author: Hoxvell, J.

text:
    No. 4108.
    C. E. Phillips vs. Blakemore Brothers & Co.
    The plaintiff sues on a draft drawn by H. H. Bein in New Orleans, on the, defendants, alleging that the said Bain was the agent of defendants to purchase cotton in Camden, Arkansas, ship it to them and draw on them for the purchase price, and that said draft was drawn in the course of suoh operations, as many others had boon which were dxxly honored, but payment of this xvas refused.
    The draft in suit is not shown to hax-e been drawn on any shipment of cotton, or accompanied by any bill of lading, which wore the, conditions upon xvhich drafts woro to he drawn and honored.
    The plaintiff has failed to slxoxv any axxtliorlty in Bein to draw this draft, xvhich xvas draxvn in New Orleans, and not li-om tha point where the transactions had previously been conducted.
    APPEAL from the Fifth District Court, parish of Orleans. Lecmmont, J.

      Hays New, for plaintiff and. appellee.

      Thomas Ilunton and William H. Haul, for defendants and appellants.
   Hoxvell, J.

The plaintiff, a resident of Camden, Arkansas, sues on a draft of $4101 50, drawn by H. EL Bein on the twenty-fourth of February, 1872, in New Orleans, on the defendants, upon the allegation that the said H. H. Bein was the agent of the defendants to purchase cotton in Camden, ship it to them and draw on them for the purchase price, and that said draft was draxvn in the course of such operations, as many others had been which wore duly honored, but payment of this xx'as refused.

'The answer denies that said Bein xvas the agent of defendants, or had authority to draxv the draft in suit.

From a judgment in iavor of plaintiff defendants have appealed.

The evidence satisfies us that Bein was not the general agent of the defendants, but was simply authorized to fill special orders for the purchase of cotton in given quantities for account of certain-named parties including said Bein himself, and to draw on the defendants for the price, with a margin, and attach bills of lading to the drafts. In some instances money was deposited with plaintiff’s bankers in New Orleans to cover specific shipments, and bills of lading and invoices were forwarded. The draft in suit is not shown to have been drawn upon any shipment of cotton or accompanied by any bill of lading, which were the conditions upon which drafts were to be drawn and honored.

The plaintiff has failed to show any authority in Bein to draw this draft, which was drawn in Now Orleans, and not from the point where1, the transactions had previously been conducted.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendants with costs.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 5933.
    State of Louisiana vs. Wm. Woodworth and Mary McCauley.
    The judge a aao refused to grant a new trial upon an affidavit of newly-discovered evidence. The alleged new evidence was the testimony of one Mary Woodworth, who had been charged and tried with these parties and found not guilty in the same verdict; whereupon, after judgment, the affidavit was made.
    It does not appear that a severance was asked for previous to the trial, nor that application wasmade, before it was ended, that a verdict of acquittal might be found against her in order that she might testify on behalf of her co-defendants, nor that the appellants became aware, after the trial, of the fact that the said witness could testify in their behalf. Thera was not, consequently, clue diligence, and the court a gao. did not err in refusing the new trial.
    APPEAL from the Superior Criminal Court, pariah of Orleans. Bratujhn, J.

      A. P. Field, Attorney General, for plaintiff and ap-pellee.

      A. B. Phillips, for defendant and appellant.
   Howell, J.

The defendants have appealed from ■ a judgment sentencing them to imprisonment at hard labor in the State Penitentiary for the term of two years for the crime of “ breaking and entering. a ■store in the night time with the intent to steal,” and they assign several grounds of error, only one of which we can properly examine, to wit; the refusal of the judge a quo to grant a new trial upon an affidavit of newly-discovered evidence.

The alleged new evidence was the testimony of one Mary Woodworth, who had been charged and tried with them and found not guilty in the same verdict, whereupon and and after judgment the affidavit was made. . ’ .

It docs not appear that a severance was asked for previous to the trial, nor that application was made before it was ended that a verdict of acquittal might be found as to her in order that she might testify in behalf of her co-dofendant, nor that the appellants became aware, after the trial, of the fact that the said witness could testify in their behalf. There was not, consequently, duo diligence, and the court did not err in refusing the new trial.

,T udgment affirmed.

Rehearing refused.


author: Wyly, J. Howell, J.

text:
    No. 5471.
    F. Kuntz vs. J. Baehr and Sheriff.
    The sale of the property in question in this suit divested all of plaintiff’s rights, including that under the homestead law. If he had any right to a homestead, lie should have assorted it prior to the sale. His personal notice to the sheriff and the plaintiff in the seizure and salo did not amount to a legal assertion of his right so as to secure or preserve the right of a homestead on the property under-seizure.
    APPEAL from'the Second Judicial District Court, parish of Jefferson. Pardee, J.

      We nek & Hafft, for plaintiff and appellant.

      N. Comman-dear and JS. Howard Me Caleb, for defendants and appellees.
   On Motion to Dismiss.

Wyly, J.

This is an appeal from a judgment on a motion to dissolve the injunction sued out by the plaintiff.

The defendant, „the appellee, moves to dismiss this appeal on the ground that the record is incomplete, because it does not contain the motion or exception on which the decree was rendered, and because the injunction bond is not in the transcript.

The mover is in error. The documents which he alleges are missing are in the record.

As to the writ and sheriff’s return referred to in the petition, it does not appear that they were received in evidence at the trial of the motion.

Motion denied.

On Exception.

Howell, J.

The plaintiff has appealed from a judgment sustaining an exception to his suit, which is an injunction to restrain the sheriff from putting his co-defendant, J. Baehr, in possession of property purchased by the latter under a writ of seizure and sale in the case of J.. Baehr vs. F. Kuntz. Tlie ground of tlie injunction is that the property so sold by tlie slieiiff was and is the homestead of the plaintiff herein, and the exception is no cause of action, because tlie plaintiff is not the owner of the property, and therefore cannot assert the homestead right

The judgment is correct. Tlie sale of the property divested all of plaintiffs rights, including that under the homestead law. If he had any right to a homestead, he should have asserted it prior to the sale. His personal notice to tlio sheriff and the plaintiff in tlio seizure and sale did not amount to a legal assertion of his right so as to secure or preserve the right of a homestead on the property under seizure.

Judgment affirmed.

Beliearing refused.


author: Wxly, J.

text:
    No. 4496.
    Mrs. Annie Castell vs. Thomas J. Castell, Her Husband.
    The objection to the joinder of issue by the default cannot avail the defendant. It is. true there was no citation, but defendant appeared by his attorney and accepted service and waived citation. The written waiver was at the foot of the petition, and. although not dated, it will be presumed that it occurred when the petition was filed, which was ten. days before default was entered.
    The objection as to the testimony cannot be considered, because no bill of exceptions was taken, although defendant appeared by counsel to accept service and waive ebation. By this appearance by counsel and by the legal joinder of issue by a default, the defendant was legally present at the time of the trial, and it was his duty to present his objections to the testimony, if he had any, by a bill of exceptions, in order that tlio same might be considered by this court.
    APPEAL from the Fourth District Court, parish of Orleans. Bonner, J.

      J. Q. A. Fellcnvs, for plaintiff and appellee.

      W. B. Lancaster, for defendant and appellant.
   Wxly, J.

The plaintiff, who was married to the defendant in 1866, now sues him for a separation and divorce and to be decreed to have-the care and custody of their minor child, Ella Castell, who was born in January, 1868.

The grounds for divorce are: That notwithstanding the petitioner has always conducted herself toward her husband with humility, obedience, and affection, he has uniformly treated her with neglect and contumely, failing to supply her with means necessary for her support or-the support of their child; that he has on one or two occasions, in 'the-presence of strangers, abused, vilified, and struck her, and that he has,, for three years or more, been addicted to the use of intoxicating liquors,, making his home a pandemonium and those dependent on him miserable and unhappy.

The evidence in the record fully sustains the charges made in the-petition and the decision of the judge a quo in favor of plaintiff. “ Married persons may reciprocally claim a divorce on account of excesses, habitual intemperance, cruel treatment, and any such misconduct repugnant to the marriage covenant as permanently destroys the happiness of the petitioner, or of outrages of one of them toward the other, if such outrages or ill-treatment be of such a nature as to render their living together ■ insupportable.” See act No. 76 of the acts of 1870, •amending article 138 of the Revised Code.

We think the case presented by the record comes clearly within the provision of the law, and plaintiff is entitled to the relief she asks.

The objection to the joinder of issue by the default cannot avail the ■defendant. It is true there was no citation, but defendant appeared by his attorney and accepted service and waived citation. The written waiver was at the foot of the petition, and, although not dated, we will presume it occurred when the petition was filed, which was ten days before default was entered.

The objection as to the testimony cannot be considered, because no bill of exceptions was taken, although defendant appeared by counsel 'to accept service and waive citation. By this appearance by counsel and by the legal joinder of issue by a default the defendant was legally present, though physically absent, at the time of the trial, and it was his duty to present his objections to the testimony, if he had any, by a bill of exceptions, in order that the same might be considered by this ■•court.

Judgment affirmed.

Rehearing refused.


author: Wyly, J.

text:
    No. 5943.
    State of Louisiana vs. A. C. Banks.
    'Defendant, moves to dismiss tliis appeal because this court is without jurisdiction ratioup maierUe.

    .The Supremo Court has jurisdiction in questions of Taw only in criminal cases “ whenever the punishment of death, or imprisonment at hard labor, or a fine exceeding throe hundred dollars is actually imposed.” This ease is a criminal one, where no punishment has actually been imposed. The motion must prevail.
    APPEAL from the Twelfth District Court, parish of Winn. Criminal case.

      Daniel B. Gorham, District Attorney, for plaintiff and appellant.

      Jack Pierson and S. M. Brian, for defendant and appellee.
   Wyly, J.

The indictment, charging defendant with the crime of embezzlement, was quashed, on motion to that effect, as being barred by prescription. Thereupon the State, by the District Attorney, took an appeal.

Defendant moves to dismiss this appeal because this court is without jurisdiction ratíme materias.

The Supreme Court has jurisdiction in questions of law only in criminal eases, “ whenever the punishment of death, or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed.’'' Constitution, article 74.

The case at bar is a criminal ease where no punishment whatever has. actually been imposed. The motion must prevail. See 22 An. 564.

It is therefore ordered that the appeal herein be dismissed at appellant’s costs.


text:
    No. 5741.
    John Coleman vs. Fairbanks & Gilman. C. Cavaroc & Son, Intervenors.
    The property seized in this caséis shown to belong to the intervenors, Cavaroc &■ Son, ¡indis exempt from the lessor’s privilege under article 2708, Revised Civil Code.
    The contract between the intervenors and defendants and the evidence in the record show this property to be of the kind designated in said article 2708 — merchandise sent to the establishment of defendants to be “ made up ” or manufactured for intervenors, and which was actually manufactured and to be sold for their account either by themselves or defendants. By a special stipulation in the contract it was to be exempt from storage; while it is shown that intervenors are not, in any contingency, indebted to defendants under their contract.
    Under such circumstances, the property of the intervenors, which has been sold by-consent, cannot be held liable to the privilege existing against defendants in favor of their lessor, the plaintiff.
    PPEAL from the Fifth District Court, parish of Orleans. Cullom, J„

      James D. Coleman, for plaintiff and appellee.

      J. 8. Whitaker, for defendants and appellees.

      F. Fuselier and A. Fitot, for intervenors and appellants.
   Howell, J.

The plaintiff sued defendants for rent and provisionally seized the movable property in the premises, consisting of sugar and molasses, as subject to the lessor’s privilege. C. Cavaroc & Son intervened, claiming the said property as owners. Plaintiff reconvened, alleging that Cavaroc & Son were partners of Fairbanks & Gilman, and liable in solido with them for the rent and damages claimed in the main action.

Judgment was rendered in favor of plaintiff against .defendants, with privilege on the property seized, rejecting the demand of the interven-ors and that of plaintiff in the reconvention, from which intervenors appealed, and plaintiff asks that it be amended on his reconventional demand.

We think that the judgment in this last respect is correct, as the contract between the intervcnors and defendants does not’ establish a partnership, but simply an agreement that Cavaroc & Son shall furnish all the raw material to bo manufactured in the sugar refinery of defendants and pay the expenses of manufacturing, the defendants to receive two-thirds of tlio profits on the sale of the manufactured articles for their compensation. They were not to share losses. But we think the property seized is shown to belong to the intervenors, Cavaroc & Son, and is exempt from the lessor’s privilege under article 2708, Revised Civil Code, which reads: “ Movables are not subject to this right when they are transiently or accidentally in the house, store, or shop, such a* the baggage of a traveler in an inn, merehmullee sent to a workman to be made up or repaired, and effects lodged in the store of an auctioneer to be sold.”

The contract between the intervcnors and defendants and the evidence in the record show this property to be of the kind designated in this article. Merchandise sent to the, establishment of defendants to be made up ” or manufactured for intervenors was actually manufactured and was to be sold for their account either by themselves or defendants. And by a special stipulation in the contract it was to be ■exempt from storage, while it is shown that intervenors are not in any contingency indebted to defendants under their contract. Under such •circumstances the. property, of the intervenors (which has been sold by consent) cannot be held liable to the privilege existing against defendants in favor of their lessor, Coleman.

It is therefore ordered that the judgment appealed from be reversed so far only as it dismisses the demand of the intervenors, 0. Cavaroc & ñon, and that there be judgment in favor of said intervenors, setting aside the provisional seizure herein and decreeing them to be the owners of the, property so seized and entitled to the proceeds thereof with the costs of intervention, and that in other respects the said judgment •be. affirmed, appellees paying costs of appeal.

Rehearing refused.


text:
    No. 5784.
    J. Rodriguez vs. D. Lopez.
    When tlie testimony is conflicting this court will not disturb tlio judgment of the judge a quo, who had the witnesses before him, and was doubtless controlled in adopting his conclusion by the weight of the presumption in favor of a holder of a promissory note as to ownership and consideration.
    APPEAL from the Pifth District Court, parish of Orleans. Cullom, J.

      J. J. Planchará, for plaintiff and appellee.

      J. L. Tissot, for defendant and appellant.
   Howell, J.

This is a suit by the payee against the maker of a promissory hote, the defense to which is want of consideration.

The testimony is conflicting-, and we are not disposed to reverse the decision of the judge a quo, who had the witnesses before him and was doubtless controlled in adopting- his conclusion by the weight of the presumption in favor of a holder of a promissory note as to ownership ■and consideration.

Judgment affirmed.


text:
    No. 5826.
    Samuel Smith & Co., in Liquidation, vs. Nicholas J. Hoey, Liquidator, et al.
    It is impossible to perceive any right in plaintiffs to enjoin tlio execution ol defendants’ judgments. Plaintiffs were not and never had boon tlio owners of the property seized. They were not even mortgage creditors, because they had caused the erasure of their mortgage. But if their mortgage remained upon the property, they would not have the right to enjoin the defendants from executing their judgments against the owner of said property, because the sale thereof could not injure them. There could be no adjudication unless the amount exceeded the amount of the conventional mortgage. If it did, the plaintiffs, in case their mortgage remained, could claim tlio amount due them by intervening, or it would remain in the hands of the purchaser subject to their mortgage. The sale was not a judicial sale; it was a voluntary one by the owner. It in no manner relieved tlio property of prior incumbrances.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Randolph, Singleton & Browne, for plaintiffs and appellants.

      Breaux, Fenner ct- Hall, for defendants and appellees.
   Wyly, J.

Plaintiffs appeal from the judgment dissolving, with ten per cent damages, the injunction sued out by them to restrain the defendants from executing against the property described in the petition two certain judgments which they have against Miss Mary A. May, to wit; One rendered in favor of N. J. Hoey, liquidator, vs. Miss Mary A. May, for $838 17, and the other in favor of C. E. Girardey & Co. vs. Miss Mary A. May, for $942 90.

At the time the attachments were levied in these two suits the property in question belonged to Miss Mary A. May, and plaintiffs were her •conventional mortgage creditors. Before the judgments, however, were rendered in these two attachment suits, Miss May concluded to sell the property in question at public auction; and in pursuance of the adjudication she conveyed by acts before a notary one part of the property to Charles Gallagher for $10,700, and another part thereof to Widow John Gauche for $27,500. Each of .the notarial acts contained the following recital, viz: “By reference to a mortgage certificate * * * it will appear that said property is incumbered by no other mortgages than— First, the mortgage she granted in favor of Sam. Smith & Co., * * * for ¡§35,000; second, the general one in favor of N. J. Hoey, liquidator’, resulting from the writ, etc., * * * third, the general one in favor of O. E. Girardey & Co., resulting from the writ, etc., * * which incumbrances the said Miss May binds and obligates herself to cause to be canceled within the shortest possible delay, and in the meantime this act is accepted by said purchaser subject thereto.” The proceeds of the sale were applied by Miss May to the satisfaction of plaintiffs’ mortgage; and on the same day the deed was executed plaintiffs caused their mortgage to be canceled and erased, although a balance remained due them on this mortgage debt.

"VVe fail to p er ceive any right in plaintiffs to en j oin the execution of defendants’ judgments. Plaintiffs were not and never had been the owners of the property seized. They were not even mortgage creditors, because they had caused the erasure of their mortgage. But if their mortgage remained upon the property, they would not have the right to enjoin the defendants from executing their judgments against Miss May, because the sale of the property in question could not injure them. There could be no adjudication unless the amount bid exceeded the amount of the conventional mortgage. If it did, the plaintiffs (in ease their mortgage remained) could claim the amount due them by intervening, or it would remain in the hands of the purchaser, subject to their mortgage.

The sale by Miss May was not a judicial sale; it was merely a voluntary sale. It in no manner relieved the property of prior incumbrances.

Defendants have asked that the judgment of the court below be amended so as to increase the damages for the wrongful issuance of the injunction.

It is therefore ordered that the judgment herein be amended by increasing the damages from ten to twenty per cent on the amount enjoined, and, as amended, it is ordered that said judgment be affirmed with costs.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 5917.
    Charles F. Berens vs. Robert J. Ker.
    It was clearly incompetent lor the defendant to set up in compensation against fie note sued on the unliquidated claims alleged to be for services rendered as an attorney.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      J. A. Bozier, for plaintiff and appellee.

      M H. McCaleb„ior defendant and appellant.
   Taliaferro, J.

This suit is brought via ordinaria on a promissory note, secured by mortgage executed before a notary and two witnesses. This aet contains the common clause inserted in mortgages given to secure loans of money, stipulating that the debtor on failure to make prompt payment shall pay ñve per cent on the amount sued for as attorney’s fees for collection as well as all legal costs that may accrue. The act contains a confession of judgment by the debtor, who also renounces the benefit of appraisement in the event of a sale of the property, and consents that it be sold for cash to the highest bidder without appraisement. The note is for the sum of $3500, dated May 18, 1870, and made payable one year after date, with eight per cent interest per annum from maturity.

The defendant sets up against this claim the plea of compensation, averring, that plaintiff owes him for professional services as an attorney and counselor-at-law rendered in various eases during the years 1870, 1871,1872, and 1873, the sum of $5085, and he reconvenes for the sum of $1585 as the balance due Mm for professional services.

The court a qua rendered judgment in favor of the plaintiff for th'e amount claimed, with recognition of the plaintiff’s mortgage rights and an order to enforce them against the property mortgaged. The decree reserved to the defendant the right to proceed against tho plaintiff in a separate action on the claims set up by defendant in Ms plea of compensation.

From this judgment the defendant appeals.

The bill of exceptions taken by the plaintiff we deem it unimportant to pass upon. The prescription of three years was pleaded on the part of the plaintiff against all the defendant’s claims. ;

We think the judgment was properly rendered.

It was clearly incompetent for the defendant to set np in compensation against the note sued on the unliquidated claims alleged to bo fdr services rendered as an attorney. Civil Code 2209. :

Judgment affirmed.

Rehearing refused.


text:
    No. 6011.
    Southern Bank vs. Louisiana National Bank et al.
    This suit is instituted and a writ of'sequestration taken against the Louisiana National Bank et al. by plaintiff as holder of a large number of interest coupons detached from certain bonds of the city of Now Orleans, said plaintiff claiming to be the owner of certain funds deposited by the city-in said bank to the credit pf the holders of the bonds, and averring an apprehension that the defendant bank would part with or dispose of the same during the pendency of the suit.
    The evidence shows that tho Louisiana National Bank is not the fiscal agent of tho city, and that the funds claimed and sought to be seqxrestered aro deposited by tho city to the credit of tho interest funds, and to be checked on as such, to pay the interest coupons, which fact does not, in the opinion of tho court, vest the titlo to the said funds in the holders of the coupons, and lienee said holders can not properly sequester tho same as owners.
    If there is good ground to fear that tho city will divert the funds from the purpose for which they aro colloetod and deposited, thoro Í3 a remedy to prevent it, tout it is not toy sequestration.
    The defendant bank toeing tho depositary of the city, 'which is an individual depositor of said bank, tho writ of sequestration can not properly issue against tho bank on a claim against tho city. In any view of tho facts of this ease and the relations between tho city and the defendant bank, tho writ of sequestration is not the remedy of tho plaintiff, and the writ was eorreotly set aside by tho court below.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      F. Bermudez, for plaintiff and appellant.

      B. F. Jonas, City Attorney, for the city of New Orleans, defendant and appellee.

      Finney & Miller, for Louisiana National Bank, defendant and appellee.
   Howell, J.

The Southern Bank, as holder of a large number of interest coupons detached from certain bonds of the city of New Orleans, alleged that the funds resulting from the collection of taxes specially imposed to pay said interest had been deposited in the Louisiana National Bank to the credit of the holders or bearers of such coupons and caused a writ of sequestration to issue against the said funds, claiming to be the owner thereof, and averring an apprehension that the defendant bank would part with or dispose of the same during the pendency of this suit, which is instituted by the Southern Bank against tho Louisiana National Bank, tho directors thereof, and the city of New Orleans, to be declared the owner of the funds sequestered and to condemn tho said parties to pay the amount of the coupons.

The defendant bank and the city of New Orleans moved to set aside the writ of sequestration on the grounds that the petition sets forth no cause for the issuance of tho writ; that under act No. 5 of 1870 courts are prohibited from issuing a writ of sequestration or any other writ the object of which is to enforce the payment of money claimed to be due by the city of New Orleans; that the money which it is sought to sequester is a debt due from the Louisiana National Bank as a depositary to the city of New Orleans as depositor; that the same is not tho property of p.ainfiff, and plaintiff is not entitled to the possession thereof, and that the said indebtedness can not be sequestered, even if a writ of sequestration can legally issue against the city; that the affidavit is not true arid the bond is insufficient; that the writ of sequestration can legally itsue only to enforce a writ of ownership or possession of or privilege on property, and no such right is disclosed in the petition, and that the defendant bank is not the fiscal agent of the city.

The sequestration was dissolved and the plaintiff appealed.

The evidence shows that tho Louisiana National Bank is not the fiscal agent of the city, and that the funds in question are deposited by the city as depositor to the credit of the interest funds and to be checked on as such to pay the interest coupons, which does not in our opinion vest the title to the said funds in the holders of the coupons, and hence such holders can not properly sequester the same as owners. If there is good ground to fear that the city will divert the funds from the purpose for which they are collected and deposited, there is a remedy to prevent it, but it is not by sequestration.

The defendant bank being the depositary of the city, an individual depositor of said bank, the writ of sequestration ean not properly issue against the bank on a claim against the city. In any view of the facts of this case and the relations between the city and the defendant bank, the writ of sequestration is not the remedy of the plaintiff, and the writ was correctly set aside.

Judgment affirmed.

Rehearing refused.


author: Morgan, J.

text:
    No. 5952.
    R. S. Howard vs. Eugene Waggamann, Sheriff, et al.
    In a suit against Short aná Howard, in solido, for twenty-five hundred dollars, on motion, a suspensive appeal was granted to defendants. But Short alono filed a bond. Hence plaintiff in the suit against Short and Howard, and defendant Howard, became appellees. As to Short, the only appellant in said case, judgment was reversed. Execution issuod against Howard, who enjoined the execution.1
    The judgmont rendered by the district court was not reversed as to Howard, who had not brought up his appeal. Howard contends that he is included in the decree of this court reversing the judgment of the district court against defendants in the suit of Irvine against Short and Howard. This is an orror. This court could not include in its judgmont one who was not before the court.
    The plea that the consideration on which the judgment was based was a loan of Confederate money, ean not be received, whatever the consideration of the obligation sued on, the judgment of tho district court has long ago become final, and the basis upon which it rested can not be inquired into.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      J. W. Thomas and Semmes &Mott, for plaintiff and appellant.

      Breaux, Fenner & Fall, for defendants and appellees.
   Morgan, J.

E. W. Irvine instituted suit against R. H. Short and R. S. Howard, to recover from them in solido twenty-five hundred dollars.

Judgment was rendered against them as prayed for. Motion was made for a suspensive appeal, which was granted. Short alone filed a bond.

In this court Irvine moved to dismiss the appeal, on the ground that Howard was a necessary party thereto, and, having failed to file his bond, had not been made a party.

The motion was denied, on the ground that Howard not having filed his bond, thus bringing up his appeal, he and the plaintiff were appellees. As to Short, the judgment was reversed. This judgment was rendered in 1871.

■ On the judgment rendered against him in the ease of Irvine vs. Short and Howard execution issued against Howard. He enjoins the execution thereof. His allegations are:

, First — That there is no judgment against him, because the judgment in the case of Irvine vs. Short and Howard was reversed.

Second — That the consideration on which the judgment was based was a loan of Confederate money.

. First — The judgment rendered by the district court against Howard was not reversed. He did not bring up his appeal. And we held that he Was an appellee. In the decretal part of our judgment it was ordered that the judgment of the district court against the “ defendants” be reversed. Plaintiff contends that “ defendants ” in the decree included him. This is an error. We could not include in a judgment one who was not before us.

Second — Whatever the consideration of the obligation sued on, the judgment of the district court has long ago become final, and the basis upon which it rested can not now be inquired into. Plaintiff has got himself into trouble by his own neglect, and we can not relieve him.

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

Rehearing refused.


text:
    No. 4475.
    Mrs. C. Ryan et al. vs. Carl Kohn.
    Tho husband of plaintiff died in November, 1869. She married a second timo in 1881, and was silent and inactive up to December, 1871, as to her own and her child’s rights against the surviving partner, tho defendant in this case, except in her tacit and active ratification of the liquidation of the said partnership, and receiving tho share reported tó be due to the succession of the deceased partner.
    It is not seen how the interests of the surviving minor (one having died after the father) have been injured by defendant’s payment to tho widow, without requiring her to qualify as natural tutrix before doing so, as she did not have to give a bond ; and qualifying as tutrix would not, as to him, have made the payment any more secure to the said minor, who, in any event, would have a mortgage.
    Under such circumstances, and after such a lapse of time, the defendant should not bo made liable to pay twice what he seems to have paid in good faith and in an amicable manner, apparently to the satisfaction of tho widow and mother, and should not bo held responsible for her failure to qualify as natural tutrix until in 1871, just before the institution of this suit.
    Tho payment to plaintiff was good as to her own rights as widow in community and hoir to tho deceased minor, and it should also be held good as to the surviving minor.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      B. B. Borman, for plaintiff and appellant.

      Clarice, Bayne & Ben-shaiu, for defendant and appellee.
   Howell, J.

In December, 1871, plaintiff, Mrs. C. Ryan, in her own right and as tutrix of her minor child, sued the defendant for a settlement of the partnership of O. Kohn & Ryan and for the sum of $8447 10, with legal interest from the first of January, 1860, and such further balance as may be found due. The answer admits tne alleged partnership and the death of O. W. Ryan, the partner, in November, 1859, and avers that the affairs of the partnership have been liquidated 'and settled up by the defendant, the books subject to the inspection of the plaintiff, accounts rendered to her from time to time, and all sums accruing placed to the credit of the minor with the assent of plaintiff, who has taken possession of the same. An auditor was appointed to examine the books of the firm, and the plaintiff excepted to the introduction of his report in evidence. It is unnecessary to pass on the grounds of objection, as we think the judgment of the lower court, in favor of defendant, is sustained by other evidence. We think it satisfactorily shown that the portion due the deceased partner, on settlement of the partnership, has been accounted for oy the defendant, and a part thereof placed to the credit of the plaintiff, with her approval, in the house of H. Bonnabel, conducted by her mother, and drawn therefrom by her as she wanted it, and the balance deposited in the New Orleans Savings Institution, in the name of the minor, which has since been withdrawn by the plaintiff.

Under these circumstances, and after such a lapse of time, the defendant should not be made liable to pay a second time what he seems to have paid in good faith and in an amicable manner, apparently to the satisfaction of the widow and mother, and he should not be held responsible for her failure to qualify as natural tutrix until in 1871, just before the institution of this suit.

Her husband, O. W. Ryan, died in November, 1859; she married a second time in 1861, and was silent and inactive up to December, 1871, as to her own and her child’s rights against the surviving partner, except in her tacit and active ratification of the liquidation of the said partnership and receiving the share reported to be due to the succession of the deceased partner. We fail to see that the interests of the surviving minor (one having died after the father) have been injured by defend-ant’s payment to the widow without requiring her to qualify as natural tutrix before doing so, as she did not have to give a bond, and qualifying as tutrix would not, as to him, have made the payment any more secure to the said minor, who in any event would have a mortgage.

The payment was good as to her own rights as widow in community and heir to the deceased minor, and we think it should be held good as to the surviving minor.

Judgment affirmed.


text:
    No. 5861.
    William Cullinan et al. vs. City of New Orleans.
    Section sixty-nine oí an ordinance oí tho city of New Orloans entitled “ An ordinance to establish the rate of licenses for professions, callings, and othor business, and for carriages, hacks, drays, and othor vehicles, for the year 1875,” is tho authority relied on by defendant to levy a license tax on tho vehicles owned by plaintiffs severally, and for seizing the same for non-payment — which seizure is enjoined by said plaintiffs.
    That portion of section sixty-nine which relates to the subject of this controversy is in conflict with article 118 of the constitution, as the tax for the license is in proportion to tho number of vehicles and the number of horses used to draw them, and not upon the business or vocation, nor is it upon the value of the proporty, if it bo intondod as a property tax.
    As for the other sums claimed by the city in reeonvention, as being taxes levied under said ordinance upon tho vocation or business of tho plaintiffs, they amount to only one hundred dollars against each plaintiff. This claim, therefore, is not within tho jurisdiction of this court, the legality of the tax as to that matter not being called in Question.
    APPEAL from the Superior District Court, parish of Orleans. Haw-Mns,J.

      Thomas J. Cooley, for plaintiffs and appellees.

      Samuel P. Blanc, Assistant City Attorney, for defendant and appellant.
   Howell, J.

The plaintiffs have joined in a suit enjoining the city of New Orleans from collecting a license tax on the vehicles owned by them severally, or seizing the same for non-payment of said license, on the ground that the ordinance imposing the said license tax is unconstitutional for want of uniformity.

The city reconvened, and asked judgment for the taxes enjoined, and for other sums levied under said ordinance upon the business or vocation of the plaintiffs.

The title of the ordinance is “ An ordinance to establish the rate of licenses for professions, callings, and for other business, and for carriages, hacks, drays, and othor vehicles, for the year 1875.”

The portion of section sixty-nine relating to the subject is as follows: “ Tho owner or owners of vehicles used in the way of business for transportation of goods, wares, and any articles and materials, shall pay the following sums per annum for licenses: On every express or transfer wagon, dray, or cart, drawn by one horse only, ten dollars; by two or more horses, twenty dollars; on every float, drawn by one horse only, fifteen dollars; by two or more horses, twenty-five dollars. * * * On every four-wheel spring wagon, drawn by one horse only, ten dollars; by two or more horses, fifteen dollars. On every beer wagon, fifteen dollars.”

Under the authority of the State vs. Endover, 23 An. 663, these provisions are in conflict with article 118 of the constitution, as the tax for the license is in proportion to the number of vehicles and the number of horses used to draw them, and not upon the business or vocation, nor is it upon the value of the property, if it be intended as a property tax. See 23 An. 449; 23 An. 726; 24 An. 112; 26 An. 140.

That part of the reconventional demand for the additional sum of one hundred dollars against each plaintiff is not within our jurisdiction, the legality of the tax not being called in question.

•Judgment affirmed.

Rehearing refused.


text:
    No. 5780.
    State ex rel. Carondelet Canal and Navigation Company vs. James G. Brown, Administrator of Public Accounts. The Mississippi and Mexican Gulf Canal Company made Party.
    The relator applied to the proper officer of the oity of New Orleans to record his judgment, in compliance with an act of the Legislature passed in 1870, requiring that all judgments against the city bo recorded in the proper department of the city government. On the refusal of that officer to do so, relator asked for a mandamus against him. whereupon said officer answered that relator’s judgment should not be recorded as affecting tho city’s entire property, but only the taxes which might bo collected for account of the Mississippi and Mexican Gulf Ship Canal Company, and took a rule in this mandamus proceeding on that company to show cause why relator should not be paid from the drainage funds.
    The company excepted to the rule. The court a qua erred in not maintaining tho exception and in ordering? that the judgment be paid from the drainage funds. A third party can not be brought in to answer a call made upon an officer to perform a mere ministerial duty.
    Tho decree ordering that relator’s judgment be recorded was correct. But there it should have stopped. Out of what funds the judgment was to be paid, it was not the province of the district judge to inquire, as he did, in the proceeding which was before him.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      H. D. Ogden, for relator and. appellee.

      Samuel P. Blanc, Assistant City Attorney, for respondent and appellee.

      Lacey & Butler, for the Mississippi and Mexican Gulf Canal Company, appellant.
   Morgan, J.

In June, 1871, plaintiff obtained judgment against the city for §12,500, with five per cent interest per annum from the twenty-second of February, 1864, till paid. On appeal this judgment was affirmed.

In 1870,. extra session acts, p. — , the Legislature passed an act by which it was required that all judgments against the city should be recorded in the proper department of tho city government.

The relator applied to the proper officer of the city to record his judgment. This he refused to do. Relator asked for a mandamus to compel him to perform his duty. Thereupon he answered the relator’s demand, saying that the judgment should not be recorded as affecting the city’s entire property, but that it should only affect the taxes which might bo collected for account of the Mississippi and Mexican Gulf Ship Canal Company, and he took a rule in this mandamus proceeding against that company to show cause why the relator should not be paid from the drainage funds.

The company excepted to the proceeding. The exception was dismissed, .and judgment was rendered in favor of the relator, and it was decreed that the judgment should be paid from the drainage-tax fund.

The exception should have been maintained. We do not understand that a third party can be brought in to answer a call made upon an officer to perform a mere ministerial duty.

The decree ordering that judgment should be recorded was correct. But there we think it should have stopped. Out of what fund the judgment is to be paid, it was not in our opinion the province of the district judge to inquire in the proceeding which was before him.

It is therefore ordered, adjudged, and decreed that the judgment of the district court, in so far as it orders th'e Administrator of Public Accounts to record the judgment referred to by the relator, be affirmed, and that as regards the fund out of which said judgment is to be paid, it be reversed, and that the rule taken by the defendant against the Mississippi and Mexican Gulf Ship Canal Company be dismissed, appel-lee to pay costs.


text:
    No. 5889.
    Malvina D. Stone vs. the Faculty of the Medical Department of the University of Louisiana.
    In this suit on a mortgage promissory not; the defendants allege in answer that they'are not a corporation, and the faculty is not liable individually.
    On the second of April, 1835, an act of the Legislature was passed, incorporating the Faculty of the Medical College of Louisiana and tne Medical College of Orleans with the usual powors and rights. By repeated legislativo enactments since that epoch, under our successive constitutions, that same corporate existence, now known as the "Faculty of the Medical Department of the university of Louisiana,” has been continued, so far, at least, as to preserve the rights of their creditors, with whom the faculty have dealt as shown in this act.
    APPEAL from the Superior District Court, parish of Orleans. Haw-Mns, J.

      William, H. Sunt, for plaintiff and appellee.

      Gibson & Gibson, for defendant and appellant.
   Howell, J.

This action is based on the following note, secured by mortgage:

New Orleans, April 21,1852.
“ One year after date the Faculty of the Medical Department of the University of Louisiana promise to pay to the order of Mrs. Eliza C. Johnson the sum of four thousand five hundred dollars, with interest thereon at the rate of eight per cent per annum from date until paid, for value received.
“ (Signed) THOMAS HUNT, Dean of the Faculty.”

Payment of the interest was made annually up to 1862, inclusive, and then in I860 and up to 1872, inclusive, a portion of the principal being paid at times.

The defense is that the defendants are not a corporation and tho faculty are not liable individually.

Judgment was given against the'defendants, and they appealed.

On the second of April, 1835, the Legislature passed an act entitled “ an act to incorporate the Faculty of the. Medical College of Louisiana and the Medical College of Orleans,” which conferred the usual corporate powers, rights, etc.

In 184.7, under the provisions of the constitution of 1845, the Legislature passed “an act to establish in the city of New Orleans tho University of Louisiana,” which specially recognized and continued tho Medical College of Louisiana as it was then organized and established by law, constituting it one of the departments of the University, but preserving its distinct organization. The constitution of 1852 provided that tho University of Louisiana as then established should be maintained.

The act of 1855, re-enacted in 1870. did maintain tho Medical Department of the University “ as at present organized and established.” The provision of said acts relative to the transfer of the property of tho Medical College to the University is conditional, and it is not pretended that the condition has been complied with.

Under these legislative enactments, we think the corporate existence of “ the Faculty of the Medical Department of the University of Louisiana ” has been continued, so far, at least, as to preserve the rights of their creditors, with whom the faculty have dealt as shown in this case.

Judgment affirmed.


text:
    No. 5709.
    State of Louisiana vs. Moses Harvey.
    On the trial oí this ease objection -was made by the defendant to. the admission in cvidonco oí tho written deposition oí a witness, taken before tho committing magistrate and offered by the State, on the ground that the constitution of tlio united States, as woll as that of Louisiana, gives every accused person on trial the right of being confronted face to face by the witnesses against him, and that such proceeding as was had in tho case deprives him in effect of said right.
    The court a g.u,a did not err. Before admitting the deposition it was proved that the witness was absent and could not be found; that, on the preliminary examina-, tion, he testified in prosonco of tho accused; that his testimony was reduced to writing, read to and subscribed by him in the presence of the accused, and attested by the committing magistrate. This seems to bring the ease within the common-law rulo to tho offoct “ that if duo diligence has been used, and it is mado manifest that tho witness has boon sought for and can not bo found, or if it bo proved that he was subpenaed and foil sick by tho way, his deposition may bo i’cad, for that, in such caso, he is in tho samo circumstances with regard to tho party that is to use him as if ho wore dead.”
    APPEAL from tlio Superior Criminal Court, parish of Orleans. Atocha, J. Criminal case.

      P. William Kramer, for defendant and appellant.

      A. P. Wield, Attorney General, for plaintiff and appellee.
   Howell, J.

Tho defendant has appealed from a judgment sentencing him to imprisonment at hard labor in the State Penitentiary for the term of four years for the crime of manslaughter, and he urges before u» a bill of exceptions taken to the admission in evidence of the deposition-of one George Morris, taken before the committing magistrate and offered by the State.

The ground of objection is “that tho constitution of the United States, as well as that of Louisiana, gives every accused person on trial tho right of being confronted face to face by witnesses against him, and that such proceeding in effect deprives him of suoli right.”

Before admitting the deposition it was proved that the witness was absent and could not bo found; that on the preliminary examination ho testified in presence of the accused- that his testimony was reduced to writing, read to and subscribed by him in presence of the accused, and attested by the committing magistrate.

■ This seems to bring the case within the common-law rule to the effect “ that if due diligence has been used, and it is mado manifest that the witness has been sought for and can not be found, or if it be proved that he was subpenaed and fell sick by the way, his deposition may be read, for that, in such case, ho is in the samo circumstances as to the party that is to use him as if ho woro dead.” See Archbold’s Criminal Prac-tico and Pleading, seventh edition, vol. 1, p. 479, note(l); B. N., p. 289; Hawk. P. C., b. 2, c. 46, sec. 18.

If the accused had tho witness “ faco to face ” on the preliminary trial and had the opportunity to cross-examine him, his constitutional right, invoked by him, is not violated by the introduction, on the final trial, of the deposition of such witness, where it is shown tnat the witness can not be produced. Otherwise it would bo in the power of the accused to deprive the Stato of tho testimony of all witnesses against him by preventing their attendance through some undue influence, or tho State would be deprived of the proof by tho death of the witness; for trie constitutional right would apply equally in both cases, and thus convictions might never bo obtained.

Wo are constrained to say that the judgo did not err in admitting the deposition.

Judgment affirmed.

Rehearing refused.


author: Taliafeero, J.

text:
    No. 6100.
    Amelie Theriot vs. P. E. Michel.
    Tho motion to dismiss this appeal on the ground that there is no legal order of appeal, the judge not having signed the order, has no force. Tho appeal ivas taken by motion in open court, and the order rendered and ontered on tho minutes did not require tho signature of tho judge to give it validity.
    The plaintiff claims by virtue of a judgment to havo a lien and privilege for supplies furnished on a plantation owned and cultivated in partnership by and between himself, Mrs. widow Michel, and P.-E. Michol, her son,which privilege and lien he maintains to exist, for tho amount of his judgment, on tho share owned by Mrs. Michel in said tract, and he prays to have it enforced against the said share and interest of his debtor in said plantation, which said debtor .has fraudulently transferred to hor son by an act of sale alleged to be null and void!
    This court is of opinion that there was no partnership in the land cultivated by Mrs. Michol, by plaintiff, and P. E. Michel, but that thoywere joint owners of it. It was used by common consent for carrying on tho cultivation of sugar through a partnership which was dissolved by tho seizure and sale of P. E. Michel’s portion in the land by one of his creditors, but the land cultivated by tho partnership was no part of said partnership. It was only the use of the land which was brought into partnership.
    Tho doctrine followed on this point has been applied by this court to the ease of part owners of steamboats employed In carrying persons and property for hire, and it has been held, in the absence of an express stipulation to tho contrary, that the use of the steamboat only is brought into the partnership, and not the property and ownership of the boat, which remains in the part owners as tonants in common, subject,however,to the privileges which the law granted in certain' cases to the creditors of tlio partnership.
    As to tho plaintiff’s allegation of a fraudulent sale made by Mrs. Michel to the defendant, said plaintiff, after having by a formal authentic act recognized defendant’s title, is estopped from now attacking it, and from seeking to subject the land he holds under it to the payment of his judgment against Mrs. Michel.
    APPEAL irom tho Eifteenth Judicial District Court, parish of Terre-bonne. Beattie, J.

      Bwrguieres & Suthon, for plaintiff and appellant.'

      Charles W. DuBoy, for defendant and appellee.
   Taliafeero, J.

In this case there is a motion to dismiss on the ground that there is no legal order of appeal, the judge not having signed the order.

The objection has no force. The appeal was taken by motion in open-court, and the order rendered and entered on the minutes did not require the signature of the judge to give it validity. The motion to dismiss is overruled.

Orr the Merits.

This action is brought by the plaintiff, a judgment creditor of Mrs. Celina Michel, to annul a sale of land made by her to her son, the de- ’ fendant in this case, on the ground of fraud; the plaintiff alleging that' the sale was made for the purpose of placing- the property beyond his reach and to prevent his recourse against it to make the amount of his judgment, averring that his debtor, Mrs. Michel, has no other property from the proceeds of which his debt can be realized. He further avers that in virtue oí his judgment based upon his claims for supplies furnished a plantation owned and cultivated in partnership by and between himself, Mrs. Widow Michel, and P. E. Michel, he has a lien and privilege upon the said share of land owned by Mrs. Michel for the amount of his judgment, the same being for the portion or share of her liability to him for the supplies furnished by him for cultivating and conducting the business of the planting partnership. He therefore prays that the sale from Mrs. Widow Michel of her undivided one-third of said plantation to her son, the defendant, be declared null and without effect, and that it be made subject to his claim, evidenced by said judgment against Mrs. Michel, that his lien and privilege be recognized and enforced against the said share and interest of Ms debtor in the said plantation, and which part and share be sold to pay and satisfy Ms judgment as aforesaid.

The defendant denies all the allegations of the plaintiff’s petition. He alleges that long before he became owner of Ms mother’s share and interest in the plantation referred to by plaintiff, the partnership theretofore existing in the planting business as alleged by plaintiff had been dissolved by the seizure and sale (under execution at the suit of his creditors) of P. E. Michel’s share and part of the plantation.

Defendant denies specially that the land and plantation used in cultivation for the partnership formed any part of the partnership assets, but was the separate property of the partners as joint owners and not entering into or composing partnership property. He specially denies that plaintiff has a lien or' privilege -on the interest and share in said land and plantation acquired by defendant from his mother. He alleges that on the —— day of February, 1875, he, as owner of an undivided third of the land and plantation, and the work animals, farming utensils, etc., and. the plaintiff in like manner as owner of the other two-thirds of the property, made a verbal partition of all the personal property belonging to the plantation, such as horses, mules, stock of every kind, fanning implements, gear, etc., and aftorward, in the same month and year, he and plaintiff entered into a notarial act of provisional partition of the land, plaintiff taking two-thirds, the defendant one-third. The defendant contends that by this act, and the division of the personal property between himself and plaintiff, the plaintiff recognized the sale of the one-third of the plantation by his mother to him, and thereby ratified and acknowledged its validity, and that plaintiff is estopped from disputing the defendant’s right to the proporty, having in an authentic act acknowledged that right.

The defendant specially avers that Ms mother owns other proporty, which plaintiff might make his debt out of, and that he has no right to" proceed against defendant’s property.

Judgment was' rendered in favor of the defendant, and the plaintiff has appealed.

We think it clear there was no partnership in the land cultivated by-Mrs. Michel, the plaintiff, and P. E. Michel; but that they were joint owners of it; that it was used by common consent for carrying on the cultivation of sugar by the partnership, which was dissolved by the seizure and sale of P. E. Michel’s part of the land by one of his creditors; that the land ■ cultivated by the partnership made no part of the partnership property is illustrated by the caso of Owens vs. Davis, 15 An. 22, where this court said: “ This doctrine has been applied by this court to the case of part owners of steamboats employed in carrying persons and property for hire; and it has been held, in the absence of an express stipulation to the contrary, that the use of the steamboat only is brought into the partnership, and not the property or ownership of the boat, which remanís in the part owners as tenants in common, subject, however, to the privileges which the law granted in certain cases to the creditors of the partnership.”

Neither do we think the plaintiff was entitled to a privilege upon the land as furnisher of supplies. The plaintiff, after having by a formal authentic act recognized the defendant as owner of the undivided third part of the land, is estopped from attacking the defendant’s title to it, and from seeking to subject it to the payment of his judgment against Mrs. Celina Michel.

The decree of the lower court we regard as having been properly'rendered.

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


author: Moegak, J.

text:
    No. 5914.
    Philip Avegno vs. George A. Fosdick.
    Being sued on certain promissory notes, the doiondant pleaded tho general issue. Subsequently, with leave ol the court, he filed a supplemental answer, in which ho set up want oí consideration. Tho supplemental answer changed tho issue, and no testin'.ony could bo heard under it.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      W. B. Koontz, for plaintiff and appellee.

      Bentinclc Egan and L. Madison Bay, for defendant and appellant.
   Moegak, J.

The defendant, sued on several promissory notes, pleaded the general issue. Subsequently, with leave of the court, he filed a supplemental answer, in which he set up want of consideration.

On the trial defendant offered evidence in support of his plea of want of consideration. Plaintiff objected to tho introduction of the testimony, upon the ground that the supplemental answer changed the issue, and that no testimony could be heard under it. Tho objection was sustained, and the evidence rejected. To this ruling the defendant excepted, and reserved his bill. The case comes up to us upon the legality of the judge’s refusal to allow the testimony to be heard.

In Calvert vs. Tunstall, 2 La. 207, tho court refused to allow tho defendant to withdraw a general denial and plead a want of consideration. In Babcock vs. Shirley, 11 L. 74, where a general denial was pleaded, and subsequently, by consent, subject to tho final judgment of tho court as to its admissibility, failure of consideration was pleaded, the court refused to allow the amended answer.

These decisions rest upon the articles of the Code of Practice which prohibit amendments which change the issue. C. P. 419, 420.

Under these decisions and the articles referred to, the ruling of the district judge was correct.

Judgment affirmed.


text:
    No. 6118.
    State ex rel. Hugo Redwitz vs. Judge of the Sixth District Court, Parish of Orleans.
    This is a cpies.tion of jurisdiction turning on the amount in dispute. This depends, of course, upon the sum which Redwitz, the appellant, is called upon to pay, to wit: $491, amount of the claim against him, eight, dollars interest duo, and tho costs of tho suit, sovonty dollars, in Gottsehalk vs. Meyer, a foreign non-rosi-dont, for whom Redwitz wont security. Therefore the sum demanded of Rod-witz was $569. This was tho dispute between thorn. This brings the 'ease within tho jurisdiction of tho court.
    APPLICATION for a writ of mandamus against the Judge of the Sixth District Court, parish of Orleans.

      B. B. Forman, for relator. Respondent, Judge Saucier, in propria persona.

      Labatt, Aroni & Clinton, for Gottsehalk, plaintiff in the i ule on Redwitz.
   Morgan, J.

Suit was instituted by Gottschalk against Meyer for $491. Meyer was arrested as a foreign non-residont. Redwitz went on his bond. The amount of his bond was $625, Judgment was rendered against Meyer for $491, with eight dollars interest and costs.

. Gottsehalk took a rule on Redwitz to show cause why he should not be condemned to pay him $491, and eight dollars interest and costs of suit and costs of the rule.

The rule was made absolute. Redwitz applied for an appeal, which was refused on tho ground that the amount in dispute does not exceed five hundred dollars. He applies for a mandamus to compel the district judge to grant the appeal.

What is the amount in dispute? This, depends, of course, upon tho amount which Redwitz is called upon to pay. What is that amount? It is $491, amount of tho claim, eight dollars interest duo, and the costs of the suit in Gottschalk vs. Meyer. These costs are seventy dollars. Therefore the sum demanded of Rodwitz was $569, and this was tho dispute between them; i. e., whether Redwitz should pay $569. This brings the case within our jurisdiction.

It is therefore ordered, adjudged, and decreed that the rule herein taken be made peremptory.


text:
    No. 6092.
    Joseph O. Toups et al. vs. Edward Meegel.
    Attar a ease has boon submitted by a party on the merits, he will not bo permitted to flic a motion or to raise new issues, unless such authority be granted or reserved to him at the time he submits the ease.
    Tho attempt to invalidate tho title of plaintiffs to the property described in their petition is a failure. Bourgeois, from whom they derive their title, acquired in May, 1858, a good ono from Ifees, which was duly recorded, and tho protended salo from Kees to Meeg-el by private act in 1883 was a nullity, because it was tho sale of the property of another.
    APPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.

      C. Knobtoch, for plaintiffs and appellees.

      E. TV. Blake, for defendant and appellant.
   Wyly, J.

Plaintiffs’ motion to dismiss this appeal can not be considered, because, although made within the three judicial days, it was made after the case had been submitted on the merits by their own counsel, and without any reservation being asked or granted to file such motion. After a case has been submitted by a party on the merits he will not bo permitted to file a motion or raise new issues, unless such authority bo granted or reserved to him at tho time he submits the case. This is a petitory action which the plaintiffs bring for the property described in the petition.

Plaintiffs acquired it on the twenty-sixth of February, 1872, by notarial act from Pierre Bourgeois, who bought it from Absalom Kees, by notarial act on the sixth of May, 1856, both of said acts being duly recorded on the days of their respective dates.

The author of defendant’s title, Frederick Meegol, acquired tho property from Absalom Kees, by act under private signature, of date April 11,1863, which was not recorded until the twenty-fifth of October, 1865.

Thus plaintiffs hold title by notarial act from Absalom Kees, duly recorded on the sixth of May, 1856, and defendant sots up title from tho same source, by private act of. date eleventh of April, 1863, and recorded twenty-fifth of October, 1866.

Defendant pleads fraud and simulation in the title acquired by Bourgeois oh the sixth of May, 1866. He alleges that said act was never intended to be serious; no price was paid, nor possession given; that Kees never ceased to exercise ownership and possession; that he, defendant, acquired the property from the succession of Frederick Meegel, at public sale, by order of a court of competent jurisdiction, in 1868, and that he and the immediate author of his title have been in peaceable possession since the tenth of April, 1863.

The attempt to invalidate the title of plaintiffs we regard as a failure. Bourgeois acquired a good title in May, 1856, which was duly recorded, and the pretended sale by private act in 1863 was a nullity, because it was the sale of the property of another. By the succession sale of 1868 defendant only acquired the title of the succession of Frederick Meegel, and if the deceased had no title, as we have stated, defendant acquired none.

The cases in 24 An. pages 324 and 445, cited by defendant, are not applicable.

It is therefore ordered that the judgment herein in favor of plaintiffs bo affirmed with costs.


author: WyLy, J.

text:
    No. 5118.
    City of New Orleans vs. John W. Cannon.
    It is proved that lot No. 21, in square No. 217, bounded by Carondelet, St. Charles, St. Joseph, and Julia streets, upon which the taxes are elaimod, belongs, as stated by ‘ defendant, to the Poydras Peínale Orphan Asylum; that the same was leased for fifty years to R. W. Montgomery in 1856, and that defendant holds under said lease. The lessoo is not liable for the taxes.
    APPEAL from the Superior District Court, parish of Orleans. Haw-lám, J.

      Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      R. II. Marr, for'defendant and appellant.
   WyLy, J.

This is a controversy for city taxes. The defense is that the property taxed does not belong to defendant; that ho holds it merely under a lease, the owner being the Poydras Eemale Orphan Asylum. It is proved that lot No. 21, in square No. 217, bounded by Carondelet, St. Charles, St. Joseph, and Julia streets, upon which the taxes are claimed, belongs, as stated, to the Poydras Female Orphan Asylum; that the same was leased for fifty years to R. W. Montgomery in I860, and that defendant holds under said lease. The lessee, is not liable for the taxes. 18 An. 513; 23 An. 445; Revised Code 2702.

Plaintiff, however, contends, under tlio authority of tho caso of S. P. Russ, decided during last term, that the buildings and improvements on the leased premises erected and owned by defendant .are subject to taxation, and defendant is bound therefor. That question may arise when, plaintiff presents an assessment thoroon against defendant, but here tho assessment is on lot No. 21, in square No. 217, bounded by the streets mentioned. The question is not, therefore, in this casa

It is therefore ordered that the judgment herein in favor of plaintiff be annulled, and it is ordered that plaintiff’s suit be dismissed with costs.


author: Ludeling, C. J. Wvly, J.,

text:
    No. 6094.
    Mrs. Anne Ford vs. Mrs. Anne Kittredge.
    Till) defendant pleads that plaintiff’s claim has not been recognized by any court, and that individual creditors can not suo a discharged administrator to ronder him. liablo on his bond, at least not until ho has rendered an account. This court «an not indorse these views of the law. No one can take advantage of his own laches or tort; it is this nogleet or dereliction of duty which gives tho right of a personal action against the administrator.
    APPEAL from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.

      LeBlano & Guión, for plaintiff and appellant.

      Nichols & Folse, for defendant and appellee.
   Ludeling, C. J.

The plaintiff, a recognized creditor of the succession of Kittredge, sued the defendant personally on her bond for tho amount of her claim against the succession. The defendant filed the exception that no cause of action is stated in the petition. .The petition, which is quito lengthy, contains in substance the following allegations among others: That sho is a recognized creditor of the succession for eight thousand dollars with interest; that the defendant was appointed ad-ministratrix of the succession, and that in said capacity she committed gross acts of maladministration to the injury of tho plaintiff to the extent of her debt; that she wasted the property of the succession and has sold and disposed of all the property of the succession, amounting to upward of three hundred thousand dollars, and that sho has neglected and refused to render an account or to pay the creditors, and that for her neglect and maladministration she was dismissed from her office; that she has purchased at the sales of the succession property, for cash, property to tho extent of one hundred and ninoty-ono thousand dollars, for which she has never accounted, and the remainder of the property, or a large portion thereof, has been purchased by tho heirs and others, who have not been required to pay the price, although the terms of sale woro cash. Sho avorrod that the succession was solvont when oponed, but that all the property has been alienated without paying tho creditors. These allegations would seem sufficient to authorize a personal judgment against the administratrix if established by proof. But the defendant says plaintiffs claim has not been recognized by any court, and that individual creditors can not sue a discharged administrator to render him liable on his bond, at least not until he has rendered an account. We can not indorse these views of the law. No one can take advantage of his own laches or tort; it is this neglect or dereliction of duty which gives the right of a personal action against the administrator. In Parmelee et al. vs. Brashear, 16 La. 72, this court said: “It has boon contended that the plaintiffs ought first to have provoked the filing of an account and tableau of distribution by the curator. This would have been very requisite if they, had sought a recovery from the estate administered by him. But the "sole object of the present suit is to recover from the surety of the curator, personally and out of his private property, the damages which they have sustained by the breach of the condition of the bond.” In Elliott, Administrator, vs. White, which was a suit against the surety on a curator’s bond, the defendant excepted that tho district court was without jurisdiction, and that a suit could not bo instituted on the bond until the parties to it have been called upon to comply with its conditions and asked to render an account, etc. Tho court said: “ Tho bond is conditioned for tho due and faithful administration of the estate; the breach it assigns is a failure therein. It becomes the duty of tho defendant to show a due and faithful administration of tho estate of Ms principal.” 5 La. 322; 8 La. 211; 10 La. 26.

The substance of the allegation of the petition is that she has been damaged by the breach of the conditions of defendant’s bond, and a sufficient causo of action is stated.

“ It was the duty of tho curator and Ms representative to account and deliver the amount in Ms hands. For tho performance o'f this duty ho gave bond. * * * This he has not done; and, as a breach of tho condition, the surety is liable to a suit, although neither tho curator nor Ms surety has been sued for .a settlement.” 5 M. 330; Denys vs. Armitage.

It is therefore ordered that the judgment of tho lower court bo sot aside, and that the exception bo overruled, and that tho caso bo remanded to be tried according to law, appellee to pay costs of appeal.

Rehearing refused.

Wvly, J.,

dissenting. Plaintiff, the holder of a note for eight thousand dollars, made by E. E. Kittredgo, duly acknowledged by the adminis-tratrix of his succession, sues tho defendant, who has been destituted of tho office of administratrix, solely for the purpose of recovering a personal judgment against her individually. The court dismissed the suit on the plea that the petition shows no cause of action, and the plaintiff appeals.

It was at the suit of plaintiff that defendant was destituted of the office of administratrix, on tho ground that she failed to file an account of her administration within twelve months. See the case reported in 26 An. 190.

Defendant contends that plaintiff’s claim was only allowed by her; that it never was established contradictorily with creditors and heirs on a tableau of distribution; that there has been no judgment of court requiring her to pay said claim, and there is no ground stated in tho petition which would authorize plaintiff to recover a judgment against her individually. She admits that since she was destituted of the office of administratrix she is iiablc to account to her successor, when appointed, but she denies that she is liable to account to plaintiff or any other creditor.

An ordinary creditor, who has obtained a judgment or an acknowledgment of Iris dobt, can only obtain payment of it concurrently with other creditors. O. P. 987. When tho time of paying creditors shall have- arrived tho administrator shall call together all the creditors of the succession in the manner provided by law to receive what is due them. C. P. 988.

It is the duty of the probate judge on the application of creditors, or any one of the creditors, to cause, on tho requisite advertisement being made, the sale of so much property of the estate as may be necessary to pay the debts. C. P. 990.

When a judgment shall have been rendered for a sum of money against an administrator, such administrator shall, within three days after tho judgment has been notified to him, if he has a sufficient amount in his hands, discharge tho amount of the judgment. C. P. 1053.

If an ordinary debt, the curator or administrator shall pay the amount of such judgment concurrently with the other debts of the succession, by applying to the judge of probate for a convocation of creditors in tho manner prescribed by law, that he may distribute among them the sums which may be in his possession. C. P. 1054.

If the administrator have no funds in his hands, he shall inform the 'sheriff when the judgment is notified to him that he has not funds to ■satisfy it. C. P. 1055.'

“ Tho party obtaining the judgment may thereupon make a motion to ■the court that the curator or executor shall be compelled to prove the truth of his declaration by filing in court, within a time to bo specified, a brief statement of Ms condition as administrator or executor with regard to the said succession.” O. P. 1056.

• “ If tho curator, testamentary executor, or administrator refuses or neglects to pay the amount for which judgment has been rendered in one of the modes pointed out in the preceding articles, or if he fails to prove that ho has no funds in Ms hands belonging to the succession, tho party in whose favor the judgment was rendered may take out an execution against Mm, under which his property to a sufficient amount to pay the debt shall be seized and sold.” C. P. 1057..

In Lobit vs. Castille, 14 An. 779, tMs court held, that where an administrator against whom a judgment has been rendered fails to prove that he has no funds in Ms hands, the creditor may take out execution against such administrator’s individual property, but to do so it is necessary that the judgment should be notified to Mm and a rule taken on him in his official capacity. “ That where the remedy is resorted to of having the administrator dismissed from office and sentenced to pay interest and damages, he settles with Ms successor in office, and not with the creditor who has provoked the dismissal. The regular mode by which an ordinary creditor is to obtain payment of his judgment against an estate is concurrently with other creditors. This implies that an account and tableau of distribution should be filed, wherein each creditor may be classed, in order that he may receive his portion of the funds in the hands of the administrator. Where a creditor declines to pursuo tho ordinary remedy, and pursues the administrator personally by a resort to tho penal provisions of the law, he must bring Mmself within them before he can demand the penalty. The classification and order of payments referred to in the C. P 993 is that mentioned in a preceding article, 988, and the case is contemplated where the administrator has funds and is ordered to pay the same to the creditors according to their rights, and not a case where tho funds are not in the hands of tho administrator at the time of such classification.”

Jn Lockhart vs. Wall, Administrator, 14 An. 273, where tho defendant failed to comply with the order of the clerk requiring him to filo an account, and plaintiff instituted suit to make tho defendant personally liable for failing to file tho account and for failing to inform tho sheriff whether ho had funds to pay the debt, this court said: “ We are not aware of any law which renders tho administrator personally liable for the debt on Ms mere negloct to comply with tho ex parte order of tho clerk to file his account, and as tho law has not denounced tho penalty claimed, we can not maintain this ground as tho basis of the action. • * * * There was no decree against tho administrator to pay over any sum of money to the plaintiff or any one else; for the clerk was without judicial powor to do more than homologate the account As, therefore, the defendant held no judgment ordering the administrator to pay him any sum of money, the notification of the clerk’s order homologating the account was an idle ceremony, which could not produce the serious result ascribed to it.”

Here the only complaint against the defendant is that she had not filed her account as required by law, and she has not paid plaintiff out of the funds in her hands the amount of the claim acknowledged by her as administratrix of tho succession of E. E. Kittredge. These are the only material facts alleged in the petition upon which plaintiff bases her demand for a judgment against the defendant personally. And these facts, on the plea that the petition discloses no cause of action, must be taken as true. The conclusion of law, set out in the lengthy petition of plaintiff, that from these facts the defendant has forfeited her bond and laid herself liable personally, are not to be taken as true, nor have they any bearing in the case.

We have then admitted: The defendant, as administratrix, acknowledged plaintiff’s debt of eight thousand dollars several years ago; she not only neglected to pay it, but she failed to file an account within twelve months, and was dismissed for thus failing to file her account at the instance of plaintiff.

This is the proposition disclosed in plaintiff’s petition, upon which the defendant is sought to be made personally liable. Does it warrant the conclusion that the defendant is liable ? Does it disclose a cause of action ? I think not. I can see no legal obligation to be enforced by tho court. The decisions in the fourteenth Annual to which I have referred are very clear on this point. The language of this court in those cases was —•

We are not aware of any law which renders the administrator personally liable for the debt on his mere neglect to comply mth the exparte order of the clerk to file his account, and as the laib has not denounced the penalty claimed, we can not maintain this ground as the basis of the action.”
That where the remedy is resorted to of having the administrator dismissed from office and sentenced to pay interest and damages, he settles with his successor in office, and not with the creditor who has provoked the dismissal.
The regular mode by which an ordinary creditor is to obtain payment of his judgment against an estate is concurrently with other creditors. This implies an account and tableau of distribution' should be filed, wherein each creditor may be classed, in order that he may receive his portion of the funds in tho hands of the administrator. Where a creditor declines to pursue the ordinary remedy, and pursues the administrator personally by a resort to the penal provisions of the law, he must bring himself within them before he can demand the penalty.”

In the case at bar plaintiff made no application to enforce tho collection of her debt in either of the modes indicated in tho articles of the Code of Practice to which I have referred; no order was rendered requiring the defendant to pay the debt; the defendant simply neglected to file her account within twelve months, and she incurred the penalty prescribed by law — she was dismissed from office. The law. does not proscribe, as an additional penalty, that^an administrator discharged for this cause shall become personally liable for the debts of tho deceased. Whore the law has not denounced this penalty for the failure of an administrator to lile an account, this court ought not to enforce it, because it is the duty of a court to enforce obligations, not' to make them. If tho law has not prescribed the penalty there is no obligation arising by operation of law in relation thereto; there is no obligation to bo enforced by the court. The dismissal of defendant from tho office of adminis-tratrix of tho succession of her late husband, E. E. Kittredge, for failing to file her account within twelve months did not of itself impose on defendant the legal obligation to pay the debts of his succession or bind her individually to pay them. The obligation of defendant to plaintiff in regard to the claim of the latter against the succession of E. E. Kitt-redge was no greater the day after defendant was destituted than it was tho day before. What was her obligation before she was destituted ? It was to pay tho debt of plaintiff out of the large amount of funds in her hands belonging to the succession (one hundred and ninety thousand ■dollars) the amount of the price of the adjudication of the succession property to herself; and this payment she was bound to make concurrently with other creditors by applying for. a convocation of creditors in the manner provided by law. Plaintiff, however, declined to resort to the ordinary remedy for collecting her debt from the administratrix, and she now seeks to make the destituted administratrix personally liable by a resort to tho penal provision of the law; but by the provisions in tho ■fourteenth Annual this can not be done, -because plaintiff has not brought herself within the requirements of those provisions and she can not “ demand the penalty.” Plaintiff did not require a tableau of distribution; -she did not obtain a judgment directing defendant to pay the amount of her debt; she did not'notify a judgment to defendant and by rule require defendant to pay it out of the large amount of succession funds on hand. Failing to comply with these provisions, plaintiff can 'not demand as a penalty that defendant shall be made liable for tho )debts of the deceased. The administratrix, who was discharged merely for failing to account, in my opinion, is only liable to account to her successor in offico, and not to any creditor, for tho large amount of succession funds remaining in her hands according to allegations of plaintiff.

But plaintiff insists that defendant has forfeited her bond, and therefore recovery may be had in this action. This is a conclusion of law which is not admitted by tho plea; there is no cause of action disclosed in the petition.

The facts alleged by plaintiff are for the purpose of this trial assumed to be true. But those facts, if true, under the authorities I have quoted do not warrant the conclusion that the defendant is personally liable to plaintiff for the debt of eight thousand dollars owing by the deceased.

The facts that defendant with one hundred and ninety thousand dollars in hand belonging to the succession, tho Juice of the property adjudicated to herself, refused or neglected to pay plaintiff tho amount of tho acknowledged debt, and failed to file an account within twelve months, if admitted, would not justify tho conclusion that defendant had Incurred personal liability for the debts of her husband. But the plaintiff asserts in her brief that the suit is based on the bond, and tho violated obligation thereof is the cause of action.

I do not find that the suit is on the bond of tho administratrix. But that is immaterial. For if the allegations of tho petition be admitted, and they are not sufficient to fik the personal liability of the defendant, plaintiff’s action must fail; the court can give no, relief. If tho law bo that ah administratrix, who, with ample funds in hand, has merely failed to pay an acknowledged creditor and has also failed to filo an account within twelve months, is not rendered thereby personally liable for tho debts of the deceased, then there is no legal obligation that can bo on-forced against such administratrix, it matters not what bond or other writing plaintiff may assert is the basis of the suit.

The surety on the bond is not sued.

The bond does not enlarge the individual responsibility of tho admin-istratrix. The law regulates that. Tho bond is tho security which slio gives for the faithful discharge of tho duties imposed by law. It is intended to respond for the penalties or liabilitios imposed by law on tho administratrix.

If in the case at bar the law does not impose the penalty of personal liability under the facts stated in the petition, tho circumstance that tlio, bond is asserted to be the basis of tho action will not strengthen the case or make out a cause of action.

If those decisions in the fourteenth Annual can bo relied on as true expositions of the law, and they seem clearly to conform to tho textual provisions of the Code of Practice, plaintiff has no cause of action against the defendant, admitting the facts stated in the petition to bo true, because the complaint is, defendant, with ample succession funds in hand, failed, merely to pay plaintiff, an acknowledged creditor, and also failed to file an account within twelvo months, for which slio was destituted. These facts are not sufficient to render defendant personally liable for the debts of her husband.

Plaintiff relies on the decisions in 5 M. 629; 8 N. S. 510; 5 L. 322; 8 L. 211; 11 L. 329; 16 L. 72; 19 L. 383. These decisions relate mainly to tho jurisdiction of the court and to the liability of sureties on tho bonds of curators and administrators. In not one of them do I find a case disclosed liko the one at bar. Those decisions do not conflict with tho cases which I have quoted from the fourteenth Annual; nor do they affirm that where the allegations fail to disclose a cause of action against an administratrix personally the statement in the petition that tho ad-ministratrix has forfeited her bond or tho assertion in the brief that the suit is on tho bond will strengthen the caso or give a cause of action.

In my opinion the learned judge a quo did not'err in dismissing tho suit on the plea that tho petition discloses no causo of action. I therefore dissent. ,


author: MORGAN, J.

text:
    No. 6093.
    Consolidated Association of the Planters of Louisiana vs. Emmanuel Chol.
    It is roauirod by tho law that ths affidavit to the absonoo of tho district judgo bo mado by plaintiff, his agent, or attorney. Horo it was made by the plaintiffs’ attorney. This fulfills tho roguiroment of tho law. After having signod tho po-tition as attornoy, it was not necessary that ho should reiterate his capacity in tho affidavit.
    It has repeatedly been held that, as regards the executory process, this court will not look beyond the authority of tho act upon which the flat issued.
    APPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Knobboh, Parish Judge, acting in the absence of tho District Judge.

      J. Lavergne, for plaintiffs and appellees.

      John 8. Billiu and E. W Blalce, for defendant and appellant.
   MORGAN, J.

Joseph Morran and wife mortgaged by public act a certain property to the plaintiffs. The mortgage was executed on the olev-.enth of Juno, 1829. The property passed through various conveyances to several parties, until it came into the defendant’s possession, when it was seized under executory process. In all of the acts of transfer plaintiffs’ right of mortgage was acknowledged.

Defendant appeals from the order of seizure and sale on various grounds. But if plaintiffs had the right to seize the property in whatever hands it might bo found, and tho original act of mortgage is authentic, and tho debt is still duo, the objections of the defendant, except as regards tho right of tho parish judge to issue the flat, need not bo considered.

The objection to the issuing of the order of seizure and sale is, that the affidavit to the absence of the district judge is not made by plaintiffs, or by any one styling himself their agent.

The petition is signed by “ J Lavergne, attorney for petitioners.” The affidavit to the absence of the district judge is signed by J. Lavergne. It is required by the law that the affidavit to the absence of the district judge bo made by the plaintiff, his agent, or attorney. Here it was made by tho plaintiffs’ attorney. This fulfills the requirement of the law. After having signed tho petition as attorney, it was not necessary that he should reiterate his capacity in the affidavit.

Ok the Mesits.

Wo have repeatedly held that, as regards tho executory process, wo will 'not look beyond the authenticity of the aot upon which tho fiat issued. Hero the act is authentic. The matters set up in defense here can not bo urged on an appeal.

Judgment affirmed.

Behearing refused,


author: Taliaeerro, J. MORGAN, J.,

text:
    No. 6050.
    State ex rel. M. Morgan’s Sons vs. the Board of Liquidators.
    Tlie ease of tho State of Louisiana vs. the North Louisiana and Texas Railroad ¡Company, 25 An. p. 85, disposes of tho presont one, and in that easo this court held that tlie State has, by making the net No. 108 of 1808 tho basis of its suit, recognized and affirmed its constitutionality in regard to the adoQUato ways and means provided for tho payment of the eurront interest and the principal of tho bonds, and it also held that the act No. 97 of 1872 was not unconstitutional.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      B. F. Jonas, for relators and appellees.

      A. P. Field, Attorney General, and J. Q. A. Fellows, for respondents and appellants.
   Taliaeerro, J.

This is a proceeding by mandamus taken against tho Board of Liquidators, known as the Funding Board, to compel them to fund bonds issued to the North Louisiana and Texas Bailroad by the State under authority of act No. 108 of 1868, approved September 26, .1868. Tho relators aver that they hold these bonds to the amount of $110,000. The Funding Board declined taking action on the application of the relators to fund these bonds, on the ground that by the provisions .of the supplemental funding act passed at the extra session of 1875 (act No. 11 of the extra session) the Board of Liquidators were prohibited from funding these bonds until their validity should be established by a final judicial decree. The judge a quo issued an alternative Writ of mandamus, to which the Attorney General, on the part of the Funding Board, responded by general denial and the averment that the act No. 108 of 1868 is in violation of article 114 of the constitution, and call® for strict proof of the relators’ allegations. Ho prays that the mandamus he refused, and the writ dismissed at relators’ costs. Judgment was rendered making the writ perpetual, and ordering the Board of Liquidators to receive and fund the relators’ bonds in conformity with, law. On the part of the Funding Board the Attorney General prosecutes this appeal.

In the case of the State of Louisiana vs. the North Louisiana and Texas Railroad Company, 25 An. p. 65, this court held that “the State Mias, by making the act No. 108 of 1868 the basis of its suit, recognized and affirmed its constitutionality in regard to the adequate ways and means provided for the payment of the current interest and the principal of the bonds.” By this decision also wo held the act No. 07 of 1872 was not unconstitutional. We think the decision in that case disposes of the one before us. In that case the State, having made the act No. 108 of 1868 the basis of its action, affirmed its-validity, and can not now question it. Sec the case of the State vs. Richard Taylor, recently decided.

It is therefore ordered that the Judgment appealed from bo affirmed with costs.

MORGAN, J.,

dissenting. I do not think that the ease at bar is governed by the decision of the case of the State vs. the North Louisiana and Texas Railroad Company, 25 An. p. 65. I do not find from an attentive perusal of the opinion therein pronounced that the constitutionality of the act No. 108 of the acts of 1868 was therein put at issue or passed upon. The court said that “the defense rests solely upon the act No. 97 of 1872.” The court also said: “ This is a controversy between the State, which issued the bonds, and the railroad company for whose benefit they were Issued, and the holders of the bonds and their rights are not before us. Nor is there any claim before us to enforce the payment of any of said bonds.”

The allegation in the petition is that the bonds which relators wish to have funded are good and valid obligations of the State, issued in accordance with legislative authority and in compliance with prescribed conditions, and that they were bought by the present holders in open market, and for a good and valid consideration.

.. The answer denies generally, pleads that the act No. 108 of the acts of 1868 is unconstitutional, and calls for strict proof of the allegations contained in the petition.

The issue joined then was—

First — That the obligations are valid obligations of the State; and

Second — That relators bought them in open market, before maturity, and for a good and valid consideration.

Relators held the .affirmative of this issue, and they were bound to establish it. They have not, in my opinion, done so. I find no evidence in the record to show when they bought the bonds, or how, or that they gave any consideration for them. Failing in this, I think their suit Should bo dismissed.

Rehearing refused.


author: Taliaeebbo, J.

text:
    No. 4699.
    John G. Neely & Co. vs. T. L. Airey & Co.
    The defendants received the draft sent to thorn for collection, aecopted the agency, bnt failed to have protest made and notice given as it was their duty to do. It is shown that, at the time the draft was-presented, the drawees had funds of the drawer in their hands, and that the next day theyVeceived from him a shipment of cotton.
    It was the duty of defendants, as the agents of plaintiffs, to have promptly acted in causing protests to he made and notices given, especially to the drawer of the draft, in order to hold him, hut by their laches the plaintiffs have lost their recourse against him upon the draft.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Merrick, Face <£• Foster, for plaintiffs and appellants.

      Hays & New, for defendants and appellees.
   Taliaeebbo, J.

The defendants are sued for one thousand dollars, with interest from twenty-fifth December, 1871, which indebtedness the plaintiffs allege to have arisen from this cause : They aver that in the capacity of executors of D. S. Stacey, deceased, they were the legal holders of a certain draft for one thousand dollars, drawn on the eighth of December, 1871, by A. N. Gould, on Garrett, Craig & Co., in favor of the' plaintiffs, payable five days after sight; that they transmitted the draft to their merchants and agents in New Orleans with instructions to present and collect it, and to place the proceeds to the credit of the estate of D. S. Stacey on their books, and that they accepted the agency. They aver that their merchants received • the draft in due time, but that they failed to present it for acceptance and payment in proper time, and failed to have it duly protested for non-acceptance and non-payment, and to have due notice given to the parties for the protection of the rights of the petitioners and others; that by this neglect the petitioners have lost their recourse against the drawer of the draft, and have to seek their recourse against the defendants, who have become liable to the plaintiffe for the amount of the said draft.

The defendants excepted that plaintiffs have no canso of action against them, and answer by general denial.

Judgment was rendered in favor of the defendants, and plaintiffs appealed.

■ The case turns mainly on questions of fact. We have examined tho evidence without being able to And anything to enable us to concur with the judge a quo in rendering judgment, in favor of the defendants. They received tho draft sent to them, accepted the agency, but failed to have protest made and notice given as it was their duty to do. It is shown that at the time the draft was presented the drawees had funds of the drawer in their hands, and that the next day they received from him a shipment of cotton. It was the duty of defendants, as the agents of plaintiffs, to have promptly acted in causing protests to be made and notices given, especially to the drawer of the draft, in order to hold him, but by their laches the plaintiffs have lost their recourse against him upon the draft. 19 La. 370; 10 Martin 707; 8 L. 552; 11 Rob. 213.

It is therefore ordered that the judgment appealed from be annulled and reversed. It is further ordered that the plaintiff recover from tho defendants, in solido, viz.: from T. L. Airey, A. T. Janin, and O. Thornes, composing the commercial firm of T. L. Airey & Co., the sum of one thousand dollars, with legal interest from tho twenty-fifth of December, 1871, and costs of suit in both courts.

Rehearing refused.