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

text:
    No. 7573.
    Vredenburgh vs. Behan et al.
    "Where defendants appeal suspensively and give bond, the plaintiff may test in the court below the sufficiency of the sureties, and an appeal will lie from a judgment sustaining their sufficiency.
    “When the law requires a surety to be given, it does not intend a mere formality to be gone through.. It intends to give the creditor something that will be available to pay Ms debt.
    Where the wife sues for separation of property and restitution of paraphernal effects, a discontinuance of the demand for separation is a discontinuance of her demand for a money judgment against the husband, since she can only obtain such judgment when she claims a separation of property and dissolution of the community.
    ^PBEAL from the Sixth District Court, parish of Orleans. Bightor,

    E. Howard McOaleb for plaintiff and appellee :
    There is no doubt whatever of plaintiff’s right to appeal from the judgment of the court a qua accepting the sureties tendered by appellant, overruling the motions made to dismiss the appeal, and refusing to issue the executions demanded by the judgment creditor. It was so decided in 19 An. 4; 16 An. 192 4 La. Ill; 8 An. 288 ; 24 An. 329 ; Act No. 24 of 1876. .
    It is only in cases where the judge a quo dismisses the appeal and orders execution to issue, that the Supreme Court in aid of its appellate jurisdiction, will, by mandamus and prohibition, examine into the legality of the action of the lower court. 2 Rob, 550 ; 21 An. 735, 114 ; 23 An. 279, 491; 24 An, 316, 328.
    Francis W. Baker, S. P. Blanc, Gf. W. Lane, W. S. Benedict, and Jos. P. Hornor for defendants and appellants :
    First — No appeal lies from the judgment of the lower court discharging ■ plaintiff’s and appellee’s rule to test the solvency of the sureties on the appeal-bond, and to issue execution. Act No. 24 of 1876 is the last and governing law on the subject, and does not intend that the action of the judge a quo, deciding that the sureties are solvent, should be reviewed by this court.
    Second — Such an order is not a final judgment; nor is it an interlocutory judgment working irreparable injury.
    Third — The law-makers never contemplated such an appeal—
    Because no provision was made therefor.
    Because no summary trial has been provided, and without it no benefit could accrue.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

The plaintiff recovered judgment against the defendants in solido for fifteen thousand dollars.

All the defendants except Pierce moved for a suspensive appeal which was granted, and they gave bond with sureties. The plaintiff took a rule on Pierce to shew cause why execution should not issue against him, and another rule on the other defendants to test the solvency and sufficiency of their sureties.

On the suggestion that Pierce’s name had been omitted from the motion of appeal through a clerical error, he was allowed a suspensive appeal nunc pro tunc, and the rule upon him was discharged. After hearing testimony touching the sufficiency of the security, given by the other defendants, the rule against them was also discharged. The plaintiff appeals from these judgments, and the defendants move to dismiss on the grounds that the judgments are but interlocutory orders which do not work irreparable injury; and that no appeal lies from such judgments, because the lower court is invested with the sole authority to pass finally upon the sufficiency of securities to appeal-bonds.

The law regulating suspensive appeals has this condition attached;— provided that the party furnishing the security shall prove his solvency to the satisfaction of the court whenever it is questioned by any party interested in the appeal. Sess. Acts 1876, p. 49 amending art. 575 Code Prac. The defendants regard this as conclusive cf the question, and since they have proved the solvency of their sureties to the satisfaction of the court, they insist that is an end of the matter.

But the same language may be employed in relation to any demand made before a court. If a person shall prove his demand .to the satisfaction of the court he shall have judgment therefor. This does not imply that an. appeal will not lie from a judgment rendered on such demand, if it be for an appealable sum. Suppose upon a rule to test the sufficiency of an appeal-bond the proof is beyond cavil in its favour, and the lower judge arbitrarily rejects the bond and execution is about to •issue. Would not this court protect the appellant from the irreparable iájury about to be inflicted on him, if he should invoke the writs of mandamus and prohibition ? It would be peculiarly our province to do so under the new Constitution, art. 90.

The question seems never to have been directly presented before, and our examination of it has been unnecessarily prolonged by citations . of decisions that are wholly irrelevant. '

In Perilliat v. Fernandez, 16 Annual, 192, where the reporter’s syllabus, is altogether wrong, there was a rule below such as this and judgment thereupon, but no appeal was taken from that judgment. When the principal appeal came up, the appellee moved here to dismiss it so far as it was suspensive, and the court said as there was no appeal taken from the judgment on the rule, they would not review it under the appeal previously granted. This implies that if the appellant there had done what the plaintiff here has, the court would have reviewed it.

Later, the court refused to dismiss on the ground that the sureties to the appeal-bond are not good, because the evidence touching the solvency was not properly before them, Generes v. Eluker, 24 Annual, 829, and we refused a similar motion for the reason that no objection to the sufficiency of the bond was made in the lower court. Edwards’ case, 29 Annual, 597.

If we should refuse this appeal, and the judgment on the principal appeal is affirmed, and upon execution issuing against the sureties it should turn out that they are what the plaintiff’s brief describes them, irreparable injury would be done, for a judgment for fifteen thousand dollars could not be made out of “ two certificated bankrupts, two nonresidents, one tutor plastered with a minor’s mortgage exceeding three times his entire estate, one impecunious husband oppressed by his wife’s sworn claim for over fifty-eight thousand dollars, and a number of stockholders, bondholders, and possessors of cash and other intangible, invisible objects.”

The correctness of this description of the sureties is not a matter of present concern. The right to have the judgment of the lower court -reviewed, upon a matter so vital to the plaintiff as the solvency of the-securities to the appeal-bond, is the question we now have to settle, and we are very clearly of opinion that such right exists.

The motion to dismiss is refused.

On appeal from the decree of the lower court, discharging rule of' plaintiff to test the solvency of sureties on appeal-bond, the opinion of the court was delivered by

DeBlanc, J.

Defendants suspensively appealed from a judgment rendered against them, and gave bond for $28,500, with twelve different sureties, whose solvency was tested in the lower court in a rule taken by plaintiff, and which was there tried and discharged.

From the decree discharging that rule, plaintiff appealed, and defendants moved to dismiss her appeal. We refused their motion, and they now contend that the two appeals — their own and plaintiff’s — must be tried in their regular order on the docket, as two distinct cases.

What was the real object of the discharged rule ? It was to ascertain whether defendants had complied with those legal requirements,, without which no appeal can ascend to and reach this jurisdiction, and it is clear that — before we can consider and pass upon what purports to be an appeal — we are bound to hear those of the interested parties who regularly deny its very existence.

The judgment appealed from by defendants is — in amount — for $15,000, and — to perfect their appeal — they had to give, in favor of the clerk, an obligation for $22,500, with good and solvent sureties, residing within the jurisdiction of the court by which the judgment was rendered, and this — according to plaintiff’s averments — they did not do; but the lower court thought and held otherwise.

As to the solvency and qualifications of the sureties furnished by defendants, what are the facts ? Two of them, Keep for $2500, and Webster for $1000, were called as witnesses, and testified that they do not reside within the jurisdiction of the court which rendered the judgment.

It matters not that they have inferentialiy submitted themselves to the proper jurisdiction — for we ourselves held “that a judicial tribunal has no more power to accept as surety on an appeal-bond a person not residing within its jurisdiction, than it would have to accept as such a person not having in the State property liable to seizure.”

Acts of 1876, p. 49, 50 ; 30 A. 584-5.

Defendants’ counsel argue that, according to the last paragraph of Act 67 of 1876, a surety may render himself amenable to the process of a court beyond the territory of his residence. Of this there is no-doubt; but that act, which merely amends art. 3042 of the Oivil Code, provides — as did and does the amended article — that, unless under specified circumstances and as regards administrators, executors, tutors, curators and fiduciaries, the surety’s domicile must be in the jurisdiction of the court where it is to be given.

0. 0. 3042 (3011); Act of 1876, p. 109.

The qualifications of the surety on the bond of one who takes a. suspensive appeal from a judgment rendered for a specific sum, are-fixed by the 575th article of the Oode of Practice and Act No. 24 of the-legislature of 1876, and though one may accept, no one can be compelled to accept as surety any other but one who has the qualifications required' by said article and act, and — therefore—the objections urged against-Webster and Keep must prevail.

The other sureties wore also sworn, and examined as to their-solvency.

John I. Adams, who obligated himself for one thousand dollars, said : that his firm is in bankruptcy, that he is indebted for nearly half a million of dollars, and that he did not consider that he is worth the amount of his obligation. The written statement which accompanies his declaration does in no way contradict it, and — when he signed the bond and testified — he was absolutely insolvent.

McOutcheon, another surety for $2500, declared that he owned, in-the Louisiana National Bank, one hundred shares worth $9000 — in the Union National Bank, fifty shares worth each $85, and insurance stock worth about $1000, and that he is not indebted.

It was shown — by the cashier of the Louisiana National Bank, and by the record of Mrs. McOutcheon’s judgment against her husband, that she owns the one hundred shares of that bank, which he referred to as belonging to him. Non constat, we are told by defendants’ counsel, that the husband and wife had not each an equal amount of that stock. If such had been the fact, they would not have failed to prove it.

It appears that, on the 13th of May 1879, a general mortgage was recorded against him, to secure the re-imbursement of $58,915 82 alleged to be due by him to his wife. He said that he received that amount in notes which he still holds and in bonds which he sold. That he has, in the house where he lives, the proceeds of that sale. As to the price-which he received for those bonds, he did not tell.

He was sued by his wife, who claimed a separation, of property, on •the sworn averment that she was entitled to it, on account of the disorder of his affairs, but she — thereafter—discontinued her demand for a separation of property, and merely resumed the administration of her paraphernal effects, and — among these and in the words of the decree rendered in her favor — “ of one hundred shares now standing in his name ■ on the books of the Louisiana National Bank.”

It was incumbent on defendants to prove the contested solvency of that surety, and they have failed to do it:

Is Staub solvent? He bound himself for one thousand dollars. He is separated in property from his wife. He owns household and kitchen furniture — the best part of which he valued at 175, a watch and chain, dockets, gold buttons and several other little articles, which — he supposes — cost him between two hundred and fifty to three hundred dollars. He also has an interest in a commercial business, which — he again supposes — is worth about .1600, and twenty shares of mining stock in Nevada. He is the holder of notes, but how many, by whom due and for what amount, he was not asked and did not tell. He is the tutor of Julius H. Cohen, and — as such — gave a bond for 18000, which stands •recorded against him. He said he owes nothing to the minor; that his wife is indebted to him, and for only §465. If so, why did he give that bond, and — by his own act — contribute to reduce or rather destroy an ■already limited solvency, which — even without that additional liability— was not equal to his obligation ?

The evidence leaves no doubt that at least five of the sureties who ■•signed the bond, and — collectively—for eight thousand dollars — are not ■such as the law requires, and that said bond is insufficient for a sus-pensive appeal. Por these reasons,

It is ordered, adjudged and decreed that the judgment rendered on the rule filed by plaintiff on the 16th of September 1879, is avoided and reversed, said rule made absolute at defendants’ costs in both courts, and the order granted for the suspensive appeal therein referred to set ..aside and annulled.

On Application fob Rehearing.

Spencer, J.

The very earnest appeal made for a rehearing in this ■case has induced us to re-examine the facts relative to the solvency of McCuteheon, Jno. I. Adams, and Staub.

When the law requires a surety to be given, it does not intend a ■mere formality to be gone through. It intends that the creditor shall have pledged for his debt something that may be made available for its ■payment.

We can hardly think counsel are serious in urging that Staub and Adams are good and sufficient sureties for the sum of $2000. It would be a mockery of justice to so treat them. We therefore dismiss them from further consideration.

The solvency of McOutcheon is more debatable.

His solvency depends upon the extent of his liability to his wife. She has recorded against him a mortgage for $>58,916 based upon her oath. The indebtedness consists, as charged by her, of about $44,000 in State bonds, and mortgage notes for about $12,000, and other effects.

McOutcheon when on the stand as a witness, says this $58,916 represents the amount of his wife’s paraphernal property. True he is asked if she has not resumed its administration, and he answers “ yes.” But, in the' next breath, he tells us that he has the note in bank, and that he has sold the bonds, and that he has the proceeds. This shows that she has not got the administration of this property at least. It also shows that he owes his wife the amount or value of the bonds sold, and there is no legal proof that he has ever paid her.

But it is said, and such is the fact, that Mrs. McOutcheon had sued her husband, alleging that he liad received of her paraphernal effects to amount of about $60,000 ; that she had learned that a part thereof had been 'by him invested in stock of the Louisiana National Bank, and of the Germania National Bank, and Hibernia Insurance Company.

She prayed to be adjudged owner of this stock, and that she be separated in property from him, and that she have judgment, with privilege and mortgage for such part of said paraphernal rights as he may fail to restore to her.

Her demand for separation of property was discontinued. She took judgment by default against him, condemning him to restore to her the administration of her paraphernal and other property together with 'its fruits and revenues, and decreeing her to be owner of the 100 shares of Louisiana National Bank stock standing in his name. This bank-stock is shown to have been worth about $9000.

When the wife discontinued her demand for separation of property, she thereby discontinued her demand for a money judgment against her husband. Since the wife can only recover a money judgment, when she ■claims and obtains a separation of property and dissolution of the community, her suit was, therefore, limited to a demand of restitution of >such paraphernal property as existed in kind.

The judgment obtained by her does not bar her, therefore, from now or hereafter proceeding to demand a separation and a dissolution of the ■community, and a judgment for the value of such paraphernal effects as he has failed to restore to her. It is, we think, a mistake to say that the decree, declaring her to be owner of the 100 shares of bank-stock ¡standing in his name, is restrictive of her paraphernal rights. She had discontinued her money demand. The judgment only shows that the bank-stock was hers, and does not exempt the husband from being liable to her for the value of her other property of which he had disposed, some of which, as we have seen, he still has, and some of which he has sold. There is not a particle of proof that he has ever restored or paid for those bonds and notes. On the contrary, when on the stand in this case-he swears he still has the note, and still has the proceeds of the bonds sold by him. The evidence, we think, fails to show him good and sufficient for the amount of his suretyship. The burden was on appellants to prove that fact. Act 24 of 1876.

It is said in the next place, that we have dismissed the appeal entirely. We have only held that the bond was not good for a sus-pensive appeal. If the appellants took, also, an order for devolutive appeal, and had the amount of bond therefor fixed by the court, the bond given by them may well be held good and sufficient to maintain a. devolutive appeal., But that question is not before us. We hold that the judge a quo erred in holding the bond good for a suspensive appeal. We are not advised as to whether any sum was fixed for a devolutive appeal, and, therefore, do not pass On the question at all.

We know no law or precedent which would justify us in permitting appellants to now furnish other sureties in lieu of those held to be bad.

However hard the case may be upon appellants, we must follow what we understand to be the plain letter of the law. There was a judgment against defendants for 5515,000. To suspend that judgment, a-bond for $22,500 with good and sufficient securities was necessary. It was not furnished. It is equally evident that we cannot' hold a bond,, which was bad when given and when tested, to be good now, because some of the defendants have to-day paid their virile portion of the judgment. Our mission is ended when we pass upon the case as pre■sented to, and decided by, the judge a quo. The question is, was the-bond good when taken for 5522,500 ? We think not.

The rehearing is refused.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 7051

    The Southern Mutual Insurance Company of Baton Rouge vs. William S. Pike, Jurior.
    "Where it appears that the hooks, accounts, and assets of a corporation were entrusted "by the directors to one who united in himself the offices of president and cashier, and who died without rendering an account of trust, a demand for such an account and for the delivery of the property entrusted to him may ho made on his heir who has accepted his succession purely and simply, and prescription cannot commence to run against a demand for the return of such property, until the heir has evinced by an external act, or a declaration inconsistent with, or adverse to his precarious tenure, an open intent to change the origin, cause, and character of his anterior possession.
    The entries on the books of a corporation made by a deceased president and cashier, or under his direction, constitute a standing acknowledgment of his liability as against himself and his legal representatives, and form the basis of an account to be rendered by those representatives.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Mü Vea, J.
    S. P. Greves, Merrick, Race & Poster, Barrow & Pope, and Geo. L. Bright for plaintiff and appellant:
    First — Prescription does not begin to run where property, money, or other effects are in the hands of a fiduciary, until a demand has been made. 30 A. 486 ; 14 A. 216 ; 23 A. 300.
    Second — The president and cashier of a corporation continues to be liable to the corporation as president and cashier, even though he may cease to perform the active duties of his office, until his office has terminated in some one of the ways pointed out by law. Field on Corporations, pp. 213, 214, 215.
    Third — An agent and trustee is bound to perform his duties in good faith. He cannot acquire the property of the things entrusted to him. Field on Corp. p. 188, sees. 173,174, p. 358 et seq.

    Fourth — Failure to carry on its regular business does not dissolve a corporation. Field on Corp. pp. 553, 554, sec. 485.
    Herron & Byrd and Richardson & Magruder for defendant and appellee:
    First — A suit against the president and cashier of a corporation, for an account, and a judgment for what he tfiay owe, is prescribed in ten years from the time he • ceases to act as such. C. C. 3457, 3458, 3459; Duranton de la Prescription, vol. 21, p. 95 ; Marcadé, liv. Ill, p. 4 ; Boileus, vol. 7, p. 728 ; Marcadé de la Pres. p. 113 ; C. C.' 3544 ; Troplong, vol. 2, p. 5, Nos. 474,478 ; 11 A. 213 ; 10 A. 342 ; 12 A. 257 ; 20 A. 568 ; 7 L. 50 ; 9 L. 50 ; 22 A. 151; 17 A. 250 ; 15 A. 144; 15 A. 534 ; 16 A. 397 ; 7 R. 515.
    Second — Parol testimony is not admissible to prove a payment made on debt by a decedent in order to take tlie debt out of prescription. C. C. 2278 ; 21 A. 350 ; 23 A. 531, 549.
    Third — Good faith in a debtor is not necessary to enable him to plead prescription. Duranton, voi. 21, p. 561; C. C. 3530.

       Tliis case, decided on tbe 16th December, 1878, was ordered by the late Court to be reported in this volume.

   The opinion of the court was delivered by

DeBlanc, J.

The marked ability with which this important-cause has been prosecuted and defended, has enlarged its real proportion.

The Southern Mutual Insurance Company was organized by an act of the Legislature of this State, approved on the 12th of March 1855, and' — according to the first section of said act — was to continue for and during the term of twenty-five years.

The officers of the company were to be elected on the third Thursday of January of each and every year, and — as such — were to serve until the next general election, and until their successors had qualified.

The powers delegated to the corporation by the statute of 1855, were — by its directors — transferred to its first president and treasurer, William S. Pike, Senior, who died on the 17th of January 1875, more than five years before the term fixed by the act of 1855 for the expiration of the company’s charter.

As president, the entire business of the corporation was conducted by him — as treasurer, the whole of its assets were entrusted to his care. In those capacities, lie had in his possession — from the date when the company was organized and until his death — the books, papers, bills receivable, cash, and — without exception — all that belonged to it.

He was a trustee invested with almost unlimited authority, and in whom his associates had reposed an unlimited confidence. He died owing and promising an account of his trust. That account, which he was compelled and willing to render, is now asked of one who — as his legal representative — has unreservedly accepted his succession, and who — by the effect of that pure and simple acceptance — is bound to discharge those of his parent’s obligations which are still in force.

What is then asked of defendant? Not exclusively the payment of a debt which may exist, but the existence of which is not yet ascertained — not merely the satisfaction of an obligation for which' — primarily — his parent may have been individually liable, but the execution of his parent’s obligation as president and treasurer of the corporation, an account of the trust confided to his integrity, the delivery of notes, cash and effects, which — as an agent and a depositary — he held exclusively for and as the absolute property of the insurance company.

As against that part of the otherwise too broad and too collective demand of the company, the only prescription, if any, which might be invoked by defendant, is — beyond a doubt — the prescription acqui-rendi causa; and — in this instance — to effectually oppose it to plaintiff’s action, he would have to accomplish the more than difficult task of maintaining that one who — as the deceased — combined the responsible functions of president and treasurer of a corporation — could—while acting and holding as such and for others, acquire — by the lapse of time and a prolonged neglect, a valid title to the property left in his charge as an agent.

That pretension is untenable. The deposit must be restored to the depositor as soon as he demands it, oven though the contract may havo specified when it is to be restored: no surrender can relieve an unfaithful agent from that obligation ; and one, or the heir of one, who possesses for another and not in his own name cannot prescribe, whatever may be the length of his possession, unless he evinces — by an external act, or a declaration inconsistent with or adverse to his precarious tenure — an undisguised and open intention of changing the origin, the cause and the character of his anterior possession.

C. C. 2955 (2926); 3510 (3476) ; 3511 (3477); 3512 (3478).

“ Mais il faut — said DeLaporte — que les actes de contradiction soient forméis et positifs ; en sorte qu’il soit constant extórieurement qu’on a eu dessein de possóder ce que Ton pretend avoir preserit, particulierement á 1’égard des dioses que Ton ne possede pas sans quelque fait. II ne suffirait pas, par exomple, qu’un fermier prétendit jouir comme propriótaire, s’il ne l’avait pas manifestó par quelqu’acte, quand máme il demeurait cent ans sans payer le prix de la ferme, parcequ’il parait toujours sous la qualité de fermier.”

Traite des Prescriptions, pp. 67 and 68.

Tile company’s charter which was “ to continue for and during the term of twenty-five years,” does not appear to havo been forfeited. From March 1861 up to January 1875, Pike alone acted, or at least could have acted as its president and treasurer: he did not officially resign those functions, nor did he ever express to any one of the interested parties, the intention of renouncing the important mandate which he had received from the board of directors. He drew his salary as president up to January 1865 ; declared — in 1863 — that he had never taken, any thing for insurance that was not equivalent to gold and silver, and— in 1861 — removed a considerable quantity of gold and silver from the vault of the old bank in Baton Rouge. In 1871 — said his confidential clerk — from entries which he made in Mr. Pike’s private books, and under his direction, Mr. Pike still held possession of the papers and assets of the insurance company. In and before the month of August 1874, he remarked in conversations with other parties, that he could and would settle with every one connected with the company, but that he could not do it at that time, for the reason that he could not then withdraw so much money from his business in New Orleans.

The entries made on the books of the corporation, by the deceased himself, and either as president or as treasurer, or by any one under his direction, constitute — as against his succession, and legal representatives — a standing acknowledgment of his liabilities in his two recited capacities; and though that acknowledgment may be explained,, corrected or varied, though the apparent liabilities may be increased, reduced or shown to have been satisfied or extinguished, those entries— such as they are — must necessarily form the basis of the account to be rendered by his representative.'

Call Mr. Pike by whatever name the ingenuity of counsel may suggest, he held and possessed — not in his own name — but for others, whose rights he never denied or contested. Ear from openly resisting the exercise of their rights, he — on at least two different occasions — promised to account to the company. He could not alone and secretly, without any verbal or written notice to any one, without an overt act which might have been construed as amounting to a notice of his intention, change the character of his limited and qualified possession. His refusal would not have lessened, his promise did not add to, his obligation to account.

Marcadé, de la Prescription, p. 113.

If — as stated — Mr. Pike has converted the company’s funds into Confederate currency — if he has invested a portion of those funds in sugar thereafter confiscated by the Federáis, in cotton destroyed by the Confederates — if he has done so, not as a speculation and to benefit himself, but as an unavoidable necessity and to prevent an impending loss— if, without his fault, the assets which he held were ingulfed in-the common ruin which followed the war — if, from 1863 or 1864, he ceased to be, in all respects and in any sense, the agent of the corporation — if, through him or otherwise, the interested parties were informed of these facts, that information and those facts may be urged by them as an effectual defence, or — according to as yet unrevealed circumstances, as grounds upon which to rest the plea of prescription liberandi causa.

The justice of plaintiffs application is partly acknowledged by defendant ; for — in his answer — he alleges that if the corporation has any action against him, it can only be an action t.o enforce a moneyed demand, the amount of which — he himself admits — must be ascertained by a full liquidation of the affairs of the company. That liquidation, it is evident, must first be proceeded with, to ascertain the nature and extent of the deceased’s liabilities, the character and amount of any demand which may be enforced against his legal representatives, as also the character of any defence which may be opposed to that demand.

“ On doit poser comme régle certaine, que les dótenteurs et leurs héritiers ne peuvent pas invoquer la prescription contre Faction en dólaissement des choses qu’ils ont eues a titre précaire, et qui sont en leur pouvoir, et qu’ils ne sont fondés a l’opposer que lorsque ces choses n’étant plus en nature dans teur mains, ils n’ont a défendre qu’a une de-mande en paiement de leur valeur, ou en dommages intéréts.”

Vazeille, Traité des Prescriptions, p. 50, No. 135.

The corporation relies on entries found in books which were in Mr. Pike’s possession until his death, in books kept by him or under his immediate supervision, audit behooves those who have accepted his succession, who hold every voucher indispensable to effect the liquidation, the necessity of which is admitted by defendant, to prove what have become of the assets which — from the hands of the late president — have passed into those of the late treasurer — to account for whatever may remain of those realized and deposited assets, and — if they have disappeared — to show when, by whom, under whose authority and for whose -benefit they have been disposed of ; otherwise, their liability shall justly be considered as being that fixed and evidenced by the books of the company.

The liability of an agent, and more particularly of that class of agents chosen to represent and manage the banks and insurance companies of one State, must — in the interest of those' institutions and of those who deal with them — be measured by the importance and responsibility attached to their respective functions ; and — to hold that, at any time within the term of their office, or at any time during the period within which their mandate is legally presumed to continue, they can — without notice to the bank, the company or any of their representatives, draw the shroud of any prescription on any of the acts performed or perpetrated by them in their delegated capacities, or that they can claim and exercise the extraordinary privilege of refusing to account to their principals, would be to sanction and proclaim as irrational as dangerous a doctrine, one so manifestly iniquitous that — after its ■promulgation — no one would dare deal with an insurance company or -deposit a dollar in any bank.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed; and — proceeding to render such judgment as should have been rendered by the lower court,

It is further ordered, adjudged and decreed that — within sixty (60) days from the service upon him of a notice of this judgment — William S. Pike, Junior, render to plaintiff, and file in this case, an account of the .administration of William S. Pike, Senior, as president and treasurer of the Southern Mutual Insurance Company, from the first of February eighteen hundred and sixty-two — the date at which he submitted to the board of directors his last statement of the affairs of said company and — in default thereof — that plaintiff be allowed to prosecute his suit to final judgment.

It is further ordered that plaintiffs right to oppose and contest said account — when filed — is specially reserved ; that the costs of thfe appeal be paid by defendant and that those of the lower court abide-the final decision of this cause.

Rehearing refused.


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

text:
    No. 7821.
    Southern Mutual Ins. Co. vs. W. S. Pike.
    Because tlie right of a plaintiff to demand a statement of account from a defendant is not prescribed, it does not follow that the debt is not prescribed which is evidenced by the-account.
    The debt, incurred by the president and cashier of a corporation on account of money of the-corporation held by him, and notes and premiums due the corporation not collected by him, is prescribed by ten years from the time he ceased to exercise any of the functions oí his offices. The obligations of such an officer to return the books or any other specific property of the corporation shown to be in his possession is not prescribed in ten years.
    A PPEAL from the Fifth Rouge. McVea, J. Judicial District Court, parish of East Baton-
    A. L. Gusman, Barrow & Pope, and Merrick, Race & Foster for plaintiff and appellant:
    First — The entries made on the books of the corporation, by the deceased' himself, and either as president or as treasurer, or by any one under his direction, constitute, as against his succession and legal representatives, a standing acknowledgment of Ms liabilities in his two recited capacities, and hence, prescription cannot be pleaded. 30 A. 1077.
    Second — -When in order to plead prescription the defendant in his plea, sets forth the facts that terminated the fiduciary capacity, and pleads prescription to the liability, the judgment overruling this plea must form res adjudicate/, on the question of liability, unless some new facts are set up. Although the demand in one case was for an account, and in the other case was the debt shown to be due by that account, yet it is evident that the question considered by the court on each occasion as that conclusive of Pike’s liability was, when did he cease to be president and treasurer of the company ?
    The court now says it was in 1864, which, if true, should have defeated the demand for the account. In the previous decision, it said he held the offices until his death, on 7th February, 1875.
    The question and the evidence was the same on both occasions, and the first judgment must form res adjudícala. 29 A. 772 ; 31 A. 212, 339.
    Third — The president and cashier of a bank is liable as a depositary for all the specific property of the bank entrusted to his keeping, and such liability cannot be prescribed. O. 0. 2926, 2938, 2940, 2941, 2955, 3510, 3511, 3512 ; DeLaporte, Traité de Prescription, pp. 67 and 68 ; 11 A. 411 ; 13 A. 20 ; 67 N. Y. 598 ; C. C. 432, 3440, 3513 ; Morse on Banking, 90; 16 A. 16 ; 10 Johns, 285; 6 Hill, 298; Angelí on Limitations, p. 178, ed. of 1846; 4 Blackford, (Ind.) 324; 22 Barb. 314 ; 8 W. Ya. 95 ; 114 Mass. 400 ; 5 Cranch ; C. C. 560 ; 16 A. 167; O. 0. 3489 ; 15 A. 145.
    Fourth — The president and cashier remains as such until his office end's, by his resignation or removal, or by its expiration. That in this case there was no resignation express or implied. C. C. 3031; 41 N.. J. Law, (2 Yrooni) 107. There was no removal. There was no expiration of office.
    Though the officers of a corporation are required, by its charter or by its by-laws, to be elected yearly, yet they may continue in office until' their successors are duly chosen. Conn. Sup. Court 1827, McCall vs. Bryan Manuf. Com. 6 Conn. 428. The clerk of a corporation, unless the laws of a State or by-laws of the corporation provide otherwise, remains in office until another is chosen. Me. Supreme Court 1849, South Bay Meadow Ban Co. vs. Grey, 30 Me. 547.
    Richardson & Magruder, and Herron, Byrd & Beale for defendant and appellant:
    The most that can be said against the defendant is, that he received the money charged upon the books of the company as agent, and the only knowledge we get of the amount received was from the books. Plaintiff claims that he must be presumed to have held the money received from the date of its receipt until his death. If this was the presumption whenever an agent received money, this court never would have held that an agent could plead the prescription of ten years in the cases of Wagoner vs. Phillips, 22 An. 151; Millau-don vs. Lesseps, 17 An. 250 ; Garland vs. Scott, 14 An. 144; Imboden vs. Richardson, 15 An. 534; Hereford vs. Leverich, 16 An. 397.
    The prescription commenced when the defendant ceased to act as an, officer of the bank, and matured ten years thereafter. 7 A. 515.
   The opinion of the court was delivered by judgment against the defendant for one tenth (his virile portion) of whatever may be shewn to be due the plaintiff in cash, and for the delivery of its books, notes, etc. The pleadings and facts are fully set forth in our opinion, rendered when the case was last before us. The plea of prescription was then overruled, and the cause was remanded with the, order that within sixty days, from notice of the judgment-the ■defendant shall render an account of the administration of his father as president and treasurer of the plaintiff company, from February 1, 1862, and in default of compliance that the plaintiff be allowed to prose- ■ cute its suit to final judgment.

Manning, C. J.

This action is for an account, with a prayer for

The defendant obeyed the order by transcribing from the books the entries made therein from the date mentioned above to December. 6, 'Í864, “when his father ceased performing any functions as president or • treasurer of the company,” declaring that he has no knowledge of the ■ company’s affairs, and in rendering the account has been merely a ■ •copyist. He then pleads the prescription of ten.-years to “the entire claim, and to each and every item thereof, and to every item of the account.” This plea was sustained.

It is objected to this plea that our decree on the case, as it was before us then, is a bar thereto, and forms the thing adjudged quoad this plea. This is a misconception.

The plea of prescription first made was to the action for an account. Its substance and meaning was that, by inaction during ten years, the plaintiff had lost the power, or right, or faculty of calling on the defendant for an account of any kind. ¥e overruled the plea, thereby adjudging that the power and right to demand an account still existed, ■and in furtherance of its exercise ordered that one be rendered. The order has been obeyed. Now the plea of prescription is made to the Indebtedness evidenced by the account — to each item thereof that was put on the books ten years before the institution of this suit. It may well be that one shall be compellable to furnish or render an account of past transactions with another, and yet sufficient time may have elapsed to give him immunity from liability because of them.

This company was located at Baton Rouge. The last meeting of its ■directors was held there February 1,1862. The statement made then by the elder Pike as its president and treasurer is the basis of this suit. He left that place permanently in 1863 or early in 1864, and was engaged in the business of banking in this city continuously from that time until his death in January 1876. During his life no suit was instituted against him. . The latest entry in the books was in 1864. This suit was'instituted in 1877.

The prescription pleaded by the defendant, as one of the heirs of •his father, cannot be successfully opposed to the demand for any specific objects snob as the books, papers, seal, etc., and it is conceded that it does not. But the cash or money in hand in 1864, and the liability for non-collection of the notes and premiums on policies, is on a different footing. By the conversion of the former, and by the failure to collect the latter, a debt was created and the prescription liberandi causa is ■applicable thereto.

It cannot be seriously contended that Pike received the money as a ■special deposit. It was not expected that he should return it in kind, or distribute the identical money among those who might be entitled to it. From the moment when the business of the company stopped — when he ■ceased to conduct it in any of the capacities he had assumed, the liability for the money became a personal obligation which was enforceable against him. This is equally true of the notes. If it was his duty to collect them, and he failed to perform it, whereby they were lost to the ■company, his liability attached, and his creditors must enforce it in time at their peril.

The difficulty in the case, and the difference between the -counsel, lies not so much in the principles of law applicable to the case, as in the effect which certain facts have on the application of those principles. Thus it is, for the plaintiff contended that the elder Pike was actually president and treasurer of the company up to the day of his death— that the company was in existence, and he was the continuing manda-tary of the stockholders, and hence that prescription could not run while he held this relation to them. The defendant on the other hand points to the indisputable fact that Pike never undertook or transacted any business in insurance after February 1862 — that shortly thereafter he removed to this place, closing the office of the company, and that the last entry in the books is in 1864. His attitude to the company and to the stockholders was not that of an acting officer of a living organization. Even if his declarations were admissible in evidence, they did not imply, much less avow, that he was continuing the discharge of any official function. On the contrary their purport was that if he had incurred liability to any one for official acts in the past, he would discharge it. He treated the company as defunct, and so did all those who were interested in it.

We hold that the elder Pike’s liability attached in 1864 — that his son and heir cannot prescribe the demand for specific property, but he can oppose the prescription liberandi causa to the claim for money and to that of indebtedness for failure to collect the notes and the premiums on policies, which it is alleged he should have collected. He lived twelve years after the business of the company had ceased. No judicial demand was made during that time for the recovery of the debt created by bis alleged laches, and his heir is protected from that demand by the lapse of time.

Judgment affirmed.

White, J.,

concurs in the decree.

Dissenting- Opinion.

DeBlanc, J.

William S. Pike was, until his death, the President and Treasurer of the Southern Mutual Insurance Company. From his appointment in those capacities, whatever he received — money in payment of notes, or notes as evidences of loans — he held for, as the custodian of the company, and on deposit. He never evinced an intention of changing the character of his possession, never denied the rights of the stockholders ; but — on the contrary — left them under the impression that he would account.

It was only in 1874, that a remark made by him, should have warned those who heard it, that he had become an ordinary debtor of funds which he had ceased to hold as treasurer, and that remark was “ that he could and would settle with every one connected with the company, but that he could not do it at that time, for the reason that he could not then withdraw so much money from his business.” From that date — not before — prescription, if not otherwise suspended or interrupted — commenced to run in his favor.

For this reason, I respectfully dissent from the opinion and decree of the court.

On Application eon Reheaeing.

Manning, C. J.

The counsel for the plaintiff complain that by affirming the judgment of the lower court we sustain the plea of prescription which was opposed to the demand for the notes and_ other specific property. Such was not our intention. We said explicitly that that plea could not be successfully opposed to the demand for any specific objects, and lest our decree may be misinterpreted we now specially reserve the right of the plaintiff company to demand, sue for, and obtain possession of all the specific property, or property in kind, belonging to it and in the possession of the defendant, and in that sense we adhere to our original judgment, and refuse the rehearing.


author: Spencer, J. White, J.

text:
    No. 7566.
    State ex rel. Morris Ranger vs. Mayor and Administrators of the City of New Orleans.
    It is tlie privilege of individuals to mate contracts; "but it belongs to tlie government exclusively to provide tlie machinery for, and the modes and manner of, enforcing’ the contracts so made.
    Obligations resulting from lawful contracts are not only binding on the parties, but the State itself cannot directly or indirectly impair them or lesson their value.
    The control of the State over the manner of executing or enforcing obligations, is absolute, provided only, that in changing remedies or modes of execution, the rightsecured by the obligation be not impaired or lessened, in. value.
    -AcfcKo. 5 of 1870, in so far as it requires registry, as a prerequisite to payment or the levy of a tax, does not impair the obligation of the contract between the city and its bondholders.
    j^PPEAL from the Third District Court, parish of Orleans. Monroe,

    D. 0. Labatt for relator and appellee :
    First — That the laws in existence when these railroad bonds were issued in 1854 were ample to authorize the city to levy taxes to meet them at their maturity, and formed part and parcel of the “ contract ” , which was protected by the prohibition in the Federal Constitution against the “impairment of the obligation,” and consequently could not be repealed or affected by Act No. 5 of 1870.
    ■Second — That while it is reserved to the State legislatures, in a limited and well-defined class of cases, to alter and change the character of “ remedies ” for the enforcement of contracts, it is essential that two things concur:
    1. An adequate and sufficient remedy must be left as a substitute.
    2. The exercise of the substituted remedies must be lodged with the courts of justice, and not in the discretion of the defaulting debtor.
    Third — That the subject matter of Act No. 5 of 1870 attempts to repeal the various writs of ft. fa., mandamus, contempt, and other orders . necessary to the jurisdiction of the courts on past contracts, and to furnish in their stead inadequate substitutes which tended to clog and hamper creditors on absolute judgments against the city of New Orleans from enforcing their legal rights, and such legislation being obnoxious to the Federal restriction on the States, was null and void.
    Fourth — That if the subject matter of a statute be unconstitutional, all the means provided to carry out such legislation must fall with the nullity of the statute, and it was obligatory on the court to examine and declare the unconstitutionality of the act quoad relator’s previous contract.
    Fifth — That it was incumbent on defendant to show by its return to the
      mandamus that “ registry ” was the only ceremony preliminary to . the payment of relator’s judgment, whereas the provisions of the act show that money for that purpose could not be gathered by-taxation, unless the judgments were registered, after which it was. left discretionary with the administrators to appropriate it or not. •
    Sixth — That it is settled, that no “ legislature of a State can make a law preventing the right to the legal remedies, upon a contract lawfully-made and binding on the party to it, without exceeding its legitimate-powers,” and
    Seventh — “ Where a statute does not leave a party a substantial remedy according to the course of justice, as it existed at the time the contract was made, but shows on its face an intention to clog, hamper, or embarrass the proceedings to enforce the remedy so as to destroy it altogether, and thus impair the contract so far as it is in the power of the legislature to do it, such statute cannot be regarded as a. mere regulation of the remedy, but is void.” 15 Wis. 28 ; 6 Greenl.. 12; 21st Ind. 144 ; 4 Wall. 535.
    E. Howard McCaleb, City Attorney, and E. H. Farrar for defendants- and appellants :
    Act No. 5 of the extra session of 1870 has provided the mode of executing judgments against the city of New Orleans. The relator-does not pretend that he has complied with the provisions of that act. On the contrary, he freely admits that his judgment has. never been registered, and that he has never applied to the City Council for payment of the same under the provisions of that act. The judgments were all rendered long subsequent to the passage- of the act, and the relator is plainly bound by the provisions thereof.
    There is no law in Louisiana, and there never was any law in Louisiana, which allows a'court to compel the levy and collection of a speciaL tax to pay a judgment against the city of New Orleans.
   The opinion of the court was delivered by

Spencer, J.

Relator having obtained judgments against the city of New Orleans, and issued ft. fa. thereon, which were returned nulla bona,. took the present proceeding to obtain a peremptory mandamus to compel the city authorities to levy and collect a special tax to pay his said-judgments.

The city resists this demand on the ground that relator has not registered his judgments as required by Act No. 5 of the extra session of 1870. Plaintiff’s judgments are based upon bonds of the city issued in 1854, in aid of certain railroads. Relator contends that the provisions of said Act No. 5 of 1870 are inoperative and void as to him, since the effect thereof is to impair the obligation of the contracts made-with Mm in 1854. The principles of law involved are now well established. The difficulty is in their application to the facts of each case.

It is the privilege of individuals to make contracts. But to provide-the machinery for, and the modes and manner of, enforcing the contracts so made, belongs exclusively to the government. The obligations-resulting from lawful contracts are not only binding on the parties, but-the State itself cannot directly or indirectly impair them or lessen their value.

But the control of the State over the manner of executing obligations is absolute, provided, only that in changing remedies or modes of execution the right secured by the obligation be not impaired or lessened in value.

What were plaintiff’s rights and remedies under the laws in force in 1854? Does the Act No. 5 of 18.'0, as, and to the extent, it is now invoiced' by the city, impair or lessen the value of plaintiffs claim against the city ?"

We understand that the sole ground upon which the city resists the-relator’s demands is that it (the city) is under no obligation to levy a-tax to pay relator until he has caused his judgment to be registered, as-required by Act 5 aforesaid.

The only question, therefore, now before us is, does that act in so far as it requires registry, as a prerequisite to payment or the levy of a tax impair the obligation of the relator’s bond, issued in 1854 ? The act under which these bonds were issued made no provision for a special tax' to pay them. So in, that regard, relator occupied the relation of an ordinary creditor. The city, by the laws in force in 1854, was under no obligation to levy a special tax for these bonds. Their payment was to be effected, like all other presecured debts of the city, by fieri facias, if' property could be found, or by being carried into the annual budget, and a tax levied to pay them, in the ordinary and customary administration of the city’s affairs. If the city failed to do this, the creditor could compel performance by mandamus.

It may be that the Act No. 5 of 1870 contains provisions, which if invoiced would necessitate our declaring them unconstitutional. But “ sufficient unto the day is the evil thereof.” We are now only called up'on to-pass upon the constitutionality of that section requiring registry. If we-find that to be invalid as impairing the obligation of a contract, we will then have to decide other and ulterior questions ; but if we find it to be a mere change of remedy, not impairing the value of plaintiff’s right, then we may halt, and require the relator to comply with it before seeking ulterior relief. For aught that we know, for aught that appears by the record, the city will pay relator’s claim immediately upon its registry. Act 5 directs it so to do if there are funds, as to which we are not ad•vised. If there are no funds, the act requires the judgment to be put upon the nest budget, and a tax sufficient to pay it to be levied.

We cannot presume that the city will fail in its duty in this regard. On the contrary, we must presume that upon relator registering his .judgment, the city will at once pay it, or provide for its payment by levying a tax in due course of administration. Nor can we presume •that the city will levy an insufficient tax, or hold itself bound in regard to relator’s debt by the limitations imposed on its taxing power by the premium-bond act of 1876, if that limitation is unconstitutional.

The requirement of the registry of all judgments before payment, or before levying taxes to pay them, seems to us to be a wise and useful provision of law, tending to restrain and check the reckless levy of taxes, and to afford, in compact form, a correct knowledge of the city’s liabilities. The formality is neither onerous nor expensive to the judgment creditor, and in no wise delays or retards the progress of his measures to secure payment.

So far as we can see, it takes away from him no pre-existing right, nor does it render less effective any pre-existing remedies. In a word, 'it does not appreciably lessen the value of his right or impair its obligation. The requirement is one made in the interest of economy and the orderly conduct of the city’s affairs. We apprehend that no court would grant relator’s prayer and order a special tax, if the city tendered payment upon the condition that relator first register his judgment. It would, in such case, certainly be held to be a regulation which did not operate any impairment of plaintiff’s rights. We think the relator is premature in his action. He should first register his judgments, and then if payment is not made, or adequately provided for in the next tax-levy, proceed to compel it.

It is therefore ordered and decreed that the judgment appealed from be reversed, and it is now ordered and decreed that relator’s suit 'be dismissed at his costs.

On Rehearing.

White, J.

We granted a rehearing, not because we doubted the correctness of our former conclusion, but because owing to the gravity of the question we thought it well that an opportunity should be ours to give the issues a second examination before making our decree final. ■On the rehearing we have had, both orally and by brief, renewed and able discussion, and our views remain unchanged. The effect of our re-examination has strengthened our conviction as to their entire correctness. We have expressed them fully in the opinion hitherto filed, ■and we see no necessity to reiterate them.

It is therefore ordered that our former decree remain undisturbed.


author: Spencer, J. Spencer, J.

text:
    No. 7735.
    Gay & Co. vs. Mrs. Blanchard, Wife of Lucius Suthon.
    Under tlie Civil Code, suretyship is an accessory contract, and presupposes the existence of a principal obligation.
    ''One may become surety of a debt -without consent of the debtor, but not without that of the creditor.
    Sene© when one is a principal obligor, he cannot, without consent of the creditor, transform, that principal obligation into the accessory one of suretyship.
    It is not sureties alone, who under out law enjoy the right of legal subrogation.
    The right of discussion is a better test of the existence of the relation of suretyship than is that of legal subrogation.
    ■Solidarity may be perfect or imperfect. In the former the co-obligors are mandataries of each other; in the latter they are not.
    "When two persons are bound by the same contract to a third for the same debt, and when one of these obligors has, upon payment of the debt, a right of subrogation thereto, and of recourse for tlie amount paid upon his co-obligor, any contract, between the creditor and the ultimate debtor whereby delay is granted or securities are surrendered or diminished, will discharge the obligor entitled to such recourse and obligation, unless his consent he obtained. If they are hound by separate contracts, the creditor must have accepted both obligations, and be privy to and have knowledge of the contract out of which grows this right of recourse of the one debtor upon the other.
    When a party stipulates that another shall do a certain thing he thereby impliedly obligates himself to do nothing which may hinder or obstruct that other in doing the agreed thing.
    APPEAL from tbe Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.
    Walter Guión, R. N. Sims, and Francis T. Nicholls for plaintiffs and appellants:
    First — Novation is never presumed, and can only result from the manifest terms of an agreement clearly evidencing the intention of the creditor to alter the form of his debt. O. Q, 2190.
    ■'Second — The delegation, by which a debtor gives to a creditor another debtor, who obligates himself toward such creditor, does not operate a novation unless the creditor has expressly declared that he intends to discharge the debtor who has made the delegation. 4 N. S. 98 ; 4 An. 281, 510 ; 5 An. 508 ; 9 An. 230 ; 11 An. 688 ; 14 An. 85 ; C. C. 2192.
    'This being the law, I do not conceive how there was any novation or discharge by delegation, for Mrs. Suthon was as much the principal debtor after that suit and judgment as before, and notwithstanding that another debtor (Pike) has come upon the scene, he was, as to Pugh, also a principal co-debtor with Mrs. Suthon, each bound for the whole debt.
    'Third — It will hardly be claimed that by failing to execute their judgment against Pike plaintiffs have discharged defendant ;• indeed such, forbearance would not discharge Mrs. Suthon, even if she was a mere surety. Vide 15 An. 65, 522 ; 25 An. 182 ; 26 An. 192 ; 27 An, 307 ; 28 An. 385 ; 29 An. 732. But under no circumstances can Mrs. Suthon set up that she was ever at any time the surety of Pike.
    Fourth — Suretyship necessarily implies a pre-existing debt for which the surety becomes bound if the originally-bound debtor fails to pay, O. C. 30, 35 ; but in this case instead of there being a pre-exist-ing debt of Pike for which Mrs. Suthon bound herself, the reverse was exactly the case, and if the relation of surety ever existed between them it was rather Pike wh,o became the surety of Mrs. Suthon than she his; but no such relation existed, for, by assuming the payment of the notes sued on in this case, Pike did not obligate himself conditionally, nor bind himself to pay them only-in the event of the failure of Mrs. Suthon to do so, but absolutely, unequivocally, and at all events. His assumpsit was a part of his. own individual indebtedness, representing an amount due by him for the property bought by him.
    Fifth — Our objections are that no evidence as to a granting of time to Pike by Pugh, or by E. J. G-ay & Co., and no evidence of an extension of payment by either of them to Pike, could be heard under either the original answer or either of the supplemental answers, because: 1st, it was not. alleged in'the original answer that said alleged granting of time had been given without Mrs. Suthon’s consent ; 2d, that it was inadmissible under the amended answers, because they'were illegally filed, and that they changed- the issues made up by the original- answer, and that, by the same defendant, attempted to raise issues, which, under the original answer, would-not admit of the introduction of evidence ; and 3d, that said evidence was irrelevant and immaterial, and that the issues in the case-had been settled, finally and irrevocably, by judgment of this court rendered on the exception of prescription, which judgment was final and res adjudícala.

    Sixth — No such time was granted, or extension of payment consented to, by plaintiffs as, in the eye of the law, would operate a discharge.
    Seventh — There can be no novation, except by express declaration to that effect made by the creditor, that he accepts the delegated debtor in the-place and stead of his original debtor, and absolutely releases and discharges the latter. C. C. 2192; 16 La.'474; 4 An. 509‘; 13 An.. 238 ; 11 B.-511.
    Eighth — Marcado, voi. 4, pp. 587, 589, for distinction between novation proper and a novation by delegation.
    Ninth — The'case of Walton vs.* Beauregard, 1 B. 301, cited by defendant, has been overruled by Jackson vs. Williams, 11 An. 93.

      L. T. Suthon and J. S. Goode for defendant:
    First — A judgment of a court is an absolute endorsement of a preexisting right. A conditional judgment would be a' contradiction in terms. There could not be such an anomaly as a conditional decree. The very idea is unreasonable, inconsistent with itself, and absurd upon its face.
    Second — The proviso in the judgment was annulled by laches. Upon this principle we find that a promise to pay a debt by installments, if the creditor do not collect a claim assigned him, is conditional; and the creditor’s fault in not collecting it, like the collection itself, extinguishes the obligation. Moore vs. Cochran, 15 La. 233.
    A party, proceeding under a contract, whose condition the other has not performed, waives his right to insist thereon, and is bound absolutely. Rightor vs. Phelps, 1 Rob. 325.
    A contract is to be enforced as if without a resolutory condition which the acts of the parties show they have waived. Bach vs. Slidell, 1 'An. 375.
    Moreover, the condition in this case was abrogated by the granting of the delays as stipulated in the agreement. The proposed extension was for one, two, and three years, and for one, two, and three years the creditors did, as a matter of fact, actually wait for the payment of their judgment. Indeed, the judgment remains unexecuted and unsatisfied even to this day.
    Third — -The extension of time granted released the surety.
    Fourth — That the debt, originally due by Mrs. Suthon, as maker of the notes, has been novated by the assumpsit of Mr. Pike and the subsequent acts of the parties — the debt, the debtor, and the security alike being changed. C. 0. 2130, 2189.
    C. C. 2190 and 2192 do not apply to the case at bar.
    Fifth — The true doctrine is that the discharge of the original debt may be established by the terms of the agreement or by the acts of the parties, “ to ascertain whose intention all the attending circumstances must be weighed.” Hennen’s Dig. p. 993 g 1 and 2, etc ; 2 N. S. 144; 29 An. 586. Simple laches will create novation. 4 N. S. 539 ; 18 An. 121.
    Sixth — Under the law of France an extension of time to the principal debtor does not operate a discharge of the surety, O. N. 2059 ; our law is to the contrary. O. C. 3063.
    Seventh — Then we read that the remission of the debt as to one debtor in solido discharged' all co-debtors. O. O. 2203. An extension of time has a like effect. Story on Promissory Notes, marg. p. 414; Edwards on Bills and Notes, marg. p. 572. The form of the contract is not material. 15 An. 522.

      The creditor can do nothing to impair the right of subrogation without releasing co-debtors. 8 An. 75 ; 29 An. 732; 15 An. 594 ; 6 R. 47. It matters not whether the delay be granted before or after judgment. 29 An. 734 ; Brandt’s Law of Suretyship and Guarantee, 296.
    Eighth — Do these principles apply to the case at bar ? In order to determine this question, it is only necessary to solve the problem as to whether or not Mrs. Suthon, should she have paid the debt, would have become subrogated to the rights of the plaintiffs as against her co-debtor, Pike ? That she would have been thus sub-rogated cannot now be a matter of serious doubt. There is no conflict of authorities upon the point. C. C. 2161, § 3 ; Suares vs. His Creditors, 3 La. 341; Baldwin vs. Thompson et al., 6 La. 475 ; Bonilla, Syndic, vs. Merlegals, 9 La. 216 ; Dobel vs. De la Vallade, 30 An. 604 ; vide, also, 8 Mart. 706 ; 2 N. S. 158 ; 3 N. S. 310 ; 6 N. S. 175 ; 4 La. 221-; 15 La. 213, etc.
    Ninth — “Discharging or giving time to any of the parties is a discharge , of every other party, who, upon paying the bill or note, would be entitled to sue the party to whom the discharge 'or time has been given.” Bayley on Bills, p. 357. To the same effect will be found, likewise, Smith’s Mercantile Law, 353; Story on Promissory Notes, 544 ; Kent’s Commentaries, vol. 3, 111; Edwards on Bills and Notes, 572. And the doctrine is fully borne out by the following, among numerous other rulings of our own State courts: Callahan vs. Tanner, 3 Rob. 299 ; Nolte vs. His Creditors, 7 N. S. 13 ; Boutte vs. Martin, 16 La. 134 ; McGuire vs. Wooldridge, 6 Rob. 47 ; Freeman vs. Profilet, 11 Rob. 33 ; Frazier vs. Dick, 5 Rob. 249 ; Citizens’ Bank vs. Dugué, 5 An. 12.
    Tenth — Perfect or entire subrogation, therefore, ahuays and necessarily accompanies the contract of suretyship. And this from the very nature of things. Bouvier ; C. C. 2106 ; 6 L. 475 ; Brandt’s Law of Suretyship and Guarantee, p. 32, sec. 24; 73 N. Y. 214; Mills vs. Watson, 1 Sweeny (N. Y.) 374 ; Cornell vs. Prescott, 2 Barb. (N. Y.) 16 ; Marsh vs. Pike, 1 Landlord's Ch. R. 210 ; Cherry vs. Monroe, 2 Barb. Ch. R. 618 ; Succession of Daigle, 15 An. 594; 1 R. 301; 9 An. 497.
   The opinion of the court was delivered by

Spencer, J.

This case was before us in April last on an exception of prescription.

In 1870, Francis T. Nicholls sold to defendant, Mrs. Suthon, one half of a plantation for $10,000, represented by her'four notes of $2500 each, falling due in 1871,1872,1873, and 1874, and secured by mortgage and vendor’s lien.

In 1871, Mrs. Suthon sold this property to F. W. Pike, who, as part of the price, assumed the payment of these four notes, Pike granting mortgage, etc., to secure the performance of his obligations.

W. W. Pugh became owner of these notes, and in 1874 sued Pike on his assumpsit, and to foreclose the mortgages. Pike confessed judgment in favor of Pugh “ for the amount, and in manner and form as. prayed for in plaintiff’s petition, and consents that judgment be entered according to the prayer of said petition. A stay of execution to be given me, provided Mrs. Suthon consents thereto, for one third for one year, one third for two years,” etc.

It seems that Mrs. Suthon never gave, nor was called upon to give,, her consent to this stay of execution.

Subsequently Pugh transferred this judgment and the four notes to Gay & Co., who, in May, 1877, brought this suit, on the notes, against Mrs. Suthon, the maker. She plead by way of exception, prescription against the notes, which plea was sustained by the court below as to two of the notes, falling due in 1871 and 1872. Plaintiffs appealed, and that was the question before us last April. We affirmed that judgment. The question was whether the suit of Pugh vs. Pike, above referred to, interrupted prescription as to Mrs. Suthon. We held it did not, because sho was neither the surety of, nor debtor in solido with, Pike.

If Mrs. Suthon was either the one or the other, then the suit did-interrupt prescription. Strangely, not to say inconsistently' enough, her counsel now contend that she was the surety’ of Pike, and press us to-reconsider the opinion then rendered. In other words, when seeking to escape on the plea of prescription, she was not the surety. Having got the benefit of that plea, to the extent of one half her debt, we are now told that she was the surety. If there were no other or better reason,, that of estoppel would preclude her from maintaining such a proposition now.

But we have been led to reconsider our views on the question, and have been thereby confirmed in their correctness.

Under our Civil Code, suretyship is an accessory contract, and presupposes the existence of a principal obligation. C. C. (old) 8004.

It is also a consensual contract, as between the creditor and the surety. One may become security for a debt without the consent of the debtor, but not without that of the creditor. O. C. (old) 3007.

It follows, necessarily, from these elementary principles, that where-one is a principal obligor, he cannot without the consent of the creditor transform that principal obligation into the accessory one of suretyship. Defendant argues, no doubt correctly, that Mrs. Suthon, upon paying her notes in the hands of Pugh or Gay, would be legally subrogated to the original Nicholls’ mortgage held by them, and could invoke and enforce it against Pike.

His nest proposition is that sureties enjoy this right of full legal subrogation — ergo Mrs. Suthon is a surety. This argument is fallacious, in this, that it is not sureties alone who, under our law, enjoy the rights of legal subrogation. It also exists, first, in favor of one creditor who pays another creditor who is preferred to him; second, in favor of any purchaser of an immovable who employs the price of his purchase in paying credits mortgaged upon the property. Third, in favor of the beneficiary heir, who has paid succession debts with his own money. C. C. (old) 2157. Yet those are not cases of suretyship. In none of these cases are the persons paying sureties for the debts they pay. The test of subrogation vel non is therefore fallacious. Perhaps a better test of the existence of the relation of principal and surety will bo found in the right of discussion. Our Code gives to the surety the right of requiring the previous discussion of the property of the principal before resort is had to him. C. C. (old) 3014, 3015, 3016, and 3017.

Applying this test, it is manifest that Mrs. Suthon was not the surety of Pike. Pugh or Gay were under no obligation to discuss Pike’s property before resorting to her. They could have wholly disregarded Pike in the matter, and have proceeded against her personally or bypothe-carily, and she would have had none of the rights granted by articles 3014, 3017 of Civil Code.. As between her and the holder of her notes, she was not, therefore, the security of Pike, but a principal debtor. The contract of suretyship is one created and governed by the Civil Code, and we will follow that, whatever may be the rule at common law. But the citation from Brandt’s Law of Suretyship and Guarantee, p. 32, sec. 24, does not go to the extent claimed, since the author expressly limits its application to the case as between the assumer and assumee, i. e. as between Pike and Mrs. Suthon. He seems to think that because the latter would, up on payment to the creditor, be subrogated, that puts her in the position of “ any surety.” No doubt to that extent her rights are the same as a surety would have, but that does not make her a surety.

¥e held in our former opinion that Pike and Mrs. Suthon were not debtors in solido in the sense of the Code. Solidarity may be'perfect or imperfect. It is perfect, and the obligors are the mandataiies of each other, when by the same act, at the same time, they bind themselves to the performance of the same thing. It is imperfect (and they are not mandataries of each other) when they bind themselves to the same thing by different acts or at different times. See Marcadé, vol. 4, p. 509; also, 12 K. 183 ; 2 An. 332 and 792 ; 15 An. 168.

While, therefore, we think it clear that Mrs. Suthon was neither security of, nor co-obligor in solido with, Pike, still she was bound “with” him for this debt; and as Pike was, under his contract with her, the ultimate debtor, upon her paying the debt, she was entitled to a full ••subrogation thereto, as well as to the mortgages and privileges securing it. This was expressly held in the case of Baldwin vs. Thompson, 6 La. 475, a case in all respects similar to this. She now alleges that she has been discharged from her obligation on the two remaining notes, for the reason that'Pugh and Gay & Co., without her knowledge or con•sent, extended time to Pike, and compromised with him touching said -debt, so as to hinder, delay, and impair her right of pursuit, on paying 'the debt.

We take the rule to be that where two persons are bound to a third, for the same debt, and where one of these obligors has, upon payment of the debt, a right of subrogation thereto, and of recourse for the ¡amount paid, upon his co-obligor, any contract between the creditor and the ultimate debtor, whereby delay is granted,-or securities surrendered or diminished, will discharge the obligor entitled to such recourse and subrogation if his consent be not obtained. The creditor in such case must maintain a position which will enable, him to subrogate the party paying to all the original rights, privileges, and actions incident to the debt. See 1 B. 301 ; 9 An. 497 ; Bayley on Bills, 357; Story on Prom. Notes, 544 ; 3 B. 299.

Has Pugh or Gay, by any agreement of theirs, put it out of their power at any time to give to Mrs. Suthon this full subrogation and ■Bight of pursuit of Pike ? If so, she is discharged.

We.find nothing in the confession of judgment having that effect. "The stay of execution was expressly conditioned upon Mrs. Suthon’s •consent thereto, and was inoperative if she refused to consent.

. But we find Gay & Co. entering into contracts with Pike, which in •our opinion precluded them from enforcing the judgment and mortgage against Pike ; and which therefore deprived them of ability to subro-gate Mrs. Suthon to the full extent to which she was entitled.

On 19th day of May, 1877, Gay & Co. entered into a contract with Pike to furnish him money and supplies to enable him to cultivate and manufacture a crop of sugar on the mortgaged premises. The advance was to be of $750 per month, but not-to exceed in the aggregate for the year $10,500. These advances were to be made by Gay & Co. upon the following conditions, to wit: That said Pike shall cultivate the said plantation to the best advantage, so as to produce thereon a 'successful crop of sugar, etc.:; that as fast as the crop is ready for market, he will ship it to Gay & Co., of New Orleans, to be sold in the usual way ; that the proceeds of said crop should be first applied by Gay & Co. to the re-imbúrsement of their said advances, and any surplus over ¡that sum they were to apply to sundry other debts held by them against Pike, and among these is enumerated the debt now in question before ns. Pike further pledges the crop for all these debts, and binds himself to ship Gay & Co. the whole thereof.

On 24th January, 1879, Pike leased the same plantation, for one. year, to Ed. J. Gay of the firm of Gay & Co. for the sum of $1000, for which Gay gave his note, and which note Pike agrees to deliver to Gay & Co. at once, as a credit on his debt to them.

During the continuance of either of these contracts, could Gay &, Oo. have foreclosed their mortgage and sold the place? They could not-have done so, without thereby forcing Pike to violate his contracts with them. They stipulated and Pike promised, that he would cultivate that, place during the year 1877, and that the proceeds of the crop should go. to the discharge of his debts to Gay & Oo., including that now sued on. By the contract of lease Gay stipulated and Pike promised, that the former should have the enjoyment of the place for one year. Under both contracts Pike was to be advantaged and'benefited to the extent his debts were paid. Gay & Oo. would. have violated both agreements by seizing and selling the property, thus rendering it impossible for. Pike to fulfill his engagements under either. We take it, that where a. party stipulates that another shall do a certain thing, he thereby impliedly promises that he will himself do nothing which may hinder or obstruct that other in doing that thing. Had Gay & Oo. attempted the seizure and sale of the place during the continuance of these contracts,. Pike would have had the undoubted right to enjoin them, as violating the implied obligations of their contracts.

If Gay & Oo. could not themselves have executed the judgment,, they could not by subrogation have conferred such right on Mrs..Suthom Nemo plus juris ad alienum transfers potest quam ipse habet.

We hold therefore that Mrs. Suthon has been discharged from liability to pay the two remaining notes, by the act of tlie creditor. ■

We think the court a qua did not err in permitting defendant to-amend her answer, and set up additional grounds of defense, as there was no inconsistency.

The judgment below was in favor of defendant. It is correct, and is affirmed with costs of both courts.

OR APPLICATION POE, Reheabing.

The opinion of the court was delivered by .

Spencer, J.

We held in our former opinion in this cause, that where two-persons are bound to a third for the same debt, and where one of these obligors has, upon payment of the debt, a right of subrogation thereto,, and of recourse, for the amount paid, upon his co-obligor, any contract between the creditor and this ultimate debtor, whereby delay is granted,, or securities are surrendered or diminished, will discharge the obligor entitled to such recourse and subrogation, if his consent be not obtained. This proposition, as an abstract one, requires this modification, to wit: Where the obligors are bound by separate contracts to the creditor for the same debt, the creditor must have accepted both obligations, and be ' privy to, and have knowledge of, the contract out of which grows this, right of recourse of one of the debtors upon the other.

We do not understand the counsel for plaintiffs in his learned and able brief for rehearing to seriously question this proposition.

We understand him to maintain,

First — That Pike was not the debtor of Gay & Co., but of Mrs.. Suthon only ; that Gay & Co. were only the mandataries, with an interest to receive payment from Pike of what he owed Mrs. Suthon.

Second — That Gay & Oo. could not by any act of theirs in any manner affect, abridge, or hinder Mrs. Suthon’s recourse upon Pike upon her paying her note held by them.

We are unable to give our assent to either of these propositions. We think the first is in conflict with the provisions of the Oivil Code-relative to stipulations for the benefit of a third person. When Pike, in his contract. with Mrs. Suthon, to which Gay & Co. (or rather Pugh, their author) became party by their acceptance, assumed- and promised to pay Gay & Co. the notes of Mrs. Suthon, held by them, the legal-result was to give Gay & Co. another and additional debtor. When Gay & Co. accepted the stipulation, there was created a direct obligation from Pike to them to pay the notes, as much so as if Pike had actually added his signature to the notes themselves, or accepted a draft drawn on him by Mrs. Suthon for their amount. True, there was no novation of the debt. There was simply an additional obligor bound for it. It is true that in some sort Gay & Oo. may be said to have become the mandataries of Mrs. Suthon, but they had substantive rights of their own against Pike, growing out of his promise to pay notes hc-ld and owned by them. They were certainly his creditors, and a payment to them alone would extinguish the obligation contracted in their favor.. In Baldwin vs. Thompson, 6 La. 479, referred to by us in our former opinion, one Kohn sold to Baldwin, taking notes for the price. Baldwin sold to Green, who assumed and promised to pay Baldwin’s notes held by Kohn. This court held that “ in pursuance of the doctrine of stipulation pour autrui, Green became Kohn’s debtor, * * * for he expressly stipulated to pay to Kohn the debt which Baldwin owed.”

Second — We think the fundamental error of the second proposition, arises out of forgetfulness of the fact, that the notes held by Gay & Co. were secured by two mortgages, -to wit: one granted by Mrs. Suthon, to Gen. Nieliolls in her act of purchase from him, and one granted by Pike to Mrs. Suthon and Gay & Co. in his purchase from Mrs. Suthon.. It is argued witli much earnestness, that Gay & Co. and Piker could not, 'by any arrangement of theirs, without Mrs. Sutkon’s consent, impair or In any way affect her recourse on Pike upon her paying the notes held by Gay & Co. ¥e have seen that in the case of Baldwin vs. Thompson, referred to above, it was held that Baldwin on paying his notes to Kohn, was subrogated legally to the mortgage which he had himself granted, ¡and could enforce it not only against his vendee, Green, but against Thompson, Green’s vendee.

Now will it be said that Gay& Co. were not the owners and masters ■of the Nicholls’ mortgage? If they had entered of record a full release thereof, could Mrs. Suthon on subsequently paying her notes have -enforced it against the property in Pike’s hands? Were they not also "the owners and masters of the notes held by them ? If they had extended their payment by Pike for five years, could Mrs. Suthon, subsequently taking them up, have enforced their payment at once against Pike ? It may be that Mrs. Suthon, on payment of the notes, could have enforced the mortgage which Pike granted her, any agreement between Gay & Pike to the contrary notwithstanding, because her rights •thereunder were original and not derivative. But it is manifest that Gay &’Co.’s act and contracts relative to the Nicholls’ mortgage would 'have been binding on her ; and as Gay & Co. were privy to the contract wherefrom resulted her right of subrogation to this mortgage and her right of recourse on Pike, they were bound to maintain such attitude with reference thereto as would enable them to give her, at all times, the subrogation and recourse she was entitled to. They entered into -contracts with Pike, the effect of which was to put this out of their power for about two years. They thereby discharged her.

Th.e rehearing is refused.


author: MANNING, C. J.

text:
    No. 7804.
    Successions of W. B. Savory and Margaret Savory. Oppositions of Heirs.
    A real contract cannot bo attacked collaterally. It can only be assailed by a direct action to annul.
    The action to annul a contract is prescribed by one year from tbe date of tlie contract.
    Tlie promissory note of a decedent, executed by lier in liquidation of a debt due by her for lier maintenance, Trill be held as binding on her succession, when those who oppose its allowance fail to show that it was without consideration, or fraudulent, or a disguised donation.
    A.PPEAL from the Parish Court of Iberville. Gole, J.

      Barrow & Pope for administrator, appellant:'
    First — The burden of proving the note fraudulent without consideration, or a disguised donation, is upon the opponents. G-ood faith in contracts is always presumed ; the onus of proof is always on him who alleges bad faith. 24 An. 299, Succession of Navarro ; 15 A. 641; 29 A. 526.
    'Second — The note purporting to be for value, the evidence showing the maker without means, living with Belfort Marionneaux, the burden of showing failure of consideration is on opponents. 15 An. Henderson vs. Girardeau, 383 ; 21 An. 200, Friedman & Co. vs. Hough-ton ; ib. 209, Robertson vs. Dogherty.
    Third — 'Where the evidence of want of consideration is conflicting, the presumption is in favor of the validity of the note. 28 An. 94, Rodriguez vs. D. Lopez; 18 An. 95, McGuigan vs. Ocheglevich.
    Fourth — That the support of a parent by one of her children is a just charge in favor of that child on the si ciession of the parent. C, C. 229; 18 A. 594.
    Fifth — O. C. article 1525 (1512). The remunerative donation is not a real donation, if the value of the services to be compensated-thereby, being appreciated in money, should be little inferior to that of the gift. C. C. article 1526 (1513).
    Sixth — That a real contract cannot be attacked except by a regular revocatory action. 2 A. 848 ; 15 A. 302 ; 29 A. 820.
    Seventh — That the revocatory action is prescribed by one year. C. C. 1994; Hennen’s Digest, p. 1213, No. 4; 29 A. 285.
    S. P. Greves and Charles O. Lauve for Savory, appellee :
    We have alleged in our oppositions that the annuity of three hundred dollars for three years be added to the active mass, for the reason that it has never been paid over to the Widow Margaret as stipulated in the act of donation.
    The administrator admits this in his amended account, pages 14 and 15, except as to $266 67 for medical bills, clothing, and cash alleged to have been paid, but which was not proved, and against which we ' have plead the prescription of three years in our amended opposition. Page 17.
    In said amended opposition we have opposed the note of $1400, of date 18th March, 1871, and have plead thereto the prescription of five years; also the prescription of three years to the claim against Mrs. Savory for board and clothing for $680 ; also the prescription of one, three, live, and ten years against each and' every item of account in chapter 2, passive mass, included in section 1, under the head of funeral charges, from 1 to 12 inclusive.

      We oppose, also, items 1, 2, 4, 8, and 9 under the head of law-charges, as not due by either estate; also plead the prescription of three years.
    Samuel Matthews for Both, Deblieux & Co.:
    The second item of the oppositions is based on C. C. articles 1497 (1484), 1533 (1520), and the donation of June 19, 1871, should be decreed null and void. '
    As to the third item of the oppositions, all the circumstances, attending' the confection of this note, stamp it as a disguised donation, to be used in case the donation to the wife of the accountant, made March 18, 1871, should fail. The testimony of Ira Savory shows-that there could have been no valid consideration for this note. “ On demand,” March 18,1871, she is made to promise to pay $1400, when on that very day she had donated to her daughter every thing she had. B. 51, and testimony of Ira Savory. As a disguised donation this note exceeds the disposable portion ; and it violates C. C. article 1497 (1481), in giving away all she had, reserving nothing for her support.
   The opinion of the court was delivered by

MANNING, C. J.

William B. Savory died in April, 1861, leaving a widow Margaret surviving, and five children, issue of their marriage, viz Joseph Ira, William J., Edward D., E. E., and Eliza E. who had married Belfort Marionneaux.

William J. died in April 1862, and E 1 ward in the following December, both without issue. E. E. died in 1870, leaving a daughter, who is now the wife of Anatole Hebert. The mother, Margaret, died January 26, 1874.

All the property owned by William B. and Margaret was community, of which the widow was usufructuary. Nothing was done in'settlement of his succession until her death when Marionneaux was appointed administrator of both.

Three years nearly before her death the Widow Savory made a donation by notarial act to her daughter, Mrs. Marionneaux, of her interest in a tract of land containing ten árpente front by twenty árpente in depth with improvements — her interest being an undivided one half as widow, in community, and her interests in the shares of her sons William and Edward.

That land appears to have been the only property of the spouses. The consideration was her natural love and affection for her daughter, and an annuity of three hundred dollars which the daughter bound herself to pay her mother in quarterly instalments during the natural life of the latter.

In June 1871 Joseph Ira transferred his interest in the land to his sister, reserving the use during his life of twenty arpents of land, but in July 1876 be sold to her all his rights under that reservation for $250 in cash.

The whole tract was sold by the administrator of the two successions, “so as to determine the interest of the parties and pay the debts.” It realized twenty-ñve hundred dollars. The funeral expenses were $244 — the law charges $659.20, leaving $1,596.80 of assets, against which were ordinary debts consisting of a note to Marionneaux for $1810.60 principal and interest, and a charge of $680 for board, lodging and •clothing of Mrs. Savory for thirty-four months, preferred also by Ma-xionneaux.

Opposition was made by Mrs. Hebert complaining that the first ■seven charges, which are for her grandmother’s burial and tomb, should not be made against her succession for the reason that she had donated to her daughter all of her interest in the land in consideration of the payment of three hundred dollars annually, and it had not been paid, and therefore these seven charges were due from and should be paid by the daughter. Why the expenses of burying a person should be paid by one who had assumed the obligation of paying her an annuity while living is not very clear. She opposes the recognition of the note as a debt because it was liquidated and settled by the donation, and the charge for board and maintenance is opposed because the daughter was bound by filial duty and by law to maintain the mother.

Ira Savory opposed the debts charged, and Roth, Deblieux & Oo. creditors of Ira, opposed the tableau of distribution in recognising Mrs. Marionneaux as the transferree and vendee of Ira’s share, on the ground that this transfer was in fraud of their rights, they having obtained a judgment against him for $126.66 before that transfer was made.

These oppositions produced an amendment to the tableau, by which the succession is credited with the amount of the unpaid annuity, and charged with medical bill etc. not previously charged. It is differently and confusedly stated in another manner in the pleadings, but that is the way an accountant would statedt.

Mrs. Marionneaux excepted to Roth’s opposition on the grounds that the donation of Ira to her was an onerous and real contract which cannot be attacked collaterally, but only by a direct action to annuli it, and she pleads the prescription of one year to such action.

When Ira made the donation to his sister in June 1871, the usufruct of his father’s half of the land was held by his mother, and she owned the other half. The mother had made her donation to Marionneaux in March, 1871, of her half, of the portions of the other half which she had inherited from her two deceased sons, and of the usufruct. He had not-the right therefore to the possession of any portion of the land. The-right of possession was in Mrs. Marionneaux, if we concede the validity of the donation from her mother to- her. He reserved the use of twenty-acres, and in that respect the donation was onerous. His subsequent relinquishment to Mrs. Marionneaux was for a valuable consideration-which he received. The testimony is conclusive that neither of these-acts was simulated, and the exception was therefore good. The sale- and donation being real, and the creditor, having neither a privilege nor a mortgage with the pact of non-alienation, cannot disregard these-acts, but must resort to the revocatory action with allegation and proof' of his debtor’s insolvency. O’Hara v. Booth, 29 Ann. 817. More than a year has elapsed from the date of both of these acts as well as from the date of Roth’s judgment, and the plea of prescription is also good..

Up to this time no attack had been made on the donation of the Widow Savory to Mrs. Marionneaux, but on the contrary it had been recognised, and Mrs. Hebert had pleaded it in-bar of certain charges on the account. All the opponents now join in a supplemental opposition,, attacking that donation as illegal and void for the reason that it divests the donor of all her property, and deprives some of her forced heirs of their portion of her estate.

This is contradictory pleading, and was excepted to on the grounds- • that a direct action should -have been brought to annuli it. and such action was prescribed as to the creditors of Ira, and that the creditors-only of the Widow Savory could' attack it, and there were none of her creditors attacking it. These exceptions were referred to the merits, and the result was a judgment rejecting the note held by Marionneaux as a debt of the succession, and the claim for board and sustenance— restricting the donation of the Widow Savory to the disposable portion — • and awarding Roth, Deblieux & Oo. so much of the share of Ira Savory as will pay their debt.

If Marionneaux’ note for over $¡>1800, principal and interest, is good, it will absorb the assets, and there will be no need to consider the question of the donation to his wife.

Mrs: Savory had no means of support except that derived from the-land, and that had not yielded any revenue from 1864 to 1871, when she-made the donation. During this time she lived with Marionneaux. He supported her, and certainly $1400, the principal of the note, is not an extravagant sum to charge for her maintenance during those years. Prima facie there was good consideration for the note. Mrs. Savory declared in 1871 in the notarial act of donation that the property had made no revenues since her husband’s death, and she was unable in her pecuniary condition to make it productive. It was incumbent on the opponents, who attack the note, to shew that it was without consideration, or fraudulent, or a disguised donation, and they have not done so.

No doubt when Mrs. Savory made the donation, the expressed object of which was to provide herself with future maintenance, Mr.. Marionneaux thought it prudent to take her note for the sum he had expended for her maintenance in the past. The whole support of this old lady had to be borne by her son-in-law. She lived long enough to exhaust her whole property. Her sole surviving son and her granddaughter contributed nothing to it. The distribution gives to the latter her share of her grandfather’s succession, as well as her share of her nncles, W. J. and E. P. portions. Mrs. Marionneaux had acquired all of' the other interests.

The amendments prayed are the distribution to Mrs. Hebert of S2I5.66, and same sum to Mrs. Marionneaux in her own right, and a like sum to her as owner of Ira’s portion, and the recognition of Bel-fort Marionneaux’ as a valid debt of Mrs. Margaret Savory’s succession.

It is ordered that the judgment is reversed so far as it conflicts with this distribution — that the account be amended so as to conform thereto,, and as thus amended that it is affirmed, the succession paying costs.