text:
    No. 743.
    J. D. Wilson vs. City of Shreveport.
    The officers of a municipal corporation can not create obligations binding on the corporation, unless their power to do so is express; or necessarily, or rationally implied by the powers that are expressly granted to them in the charter of the corporation, or is essential to the objects for which the corporation was created.
    The power granted by the charter of a corporation to give such bonds as might be necessary in the conduct of its litigation, or in the current administration of its affairs, does not authorize the issue of bonds for raising money.
    A negotiable form will not impart validity, even in the hands of a bona fide holder for value, of an obligation of a corporation which it had not power to. contract.
    The officers of a municipal corporation can create no debt against the corporation, unless the ordinance creating the debt imposes a tax for its extinguishment.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Land & Taylor, for plaintiff and appellee.

      T. Alexander, City Attorney, for defendant.
   The opinion of the court was delivered by

Marr, J.

Plaintiff seeks to recover of the city of Shreveport thirty-five hundred dollars, on seven bonds for five hundred dollars each, dated the first of September, 1866. He alleges that these bonds were issued to R. D. Sale, in part payment for stock in the Shreveport GasLight Company purchased by the city; and that he acquired them of Sale, in good faith, for a valuable consideration, before maturity.

The city answers that these bonds were issued without authority, and that, having been issued illegally, they are absolutely null and void.

There was judgment in favor of plaintiff for the amount sued for, with, interest from the first of September, 1876. The. city appealed; and. plaintiff, in answer to the appeal, prays that the judgment be so amended as to order the amount to be paid by preference out of the revenues-derived from taxation, according to the tenor of the bonds and as-prayed for in his petition.

By ordinance of the third of July, 1866, the city government provided for the issue of one hundred and fifty thousand dollars in bonds, to be of five hundred dollars each, one hundred redeemable in five years, one-hundred in ten years, and one hundred in 'fifteen years, bearing interest at eight per cent, payable annually, to be transferable by indorsement j none of said bonds to be sold for less than ninety cents on the dollar.

The second section provided for the extinguishment of these bonds, by setting apart ten thousand dollars each year, of the revenues derived from the wharf, to constitute a sinking fund.

On the ninth of July this ordinance was so amended as to set aside ten thousand dollars annually, from the annual taxes of the city, in lieu of the same amount set aside from the wharfage fund.

On the eleventh.of August an ordinance was passed providing that thirteen thousand dollars of the city bonds, one half or more to run for five years and the balance to run for ten years, be appropriated, together with $825 in city change, for the purchase of fl2,500 of stock in the Shreveport Gas-Light Company, the bonds to be paid out at ninety cents on the dollar, the change notes at par; and a committee was appointed to make the purchase.

By a memorandum furnished by a clerk of the administrator of accounts it appears that thirteen of these bonds, Nos. 68 to. 80 inclusive, having ten years to run, were issued on the first of September, 1866, to R. D. Sale, secretary of the Shreveport Gas-Light Company, of which Nos. 75, 76, 77, 78, and 80 were retired, when or how it is not shown, leaving “afloat,” in the language of the memorandum, Nos. 68 to 74 inclusive and No. 79. The seven held by plaintiff, and sued on, are Nos. 68 to 74 inclusive.

The only testimonial proof is that of Leonard, who was city controller on the first of September, 1866; and he says these bonds were a part of •a series issued by the city in payment of stock purchased in the GasLight Company. ,

The bond copied in the transcript, which differs from the others only in the number, certifies that the mayor and trustees are indebted to R. D. Sale or bearer in the sum of five hundred dollars, payable, at the controller’s office, which sum the mayor and trustees promise to pay to Sale or bearer, “ ten years from the date of this bond;” and also to pay interest annually from date, at eight per cent. “ Eor faithful payment of this bond the city has pledged all the revenues derived from the taxation of real estate and personal property within the city.” Dated the first of September, 1866, signed by the mayor and controller, and countersigned by the committee on finance.

.The only question to bo solved is as to the validity of these bonds as obligations of the city of Shreveport; whether the municipal government had legal power and authority to bind the corporation by these instruments.

Dillon on Municipal Corporations, chapter v., p. 173, sec. 55, says: “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, tho^e granted in express tuords; second, those necessarily or fairly vrnplied m or incident to the powers expressly granted; third,.those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable.”

This is so manifestly true that we shall not cite authorities in support of it; and it is much to be regretted that so many of those chargqd with the administration of municipal corporations, and some judicial tribunals, ¡sitting in judgment upon their acts, have.not acknowledged and recognized this doctrine to its full extent, and have not Observed and enforced it inflexibly and unqualifiedly. It remains for us to review the several ■acts of the Legislature incorporating the town ■ of Shreveport and amending the charter, in order to ascertain whether these bonds were ■issued in the lawful exercise of power and authority conferred upon the •corporation by the Legislature.

The original charter of the town of Shreveport was by act of 1839, page 200. The word “ bond ” does not occur in this act, but section four ■made it the duty of the mayor “ to sign .all notes or other obligations binding the corporation.”

The power of direct taxtion was limited, by section six, to one thousand dollars in any one year; and the trustees were also empowered to levy and collect, by just and equitable apportionment, a tax on certain personal property and callings and pursuits.

The charter was amended by act of 1850, page 123; and by one of the clauses .of section one the mayor and trustees were-authorized to “ give bonds and,.receive bonds, which shall be as effectual in law as other bonds given under the laws of this State.” . •

This clause was repeated in the act of 1853, which simply amended and re-enacted section one of the act of 1850, by omitting the limitation of direct taxation to two thousand dollars, fixed by the act of 1850.

Section four of the act of 1850 repealed that clause of section' four of the act of 1839 which made it the duty of. the mayor “ to sign all notes ■or other obligations binding the corporation.”. Subsequent acts make no mention of bonds ‘or notes or other obligations. The act of 1854, page 165, relates to the establishment of work-houses; that of 1857, page 216, ■authorizes the imposition of fines and the levy of taxes <on certain property and pursuits; that of 1859, page 120, relates to-the officers-of the ■corporation, the manner of collecting taxes, the levying of taxes for paving or macadamizing the streets, the establishment of hospitals, pest-houses, cemeteries, etc.; the two acts of 1860, one, at page fifty-nine, authorizing the mayor and trustees to sue and be sued as “the city of Shreveport,” the other, pago 106 et seq., relating to- the collection of municipal taxes; and the two acts of 1866, one, at page eighty, like that of 1852, page seven, relating to the establishment of ferries across the Red river, and the other, page 276, authorizing the mayor and trustees to purchase and hold, in fee simple, real estate outside the corporation for the use and benefit of the town.

The power to issue bonds, for the purpose of raising 'money, was not granted to the .municipal government prior to the new act of incorporation in 1871, unless such power is dedueiblq from section four' of the acts of 1839 and 1850, respectively, .or .from section ,one .of .the acts of. .1850 and 1853, respectively; the former'making it the duty of the mayor to-sign all notes or other obligations binding the 'corporation; the laitbr authorizing'the mayor and trustees to gi-we-bonds aridtoTecew’e bonds.

The duty imposed on the mayor! to sign all notes or other obligations: binding the corporation is in the section which is devoted' to the powers and duties of the mayor. If, under the powers grantéd, notes or other obligations can be given binding the corporation, such notes or obligations: 'must be signed by the mayor, the executive of the municipal government; 'but the section does not undertake to say what notes or'other obligations the mayor may lawfully sign. The corporation is not bound by any unless they are signed by him.

The acts of incorporation,'1839,1850, authorize the mayor and trustees to sue and be sued “ in any and! all manner'of causes and'actions; to acquire, hold, farm, lease, or convey' any property, real or personal,”- and to compromise, arbitrate, or transact in regard thereto, and to erect public works and buildings. In some causes or actions appeals' might, be necessary, for the enforcement or the protection of the rights of the corporation; in other cases conservatory process might be necessary,, such as writs of arrest, attachment, provisional seizure, sequestration, injunction. In all such cases bonds must be given by the appellant, and by the party asking for such writ or process; and it was only by the new charter, act of 1871, p. 227, that the city of Shreveport was dispensed with giving bond or security in judicial proceedings where, by law, such bond is required of litigants. The mayor and trustees might find it. necessary to let property, to obtain the use of buildings necessary for municipal purposes on lease, to acquire or to convey real or personaL property, to arbitrate, or to compromise. ■ It might be necessary, in the administration- of municipal affairs, to make contracts for the several public purposes contemplated and provided for in the charter, and pertaining to the police power, work on the streets, wharf, public buildings, etc. In such cases contracts reduced to writing, signed by' the parties, are usual and proper, binding the contractor to perform faithfully his engagements, and obligating the corporation to pay him as stipulated.

The act of 1839, section ten, required the treasurer and collector to give security for the faithful performance of their respective duties; but it failed to prescribe the form in which such security should be given.

It was eminently proper, therefore, that the mayor and trustees should be specially authorized to give such bonds as might be required of them as litigants, or as parties to a compromise or arbitration; and that it should be made the duty of the mayor to sign such bonds; and also to sign such notes as it might be necessary, to give for the rent of buildings, or offices for municipal purposes, and such other obligations as might be requisite to the proper execution of the several powers enume.xated; and that they should be, empowered to take and receive such bonds with security as wo uld, guarantee the fidelity of the custodians of the funds of the corporation.

The limitation on the power of taxation excludes the idea of any intention on the part of the Legislature to confer upon the mayor and trustees authority to issue notes, or bonds, or other obligations to be put upon the market to raise money; and the whole context shows that the ■bonds and notes, and other obligations referred to, meant such engagements only as were within the means and resources of the corporation, •as provided by the charter, necessary in the ordinary course of administration of municipal affairs.

As early as 1855 the Legislature, by a general law, No. 263, p. 325, imposed a wholesome restriction upon the extravagance of municipal corporations by enacting, section four, p. 326: “ That the police juries of the several parishes, and the constituted authorities of incorporated towns and cities in this State, shall not hereafter have power to contract any debt or pecuniary liability, without fully providing, in the ordinance creating the debt, the means of paying the principal and interest of the debt so contracted.”

This law continued in force, and was re-enacted, ipsissimis verbis, in the Revised Statutes of 1870, sections 2448, 2786. What an immensity of extravagance, corruption, wastefulness, unnecessary and grievously burdensome taxation, bankruptcy, moral and financial ruin might have been -spared to the people of Louisiana if this wise law had been observed and enforced !

Corporations, like individuals, may imagine they require many things, which really can well be dispensed with, or the enjoyment of which may be deferred until they have the means to gratify their tastes and their wishes. The one and the other must learn to live within their means and re•sources; and those who fail to observe this rule of common sense and common honesty disappoint no one when they become hopeless bankrupts.

.It might have been convenient for the town of Shreveport to own stock in the Gas Light Company; but the lighting of the streets did not make it necesssary for the corporation to become a stockholder in that company. , The acts of incorporation enable the corporation to acquire property; but there is no occasion for the contracting of a debt in order to exercise this right. With money in hand, property may be acquired •on advantageous terms; those who have not the money, should wait until they have it, or use their credit only when the means of meeting the debt at maturity are provided and are certain. The Legislature meant to compel the observance of-this much of honesty by municipal corporations, by prohibiting the contracting of debts by them without fully providing for the payment of principal and interest in the ordinance by which the debt is created. We shall enforce that law, whenever it is in our power, and occasion may require.

Those who contract with municipal corporations, know that these-bodies act validly only within the powers conferred upon them by the-special laws by which they are created; and the creditor of a corporation is bound to see that the contract or obligation, of which he claims-the benefit, is within the power which the corporation may lawfully exercise. The fact that the obligation is in the shape of a negotiable instrument, or that it was acquired in good faith, for a valuable consideration, before maturity, in no manner enlarges the power of the corporation, or gives any additional force or validity to its unauthorized acts. It may be added, however, that plaintiff purchased these bonds, at fifty cents on the dollar, at sheriff’s sale, under execution, on a judgment against his debtors, who, as he alleges, pledged them to him as security.

The ordinance under which these bonds were issued made no such provision for the payment of the principal and interest as the law imperatively requires. The second section of the ordinance set apart ten thousand dollars a year from the revenues derived from the wharf as a sinking fund; but the mayor and trustees, within a week after its passage, repealed this section of the ordinance; and, with out'levying any new or additional tax, set aside ten thousand dollars out of the taxes of each year as a sinking' fund. The bonds were for one hundred and fifty thousand dollars, on which the interest, at eight per cent, would be-twelve thousand dollars; so that it would have required twenty-two thousand dollars to pay the interest and to provide for the retirement or redemption of ten thousand dollars of the bonds the first year. Upon-the hypotheses that ten thousand dollars would be provided for each year, the amount required for the first year, twenty-two thousand dollars, would have been diminished by eight hundred dollars only each year. The statement in the bonds that the city, “for the faithful payment has pledged all the revenues derived from the taxation of real estate and personal property,” is not more obligatory than the promise to pay; and it could be disregarded with equal facility 'and impunity. What the law means by “providing fully in the ordinance for the payment of principal and interest,” it has taken care to explain in very simple terms. The succeeding section, five, of the act of 1855, says: “ The ordinance or enactment providing for the payment of the principal and interest of any debt created by any board of police, or authorities of incorporated towns and cities, shall remain in full force until the debt and interest is paid.”

These two consecutive sections of the act of 1855 are re-enacted in the-same order in the Revised Statutes, sections 2448, 2449,2786,2787. The-succeeding section, six, in the act of 1855, likewise re-énacted in corresponding order in the Revised Statutes, shows that the Legislature intended that a tax, sufficient to pay the debt and interest in full, should be imposed by the ordinance which created the debt; and it empowered the proper judge, at the instance of the creditor, to enforce payment by compelling the corporate authorities to collect the special tax, just as other taxes were collected. It was under the dominion of this law that these bonds were issued; and by this law they must be tested.

The bonds sued on were issued without legal warrant or authority; they were issued in contempt and in flagrant violation' of sections four and five, No. 263 of the act of 1855, a prohibitory law; they are not obligations which can be enforced in a judicial tribunal, they are absolute nullities.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that there be judgment in favor of the city of Shreveport, appellant, defendant, against J. D. Wilson, appellee, plaintiff, rejecting his demand, and dismissing his petition, with costs in both courts.

Mr. Justice Egan having been of counsel, takes no part in this decision.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 745.
    G. W. Sentell & Co., in Liquidation, vs. Mrs. M. G. Kennedy and Husband.
    Where a principal has dealt with a merchant through an agent acting under a written power of attorney, the merchant may prove by parol the correctness of his account, and any acknowledgment of its correctness, or any ratification of it by the principal, even if the agent has transgressed his mandate, or there are charges in the account which could not be legally enforced.
    Where a factor’s account is closed, stated, and rendered, at the end of the commercial year, and not objected to by his client, showing a balance in his favor composed of principal and accrued interest, on such balance interest may be charged in any subsequent accounts between the parties. Interest on such abalance is not compound interest.
    Ratification by the principal of the unauthorized acts of an agent makos those acts binding on the principal.
    A power of attorney sufficiently comprehensive to authorize the agent to manage a plantation, and disburse the proceeds of its crops, will justify the factor who sells the crops to pay out their proceeds on the orders of the agent.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. . Turner, J.

      J. A. Snider, for plaintiffs and appellees.

      J. D. Watkins and J. A. W Lowry, for defendants.
   The opinion of the court was delivered by

Marr, J.

G. W. Sentell & Co. were factors and commission merchants, ■of New Orleans, and Mrs. Mattie Gilmer, now wife of P. J. Kennedy, lately widow of P. V. O’Neill, owned certain plantations in Bossier parish, where she resided.

O’Neill died in the fall of 1870; and his widow was the administratrix of his succession. On the first of December, 1870, she executed a writing, recorded in the office of the parish recorder of Bossier on the nineteenth of December, 1870, by which she appointed Samuel W. Yance, of the same parish, her agent, with large powers, to be exercised, in her absence as well as when she was present, with respect to her personal rights and property, as well as in reference to the succession of her deceased husband, “in the management of plantations and estate.”

Under this power, Yance managed the entire business of his constituent up to the sixteenth of May, 1874 He shipped her crops to G. W. Sentell & Co., and through them he controlled and disposed of the proceeds, purchased supplies for plantation and family use, and made all the outlays and disbursements.

The account was kept by Sentell & Co. in the name of “ Mrs. M. G. O’Neill,” and it begins on the twenty-fifth of January, 1871. Detailed accounts were rendered on the first of June, 1871; twelfth of April, 1872; twenty-fourth of June, 1873; sixteenth of May, 1874; tenth of May, 1875, and twenty-first of February, 1876. The last account is in the name of “Mrs. M. G. Kennedy,” and it closes with a balance against her of $3497 22, for which this suit was brought in September, 1876.

The debit side of these accounts consists of invoices of merchandise, supplies purchased, freights paid on them, cash advanced, numerous drafts, most of them, at sight, commissions for advancing, and for accepting where time-drafts were drawn, and interest at eight per cent. The credit side consists of proceeds of sales of cotton, except certain items of cash, which will be more specially mentioned hereafter; and interest allowed at the same rate. Each of these accounts, except the first, shows a balance due by Mrs. O’Neill, and each balance is the first item, to the debit, in the succeeding account.

All the drafts were signed “ Mrs. M. G. O’Neill, per S. W. Yance, agent,” except one, signed by Mrs. O’Neill herself, in favor of Vance, of date seventh of April, 1871, for $698 47. One of the drafts was in favor of Head, tax-collector, dated fifteenth of July, 1873, for $959 71, for State, and parish taxes duo by Mrs. O’Neill, for 1872. The others are in favor of divers persons, for different amounts, with no indication of the purposes for which they were drawn.

The answer of defendant, assisted by her husband, was filed on the twenty-first of March, 1877; and the plea of prescription was filed on the same day. The former begins with a general denial; and this is followed by a special denial of the authority of Yance, “ as agent, to sign notes, or bills, or drafts, to bind defendant," She alleges that “ her plantations made, and plaintiffs received annually from them, cotton worth largely more than the expenses;” that “the charge of interest, compounded, in said account is usurious and unlawful, and the same of the commissions charged;” and she shows that “the item of June 1,1871, $8590 43, which plaintiffs charged to M. G. Gilmer, and placed to the credit of S. W. Yance, is unlawful and unauthorized, and other items, also.”

The testimony in behalf of plaintiffs was taken before the answer was filed, except that of J. A. Snider, a member of the bar, which was given on the trial. The trial commenced on the same day that the answer was filed; and the judgment was in favor of plaintiffs for $4567 20, with five per cent interest from the sixteenth of May, 1874; and the additional sum of one hundred dollars, with like interest, from the twentieth of October, 1874, until paid, subject to a credit of $2559 40, of date twenty-fourth of February, 1875.

This judgment was arrived at by taking the balance, $4838 63, shown by the account ending sixteenth of May, 1874, when Yance’s agency terminated, and adding invoice of twenty-sixth of July, 1873, with interest to the sixteenth of May, 1874, say $441 47, aggregating $5280 20. From this aggregate the commissions charged for advancing up to the sixteenth of May, 1874, $712 90, are deducted; and the additional sum, one hundred dollars, is for money paid to defendant in person by Sentell & Co. The credit is for proceeds of cotton, forty bales, shipped by defendant to Sentell & Co. after Yance’s agency had ceased, sold twenty-fourth of February, 1875.

Defendant appealed; and plaintiffs, in their answer, pray that the judgment be so amended as to allow the $712 90 for commissions, rejected by the court below; and interest at eight per cent from the sixteenth of May, 1874, instead of five per. cent, as allowed.

Before proceeding to other matters, wo shall consider certain items in the accounts rendered, which are not explained by the testimony, and which should and probably would have been explained, but for reasons which dispensed with such proof, as we shall see in the sequel.

In the account beginning twenty-fifth of January, ending first of June, 1871, there are but three items to the credit of defendant, one twenty-fifth of January, 1871, “by cash received, B. M. Johnson’s check, $8912 60;” one February 6, “by cash received, Watt & Troy’s check, $3492 39;” and one first of June, “ by interest balance to your credit, $288 10.” The last item to the debit of this account, which balances and closes it, is on the first of June, “ to Dr. S. W. Yance, amount to your credit, placed to his account by his order, $8590 43.”

In the account beginning ninth of June, 1871, brought down to twelfth of April, 1872, on the credit side is this entry, under (late eleventh of April, “by cash received of S. W. Vance, Sandidge & Co.’s check, $3689- 56;” and in the account beginning twelfth of April, 1872, brought down to twenty-fourth of June, 1873, is this entry to credit, under date twenty-sixth May, 1873, “by Dr. S. W. Vance,-this amount charged to him, and placed to your credit by his order, $6811 66.” These two credits amount to the sum of $10,501 22; and interest is allowed on them from the eleventh of April, 1872, and twenty-sixth of May, 1873, respectively. The $8590 43, transferred to Vance’s account on the first of June, 1871, with interest-for two years at eight per cent, would amount to $9964 90, less, by $536 32, than the aggregate of the two sums placed to the credit of defendant by Vance, on the eleventh of April, 1872, and twenty-sixth of May, 1873.

The law does not require judges, in the absence of proof, to impute fraud or crime; and it is much more in accordance with the intimate relations existing between Dr. Vance and Mrs. O’Neill, to assume that he did not abuse his fiduciary powers, and betray her confidence by appropriating her money to his uses, without her consent, wrongfully; and that the sums placed by him to her credit left her no cause of complaint on that score.

Among the numerous letters written by Vance to Senteli & Co., filed in evidence, all of which are in the most friendly terms, and show great intimacy between the parties, is one of the tenth of March, 1871, in which Vance says: “Mrs. O’Neill wishes to buy half-interest in store, which I may sell to her.” In the account beginning twelfth of April, 1872, under date seventeenth April, more'than a year after this letter of the tenth of March, 1871, this entry appears to the debit: “ To S. W. Vance & Co., one half their debit to us, $2600 20;” and again, under date twenty-seventh of May, 1873, this entry appears to the debit: “ To S. W. Vance & Co., your one half of their indebtedness, incurred since April 16,1872, $4208 71.”

It is not difficult, certainly it is more satisfactory, more in harmony with the unquestioned facts established in this case, to assume, in the absence of proof to the contrary, that neither Senteli & Co. nor Vance intended or attempted to make Mrs. O’Neill, toward whom they both occupied fiduciary relations, pay one half of the debts of S. ~W. Vance & Oo. without corresponding liability on her part; that it was true, as Vance wrote Senteli & Co. on the tenth of March, 1871, at a time not suspicious, casually, in the freedom of friendly correspondence, that Mrs. O’Neill wished-to buy a halt-interest in Vance’s store; that Vance afterward acceded to her wish, as he said in his letter to Senteli & Co. he might do; that she actually did buy that interest; and that'the sums just mentioned were properly charged to her for her share, one half of the indebtedness of the “ store,” from the date of the purchase.

We know that on plantations where large numbers of laborers are employed, the proprietors find it to their interest to establish “stores,” so that the laborers will not be compelled to resort to the neighboring villages for such things as they may need from time to time; and the proprietors will not be annoyed by having strangers enforcing liens on the portions of the crops belonging to the laborers; and it was quite natural that Mrs. O’Neill, necessarily employing a large number of laborers, in the cultivation of her plantations, should desire to share, equally with her agent, in the benefits and convenience of such an establishment.

In this connection, it is proper to state, that Sentell proves that, in 1861, Dr. Vance was the agent of defendant. He says, speaking of Mrs. O’Neill: “ I have know her very well for twenty-four or twenty-five years. In 18611 was a member of the firm of Sentell & Prother, who did business with defendant, through her agent, Dr. Vance, under the same terms and rates as to interest and commissions as mentioned in the account now sued on.” So that the relations between these parties were of long standing, and they must have been quite satisfactory, or they would not have been renewed in 1870, immediately after the death of defendant’s husband, O’Neill.

Plaintiffs took the testimony of G-. W. Sentell and of McLean, the bookkeeper and cashier of G. W. Sentell & Co. They, both prove the correctness of the accounts; and they annex to their depositions a large number of drafts and invoices as vouchers; and many letters written to Sen-tell & Oo. by Vance, as agent for Mrs. O’Neill, and in reference to her business.

Defendant objected to this testimony, and to that of Vance and Zeigler, his clerk, and of J. A. Snider, a member of the bar, all the witnesses in behalf of plaintiffs, on grounds which are embodied in one bill of exceptions, which we copy, because it is easier than to condense it; and because it presents the entire defense to the demand:

“Defendants objected before the clerk (who took the depositions of Vance and Zeigler), and before crossing the interrogatories to Sentell and McLean, and objected at the trial to the introduction of the evidence of all said witnesses, and that of J. A. Snider, as also being parol and testimonial evidence, which could not be received to prove the mandate or power of attorney given by M. G. Gilmer to S. W. Vance, as the same was in writing, and the writing was the best evidence, which could not be contradicted, varied, or extended by parol. C. C. 2256.

“ They objected to the «plaintiffs’ offer to introduce-or to taking of said evidence, because plaintiffs sought, in the claims sued on, to force.defendant to pay a large amount of usurious interest and compound interest; interest on interest).and commissions for use. of .money, which could not be proved by parol. Bat in law, no promise to pay any interest beyond five per cent simple interest could be proved by any other evidence than written evidence, signed by the defendant.

“They further objected that where it took such evidence to bind defendant, no agency could be proved to bind her, except written evidence of the agency.

“ That the drafts, and bills, and orders purporting to be signed by S. W. Yance, as agent, were without authority, were his debts; and no assumption of defendant to pay same could be proved by parol or other than written evidence, signed by defendant. Which objections were overruled by the court, and the evidence received, to show acknowledgments, both verbal and in writing, of acts by agent, and to show payments made by such agent, the correctness of which payments was recognized by the defendant, by writing, and to show, generally, the correctness of the acts of the agent.”

First — The first part of this bill of exceptions is based upon a misapprehension of fact. The plaintiffs offered the written power of attorney; and they made no attempt to prove it otherwise than by this writing. The testimonial proof was offered to show what the agent did. The acts of an agent may be proved by any sort of testimony by which such .acts can be established; and when they are proven, reference must be had to the written power itself, in order to determine, as a matter of law, whether these acts fall within its scope and design. The distinction between proof to establish a written power, and proof to show what the agent did in execution of that power,,is too obvious to require discussion. The written power must be proven by the wiiting itself; the acts of the agent may be shown by any evidence by which the same acts, done by any individual, could be proven.

Second — The next objection is also founded on a misapprehension. The testimony was not offered to prove any agreement by defendant to pay compound interest, or usurious interest. The object was to prove the correctness of the account; and, certainly, the correctness of an account may be proven by showing that the items of which it is composed, debit and credit, are in accordance with the actual dealings between the parties. The fact that accounts were rendered frequently, during the course of the dealing, and that no objection was made by the debtor; that these accounts were runnipg for several years, and were acknowledged to be correct by the debtor, and by his agent; that payments were made; would tend to prove that they were correctly stated. ' Parol evidence is admissible to prove such facts, to prove an account; and the fact that there are charges in the account which the debtor could not be legally compelled to pay, is no obstacle to proof that he acknowledged it to be correct, and promised to .pay it, and did make ..payments, at different times. The effect of such proofs, so'far as any illegal charges in the account are concerned, is one thing; the proof of the facts is another, and a wholly different thing.

Third — It is the uniform custom of the commission merchants of New Orleans,'and every planter in Louisiana knows it, to charge and allow interest at eight per cent; to charge two and a half per cent commission for selling cotton; the same for buying supplies ordered; the same for advancing; and the same for accepting time-drafts. When the crop is sold, an account is rendered; and if any balance remains, due the merchant, if it is not paid, it is carried into the next account, treated as due at the date of the last account; and interest is. charged on it from that date. This balance is made up of the principal, interest, and commissions, less proceeds of sales, and interest allowed; and this has been held to be no violation of article 1934 of the Civil Code, 1939 of the Kevised Civil Code; Mylne’s case, 4 An.; Compton’s case, 5 An. Indeed, the text of this article of the Code is too plain to leave any doubt as to its meaning:

' “ Interest upon interest can not be recovered unless it be added to the principal, and, by another contract, made a new debt. No stipulation to' that effect in the original contract is valid.”

An agreement by the original contract, to pay interest upon interest is not valid. Interest upon interest may be recovered, where the interest, after it has become exigible,'is capitalized, added to the principal, and by another contract ma,de a new debt. - -And this is precisely what the merchants in New Orleans do, and what they have been doing, invariably, for years; and the planter, who accepts the accounts without objection, and continues to do business with the.merchant from year-to year assents to this, and binds himself as effectually as he could do by express promise, or verbal acknowledgment.

In point of fact, where the credits in the accounts suffice to pay the interest, this mode of keeping"accounts can not be called the compounding of interest; because, so much of the aggregate debit as is composed of the interest, is paid by deducting the aggregate credit, composed in part of interest allowed, and is extinguished. The result is the same to the debtor, whether his credits are first applied to the payment of the interest which he owes, and the balance of the credit is applied to the remainder of the debit; because, no matter how the deduction is made, the balance which remains and is carried into the next account, will be precisely the same.

In the accounts of Mrs. O’Neill, the credits were largely in excess of the interest and commissions charged; and the objection based upon the hypothesis that interest was compounded, is not well founded in fact. But, as'we have already said, the entire objection goes to the effect of the testimony, and not to its admissibility.

Fourth — The power of attorney authorized Yance for and in the name and stead of his constituent, “ to demand, sue for, and collect, and receive all sums of money, of whatsoever nature, in all business transactions of my own and as administratrix of1 the estate of my late husband, P. Y. O’Neill, and more especially the policy of life-insurance, to collect and receipt for same in my name and stead, and other demands of every kind, nature, and description, which are due and owing, or may be payable to me for my own account, or as acting for the interest of other parties or successions, to give good and sufficient receipts, acquittances, and discharges therefor; and to do each and every act for me and in my name and stead, during my absence from said parish and State heretofore named, or in my presence, that I could do if present and acting for myself, specially empowering my said attorney in fact to act for me as fully as I could in the management of plantations and estate, and all other business of whatsoever nature in any parish or State where my interest may exist or be.”

It can not be questioned that this power was ample to enable Yance to employ overseers and laborers, and to pay their wages; to purchase necessary supplies; to ship the crops, and to control and receive the proceeds. The plantations were in Bossier, where Yance and Mrs. O’Neill lived. To obtain supplies, purchases must be made; and they were made, and Mrs. O’Neill knew they were made in New Orleans, and that they were made through plaintiffs, because the invoices, with the goods, for the plantation' on which she lived, and for the use of her family, were sent to her. She knew that Yance could not afford to go to New Orleans to make the purchases in person, which were required from time to time, during the several years of his agency; and she must, therefore, have known that when such things were wanted, Yance would order them, for she did not order them; and that he could not do this otherwise than in writing. The receipt by her, and the use by her, of each invoice of goods ordered by Yance, was a ratification of his act in ordering them, which she has no power to recall.

Defendant knew that Sentell & Co. were her commission merchants, and that she had an account and funds with them; because, on the seventh of April, 1871, four months after the giving of the power, she drew on them, at sight, to the order of Yance. She must have known that Yance paid her taxes, and the expenses of her plantations, since she did not pay thém herself; and, as the crops were shipped to Sentell & Co., money must be obtained from them to meet all the expenses of the plantations and of the family; and she expected Yance to get it, and to disburse it for her account. She must have known that the only practicable way of doing this, was by drawing on Sentell & Co. for. the sums required, as they were required. These drafts were not intended to bind her, they did not have the effect of binding her, as the maker of commercial paper, to circulate or to be discounted. There can be no doubt of the authority of Yanee to have demanded and to have received, and to have given “ good and sufficient receipts, acquittances, and discharges,” for the entire proceeds of sales of her cotton, or any other funds of Hers, in the possession of Sentell & Co. ’ The drafts, bills, and orders were simply vouchers to Sentell & Co. to show what disposition they had made of defendant’s money and property in their hands; and as Yanee, if ho had been in New Orleans, might have directed Sentell & Co. verbally, to pay the money in their hands to such persons as he might name, there can be no good reason why he might not, being in Bossier parish, give the same direction in writing. Of course, in either case, if he abused his power, and made an improper disposition of his constituent’s money, he would be answerable to her.

The testimony was not offered to show any assumption, by defendant, of the debt of her agent, but the object was to show, by proof of her acts and acknowledgments, that the debt was her own; and that the agent bound her by his gestión of her business, his acts of administration of her affairs.

The testimony was properly admitted; and it makes this a very plain case. Yanee proves the correctness of the accounts, and frequent recognitions of their correctness by Mrs. O’Neill. At the close of his agency there was a disagreement between him and Mrs. O’Neill as to the acts of his agency, J. A. Snider was the attorney of defendant, employed to settle this disagreement between her and Yanee. He procured from plaintiffs the account sued on for the purpose of this settlement. Defendant, then Mrs. Kennedy, had the benefit of the advice and assistance of her husband, and of an experienced counselor. Her only complaint was as to the excessive interest and the commissions charged. Nothing was said about want of authority in Yanee, nor was any complaint made as against plaintiffs. She complained of her agent; and that was the whole matter to be settled. Mr. Snider .went through the accounts, and he made a statement showing the amount which she claimed to be excessive. The settlement was made on the eleventh May, 1875, witnessed by a written instrument, which shows the payment to her by Yanee of $7099 06. Yanee says “ this was to satisfy her for all objections she made against contracts he contracted in her name, the account sued on in this action included. The account sued on in this case was made tlio basis of the final settlement made between witness and defendant.”'

Snider says: “The objections to the account sued on in this action included the sum specified in the act of settlement, the same being $7099 06. Witness made up, in this settlement, a full account of the excessive interest and commissions embraced in the account sued on.”

Vance proves frequent recognitions, by defendant, of his acts as her agent; that he submitted to her, at different times, accounts of his transactions, which she acknowledged as correct. Vance gave up all claim for compensation for his services as agent, that is, in addition to the-$7099 06, which he. paid Mrs. Kennedy, -he acknowledged payment in'full for his services.

Sentell and McLean both prove that Mrs. Kennedy was in the office of Sentell & Co. in February, 1876; that Sentell showed the account to her, and asked her to examine it, “and to state her objections to it, if any she had. She examined it, and replied that the account was correct, and that she would pay it as soon as she could.” She refused to close the account by note, as Sentell wished her to do, but she said if she made a good crop she would pay it all that year; if she did not make a full crop, she would pay according to the crop, from year to year, until the whole was liquidated.

The account rendered tenth May, 1875, shows that the entire proceeds of the forty bales of cotton' shipped after Vance’s agency terminated, were left in the hands of Sentell & Co. on account of her indebtedness; and that account and the one rendered twenty-first of February, 1876, show no charge to her debit except for interest accrued, and commissions.

It is impossible'to admit that defendant was ignorant, at the time of this interview, of the particulars of the account, because this was some-nine or ten months after the final settlement between her and Vance, when the account had been canvassed, thoroughly examined, and all her objections had been embodied in a detailed statement, which was made the basis of, and included in, the final settlement between her and her agent.

The question in this case was not as to any promise by parol to pay interest above five per cent, nor as to any obligation on her part to pay commissions for advances. The account rendered by Sentell & Co. showed a certain amount due by her. Conceding the authority of Vance, her agent, to bind her, she claimed of him such portions of that account, excessive interest and commissions, as she was not legally bound to pay. The settlement between her and Vance left nothing open to dispute between her and Sentell & Co. Having received from Vance the equivalent of the charges in the account of which she complained, if she should now be allowed a deduction for these charges, they would be paid to her*' twice: once, in the settlement with Vance, in May, 1875, and again by deducting them from the account. No judicial tribunal should countenance such a claim. Defendant is bound to pay the whole amount, balance shown by the account ending the sixteenth of May, 1874, and the invoice of twenty-sixth of July, 1873, with interest to the sixteenth of May, 1874, aggregating $5280 20; and one hundred dollars, cash, twentieth of October, 1874, to be credited with $2559 40, proceeds of sale of forty bales of cotton, twenty-fourth of February, 1875.

It is not possible to make out a more complete case of ratification, by a principal of the acts of an agent, than is established by the proof in this case; and there was no necessity to go into the particulars of the .accounts, because the result was acknowledged and admitted to be correct, except the interest and commissions, which were allowed, corrected, and paid by Yance.

Defendant called two witnesses only, neither of whom proved anything in her favor. One of them said, on cross-examination, that few" farmers on Red river or elsewhere made any money for the last six years;: and that a great many of the farmers on Red river, “ for years past,, have been running their plantations on advances from their merchants.”

The other witness says he knows that the Kingston place, on which Mrs. O’Neill lived, “ if correctly managed, would have made a profit from-1871 to 1874.” On cross-examination, he says “ he does not believe the-river planters in Bossier parish have made much money from the year-1871 to 1874, inclusive. Some of the planters have been running their.plantations on advances made them by their merchants.”

Mrs. Kennedy’s acknowledgment and verbal promise to pay the ac^count, do not bind her to pay eight per cent interest, or commissions,, since the sixteenth of May, 1874. She is bound to pay the amount due-on the sixteenth of May, 1874, not because of any promise to do.so, but-because the settlement with Yance imposes that obligation on her; and she has no right to claim any deduction on account of the interest and commissions charged up to the sixteenth of May, 1874, because she received the equivalent from Yance, in order that she might pay the whole-amount of debt incurred during his agency, including interest and commissions, of which she complained, without loss or detriment to her.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be so amended as to read as follows: “ That G. W. Sentell & Co., in liquidation, plaintiffs and appellees, do have and recover .of Mrs. Mattie G. Kennedy, wife of P. J. Kennedy, defendant and appellant,. $5280 20, with interest at the rate of five per cent per annum, from the-sixteenth day of May, 1874, until paid, and the additional sum of one-hundred dollars, with like interest, from the twentieth day of October, 1874, until paid, subject to a credit of $2559 40, of date twenty-fourth of February, 1875,” and that as thus amended the said judgment be-affirmed with costs.

Mr. Justice Egan took no part in this decision.


author: Manning, C. J.

text:
    No. 696.
    The State ex rel. O. J. Forstall vs. the Board of Liquidators.
    The act of 1875 requiring a final decree oí this court as to validity of certain “ doubtful” bonds, enumerated therein, before the Board of Liquidators-will be permitted to fund them, does not require that there should be a final decree on every individual bond of a certain issue.
    A final decree of this court affirming the validity of one of the bonds of a certain issue (under ban), removes the taint from that issue, and puts all of its bonds on the same footing with the other bonds of the State that have not been legislatively attainted. But this restoration to legitimacy of those bonds does not give their holders the right to compel the Board of Liquidators, by mandamus, to fund them.
    The Board of Liquidators have a certain discretionary power as to the funding of all State bonds, and warrants, and hence can not be compelled to fund them by the summary process of mandamus.
    j^PPEAL from the Eifth District Court, parish of Orleans. Sogers, J.

      W. W. Howe, T. A. Flanagan, and O. H. Braugltn, for relator.

      H. N. Ogden, Attorney General, and J. O. Egan'Assistant Attorney 1 General, for defendant.
   The opinion of the court was delivered by

Manning, C. J.

The relator alleges that he holds, with full power to fund, five hundred and seventy-nine bonds of the State for five hundred dollars each, with their coupons, issued under the act of Eebruary 25tb, 1870, and eighty-eight bonds of the State for one thousand dollars each, with coupons, issued under the Act of March 26th, 1867, all of which are known and commonly designated as Levee bonds, and are valid obligations of the State, and were issued for a valuable consideration. He avers that these bonds have been thus declared by the Supreme Court of this State, as is required by the Act of May 17th 1875, and he has therefore the right to have these bonds exchanged for .the Consolidated Bonds of the State, the required judgment of the Supreme Court having-been pronounced in the suit whereto the present relator was a party, and which, with the opinion of the court accompanying the decree, is published in the,27th Annual Reports of this court, page 577. He further avers that the Board of Liquidation refuse to fund the bonds presented by'him for that purpose, notwithstanding this, final decree of the Supreme Court, and he prayed and obtained a writ of mandamus to compel the funding.

Respondent, answering the rule to shew cause why the mandamus sjiould not be made peremptory, denies that these bonds are valid obliga- - tions of the State, or that they were issued in conformity to law and for a valid consideration, and alleges that the Board of Liquidation is prohibited from funding the bonds by, the Act of 1875 until every one of them has been, declared valid by the Supreme Court, and legally issued, .and that no such decree has ever been obtained, upon these bonds.

The lower court refused to make the mandamus peremptory, and the .relator appeals.

. The main question for our decision is, whether the legislative requirement, contained in the act of May 17th 1875, imposes upon the Board of .Liquidation the. duty of refusing to fund'evefy'bond until it has been verified by a final decree of this court as legal and valid, and that it was issued in conformity to law, and not1 in violation,.of the Federal or State constitutions, and had a valid consideration; or .whether such decree, rendered upon any bond, has relation to all others of the same issue or series, and is therefore in effect that final decree which that Act makes •the duty of the Board to require.

In May 1875 the present relator applied for a mandamus to compel 'the funding of certain enumerated bonds issued under the Acts of Feb.ruary 25th 1870, and March 26th 1867, alleging that the Board of Liquidation had refused to fund them, and further averring that the act of 1875 was unconstitutional, and hence the requirement above recited was null. In that suit he prayed that that act be declared unconstitutional,' and that the Board be commanded to fund the bonds mentioned in his petition.

The Supreme Court pronounced the act of 1875 constitutional, thereby ••affirming that the duty of the Board was to refuse to fund the bonds of relator until they had been .declared- legal and valid obligations of the State by a final decree of that court, and then, proceeded to make that decree quoad the bonds of .relator, but restricting .its operation by the formal expression, “we desire to be distinctly understood that we are expresing no opinion upon the validity of any bonds except those before us and in the hands of the relator.” State ex rel. Forstall v. Board of Liquidation, 27 Annual, 582.

Manifestly this is not the final decree required by the Act of 1875 which can be invoked by the relator as the authority to the Board to fund the bonds now presented.. The decree repels such use of it in express language. Apparently anticipating that the relator might so construe the language of the court as to justify him in demanding the ■funding of all other bonds of same series or issue as those included in that decree, care was taken to inform him and the Board that such construction was condemned beforehand.

The relator then is the.relator now' Hi's prayer now is that the Board be commanded' to "fund “each and all of -the above-described bonds as. belonging to those issues covered- by the- judgment of the Supreme Court rendered in the previous suit.” ¥e have seen that the judgment of the Supreme Court expressly excluded from its operation these, and all other bonds, except those embraced in that suit. The Board had not before them such final decree as the Act of 1875 requires, and their refusal to fund the bonds-presented by the relator in this suit was propeiv

In the trial of the issue below, evidence was received, without objection from the Attorney General, of the legality and validity of the bonds included in this suit. The bonds were offered in evidence, and the originals-are brought up before us. We are thus enabled to pass upon the questions of their legality, validity, and good consideration, and to ascertain whether they have the features or qualities declared indispensable by the act of 1875, and we-find that they are legal and valid obligations of this State, that they were issued in strict conformity to law, and not in. violation of the constitution of the United States or of this State, and for a valuable consideration.

We might stop here, and leave still open the question whether a final: decree of this court upon one bond was sufficient warrant to the Board to fund all bonds of the same issue. But in a matter of such large public concern, where the interests and public credit of the State are in some sort involved, we have not thought it improper to accept the invitation of' •the law officers of the Government to define with more precision what-is that ‘ final decree ’ which the Act of 1875 requires every holder of ‘questioned and doubtful’ bonds to obtain before he can compel the Board to fund them.

It is not necessary that every holder of every bond, or the holder of a large number of bonds of same issue, should obtain a judgment of this court upon them before they can be funded, if there has been a final decree rendered upon other bonds of the same issue. But on the other hand, such decree upon bonds of a certain issue does not of itself validate the whole of that issue, in such manner and with such effect, as to deprive the Board of Liquidation of the power to exercise any discretion whatever in relation to the funding of any bonds that may be presented to them.

The propriety and necessity of this construction will be apparent upon a brief statement of the legislation touching it. The funding Act (Acts-1874, p. 39,) constituted a Board through whose action the bonded debt of the State should be consolidated, and directed that the holders of bonds or warrants should present them to this Board for exchange. If a majority of the Board should reject any bonds or warrants thus presented, the holder of them might apply by petition to the proper court for relief, and if final judgment should be rendered in his favor, it should then be the duty of the Board to fund his bonds or warrants.

Another act was passed in the next year, (Acts 1875, p. 110,) which contained a list of bonds that the General Assembly pronounced ‘ questioned and doubtful,’ and reversed the duty of the Board as to them. None in that liste des proscrits óould be funded by the Board until the ¡holders of them had obtained a final decree of this court attesting them, ■as in that act directed. The language of the act is — that the following, issue of bonds and warrants, so far as the same may be now outstanding, are declared questioned and doubtful. We held last winter (Ex•change Bank vs. Board of Liquidation,) not yet reported, that the holder •of bonds included in that list could not compel the Board by mandamus to fund them until he was fortified by a decree to that end.

A decree upon one or more of the same issue removes the whole of that issue from the list of questioned and doubtful bonds, but they instantly fall in the condition of all other bonds that were never on that list. The .Board have the right to refuse to fund any and all bonds and warrants. Jts duty is to refuse to fund all that come to them tainted, without regard to the fact whether they are in the questioned list or not. The funding act contemplates a refusal, and provides a remedy by petition to the proper court for relief. The supplemental act makes it the duty of the Board not to fund certain issues. A decree upon one bond of either of those issues relieves the Board of the obligation not to fund others of the same issue, but it does not impose upon the Board the obligation to fund all of that issue. As to all other bonds of the same issue as those declared valid by this decree, the Board has the same dis-cretion that it has touching bonds that were never in the questioned list, •and it must exercise that discretion.

We are very warmly urged to go further, and to rule that the Board must fund, without discretion, all bonds of the same issue, if any one bond of that issue has received this court’s imprimatur. We are told that such ruling is required to sustain the public credit, and that without it, a cloud will rest upon certain classes of public securities. We are unable to perceive how we increase the denseness of that shadow thrown •over the list of questioned bonds by the Legislature. On the 17th of May 1875 that body in solemn form declared, there were bonds of the 'State to the amount of fourteen million three hundred and twenty thousand five hundred dollars which were of doubtful validity. This was a legislative warning by the State to the Board of Liquidation, and to her Judges, to permit no bonds of the proscribed list to be funded without scrutiny, nor until they had been declared legal and valid obligations of the State, and that they had been issued in strict conformity to law, and not in violation of the constitution of this State or of the United States, .and for a valuable consideration.

That there were some bonds in that list that had these requisites is .manifest- from the decrees heretofore rendered, and this decree now rendered, to that effect. That there were other bonds in that list that had .not those requisites, is inferrible from the legislative declaration which put them' under ban. We cannot deprive the Board of Liquidation of' the power of scrutinizing each separate bond and' warrant, and acqeptingit.for funding, or rejecting'it, as the act of 1874 empowered it to do. And the fact thát-we do this is the surest warrant to the holders of the genuine bonds that the public faith is to be guarded and preserved. Therefore

It is* ordered, adjudged, and decreed that the judgment of the lower court is affirmed, which refuses to make the mandamus obtained by relator, peremptory, because of the decree of this court rendered in suit No. 556. And it is further decreed that the bonds set forth in the relator’s petition are now declared to be legal and' valid obligations of the State of Louisiana, and they were issued in strict conformity to law, and not in violation of the constitution'of the United States or of this State, and for- a valid consideration. ’ It is further ordered that the relator pay the costs of both courts.


author: Manninu, C. J.

text:
    No. 737.
    Succession of E. E. Grace. Opposition of Creditors and Heirs.
    An order oí court granting a continuance o£ a case can not be appealed from.
    j^PPEAL from the Parish Court, parish of Ouachita. Slack, J.

      li. W. & JR. Richardson, for succession and appellee.'

      Cobb & Gunby, for Marx, opponent:
   On Motion to dismiss.

The opinion of the court was delivered by

Manninu, C. J.

Hugh Yongue, administrator' of the succession of E. E. Grace, having filed his final account, its homologation was opposed by Elias Miller, tutor to a minor child of the deceased, and by Amelia Miller.. At the June term just past, a continuance was prayed by the tutor, and' his attorney filed an affidavit in support thereof, and the judge ordered-the continuance thus prayed.

Marx, a creditor of the deceased duly acknowledged, prayed an appeal from this order. The tutor to -the minor, and the administrator,, move in this court to dismiss the appeal on various grounds, the first of which is that no appeal lies from an order of continuance. The motion must prevail.

The appellant contends that his' appeal is properly taken, because it is from an interlocutory order which works him irreparable injury. The-injury occasioned by mere delay is not irreparable, and it has been frequently held that no appeal will lie from an order granting a continuance productive of mere delay. In Compton vs. Patterson, 1 New Series, 597, it was so expressly ruled. In the State vs. Judge of the Parish Court, 15 La. 521, this court refused a mandamus to compel the judge to. proceed to a trial of a cause in which he had granted a continuance, and the refusal was put upon the ground that the court would be called on to revise an order from which no appeal could be taken. And this was; in accordance with the previous ruling in State vs. Esnault, 12 Martin, 488.

The appellant’s counsel refer us to Duplessis vs. Lastrapes, 11 Rob. 451, in support of the doctrine that an appeal will lie from an interlocu-, tory judgment which may work an irreparable injury. That is undisputed, and is as well settled as the other ruling, that no appeal lies from an order of continuance. Duplessis’ case was an action to fix the boundaries of land. The defendants had called in their neighbor, whose boundary might be affected by the displacement of theirs, and that neighbor had called his vendor in warranty, and this vendor wanted a continuance to call in his vendor. The court said — “ if it be conceded that the defendant had the right of making his neighbors parties, and they their own, there would be no limitation to the number of parties that might thus be brought in.” The suit would thus be procrastinated to an indefinite period.

The reason of the rule, that a mere order of continuance can not be appealed from, is its futility, and the wisdom of that rule was never better illustrated' than in the present case. Eor what is the. object of this appeal, and how is the appellant to be benefitted by it ?

The concluding sentence of his counsel’s brief asks us to reverse the order of continuance granted by the parish judge, and proceed to render such judgment as the parish court should have rendered, i. e. order the distribution of the funds of the estate among the creditors acknowledged, and placed on the tableau by the administrator.

As we have not original jurisdiction, there must be rendered some judgment by the lower court for us to revise. There has been neither trial nor judgment below. The parish judge has not entered any judgment, in or by which the claim of any creditor has been either allowed or rejected, nor has he approved or disapproved any charge made by the administrator. No issue, raised by the pleadings, has been passed on by him. What judgment should we revise, if we undertook to do what the appellant now asks of us ? There is but one judgment, order, or decree, and that is, that the case be continued.

Assume that the order of continuance was improperly made. Assume that an appeal from such order is permissible, and that we so declare, our judgment would be that the continuance was improperly granted, and the case must necessarily be remanded for trial. Obviously we should' ■assume original jurisdiction if we were to pass upon the account, or any •opposition thereto. It has not been considered or adjudged in any manner by the lower court, and we must have before us a judgment of that •court upon the issues, or one of them, to be revised., Here there is no judgment, either to be affirmed, amended, or reversed. The sole matter before us in the record is an order of continuance. Meanwhile, no action is taken in the case in the lower court, and thus the appellant, who complains of an improper delay caused by the order of the parish judge, is himself the cause of a greater delay caused by his appeal.

it is unnecessary to consider any other of the grounds of appellees’ motion to dismiss.

It is ordered and decreed that the appeal is dismissed at the costs of appellant.


author: Egan, J.

text:
    No. 709.
    John G. Sanders vs. Adeline Edwards, Administratrix.
    “When a motion for an appeal is made in open court, during the same term at which j udgment is rendered, no citation of appellee is necessary.
    ‘The surety of an administratrix who fails to perform her duties as prescribed by law, has a right to bo released from his bond.
    REPEAL from the Parish Court of Ouachita parish. Slack, J.

      Robert Ray, for plaintiff and appellant.

      Cobb & Gxinby, for defendant.
   ‘The opinion of the court'was delivered by

Egan, J.

This is a proceeding by John G-. Sanders, surety on the bond, •of Adeline Edwards, administratrix, to require the administratrix to give a new bond and release said Sanders, and in default, for her removal ■and the appointment of a new administrator, under articles 3069 and 3070, R. C. C.

The defendant’s counsel moves to dismiss this appeal (which was taken by th'e surety from an adverse judgment in the court below), on two grounds:

First — The want of jurisdiction in this court ratione materia}; and,

Second — Because the appeal was taken by motion in open court, and the defendant and appellee had made no appearance then, and never had any citation or notice of appeal as required by law.

The court has jurisdiction. The amount of the bond from which the surety seeks release is one thousand dollars, and that of the succession over five hundred.

As to the want of citation or other notice of appeal, it was taken by motion in open court at the same term at which the judgment was rendered; and the order of appeal in the record states, besides, that defendant’s counsel took cognizance of the appeal, being at the time present. This, however, was unnecessary when the appeal was taken by motion at the same term at which judgment was rendered. The law makes no distinction in this respect between judgments rendered by default and otherwise. See C. P., article 573.

The motion to dismiss is overruled.

On the merits, it appears that Moses T. Edwards died in 1872, and defendant, Adeline Edwards, his surviving wife, was appointed administratrix on the thirtieth of September of that year; that the succession amounted originally to over two thousand dollars; that the administratrix, under order of- court, sold personal property for cash to pay debts to -the amount of near five hundred dollars in January, 1873; that on the second of February, 1877, she applied for and obtained an order of court to sell for the payment of debts, and did accordingly sell a house and lot in Monroe for five hundred dollars. It was stated at bar, and not denied, that this sale was on twelve months time at the first offering. The record is, however, silent on this subject.

It appears further probable that the deceased left money at his death, though no amount is stated, and finally, that the administratrix, to use the language of the judge a quo in a statement of facts in the record, “ has filed no account or exhibit of the succession funds.” Under this state of facts, we think that the surety had a right to fear that the administratrix was so far mismanaging the succession that ho was in danger of being injured thereby. The law directs how successions shall be administered, and it may well be considered that sureties on the bonds of administrators contract with a view to it. It is made the duty of the administratrix to file annual accounts and to apply for and obtain the orders of court to páy debts whenever there are funds in hand for that purpose. This the present defendant has not done, nor has she shown any reason for not doing so, although she had funds in hand derived from the sale of property, and perhaps otherwise, and when notified of the apprehensions and application of her surety she has not pretended to excuse or justify herself; and although nearly five years have elapsed since the opening of the succession, she has made no exhibit of its condition or of her dealings with it. We think this is a proper case for the relief contemplated by articles 3069 and 3070 of the Civil Code. If the defendant wishes to continue the administration she may do so by giving new security. She can not deal so loosely and retain the old one against his will.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed, that the defendant, Mrs. Adeline Edwards, give a new bond and security according to law for her faithful administration of the succession of Moses T. Edwards, deceased, and upon failure to do so within three days after the filing of the mandate in this case in the court below, that she be forthwith removed from the administration of said succession, and that the judge proceed at once to the appointment of a new administrator, who shall be required to give bond and security according to law; and thereupon, that is, upon the execution of new and sufficient bond according to law, either by the present administratrix or by a new administrator tó be appointed as stated that the said JohnG. Sanders be relieved from any and all responsibility for any acts of inalad ministration of his principal from and after the date of execution and acceptance of said new bond. It is further ordered that the defendant, Mrs. Adeline Edwards,- pay costs of both courts.


text:
    No. 734.
    M. Gillis vs. B. E. Carter et al.
    An jntorvonor may make whatever amendments of his pleadings that the plaintiff may make,'provided the amendments do not retard the main suit.
    Wlioever claims the ownership of property which has been sold at sheriff’s sale, . under a judgment not absolutely null, must first proceed by a direct action to annul the judgment. Neither such a judgment, nor the sheriff’s sale made under it can be assailed collaterally.
    A judgment rendered on a prescribed note is not an absolute nullity.
    APPEAL from the Twelfth Judicial District Court, parish of Franklin. Crawford, J.

      Boatner & Elam, for plaintiff and appellee.

      W. W Farmer, for defendants and intervenors.
   On Motion to dismiss.

The opinion of the court was delivered by

Manning, C. J.

The appellee moves to dismiss this appeal on two grounds;

'1. The transcript now before us is the same as that brought up at the last term, when the appeal then taken was dismissed, except the new matter which consists of the petition of appeal, the order, the service, etc., and the old transcript ought not to have been withdrawn, and the new matter appended to it.

2. The certificate of the clerk does not cover this new matter, and is therefore insufficient.

These objections are frivolous as grounds for dismissal. There is no reason why the old transcript should not be used, if permission to withdraw it had been obtained, and we must assume such permission was obtained. It saved costs.

The new certificate is in proper form, and covers the whole.

The motion is denied.

On the Merits.

In September 1858 James P. Byrne bought of one Cockerham a tract of land in Franklin parish for fourteen hundred dollars, and executed three notes therefor; one for three hundred dollars payable on March 1. 1859, and two for five hundred and fifty dollars each payable on March 1,1860 and 1861. A special mortgage was retained to secure the payment of the notes.

In July 1866 the commercial firm of Gillis & Ferguson instituted suit upon one of these mortgage notes for $550, and upon another note of $556 80, and a third for $48. Byrne was dead, and his widow had married Preston Hampton, and there were three minor children of Byrne surviving him. Judgment was rendered in that suit upon the mortgage note alone, with recognition of the mortgage, and was ■signed in March 1867. Three years afterwards execution issued, and the sale was in joined by Mrs. Hampton. It was made finally 911 Dec. 2 1871, when the present plaintiff became the purchaser. He sues now to recover the land, and for the value of its use and occupation during 1872 and every .succeeding year the defendant may continue to occupy it.

The suit was instituted in June 1873. Carter was in possession under a lease, as alleged, from Preston Hampton, and both were made parties. Carter took no notice of the suit. Hampton pleaded the general issue. The three children of Byrne intervened, the oldest as an emancipated minor, and the other two by their under tutor, William Hampton, and claimed ownership of the land by inheritance from their father, alleging that the title under which the plaintiff claims is an absolute nullity, because the note upon which judgment was rendered in Gillis & Ferguson’s suit was prescribed, and the judgment was upon a consent — because the acts of the sheriff in executing the process upon that judgment were irregular, there being no notice of seizure served upon any person authorized to represent the intervenors — and the administrator or curator of the father’s succession was not a party to that suit.

The plaintiff at once excepted to the intervention for this, that the under- tutor cannot represent minors unless there is a conflict of. interest between them and the tutrix, and such conflict is not alleged, whereupon the intervenors prayed leave to amend in that respect. But plaintiff objected upon the grounds, that an intervenor cannot amend his pleadings at all, and if he can, that he cannot amend to cure a defect to which exception has been specially made, and thus save himself from the effects of such exception. The court refused permission to amend.

An intervenor is entitled to amend under the same circumstances that a plaintiff is, restricted always by the condition which perpetually attaches to him that he shall not retard the principal suit. Even if amendment were made of the petition of intervention, if the intervenor failed to shew on the trial the circumstances that required the under tutor to represent the minors, advantage of it could be taken then. The circumstances shewn here were, that the tutrix was a party in her personal capacity also to the suit upon the note, in which judgment was rendered in favor of Gillis & Ferguson, and which the intervenors now seek to annul.

The plaintiff answered the intervention by denying that the intervenors could attack the judgment, under which he claimed title, without bringing all the parties to that judgment and sale before the court, and that the intervenors were represented in that suit, and the judgment binds them.

The intervenor in a petitory action stands in the position of plaintiff, and must establish his title. Baldree v. Davenport, 7 Annual, 587. If he claims by inheritance from a vendee, whose rights of property have been apparently divested by judicial proceedings in enforcing payment of the price to the vendor, or the holder of the vendor’s privilege, he must attack the proceedings in an action against all who were parties to them. It is urged by the intervenors that these proceedings were void and of no effect, and that the nullities set forth by them are absolute and not relative.

A judgment npon a prescribed note is not an absolute nullity. It is not a nullity of any kind as against a party who could plead prescription, and failed to do it. The debt may have been acknowledged, or its prescription may be questionable. When that judgment was rendered, a plea of prescription, interposed.by the defendants in Franklin parish to the claim of the plaintiffs resident in New Orleans, would have been overruled under our jurisprudence as then interpreted. The text of the law is now as then.

The plaintiff holds under a recorded title, translative of property, and it has been held (Anderson v. Carroll 23 Annual, 175.) that in the absence of any charge of simulation, the question of the nullity of the judgment under which the sale was made, because the sheriff failed to observe all the forms of law in making the seizure, cannot be inquired into collaterally by a creditor who has caused the seizure of the property without reference to the. sale. He must attack the sheriff’s sale directly. . The intervenors will insist that they do attack the sale directly in this action, and besides they are heirs, but they have not all the parties before the court. They cannot conclude the interests of the plaintiffs in the judgment, who would be bound to the purchaser in case of the annulment of his title, nor of the other seized debtor without making them parties to the suit.

The land belonged to the community of acquets, and the surviving widow was a party to the suit. Her undivided half of the property was unquestionably acquired by the plaintiff. We find in the record that she was confirmed as natural tutrix to the minor children, who are the present intervenors, Aug. 31,1866, and filed an exception to the form of the action in the following month, in which she states that she is acting “ in her own right and on the part of her minor children.” We are not prepared to say they were not represented with this appearance of their tutrix before us, and why the judgment should have recited in addition to the usual words, “ by reason of the law and the evidence”, the additional clause, " and the consent .of parties” does not appear. ' The proof is ample to justify the judgment. Both the note and the recorded act of mortgage were in evidence, and this latter was also the act of sale, in which was recited that this note was part of the price, from which resulted the privilege of the vendor in addition to the mortgage.

The minors who are here claiming ownership of the land in controversy, because of alleged non-compliance with certain forms of procedure, are themselves to be reproached with non-compliance, either by their ancestor or themselves, with the fundamental rule which obliges the buyer of a thing to pay the price of the sale. Civil Code art. 2527.

J. D. Byrne did not pay for the land. It was sold to him without any cash payment. The note which represented part of the price was merged in a judgment, under which' the plaintiff bought. The debt which the father owed was thus paid by the plaintiff when he bought the land, and the children connot complain if their demand to wrest the land from him is denied. He who seeks equity must do equity. He who invokes the law to permit him to grasp that for which he has not paid, is not injured when he is required first to acquit his own obligation to pay its price.

Judgment affirmed.

On Application eor Rehearing.

The counsel for the defendants and for the intervenors have applied for a rehearing, and in behalf of the former claim that their plea of prescription of 'one year to the demand of the plaintiff for remuneration for the use and occupancy of the land during 1872, "was not considered by the court. A rehearing is therefore granted for the purpose of passing upon that plea.

On Rehearing.

The citation was served June 18th. 1873. The demand for remuneration for the use of the land during 1872 became exigible January 1.1873. The prescription of one year does not therefore apply. The plea is overruled, and It is ordered, and decreed that our former judgment remain undisturbed.


text:
    No. 744.
    Succession of J. G. White.
    It is the financial condition of the widow at the moment of her husband’s death, and not her condition at the time sho applies for the widow’s portion of one thousand dollars, which determines whether she is ontitled to that portion.
    The removal of tho widow from this to another State, will not impair her right to the widow’s portion.
    The creditors of a succession can not demand that the widow shall give security for the safe return of the widow’s portion to the heirs.
    ^PPEAL from the Parish Court of Bossier parish. Fort, J.

      J. D. Watlcins, for opponent and- appellant.

      J. A. Snider, for administratrix.
   On Motion to dismiss.

The opinion of the court was delivered by

Manning, C. J.

The administratrix moves to dismiss on the ground that the claim of the opponent is less than five hundred ^dollars.

The claim of the opponent is not in controversy. It is acknowledged by the administratrix. He opposes the allowance of the widow’s portion which exceeds that sum. The motion is denied.

On the Merits.

J. G. White died in Bossier parish in July 1876. His widow was appointed administratrix of his succession, and the property was sold by her under an order of the parish court for the payment of debts. The ■sales were made in December of same year, and about the time of the last sale, the widow removed to Texas, and has not returned.

• On March. 2d 1877, a tableau was filed for her, ranking the debts of the deceased, and of the succession,* upon which her widow’s claim of one thousand dollars is placed. Lane, an acknowledged creditor, opposes it. The succession is confessedly insolvent.

There is no doubt that the widow was in necessitous circumstances at, and after her husband’s death, and at the time of filing the tableau. The opponent insists upon the authority of McCoy’s case, (26 Annual 686.) that the condition of the widow at the time the claim is made must determine her right. This is in direct conflict with the dictum of Gimble v. Goode, (13 Annual 352); also Suc. Marx, (27 Annual 99.) that the right of the widow and of the minor children of a decedent to the portion secured to them under the act of 1852, vests in them at the moment of the death of the deceased, and their condition then, and not at any subsequent time, is the test of the rightfulness of their claim. We think this is the sounder doctrine, and is more in harmony with the manifest intent of the act, which was to ward off from the widow and young children of one recently dead, the misery of unmitigated destitution, and to cover, as with a shield, these helpless mourners from the pitiless shafts of poverty, at the moment when the protecting arm of the husband and father was made powerless by death.

It is also contended by opponent that whatever may be the time that controls the right of the necessitous widow, if she does not reside in this State at the time her portion is formally demanded, she will not be entitled to receive it. On the other hand we are referred to a reported case, Suc. of Christe, (20 Annual 383.) wherein it was ruled that a surviving necessitous widow, who had never been in the State, was entitled to the benefit of the act of 1852, a dictum we do not approve,

As the right of Mrs. White accrued at the moment of her husband’s death, her subsequent removal from the State did not annihilate it. She was a resident of Louisiana during the coverture, and at its termination, and may well be considered as falling within the designation of ‘its own widows’, used in Stewart’s case (12 Annual 89.) when applying a different principle.

The opponent argues that as the widow in this case has- only the usufruct, if she is permitted to- take the money out.of the State, the minor children may be deprived of the benefit which the act secures to them. To this suggestion it may be answered, 1. that it does not concern the creditor what becomes of the money if it be once ascertained and determined that it does not belong to the fund which he can make available to the payment of his debt. And 2. we have no power'to compel the widow to give security for the production of the money at her death. She is the mother of the minors and hence their natural tutrix.

The legislature has not thought proper to protect the interests of the minor further than they are in the Act which created this special provision for them, although twenty-ñve yeafs of experience under it must have presented cases not unlike the^present, and it is not for us to supply any omission which may be discovered in practically applying it.

Judgment affirmed.


author: Spencer, J.

text:
    No. 703.
    The State vs. E. R. King.
    .The recovery of a Une for the violation of a criminal statute is prescribed in six months from the time the fine is incurred.
    APPEAL from the Eleventh Judicial District Court, parish of Lincoln. Graham, J.

      Alien, Barksdale, District Attorney, for the State.

      Garrett & Garrett, for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The defendant was indicted, tried and convicted, of the offense of retailing'liquor without a license, under section 910 of Revised Statutes.

The indictment charges that the offense was- committed on tenth December, 1875, and was presented and filed November 16,1876, more than ..eleven months after the offense.

The accused filed a motion to quash, or plea in bar of, said indictment, on the ground that the prosecution was barred by the prescription of six months, under section 986 R. S. The plea was overruled and defendant excepted.

There was a verdict of guilty, and the couit adjudged and decreed that the defendant pay a fine of $310, and in default of paying said fine that he be imprisoned for twenty days in the parish jail. Defendant appeals.

The ruling of the court was erroneous. This is a criminal “prosecution,” “ for a fine.” Imprisonment is no part of the penalty for committing the offense charged, but is the mere consequence of not paying thefne imposed. The court under said section could not inflict, as a punishment for retailing liquor, a term of imprisonment. It could only fine •the guilty party. The prosecution, therefore, was to recover or inflict “ a fine,” and was therefore prescribed. The law says no person “shall be prosecuted for any fine, * * * under any law of this State, unless-"the prosecution for the same shall be instituted ivithin six months from the time of incurring such fine,” etc. R. S., ,sec. 986.

"We think that Merrick, C. J., corrpctly states the law in the case of State vs. Markham, 15 An. 500.

It is therefore ordered, adjudged, and decreed that the verdict and. judgment appealed from be set aside and annulled; and it is now decreed that the plea of prescription made by defendant in bar of this prosecution be sustained and the indictment quashed.