author: Marr, J.

text:
    No. 6989.
    Warrick Tunstall vs. the Parish of Madison.
    An order of a district court of the State granting the removal of a ease to the Circuit Court of the United States may be appealed from.
    When an application for the removal of a suit from a State to a Bederal court is made, the State court has jurisdiction to determine the auestion whether the applicant has brought himself within the provisions of any act of Congress authorizing tho removal. But in considering this auestion, the court should only allow such allegations of fact to be put at issue, as are material to its determination. ' -
    In an application for the removal of a suit from a State to a Bederal court under the act of Congress of 1867, known as the “ Local Prejudice Act,” the applicant need not swear to his citizenship. The necessary allegation as to his citizenship, need only be set forth in his pleadings.
    The affidavit reauired by the “ Local Prejudice -Act,” should be made by the applicant himself. The affidavit of his attorney, that he (the attorney) has reason to believe and does believe, etc., is not sufficient.
    .Bor the purposes of Bederal jurisdiction a corporation, whether political, municipal, or commercial, is regarded as a citizen of the State in which it was created, without regard to the citizenship of its members. Thus, a parish of this State is a citizen of Louisiana.

      The “ good and sufficient surety ” required o£ the party who applies for the removal o£ a ease to the Federal court need only be offered in the State court by the applicant at the time of filing his petition for removal. The written obligation of such surety need only be filed, after the surety has been accepted by the court.
    The affidavit required of an applicant for the removal of a case under the “ Local Prejudice Act,” maybe taken before any commissioner for this State residing in another State. Such a commissioner has authority to administer the oath.
    This court will presume that the seal used by one, who styles himself, without contradiction. a commissioner of Louisiana in authenticating an affidavit made before him, as commissioner, was the seal of a commissioner of Louisiana, until the contrary is clearly, and specifically shown to this court.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Seale & Morrison for plaintiff and appellee.

      Geo. J. Bradfield, District Attorney pro tem., and Isaac H. Crawford and J. Hyson Lane for defendant.
   On the Motion to Dismiss.

The opinion of the court was delivered by

Marr, J.

This is an appeal from an order of the district court of Madison parish removing the cause into the circuit court of the United States. Plaintiff, appellee, moves to dismiss the appeal on the ground that this court is without jurisdiction; “the jurisdiction of the State courts having ceased on filing the application and obtaining the order of removal.”

In Goodrich vs. Hunton. 29 An. 372, we held that an appeal would lie from the order of removal from the State court into the circuit court, and we see no reason to doubt the correctness of that decision.

The motion to dismiss is, therefore, overruled.

On the Merits.

"Warrick Tunstall, describing himself to be a citizen of the State of Missouri, residing at the city of St. Louis, brought this suit against the parish of Madison, to recover some thirteen thousand dollars for professional services as attorney and counselor. He describes the parish "of Madison as “ a body corporate, civil and politic, of and in the State of Louisiana, represented by the police jury of said parish.’!

Defendant appeared by counsel and pleaded prescription as to part af the demand, and that the petition shows no cause of .action against defendant.

Pending these issues Tunstall filed a petition for removal into the circuit court of the United States, under section 639, third paragraph Revised Statutes of the United States, page 113, the original of which is the act of 1867, known as the “Local Prejudice Act.” This petition states fully and in detail all that is requisite for the removal; and refers-to the precise law under which it is claimed. It states, also, that petitioner has filed his affidavit, as required by that law; and that he “ offers herewith his bond executed by himself and H. R. Morrison, of Madison parish, Louisiana, surety, in the penal sum of $250, conditioned as by said act of Congress required.”

The affidavit filed with the petition states : “ That I have reason to believe and do believe that from local prejudices and local influence I will not be able to obtain justice in said State court.”

This affidavit was subscribed and sworn to by Tunstall before C. D. Greene, Jr., styling himself “Commissioner for Louisiana, at St. Louis, Missouri;” and to it a seal is affixed.

Defendant excepted on several grounds :

First — That no bond was filed with the petition.

Second — That no proper affidavit has been made, the alleged or pretended commissioner of deeds having no authority to administer oaths in such cases, “ and the pretended affidavit not being authenticated by seal purporting to be a seal of a commissioner for Louisiana; that said pretended affidavit does not set forth the citizenship of plaintiff; and that there are other defects and irregularities apparent on the face of the papers.”

Another petition for removal was filed, with tender of a bond, with Morrison as surety in the penal sum of $500. The affidavit was made by one of the attorneys of plaintiff in the suit.

Defendant again excepted, on the grounds :

1. That the former application had not been ruled upon or in any manner disposed of.

2. That of the two bonds filed on the same day ope is insufficient in amount and the other is not signed by plaintiff.

3. That the affidavit does not show, nor does it appear aliunde, that plaintiff is a citizen of a State other than this.

4. That the affidavit is not made by plaintiff, but by his attorney, and does not comply with the law in such cases made and provided.

5. That this is not and does not purport to be a suit between a citizen of the State in which it is brought and a citizen of another State, but is a suit between an individual on the one part and a civil corporation on the other.

The extracts'from the minutes show that the “exception” to the petition for removal was taken up, tried, taken under advisement, overruled, and the removal ordered as prayed for; but there is nothing to show whether the court passed upon the first set of exceptions, or the second, or both. The order of removal recites that the plaintiff, War-rick Tunstall, filed his petition, and having verified it by oath, and furnished bond in pursuance of the act of Congress, etc., Rev. Stats., etc., section 639, subdivision three, it is ordered, etc.

When an application for removal is made the State court must determine whether the applicant has brought himself within the terms and requirements of the act under which he claims the right, or at least as we intimated in Goodrich vs. Hunton, 29 An. 372, within the provisions of some act of Congress authorizing the removal. We do not think the State court should permit a fraud to be practiced, or its jurisdiction to be divested, by the false allegation of a material fact, such, for instance, as the citizenship of the parties, respectively; and, therefore, we think the party against whom the removal is asked for may put at issue in some form such allegation of fact. We do not think, however, that it is proper to allow the right of removal to be impaired by pleas and exceptions which are not simply denials of material allegations of fact, or which go beyond the bringing to the notice of the court the specific question of the sufficiency of the application, as a matter of law apparent on the face of the papers.

The petition of plaintiff sets out the amount of his demand and the citizenship of himself and of the defendant distinctly and sufficiently to have given jurisdiction to the circuit court originally. The petition for removal contains all the allegations that would be required under the act of March 3,1875, except that it does not appear that it was filed before or at the term at which the cause could be first tried, as required by section three of that act. As the plea of prescription and exception of no cause of action were filed at the May term, and the petition for removal at the November term, the plaintiff probably preferred to assert his right under the local prejudice act, because of the apprehension that it was too late to apply under the act of 1875. '

The act of 1867, the law under which the removal is asked for in this case, does not require the applicant to swear to his citizenship. It requires him to make and file in the State court, at any time before the trial or final hearing of the suit, an affidavit stating “that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court.”

Where the proceedings show that the suit is between a citizen of the State in which it is brought and a citizen of another State, and that the amount in controversy exceeds the sum of $500, exclusive of costs, the right of removal, at any time before the trial or final hearing, is absolute if the party entitled, the citizen of the State other than than that in which the suit is brought, will make and file the affidavit prescribed by the act; and when this application is made, and sufficient surety offered, as required, the State court is divested of jurisdiction, and must proceed no further in the.cause.

We think this affidavit should be made by the applicant, because, although the attorney might have reason to believe and might believe that his client, from prejudice and local influence, of which the attorney might be even better informed than his client, could not obtain justice in the State court, he could not know what impression had been made upon the mind of his client, nor what his client really believed. In this case the attorney swears that he has reason to believe and does believe, etc.; but he has not undertaken to swear to the belief of his client. We are not prepared to say that, under no circumstances, this affidavit could be made by an attorney, but the letter of the law requires the affidavit to state that the applicant has reason to believe and does believe, and we think the spirit of the law requires that it shall be made by the applicant in person.

The exception as to the citizenship of the defendant is without legal warrant or foundation. The settled jurisprudence of the Supreme Court of the United States is that a corporation “ for the purposes of Federal jurisdiction, is regarded as if it were a citizen of the State in which it was created; and no averment or proof as to the citizenship of its members elsewhere will be permitted. There is a presumption of law which is conclusive.” Louisville R. R. Co. vs. Letson, 2 How. 497; O. and M. R. R. Co. vs. Wheeler, 1 Black, 286; Insurance Co. vs. Francis, 11 Wallace, 210; R. R. Co. vs. Harris, 12 Wallace, 82; Sewing Machine case, 18 Wallace, 553; in which all the parties were corporations; and they were held, for purposes of Federal jurisdiction, to be citizens of the States, respectively, in which they were created.

In all these cases the corporations might have been composed in part of persons who were not citizens of the States, respectively, in which they were created, but the political corporation, Madison parish, is composed entirely of citizens, residents of the parish: and the reasoning applicable to trading and manufacturing corporations, with respect to citizenship and Federal jurisdiction, applies with so much the more force to this corporation.

In the celebrated Topeka ease, 20 Wallace, 755, the plaintiff was a corporation created in Ohio, and defendant was a municipal corporation in Kansas. It did not occur to the learned counsel, or to the Supreme Court of the United States, that the plaintiff, the Loan Association, was not a citizen of the State of Ohio, nor that the defendant, the city of Topeka, was not a citizen of the State , of Kansas, within the meaning and intendment of the Constitution and laws of the United States, for the purposes of Federal jurisdiction.

There is nothing in the cases of the Phcenix Insurance Company vs. Pechau, and Amory vs. Amory, recently decided by the Supreme Court of the United States, relied on by defendant, in conflict with this established jurisprudence. Pechau sued the Phoenix Insurance Company, in one of the courts of the State of New York. There was nothing in the pleadings to indicate the citizenship of plaintiffs. The Insurance Company filed a petition for removal, under the judiciary act of 1789. The company was a Connecticut corporation, and there was no doubt about its citizenship. The suit was commenced on June 1, and'the petition for removal was filed June 11. It stated that plaintiff is a citizen of the State of New York, but it did not state that he was a citizen of that State at the time of the commencement of the suit. The court held that the act of 1789 requires the citizenship which authorizes the removal to exist at the time of the commencement of the suit; and an affidavit or proof of citizenship that ’did not relate to that time would not suffice.

In Amory vs. Amory, it seems the plaintiffs were executors under appointment in the State of New York. They brought suit in their official capacity against a citizen of New Jersey. He filed a petition for removal under the act of 1867, on the ground that plaintiffs, “ as executors, are citizens of the State of New York.” The court held that it is the personal citizenship, not the “official” citizenship, if there could be such a citizenship, which authorizes the removal, and for all that appeared the executors, although appointed in the State of New York, might have been citizens^of New Jersey, as was the defendant.

It will be observed that the act of Congress does not use the word “bond.” It requires that the applicant for removal shall, at the time of filing his petition, “ offer in said State court good and sufficient surety,” etc.; and it is the duty of the court to accept not a “bond,” but “the surety.” The surety must bind himself in writing: the bond is the most convenient form of writing for that purpose; and hence it is in general use in judicial suretyship.

In his petition for removal plaintiff offered a bond, in the penal sum of $250, conditioned as required by law, with a surety whom he designated by his name and residence; and the surety, on that day; annexed to the bond his affidavit of his sufficiency. The bond was ample in amount; and there was no occasion for actually filing it until the offered “surety” had been accepted by the court.

The earnestness manifested by counsel for defendant in a printed argument of eleven pages has, seemingly, imposed upon us the necessity of expressing our views on.matters which we think too well settled to admit of doubt or question now; and we proceed to the remaining objections, which depend upon the laws of our own State.

As we have seen, the affidavit of plaintiff was sworn to and subscribed by him, at St. Louis, before a Louisiana commissioner. All the requisites for removal sufficiently appear of record, by the distinct allegations of the original petition, except the cause of removal, the prejudice and local influence, which the act requires to be sworn to, and which is embodied in the petition and affidavit, in the words of the act. The objections to this affidavit are two-fold:

First — That the commissioner had no authority to administer the oath.

Second — That the affidavit is not authenticated by seal purporting to be a seal of a Louisiana commissioner.

First — The act of 1855, p. 44, re-enacted inBevised Statutes of 1870, p. 117, authorizes the commissioners appointed by the Governor to take ■ acknowledgments-and proof of deeds, etc., “ or other writings, to be used or proved in this State, before any court or public officer, and to administer an oath or affirmation for like purposes to any person desirous to make the same.” Sections 597, 608.

We think this language is broad enough to confer power to administer an oath, in verification of any writing or affidavit to be used or proved before any court of this State, in any civil suit or proceeding.

Second — The affidavit shows on its. face that the commissioner styled himself, and professed to act in the capacity of “ commissioner for Louisiana, at St. Louis, Missouri;” and it is authenticated by his signature and by a seal. Our attention has not been called to any special defect in the seal itself; and it is not denied that Greene was a commissioner for Louisiana, at St. Louis, Missouri, as he professed to be and signed himself, nor that the seal was affixed by him. The specific objection is that the affidavit is not authenticated by seal purporting to be a seal of a Louisiana commissioner. The seal could not have been affixed by any other person without forgery; and we must assume that it was affixed by him, because we can not presume that a crime has been committed. If it was affixed by him, it must have been his official seal as commissioner, because he had no occasion to use any other; and no other seal would have authenticated his official signature in the capacity in which he professed to act. The affidavit bears a seal; and that seal does not purport to be any other than that of the commissioner who administered the oath.

A facsimile of the seal is hardly to be expected of an ordinary penman; and, as is usual, a scrawl with the word “seal” written in it, supplies the place of the seal itself in the transcript. If that had been the seal used by the commissioner, that specific objection would have been made either in the pleadings or in the argument. In their printed argument counsel for defendant say, referring to the first petition for removal: “A sort of affidavit was annexed, but no bond was filed.” The affidavit contains all that the act of Congress requires; and we can not undertake to reverse the judgment of the district judge, who had the original impression of the seal before him, without having that impression or an accurate description of it before us. If the seal itself was not such as the law requires, the defect should have been specifically pointed out and brought to our notice; and the appellant should have exhibited to us either the original impression affixed to the affidavit, or a facsimile, or a correct description of it, so that we might have ascertained for ourselves the force of the objection. No such specific defect having been pointed out as indicated, we tiiust hold that the authentication is sufficient.

The first petition and bond, and the affidavit made by plaintiff at St. Louis, in our judgment, made it the duty of the district judge to order the removal, and to proceed no further in the cause. The second petition, bond, and affidavit made by the attorney were not necessary, nor did they constitute an abandonment of the first application for removal. We incline to the opinion that the attorney can not make the requisite affidavit where, as in this case, no circumstance is shown which prevented the making of it by the applicant himself; but it is not necessary to pass upon this affidavit, because that made by plaintiff at St. Louis suffices.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    No. 5400.
    Lewis Burton and Wife vs. O. Brugier and Sheriff.
    Where the succession of a deceased husband, which is wholly composed of his half of the community property, the other half of which belongs to his surviving widow, is entirely free from debts, or only owes such trifling debts as she offers to pay, the appointment of an administrator of his succession is unnecessary, and illegal. The surviving widow has the right to take possession of the whole property and exclusively administer it, as the owner of one half of it, and as the usufructuary of the other half.
    The Probate Court has no authority to order a sale of the surviving wife’s half of community property at the instance of an administrator of the husband’s succession, illegally appointed by that court, in order to pay debts of the succession ' wrongfully created by tho administrator.
    An order of court to sell the property of the husband’s succession to pay its court costs and law charges, does not authorize the sheriff to sell the widow’s half of the property.
    A sheriff, who without warrant of law, or order of court, ejects the rightful possessor from property, and substitutes a wrongful possessor, is liable jointly with the wrongful possessor for whatever damages the ejectment caused.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J. Trial by jury.
    O. N. Ogden and Ogden & Hill for plaintiffs and appellees.

      James and Jos. Brewer and Alcée J. Ker for O. Brugier, defendant.

      Hornor & Benedict and E. Evariste Moïse for sheriff, appellant.
   The opinion of the court -on the original hearing was delivered by Manning, C. J., and on the rehearing by Spencer, J.

Manning, C. J.

This suit is for five thousand dollars as damages for the forcible dispossession of the plaintiffs from their dwelling, and the injury to and partial destruction of their furniture and other movables. The petition alleges that they were in the peaceable possession of several lots of ground in an outlying part of this Oity, and of the buildings erected thereon, when on May 10,1873, the sheriff’s deputies< and Octave Brugier entered their dwelling with violence, ejected both of them from it, removed their furniture and other effects in the street, broke or destroyed portions of them, occasioned the loss of their money and jewelry, and that Brugier has ever since kept possession of the premises. Judgment was prayed against hina and the sheriff jointly.

The defence of Brugier is that he purchased the property at a judicial sale, and that the acts complained of were neither participated in nor authorized by Mm, but that the sheriff was bound to put him in possession of the property purchased, which was done on that day. The sheriff pleads that whatever was done was merely in the performance of his official duty, and in obedience to an order of court, and that Brugier is bound to hold him harmless, whom he calls in warranty.

A jury rendered a verdict awarding two thousand dollars damages, and the defendants appeal.

Mrs. Burton was formerly the wife of Peter H. Oldis, and at his death in August 1870, remained in possession of the community property, which consisted of the lots’ and dwelling already mentioned, the furniture, and some other movables. Neither of the spouses, nor the community, owed any debts. The widow paid the expenses of her husband’s last illness, and of his burial. They were childless, and the heirs of the husband were a surviving brother and the children of a deceased brother. The widow owned one half of the property, the whole of it being of the community of acquets, and she was the usufructuary of the other half.

Two weeks after the 'death of Oldis, his surviving brother applied for and obtained letters of administration upon his estate, and the property was appraised at twenty-one hundred and sixty-eight dollars, of which two thousand dollars was the appraisement of the lots and buildings. Eive weeks thereafter, the administrator represented to the court that it was necessary to sell the movable and immovable property of the deceased to pay the funeral and law charges, and the order of sale was made. On 10th. of October of same year, the widow applied for a hearing, and at her instance the order was rescinded, and on the 14th. she shewed for cause why the property should not be sold, that there were no debts of the deceased or of his succession, one only excepted, and that was due herself for paraphernal funds used by her husband — that there was no legal cause for burthening her and the sue-cession with the costs of an administration' — and after declaring her acceptance of the community pure and simple, prayed that, if the court considered there were any legitimate claims against the succession, that she be allowed to pay them, which she was ready and willing to do.

Confronted by this answer, the trial of the rule to 'shew cause why the property should not be sold was postponed indefinitely by consent of counsel of the administrator. This was in 1870.

On the 8th. of February 1871, the administrator presents to the court what he calls the final account of his administration, and prays publication of the notice of its filing. He does not pray for its homologation. Upon one side of this so-called account is the sum total of the inventory. Upon the other is the sum paid by the widow for the burial of her husband, and there stated to have been paid by her — eight dollars for priest and graveyard — and then follow the fees of clerk, sheriff, notary, appraiser, lawyer, and administrator. Nothing else appears on it.

On the twenty-fifth of same month, the court homologated the account, and in March the administrator, alleging that part of the funeral and all of the law charges on the account were due and owing, and there were no funds to pay them with, and that it was necessary that sufficient property should be sold to pay them, obtained an order that the widow should shew cause why she should not advance the funds as usufructuary that were needed to pay these charges, or in default of payment, why sufficient property should not be sold to pay them. This paper is filed in the same suit wherein already lay the widow’s prayer for permission to pay whatever charges the court thought were legitimate, filed the previous October. The widow made no appearance, and the rule was made absolute on 26th. of April. All this took place before our learned brother, who now presides over the Second Court, occupied that bench.

A writ of fieri facias issued on 2nd of May — an anomalous and extraordinary writ with which to sell the property of a succession-under the following instructions; — '“Meinert Oldis adm. asks lorfi. fa. vs. Johanna Oldis widow in community and usufructuary of Peter H. Oldis. Sheriff will seize six lots of ground specified in the inventory.” The sheriff did seize, and even recorded his seizure, and proceeded no further under it.

On the 25th. of May 1871, the administrator presented a second petition, praying the sale of the movables and so much of the immovables as were necessary to pay the charges on his account, and an order of sale was then made. Nothing appears, to have been done under it then. It slept nearly two years.

It would have been well for all parties if its repose had never been disturbed. The papers presented to the court by the administrator himself shewed on their face the truth of the widow’s allegation that there was no need of an administration. A solitary charge of eight dollars is all that could be pretended to be legitimate against the succession, and the widow had in the same judicial proceeding in which that charge is made, offered to pay it. She was the undoubted owner of one half of the property, the sale of which was prayed; and her usufruct of the residue had not terminated. She married her present husband a year after the date of the order.

In March 1873 the administrator applied for a new appraisement of the immovable property, which was accordingly made at one thousand dollars, and on 14th. of that month the sheriff advertised its sale under •the order of May 25th. 1871. No movables were advertised for sale. The return of the sheriff was not made until March 18,1874, in which he recites that he did advertise the sale of the movables for 27th. June 1871 on which day at five R. M. he went to the premises for the purpose of making the sale, and found the doors locked and no one there, and that subsequently, i. e. nearly two years thereafter, he advertised the realty for sale, and failing to obtain bidders, re-advertised it and on April 12,1873 adjudicated it to Arthur Brugier at a bid of three hundred dollars on twelve months credit, but that the purchaser paid cash. A ■deed of the sheriff, purporting to have been made on the day of sale, recites that the bid was made by Arthur for Octave Brugier, and the conveyance is to the latter.

On the 10th. of the following month, the deputies of the sheriff came to the plaintiff’s dwelling between five and six o’clock in the evening, accompanied by two policemen, and had all their furniture moved in the street. Arthur Brugier was present, and Octave was half a block off under a shed waiting the completion of the work. The plaintiffs were turned out of doors, and the keys delivered to Octave Brugier, who has retained them ever since. Burton and his wife remained in the street all night watching their furniture, and on the next morning rented a house, and moved their effects in it, where they have since remained.

It did not require the eloquent ardor of the youthful advocate who presented the ease for the plaintiffs to us in oral argument with such felicity of diction, to impress us profoundly with the injuries inflicted upon his clients. It will require an exhibition of abundant warrant of the defendants in law to protect them from liability for the acts which have entailed such serious consequences upon the plaintiffs.

It is said by the counsel for the sheriff that upon the husband’s death, it became necessary that the community should be liquidated by the probate court, and the residuum equally divided between the heirs of the husband and the surviving wife — that the wife could not prevent', this action of the court — that it was not only legal and proper, but it-was the duty of the administrator to cause the property to be sold in order that the rights of -the heirs might be liquidated.

This is true only of those successions where debts are to be paid.. The succession of Oldis owed no debts, nor did the community of acquets owe any. Upon his death, his heirs become eo instanii seized of his moiety of the community property, subject to the surviving wife’s-right of usufruct. There were no creditors to be represented by an administrator. There was no residuum to be ascertained, for there was nothing to be deducted from the mass of the succession. The-administrator, as such, instead of protecting the property from unjust claims, was creating and fostering them. The only ground upon which an administration could be legally demanded was that there were debts-to be paid. He finds none, hears of none — asks for an administration, and afterwards creates the debts, whose prior existence was essential tO' the legality of his own appointment.

The appointment of an administrator is not a matter of course. Our succession system differs from that of the common law in strongly marked contrasts. In that, the heir has nothing to do with the personalty. An administrator must be appointed. In ours, the heirs may take possession both of realty and personalty, and if of age, may divide both among themselves without the appointment of an administrator, or the intervention of the probate court. If there are creditors, they may require an inventory and security, and if the security be not furnished, they may have an administrator appointed. Succession of Dueloslange, 1 Annual, 181. Civil Code, art. 1005 new no. 1011. Story’s Suc. 3 Annual, 502.

When it is the succession of a deceased husband or wife, and the only property is community, and there are no creditors, the case is stronger. The surviving spouse has an absolute right to the possession of the property — of one half as owner, of the other as usufructuary— and an administrator can not be appointed. Pratt’s Succession, XI Annual, 201. 12 Annual, 457. In this last case it was held, that where no creditor is shewn to desire an administration, the widow offering to pay or assume the debts which are small, and the property is community, no administration will be allowed. In the present case the deceased owed nothing, and the widow had paid all the legitimate claims against his succession, unless the charge of eight dollars for “ priest and graveyard” may be excepted, and had offered to pay all others that the court should deem legitimate. It is urged that she should have answered the rule to shew cause why property should not be sold after the so-called account was filed. She had answered a rule of the same party, taken in the same case, to sell the same property for the same-purpose, and had put on record then and there her offer of payment and assumption of all the debts. The court was without authority to-order a sale upon such a record. Burns v. Van Loan, 29 Annual, 560.

Put the case in the most favorable light for the defendants. ' The-order directed the sale of the succession property of Oldis. It is true-the administration of the succession of a deceased husband involves-with it the administration of the community, and the administrator' may rightfully cause the community property to be sold for the purpose of paying the debts of the succession. Sue. of McLean, 12 Annual,. 222. But that is where there are debts. In this case nothing could; be sold under the order but Oldis’ half of the property. The widow was absolute owner of the other half, and her ownership was not-divested by the sale. She was ejected from her own property without, any effort on the part of the purchaser of the husband’s half to obtain a partition, and the very movables which were first amenable to the payment of the succession debts were removed from the premises-before the eyes of the purchaser by the officers who put him in possession. A feeble attempt is made to account for the failure to sell the-movables. The officers who could get possession of the movables on the evening of the 10th. of May, for the purpose of putting them in the-street, need not have offered the same violence to have obtained posses- - sion of them before when they were wanted, and the display of a tithe of their determination to do their duty then would have accomplished, their purposes.

Brugier urges in his defence that he had nothing to do with all this:. He tells his story with a naivete which deserves transcription. “ I was half a block from there. They sent for me but I would not go any nearer, because whenever I went hear there she (Mrs. Burton) commenced talking to me and crying out. * . * * I told him (his brother Arthur) to see the sheriff when it was about time to deliver the-house, so he went to see the’ sheriff. The sheriff told him the day before, ‘ to-morrow evening you will get it.’ Then the next day whem my brother came home he said to me, ‘ this evening you will get it.’ ” He-stood under a shed with his face turned to the house, and saw all that, was done. His cupidity mastered his sensibility. The spectacle of the-forlorn woman, sitting as it were within the shadow of her own roof, but-forbidden to enjoy its shelter through his instrumentality, did not prevent his receiving the key which fastened the door against her entrance, and he went to his home undisturbed by the knowledge that she was to pass the night, a weary watcher over the scanty furniture which, though, inexpensive, had been sufficient for her simple wants.

Much less provocation has unhappily in other instances been the. •cause of bloodshed. We may encourage the peaceable submission to outrage by shewing that the law vindicates the object of it, and punishes the perpetrator.

The j udgment of the lower court is affirmed.

On Application por Rehearing.

Spencer, J.

Oldis died in August, 1870, in community with his wife, the plaintiff. Neither Oldis nor the community owed a dollar at his death. All the property was community. Two weeks after the death of Oldis his brother was appointed administrator of his estate. A few weeks later he applied for an order to sell property to pay the funeral and law charges of the succession. The widow came into court on 'tenth October, 1870, and represented that she had accepted the community, and that there were no' debts, and no need of an administration, offering to pay any legitimate claim against the succession, of whose property she was usufructuary.

In February, 1871, the administrator filed his account which, upon its face, shows that there was not one cent of indebtedness against Oldis •or the community at his death. The widow had expressly accepted the community on tenth October, 1870. She thereby became the absolute ,and unqualified owner of one half of the property. There being no debts of the community, no" demands against it in favor of any body, the administration of the husband’s estate did not and could not embrace her half of the property. Her half of the property could not be sold to pay the funeral and law charges due by the estate of her deceased husband. They were not charges against the community. The order of the court of twenty-fifth May, 1871, directing the sale of “sufficient property of said succession” to pay.said funeral and law charges, can not, in law or fact, be construed as embracing the widow’s half of said property. If the sheriff undertook to sell her interest in said property under said order, he transcended its terms as well as the law. But it seems that he did, advertise the whole .of the property in question, and adjudicated it to the defendant, Brugier, on twelfth April, 1873. By his deed of same date, however, he sells “ all the rights and titles which the said succession had in or to the said property,” etc. At most the husband’s half of said property passed by said sale. ■

After making this deed, the next step was an order, of date May 10, 1873, from “ J. E. Dicks, deputy sheriff,” to “ Charles Moret, deputy sheriff,” instructing him “to eject the occupant of the premises sold in succession of Oldis, and place purchaser, Mr. O. Brugier, in full possession of the place; should it become necessary to break down doors, barriers, or any kind of obstacles to execute your writ, or this order, do so; and, if any one disturbs you, have them arrested,” etc.

We consider this a very high-handed and lawless proceeding on the part of the sheriff. In selling succession property under an order of sale the sheriff has no other or different powers than the administrator or any auctioneer would have in doing the same thing; he only acts in the capacity of auctioneer. The law never contemplated or authorized that a sheriff or administrator or auctioneer, in selling succession property should seize it, as is done under a writ of fieri facias. In fact, in this case the sheriff’s return shows that he did not pretend to have seized before making the sale. What right had he then, a month after he had made the sale and deed, to direct his deputies, without any order of court to that effect, to put the purchaser into possession by force of arms, “by breaking down doors,” etc.? A moment’s reflection would have convinced any body that such a proceeding is lawless. I am the owner of a house and lot in New Orleans which has been (perhaps unknown to me) inventoried as part of somebody’s succession. An order for its sale is obtained in a proceeding to which I am no party. It is advertised and sold without disturbing my possession. The sheriff or the administrator or the auctioneer, as the case may be, comes with his posse and ejects me from the premises ; and I wake up to find my property sold and myself and family turned out of doors„ without warning or hearing. Such is not* the law. The authorities referred to relative to the liabilities of sheriffs in execution of writs are-all well recognized and known, but they have no application to a case-like this, for neither the order of the court nor the law directed or permitted any such proceeding. As to Brugier, it is a full answer to him to-say that he did and could only acquire, if any thing, title to Oldis’s half,, which by no means justified his taking forcible possession of the whole property.

In the application for rehearing on the part of the sheriff it is stated that “ the sheriff, to whom the order of sale was directed, became functus officio before its execution.” We do not understand what the counsel mean by this statement. If they mean that Wm. P. Harper., the sheriff sued, -was functus officio, and therefore not liable for this lawless trespass, it is strange that he makes no such defense in his answer, which was filed twentieth June, 1873, a month after this suit was brought. He is the sheriff who signed the deed, and there is nothing to show that he was functus officio at the time his deputies invaded the plaintiff’s premises. In our.former opinion we affirmed a judgment condemning the defendants to pay damages as trespassers. We have carefully reviewed this record. That judgment meets our approval. The rehearing is refused.


author: Egan, J.

text:
    No. 6983.
    B. & A. Soule vs. Norwood, Administrator, et al.
    Sureties who have formally admitted that their principal is dead, and that his succession is insolvent, can not afterward set up a demand for a discussion.
    'The prescription, (of two years) of suits against a sheriff and his sureties for money collected by the sheriff and not accounted for, does not begin to run until the first demand for the money has been made on him by the plaintiff, and the sheriff thus nut in default for non-payment.
    I PPEAL from the Fifth Judicial District Court, parish of East FeliA ciana. Wedge, special judge.

      W. F. Kernan for plaintiffs and appellants.

      T>. O. Hardee for defendants.
   The opinion of the court was delivered by

Egan, J.

This suit is against the sureties of A. S. Norwood, late .sheriff of the parish of East Feliciana, to hold them liable for moneys •collected by him as such and not paid over to the judgment creditor. 'The defendants answered and pleaded the prescription of two years ■under article 3546 of the Revised Statutes of 1870 and the benefit of •discussion. We will dispose of the latter first by simply saying that the defendants admitted of record that Norwood is dead and his succession is hopelessly insolvent, and that proper demand has been made on his administrator and no payment made.

It is unnecessary for us to decide whether or not the prescription pleaded applies to moneys collected by sheriffs and not accounted for. Although the judgment on opposition whereby the plaintiff was decreed •entitled to 'the funds in the hands of the sheriff was rendered on the ■twenty-first of February, 1868, he was not in default for not paying them over until “ the first demand made” by the plaintiff for their payment. <C. P. 766. This was on the fifth of July, 1868. This suit was filed May 23, 1870, with service already accepted by the administrator of Norwood and Perkins, one of the sureties, while service was regularly made by •the sheriff upon Robins and Jackson, the other sureties, on the second •of June, 1870, all less than two years from the default of the sheriff. From that date only prescription began to run. See Fuqua, Adminis-fcrator, vs. Young & Knighter, 14 An. 216. See, also, 3 R. 297; 23 An. 299. Ho action lay against the sheriff until he was put in mora for non-payment of the moneys collected by him. Hence the general and perfectly correct principle announced by Justice Spofford as the organ of the court in Hardee vs. Dunn, 13 An. 361, that “prescription commences to run from the moment the right of action accrues,” is without application here. The obligations of the defendants are solidary. The judgment foelow was in their favor and against the plaintiff in the plea of prescription. It was erroneous, and is therefore avoided and reversed. And

It is now ordered, adjudged, and decreed that the plaintiff do have and recover from L. G. Perkins, Thomas W. Robins, and Jared R. Jackson, ■sureties upon the official bond of A. S. Norwood, sheriff, in solido, the sum of eight hundred and eighty-six dollars and ninety cents, with five per cent per annum interest thereon from July 5,1868, and that said defendants pay costs of both courts.


author: DeBlanc, J.

text:
    No. 6929.
    Ophelia G. Burbank, Tutrix, vs. William Harris.
    ”Wliere the former lessee of property is sued by his former lessor, for damages to the property alleged to have been caused by the fault of the defendant during the term of the lease, the defendant may contest the former lessor’s title to the property; and to recover in such a suit, the plaintiff must prove that he was the owner of the property.
    'Where in an action for damages on account of injury done to certain proporty, the decree of this court merely declares that tho defendant is responsible for certain damages, it does not amount to a judgment for the amount of those damages in favor of the plaintiff, who has neither alleged, nor proved that he was the owner of the injured property. In such case the defendant is entitled to allege, and to introduce any portinent evidence to prove the nature, and limitations of the plaintiff’s rights in the injured property; and in no event can he be held for a greater proportion of the damages than the nature and extent of the plaintiff’s rights in the property would eauitably entitle him to claim.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Bérault, judge ad hoc. Trial by jury.

      Fellowes & Mills for plaintiff.

      Breaux, Fenner & Hall and J. B. Augustin for defendant.

      Wm. Reed Mills for Samuel Burbank, tutor.
   The opinion of the court was delivered by

DeBlanc, J.

In March 1865, the Fashion plantation, then belonging to Richard Taylor, was — by the decree of a Federal court, condemned as forfeited to the United States, under an act of Congress approved on the seventeenth- of July 1862, and — on the twelfth of May 1865, sold under said decree and adjudicated to Daniel Christie for nine thousand dollars. That plantation measured over two thousand arpents of land, with a front on the Mississippi river: the buildings which were on the same at the date of said sale and up to the twenty-ninth of October 1872, had nearly all been erected prior to 1853, and — as many other estates located ■as this was, had been almost abandoned during the war.

On the tenth of October 1871 — for the promised sum of two thou••sand dollars which was to be paid on the first of October 1872, Samuel N. Burbank, as under tutor of the minor children of Ophelia G. Burbank, leased the Fashion plantation to William Harris — the defendant — • for the space of one year, commencing on the first of January and ending on the thirty-first of December 1872.

Harris’s rights, as a lessee, were limited by three clauses of the contract of the tenth o£ October 1871.

1. He was not to cut any wood or timber on said plantation, except, that required for his own use and the use of his employees, in cultivating said plantation.

2. S. N. Burbank could — during the lease — remove any and all the machinery there was on the place.

3. He had also reserved the right to rent or sell, to the N. O. Mobile and Texas Railroad Company, a portion of the land not exceeding ten acres.

Less these three reservations, the lessee was fully authorized to enjoy the rented premises, according to the use for which it was intended by the lease, and that was to cultivate rice.

On the twenty-ninth of October 1872, a portion of the buildings on the place so leased was destroyed by fire, and — on the twelfth of March-1873, plaintiff — as natural tutrix of her children — brought this suit to recover against Harris the sum of eight thousand dollars, on the-ground that it was through his illegal, improvident and careless acts that said buildings and the machinery therein contained had been destroyed and damaged.

On the first trial of this case in the lower court, judgment was rendered in favor of defendant, and — from that j udgment — plaintiff appealed..

The decision of the Supreme Court on the first appeal is in these words: “It is, therefore, ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that this case be remanded to be proceeded in according to law, and in accordance with the views herein expressed.” ,

What views are so referred to ? We transcribe, from the decision, those which we consider as manifestly linked to, inseparable from and. forming a part of the decree; they are expressed in the last paragraph of the opinion of the appellate court: “ The damages which we think Harris responsible for are the value of the cane-shed, the damage done to the sugar-house, the contents therein and the engine, and to any other'building, caused by the fire.”

On the second trial in the lower court, after the case had been remanded, a verdict for $500 was returned in favor of plaintiff. From the judgment based on said verdict plaintiffs have appealed and defendant has joined in the appeal.

This suit — as we have already said — was brought by Ophelia G~ Burbank, in no other capacity but as natural tutrix of her minor children, and — as such — what does she claim ?

1, Damages alleged to have been suffered by the destruction of buildings. and machinery attached to the Eashiou plantation, leased to Harris — and neither in: the pleadings, nor in the act of lease, have we found oven the naked averment that said plantation belongs to the children in whose name this suit was brought.

2. Damages for the loss of scales, wagons, carts and lumber'belonging to petitioner — that is to Ophelia G-. Burbank, and which — it is charged — was illegally taken, carried away and used by Harris.

Ophelia Burbank died after the institution of this suit, which is now prosecuted by Samuel N. Burbank, as tutor of the children of said deceased.

As lessee, Harris has complied with at least two of the obligations of his contract: he has paid the price agreed upon and returned the plantation. As lessee, and as concerns any conventional obligation between him and plaintiff, he is no longer liable. Is he otherwise liable ? If so, to whom and for what amount ? He is liable; but, when in March 1873, this action was filed against him, he had ceased to be a lessee. Under these circumstances, can plaintiff successfully invoke against him the indisputable doctrine that a tenant can not contest his lessor’s title, that the former’s possession is that of the latter? We believe not.

Were Harris sued for the rent or possession of the place, he would not be allowed to avoid the payment of the rent, or refuse delivery of the place, on the ground that those from whom he leased are not the owners of the leased property — and why? Because — as is specially provided in our Code and as was so often decided by this court, the lessee holds from and for the lessor, and because ownership is not essential to the validity of a lease, for one who lets out the property of another, warrants its enjoyment against the claim of the owner, and whilst the lessee retains the undisturbed possession of the premises, he can not enquire into his lessor’s title.

Rev. C. C. 2682. 17 A. 153.

It is different, however, when — after the expiration of the lease, when after the relation of lessee and lessor has ceased to exist, the party who once was .a lessor, claims from one who once was a lessee, the value of property destroyed or injured during the lease, through the alleged negligence and carelessness of the former lessee. In such a case, against that former lessee, as against a mere trespasser, the claimant — in order to recover — must show a prima facie title.

19 L. R. 397. 5 R. R. 510.

Here, as they did in the lower court, plaintiffs contend that the judgment heretofore rendered by this court is final as to defendant’s liability for damages, and that this case was remanded to the district court for the exclusive purpose of ascertaining the amount of the incurred, damages. The judgment referred to does declare that defendant is liable for the destruction of the buildings and their contents, and for the injury done to the machinery. After that declaration by the court, it pronounced the reversal of the judgment appealed from, and remanded the case to be tried according to law and in accordance with the views expressed in its opinion. Every line, every word of a decree has a legal value, and the decree already mentioned, when compared and applied to the declaration that defendant is liable for the damages sustained, closes the door, as to any enquiry relating to the already determined liability.

“II ne faut pas contendré la certitude de l’objet qui fait, le sujet de la condamnation avec sa liquiditó. Pour ne pas étre liquide, la chose peut n’en etre pas moins certaine, et il suffit — pour que le jugement fasse en force de chose jugée, qu’elle soit susceptible d’une liquidation ultérieure: Tel estle jugement qui, sans encontenir la liquidation — condamne a des restitutions ou a des dommages et intérets qui doivent étre plus tard liquides.”

Larombiére, vol. 5, p. 214.

“Mais le jugement passe en force de chose jugée, si l’objet de la condamnation est expliqué et determinó avec certitude par quelque act auquel le dópositif se refere. II y a done chose jugée, lorsque le jugement comíanme a payer les causes de la demande, en ce qui a óté demandé par l’acte introductif d’instance, bien qu’il n’exprime point precisement la montant de la condamnation.”

Larombiére, vol. 5, p. 214.

Defendant is not condemned, by the decree of this court, to pay a specified amount of damages, but that he is liable to some one for damages which resulted from the destruction of buildings on the Fashion plantation, is a fact passed upon and determined by the aforesaid decree, and that judicially ascertained and published fact constitutes a judicial verity which can no longer be contested by any of the parties to this litigation. Of itself, that fact did not justify a verdict in favor of plaintiffs, as it is not alleged, nor does it appear that they are the owners of the property destroyed by fire on the twenty-ninth of October 1872.

Though in neither the pleadings nor the lease, plaintiffs are alleged to- be, or recognized as the owners of said property, it may be that, on the first trial, they have established that fact, to the satisfaction of the jury and of the-district and appellate court, but this, they may have thought useless to do and did not do on the second trial, and we can not supply both the omitted averment and the omitted proof of plaintiff’s title.

Defendant attempted to show the character and extent of any title which plaintiffs may have acquired to the Fashion plantation, and — for that purpose — offered to introduce the pleadings and judgment of condemnation of said plantation to the United States. The evidence so tendered was excluded by the court. In this, there was error — for, of the plantation thus condemned, all that could be acquired or sold, was Bichard Taylor’s right in and to the same, and the right so acquired is a limited one, which terminates with the life of the party, for whose acts the property was seized. 9 Wallace 350. 18 Wallace 160.

If — as seems probable — the Fashion plantation has passed to plaintiffs, they hold it subject to the rights which existed thereon at the date of its condemnation, unless those rights have been relinquished or lost —18 Wallace 156 — and subject also to the now suspended title of the legal representatives of Bichard Taylor to said plantation. It is evident, then, that the damages sustained must be measured — not to any absolute title, not to any unconditional ownership, but to the uncertain duration of plaintiff’s possession.

This is a difficult task, and — with the too incomplete information imparted by the record — it is a task which can not now be accomplished. To undertake and perform it, jurors and judges shall have to be guided by the light of statistics and presumptions, to learn what is the General’s age, his health, his constitution, his habits, his infirmities, count the days he has lived, and with the assistance of those who have calculated the chances of life and death, guess how near he may be from the inevitable grave. This done, to then determine and fix — by the presumed proportion of what remains of that life, the presumed proportions of plaintiff’s possession, and the benefit which — in that uncertain space of time, they might have realized from the possession of which they have been deprived. To reach any reasonable conclusion, jurors and judge will have to also consider whether it is probable that those who possess under such a title, would have been disposed to make to the destroyed buildings and before their destruction, the repairs which they needed, and 'how long — without those repairs — the buildings , would have been in .a condition to be used with advantage by any one, proprietor or tenant.

» In the interest of the parties, we are compelled to remand this cause, with instructions to the lower court to admit the evidence of the origin and character of the title which may be held by the plaintiff, and —besides—any evidence tending to establish the nature, duration and value of the possession of the destroyed property.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is avoided and reversed — the verdict on which it is based annulled and set aside, and this case remanded to be proceeded in according to law and the views expressed in our opinion: the costs of the appeal to be paid by plaintiffs.


text:
    No. 6974.
    Mrs. Alpha P. Nugent vs. Mrs. Dora L. Stark et al.
    Before a mortgage created by an alleged agent can bo enforced,, it must be proved' that the alleged agent was specially authorized to make the mortgage.
    A wile, although separate in property, can not be held on her mortgage note, when the holder oí the note fails to show that she was authorized by the judge to make the mortgage, and fails to show that her pretended agent, who made the mortgage was empowered by her to do it, and also fails to show that the consideration oí the note inured to her separate benefit.
    APPEAL from the Seventh. Judicial District Court, parish of Avoyelles-Eoisi, J.

      Oliver O. Provosty for plaintiff and appellee.

      Irion & Thorpe, Thos. Overton, and C. E. Frith for defendant and appellant.
   The opinion of the court was delivered by ■

DeBlanc, J.

On the twenty-seventh of March 1874, T. O. Stark, the husband of defendant, appeared before Theodore G-uyol, a notary public of the city of New Orleans, and then and there representing himself as the agent of his wife, by virtue — as he alleged — of a special power of attorney, annexed — as declared by said notary — to an act passed on that day before that officer, acknowledged that bis wife was indebted unto Richard Nugent in the sum of- ten thousand dollars, amount of a loan which he asserted he had obtained and, received for her, and to evidence.which his wife had — on the twenty-first of March 1874, subscribed four notes to her own order and endorsed by her, one for fifteen hundred, one for two thousand and two for three thousand two hundred and fifty dollars.

To secure the payment of the notes thus subscribed by defendant and delivered to Richard Nugent by her pretended agent, the latter gave a mortgage on the Dora plantation, which — it is admitted — belongs to his wife, who — by marriage contract — is separated in property from him! That mortgage was given in favor of said Nugent, or any-holder of any of the notes delivered to him.

This suit is brought on one of said notes, transferred to plaintiff after its maturity. Two petitions were filed by her counsel: in the first, she proceeds on exclusively the note and the mortgage — in the second, she charges that the note sued upon was given for defendant’s benefit, and that she was duly authorized by the judge to give it. In her answer, defendant denies every'allegation of both the original and supplemental petition, avers the firm of Nugent & Co. acted as her factor, and that sbe consigned to it more produce than sufficient to pay all she ever owed it, or Richard Nugent.

The act of mortgage from defendant’s husband to Richard Nugent, read as it is written, does not appear to have been passed to secure advances to be thereafter made, but to secure an actual, an acknowledged claim, a loan obtained and received. The facts that such a loan was obtained and received, and that the note sued on was subscribed for money which enured to her benefit, are expressly denied by defendant, and — under no rule of law or jurisprudence — can we construe as a .judicial admission of those denied facts, the vague and indefinite averment that she has consigned to her factor more produce than sufficient to pay — not the note, the consideration of which she impugns and assails, but — in her own words — “ all she ever owed that factor.”

To the enforcement of the-mortgage granted on the twenty-seventh of March 1874, by defendant’s husband and on her separate property, there are not less than three fatal objections:

1. It was not shown that Mrs. Stark empowered her husband to contract any loan, acknowledge any debt, incumber or hypothecate her plantation. The only reference to that disputed agency is found in the testimony of Mr. Provosty, who said: “that, to the best of his belief, the power of attorney declared to be annexed to the act, was not with the copy of the act sent to Mr. Henderson Taylor, plaintiff’s leading-counsel in this case, who — owing to infirmities of age, and sickness was unable to be present at the trial.” That declaration, howsoever true it may be, and we. do consider it as true, does not establish even the existence, much less the extent of an indispensable power, one without which the mortgage is invalid and lifeless. B. C. C. 2997.

2. In order to more effectually bind the wife — at least we so presume — her pretended agent was made to acknowledge that the note was given and the mortgage granted for an indebtedness which — at the date of the act — had already been incurred, for a loan which — then —had already been received — and, on the trial, plaintiff attempted to establish the consideration of the note, the validity of the mortgage, by the production of accounts, on which the first item was charged on the twentieth of May 1874, more than fifty days after the mortgage was granted, and the last item, in May 1875.

8. In the act of the twenty-seventh of March, the husband of defendant declared that she was authorized by the parish judge to grant the mortgage, and the notary that the certificate to that effect is attached to the act passed before him. In that instance, the parish judge was incompetent to examine and authorize the wife, and — had it been otherwise — his certificate is not in evidence, and — as a witness — he could not recollect when she was thus authorized, but only remembered that it was during the term of his office as parish judge of Avoyelles, -without mentioning when he was commissioned and acted in that capacity. — B. C. C. 127.

The record contains the written approval of Mrs. Stark and her husband of the application of the proceeds of a crop, as credited in three accounts rendered, one in December 1874; the others, in January and February 1876. It may be that Mrs. Stark is liable for the balances charged in these accounts against the Dora plantation, but plaintiff’s action against her is based on exclusively the note of the twenty-first, the mortgage of the twenty-seventh of March 1874, the consideration and validity of which — if they did or do exist — have not only not been established, but successfully contested.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is avoided and reversed, and plaintiffs action on exclusively the aforesaid note and mortgage rejected at her costs in both courts.

It is further ordered that any right or action growing out of the several accounts herein referred to, is specially reserved.


text:
    No. 6951.
    Wm. H. Boullt vs. Jerome Sarpy et al.
    The signor oí a promissory note which read? that" we promise in solido,” etc., will be held bound as a solidary debtor on such note, unless he proves that he has been legally released from his obligation.
    A verbal acknowledgment of, and promise to pay a promissory note, made by one of its solidary makers before its proscription, will interrupt prescription as to all of the makers.
    APPEAL from Seventeenth Judicial District Court, parish of Natchitoches. Pierson, J.

      W. H. Jack for plaintiff and appellant.

      Wm. M. Levy and Chaplin, Cunningham & Chaplin for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

On the 4th of December, 1869, a lot of ground and the improvements thereon belonging to the succession of Mrs. Desiree Hertzog, were adjudicated to William EL Boullt for $1610, payable one half cash, the balance in twelve months from the date of the sale. For that balance, the adjudicatee furnished his note to the order of the defendants, as syndics of the creditors of the aforesaid succession. That note is signed by Wm. H. & D. EL Boullt in solido, and its payment secured by the vendor’s mortgage and privilege.

On the 11th of October, 1877, the syndics obtained an order from the judge of the 17th District, commanding the seizure and the sale of the property subject to the vendor’s mortgage and privilege, to satisfy the balance due on the price of said property. The execution of that order was enjoined by Wm. H. Boullt, on the ground that the note on which it is based was extinguished by the prescription of four years.

Defendant’s answer to the injunction is that the prescription invoked was interrupted by repeated acknowledgments of the said Wm. H. & D. H. Boullt. On this issue, the case was tried, the parties’ evidence heard and plaintiff’s injunction dissolved. He appealed from the decree of the district court, and contends that the evidence adduced to establish the interruption of prescription is inconclusive.

Wm. M. Levy, defendant’s attorney, testified that, “between the 1st of November 1872, and the commencement of 1873, he had a conversation with D. H. Boullt, who was then the tax collector for the parish of Natchitoches, and that — during the conversation referred to — said Boullt told him he would pay the note after his settlement with the State. That Wm. H. Boullt came to his house to see him in regard to an adjustment of the individual accounts between him — the said Levy — and D. H. Boullt, and stated that he and his father desired him to assume, in the settlement to be had between them, the payment of said note, which they acknowledged to be due. The note was not shown to D. H. & Wm. H. Boullt, but its amount and character were fully stated and discussed, and they knew what note the witness referred to, as he never held but one note from them.”

Wm. H. Boullt was sworn in his own behalf and positively denied that he was ever spoken to by Col. Levy, or that he ever spoke to him in regard to said note, except within two or three months from the trial of this case. As to D. H. Boullt, he did not remember having had any particular conversation with Col. Levy respecting that note — and was very positive that he did not acknowledge or promise to pay it, after its maturity.

Plaintiff’s counsel seems to doubt that D. H. Boullt can — in a legal sense — be considered a solidary obligor. That doubt ought to have been dispelled by the form and terms of the obligation: “ Twelve months after date, we promise to pay in solido to the order of the syndics, etc.” But — says plaintiff’s counsel — no surety was required by the terms of the sale, and he signed the note inadvisedly.

He does not pretend that he was induced to sign the note through error, fraud, violence or threats — but informed, as he must have been, by the advertisement of the sale, and the auctioneer’s proclamation of its conditions, that no security was required, he — nevertheless—signed the note as such, and as signatures to an obligation are not mere ornaments, he can not justly expect to be relieved from the effects of his own act, on the ground “ that he does not know now why he signed that note.”

When he acknowledged and promised to pay the note, his acknowledgment and promise did interrupt the prescription both as to him and as to William H. Boullt, even admitting that the latter’s proposition to Col. Levy does not amount to and constitute an acknowledgment.

To defeat the effects of those acknowledgments, plaintiff relies on the opinions of this court reported in the 9th and 11th A., and delivered — the first, in the case of Lackey vs. Macmurdo, the other in the case of Pearson & Hume vs. John E. Harper, executor, etc. In the first, the court said: “As, therefore, the alleged interruption practically affects the rights and obligations of the parties to a contract, it is reasonable to require, then, the proof of an assent to such a change on the part of the debtor, should be clear and unequivocal. It is not indeed necessary that the assent should be express; it may be inferred; but the circumstances should be such as to justify a reasonable presumption that the debtor was willing so to change his position for the creditor’s benefit.

9th A. 15.

In the case of Pearson & Hume vs. John E. Harper, executor, the evidence was that, when the prescription had already accrued, an offer was made by the debtor to the creditor, to give him in payment on discharge of his claims, a tract of land, provided the creditor would give him one hundred dollars to boot. This offer was declined, and the court properly decided that there had been no interruption of the prescription — much less did that conditional and rejected offer amount to a renunciation to the previously acquired prescription.

11 A. 184,

In this case and according to the sworn declaration of Col. Levy, there were really two acknowledgments of, and one promise to pay the note sued upon, and those acknowledgments and that promise were-made before prescription had accrued. That they did interrupt the prescription, and that such an interruption can be established by parol evidence, there is no longer .any doubt, either under the law or the jurisprudence.

Act of 1858, sec. 4; R. C. C. 2278, No. 4; 21 A. 179 — 190—748. 28 A. 449 — 607.

The testimony is conflicting,-but the district judge, who saw, heard, and — it may be — knew the witnesses, concluded that the invoked prescription was interrupted, and — considering how said witnesses’ interest might be affected by the result of this litigation, we believe and conclude as did the district judge.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


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    No. 7042.
    The State, and Town of Plaquemines, vs. Chas. Ruff.
    Thi Legislature may constitutionally confer on tiro officers of a municipal corporation the right to take judicial cognizance of cases arising under the police regulations and laws of the corporation.
    An act of the Legislature authorizing a municipal corporation to sue for and recover, before its mayor, a fine for the breach of one of its police regulations, does not authorize the arrest and criminal prosecution of one who commits such a breach.
    A PPEAL from the Mayor’s Court, Town of Plaquemines. Caneza, J.

      Charles O. Lauve and George Wailes for defendant and appellant.

      JS. B. Talbot for plaintiff.
   The opinion of the court was delivered by

DeBlanc, J.

In conformity with the regularly expressed wishes of a majority of the legal voters of the town of Plaquemine, its council passed an ordinance commanding the closing — on Sundays and within the limits of said town — of all places of business and amusement.

In disregard of that ordinance, and after its promulgation, the defendant did — on a Sunday — open his drinking saloon and retail liquor within the aforesaid limits. An affidavit was made asserting that fact and a warrant issued ordering his arrest. He was arrested, brought before the mayor, and — to the proceedings filed and partly executed against him, he excepted on the grounds:

1. That the Legislature could not — without violating the seventy-third article of the constitution of 1868, delegate any judicial power to the mayor of Plaquemine.

2. That, under the circumstances, if any action can or could be brought against him, it is exclusively a civil action.

Act number 30 of the Legislature of 1875 provides “ that the mayor and selectmen of the town of. Plaquemine shall have power to make, ordain and impose such fines or penalties for a breach of their by-laws, rules and ordinances, as they shall think proper, but not to exceed the sum of fifty dollars for a single offence, to be sued for and recovered before the mayor.”

That delegation of power was fully authorized by the first part of article 94 of the Constitution, which enjoins that “no judicial powers —except as committing magistrates in criminal cases — shall be conferred on any officers other than those mentioned in this title, except such as may be necessary in towns and cities; and the judicial power of such officers shall not extend further than the cognizance of cases arising under the police regulation of towns and cities in the State.”

The law of 1875 is — however—as olear as the constitutional clause referred to, and directs that any fine so imposed shall be recovered, not by a criminal prosecution, but by suit. It does not appear that the question presented by defendant’s exception was raised in the case of the State vs. Thomas, in which this court said: ‘-'We have in the record the essential forms of proceeding for the recovery of the penalty, and may lay aside as useless the indictment, arraignment and trial.” Here, laying aside the affidavit and the'warrant, which can be considered but as the elements of a criminal prosecution, there remain none of those indispensable forms which constitute the foundation of a civil action.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, and plaintiffs prosecution dismissed at its costs in both courts.


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    No. 7035.
    Marie Perkins Evans and Husband vs. Payne & Harrison.
    A judgment reviving a judgment does not render valid that which is invalid, and does not cure radical nullities in the j udgment revived.
    An acceptance of service, and waiver of citation authorize a judgment of default to be taken before tho expiration of the ordinary ten days delay from the service of citation.
    When a parly has made no declaration of residence, as provided for in article forty-two of the Civil Code, the proof of fact and intention, as regards the question of domicile, is left to the cireumslanees of each case.
    Where a defendant res ides alternately in different parishes, without having made a declaration of residence, he must be cited where he appears to liavo his principal establishment or habitual residence. If his residence in each parish appears to be nearly of the same nature, he may be cited in either parish, as the plaintiff may elect.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Bouge, Mo Vea, J.

      W. C. Mower for plaintiffs and appellants.

      Herron, Bird & Beal for defendants.
   The opinion of the court was delivered by

Egan, J.

This suit is brought to annul and set aside a judgment obtained by the defendants against S. D. Linton, in the district court of East Baton Bouge, on the thirteenth of March, 1862, and also a judgment reviving the same, rendered March 25, 1872. This suit was filed in October, 1876, by the plaintiff, former wife and universal legatee and testamentary heir, as she describes herself, of Linton. The grounds of nullity of the original judgment set up are, that the court was without jurisdiction, Linton’s domicile being at the time in Bapides parish ; and, second, that he had no notice of the suit and no citation.

Those urged against the judgment of revival are, that the first judgment being a nullity that of. revival is also null and without effect; and, second, that it was rendered prematurely on default before the legal delay had expired from the date of service of citation.

We will dispose of the objections to the judgment of revival, except as they may be considered in the discussion of the original judgment, by saying, first, that we held in McStea vs. Rotchford Brown & Co., 29 An. 69, that a judgment of revival does not make valid that which is invalid, and does not cure radical nullities in the judgment revived; and, second, that we agree with the district judge that although the time had not elapsed to authorize default between the service of citation and default there appears of record and was proved in this case an acceptance of service and waiver of citation by the administrator of Linton which authorized the default. As to the original judgment of March 13, 1862, service was made on the eleventh of May, 1861, on S. D. Linton, as the sheriffs return (p. 13 R.) shows, service being made by delivery to Ackley Perkins, residing at defendant’s domicile, in the parish of East Baton Rouge, defendant being absent.

Judgment by default was regularly made final on Friday, the seventh of March, 1862, and the judgment signed on the thirteenth of March, 1862. (Judgment, p. 17 R.) Notice of judgment is found in the Record, p. 171, but no return of service. Ex-Sheriff Babin testifies that he finds by reference to his fee-book a charge for mileage for service of notice of judgment on Linton; from that fact is satisfied service was made. (Ba-bin’s testimony, p. 8, R.)

The testimony relative to Linton’s residence at the time service of citation was made shows that in 1854 or 1855 he married the daughter of Jehu Perkins, residing on the Richland plantation, in East Baton Rouge, and from that time till the breaking out of the war in 1861 he passed most of his time in East Baton Rouge.

Dr. Henry Perkins and Mrs. Julietta Perkins, the uncle and mother of plaintiff, establish a state of facts which, under the article 166, Code of Practice, authorized suit against Linton in East Baton Rouge. Dr. H. Perkins (p. 31 R.,) says: “ He resided temporarily during the time, from 1855 to 1863, in this parish (East Baton Rouge), New Orleans, Pass Christian, and in Paris, Prance; but always claimed his domicile in Rapides parish; was tenacious of preserving his domicile in Rapides, and upon one occasion went up there to vote, etc.;” “Had large property in Rapides; did not know of his owning any other property than in Rapides, etc.” “ In 1862,1 think, the Richland plantation belonged ip Mrs. Evans, the plaintiff in this suit. Mrs. Evans had control of the Richland plantation, and not her husband, in 1862.”

Mrs. Perkins says: “ This residence and domicile was in Rapides parish, where he owned a plantation, etc. I never knew him to claim a ■domicile anywhere else, although after his marriage he spent most of his time, as my guest, on the Richland plantation, in this parish. The Rich-land plantation belonged to Mrs. Linton at that time, although the property (the Richland plantation) in the parish of East Baton Rouge belonged to Mrs. Linton, it was the house and home of myself and husband, and Mr. Linton was my guest whenever staying upon said plantation.” “ Mr. Linton and witness returned from Europe in thefall of 1860 to Richland plantation, where he, Linton, remained until they went to New Orleans, as above stilted, except a few weeks spent by Mr. Linton on his plantation in Rapides.” “During the time from the marriage of Mr. and Mrs. Linton until 1862 Mrs. Linton went to Rapides parish probably as many as five times, remaining each time from ten days to two and three weeks. Mr. Linton visited Rapides parish as often as two or three times each year, never remaining over a week when his wife was not with him.”

A. L. Gusman says: “ I first became acquainted with Mr. Linton in 1855 or 1856, and knew him until the commencement of the war. I knew Mr. Linton but slightly, but his wife very well. Mr. Linton stayed a good deal in this parish (East Baton Rouge) but I was a member of the Democratic Parish Convention in 1857, and the committee made a census of the voters of the parish and they did not put Mr. Linton •down as they did not consider him a voter of this parish. I am satisfied that he did not become a voter after this time. When we were raising funds for the Creole guards in 1861, the officers went to tlie •prominent and wealthy citizens to get contributions, and I, as one of the officers, although I considered Mr. Linton able and a friend, did not go t'o him (as we did not consider that he belonged to this parish and would contribute elsewhere.”)

On cross-examination he says: “After Mr. Linton’s marriage and up to the time I left Baton Rouge, in April, 1861, Mr. Linton was here very often and remained sometimes months at a time. Mr. Linton was a man of wealth and traveled a great deal. -Mrs. Linton was Mrs. Perkins’s only child.” Dr. J. N. Williams says: "I was acquainted with him (Linton) from his marriage up to his death. I know he owned a plantation in the parish of Rapides from my first acquaintance with him up to the war. He had negroes on that plantation. The plantation was being cultivated by him until the war. He always spoke of that as his home. He-used to go to the plantation once or tivice a year for a short time. Mr. Linton spent a part of nearly every winter in New Orleans, .and nearly evbry summer in the north or in Europe.” H. Y. Babin says: •“ I was acquainted with Duncan Linton, former husband of Mrs. Evans. Mr. Linton was on the JRichland plantation, in this parish, most of his time from the time of his marriage, which took place in 1854 or 1855, up to the war. He was abroad occasionally during that time. I was acquainted with. Ackley Perkins (the person upon whom the citation was served). He was, I think, in 1861 on the Bichland plantation managing it. I was sheriff of this parish from 1851 to 1863.” Mr. Granary says: “I was acquainted with Duncan Linton. I know that he married Dr. Perkins’s daughter. After he was married he was here most of the time up to the breaking out of the war, on his father-in-law’s plantation.” It appears' that Linton resided in Prance at the time of his death in 1867, and that his succession was opened by the public administrator in Eapides in 1868. In 1872 his sisters brought suit (see 27 An. p. 351), alleging that Linton was not a resident of Eapides, but of New Orleans at the time of his death, and that the court of probate of Eapides had no j urisdietion over the succession, and prayed to have the order appointing the public administrator set aside.

The court held: “The evidence shows that Linton resided in Prance when he died, and that the only real estate he owned in Louisiana was situated in the parish of Eapides.

“ The succession was properly opened in Eapides.”

The plaintiff claims that this decision establishes conclusively the fact that Linton had no such domicile or residence in East Baton Eouge as the law requires at the time he was sued in 1861. This by no means follows, nor is that question in any manner involved in that case even were the present defendants, who were not parties, bound by it, as they are not. He might very well have had a domicile or sufficient residence for the purpose of being sued in East Baton Eouge in 1861, and yet as the court said, have “resided in France when he died,” and the court based their decision not upon the ground that his principal establishment or his domicile was in Eapides when he died, but upon the ground-that he had no “domicile or residence” here at sill at his death, but as we have seen resided in Prance; “and that the only real estate he ownecL in Louisiana was situated in the parish of Eapides.” C. O. art. 935. A review of all the evidence fails to show that Linton ever actually resided in Eapides, unless we should consider his going to his plantation as many as five times from his marriage in 1854 or 1855 to 1862, and “remaining there each time from ten days to two or three weeks,” as shown by his mother-in-law’s evidence, as establishing the fact, which is, however, more than offset by her own statement and that of other witnesses, that after his marriage he spent most of his time on the Bichland plantation, the property of his wife, in the parish of East Baton Eouge. Although there is some evidence to the effect that he claimed his residence in Eapides, and once voted there, there is none that he made the declaration of residence required by the law, C. O. article 42, and in the absence of such declaration the proofs both of the fact and the intention are left to the circumstances of each case. C. C. 43.

It is assumed in argument, but nowhere found in the record, that Linton resided and had his domicile before his marriage in Rapides. But in any event it is provided by article 166 of the Code of Practice that if a defendant reside alternately in different parishes he must be cited in that in which he appears to have his principal establishment or his habitual residence. If his residence in each appear io be nearly of the same nature, in such a case he may be cited in either at the choice of the plaintiff, unless he has declared pursuant to the provisions of the law in which of the parishes he intended to have his domicile. This we have already seen Linton did not do, or is not shown to have done. C. C. article thirty-eight defines the principal establishment to be that in which one “ makes his habitual residence.” This we think in the case of Linton sufficiently appears to have been on his wife’s plantation in East Baton Rouge; at all events the mere visits paid by him to his plantation at distant intervals of time and for a few days or even weeks at a time are insufficient to establish the fact of residence there, which, as this court has often said, must accompany and indicate the intention in the absence of the declaration required by the law. The same article of the Civil Code last quoted (art. 38) further provides that if one “ resides alternately in several places,” which at most is all that is proved of Linton in this record, and nearly as much in one as in another, and has not declared his intention in the manner hereinafter prescribed, any one of the said places where he resides may be considered as his principal establishment at the option of the persons whose interests are thereby affected.”

Under this provision and those of article 166 of the Code of Practice already quoted, Linton was properly sued in the parish of East Baton Rouge in 1861, and if ,so then was the revival suit also properly brought and judgment rendered.

In regard to the' plaintiff’s bill of exceptions, it will be perceived that we have considered the rejected portion of the evidence of Gusman without, however, its affecting our conclusions on the whole case. As to the evidence objected to by the plaintiff, we think the objection attached more to its effect than its admissibility in the absence of proof of the existence of better evidence.

Questions of domicile, such as are presented in this case, often involve great nicety of distinction, and as has been often said by our predecessors and, indeed, as is provided by the terms of the law in the absence of the formal declaration of domicile, each case must rest upon its own particular facts and circumstances. Hence we have detailed the evidence so minutely. Were the case before us on the same evidence we incline strongly to the opinion that we should have rendered the same judgment, but most certainly at this distance oí time, and after two solemn judicial inquiries followed by judgments, which are sought to be annulled purely by the parol testimony of witnesses as to a fact so material and so easily ascertained at the time, we are not disposed upon the evidence before us to annul those judgments, which were correct.

Judgment affirmed.

The Chief Justice recused himself in this cause.


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    No. 7026.
    Nalle & Cammack vs. A. L. D. Conrad et al.
    A planter who lias agreed to consign, and pay commissions on his entire crop to his factors, in consideration of certain promises and stipulations in his favor made by .the factors, is released from his obligation to consign and pay such commission on whatever balance of his crop he may have on hand, when the factors shall fail and refuse to comply with their stipulations; more particularly when the failure of the factors to perform their part of the contract, disables the planter from performing his part of it.
    Before the maker of a lost, or mislaid negotiable note, which was transferred before its maturity, can be made to pay it, he is entitled to be indemnified against its subsequent appearance.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Mofea, J. •

      Favrot & Lamon for plaintiffs and appellees.

      Herron & Bird and Beale for defendants and appellants.
   The opinion of the court was delivered by

DeBlanc, J.

In 1872, plaintiffs became the merchants and factors ■of the defendants, and — according to the former’s declaration — the business relations between them were practically ended on the twenty-sixth of December 1874. The character of those-relations is shown by a letter of the first of February, 1872, from defendants to plaintiffs, in which they express the desire of obtaining from the latter — for that year and in advances of money and supplies — to assist them in cultivating their plantation —the sum of five thousand dollars.

In 1874, as in 1872, it was agreed that the sugar and molasses to be made on defendants’ plantation should be shipped to plaintiffs, to re-imburse a balance then due to their firm and the advances to be made by them during the current year. Under that agreement, defendants shipped to plaintiffs sugar and molasses until the twenty-sixth of December, when — as stated by the factors — their business relations were practically ended, and — thereafter—sent to another commissioner what was left of the crop of 1874.

On the twenty-sixth of March of that year, defendants — by a notarial act — had acknowledged that they were indebted to plaintiffs in the sum of $4204 68; and, to represent that indebtedness, had subscribed and delivered two negotiable notes payable to said plaintiffs or their order — one on the first, the other on the fourteenth of December 1874, both secured by a conventional mortgage on defendant’s share in the plantation known as “ Cypress Hall.” The last maturing of said notes was endorsed by plaintiffs to the order of A. Cammaek junior, and mislaid or lost in the city of New York, where it was used as collateral security.

This suit was brought to recover the balance due on the lost note, and — besides—two hundred seventeen dollars and twenty-five cents, for commission on that portion of defendants’ crop shipped to another factor, after the twenty-sixth of December 1874.

"We, unhesitatingly, acknowledge — as contended for in behalf of plaintiffs, that the planter’s crop — every pound of sugar, every gallon of molasses, every bale of cotton, every barrel of rice of that crop, must be punctually shipped and consigned to the factor who has advanced to raise and harvest it, and that — whether so consigned or not — the factor has a right to and can justly claim a commission on every fraction of the same; unless, however, he has himself failed to comply with any of the express or necessarily implied cohditibns of his contract with the planter; for, one who breaks a contract, forfeits his right to compel the others to execute it.

In this case, and as late as December 1874, the most perfect understanding seems to have existed between plaintiffs and their clients. What then occurred between them ? A. L. D. Conrad testified that he came to New Orleans, in the latter part of December of that year, and —on his arrival — went to plaintiffs’ office. There, he met Mr. Nalle, who asked him the object of his yisit to the city; he informed him that it was to settle with Mr. Gay, and that he would go and see him the next day. “That is the way you, country people, do” — replied Mr. Nalle; “go now, and tell Mr. Gay that I will accept a draft and pay the amount.”' The next day, plaintiffs refused to pay the draft given at the suggestion of one of them. That refusal was not — of itself — a sufficient cause to authorize the consignment to other factors of the balance of defendants’' crop.

This is not all: when, the day after, Conrad went to plaintiffs’ office, he there found the tax collector, who had already seized their sugar, and the man who had furnished the barrels for the molasses, to both of whom he had given drafts on plaintiffs’ firm, and he was notified by both that the firm had refused to pay those drafts. This was wrong, and — on plaintiffs’ part — a violation of their contract. Unless those barrels and taxes were paid, not only the sugar and molasses could have been levied upon, sold and sacrificed, but — by their factors’ course —the planters were effectually prevented from complying with the obligation of their contract. The day before, Mr. Nalle had told Mr. Conrad: “You have got plenty of money here, pay Mr. Gay” — the day before, he had promised that the cooper’s and tax collector’s bills would be paid. In so doing — by merely paying the taxes and the price of the barrels, they would have enabled and could have compelled defendants to consign to their house the balance of a crop, which they themselves value at $8690, more than six times the amount of their actual claim against said planters.

Pressed by the cooper, and pressed by the tax collector, who had already seized, Mr. Conrad said to Mr. Nalle: “ If you do not pay the drafts held by those parties, I will have to get another merchant.” “I would be glad that you would,” was the answer. This was sworn to by two of the defendants and denied by plaintiffs. They did not — however —deny that they had refused to pay the last mentioned drafts. They paid — as shown by their receipt — the State taxes of 1874; but that other taxes were then due, there can be no doubt — for, the tax collector himself, the holder of one of" the unaccepted drafts, swore that he had already seized sugar to satisfy said taxes — and that, when he became convinced that they would not be paid by Nalle and Cammack, he advised Conrad to go to Richard Flower and apply to him for assistance. Conrad followed his advice and Flower paid the taxes. At that date, there was to defendants’ credit — in the house of Nalle and Cammack— $4654 70, which were — afterwards—applied by the latter to the partial payment of the supplies and mortgage notes due them by defendants.

Under these circumstances, it was not without sufficient cause that the planters discontinued to ship their crop to plaintiffs, whose implied obligation was to pay, if not the collector and the cooper, most certainly the cooper; and this they could have done without the least apprehension of losing a cent.

The district court refused to allow any commission on the molasses, for the reason that they had been disposed of on the plantation and there given in payment of barrels purchased for the use of said plantation — this is correct. The court allowed plaintiffs, on the sugar not shipped to them, a commission of $145 92. In this there was error.

The note sued upon and which has been mislaid or lost, was transferred before maturity and delivered in New York as a collateral security. By its own terms and the terms of its endorsement, that note was negotiable, and defendants’ demand that plaintiffs be ordered to give security to indemnify them against its appearance, should have been granted. It is true that the Code provides that the judge may, if required, order security to be given — but bis discretion in that regard is not unlimited, and — when circumstances render it necessary — he should so order. The form of the nóte, that of the endorsement and the fact that it passed into the hands of third parties as a cellateral guaranty, justify defendants’ demand. ' 1 '

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is hereby amended, and plaintiffs’ demand for one hundred and forty-five dollars and ninety-two cents and the interest thereon, for commission on sugar, disallowed and rejected.

It is further ordered, adjudged and decreed, that — as amended — the judgment of the lower court is affirmed, but that no execution issue thereon, until plaintiffs shall give security in an amount corresponding to that of this judgment, in principal, interest and costs, to indemnify defendants against the appearance of the note sued upon, and which is alleged, to have been mislaid or lost in the city of New York.

It is lastly ordered that the costs of this appeal be paid by plaintiffs.