvais, for opponents and appellants.

      B. PT. Sims, for administrator and appellee.
   WiLY, J.

In the trial of the opposition of Schneider & Zuberbier to the final account; of the administrator of the succession of Marx Schon-berg, by agreement of parties the only question to be decided by the court was a question of law, to wit: whether the tolls received from the ferry across the Lafourche at Donaldsonvüle, belonging to the deceased, since Ms death are liable for the payment of his debt to said opponents.

The court came to the conclusion that tho money received from the ferry since the' death of Marx Schonberg belongs to the heirs and can not be applied to the payment of the debts of the deceased, on the theory that the right to keep the ferry, under act sixteen, of the acts of 1870, was personal, and said statute designated the heirs as the persons who should keep the ferry after the death of their father.

The court rejected, therefore, the demand of opponents, ordered the homologation of the final account, and the cancellation of the bond of the administrator. The opponents have appealed.

The appellee moves to dismiss this appeal because the clerk’s certificate does not state that the transcript contains all the evidence adduced, and also because all the heirs have not been cited. This motion must be denied--

First — Because under the written agreement in the record the inquiry is limited to a single question of law, and whether all the evidence be adduced or not is immaterial; besides, the insufficiency of this certificate is attributed to the clerk and not to appellants.

Second — The heirs are not necessary parties in the trial of this opposition to the final account of the administrator ; besides, they have been made parties to this appeal.

On the merits the case is clearly with the appellants. By succession the heirs succeed to the rights and liabilities of the deceased. Act sixteen of the acts of 1870 granted to Marx Sehonberg and William Mur-rell, their heirs and assigns, tho exclusive right of keeping a ferry across the Lafourche at Donaldsonville for twenty years; and Sehonberg subsequently bought out Murrell. The statute clearly authorized the sale of tho ferry privilege, and, whether it did or not, the funds in the hands of the administrator arising from the earnings of said ferry axe certainly liable for the payment of the debts óf the deceased.

It is therefore ordered that the judgment appealed from be amended, so as to require the claim of the opponents, Schneider & Zuberbier, to be paid out of the funds in the hands of the administrator arising from the earnings of the ferry belonging to the deceased, and, as amended, it is ordered that it be affirmed, appellee paying costs of appeal.


text:
    No. 6116.
    Nicholas Verret vs. Francois Gaudin, Tutor, et al.
    The motion to dismiss this appeal must prevail. It was made returnable on tho third Monday, seventeenth day of January, 1876. The delay of three judicial days expired on the twentieth of January. An indorsement on the record that it was filed on the twenty-first was too late.no extension having been obtained, or asked for.
    APPEAL from the-Fifteenth Judicial District Court, parish of Assumption. Beattie, J.

      Nicholls & Folse, for plaintiff and appellee.

      JEEiram G-. Carver, for defendant and appellant.
   Howell, J.

The motion to dismiss this appeal on the ground that the transcript was filed after the legal delay had expired must prevail. The appeal was made returnable on the third Monday, being tho seventeenth day of January, 1876. The delay of three judicial days expired on the twentieth of January. On the twenty-first the appellee obtained from the deputy clerk of this court a certificate of the non-filing of the transcript in the clerk’s office. There is, however, an indorsement on the record that it was filed on the twenty-first, made by a different deputy. This Was too late, no extension having been obtained or asked for.

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


author: Taliaferro, J. Ludeling, O. J,,

text:
    No. 5920.
    F. Del Bondio (Adèle Del Bondio, Tutrix,) vs. New Orleans Mutual Insurance Association et al.
    In the Body of the appeal bond the names of the four sureties being written, and all of them haying signed the instrument, the non-appearance of the name of one of said sureties in the conditional clause of the bond was evidently a mere clerical error and is a matter of no moment. ' >
    After having gained an advantage by judicially alleging and maintaining that a certain contract was valid in a suit previously decided, this defendant will not be listened to when setting up the nullity of the same contract in this controversy. It would be inequitable to do so.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      Kennard, Howe & Prentiss, Buck & Dinlcelspiel, and George H. Brauglm, for plaintiff and appellee.

      Bandolph, Singleton & Browne, for defendant and appellant.
   On Motion to Dismiss.

Taliaferro, J.

The ground taken to sustain that motion is that the bond is insufficient for a suspensive appeal, and that the amount not having been fixed by the judge a quo it can not avail as a devolutive appeal. The judgment was for six thousand dollars. The bond is for ten thousand dollars, with four sureties, each bound for twenty-five hundred dollars. But it is contended that in the clause of the bond expressing its condition the name of one of the sureties does not appear, and that three of them only are bound, and that the amount of the obligation is seventy-five hundred dollars — less than one-half over 'and above the amount of the judgment. This objection is wholly without weight. In the body of the bond the names of the four sureties are written, and all four of them sign the instrument. The non-appearance of the name of one of the sureties in the conditional clause of the bond was evidently a mere clerical error and a matter of no moment.

It is ordered that the motion be overruled.

On the Merits.

Ludeling, O. J,,

In May, 1874, F. Del Bondio sued the New Orleans Mutual Insurance Association and Fairbanks & Gilman for the sum of six thousand dollars, rent due and to become due for certain buildings situated in the city of New Orleans. He prayed for judgment against the two defendants in the alternative. The movable property on th6 premises was provisionally seized.

The New Orleans Mutual Association in its answer admitted that it was the lessee, but it declared that the contract by which the lease had been made had been declared null by the district court in a suit between D. J. & D. Edwards vs. Fairbanks & Gilman, C. Cavaroc & Son, and the New Orleans Mutual Insurance Association, from which Judgment the New Orleans Mutual Insurance Association, as intervenor, had appealed to this court, and the trial of the case appears to have been continued several times to await the decision of this court on the appeal. This court reversed the judgment of the lower court and decreed the New Orleans Mutual Insurance Association was the owner of all the property mentioned in the said act. This included the lease. In that case this court said: “ By the same act Fairbanks & Gilman transferred to the insurance company their lease of the property.”

After this decree had been rendered, the defendant, the New Orleans Mutual Insurance Association, filed an amended answer, in which it alleged that the said contract was null and void, because ultra vires. After having gained an advantage by judicially alleging and maintaining that the contract was valid in the suit decided, this defendant will not bo listened to when sotting up the nullity of the same contract. It would be inequitable to do so.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.

Justice Howell was recused.


author: Mor&an, J. Howell, J.

text:
    No. 5841.
    B. M. Johnson vs. Blakemore & Co.
    The question in this ease is, whether defendants wero hound to honor a certain draft drawn upon them by Adams in favor of plaintiff. Defendants had informed plaintiff that Adams was authorized to draw on them against any cotton “ which ho might ship or control to be shipped them.” The evidence shows that the draft now sued on was drawn against cotton shipped by Adams to the defendants. It was therefore completely covered by the defendants’ letters authorizing Adams to draw.
    It is to be observed also that the draft in question was drawn, as wore all the other drafts which are in the roeord — those drawn in favor of Adams as well as those drawn in favor of other parties — without there being bills of lading attached to any of them. It was therefore drawn in the regular order of - business as carried on between the parties, and plaintiff had tho right to assume that it would be paid, as other similar drafts had been paid.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J. Special jury trial.

      Thomas Gilmore &-8ons, for plaintiff and appellant.

      Hays <& New, Samuel JR. & G. L. Walker, for defendants and appel-lees.
   Mor&an, J.

-The defendants addressed to the plaintiff the following letter:

“ New ORLEANS, August 9,1873.
“Mr. B. M. Johnson, Banker, Shreveport, La.:
Dear Sir — Our friend Mr. N. B. Adams having consented to solicit and control shipments of cotton for us during the coming season, we trust you will extend him such facilities as may lie in your power for the accomplishment of his efforts in this connection. He is as well and favorably known to you as to ourselves, and we doubt not-that his business with you will be characterized by the same agreeable intercourse that our previous correspondents in your city have enjoyed with you.
“ Yery truly yours, etc.,
« BLAKEMORE BROTHERS & CO.”

On the twenty-sixth of November of the same year, the plaintiff wrote to the defendants:

■ “ Referring to yours of the ninth August, which implies but does not express a letter of credit to our friend N. B. Adams, please address me a letter stating that his drafts will be honored against shipments, and to what extent.”

To this letter the following answer was made:

“ New Orleans, December 10,1873.'
“Mr. B. M. Johnson, Shreveport, La.:
“Dear Sir — Your late favor has not had as early care as was due, from having been mislaid.
“ In reply, we would say that while we have no regularly-constituted agencies, Mr. Adams is authorized to value against us upon any cotton which he may ship or control to be shipped to us.
“ Yours truly,
“ BLAKEMORE BROTHERS & 00.”

Hp to the thirteenth May, 1874, Adams shipped to Blakemore & Co. about 1340 bales cotton, and he drew on them drafts for upward of eighty thousand dollars. Of this sum nearly sixty thousand dollars, in some twenty-eight drafts, were drawn in favor of B. M.-Johnson. The balance of the drafts were drawn in favor of various parties. These drafts, except the one in suit, were all paid without objection.

On the thirteenth May, 1874, Adams drew his draft on the defendants in favor of the plaintiff for eighty-six hundred dollars. The draft was protested for non-payment. This suit is brought to recover the amount thereof.

The case was submitted to a special jury of merchants, who found in favor of the defendants.

To the original petition an exception was filed that it disclosed no cause of action. The exception was dismissed. Thon plaintiff filed a supplemental petition, to which, as well as to the original petition, the defendants pleaded the general issue. It is therefore not necessary for us to determine whether, the exception to the original petition .was or not properly taken.

What we hare to decide is whether Adams was authorized by Blake-more & Oo. to draw the draft sued on, and whether Blakemore & Co, are bound to pay it under their letters to the plaintiff.

We think they are. The letter of the tenth of December, 1873, from Blakemore & Co. to the plaintiff, is full and complete. The letter of the ninth of August, 1873, was general in its terms and unsatisfactory to the plaintiff. He therefore wrote to the defendants telling them that he wished to be further advised, and requested a letter stating that Adams’s drafts would be honored, and to what extent. The reply was that Adams was authorized to draw on them upon any cotton which he ¡might ship or control, which was shipped to them. The evidence satisfies us that the draft now sued on was drawn against cotton shipped by Adams to the defendants. It was therefore completely covered by the defendants’ letters authorizing Adams to draw.

It is to be observed also that the draft in question was drawn as were all the other drafts which are in the record, those drawn in favor of Adams as well as those drawn in favor of other parties, without there being bills of lading attached to any of them. It was therefore drawn in the regular order of business as carried on between the parties, and Johnson had a right to assume that it would be paid, as other similar drafts had been paid.

' It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside. And it is further ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the plaintiff, B. M. Johnson, and against the defendants, W. T. Blakemore, Clifton Dancy, and G. A. Williams, in solido, for $8642 20, with legal interest from judicial demand, and costs in both courts.

On Application foe ReheaRing.

Howell, J.

In refusing the new trial in this case we think it proper to say that this practically disposes of the rule taken by plaintiff to declaro our judgments final and to order the mandate to be delivered, on the ground that the application for rehearing is merely an extension of .time to prepare an application; and it is therefore unnecessary to pass on the motions presented therein.

Rehearing refused.


author: Wyly, J. Morgan, J.,

text:
    No. 5843.
    State ex rel. John Larrieux vs. Judge of the Superior District Court, Parish of Orleans.
    The Superior District Court, in granting the injunction complained of, having invaded the appellate jurisdiction of this court, the writ of prohibition herein granted was properly issued.
    for a .writ of prohibition against the Judge of the Superior District Court, parish of Orleans.

      Cotton & Levy and Simeon Belden, for relator.
    There was no answer or defense made.
   Wyly, J.

Pending the suit of John Larrieux vs. the Crescent City Live-Stock Landing and Slaughter-House Company, just decided, the Assistant Attorney General sued out an injunction in the Superior District' Court, at the instance of the Crescent City Live-Stock Landing and Slaughter-House Company, restraining the said John Larrieux from pursuing the occupation of butcher on the right bank of the Mississippi river. Thereupon the relator sued out the prohibition which is now presented for examination.

The question raised by said injunction in the Superior District Court was pending on appeal in this court in the case of John Larrieux vs. the Crescent City Live-Stock Landing and Slaughter-House Company, and the Superior District Cgurt, in granting the injunction complained of, invaded the appellate jurisdiction of this court and the writ herein properly issued.

It is therefore ordered that the prohibition herein be made perpetual at the costs of the Crescent. City Live-Stock Landing and SlaughterHouse Company.

Morgan, J.,

dissenting. I do not find from the record that the Assistant Attorney General proceeded against the relator at the instance of the Slaughter-House Company. T understand the suit of the State against the relator to have for its object the preventing Mm from slaughtering animals in a certain locality on the alleged ground that it violates a sanitary law of the State.- The Slaughter-House is not a party to that suit.

There was a suit pending between the relator and the Slaughter-House Company when the suit of the State was brought, in which some of the same things were set up in both. That suit has just been determined. It is possible that should the case of the State against the relator come here a like decision would be had. But this, in my opinion, is no reason-why the State should be prohibited from suing the relator. The judgment just pronounced-has not the authority of the thing adjudged against the State, because it was not a party to that suit. Not even could he, in my opinion, set up tho plea of lis pendens against the State, and for the same reason, i.' e., that the State was not a party to the other suit.

In my opinion the suit should bo refused.


author: Morgan, J.

text:
    No. 6096.
    Bernard Rossignol vs. Estate of Drauzin Triche. Olympe Triche, Administrator.
    This is a suit oil an opon account and a promissory noto. Tho account is composod of many items, not one of which amounts to five hundred dollars. It is sufficient that ono witness swears that each of tho items is correctly slated in the account. As to tho promissory note, it is hold by plaintiff, who is, in law, tho owner thereof. Payment to him discharges the debt. There is no plea of want of consideration.
    APPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.

      J. & BilUu, for plaintiff and appellee.

      C. Kno-bloch, for defendant and appellant.
   Morgan, J.

This is a suit on an open account and on a promissory, note, secured by mortgage, upon which plaintiff had judgment.

The grounds upon which the defendant asks us for a reversal of tho judgment are —

First — That the account sued on exceeds five hundred dollars, and is only proved by one witness; and

Second — That on cross-examination plaintiff said that the note sued on was given to him as security in part payment of tho accounts sued on; that tho plantation, of Drauzin Tricho owed him $2611 50, and he owed one-half of this sum to Sevin & Gourdain, in New Orleans, and Mr. Drauzin Triche gave him tho note to secure the one-half due Sevin & Gourdain, as colla,toral security, but not to secure the one-half duo him.

First — Tho account is composod of many items, not one of which amounts to five hundred dollars, and tho witness swore that each of the items was correctly stated in the account. This was competent and sufficient evidence.

Second — Tho note is held by plaintiff, who is, inlaw, tho owner thereof. Payment to him discharges the debt, and there is no plea of want of consideration therefor.

Judgment affirmed.


text:
    No. 2960.
    Peter Hand, Tutor, vs. James West.
    The defendant’s exception that plaintiff is not tutor of the minor Brand was properly overruled, because the record shows that plaintiff was appointed tutor several months before the institution of this suit.
    It is not true that there is but one l-emedy for a breach of the contract of apprenticeship, and that is: an action to annul it.
    A contract was made with the minor, a boy of the age of thirteen, to the knowledge of defendant; and plaintiff, his uncle, merely consented to the contract as guardian, and signed it at the .same time it was executed apd signed, by said minor, both parents of said minor being dead. The fact that plaintiff signed as guardian amounts to nothing, because, as plaintiff resided in this city and was about this time in the employment of defendant, the latter of course had knowledge that _ plaintiff, as guardian, had no legal authority, there being no such office in the State. The contract was clearly made with the minor, and it'falls within the'provision of article 1791 of the Revised Code.
    The allegations of the plaintiff are in the main sustained by the evidence in the record, which shows that defendant has clearly committed a broach of contract and is liable to plaintiff’s claim under the provision of article 2749 of the Revised Code.
    APPEAL from the Fifth District Court, parish of Orleans. Léaumont, J. Jury trial.

      Whitaker & Bice, for plaintiff and appellee.

      M. Grivot and Randolph, Singleton & Brovjne, for defendant and appellant.
   Wyly, J.

Plaintiff, the tutor of the minor Charles K Brand, alleges that, acting as guardian, he assisted said minor in making a contract in April, 1866, with defendant, whereby the said West, in a notarial act, bound himself to teach, or cause to be taught, the said minor the art, trade, mystery, or occupation of a dentist, with all things .thereunto pertaining or belonging; that during the period of apprenticeship (a period of some six years) he was to provide said minor with good and sufficient food, meat, drink, washing, lodging, and apparel, and allow and pay the following wages : One dollar per week for and during the second year of said apprenticeship; two dollars per week for and .during the third year; three dollars per week for and during the fourth year; four dollars per week for and during the fifth year, and five dollars .per week for and during the remainder of the term of said apprenticeship; that said West did further bind himself to teach, or cause to be.taught, said apprentice to read, write, and cipher, and to permit and encourage him to attend the public night-schools, whenever such schools should be opened in the city of New Orleans; and it was also understood that said West was to -retain one-half of the weekly .payments, and. the same to remain in his hands to the credit of said apprentice until the expiration of the term of apprenticeship, when the same was-to be delivered to said apprentice; that the said minor did bind himself, in order to learn said trade, mystery; or occupation, to.dwell and continue with-said-West, his executors and administrators, from said nineteenth of April, 1866, till the first of July, 1872, and during all said time to. faithfully serve-said West, obey his lawful commands, and not depart from his said sorvico without said West’s consent.

. Plaintiff alleges that said apprentice complied with all the torms and requirements of said contract, notwithstanding which ho was neglected by said West, who failed to teach, or cause him to be taught, in the art, trade, mystery, or occupation, of a dentist; to teach, or cause him to be taught, to read, write, and cipher, and decently to supply him with food, washing, lodging, and clothing; but that said West did, on the cor» trary, employ and compel, or suffer said apprentice to be Compelled, to perform menial services and drudgery about the dwelling of said West, and did beat and suffer said apprentice to bo beaten in a cruel and inhuman manner by the wife of said West, whereby the very life and limb of said apprentice Were imperiled, and did finally, in the month of July, 1869, drive, or suffer said apprentice to be driven, from his premises, and did refuse to permit him to return; that by said neglect and said conduct said West has wantonly violated said contract, and rendered it impossible for said apprentice to fulfill his part thereof, and that petitioner has now the right to demand the full amount that would have been due to said apprentice as wages to the first of duly, 1872; as well as an amount reasonable for the clothing, board, washing, and lodging of said minor to- said date, as set forth in the petition, the aggregate amount being $2376.

Defendant oxeepted to the suit on the following grounds—

First — The plaintiff is not the tutor of the minor Brand.

Second — This action is not maintainable; tho only action the apprentice would have is a suit to annul the indenture of the nineteenth of April, 1866.

Third — No action can be maintained on the contract, because it is a nullity, never having been entered into between proper parties, plaintiff pretending to act at the execution of said contract as guardian, and not having legal authority to represent said minor.

The court very properly overruled these objections —

First — Because the record shows that plaintiff was appointed tutor several months before the institution of this suit.

Second — It is not true that there is but one remedy for a breach of the Contract of apprenticeship, and that is an action to annul it.

Third — The contract was made with the minor, a boy of tho ago of thirteen, to the knowledge of defendant; and plaintiff, his uncle, merely consented to the contract as guardian, and signed it at the same time it was executed and signed by said minor, both parents of said minor being then dead. The fact that plaintiff signed as guardian amounts to nothing, because as plaintiff resided in this city, and was about this time in tho employment of defendant, the latter, of course, had knowledge that plaintiff, as guardian, had no legal authority, there being no such office in this State.

The contract was clearly made with the minor, and it falls under the provision of article 1791 of the Revised Code, which provides that “ the persons who have treated with a minor, person interdicted, or of insane mind, or with a married woman, can not plead the nullity of the agreement, if it is sought to be enforced by the party when the disability has ceased, or by those who legally administer the rights of such person during his disability.”

The exceptions being dismissed, the defendant answered, admitting the contract, but denying a violation of its terms and conditions by him. On tho contrary, he avers that he has fulfilled the same, and has treated the minor with kindness and affection, and the members of his family have likewise done so ; that he has fed and clothed him with the best food and clothing, and has taught him, so far as the intellect of said minor would permit, the art and mystery of the profession of dentistry. He charges that said minor was addicted to the vice of self-pollution, which affected him so as to render him almost unfit for any duties. Respondent avers that he and his family always treated said minor as a member of the family, and that plaintiff was well aware of it. But that said minor on the day (Sunday) ho left the promises of respondent had permission to amuse himself, with tho request to return at an early hour, and instead of so returning he came home at a very late hour of the evening and in a state of drunkenness, and upon -being chided for his appearance he became very insulting and abusive toward Mrs. West, and without any provocation whatever he left respondent’s domicile, and has never returned or offered to return; that plaintiff, the tutor of said minor, “forbade him in positive terms to return, and, though requested by respondent, he positively declared he should not return.”

Respondent therefore avers that, by his conduct and absence from his domidle, the minor has forfeited all the benefits of said indenture, and respondent is in no manner bound to comply with any of the terms and conditions thereof.

Defendant prayed for a jury, and after hearing evidence and argument it returned a verdict in favor of plaintiff for six hundred dollars, judgment having been entered accordingly, defendant has taken this appeal.

An examination of the evidence satisfies us that defendant neglected' and abused tho minor, or permitted it to be done; that, instead of assigning him to service in the office, the minor was put to menial service in the family ; that he was treated in the most cruel and shameful manner, and finally was driven from the house of defendant without proper causo. The defendant has clearly committed a broach of contract. The allegations oí plaintiff are in the main sustained _ by the evidence in the record. Article 2749 of the Revised Code provides that “ if without any serious ground of complaint, a-man should send away a laborer whose services he has hired for a certain time before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his service arrived.” An important feature of the contract between the defendant and the minor was, that he was to have the labor or services of the minor for a fixed term, and was to pay him a certain salary or wages in addition to the food, lodging, clothing, and instruction he stipulated to give him.

Defendant has wantonly violated his contract and rendered its execution on the part of the minor impossible. Shall he escape the penalty allowed to almost every employee for a fixed term and salary, a penalty which the most inferior plantation laborer could demand, simply because in addition to the stipulated wages defendant assumed relations of a higher character toward this minor boy — relations of a parental character ? We think not. These relations ought to have inspired a deeper determination to uphold the contract arid a greater reluctance to violate it.

In the ease of the Orphan Asylum vs. the Mississippi Marine Insurance Company, 8 L. 183, this court said: “ If the employer of an artisan, or even a common laborer, when the contract is made for a specific sum to be paid for services to be rendered during a fixed period, can not discharge the hireling unless for good cause, without being responsible for the payment of the price of the whole term of service, what sound reason can present itself to the mind of any person why one who contracts to give the Use of his mental exertions and services to another should not have the right to claim the entire benefit of a contract made for a determined period ?

Any license given to parties bound- by contracts to dissolve the obligation arising from them at the will of either, forms an exception to the general rule of the inviolability which should prevail in all agreements legally made between individuals.”

- Is there in the contract between defendant and the minor, or the law applicable to it, an exception to the general rule of inviolability Which should prevail in all legal agreements ?

Counsel for defendant point to articles 164 and 165 of the Civil Code of 1825, in force when the contract in question was made. But those articles will be searched in vain to find an exception to the rule stated in art. 2720 of the Civil Code of 1825, being art. 2749 of the Revised Code.

■ We see no reason why the minor should not have the wages stipulated for the determined period of service; and this is what the jury awarded to plaintiff. 1 R. 319; 2 A. 652; 3 L. 299; 12 L. 67; 15 L. 360.

Judgment affirmed.


text:
    No. 5510.
    Succession of A. Constant Hearing. On Oppositions to Account of the Executrix.
    The succession being insolvent, the amount-charged tor funeral expenses should have been reduced to two hundred dollars (O. C. 3134), this being the largest amount which the court below was authorized to allow.
    Opponents’ claim that in the judicial proceeding which preceded the sheriff’s sale in -favor of Rochereau & Co., creditors of the succession, fees and costs were allowed which were not legal, and that Rochereau & Co. should be helcteresponsiblo for the excess, is not well founded. The costs were not charged by them, neither did they recover them. Therefore they are not answerable for the same.
    The opponents’ further objection that said claims wore granted a privilege, can not be allowed. Rochereau & Co. are only placed on the tableau as mortgage creditors. There is no error in this, as their rights are established by a judgment duly recorded.
    The. ela-im of the executrix, who placed herself on the tableau for a certain sum thoroin mentioned, by virtue of a judgment rendered in her favor in a suit for separation of property instituted againsther husband, which judgment was duly recorded and published, must bo rejected. This judgment has never been executed, and no attempt fias been made to execute it. The judgment is null, not only as to creditors, but between the parties themselves. There is no force in
    ■ the position that this objection can not be heard except in a direct action to annul the judgment, because there is no need to resort to an action to annul a judgment which the law itself annuls.
    The plea of the one-year prescription can not apply to the opposition. Opponents are not seeking to annul a judgment. They simply say that the judgment sot up against them is null and void, even between the parties, and therefore can not he opposed to them.
    The opposition to the account of the executrix, on the ground that there are assets of the succession which have not been inventoried, and which the executrix should be charged with, is premature, and must be dismissed ¡as a ease of non-suit. when she files her final tableau these matters may be impaired into.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Hudson & Hearn and J. L. Tissot, for executrix and appellee.

      E. Sabourin, for Judlin and Winling, opponents and appellees,

      deorge L. Bright, for Clement, Williams, and Bright, opponents and appellants.

      Charles F. Claiborne, for Rochereau & Co., appellees.

      Hornor & Benedict, for Alfred Marchand, opponent and appellant.:
   Morgan, J.

'-According to the tableau filed herein the amount of the property of the succession available at the time the tableau was filed amounts to $12,696 45; the debts, according to the tableau, amount to $17,447 82; the total amount which the executrix has for distribution is $5246. '

If we compare the amount of the estate, tailing for basis either the sum which the executrix has • in hand, or the amount of the inventory, with the statement of debts, the succession is insolvent. ' .

First — The first opposition to the account is to the item $249 for funeral expenses. The succession being insolvent, this amount should, have been reduced to two hundred dollars (C. C. 3194), this being the-largest amount which the court was authorized to -allow. ■ ■

Seebnd — Opposition to amount allowod to E. Simon, $2411 92, and to Philip JJmhauor, $1871 84. The first is on account oí a note drawn by the docoased; the second is for monoy loaned.

The note/ was drawn on the first of April, 1872, and boars interest at eight por cent ñjom date. Umhauer is the brother-in-law of Hearing. Both Simon and' Umhauer wore in Iris employ at very moderate wages. Hearing owned a photographic gallery, where Simon and Umhauer worked. They claim that they rented this gallery from Hearing, and that the amount of the note claimed by Simon and the amount of the loan result from the receipts of the gallery, which they deposited from time to time with Healing for safe keeping or investment.

The evidence in the record forces upon us the unwelcome conclusion that these claims are not well founded.

Hearing, at the time of the alleged lease, which was verbal, was in embarrassed circumstances. He had made a simulated sale of some property to 'Umhauer, and liad transacted business through the medium of others. His name remained over the photographic gallery. He purchased articles for it in bis own name. Every week Simon and Umhauer brought to him a statement of the business of the gallery and handed hiln over the proceeds, and tho accounts were settled wocMy. No acknowledgment was taken by thorn at the time of settlement that the money received by Hearing belonged to Simon and Umhauer, and there is no acknowledgment anywhere' of any indebtedness from Hearing to Urn-hauor.

The note hehl by Simon is suspicious. It was given to him, ho says, •by Hearing. It was not drawn up in his presoneo. Ho docs not aver or establish that the note .was given-him by reason of any demand which he made upon Hearing for a settlement. About the time it was given Hearing was harassed with lawsuits. He had attempted to cover up Ms property. He was silently working with ethers. Umhauer was Ms brother-in-law. Both ho and Simon had been in his employ, the latter working for small wages. The conclusion with us is irresistible that •fchtíjp both lont thomselvos to his necessities and ware endeavoring ter protect him, and that the indebtedness claimed by both was due to neither, /We think their claims Should have been disallowed,

A. Bochereau & Co.’s claim for $245 96 is opposed. They held two-judgments against Hearing, one with interest,- amounting to $1308, with $21 00 costs; the other for $250, with interest at five per cent from the first of October, 1870, to the first of April, 1872 (the day of sale). Under execution they received $1888 66, which leaves a balance due them of $209 70, to wMch they are entitled. The opponents claim that in the 'judicial proceedings WMch preceded the sheriff’s sale fees and costs were allowod wMeh wore not legal, and. that Bochereau & Oo. should bo bold responsible ior their excess. The .costs were not charged by them, neither did they receive them, and thoy are not accountable for them.

Opponents further object to their being granted a privilege. They are only placed upon tho tableau as mortgage creditors. There is ño error in this, as their rights are established by a judgment duly recorded.

Judlin had a half-interest in a note held by Hearing for one thousand' dollars. This, wo think, is established by the evidence. Six hundred dollars of this note was paid to Hearing. The balance was paid to the executrix. Some of this money was paid to Judlin. There is a balance duo him of two hundred dollars, for which ho had judgment. He edaimed a privilege, bat to this he is not entitled. Tho district judge recognized him as an ordinary creditor. The judgment was right.

Tho executrix places herself on tho tableau as a creditor in the sum of ^4947, by virtue of a judgment rendered in her favor in a suit for ■separation of property instituted against her husband, duly recorded, and published. The judgment was rendered on tho twenty-second of June, 1871, and was published in the official journal on the eleventh, twelfth, and thirteenth of July.

In so far as is disclosed in the record this judgment Has never been executed, and no attempt has been made to execute it.

“ The separation of property., alt-liough decreed by a court of justice, is null if it has not been executed by tho payment of the -rights and claims of tlio wife, made to appear by an authentic act, as far as the estate of the husband can meet them, or at least by a bona fide, non-interrupted. suit to obtain payment.” O. 0. 2428.

The record shows that, at the time the judgment of separation was rendered, Hearing owned property upon which the judgment could have .been executed. In Handy vs. Sterling, 1 An. 308, it was held that whero a judgment for the separation of property, though susceptible of execution, remained unexecuted till the marriage was dissolved by the death •of the wife, it must be considered as null and the community as unaffected by it. Tho judgment is null, not only as to creditors, but between tiro parties themselves. The same decision was made in Longino vs. Blackstone, 4 An. 513.

Under these authorities the judgment allowing the widow’s claim is erroneous. Counsel for the executrix contend that .the opposition to this item can not be heard oxcept in a direct action to annul the judgment. Tíiero is no need to resort to an action to annul a judgment which tho law itself annuls. They also plead the prescription of one year to tho opposition. But opponents are not seeking to annul a judgment. They simply say that the judgment set up against them is null, oven between the partios, and therefore can not be opposed to them. They bring no action. They merely say that as to them there is no judgment. There is therefore no question of prescription in the case.

There is no evidence in support of the opposition to the mortgage on the house No. 21 Hospital street. Its verity, we think, is established by the evidence.

There is an opposition to “ the item set down to Joseph Winling as not due, as simulated and fraudulent.”

Wo do not find on the-tableau of distribution any sum which it is proposed to pay to Winling.

On the tableau which accounts for the property of Bearing is a statement of the sale of a piece of property for $3500,. purchased by Whiling, in which it is related: “ The entire property sold for $3500. The costs and taxes amounted to $258, and by order of court the purchaser was authorized upon-paying the costs and taxes to retain tho balance of the purchase price to pay off the first mortgage of Robert for $1200, and Winling $4000 pro tanto. Nothing thus came to the executrix -in money.”

. If the object be to make the executrix liable for tho amount which the property sold for, upon the ground that it belonged to Hearing, and that the mortgage put upon it by Judlin was a fraud to which Winling was a party, and concocted for .the benefit of Hearing, the opposition can not be maintained.

. The property in question .stood upon the records of the country in tho name of Judlin. He mortgaged-it to Winling for. $4000. The money was paid to him in the presence of the notary who passed the act. Win-ling, it is true, says that he knew it was owned by Hearing aad Judlin. If it was1 altogether owned by Judlin, Hearing had no interest in it. If it was owned by Hearing and Judlin, the loan made upon it-was made in good faith. Jn either event, as it did not sell for enough to pay tho mort-. gage, the creditors of the succession can not claim anythingdrom Win-ling.

It appears that there are one hundred dollars in the hands of tho sheriff after paying the taxes on the property No. 21 Hospital street. The district judge was therefore right in charging the executrix with them.

It seems to bo admitted in the brief of counsel for Marchand that the opposition to the item $343 due to Eajet is not sustainod by the evidence. We think the evidence sustains it. The opposition was properly dismissed.

The opposition which seeks to make the executrix responsible for a certain piece of property standing in the name of Cornibci, and which, opponents allege, was conveyed to him through fraud, can not be maintained. The property was purchased by .Cornibé at a judicial.sale during Hearing’s lile, and is nowhere, mentioned as belonging to the succession. This opposition was properly dismissed.

It is claimed that the properties were sold and the proceeds distributed without any account having been filed, or without the rights of the parties having been passed upon in a proper proceeding in accordance with' law, and that they' should be maintained and charged against the executrix. But we think they were sold under proper authority, and all that the opponents can claim is that the proceeds should be properly distributed. It is of their proper distribution that we have-been considering.

We do not think that the conduct of the executrix has been such as to deprive her of the commissions which the law gives her. The oppo: sition thereto was properly dismissed.

It is opposed to her account that there are assets of the succession which have not been mentioned, and which the executrix should be charged with. The evidence upon this point is not satisfactory. But this is a provisional account. We think this opposition should be dismissed as in case of nonsuit. When she files her final tableau these matters may be inquired into.

The opposition to the item $250, reserved for future costs, should be one hundred dollars. The judgment as regards the claim of McWil-liams & Bright is correct as it stands.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended —

First — By reducing the amount allowed for funeral expenses from $249 to $200.

Second — By dismissing the claim allowed to E. Simon for $2411 92.

Third — By dismissing the claim allowed to • Philip Umhauer for $1871 34.

Fourth — By reducing the amount allowed to A. Bochereau & Co. from $245 96 to $209 70.

Fifth — By striking from the tableau the sum of $4947 claimed by and allowed to the widow on account of her judgment against the deceased.

Sixth — By reducing the amount reserved for future costs from $250 to $100.

And that as thus amended the judgment of the district court be affirmed, the succession to pay the costs.


author: Wvly, J. Howell, J., Ludkling, C. J.,

text:
    No. 5983.
    Succession of Francois Bellocq.
    As the aeoount of the administrator was homologated without any proof reduced to writing or otherwise, except as to the creditor who opposed it, the judgment, except as to said opponent, can not he maintained.
    In this case the surviving widow and universal legatee alleges in her petition that the deceased loft three minor children, to whom the law, of course, reserved two-thirds of the succession; yet, without demanding of them the possession or making them in any manner parties to the proceeding, this universal legatee obtained an exparle, order, sending her into “ possession of all the property bequeathed to her by her late husband.”
    In the face of the positive provision of article 1607, Revised Code, which is the law applicable to this case, the universal legatee gets an ex. parle order sending her 'into possession of the whole succession, notwithstanding, by operation of law, the heirs are seized of all the effects, have accepted the succession with the benefit of inventory, and the “ universal legatee is bound to demand of them the delivery of the effects.”
    under article 167.0, Revised Code, the heirs can, at any time, take the seizin, etc. Here, however, the forced heirs of the deceased, to whom is reserved two-tliirds of the succession, have made no application whatever. It is only the universal legatee, entitled to merely one-third of the estate and not confirmed by any order as natural tutrix of her minor children, nor having qualified as such, who has obtained an exparle order to be put in possession. She certainly was not entitled to said order.
    Under article 1607, Revised Code, the forced heirs “ -wore seized of rigid by the death of their father of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the offocts.” This has not been done. Hence the order sending the universal legatee into possession was improvidently issued.
    The executrix, by virtue of her office, owed duties to the creditors and also to the forced heirs of the deceased which this court will not permit her to disregard in acting for her personal interest and to their prejudice. The ex-editor who thought himsolf wronged by her tableau of homologation had the right to take this appeal.
    This case falls clearly within the express provision of article 1607, and the universal legatee has not complied with the requirement thereof.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      A. Bodin, for Mrs. Widow Bellocq, testamentary executrix, appellee.

      C. B. Schmidt and J. A. Seghers, for P. N. Canton, appellant.
   Wvly, J.

On the twenty-sixth day of June, 1874, Francois Bellocq died, leaving a small succession and three minor children. He also left a nuncupative will by public act, whereby he bequeathed to his surviving widow all his property. A creditor having applied to administer on the estate of the deceased, the surviving widow filed an opposition. Two days afterward, to wit: on the fifth of November, 1874, she presented a petition, alleging that of her marriage with deceased there were living three minor children (naming them), of whom she was entitled to the tutorship, and she presented the will and prayed that it be registered and executed, that an inventory be made, and for all necessary orders. The registry and execution of the will was ordered, and the surviving widow received letters testamentary. An under-tutor was appointed, but no order was rendered confirming the surviving widow as natural tutrix, nor has she qualified as such.

On the fourth of February, 1875, the executrix filed an account setting down a large number of creditors as paid. Notice of the filing of the account was- duly published, and only one creditor made opposition. Upon proof of the advertisement the court ordered the account to be approved and homologated so far as not opposed; and on the trial of the opposition of the creditor, Verriere, the court, after hearing evidence, dismissed it and ordered the final homologation of the account.

This was on the sixth of April, 1875. Seven days thereafter, to. "wit:on the thirteenth of April, 1875, the court rendered the following ex parte order: “ Considering the prayer of the petition, let the petitioner,” the surviving widow and executrix, “ be put into possession of all the property bequeathed to her by her late husband.”

Subsequently, to wit: on the twenty-third day of August, 1875, P. N. Canton, a creditor, set down on the tableau as paid, applied for and' obtained appeals from the judgment homologating the account and the order sending the executrix into possession as universal legatee, oh the ground that his claim, recognized for $1135 96, had not, in fact, been paid, notwithstanding the statement to that effect in the account." He also disclosed by his affidavit an appealable interest. 21 An. 336; 23 An. 768; 25 An. 3. - .

As the account was homologated without any proof reduced to writing or otherwise, except as to the creditor who opposed it, the judgment, excepj as to said opponent, can not be maintained.

“ The testimony of witnesses in causes before the court of probate shall be taken in writing and annexed to the record, and a list shall be made of such documents as are produced by the parties and aré annexed to the record, that they may be read on the. appeal.” Code of Practice, 1042; 8 An. 491; see, also, succession of Ross, 21 An." 511, and authorities there cited.

We come now to the ex parte order putting the executrix into possession as universal legatee. “ The heirs can, at any time, take the seizin from the testamentary executor on offering him a sum sufficient to pay the movable legacies and on complying with the requirements of article 1012.” Revised Code, article 1671.

Article 1607, however, provides that “ when, at the decease of the testator, there are heirs to whom a certain portion óf the property is reserved by law, these heirs are seized of right, by his death, of all the effects of the succession", and the universal legatee is bound to demand of them the delivery of the effects included in the testament.”

Article 352 provides that “ it shall not be necessary for minor heirs to make a formal acceptance of a succession that may fall to them, but such acceptance shall be considered as made to them with the benefit of inventory by operation of law, and shall in all respects have the force and effect of a formal acceptance.”

In Westholz vs. Retaud, 18 An. 285, it was held that “when, at the decease of the testator, there are heirs to whom a certain portion of the property is reserved by law, those heirs are seized of right, by his death, of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament.”

In the case at bar the surviving widow and universal-legatee alleges in her petition that the deceased left three minor children, to whom, of course, the law reserved two-thirds of the succession; yet, without demanding of them the possession or making them in any manner parties to the proceeding, this universal legatee obtained an ex parte order sending her into “ possession of all the property bequeathed to her by her late husband.” . .

In the face of the positive provision of article 1607, which is the law applicable to this ease, the universal legatee gets an ex parte order sending her into possession of the whole succession, notwithstanding by operation of law the heirs are seized of all the effects, have accepted the succession with the benefit of inventory, “ and the universal legatee is bound to demand of them the delivery of the effects.” * * * *

In Fowler vs. Boyd, 15 L. 562, where an appeal was taken from the judgment discharging the rule to set aside the order sending the universal legatee into possession, on the ground that it was illegal and had issued improvidently, this court held that “ it is only from forced heirs that a universal legatee is bound to demand ike delivery of the property bequeathed to him, and if there be no forced heirs he is seized, of right of the estate and no demand is required.” In that case there were no forced heirs, and the court hold that the rule announced in article 1607 did not apply to collateral heirs. Under article 1671 “ the heirs can at any time take the seizin,” etc. Hero, however, “ the heirs ” have not applied for the seizin. The forced heirs of the deceased, to whom is reserved two-thirds of the succession, have made no application whatever. It is only the universal legatee, entitled only to one-tliird of the estate, who has obtained an ex parte order to be put in possession. She was not entitled to the order under article 1671, by virtue of which it was probably granted.

Article 1607 is the law applicable to the case at bar, and by virtue thereof these forced heirs were “ seized of right,” by the death of their father, “ of all the effects .of the succession and the universal legatee is bound lo demand of them the delivery of the effects,” etc.,'which has not been done.

Our conclusion is that the order sending the universal legatee into possession was improvidently issued, and it should be annulled.

The executrix, by virtue of her office, owed duties to creditors and also to the forced heirs of the deceased which this court will not permit her to disregard in acting for her own personal interest and to their prejudice. She was bound to make a fair settlement with the creditors whom she. placed on the account. And if she has not paid appellant the. $1135 96 which she stated in the account she paid him, it would be a great wrong to permit her to enjoy the benefit of a judgment to that effect in the homologated account, and then, by an ex parte order, to carry off all the effects of the succession to the prejudice of creditors and heirs.

The case falls clearly within the express provisions of article 1607, and the universal legatee has not complied with the requirements thereof.

It is therefore ordered that the judgments appealed from, so far. as they affect the appellant, be avoided and annulled, and it is further ordered that this case be remanded to be proceeded in according to law, appellee' paying costs of appeal.

Howell, J.,

concurring. ! concur in the conclusion in this case, on the ' ground that the creditor had the right to appeal from the judgment homologating the tableau to his prejudice, and the subsequent proceedings of the executrix, as conducted, to be put in possession, did not destroy that right. And as the order putting her in possession might, under the circumstances, impair his rights as creditor, he could have it reviewed on appeal.

Ludkling, C. J.,

dissenting. F. Bellocq died on the twenty-sixth of June, 1874. He left a will whereby he appointed his widow his universal legatee and executrix. This will was probated, and letters testamentary were issued. She filed an account which was opposed by one creditor, and, the opposition having been rejected, the account was homologated, and on the application of the universal legatee she was put into possession of the property. Several months after this, P. N. Canton, a creditor of the estate, obtained orders for appeals from the judgment homolo-gating the account and from the judgment putting the legatee in possession. He alleges and assigns as errors that the account was homologated without proof as required by law, and that the widow could not be put into possession of the whole estate, as there were forced heirs, and the executrix had not administered the estate.

An heir lias the right to demand possession of the estate at any time, subject only to the conditions that he give security for the payment of the debts, if the creditors demand it, and that he place in the hands of the executor a sufficient sum to pay the movable or particular legacies. C. 0.1671,1012; 2 R. 382; 3 R. 349; 3 An. 705.

The judgment of the lower court having been executed, and therefore acquiesced in, they could not appeal from the judgment. 18 An., succession of Egana. If the debt of the appellant exists, he can demand it from the heir in possession, in a suit in the court of ordinary jurisdiction.

Mr.' Justice Taliaferro concurs in this opinion.