text:
    No. 1721.
    Alfred Duperier v. B. F. Flanders et al.
    A sale of cotton for Confederate notes, as the consideration is null, its enforcement by the courts of this State is prohibited. Constitution, ai tide 127. This nullity extends to. the transferees of the written act of sale of tho cotton.
    A parly claiming the right to control property by Virtue of possession must show that he acquired possession in a lawful manner. Tho unlawful use of torce in gaining possession will not avail him.
    A judgment oí the lower court will not be amended between the appellees. 20 An. 307.
    from the Third District Court of New Orleans. Emerson, J.

      J. S. Whitaker, for plaintiff and appellee. Samuel JR. & G. L. Walker, for interven or, Talbert, appellant. Charles 8. JRice, for Godwin, intervenor and appellee.
   Howe, J.

The questions of law in this case are quite similar to those in O’Donnell v. Burbridge & Co. 20 Ann. 37.

On the tenth July, 1863, Silas Talbert sold to Isaac Levy & Co., of Alexandria, for Confederate money, one hundred hales of cotton in the seed, on the plantation of the former on Bayou Boeuf, to he ginned, haled and delivered to the vendees when called for — the latter furnishing bagging,- rope and twine. Levy & Co. transferred their rights to II. M. Keary for Confederate money, and, for the same consideration, Keary transferred to Joseph Onterdick, who, in turn, made a transfer to the plaintiff for notes .of Louisiana hanks.

in November, 1865, about forty-nine hales of cotton wore delivered to the plaintiff by Talbert, hut the latter declined to deliver any more. The plaintiff then appears to have conceived the plan of having the cotton seized by one Burbridge, a supervising special agent of the treasury of the United States. Wo are informed by a letter of plaintiff that this séizure was made and the cotton directed to he consigned to the special agent “ for adjudication,” hut we are not informed from what source the agent derived his authority to adjudicate private controversies of this nature. However this may he, the twenty-three hales of cotton which form the subject of this controversy were seized, in the seed, on tho plantation of Talbert, in January, 1866, by an assistant treasury agent named McLean, who came with a corporal and a file of soldiers, who took possession of the premises and commenced ginning the cotton.- “ They haled,'” says the principal witness on this point, “forty-four bales of cotton. These forty-four bales were tlion removed by McLean or one O’Donnell, and taken to Holmesville and placed in charge of MeStarring for shipment by McLean. The twenty-three bales were ordered to ‘bo shipped to P. J. Herron” — the plan of consignment to the treasury agent for adjustment” being apparently abandoned as soon as the property liad been forcibly wrested from the possession of Talbert.

At this point it is stated that the cotton was given over by McLean to an agent of the plaintiff, who thus obtained what the agent in his testimony chooses to denominate “constructive possession” of it. Such possession must have been purely constructive, for we next find the twenty-three bales in the hands of the defendant, Plunders, agent of the treasury, who would have returned them to Silas Talbort, if ho had not been prevented by the writ- of sequestration obtained by plaintiff when this action was instituted.

Planders answered by a general denial, and an averment that he was in possession In his official capacity, and prayed that Talbert might be made a party. Talbert being cited, filed his answer, and Ulso his exceptions, averring that the property-was brought within this district by fraud, collusion and violence, and further alleging that the pretended contracts of purchase and transfer hereinbefore mentioned were null and void, the consideration being Confederate money.

D. R. Godwin intervened, claiming a privilege on tire cotton, or its proceeds, for disbursements made by him in expenses and charges on said cotton.

The exceptions were cumulated with the merits, and the cause was tried before a jury, who rendered the following verdict:

“Yerdict for plaintiff; 23-73 allowed intervenor when a correct bill is made out.”

This finding was recorded, and judgment rendered in favor of plaintiff for the cotton claimed; but.the claim of the intervenor was dismissed.

The defendant Talbert alone appealed. The intervenor, Godwin, as appellee, has filed answer in this court, claiming, by way of amendment^ a judgment for the amount awarded him by the inscrutable verdict of the jury. The rules of practice do not permit us to consider his claim, since he has not himself appealed. Fields v. Creditors, 11. An. 545; Coleman v. Haight, 14 An. 564.

As between the plaintiff and the defendants we are of opinion that the verdict and judgment were erroneous. The plaintiff had no better title to the cotton than Onterdick — the latter had no better title than Keary, and Keary no better than Isaac Levy & Co. The title of Levy & Co. and of Keary was based upon the consideration of Confederate treasury notes, and we cannot recognize its validity. See case of Cousin v. Abat, just decided, and cases there cited.

The cotton was never delivered, in any way, by Talbert to plaintiff, and tlie plaintiff cannot bo deemed to have gained any lawful advantage through the trespass and spoliation of McLean and his file of soldiers.

Eor the reasons given, it is ordered and adjudged that the judgment appealed from, so far as it dismisses the claim of the inlorvenor God-win, be affirmed — that in all other respects it bo avoided and reversed. It is further ordered that the demands of the plaintiff be rejected with costs in both courts, and that the property sequestered heroin be delivered to Tilomas L. Talbert, testamentary executor of Silas Tal-, bort, now deceased.

Rehearing refused.


source: Caselaw Access Project

author: IIowell, J.

license: Public Domain

text:
    No. 1677.
    B. Boisblanc et als. v. Peter Markey.
    A purchaser of real estate cannot postpone the payment of the price until üie decision of a suit for eviction, when the nature of the title on which llio suit for eviction is founded is set out and described in the act of sals.
    from the -Fifth District Court of Now Orleans. Beaumont, J.

      II. G. ■ Miller, for plaintiff and apnellec. H. Bermudez, for defendant and appellant.
   IIowell, J.

The defendant has appealed from a judgment condemning him to pay several promissory notes secured by the vendor’s privilege and mortgage and given by him as part of the price of certain property sold to him by B. Boisblanc, one of the plaintiffs. His defense is that he has been sued for the said property, and that he is entitled to suspend the payment of the price until restored to quiet possession.

Having joined in one action and asked that the vendor’s lien and the mortgage he recognized and enforced against the property sold, and mortgages not being subject to tbe rules of commercial law iii favor of third holders oí commercial paper, all the plaintiffs herein will he considered upon the same footing.

The main question is, whether - or not the defendant can postpone payment of the price until the decision of the suit instituted against him for the property, or require security from his vendor.

Article 2535 Civil Code provides: If the buyer is disquieted in his possession, or has just reason to fear that he shall be disquieted, by an action of mortgage or by any other claim, he may suspend the payment of the price, until the seller has restored him to quiet possession, unless the seller prefer to give security.

There is an exception - to this rule, where the buyer has been informed, before the sale, of the danger of the eviction.”

The inquiry arises, is the defendant within the exception ?

In the act of sale to him from Boisblanc, ono of the plaintiffs, it is declared “ that he does, by these presents,' grant, sell, bargain and quit claim, under guarantee of Lis own acts and deeds only, and of no others, but witb substitution and subrogation to all Lis rights and actions against all precedent and anterior vendors and owners, unto Mr. Peter Markey,” (tLe defendant) tlie property now in controversy. Tlie act also recites Low tlie vendor acquired tLe property and shows that it iiad been proceeded against and sold under tLe confiscation laws of tLe United States, in which proceedings Boisblanc intervened and Lad Lis first mortgage recognized, which Lad been assumed by one S. Wolf, (the party now making the disturbance) as the purchaser of the property from a former owner, and at the sale Boisblanc became the purchaser at a price insufficient to pay the mortgage hold and represented by him. In the sale to the defendant he expressly transfers these mortgage rights without any recourse.

This act of sale clearly and distinctly informs tlie defendant of the nature of the seller’s title, and that of Wolf, who now sues for the property as owner, by virtue of that very title recited in the act of sale to him.

It is difficult to understand how more direct information could be communicated. We are not now to pass upon tlie validity of the disturbing claim, but simply whether or not the defendant can be coerced to pay the balance of the price pending the suit for eviction, and we are of opinion that he can.

It is ordered that the judgment of the District Court bo affirmed with costs.


author: Wxly, J.

text:
    No. 1541.
    William T. Hatchett v. H. B. Pegram, Executor.
    ■Where a party signocl a note as security in Louisiana, and after it is prescribed by the laws of the State he removes to Alabama, and demand of payment is there made of him by tlie holder and he pays tlie note, to enable him to recover from the maker in the courts of Louisiana, he must show that he was bound on the note as security by the laws of Alabama and was compelled to pay it. A voluntary payment of the note by the surely will not enable him to recover of the maker.
    from Second District Court, parish of Orleans. Thomas, J.

      JSlmore <& King for plaintiff and appellant. Harr & Toute for defendant and appellee.
   Wxly, J.

Plaintiff paid the note of N. J. Pegram, on which he was security, and now sues the succession of the latter to recover the amount he alleges he was compelled to pay on account thereof, basing his demand on the following note and receipt, viz:

“$1136 26 . “New ORLEANS, January 9, 1854.

“Two years after date we, or either of us, promise to pay to the order of Crisp, McGee & Co. eleven hundred and thirty-six dollars and twenty-six cents, with interest at six per cent, per annum.

(Signed) “ N. J. PEGRAM.

(Signed) “WILLIAM T. HATCHETT,

“Security.”

(Indorsed.)

“Received, Montgomery, Alabama, January 4, 1867, from William T. Hatchett, the security of this note, the sum of sixteen hundred dollars, in full payment of same.

(Signed) “R. B. McGEE,

“ By his attorneys, Cook, Enoch & Allen.”

The defense is a general denial, and averments that the note was a Louisiana contract, entered into by parties residing in this State, and that the obligation was extinguished by prescription at the time the security, Hatchett, professes to have paid it, the note being then eleven years past due. The defendant also alleges that if the plaintiff paid the note in Alabama on fourth January, 1867, as alleged, it was a mere voluntary act on his part, which imposed no obligation on the succession of N. J..Pegram. That the latter was residing in this city at the time he made the note, and continued so to reside till his death, which occurred long after the note had been prescribed by the laws of this State.

The court rendered judgment in favor of the defendant and the plaintiff has appealed.

There can be no doubt that the note, as regards the succession of Pegram, was extinguished by prescription under the laws of this State where the succession was opened. C. C. 3505.

But was the obligation extinguished as regards the security, William T. Hatchett, on the fourth January, 1867, when he paid it in the State of Alabama where he then resided ? Was he bound by the laws of that State to pay it1? If so, can he recover the amount so paid from the estate of the principal debtor ?

These are the main questions to be determined in this case. As to the liability of the security Hatchett in the State of Alabama, where he resided at the time, the laws of that State must govern, the only defense to the note being the plea of prescription.

Was the note prescribed under the laws as administered in the State of Alabama?

We find in the record the opinions of Judge Walker and other eminent jurists of that State, which were received as evidence without objection. In determining the liability of the plaintiff, great weight should be given to those opinions; they were received as testimony in this case.

Judge Walker .testifi.es that he had no means of judging of Hatchett’s liability except from what appeared upon the note itself, and in his. opinion lie was liable thereon at the time lie paid it; that six years was the period prescribed in the statute of limitations, “ but on the twenty-first September, I860, the convention of the State of Alabama adopted an ordinance directing that in computing the time necessary to create the bar of the statute of limitations, the time elapsing between the eleventh day of January, 1801, and the passage of this ordinance (twenty-first September, 1865), should not be estimated. This ordinance is law in the State of Alabama. After deducting the interval prescribed in the ordinance from the period intervening, between the time.when the note became due and the fourth January, 1867, there will not remain six years. It is therefore my opinion, says he, that under the laws of the State of Alabama the defense of the statute of limitations would not have been available to Hatchett in a suit commenced against him on fourth January, 1867. In attaining this conclusion I have considered the question springing from the fact that a suit on the note was barred in 1862, before the adoption of the ordinance, unless the operations Of the statute were interfered with by Hatchett’s absence from the State, of which I am not informed. The question thus arising, says he, is this, whether it was competent for the convention of the State of Alabama to change the period of limitation to an action on a contract after the time necessary to perfect a bar under the pre-existing law. In my opinion on the law as recognized and administered in this State, it was competent.”

■ lie further states that this view has been sustained by the Supreme Court of Alabama recently in a case presenting an analogous question, and that the principle has been settled by decisions extending as far back as 1850. When asked by the defendant in his second cross-interrogatory what would be the effect on the accessory obligation of surety if from any cause the principal obligor had been discharged, the witness said: “In 1837 it was decided by the Supreme Court of Alabama that as a general rule the extinction of th'e liability of a principal debtor "was also an extinction of the liability of the surety, but that an exception prevailed when the extinction was caused by operation of law,” etc. He referred to various subsequent decisions to the same effect, and said, in his opinion, the law as thus laid down in 1837 was the law of Alabama on fourth January, 1867.

The other distinguished jurists, who were examined in this case, entertained the same view of the subject as Judge Walker, and they adojjted his opinion as a true exposition of Alabama law.

It appears, however, that the opinions of these witnesses were based upon what appeared on the face of the note without reference to the effect of Hatchett’s absence from the State of Alabama, of which they say they were not informed. If Hatch dtt only moved from this State, to Alabama after prescription had accrued upon the contract .which he made here, does the ordinary statute of limitations of that State apply V

It appears by the Code of Alabama, article 2487, tbat .“when the statute of limitations of another State or foreign 'country,has created a bar to an action upon a contract or act done in such State or country, whilst the party sought to be charged thereby was a resident of such State or country, the bar thus created- is effectual in this State against any suit brought therein, in the same manner it would haye been in the State or country where the act was done or contract made.”

This seems to be the law of the State of Alabama, specially applicable to persons of that State who are sought to be hold liable on contracts made in other States and barred by the statutes thereof before moving therefrom. Assuming then that the ordinance of the Alabama Convention of 1805 was valid, and that in computing the time necessary to create the bar of feie statute of limitations, no estimation is to be made of the time elapsing between the eleventh January, 1801, and twenty-first September, 1805, how does that affect the article of the Code of Alabama just quoted in reference to contracts made in another State and prescribed by the laws thereof before the party sought to be held liable moved from that State to Alabama ?

Did the ordinance necessarily repeal the article of the Code ? We think not. That article designated a certain class of cases whore the prescription laws of other States should be permitted to apply. \Ye understand the action of the convention, if valid, to modify the statute of limitation in Alabama, so that in making the estimate the period of the war was not to be computed.

The ordinance does not expressly repeal the article referred to, nor is it inconsistent therewith. It does not pretend to interfere with the law which permits the prescription laws of other States to be applied in certain cases.

The contract was entered into in this State, wh'ere the maker of the note and the payee thereof resided, and where we presume the security Hatchett also resided. In the absence of proof to the contrary we will presume that the surety on - a Louisiana contract was an inhabitant of the State. If Hatchett moved to Alabama after the note had prescribed here, under the article of the Alabama Code referred to, we think he was not bound to pay it; and that the payment of an obligation, already extinguished as- to both principal and surety, by the latter, does not give him a cause of action against the former. C. C. 8025.

As Hatchett paid the note without being sued, he cannot recover against the defendant without proving that he was bound to do so. The note was as its face prescribed and the onus is on him to show that he was liable at the time he paid it.

I1proved that the plaintiff lived in Alabama when he paid the no.> mnuary 4, 1807), and that he resided there several years previously. According to our laws the note had been prescribed nearly six years wheu lie paid it. He may have lived there several years prior to the payment, and yet the note may have been prescribed before he moved from this State. Moreover, it does not appear from the record, that the note had been indorsed by the payees, Crisp, McGee & Co., or that they authorized R. B. McGee to collect it. On the whole, we think plaintiff has failed to make out his case. He has not established with legal certainty that he was bound by the laws of Alabama to pay the note.

It is therefore ordered that the judgment appealed from be set aside, and it is now ordered that there be judgment as of non-suit, and that appellee pay costs of appeal.

Rehearing refused.


author: TaliaeeRRO, J.

text:
    No. 1712.
    Pierre Poutz v. A. F. Jones.
    The testimony of a witness taken by commission will not be allowed to go to tko jury, if it contains nothing but hearsay evidence.
    A witness on the stand will not be permitted to give opinions in answer to hypothetical ques-
    from the Pifth District Court of New Orleans — Beaumont, J.

      A. & If. VoorMes for plaintiff and appellee. Hornor & Benedict for defendant and appellant.
   TaliaeeRRO, J.

The plaintiff alleges that he bought from defendant twenty-six bales of cotton, represented by samples to be of good quality, and shipped the cotton to the port of Havre, in Prance, where it was sold in like manner as being of good quality. That subsequently when the bales were opened, it was found that their exterior parts, to the depth of ñve or six inches, were composed of good merchantable cotton, and the interior filled with a very inferior article of cotton called “pickings.” That the difference in quality caused the plaintiff a heavy loss, amounting to five hundred and eighteen dollars and eighty-six cents, which he was compelled to refund to his vendee at Havre. Tie brings this suit against the defendant to compel him to pay this sum, with legal interest from judicial demand.

The answer is a general denial. The case was tried before a jury, which rendered a verdict for the sum claimed with legal interest from judicial demand. The defendant has appealed.

Three bills of exception appear in the record.' The first was taken to the admission of the testimony of Villeman, a witness on the part of the plaintiff, taken at Havre under commission. The objection was that his evidence was hearsay, and that he proved nothing of his own knowledge. We think the testimony should have been rejected. The witness stated that he was called upon to examine twenty-six bales of cotton, which he was informed by Messrs. Le Roux Preres & Co. was shipped by P. Poutz, óf New Orleans, and that they were the claimants. He stated, in substance, that he had no knowledge of the lot of cotton except from their statements. He states the bales were marked J. J. D. In the absence of any other facts within his own knowledge, this can hardly be considered an identification of the cotton.

The next bill of exceptions is to tho refusal of the court to admit a witness to answer whether it would have been possible, in April, 1866, for twenty-six bales of cotton to have been put up in and sent out of “ Justamond’s pickery” in the condition it is alleged the twenty-six in question were ? The objection was, that it was to elicit the opinion of the witness, which would bo incompetent evidence. Tho testimony was properly rejected.

The third bill of exceptions was taken to tho admission of the testimony of Poutz, the plaintiff. This objection is without weight.

A careful review of tho evidence satisfies us that the plaintiff has fully made out his case, and that it amply sustains the verdict of tho jury-

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

Rehearing refused.


author: Howell, J.

text:
    No. 1739.
    Samuel and Louis Fasnacht v. William Winkelman and Frank Heuer.
    Whoro a lease lias boen given for one year, with a privilege of renewal for five years, and a third party binds himself as surety for the lease, and the lease is renewed at the expiration of *the year, the surety is not bound on tho extended lease, unless it is shown that he consented to the extension.
    from the Fifth District Court of New Orleans — Beaumont, J.

      G. Schmidt for plaintifffe and appellees. Buchanan & Gilmore for defendants and appellants.
   Howell, J.

-Tho, plaintiffs leased to tho defendant lYinkelman certain property for one year, from first August, 1865, with tho privilege of renewing the lease for-four years more for the same price and under the same conditions, provided written notice he given to the lessors at least throe months before the thirty-first July, I860. The defendant Frank Ileuer intervened in the act, and declared that he hereby hinds himself, jointly and in solido, with and as security for tho said lessee, for the punctual payment of the rent heroin stipulated, and of all costs and damages resulting from -any violation of any of the conditions of tho foregoing lease, hereby consenting to he hound as if ho were tho principal obligor herein, and renouncing tho plea and benefit of discussion or division granted by law to sureties.”

The thirty days’ notice was given by the lessee; and in September, 1867, this suit was instituted for the quarterly rent due on first of August of that yoar. The defendants filed separate answers, Heuer alleging that his responsibility ceased on thirty-first July, 1366, and was not renewed. Judgment was rendered against both in solido, and Heuer appealed.

There is no proof that Heuer consented to the extension or renewal of the lease; but plaintiffs say that by his contract he was as much their tenant as Winkelman, and that the acts of the latter were his acts, of which ho is not permitted to plead ignorance. This position is untenable. The lease was niado to Winkelman as the tenant, and Heuer became his security, bound, it is true, as if he were the principal obligor in the lease, but only for the term of that lease, to wit, one year. The faculty of renewing was a privilege or right, to bo exercised by the lessee upon a given condition, and not an obligation assumed by the surety. lie was liable to the same obligations as the debtor himself (C. C. 8014, 2036) during the lease, but ho did not agree to be bound in the renewed or extended lease by the giving of the required notice to the lessors by the lessee. The clause in relation to the renewal oidy bound the lessors and the lessee to the same price and conditions, if the lease were renewed, as contemplated. The consent of the surety was necessary to bind him on the extended lease. His consent cannot be presumed from the terms of the original lease.

It is, therefore, ordered, that the judgment herein against Frank Heuer be reversed, and that there bo judgment in his-.favor, with his costs in both courts.

Rehearing refused.


text:
    No. 2291.
    State of Louisiana ex rel. Western Union Telegraph Company v. Judge of the Seventh District Court for the Parish of Orleans.
    A "writ of mandamus will not issue to compel the District Judge to grant a suspensive appeal when it is shown that the amount of the judgment is not sufficient to give the Supremo Court jurisdiction of the appeal.
    The amount necessary to the jurisdiction of the appellate Court is the sum in controversy at the time of judgment.
    The right to remit the whole or a part of the claim hy the suing creditor may he exercised at any time beforo final judgment.
    for a Writ of Mandamus.

      JS. Wooldridge, for relator. Oollens, J. in pro. jper.
   Howell, J.

This is an application for a writ of mandamus to compel the Judge of the Seventh District Court for the parish of Orleans to grant the relator a suspensive appeal from a judgment rendered in the suit of C. Seiler & Co. v. The Western Union Telegraph Company, which appeal the Judge, in his answer, says was .refused because the amount in dispute does not exceed five hundred dollars.

Tiie demand was for twelve hundred and sixty-four dollars and twenty cents, but on the day following the trial and before judgment was rendered, the plaintiffs entered a remittitur of several items amounting to seven hundred and sixty-five dollars and twenty cents, and asked for judgment for the sum of four hundred and ninety-nine dollars, with costs. A week afterwards they were permitted to correct the remittitur in the form in which it was stated, but the sum demanded was not changed.

By this act plaintiffs’ demand was reduced to four hundred and ninety-nine dollars, no interest being asked for on said sum, and, as held in the case of Wolf v. Munzenheimer (14 An. 114), where the plaintiff before judgment enters a remittitur, by the effect of which the amount in contestation does not come within the jurisdiction of this Court, no. appeal will lie.

The amount necessary to the jurisdiction of the appellate Court is the sum in controversy at the time of the judgment. 2 How. 73.

The right of the plaintiffs to remit or discontinue the whole or a, parfof their claim, cannot well be denied, and after the remission was made by them, the Court could not render a judgment for more than four, hundred and ninety-nine dollars, which was all that was demanded, was the matter then in dispute, and is loss than the jurisdiction of this Court. 7 N. S. 361; 2 L. 102, 236 ; 2 A. 136; 14 A. 643; 16 A. 431; C. P. 491.

It is, therefore, ordered, that the application for a writ of mandamus be refused, at the costs of the petitioner.


text:
    No. 1715.
    J. A. Haggerty, for the use, etc., v. J. A. Phillips, et als.
    All the parlies to the suit must ho made parties in an action to annul the judgment.
    from the-Third District Court of New Orleans. Emerson, J.

      D. G. Lcibatt and Alexander Wallcer, for plaintiff and appellant. G. lioseiius & Alfred Phillips, and 17. II. Punt, for defendants and appellees.
   Howell, J.

This suit is brought against certain parties alleged to be purchasers of nineteen lots of ground in New Orleans, sold under executory process in the suit of R. M. Denman v. J. A. Haggerty, No. 18,509, on the docket of the Third District Court of New Orleans, at which sale the said lots were adjudicated to Denman, the plaintiff in said suit, and by him subsequently sold to the defendants herein. The plaintiff, Haggerty, alleges that all the proceedings in said suit are absolutely null and void for various reasons set out in his petition, and, without making Denman a party to this suit, asks that the said proceedings and adjudicatipp be declared null, and he recognized as the lawful owner of the said lots, and quieted in tlxe possession thereof. The .defendants excepted, that plaintiff cannot maintain this action against them, because it is one to annul the proceedings and judgment in a suit to which they were not parties, and the parties to which are not made parties to this.

The exceptions were maintained and the plaintiff has appealed.

Articles 604-613, C. P., limit the action of nullity to the parties to the judgment and the court that rendered it. Clark v. Christine, 12 L. 394 ; Twichel v. Bordelon, 9 R. 191. But plaintiff’s counsel contend that this is really a petitory action, and that the nullity is merely an incident, and being absolute, may be collaterally declared. It is true that the proceedings assailed are alleged in the petition to be absolutely null ; but when the grounds of their nullity are set forth, they are found to be relative. He alleges that the Third District Court of New Orleans was ousted of jurisdiction of the matter by certain military orders then in’force, but does not describe them; that ho was a loyal citizen and entitled to the benefit of said orders1'; that he had not, as alleged, permanently left the State; and the appointment of a curator ad hbo was illegal; that if he had been absent, an attorney for the absent defendant, and not a curator ad hoe should have been appointed; that the allegation of his absence should have been proven by authentic evidence; that the curator ad hoc failed to per-iorrn his duties and exceeded his authority; that the property was sold at an inopportune time and for one-third of its value; that no legal notices were given to petitioner or any one legally authorized to represent him, and that said Denman without pursuing strictly the legal formalities has caused the sheriff illegally to adjudicate the said property to him, and that he and bis vendees, the defendants herein, are possessors in bad faith, and are bound by the defects in their pretended titles.

It seems clear that in such an action, the parties to the proceedings sought to be avoided, are necessary parties.

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


author: Wyly, J.

text:
    No. 2319.
    The State ex rel. Mitchell, Craig & Co. v. The Judge of the Sixth District Court for the Parish of Orleans.
    An appeal bond is valid if each, of the sureties bind himself for half the entire amount.
    The decision in the case ef the State ex rel. Roman v. Judge of tlie Sixth District Court pariah of Orleans (ante page 443) reaffirmed.
    The Supreme Court will examine into the validity, and sufficiency of the security on the appeal bond on an application for a prohibition; and if the bond is legal in form, and the security good and solvent, the prohibition will issue pending the appeal.
    * PPLICATION’ for a Writ of Prohibition.

      Jlornor & Benedict, for relators. IF. IL Gooley, J., in pro. per.
   Wyly, J.

This is an application for a writ of prohibition to restrain the Sixth District Court from executing the judgment styled J. R. Wolf, by his agents, etc., v. Mitchell, Craig & Co., from wMcli judgment a suspensive appeal lias been taken to this court.

The relators aver that their said appeal has been wrongfully dismissed for insufficiency of the appeal bond, and their property has been seized under an execution issuing from said court, although divested of jurisdiction by virtue of said suspensive appeal.

The question to consider is, is the appeal bond good and sol vent,"and such as the law requires 1

That the sureties bound themselves each for half the entire amount of the bond does not invalidate it. 21 A. 443.

The sureties are Sampson Bros., and William and James McCracken, two commercial firms of this city who, the evidence shows, are perfectly good and solvent. James McCracken signed the name of tho firm to the bond with the authority of his brother and partner, William McCracken.

The firm name of Sampson Bros, was signed by Chandler Sampson. It is in proof also that he is individually worth over and above all bin liabilities the amount for which ho bound the name of the firm. If he had no authority to bind his brother and partner, at least hq bound himself.

We consider the bond perfectly good and sufficient.

It is therefore ordered that the writ of prohibition be granted, and that the Judge of the Sixth District Court 'and J. R. Wolf be prohibited from proceeding in the case of J. R. Wolf by his agent, etc., v. Mitchell, Craig & Co., during the pending of the suspensive appeal therein.


author: Taliaferro, J.

text:
    No. 1761.
    Charles Case, Receiver of First National Bank of New Orleans v. Robert Watson and James E. Dunham.
    Evidence is not admissible to establish facts set up in an exception filed after issue has been joined by the filing of an answer.
    The maker of a'promissory note cannot set up in defense to its payment that the bolder is not the true owner, unless be show that the assignment or tranfJr is fictitious and fraudulent, and made to deprive him of substantial defense against the true owner.
    from the Fifth District Court of New Orleans. Beaumont, J.

      J. JD. House and George L. Bright, for plaintiff and appellee. Bellows & Mills, for defendants and appellants.
   Taliaferro, J.

The plaintiff, as indorsee of a promissory note drawn by Watson, one of the defendants, to the order of his code-fendant, Dunham, for the sum of $1300 (thirteen hundred dollars), brought this action against the maker and indorser. The defendants answered by general denial — admitted signing the note, but specially denied the right or capacity of the plaintiff to stand in judgment, and that the plaintiff is receiver as he sets himself out to be.

They aver that no receiver of the First National Bank has ever been legally appointed. The-defendant Watson afterwards filed a supplemental answer and exception, the substance of which is, that all the proceedings relating to the taking possession by an officer of the treasury department, of the assets, hooks, records and archives of the hank were irregular, illegal and null and void. That the hank has never been put in default as required by the currency act of the United States; that the officers of the hank have been kept forcibly from the charge and control of the bank and assets, etc.

On the trial of the case, the defendant Watson offered evidence to prove the allegations contained in this supplemental answer and exception, which being objected to on the ground that defendant had no right to set up in this action any of the allegations so made, and on the further ground that the matters so set up in the exception could not be pleaded after answer filed, the court sustained the objections and excluded the testimony, and the defendant reserved a bill of exceptions. We think the ruling of the court correct.

There was judgment for the plaintiff and the defendant, Watson, has appealed.

There is no error in the judgment. The defendant does not pretend that the note sued upon has been lost or stolen, or that he has equities against the real owner, or any other ground whatever that can be con-sideren a legitimate defense.

It has been -repeatedly decided that a defendant has no right to inquire whether plaintiff, in whom the legal title appears to be vested, be an agent or real owner, unless, by a fictitious assignment, it be attempted to deprive him of substantial grounds of defense which he may have against the true owner. He would be protected by a payment of the note to the -plaintiff, and it is of no importance to him whether the plaintiff be the receiver of the bank or not. The authorities on the point are numerous. 3 N. S. 291, 392; 4 N. S. 107; 2 L. R. 203; 4 L. 220; 14 L. 254; 2 An. 441; 11 An. 689; 19 An. 182; 18 L. R. 94; 20 An. 24.

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

Messrs. Justices Howell and Howe recused.


text:
    No. 2317.
    State of Louisiana ex rel. City of New Orleans v. The Judge of the Sixth District Court for the parish of Orleans.
    Under the act of the General Assembly, No. 16, approved February 5, 1869, the District Courts of the parish of Orleans, except the First and Second District Courts, are required to be kept open on all legal days, except from Christmas to .the second of January, from the first Monday oí November until the fourth day of July; and for the purpose of considering writs of arrest, habeas corpus, mandamus, etc., they are required to remain open on a11 legal days during the whdle year; and any judgment rendered on mandamus or other conservatory proceeding out of term time may be appealed irom on motion in open court the same as though it had been rendered in regular term.
    A third party wishing to appeal frdm a judgment making a mandamus peremptory out of term time, may do so by motion in open court the same as the. defendant could, and without Petition anc\ citation.
    for aWrit of'Mandamits.

      JI. J. Leovy & Monroe and Alfred FMllips for relator. W. JI. Cooley, Judge, respondent, in pró per.

   Wyly, J.

The relator geeks to eompel the Judge of the Sixth District Court to grant a suspensive appeal on motion from the judgment rendering peremptory the mandamus sued out in the ca-se of the New Orleans Republican Printing Company v. J. O. Landry, Controller. The Judge of the Sixth District Court, for cause' why the mandamus herein should not he granted, shows:

First — That the application for appeal was made during- vacation of court and.should have been by petition instead of a motion.

Second — That the city of New Orleans not being a party to, the proceedings could not intervene by motion. The mandamus sought to he appealed from was rendered peremptory '.in August, 1869, and the application for appeal was made during the same month.

Under the act of 1843 “the party intending to appeal may do so by petition or by motion in open court at the same term at which the judgment was rendered.” * * * * * *

Act No. 16 of 1869, provides: “That except the First and Second District Courts, the District Courts of the parish of Orleans, shall be open at ten o’clock A. M., and shall remain open till three o’ClockP. XL, on all legal days (except from Christmas to the second of January), from the first Monday of November to the fourth of July, and for granting interlocutory orders and writs of arrest, habeas corpus, injunctions, sequestrations^ attachments, mandamus, and provisional seizures, on a motion to quash and not upon their merits, they shall remain open on all legal days during the whole year.” * * * *

The application for appeal, though made after the court was closed for ordinary litigation, was made while the court was open for granting judgments of the character presented in this case.

For granting a mandamus, the court remains open on all legal days of the year, and there is no more limitation on the power-of the judge to act in such a case in the month of August, than in any other month. Shall we say the court is open to grant-the judgment and give it effect, and yet say it is closed against the party moving for an appeal ? We think not. If the court be open to try the case, we think it also open to entertain a motion for appeal. Indeed the act of 1843 expressly gives the party intending to appeal the right to do so by motion at the same term at which the judgment was rendered.

We also think untenable the other position taken by the learned judge. It is this: The city of New Orleans not being a party to the proceeding, could not intervene by motion to obtain a suspensive appeal.

“The right of appeal is given not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit when such third persons allege that they are aggrieved by the judgment.” C. P. 571.

By article 573 it is declared that: “Whoever intends to appeal must present a petition to that effect to the court which has rendered the judgment by which he believes himself aggrieved, praying to be allowed to appeal from such judgment, and offering to give such surety as the court may direct.” * * * T.hé statute of 1843 amends this article thus: “ That the party intending to appjeal may do so, either by petition or by motion in open court, at the same term at which the judgment was rendered'.” * * •»*•**

The counsel for the district judge makes a verbal criticism upon the terms employed in the statute, and insists that the expression, “the party intending to appeal,” refers only to the parties to the suit, and not to third persons, also having the right to appeal. We cannot thus limit the obvious meaning of the statute. It is an amendment to article 573, declaring that whoever intends to appeal may do so by petition, etc. The evident object of the statute was not to discriminate between persons entitled to appeal, but to provide another, perhaps more convenient mode of obtaining the order of appeal.

In construing the statute, we must regard the object of the act, rather than the precision of the language employed or the niceties of grammar.

At any rate, if the language of the statute creates doubt, we will give that doubt in favor of the right to appeal.

To facilitate and simplify the remedy of appeal, two statutes were passed. One was the act of 1839, preventing the dismissal of appeal when the error, irregularity or defect is not imputable to the appellant. The other is the statute of March 22, 1843, by which it is declared the party intending to appeal may do so by petition or by motion in open court, at the same term at which the judgment was rendered. * * * 3 An. 7.

It is, therefore, ordered that the mandamus herein be made peremptory.


author: Wtly, J.

text:
    No. 2453.
    The State ex rel. Rosette E. Storrs, et al., v. The Judge of the Fourth District Court for the parish of Orleans.
    The Supreme Court will examine into the sufficiency of the surety on an appeal bond on application for a writ of prohibition, and if the surety is iound to be good, the prohibition will issue restraining the Judge from executing the judgment until the appeal is decided.
    for a Writ of Prohibition.

      Thearcl, 3., defendant. John A. Groio for relator.
   Wtly, J.

This is an application for the writ of prohibition to restrain the execution of an order of seizure and sale granted by the Judge of the Fourth District Court, in the suit of Edward Thompson v. Rosette E. Storrs and husband, from which judgment a suspensive appeal has been tafeen.

The relator avers that her appeal has been wrongfully dismissed by the District Judge on the ground of the insufficiency of the surety, and that her property lias been seized to satisfy the judgment or order-appealed from j that the appeal bond is good and solvent as shown by the evidence; and the said Court is divested of jurisdiction of said cause by virtue of the appeal.

The District Judge says : That the question in No, 2453 for a prohibition is: Can one appeal from a decision setting aside an order of appeal, when the setting aside of the appeal is based on the insolvency of the surety on the appeal bond?” IVe do not so -understand the question presented -in this case.

The simple-question is: Is the surety on the appeal bond good and solvent 1

That this Court has the right to revise the judgment of the Court a qua on the question of the solvency of the surety on an appeal bond, and issue the writ of prohibition in aid of its appellate jurisdiction, is no longer an open question. 21 An. 43, 64, 113,153, and the authorities there cited.

The amount of the appeal bond is two thousand dollars, and the surety, Albert Ilolzinger, swears that he is worth that amount clear of all debts; that he resides here; that his property here consists in stock in trade, money in bank and pocket, and about six thousand dollars outstanding, mostly for money loaned; that he has two stores, one at 20 Camp'street and the other at 7 St. Charles street; that the stock in both is about six thousand dollars; that he owes in all about two thousand two hundred dollars. Also, that he owns a judgment in the United States District Court agaiust solvent parties for which he has been offered ten thousand dollars cash, and refused it. Also, that he is worth in this parish, over and above all liabilities, over twenty thousand dollars.

There is no evidence to the contrary, and we are bound to conclude that the surety is good and sufficient.

It is, therefore, ordered, that the prohibition issued herein be made perpetual, and the Judge of the Fourth District Court, parish of Orleans, be ordered not to proceed further in the suit of Edward Thompson v. Rosette E. Storrs and husband, and to allow tiie transcript, of the record thereof to be sent to the Supremo Court as it the order dismissing the suspensive appeal had not been rendered.


text:
    No. 2452.
    The State on the relation of Rosette E. Storrs v. The Judge of the Fourth District Court for the parish of Orleans.
    An appeal will lie from an interlocutory order dissolving an injunction on the ground that the surety on the injunction boud is not go id and solvent, and a writ of mandamus will issue to compel the Judge to send up the record.
    for a Writ of Mandamus.

      Paul P. Titeará, J., -in pro. per. John A. Grow for relator. ■
   Wyly, J.

This is an application for the writ of mandamus to compel tiie Judge of tiie Fourth District Court to grant a suspensive appeal from his order dissolving the injunction in the case of Rosette E. Storrs v. Edward Thompson et al.

The District Judge jiresents for our consideration two propositions, which lie insists can only bo decided in the negative, and which justify the course lie lias taken in tiie premises, viz:

1. “Does an appeal lie from a decision dissolving an. injunction, when the sole ground for the dissolution is the insolvency of the surety on the injunction bond?”

2. “Can yoiw Honors revise my judgments in the matters relative to the solvency of sureties?”

Ho insists that great detriment will, occur in the administration of justice if Judges, in the first instance, are not.to be the sole judges of the sufficiency and solvency of sureties.

The District Judge, from the evidence, arrived at the opinion that the surety was not sufficient, and therefore dissolved the injunction.

If the opinion of the District Judge be correct, the injunction was properly dissolved; if not, it was improperly dissolved and the relator has been aggrieved. The relator seeks to have that opinion revised by this Court. C. P. 570.

If the judgments of the courts of the first instance were always correct, an appeal would bo unnecessary in any case; but for fear of error or misapprehension of the law, and the merits of causes, the remedy of appeal lias been provided to revise the judgments of District Courts. C. P. 570, 571, 573, 575.

The right of appeal is not only given from final judgments, but likewise from all interlocutory judgments, when such judgment may-cause an irreparable injury. C. P. 565, 566.

It is quite immaterial upon, what ground the judgment is based, whether it be upon matters relative to the solvency of sureties or upon any other ground, the right of appeal is preserved. Where the law has not discriminated, we cannot discriminate, however detrimental to the administration of justice.

The relator in this case moved for an appeal on the ground that the order dissolving the injunction caused her an irreparable injury. The District Judge said no; “an injunction was ordered to issue in this case on petitioner furnishing bond with good and' solvent surety. She has failed to furnish that surety, therefore there is no injunction, and consequently nothing to appeal from. Appeal refused.”

The learned Judge decided that the surety was not good and solvent, and therefore dissolved the injunction. The relator wishes to have that judgment revised, on the ground that it works her an irreparable injury.

Under the articles of the Code of Practice to which we have adverted, she certainly has this right; and in our opinion the proper administration of justice requires the right of appeal to be preserved in all cases permissible by law; 21 An. 64, 153, and the authorities there cited.

It is, therefore, ordered that the mandamus herein be made peremptory.


text:
    No. 2137.
    Emily Hatcher and Husband v. Jared R. Jackson.
    The minor has a legal mortgage on the property of the tutor cr tutrix to secure the faithful administration of his estate. C. 0. 3298.
    Where the mother of minor heirs contracts a second marriage without the consent of a family meeting, she loses the tutorship, hut if she first obtains ihe consent and approval of a family meeting she retains the tutorship, and her second husband becomes the co-tutor to the minors by a former marriage. In such a case the property'oi the co-tutor is not under legal mortgage for the faithful administration of the tutorship. /
    A [\. PPEAL from the Fifth Judicial District, parish of East Feliciana. Posey, J.

      Me Tea & Hunter, and Campbell, Spofford & Campbell, for plaintiffs and appellants. Cross & Hardee, and It ace, Poster <& JS. T. Merrick, for defendant and appellee.
   Taliaferro, J.

The plaintiff, Emily Hatcher, wife of John Mara-tón, alleging that she has a legal mortgage on certain lands of the defendant, brings this suit to enforce it. Slie avers tliat her right of legal mortgage grew out of indebtedness to her during her minority bv her mother as tutrix and Thomas Davis, her co-tntor. That this indebtedness was fixed by judicial decree of the proper tribunal on the sixth June, 1866, at $41,165 44, with legal interest, with recognition of tacit mortgage in her favor on all the immovable property that belonged to the said tutrix and co-tutor during and since the tutorship — a period ^tending-from the year 1844.

The defendant denies that the plaintiff has the right claimed upon the land owned by him, or that she has a legal demand against her co-tutors. He pleads that the purchase price of the land now sought to be made liable to legal mortgage haying been received l.y plaintiff’s mother, acting as administratrix of the estate of Tilomas Davis, the former co-tutor, and carried into the account and distributed according to a tableau to which plaintiff was aparty, the sale was tantamount to a probate sale relative to her, and the property cleared of any claim she might have, He also pleads the prescription of three, four and five years.

It seems that the father of the plaintiff, Horam Hatcher, died in August, 1842, when she was less than a year old — that her mother, in April, 1844, married Thomas Davis. The plaintiff was solo licir of her father, whose succession was worth $16,89(3, of which $10,400 was his separate property, and the remainder community. The principal property was a plantation and slaves. Davis took charge of this plantation, made crops, shipped and disposed of them in His own name, bought and sold property, and was the principal manager of Hatcher’s estate for near fifteen years. In 1845 he purchased a tract of land of about four hundred acres lying in the parish of East Feli-ciana, and sold it in 1858 to the defendant. The right of plaintiff to legal mortgage on this land forms the subject of this controversy. Judgment was rendered in the court below in favor of the defendant, and the plaintiff appealed.

The prominent question before us in this case is, has the minor a legal mortgage on the immovable property of his co-tutor as well as on that of his tutor for the faithful discharge of his duties in that capacity ?

A solution of this question is not free from difficulty. Our laws in regard to tutorship have been, to a great 'extent, borrowed from the Code Napoleon of France. The interpretation given in France to the articles of that Code which treat of the co-tutor clearly establish that a tacit or legal mortgage exists upon his property, although it is not so expressly announced by that code; and, although article* 2115 of the Code Napoleon declares that- “mortgage takes place only in the cases and according to the forms authorized by law,” the articles 395 and 396 of that code, and articles 272 and 273 of our Civil Code are in substance the same, except that in article 272 of our code, in addition to rendering the second husband, and the mother who enters into a second marriage without being authorized by a family meeting, to retain the tutorship, responsible in solidum for all the consequences of the maladministration of the tutorship, unduly kept by her, declares the estate of the husband tacitly mortgaged as a security for that responsibility.

Article 395 of the Napoleon Code does not declare the estate of the second husband under legal mortgage. The article 272 of our present code is taken from the Louisiana Code of 1808, title 8, section 2, article 10. But that code lias no article analogous to article 395 of the Napo-. leon Code and to article 273 of our present code. It makes no. provision for cases in which second marriages take place with the sanction of a family meeting for the retention of the tutorship by the mother after marriage. The compilers of the code of 1825 inserted, after article 272 (identical with the article we have referred to in the code of 180S), the analogous article 396 of the Code Napoleon. The article 273, immediately succeeding the one taken from the old code, article 10, page 60, in which a legal mortgage is declared to exist on the property of the second husband where the marriage takes place without the previous consent of a family meeting, that the mother shall retain the tutorship, is in these words: When the meeting of the family shall retain the mother in the tutorship, her husband becomes, of necessity, the co-tutor, who, for the administration of the property, subsequently to his marriage, becomes bound jointly with his wife.” This article, we see, does not contain the provision of the preceding one relating to the legal mortgage.

It could not have escaped the attention of the eminent jurists who were engaged in the compilation of our present code that by the interpretation- given by the courts of France to articles 395 and 396 of the Napoleon Code, a legal mortgage attaches to the property of the co-tutor. Did they, in copying these articles into our code, intend that they should have the same construction here that they have in France?. From one imiat of view it would seem that they did. But we think there arc grounds for doubt that such was the intention. The natural tutrix of minor children, contracting a second marriage without the authorization of a family meeting to retain the tutorship, loses it ij)so faeto. She is no longer tutrix, and there cannot be a co-tutor. In such a case the husband is not recognized as a co-tutor. He is rather viewed as a trespasser for assuming the administration of minors’ property without legal sanction. The mother is deprived of the right she enjoyed previous to the marriage. Both are jointly made responsible if they unlawfully persist in- the administration of the minors’ estate, and the property of the new husband is declared under legal mortgage as an additional safeguard against injury to the minors.

The case is different when a council of the family retains the mother in the tutorship after the marriage. The husband is jointly bound with his wife for his proper administration of the property, but his estate is not declared to be, on that account, under legal mortgage. It is a privilege of a natural tutor to be exempt from entering into bond and security. The mother, in that capacity, retains her privilege after a second marriage if the assembly of the minor’s relatives accord it to her. The extension of the right is presumed to be given upon the confidence of the relatives and friends of the minors in tlie prudence and integrity of the second husband. He becomes, of necessity, as the law declares, the co-tutor. Being approved by those whom the law clothes with this discretion, it would seem anomalous that he should he placed in a no less onerous condition than the one who assumes a tutorship without authority.

If the co-tutor be in all respects a tutor according to the sense in which the term tutor is understood, and the functions of the co-tutor are equivalent to those of the tutor, then the argument has force that the property of the co-tutor is subjected to legal mortgage, because, by article 3298 of the Civil Code, a legal mortgage exists on the property of tutors in favor of minors.

The functions of the co-tutor would seem to be subordinate, and not of a plenary character. They cannot be performed by separate action on his part, and only conjointly with those of the tutrix. They proceed Irom and are dependent upon those of the tutrix and cease with them. If the tutrix should die during the tutorship, the functions of the co-tutor would at once terminate. It is not a distinct and separate office independent of any other. It is not enumerated among the different kinds of tutorship of which the code treats, but is merely incidental to one of the four kinds into which tutorship is divided.

In the case of Fabre v. Hepp, 7 An. page 7, this court incidentally expressed the opinion that where the tutrix had, previous to her second marriage, been authorized to retain the tutorship, no legal mortgage attached to the property of the co-tutor.

Legal mortgages are strioti juris. Article 3280 of the Civil Code is very explicit on the subject. It declares that “ no legal mortgage shall exist except in the cases determined by the present code.”

We are unable to find that it is any where clearly and distinctly announced by our law that the property of co-tutors is subject to legal mortgage, and must adopt, as our decision, the opinion suggested by our predecessors in the case of Fabre v. Hepp.

Entertaining these views, it becomes unnecessary to examine the other points of defense.

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


author: Howe, J.

text:
    No. 2448.
    State of Louisiana ex rel. Board Metropolitan Police v. The Judge of the Sixth District Court for the Parish of Orleans.
    The judgment referred to in article 575 of the Code of Practice, means a judgment that can be executed under a writ of fieri facias.

    A judgment making a writ of mandamus peremptory, directing a public officer to payan am mat of money in his hands, is not such a judgment as may be executed under a writ of JL fa. Prom such a judgment, the judge a quo should grant a suspensive appeal, and fix the amount of the bond, without reference to the amount of the judgment making the writ peremptory.
    from tlie Sixth. District Court for the parish of Orleans. Gooley 3.

      J3. Filleul for relator.
   Howe, J.

The relators aver that J. B. Howard applied to the Sixth District Court for the parish of Orleans for á mandamus directing S. N. Burbank, their treasurer, to pay to Howard the sum of one hundred thousand dollars, amount of Metropolitan Police warrants alleged to he held hy him. That Burbank, in contempt of the authority and resolutions of the Board, consented to the issuing of the writ for the sum of seven hundred and thirty-two thousand four hundred and twenty-three dollars, alleged to he held hy Howard. That, on the same day, the judgment ordering a mandamus to issue was amended, and a mandamus ordered for five hundred and eighty thousand dollars.

They further aver; that such a large amount of warrants have never been exhibited to the Board, or their finance committee; that there is no proof in the record that these warrants have ever been exhibited to the Sixth District Court; that the State Treasurer has in his possession four hundred and ninety thousand three hundred dollars and thirty-five cents of Metropolitan warrants ; which amount, added to the sum claimed to be hold hy Howard, exceeds hy many hundreds of thousands oí dollars the total amount of warrants issued, not only for the city of New Orleans hut for the entire Metropolitan District.

They claimed the right to take a suspensive appeal from this judgment, but the Judge refused to grant such an appeal unless they would furnish a bond in an amount exceeding by one-balf the amount which Burbank had been directed to pay, namely, the sum of five hundred and eighty thousand dollars.

The principal reason given for this position by the respondent, is that -the judgment in question is a money judgment, and that the sus-pensive appeal therefrom must he governed hy article 575 O. P. and the various amendments thereto.

Wo find ourselves unable to concur in this view. The money judgment referred to in article 575, we think to he the same one alluded to in article 628, and, more fully, in article 641. It would seem that it is also the judgment referred to in article 3289 C. C., defining the judicial mortgage. It is executed by a writ'of fieri fiadas. It is, when properly recorded, a mortgage on tlie real estate of tire debtor in tbe parish of inscription. To render such a judgment in a summary proceeding by mandamus, would be to violate the simplest rules of procedure.

The judgment in this case is an order directed to a public officer to compel Mm to fulfill what is alleged to be a duty attached to his office. C. P. 834. It is not, strictly speaking, capable of being executed bj^ the sheriff. No writ of possession or of fieri facias can issue. If the defendant docs not choose to obey the order, he may be arrested and imprisoned; but if he chooses to remain in prison, the order will remain unexecuted. C. P. 843.

We are constrained, therefore, to believe that this is a clear case where the amount of tie bond should have been fixed by the Judge, but where the law has established no special standard of amount.. In such a case, the bond offered by the relators in the sum of five hundred dollars would seem to be amply sufficient, an I we think the Judge should have allowed, upon that, a suspensive appeal. State v. Judge Fourth District Court, 20 An. 108; Blanchin v. Fashion, 10 An. 345.

The case of State v. Mount, 21 An. p. —, cited by respondent, does not conflict with the views above expressed. In that case, the appellant, Mount, claimed to be exempted from giving any bond whatever by the law which exempted the city of New Orleans. If he had given a bond like that offered by relators in this case, his appeal would have been maintained.

The same views apply to the other cases in which the relators now before us have sought to take suspensive appeals.

' It is therefore ordered, adjudged and decreed, that a peremptory mandamus be issued from this Court directing the Judge of the Sixth District Court for the parish of Orleans to grant to relators herein sus-pensive appeals in the following cases, upon the relators, the Board of Metropolitan Police, filing, in each of said cases, an .appeal bond, with surety, conditioned as the law requires, in the sum of five hundred dollars, viz:

State ex rel. J. B. Howard v. S. N. Burbank, Treasurer, etc., No. 737 of the docket of the Sixth District Court;

State ex rel. J. Davidson and Hill v. The same, No. 736;

State ex rel. Pugh v. The same, No. 735;

State ex rel. Hughes and Dejean v. The same, No. 741 ;

State ex rel. Burbank v. Dubuclet, No. 742.


author: Ludelikg, C. J.

text:
    No. 1748.
    S. Silverstien v. S. Stern.
    In a suit on a contract of lease, the lessor may show occupancy of the premises, and recover rent for the time, although he fails to establish the contract.
    from tlie Fifth District Court for the parish, of Orleans. Beaumont, .J.

      T. A. Bartlette for plaintiff and appellee. Cotton cC* Levy for defendant and appellant.
   Ludelikg, C. J.

Solomon SilYerstein sued the defendant on an. alleged contract of lease. He has failed to prove the contract for the year commencing October, 1867, and ending the thirtieth of September, 1868, as alleged. The evidence satisfies us, however, that defendant occupied the house of plaintiff one month, and that one hundred dollars therefor would he reasonable rent.

It is therefore ordered, that the judgment of the District Court he avoided and reversed; and that there he judgment in favor of the plaintiff against the defendant for one hundred dollars, with five per cent, interest thereon from judicial demand, and costs of the lower court, with privilege upon the property provisionally seized. It is further ordered, that the appellee pay the costs of the appeal.

Rehearing refused.


author: Ludelikh, C. J.

text:
    No. 2351.
    The State of Louisiana ex rel. S. Belden, Attorney General, v. Markey, Kaiser, et al.
    A third party, appealing from a judgment, must allege and show a direct pecuniary interest in the subject matter of the suit
    The city of New Orleans has no pecuniary interest in the subject matter of a suit brought under the intrusion act, No. 156 of 1868, to determine the rights of parties to seats as Aldermen and Assistant Aldermen of said city.
    from the Fifth District Court for the parish of Orleans. Beaumont, J.

      Simeon Bilden, Attorney General, Wooldridge & Thomas and L. A. Sheldon for relators, appellees. Cotton c6 Levy, E. Bermudez and J. Livingston for defendants. J. B. BecJcwith (City Attorney) for city of New Orleans, appellant.
   Ludelikh, C. J.

The relators have moved to dismiss the appeal taken by the city of New Orleans, oil the following, among other grounds, to wit:

That the city is without interest, either pecuniary or otherwise, in the suit.

The law grants the right of appeal to any.one> though not a party io the suit, if he have an interest in the subject matter of the suit. C. P. 571.

But he must allege and show that interest; and it must he a direct, pecuniary interest. 1 N. .S. 308 ; 4 N. S. 342 ; 4 N. S. 622 ; 2 Rob. 391.

The matter at issue is the right to office — whether the relators or the defendants are, under tlie law, entitled to hold the offices of Aider-men and Assistant Aldermen.

In the motion for an appeal, it is alleged “ that the city of New Orleans is interested in this-suit, in a sum exceeding five hundred dollars.” The nature of this interest is not stated.

In the affidavit of the Mayor, accompanying tho motion for an appeal, it is alleged that the city of New Orleans has a largo pecuniary interest at stake; that the revenues and property of the city arc administered by tho Common Council, and that both the property of tho city of New Orleans and its revenues are valued for the present year at over several millions of dollars, and, by law, placed umler the control of the Council, and would bo under the control of W. It. Pish and the other informers, if said parties wore permitted to exercise the duties, and to occupy the seats of Aldermen and Assistant Aldermen, in tho Common Council of said city of New Orleans. Defendant further says that the city of Now Orleans is a political corporation duly chartered by law; that said city is interested in this suit in a sum exceeding five hundred dollars, and that it is aggrieved by the interlocutory orders and tho final judgment herein rendered,” etc.

IVe have examined the record in vain to ascertain what the pecuniary interest of the city, in this suit, is.

What is decided against the city in this suit ? What can he decided in her favor on appeal ?

How can any pecuniary interest be said to be involved in this case, where there are neither salaries, fees nor perquisites attached to tho offices of Aldermen and Assistant Aldermen, which are the subjects of the suit ?

But whether there can bo any pecuniary value attached to said officer, or not, it is clear the city has no direct pecuniary interest in the suit.

It has been decided that, in a suit for something which has an appreciable money value, the oath of the appellant may supply the omission of evidence as to the value of the thing in controversy.

But we are not prepared to say that the mere affidavit of any one, that ho is interested in a suit between other parties, will authorize an appeal by him. We had occasion to decide otherwise in the suit of Samuel Johnson v. The City of New Orleans, on an application of the French Society for charity and mutual relief, to compel the Judge ot the Sixth District Court to grant them an appeal. 2 R. 391; 4 N. S. 342.

Tho Court will notice, ex officio, that there is no order of appeal iu favor of the defendants. They did not ask for an order of appeal ; the fault is imputable to them. 2 Au. 752; 5 Au. 666; 20 An. 193.

It is ordered that this appeal he dismissed at the cost of the appellant.

Rehearing refused.


text:
    No. 2358.
    Mrs. George W. Pritchard v. A. J. Parker. A. J. Gaudin, Intervenor.
    An allegation of damages, unsupported "by evidence on trial in tb© court below, will net be considered m estimating tlie amount in controversy necessaiy to give tlie aipcllat© court jurisdiction.
    from the Fifth District Court for the parish of' Orleans. hemmoni, J.

      McGloin & Kleinpcter, ior plaintiff and appellee. G. Fernandes, lor intervenor, appellant.
   Taliaferro, J.

The plaintiff and appellee moves to dismiss the appeal in this case on tlio following grounds:

1. That tlio intervenor, who appeals, has fictitiously sot up a claim of two hundred dollars damages, in order to show, together with the amount in dispute (four hundred'and fifty dollars), a sum sufficiently largo to entitle him to appeal.

2. Appellant has not pointed out in his motion those he intends to mate appellees.

8. Danflons, the bondsman of intervenor upon the injunction bond, and condemned in solido with him in damages, has not been made a party.

4.There is no one before this court as appellee.

5.Danflons, the surety on the injunction bond, is surety on the appeal bond, and, therefore, the appeal bond is insufficient. ■

6.This appeal was tallen by motion in open court. Tlie judge has failed to fix tlie amount of the security, nor caused the same to he entered on the- minutes of the court.

The intervenor claims a piano seized among the furniture of the defendant. lie alleges the piano to be worth four hundred and fifty dollars, and claims two hundred dollars damages caused him-by the alleged illegal seizure. He has made no effort whatever to prove damages to any amount. We can hut consider the amount of damages in this case as a subterfuge' and evasion, resorted to to give this court jurisdiction of a case which, legally and constitutionally, it does not possess

Entertaining this view of the case, it is unnecessary to examine the other points in the motion to dismiss. See 9 An. p. 3; 10 An. 282; 16 L. R. 182; 4 An. 213; 6 An. 735,

It is therefore ordered, that this appeal be dismissed at the cost of appellant.'


text:
    No. 1750.
    Mary A. Nugent v. Jotham Potter et al.
    Where a third party pays a judgment to the attorney of the judgment creditor under a writ of fieri facias, and takes an order of court where the judgment was rendered, on the motion of the attorney, subrogating him to all the rights of the judgment creditor in the judgment, he becomes legally subrogated thereto, and conventional subrogation takes place by the act of the attorney.
    from the Fifth District Court for the parish of Orleans. JOeaumont, J.

      T. A. Bartleiie and Franlc Haynes, for plaintiff and appellee. 0. Poselius <& Alfred Phillips, for defendant and appellant.
   Taliaferro, J.

The defendant Potter appeals from a judgment of the lower court perpetuating an injunction sued out by the plaintiff to restrain him from selling property of hors seized by him under an execution issued on a judgment rendered in favor of Josephine Lacoste v. Mary A. Nugent, to all the rights under which judgment Potter claimed to be subrogated.

The plaintiff contends that the defendant has no subrogation as he alleges, to the rights of Mrs. Lacoste in the judgment, and that ho paid the judgment with money owing to P. S. Nugent by the city of New Orleans;- that the payment thus made to Mrs. Lacoste extinguished the debt, and that the plaintiff is no longer liable for it.

The facts as we find them seem to be that on the twentieth of July, 1805, Patrick Nugent entered into a contract with the city of Now Orleans to lay pipe along several streets, designated in the agreement. Two days aftewards Potter and Nugent entered into a contract of partnership , to fulfill this engagement — Potter to furnish the funds necessary for the work, and to be reimbursed out of the first payment made by the city on the contract with Potter. A notification of the partnership contract between Nugent and Potter was made to the city authorities.

We find that in September, 1866, a certified copy by the City Surveyor, signed by the financial committee, was issued to Nugent, that there was due him on his contract with the city five thousand seven hundred and eighty-eight dollars. This sum due Nugent by the city was seized by Mrs. Lacoste under execution issued on her judgment against Mary A. Nugent. Potter paid the amount of this judgment to the attorney of Mrs. Lacoste and took an order of court, on the motion of the attorney, subrogating Potter to all the rights of Mrs. Lacoste under the judgment.

Potter contends that he is legally subrogated to all the rights of the judgment creditor, and that he is also subrogated by the act of the attorney of that creditor.

It'is contended by the plaintiff in this case that the act of subrogation intended by the attorney was posterior to the payment; that, in fact, there was merely a receipt given to Potter for the money paid, without any thing then stated showing the intention to subrogate him to the rights of the judgment creditor, and also that the attorney was without authority to make the subrogation, and on the last ground the case in 8 N. S. page 571, is relied upon.

The position taken by the plaintiff is hardly borne out by the evidence. The attorney, as a witness on the part of the defendant, said, in answer to the interrogatory, “was the agreement between you and Potter reduced to writing?” “No, sir, the only writing is what we wrote in court, which is the subrogation and the receipt which I gave him ; that is the only agreement we ever had about it.”

We think it clearly established that there was conventional subrogation in this case. The attorney’s statement that the payment and act of subrogation were made at the same time is sufficiently explicit and lie swears he was authorized by his client to do the act.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the injunction sued out in this case be dissolved, and that the defendant have and recover, in solido, from the plaintiff in injunction and Dennis Cronan, her surety on the injunction bond, two hundred and fifty dollars as damages. The plaintiff and appellee paying costs in both courts. , .

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 1927.
    Succession of George Welling — On opposition of Eliza A. Darneal and children.
    The assets of a partnership of which the deceased was a member cannot be made liable for the privileged claim of one thousand dollars allowed by the statute of 1852 to the widow and heirs of the deceased partner, until the debts of the partnership are paid and a división of the assets are made between the partners. The decision in the succession of Cyrus W. Stauffer (ante page 520), reaffirmed.
    from the Second District Court, parish of Orleans. Duvig-neaud, J.

      G. lloselius & Alfred Phillips, for administrator, appellant. Cotton & Levy, for widow and heirs, appellees.
   Ludeling, C. J.

.The appellees oppose the account of the administrator and claim the benefit of the homestead act of 1852, which grants to the widow or legal representative of the children of the deceased one thousand dollars out of his succession, if they he in necessitous circumstances.

The deceased left individual property which realized one hundred and twenty-two dollars and forty-nine cents. This was absorbed by the privileged debts due by the succession.

The fund now sought to he distributed arises from partnership property. The individual members of the firm have only a residuary interest after the copartnership creditors have been paid, and the firm being insolvent, no part of these funds entered into the succession, We had occasion to decide this recently in the succession of Cyrus W. Stauffer. 21 An. 520.

For the reasons stated in that case, it is ordered that the judgment of the District Court recognizing the claim of Eliza A. Darneal and children as a privileged claim he avoided and reversed, and it is ordered that tlieir opposition be dismissed with costs in both courts.

Mr. Justice Wyly dissenting.

See dissenting opinion in the succession of Cyrus W. Stauffer published at page 604 of these reports.


text:
    No. 1718.
    Megibben & Brother v. J. Moore Willson.
    A verbal promise to pay a promissory note after prescription lias accrued, -will not work an interruption Of prescription. To establish the interruption, the evidence must show that tho promise was made before prescription was acquired.
    After a note is prescribed, only written evidence is admissible to prove a renunciation. Acts of 1858, No. 208.
    from the Fifth District Court for the parish of Orleans. Beaumont, J.'

      George L. Bright, for plaintiffs and appellants. llornor & Benedict, for defendant and appellee.
   Wyly, J.

This suit is to recover the amount of two promissory notes. The defense is general denial and the prescription of five years.

The notes matured on first April and first June, 1861. The defendant was cited on sixteenth April, 1867.

The witness John Henderson testified that the defendant Willson was absent in the Confederate lines during the whole war, returning here in 1866. “When he returned lashed him to pay the two notes. He promised to pay them, and regretted that he had not done so before he left in Confederate money. That was, I thinh, in 1866.”

This is the only evidence in the record to establish the renunciation of prescription, which had accrued before the action was instituted. The notes were upon their faces prescribed, presumed paid; and to recover, it was incumbent on plaintiff to overcome this presumption by proof of interruption of prescription before it had accrued, or by legal proof of the renunciation thereof after it had accrued.

The last of tho notes was prescribed on first June, 1866. Plaintiff has not proved an acknowledgment or any interruption of prescription prior to that period. The evidence of the witness Henderson, who thought it was in the year 1860 ho conversed with the defendant, and he promised to pay the notes, etc., docs not establish with certainty the interruption of prescription or acknowledgment of the claim before the period of prescription liad arrived. The conversation to which the witness alludes, if it really occurred in 1866, as he thinks, might have occurred after the first Juno.

The verbal promise to pay after the lapse of *tho period of proscription, did not operate a renunciation thereof.

Tlie fouitli section of act-No. 208, of the nr'-' of 1858, declares parol evidence inadmissible to prove a promise to pay a written-obligation, ■when prescription lias already accrued. 14 An. 27.

Therefore, evidence of the character offered in this case cannot establish the renunciation of the prescription of the notes. It did not establish an interruption, because it did not prove the verbal promise to pay occurred prior to the lapse of the period of prescription.

It is therefore ordered, that the judgment of the court a qua, dismissing the demand of plaintiff, be affirmed with costs.


author: IIowe, J.

text:
    No. 1783.
    Burke & Co. v. Edey & Pinckard, etc. William Golding, appellant.
    Objections to the reception of testimony on trial in the louver court will not be noticed in the appellate court, unless the objections are embodied in a bill of exceptions to the ruling of .the judge admitting the evidence.
    When the appeal is taken for delay only, damages will be given against the appellant for frivolous appeal.
    from the Fifth District Court for the parish of Orleans. Leaumont, J.

      George W. Christy, for plaintiff and appellee. IF. IT. Hunt and JS. G. Whitney, for defendant and appellant.
   IIowe, J.

William Golding has appealed from a judgment rendered against him as indorser of a promissory note. Upon the trial his counsel objected to certain testimony, hut reserved no hill of exceptions to the ruling of the Judge admitting the same. The objection cannot ho noticed. Succession of Prevost, 4 An. 347; West v. his creditors, 4 An. 447; Gray v. Thomas, 18 An. 412.

The appeal seems to he frivolous, and- to have been taken for delay meiely.

It is therefore ordered, that the judgment appealed from he affirmed with costs, and with ten per cent, damages for frivolous appeal.


text:
    No. 1757.
    Francis Willis v. Frederika Kern, Widow of John Rub.
    In a suit to enforco a written notarial contract of sale, the certificate of marriage is admissible to show that the vendor is a married woman, and where the notarial act is alleged to have been procured by fraudulent and deceptive practices, its declarations m”ay be contradicted by parol testimony. 2 An. 92, 458, 908; 4 K. 508.
    The husband cannot be a witness for or against his wife in a litigation to which she is a party. Acts of 1867, p. 269.
    The dying declarations of a party who acted as interpreter for the vendor at the passage of a notarial act of sale, are not admissible in evidence on the trial of a suit to enforce the con-
    from the Fifth District Court for the parish of Orleans. Leaumont, J.

      B. Bgan and L. Madison Bay, for plaintiff and appellant. Balshekner cC Buck, for defendant and appellee.
   Ludeling, C. J.

This is a petitory action to recover a lot of ground with improvements and rents. The defendant admits that she is in possession of the property, hut avers that she is the owner thereof. She avers, further, that her signature to the act was obtained through fraud and deceit; that she believed she was making a testament at the time the act under which the plaintiff now claims was signed; that there was no price or consideration given for the property; and that at the time she signed the act she was a married woman, and was unauthorized to contract without the authorization of her husband, or, in his absence, of the judge.

The plaintiif took five bills of exceptions during the coursemf the trial.

The first is to the admission of a certificate of marriage, to show that the defendant was a married woman. Tire evidence was properly received. The second and third bills taken were to the exception of the testimony of Charles Klar, on the ground that a husband cannot testify in favor of or against his wife. The evidence should have been excluded. Act of 1867, p. 269; art. 2260 C. C.

The fourth bill of exceptions was to permitting the defendant to prove that she was a married woman, because she would thereby contradict her declarations in a notarial act.

The defense sot up in. this case is that this notarial act was procured through fraud and deception ; that She intended to make a testament; whereas, this act was imposed on her instead by the machinations oí the plaintiff and the person who acted as interpreter between defendant and the notary.

Under these circumstances, it was proper to permit the defendant to prove that the declarations in the act were untrue. She could have made a will without the authorization of her husband, but not a sale. 4 La. 352; 6 La. 258; 19 La. 431; 2 An. 92, 458, 908; 4 R. 508; Greenl. Evidence § 284.

The fifth bill of exceptions is to the admissibility of the testimony oí Alexandre Dreste as to the dying declarations of Mrs. Leidinger, who acted as interpreter for the defendant at the notary’s, when the act in question was passed, on the ground that it is hearsay evidence.

The objection should have been sustained. Greenleaf Ev. § 156.

The evidence in the record proves that, at the date of the act of sale under which the plaintiff claims, the defendant was a married woman; that she was unauthorized by her husband or the judge to make the sale; that she intended to make, and believed she had made a will, when she signed the act of sale, and that her signature to the act was procured by fraud and deceit.

It is therefore ordered and adjudged, that the judgment of the district judge be affirmed, with the costs of appeal.

Rehearing refused.


author: Ho well, J.

text:
    No. 2062.
    State of Louisiana v. A. Cassard.
    State warrants drawn by the Auditor of Public Accounts arc receivable in payment of taxes or licenses and a party depositing them with the collector is exempt lrom the payment of interest, costs or damages from the date of such deposit. Act No. X of 1860.
    il. PPEAL from tbe Seventh District Court for the parish of Orleans. Gollcns. J.

      Breaux & Benner, for plaintiff and appellee. H. 0. Dibble, for defendant and appellant.
   Ho well, J.

The defendant haring been sued for the tax on his occupation for tho year 1868, deposited in court the amount thereof in certificates of indebtedness of the State of Louisiana and also in warrants of the Auditor on the State Treasurer, and asked the court to order the tax collector to receive one or the other in full discharge of the demand. Tho District Judge refused his prayer and rendered judgment against him for the sum claimed, and ho has appealed.

It has been settled in the case of the City National Bank v. F. C. Mahan, just decided, that these “certificates” are Shills of credit, omitted by the State in violation of section 10, article 1, of the Federal Constitution, and therefore illegal.

As to the warrants, act No. 1 of the Legislature of 1869, passed after the institution of this suit, authorized and required the tax collectors to receive in payment of tho taxes due tho Stato all warrants issued or to be issued by the Auditor, and the deposit in this case of the warrants may be deemed as made at the date of' said law.

It i£ therefore ordered that the judgment appealed from be reversed, and that there bo judgment in favor of defendant authorizing and requiring P. C. Mahan, tax collector, and representing the State herein, to receive in payment of the license tax herein sued for tho warrants deposited by the defendant in the lower court. The defendants to pay the costs up to the fourth January, 1869, as the date of his deposit.


text:
    No. 2038.
    City National Bank v. F. C. Mahan, State Tax Collector.
    The title of iho act of the General Assembly approved eleventh of July, 1808, entitled "An Act relative to the finances of the State,” is sufficiently explicit to embrace the objects oí the statute. The title of a law is not to be strictly construed; Neither is the above quoted act retroactive in it* effect.
    Tbe certificates of indebtedness or notes authorized by the act of the General Assembly, approved ninih of February, 1S66, are bills of credit andaré issued in violation of section 10, of article 1. of the Constitution of the United States.
    These certificates of indebtedness or bills of credit having been issued on violation of the prohibitions in tho constitution of the United States, are not receivable for taxes or other public dues to the State.
    The act of the General Assembly approved ninth of February, 1866, entitled “ An Act to authorize tho issue of certificates of indebtedness, and of bonds for the funding of the same,” is in conflict with article 1, section 10, of the Constitution of the United States, and is therefore void.
    » ./l. PPEAL from tbe Eiffcb District Court for tbe parish of Orleans, Beaumont, J.

      James B. JSustis and G. B. Buddeelce, for plaintiff and appellant. Simeon Belden, Attorney General, II. G. Dibble and J. B. Hob orison, for defendant and appellee.
   Ludeling, C. J.

Tlio plaintiff obtained an injunction to restrain tlie tax collector from selling Ms property to pay tbirtecn hundred and sixty-five dollars and twenty- five cents, in United States currency. He alleges that, by virtue of an act of the General Assembly of the State of Louisiana, approved ninth February, 1866, the State of Louisiana issued certain notes, and made them receivable in payment of all debts due to the State. That he has offered to pay to the collector the amount of his taxes with said notes, but that the collector refuses to receive them, and demands payment in United States currency in conformity with the provisions of the act entitled “ An Act relative to the finances of the State,” approved eleventh July, 1868. The City National Bank alleges that this act is unconstitutional because its title does not indicate its object; because it is retroactive in its effects; because it violates section 1, article 10 of the Constitution of the United States, by impairing the obligation of the contract created by the act of February, I860. '

It is urged iu this court in addition to the grounds above stated why the injunction should be perpetuated, that the act, by virtue of which the collector seized, and was proceeding to sell, the property of plaintiff, is unconstitutional, because it confers executive and judicial powers on the collector. We are not prepared to say that the act entitled an act relative to the finances of the State” is obnoxious to the provisions of article 114 of the constitution of this State. The title might have indicated more exactly the object of the law, “but the title of a law is not to bo strictly construed; if it state the object according the understanding of reasonable men, it satisfies the constitution.” 6 An. 605. Neither is the law retroactive. Frellsen v. Mahan, tax collector. 21 An. 102.

But if the act approved ninth February, 1866, be valid, the plaintiff had the right to pay the taxes due by him to the State of Louisiana with the notes or bills issued under that act. It declares that “ the said certificates shall bo payable twelve months after date, without interest, and receivable for all State taxes or other public dues, as well as for the sale of public lands." Section 2, acts of 1866, page 8.

The effect of the act of 1868, before mentioned, if enforced, will be to impair the obligation of the State, created by the act óf 1866.

We must, therefore, determine the question raised by the defendant, whether or not the act entitled “ An Act to authorize the issue of certificates of indebtedness and of bonds for the funding of the same,” passed in 1866, is valid — for “the courts will not lend their aid to enforce a contract, or give effect to a law, founded upon a violation of the Constitution.”

The language of the Constitution of the United States is “ no State shall emit bills of credit.” Article 1, section 10.

In the case of Craig et al. v. The State of Missouri, the Supreme Court of the United States said “ bills of credit signify a paper medium, intended to circulate between individuals and between government and individuals, for the ordinary-purposes of society.” In Briscoe v. Bank of the Commonwealth of Kentucky (11 Peters 315), the Supreme Court said “ The definition tlien, which does include all classes of bills of credit emitted by the colonies or States, is a paper, issue by the sovereign power, containing a pledge of its faith, and designed to circulate as money.” This definition was approved of by the same court in Darrington v. The State Bank of Alabama. 13 Howard 17.

Both of these definitions embrace the certificates in question.

They were issue.L by the State.

Section 1 of the act of 1866 provides that it shall be the duty of the Governor, and he is hereby empowered to issue, on behalf the State, from time to time, for the purpose of paying the current expenses of the State, in accordance with appropriations therefor, according to law, a sum not exceeding two millions of dollars in certificates of indebtedness.”

That they were issued on the faith of the State is apparent on the face of the certificates :

“New Ob,leaNs, Louisiana, May 23, 1866.

It is hereby certified that five dollars is due by the State of Louisiana to bearer, and the State Treasurer is hereby directed to pay the same twelve months after date.

(Signed) ■“ II. PERALTA, AuditoA

Approved:

Adam Giffen, Treasurer.”

Indorscmen t — “ This certificate is receivable in payment of all State dues and for sale of public lands, and is fundable, at the option of the holder, in State bonds bearing six per cent, interest per annum, payable semi-annually, in accordance with the provisions of an act of; the Legislature approved ninth February, 1866.”

That they were designed to circulate as money is manifested by the act of the Legislature as well as by the certificates themselves.

The act aforesaid declares the certificates are to be issued for the purpose of paying the current expenses of the State.” Section two declares that the Governor shall determine the denomination and form of the certificates , that they shall be printed and engraved under his direction- and control, etc., and that they shall be receivable lor all State taxes or other public dues, as well as for the sale of public lands.” They were issued in sums of five, ten and twenty dollars in the similitude of ordinary bank bills, and they were actually circulated as money

We are constrained, therefore, to declare that said certificates were bills of credit, and that the act number five of the General Assembly of the State of Louisiana, entitled An Act to authorize the issue of certificates of indebtedness and of bonds for the funding of the same,” is null and void, being in contravention of section ten of article one of the Constitution of the United States.

We deem it not improper to remark that, by the act No..114, of 1808, the General Assembly of the State has provided for the redemption of these State notes by the imposition of the one per cent, tax for which they are made receivable.

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


text:
    No. 1780.
    Juan Garcia Y Mora v. John C. Kuzac et als.
    Under llie act of March 29, 1865, the Fourth District Court of New Orleans was without jurisdiction to issue an injunction against the execution of a judgment of a justice of the peace, the Third District Court of New Orleans having exclusive jurisdiction over such cases by this act.
    The institution of a suit in a court that has no jurisdiction is null, and the subsequent investiture of jurisdiction will not cure the nullity.
    from the Fourth District Court of New Orleans. • Théard, J.

      Cóllcns tfi Wooldridge, for plaintiff and appellant. G. IS. Schmidt and John II. Mees, for defendants and appellees.
   Taliaferro, J.

For an alleged illegal and vexatious seizure and advertisement of sale of the plaintiff's stock of merchandise by the defendant, acting as constable of the Second Justice of the Peace of New Orleans, and under color of a fieri facias issued on a judgment rendered by said second justice in a suit entitled H. Blaize & Co. v. Canales, the plaintiff sued out a writ of injunction staying the proceedings complained of, and praying against the seizing creditors, Maize & Co., judgment for one thousand dollars as damages. This injunction suit of the plaintiff was brought iu the Fourth District Court, the petitiou being filed on the tenth of February, 1868. The defendants excepted to the jurisdiction of the court, and the exception was sustained, the injunction dissolved and the suit dismissed.

From this judgment the plaintiff appeals.

This suit was commenced prior to the adoption of the present Constitution, and by the law in force at that time the Third District Court of New Orleans had exclusive jurisdiction of cases of this kind. For by the act approved March 29, 1865 (Acts of 1864 and 1865, p. 84, sec. 10), it was provided that in all cases where a party shall have cause to complain of any judgment by a justice of the peace, or act of any constable of a justice of the peace or his deputies, and shall think proper to apply to a higher court for relief, by writs of injunction, mandamus, sequestration, action of nullity, or otherwise, it shall, he to this court only that"he shall apply for relief.”

But it is contended on tbe part of tbe appellant that since tbe trial of tbe case in tbe court below, that court or its successor, tbe present Fourth District Court, has become vested with jurisdiction of tbe case, and tbe Third District Court or its successor deprived of all jurisdiction except that of appeals from justices of tbe peace, and therefore it would be vain to dismiss this suit.

We do not concur in this view of tbe case. Tbe institution of a suit in a court without jurisdiction is null, and tbe investiture of that court with jurisdiction at a subsequent period has no effect to cure that nullity. We think tbe suit was properly dismissed.

It is therefore ordered, adjudged and decreed that tbe judgment of tbe District Court be* affirmed, tbe appellant paying costs in both courts.