author: Host, J.

text:
    Reynolds et al. v. Baldwin, Recorder.
    The remedy by writ of quo warranto, authorised by the Code of Practice, is not confined to cases of usurpation of office only. It is also the proper remedy in case of the usurpation of a franchise, as where it is alleged that a party claims, without authority, to, exercise the rights, duties and privileges of an alderman. Act oí 17 February, 1805, s. 22. C. P. 789, 828, 867 to 871. The laws of this State do not recognize the distinction between the different kinds of usurpation known to the common law.
    The provision of art. 870 of the Code of Practice that, when the court shall, on a writ of quo wmranio, declare the person against whom it was issued not qualified to fill the place of which he performs the duties, it “shall direct the corporation to proceed toa new appointment,” means only that such an order shall be made when anew appointment is necessary.
    In the interpretation of statutes the intention of the lawgiver is to be deduced from a view of the whole, and of every part of the statute taken together. Where in the preamble, or in any particular clause, an expression is used not so large and extensive in its import as those used in other parts of the act, effect must bo given to tho larger expression. A statute should be so construed, if possible, that no clause, sentence, or word shall be superfluous, void, or insignificant.
    The division of laws establishing and regulating municipal corporations into organic and ordi * navy, is unknown in this State.

      In the country from which wo derivo our icloas on the subject of municipal corporations, the charters of cities wore, as their name implies, contracts, entered into between the corpora-tors on the one hand, and the king or feudal lord on the other, by which liberties or franchises were bartered for personal services or money. They were intended to be permanent, and could not bo lawfully taken away, being, in the true sense of the word, franchises* But the relation between our municipal corporations and the sovreign, is not the same.
    The laws enacted under the provision of the 23d sect, of the 6th art. of the State constitution of 18X2, establishing and regulating tho municipalities of New Orleans, are not contracts» bntordmaiy acts of legislation. The powers they confer are not franchises, in the original meaning of that word, but mandates only; and these laws may be repealed at pleasure, except so far as their repealmay affect rights acquired by third persons under them. They must be construed and applied, in all cases, like other laws.
    The 5th sect, of tho act of 17 February, 1805, and the 2d, 5th, and 8th sects, of the act of 8 March, 1836, inrelation to the powers of the recorders in the city of New Orleans, must be viewed as if they formed part of one and the same statute, and be so construed that no clauso, sentence or word, shall be superfluous, void or insignificant.
    Neither the second section of tho act of 8 March, 1836, nor any other law, authorizes the recorder of a municipality in the city of Now Orleans, to exorcise the rights and privileges of an alderman, by voting in fcho deliberations of the council where the members arc not equally divided,
    APPEAL from the District Court of the First District, Buchanan, J.

      Durant, for the plaintiffs.

      R. Hunt and Roselius, for the appellant.
    The act of 1805, incorporating the city of New Orleans, provided that, among other officiers of the city, there should be a recorder and fourteen aldermen, to be electod in the mode therein prescribed; that, the aldermen so chosen should form a council to be called “ the city council,” of which the recorder, for the time being, should ex officio be president, but that he should have no vote, except a casting voto; and that the said council should have power to govern the city and administer its affairs, and to make bye-laws and ordinances for the better government of its affairs, &c.
    It had often happened in the administration of the affairs of corporations, composed of an even number of voters, that salutary by-laws could not be made, and that the elections of necessary and proper officers could not be effected, in consequence of an equal division of voters. This had given rise to much confusion and various illegal devices, for the purpose of enabling corporations to act in such cases. See 6 Term Rep. f32, and the cases there cited. The legislature therefore provided in the charter of the city of New Orleans against sucha contingency. It made the recorder ex officio president of the council of fourteen aldermen; and vested in him the right, in case of an equal division among the aldermen, to give a casting vote.
    Before the division of the city into three municipalities, the recorder was an ■ officer of little importance. His chief duly was to preside over the council. In case of a vacancy in the office of recorder, or of his absence, or inability to discharge his duties, the council was authorized to choose one of their members as president pro tempore. No other provision was made to supply his place, or to impose his duties on a substitute; simply, because he had no other functions of importance to perform.
    In 1836, the city was divided into three municipalities: each municipality was vested with a government of its own. The number of aldermen was no longer fixed and limited; but it was made the duty of the several municipal councils to apportion the number of aldermen to which they might be respectively entitled, in the ratio of one alderman for every hundred voters residing therein. It was evident, therefore, that the number of aldermen would fluctuate from year to year, and no ono could say with certainty that the council of any ono of the municipalities, would consist of an even number; and the confusion attendant upon an equal division of votes among the aldermen not being likely to take place, there was no particular reason for continuing in the recorder the power of giving a casting vote only.
    In remodelling the charter of the city in 1836, the legislature deemed it expedient to make the recorder a component part of the municipal council. The 2d section of the act provides that each municipality shall be governed by a council composed of a recorder, and the aldermen elected by the wards within the limits thereof. The recorder was thus made a member of the council — a constituent, component part thereof, expressly authorized to participate equally with every other member in the government of the municipality and the administration of its affairs. The council can only govern the municipality and administer its affairs, by passing ordinances, making by-laws, electing officers, &c. These duties and powers can only be exercised by the council in the ordinary way' recognised by law, that is to say, by voting, so that the will of tho majority may be ascertained, for the “ lex majoris partis is the law of all councils, elections, &c., where not otherwise provided.” If, then, the recorder is to participate as a member of the council in passing by-laws and ordinances, in governing the municipality and administering its affairs, he must exercise the right to vote. The recorder and the aldermen derive the right to vote from tho same law. The right is conferred upon them, in the same section and in tho same words, as members of the “ council composed of a recorder and the aldermen.” It is admitted that the aldermen have a right to vote. It can not then be fairly denied that the recorder has also the right.
    But it is argued that, although the 2d section of the act, just quoted, makes the recorder apart of the council, another section of the same act establishes the contrary. The 5th sections declares that, each of said municipalities shall be governed and the affairs thereof administered, by a recorder and a counci¡ composed of aldermen. There is some difference in the language of the 2d and of the 5th section; but when properly understood, there is no opposition in the meaning of the two. The 2d section declares that the council shall be composed of a recorder and the aldermen. • The 5th section speaks of a recorder and a council composed of aldermen. But the latter, like the former section, provides that the municipality shall have its affairs administered by a recorder as well as by the aldermen. The recorder is made one of the governing officers, and one of those appointed to administer the affairs of the municipality by tho 5th, as well as by the 2d section.
    It is said that the recorder is not a member of tho council, because the act of 1840 (Bullard & Curry’s Dig. p. 132, s. 1,) says, “that the council of Municipality No; 2, of the city of New Orleans, shall in future be composed of twelve aldermen.” The most universal and effectual way of discovering the true meaning óf a law, is by considering the cause which induced the legislature to enact it. Prior to the passage of the act of 1840, referred to, the number of aider-men to which the council of the several municipalities were entitled, was apportioned in tho ratio of ono alderman for every hundred voters residing therein. Act of 1836, s. 6. In 1840 it was found that, from the immense increase of voters in New Orleans, this rule would make the council consist of a number of aldermen, quite too large for practical purposes. The legislature resolved, therefore, to abolish the rule, and accordingly enacted that the council of Municipality No. 2, should, iu futuro, be composed of twelve aldermon. Tho object of tlio law evidently was only to diminish and limit tho number of aldermen.
    Orymes, on the same side.
   Tho judgment of the court was pronounced by

Host, J.

After tho late elections in tho city of New Orleans, tho council of Municipality No. 2 met, Joshua Baldwin, recorder, iu tho chair, and thirteen aldermen, being a full board, in their seats. They transacted some bxisiness, and M. M. Reynolds, one of the aldermen, presented the following resolution, and moved its adoption:

“Resolved, That we now proceed to adopt rules for the governing of this council.”

The recorder decided this resolution to be out of order, and Reynolds appealed from his decision, and called for the yeas and nays on the question, “shall the decision of the chair be sustained.”

The yeas and nays were ordered, and when counted stood six yeas and seven nays; whereupon the recorder voted with the minority, assorting his right to do so under the 2d section of the act dividing the city into three municipalities, which makes, in his opinion, the recorder a component part of the council, and thus gives him, by implication, the powers of an alderman. By Ms voto, his decision was sustained.

The seven aldermen who voted in the negative, instituted proceedings in tho nature of a quo warranto, to test the legality of the vote given by the recorder, and, if it should be found illegal, to obtain an order forbidding him to exercise hereafter the rights, duties and privileges of an alderman.

The defendant came into court and excepted to the petition, writ and proceedings, on the ground that, it is not a case in which a writ of quo warranto can or ought to issue, there being no law to authorize tho issuing of such a writ in the premises; and, should his exception be overruled, he filed a general denial, and averred that he had confined himself within the duties, rights and privileges of a recorder, and had never usurped or exercised the rights, duties and privileges of an alderman. The court of the first instance having overruled tho exception of the defendant, and rendered judgment against him on tho merits, he appealed.

It is contended on the appeal that, the exception of the defendant was improperly overruled, because tbe writ of quo warranto, as authorized by the Code of Practice, can bo resorted to in cases of usurpation of office only, and because the defendant, so far from having usurped the office of alderman, has from the beginning disclaimed any title to that office,' or any intention to usurp or exerciso the rights, duties and privileges thereof, and simply considers it his right, in virtue of his own office, as recorder, to vote in the deliberations of the council.

The petition does not charge that the defendant has usurped the office of alderman, but that he has exercised, and claims, without authority, the power to exercise the rights, duties and privileges of an alderman. This is not, according to the technical distinctions of the common law, the usurpation of an office; it is the usurpation of a franchise.

“ Wrongfully and unjustly holding and presiding at a court of record of a borough, in the absence of the bailiffs, is not an usurpation of the office of bailiff, for the intruder may have thought it his right or his duty in virtue of his own office as recorder or town clerk; yet it is an usurpation of the office of a judge, or of theforanchise f holding the court, for which an information may be granted at common law.” Rex v. Williams, 1 Bur. 407. S. C. 2 Kenyon, 75.

In England there is a remedy at commonlaw, for both kinds of usurpation, by an information in the nature of a quo warranto, filed by the attorney general in tho court of King’s Bench; and, under tho statuto of Ann, tho court may besides authorize private persons to proceed in the samo mannor, in cases of usurpation of office.

This distinction in the various kinds of usurpation, does not exist under our laws. The 22d section of the act of 1805, establishing the Superior Court, provided as follows: “ The Superior Court shall have power to issue writs of quo warranto, procedendo, mandamus and prohibition, which writs shall preserve the forms, and be conducted according to the rules and regulations prescribed by the common law.”

Under this statute, a writ óf quo warranto was the proper remedy for both kinds of usurpation. The Code of Practice subsequently made provision for tho form and manner of proceeding; but we do not understand that it restricted the cases in which the writ could issue before. The only restriction is contained in that portion of article 868, which refers to offices conferred in tho name of tho Slato by tho Governor, with or without tho consent of tho Senate.

Article 828 defines tho writ of quo warranto to be, an order of which the object is to prevent anusurpation. This definition clearly embraces usurpation of franchises as well as of offices. The very case put by article 8G8, is the usurpation of a franchise. This mandate is only issued, says that article, fer the decision of disputes between parties, in relation to offices (fonclions, says the French side) in corporations, as when a person usurps the character of mayos- of a city. The character of mayor is not, technically speaking, an office, but a franchise. See also art! 789 of the Code of Practice.

It is truo that article 870 ordains that, if the judgment be against the defendant, the court shall direct the corporation to proceed to a new appointment; but tho legal construction of this article, taken in connection with those that precede it on the same subject matter, is, that such an order shall be made whon a new appointment is necessary. It is an exception to the general dispositions contained in the other articles, and does not limit them in any manner.

“ It is an established rule in the exposition of statutes that, the intention of the lawgiver is to bo deduced from a view of the whole and of every part of the statuto, taken and compared together. In construing acts of parliament, the courts aro not to look only at the language of the preamble, or of any particular clause. If they find in the preamble, or in any particular clause, an expression not so large and extensive in its import, as those used in other parts of the act, it is their duty to give effect to the larger expressions. Indeed a statute ought, upon tho whole, to be so construed, that, if it can be prevented, no clause, sentence or word should be superfluous, void or insignificant.” Per Lord Tenterden, Doe dem. Byioaler and Brandling, 7 B. and C. 643.—Rex v. Burckett, Hard. 344, 1 Shaw, 108. Dwarris on Statutes, p. 21.

The order to proceed to a new appointment, could not always be made, even in cases of usurpation of office. If, after a candidate for tho office of mayor had obtained a majority of the votes, his competitor should take tho oath of office, and attempt to exorcise the functions thereof, a writ of quo warranto would be the proper remedy against him; and yet the judgment rendered -in tho case could not order a new election.

We are satisfied that the exception was properly overruled.

On tho merits, the law of tho case is contained in the following sections of various acts of tho legislature.

The 5th section of the act of incorporation of tho city of New Orleans, approved on the 17th of February, 1805, provides “that the aldermen shall form a council to be called the city council, of which the recorder, for the time being, shall, ex-officio, be president, but shall have no vote except a casting vote, unless at such time as the council shall resolve itself into a committee of the whole.”

In 1836 the city was divided into three municipalities, by an act entitled “An act to amend the act entitled an act to incorporate the city of Now Orleans, approved Feb. 17th, 1805, and other acts amending the same.”

The 2d section of that act provides, “that each municipality shall be governed, and its affairs administered by a council, composed of a recorder, and the aldermen elected by the wards within the limits thereof.”

Section 5th of tho samo act says, “that each municipality shall be governedi and the affairs thereof administered, by a recorder, and council composed of aldermenand it provides for the timo and manner of their election.

Section 8th of the same act provides, “that the poioers and duties of recorders and aldermen shall be the same, within the limits of their respective municipalities, as they were before in the city of New Orleans.

By the 1st section of an act passed in 1840, it is ordained that, the council of Municipality No. 2 shall in future be composed of twelve aldermen.

It is not denied that, up to 1836, the recorder could not vote in the deliberations of tho council, and had only a casting vote; but it is contended that, by the 2d section of the act of that year, the recorder is made a component part of the council, and has the right to vote in all cases. It is further alleged that this last act being the organic law of Municipality No. 2, its provisions cannot be repealed by implication.

The act of 1836 does not purport to be an original organic law. Its very title, as we have already seen, negatives the idea; and its details and provisions clearly show that, it was nothing more than an amendment of the laws existing on the same subject before its passage.

The division of the laws Which establish and regulate municipal corporations into organic and ordinary, does not exist under our form of government. In the country from which we derive our ideas on the subject of municipal corporations, tho charters of cities were, as their name implies, contracts, entered into between the corporators on the one hand, and the king or feudal lord on the other, by which liberties and franchises were bartered for personal service or money. The fights and powers which those charters conferred, wore of the nature of those secured to the people at large by our constitutions. They were intended to be permanent, and could not be lawfully taken away; they were, in tho trae sense of the word, franchises. But the relation existing between our municipal corporations and tho sovereign, is not tho same; and it is strange that this fact should continuo to bo so obstinately overlooked by their officers.

The twenty-third section of tho general provisions of the old constitution ordained, that tho citizens of tho town of New Orleans “should have the right of appointing the several public officers necessary for the administration and the police of the said city, pursuant to tho mode of election prescribed by the legislature.” This provision constituted the municipal government of this city, a subordinate agency for purposes of police and good order. The laws which, under that provision, have established and regulate the municipalities, are not contracta; they aro ordinary acts of legislation. The powers they confer are no longer franchises, in tho original meaning of that word; they are nothing moro than mandates; and those laws may bo repealed at pleasure, except so far as their repeal may affect rights acquired by third persons under them. They aro all of the same nature, and must bo construed and applied in all cases like other laws.

The provisions of the different statutes already cited in relation to tho power of rocordcrs, must bo viewed as if they formed part of one and the same statute, and bo construed, as far as practicable, so that no clause, sentence, or word in them he super jluous, void, or insignificant^

The 5th section of the act of 1805 ordains that, except in cases when the council resolves itself into a eommitto of the whole, the recorder shall have no vote, except a casting vole. How has this express prohibition been repealed 1

Tho argument by which such a repeal is deduced from the 2d section of the act of 1836, violates every known rule of interpretation, and can hardly be considered as serious. That section says that the council shall be composed of a recorder and the aldermen; but it must be construed with reference to all the others in pari materia, found in tho different laws of the corporation. It is a declaratory law, granting no now power. As there is no deliberative assembly without a presiding officer, after the act of 1805 had provided that the recorder-should bo ex-ojficio president of the council, the council was in reality composed of a recorder and the aldermen; each exorcising the functions assigned to them by law. This is the legal intendment of the 2d section of the act of 1836, viewed with reference to tho other laws in pari materia. It is identical with that of the 5th section, and has been considered by every body so to be, sinco the passage of the act in which it is found.

The legislature was so careful to leave no room for doubt on this subject, that it provided by the 8th section that, the powers, duties and rights of recorders should remain the same as they xoere before. The 2d section was not intended to make any change in those powers ; and, if it should be conceded that the power claimed might at one time have been exercised under it by implication, that power was certainly taken away, in the same manner, by the act of 1840. The 2d section of the act of 1836 ordains that each municipality shall be governed, and its affairs administered by a council composed of a recorder and the aldermen. The 5th section of the same act provides that, each municipality shall be governed, and the affairs thereof administered, by a recorder and council cmnposed of aldermen; and by virtue of the 8th section, the powers and duties of recorders are to remain the same as they wore before. Under the construction which it suits the defendant to put upon the 2d section, those three dispositions cannot stand together, and the first, or the two last, must give way. The defendant contends that tho first ought to prevail; but the law is against him. “ If the latter part of a statute be repugnant to the former part thereof, it shall stand, and, so far as it is repugnant, be a repeal of the former part, because it was the last agreed to by tho makers of tho statute.” Dwarris on Statutes, p. 31, and the cases there cited.

If the act of 1840 had never boon passed — if tho 5th and 8th sections of the act of 1836 were not found in it, the 2d section of that act would not give to the defendant tho power he claims. The law does not favor repeals by implication, and “ when there is a difference in tho whole perviow of two statutes, apparently relating to the same object, the, former remains .in force.’’'’ Rex v. Downes, 3 T. R. p. 569. So that if tho 2d section of tho act of 1836 had stood alone, it would not have repealed any part of the 5th section of the act of 1805, and the powers of the roeorder would have remained the same as before. Wo could not view the different laws regulating the powers, rights and duties of recorders as one single statute, and give effect to all their provisions, as it is our duty to do, without coming to the conclusion that the defendant has no color of right to exercise the powers he claims.

The opinion of the court is unanimous, clear and decided, that the judgment must stand. Judgment, affirmed.


source: Caselaw Access Project

author: Etjstis. C. J.

license: Public Domain

text:
    Little et al. v. Blossman et al.
    Defendants authorized an agent to malte certain purchases for their account, in these words: •' We authorize you to purchase for our account to the extent &c., and to ship to onr order, and to forward to us the shipping documents, when your drafts for the invoice amount will meet with due honor.” The agent, having purchased in conformity to his authority, drew on his principals for the amount of the invoice, and sold tho hill of exchange with the bill of lading attached to it. The holders presented the bill of exchange for acceptance, but refused to deliver the bill of lading until payment of the bill of exchange. Held, that the drawees were bound to accept only on delivery of the bill of lading.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Barker, for the appellants. Benjamin and Micou, for the defendants.
   The judgment of the court was pronounced by

Etjstis. C. J.

This action is brought on certain bills of exchange drawn on cotton shipped from this port to Liverpool, and accompanied by bills of lading. Tt resembles the suit of Lanfear et al. v. Blossman (ante p. 148), but in this case the holder of the bills has sued the drawees of the bills, as well as the drawer. An attachment was issued against Be Tastet Sf Co., and they have been made parties defendant. The facts in relation to the refusal to accept the bills unless the bills of lading were delivered up, do not differ materially from those in Lanfear’s caso. Baring, Brothers & Co. were the. agents for the plaintiffs. But for the course pursued by those gentlemen the bills would have been accepted and paid. The cotton covered by the bills of lading was sold by Baring, Brothers & Co., more than a year after the bills of exchange fell due. The loss on it was considerable, and the plaintiffs seek to recover the deficiency short of the amount of the bills.

The plaintiffs attempt to fix responsibility on De Tastet & Co., by reason of the purchase of the cotton being ordered on their account. The statement in the petition is as follows: After the indebtedness of the defendants to the plaintiffs in the sum of $59,186 87, with interest, is charged, the reason is thus given: “for this, that the said Fermín Be Tastet & Co. authorized the said R. B. Blossman to purchase at New Orleans, and ship for Liverpool, a quantity of cotton for their account, and to draw on them for the cost thereof; that in obedience to those orders the cotton was purchased and shipped by the said Blossman, and bills were drawn by him to pay for the same, to the amount of ¿611,088 6s. 7d., copies of which are annexed,” etc. It is alleged that, plaintiffs are the owners of said bills, and that the whole amount thereof is due, by reason of the refusal to accept, pay, &c. The case was tried before a spe. cial jury, who found a verdict for the defendants. The charge of the judge was excepted to, and, after an unsuccessful attempt, to obtain a now trial,' the plaintiffs appealed.

jOc Tastet & Co. did not accept the bills, because the bills of lading accompanying them were refused to be delivered up. If they are to lie made liable at all, it must be by reason of the orders they gave to Blossman. These are the grounds of tho plaintiffs’ action against Da Tastet & Co., and on this fact the issue is joined, and the cause has been tried, and must be decided as to their responsibility. The plaintiffs propounded interrogatories to Blossman, tod he answered that he purchased the cotton under the orders of Be Tastet Sy Co., and the order itself is in evidence.

Extract from a letter from Messrs. Fermín De Tastet & Co., dated at Liverpool, Oct. .18, I84S :

“ The foregoing being our views, we authorize you, in conformity with them, to make purchases for our account to the extent of 2,500 — say two thousand live hundred bales, gradually as you may have opportunity, and to ship them to this port to our order, taking care to give us timely notice for effecting insurance, and to forward to us the shipping documents, when your drafts for the invoice amount ivill meet due honor; or you will forward said documents through Messrs. Peter Harmony & Co. of New York, when you have occasion to avail yourself of those respected friends for the negotiation of your draffs, and it is for our interest. They have our instructions on the subject.”

The bills of exchange were taken with the bills of lading by Robb Sy IToge of this city, and remitted to Nevins, Townsend & Co. of New York, to be sold with the bills of lading on their account, without endorsement or guarantee. There was no agreement as to the bills of lading, but it was supposed they would follow the bills of exchange. Tho plaintiffs purchased the bills of ex-chango, with the bills of lading, in New York, and remitted them to Baring, Brothers Sy Co. of London, in whose control they both were when the difficulty occurred in relation to the acceptance.

By the plaintiffs’ own.showing, the bills of exchange represented the price of the cotton which they were to pay for, and which the plaintiffs’ agents held when they demanded the acceptance. They held the thing sold, which they refused to deliver, and exacted the prici. Did Da Tastet & Co., by their orders to Blossman, bind themselves to any such onerous a,nd apparently unreasonable convention ? They expressly say that, when advices and the shipping documents should be forwarded to them, the bills of Blossman will meet due honor. With what propriety can a party seek to fix a loss upon a merchant giving such orders, when the very basis, or consideration, of the acceptance, is thus withheld by his agents. We have already, in Lanjear’s case, assimilated the holder of the bill of lading to a vendor. Now what would be thought of a vendor, who, under a contract like this, would retain tile thing sold, exact from the purchaser his note for the price, and, on refusal to give it, at his own convenience, in twelve months or so, sell the thing at a loss, and then sue the party injured for indemnity. Mason v. Hunt, 1 Douglas R. 297.

The plaintiffs have no claim whatever on De Tastet & Co.; there was no default on their part; the bills were unlawfully protested, and the parties to them are discharged.

In examining the testimony of the witnesses concerning the usage in New York and London as to delivering up the bills of lading on acceptance of the bills of exchange, we have come to the same conclusion to which we arrived in the case of Lanfear. AAre have in this case the additional testimony of Mr. Thomas Baring, a member of the house of Baring, Brothers & Co. He states that, “ there is no uniform rule as to the custom of requiring payment under discount of bills drawn from New Orleans on London, to obtain the delivery of bills of lading on cotton against which the drafts are issued, and by which they are accompanied; nor is there any obligation to deliver such bills of lading on the mere acceptance oi' the bills, without payment of the amount. The rule is uniform to retain the bills of lading until payment in transactions from the East Indies, which has been established and followed without exception by the East India Company.”

Mr. Baring's opinion is in conformity with the mode of doing business of his house. He thinks it optional with the bill holder to give up the bill of lading on the acceptance of the bill of exchange, or to retain it, and that of the propriety of parting with this security the holder is the sole judge.

In relation to the matter of fact of the existence of the custom, we have come to the same conclusion as the witness has. As to the rights of the bill holder we have formed a different opinion, and have given our views so fully in the case of Lanfear, that it is unnecessary to restate them, or to examine the questions of law raised by the counsel for the plaintiffs, in his exception to the charge of the judge of the Commercial Court. Judgment affirmed.


author: Eustis, C. J.

text:
    David, Administrator, v. Cabouret.
    An action to annul a judgment must be instituted before tlie court which rendered it.
    APPEAL from the District Court of the First District, Buchanan, J.

      David, appellant, pro se. Buisson, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

AVe affirm this judgment for this reason — that the settlement made before the notary, under the order of the judge, dated the 2d March, 1841, and which is sought to be annulled in this suit, was made the judgment of the Parish Court, by a decree of the 22d March, 1841, and before that court alone ought the action to annul the act to have been brought.

Judgment affirmed.


author: Fost, J.

text:
    Worsley et al. v. Benoist.
    Where the certificate of the clerk does not show that the record contains all the evidence adduced on the trial, and there is no statement of facts, bill of exceptions, or assignment of errors apparent on the face of the record filed within the legal delay, the appeal must be dismissed.
    APPEAL from the Commercial Court of New Orleans, Walts, J.

      Mott, for the plaintiffs. Grivot, for the appellant.
   The judgment of tlie court was pronounced by

Fost, J.

This is an appeal from a judgment rendered iu favor of the plaintiffs, for the balance of an account of goods sold and delivered to the defendant.

The record comes up without the clerk’s certificate of its containing all tho evidence adduced on the trial below, and without any statement of facts, or bill of exceptions, and the appellant did not file any assignment of errors apparent on the face of the record within tho legal delays. The application of the appellees to dismiss the appeal must, therefore, be granted.

Appeal dismissed.


author: Slidell, J.

text:
    King v. McGovern.
    Whore in an action for wages due for services rendered to defendant by plaintiff as a milkman, credit is given to defendant for a certain amount, ho cannot refuse to answer tlie petition until plaintiff files a detailed account of the payments, composing tho amount lor which credit was given. Per Curiam; From the character of the parties it is not to bo presumed that they kept hooks of account; and if defendant considered the knowledge of the dates, or manner of the payments, material, lie might have sought a discovery hy propounding in* tevrogatorios to the plaintiff.
    APPEAL from the City Court of Lafayette, Elliot, J.

      Sever, for the plaintiff. Carter, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

Tho defendant was a dairyman. The plaintiff was employed by him as a milkman to serve his customers. This suit is brought for a balance due to King for wages. He alleges that his services were rendered as follows : from the 6th November, 1838, to 12th August, 1839, at the rate of $25 per month; and from the 3d December, 1839, to 2d April, 1842, at the rate of $30 per month ; making a total of $859 25. He alleges that, the balance due to him is $415, thus giving the defendant a credit for an amount of $444 25. There is no demand of interest.

The defendant filed an exception, in which he pleads that he cannot answer the petition, because no detailed account is furnished by the plaintiff showing when and how he received the sum of $444 25, of which he acknowledges the payment. The defendant prayed to be dispensed from answering, until the plaintiff should file a detailed account of his alleged demand, and of said credits. The exception was rejected by the court below, and in this we find no error. The services rendered, their dates, and the rates of wages, are stated with sufficient accuracy and fulness.

As to so much of the plea as calls for a statement of when and how the payments credited were made, we consider it untenable, under the circumstances of this particular case. Prom the nature of the vocation of these parties, it is not to be supposed that they kept books of account, or that they were in the habit of furnishing accounts current as is usual among mercantile men and some other classes. The defendant has not pretended, in his exception, that the plaintiff kept books, or any written record of their mutual transactions. The acknowledgment of a credit made by the plaintiff was honest, and rendered the defence less onerous. It operated to the defendant’s advantage, and not ■to his iajurj-. If the defendant had not the means of proving the dates or manner of these payments, and considered the dates and manner material, he could have sworn to their matriality, and have sought a discovery, by propounding interrogatories to the plaintiff.

As to the value of the services, it was a question of fact, upon which the judgment of the court below, does not seem to us erroneous. The defendant has not pointed out any error in this respect; and the rendition of the services is expressly acknowledged by the answer. The plaintiff asks for damages; but we do not grant them, because the question of pleading was not frivolous.

Judgment affirmed.


author: Kin®, J.

text:
    Bertin, Executor, v. Phillips.
    Where a slave belonging' to a succession is convicted in a prosecution on a criminal charge, and the .judgment orders the costs to be paid by the owner, the costs are a dehl clue by the succession, and must be presented to the executor for payment in duo course of administration, with the privilege established in favor of law charges. No fi. fa. can he legally issued from the court of ordinary jurisdiction by which the judgment was rendered. Should afi.fa- be issued and the slave be sold under it, the sale will be null; nor can it be rendered valid by the fact of the executor’s making no objection to the proceeding, and receiving the surplus of the price after payment of such law charges. An executor cannot give validity to a sale of the property of a succession, made without observing the forms of law.
    APPEAL from the District Court of the First District, Buchanan, J.
   The judgment of the court was pronounced by

Kin®, J.

This is a petitory action, instituted by the plaintiff as testamentary executor of W. Porter, deceased, for the recovery of a slave, alleged to be in the illegal possession of the defendants, who claim to be his owners. In the court below, there was a judgment for the plaintiff, from which the defendants have appealed.

After the death of Porter, the slave in question, who belonged to his succession, and hadbeen inventoried as such, was prosecuted under a criminal charge, and, upon his conviction, the court ordered the costs to be paid by the owner. A fi. fa. was issued under this judgment, in virtue of which the city marshal seized the slave in controversy, and, after the usual advertisements, adjudicated him to Fisk, for $340. Fisk subsequently sold him to the defendant, Mrs. Phillips. The plaintiff contends that, the execution issued improvidently; that the City Court was without authority to order the sale of property belonging to a succession; and that the estate has never been legally divested of its title to the slave.

The master is personally answerable for the damages occasioned by the of-fences committed by his slave, and when the latter is prosecuted in the name of the State, notice must be given to the- owner, who may exonerate himself from responsibility by abandoning the slave, who, in that event, is to be sold for the payment of the damages and costs. Civil Code, arts. 178, 180, 181. - B. & Co. 51, 64. There was no abandonment in the present instance; and we have been referred to no law which excepts slaves convicted of crimes from the general rule regulating the sale of succession property, and subjects them to seizure under executions issued from courts of ordinary jurisdiction for the payment of costs. In the absence of such an exception established by law, the slave, wlio formed a part of a succession under administration, could only Slave been sold under the authority of the Court of Probates. Code of Pract. arts. 924, 983 et seq.

Blache, for the plaintiff. E. A. Bradford, for the defendant and appellant. Elwyn, for the party cited in warranty, who also appealed.

The costs which had accrued upon the prosecution constituted a debt due by the succession, and should have been presented to the executor, whose duty.it would have been to recognise it, with the privilege established in favor of law charges, and to have paid it as such, in the course of administration.

Mrs. Porter, the widow of the deceased, who wns acting as executrix, at the date of the marshal’s sale, made no objection to the proceeding, and after the adjudication of the slave received the surplus of the price produced, deducting the charges for which he hud been sold. This, it is contended, is a confirmation of the sale. The sale itself was null, and the executrix was without authority to give validity to an alienation of succession property, made without the forms of law.

Fisk was called in warranty, and the same judgment rendered in favor of the plaintiff against the defendant, was also also rendered in favor of the latter against the warrantor.

We think there is no error in the judgment of the District Court, and it is therefore affirmed, with costs ; reserving to the defendant, Fis7c, nil his rights of action against Mrs. Porter, the former executrix of W. Porter, deceased, and against the succession of said deceased, if any he have.


text:
    Michel v. Her Husband.
    A vendee of property cannot oppose its seizure under a. Ji fa at tlio suit of a party having a privilege and'mortgage on it, and require the latter to resort to an hypothecary action, or to an action of nullity, where his purchase was made after the seizure, and his vendor could not have maintained such an opposition.
    APPEAL by the plaintiff from a judgment of the Parish Court of New Orleans. Maurian, J.
   The judgment of the court was pronounced by

Slidell, J.

The record in this case exhibits a mass of confused and irregular proceedings, which we have carefully examined, but shall not undertake to detail in full. We shall refer only to such of them as are necessary to the decision of this controversy.

It appears that in the suit of one Roy against Michel, the present plaintiff’s husband, judgment was obtained against Michel, and an execution issued, under which a slave of Michel's was seized and sold by the marshal of the City Court. Pending the seizure, Mrs. Michel obtained a judgment against her husband, with mortgage and privilege for dotal rights, which judgment was registered before the marshal’s sale. The return of the marshal upon the Ji.fa., and his deed, exhibit an adjudication ol' the slave to Roy, the plaintiff in the execution. But it is shown that in reality the bid was made by, and the adjudication was made to, A. Dreur, professing to act for account of Roy, who was not present, and is not shown ever to have authorized Dreux to make the purchase. The price of the adjudication was $510. The marshal’s return and his deed both declare, after reciting the certificate of registry of Mrs. Michel’s judgment, that, the purchaser (Roy) has retained in his hands the sum of $493,80, the amount of the privilege existing on said slave in favor of defendant’s wife, in order to meet the payment of the same, the purchaser paying the balance to the marshaj 'in ready .money. It is admitted by Dreux that, since the sale, the slave has always been out of Roy’s possession. It is proven clearly and conclusively by the sherifi" of St. Bernard, where Roy lives, and to which parish Mrs. Michel had subsequently issued an execution, that, upon application being made to Roy for, the slave, in order that a seizure might be made under the writ, Roy answered that he knew nothing, and never had known anything, about the slave; that Dreux had bought the slave, but that he never gave Dreux any authority to do so; that if he, Roy, had the slave, he would deliver her up to the witness under the writ. This testimony was, in onr opinion, improperly rejected; it did not contradict, nor vary the sheril'f’s return. These facts wore independent of the return. The return was that no property of Michel's could be found in the parish of St. Bernard. That, this return is made by tho slierili' himself, is not inconsistent with the fact of the witness having acted under that writ as his deputy.

After a year had intervened, the plaintiff at last found the slave in New Orleans, and caused her to be seized and advertised for sale. This seizure was made, in October, 1844. The slave was sold, in Becembor, 1844, to Mrs. Michel. Pending the seizure Dreux filed a third opposition, in which he alleges the slave to be his property, by virtue of a purchase from Roy, made in November, 1844. He alleges also the marshal’s sale to Roy, and that Roy’s title and his own cannot be treated as a nullity. He prayed that the slave might be delivered to him.

The court below was of opinion that the plaintiff' should have instituted an hypothecary action, or an action of nullity. We think the court erred.

The testimony of the deputy sheriff is unimpeachcd. Roy’s conduct and declarations on that occasion were a sufficient authorization to the plaintiff, so far as Roy was concerned, to seize the slave wherever it could be found. It was a waiver of the alleged necessity of the hypothecary action. This course was very natural on the part of Roy, who had been made, without his authorization, the purchaser of property incumbered to nearly its full value, and with the probable prospect of the expense and trouble of a litigation. On Roy’s assurances the plaintiff acted, prosecuted her search for the property, and at last discovered and seized it. If Roy had himself interfered to arrest the sale and set aside the seizure upon this technical ground, we should have rejected his claim as inequitable. But does Dreux stand in a better ’position ? Clearly not. ITe expressly claims as the vendee of Roy. But his purchase is made after the plaintiff’s seizure. It was made, as we must believe, with a full knowledge of the seizure. It was made with full notice of tire superior incumbrance in favor of the plaintiff', which is expressly recited in the sale to Roy, wherein Dreux undertook to act for himself. It-is clear that Dreux, thus purchasing after the seizure, cannot maintain an opposition which his vendor would not have been permitted to maintain. In view of all the circumstances of the case we consider the interference of Dreux unlawful; and that it is time that this expensive and protracted contest should be closed.

Greiner, for the appellant. Barthe and C. Janin, for the opponent, Dreux.

It is therefore decreed that the judgment ofthe Parish Court be reversed; that, on the opposition filed by A. Dreux, there be judgment in favor of S. Duchemin, wife of Michel; and that the appellant, A. Dreux, pay the costs of said opposition in the court below, and also of this appeal.


text:
    Davis v. Holbrook.
    R otting on elections being, under the laws of this State, a criminal offenco, (stat. 10 Mavch( 1839,) no action will lie to recover from a stake-holder an amount deposited with him as a bet. Per Curiam.- A party will not be heard who asks the court to relievo him from the consequences of having violated the law.
    APPEAL from the’Commercial Court of New Orleans, Watts, -I.

      Parker and JR. Hunt, for the appellant. Durant, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action to recover from a stake-holder the sum of 58500, which had been deposited with him as a bet upon the result of the vote of Louisiana upon the late presidential election. The judge of the Commercial Court, .from which the appeal is taken, thus in substance states the case:

The facts appear te be that, on the 2d of Augnst, 1844, the plaintiff, IE. A* Davis, made a bet with A. H. I-Iays of the sum of $500, dependent on the question whether the electoral vote of Louisiana should be given for Mr. Olay or Mr. Polk. In pursuance of this agreement the parties deposited with private bankers the sum off1,000, and took a certificate of deposit payable to them jointly. Each of them endorsed the certificate, and placed it in an envelope, on the outside of which was written: “ Not to be oponed until the result of the presiden- ' tial election in Louisiana is ascertained.” On the inside of the envelope was written: “If the vote of Louisiana is cast for I-Ienry Clay, the endorsed certificate of deposit for one thousand dollars, payable to our joint order endorsed thereon, is to be delivered to E. A. Davis, one ofthe undersigned. Should the vote of Louisiana be cast for James EJ. Polk, then the certificate is to be delivered to A. H. Hays, whose name is also hereunto subscribed. E. A. Davis, A. H. Hays.”

The certificate and envelope were placed in the hands ofthe defendant A. M. Holbrook, as stake-holder. On the 12th of November, 1844, after the result of the election in the city and adjoining parishes was ascertained, but before that .of the election in the State could be known, W. H. MeCardle, who had been the agent of Davis in making the bet, and had furnished the money on his behalf, addressed a letter to Holbrook instructing him not to give up the certificate of deposit for $1,000, placed in his hands by MeCardle, without further instructions from Davis. The electoral vote was cast for Mr. Polk, and, notwithstanding the notice given by Me Cardie for Davis, Holbrook delivered up the certificate to Hays. The present action is brought to recover from the defendant the amount of the stake put up by the plaintiff — the sum of $500.

The plaintiff states as his reason for attempting to stop the payment ofthe belt that frauds were practiced in the election in the parish of Plaquemine, which changed the result of the vote of the State; but no evidence in reference to this matter was offered on the trial, and the right to recover from the defendant rests solely on the notice given to the defendant not to pay over the stake.

The judge of the Commercial Court decided the case in favor of the defendant on the broad principle that, no party who has violated the law ought to receive the assistance of a court of justice to relieve him from the consequences of his unlawful conduct, the law leaving such parties where it finds them. There have been other grounds of defence taken in argument, but as this question is of importance, and has been fully discussed at bar, we proceed to decide it.

The right of the party making a bet to recover the money deposited with a stake-holder, after notice not to pay over, is examined in the case of Vischer v. Yates, 11 Johnson, 29. The opinion of Judge Kent is relied upon by the counsel as conclusive on the subject. A thorough analysis of this very learned opinion would be rather a matter of legal criticism, without any particular advantage to our jurisprudence, or to the investigation of the principles which lie at the root of this case. We will state our conclusions after an attentive consideration of the reasons on which that opinion is based. The decision in that case professedly rests upon the English rule that, on the disaffirmance of an illegal or void contract, before it has been carried into effect, and while the money remains in the hands of the stake-holder, each party ought to be allowed to withdraw his own deposit. Courts in England will not assist either party, as against the other, in respect to these illegal contracts; but they will not permit a stake-holder, who is no party in interest in the' contact, to avail himself of his possession to protect himself under the illegality of the contact. Judge Kent considers these principles not only to be the settled law, but their operation salutary in discouraging the practice of betting on elections, and that the English rule is most fit and effectual in putting an end to it.

Were we deciding s case under the law of England, or New York, it would be with the greatest caution that we should dissent from this high authority; but we are obliged in our decisions to be guided by the rules of our own jurisprudence. We find the English decisions based upon a rule which, in the artb ficial condition of that nation, may be politic, just, and salutary in its operation,, but founded upon distinctions which, according to our polity, are inadmissible. For instance their courts take a distinction between contracts that are immoral or criminal, and such as are simply illegal and void. Assistance is given to parties in the latter case to receive back money paid. Our Code declares that an obligation without a cause, or with a false or unlawful one, can have no effect, and the contract, which is illegal, is held, ipso facto, to be immoral. Money lost at play in certain cases can be received back in England, and in New York, by virtue of statutory provisions; but by our law, where the winner could not recover his bet, the loser has no action to recover back what he has voluntarily paid, unless he has been cheated. Civil Code, art. 2953. We cannot adopt the English rule on this subject; and even under this rule the plaintiff in this case could not recover, for betting on elections is criminal in Louisiana.

This case of Vischer v. Yates was reversed by the Court of Errors, 12 Johnson, p 1, (Yates v. Foot)', it was then determined that, where money is deposited with a stake-holder on an illegal wager, and the bet has been lost and won, no action lies, after the event has happened, by the loser against the stakeholder to recover back his deposit, which still remains in the hands of the stakeholder, and which he has had notice not to pay over to the winner. Thq attempt to stop the payment in this case was made after the event — after the bet was lost and won; the election had taken place, but the result was not known.

In the case of Babcock v. Thompson, 3 Pickering, 449, though the action was brought by the loser against the winner, the very general terms in which Chief' Justice Parker states the la.w render his opinion not easily to be reconciled with the opinion in the case of Vischer v. Yates, as delivered by Judge Kent, and with the English rule adopted by him. “Where a party acts illegally,” says Judge Parker, “ he is to suffer the loss of his money as the consequence, if the money is sought to be recovered, except where he may have a remedy under the particular provisions of some statute. Here is a case of gaming, accompanied with cheating. Clearly if the gaming had been fair, the law would give no remedy. The only question then is, whether the fraud will alter the case. We think it will not. If a man thus voluntarily puts himself in a condition to be cheated, through .his illegal acts he cheats the government and the other person cheats him, and they must be left to settle the matter between themselves.”

Chiet Justice Marshall, in the case of Armstrong v. Toler, 11 Wheaton, 258, lays it down as a general principle, which is perfectly settled, that no action can be maintained on a contract, the consideration of which is wicked in itself, or prohibited by law. The effect of this principle upon collateral and subsequent contracts is the subject of controversy; but the late Supreme Court very properly refused to permit a debtor, who had placed property in the hands of a third person for the purpose of defrauding his creditor, to recover it back, and thus enabled the holder of the property to retain what did not belong to him, and based their decision on the stern morality of the Roman law. Gravier's curator v. Carraby’s executor, 17 La. 131. A contract must have a lawful purpose; and if it have an unlawful cause — if it be contrary to good morals, or public order, it can have no effect. Civil Code, arts. 1772, 1887,1888. Pothier, Obligations, § 43 et seq. Bartle v. Coleman, 4 Peters, 186. “ Where the contract grows immediately out of, or is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it; and if the contract be in fact only connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it.” Armstrong v. Toler, loco citato.

The safety and success of our institutions depend upon the purity of the elective franchise, and the substitution of a desire of gain to the exercise of that iree and unbiassed judgment which an elector is bound, to exercise in the choice of those to whom political power is to be entrusted, is so fraught with disasterous consequences, that they cannot be considered without alarm. The addition of a spirit of rapacity to the already too ardent excitement growing out of the struggles for ascendancy between parties, tends to produce results which must terminate in putting an end to this great experiment of self-government which our republic offers to the world. Where the masses are large, betting on elections produces rarely any effect on the result; but where the number of voters is small, and their places of residence are distant and scattered over a large surface, the money bet on an election may control the result, and the election of magistrates depend, not on the judgment of the electors, but upon the rapacity of those who are struggling to win their bets. Our elections, if such proceedings were tolerated, would cease to bo the choice of the people of those who are to administer their affairs, but become a disreputable game of desperate chance and profligacy. The legislature with a view of preventing this abuse, subjected any person directly, or indirectly, betting on any election, to prosecution by indictment or information, and imposed a fine on the offender of not less than the amount bet, nor of more than double that amount. By the same law the action of the prosecuting officer of the State is quickened, by positive directions, to report the names of the offenders to the trustees of the common school fund of each parish, who are the recipients of the fines; and it is made the duty of judges throughout the State to give this act especially in charge to grand juries at every term of their courts. Laws of 1839, p. 92.

A party cannot come into a court of Louisiana, and invoke the assistance of the very judge, whose voice has just been heard, in the interest of public order, in warning the good people of the State against transgressing this law, to aid him in recovering money, which he had placed in the hands of another for the purpose of violating it.

The plaintiff bases his right of recovery on the contract which he has made, and that contract the law will not permit him to mention. Before the question whether the stake-holder shall be permitted to retain what does not belong to him, stands another which overshadows it, which is, whether the plaintiff can be heard when he asks the assistance of the conrt to relieve him from the conse quences of having violated the law. It is our duty to say that he cannot. The law leaves him where his conduct has placed him. '

The Supreme Court of the United States, in the case of Bartle v. Coleman, 4 Peters, 189, says: “ If either has sustained a loss by the bad faith of a particeps criminis, it is but a just infliction for premeditated and deeply practised fraud, which, when detected, deprives him of anticipated profits, or subjects him to unexpected losses. He must not expect that a judicial tribunal will degrade itself by an exertion of its powers, by shifting the loss from the one to the other, or to equalize the benefits or burdens which may have resulted by the violation of every principle of morals and of laws.”

The judge who tried this cause referred the plaintiff’s petition to the attorney general, which is the only disposition which a court of justice could make of it.

Judgment affirmed.


author: Eostis, C. J.

text:
    The Second Municipality of New Orleans v. Tulane.
    under the stat. of 14 March, 1839, s. 4, establishing the Commercial Court of New Orleans, no judgment rendered by that court can be reversed on appeal, for want of jurisdiction in the lower court.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Raíale, for the G. B. Duncan, for the appellant.
   The judgment of the court was pronounced by

Eostis, C. J.

This action is brought to annul two leases of lots belonging to the plaintiffs, on the ground that certain buildings, which the lessee was bound to put up on the premises within a certain time, haVe not been erected, and for the sum of 551000. There is a prayer for general relief. The judge of the Commercial Court annulled the leases, and allowed the plaintiffs $180, we pre sume, for rent. The defendant has appealed.

The lessee was bound to erect certain buildings on the lots, previous to the jgj 0f Jalraal-y 1843. In the event of his not complying with the condition j n ° assumed by hhn to build, the amount of notes for the first three years rent was to be forfeited; but if the lessee kept the lots, and did not build on them according to contract, it could hardly be expected that he should have them free of rent.

The buildings were not erected, and the lease was properly cancelled by the judge of the Commercial Court, and there is no error in the allowance of rent.

There can be no reversal of the judgment of the Commercial Conrt on the ground of want of jurisdiction. It ought to have been pleaded in the court below. Laws of 1839, p. 42, s. 4. 11 La. 389.

Judgment affirmed.


author: Kino, J.

text:
    The New Orleans Improvement and Banking Company v. Walker et al.
    The certificate of the clerk that, the record of appeal " contains a true and complete transcript of all the records, documents, and proceedings had in the case,” and of the judge that, it " contains all the matters of fact upon which the case was tried,” are insufficient; and, in the absence of any assignment of error, statement of facts, hill of exceptions, or other means by which the casecanbe examined on its merits, the appeal must be dismissed.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Marsoudet, for the plaintiffs. Bartlette, for the appellant.
   The judgment of the court was pronounced by

Kino, J.

The plaintiffs move for the dismissal of this appeal. The certificate of the clerk is that, the record “ contains a true and complete transcript of all the records, documents and proceedings had in the case wherein,” &c. The certificate of the judge is that, it “ contains all the matters of fact upon which the case was tried, in the first instance.” These certificates are clearly insuffi-cent. They do not show that the record contains all the evidence upon which the cause was tried. There is no assigment of errors, statement of facts, bill of exceptions, or other means furnished by which we are enabled to examine the merits. The plaintiff has asked for damages for the frivolous appeal. The dismissal having been claimed, they cannot be allowed.

Appeal dismissed.


author: Rost, J.

text:
    Van Renselaer v. Holbrook.
    Where the lessee of a building1 fails to pay the rent when due, he may be expelled in the summary manner authorized by arts. 2682, 2683 of the Civil Code. The lessor cannot be required to resort to a direct action, to annul the lease.
    from the City Court of New Orleans, Collens, J.
    Howard, for the plaintiff» C. S, Hunty for the appellant.
   The judgment of the court was delivered by

Rost, J.

This is a suit to recover, for non-payment of the rent,'the possession of a store rented by the plaintiff to the defendant, The court below gave judgment in favor of the plaintiff, and the defendant appealed.

We are of opinion that the judge of the court below has taken a correct view of the facts of the case, and we concur with him that, in a case like this, it is not necessary to resort to a direct action to annul a lease, if there be one, the law having declared that the immediate consequence of the failure of the tenant to pay the rent when it becomes due, is to vest in the landlord the right of demanding his expulsion; and the law having further given to the City Court special jurisdiction, “ in all actions instituted by landlords against tenants, for the possession of real property.” Civil Code, art. 2682. Act of 10 March, 1838, ss. 4, 5, p. 56. Judgment affirmed.


author: King-, J.

text:
    Succession of Ducloslange.
    Irregular successions must be administered like other successions. They may be accepted either with the bensfit of inventory, in which case they must be administered as other successions accepted in that manner, or purely and simply, when no administration is necessary, unless on the contingency provided for by art. 1005 of the Civil Code.
    An irregular succession is not necessarily a vacant succession.
    Heirs of age who accept a succession purely and simply, may take possession of it, pay its debts, and divide it among themselves, without the appointment of an adminisirator, or the intervention of the Court of Probates. The creditors may require an inventory and security from the heirs who have thus accepted, in the manner provided for by art. 1005 of the Civil Code, and, on the failure to furnish such security, may require that an administration be appointed.
    APPEAL from the Court of Probates of New Orleans. Bermudez, J.
   The judgment of the court was pronounced by

King-, J.

Eulalie Ducloslange died in the city of New Orleans, leaving neither ascendants nor descendants, nor legitimate collateral relations. She left, however, a surviving husband, from whom she had not been separated from bed and board. Shortly after her death, her natural brother, Phillip Duclos-lange, presented a petition to the Probate Court, in which he represented himself, his three sisters, and the children of a deceased sister, to be the heirs of Eulalie, and claimed the administration of her succession. Ternoir, the surviving husband, opposed the appointment of the applicant, claimed the succession as having fallen to him, and prayed to be put in possession of it, under arts. 918, 924 of the Civil Codo. The probate judge determined that the succession was vacant, overruled the opposition of Ternoir, and appointed PhiWio Ducloslange the curator. From this judgment Ternoir has appealed.

Among the few rules which govern irregular successions, and prescribe the formalities by which those who are called to them are to be put in possession, we And none which require that they shall be administered differently from other successions, when an administration becomes necessary. We think it results from a comparison of the various articles of the Code relating to successions, that irregular successions may either be accepted with the benefit of inventory, in which event they are to be administered under the rules prescribed for the administration of beneficiary estates, or that they may by accepted purely and simply by the person called to the inheritance, when no administration would be required, unless under the contingencies stated in the 1005th article of the Code. They are clearly not to be regarded as necessarily vacant. A succession is vacant when no one claims it, or when all the heirs are unknown, or when the known heirs have renounced it. Civil Code, art. 1088 In the instance now under consideration, two classes of persons, the natural brother and sisters and the surviving husband, were present, both claiming the inheritance. The former, under the 917th article of the Code, which gives tho estate of the natural child, whose father and mother have died before him, to the natural brothers and sisters and their descendants; and the latter under the 918th article, which calls to the inheritance of the wife, the surviving husband, not separated from bed and board from her, when she has died without leaving lawful ascendants, descendants, collateral relations, or natural children, duly acknowledged.

The probate judge erred in considering the succession to be vacant, and tho appointment of a curator to it was irregular.

But it is contended that an administration is required upon every succession, whether the heirs be present or absent; and that Ternoir, having alleged in his opposition no better right in himself to the administration, the appointment was properly conferred on the applicant, P. Ducloslange■

The first of these positions we think untenable. The articles of the Codes, and the decision of the Supreme Court, relied on as favoring that view, all relate to beneficiary successions. Civil Code, arts. 1034 to 1040. Code of Pract. art. 976. 6 La. 212. Heirs of full age may accept, purely and simply, a succession falling to them, take possession of it, pay its debts if any exist, and make a parti • tion of it among themselves, without the appointment of an administrator, or the intervention of the Court of Probates. It is true, the creditors may require an inventory, and security from the heir who has accepted the succession unconditionally; and that, upon his failure to furnish the security, an administrator is to be appointed. Civil Code, art. 1005.

In the case of Erwin's Heirs v. Orillon, 6 La. 212, the Supreme Court could not have intended to decide that, a succession should, of necessity, be administered by an administrator or curator, even when accepted unconditionally. Tho question was not then before the court; the subject under discussion was a beneficiary succession. If the opinion is to be understood as contended for by the appellee’s counsel, it will stand in conflict with the textual provisions of the Code.

The appointment of a curator, or administrator, does not seem to be contemplated by the Code, as a prerequisite to putting in possession the person called to the inheritance of an irregular succession. The only officer whose appointment is required for that purpose, is a person to defend the interests of the absent heirs, inthe event of there being any. Civil Code, ait. 924.

When the husband presented himself, claiming the succession of tho do-ceased, all further proceedings upon the application for the administration should have been suspended, until he had produced proofs in support of his claim ; and, if these had been sufficient, the court should have put him in possession upon his complying with the previous requisites of the law, and have dismissed the application for letters of administration.

It is, therefore, ordered that the judgment of the Probate Court be avoided and reversed, and the cause remanded, with instructions to the judge to hear and determine upon the application of Jean Ternoir to be put in possession of the succession of Eulalie Ducloslange, deceased, as her surviving husband; tho appellee paying the costs of this appeal; the costs of the lower court, to abide the result of the litigation there.

Benjamin and Micou, for the appellant. Grivol and Boselius, contri!.