text:
    No. 8131.
    State of Louisiana ex rel. McGee, Snowden & Violett vs. Judges Court of Appeals, Parish of Orleans.
    This Court, under the supervisory power granted to it by Article 90 of the present Constitution, and in the exercise of the original jurisdiction thereby vested upon it, can compel by Mandamus an inferior Court to try a case over which the latter has decided it has no jurisdiction, and which is not appealable to this Court.
    A case decided by the late Sixth District Court for the Parish of Orleans, in January, 1880, in which the demand was for less than $500, could not be appealed from to the Court of 'Appeals after the organization of the latter. In default of provisions in the Constitution of 1879, for an Appeal under such circumstances, the judgment of the District Court was final. *
    APPLICATION for Writ of Mandamus.

      Kennard, Howe & Prentiss for the Relators.

      Mott & Kelly for the Respondents:
    Diret — The judgment of an inferior court upon any question which such court has jurisdictional competency to hear and determine, cannot be set aside by the Supreme Court by writ of mandamus.
    Second — The Court of Appeals for the parish of Orleans is competent to hear and determine questions concerning the extent of its jurisdiction; and from the final jungments of that ” Court upon such questions, no appeal lies to the Supreme Court, and a writ of mandamus can not be made to serve the purposes of an appeal.
    Third — The jurisdiction of the Sixth District Court of the parish of Orleans, from the date of the adoption of the Constitution of 1879, to that of the entering into office of the Judges of the Civil District Court, for the parish of Orleans, on the first Monday of August, 1880, continued the same as it had been prior to the adoption of the Constitution of 1879, and was final in all cases, when the amount in dispute did not exceed $500. .
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus. The relators aver that a judgment for $480, rendered against them by the Sixth District Court, was signed on January 9th, 1880; that they have appealed therefrom to the Court of Appeals for the parish of Orleans; but that said Court has refused to entertain jurisdiction of said cause, on the ground that no appeal in January, 1880, lay from said District ■Court to said Court of Appeals in such a case. They formulate the usual charges consequent upon unjust refusal, and pray that a manda-’ mus issue to compel the said Court to try and determine the cause on Its merits.

The respondents do not deny the facts set forth, but say that they have fully considered the cause, and that their judgment has become final, and, should the order prayed for be considered proper, under Article 90 of.the Constitution, the relief sought can only be, on a review of ■the judgment rendered, and that judgment avoided and annulled, and another judgment rendered by the reviewing tribunal, to accord with; the law, as declared by said authority. They opposed to their argumentative return the elaborate reasons assigned by'them in a given similar case, to justify the dismissal of the appeal in the case.

The answer draws in question the power of this Court, in an unappealable ease, to pass upon the propriety or impropriety of the refusal of a judge, or of judges of an inferior court, to try a suit when such refusal is based on the want of jurisdiction. The answer put at issue the correctness of the ruling, and inappropriately argues upon what should be the course to be pursued by this Court were the order sought considered proper.

It is not to be denied that, as a rule, to each court it appertains to decide questions of jurisdiction arising before it, and that its rulings remain final, unless in appealable cases, where, if erroneous, they can be corrected by the appellate court. Such would, undoubtedly, be our de■cision but for Article 90 of the Constitution, which declares that this •Court shall have control and general supervision over all inferior -courts, and shall have power to issue writs of certiorari, prohibition,, ■mandamus, quo warranto, and other remedial writs.

We consider that we are vested, under that article, with the pow■ers, not of an appellate court, which can pass upon the merits of an adjudicated suit, but of a supervisory court, which can ascertain the validity of proceedings before inferior courts, determine whether such -courts have exceeded the bounds of their jurisdiction, direct the judge or judges thereof to perform the duties of their office conformably to Jaw, and which can issue other remedial process. C. P. 855, 845, 829, Rem. 149, 187.

It is important to note that such control and 'general supervision-was never before delegated to any previous Supreme Court in this State. The jurisprudence on the subject of the issuance of writs of mandamus and other remedial writs, particularly since 1845, when some constitutional change intervened, should not, therefore, be always invoked as a guide to this Court in the exercise of such supervisory-powers.

One of the duties required by law of the judge or judges of a court, is to determine, in the exercise of a sound discretion, what the cases are-over which they have either an original or appellate jurisdiction. When they refuse to try such cases, because they consider that they have no-jurisdiction over them, the litigant who insists upon a trial, is not, under the new organic law, left without a forum before which to complain and by which to be relieved on a proper showing.

While the authorities are that in all matters resting within the jurisdiction of an inferior court, and upon which it has acted in an official capacity, a mandamus will not lie to review its proceedings or to-revise its rulings; yet where the matters in question are clearly within the power of the inferior court, but it refuses to exercise its jurisdiction, or to. entertain the proceedings, the writ will lie to compel the Court to act. Thus, where it is made the duty of an inferior court to entertain her appeals from justices of the peace, it has been held that a-mandamus will lie for a refusal to perform the duty. High on Ex. Rem., § 150.

A distinction is recognized between cases where it is sought by mandamus to control the decision of the inferior court upon the merits of a-cause, and cases where it has refused to go into the merits of the action, upon an erroneous construction of some question of law or of' practice, preliminary to the whole case. While the decision on the merits will not be controlled by mandamus, yet if the court has erroneously decided some question of law or of practice, presented as a preliminary object, and upon such erroneóus construction has refused to go into the merits of the case, a mandamus will’ lie to compel it to proceed. High on Ex. Rem. § 151; 7 An. 126; 4 R. 227; 9 An. 14; 17 An. 252; 20 An. 521; 30 An. 156.

These principles clearly apply to cases in which the right of appeal would be thwarted, and where justice and reason require that some-mode should exist of redressing a wrong or an abuse of any nature whatever, and where the power to enforce them is formally lodged in a court which has control and general supervision over all inferior courts, C. P. 830, Const. 90; High on Ex. Rem. 186, 188; 2 An. 979; 3 An. 716; 8 An. 92; 9 An. 250; 10 An. 420.

If we could not review, on an application fqr a mandamus, the action. of a court of last resort, declining jurisdiction over a case before it, what remedy would the complainant have, and what would be the instances on which this Court would have to exercise its supervisory powers, as relates to Courts of Appeals ? To decline hearing and relief, on showing in proper cases, would be practically to write out of the Constitution the wholesome provisions contained in article 90.

In two eases we have exercised that supervisory power, and have directed Courts of Appeals to try cases over which they had decided that they had no jurisdiction, and which we thought it was their duty to determine. 32 An. 774; and State ex rel. Harper vs. Judges, not yet reported, No. 8118, O. B. f.

Considering that we can review the ruling of the Court of Appeals in the form submitted, we will now proceed to inquire into its correctness.

It is clear that the Constitution took effect after the proclamation of its adoption. Art. 262. When it went into operation all laws consistent with it were expressly continued in force, Art. 258; but all laws-inconsistent with it were abrogated, except such as related to the duties-of the several officers, executive, j .dicial and military, which were to remain in full vitality until the organization of the new government, and the entering into office of the new officers, to be appointed or elected under said government, and no longer. Art. 259.

The article was adopted, in order that no inconvenience would result to the public service from the taking effect of the Constitution. The object was to bridge over the former government until the organization of the new government by the induction into office of all its officers. The continuance was to be general, unless in exceptional cases specially provided for. To prevent the apprehended and otherwise unavoidable inconvenience, it was that the offices and officers in existence were continued in esse, until the time came when the offices and officers, created by the Constitution, would supersede them. All the laws relative to those offices and officers were maintained in being until the happening of that event. No office, no officer was superseded; no law concerning either, even contrary to the Constitution, was to be by it abrogated until the organization of the new government had taken place.

Thus it is, that all the courts created by or under the- Constitution of 1868, and the judges thereof, as well as all the laws relative to them, were continued in force until the courts created by the Constitution of 1879 to supersede them were organized, and the judges thereof were inducted into office, and the laws relative to them became operative.

The Supreme Court, created by the Constitution of 1868, with the justices composing it, was continued in esse until the first Monday of April, 1880, when the Supreme Court, created by the Constitution of 1879, with the justices composing it, and until then in posse, was organized. All the laws, constitutional and statutory, in force at the adoption of the Constitution of 1879, except where it was expressly provided otherwise, were continued in existence, governing the old, until the organization of the new court. It was, however, provided that all causes pending before the late Supreme Court were to be transferred to the Supreme Court created by the new Constitution, as soon as it would be organized, and the late Court was directed to transfer at once to the Court of Appeals, in and out of the parish of Orleans, all the causes coming within the latter’s jurisdiction. Arts. 129, 261.

The case was the same with all the other courts, district, parish, and justices of the peace. The Parish Courts were to be blotted out of existence entirely. The system of District Courts was to disappear also. New District Courts were provided for, which were to supersede the Parish and the Districts Courts previously in existence. Their territorial jurisdiction was defined, and their powers were enlarged. They were given a probate jurisdiction, which they did not possess before, but their judgments were stripped of finality when in excess of two hundred dollars. There was also some provision relative to justices of the peace out of the parish of Orleans. As to those in that parish, they were to cease to have any further existence, and were to be replaced by the City Courts in civil matters. Such as entertained criminal jurisdiction, which could not be exercised by any other authority, were continued in existence. All the laws concerning the District Courts, the Parish Co'urts, the Justices’ Courts, and concerning the judges thereof, were likewise continued in force, until the courts created to replace them had been organized, and the j udges thereof inducted into office; • that is, on the first Monday of April, 1880, outside of the parish of Orleans, and the first Monday of August, 1880, within the parish of Orleans.

State ex rel. Hernandez vs. Pardee, 32 An. p. 638.

State ex rel. Cheevers vs. Duffel, 32 An. p. 649.

State ex rel. Howard vs. Walsh, 32 An. p. 1234.

State ex rel. Harper vs. Judges, 32 An. p. 1308.

State ex rel. Cobb vs. Judges, 32 An., 774.

State ex rel. Fredericks vs. Judge City Court, 33 An. ante p. 146.

Not so was it, however, with the Courts of Appeal. They were created by the Constitution of 1879, and sprung into existence upon its adoption, although the judges who were to preside over them had not even been elected. They were to succeed no court. They were in being. The Constitution required the Supreme Court to transfer to them at once all causes in which the matter in dispute would exceed five hundred, but not one thousand dollars, Art. 129, 261. They had no predecessors. Until the time of their respective organization, as already stated, until the induction into office of the judges who were to preside over them, their powers were dormant, and could not be exercised. They attached, however, at once to all cases which were transferable from the Supreme Court, but did not to cases in which five hundred dollars and less were involved, and which were pending before the District Courts, and which were to be decided before the day fixed for their respective organization; for, under the provisions of articles 259 and 266, the District Courts continued to have over them the same jurisdiction which they had before the adoption of the Constitution, and could decide them finalkj, provided it were before the organization of the Courts of Appeal.

The right of appeal in cases before the District Courts to the Court of Appeals did not arise in that class of eases before the organization of the latter, and could not be exercised if the eases had been decided before that organization, while it could be exercised in all cases in which the matter in dispute exceeded five but not one thousand dollars.

As long, therefore, as the late District Courts continued in existence in the parish of Orleans, they were clothed with final jurisdiction in all cases up to five hundred dollars; and what judgments they rendered and signed in such eases, from the adoption of the Constitution of 1868, up to the first Monday of August, 1880, when the Court of Appeals for the parish of Orleans was organized, and its judges entered upon the •discharge of their functions, were final and executory, and could not be reviewed by appeal.

Why is it that the Convention did not provide that in all cases involving more than two hundred dollars, up to five hundred dollars inclusive, without interest, and pending at the adoption of the Constitution, ■or instituted thereafter and before the organization of the Court of Appeals, parties litigant would be entitled to an appeal to these courts, is a q uestion on which we have no opinion to express.

Our duty is to ascertain what the instrument contains, and when we have done so, to expound its contents. We are powerless to supply deficiencies. To do so would be to arrogate to ourselves powers of judicial legislation, which we have neither the desire nor the authority to do.

It may well be that the members of that body never thought that by not providing in that manner, while they afforded redress to litigants in cases in which five hundred dollars plus a fraction, however incalculable, were claimed, they denied relief to another class of litigants, in ■cases in which five hundred dollars minus a fraction, however insignificant, were asked. It may well be also that they did consider the consequences of the omission, and deemed it wiser not to make the provision, as it would prove an innovation upon the condition of things-which the policy and object of the Constitution were to continue in-stat'd quo, until the organization of the new government in its several-departments.

Considering, therefore, that the judgment declared upon by the relators was rendered by the late Sixth District Court, for the parish of Orleans, under a system of laws, which authorized it to adjudicate finally in such cases, and that it did so adjudicate finally in the case-mentioned, and that the judges of the Court of Appeals, for the parish of Orleans, decided correctly in refusing to entertain jurisdiction over said case, and in striking it from their docket,

It is ordered that the application for a mandamus be refused at the-cost of the relators.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8094.
    State of Louisiana vs. Jackson Bruce.
    Evidence is admissible of an offer to compromise made by the accused, and of the reply thereto from the prosecuting witness, when the accused was notinduced by threats or promises to make the offer.
    The voluntary declaration made by the accused before the committing magistrate, is admissible'"against him on his trial for larceny.
    APPEAL irom the Ninth Judicial District Court, parish of Tensas. Hough, J. '

      Hiram B. Steele, District Attorney, and J. O. Hgan, Attorney General, for the State.

      Halsey & Newell, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of larceny, sentenced to-one year’s imprisonment at hard labor in the Penitentiary, and from this sentence has appealed.

The errors assigned are presented in two bills of exceptions, as follows:

1. That the court a qua erred in admitting the testimony of one Wyatt Hawkins, the prosecuting witness, to the effect that the accused offered him (the witness) sixty dollars to compromise the matter and the reply of the witness to such proposition.

2. That the court erred in admitting in evidence the voluntary declaration of the accused, made before the committing magistrate.

First. It appears from the bill of exception on the first point, that. the proposition to compromise was made by the accused to the witness. It is not shown nor charged that any threat was made or inducement, offered to the accused by the witness or any one else to induce the proposition for a compromise and the confession that might be implied: therefrom, but that the proposition was voluntarily made, and that the-statement of the witness in relation thereto, which was also objected to,. was a mere reply to the offer of the accused, and for this reason was -, admitted.

The rule upon the subject of the admissibility of declarations of' the accused, made with a view'to a compromise, is thus laid down by Wharton:

“ Difficult questions may arise where there is reason to believe that the confession was made with the hope of compromise, or of obtaining a lighter sentence. To exclude such confessions arbitrarily, would exclude almost all confessions. To work an exclusion there must he shown a causal connection between an authoritative promise and the confession.. If this be not shown, the confession is admissible.”

We think this rule the correct one; and when we apply the rule to the testimony complained of, we discover that it was clearly admissible.. So far from the offer of the accused to compromise being caused by any promise, it appears to have been made by the accused as an independent proposition, announced at the beginning of the conversation-had with the witness, and before he had spoken to the accused on the ■ subject. Nor do we see any objection to the admission of the reply made by the witness to the offer of the accused. It was properly allowed.

Second. The objection to the admissibility of the voluntary statement of the accused, made before the committing magistrate, was, that, the magistrate was not authorized to receive such declarations by the terms of article 1010 of the Bevised Statutes, where the party stood charged with an offense that might subject him to capital punishment- or imprisonment in the Penitentiary.

By the article in question jurisdiction was conferred on justices of the peace, as committing magistrates, in certain cases, with authority to make a preliminary examination, as to the guilt of the party brought before them, and to summon and swear witnesses, and to receive the voluntary statement or declaration of the accused for that purpose. Article 126 of the Oonstitution of 1879 did not abrogate this statutory provision. "On the contrary, it enlarged the authority of the justices of the peace as committing magistrates by extending their jurisdiction to all cases not capital and not necessarily punishable with imprisonment, in the Penitentiary, which would embrace the case at bar.

We have not been assisted in our examination of this case by an ■oral argument or brief from the defendant’s counsel. We have, however, diligently examined the record, and carefully considered every question pertaining to the regularity of the proceedings and the legality of the sentence, and find no error therein.

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

Levy, J., absent.


author: Todd, J. Todd, J.

text:
    No. 6654.
    Hermann Graf vs. Samuel Friedlander.
    [Plaintiff, as lessee oí a lot of ground, and Defendant as lessor of the same, agreed that the latter, at the expiration of the lease, would pay the former for buildings and. improvements'constructed by him on said lot of ground, a price to be determined by “ two disinterested persons, one to be chosen by each, etc.”

      Held that such an agreement is the law of the case between the parties, and, in the absence of a charge of fraud against the. so constituted experts, this Court will not disturb their finding,
    A PPEAL from the Sixth District Court, parish of Orleans. J. Bightor,

      Joseph P. Hornor and .Francis W. Baker for Plaintiff and Appellee.

      C. F. Buck and Max Dinhelspcil for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

On the 7th of March, 1871, plaintiff leased from the defendant certain vacant lots in New Orleans for the period of four years, ■at the rate of $1000 per annum, payable monthly. It was also stipulated in the same contract that the plaintiff should erect a house upon the premises, and upon the expiration of the lease the plaintiff could elect whether he would buy the lots from the defendant, or whether the defendant should take the building erected thereon; and the price to be paid by the one or the other, as the case might be, should be determined by “ two disinterested persons ” (quoting the language of the contract), one to be chosen by each of the parties; and in case of disagreement, they to choose an umpire whose decision would be final. The term of the lease was extended by consent for another year. Upon the expiration of this extension the plaintiff elected that .the defendant should take the building erected by the plaintiff upon the property under the provisions of the contract.

Each party selected, what is termed in the proceedings, an expert to. determine the sum to be paid by the defendant; and they failing to agree, called in an umpire, who fixed the sum at $1661 37. This award,' as it was termed, was signed by the experts and the umpire. The defendant being dissatisfied with this report, or award, as it is called, refused to pay the amount fixed therein, and this suit was brought against him to compel payment.

The defendant answered, admitting substantially the facts as stated above, but claimed that he was entitled to certain credits which the experts failed to consider, and that the experts had appraised the building too high, and such appraisement was made in the interest of the plaintiff, and to his, defendant’s, prejudice.

The case was tried before a jury who rendered a verdict in favor of the plaintiff for $1463 50, and from the judgment on this verdict, the defendant appealed. From the nature of the suit this Court is greatly restricted in its review of the ‘pleadings, and 'evidence to be found in the record.

The suit is not based on an award of arbitrators or amicable compounders appointed and qualified as prescribed by the articles of the Code upon the subject, nor was the award, as it is termed, and the proceedings relating thereto, in strict accord with the provisions of law.

The contract of these parties, however, was a law unto themselves. In that contract it was expressly stipulated that the amount to be paid by the defendant, in the event he took the house constructed on the leased premises, was to be determined in a certain way pointed out by the contract, namely, by the judgments and decision of the persons selected under the provisions of the instrument. By the terms of the instrument, the persons to be thus chosen for this purpose were clothed with full authority to fix and determine the matter to be submitted to them; and the contracting parties bound themselves expressly to abide by their decision. The persons, whether we call them arbitrators, amicable compounders, experts, or by whatever name selected as provided by the agreement, did make a valuation of the property, and did report the amount of that valuation. In the absence of charges of fraud in making their award, the plaintiff and defendant, parties to the contract, are bound by it, as they declared they would be. It may not have been the best mode of settling the matter in dispute contemplated by the parties, but it was the one chosen by them, and they must abide by the result. The jury by their verdict corrected an error committed by these experts in making their estimate, an error of calculation, and which is mentioned in the answer of the defendant; and this correction is conceded by the plaintiff’s counsel to be a proper one.

Under this view of the contract and the law governing it, we could not go into an examination of the voluminous evidence in the record, . admitted for a limited purpose, with a view of giving the effect to it urged by the defendant’s counsel. We were confined to a consideration of the contract between the parties, to which alone we must give effect.

We cannot allow the additional interest claimed by the plaintiff; 'the experts did not allow it, and we cannot.

The judgment of the lower court is, therefore, affirmed with costs.

On Application foe Eeheaeing.

Todd, J.

In our former decree no interest was allowed on the amount found to be due the plaintiff by the defendant. Further examination has satisfied us that legal interest should be allowed from the 6th June, 1876; the date of the award of the experts, which fixed the amount of the defendant’s liability, at which time the debt became ■ due. It is not necessary that the rehearing should be granted.

It is, therefore, ordered that our former decree rendered herein be amended by allowing five per cent interest per annum on the amount thereof, from the 6th of June, 1876, until paid.

Levt, J., absent.


text:
    No. 6697.
    M. A. Southworth vs. B. J. Flanders et al.
    "When the officers of a municipal corporation, clothed with legislative functions and having in tho exercise thereof, legislative discretion, exceed their power, by error of judgment, in a contract with a party, who had the same means of information as themselves about their capacity to contract, andfellinthe same error, — the said officers are not personally responsible to the other contracting party, for the non-performanoe of the contract.
    If an action lay in such a case against the municipal officers personally, it would be ex delicto and prescribed in one year.
    APPEAL from the Fifth District Court, parish of Orleans. Sogers, J.

      W. S. Benedict and Joseph P. Uornor for Plaintiff and Appellant:
    ■Public officers become personally responsible to third persons on contracts made for a city, when the city, retaining the advantages of the said contract, avoids payment through the said officers, on plea of want of authority to make such contract.

      G. U. Breen for Defendants:
    It is apparently useful and not illegal for the City of New Orleans to contract for the recording of judgments. This is not changed by the fact that the liens arising from taxes are otherwise recorded.
    -Administrators and Mayor of New Orleans cannot be held in damages for error of judgment in voting for or approving an ordinance.

      For official acts in the apparent and presumed discharge of their duty, city officers are not personally responsible.
    fie who voluntarily contracts with a city is bound to consider its powers, and cannot hold its offioers for mutual error.
    It is the duty of the City Attorney to present all legal grounds of defense in suits against the City. The Mayor and Administrators cannot control or restrain him from so doing.
    Members of a City Council cannot be sued jointly or in solido for their votes on a question.
    For official acts there is no joint or solidary liability, unless conspiracy, malice or fraud be alleged.
    ‘The responsibility of City Officers lor acts ultra vires is prescribed by one year.

      J. W. Thomas and J. S. WMtalcer on same side:
    "Where an agent is duly constituted and names his principal and contracts in his name, the principal is responsible and not the agent.
    He who contracts to do one thing and does another and different thing without authority cannot recover on his contract.
    ‘The recording of certified copies of tax.judgments, when contracted for, requires a fulfillment according to its terms.
   The opinion o£ the Court was delivered by

Todd, J.

The petition in this case alleges in substance :

That the defendants, who were the Mayor and Administrators of the City of New Orleans in the year 1872, are indebted to plaintiff in the sum of ten thousand dollars upon the following cause of action :

That said defendants, in their official capacity, passed city ordinance No. 1630 in the following words :

“ That the Recorder of Mortgages for the parish of Orleans is hereby authorized and directed to obtain, at his own expense, from the clerks of the District Courts, certified copies of all unrecorded and unexpired •tax judgments in favor of the City of New Orleans against real estate, and similar judgments for the amount of ten dollars and upwards against personal property, and to record the same in the mortgage office according to law; provided that the whole cost of said certificates or •copies of judgments and the recording thereof, shall not exceed seventy-five cents for each judgment, and provided that the amount contracted for, and appropriated hereby, shall not exceed ten thousand dollars.”

. Plaintiff was then the Recorder of Mortgages, and having accepted ■said contract, complied therewith at great expense, and is entitled to the compensation awarded by said contract.

That the City of New Orleans having failed to pay, suit was instituted by petitioner,which resulted in a judgment in favor of defendant, reported in 25th An., p. 333. He further avers, that the defense urged by the City in the said suit, and upon which the said judgment was rendered by the Supreme Court, was that the said city had no right under the law to make said contract, and was not bound thereby, and that said defense was so urged by the same administrators, as representing the said city, and that by reason of their acts, and of said judgment, they having exceeded the authority granted to them by law, have rendered themselves personally liable to petitioner for the amount of said claim.

The defendants excepted to this action on the following grounds :

First. No cause of action, in this, that said ordinance No. 1630 was not held illegal by the Supreme Oourt, but on the contrary, that the work was not done in accordance with the ordinance.

Second. That there is a misjoinder of parties, there being no allegation of fraud, conspiracy, combination or common design set forth in the petition.

Third. That in event the court holds there is a cause of action, then it is one arising ex delicto, and the prescription of one year is pleaded.

The court below for oral reasons 'maintained the exceptions and dismissed the suit, and plaintiff has taken this appeal.

Upon an examination of the decision in the case referred to in the pleadings, entitled M. A. Southworth vs. City of New Orleans, 25 A. 333, we find that that decision was not based upon the illegality of the ordinance in question, as alleged in the petition. In relation to the acts of the plaintiff, purporting to have been performed under the ordinance, and for which compensation was claimed from the city, the court uses this language : “ Instead of procuring and recording, according to law, certified copies of judgments, as directed in the foregoing ordinance, the plaintiff pursued the mode and followed the provisions in Section 12 of Act No. 73, above referred to. By said section a special mode was provided for recording the taxes due the city, but the work was to be performed by the city officials and employees without any cost to the city.”

A reference to Section 12 of the Act of 1872 mentioned, shows that it made no provision for the recording of tax judgments, as was required and provided for by the city ordinance under which the alleged services of the plaintiff were rendered. That section provided for the preparation, by the Administrator of Public Accounts, of registers of all taxes due and exigible, and td enable him to perform this work the Administrator of Finance, the Clerks, Civil Sheriff and all attorneys and ex-officers were required “ to turn over to him for his temporary use all bills, accounts, writs and records in their hands,” and the Administrator of Accounts was then required to “ enter, in duplicate, registers of all the necessary particulars and dates for recording and settlement of the accounts, including interest and costs incurred.”

But even had the court decided that the ordinance in question was unauthorized by law, it would not necessarily follow that by passing such ordinance the officers made themselves personally liable.

The general rule of law on this subject appears to be, that when officers of a municipal corporation, clothed with legislative functions, involving a legislative discretion, make a mistake as to the extént of their powers, a mistake which was shared by the party with whom they contracted, having equal opportunities ©f information touching the powers delegated to such officers, and there is nothing in the proceeding looking to personal responsibility, the officers in such case are not personally liable.

6 Gushing (Mass.) 56.

2 Greenleaf (Maine), 14; lb. 358.

27 Conn. 385.

11 Serg. & Bawle (Penn.) 126.

1 Parsons on Contracts, 57.

We see nothing in the allegations of the petition in this case to-except it from this well recognized rule.

There is nothing to show that the plaintiff was not fully informed, nor that he was designedly deceived by the acts or pretensions of the defendants; and finally, that he did not fully consent to the contract and-thereby voluntarily contribute to his loss or damage, if any he has incurred. *

Volenti non fit injuria.

There is still another reason why the action cannot be maintained. The prescription of one and three years is pleaded against it.

Had the contract imposed by the ordinance been a legal one, the plaintiff could have sued the city on such contract at any time within ten years. The theory of the suit, however, is that there was no legal or valid contract with the city, but on the contrary, that the officers exceeded their powers and were thus guilty of an usurpation of authority ; and such usurpation was a wrongful act committed towards the plaintiff, from which wrongful act or tort the loss or damage complained of by him has resulted.

This certainly constitues a quasi offense and a suit to recover the loss sustained thereby would be an action ex delicto, and as such prescribed by one year.

The. judgment appealed from is affirmed with costs.

The Chief Justice recuses himself in this case, having been of counsel.


author: Levy, J. Poché, J.

text:
    No. 6709.
    Chas. S. Sthele vs. Sarah M. Millspaugh.
    The Appeal in this case was made returnable on the first Monday of ^November. A Rule was taken in the lower Court by Appellee to have the order of Appeal set aside for cause. Pending this Rule, Appellant filed the Transcript in this Court, in September, before the return day. In October, the Rule was made absolute and the order of Appeal set aside 3jy the lower Court. Held that the Appeal comes to this Court without any order and should be dismissed.
    J^PPEAL from the Fourth District Court, parish of Orleans. Houston,

      Wm. Reed Mills for Defendant and Appellant.

      Chas. S. Rice for Plaintiff and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

The appellee moves to dismiss this appeal, for the reason, “ that at the time of filing the transcript of appeal, to wit: on the 11th of September, 1877 (though the return day of said appeal was fixed for the 1st Monday of November, 1877), there was a rule pending in the Sower court for the dismissal of said appeal, which rule was on the-day of-, 1877, made absolute, and said appeal dismissed, from which judgment of dismissal no appeal has been taken, and that said cause is, therefore, improperly pending in this Court;” and appellee exhibits as part of this motion a duly certified copy of the judgment of ¡said lower court dismissing the appeal.

The transcript of appeal in this case was filed in this Court on the 11th of September, 1877; the judgment of the lower court was signed on June 27th, 1877; a motion for appeal was made, and order therefor granted on the 28th of June, and an appeal bond filed on July 25th, 1877 (within thirty days from the signing of judgment), within which time an appeal from judgments of divorce can be taken. The appeal was made returnable on the first Monday of November, 1877. A rule was •taken on the defendant, appellant, and served on the 4th of August, 1877, to show cause (for the reasons set forth) why the order of appeal ¡should not be set aside and the appeal dismissed; the trial of this rule was, by consent of counsel, on the 7th of August, 1877, continued to the ■2d of October. In the meantime, before the return day fixed, the appellant filed the transcript of appeal pending the rule mentioned, and the original transcript does not show what action was had by the lower •court.

It is true this Court has appellate jurisdiction only, and is confined tío a consideration of the matters of fact contained in the record. It be‘comes seized of jurisdiction when the appeal bond is given in con■formity with law, which continues until its final disposition of the case, -or until it becomes divested by operation of law, or by legal effect of proceedings had in the lower court, as provided in the Code of Practice. In such matter as acquiescence pleaded to have been given by the appellant, the Court would remand a case for ascertainment in the ■lower court of such fact, or of any other fact not shown in the record. “Here the pendency of a rule to set aside the order of appeal is patent in the record, and during the continuance of that rule, with consent of appellant, to a day agreed upon by her, and, before judgment'was rendered on the rule, the transcript was filed, and our jurisdiction attached.

The appellee files in this Court, with his motion to dismiss, a certi■fied copy of the judgment of the lower court, setting aside the appeal, from which judgment no appeal has been taken, and which, by lapse of time has become final, and is res adjudicata as to the parties. The appellant did not choose to appeal from this judgment, adverse to her, and ■the appellee could not appeal, because it granted him fully what he had ••sought and prayed for. The duly certified copy of the judgment shows •distinctly that the order was set aside by the lower court before the ■expiration of the time within which the appeal was returnable, and the -appeal dismissed. To remand the case, for the purpose of ascertaining •the fact that such judgment was rendered, would, to our minds, be supererogatory, and regarding this fact as being incontrovertibly established, we think this Court is, under the circumstances, properly ■divested of jurisdiction by a proceeding taken in due season in the lower court. The motion of appellee to dismiss is sustained, and it is -ordered that the appeal herein be dismissed.

On Application por Rehearing.

The opinion of the Court was delivered by

Poché, J.

In this case appellant prayed for rehearing, and for ten ■days time to file grounds in support of his motion. The time expired on December 28, and no reasons have yet been assigned in support of the •application.

An examination of the recoad shows that on a rule taken by appellee, the order of appeal was annulled and set aside by the lower court, before the expiration of the delay for filing the transcript, for the reason of the insolvency of the security on the appeal bond. No appeal was taken from that decree, and it became final between the parties. The appeal, as it comes before us, is without an order of appeal, and w'e, ther&fore, find no error in the decree dismissing the appeal. The rehearing ds, therefore, refused.


author: Poché, J.

text:
    No. 7833.
    W. S. Benedict et al., Executors, vs. Thompson & Torjusen.
    A partnership between stevedores is not a commercial, but only an ordinary, partnership, and parties talcing the promissory note of such a firm, do it at their peril, if the partner who* issued the note, had no authority from his co-partner to do so.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,.

      Ghs. F. FLornor for Plaintiffs and Appellees.

      A. J. Lewis for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs, testamentary executors of the estate of R. Y. Charmbury, seek to recover of defendants in solido the sum of $3400, amount of several promissory notes, dated January and February 1879, alleged to have been executed by defendants, composing together a. commercial partnership.

The defendants filed separate answers.

Torjusen set up the plea of payment.

Thompson filed a general denial, followed.by a special denial of any partnership with Torj usen at the date of the notes, denying that he ever participated in, or in any manner authorized the execution of said notes, ■ or that he had any knowledge of them, or was in any manner benefited by them.

The judgment of the lower court condemned the defendants jointly, and Thompson alone appeals.

The important question to solve is whether there was any partnership or not. The evidence shows that the defendants were engaged in the business of loading and unloading vessels at the port of New Orleans, a class of men commonly known as stevedores.

If any partnership existed between them it was evidently an ordinary and not a commercial partnership. It has been'held that architects and ship carpenters, when associated together, were ordinary partners. 2 An. 623; 6 An. 423; 15 L. 152.

It is clear that persons engaged in the pursuit of loading and unloading vessels, cannot, when associated, be classed otherwise than ordinary partners.

The evidence further shows that in the year 1874 the defendants had contracted a partnership as stevedores, under the name and style of Thompson & Torjusen, and that this partnership had lasted two years.

After that time, the parties continued to work together, but the evidence is conflicting as to what were their relations from that time to the date of the execution of the notes in suit.

Only three witnesses testified in the case; and their testimony, when well' analyzed and carefully weighed and compared, fails to satisfy us that the defendants were partners at the time of the execution of the notes.

It is uncontested that Torjusen had no means, and that even during the partnership, from 1874 to 1876, all the funds and the tools necessary to the trade were furnished exclusively by Thompson.

And we are satisfied that from the year 1876 to 1879 Torjusen was merely an employee of Thompson, and that for his compensation he received a share of the profits, but was not liable for losses, and that, therefore, there was no partnership, and that Thompson cannot be held liable for the loans which Torjusen made,'or for the notes which he executed, even if he used the former partnership’s name and style. We •are satisfied that the funds borrowed were not used by Thompson personally, nor for the use of his business, and that the loan was made and the notes executed without his knowledge, authority or consent. Torjusen himself, the only witness who affirms the existence of the partnership at the time of the execution of the notes, admits that some of the funds borrowed were used for his personal wants or enterprise. In fact, his testimony, even .if not contradicted by the other witnesses, would •fail to prove any partnership between Thompson and himself.

Parties dealing with members of an ordinary partnership must be ■on their guard, as the right to use the partnership’s signature is not Tested in any one partner unless specially conferred. It was, therefore, •the duty of Charmbury, not only to inquire at his peril as to the continued existence of the former partnership between the defendants, but -also as to the authority under the contract of Torjusen to bind his partner. 5 M. 684; 1 L. 390; 1 R. 62.

It is not shown that Charmbury had ever dealt with the old firm of Thompson & Torjusen, or had had any business transactions with Thompson. The first money loaned by him to Torjusen was in January, 1878, more than a year after the dissolution of the firm.

As plaintifis seek to hold the defendants as partners, it was incum•‘bent upon them to prove the alleged partnership, and as they failed to •do so, they cannot recover from' Thompson.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended in so far as it condemns Thompson jointly with Torjusen; that plaintiffs’ demand be rejected at their costs as against Tho'mpson,,and that the judgment appealed from be affirmed in all other respects.

The Chief Justice recuses himself, having been of counsel in the ■•■succession of Charmbury.


text:
    No. 7893.
    M. L. Byrne & Co. vs. Their Creditors.
    In default of proper evidence in the Record, to show the value of the services of the notary, of* the Counsel of the syndic and of the Attorney of absent creditors, in the-Estate of an Insolvent, this Court will not disturb the judgment of the District Judge, which has fixed the respective amounts due for such services.
    Thesyndic may, in behalf of the mass of creditors, question the validity of the claims set up-by certain creditors in opposition to his Account and Tableau of Distribution.
    The charge of undue preference may be madQ by opposition, in the concurto of creditors, and. needs not necessarily be made by means of the revocatory action.
    The prescription of one year to the action inavoidance of a fraudulent confession of judgment,. only begins to run from the time that knowledge of said confession is brought home to the-party injured thereby.
    The rule of law in revocatory actions, that only such creditors can attack the validity of an act giving an undue preference, whose claims were in existence at the time of the illegal/ act, does not apply to a contest for the classification of claims in a concurso under insolvent proceedings.
    The law does not prohibit a creditor, who pays an actual and effective value at the moment of' the contract, from obtaining a privilege or security, because he has reasons to suspect the * inability of bis debtor to pay all bis debts.
    Nor does the law forbid a creditor holding such security to obtain the privilege by seizure,. provided for in Art. 722 of the Code of Practice.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor,. J.

      J. Bendernagel, notary, propria persona, Appellant.

      Albert Voorhies for Bichardson & Magruder, counsel of the Provisional Syndic..

      Cotton & Levy for the Syndic, and Henry P. Bart for absent creditors :
    Eirst — A transfer of property, or attempt to give one creditor an undue advantage over the-other creditors after the debtor has become insolvent, and before bis declared insolvency,, is a fraud on the other creditors, and void. * 1 M. 240; 3 M. 274; 4 M. 625; 4 M. 240; 10 M. 704 ; 4 H. S. 175 ; 2 La. 18 ; 4 La. 127; 10 An. 18 ; 23 An. 800.
    Second — A confession of judgment dates, as to third persons, from the time of filing same-in court, and a judgment by consent or otherwise is of no binding force as to them until" signed by the judge. 3M.390; 5 N. S. 105, 320; 4R.52; 7R.51; 2L.323; 13 L. 490; 1A,. 206; 6 An. 6; 3 A. 35.
    Third — Consent judgments decide nothing; are only binding as such between the parties, and. have not the effect of judgments regularly rendered contradictorily as regards third persons. 3 An. 34; 12 An. 426 ; 6 An. 2; 4 An. 276; 2 An. 907; 27 An. 496; 29 An. 732.
    Carroll & Co. vs. Hamilton, 30 An. 522.
    Miche vs. Armat, 15 An. 225.
    Union Bank vs. Marin, 3 An. 35.
    Lecarpentier vs. Lecarpentier, 5 An. 499.
    . nrth — A confession of judgment given within three and twelve months preceding the declared insolvency of a debtor falls within the provisions of R. S. 1804,1805,1808 and C. C. 1969,1978,1983, 1984,1986, 1987, and is, therefore, null and void. And a judgment by confession or otherwise inscribed against the debtor within ten days preceding his failure is absolutely null and void as to other creditors. C. C. 3362; 1 M. 193-207; 3 M. 39; 4 if, 264; 12 M. 666; 3 S. 381; 4 B. S. 369, 625; 7 B. 364; 9 Bob. 45; 14 An. 438.
    Bifth — A confession of judgment given by a debtor in insolvent circumstances, to the knowledge of the creditor, iollowed by execution thereon, gives no privilege so iar as the other creditors are concerned. 4 La. 249; 10 L. 370 ; 5 K. S. 620; 5 Bob. 290; 10 An. 18.
    Sixth — The syndic is the representative of all the creditors, and, as such, has the right in conjunction with other creditors in concursus to resist a claim which he believes not legally due by the estate, or not entitled to the privilege claimed. B. S. 1811. Bor is it necessary that, a direct action he brought for the purpose of setting aside or annulling the privilege claimed; creditors must establish their claims and rank in the concursus, where, in contemplation of law, they are all plaintiffs and defendants. 14 La. 250; 3 L. 533; 2 B. 541; 10 B. 474; 1 S. 481; 3 L. 559; 9 L. 387; 2 An. 451; 4 An. 195; 14 An. 218; 4 S. 632-40; 9 B. 45; 8 An. 371; 6 La. 83.
    Seventh — The order of court accepting a surrender is simply conclusive evidence of the debt- or’s failure; but tbe provisions of tbe law in reference to preferences given by insolvent debtors apply to all persons who are unahle to pay their debts; the condition at the time the preference is given being the test. 3 H. 364; 6 La. 83.

      H. Howard Me Caleb for D. R. Carroll, Opponent and Appellant:
    Birst — The syndic of an insolvent cannot question the yalidity or rank of a creditor’s judgment-on a final account and tableau of distribution. In a concurso each creditor acts for himself..
    Second — A revocatory action must be brought within one year after the contract complained of was entered into. In cases of insolvency, an alienation of mortgage made by the debtor within three months before his surrender cannot be annulled if the person in whose favor such contract was made “ prove that he paid a valuable consideration at the time.” A judgment obtained more than ten days before the insolvent’s surrender, even by confession, has effect against the other creditors.
    Third — Creditors, not such at the time the contract complained of was entered into, cannot avail themselves of the revocatory action, nor can the syndic as their representative.
    Bourth — A judgment not attacked for fraud or collusion is prima facie evidence against third persons.
    Bifth — A confession made long anterior to the judgment rendered thereon, for a valuable consideration, at a time not suspicious, must be respected. Consentjudgments are obligatory if made in good faith. A judicial mortgage results from such judgments, and so doe» “ the authority of the thing adjudged.”
    Sixth — A judgment creditor of an insolvent acquires a privilege upon the property seized, if such seizure was made previous to the debtor being declared a bankrupt — even though the judgment under which his seizure was made was obtained by confession.
    Seventh — Suspicion cannot invalidate a legal agreement where the evidence shows the good faith of the transaction.
   The opinion of the Court was delivered by

Poché, J.

The following appeals have been taken from the judgment of the District Court, amending and homologating the final account ' of the syndic in this cause.

1st. By John Bendernagel, the notary public, who complains that the court erred in reducing the amount of three hundred dollars, allowed him by the syndic, to one hundred dollars.

2d. By Richard F. Harrison and Joseph McElroy, receivers of the firms of Wallace, Cary & Co. and Wallace & Cary, who complain of the dismissal of their opposition to the tableau, on an alleged claim of six thousand four hundred and fifteen, dollars and twenty-five cents and interests ; which claim had been refused by the syndic.

3d. By D. R. Carroll who, by opposition to the tableau, had claimed to be placed thereon as a privileged creditor for $12,703 09, subject to a credit of $900, and who complains of the judgment of the court, under which his claim was allowed, but classed as an ordinary, and not as a privileged claim.

By an answer filed to the appeal, Richardson & Magruder, attorneys •of the provisional syndic, pray for an amendment of the judgment, under which their claim for fees was reduced from five hundred to two hundred and seventy-five dollars, and Henry P. Dart, attorney of absent creditors, also prays for an amendment of the judgment under which his fees were reduced from two hundred and fifty dollars to one hundred.

First — As to the notary’s appeal, the record shows that, under orders of the District Court, he made an inventory, of the property surrendered by the bankrupts, and that he held a meeting of the creditors of the estate and that both duties were laborious and necessitated voluminous writings. With proper evidence before us, we would be justifiable in increasing the amount allowed him. We find in a brief which he files in ¡his own behalf, a detailed bill of charges for the services which he-rendered, but as this bill was not presented and acted upon by the lower court, it comes before us in a shape under which it cannot be considered. This court cannot entertain original evidence. And, besides, the labor was performed under the orders and supervision of the District Judge, and without proof to the contrary we must presume that he correctly appreciated the services of the notary, and fixed a proper and reasonable compensation therefor, and we will not disturb that part of his judgment. For the same reasons we affirm those rulings in his judgment fixing the fees of Messrs. Richardson & Magruder, attorneys of the provisional syndic, and those of Henry P. Dart, attorney of absent creditors.

As to the appeal taken by Harrison and McElroy, receivers, we have not been favored, by brief or argument of their counsel, with any reasons or authorities to justify the reversal of the judgment in this particular. We have read the evidence introduced in the lower court in support of their claims, and find it conflicting and doubtful. It failed to satisfy us that the amounts claimed were for debts incurred since the composition of the bankrupts, to be hereafter referred to. It was the duty of the opponents to prove their claim with legal authority ; this they have failed to do, and the judgment dismissing their opposition is therefore correct.

The opposition of D. R. Carroll presents for our solution several questions which are not entirely free of difficulty, and on which the decisions of this Court are not all in perfect accord.

In his opposition to the syndic’s account, in which his claim had been entirely ignored or rejected, he alleges that he is the subrogee of Wallace & Cary to a confession of judgment for $12,703 19, made in their favor by M. L. Byrne & Go. on the 28th of November, 1878, as a •security for money loaned to them by said Wallace & Gary, in July and November, 1878, and that as such transferee, he obtained judgment on •said confession in the Fourth District Court of the parish of Orleans, on April 25th, 1879, and that on the next day he issued execution, under ■which the stock of goods of said M. L. Byrne & Go., situated in a store -at No. 163 Canal street, was seized and was in the possession of the -sheriff on the 10th of May, 1879, when his debtors made a voluntary surrender, under the insolvent laws of the State, of their property, which consisted mainly of said stock of goods. That under the order of the court staying his proceedings, the property, which had been seized under his •execution, was transferred from the possession of the sheriff to that of the syndic, by whom it was sold under the order of the court, and the proceeds of which form the fund now in process of distribution by the syndic, in the final account presented by him, and now under discussion.

He alleges a privilege on such proceeds, as a result of his seizure. ,

His opposition was met by an answer of the syndic, who urged the nullity of his judgment, and charged that it was the result of a scheme concocted by Wallace & Cary and M. L. Byrne & Co. to defraud the latter’s creditors, and that said confession was made by the bankrupts without legal consideration, at a time suspicious, when they were notoriously insolvent.

And, secondly, he urged that if any consideration had passed for ■such confession, the said Wallace & Gary, well knowing the insolvency of M. L. Byrne & Go., had thus sought to obtain an undue and unjust preference over the other creditors of the latter.

On the trial, Carroll objected to the admission of any evidence in -support of the averments in the syndic’s answer to his opposition, on the •grounds :

1st. That the syndic is without authority, after the filing of his final account, to plead in behalf of the creditors, and to question the validity •of any claims set up by creditors.

2d. That the attack on his claim, as an alleged undue preference, performed by an insolvent, cannot be made in this proceeding, but must be inaugurated by means of a direct revocatory action.

3d. That such action could not then have been maintained, because •more than one year had elapsed since the performance of the act complained of.

4th. That the claims of the other creditors had accrued since the •date of the act complained of.

Opponent quotes several authorities which bear him out in the denial of the right of the syndic to plead in such a case in behalf of the estate and of the creditors, but the weight of authority preponderates-in favor of the exercise of such right. He is the representative of the estate until discharged, and his duty requires that he should resist all claims which he suspects as unjust, fraudulent or otherwise defective. We cannot assent to the proposition that he is functus officio after the-filing of his final account; for then, frequently, begins the-struggle of vital importance to all the creditors to the fund in his custody; and the bona fide creditors are entitled to his assistance in such a contest. Nor do we understand that in meeting such issues as alleged, undue preference-conferred by the bankrupt, he should be confined to the direct revocatory action.

When the issue is directly made, as in this case, the creditor cannot-complain, as he then comes in the concurso, to assert his privilege, and he' must be ready then, if ever, to maintain his position.

Both upon reason and authority, we hold that the issue was properly made. 8 N. S. 532 ; 2 L. 28 ; 15 A. 582.

. The answer which assails the validity of opponent’s claim and judgment was filed on the 20th of January, 1880, and he urges that, as the confession of judgment in favor of Wallace & Cary had been made in November, 1878, more than one year had elapsed since the act was performed, and that, therefore, both syndic and creditors were debarred from the right of charging fraud or undue preference against the confession.

A plain answer to this pretension is in the fact that the confession of judgment was not brought to the knowledge of either syndic or creditors,, or indeed to any third parties before the 25th of April, 1879, from which event alone the time prescribed can, in reason or in law, be computed. The law can hold no one to impossibilities, which would be the very task imposed on a party if required to assail an act which has no existence as to him.

The right to plead in behalf of the estate and of the creditors being once recognized in the syndic, cannot be affected or modified by the riature, origin or the date of the claims of any creditor of the estate.. The rule invoked by opponent is applicable to a direct revocatory action brought by a creditor, and not to a contest for the classification of claims in a concurso under insolvent proceedings. 15 A. 582.

As it has now been demonstrated that the syndic had the right and' authority to assail the validity of opponent’s alleged priority over other creditors in the manner and form and at the time that he presented that issue, we have no other obstacle in the way of an investigation of the confession, the judgment and the seizure Which are held up by opponent. as the muniments of the privilege which he claims on the property of the-bankrupts.

The record discloses the following facts as bearing on this point:

In February, 1878, M. L. Byrne & Co. went into bankruptcy in the-TJ. S. District Court, and under the authority of the bankrupt laws, made a composition with their creditors, who accepted in full of their claims twenty-five cents on the dollar, payable in three installments, whereof' eight cents cash, and the balance by notes, maturing in July and November of that year.

At the maturity of the first installment notes, the debtors were unable to meet the payment thereof, whereupon they applied to Wallace &~ Cary, with whom they had had for years very close business relations,, and secured from them the loan of money needed for such payment. On the maturity of the second series of notes, which represented the-third and last payment under the composition, they were in the same-embarrassment as in July previous, owing to the complete stagnation of' business in New Orleans, resulting from the memorable yellow fever-scourge which devastated the city during that year ; and they again applied for assistance to Wallace & Cary, who again came to their relief with the necessary funds. But as the same cause had also produced a-depressing effect on the affairs of Wallace & Cary, they refused at the-second call to assist M. L. Byrne & Co. without some security for the-advances of funds made in both emergencies ; and the security agreed-upon was a confession of judgment for $12,703 19, exéeuted by M. L.. Byrne & Co., on November 28,1878.

In that transaction it was stipulated in substance that the amount confessed was to be paid by installments ranging from $333 33 to $500,. due and exigible at graduated and fixed periods, covering a space of time, extending from February 13,1879, to January 29,1880. And it was-further stipulated that if default was made in the payment of any installment at the stipulated time, the whole amount confessed would thereby, and at once, become due and exigible.

This security was transferred on the 3d of January, 1879, by Wallace & Cary to opponent, D. B. Carroll, for valuable consideration, as shown by his testimony and other evidence in the record.

In fact, we don’t understand the validity of this transfer to be questioned on appeal, and we shall treat opponent as entitled to all the rights-of Wallace & Cary, and liable to all the defenses which could be urged! against his transferrers. -

After his acquisition, D. B. Carroll received, in sundry remittances, an aggregate of nine hundred dollars from Byrne & Co. on account of his claim, and notwithstanding repeated defaults on their part to meet the stipulated installments, he continued to indulge them until the 25th, of April, 1879, when, under advice of Cary, one of his transferrers, of the impending storm gathering over the house of his debtors, he concluded to enforce the confession of judgment and to execute the judgment rendered thereon by seizing the property of his debtors.

The mere statement of these facts contains a refutation of the charge advanced by the syndic, that the confession of judgment was obtained Without consideration, with a view to defraud creditors, or with a view to secure past indebtedness and to obtain an unjust or undue preference.

The funds loaned were used for a legitimate, pressing and useful purpose,.and prevented the debtors and their property from reverting ■back into bankruptcy, as a consequence of a failure on the part of Byrne & Co. to execute the terms of their composition. The confession is ■shown to have been subscribed on the 28th of November, 1878, more than three months previous to the surrender or declared insolvency, and is, therefore, not to be tested under the law, which strikes with nullity such acts performed within three months previous to the failure of the debtor. »C. C. 3359.

We cannot accept the interpretation suggested by the syndic, in which he construes this article as referring to actual insolvency. The law does mot prohibit a creditor who pays a real and effective value at the moment •of the contract from obtaining a privilege or security, because, forsooth, ¡he has reasons to suspect the inability of his debtor to pay and satisfy all his debts. Nor does the law forbid a creditor holding such security from obtaining the privilege by seizure, provided for in Art. 722 of the 'Code of Practice. “ If the seizure created a privilege in those cases only in which the property of a debtor is sufficient to pay all his debts, the privilege would only attach in those cases in which it would be useless.” 3 R. 106 ; 7 Otto, 80.

We understand the test of all these laws to be found in the declared insolvency of the debtor. And although the testimony on this point is ¡somewhat conflicting, yet, after carefully weighing and considering all the ■statements bearing upon the transaction, it satisfies us beyond a reasonable doubt, that the transaction is free from any of the suspicions which are pointed out or suggested by the laws regulating contracts made by insolvent debtors immediately preceding their failure.

The law watches their movements with a suspicion in the interest of creditors, who are so often injured and jeopardized by well concocted ■schemes between unscrupulous creditors and unfortunate and dishonest debtors. Tested under this vigorous rule, the conduct of these parties is not in contravention of any law, and their contract must, therefore, be ■enforced.

It is, therefore, ordered, adjudged and decreed that the judgment •of the lower court bé amended in so far as it rejects the privilege claimed by D. R. Carroll, which privilege is hereby recognized, to be paid as second to the costs incurred for the sale of the property surrendered, and to law charges, and in preference over other creditors, and that in all other respects said judgment be affirmed; costs of this appeal to be paid by.the syndic, by John Bendernagel and by Harrison and McElroy, ratably. ' ■

On Application eor Rehearing.

Jno. Bendernagel, the notary public, H. P. Dart, attorney of absent creditors, and W. G-. Vincent, syndic of the insolvent estate, have presented an application for rehearing in this case.

The earnestness with which they press their appeal for relief from our decree has induced us to carefully review the whole ease, and to closely study our opinion, as well as the authorities of law which had guided our deliberations; and our conclusion is that our reasons have been sadly misunderstood in several instances by the applicants, who have honestly thought that they had discovered several inconsistencies in some of the positions assumed by us in the course of our reasoning in trying to unravel the difficulties of this intricate ease.

For instance, in reference to Bendernagel’s claim, we did not state, as he urges in his brief for rehearing, that he had failed to present the detailed bill of his services to the syndic, but our objection to considering such evidence on appeal was that the record failed to show that the detailed bill contained in his brief had been presented to, or acted upon, by the lower court, and we reiterated the familiar rule of law under which an appellate court cannot consider original evidence.

H. P. Dart complains of our refusal to amend the judgment of the lower court, so as to allow him a privilege on the assets of the estate, and invokes to his aid the provisions of Act No. 108 of 1857. But his rights are to be governed by section 1817 of the Revised Statutes, which as part of the insolvent law of the State, must determine the rights of all parties to the concurso, and specially provides that the fees of the attorney of absent creditors shall in no case be paid by the mass of creditors,” and “ shall in no ease exceed one hundred and fifty dollars.”

In reference to the confession of judgment by M. L. Byrne & Co., we distinctly stated, and we now re-affirm, that, being an act under private signature, it could have no effect as to third parties until presented to, and authenticated by, a competent court. But we referred to the date of its execution, merely as a means of testing the intention of the parties at that time — as a means of testing the knowledge or the suspicion of Wallace & Cary of the state of insolvency of M. L. Byrne & Go., and of ascertaining the object and the consideration of the confession. And our •conclusion, justified by the evidence, was that the confession of judgment was for the purpose of securing Wallace & Cary for funds advanced ■ at the time of the contract, and actually used for a legitimate purpose; •and that such a contract could not be invalidated, even if the creditors had reasons to suspect the insolvency of'their debtor.

Beyond this we gave no effect to the date of the execution of the •confession of judgment. Having thus concluded that it had been made in good faith, and was not tainted with fraud, or prompted by any motive reprobated by law, we gave it effect, as operating a privilege in favor of Carroll, the bona fide holder of the same from the day of the seizure in execution of the judgment which resulted from the confession.

We can discover no error in our decree, and must decline to disturb it.

Rehearing refused.


text:
    No. 8146.
    John Chaffe & Sons vs. Lisso & Scheen.
    Plaintiffs took an Attachment against Defendants and, for that purpose, furnished a bond of $60,000.
    To protect their surety on the bond, they put in his hands, on pledge, moneys and property to the amount of the bond.
    Defendants afterwards made a cessio bonorum to their creditors and a syndic was appointed.
    Plaintiffs proceeded by Rule against the syndic to have their Attachment bond cancelled, and against Robinson’s representatives to have the pledged money and property returned to them.
    'The syndic consented to the Rule, but Robinson’s representatives opposed it on legal grounds.

      Held that the syndic was the only party who could ever claim damages under the Attachment, and he being bound by his answer to the Rule, Robinson’s representatives had no right to retain the pledge.
    APPEAL from the Tenth Judicial District Court, parish of Red River. Logan, J.

      Montfort S, Jones for Plaintiffs and Appellants.

      L. B. Watkins for Executors of Robinson, Appellees:
    Pirst — This proceeding by rule is not a proper one in which to test the nullity of the bond, for the reason that all the creditors of Lisso & Scheen are not made parties — Christopher Chaffe, Jr., definitive syndic, only represents those who are legally bound by the cession.
    Second — The attachment bond was made payable to. the clerk of the District Court for the use of all parties in interest, or concerned, and is conditioned for the payment of all damages that shall be sustained by Lisso & Scheen or any other party interested; and the cession of Lisso & Scheen did not destroy the right of action on the bond, but transferred all right of action on it to the insolvency proceedings and concurso, except so far as the non-resident creditors holding debts not affected thereby are concerned.

      Third — That a trial of plaintiffs’ rule contradictorily with the definitive syndic and the executors of the surety, in this collateral way, would not form res judicata, particularly with regard to non-resident creditors holding debts unaffected by the cession.
    Fourth — There is neither evidence nor pleading in the record on which the court could base a judgment upon the quantum, of damage vel non.

    Fifth — The recourse of those creditors of Lisso & Scheen, who are bound by the cession, upon Christopher Chaffe ¿Trjs bond as definitive syndic, for any failure to properly defend this cause, is not exclusive of other remedies.
    ¿Sixth — The abandonment by the interveners of all claim to damage on account of the illegal seizure of their property does not preclude like claims by other persons.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs proceeded by attachment against the defendants. G. W. Robinson was the surety on the attachment bond, which was for sixty thousand dollars. To save the said surety from loss the plaintiffs placed in his hands, or those of his agents, moneys, rights and •credits to the amount of the bond. Subsequently to the issuance of the attachment, Lisso & Scheen, the defendants, made a surrender under the insolvent laws of the State, the property of the insolvents was taken possession of by a syndic duly appointed, and who proceeded -to administer the estate.

The plaintiffs actuated, doubtless, by a wish to recover possession of their property pledged to Robinson, their surety as stated, filed a rule, to which the syndic and the executors of Robinson, the surety— he having died since the commencement of the attachment proceeding — and certain other persons who had intervened, claiming some of the property attached, were made parties. The object of the rule being to have the attachment bond given by the plaintiffs cancelled by a .judgment of the court.

All these parties answered consenting to the cancellation of the bond, except the executors of Robinson’s estate. They opposed the application substantially on the ground that the actionable right of the creditors of Lisso & Scheen, the insolvents in the attachment bond executed by the plaintiffs, had not expired by limitation, and until all lia- . bility on this bond had terminated, they were unwilling to surrender the securities in their hands, and should not be compelled to do so.

There was judgment discharging the rule and refusing the application, and the plaintiffs have appealed.

We have perused with great care and interest the very able briefs of counsel representing both parties, but do not think it necessary to •consider all the various questions so ingeniously discussed by them. From the view we take of the case, the real question presented is easily .solved by reference to a few simple provisions of law.

The condition of an attachment bond is that the plaintiff “ will pay all such damages as the defendant may recover against him in case it should bo decided that the attachment wrongfully issued.” O. P. 245.

The Act of 1871, No. 103, required that the bond provided by the terms of Act 245 to be made payable to the defendant in the suit, should be made payable to the clerk. If it enlarged at all the scope of the bond, it enlarged it solely so as to embrace within its -protection such third persons as might be directly injured by the writ by the wrongful seizure of their property under it. It gives no right to other creditors of the, defendant to sue on the bond.

If the attachment wrongfully issued, the defendant in the attachment might assign the bond and subrogate his assignee to his right to recover the damages the attachment may have caused him. But, before any such right can be claimed, there must'be an assignment of the bond, either conventional or resulting from the operation of law.

The surrender of Lisso & Sebeen, the defendants in the attachment suit, did operate as an assignment of all their rights in the bond, but only in favor of such creditors as accepted the surrender or were by law affected by it. The syndic of the insolvents legally represents all such creditors — those appearing and accepting the surrender, and those bound without any fo’rmal acceptance. This syndic, the legal representative of these creditors, has judicially acknowledged the justice of the plaintiffs’ demand for the cancellation of -the bond, and consents thereto, and by such acknowledgment and consent these creditors are bound; or, if they have cause to complain of it, they must proceed against the syndic and his sureties.

As to such class of creditors as have not accepted or acquiesced in the surrender, they can have no interest in any right or claim that accrues solely by virtue of this surrender, which they ignore or repudiate. They are not the assignees of this attachment bond, and are not subrogated to its benefits either conventionally or by operation of law and, therefore, can never exercise any right of action thereupon, and Robinson’s estate is in no danger of sustaining any loss from an action that can never legally be prosecuted.

Again, when could any right of action arise against the plaintiffs on the bond in favor of the defendants or others? Not until it had been judicially determined that the attachment issued wrongfully. But under existing circumstances, and the condition of the proceedings, how could such judicial determination be procured ? Lisso & Scheen could not procure it, having become insolvent, nor could their syndic, because he has renounced any right to do so by his answer in this case. Yet if it could be done, it must be done by the joint action of all the creditors of the insolvent, both those represented by the syndic, and those not represented by him, if there be any such. But it is plain to see that at this stage of the proceedings, and after such judicial admissions and consent, the syndic would be precluded from taking such action, either singly or in conjunction with other creditors. Thus it may be perceived that any future suit on this bond is improbable, if not legally impossible, and that no probability of any damage, or liability from such suit, even the most remote, exists. That sixty thousand dollars worth of property should remain tied up for an indefinite length of time, to await such mythical suit of the future, is too extravagant a proposition to be entertained.

It is, therefore,'ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court, it is ordered, adjudged and decreed that the rule in this case be made absolute, and the attachment bond executed in this case of John Chaffe & Sons vs. Lisso & Scheen, No. 231, on the docket of the Tenth District Court of Red River parish, be annulled and cancelled, the defendants in the rule to pay costs of the lower court, and the costs of this appeal to be-paid by the executors of the estate of G. W. Robinson.

Mr. Justice Levy recuses himself in this case, having been of counsel.