author: ' DbBlanc, J. White, J.

text:
    No. 6856.
    Bradish Johnson et al. vs. Edward Butler et al.
    The third holders and owners of negotiable bonds of a parish, which were issued by the police jury in exchange for warrants of the parish that were almost entirely illegal and void, and which thus had as their consideration a debt that was only partly due by the parish, have no better right to recover on the bonds than the original holders thereof, when all of the facts and circumstances under which they acquired the bonds, raises against them a legal presumption ■of negligence, notice, or mala fides.

    APPEAL from the Sesond Judicial District Court, parish of Plaque-mines, Pardee, J.

      E. Howard Me Caleb, Wm. H. Hunt, and Kennard, Howe, & Prentice for plaintiffs and appellees.

      B. T. Beauregard, parish attorney, and Henry Chiapella for defendants and appellees.

      Cotton & Levy, Thomas J. Semmes, and A. G. Brice for intervenors and appellants.
    The opinion of the court on the original hearing was delivered by DbBlanc, J., and on the rehearing by White, J.
   ' DbBlanc, J.

By an act of the Legislature of the State, approved on the 25th of March 1874, five persons, to wit: the president of the police jury of the parish of Plaquemines, H. P. Eernochan, H. Mahony, Dr. Joseph B. Wilkinson, and O. B. Sarpy, were appointed commissioners, to ascertain, determine and report to the police jury of said parish, the amount of its indebtedness. Of these five commissioners, three were then members of the police jury to which they were to make their report. Those three members were Butler, the president of that body, Mahony and Sarpy. Under these circumstances, the report of the commissioners could hardly have failed to be adopted by the police jury. Those who, at that time, represented the parish of Plaquemines in the General Assembly, were Butler and Mahony, and it seems evident that one of their purposes, in urging and procuring the passage of the act already referred to, was to secure, in the board of commissioners, a majority favorable to their scheme.

In the first and the most important of the six sections of the act of the 25th of March 1874, it was provided “that the police jury be 'and they are hereby authorized to issue bonds of said parish, duly signed by the president and clerk of said police jury, and sealed with the seal of the district court of said parish, to the amount of the debt, as would be reported by the commissioners, payable to bearer, in ten years from their date, and bearing interest at the rate of eight per centum per annum; the interest to be paid annually. Said bonds to be.in amounts of not less than fifty, nor more than one hundred dollars, and exchangeable for any of the debts and obligations of said parish; provided that the ordinance of said police jury making provision for the issue of bonds under this act shall not have the effect of law unless it shall receive the unanimous vote of every member of said police jury; and provided further that said bonds, when issued, shall be countersigned by each and ev.ery member of said police jury, which shall be evidence of the fact that the issuing of said bonds is unanimously approved' by them.”

These wise provisions were intended as the passport of the act, but in reality were but vain and simulated precautions : the authors of the scheme had, and they knew it, all that they needed to carry it out: an undoubted majority in the board of commissioners and a partisan in every member of the police jury. According to their official report made to the police jury, the commissioners met at the court-house on the 1st of April 1874, a second time on a subsequent day which is not specified, and finally — to deliver their report — on the 18th of May 1874, when three of them — Butler, Mahony and Sarpy, announced to themselves, as police jurors, and — so far as it appears in the record — to another of their colleagues, that — from the 16th of August 1871 to the 17th of November, 1873 — the police jury of the parish of Plaquemines, had issued certificates of indebtedness or warrants against said parish, for $92,857 20: that, after deducting those of said certificates or warrants which had been destroyed, and approximating outstanding claims for the years 1870,1871,1872 and 1873, they had found that the debt of said parish amounted, on the 17th of November 1873, to $68,491 27.

On motion of Mr. Sawyer, the parish treasurer was then authorized, by the police jury, to issue bonds of each one hundred dollars, to be exchanged against the thus rapidly ascertained, determined and announced indebtedness of the parish of Plaquemines, in conformity with the act of the 25th of February 1874. All this was done on the 18th óf May, and — on that day — bonds of the required description were signed, sealed and — we presume — delivered. This extraordinary celerity in the discharge of so important a duty as that entrusted to the commission• and the police jury is easily'accounted for: there was, there could have been no difference of opinion between three of the members of the commission, who constituted a quorum, and those who —at that date — composed the police jury.

In alleged accordance with the act of the Legislature and the ordinance of the police jury of the l'8th of May 1874, bonds to the amount of thirty-nine thousand six hundred dollars were issued, and many of these sold in the city of New Orleans, within a short delay after their delivery, at from fifteen to thirty cents on the dollar; and it is more than probable that the whole of the bonds authorized by the ordinance would have been so issued and disposed of, were it not that, on the 10th of June 1874, several taxpayers of the parish of Plaquemines obtained from the Second District Court an order enjoining any additional issuance of said bonds and prohibiting the assessment, levy and collection of any tax to pay either the principal or interest on the same.

The grounds on which the taxpayers rely to sustain their injunction, are;

1. That the act of the Legislature, of the 25th of Eebruary 1874, is unconstitutional and void, in this :

It proposes to acknowledge debts, without even the consent of the pretended. debtor.

It creates an agent without the principal’s assent.

It delegates to that agent, and to be exercised ex parte, a power which can be exercised by only the courts of this State.

The bonds issued by the parish officers are in excess of the revenues of the years in and for which they were issued.

2. That the act of 1874 was passed in the interest of Butler, Mahony and their accomplices, to procure the issuance of bonds for debts which have never existed, and for debts which — previously—had been declared invalid by the courts of this State.

3. That the preliminaries which, according to said act, were to be, have not been performed by the board of commissioners before issuing the bonds.

I.

The evidence does not sustain the charge that any improper influence was used to procure the passage of the statute of the 25th of Eebruary 1874, and that statute — construed with regard to the objects for which it was enacted — is not unconstitutional. Those objects were — not to create any debts — but to ascertain what was then the amount of already existing debts for which the parish of Plaquemines was liable, and to authorize its police jury to settle with its creditors in bonds bearing interest and payable in ten years. The commission appointed for that purpose could not be and was not invested with the power of finally acknowledging or finally rejecting any claim, but was directed to investigate the matter submitted to their consideration and report the result of their investigation. Their report was binding neither as to any rejected, nor as to any acknowledged claim, and could have been approved or disputed by either the police jury to which it was made, the taxpayers or any creditor of the parish.

The law specially provides how and by whom the accounts against a parish shall be approved, and the only task of the commission appointed by the act of 1874, was to make out a detailed list of those who held the legal evidence of any claim against the parish. They could not have justly denied the correctness of a bill of fees approved by a judge, nor classed as a fundable debt, one which would have been previously passed upon and rejected by a competent court. Their exclusive function was to inspect and report. They reported, but did they inspect ?

II.

Before proceeding to examine any other question presented in this case, we have to decide whether, as contended by those who have intervened in this suit, the plaintiffs, who are taxpayers of the parish of Plaquemines, can not inquire into the consideration of the bonds held by them, the intervenors, and which they purchased before maturity. For at least two reasons, the taxpayers could, as they did, inquire into the contested consideration of bonds subscribed and delivered by their agents.

1. Those who represent a State or a parish, derive their powers from the law, and the State or parish can be bound but by those of their acts expressly embraced within the scope of their limited agency, or which — as an inevitable consequence — are inseparable from, and must invariably precede or follow the exercise of the delegated powers. Any act done beyond the scope of that agency is an absolute nullity, which may be urged and contested by the principal or any interested party; and those who purchase or discount the obligations of a parish must — at their peril — ascertain, not merely that they bear the signatures of the parish’s agents, but also that, in subscribing the obligations, the agents have not exceeded their powers. How, may it be asked, can that fact be verified ? It can be verified without trouble or difficulty. Whatever may be their character or extent, claims against a parish are evidenced by vouchers deposited in a specified office, and whomsoever they were — planters or brokers — those who, to pay their taxes or to speculate, intended to procure any of the bonds issued under the legislative act of 1874, were bound to ascertain — by an inspection of the law, the ordinance, the commissioner’s report and, if any, the deposited vouchers — whether the bonds sought to be sold or which they proposed to buy had been issued for the consideration specified in the statute. To recover on such instruments and under the peculiar and express provisions of that statute, it is not enough to show that the police jury was empowered to issue them, it must also be shown — as the act of 1874 imperatively prescribes — that they were exchanged for debts and obligations of the parish of Plaquemines. As. to plaintiffs, interest in attempting to prevent the levy of a tax to pay what they consider as fraudulent claims, there can be no doubt. It is more than a right, it is a duty on the part of every citizen to denounce, resist, pursue and defeat illicit schemes which tend to increase the burden of taxation and destroy the value of property.

hi.

In the brief of plaintiffs’ counsel, it is contended that the act of 1874 requires that the bonds be signed by the president and clerk of the police jury, and that, as those held by intervenors are signed by the president and secretary of that body, they are not in the form required by the act. We.believe otherwise; the clerk and secretary are 'but one and the same person, and the bonds are certainly signed by the person designated in the statute, whose real title is that of secretary. The difference in the title mentioned in the act and that which appears on the bonds, is merely a difference in the sound of a word and not one in the capacity of the officer.

IV.

In their printed argument, plaintiffs insist that the seal of the district court, which is but dimly impressed on the bonds, rvas thereto affixed — not by the clerk of said court — but by one who was not the custodian of that seal, and “ who had no authority to either take or use the same.” The act provides “that the bonds shall be sealed with the seal of the district court,” and — as it does not provide by whom this was to be done, it is manifest that it could have been done .by any one under the direction and in presence of the police jury.; In this respect, the law was strictly complied with.

V.

We consider as untenable the objection that “ the bonds issued are in excess of the revenues of the years in and for which they were issued.’’ The neglect of the police jury to provide for the payment of legitimate claims existing against the parish, neither did, nor could destroy its creditors’ rights. That neglect merely postponed the date of an inevitable payment; for, if — as we believe — a parish, should not hesitate to spend handfuls of gold to check and prevent any arbitrary taxation o^ the property of its inhabitants, it should, never hesitate to levy and collect the taxes necessary to compensate the services rendered by its officers, and which are indispensable to the very existence of its local government. This, on.its part, is not less than an obligation, and such an obligation can not be destroyed by the neglect, omission or refusal of a police jury to provide for its satisfaction. Under no law can the agent’s wrong relieve the principal of its legally incurred liabilities.

vi:

The interest coupons attached to the bonds'are not in proper form: they are not signed by any member of the police jury, but by only its secretary.- That is not Sufficient: that interest could have been stipulated in separate and legally certified coupons, but it could not have been — as it was — stipulated in instruments which, though attached to the bonds, aré distinct and disunited from them,-which-bear no number, no mark to identify them, to connect them with the principal obligations, and which are not signed by a single one of the police jurors, the signature of every one of whom was indispensable to their validity. In this instance, however, those coupons were entirely useless: the only interest which could have been allowed by the police jury is correctly allowed, and the terms of its payment fixed in the body of the bonds, which — without the coupons — are complete in form.

VII.

The last and most important point which remains to be examined is: “Are the bonds herein referred to without consideration, and — if they are — had the intervenors the means of obtaining full information as to that fact ? ” The bonds were subscribed by parochial agents: the latters’ mandate was a statute printed on the backs of every one of the obligations subscribed by those agents, and — under that statute — to impart validity to those obligations — two essential conditions were required:

1. The commissioners had first to ascertain, determine and report what debts existed against the parish.

2. The report made, bonds were to be issued and exchanged for those debts.

Was this done? It may have been, but it does not appear that it was. A long and naked list, numbering six hundred and ninety claims, was prepared by Patrice Leonard and Armand Lartigue, who had been employed by the police jury, then partly composed — as-already stated, of three of the commissioners, and of two other parties, one of whom was not present'at the session of the 18th of May 1874, and signed the bonds at Mr. Butler’s house. That signature, giren without a prior examination of the reported claims, constitutes — nevertheless—the last instalment of the unanimity required by the act of 1874, in the police jury’s action concerning the issuance of the bonds.

^Shortly after these too hasty and unmatured operations, the bonds of a parish, whose property is valued at two millions five hundred thousand dollars, were sold to brokers in the city at from fifteen to thirty per cent. This fact, we admit, is not of itself sufficient to destroy their title to the negotiable bonds, bnt it was certainly sufficient to have put those brokers on inquiry, and to charge them with notice i every legal objection that might be urged against the validity of tho instruments ; for — as said by the Supreme Court of the United Stat in Marsh vs. Pulton County, “ this is a case where the holder was hour to look to the action of the officers of tho county, and ascertain wheth the law had been so far followed by them, as to justify the issue of bonds.”

TO Wallace, 683; 2 Otto, 595.

In his book on negotiable instruments — sect. 777 — Mr. Daniel says : “ If the amount which the holder offers to take for the bond is totally insignificant as compared to its face value, it might be implied notice that there was something wrong about it, and if he took it without inquiry, he should not be protected. There is no conflict between this view and the cases in which it was held that gross negligence will not of itself be sufficient to impair the purchaser’s title. This is not merely gross negligence, but may be regarded as willful or fraudulent blindness, and abstinence from inquiry so great as to amount to evidence of bad faith. For it is the obvious suggestion of reason that a bona fide owner would not throw away his property for a mere song, and that the holder acted in bad faith when he acquired it for comparatively nothing.”

The bond or warrant of a State or a parish is more safely guaranteed than the note of the richest bank of the world, and — except in times of general disaster — a State or a parish, administered by faithful and competent officers, should ever be ready to pay at its maturity, and dollar for dollar, every one of the warrants issued under their authority and representing an honest claim. Those who, either justly or unjustly, so violently suspect the validity of obligations due by the whole of the taxable inhabitants of a State or parish, as to purchase them for an insignificant fraction of their expressed value, can not reasonably expect that the suspicion that they thus cast on their validity, shall not follow them in their own hands and after a transfer. If they did, their expectation would be deceived: the rule is “ that the -consideration of such a transfer must be — not only apparently valid — but it must also be valuable. Otherwise, it does not protect the holder against prior equities existing between the immediate parties to the paper.”

Edwards on Bills and Notes, second edition, p. 354, 355.

Had intervenors referred to the commissioners’ report, and this— under the act of 1874 — they could have neglected to do but at their risks, they would have found:

1. That — on the first of April 1874 — three of those commissioners met and “ begged Mr. Lartigue, who was to be assisted by Mr. Leonard and themselves, “ to make out a statement of the affairs of the parish Plaquemines.”

2. That, on the 18th of May, the commissioners again met, and ibmitted a report based partly on a statement made by Mr. Lartigue d partly on their own approximation, in which they declared that— the 17th of November 1873 — the parish debt amounted to $68,491 27.

3. That, in the statement which accompanies the commissioners’ t, one party — the sheriff — is classed as the holder of seventy-eight as against the parish, four for $25, twelve for $50, three for $200, e balance — except two — for $100 and more, which may be due and perhaps properly approved, but which — unexplained as they are in the statement — could not authorize the issuance, and do not establish — even partly — the consideration of the bonds. The only remark which follows one of them is “ costs for prisoner to New Orleans.”

The most of six hundred and ninety claims carried on the statement as those of the sheriff, are, mere figures, without dates, specifications or details, and — as a whole — that statement is, not only not supported, but contradicted by the evidence.

Leonard testified that — in the space of eight months — from June 1871 to March 1872 — the police jury of the parish of Plaquemines issued for forty thousand dollars of what is there known as the red-back warrants, which — in January 1876 — were, by this court, declared unauthorized by any law and invalid. The statement prepared by Lar-. tigue, with the assistance of Leonard, embraces — not only eighteen thousand dollars of destroyed warrants for which bonds were issued, but the parish indebtedness, as therein fixed, is — though not altogether —almost entirely composed of the red-back warrants, previously declared unauthorized and invalid, and which — regardless of the decree ■of this court — were exchanged for the now disputed bonds. To fix that indebtedness, Lartigue and Leonard got their data from stub-books, memoranda from the treasurer’s office and “ vouchers kept down there bij the committee.” Mr. Butler is the only commissioner who aided them ; but what he did is not shown.

Referring to the estimate of parish liabilities; plaintiffs’ counsel asked Lartigue: “How did you make it out?” “From the post-book and a statement I had already made for a committee appointed, eight or ten months before, to investigate what settlement of the parish debt could be effected.” “ You made that estimate out of the presence of the commissioners, did you not?” “Yes, sir, out of their presence.” He alone signed that estimate, and — it seems evident — he alone, occasionally assisted by Mr. Leonard, prepared it, and — really—when? Before the passage by the legislature of the act of 1874: for — after the prom; ligation of the act, he was only ten or twelve days engaged in reviewing ;<ad —we presume — copying the statement which he had made eight or ten months before.

The general rule is that, when a negotiable instrument has passed In the ordinary course of business into the hands of a bona fide holder, for a valuable consideration, without notice, the defendant can not avail himself of objections founded on the illegality of the instrument in its inception. This rule — however—has never been so stretched as to cover and protect the unauthorized acts of a clearly defined and limited agency: those who purchase, discount, or — in any way — take instruments subscribed and put in circulation by an agent, are always presumed to have informed themselves as to the nature and extent of the mandate under which those instruments were issued. Whether they do- or not, and in whatsoever hands the negotiable paper may have passed, the principal can — under all circumstances — contest every act done beyond or in violation of the authority which he delegated.

In this instance, the report and statement introduced by the inters venors themselves, do not establish that the commissioners have, as they were bound to do, ascertained and determined, according to either the letter or spirit of the statute of 1874, the liabilities and indebtedness of the parish of Plaquemines; they merely reported without inspecting. To justify the issuance of the bonds, their report should have contained a detailed, statement of every claim, to whom and for what they were due, the dates when they accrued, whether they were already approved when - submitted to them, or merely acknowledged by them after the submission. The report should also have been accompanied by vouchers supporting every claim, and — in the absence of the original vouchers — by the creditor’s affidavit or any other substantial proof. We can notion the unsworn, naked, incomplete, dateless and unexplained statement of one man, lightly adopted by a commission, howsoever respectable that commission or that man may be — hold ah entire community liable for thousands of dollars. •

We, therefore, conclude:

1. That it does not appear that the indebtedness of the parish of Plaquemines was ascertained and determined, as required by the statute of 1874. .

2. That the ordinance of the police jury of the. 18th of May 1874 was prematurely adopted, and the contested bonds prematurely issued.

3. That the interest-coupons -attached to said bonds are invalid and void, and that the holders of those merely apparent obligations can recover neither on the bonds nor on the coupons.

4. That ,an injunction properly issued to restrain any additional issuance of said bonds, their exchange for any pretended indebtedness of, the parish of. Plaquemines, and- the assessment, -levy and collection of any tax to pay either the principal or interest on any of said bonds.

It can not be denied that — in 1874, said parish was largely indebted. Up to- at least that time and- for a period of several years, its affairs were— itBeems — ^administered with an unparalleled carelessness. Its warrants, numberless as. the leaves in the spring, were exchanged for its bonds ; and its bonds^-then as thereafter — sold and .purchased for a tittle — were partly used to pay an ever-increasing tax. In his settlement, the collector w-h© preceded Lartigue, returned to the police jury — in evidence of claims against the .parishj an amount of $40,000, and he — Lartigue—out of two settlements of thirty-two or four thousand dollars made by him as treasurer, received — in’ cash — from five to seven hundred dollars, and the balance in warrants. This leaves the not unreasonable impression that the parish of Plaquemines may still be indebted to its officers and employees for services rendered prior to 1874. If so, those who now represent it; should not hesitáte to ascertain and acknowledge its lawful liabilities and provide for a satisfactory settlement of the same. As, however, neither .its original and real creditors, nor the transferrees of the latter, are or could have been concluded by the judgment of the lower court, as to any right or action which they may have acquired against it, before or since the issuance of the condemned bonds, we consider it useless to change or amend said judgment, which is affirmed with costs.

On Rehearing.

White, J.

After a careful re-examination of this cause we have concluded that our former decree was correct and should be adhered to :

1. Because the bonds were issued in exchange almost entirely for warrants, called “ red-back warrants,” previously stricken with nullity by decree of this court.

2. Because, ev^a if the commissioners were authorized to'fix the amount of parochial debt by including therein whatever of valid debt may have entered into the outstanding and declared illegal warrants, as a matter of fact they did not so do, but, on the cpntrary, made the. illegal warrants the measure -of debt without reference to the quantum ot legal consideration merged or apparently merged in the illegalwarrants.

3. Because finding this state of equities, which we deem adequate to prevent recovery in the hands'of the original holders, we do not think the holders now before us have shown that they are holders under such circumstances as to entitle them to the immunities of the law merchant. We say “have not shown,” for we think the equities-having been affirmatively established the burden was on them, under the pleadings and law, to have made such proof as would.remove the claim in-their hands from the reach of such established defenses, which must other-' wise prevail. Daniels on Negotiable Instruments, number 515, p. 610.

In reaching this conclusion we do not take alone the vileness of the price as creating a legal presumption of negligence, notice, or malafides, but all the facts and circumstances of the case, among which are:

1. The vileness of the price and the absence of all proof that the securities were regularly and authoritatively quoted. •

2. The existence of the previous adjudication of this court recognizing the nullity of a large portion of the outstanding paper of the parish of Plaquemines.

3. The shortness of time elapsing between the illegal issue of the bonds and the obtention of the injunction herein.

4. The defects in the bonds themselves.

5. The fact that the intervenors were brokers and dealers in securities and more likely to have been on their guard and held to a greater degree of diligence in order to shield themselves from the consequences of undue laches.

Reaching these conclusions, we deem it unnecessary to pass upon whether if the intervenors were holders under such circumstances as to cover them with the shield of the commercial law they would be held only to look to the legal power of the commissioners, as taught by so many recent cases decided by the Supreme Court of the United States. The doctrine of power, as thus applied, we take to be not a restriction on or enlargement of the fundamental principles of the law merchant. In other words, a doctrine teaching not that one who is not a third holder for value and before maturity, in the legal sense of the.term, is only chargeable with inquiry as to the power to have issued the securities, but that one who is such holder is bound, under all circumstances, to take notice of the power by which the securities were issued; such power being the measure of his right to recover, all other obstacles or equities being removed in consequence of his possessing the legal character of a third holder.

Of course, we understood our former decree as reserving any right of action for any legal consideration which may have seemingly been merged in the illegal bonds, or which had previously been ostensibly merged in the warrants declared to be illegal; our opinion then and now being that the non-existence of the bonds places the parties, in legal contemplation, in that position, as to rights and obligations, which they would have held had the bonds never been issued; saving, of course, such rights as passed to the holders of the bonds, and their consequent ownership of such prior legal rights absorbed by the' bonds or practically merged in them.

It is therefore ordered that our former decree remain undisturbed.

Mr. Justice DeBianc adheres to his former opinion.


source: Caselaw Access Project

author: Spencer, J. Spencer, J. Manning, C. Í.

license: Public Domain

text:
    No. 7525.
    City of New Orleans vs. Rhenish Westphalian Lloyds et al.
    An aet of the Legislature which declares that no municipal corporation shall assess any license-tax on certain persons over $500, and prescribes that the act shall take effect from and after its passage, can not be construed as retroactive. It applies only to the future assessments of such a tax, and hence does not repeal any municipal ordinance assessing a larger tax, which was enacted by the corporate authorities before the passage of the legislative act. Statutes will always be construed as prospective in their operation, upless their language constrains a contrary construction.
    Foreign insurance companies issuing policies from their own domicils, who do. not carry on business here, who have no agent here, and who only agree to accept risks placed for them by a person residing here, can not be compelled to pay a license-tax to the city of New Orleans'in virtue of an ordinance which imposes a license.of ?1000 on "every agency doing insurance business in said city, for any insurance company or companies not therein located, for each and every company by said agent represented.” Foreign companies are amenable to said tax who do business here through an authorized agent.
    This court can not alter, or modify its judgment, because an alleged agreement between the parties, suggested for the first time on an application for a rehearing, will, in consequence of the judgment, work injustice to one of the parties
    APPEAL from the Third District Court, parish of OrleaDS. Monroe, J.

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

      M. M. Cohen, Hudson & Fearn, Breaux, Fenner & Hall, and Bayne & Benshaw for defendants and appellants.
    The opinion of the court on the original hearing and application for rehearing was delivered by Spencer, J., and on the rehearing by Manning,- C. J.
   Spencer, J.

This record contains a number of cases tried together, and depending substantially upon the solution of the same questions.

In December, 1878, as by law required, the City Council adopted ordinance No. 4789, and an amendatory ordinance, No. 4820, imposing a license tax on “ each and every insurance company (life and accident insurance companies excepted) located and doing an insurance business in the city of New Orleans; every agency doing such business in said city for any insurance company or companies not therein located, for each and every company by said agent represented, one thousand dollars.

Every life insurance company or agency, and every accident insurance company or agency, five hundred dollars.”

These ordinances went, into effect on January 1, 1879, and were predicated upon and preceded by the annual estimate of expenses of 1879, required by law to be made. This estimate is by law made the basis of taxation for the ensuing year, and itself constitutes exclusively the appropriation bill of that year. In other" words, the city is required in November or December of each year to state and publish in detail the purposes and amounts of money to be expended for the ensuing year, and then to impose licenses and taxes to an amount which will exceed that estimate by ten per cent.

See Act No: 7, sec. 19, extra session of 1870 ; sec: 14 of Act No. 78 of 1872 ; sec. 2 of Act 68 of 1877.

By another law the licenses so levied and assessed by the city were due and payable during all the months of January and February, and only became exigible by suit and with penalty from and after the first March of. each year;

On the ninth February, 1879, after a large number of insurance companies had paid the license so levied against them, the legislative act No. 27 of 1879 was passed and promulgated; the fifteenth paragraph of the first section of which enacts, “that there shall be collected from each agent or representative of an insurance company created by or under the laws of this State, and transacting an insurance business therein, one thousand' dollars; from each insurance company or agency not chartered by this State, but transacting business therein, one thousand dollars; provided, that no parish or municipal corporations throughout the State shall assess any license tax of ovér five hundred dollars on any such insurance company.” Acts 1879, No.’ 27, p. 42, sec. 1,115. ‘ .

All the defendants in these suits claim the benefit of the proviso in said act, and contend'that it repealed the ordinances of the city, imposing on them a greater license than $500 for the year 1879.

P. A. Barker and Messrs Welshans & Woods, who ara “Insurance agents,” each for several distinct foreign companies, claim, besides, that the ordinances of the city, in so fár as they are construed as levying a license tax of $1000 for each of their several companies, are illegal and unconstitutional, and. violative of the rules of uniformity and equality. .That.the. business,of “insurance agent” or solicitor is a known and recognized industry, and cannot be.subjected,to this tenfold taxation.

, The first question presented, therefore, for solution is whether the Act, 27 of 187p, which contains the usual repealing clause, had the effect to .repeal, and annul the ordinances-of the city imposing.and assessing licenses to mqet,the | estimated expenses of 1879. If .it did not have that effect, it will be .unnecessary for .us to go into the question of legislative power tq pass retroactive laws,, and other-.kindred questions so extensively discussed before us. 1

, ,, It ,i.s a .safe and long-established rule of interpretation that laws prescribe only for. the future. C, O. Art. 8.

. . And, it certainly-was,the.intention of the framers of the constitution of. 1868 to. at least-consecrate that rule, for it provides that “no re- . troactive.” law sh.all;,be passed- ..Constitution, art.liq. ; ■... ,

With these provisions staring us in the face, we certainly would not toe justified in holding an act to have a retroactive effect unless its terms were so imperative and so explicit as to admit of no other construction, as seems to have been the case in Whited vs. Lewis, 25 A. p. 570.

Turning to the provisions of the act, we find that it is couched in terms prospective only. ■ It says, “ no parish or municipal corporation throughout the State shall assess any license tax over $500, etc ; ” that the act shall take effect “from and after its passage,” to wit, ninth February, 1879. Here, then, are no words looking to the past. Its operation is by its very terms for the future. It does not say that no corporation •or parish shall eollect a greater license, but that it shall not hereafter assess, i. e. levy, or impose a greater.

We have seen that the ordinances of the city imposing, assessing, these licenses were passed nearly two months before this act was passed. When we turn from the language of the act to the circumstances surrounding the legislature, it is rendered almost Certain 'that it was not the intention to give it the effect claimed by defendants. The city had made its estimates for 1879 ; had thereby made appropriations to meet the various debts and liabilities covered by its estimate; had, in fact, ■created liabilities and debts, all predicated- upon and to be paid out. of these licenses and taxes assessed and levied in December, 1878. On the faith of these prospective receipts it had employed laborers, police officers, etc. The law absolutely forbade that the expenses'should- exceed the revenues. Is it rational to suppose that under these circumstances the legislature intended to force the city administration into a violation of law, by cutting off its means and resources to meet its liabilities and thereby derange all its financial affairs ? ■

We think it more than probable that .the reason why the :amendment referred to by counsel,.as having been’offered pending the pas••sage of the bill, postponing its operation to December, 1879, was voted down, and another providing restitution to those who had already paid the license was dropped in the House, will be found in the view we have taken, to wit, that the act did not apply to municipal taxes already levied and assessed to meet debts and liabilities already in large part •contracted.

Judge Cooley in his Work on Taxation p. 221, thus states the rule applicable to this subject: “But there is commonlypresumption that any new tax-law was not intended to reach back and take for its standard of apportionment a state of things that may no longer be in existence. ” Taxation, p. 221.

Further writing on the.same subject, he pronounces that to be “the general rule of law which requires the courts to alwaxjs construe statutes as prospective and not retrospective, unless constrained to the contrary cause by the vigor of the phraseology.”

In Oakland vs. Whipple, 44 Cal. 303, it was held: “ Where taxes are levied under a law which is repealed by a subsequent act, unless it appears clearly that the legislature intended the repeal to work retrospectively, it will be assumed that it intended the taxes to be collected according to the laws in force when they were levied.” See, also, City of New Orleans vs. Day, 29 A. 416.

Holding, therefore, that the act did not affect the city licenses, already imposed, we are spared the labor of discussing the questions of legislative power to do so.

P. A. Barker represents five foreign, fire insurance companies andi one life insurance company.

Welshans & Woods represents eight Similar fire insurance companies and one life insurance company.

We have seen that there is by the terms of the ordinances imposed as license on “ every agency doing insurance business in said city, for any insurance company or companies not therein Located, for each and every company by said agent represented * * * one thousand dollars.” In other words, it is on “ the agency” that the license is imposed, and that license is to be at the rate of $1000 for each company whose policies are sold or delivered by such agency. The license is not levied on the companies. They enter into the question only as an element of calculation, to measure the license to be paid by the agency. Such a rule of imposition is clearly in violation of the rule of equality and uniformity. See New Orleans vs. Home Insurance Co., 23 A. 449; State vs. Endam, 23 A. 664; Feliciana vs. Gurth, 26 A. 640; Cullinene vs. New Orleans, 28 A. 102; Police Jury vs. Nougues, 11 A. 739.

But aside from this view of the case it is alleged and shown by Barker and Welshans & Woods, that, in fact, they carry on the business of “ insurance agency; that they negotiate insurance upon commission, and to increase their incomes they procure authority from foreign companies to place risks for them, and that they solicit the patronage of persons desiring to insure; that they are under no obligation to solicit for any particular company, each company simply agreeing to accept such risks as they may place for them ; that this business is conducted in their own interest and behalf, they renting and furnishing their own offices and defraying all expenses out of their own means that the policies delivered are issued by the companies at the several places where they are domiciled, and that said companies have and keep-no offices here.

Under this state of facts it is manifest tnat the business carried on by these parties is a distinct, separate, and individual industry or occupation, and only taxable as such. There is no more reason for taxing them at the rate of $1000 for each company whose insurance they sell than there is for taxing that class of jobbers who make a business of selling the manufactures of foreign factories, at the rate of $1000 for each company whose goods they sell on commission. The principle is precisely the same. They are both agencies.'

But the business of Are and marine insurance is a distinct one from that of life insurance; so the business of “ life insurance agent ” is distinct from that of “ Are and marine agent.”

Where the same person follows two occupations, recognized in commerce as separate, and taxed and classed distinctively by law, he must pay a license for each. See “ City of New Orleans vs. Metropolitan Loan and Pledge Bank,” lately decided and not yet reported.

On the question of interest, the ninth section of Art. No. 48 of 1871 and act 41 of 1874 provide in effect that all taxes imposed by the city of New Orleans ” shall bear ten per cent interest from Arst March of each year.

We regard the terms “ all taxes imposed ” as generic, and as covering license taxes levied for revenue.

No judgment can be given against those companies represented by* P. A. Barker and Welshans & Woods. Nor can we render judgments against Barker and Welshans & Woods for licenses due by them as conducting agencies, since personally they are not sued. Barker is liable to the city for a license of $1000 for his Are insurance agency and of $500 for his life insurance agency; and Welshans & Woods for like amounts. We reserve the rights of the city to claim these licenses from said parties in proceedings to be brought against them personally

It is, therefore, ordered, adjudged, and decreed that the judgments appealed frpm be avoided and reversed, and plaintiff’s demand rejected at its costs in the following eases : City of New Orleans vs.

No. 50,048, Continental Insurance Company.

No. 50,049, Hartford Fire Insurance Company.

Ño. 50,051, Home Fire Insurance Company.

No. 50,052, Ætna Insurance Company.

No. 50,053, Franklin Fire Insurance Company.

No. 50,110, Mass. Mutual Life Insurance Company.

No. 50,061, Mercantile Mutual Insurance Company.

No. 50,062, Queen Insurance Company.

No. 50, 063, German American Insurance Company.

No. 50,064, Boyal Insurance Company.

No. 50,065 Manhattan Fire Insurance Company.

No. 50,060, Commercial Union Assurance Company.

No. 50,059, New York Underwriters’ Agency.

No. 50,078, Fire Association o£ Philadelphia.

No. 50,109, Equitable Life Assurance Company.

It is further decreed that the judgments appealed from be affirmed at costs of appellants in the following cases ;

No. 50,050, New Orleans vs. Rhenish Westfalian Lloyds.

No. 50,016, New Orleans vs. Imperial and Northwestern Fire Insurance Companies.

No. 50,072, New Orleans vs Western Assurance Company.

No. 50,058, New Orleans vs. Great Western Insurance Company.

On Application for Rehearing.

Spencer, J.

The defendants in the above two cases, decided with others by us on 23d May, apply for a rehearing, on the ground that we should have rendered in those two cases the same judgment we rendered in the cases against the companies cited through P. A. Barker and Welshans & Woods.

To support their application it is said,

1. That the petitions of the city against them are identical with those against the Barker and Welshans & Woods companies.

2. That the prayer of the petition in all the cases is the same.

3. That the judgments of the court below are similar in all the cases.

This is all true; but the conclusion drawn by counsel that ergo the same judgment ought to have been rendered by this court in all the cases, is, we think, a non sequitur for the following reasons:

The answers of Barker and Welshans & Woods, and their evidence in support thereof, present issues not made by the two companies now complaining.

S. A. Moritz, through whom, as agent, the Westfalian Lloyds is cited, answers by“ a general denial of all plaintiff’s allegations, except such as may be admitted.” He then “admits that he is the agent of said company in New Orleans,” and that as such he had tendered the city $500. The act of February 9,1879, is then pleaded as repealing the city license ordinances.

Fell, through whom the Imperial & Northern is cited, makes in all respects a similar answer.

But the answer of Barker and Welshans & Woods is a very different one. Like the complainants, they plead the acts of ninth February, 1879. But they deny all of plaintiff’s allegations. They specially plead and proved that they are carrying on a separate and independent industry and occupation, to wit, that of insurance agency; that they conduct it in their own interest and for their own benefit in their own offices, kept and paid for by themselves ; that the companies whose insurance they sell have no offices in this city, and no exclusive agents, and issue their policies from their home offices, under an agreement to accept such risks as respondents may place for them; that because they place risks for several companies is no reason why they should be taxed for each company, and that such taxation would be unconstitutional.

Under these special pleadings and proofs we rejected the city’s demands as to the companies cited through Barker and Welshans & Woods, for the very good reasons that the companies were not carrying on an insurance business in this city, had no agents or offices here, and were not suable through Barker and Welshans & Woods, who disclaimed authority to represent them.

But no such special defense was made by Fell or Moritz;. On the contrary, they admitted that they were the agents of their respective companies, and pleaded partial payment of plaintiff’s demand.

Nothing in the record informed us that they were conducting such a business as Barker and Welshans & Woods. No plea or proof to that effect was before us. Nor is there now before us any such plea, except in their briefs for a rehearing, nor any proof except what is contained in an agreement of counsel produced now for the first time, after judgment, whereby it appears that Moritz and Fell each represent an additional company, sued on similar demands by the city, but in which no judgments have yet been signed by the court below, and which, therefore, can not possibly be before us.

It appears by said agreement that Fell and Moritz have agreed that the same judgment shall be entered in their said undecided cases as this court may render in the Westfalian Lloyds case. The counsel complain that the effect of our decree is to make Fell and Moritz each pay $2000 ($1000 for each of their companies) for carrying-on the same business as Barker, who is only to pay $1000. That “ no further animadversion” of our decree is necessary than thus to state its effect, to which we reply that this court decides cases as they are presented by the pleadings and evidence. That outside of the record we can know nothing, and that the court does not feel that its decrees deserve animadversion for failing to sustain defenses which parties have not made. We are asked in consequence of that agreement, made in cases not before us, and produced for the first time on application for rehearing, and not “previous to submission” as agreed, to annul and reverse our decree herein, not because it is wrong upon the pleadings and facts before us, but because through the operation of defendants’ said agreement, they will be forced to pay a double license.

It is not for us to say what effect is to be given to that agreement; perhaps the court below may, under the circumstances, hold that it is not binding; perhaps the city may not insist on it. Whatever its effects, .this court does not feel any responsibility for them.

The rehearing is refused.

On Rehearing as to Companies Represented by Barker and by Welshans & Woods.

Manning, C. Í.

Two opinions may be reasonably supposed to have exhausted all that should be said in this case; The third Shall be brief.

The city attorney, in his brief on rehearing, remarks that a discrimination has been made by the court, in that each of the several Companies represented by Fell, Smith, and Moritz is condemned to pay full license, while those represented by Barker and Welshans & Woods are treated quite differently, notwithstanding the' latter hold precisely similar relations towards their agents as the former towards theirs. He seems to have forgotten or not to have known of our opinion on the application for a, rehearing, in which the cause as well as the necessity for such discrimination was pointedly demonstrated to be the difference in the pleading of these several parties.

Our decision wad that the city ordinance, by express terms and in unmistakeable language, imposed the license on the agency, and not on the Company or Companies that employed the agent, and therefore that each agency could be compelled to pay the license but once, and not as many times as it represented companies — that the business of Life Insurance agent is distinct from Fire and Marine Insurance agent, and each is therefore liable for a separate tax or license — that the judgments against the companies, which were affirmed, must stand, because their own pleadings admit the agency, plead a tender of part of the sum demanded, and plead a legislative Act as á remittitur of the residue — that the judgments against the other companies could not stand, because an agency as to them is specially denied, and it is alleged and proved that the parties, who were assumed to' be their agents, carry on a separate, distinct, and independent business, which the city ordinance in effect recognises as a trade, profession, or obeupation — and that these parties, not having been sued individually, could not be condemned individually.

Patiently going over the transcript and briefs once more, we think our former decree not only consistent but inevitable, unless counsel are willing to concede that this court can remodel pleadings, or that we can disregard the plain terms of an ordinance of the city to prevent a diminution of its revenue, to the prejudice of those who carried on business under the protection that ordinance was supposed to afford.

Lt'is therefore ordered that our former decree remain undisturbed.


author: Spencer, J.

text:
    No. 7351.
    Mary B. Powell, Wife of H. S. Bosley, vs. D. H. Hayes, et al. Mrs. M. R. May, Warrantor.
    The answer of a third person in possession of mortgage property bought by him, admitting possession, and referring specially to his title, will cure the defect in the pleadings of the mortgage creditor, who holds a mortgage on one fourth of the property, arising from the latter’s failure to describe or designate the portion of the property held by defendant.
    The warrantor has a right to raise any legal defense against the plaintiff’s demand, because his obligation is to protect the defendant against that demand.
    Neither the conventional partition of certain land held in indivisión by two owners, nor the subsequent sale of that portion of the land acquired in the partition by one of the part owners, (sold in his succession) can divest or impair any mortgagee of his undivided interest in the land executed by the other part owner, before the partition took place, when it does not appear that the mortgage creditor was a party to the partition.
    Renunciations of rights are not to be presumed.
    As against a special mortgage, the right of requiring a previous discussion' of other property embraced by the mortgage, but subsequently sold, does not exist,
    The creditor is bound to impute to the extinction of his credit all sums received by him from the debtor, or from the securities of the debt.
    A creditor with a mortgage resting on the whole of a certain tract of land, who remits, or releases his mortgage on a portion of the land, thus enabling the debtor to sell that portion free from incumbrance, does not forfeit his right to proceed against, and subject to the payment of his whole debt, the remaining portion of the land, which had been sold to, and was held by a third possessor, because he had failed to subrogate such third possessor to his rights against the portion of land released from mortgage. The third possessor has no legal right to demand such subrogation.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River, Pierson, J.

      L. B. Watkins for plaintiffs and appellees.

      Chaplin, Cunningham. & Chaplin, J. H. Pierson, J. H. & M. J. Cunningham, and Armand Pitot for defendants and warrantor, appellants.
   The opinion of the court was delivered by

Spencer, J.

This is the hypothecary action. James R. and Peyton R. Bosley owned in common, or ordinary partnership, several tracts of land. Peyton R. died early in the year 1859, leaving as his sole heirs two sons, John R. and Hubbard S. Bosley. On 29th July, 1859, James R. and these two sods of Peyton R. entered into an agreement, whereby, for the purposes and as basis of future settlement and division, they declared what property was owned and held by them in common. There seems to have been a number of sales and transfers, after this, between these parties of various portions of these lands. On 24th December, 1859, John R. sold to Hubbard S. his interest in certain of these lands and by another, act of sale Hubbard S. sold to John R. his one fourth interest in and to a certain described plantation containing 900 acres, and another tract containing some fifty acres, for $12,600, of which $8000 was said to be paid satisfactorily as cash (evidently by the previous sale from John II. to. H. S., which was for $8000), and three notes of $1533 33, each falling due in one, two, and three years, for security of which a special mortgage and vendor’s lien were retained. -The last of these notes was transferred by H. S. Bosley to his wife in satisfaction of paraphernal claims, and upon it the present suit is brought.

Shortly after the sale aforesaid from H. S. to John B. Bosley, the-latter and James B. Bosley partitioned by notarial agreement the plantation and other lands referred to, one fourth of which was subject to said mortgage in favor of H. S. Bosley. In this partition one half was set apart in kind to James B. Bosley and one half to John B. Bosley. Of the half falling to John B. Bosley, he subsequently sold off to various persons at different times portions thereof.

In several instances H. S. Bosley and his wife, by formal acts relinquished their mortgage and privileges on the portions so sold by John B. Bosley. In only one of these acts is the consideration of the relinquishment stated, to wit: that to one Upshaw, where it is stated that the-relinquishment is made for the consideration of $600.

Mrs. H. S. Bosley having acquired the note of $1533 33, as aforesaid', brought suit against John B. Bosley, obtained judgment, and seized and sold the lands remaining in his hands, she being the purehaser'at the price of $650. James B. Bosley having died, his lands were sold at succession sale and bought by Mrs. May, who sold 262 acres thereof to Hayes, who sold part thereof to Giles.

The present suit is brought by Mrs. H. S. Bosley to subject the-property bought by Hayes to the mortgage and vendor’s privilege securing said note. Hayes calls Mrs. May in warranty, and Giles calls Hayes in warranty.

She alleges that her husband, H. S. Bosley, had sold to John B. Bosley, with reservation of mortgage and privilege, one undivided fourth of the plantation, containing 900 acres, and other lands as per deed of daté made part of the petition. . She then avers “ that portions of said mortgaged property are in the hands and occupancy of D. H. Hayes, who holds under title as owner, and that other portions are in the liko possession of Allen Giles, and that she desires to enforce her said mortgage against said property in their hands, etc.”

No description or designation whatever is given of the “portions,r of these lands so held by these parties. But we think the answers of the defendants, wherein they admit possession and refer specially to their titles, cure these defective and insufficient allegations of plaintiff. That the defendants’ objection to plaintiff’s evidence for insuffieiency and vagueness oí allegation was therefore not well taken, and was properly overruled.

The answers of defendants and warrantor to plaintiff’s demand set up in substance,

1. A general denial.

2. That plaintiff has no mortgage on the lands in question, because of the partition and the probate sale mentioned.

3. That subsequently to the partition with James R. Bosley, and the conveyance therein to him by John R. Bosley, said John R. Bosley made divers and various sales to other persons, and that the property thus subsequently transferred must be discussed before resorting to the lands previously transferred to James R. Bosley.

4. That plaintiff and her husband have debarred and estopped themselves from enforcing their mortgage against the property so sold to James R. Bosley, by reason of their having renounced their mortgage in favor of junior and subsequent purchasers of portions of the mortgaged property from John R. Bosley, thereby putting it out of plaintiff's power to subrogate defendants to said mortgage as against said subsequent purchasers.

5. The plaintiffs are bound to account for all sums received from the debtor or others on account of said mortgage.

We may remark here, by way of preface, that plaintiff’s proposition that the warrantor’s answer can raise issues only with defendant is clearly erroneous. The warrantor’s duty and obligation is to defend the suit and protect the defendant against plaintiff’s demands.

We have no hesitancy in reaching the conclusion that neither the act of partition between James R. and John R. Bosley (being simply a conventional one) nor the probate sale of James R. Bosley’s estate had the effect of divesting the mortgage in favor of H. S. Bosley. Probate sales divest only the mortgages imposed by the deceased, not those affecting it when he acquired. See 6 N. S. 386; 5 L. 470; 9 L. 12; 29 A. 385.

Judicial partitions alone have the effect of divesting mortgages upon undivided interests in property, and attaching them to the mortgagor’s lot. C. C. 1338 ; 6 La. 214.

But defendants’ counsel argues with much ingenuity and plausibility that though not in name a party to this act of partition H. S. Bosley must be considered as in reality privy and consenting thereto. That the deed from John R. to H. S. of his interest in certain lands, that of H. S. to John R. of the lands in question, and that of partition between James R. and John R. must be viewed as so many steps in execution or consummation of what was contemplated by the act of 29 July, above referred to, to wit, partition of the property. We are unable to concur in these views. We find nothing in the aqt of 29 July, or in any subsequent act, which expressly or impliedly binds EL S. Bosley to any future agreements which maybe made between James B. and John B. Bosley to which he might not be party. To say that because he, by the act of 29 July, agreed upon what was the common property and that future settlements should be based upon the property so agreed upon, he thereby made himself a party consenting to future agreements between his co-proprietors, would be pushing the doctrine of implied consent to extremes. Renunciations are not to be presumed. We can infer no agreement on his part to renounce his mortgage on the property falling to James R. Bosley.

It is very clear that the right of requiring previous discussion of other property subject to the same mortgage, but subsequently sold, does not exist as against a special mortgage. O. P. 73 and 715.

It is equally certain under the Louisiana Code, as well as under every principle of equity, that the creditor must impute to the extinction of his credit all sums received by him, whether from the debtor himself or from the securities of the debt. See C. C. (old) 2202.

The real difficulty in this case is presented by us under the fourth head above mentioned.

A debtor grants a special mortgage, for instance, on his entire plantation. Subsequently he sells half of it to a third person, encumbered with the mortgage, and later sells the other half to another third person; can the creditor, after this first sale, release and remit his mortgage on the half subsequently sold, and then pursue the third possessor of the half first sold for the whole debt ? '

If this third possessor, upon paying the mortgage debt, would be legally subrogated to the debt and mortgage, as they stood at the date of his purchase, for the purpose of forcing the holders of other portions of the mortgaged property to contribute to the payment; or if we can consider the third holders or the property in their hands as sureties of the debtor, or as debtors in solido, then we must hold that the creditor can not pursue for the whole where he has renounced or remitted his mortgage upon part of the property. .

We confess that equitable considerations have strongly inclined us to the adoption of these views; but a careful and closer consideration of the question constrains us to the opposite conclusion.

The principle which underlies the doctrine of legal subrogation, as to sureties and debtors in solido, is that there is privity between the creditor and the person paying; that they are parties to a contract, and that the creditor can not execute that contract in full against one of the parties, after releasing other parties to.it, thus throwing the, whole onus of it upon one party, who by the terms and effect of the contract had the right of sharing its burdens with others. _ Upon this principle the law declares that the release given by the creditor to one debtor in so-lido will discharge the others for his part. C. 0. That the extension of time to the principal, or the release of securities, will entitle a surety to discharge or pro rata relief. C. C.

■ In other words, the creditor is bound to preserve all his rights for the benefit of that one of his debtors who pays, against all his co-corn tractants. The contract must be preserved as a unit if it is to be enforced in its integrity.

Now the third possessor of the mortgaged property is not privy to the contract between the creditor and the original mortgagor. He is not bound for the debt. The creditor has never consented, to take him as surety. Without the consent of the creditor no one can become surety of the debtor in a conventional obligation. He may do so without the consent of the debtor, but not without that of the creditor, for surety-ship, like other contracts, requires the concurrence of two wills.

There being, therefore, no privity between the mortgage creditor and the third possessor, the former is under no obligation to preserve his privileges and mortgages against others, in order that the third possessor may have subrogation thereto in their entirety. It may be that the third possessor, having an interest in discharging the debt, will, upon payment thereof, be entitled to subrogation to the then existing rights of the mortgage creditor. “ But ” as is said in- Offut vs. Hendsley, 9 L. 13, “ between these two there is no privity of contract; they are mere volunteers; he becomes * * * a vendee of the mortgagor without the knowledge or assént of the creditor, and •may have done so against his will. He is under no obligation to pay the creditor, and when he does pay, he must be satisfied with a subrogation to these rights as they exist. * * * We can not see how the rights of a mortgagee may be affected or put in duriori casu by the circumstance of there being a second mortgagor or a sale of the mortgaged premises, etc.”

If, therefore, the mortgage creditor was under no obligation to preserve his securities against others for the benefit of the third possessor, the latter can not complain if the creditor has renounced or lost them. These views have been expressed by this Court (in “ Launusse vs. Larma,” 6 N. S. 104, even in regard to the case of the legal mortgage of the wife, who sought to enforce her mortgage against a. prior purchaser, who pleaded the benefit of discussion, and.that she had renounced her mortgage on properties sold subsequently to that held by him. If that be good law (upon which we express no opinion) in cases where the law gives and requires discussion of property subsequently alienated, it is. so for a stronger reason in cases of special mortgage where the right o.f. discussion does not exist. It was also held in Jackson vs. Williams, 12 M. 334, that when property subject to a judicial mortgage was sold by one act, in lots, to different purchasers, one of these purchasers, on being pursued, could not claim the benefit of division.

In Bayley vs. Tate, 10 R. 45, it was held that “ the plea of discussion can not be opposed to a creditor holding a special mortgage, C. P. 73; C. C. 3367. Nor can a- third possessor of property specially mortgaged for a debt, for which other property is also bound, require that it shall be held liable only for a pro rata portion of the debt. Each and every part of property mortgaged is liable for each and every portion of the debt.” See, also, Suffet vs. Foullu, Journal du Palais, 1872, p. 1210, and authorities there cited in Note 2.

Under the operation of these principles, we conclude that the renunciations made by the plaintiffs of their special mortgage in favor of subsequent purchasers of portions of the mortgaged premises do not estop or prevent them from enforcing it for the whole, against the portions of the property in the hands of defendants, who were purchasers prior in date to those in whose favor the renunciations were made.

We think the judgment appealed from is correct, and it is affirmed with costs. ■

Rehearing refused.


text:
    No. 7569.
    State ex rel. A. J. Padron vs. Parish Judge of St. Bernard.
    This court will not issue a mandamus to compel the judge of a lower court to grant an injunction, or a sequestration, in a case not before this court on appeal.
    j^PPLICATION for a writ of- mandamus.

      Henry OhiapeTla for relator.
    Respondent not represented.
   The opinion of the court was delivered by

Spencer, J.

Relator alleges that the respondent has arbitrarily refused to grant him an order of sequestration, although he has in every respect complied with the requirements of law for its obtention.

He annexes his petition for injunction, and asks this court to compel, by mandamus,the parish judge (acting in the absence of (the district judge) to grant th¿ order, etc.

Articles 820 and 831, C. P., are sufficiently broad to justify relator in this request. But this court must measure its powers by the constitution, which declares that -its jurisdiction is appellate only, except in certain cases, of which this is not one. Constitution, arts. 74 and 77.

It is settled jurisprudence that this court can issue the writ of mandamus only when asked in aid of its appellate jurisdiction. The case before us is not within the operation of that rule.

If we may compel the judge to grant an injunction, we may compel him to grant any other order which he ought to grant, such as a continuance, attachment, etc. It is manifest that we can • only reach such matters when brought before us on appeal. In March last we decided the point now before us adversely to relator. See State ex rel. Poole vs. Judge Second District Court (not reported).

It is therefore ordered that the mandamus be refused at the costs of relator.


author: Spencer, J. Manning, C. J. Spencer, J.

text:
    No. 7245.
    Amadie Testart vs. Hypolite Belot et al.
    The petition of appellant, verified by his oath in a suit to enjoin a sale, that the property sold, and which he claims is worth over $600, gives this court jurisdiction, although it may appear that he bought the property for (fioo, subject to taxes, and that the judgment under which the sale was made was for only $200,
    The creditor of one who has made a simulated sale of his property has a right to prove the simulation by parol evidence. He is not restricted to a counter letter, as a means of proof.
    The innocent holder of a mortgage note, executed by one in whom the recorded legal title of the mortgaged property rested, can not be affected by the fact the recorded title rested on a simulated sale.
    Where it is alleged that the holder of a note is not its owner, that it was passed t® him for the purpose of suing on the same, thus alleging in effect that he is a ' • party interposed to defeat the plaintiff’s claim, evidence is admissible to prove the non-ownership.
    APPEAL from the Fifth District Court, parish of Orleans. ■ Rogers, J.

      W. B. Murphy for plaintiff and appellant.

      A. B. Phillips for defendant and appellee.
   On Motion to Dismiss.

Spencer, J.

Defendants, appellees, move to dismiss this appeal, on the ground that the amount in dispute does not exceed $500.

Plaintiff, the appellant, enjoins the sale of a certain lot of ground in New Orleans, seized at the suit of Belot vs. Meir. The injunction is’ based upon plaintiff’s claim of ownership of th¿ lot, which is the thing in dispute. The petition, verified by oath, alleges the value of the lot to be over $600. It seems that plaintiff acquired the lot at public sale for $400, subject to ¿axes, and that the judgment under which this sale was made was for only $200. Appellee contends that these facts show a value less than $500.

We think this conclusion a nonsequitur. These facts are not inconsistent with the allegation and oath of plaintiff, that at date of injunction the property was worth six hundred dollars.

The motion is refused.

On the Merits.

The Opinion of the court was delivered by

Manning, C. J.

The brief of neither counsel places before us the order and date of events, which facilitate the decision of this case, in that regular sequence which at a glance gives a comprehension of the question at issue. The property was acquired, alienated, and mortgaged thus

Eortwendel acquired it in 1818, and sold it to Courcelle in 1865, and Courcelle sold to Marie Meir in 1867, and Marie mortgaged it to Clay in 1872, and Belot bought it in May 1878

under that mortgage, and at its foreclosure, having become the owner of the mortgage note, and himself being the actor in the executory process which forced the sale, and the purchaser at the sale.

Eortwendel mortgaged it to Testart in 1876, and Testart bought it in March 1878

under that mortgage, and at its foreclosure.

„ Testart, the plaintiff, thus acquired it under a mortgage from Eortwendel, given in 1876, eleven years after he had sold it to Courcelle, and Belot, the defendant, acquired it by a chain of title from Courcelle. Prima facie, that statement would settle the dispute.

This action was instituted, pending the executory process of Belot, to arrest that sale, and to have Eortwendel’s sale to Courcelle, and the latter’s to Marie Meir, declared simulations and of no effect, the plaintiff averring that Marie Meir was Eortwendell’s wife, who could neither acquire nor mortgage without his authorization, and besides, that the mortgage was obtained from her by Clay through fraudulent misrepresentations.

The marriage, if ever there were any, was not only carefully concealed, but Eprtwendell had ostentatiously described himself as unmarried in the sale to Courcelle, and the latter, two years after, in his sale to Marje, with imitative particularity, uses the prefix to her name which belongs to her as a spinster. It was not until January 1878, when Belot was about to foreclose the mortgage given to Clay, of which he had become owner by the acquisition of, the note which it secured, that Eortwendell and Marie appear in legal proceedings as man and wife. They sued out together an injunction, alleging that they were married before Courcelle’s sale to her, and the property was therefore community, and the wife’s mortgage without authorization was nothing worth, and the noté which it secured was valueless.

But it was proved bn the trial of that case that Olay was the executor of Courcelle, and found the note among his effects, and called ott both Eortwendell and Marie Meir for payment, for it seems there were some sort of relations between them. Clay as a broker enabled the lady to borrow money to take up that note, and shé gave a new one with mortgage, and it was this last note that Belot acquired; But before this was done, Eortwendell himself paid the interest for successive years on this note, never hinting that the note was valueless because it had not his signature authorizing his wife (thén unclaimed) to sign, nor intimating that the connection between himself and the signatory of the note was other than voluntary, and unsanctioned by the laws of the Church or State. On the contrary he always spoke to Belot (and the native tongue of both is French) of Marie as la femme.

The result of that trial was that our learned brother, who heard the case, measuring the turpitude of these people by that standard which morals and law alike prescribe, wouid not listen to them, while alleging that a marriage invalidated acts which they had done to obtain money, pretending and asserting all the while that they were unmarried; and turned them out of court without delay.

The present plaintiff also seeks to annuli the sale from Eortwendell to Courcelle, and all subsequent transfers and mortgages of Courcelle’s vendee, on the ground of simulation. He avers that the real title was in Eortwendell when the latter gave him the mortgage he is seeking to enforce, and all the Acts which put the apparent title in others are simulations, and void as against him. While therefore it is true that Eortwendell cannot be heard, while setting up the simulation of his conveyance to Courcelle, and cannot be permitted to assail the verity of that conveyance by parol testimony, but only by a counter letter — his creditor is not hampered by the same restriction. A party who has made a simulated sale of property has his own negligence to blame if he omits to take a counter letter, and therefore where land was 'alleged to have been conveyed for the purpose of giving the vendee an apparent title to enable him to recover in a petitory action, and no price was really paid, it was held the stipulation as to the nature and purpose of the conveyance could not be shewn by the party who made the sale except by a counter letter. Delahoussaye v. Davis, 19 La. 409.

Not so with the creditor of such party. Nouvet v. Vitry, 15 Annual, 653. If Testart can shew that all these transactions are simulations, he is at liberty to do so, and by parol testimony. Obviously that is the only kind o£ testimony he could obtain, or would be likely to have at hand, to make such proof, and to hold that a creditor is barred from making such proof, and can only avail himself of a counter letter, which his debtor might purposely have omitted to take, would be to put in his way an obstruction to the enforcement of his rights, which the debtor may have designedly supplied.

But to enable the plaintiff to do this against Belot, he must have alleged the latter’s want of good faith, and the absence of innocence and reality in the debt which he is urging, for it must be observed that even if the whole of the conveyances and mortgages under which Belot holds were simulations, he will not be affected by that fact if he is himself the innocent acquirer and holder of the note and mortgage of Marie Meir. In that case, if Testart and Belot have both been deceived, the former must suffer, since the latter in good faith had really acquired a note, secured by'a mortgage, executed by one who by the public records appeared to be owner of the property.'

The allegation is that Belot does not hold the note as his own — that “ it was passed to him'for the purpose of suing on the same.” In effect, this is an allegation that Belot is a person interposed to defeat the plaintiff’s claim, and has no real interest in, or ownership of the note and mortgage he has enforced. Proof should have been admitted on both sides to substantiate and to disprove this allegation. If Belot can disprove it, the mortgage he acquired will be good for his purposes, and Testart will be remediless, so far as concerns, the mortgage property.

The lower court refused to admit parol testimony, offered by the plaintiff, to shew the simulation of the whole series of Acts, by which an apparent title was vested in Marie Meir, and to shew Belot’s non-ownership of the note sued on by him, and his knowledge of and complicity with Fortwendell and.Mary Meir in their fraudulent transactions. The testimony should have been admitted. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and the cause is remanded for a new trial under the instructions contained herein, the appellee paying the costs of appeal.

Dissenting Opinion.

Spencer, J.

I understand that this cause is remanded to enable plaintiff to prove by parol evidence that a sale made by his debtor, and duly recorded eleven years before plaintiff’s right had an existence was a simulation, and that other and subsequent transfers of said property, all prior to the origin of plaintiff’s right, were also simulations.

In my opinion, the acts of a debtor done prior to the origin of a creditor’s right are as much an estoppel of the creditor as they are of the debtor himself. The general rule undoubtedly is that one can confer no greater right than he himself has. To; this rule there are a few exceptions, such as those in favor of bona fide third holders of mercantile paper, and purchasers without notice of unrecorded incumbrances But exceptions can not be extended by implication or construction. They are stricti juris. All the analogies of our law are opposed to the conclusions of the majority of the court. Thus our Code expressly declares that a fraudulent act done by the debtor before the creditor’s right accrued can not be questioned by the latter. That judgments rendered against the debtor before the creditor’s debt existed are res judicata against the latter. And why ? Because in such cases the debtor is the author and representative of his subsequent creditors, and they are as much bound and estopped thereby as he is. ■ A deed, or act, or decree, which estops him estops them. Now it is elementary that the vendor and his assigns or heirs can prove simulation only by a counter letter. The rights of creditors, posterior in date to the act in question, are and can be no greater than his.

Any other doctrine is destructive of all certainty in public records and property titles, putting them at the mercy of perjured witnesses and bad memories. The 'exceptions to these rules, so essential to the public welfare, should not be multiplied by extending .their principles to cases not clearly within their terms.

I therefore dissent.

Rehearing refused.


author: Manning, C. J.

text:
    No. 7650.
    The State ex rel. Wung Chung vs. Civil Sheriff of Orleans Parish.
    A debtor who has been legally arrested and imprisoned for debt, under a writ issued in a civil suit, can not, by confessing judgment, acauire the right to be discharged from arrest.
    A PPLICATION for a Habeas Corpus.

      Thos. M. Gill, and H. H. Briján for petitioner.

      McGloin & Nixon for respondent.
   The opinion of the court was delivered by

Manning, C. J.

The relator was arrested for debt, under a writ issued in a civil suit of Smith Bros. & Co. against him, and was imprisoned. His .motion to quash the writ was refused. Thereupon he confessed judgment for the sum demanded, and then prayed an order of release, which being.refused, he applied to us for a writ of habeas corpus.

The sheriff, answering the rule to shew cause, produced the body of the relator and the writ under which he is held. The sole ground, upon which the discharge of the relator is demanded, is that the confession of judgment put ah end to the creditors’ right to the detention of their debtor.

The contrary has been expressly adjudicated in Anderson v. Brinkley, 1 Annual, 126, when the law, touching the right of a creditor to resort, to the writ of arrest, was the samó as it is now.

The act of 1840 abolished the writ of capias ad satisfaciendum, but the Code of Practice still retains the authorization for the writ of arrest, arts.'210 et seq., and the latest revisal of the Statutes embodies provisions for the debtor’s discharge under certain circumstances. ReV. Stats. 1870 secs. 85 et seq. In neither is it provided expressly or by implication that a judgment terminated the operation of the writ, and insures the debtor’s discharge from imprisonment. The longest time he can remain in custody is fixed by the Statute at three months, and he cannot curtail that time by confessing judgment, and by that means alone set aside the writ.

This court, in the case already cited, remarked the difference of the writ of ca. sa. and of arrest, and observed that a proceéding, which was a writ of arrest before judgment, did not become a writ of ca. sa. by the rendition of a judgment. If it were otherwise, the debtor could by his own act metamorphose the legal process of his creditor, and convert it, at his own option, from one that the law sanctions into another that the law has abolished. The process, under which the relator was imprisoned, was in its inception a writ of arrest, which can be set aside and vacated only in the manner, and under the circumstances, by law provided. Confessing a judgment is not one of the ways thus provided.

It is ordered that the rule is discharged at the costs of the relator and he is remanded to the custody of the respondent.


text:
    No. 7584.
    State ex rel. L. E. & E. F. Herwig vs. Judge of the Third District Court.
    Where on the application of a debtor for a respite, the question in dispute i& whether or not the respite has been refused, the appointment of a provisional syndic before the decision of that question is premature ; and the debtor is. entitled to a mandamus, to compel the lower judge to grant a suspensive appeal from the order of the court making such appointment.
    REPLICATION for a mandamus.

      Charles Louque for relators.

      McQloin & Nixon and A. J. Lewis for respondent.
   The opinion of the court was delivered by

Manning, C. J.

Upon an application for a respite, made by the relafcors, a meeting of their creditors was called, and was held before a notary public. The procés verbal was filed in court by the debtors who prayed the homologation of the deliberations. Several creditors, who had voted to refuse the respite, petitioned the court to appoint a provisional syndic, averring that the respite had been refused, because'a majority in numbers and amount of the creditors had not voted for it. The debtors on the other hand maintained that a majority had voted for the respite, and a provisional syndic was appointed pending the contestation over this matter. A suspensive appeal was prayed from the order making this appointment, which was refused. Hence the present application for a mandamus.

The judge, responding to the rule nisi, says that he felt bound to be governed by what appeared from the face of the papers to be the result of the meeting of the creditors, and whilst irregularities are disclosed in the procés verbal, the conclusion he arrived at was the respite had been refused, and a cestion of property ensued by operation of law, and consequently the matter had to be treated as if such cession had ensued, until it was otherwise determined.

It is true that when the creditors refuse a respite the cession of property ensues, and the proceedings continue as if the cession had been offered in the first instance. Civil Code art. 3065 new no. 3098. Arcenaux v. Creditors, 3 La. 37. But the point in dispute was whether or no the respite had been refused — the debtors maintaining that it had been granted, and offering the procés verbal in proof thereof, and praying its homologation. To appoint a syndic while that matter was undetermined was to assume that it was determined, because such appointment could only be' made when there was a cession, and a cession ensued by operation of law only when the respite had been refused. And that it was not determined is apparent from the language of the respondent who treats the cession as having ensued “until it was otherwise determined.”

Irreparable injury might be done by an order, based upon an assumption that a certain act had been done which may hereafter turn out not to have been done, and a suspensive appeal will alone give the complaining parties adequate redress, while the creditors are protected by the appeal bond. While the contestation exists touching the fact of respite granted or refused, a syndic, whose appointment follows only upon a refusal, cannot be appointed.

The mandamus is made peremptory at the respondent’s costs.


author: DeBlanc, J.

text:
    No. 7565.
    State ex rel. Mary L. and Annette Moore vs. Parish Judge of St. Landry.
    Where a respondent makes answer to an application for a mandamus', he thereby waives his right of subsequently excepting to the proceeding on the ground that the allegations of the relator were not sworn to.
    Persons in interest in a certain proceeding, notified of an application to compel a judge to grant an appeal in the ease, can not rely on any exception to the regularity of the proceeding on the part of the relator, filed by the judge alone. An exparte order of court, granted on the application of an executrix, commanding the sale of succession property in order to effect a partition between the executrix, who has an undivided interest in the property, and the heirs, will be set aside, and the sale of the property enjoined on the petition of the heirs who, in consequence of the exparte order, and the sale to be made under it, would be deprived either of their legal right to ask for a partition in kind, or, otherwise' of retaining until a final settlement the price of any of the property they might purchase, at a sale of it made exclusively to effect a partition.
    ^PPLIOATION for a mandamus.

      Lewis & Brother for relator.

      Henry L. Garland and Jno. N. Ogden for respondents.
   The opinion of the court was delivered by

DeBlanc, J.

The relators are, by representation of their mother, heirs in part of the late.Pierre Wartelle, who died in 1865, leaving, besides other property, some lots of ground situated in the city of New Orleans and appraised, with the improvements thereon, at forty thousand dollars.

Pierre Wartelle left a will in and by which he gave to his wife — Mrs Louisa King — one third of his estate and appointed her his testamentary executrix. In that capacity she applied for and obtained from the parish court of St. Landry an order commanding the sale of the city property, for the alleged purpose of partitioning the same and of paying unliquidated claims.

The intended sale of said property was enjoined by the relators, on the grounds:

1. That Mrs. Louisa King, acting as the executrix of her husband’s will, has already caused to be sold, partly for cash and partly on credit, a portion of the estate of said deceased, the price of which she has retained as one of the purchasers, and the balance of which she has received as executrix; and that — as yet — she has rendered no account of her administration.

2. That the orders commanding the enjoined sale were rendered at chambers, without citation to them, and that they were thus excluded from any participation in the fixing of the terms and conditions of the common property.

The relators’ injunction was dissolved on bond, and the condition of that 'bond, the amount of which is only five hundred dollars, is “ to secure Mary L. and Annette Moore for any and all claims which they may have, and for all damages which they may suffer by the sale of the property,” which — as said — is appraised at forty thousand dollars.

From the ex parte order dissolving their injunction, the parish judge refused to grant them a suspensive appeal, and they have applied to this Court to compel said judge to allow their rejected demand, and to prohibit, until further order, the intended sale of the common property.

In answer to their application, the parish judge alleges, in substance, that he dissolved the relators’ injunction,because, in his opinion, no irreparable injury could result from said dissolution; and that — under these circumstances — he could not consistently have granted an appeal from the order thus issued by him, and which he considers as fully authorized by article 307 of the Code of Practice. The judge’s answer was filed on the 10th of September 1879 ; and — here—he, the executrix and the sheriff, who is merely directed to make the sale already referred ■to, have — on the 1st of November — excepted to the proceedings in mandamus and prohibition, on the ground that the facts therein alleged are not sworn to by the relators themselves, but by their attorney.

As regards the judge, who — in this proceeding — is the principal party, the filing of his answer preceded, by several days, that of his exception, and — -by his answer — he waived the irregularity which he now •complains of. As to those who are otherwise interested in this matter, they have been duly notified of the action taken against the judge, for his refusal to grant the appeal, and they cannot — so far at least as con•cerns the mandamus — rely on an exception which he alone might have ^successfully urged.

Mrs. Wartelle — it is charged — has, since fourteen years, been appointed as the executrix of the last will of her husband, has sold property belonging to the estate of the deceased, purchased a part of the ■same, retained the price of what she purchased, received from others the proceeds of previous sales, and could not, without having rendered an account of her administration and of. the funds already realized, force the sale of the property situated in this city, for the purpose, as •she alleges, of paying claims which may hot be due, the very existence of which is denied by relators, and for the additional purpose of exe•cuting the will of the deceased and effecting a partition of his estate.

One of the debts which the executrix thus attempts to satisfy, is her own claim for over twenty-four thousand dollars, and it is evident that — if unrestrained — the course which she was pursuing would inevitably have deprived the relators of two legitimate advantages — that of ••asking a partition in kind, or — otherwise—of retaining, until a final settlement, the price of any of the property held in common and which they may purchase, at a sale made for exclusively a partition of their grandfather’s estate.

C. C. 1337 (1260): 1343 (1265).

If the facts alleged and relied upon by the relators, and not denied by the judge, be hereafter substantiated by additional evidence, they certainly justify the injunction which they resorted to, and its dissolution on bond, which — if maintained — would be followed by a sale, a transfer of title and change of possession, might, and — it seems — could not fail to work irreparable injury.

C. P. 566 ; 23 A. 151; 11 A. 39 ; 14 A. 27 ; 39 A. 297.

The relators are entitled to the appeal which they have vainly sought to obtain.

It is, therefore, ordered that the provisional writs of mandamus and prohibition issued on the 11th October, 1879, be and they are hereby made peremptory at the costs of defendants.


author: Marr, J.

text:
    No. 7518.
    The State vs. François Dufour.
    This court will not review or pass on the ruling of the lower court in a criminal case, either in receiving or in rejecting testimony, except where the objections and ruling are set forth in a formal bill of exceptions.
    Proof that one accused of murder escaped and fled from justice, after arres? for the crime charged, is admissible.
    The voluntary declaration of one charged with murder, received by the committing magistrate, is not admissible in evidence in his favor on the trial.
    ^PPEAL from the Superior Criminal Court. Whitaker, J.

      H. N. Ogden, Attorney General, .for the State.

      J. J. E. Flanchard for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

The accused has appealed from a judgment sentencing him to imprisonment, at hard labor; in the penitentiary, for ten years, for shooting one Charles Secious, with a dangerous weapon, with intent to commit murder. He relies upon the objections taken on the trial to the rulings of the District Court, two of which are set forth in bills of exception. The other is not brought to our notice otherwise than as stated in the following extract from thfe minutes, copied into the transcript :

“Frederick Secious being cross-examined, the District Attorney, on the part of the State, objected to a question put by counsel for defendant, which objection was sustained by the court'under the following ruling: ‘ A collision between two mules on the street does not justify the shooting of the driver.’ To which ruling of the court counsel for defendant reserved a bill of exceptions. The court continued its ruling as follows: 'I do not think it necessary in a charge of shooting with a dangerous weapon, with intent to commit ■ murder, to show how mule teams collided. They may have collided by design, or they may have collided by accident. In either case the testimony is immaterial and irrelevant.’ ”

This is all that appears in the transcript in reference to this testimony ; and if all that is thus stated had been set forth in a formal bill of exceptions, it is probable that we should have affirmed the ruling of the District Court, more especially since there is nothing in the transcript to show that accused was the owner or the driver, or that he was connected with or interested in either of the teams, or that any right or property of his was injured or impaired by the collision, or that the collision occurred by the fault of the person shot. In the case of the State vs. Jessie, 30 A. 1171, we decided that the act of 1877, p. 176, amending art. 488 of the Code of Practice, so as to dispense with formal bills of exception where the points reserved are taken down by the reporter or the clerk, is not applicable to criminal prosecutions. We can not review or pass upon the ruling of the District Court in criminal cases, whether in receiving or in rejecting testimony, except where the objections and ruling are set forth in a formal bill of exceptions.

It appears by the first bill of exceptions that counsel for the accused objected to testimony offered by the District Attorney, and received by the court, to prove that the accused fled, and was a fugitive from justice when he was first seen by the witness, a sergeant of the police, about a month after the alleged shooting, The statement by the court, before signing the bill is, that “evidence that the defendant had fled from justice after arrest for the crime charged, is admissible.”

In the case of the State vs. Beatty, 30 A. 1267, we decided that proof was admissible that a person charged with the crime of murder •attempted to escape from prison a few days before the trial. Proof that the accused actually escaped, and fled from justice, after arrest for the crime charged, is equally admissible. The effect of such testimony will depend on the surrounding circumstances ; and it must be determined by the jury.

The second bill of exceptions is to the refusal of the court to permit the voluntary declaration of the accused to be read to the j ury. In the State vs. Vandegraff, 23 A. 96, our predecessors decided that the iaw, R. S. secs. 1010, 2058, which makes the voluntary declaration of the accused, received- by the committing magistrate, evidence before the grand and petit jury, does not make it evidence in his favor, or authorize him to introduce it on the trial. In the State vs. Toby, decided in March last, No. 7100 of the docket, a majority of this court, after full discussion and careful consideration, held this to be the correct interpretation of the legislative will. The question must be regarded as settled by these decisions; and we accept them as final.

The judgment appealed from is, therefore, affirmed with costs.

Mr. Justice .DeBlanc adheres to the views expressed in his dissenting opinion in the case of the State vs. Toby.