author: Slidll, C. J.

text:
    Succession of J. Lanzetti—Mad. De Pontalba and M. Barnett, Jr., Appellants.
    The title of the Act of 17th March, 1852, which is “ an Act to provide a homestead for the widow and children of deceased persons,” is not in violation of Article 115 of the Constitution, which declares that “ every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title. ” Reasoning of the court in Walker v. Calckoell, 4 Ann. 298, affirmed.
    The value of the right of occupying the leased premises belongs to the tenant — and when the right of a deceased tenant is sold — its price is subject to the privilege created by Act of 17th March, 1852.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      P. S. Biron, for the succession.

      W. IT. Kagan and K. B. Eggleston, for Barnett:

    The Act of 1852, is “ to provide a homestead for the widow and children of deceased persons.” Now, this Act does not give her or them a homestead, that is, the dwelling house where they lived, but gives her $1000 in money, which she is to take out of the estate of her deceased husband, which is to be paid to her or them, by preference.
    The second section confers on the wife the usufruct of this sum during her widowhood, and then to pass to the children.
    Hero then are two objects, which the Act designs to accomplish, although neither is expressed in the title. The title of the Act is to secure a homestead, but the body of the Act gives money, creates a privilege and confers the usu-fruct on the wife during widowhood. Throe objects are embraced in the Act, a gift, a lien, and a usufruct.
    The Act violates Art. 119 of the same Constitution. It amends that part of the Civil Code, that establishes privileges, and creates a now privilege unknown to the Code, without noticing the part amended.
    The preference is given over all creditors, except the vendor, and the person who has sold the property. The Code, Art. 3152, declares, that “Privileges can bo claimed only for those debts to which it is expressly granted in this Code.” This right is not conferred on the widow by the Code, but by the Act alone, and is therefore an amendment made by the Legislature to the Code, but no notice or reference is made to it in the Act.

      W. K. Hunt, for opponent :
    It is submitted, that the object of the Act of 1852, “ to provide a homestead for the widows and children of deceased persons,” is not expressed in its title, and that its real object is not to “ provide a homestead for the widows and children of deceased persons.” The meaning of the term homestead, is well defined, and cannot be mistaken. It is a term of general use and established signification. It is defined to mean the place of a mansion-house; the enclosure, or ground immediately connected with the mansion; native seat; original place of residence; the place of the house. [Webster’s Die., Walker’s Die.] Indeed, from the French text, it is apparent that the word is used in its true acceptation; the act is there styled “ acte pour procurer une maison domi-ciliaire,” &c.
    Now, the obvious purpose of this statute is to “ entitle the widow, or the legal representatives of the children, to demand and receive from the succession of their deceased father or husband, a sum which, added to the amount of property owned by them, or either of them, will make up the sum of one thousand dollars,” &c.; and the second section allows the widow “ the usufruct of the money so received,” during her widowhood. In other words, the Act provides for a donation of a sum of money to, and does not provide a homestead for the widows and children of deceased persons.
    Nor is there anything in the Act which requires that this sum of money should be invested in a homestead. Its investment is altogether arbitrary. It may be expended in the purchase of real or personal property of any nature, or converted into stocks, or jewels, or pictures; or it may be kept in specie, until it belongs in full property to, and vests in the children, or other descendants of the deceased. If devoted to the purposes suggested, it cannot be seriously contended that the object expressed in the title to the Act would be fulfilled.
    The provision of the Constitution of 1852, which the opponent invokes, was copied from the Article 118 of the Constitution of 1845, which had undergone repeated judicial interpretations. The former Supreme Court said that this Article, although declaratory and not prohibitory, was not the less of force on that account; that for the purpose of preventing future abuses in legislation, the Constitution had established its forms; and that their observance was imperative on every branch of the government, as much so as any other provisions of the Constitution. State v. Sackett, 5 Ann. 98. Accordingly in that case where an Act was passed, entitled “ an Act to regulate and define the fees to be paid by owners of runaway slaves, for the taking up and confinement of the same,” &c., and under its provisions, the custody and management of runaway slaves were changed, from the system previously prevailing, the court held that part of the Act making changes in these respects was in violation of the Art. 118 of the Constitution, and null and void. And in the case of the heirs of Duvergé v. Salter, the court went further in requiring a most rigid adherence to the Constitutional provision, and declared an Act entitled “ an Act to give jurisdiction to the District Courts of New Orleans, over causes arising under the Act of 8d March, 1819, respecting landlords and tenants,” to be unconstitutional, on the ground, that the object of that Act itself, which was to accord a summary mode of procedure in the cases arising under its provisions, was not included in the title. 5 Ann. 9fi. In the case of WaUcer v. Oaldmell, the Chief Justice said, “ the object and purpose of the Constitutional provision being evident and unquestionable, and its language free from ambiguity, the duty is imposed on the judiciary of giving it effect.” 4 Ann. 298.
    Surely, if the Constitution was violated in the cases referred to, it must be considered so in the important statute now before the court. Por, what clue to the contents of this statute does the title afford? 'Who, in reading that title — ■ “ to provide a homestead,” &c. — would expect to find the real object of the law to be to bestow a gratuity of a thousand dollars? When the act was called up by its title in the Legislature who could form any idea of its contents ? These are significant questions which the court put in 'the cases already cited; and the3r are fair tests to be applied in determining the constitutionality of the statute of 1852. ■
    But there is another respect in which the Act of 1852, violates this provision of the Constitution already cited. The first section provides, that the money allowed to the widow or children, “ shall be paid in preference to all other debts, except those for the vendor’s privilege, and expenses incurred in selling the property."
    There is perhaps no portion of the admirable system of laws under which we live, and whose benefits we enjoy, which exhibits greater regard to the best interests of the citizen, which has been adopted after graver consideration, and which displays greater wisdom, than that part of our Code, which establishes and defines the privileges of creditors, and regulates the order in which they shall be paid.
    The equitable principle of the civil law, that the property of the debtor, is the common pledge of all his creditors, forms part of the law of Louisiana; and our courts have'uniformly held, that all laws according preferences to one class of creditors over another, are to be construed strictly, as being in derogation of the general principle of our jurisprudence. It is from this consideration, that the history of the legislation of our State discloses but few alterations in the judicious system of privileges, which the code originally enacted. That system has become generally known to, and is thoroughly understood by the people.
    Now the clause of the Act just quoted, breaks up and entirely discards the familiar order of privileges previously existing, and substitutes an order altogether novel. It accords the highest rank, to the privilege of a vendor, and to the claims of auctioneers and others, who sell the succession property, and the next highest, to the widow or children of deceased persons. It postpones to these privileges, those for funeral charges, law charges, expenses of the last illness, and the like, which the law, in a spirit of salutary wisdom, and enlarged humanity, has hitherto held most sacred. That chapter of the Code which treats of “ the order in which privileged creditors are paid,” becomes virtually abrogated: — and this important change in the system of our laws, is sought to be effected by an Act, the title of which discloses not the slightest clue to the object, and inevitable consequences of its provisions, — under an Act “to provide a homestead for the widow and children of deceased persons.”
    In the case before the Court, express provisions of law are directly overturned, and repeated decisions of the Supreme Court disregarded, by giving effect to this statute. The Code positively declares, that the privilege of a vendor, “ yields to that of the owner of the house or farm for his rents,” C. C. 3230. And in Denistoun et al. v. Malard, the court held that the landlord’s lien is superior to that of the vendor. 2 Ann. 18. The judgment appealed from, adopting the order prescribed by the Act of 1852, directs that the opponent’s claim for rent be paid after the claims of certain vendors. Thus, it will be seen, that the Article of the Code, and the decisions under it, are repealed by the Act of 1852. Who would judge so from its title ?
    Indeed, this statute abolishes and destroys that general principle of equity which has boon spoken of; that “ the property of the debtor is the common pledge of his creditors.” C. C. 3150. Under its clauses, the property of the debtor ceases to bo bound for his debts after his death. The principle of the civil law, qui ¿'oblige, oblige le sien, a principle which has been regarded as dictated by conscience, — non scripta, sed nata lex — is set at naught, and becomes utterly inoperative. The property of the debtor is donated to his relations, not bound to his creditors. The widow Lanzetti is to receive $1,000 in money from the succession of her husband in lionor.em preeteriti matrimonii; and the common pledge of the actual creditors of the succession is irretrievably gone.
    The record in this case shows that the sum sought to be allowed to the widow, is made up in part, of the proceeds of the sale of the unexpired term of the lease of the premises belonging to the opponent. Thus the effect of the Act of 1852, in the present instance, would be to transfer the opponent’s property in the lease to the widow.
    It is submitted that this is an Act of spoliation; that it is not a rightful exercise of Legislative power; and that the Legislature cannot violate thus, the right of personal property, and subvert natural right. It is against all reason and justice to intrust the Legislature with the power to take the property of A, and give it to B. This is the doctrine, and indeed the language in 3 Dallas, Rep. 388. Galder et ux. v. Bull et ux.

    Chief Justice Marshall says: It may well be doubted whether the nature of society and government does not limit the legislative power, and whether the act of transferring the property of an individual without compensation to the public, (and a fortiori to a private person), be in the nature of legislative power. Fletcher v. Feck, 6 Cranch, 8T.
    So in Taylor v. Porter, the court deny the power of Government to take the property of one man and transfer it to another. If, under the power to legislate, the Legislature can lake the property of A and give it to B, it is clothed with despotic power. 4 Hill’s N. Y. Rep.. 146.
    And again : In Varrick v. Smith, Chancellor Walworth argues that in a State governed by a written Constitution like that of New York, if the Legislature should so far forget its duty and the natural rights of an individual as to take his private property and transfer it to another, without compensation and without benolit to the public, he would not hesitate to declare it an infringement of the spirit of the Constitution, and not within the general powers of the Legislature. 5 Paige Rep. 159.
    In Wilkinson v. Leland, 2 Peters 654, Judge Story, delivering the opinion of the court, said: “ We know of no case in which a legislative act to transfer the property of A to B, without his consent, has ever been held a constitutional exercise of legislative power in any State in the Union. On the contrary, it has been constantly resisted as inconsistent with just principles.”
    So, in 1 Baldwin C. C. Rep. 223, it was held: that the Legislature had not the power to take the property of a man for private purposes without his consent. That if a law was clearly open to that objection, it would be a fatal one, as it was opposed to every constitutional principle which protects the right of property.”
    Article 105 of the Constitution provides that “vested rights shall not be divested unless for purposes of public utility, and for adequate compensation previously made.” A right is said to be vested in a citizen when he has the power to do certain actions, or to possess certain things, according to the law of the land. 3 Dali. 394. When any one acquires private property, bona fide, he has a vested right in that property and in the enjoyment of all the fruits, revenues and profits issuing from it. To take away the right of the owner of a house, to receive the rents, is to divest him of a vested right.
    It will thus be seen that the opponent relies not only on those general principles which limit legislative power in our country, but on the express restriction in the Constitution of our State.
    A statute which thus disregards important and salutary forms prescribed by the Constitution, and overturns a judicious and long established system of laws; which, while it affects the specious pretence of affording a humane protection to poverty, in reality becomes the instrument of the grossest injustice and oppression; which sanctions spoliation and is subversive of natural right; which transcends the limits of delegated authority and conflicts with sacred constitutional restrictions; — such a statute, it is confidently believed, is not entitled to receive the favorable consideration of an enlightened judicial tribunal.
   Slidll, C. J.

There is a familiar maxim which tells us a man should be just before he is generous. In conformity with it, we find in all systems of jurisprudence donations by debtors at the expense of their creditors discountenanced, and our Code contains express provisions to that effect. What however, testators were formerly unable to do themselves, a recent statute does for them, and the case at bar illustrates its practical working; the widow of the deceased taking $1000 out of the estate and leaving its numerous creditors unpaid.

The entire funds of the estate amount to about $1800, and consist, with the exception of one or two small items, of the proceeds of sale of a small stock of dry-goods left at Laneetti’s decease, in a shop leased to him by Mrs. PontaTba. She claimed the landlord’s privilege upon the price of these goods, but was defeated by the claims of the widow, and has appealed.

It is contended by the appellant that the Act of 17th March, 1852, upon which the allowance of $1000 to the widow was made, is unconstitutional. It is said to conflict with the Article 118 of the Constitution of 1845, which declares that “every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.” An article in the same words is found in our present Constitution. Art. 115.

The title of the Act of 1852, is “an Act to provide a homestead for the widow and children of deceased persons.”

Its provisions are as follows :

Section 1. “ That whenever the widow, or minor children of a deceased person, shall bo left in necessitous circumstances, and not possess in their own right property to the amount of $1,000, the widow, or the legal representatives of the children, shall be entitled to demand and receive from the succession of their deceased father or husband, a sum which, added to the amount of property owned by them or either of them, in their own right, will make up the sum of one thousand dollars, and which said amount shall be paid in preference to all other debts, except those for the vendor’s privilege and expenses incurred in selling the property.”

Sec. 2. “ That the surviving widow shall have, and enjoy the usufruct of the money so received, from her deceased husband’s succession, during her widowhood, afterwards to vest in and belong to the children or other descendants of said deceased.”

The argument is, that the object of the Act is not expressed in the title; that the Act provides for a donation of a sum of money to, and does not provide a homestead for the widows and children of deceased persons. A homestead, it is said, means according to lexicographers and in common parlance, the place of a mansion house; the enclosure, or ground immediately connected with the mansion ; native seat; original place of residence; the place of the house — and that from the French text, it is apparent the word was used in its true acceptation, the Act being thus styled “ Acte pour procurer une maison domiciliare.” It is also urged that there is nothing in the body of the Act which requires this sum of money should bo invested in a homestead.

.We think the argument invokes an interpretation of the constitutional clause too rigorous and technical. If in applying it, we should follow the rules of a nice and fastidious verbal criticism, we should often frustrate the action of the Legislature, without fulfilling the intention of the framers of the Constitution. That intention has been repeatedly the subject of judicial comment. It was mainly to prevent that loose legislation which disgraced our statute books. As was remarked by the court in Walker v. Caldwell, 4 Annual 298, “The title of an Act often afforded no clue to its contents. Important general provisions were found placed in Acts private or local in their operations; provisions concerning matters of practice or judicial proceedings were some times in the same statute with matters entirely foreign to them; the result of which was that on many important subjects the statute law had become almost unintelligible, as they whose duty it has been to examine, or act under it, can well testify. To prevent any further accumulation to this chaotic mass was the object of the constitutional provisions under consideration.” In carrying out this intention, as we are bound to do, our enquiries should be, whether in the particular case there has been a substantial compliance by the Legislature with the command of the Constitution, according to its fair and reasonable intendment.

Thus construed, the Article has not, in our opinion, been violated in the present case. The title of the Act suggests as its object or subject-matter the provision of a homestead for the widow and minor children of deceased persons. The body of the Act provides for the pecuniary means by which a homestead or the comforts of a home may be acquired. The title of the Act does afford a reasonable clue to its contents, to wit: a provision for the domestic comfort of surviving widows and minor children.

This statute certainly affects the antecedent law on the subject of privileges contained in our Code. But it does so by creating an entirely new class of privileges for whieh the Code made no provision; and we do not think that under the constitutional clause above referred to, it was necessary that this legal consequence should be indicated in the title.

It is said the sum allowed to the widow is made up in part of the proceeds of the sale of the unexpired term of the lease of the premises belonging to Mrs. Pontalba, and that thus the effect of the Act of 1852, in the present instance, would be to transfer the opponent’s property in the lease to the widow. We have not before us the particulars of this sale of the deceased’s interest in the lease. We infer that the vendee bought what was inventoried, the interest of the deceased in the unexpired term, and in buying it, took it subject to the obligations of paying (he monthly rent. This \\ as substituting one tenant for another. The value of the right of occupying the premises at the stipulated rent was something that belonged to the tenant, not to the landlord, and it was this right which we understand the purchaser as having bought and paid for. The price thus obtained was an asset of the succession.

Much was said at bar and very forcibly, of the injustice and the anomalous character of the statute of 1852. But such considerations cannot control the decision of this controversy. The statute violates no vested right of the appellant, for her lease was made after the passage of the statute, and she therefore made her contract subject to it and to the contingency of the landlord’s privilege being frustrated by the happening of the event in the statute contemplated.

The same remarks apply to the claims of Barnett.

Judgment affirmed, one-half of the costs of appeal to bo paid by each of the appellant’s, Mrs. Pontalba and M. Barnett, Jr,


source: Caselaw Access Project

author: Buchanan, J,

license: Public Domain

text:
    Rosabella B. Mills, Wife, &c. v. Elisha Crocker.
    The signature of the husband to the appeal bond is sufficient authority for the wife to appeal.
    A sale of property, for a fixed price, based on a calculation of interest greater than that allowed by law, where there is no fraud or error, will not be regarded as in violation of the usury law.
    APPEAL from the District Court of the Third Judicial District, Ola/rke, J.

      Pwvis & Fugue, for appellant. Schmidt, for appellees.
   Buchanan, J,

(Voorhies, J., absent.)

The appellee has moved to dismiss this appeal, on the ground that the appellant, a married woman, was not authorized by her husband to take the appeal -, and we are referred, in support of this motion, to an authorization of the husband, written, but not signed, at the foot of the petition of appeal. The husband has, however, signed the appeal bond, which is tantamount to a formal authorization.

The defendant purchased, on the 7th August, 1847, at Sheriff’s sale, in execution of a judgment against the plaintiff, three lots of ground with the improvements thereon, for the price of fourteen hundred dollars, cash. The plaintiff and her family were residing on the property at the time of the Sheriff’s salo, and continued to reside there afterwards. There appears to have been an understanding, or verbal agreement, between the parties, at the time of the purchase by defendant, that he would reconvey the property to plaintiff upon her reimbursing to him the purchase price. But this agreement was never reduced to writing, and was consequently not in such a shape that it could have been enforced by process of law. In this state of things, the parties continued for a number of years, the plaintiff holding the title and paying taxes and insurance on the property; and the defendant living there, without paying any rent, but making two payments to defendant, one in 1848, and the other in 1851, amounting in the aggregate to one thousand dollars. At length, on the 12th of June, 1852, the defendant subscribed a writing, which commences with these words: “Lots bought at Sheriff’s sale, Florence v. Mrs. McMillen, on Jersey street, 7th of August, 1847, for $1400. Said lots I allow to be redeemed according to the following statement, when fully complied with.” Then follows a detailed account current and interest account, comprising, on the debit side, the various sums, in the order of their dates, paid by the defendant for the purchase of the property, and for taxes, insurance, &c., and also money given by defendant for one J. High; on the credit side, the two payments, personally made as aforesaid by plaintiff to defendant, and the proceeds of one of the three lots which had been sold a few days before by defendant to another person. The interest is calculated throughout at the rate of ten per cent. The account concludes as follows :

“$872 96 — the true balance this 12th Juno, 1852. June 12th, cash paid, $550 — including Jefferson city warrants.

“Errors excepted.

“ Signed duplicate.

“ E. Orockee.

“J. P. McMillan.”

On the same day, the parties (plaintiff being assisted and authorized by her husband) passed a notarial act of sale, referring to the above private writing, and in consumation of the same, by which notarial act the defendant conveyed to plaintiff the two lots, 4 and 5, with the improvements, for the consideration expressed in the settlement made between the defendant and the husband of plaintiff; who gave her note, authorized by her husband, to her own order, at six months, for three hundred and thirty dolkrs, balance due in settlement.

The object of the present suit is, to have the note of three hundred and thirty dollars canceled, and to recover from defendant the difference between ten per cent, and eight per cent, interest, as usurious. Plaintiff alleges fraud and error; that her husband (from whom she is separated in property) was not authorized to make the settlement of the 12th of June, 1852, and that defendant was bound to roconvey to her lot numbered 3, or its value, as included in the property bought by him at Sheriff’s sale.

It appears to us that this case does not come within the statute of 1844, chapter 25, which fixes the maximum of conventional interest in this State, at eight per cent., and authorizes an action for the repetition of a higher rate of interest when already paid, within twelve months from the time of such payment. The settlement between plaintiff’s husband and defendant, is the only legal proof of the contract for the resale of the property alleged by the petition ; and this document stipulates, as the price of the sale, a certain sum paid or payable in a certain manner.

There is no evidence that plaintiff had ever bound herself unconditionally to purchase the property. Unless she did so, the property was at the risk of Crocker, and the maxim is, “res perit domino.” Crocker being owner, had the right to fix any price he pleased upon the property. In fixing the price, Crocker thought fit to enter into a calculation based upon an assumed interest for the use of money, higher than that allowed by law. But the elements of the calculation are unimportant. The result is a sum, which one party agrees to give, and the other to receive, as the price of property belonging to the latter.

Under these circumstances, and in the total absence of proof of fraud and error as alleged, we do not think the plaintiff entitled to the relief that she asks. Neither does it appear proper to reserve, as has been done by the judgment appealed from, a right to plaintiff of instituting another action for the repetition of usurious interest. The view that we have taken of this contract, is inconsistent with such a remedy. It was not a loan upon interest, but a sale; and the enjoyment of the property by plaintiff, without the payment of rent during five years, was certainly worth much more to her, according to the evidence, than the augmentation of the price caused by a calculation of interest upon moneys advanced. "We would therefore, had an amendment of the judgment been asked for by the appellee, have amended the judgment of the District Court in this particular. But no such application being made, the judgment must be affirmed as it stands.

Judgment of the District Court affirmed, with costs in both courts.


author: Slidell, C. J.

text:
    Succession of Mrs. M. E. Scott, Wife of William B. Hayden.
    The amount due for rent on a lease executed during the community, is a debt of the community, and the lessor has a right to demand an account from the administrator of the deceased wife.
    The registry of a judgment obtained against the husband, after the death of the wife, does not create a mortgage on the share of tine deceased wife in the real estate of the community — but it does on the husband’s share.
    And a mortgage on the husband’s share cannot be canceled in a proceeding in which the judgment creditor is not represented.
    APPEAL from the Sixth District Court of New Orleans, Lea, J., presiding.

      D. H. Hennen, opponent. Ootton & Dorsy, for appellant.
   Slidell, C. J.

(Voorhies, J., and Buchanan, J., absent.)

Hemien's lease to Hayden being executed during the existence of the community between Hayden and his wife, the indebtedness for rent was an indebtedness of the community, and Hennen being its creditor, had a right to demand an account from the administrator of Mrs. Hayden's succession, and to scrutinize that account when rendered.

The judgments held by Hennen were obtained in suits against Hayden alone, after Mrs. Hayden's death, and we think with the District Judge, that their registry did not create a judicial mortgage upon the share of Mrs. Hayden's succession in the real estate belonging to the community. It did, however, upon Hayden’s share; and as the order canceling the mortgage on that share was made in a proceeding in which Hennen was not represented, and to which he was not even constructively a party, we think the court did not err in rescinding that order.

Considering the value of the estate of the deceased, we think the court did not err in reducing the administrator’s charge for counsel fees.

We also find no error in refusing Hayden commissions as administrator in this contest between him and a creditor of the community, because the estate of the wife is insolvent, and Hayden is personally bound to this creditor for the whole debt.

Considering the mode in which Hayden has blended his personal and official interests and relations, we think the court did not err in its apportionment of the expenses;

Upon the whole, wo find no error in authorizing a reversal, and the judgment is therefore affirmed, with costs of appeal to bo paid by the appellant. Rehearing refused.


author: Ogden, J.

text:
    James Ross et al. v. John W. Crockett et al.
    Where some of the members of a corporation have been excluded by others from their rights and privileges as corporators; in an action to be restored to the enjoyment of those rights, the corporation must be made a party to the suit — and the court should so order and not dismiss the action.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Sage, for plaintiffs and appellants. Bunion & Bradford, for Crockett. Boselius, for Christian Congregation.

   Ogden, J.

The plaintiffs set forth in their petition that they, together with four of the defendants in the case, are the only lawful members of a corporation, created in pursuance of an Act of the Legislature of 30th April, 1847, by notarial act in which the objects of the corporation are expressed, and by which they are denominated as the “Elijah Steel Church.” They represent themselves to be a majority of the corporators, and charge that the four defendants who are associated with them, constituting a minority, have illegally assumed in conjunction with one B. B. McTeyre, to appoint certain others of the defendants as members of the corporation in the place and stead of the petitioners, thus conspiring to deprive the petitioner’s of their legal and equitable interest in the property belonging to the Church, and that the defendants thus assume to themselves all the powers and rights of the corporation, have made a sale of a lot of ground on which it was contemplated to erect the Elijah Steel Church, and on proceeding to locate the Church in a different place, and out of the parish. The object of the suit, is to have that sale declared null and void, to have themselves with the four defendants associated with them in the original Act of incorporation, declared to be the only legal corporators, and to enjoin the other defendants from further interference with the business or concerns of the corporation. The Christian Congregation, another religious congregation, to whom the lot was sold, were made parties defendant, and on their exception that the Elijah Steel Church in its corporate capacity, was not before the court, the suit was dismissed as regards them. The other defendants filed no exception, but the court below, after hearing the case on its merits, dismissed the petition on the ground that the issue involved affected the franchises of a corporation and that therefore no judgment could be rendered between the parties, without making the corporation as such a party to the suit.

The position assumed by the appellant’s counsel, that the right to enjoy the franchises and privileges of a corporation, is a personal right, which may be enforced and which gives rise to a personal action against one who disturbs that right is indisponsible, but it does not seem to us to affect the question, whether the corporation is a necessary party to the suit, to enable the court to grant the specific relief prayed for by the plaintiffs. The action is not one for damages for a wrongful and illegal act, but is in the nature of relief sought to bo obtained by the interposition of the equitable powers of the court. The right in question, is one of those which is usually enforced by a writ of mandamus, on the ground that there is no legal specific remedy, and when the act must necessarily be done by the whole corporation and not by classes or individual member’s, the writ must be directed to the whole corporation — a mere disturbance by others of the rights of a corporator, although it would give rise to an action for damages, would not be a proper ground for a mandamus, the object of which, is to restore the corporator to his office, from which he could only have been ejected by an act of the corporation itself. Angel & Ames on Corporations, 506, 584.

Where a mandamus was issued ordering a corporation to command certain persons to do an act, it was quashed as absurd, on the ground that it should have commanded the corporation to do it.

Those rules applicable in cases of mandamus, are referred to for the purpose of showing that when the remedy is sought by a proceeding which is analogous to a bill in chancery, that the corporation ‘itself in its capacity as such, is an essential party to enable the court to pass a decree to restore the plaintiffs. No judgment except one ordering the corporation to restore them would be of any avail to the plaintiffs, and such a judgment could not be rendered as the corporation is not a party to the suit.

When the writ of mandamus is resorted to, for the purpose of restoring a corporator to his office, it is required that the writ should be directed to the corporation, not only in their proper names, but in their proper capacity, and that the application should state that capacity, for the same reason it is not sufficient that all the members of the corporation are before the court as parties in their individual capacities, either as plaintiffs or defendants. No decree can be rendered which will be binding on the artificial person, and if it could, it would be destructive of that great object of an incorporation, which Judge Marshall declared to be to bestow the character and properties of individuality on a collection and changing- body of men.

We agree with our brother Judg-e of the court below, that it was necessary the Elijah Steel Church in its corporate capacity, should be made a party to the suit, but we think he ought in the exercises of the ample powers appertaining to a court of equity, to have directed the plaintiffs to bring- in the Elijah Steel Church as a party, which could be done in the name of any one of the plaintiffs, the right being- common to them all. It is an established rule in courts of equity to require all the parties concerned in interest to bo brought before them, in order that the matter in dispute may bo finally determined. 10th Wheat. 152. And a want of parties is not necessarily fatal even at the hearing, but the case may be ordered to stand over to make further parties. West v. Randall, 2d Mason’s C. C. R. 181.

As none of the defendants but the “ Christian Congregation” filed an exception, on the ground of the want of necessary parties, we think the court below erred in dismissing absolutely the plaintiffs’ petition, except as regards the “ Christian Congregation,” and although the exception was not filed by the “ Christian Congregation” in limini litis, yet as the plaintiffs did not avail themselves when the plea was filed, of the right they would have then had, to obtain leave to cite the party then not before the court, and without whom no judgment could be rendered. Wo think the judgment of dismissal in favor of the Christian Congregation ought not to be disturbed.

It is therefore ordered and adjudged, that the judgment of the court below in favor of the “ Christian Congregation,” on their exception be affirmed, and that the judgment in favor of the other defendants be reversed and the case remanded to the court below, with leave to the plaintiffs or any one of them to cite the Elijah Stool Church before the court as a party defendant, and that the costs of the appeal be paid, one-half by the defendants as to whom the case is remanded, and the other half by the plaintiffs.


text:
    John P. Walworth et al. v. William Henderson.
    It is settled at the common law, that service on all the members of a commercial firm individually, is necessary to bring the parties into court, whether the institution of the suit was before or after the dissolution of the partnership.
    In an action against the members of a commercial partnership, where only one member was served with process, and the attorney employed by him appeared for the defendants generally, and judgment was rendered against all of the defendants — Relé : That such a judgment in Mississippi was regular, and could only be inquired into by the defendants who were not served with process making affidavit of that fact, and that they never employed the attorney, and on showing also that they had a good and legal defence to the action of which they might have availed themselves if notice had been given.
    APPEAL from the District Court of the parish of Carroll, PerMns, J.

      Stacy & Sparrow, for plaintiffs. Short, Parham, & Caldwell, for defendants.
   Ogden, J.

The first point made by the defendant, who is also appellant in the cause, is that with respect to the judgment against him in the Circuit Court of Warren County, Mississippi; neither the judgment nor the note upon which it was rendered, have validity against him, because the note which purports to have been executed by John Senderson & Co., was so executed without any authority from defendant, and not for any consideration relating to the business of the firm of which defendant was a member. This defence we cannot inquire into, unless the ground next set up is maintained, which is, that the judgment so rendered was null and void, because no writ or citation in the suit was ever served on him, nor was any counsel authorized by him to defend the suit, and we will therefore consider that question first.

The defendant was the partner of John Senderson, on whom the writ was served, and he was sued on an obligation signed with the partnership name of John Senderson & Co, The partnership was a commercial one, and the Sheriff returned as to the defendant, William Senderson, that he was not found. The rule of practice at common law, and as settled in the State of Mississippi1 is different from ours. The service on all the members of a commercial firm individually, is necessary to bring the partners into court. 4 Smedes & Marshall, 665, 666- 1st Howard, 530, 531. The partnership was dissolved at the institution of the suit, and even under our laws, the service on John Sender-son, would not have been notice to the defendant, but a plea was filed by counsel in the name of the defendants generally, the effect of which it becomes necessary to determine. The obligation sued on, was a negotiable note in favor of the Planters’ Bank of the State of Mississippi, for $5,300, executed by John Senderson & Co., with four other obligors, who bound themselves jointly and severally in favor of the bank. The attorneys for the defendants filed a plea, stating “ the said defendants come and defend the wrong and injury,” &c., which plea was afterwards withdrawn, and judgment by default taken against all the defendants. In Mississippi, a plea entered in that form, is held to be a good appearance for all the defendants and, on being withdrawn, a judgment is regularly rendered, binding all the parties defendant as well those on whom the process was not executed, as on the others on whom it was. 4 Howard’s Miss. Rep. 342. 5 Howard’s Miss. Rep. 62S. Such being held to be an ap-poaranee for all the defendants by the laws and practice of the State where the judgment was rendered, the same effect must he given to it by our courts.

An attorney being a sworn officer, his authority is always presumed, and the judgment rendered against the defendant in Mississippi, is regular on the face of the proceedings; but as the defendant has denied on oath that he ever authorized counsel to file a plea for him, it remains to be considered how far the presumption of law in favor of the authority of an attorney, is weakened or destroyed by the affidavit of a defendant not served with process, that he never authorized the appearance for him by counsel. If the partnership had not been dissolved when the suit was instituted in Mississippi, there would be much force in the argument of the counsel for the appellee, that as the suit was on an obligation contracted by the firm, one partner had authority to employ counsel to represent all the members, and that all would be equally bound by a plea filed on behalf of the firm; but the partnership being then no longer in existence, without special authority, one partner could not represent another by employing counsel to make an appearance for him, when he was not served with process, so as to bring him into court. The appearance, however, of an attorney, although not authorized, it has been held, is a good appearance to the court, and the judgment is regular, leaving to the defendant his remedy against the attorney for damages. 1 Salk. 86. Jackson v. Stewart, 6 Johns. 34. But when the defendant makes affidavit that he never employed the attorney, and no process has ever been served on him, if he can show that he had a good and legal defence to the action of which he might have availed himself, if he had been served with notice, he has a right in equity to interpose that defence, as it would be contrary to right and good conscience that the plaintiff should, under such circumstances, execute his judgment. The judgment is not null and void by reason of the want of authority of the attorney who filed the plea, but, as in the case of a judgment rendered on the false return of a Sheriff that he had served the process on the defendant, the judgment is still regular, leaving to the party his action at law against the officer for damages, and his right in equity to enjoin the execution of the judgment establishing a meritorious defence. Cox v. Nichols, 2 Yeates, 546.

We have, therefore, examined the evidence, to ascertain whether the defendant had, at the time the judgment was made, any legal or equitable defence to the action. The note on which the judgment was rendered, was given in renewal of another note drawn by John Henderson & Go. to the order of Thomas J. Oreen, and discounted by the Planters’ Bank for Briggs, Lacoste & Go., of Natchez, on their endorsement. It is immaterial whether the note was given to Green for an indebtedness to him of the firm of John Henderson & Go., or whether it was thus executed for the accommodation of Green, as would seem most probable from the fact, that when it was taken up by the note given in renewal on which the defendant was sued, the name of Gs’een is first signed to the note, and from other evidence. Conceding that to bo the fact which would be our conclusion from the evidence, and that the name of the partnership was expressly used by one of the partners without authority in business, not relating to the firm, yet the rule is undoubted, that the firm are bound jointly to any Iona fide holder of a note or bill of exchange which has been drawn, accepted or endorsed by any of the partners in the name of the firm. The original note was that of John Henderson & Go., which went into the hands of Briggs, Lacoste S Co. in the usual course of trasincss, and was discounted by the bank, and the note given in renewal was equally binding on the firm.

We are therefore of opinion, that the defendant had failed to establish any legal or equitable defence which would authorize a court of equity to relieve him from the effect of a judgment regular on its face, on the ground that the attorney who made an appearance for him, was not authorized to do so.

As the suit is on the judgment, and the note was not proscribed when the judgment was rendered, the plea of prescription against the note cannot avail the defendant.

It is therefore ordered, that the judgment be affirmed with eosts.


text:
    T. O. Stark, Receiver, v. Burke, Watt & Co. et al.
    The charter of a bank determines the powers of the directors and as regards the corporation the rights of the public.
    The charter of a bank and the subscription constitute a contract between the corporation and its stockholders by which their mutual rights and obligations are fixed, and directors have no power to change it without the consent of the stockholders; and as by the amendatory Act of incorporation of the Atchafalaya Bank in 1886, it was provided, that the balance of its stock on each share should be paid on the first Monday in March, 1888; miless otherwise ordered by the Directors, to be paid at longer peHods of túrne, or in less proportions at different times, and as the Directors did not prolong the payments or change the proportions before the first Monday in March, 1838, their control after that date ceased, and* each stockholder was on the first Monday in March, 1888, the debtor of the corporation for the whole amount of his subscription.
    Under the Act of 1812, commissioners we.e appointed to take charge of the assets and to liquidate the affairs of the Atchafalaya Bank, and all judicial proceedings by its creditors against the corporation were stayed. The duties of the commissioners, in all matters not specially provided for were assimilated to those of syndics of insolvent estates, and the proceedings were to be the same as those in cases of voluntary surrender by individuals. Held: that although the creditors could not sue the cerporation, nor sue the stockholders directly, yet they had the right to compel the commissioners to sue the stockholders; therefore, a commissioner can not iu reply to the plea of prescription set up by a stockholder avail himself of the rule, contra non njalentem agere, non cwr-Ht prescripts.

    The Act approved March 14,1S89, entitled “ an Act to relieve such of the banks of this State, whose charters may have been forfeited by a suspension of specie payments, from such forfeiture,” must in order to be operative, have been accepted by the stockholders, or at least a majority of them.
    APPBAL from tbe Eifth District Court of New Orleans, Buchanan, J.

      B. B. Bonford, and Elmore & King, for plaintiff.

      E. Briggs, M. M. Oohen, Jlolert Mott, U. U. Straiobridge, E. Baiole, Clarice & Bayne, for defendants and appellants.
   Slidell, C. J.

In Juno, 1849, the Receiver of the Atchafalaya Bank instituted the present action against a number of its stockholders. Exceptions were pleaded, which were disposed of by the decisions of the Supreme Court, reported in 5 Annual, 741. 'l'ho case having been remanded for further proceedings, has resulted in a judgment against the defendants, for a contribution on the shares held by them at the date of the insolvency of the bank. From that judgment a portion of the defendants have appealed.

By the original Act of incorporation, the whole stock was to be paid in as early as 1st January, 1839 ; but by an amendatory Act in 1836, it was provided that the stock of said company shall be paid in the following manner, to-wit: ten dollars on each and every share on or before the first of April, 1836, and five dollars on each and every share on the first Monday of each succeeding montl^ until fifty dollars on each share shall have been paid. The balance of fifty dollars on each share shall be paid as follows: twenty-five dollars on each share on the first Monday in March, 1837, and the balance on each share on the first Monday in March, 1838, unless otherwise ordered by the Directors, to be paid at longer periods of time, or in less proportions at different times, and no security for stock shall be required.

The authority conferred on the directors to prolong the payments or change the proportions was not exercised before the first Monday in March, 1838. We are of opinion that after that date their control ceased; and consequently conclude that on the first Monday of March, 1838, each stockholder was the debtor of the corporation for the whole amount of his subscription. The charter and the subscription constitute a contract between the corporations and its stockholders. By this contract their mutual rights and obligations are fixed, and the directors have no power to change it without the consent of stockholders. It is to the charter also that reference is to be made to determine the rights of the public; and consequently we are of opinion that as between creditors of the bank and its stockholders the whole amount of their subscriptions is to be considered as having become due on the first Monday of March, 1838; as constituting on that day a debt due by each stockholder to the corporation. See Brown v. Union Insurance Company, 3 Annual, 183. Angell & Ames on Corporations, 474. Baltimore Turnpike Co. v. Barnes, 6 Har. & John. 57.

The question then presents itself whether this liability is barred by the prescription of ten years, which a number of the stockholders have pleaded.

We entertain no doubt that the plea would be tenable if the original relations between the corporation and its stockholders had subsisted. As soon as the debt matured, it was an obligation which the corporation had a right to enforce by suit, and the prescription of ten years began to run against the corporation, the creditor of the debt due. This is settled in our jurisprudence by the case of Brown, just cited, and the doctrine appears to be the same in our sister States. See Angelí & Ames on Corporations, 474. Baltimore Turnpike Company v. Barnes, 6 Har. & John. 57.

But it is said that prescription was suspended by events -which subsequently occurred. The circumstances referred to are as follows: In 1842, judicial proceedings for a forfeiture of the charter were instituted by the State, which resulted in a decree of forfeiture in March of that year. Under the Act of '1842, commissioners were immediately appointed to take charge of the assets and liquidate its affairs, and all judicial proceedings by its creditors against the corporation wei'e stayed. The powers and duties of those commissioners, in all matters not specially provided for, were assimilated to those of syndics of insolvent estates, and the proceedings were to be the same as those in case of voluntary surrenders by individuals. Sec. 24, Act of 1842, p. 146. Now it is said that under this legislation it was the duty of the commissioners to take charge of the assets of the bank, convert them into cash and pay off the debts; that if there was a surplus, they were bound to hand over the same to the stockholders; that if there was a deficiency, they were bound to call upon the stockholders to pay up their arrearages of stock to an amount sufficient to meet that deficiency; but that until such deficiency was so ascertained, no suit could have been maintained against the stockholders by the commissioners, and that the creditors themselves were prevented from suing the stockholders by the stay of proceedings. TJnder these circumstances the plaintiff invokes the benefit of the rule contra non valeniem agere, non currit ‘prescriptio.

It is true that after the stay of proceedings, creditors could not sue the corporation, nor could they, themselves, sue the stockholders. Gas Light Company v. Bennet, 6 Annual, 456. But they had a right to compel the commissioners to enforce the liability of all debtors of the corporation; they could act through the commissioners: ib.

Then the only remaining question is, could the commissioners, if required by creditors, have immediately sued the stockholders for the amount due on their stock; or, on the contrary would the stockholders have had a right to say, although the creditors of the hank, whom you represent, are unpaid, they must wait until you have first collected all the other debts and exhausted all the other property of the corporation, and when you have thus ascertained the deficiency, then only and to that extent can you sue and compel us to pay?

We think the stockholders could not have been permitted thus to resist a suit brought by the commissioners at the instance of creditors. The commissioners could have successfully replied — the money you promised to bring into the bank, and upon the promise of which creditors trusted the hank, is long since due — the creditors have a right to immediate payment — you have no equity to turn them over to a recourse upon other debtors of the bank — pay what you owe, and wait for your reimbursement out of the other assets as we may be enabled to realize them.

For these reasons, we are of opinion that the plea of prescription should have been maintained. This plea, however, has only been made by the following parties appellant, namely: the Commercial Bank, Simon, Turner & Renshaw, Landis, Hubbell, Watt, Nichols, Reed, the executors of Whitney, Stanton, Burke, Watt & Co., Harrod, U. S. Bank of Pennsylvania. Ellicott & Co. v. Burthe

The appellants who have not so pleaded, are Martin, administrator of estate of Moore, Caldwell, Mall, and the Consolidated Association.

Martin is the only one of the four last named appellants who has offered any argument here in support of his appeal. He relies upon prescription, but has not pleaded it. The only other point which he has presented in his brief, is his right to be relieved under the second section of the Act approved March 14, 1839, entitled “an Act to relievo such of the banks of this State whose charters may have been forfeited by a suspension of specie payments from such forfeiture,” which Act he alleges was accepted by the bank, and by Moore, whose estate he represents, and who was a stockholder for forty shares, on which fifty dollars only had been paid. Ho has not directed our attention to any evidence showing that this Act was accepted by himself or any of the stockholders of the bank. We are of opinion that without such an acceptance by the stockholders or at least a majority of them, the Act in question was inoperative to change the charter of the corporation by reducing its capital, even supposing such to have been the intention of the legislature. In the case of Hepburn v. The Commissioners of the Exchange Bank, the acceptance of the Act of 1839, was admitted.

Another appellant is J. L. Riddell, whose claim as a holder of certain notes of the Atchafalaya Bank, was rejected by the District Judge. We have considered the reasons given by the District Judge, and are not prepared to say that the evidence authorized a different conclusion.

It is therefore decreed, that the judgment of the District Court against the appellants, the Commercial Bank, Simon, Turner & Renshaw, Landis, Hubbell, Watt, Nichols, Reed, the executor of Whitney, Stanton, Burke, Watt & Co., Harrod, the United States Bank of Pennsylvania, and V. Burthe be reversed, and that there be judgment in favor of said appellants and defendants, the costs of the suit as to them in both courts to be paid by the plaintiff.

It is further decreed, that as to the defendants and appellants, Martin administrator, Caldwell, Ball, and the Consolidated Association, the judgment of the District Court be affirmed, and that the said appallants pay the costs of their appeals respectively.

It is further decreed as to the appellant Riddell, that the judgment rendered against him by the District Court be affirmed, and that he pay pay the costs of his appeal.


author: C. J.

text:
    Same Case.
    When a judgment has been rendered by the Supreme Court, it is too late to plead in the interval between the day on which it was rendered, and that on which it becomes final, prescription under Art. 902 C. P.
   C. J.

Judgment having been rendered in this cause in the court below, against Caldwell, and affirmed by this court, he applied after one decree was rendered, and before three judical days had expired for leave to file a plea of proscription, the proof of which, as he contends, “ appears by the mere examination of the record,” and presents a case under the Article 902 of the Code of Practice. We refused to entertain the application ex parte, and directed counsel to take a rule to show cause. The appellee contends that the plea comes too late, and this is the question we have to determine. The point is novel, and we have given it a careful consideration.

It is said in Article 3427 of our Code, which is taken from the Napoleon Code, prescription may be pleaded in every stage of a cause, even on the appeal, but it ought to be pleaded expressly and specially, before the final judgment. The French text uses the words — en tout état de cause — amant le jugement défi-nitif.

The Article 34G of the Code of Practice is as follows: Peremptory exceptions, founded on law, may be pleaded in every stage of the action, previous to the definitive judgment; but they must be pleaded specialty, and sufficient time allowed to the adverse party to bring his evidence. The French text, oí which the English is an awkward translation, is in these words : Les exceptions póremptoiros qui concernont le droit, peuvont étre alléguées, en tout-état de cause, avant le jugement définitif; mais ellos doivent étre opposées spécialement, et assez á temps pour que la partie adverse puissefaire la preuvo contrairo, s’il y a lieu.

The Article 902 of the same Code is as follows : Although, in general, parties before the Supreme Court aro not allowed to plead other matters than those which were before the inferior court, nevertheless it may depart from ^his rule when the exception taken is one of those which may be pleaded at any period of a cause, and the proof of it appears by the mere examination of the record. Thus prescription may be pleaded before the Supreme Court when the proof of it appears on the face of the proceedings in the lower court. But the party to whom it is opposed, shall have the privilege of demanding that the cause be remanded for trial upon that plea.

In the same Code are the following Articles: The judgments rendered by the Supreme Court shall be final, and the clerk shall deliver a copy to every person requiring it after three judicial days have elapsed from the rendering of the judgment. Art 911. In the interval between the day on which the judgment is rendered, and that on which it becomes final, a party dissatisfied with the judgment, may apply to the court for a new hearing in the cause, and for this purpose shall present a petition, in which he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite the authorities in support of his opinion.

The argument of the plaintiff in the rule is, that he is entitled to file a plea of prescription in this court at any time before final judgment, and that, as a decree of this court is not a final decree until the expiration of three judicial days from its rendition, therefore his plea is seasonably offered.

The argument of the applicant would be unanswerable, if ho were right in his construction of the words “final judgment,” “jugement définitif,” as used in the two Codes, in speaking of the plea of prescription. But in this lies the error.

The words “ final judgment,” and “jugement définitif” are used in different senses in the Code of Practice. In one sense, a judgment is said to be final, when, ii rendered in the District Court, it has received the signature of the Judge -, or, if rendered in this court, it has been closed by the lapse of three judicial days from its rendition. But there is another sense in which it is also used, and that is in contradistinction to an interlocutory judgment. This definition is expressly given in the Code of Practice. “ Interlocutory judgments do not decide on the merits, they are pronounced on preliminary matters in the course of the proceedings.” C. P. 538. Definitive or final judgments (lo jugement définitif ou final) are such as decide all the points in controversy between the parties. C. P. 538. Hence, in Art 546, it is said, the Judge must sign all definitive or final judgments after three judicial days have elapsed ; and, in the subsequent chapter, a new trial is mentioned as one of the modes in which a definitive judgment (jugements définitifs) may be revised.

It is in this latter sense, the expression final judgment, (jugement définitif,) must be construed in reference to the plea of prescription. This seems to us to result from the qualification of Article 846 — assez a terns pour que la partie adverse puisse faire la preuve contraire. It is also the more reasonable construction, considered with reference to the convenient administration of justice. The time of a court of justice should not be occupied with determining a cause on the general merits, only to reach the fruitless result of setting aside its decree, not because it is erroneous in the case presented, but because the litigant desires to present a new question which he might have presented before. It imposes, too, for the expense and delay upon the adversary, and conflicts with the spirit of the maxim, interest '¡'ei-piiblica¡ at sit finis litium.

The practice which the applicant desires to establish, would lead to serious inconvenience, especially in country causes, for the hearing of which only a limited time is assigned, at a stated period, once a year.

It is proper to add, that the provisions of our Code on the subject of rehearing, were clearly framed for the purpose of affording the court an opportunity of correcting an erroneous judgment, not for the purpose of raising new issues under new pleas. See also Duranton, vol. 21, p. 189.

Leave to file plea refused, at cost of applicants.


author: O. J.

text:
    Same Case—On Rehearing granted to Ellicott & Co.
   O. J.

It is ordered, adjudged and decreed, that the judgment of the District Court against the appellants, E. T. Ellicott & Go., be reversed; that there be judgment in favor of said appellants and defendants ; the costs of the suit, as to them in both courts, to be paid by the plaintiff.


text:
    Same Case—On Rehearing.
   0. J.

The court having reconsidered this case, and being of opinion that its former judgment should not be disturbed, except as to JSarrod, Stanton, the succession of Landis, and the sucession of Whitney, as to whom the court is of opinion that the cause should be subjected to further investigation.

It is therefore ordered, that as to the following appellants, to wit, the Commercial Bank, Simon, Turner & Eenshmo, Eubbell, Watt, Nichols, Reed, BwrTce, Watt & Go., the Bank of the United States, Burthe, Ellicott & Go., as to whom a rehearing was granted, the judgment of this court rendered at the December term, 1853, remain undisturbed.

And it is further ordered, that as to the appellants following, to wit, the suc-cesson of Landis, Stanton, succession of J. J?. Whitney, and Charles Earrod, the judgment rendered by this court, and by the court below, be reversed, and that this cause, as to them, be remanded for a new trial, and for further proceedings according to law ; the plaintiff paying, as to said last named persons, the costs of the appeal.


author: Slidell, O. J.

text:
    S. Henderson v. C. E. Wilcox.
    The views expressed in the same case, by the late Supreme Court, in 2 Ann. 502, maintained.
    APPEAL from the District Oourt of East Baton Rouge, Burk, J.

      J. M. Elam, for plaintiff and appellant. Q. S. Lacey and 0. Ratliff, for defendant.
   Slidell, O. J.

The object of this suit was to restrain the execution of a judgment obtained by Mrs. Wilcox v. Henderson, which was affirmed by the Supreme Oourt, as reported in 7th Robinson, 348. A similar attempt was unsuccessfully made in a former case. See 2 Ann. 502»

There was judgment dissolving the injunction, and the plaintiff has appealed. We think the dissolution was proper, and refer to the views of the .court in 2d Ann. 502.

The appellee has asked damages for a frivolous appeal. There are circumstances shown in this case, which indicate a mutual spirit of animosity; it has been exhibited in an acrimonious litigation during many years; and if Henderson has demanded too much, there does not seem on the other hand to have been a proper disposition to give him what was justly his due. On the whole, we do not think the case one for damages. See also the case of Wilcox v. Henderson, decided at the present term, in which he has judgment against her. Judgment affirmed, with costs.


text:
    C. E. Wilcox v. S. Henderson, and Matters in the Succession of H. A. S. Mussenden.
    The husb and need not personally superintend the cultivation of the wife’s plantation, held by her as paraphernal property. He may act through an agent, and the fruits will fall into the community, aud be liable 5 or the debts of the community. O. 0 . 2372, 2371. The fruits hanging by the roots on the hereditary or proper lands of either the husband or the wife, at the time of the dissolution of the marriage, are equally divided between husband and wife, or their heirs, (2376,) and the community must bear the charges of cultivation and other incidental expenses.
    APPEAL from the District Court of East Baton Rouge, Burle, J.

      G. S. Lacey, for plaintiff. J. H Elam, for defendant and appellant.
   Slidell, C. J.

Under the facts of this case, we consider it clear that the Forest plantation, which was the paraphernal property of Mrs. Mussenden, was under the administration of the husband. This results clearly from the testimony of Montgomery, the accounts kept by his house, the control exercised by Mussenden over the proceeds of the crops. The circumstance that Mussenden did not personally superintend the cultivation of the plantation, but acted through an agent, seems to us immaterial.

Note. — This and the preceding case were decided by the former Supieme Court and referred to auditors, to state an account in conformity to the principles laid down in the decree.

The husband then having the administration of the wife’s paraphernal property, its fruits fell into the community. Civil Code, 2371.

These fruits are consequently liable for the debts of the community. Civil Code, 2372.

An attempt is made in argument to distinguish that portion of the crop of 1841, which may bo considered, it is said, as having been produced before Mussenderds death (June, 1841,) from that portion subsequently produced.

In other words, it is said, that the crop might be considered as one-third more at his death, and no part of the other two-thirds should fall into the community.

This proposition is refuted by the 2376th Article of the Code, which provides, that “ the fruits hanging by the roots on the hereditary or proper lands of either the husband or the wife, at the time of the dissolution of the marriage, are equally divided between husband and wife, or their heirs.”

These fruits being- considered as falling into the community, it must of course bear the charges of cultivation, and other incidental expenses.

Whether as regards other persons, creditors of the community, the renunciation of Mrs. Mmsenden would be deemed inoperative, and she could be treated as an intermeddler, is a question which we need not determine. Considering the relations which existed between Henderson and Mrs. Mussenden,. her youth and inexperience, the complete moral control which he exercised over her, his participation or acquiescence in her conduct, all which appear to have forcibly impressed the mind of the District Judge, we are not disposed to disregard his conclusion, that Mrs. Mussenden was not liable towards Henderson for the community debts, either by an implied acceptance as surviving Wife, or as an in-te rmeddler.

She is, however, charged with such portion of the property or funds of the community, as she has received and converted to her own use.

      jl‘1iís opinion having been delivered, an order referring to auditors was made. — Rep.


text:
    Same Case, at the May Term, 1844, on objection to the Report of the Auditors.
   C. J.

After the expression of opinion by the former Supreme Court, as to the legal principles controlling the controversy, the case was referred to auditors. They have reported a balance of $2169 64,.as due to Henderson by Mrs. Wilcox. To this report objections have been made by both parties. These will be briefly noticed. On the part of Mrs. Wilcox, it is objected, 1st: “That the auditors erred in not charging Henderson with the sum of $2748 81, the portion of the crop of 1841, belonging to Mrs. Wilcox, and made after the death of Mussenden, who died in the month of June of that year.” The point has already been determined adversely to her, and the court sees no reason to change the conclusion. 2d. “ That if the entire crop of 1841, is given to Henderson, there is error in not making him responsible for the use of the capital of Mrs. Wilcox, (her plantation and slaves,) used in making the crop.” Even if this pretension be well founded, Mrs. Wilcox has not furnished evidence which would enable the court to assess an allowance for wages of slaves (whose subsistence has been paid for out of the crops,) or rent of the land; that the court is not disposed under the circumstances to remand the cause for evidence which she should have produced, and thus protract this acrimonious litigation, which has already lasted many years, and in which there has been abundant opportunity for both parties to bring forward all material evidence. 3d. “ The auditors erred in not charging Henderson with the judgment of $3125, with interest rendered on account of the Boyal note, and also the judgment of the lower court now on appeal, condemning- Henderson to pay damages for restraining an execution issued upon the said judgment.” We will make an equitable provision in this respect by our decree in this cause. 4th. “ The creditor erred in not placing to the debit of Mr. Henderson, the sum of $823 61, the amount of the drafts drawn on W. & J. Montgomery, in March 1842.” This objection is founded on a misapprehension. The auditors have made the deduction.

On the part of Henderson it is objected :

1st. “That Mrs. Wilcox should be charged with two notes of $800 and $600, held by the branches of the Carrollton and City Banks, and taken up by Henderson." These grow out oí transactions of the community, and the reasons for not holding Mrs. Wileox for the transactions of the community, have been stated in our former opinion. 2d. “ That there should have been a credit of $500 in favor of Henderson, for that amount paid Mr. Lacey, the attorney of Mrs. Wileox." This sum is credited in the judgment in the injunction case. 3d. That Mrs. Wilcox should he charged with $4059 64, being alleged amounts of a list of notes and accounts said to have -been “ received by Wileox as due to the estate of Mussenden, for collection. The evidence does not show a right to such relief.

It is therefore decreed, that the judgment of the District Court be reversed; and it is further decreed, that the said Stephen Henderson recover of the said Caroline E. Henderson, wife of Whitman Wilcox, the sum of $2169 64, with interest from the date of this decree, until paid, and costs in both courts, incurred subsequent to the date of the order of reference to arbitrators, but with leave to said Caroline to arrest the execution of this judgment by duly entering a credit for its amount upon the judgments obtained by her against said Henderson, by the decree of the District Court in the case of Wilcox and Husband v. Henderson, on the 28th day of January, 1843, and by the decree of said District Court in the case of Henderson v. Wilcox, No. 170, in which the execution of said judgment was enjoined.

It is ordered, that the decree in this case, on the 5th inst., he amended by adding thereto the following:

It is further decreed, that the sum of $100 be allowed to the auditors, Thomas Allen Clarke and Lewis L. Kerr, by this court appointed, for their services herein, and the said sum be paid one-half by the said Mrs. Wileox and one-half by the said Henderson; and that the sum of $500 allowed by the court below, as a compensation to the arbitrators or auditors, Messrs. White and Sherbourn, be paid one-half by said Mrs. Wilcox, and one-half by said Henderson.


text:
    State v. The Judge of the Sixth Judicial District.
    The Supreme Court refused to issue a mandamus to a District Judge to grant an injunction to restrain the execution of a judgment, it appearing that the judgment was for less than $300.
    JjlOR the applicant, Burlo.

   Ogden, J.

This is an application for a mandamus to compel the Judge of the Sixth District to grant an injunction to- prevent Edward Oousinard, Oonsta-stable of the town of Baton Rouge, from proceeding to sell property of the petitioner which he has seized to satisfy a judgment rendered by the Mayor against the petitioner for a penalty incurred by violation of an ordinance of the city. The judgment was for less than $300, and there is no allegation that the property seized is worth that amount. The jurisdiction of this court is limited in granting- writs of mandamus, to matters which tend to aid or maintain its appellate jurisdiction. Independently, therefore,, of other objections to issue a mandamus, the property and the amount of the'fine as to which the injunction was asked below, do not appear to be within the appellate jurisdiction of this court. The amount of damages claimed, viz., $1000, is an independent subject-matter not yet acted on in the court below.. The petitioner had a right to appeal directly to this court from the judgment imposing the fine, if its constitutionality or legality was in contestation. It has been repeatedly held, that although we have jurisdiction as to the legality of a fine, penalty, &c., under $300,. we have not appellate jurisdiction as to the mode of its collection.

The application for a mandamus is refused.


author: Ogdex, J.

text:
    R. Lafon v. John Dufrocq et al.
    The Constitution gives the right of appeal to the Supreme Court from a fine imposed by a municipal corporation, when the constitutionality or legality of such fine is in contestation; but this right of direct appeal to test the constitutionality of the Hue, does not preclude the party upon whom it is imposed, from an action in the District Court for damages, in consequence of its illegal imposition.
    An officer is bound to inquire into the authority of the court from which a writ emanates, and is liable for damages for executing a writ issued by a court without jurisdiction.
    The Act of the Legislature, passed on the 18th February, 1800, entitled “an Act to amend the several Acts relative to the police and government of the town of liatón ltougc,” is a substantial compliance with the 118th Article of the Constitution of 1810, which declares that every law enacted by the Legislature shall embrace but one object, and that shall be embraced in the title.”
    The judicial power which had so long been exercised by the Mayor of Baton Itouge, ceased to be operative after the adoption of the Constitution of 1815 — for, by the 62d Article, the judicial power vested in the Supreme Court, in District Courts, and in Justices of the Peace.
    The Act of 1853, which invests the Mayor of Baton Uouge with the power of Justice of the Peace in relation to all matters pertaining to the duties of his office as Mayor, &c., &cM is a violation of the 78th Article of the Constitution of 1852, which declares that Justices of the Peace shall be elected by the qualified voters of each parish, district or ward. The Legislature cannot confer thepowers of a judicial office declared elecllve by the Constitution, on one whose office does not depend on the Constitution.

      APPEAL from the District Court of East Baton Rouge, Boiertson, J.
    . Burle, for plaintiff and appellant. Seymour, for defendant.
   Ogdex, J.

(Slidell, O. J., absent.)

The plaintiff, who is a baker in the town of Baton Rouge, was arrested and fined by the Mayor for a violation of one of the city ordinances regulating the weight of bread, and the present action is brought by him to recover damages from the Mayor and Constable, on the ground that the defendants had falsely assumed the capacities in which they^acted, of Mayor and town Constable, and that their acts were wholly unauthorized by the Constitution and laws of the State. The petitioner also prayed for an injunction to restrain the defendants from proceeding to collect the fine, which the court below refused to grant, on the ground that the constitutionality and legality of a fine imposed by a municipal corporation was in question, and the court was therefore without jurisdiction.

On the trial of the case on the merits, the court charged the jury, that under Art. 62 of the Constitution, the court was without jurisdiction of the matter in dispute, and the jury accordingly found a verdict in favor of the defendants, and from the judgment rendered thereon, the plaintiff has appealed.

We think the court erred in thus charging the jury. The Art, 62 of the Constitution,, gives- the right of appeal to the Supreme Court from a fine imposed by a municipal corporation, when the constitutionality or legality of such fine is in- contestation; but this right of appeal could not prevent a party from suing to recover damages on allegations such as are contained- in the plaintiff’s petition! It is therein charged, that the defendants had maliciously conspired together to inflict a wrong and injury on the plaintiff, and that he had been arrested and imprisoned by them under color of authority, which they did not legally possess. An officer is bound to inquire into the authority of the court from which a writ emanates-, and is liable for damages for executing a writ issued by a court without jurisdiction. Mayer v. Morgan, 7 N. S. 52. Lowry v. Erwin, 6 R. 192.

The question is, whether the Mayor legally and constitutionally possessed the power which he assumed to exercise.

The power is expressly conferred on him by the 6th section of an act of tlio Legislature, passed on the 18th -of February, 1860. The appellant contends, that this Act is unconstitutional and void, because it Violates the Articles 118 and 119 of the Constitution of 1845, which declares, Art. 118, “Every law enacted by the Legislature, shall embrace but one object, and that shall be expressed in the title,” and Art. 119, “ no law shall be revised or amended by reference to its title, but in such case the Act revised or section amended, shall be re-enacted and published at length.” The title of the Act in question is an Act to amend the several Acts relative to the police and government of the town of Baton Rouge ; and by the 18th section, all Acts passed relative to the government and police of the town are repealed. We consider the Art. 118 of the Constitution is substantially complied with, as the title of the Act sufficiently indicates its object, which was to change the laws relative to the police and government of the town of Baton Rouge ; this certainly afforded a clue to the contents of the body of the Act which, as we held in the case of Lwn-zetti’s succession, ante p. 329, is a sufficient compliance with the constitutional requisites ; and Article 119 was not violated, because no law was either revised or amended, but an entirely new Act substituted in place of former laws, all of which were repealed.

The next objection is, that judicial powers are conferred by this Act on the Mayor, in violation of the Constitution of 1845, which, by the Art. 02, declared that “ the judicial power shall be vested in a Supreme Court, in District Courts and in Justices of the Peace.” This objection we consider well founded. After the Constitution of 1845 was adopted, the Legislature was restricted in granting judicial powers, and this power so long previously exercised by the Mayor, under former Acts of the Legislature, ceased to be operative, and was renewed in the Act of 1850 in violation of theOonstitution. The Act of the Legislature of 1853, which invests the Mayor with the power of Justice of the Peace in relation to all matters pertaining to the duties of his office as Mayor, and in carrying out the ordinances of the board of selectmen, is relied on by the appellees’ counsel to supply this defect in relation to the powers of the Mayor; but we are of opinion, that this Act is equally a violation of the Constitution, the 78th Article of which has declared, that Justices of the Peace shall be elected by the qualified voters of each parish, district or ward. The Legislature cannot confer the powers of a judicial office declared elective by the Constitution on one whose office does not depend on the Constitution, and which is in fact wholly unknown to it. Art. 81 of the Constitution provides, that the Judges of the several inferior courts shall be elected by the duly qualified voters of their respective districts or paxlshes, and Art. 82 makes it the duty of the Legislature to fix the time for holding elections for all Judges at a time different from that fixed for all other elections.

The board of selectmen have the power of suing and being sued, and they have the right to collect fines incurred by the violation of their ordinances, by resorting to the judicial tribunals organized under the Constitution.

The defendants were acting in good faith, believing themselves clothed with due authority under the Acts of the Legislature, and can therefore only be made liable for such loss as the plaintiff has actually sustained, and as we have not the means of determining that, from the evidence of the record, the case must be remanded for a new trial.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed and annulled, and that the cause be remanded for a new trial, with directions to the Judge of the court below to abstain from charging the jury that the court is without jurisdiction of the cause. The costs of this appeal to be paid by defendants and appellees.


text:
    S. Dolese v. C. F. Barberot.
    APPEAL from the District Court of the parish of Plaquemines, Rousseau, J.

      J. Foulhauze, for plaintiff and appellant. L. Lombard, for defendant.
   Ogden, J.

There having been no agreement between the parties to renew the lease, and the privilege of renewing it either for three or six years accorded to the defendant by an express stipulation not having been exercised by him; the effect of his holding over after the expiration of the term of the orignal lease, was to constitute a tacit re-conduction from month to month. See Arti-ele Civil Code 2666, 2659. Gehabee v. Stanly, 1st Ann. p. 17, and Bowles v. Lin, 6th Rob. R. 262.

The plaintiff had judgment for more than ho was entitled to, but the defendant has not appealed nor complained of the judgment in this court, and it is therefore affirmed with costs.


text:
    The State v. The Judge of the Sixth Judicial District.
    The Judge of the District Court, exproprio moiu dismissed plaintiff’s suit, on the ground that the amount claimed was stated fictitiously with the view of giving the court jurisdiction. Plaintiff applied for an appeal which was refused. On application for a mandamusy Held: the right of petitioner to an appeal cannot be doubted. The matter in dispute exceeds $300, and the petitioner has a right to obtain the judgment of the appellate court, on all the questions which have been or might have been passed upon in the inferior tribunal.
    ON an application for a mandamus to the Judge of the Sixth Judicial District Court.

      J. Joor, for petitioner.
   Ogden, J.

(Slidell. O. J., and Buchanan, J., absent.)

On the application of S. Poncaba/ré for a writ of mandamus, the Judge, against whom the rule is prayed for, has waived the formality and delays of the usual preliminary order, to show cause why a peremptory mandamus should not issue and relies on what is contained in the transcript of the proceedings in the court below, in justification of his refusal to grant the petitioner the relief by him prayed for.

It appears that the petitioner instituted a suit for $1000 damages against one Raymond Lafon, for an alleged trespass, which consisted in the said La-fon’s entering upon his premises, breaking down his fences and buildings, &c. He also alleged in his petition, as a ground for damages, the violation by said Lafon of a contract of lease, under which petitioner held possession of the premises at a stipulated rent of twenty dollars per month, the lease to continue for the space of three years. On the trial of the case before a jury, the plaintiff offered certain parol evidence in relation to the contract of lease which was objected to and rejected by the court, and a bill of exceptions moved.

The court at a subsequent stage of the proceedings when the evidence was closed, ex propiro motu ordered the jury to be discharged and dismissed the plaintiff’s suit on the ground that the amount claimed by the plaintiff in the suit, was stated fictitiously with the view of given the court jurisdiction, and that the evidence only established an amount of actual damages sustained by the plaintiff, below the amount necessary to give the court jurisdiction.

The petitioner then applied for an appeal to this court which was refused on the ground of want of jurisdiction.

The right of the petitioner to an appeal, we think, cannot be doubted. The matter in dispute exceeds $300, and the petitioner has a right to obtain the judgment of the appellate court, on all the questions which have been or might have been passed upon in the inferior tribunal.

We cannot undertake on this application to decide any question presented by a bill of exceptions taken on the trial, nor can we now enquire into the correctness of the judgment rendered below, dismissing the suit for want of jurisdiction, but in aid of our appellate jurisdiction and with a view to the decision of all the points involved in the regular course pointed out by law, we will or(jer a peromptory mandamus to issue, requiring the District Judge to grant the petitioner an appeal on his complying with the requisites of law.

It is therefore ordered and adjudged, that a peremptory mandamus issue in this case, directed to the Judge of the Sixth Judicial District, holding sessions of the District Court of the parish of East Baton Rouge, commanding him to grant to the petitioner an appeal to this court from the judgment rendered in the suit of S. Poncabaré v. Raymond Lafon, dismissing the plaintiff’s suit, on the petitioner’s furnishing bond and security as required by law.


author: Campbell, J.

text:
    On an Application of Tutorship of the Minor Children of A. F. and M. Dobb—Thomas Dobb, Appellant—James H. Massey, Appellee.
    The grandfather is called to the tutorship of his grand children, upon the death of their parents, in preference to all other 'persons, unless the surviving parent shall, by 17111, have appointed a tutor; the causes of incapacity for, and exclusion from tutorship, are specifically enumerated in Articles 322, 823 of the Civil Code, and to say that the grandfather can not be appointed unless a resident, would be to extend the cause of incapacity for and exclusion from tutorship, by implication beyond those Articles, which can not be done
    Where the parents died without appointing by will, a tutor to their children, and the grandfather made due application for the tutorship, gave bond and took the oath prescribed by law, and formally declared his intention of continuing his residence in New Orleans, where it was stated he then resided, although he was but a short time previous a non resident. Held: that the District Judge erred in refusing to grant him letters of tutorship.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Moselius, Bonford & Gilmore, for Thomas Dobb, appellant. Glmdee & Bayne, for Massey.

   Campbell, J.

Alexander F. Dobb died in this city on the 18th of August, 1863. On the 26th of the same month his wife, Marietta Dobb, also died. They left six minor children, viz : Alexander Forbes, Marietta Jane, Thomas Gharles, Sarah Ann, William and Catherine Louisa, the eldest, of the age of fifteen years, and the youngest, an infant of eleven months.

On the 23d of December following, Thomas Dobb, the paternal grandfather, applied to the Second District Court of New Orleans, the court in which the succession of the parents had been opened, for the tutorship of his minor grandchildren. The order appointing him legal tutor, was made on the same day, and on the 25 th he took the oath of office.

On the 20th of January, 1864, Thomas Dobb filed his petition praying the court to approve his officical bond; no action was taken on this petition. But on the day after, J. H. Massey, the maternal uncle of the minors, filed his petition to be appointed tutor, and on the 24th, without the previous action of a family meeting, the court made an order, conferring the tutorship upon him. On the same day the Judge rescinded, ex offieio, the appointment of the grandfather, upon the ground, that it had been made in error.

Thomas Dobb has appealed as well from the order canceling liis appointment, as from that conferring the office on the maternal uncle.

It is conceded that if the grandfather had been at the time of his application, a resident of the State, he would have been entitled to the tutorship, and the revocation of the order conferring the appointment upon him, is justified by the fact that he was at the time domiciliated in the State of Ohio, and not a resident of Now Orleans, as alleged by his counsel in his petition through misapprehension ; of which fact the Judge was ignorant when the order was made. In an amended petition, tho error was stated, coupled with an allegation that he had formed an intention of residing in this city, where he then resided, and an expression of his readiness to submit himself to the laws of the State and the authority of the court, in all matters connected with the tutorship.

It is urged by the appellee, in support of the judgment, that tho tutors of minors residing in this State, must themselves, at the time of their appointment, be residents of this State ; which position, he bases on the Article 298 of the Civil Code, which declares, “If the tutor should die or absent himself from the State after his appointment, another tutor shall be appointed in his stead by the Judgeand the Article 851, which provides, that “ The tutor who absents himself from the State is bound to cause another tutor to he appointed in his stead, and previous to his departure, to give an account of his administration; and if he neglects so to do, he may be arrested,” etc. These Articles, it is maintained, make absence a ground for declaring a tutorship vacant: and that from this, it follows that non-residence is a ground of exclusion.

The absence which in the intendment of Article 298, authorizes the appointment of another tutor, is evidently a permanant one — an entire abandonment; which, like its co-relation in the same clause, (death,) vacates the tutorship and makes another appointment necessary. Without such an appointment, the minor would be unrepresented.

The absence contemplated in the Article 351, is as evidently a temporary one, and such an absence does not necessarily or by the terms of the Article imply a vacancy in the office. Before leaving, the tutor was formally bound to have another tutor appointed in his stead; and was not, by such appointment, deprived of the office absolutely, hut conditionally and for the time only ; for on his return he was permitted with tho consent of the Judge, to resume it. This rule is further relaxed by the Act of 24th April, 1841, page 115, which declares that “ curators, administrators, tutors,” etc., who only wish to be absent for a time, ought not to lose their administration on that account, provided they leave a power of attorney to represent them in their administration, etc., thus enabling the tutor, without the intervention of the Judge, to place another person in his stead.

Erom this, it would seem, that the mere fact of absence, is not of itself a ground for declaring the tutorship vacant, and therefore, the conclusion, that absence is a good ground for the exclusion based upon it, is not well drawn.

In Roland, v. Stephens, 8 L. 485, though it was considered that the provisions of these Articles had reference to all tutors of every description known to the law, yet, their application was to be restricted to cases whore minors remain with their inheritance in the State. If this be their true application, the deduction from them of the rule of exclusion contended for, would hardly he deemed legitimate; nor would it be strengthened by the fact which may have been overlooked in tho decision of that case, that Article 298, on which most reliance is placed, is found in the Code under the title of dative tutorship.

The causes of incapacity for, and exclusion from tutorship are specially enumerated in Articles 322 and 323 ; and to extend these causes by inferences and implications, would be to make or amend the law, rather than to expound and apply it. To declare that the grandfather, who is without reservation or qualification called to the tutorship of his grand children upon the death of their parents, in preference to all other persons, (unless the surviving parent shall, by will, have appointed a tutor,) can not be appointed unless a resident, would be to do this. And such it would seem is the construction placed by the commentators on the corresponding texts of the Erench Code. “ Au reste,” says Toullier, “ il faut observer qu’il n’y pas d’autres causes d’exclusion, d’au-tres incapacites, que celles qui sont prévues par le code, dont les dispositions a cet égard sont limitatives et non demonstratives, sans que les tribunaux puis-sent se permettre d’écarter de la tutelle ou du conseil de la familia les individus dont la loi n’a pas prononcé l’incapacité ou l’exclusion.”

“Les pei’sonnes appelées á l’exercice d’un droit, d’une charge ou d’une fonction quelconque, n’en peuvent étro exclues ii raison d’incapacité ou d’indignité, que par un texte forrad do la loi, qui n’a rien voulu laisser en cette matiére á I’arbitraire des juges: ils ne peuvent étendre les causes d’exclusion d’un cas á l’autre.” Toullier, Book 2, No. lili. Merlin, Repertoire, vo. Tutelle, seo. 2, § 3, Art. 3, No. 7.

Competency is the general rule: incapacity the exception, and the exception must appear from the law itself.

The case of Percy v. Provan’s executor, has been referred to.

The court then held that the minors’ grand parents, who resided in Scotland, being absentees, could not claim the legal tutorship by proxy or through their attorney; though they intimate that under the advice of a meeting of the family of the minor, the tutor would be authorized to entrust to them, the care of his person.

Considering that the law gives to the grandfather, in preference to all others, the tutorship of his minor grand children, where parents have died without appointing a tutor by will; that appellant has made due application for the trust and has given the bond and taken the oath prescribed by law, and thereby virtually submitted himself to the jurisdiction of our courts; and further considering that he has formally declared his intention of continuing his residence in this city, where he now resides, we are of opinion that the Judge of the District Court erred in refusing to grant him letters of tutorship and rescinding the order for his appointment.

The view we have taken of this branch of the case, renders it unnecessary to enquire into the legality of the appointment of appellee. The appellant being entitled to the trust and having duly applied for it, the appointment of appellee was unauthorized.

It is therefore adjudged and decreed, that the judgment of the District Court be annulled and reversed, that the order appointing J. H. Massey, legal tutor of the minor children of Alexander P. and Ma/rietta Dobb, be set aside, and that the order appointing Thomas Dobb, tutor as aforesaid, be re-instated and maintained. It is further ordered that this case be remanded, with directions to the District Court to issue letters of tutorship to said Thomas Dobb, according to law. The costs of both courts, to be borne by the appellee.