author: Miller, J. Watkins, J.

text:
    No. 11,443.
    State ex rel. O. D. Billon, District Attorney, et als. vs. A. L. Bourgeois, Sheriff.
    The prescription of two and three years, applicable to acts of misfeasance and non-feasance of sheriffs (Revised Statutes, Sec. 2816), has no application to proceedings of his removal under Arts. 196 and 201 of the Constitution.
    Specifications and proof of failure to make arrests and execute process, nor exhibiting corruption, gross neglect or inefficiency, will not authorize the removal of a sheriff under Arts. 196 and 201 of the Constitution.
    Nor will a return and sheriff’s deed, agreed by the attorneys to be nominal, authorize the removal of the sheriff because they contain a recital that the price of an adjudication was paid, inserted to show compliance with the adjudication, the deed being intended merely to be a prelude to a subsequent act to a purchaser, who by agreement is to furnish notes to be delivered to the seizing creditor.
    But the record showing that the attorney of the seizing creditor believed that a part of .the adjudication was to be paid to the sheriff, it was negligence in the sheriff in not requiring or seeking instructions from the attorney of the seizing creditor before reciting in his return that the full amount of the adjudication was paid, and the court, on admonition in this respect, holds that, under the peculiar circumstances of this case, the sheriff should not be punished with deprivation of his office.
    On Application fob Remaking.
    Though a sheriff be guilty of a technical disregard of the precepts of law governing his official conduct, he can not be removed from office if his acts were done in pursuance of advice of counsel in good faith, intending no wrong.
    APPEAL from the Twentieth District Court, Parish of St. James. Guión, J.

      Osear D. Billon, District Attorney, Frank O. Zaaharie and B. Me-Gulloh for Plaintiffs, Appellants.

      R. N. Sims, St. M. Berault and J. A. Gaudet for Defendant, Ap-pellee.
   The opinion of the court was delivered by

Miller, J.

This appeal is from the judgment of the lower court in favor of defendant in a suit brought under Art. 201 of the Consti•’tution to remove him from the office of sheriff of the parish of St. James.

There were originally eleven specifications of misconduct in office charged against defendant. The fourth has been disposed of by the previous judgment of this court. The ninth, tenth and eleventh have been discontinued. So that on this appeal the controversy has been reduced to the first, second, third, fifth, sixth, seventh and eighth specifications.

The exception was reserved in the lower court to the ruling of the lower court rejecting two of the jurors summoned on the ground they were brothers of the relator. As the relators do not desire the case remanded on this ground, we think it best not to pass on this exception.

Another exception of relators was to the admissibility of testimony offered by defendant to repel the charges in the specifications first, second and third. These charged substantially that the defendant, under the writ in his hands for the sale of a plantation for cash, failed to execute the writ; that he made a falsereturn; that he had sold the plantation for cash when none was paid, and that in the deed he executed, it was stated he had received a certain amount in cash, when he had received none. The testimony of the sheriff tended to show these statements in the return and in the deed were in accordance with the arrangements of the attorneys concerned in the litigation as to the settlement of the price of adjudication. The objection was that under the general issue no such testimony was admissible. The allegations of the petition being that the sheriff’s return and deed were false and that he had not executed the writ in respect to exacting cash, the testimony tended to repel these charges and under our system special allegations in the answer are not essential to authorize testimony of a character to repel the allegations in the answer. Code of Practice, Arts. 323, 327; Boudreaux vs. Tucker, 10 An. 80; 1 Rob. 292. The relator further objected that the sheriff could not offer this testimony to contradict his return. The rule excluding testimony of this character is commonly applied to protect parties who have acquired rights based on the returns of the sheriff. In this the testimony to contradict the return comes from the relators. That offered by the sheriff tends to maintain his return as made in accordance with the purpose of the parties. We do not think the rule of exclusion invoked by relators applies.

Relators offered on the trial the record in the suit of Graugnard vs. Forsyth, in which the sheriff testified the sum of twelve thousand five hundred dollars of the proceeds of sale of the Pike’s Peak plantation were in his possession. The court restricted the offer to the specifications on trial. With that restriction, the testimony appears to have been read and discussed before the jury. The court charged the jury to exclude from consideration the fourth specification, which charged perjury on the sheriff in giving this testimony. The relators requested the charge that the testimony should be weighed by the jury in connection with the pending specifications, and excepted to the refusal of the court to give the charge. The previous judgment of this court in this case maintained the exception of defendant to this fourth specification, on the ground that the perjury charged was not within the scope of Arts. 196 and 201 of the Constitution, under which these removal proceeding were instituted. If the court had given the charge as requested, it would have been bound to charge also, as it did, that the specification of perjury to which the testimony related was not before the jury. Whatever bearing this testimony can be deemed to have on the specifications that the sheriff made a false return as to money in his possession, this court can consider in the judgment to be rendered on this appeal, but the supposed error of the lower court, in declining to give the charge requested, would not authorize the remanding of the case, and this is all that need be said with reference to this exception.

On the part of the defendant, the plea of prescription was made ■of one and two years, applicable to acts of misfeasance, non-feasance of sheriffs-, and, in support of the exception, we are referred to the 8546th section of the Revised Statutes. This prescription protects the sheriff against civil liability, but the scope and purpose of the Constitution in Arts. 196 and 201 is different. These articles are in the public interest, to secure purity and efficiency in the administration of public offices. They provide for the removal of dishonest, unfaithful or inefficient officers, and no prescription protects them while in office. Thus it has been determined that the removal proceedings may be for acts prior to the existing, but embraced within ■a previous term of the incumbent. Trial of Judge Barnard, New York; of Judge Prindle impeachment proceedings, same State; State ex rel. Billon, 45 An. 1350, So. Rep., Vol. 14, p. 28; State vs. Cheevers, 32 An. 946. We see no force in the plea of prescription.

We have gone through a voluminous record in connection with the charges in the fifth, sixth, seventh and eighth specifications. ■Grouped for consideration they impute to the defendant the failure ■to execute a warrant of arrest, remissness in not arresting a party for murder, and with detaining prisoners in two instances after nolle prosequi, and charging the parish fees for maintaining these prisoners up to the time of their actual discharge. It is not shown by the testimony that the warrant of arrest reached the sheriff, or if it did, that the District Attorney gave any special instructions in reference to its execution or called for it. The killing, the subject of one of ■the specifications, occurred at night, ten miles from the sheriff’s ■office. He was telephoned, was sick in bed, but his deputy went to the locality the next or day succeeding, and seems to have exerted himself to make the arrest, but the offender had fled. There were a ■number of people present when the'killing occurred, and a justice at hand. We can not find in the fifth, sixth, seventh and eighth specifications the basis to remove a public official. No corrupt motive is imputed to him in connection with these acts, and at best they do not show such negligence or inefficiency as to authorize the deprivation of his office.

The first, second and third specifications are far more serious, and it has not been without grave consideration and difficulty we have reached our conclusion on this branch of the ease. These specifications relate to the failure of the sheriff to sell for cash as directed by the writ and tbe alleged false return and deed of the Pike’s Peak plantation reciting that the price of adjudication had been paid to him, when in fact no such payment had been made. With reference to the failure to exact the cash for the adjudication, this often happens under the direction or assent of the seizing creditor. The mode of settling for the price may, as all know, become a matter of agreement, and the statement in the return and deed the settlement has been made by the parties, or any form importing compliance with the adjudication, will suffice in the return. Baudin vs. Roliffe, 1 N. S., p. 173. The attorney of the seizing creditor present at the sale did not require the sheriff to exact the cash, and was content the sheriff should await compliance with the bid, relying on the compliance by the purchaser with his bid. Then followed negotiation between the attorneys of the intervening creditors, representing also the ostensible adjudicatee, whose part in all the transactions connected with the sale appears to have been only nominal. That negotiation resulted in a note from the attorney for the seizing creditor to the sheriff, countermanding a previous order to re-advertise the property and stating the matter of the adjudication had been arranged. We must hold in view of this action of the attorney of the seizing creditor substituting an agreed settlement instead of a resale of the property is a complete defence to so much of the specifications as seek to remove the sheriff for not exacting cash for the bid.

The settlement agreed upon was the execution of a deed by the sheriff to a party selected to take the place of the adjudicatee who had not complied with his bid. The next step was, this selected adjudicatee receiving the deed from the sheriff was to convey to one of the attorneys of the intervening creditors and the attorney was to execute his notes to the amount of twenty-five thousand dollars, deliver them to the seizing creditor on account of his debt. All this was carried out with .the approval of the attorney of the seizing creditor, not as he testifies, he preferred it, but because it was the best he could do. Still we do not think the sheriff should be removed, because rather than re-advertise and resell, with the river then at a menacing height apt to deter buyers, another method of settling the debt of the creditor was adopted. There remained after the delivery of the notes a balance of twelve thousand five hundred dollars accruing to the creditor, if the opposition of the intervening creditors were disallowed, but the oppositions with the order of the court to retain the amount in the sheriff’s hands suspended the distribution of the fund. It is with reference to this twelve thousand five hundred dollars the charge of the false return is made. The return occurs in connection with the selected adjudicatee and in the deed to him. This return and deed must necessarily have been nominal. The selected adjudicatee never bid, never paid any money, and was interposed merely to receive the deed and at once convey to the attorney of the intervening creditors, who in turn was to execute and deliver the notes to the amount of twenty- five thousand dollars to the seizing creditor. It was part of the plan agreed on between the attorneys that the sheriff should make this nominal deed. The sheriff’s deputy testifies to the preparation of the deed, and, to show compliance with the adjudication, recited the price had been paid in the sheriff’s hands when not a dollar had come into his hands. It seems to us it would be harsh to hold the sheriff for the grave penalty of removal, because of the execution of this deed understood by all parties as nominal in respect to payment of any price. The attorney for the seizing creditor examined the deed and was of course aware he was to get notes for twenty-five thousand dollars instead of cash the deed recited was paid. The twenty-five thousand dollars was the greater part of the debt of the seizing creditor and of the price of adjudication. The attorney testifies he supposed the sheriff had in his hands the twelve thousand five hundred dollars and was assured of it by him. On the other hand, the attorney for the intervening creditors testifies it was agreed the twelve thousand five hundred dollars was not to be paid to the sheriff. The sheriff had no special instructions from the attorney of the seizing creditor. He was certainly not apprised that the attorney who purchased besides executing the notes was to pay the twelve thousand five hundred dollars. It would come from no person else. On the contrary, the sheriff was assured by that attorney it was not to be paid. Under all circumstances we think the sheriff might well infer that with the execution of the nominal deed and necessarily nominal return his function ended. Considering his belief in this respect apt to be produced by the action of all parties, and in view of the assurance from the attorney of the intervening creditors, on the faith of which the sheriff appears to have acted, we do not think he should be punished with the deprivation of his office.

The sequel of all these complicated phases for the simplicity of the usual legal proceedings to recover a debt by a seizure and sale was finally, that the creditor receiving no money was compelled to take the property for the debt he hoped to recover when he issued his writ. He gets the property by another constructive conveyance added to the labyrinth disclosed by the record. One of these last transfers is by the attorney who purchased, who after holding the property a year conveys to an interposed party, who in turn conveys to the seizing creditor. In both transfers the price is nominal, the real purpose being to give the unfortunate creditor the property in lieu of the debt he sought to recover. In these last transactions the sheriff obtained a receipt from the attorney of the seizing creditor in effect releasing the sheriff from liability from his returns that the money was in his hands, the attorney, however, stating to him the receipt as open to explanation at all times the real facts may be required to be disclosed.

While holding that under the peculiar circumstances of this case there is no basis to remove the sheriff, we feel called on to state that as the fourth specification charging perjury in his testimony is not before us we have not felt at liberty to comment on that testimony. It is proper to say, too, that sheriffs should be careful in stating in their returns the method of settling the price of adjudication. The return should conform to the fact. If cash is not paid and a settlement made in accordance with the arrangement of parties, the sheriff should have instructions from the attorneys in interest, and state the settlement in conformity with the instructions. The attorney for the seizing creditor gave no such instructions. He testifies he supposed the sheriff had in his hands the twelve thousand five hundred dollars. If the sheriff had made inquiry of the attorney of the seizing creditor the trouble would not be before this court which this record presents. We hold the sheriff absolved from the penalty this suit seeks to enforce, because of his supposition the parties had arranged their issues, and that arrangement, we think, he might be excused for inferring from all that passed. It has weighed with us, tob, that the effect of his return was'to charge himself with a large amount he never received and he could not profit by the transaction. We part with the record with the comment that it is not calculated to enhance the appreciation of the administration of justice, and it is to be hoped that the admonition herein conveyed will be serviceable.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.

On Applicaton por Rehearing.

Watkins, J.

This application rests, mainly, on the proposition that the court erred in not sustaining the first three charges and removing the respondent from office. As this is the second appearance of this cause in this court we will merely refer to those charges as they are fully set out in our former opinion (45 An. 1351), the substance of same being: (1) that respondent failed to sell property for cash as required by the writ of seizure and sale; (2) that he made a false return on said writ, to the effect that he had sold the plantation for cash, when, in point of fact, he had not; and (8) that he executed a deed of sale to the purchaser, reciting that the cash had been received by him, when in fact he had not received the cash or any part thereof.

The charge is distinctly made that the aforesaid return was false and fraudulent, and that the deed of sale was false and fraudulent, and that respondent was thereby guilty of misfeasance, corruption and gross misconduct in office and should be removed.

On the argument on this application the further points were made and insisted qpon: (1) that respondent had made a statement to the counsel of the seizing creditor that he had a portion of the funds in his hands when such was not the case, and upon this false statement the attorney acted in making a compromise settlement of the mortgage debt he would not have otherwise made; (2) that on the trial of the rule to distribute proceeds of sale the respondent falsely stated on oath that he had in possession a certain portion of the proceeds of sale in cash, when in fact he had not, and that notwithstanding this last charge was on defendant’s exception rejected on the first trial, yet it may be still considered for the purpose of showing animus in the perpetration of these charges that are remaining for trial.

The other specifications of misconduct on the part of the respond - ent — the fifth, sixth, seventh and eighth — are not insisted upon at this time.

In our opinion we held that the fourth charge assigning the perjury had passed out of the case, and for that reason we could not consider or comment on the testimony appertaining thereto; and counsel for the relator now insist that in thus ruling we have ignored “one of the strongest pieces of evidence which proves the intent and motive of the defendant in making the false deed and return, and that it ought to have left no doubt in (our) minds as to the criminal intent of the defendant and his consequent guilt.” (Our italics.)

In our view all this may be conceded and our opinion in this case be perfectly consistent and correct, because we had in our previous opinion sustained an exception to this charge and it passed out of the case; and, as we said in our opinion in this case, “ the specification charging perjury in his (.testimony is not before us, (and) we have not felt at liberty to comment on that testimony.”

In this view the opinion of the court is unchanged, and leaving this charge out of consideration there is no aggravation for the charges remaining.

The case presented is that of a sheriff holding in his hands a writ of seizure and sale directing him to sell certain mortgaged property for cash, and which he advertised and ostensibly sold for cash.

Being enjoined by other creditors claiming a superior lien upon the proceeds of sale from paying over a portion thereof, he made and filed a return stating that said portion of the proceeds were in his hands, and executed a deed of sale to the adjudicatee, reciting that the price had been paid in cash — though the deed was not filed or registered at the time.

While the fact is, that no cash was actually and really paid to the sheriff at all, the sheriff having acted on the advice of counsel of the opponents in making the deed as well as the return, and upon their personal assurance that they would put him in funds whenever same was required; and while the deed was executed as though the cash was to have been paid by the adjudicatee, the payment was postponed for a few days with the consent of the seizing creditor, and before the date agreed upon for the payment had arrived a compromise settlement was effected, whereby the creditor accepted notes in settlement of the purchase price.

Acting on the theory, doubtless, that the return was in substantial compliance with the law and satisfactory to the attorneys of the opponents, the sheriff repeated to the attorney for the seizing creditor-that he had in his hands that portion of the proceeds representing-the claims of the third opponents, and this may have exercised some; influence in bringing the settlement about.

But, conceding this to be true, the fact remains that when the-oppositions were decided the funds applicable thereto were promptly paid over and no one suffered any injury, and all of the parties-occupy the same relative positions they each would have occupied if the funds had been actually placed in the sheriff’s hands — the-residue of the purchase price having been discharged by notes satisfactory to the seizing creditor.

Our conclusion is, that while all the charges under consideration-are literally and technically true, yet they are necessarily subordinated to the circumstances and surroundings of that case — the sheriff having yielded to the suggestions of others and suffered himself to be controlled too far, by the advice of counsel, in accepting a consent to employ the forms of law in his return, instead of requiring the cash to be really and actually paid by the adjudicatee according to the order of court and terms of sale.

While no injury was done and no wrong was intended by the respondent we can nob allow the opportunity to pass without expressing our unqualified disapprobation of the course he pursued, and thus give him full and timely warning against similar practices iu the future.

Rehearing refused.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,619.
    The State vs. Jim Defee et als.
    The member of a,posse that expends three days in a search for the accused, extended to another parish, manifests a laudable zeal for his apprehension, but such service in our view disqualifies that member from serving on the jury to try the accused.
    APPEAL from the Third Judicial District Court, Parish of Union. Barksdale, ./.

      M. J. Cunningham, Attorney General, and James D. Everett, District Attorney, for Plaintiff and Appellee.

      C. H. Ellis &, L. E. Thomas for W. L. Tisdale on trial, Defendant and Appellant.
   The opinion of the court was delivered by

Miller, J.

The defendant, W. L. Tisdale, convicted and sentenced for manslaughter, takes this appeal, relying on a number of bills of exception.

Our view, with respect to. one of these bills, disposes of the case.

One of the jurors empaneled on the trial was one of the posse that searched for the accused. That search, with the view to the arrest, was prosecuted for three days and extended to a parish beyond that in which the killing occurred. It was participated in by citizens and members of the coroner’s jury, and from whom the juror, to use his own language, heard all about the ease. The character of this posse, the earnestness exhibited by it in the protracted and extended search, the conversation of the juror with the members of the coroner’s jury, the bearing of which on the question of the guilt of the accused may well be inferred, all suggest the unfitness of a member of that posse to serve on the petit jury. A trial of the prisoner by the sheriff and the posse arresting him would certainly strike the mind, to say the least, as not consistent with the impartial jury guaranteed the accused in criminal prosecutions. The empaneling of one of the posse on the petit jury was to that extent an abridgment of the pvisoner’s right to a fair trial. True, we have the rather scant expression of the juror on his voir dire; he thought he could try the case on the law and evidence. We think his relation to the subject disqualified him from making the attempt, and the peremptory challenge of the prisoner should have been sustained. It is to be borne in mind the prisoner exhausted all his peremptory challenges. Those who take an active part in bringing the prisoner to justice should not have imposed on them the other function of trying the accused in whose apprehension they have exhibited a zeal inevitably calculated to incapacitate them from giving him a fair •trial.

Reluctant as we are to reverse a verdict for error in empaneling the jury, we feel constrained in this case to direct a new trial.

It is therefore ordered, adjudged and decreed that the sentence of . the defendant be reversed, and that the case be remanded and he be held for another trial before a proper jury.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 11,425.
    John Webre, Syndic, vs. R. Beltran & Co.
    1. It is not of the essence though of the nature of the contract of mortgage that the mortgagor should remain in possession. As a clause to that effect merely, placed directly in the authentic act of mortgage, would not change a contract of mortgage into one of antichresis, a like verbal collateral agreement would not produce such a result. Objection of parol evidence of such a verbal agreement on the ground that it was through such testimony sought to prove an antichresis, which can only be evidenced by a writing, was not well taken.

      2. The voluntary cession of his property by a debtor does not impair the obligations of his legal contracts. Where the commission merchant of an insolvent planter has a privilege and statutory pledge upon a growing crop of sugar and molasses to secure advances which he has made upon the same — he is entitled to have the crop shipped to him for sale according to the stipulations of the contract for supplies. The syndic of the creditors is as much bound to ship the crop ás the insolvent himself would have been.
    3. If among the assets of an insolvent there be a thing which has been pledged, the possession of it does not pass to the creditors, being vested in the pledgee. The obligation of the pledge is contractual. It vests in the creditor the right of possession and privilege on the thing pledged. The right of detention being as much a part of the security as the things pledged are part of the guaranty, the creditor can not be deprived of the same by his debtor.
    4. Where, under a verbal agreement with a sugar planter, as part of the general arrangement under which a factor has stipulated to furnish him supplies for a growing crop, afactor himself applied to and obtained from the United States authorities a license as the producer of the crop (giving the bond required in such case), and under such license received from the government (after a cession of his property by the planter) the bounty allowed on such crop, the syndic of the creditors ignore the stipulations of the contract between the parties, that the fund when received shall be applied, as imputed by the factor, to the debts due him by the planter, and require that the bounty be at once turned over and the factor forced (after possession of the same has been shifted from himself to the syndic) -to litigate his rights and claims upon it inside of the insolvency in concurso, the rights of the creditors must be protected in some other manner.
    The government having known and dealt only with the factor, the legal title to the claim for bounty was vested in him, and having been so vested under a contract which, if innominate, was legal as between the parties, the fund derived under the license could only be withdrawn subordinatuly to compliance with the conditions of the contract.
    APPEAL from the Oivil District Court for the Parish of Orleans. Ellis, J. .

      Action of syndic of an insolvent to recover:
    1. Nine hundred and fifty-four dollars and eighty-five cents, the' net proceeds of twenty-four hogsheads of sugar and twenty-one barrels of molasses, surrendered by Lacaze for the benefit of his creditors, and consigned in execution of an order of court by the provisional syndic of an insolvent to defendants for sale on the market of New Orleans,
    2. Eight thousand one hundred and twenty dollars and ten cents,, the proceeds of sugar, molasses and rice of Lacaze’s crop of 1892, which was shipped by Lacaze to defendants prior to Lacaze’s cess io-bonorum, together with the amount of two United States bounty checks belonging to Lacaze, which defendants collected for his account before the insolvency.
    3.' Three thousand one hundred and seventy-eight dollars and forty nine cents, the amount of the bounty allowed to Lacaze on his crop of 1892 by the United States Government, which was collected by the defendants after Lacaze’s oessio bonorum.

    There was judgment for the defendants and plaintiff appealed.

      W. J. Waguespaek for Plaintiff and Appellant.

      Robert G. Rugué for Defendant and Appellee.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 31st March, 1892, a contract, by authentic act, was entered into between the commercial firm of R. Beltran & Oo. and A. J. Lacaze, in which it is recited that, for the purpose of cultivating and making a crop of sugar and molasses during the year 1892, on his Good Will plantation, the latter would require eight thousand dollars in money and supplies, which the firm agreed to furnish him from time to time. Lacaze, on his part, bound himself to ship and consign his entire crop to Beltran & Oo., at such times and to such places as they might require, and he authorized them to sell the same and apply the proceeds to the payment and reimbursement for all advances, commissions, interests, etc., and all such proper charges as are customary in New Orleans. He further agreed that the firm should be entitled to interest on all advances and commissions on all purchases and sales and brokers’ commission, and in the event of suit he bound himself to pay the fees of the attorney bringing the same.

In order to represent the amount of said advances, commissions, interest, etc., Lacaze subscribed four notes of two thousand dollars ■each to his own order and endorsed by him, payable on the 1st January, 1893, with interest after maturity.

The act declared that in order to secure the payment and reimbursement of the advances, interest, commission, etc., and the payment of the notes, Lacaze recognized in favor of the firm the lien •and privilege accorded by law to the furnishers of supplies up to the •sum of eight thousand dollars upon the crops of said plantation of 1892, and did pledge and pawn the same in favor of the firm, and of any and all future holders of the notes, the whole in accordance with the provisions of Art. 3217 of the Civil Code, of Act No. 66 of 1874 and of Act No. 44 of 1882, and that Lacaze confessed judgment for the full amount of said notes in capital, interest, commissions, etc., in favor of the firm or any other future holder or holders of the notes. The act declares also that Lacaze mortgaged the Good Will plantation, with all appurtenances, together with all the crops of sugar and molasses that might be ground thereon during the year 1892, in order to more effectually secure the payment of the notes— the mortgage to remain in full force to secure the payment of any balance which might be due by Lacaze to the firm or general balance of account over and above the net proceeds of the said crops. This act was placed of record in the mortgage books of the parish of •St. John the Baptist on the day it was executed.

During the year 1892 application was made in the name of R. Bel-tran, a member of the firm of R. Beltran & Go., to the United States authorities at Washington (under the act of Congress granting a bounty to the producers of sugar) for a license as the producer of the crop -of that year upo a the Good Will plantation. The license was issued as applied for, and in course of time, after the cession hereinafter mentioned, the bounty due resulting from the crop was paid over to R. Beltran, and by him to the firm of R. Beltran & Co.

A crop of sugar and molasses was, as contemplated by the parties in the act of 31st March, made upon Lacaze plantation, and the whole of the same with the exception of twenty-four hogsheads of sugar and twenty-one barrels of molasses were shipped to and sold by Beltran & Oo. prior to the 12th day of January, 1893.

On that day Lacaze made a cession of his property, and placed among the assets surrendered the twenty-four hogsheads of sugar and twenty-one barrels of molasses, then remaining on the plantation. The sheriff of the parish of St. John the Baptist was first appointed provisional and subsequently definitive syndic of the insolvency. In his former capacity he obtained an authorization or order to ship the sugar and molasses which remained unsold to Bel-tran & Oo., to be by them sold for the account of the insolvency. They were accordingly shipped to the firm, but whether under the order of the court, or in the usual manner of shipment in Lacaze’s name, is one of the matters in contention between the parties.

Beltran & Oo. did not appear on the bilan as debtors of Lacaze, and although amounts are mentioned as being due to the laborers and to the overseer, yet the amounts are not set down as privileged, but as ordinary debts.

After the appointment of the sheriff as definitive syndic he applied to Beltran & Oo. to turn over to him the proceeds of the sugar and molasses which had been shipped to them after the cession. Meeting with a refusal, the present suit was instituted in which the syn-dic prays that Beltran & Oo. be ordered to turn over to him the amount of the bounty received by them, and the net proceeds of the entire crop of 1892 — by net proceeds being meant the amount remaining due on each shipment after the special incidental expenses of that particular shipment had been paid, and not the net amount of the payment of all the claims and indebtedness of Lacaze to the firm. The firm claims that under its contract and agreement with Lacaze it had the right to receive the moneys it did, and apply the same after payment of all claims which it had against Lacaze, and that; after having availed itself of that right so far from there being a balance due to him, he remained their debtor for a large amount.

It appears that the house of Beltran & Oo. had been for some time before the passing of the act of the 31st March, 1892, the commission merchants and factors of Lacaze, and that the opening of the season of 1892 found the latter indebted to the firm to the amount of several thousand dollars, and that he had unsuccessfully sought a continuance of business relations with the house for the year 1892. Failing to find another factor and commission merchant he returned to Beltran & Oo., and, by way of inducement to them, suggested and proposed that the firm, or one of its members, should be considered as the producers of the crop, and should apply as such for a license to the United States authorities; that Lacaze should be considered as the agent of Beltran & Oo. on the plantation; that the latter should make the advances to cultivate and make the-crop, which should be shipped for sale and sold by the house; that the proceeds of the crop and the bounty should be applied to the payment of all claims held by the firm, payment to be first imputed to the antecedent debt; that if after such application and payment there remained a balance it should be turned over to Lacaze, but if the amount was insufficient the latter was to remain a debtor for the deficiency; and it appears that this proposition verbally made was verbally executed. This agreement was prior to the act of 81st March, 1892, but the parties testify that the latter act was not intended to vary, affect, or to alter their relations, rights and obligations under the • former. Objection was made on the trial to parol proof as to the verbal agreement, on the ground that it tended to show an act of antichresis between Beltran & Oo. and Lacaze, and that such a contract could only be evidenced by writing.

The District Court rendered judgment in favor of the defendants, dismissing plaintiff’s suit, reserving defendant the right to demand the amount of balance due by Lacaze with interest and privilege as prayed for. Plaintiff appealed.

It will be seen that the syndic did not call upon Beltran & Oo., the factor and commission merchant of Lacaze, for an account, and a setting up by them of the various claims and pretensions which they might have against the moneys in their hands, but ignored the fact of their having any claims and brought a direct action for the recovery at once of the entire fund. The effect of a judgment in his favor would be to do away (at least temporarily) with the imputations of payment made by the parties under their agreements; to oust or dispossess the firm of the possession of the money in their hands, shifting it to the syndic, and placing the fund inside of the insolvency, there to be disposed of in concurso. The theory upon which this demand is made is that there are a number of creditors having special privileges on the proceeds of the sugar and molasses, superior in rank to any privilege which Beltran & Oo. might have; that those special privileged creditors having had their hands tied by the acceptance of the surrender, and their right of individual action against the person and property of the insolvent stayed, and the syndic representing merely the mass of creditors, and not individual creditors, being without capacity outside of the insolvency to champion and vindicate their separate rights, therefore unless the whole funds were brought into the insolvency those creditors would be left without remedy. We may say in passing that, if there be creditors of the kind referred to, they do not seem to have taken any action making their status as such known in the lower court; the syndic is urging pretensions which have not been advanced by the parties themselves.

In the argument of this case the verbal agreement made between Lacaze and Beltran & Co. has been made to have a much wider scope than legitimately results from it. A large part of appellant’s brief is directed to the legal proposition of manifest inconsistency in a person asserting himself to be, at one and the same time, the owner of a thing and the holder of a privilege or pledge upon the thing. The argument is presented upon the theory that Beltran & Co. are before the court attempting to hold the property and funds under antagonistic pretensions. We do not think the firmhas claimed to hold either the bounty or the crop, as owner in the absolute and unqualified sense of that word which would give them the right to dispose of or destroy the property free from all accountability or responsibility to any one for the same. ■ On the contrary, they admit that both the bounty and the proceeds of the crop should be applied to the extinguishment of Lacaze’s debt to them. The greatest legal effect which the firm advances under the contracts and agreements they have made is that they were legally entitled to receive the bounty and the crops- and to impute the same to the payment of their claims as agreed on between them and their debtor, and that until such application and payment the funds could not be taken from their possession. That Lacaze was powerless to withdraw the funds and his syndic has no greater right. They deny that the funds could be taken from them and placed in the hands of the syndic, and that they can, after this shall have been done, litigate inside of the insolvency and in con-curso their rights upon the fund. So far as the proceeds of the sugar and molasses are concerned, we need not go for the purposes of the rights of Beltran & Oo. further than to the act of March 31, 1892, which is the act by which plaintiff claims their rights should be controlled.

We do not understand the plaintiffs to deny that the firm under the act 31st March acquired a mortgage upon the Good Will plantation and a privilege and pledge upon the crop thereon, to the extent that they made advances under that act. We do not think their rights were injuriously affected by the verbal agreement referred to. This court held in Hutchings vs. Field, 10 La. 244, that it is not of the essence though of the nature of the contract of mortgage that the mortgagor should remain in possession. Had the authentic act of January contained a clause that Beltran & Co. should take and retain possession of the property for the year 1892 and nothing more, that clause would not have the effect of changing the act of mortgage into an act of antichresis; a verbal collateral agreement that possession should be so held by the firm would of course have no such result. The objection, therefore, to parol proof of the verbal agreement that it was sought through it to prove an antichresis was not well founded.

In the ease at bar it will be noticed that while Beltran & Oo. had a mortgage on the real estate and the things forming part thereof— they also had on the crop not only a privilege, but a statutory pledge and pawn which could not be weakened by a stipulation that the debtor should by express agreement, consent to hold the possession •of the crop as the custodian or holder of the same for the pledgor— if the stipulation did not add to the strength of the creditors’ position, it at all events left it unimpaired as conferred by law. The stipulation was really in aid of the principles governing the contract of pledge .that the thing pledged should be placed in the possession of the pledgor or a third person agreed upon.

The voluntary surrender made by Lacaze did not have the effect of impairing the obligations of this legal contract. Had he not made a cession it would have been his legal duty under this contract to have shipped the whole crop to Beltran & Oo., to be by them sold and applied to the payment of their advances — the firm had executed (to a certain extent at least) its part of the contract, and by virtue not only of its privilege, but of its statutory pledge was entitled to have the shipment made. This right could not be impaired or destroyed by a surrender, and especially where no charge of fraud is made and the good faith and reality of the contract are not called in question. Article 3164 of the Civil Code declares that the creditor who is in possession of the thing pledged can only be compelled to return it when he has received the whole payment of the principal, as well as the interests and costs.” The creditor has this legal right not only as against Lacaze, but as against the syndic. Bermudez vs. Ibanez, 3 M. 39; Jacquet vs. His Creditors, 38 An. 863.

The portion of the crop remaining unsold at the time of the surrender occupies no position different from the balance; Lacaze by his contract being bound to ship the whole crop, his syndic was under a similar obligation, having to respect Beltran & Co.’s vested right to a delivery. Succession of Farmer, 32 An. 1041. When once delivered the contract fell under the contract obligations of the parties as to its application. As regards the circumstances connected with the shipment of this portion of the crop, we think the testimony supports the claim of the defendant' that it was shipped to the firm, as the balance of the crop had been shipped to Lacaze’s name without special instructions. We think the deputy sheriff must be mistaken as to the paper which he believed to be the “ bill of lading.”

We do not think the argument of the plaintiff, that if we do not grant the specific relief asked for in this case, .in the form in which it is asked, the result would be to leave either the mass of creditors of Lacaze, or creditors claiming special privilege in the particular property, or moneys held outside of the insolvency under pledge without remedy, is well founded. Several remedies we think could be suggested, but the question we are called on to answer here is the special question, whether the syndic of an insolvent can withdraw from a pledgee property in his possession under a lawful contract, as shown in this case; place it inside of the insolvency as an asset in the syndic’s hands, forcing the pledgee to litigate his rights upon it in concurso. We think he has no such right.

In reference to the bounty collected by Beltran & Co., it is claimed that the law gave no privilege or pledge to the defendant upon that fund, and that not having been collected from the government at the time of the surrender it should be turned over to the syndic to be disposed of as the common pledge of all the creditors. It may be true that neither a privilege nor a pledge resulted by law in favor of Beltran & Co., by reason of their being furnishers of supplies, and that it would be necessary for them to base their right on contract, but this is precisely what they do. They rest upon the verbal contract between the parties made in the beginning of the year 1892, and the stipulations of the parties in regard to it. In dealing with that question it must be borne in mind that that contract, made verbally, took form in the shape of a license issued directly from the United States Government to R. Beltran as the producer of the sugar on the Good Will plantation, and as the only party in interest — this to Lacaze’s knowledge and with his consent; that this license has had its full effect and been completely executed between the government and Beltran, and that in order to obtain the benefit of the license Lacaze and his syndic would have as plaintiffs to attack it and its results. It must also be borne in mind that the obtaining of the license was accompanied by the assumption of certain legal duties and obligations by Beltran; he was among other things obliged to furnish bond with security, which everything in the record would go to show Lacaze could not have done.

When we consider the taking out of this license was part of a general plan by which Lacaze was to be placed in position to cultivate his plantation for the benefit of his creditors; that large amounts were furnished him upon the conditions of the agreement then made; that no person had special or vested rights upon the bounty; that the government knew only and dealt only with Beltran, who held what may be said to be practically the legal title to the fund, we are of the opinion that the attempt to take this fund from the firm by direct action for its immediate transfer to the syndic is sustainable neither in law nor in equity. The contract between the parties in reference to the license may be an innominate one, possibly it may not be strictly classed as a pledge, but be it what it may it was legal and vested the legal title to and control over the bounty, and authorized its application in a manner and to a purpose which neither Lacaze or his syndic can disregard.

Our attention has been called to the decision of the United States Circuit Court in the matter of Calder & Co. vs. Their Creditors. The point at issue there was entirely different from that here. In that case Calder, one of the producers of the sugar, claimed that the bounty granted by the government was not to be made applicable to the extinguishment of the debt of the producer. The court held this to be untenable. There is no claim here that the bounty should not be made applicable to the payment of Lacaze’s debts — that it is so available is admitted.

We are not in a position to judge accurately of the state of the accounts between Lacaze and Beltran & Co. A final account and adjustment appear to have been made between them, and the record shows the fact that that account was shown to several of the witnesses and commented upon by them, but counsel, for some rea-igon, did not offer it in evidence.

It is not copied in the record, but has by consent been attached to the transcript filed here, but under a reservation of rights which makes the consent practically valueless. We can not consider it. Rice, in his work on evidence, Vol. I, p. 169, par. 103, says: “It is of constant concurrence on trials that a witness proves the execution of a paper in his possession for that purpose, and that the papers are not given in evidence unless the party who produced it thinks fit to úse it. His right to refrain from using it under such circumstances is well settled.”

The plaintiff in his petition did not, as we have said, ask for an account, nor did defendant in his answer tender one. Without excepting to the form of action he denied indebtednes and claimed a balance over, for which he asked the court by its judgment to reserve him a right of action. Without expressly pleading payment or the application of the funds in his hands up to a certain specified amount to the payment of claims held by him against Lacaze — he prayed that plaintiff’s suit be dismissed, with a reservation of aright of action, as just above stated.

We do not know what the claims were which were thus used to extinguish liability to Lacaze. If the firm had valid legal existing claims to the amount stated, they had the right to apply funds in their own hands to their payment — making the imputation as agreed upon between them and Lacaze. Bloodworth vs. Jacobs, 2 An. 25; Pickersgill vs. Brown, 7 An. 314; Bank vs. Plow Company, 45 An. 1317.

Defendants’ answer asked no affirmative relief; its allegations and its prayer were purely defensive. Defendants prayed that plaintiff’s suit be dismissed, and the District Court so ordered. Construing this judgment as really under the form of plaintiff’s action, the pleadings and the prayers, as one non-suiting the plaintiff, the judgment appealed from as so construed is hereby affirmed.

On Application for Rehearing.

We see no reason to change our views as expressed in the opinion rendered except in one particular. Appellant complains that we have given a wrong construction to the judgment of the District Court, and by so doing have thrown the costs of the appeal upon him improperly.

We think his complaint well founded. The limited reservation made in the judgment satisfies us that the court intended to pass finally upon the claims and accounts between Lacaze and his insolvency and the defendants, and cut off future examination and adjustment between the parties. To this extent there was error. These matters should be left open fully for examination and adjudication through an action of account.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment heretofore rendered by us be set aside, and it is now ordered, adjudged and decreed that the judgment appealed from be amended by reserving to the plaintiff the right to call for an accounting between the plaintiff and the defendants touching all maters between Albert J. Lacaze and the insolvency of Lacaze and the defendants, and to have examined and adjudicated upon all claims and counter-claims between them; that as so amended the judgment of the District Court be and the same is hereby affirmed. Costs of appeal to be paid by the appellees.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 11,618.
    The St. Mary’s Wholesale Fruit and Vegetable Market Company, Limited, vs. City of New Orleans.
    In a contract between the City of New Orleans and a contractor, the latter bound himself, át his own expense, to alter an existing market building and to extend the same according to certain plans and specifications, within nine months of the signing of the contract, while the city agreed “to lease to the contractor the said market building as altered and extended” for a period of twenty-five years from the signing of the contract.
    In the contract it was declared that the buildings were to be used as a public market. The city agreed that during the term of the lease or franchise the contractor should receive for himself all market dues or tolls, and the contractor agreed that at the termination of the lease the buildings should revert to the city without cost, and also agreed to pay and did pay to the city one thousand dollars cash. In the contract it was stipulated that “in the event of failure to perform the work within the delay fixed, no matter from what cause, the contractor specially waived notice of default, agreeing that on failing to comply with his obligations he should be deemed to be in default by the mere act of his failure.”
    Subsequently to the time fixed for the completion of the buildings the city passed an ordinance in which, after reciting that the contractor had failed to comply with his obligations, it declared the contract at an end, and repealed the ordinances granting the lease or franchise.
    The contractor, not negativing the recitals of the ordinance or alleging perform- ’ anee by him of his contract, applied for an injunction restraining the city from interfering with him in the enjoyment of the franchise or from prosecuting or punishing parties who resorted to the market for trading purpose; the old portion of the market building having, in the meantime, been used as a public market. The District Court refused the injunction and the contractor appealed.

      JSeld: The judgment was correct. The thing to be leased was not the existing building, but that building “as altered and extended.” The contractor stipulated to bring it into existence for the purpose of the lease or franchise within nine months. He did not do so. The city had the right to pass the ordinance, if for nothing else, to fix the fact of the contractor’s default, carrying with it its legal consequences. Subsequently to the ordinance an offer by the contractor to complete the building would be too late.
    The object on which the franchise was to operate could not thereafter be brought into existence. The contention that the city had not the right “to declare the contract terminated ” is a pure abstraction. There was no proof that the city had prosecuted or threatened to prosecute parties who resorted to the market. If the ordinance did not per se by its own force terminate the contract as contended for, the contract was, through it, made impossible of execution.
    It was not null and void because of the declaration complained of. XJUle per inutile non vitiatur.

    APPEAL from the Civil District Court for the ^Parish of Orleans. Ellis, J.

    On February 4, 1890, the Oity Council of the city of New Orleans adopted an ordinance, known as Ordinance No. 4265, Council Series, by which it was resolved that the city surveyor be ordered to draw up plans and specifications for the alteration of one-half of the St. Mary’s Market, nearest the river, and extension of same to be used as a wholesale fruit and vegetable market, the said alteration and extension not to cost less than twenty thousand dollars, and the same to be at the expense of the lessee, and to revert to the city at the end of the lease of said market, as altered and amended. That the Oity Comptroller be ordered to advertise for ten days from the passage of the resolution for bids at public auction for the lease of said market as altered and extended, for the above purposes and under the above conditions for a period of twenty-five years, commencing and to be computed from the date of signing contract.
    • This ordinance was followed by a later one, adopted April 1, 1890, known as Ordinance No. 4899, Council Series, by which it was resolved that the Mayor be authorized to enter into notarial contract with Joseph Raymond for the lease of one-half of St. Mary’s Market, nearest the river, for the sum of one thousand dollars for a period of twenty-five years, commencing and to be computed from the date of the signing of the contract, and in accordance with terms and conditions as set forth in.No. 4265, Council Series.
    On the 11th April, 1890, by act before Joseph D. Taylor, notary public, a contract was executed between Joseph A. Shakspeare, Mayor of the city of-New Orleans, in confirmation of an adjudication madeby the Comptroller of the city of New Orleans, “ confirming unto Mr. Joseph Raymond, contractor, the lease for the term of twenty-five years, to begin and be computed from the date of the said act and to end on the tenth day of April one thousand nine hundred and fifteen, of one-half of the St. Mary’s Market nearest to the Mississippi river and the extension thereof which is to be constructed in pursuance of and as part consideration of this contract as provided in Ordinance No. 4265, Council Series, and according to the plans and specifications for said work on file in the office of the city Surveyor, which one-half of St. Mary’s Market and the extension thereof are to be used as a wholesale fruit and vegetable market.”
    The contract bid for at auction and adjudicated to Raymond contained a clause that “ in the event of failure to perform the work contracted for, no matter for what cause, the contractor specially waives notice of default, stipulating that the contractor failing to comply with his obligations shall be deemed to be in default by the mere act of his failure, and the damages and stipulation to be hereinafter made and agreed upon in a notarial contract shall begin to run from the day of such failure.” In the notarial contract between the Mayor and Raymond it was agreed and stipulated “that Raymond, contractor, should commence the construction of said extensions within ninety days therefrom and should complete the same within nine months thereafter.”
    The consideration of the lease is declared to be:

      1. That Joseph Raymond should pay to the city of New Orleans the sum of one-thousand dollars cash.
    2. That Joseph Raymond, contractor, should, at his own cost, charge and expense, erect and construct the extension of said St. Mary’s Market, and maintain same, and the one-half of said St. Mary’s Market during the existence of the lease; same to be delivered to the city of New Orleans at the expiration thereof, the whole as set forth in the contract.
    The thousand dollars agreed to be paid were paid cash on the passage of the act.
    On the 16th of November, 1891, Raymond and eight other persons, who seem to have become interested with him in some way, conveyed to the plaintiff: (1) All the rights and privileges derived by Joseph Raymond, under Ordinance No. 4899, Council Series. (2) All the rights derived by Joseph Raymond from the lease for the term of twenty-five years from the 11th of April, 1890, to the 11th of April, 1915, of the one-half of the St. Mary’s Market nearest the Mississippi river, and all extensions thereof made by the city of New Orleans to Joseph Raymond by act before Taylor, notary, on the 11th April, 1890.
    8. All the rights and privileges derived by Joseph Raymond from Ordinance No. 4779, Council Series.
    4. All the rights of Joseph Raymond in a certain contract entered into between Joseph Raymond and the city of New Orleans by act of October 80, 1890, before Joseph D. Taylor, notary.
    5. All the rights of Joseph Raymond, in and to all ordinances adopted by the City Oouncil of the city of New Orleans relative to the St. Mary’s Market, or St. Mary's Wholesale Pruit and Vegetable Market.
    On the 27th November, 1891, the City Oouncil and Mayor recognized the plaintiff as the owner and possessor -of all the rights, titles and franchises granted by the city of New Orleans to the St. Mary’s Market and the extension thereof, and particularly by virtue of Ordinances Nos. 4899, 4653 and 4779.
    The specifications of the work to be done by Raymond were, subsequently to the contract with him, modified, and the period within which the work was to be dofie was extended.

      On the 7th November, 1893, the City Council, reciting that the work stipulated to be done had not been done at the time contracted for and extended, “ repealed the rights and franchises granted” and the various ordinances upon which they were based.
    Plaintiff then instituted the present suit, seeking to enjoin the city from interfering with their contract, and for ten thousand dollars damages.
    The District Court rendered judgment against the plaintiff in favor of defendant, dismissing its suit with costs, reserving its right to sue for damages and for the return of any moneys paid or for any other cause entitling it to indemnity. Plaintiff appealed.

      Qus A. Breaux and Frank S. Drolla for Plaintiff, Appellant.

      E. A. O'Sullivan, City Attorney, for Defendant, Appellee.
   The opinion of the court was delivered by

Nicholls, O. J.

During the progress of the trial defendant offered testimony to prove the allegations of the answer that not a single specification, not a single condition under which the contract was granted to the Market Company, was ever t arried out. by the plaintiff; and further, in order to show that the conditions under which the franchise was granted had never been carried out, that it had never attempted, and never did carry out any of the terms, conditions and specifications contained in the contract between the city and plaintiff in so far as the constructing and the buildiDg of the market, or the extension of the market, in order to show that the conditions under which the franchise was granted had never been carried out.

Plaintiff objected to this testimony on the ground that the sole question before the court was one of power of the city to pass an ordinance declaring a contract entered into with another party forfeited.

The court sustained the objection, ruling that the testimony was irrelevant, stating that if the city had the power to deal absolutely with the market, then it was the sole judge of the reasons why it should exercise that power here, and that if it had not the power then the question would be irrelevant under the general rule of 'law invoked by plaintiff’s counsel — that a party to a contract has no right absolutely to terminate it, but would only have the right to-sue for its forfeiture. To this ruling of the court defendant excepted.

In his reasons for judgment the District Judge declared that,, plaintiff having discontinued the demand for damages, there was no other relief sought than that the city should be forever enjoined from interfering with the plaintiff’s business in St. Mary’s Market— the interference alleged being that the city had declared the contract forfeited, and under this declaration was threatening with arrest and prosecution persons who resort to said market to trade with the plaintiff. That the ordinance declaring the lease forfeited and at end, whether wrongful or not, was an accomplished iact, and it could not be the subject of an injunction proceeding. That the ordinance has been passed, and that, if acting under it, the city’ should proceed to arrest, prosecute and sentence persons, the illegality of the ordinance could be pleaded, and on appeal direct to the Supreme Court, from the judgment of the municipal court, the question could be tested. That the ordinance of repeal declares that the plaintiff, as a contractor to erect the building or market extension within a fixed term (as extended), had done nothing in that direction. It recited that it has failed after the extension of the period in which the extension of the building should be completed, and therefore it repealed all the ordinances relative to the construction of the market house, and all the rights and privileges granted thereunder. That the city had the right to contract for the erection of market houses like any other proprietor, and it had the right even after contracting for the erection of a building to end the contract and not have the building erected. That Art. 2765 of the Civil Code provides that “ the proprietor has the right to cancel at pleasure the bargain he has made, even in case the work has already been commenced, by paying the undertaker for the expense and labor already incurred and'such damages as the nature of the case may require.”

That the fact that in the contract there was stipulated a lease, and that a price was paid, did not cause it to lose its character as a distinctive agreement for the construction of a market building. “ It was to be built within a short time. It was to 'be completed at a cost of not less than twenty thousand dollars. The plans and specifications under which it was to be constructed were elaborate, going into all details. To be completed within a short period, it was thereafter to be kept in repairs until delivered to the city.” The judge-declared that these were the obligations of the plaintiff, and they were those of builders and undertakers of works in all essentials. That, although the payment of one thousand dollars and the right to-use the market for twenty-five years were stipulated, it was manifest that the necessity of the public for a market extension was the-inducement on the part of the city. A twenty thousand dollar market extension was to be promptly secured and maintained for twenty-five years; when, therefore, plaintiff failed in the work, as the ordinance recites, Art. 2765, Oivil Oode, justified the revocation of the contract. That the city could not compel plaintiff to specifically perform and compel it to build the market house, if it refused to build it. The District Judge, considering that the contract is, for the great part, one for building a public market; that the one thousand dollars paid was more in the nature of earnest money, and if not this, it was at least inconsiderable in proportion; that the twenty-five years’ oecupanc3r was a franchise to collect the revenues, rather than a contract of lease (Weymouth vs. The City of New Orleans and J. T. Aycock, 40 An. 348), held, that the city had the right,, in the public interest, to declare the contract at an end under Art. 2765, C. C., leaving plaintiff to recover the amount paid and damages; thatithadno right to aperpetual injunction, and that in discontinuing the claim for damages and claiming relief by injunction it has mistaken its remed3'.

Plaintiff contends that the court has misapplied the provisions of Art. 2765 of the Oivil Oode. He maintains that that article applies to eases where the cost and expense of the structure is to fall upon the proprietor, and does not extend' to those where the entire cost and expense is thrown upon the builder. He further insists in this, as he did in the District Oourt, that the only issue before us is that of the power of the city to pass an ordinance declaring a contract with another person forfeited, and in support of his position he calls to our attention Art. 2046 of the Oivil Oode, which declares that “a resolutory condition is implied in all commutative contracts to take effect in case either of the parties do not comply with his engagements ; in this ease the contract is not dissolved of right. The party-complaining of a breach of the contract may either sue for its dissolution with damages, or, if the circumstances of the case permit, demand a specific performance.” He says that in the face of this express declaration that non-compliance by a party with his contract obligations does not, ipsofaoto, dissolve the contract, bnt that the dissolution has to be judicially asked for, the City of New Orleans has undertaken to do what the law declares shall not be done: declare' its contract at an end.

We have carefully considered the argument of counsel as sought to be applied to this case under its pleading and evidence, but we have reached the conclusion that the judgment of the District Court was correct.

In the first place, we find no evidence in the record in support of the allegation that the city had threatened parties who might resort to the market for trading purposes with prosecution and punishment. The only action taken by the city in respect to the subject matter of the market, so far as the record shows, is the repealing of the ordinance under which plaintiff’s rights are claimed. The mere act of passing that ordinance furnishes no ground for an injunction. In the next place, there is nothing presented to us in a shape which would call upon us to pass presently upon the effect of the ordinances.

Had the plaintiff adhered to its claim for damages, we should have had that question squarely before us. As matters stand the only thing we are called upon to adjudicate would be an abstract question as to the right of the Council to pass the ordinance it did. If it did not have that right, the ordinance perse could work no injury and damage.

It by no means follows, however, that because an ordinance of the character complained of, which declares in express terms the breaking up of a contract as the direct and immediate effect of that declaration, might not bring about the result so announced, that therefore the ordinance was, for all purposes, totally unauthorized, illegal, absolutely null, void, and of no effect.

In the contract with Raymond, he undertook to do certain work within a certain fixed time, and consented that he should be held as in default by the fact itself or failure to comply with his obligations without notice of default.

If, in point of fact, at the time the repealing ordinance was passed, Raymond was in default, the ordinance in question, if it had no other effect, would have that of placing beyond a doubt the fact of that default, and the fact that the city stood rigidly upon its contract rights. There could be no question of waiver or acquiescence after the passage of that ordinance, and the Council had the undoubted right to pass it for that purpose, and to claim the benefit of the legal consequences, be they what they might, legally flowing from the ordinance, if greater and broader consequences were claimed in the ordinance as to follow than would really follow, the maxim utile per inutile non vitiatur would apply. The ordinance would stand for what it was really worth.

Now if we examine into the dealings between these parties and the city the correctness of the conclusion reached by the District Judge that Raymond occupied under the ordinances and contract a dual position, that of contractor and that of lessee (if such he may • be styled), is apparent. Not only this. It appears that the object upon which the agreement of the city and Raymond was to operate under the so-called contract of lease was not “the one-half of the St. Mary’s Market nearest the Mississippi river,” but the u market as altered and extended,” and that at the time of the contract this precise thing was not yet in existence, but was stipulated by Raymond to be by him brought into existence as an entirety within a fixed time, and when so brought his rights should attach to it as a whole for twenty-five years from the date of the contract. If this was the contract between the parties, and Raymond failed to comply with his obligation to make the alteration and extension at the time fixed, and the city by ordinance (notified to him) announced that it held the contract at an end by reason of that fact, the legal effect of its so doing would be to withdraw from under the contract the power of subsequently building the house. Therefore “ the market and its extension,” which was to be the object of the lease or franchise, was from that time forward to be considered as not susceptible of existence, for if he wasjtjin default at the time of the passage and notification of the ordinance an offer to subsequently comply with his engagement would come too late. Morrison vs. Wimberly, 14 An. 713. It is manifest, as stated by the District Judge, that the main object and purpose of the city was not to obtain a building deliverable to itself without cost at the end of twenty-five years for the purposes of a market, but to extend within nine months to the people of the neighborhood increased market facilities. It would be contrary to the plain purposes of the ordinances and the contract that the erection of the building should be postponed to a period to suit the convenience of Raymond, and that during that period the market facilities should be limited to those afforded by the original building.

If Raymond, by his course, has cut off the possibility of his building the extension in the future, he certainly could not expect to be allowed to continue the collection of dues during twenty -five years from the market in its present condition. That was not the contract of the city. Now whether we deal with the situation from the standpoint taken by the District Judge, that the contract between the parties was brought at once and directly to an end by the city, through the ordinance by the city, under the exercise of a reserved right of canceling the bargain granted by Art. 2765, or from that of considering that the contract by reason of the laches and default of one of the contracting parties has become impossible of execution in view of the non-existence of the object on which it was intended to operate, in either event the plaintiff is not entitled to the relief by injunction which he asks. The petition nowhere negatives the recitals of the repealing ordinance; nowhere claims that the contract has been complied with, and nowhere assigns the existence of any legal valid reason for non-compliance.

Virtually conceding that it is in default, its whole claim seems to be that, notwithstanding that fact, it should be entitled to collect the revenues from the market as it is, during a litigation which it seeks to force and doubtless to prolong. Under' the condition of the case as it reaches us, with its pleadings and the evidence actually introduced, we do not think the testimony offered by the defendant and excluded important. We think, however, it should have been properly admitted, leaving its effect to be determined.

Judgment affirmed.


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    No. 11,512.
    Peter Graham vs. St. Charles Street Railroad Company et al.
    The intentional causing of loss by one man to another without justifiable cause, and with malicious purpose to inflict it, is of itself a wrong, and it is a general principle that every act of man which causes damage to another obliges him by whose fault it happened to repair it.
    While it may be conceded that a person has an absolute right to refuse to have business relations with any person whomsoever, whether the refusal be based ■upon reason, or be the result ol whim, caprice, prejudice or malice, and that there is no law which could reach him for so doing, it is not equally true that he can always, from such motives, influence another person to do the same without incurring legal liability. The question of liability or not, in different cases, would be dependent upon their own special facts, and upon varying conditions and relations.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Walter 3. Rogers and William B. Lancaster for Plaintiff, Appellant.

      Harry H. Hall for Defendants, Appellees.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff seeks to recover a judgment against the St. Charles Street Railroad Company and Thomas Newman im solido for five thousand dollars.

Defendants filed an exception of “no cause of action,” which having been sustained and the suit dismissed plaintiff has appealed.

The action is grounded upon the following allegations:

“That Newman is the foreman of the company, and as such has the power of employing and discharging its employés; that for a considerable time, less than one year, he has persistently abused said power in making use of it for persecuting petitioner and injuring him in his business. That petitioner is proprietor of a substantial grocery store at the corner of Baronne and Eighth streets of New Orleans — the stable and buildings of said company occupying another corner of the same street intersection; that Newman has frequently and continuously instructed the men under his control in said capacity, that they must not deal at petitioner’s store, and that he would discharge them if they did; that he especially directed such commands and threats to Henry Rigner, Joseph Santos and Lee Halliday in the early part of the year 1893, say in the months of February and March and thereabouts, and to various other persons within the past eight months; that he did discharge one Andrew Heffner from the employ of said company, on or about the 19th of March, 1893, for no other cause than that said Heffner had manifested a friendship for petitioner by speaking in his favor; that the animus of all this was that of ill will against petitioner and the deliberate desire to injure him; that in all said conduct and actions he was within the scope of his employment by said company; that in many other ways said Newman has manifested his ill feeling and malevolence toward petitioner; that petitioner has suffered loss in his business to the extent of one thousand dollars in the patronage thus driven away and diverted, which he would otherwise have enjoyed; that petitioner has also suffered great annoyance and humiliation from the notoriety which their persecution has obtained in the neighborhood through the openness with which it was carried on and from the ridicule thereby engendered, the injury from which he estimates at not less than five hundred dollars; that he is entitled to punitory and exemplary damages in the further sum of thirty-five hundred dollars for said tortious, wanton, malicious and unprovoked persecution.”

Defendants’ counsel in his brief refers us to the case of Orr vs. Home Mutual Insurance Company et al., 12 An. 255, as containing a clear exposition of the principle upon which this defence rests. He says: "Defendants had the legal right to discharge their servants arbitrarily and without cause. The exercise of a legal right gives no cause of action against them. If the plaintiff be injured it is damnum absque injuria. No authority has been suggested in opposition to the principle that a man has an undoubted right to employ labor and fix the terms and conditions of that employment in his discretion. In the instant case defendants had the absolute legal right, the exercise of which was proper in the conduct of their business, to prohibit their employés from going to grocery stores or barrooms or from dealing in any way or with any person in such manner as might be prejudicial to the interest of their business. They had the legal right to insist upon abstention in dealing as a condition precedent to their employment or retention io service. If the employés did not see fit to comply with these restrictions they were at liberty to leave the employment. They were not coerced in any sense of the word. They were free agents. They could have continued dealing with plaintiff if they saw fit, but they could not so deal and remain in the employment of the defendant company. Defendants were exercising a legal right.”

The plaintiff in this case does not appear before us either as one who, having sought employment from defendants, and been refused by reason of M'hat he alleges to be unreasonable, unwarrantable re - quirements at his hands, as conditions precedent to being taken into service, claims damages from defendants, nor as one who, having been employed by the defendants under circumstances such as to have legally authorized the employer, at any moment and without cause assigned, to discharge him, claims that he has legal ground of complaint for the reason that the discharge was arbitrary, wanton and malicious. Had this case presented features of that kind the arguments which counsel makes would be unanswerable. A complainant under such circumstances would find himself met by the-principle which has taken the shape of a maxim, “ Neminem. lasdit qui jure suo utitur.”

The issue before us is whether, while the plaintiff, engaged in a lawful business, is legitimately earning his livelihood by and through the custom and patronage of others, the defendant, a corporation,, and its foreman, having the power of employing and discharging large numbers of persons, can, without incurring legal liability therefor, without justifiable cause, and moved solely by a malicious and wanton intent and design to injure the plaintiff, use their power, of employment and discharge upon persons seeking employment from them, or already in their employ, so as to cause those who' are already dealing with the plaintiff to desist from further doing so, and those who would desire to do so from carrying out their wishes by threats of non-employment or discharge. In so doing the defendant would not only control their own will, action and conduct, but forcibly control and change from pure motives of malice the choice and will of others through fear of non-employment or discharge. This will and power of choice, both the plaintiff and the parties themselves are entitled to have left free, and not have coerced, in order simply to work the former, damage and injury.

In Longshore Printing and Publishing Company vs. Howell, 38 Pacific Reporter, 553, the court said “ every man has a right to require that he be protected in his property rights,” and quotes approvingly and correctly a citation to the effect that “ the labor and skill of the workman or the professional man — be it of high or low degree — the plant of a manufacturer, the equipment of a farmer, the investments of commerce, are all in equal sense property.”

In Delz vs. Winfree ef al., decided by the Supreme Court of Texas, 16 Southwestern Reporter, 112, the court said: “Everyman has a right to use the fruits and advantages of his own enterprise, skill and credit. He has no right to be protected against competition, but he has the right to be protected from malicious and wanton interference, disturbance or annoyance. If the disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right, by contract or otherwise, is interfered with.

But if it comes from merely wanton or malicious acts of others, ■ without the justification of competition or service of any interest or lawful purpose, it then stands upon a different footing.”

In the ease at bar defendant has committed the error of enlarging a right into a wrong, and applying to it the maxim “ Neminem .Ise&it quijure suo wfifwr.”

In dealing with the question before us, we could entirely disregard, •as a mere incident or accident of the ease, the particular instrumen•tality by and through which the alleged damage and injury to plaintiff was inflicted. If it was accomplished under circumstances such •as to give rise to legal liability, it would matter little whether it was through the power and influence which an employer can bring to bear upon the conduct and actions of his actual or prospective em-ployés or through some other means.

For the purposes of this opinion/we have taken up and followed •the line of discussion and argument adopted and presented by both «ides, and passed upon the general legal proposition, advanced by plaintiff and disputed by defendant, without subjecting plaintiff’s pe■tition as to its exact language/and arrangement to the strictest rules •of pleading. From that standpoint it is open to some criticism, but we have viewed it as substantially raising the issues presented in the briefs. /

We do not undertake to lay down any general rule by which should be ascertained and tested the right of one man to control and direct against his will the action and conduct of another to the injury and prejudice of third persons under the different relations and varying ■conditions of life. We do not mean for an instant to say that de- ' fendants may not, on the trial of this case upon the merits, justify any conduct which they may have pursued in respect to the plaintiff. We simply say that the whole matter should be thrown open to in•quiry and investigation.

In the case of Delz vs. Winfree, cited'above, counsel laid down a proposition which the court said might be conceded as correct, to the effect that “a person has an absolute right to have business relations with any person whomsoever, whether the refusal is based upon reason or is the result of whim, caprice, prejudice or malice, and there is no law which forces a man to part with his title to his property,” but.it declared .that “the privilege here asserted must be limited, however, to the individual action of the party who asserts the right. It is not equally true that a person may from such motives influence another person to do the same. If without such motive, the cause of one person’s interference with the property or privilege of another is to serve some legitimate right or interest of his own, he may do acts himself, or cause other persons to do them, that injuriously affect a third party so long as no definite legal right of such third party is violated. In the case of Walker vs. Cronin, 107 Mass. 562, it was recognized to be a general principle that “in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action upon the ease to be repaired in damages. The intentional causing of such loss to another without justifiable cause, and with malicious purpose to inflict it,'is of itself a wrong.”

We are of the opinion that the exception of no cause of action should have been overruled and the parties should have been made to go to trial on the merits. It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and that the exception of no cause of action filed by the defendant in the District Court be and the same is hereby overruled, and this cause is ordered to be remanded to the lower court for further proceedings according to law.


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    No. 11,715.
    Succession of Elizabeth Bey.
    1. Where, by order of court, a suspensive appeal has been allowed on appellant’s furnishing bond in an amount fixed by the court, and bond has been furnished accordingly, it will not be dismissed because it can not be maintained as a suspensive appeal. Though not good as a suspensive it stands good as a devolutive appeal.
    2. Where a judgment which the Supreme Court has rendered (in which it has passed upon all the issues submitted to it) has become final, and its decree has been sent down to the court in which the judgment appealed from was rendered, the cause-returns under the jurisdiction of the latter court for execution, subject to the revision and supervision of the Supreme Court as to that execution. The Supreme Court will not interfere with the execution, except in clear cases of oppression or injustice, or in cases of inconsistency with its own decree.
    .3. When the District Court for the purposes of execution acts originally upon a question not covered by the decree of the Supreme Court which involves an amount under the appellate jurisdiction of the Supreme Court, the action of the District Court on the particular issue can not be made the subject of a detached special, separate appeal. If its action could come before the Supreme Court at all by appeal, it would have to be on a subsequent general appeal, as to which it might be considered an incident. Ordinarily the control of the Supreme Court over the execution of its final judgments would not be by appeal, but through other remedies. Lovelace vs. Taylor, 6 Rob. 93.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Dinkelspiel & Hart for Testamentary Executor, Appellant.

      Farrar, Jonas <& Kruttsehnitt for Frank Zengel, Defendant in Rule, Appellee.
   On Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

On June 7, 1893, one Henry Shipman presented a petition to the Civil District Court, in which he averred that Elizabeth Bey had died in the parish of Orleans, leaving a nuncupa-tive will by public act, in which he was appointed testamentary ex.ecutor, and praying that the said will be probated and ordered to be executed.

Prior to this action the court, at the instance of the public administrator of the parish of Orleans, had appointed Frank Zengel attorney of the absent heirs of Elizabeth Bey, upon the assumption that she had died intestate and with heirs all absent from the State. When Shipman’s application was made for the probate of the will, the court ordered that the attorney of absent heirs be notified to show cause, if any he had, why the instrument should not be pro.bated as prayed for. The attorney appeared -and opposed the recognition of the act as a will of the deceased, on the ground that she was insane at the time it was made. Before the issue thus made went to trial several pai’ties were recognized as legal heirs of Miss Bey, and permitted to intervene and adopt the opposition of the attorneys of the absent heirs, while others (Henry Shipman among the number), as legatees, became intervenors with leave of the court in support of the application for probate.

After evidence adduced, the District Court sustained the ground advanced in the opposition, that Elizabeth Bey was insane at the time of the execution of the act, and rejected the will and application for probate.

An appeal was granted from this judgment.

Shipman subsequently furnished an appeal bond as testamentary executor of the succession, and this court rendered judgment in the matter of the appeal reversing the judgment of the District Court— and recognizing as valid the rejected will. The courts farther ordered “that opponents pay the costs of both courts.”

After this judgment became final, four separate rules were taken in the District Court in the name of Henry Shipman, as testamentary executor.

The first was directed against Frank Zengel (the person who had been appointed attorney of absent heirs).

The second against J. B. Vinet, the public administrator for the parish of Orleans.

The third against Anna Maria Christina Bey and Johann Albert Schweim, her husband; Reimer Henrick Reimers, Bettie Bey and William Hoffner, her husband (all. absentees, represented by H. F. Klumpp), Simon Johanes Reimers, also an absentee, represented by James Jones (the above named parties being legal heirs of Elizabeth Bey), and against H. F. Klumpp personally.

In these three rules it was suggested that by the judgment of this court above mentioned the “ opponents ” had been ordered to pay costs in both courts; that all these different parties were opponents jn the litigation except H. F. Klumpp individually — that they fell under the terms of the judgment — that Klumpp, individually, was liable, as he opposed and prevented the original probate of the will, and that the costs amounted to seven hundred and forty-seven dollars and forty-five cents. On these recitals, the court was prayed to rule these different parties to show cause why judgment should not be rendered against each of them for the said amount for costs. On the trial of the first two rules, judgment was rendered' in favor of Zengel and Vinet. On the trial of the third rule, judgment was rendered in favor of Klumpp individually and of Simon Johanes Reimers, but against Johann Albert Schweim and wife, Reimer Henrich Reimers and Wilhelm Hoffner and his wife.

Erom these judgments in favor of Zengal-Yinet and Klumpp individually, Shipman appealed.

The fourth rule was directed against H. F. Klumpp. In the rule it was suggested that H. F. Klumpp had failed and refused to turn over to mover (Shipman, executor) the funds and property of this estate which are or have been in his possession and has failed and refused to furnish to mover a proper account, the only account furnished containing illegal and excessive charges and payments not authorized by this court. • That Klumpp claims to have disposed of certain property of this estate which he was without right, authority or power to do, and having funds of this estate in his hands he failed to pay the State taxes on property of this estate, and mover was compelled to pay interest and penalties on same amounting to five dollars and fifty-two cents. In view of these premises mover prayed that it be ordered by the court that H. E. Klumpp show cause why he should not be punished for contempt of court, why a writ of distringas according to law should not issue against him, and why he should not be charged with said penalties and interest on said taxes, and with interest on the moneys in his hands a3 testamentary executor of this estate, and why such other orders should not be issued in the premises as may be necessary to secure the rights of the legatees of deceased in this State and for general relief.

The rule having been ordered and tried, the District Court decreed that it be maintained, in so far as to order H. E. Klumpp to turn over to petitioner in rule the funds of the succession of Bey now in his hands less his commission of sixty-four dollars and fifty.-seven cents, and less the fees of his attorneys, one hundred and fifty dollars ($150), being a total of eighteen hundred and thirty-five dollars and. seventy-nine cents to be turned over to him, and in all other respects the same is rejected.

Erom this judgment Shipman, as testamentary executor, has appealed.

Motions to “ dismiss the appeal” have been filed in this court on-behalf of Vinet, public administrator, and of Frank Zengel, on the grounds—

1. That the transcript does not contain all the testimony adduced on the trial of this proceeding in the lower court, and is incomplete and defective on its face.

2. The certificate of the clerk to the'correctness and completeness of the transcript is insufficient, incorrect and not such as the law requires.

3. Want of jurisdiction ratione materise, as the amount at issue is less than two thousand dollars.

4. That the suspensive appeal herein taken was not asked for in time, as it was not taken within ten days after the judgment appealed from was signed.

No motion to dismiss has been filed on behalf of Klumpp.

It is contended on behalf of the appellant that the fourth ground of dismissal is disposed of by the decision of this court in the matter of the Succession of Keller, 39 An. 579; also “that the proceedings in the rules were taken in execution of a decree of the Supreme Oourt, in a case in which that court alone had jurisdiction, and that all collateral matters growing out of that judgment must necessarily be passed upon by this court. That the succession is in course of administration, and its assets largely exceed the sum of two thousand dollars. That the proceeding for the taxing of costs is a necessary incident to the original appeal and, of course, must follow that, appeal as to jurisdiction.”

The appeal can not be dismissed on the fourth ground stated. The amount of the bond was fixed by the District Oourt, and the appeal, if not good as a suspensive appeal, stands good as a devolutive appeal.

The third ground for dismissal is well taken. The judgment rendered by this court in the matter of the probate of the will of Miss Bey was a final one and covered all the points presented to the court for adjudication. When it became final our decree was sent back, and the case returned into and under the jurisdiction of the Civil District Oourt for execution, subject to the revision and supervision of this court as to that execution. Code of Practice, 617; Holstein vs. Henderson, 6 New Series, 276. It is for the District Oourt to regulate the mode of execution, and this court will not interfere except in clear cases of injustice, oppression or in cases of inconsistency with our own decree. Compton vs. Airial, 9 An. 496. When the District Oourt for the purpose of execution acts originally upon a question not covered by our final judgment, and the question at issue involves an amount under the appellate jurisdiction of this court, the action of the District Oourt on the particular point can not be made the subject of a detached, special and separate appeal. If the question could come before us at all by and through an appeal it would have to come before us on a subsequent general appeal, of which it might be considered an incident.

Ordinarily our control over the execution of final judgments rendered by us would not be by an appeal, but through other remedies. Murphy vs. Murphy, 45 An. 1482; Lovelace vs. Taylor, 6 Rob. 93.

The case of the Whitney Iron Works vs. Reuss, 40 An. 112, has attracted our attention, but it is not similar to the present one. The main case there was still open when the appeal from the action of the District Oourt upon the rule for taxing costs was brought before us.

We are of the opinion that the motions to dismiss filed on behalf of Zengel and Vinet are well grounded and must be maintained, and the appeals as to them are hereby dismissed.

Though no motion has been made on behalf of Klumpp to dismiss the appeal from the judgment rendered in his favor on the rule against him to tax costs, we must for the same reasons dismiss the appeal taken as to him ex officio.

We are inclined to think that the appeal from the action taken by the District Oourt on the rule which we have referred to as the fourth rule should also be dismissed, but as the issues raised were not covered by our decree in the matter of the probate of the will and no motion to dismiss has been filed, and appellant has not been heard, we prefer to leave the matter open for future discussion and determination.

For the reasons herein assigned the appeal taken from the judgment of the District Court in favor of H. F. Klumpp in the matter of the rule against Anna Maria Christina Bey and her husband, Bettie Bey and Wilhelm Hoffner, her husband; Reimer Henrich Reimers, Simon Johannes Reimers and H. F. Klumpp to charge them with costs is hereby dismissed.

Rehearing refused.