text:
    No. 2368.
    Master and Wardens of New Orleans v. Robert W. Foster et als.
    Tlie act creating tlie master and wardens of tlio city of 3tfew Orleans, does not prohibit any merchant or body of merchants from employing any other person to examine and survey damaged goods in cases where they were interested. An injunction will not, therefore, lie against any person thus employed, nor can tlio master and wardens recover-damages irom the merchants who have employed such person, nor from the person employed.
    Appeal from the Sixth District Court, parish of Orleans.

      Cooley, J. M, A. Dooley, for plaintiffs and appellees.

      Leovy & Monroe, for. defendants and appellants.
   Ludeling, C. J.

The plaintiffs allege that they are the Master and Wardens of the port of New Orleans, and that as such they have “ the-exclusive right to discharge the duties and perform the acts prescribed by law for them officially to perform, and that as such officers they have the legal and exclusive right to the fees and emoluments prescribed by law for the performance of such official acts and duties,’’ and they complain that Robert W. Foster, Arthur C. Waugh, George A. Fosdiek, John M. Witherspoon, William F. Halsey, William Crcevy, Theodore Nickerson, Charles W. Fox, R. H. Harris and H. Bidwoll, in. September, 1888, illegally, wantonly and maliciously conspired and, confederated together to injure and disturb petitioners in the rightful enjoyment and legal discharge of the duties of their said offices, and to divest, oust aud deprive them of the legal fees and emoluments which belong and appertain to them as such officers.” That “in furtherance of their said illegal conspiracy,” they procured, instigated and encouraged, and have so continued ever since said date, and still continue to instigate, assist and encourage the said Robert W. Foster to usurp and assume the powers, duties and authority legally and exclusively belonging and appertaining to petitioners by virtue of their said offices as aforesaid, and that said Foster, so instigated, assisted and encouraged as aforesaid, usurped and assumed and still continues to usurp and assume the powers, authority and duties belonging to-petitioners,” etc. And they aver further that said Foster threatens to-continue, and they fear he will continue, his said illegal acts. They therefore pray for an injunction against all the defendants to restrain them “from in any manner usurping, assuming or exercising any of the functions or doing any of the acts appertaining to said offices of petitioners,” etc., and for fifty thousand dollars damages.

The evidence shows that the defendants have entered into a contract whereby the said Foster was employed to examine and survey damaged goods in cases where they were interested, and that the said Foster does not pretend to act under any commission or by virtue of any public office, but simply as the employe of the merchants and underwriters who may engage his. services, and that he has not molested or interfered in any manner with plaintiffs.

We know of no law which prevents the defendants from entering into such a contract as the above, and we think the plaintiffs have wholly tailed to show any right of action.

The grave constitutional questions discussed in the briefs and arguments of counsel need not be passed upon in order to decide this case, and courts of justice will avoid deciding upon the constitutionality of laws unless the decision be indispensably necessary for the determination of the cause.

It is therefore ordered that the judgment of the district court be avoided, and that there be judgment in favor of defendants dissolving the injunction gnd rejectingplaintiffs’ demand, with costs of both courts.

Rehearing refused.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 2325.
    E. W. Burbank v. J. M. Taybor & Son.—James A. Wright, Intervenor.
    Intervention is not the remedy for a third party who claims the ownership of property that has been released from seizure by a bond given by the defendant. In such, a case the •property should be pursued in the hands of the defendant.
    A proceeding in mm can only be maintained where a privilege is shown to exist on the property seized.
    Appeal from the Sixth District Court, parish of Orleans.

      Cooley, J. Hornor & Benedict, for appellant.

      J). F. Mitchell, lor appellees. F. I). Craig, for intervenor.
   Ludeling, C. J.

The plaintiff, alleging that the defendants, residents of the parish of Jefferson, are indebted to him in the sum of $11,881 56, and tliat $4,367 thereof were for advances and supplies made to defendants in the year 1866, claims a privilege on thirty-five bales of cotton as a part of said crop, and sequestered the same in the parish of Orleans.

The defendants bonded the cotton, and subsequently J. A. Wright-intervened and claimed to be the owner of the cotton.

After the cotton had been released on bond, Wright could not intervene to claim the cotton. He should have pursued the cotton in defendants’ possession. 1 R. 277; Beal v. Alexander, 14 An. 52, 53; 17 An. 314; 18 An. 58; Dorr v. Kershaw.

The evidence fails to establish the right of the plaintiff to a privilege, and as the proceeding is in rem, and not against the defendants personally, who do not reside in the parish where the suit was brought, the plaintiff’s demand must be rejected.

It is therefore ordered that the judgment of the District Court be affirmed, with costs of appeal:

Rehearing refused.


author: Taliaferro, J.

text:
    No. 2905.
    A. F. Wild v. C. L. Ferguson.—William S. Mudgett, Intervenor.
    The salary oi* a State officer can not "be seized and sold for debt, nor can a garnishment process issue directing the State Auditor to warrant iu favor of a seizing creditor of an officer of the State lor tlie amount of salary due him.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble, J. George U. Demi, for plaintiff and appellant.
    IT. M. Dibble, for intervenor, appellee.
   Taliaferro, J.

The plaintiff, a judgment creditor of the defendant, took out garnishment process again.-t James Graham, State Auditor, to seize the right of his debtor in an appropriation made by the Legislature thirty-first March, 1870, for the relief of George A. Fosdiok, C. L. Ferguson, William Baker and others. The Auditor answered: “ I have beeu furnished by the Secretary of State with a certified copy of an act entitled ‘an act for the relief of G. A. Fosdiok, C. L. Ferguson, William Baker and others,’ approved May 31, 1870, by which is appropriated to said C. L, Ferguson the sum of $535. Said sum still remains to the credit of said Ferguson. I have still, under the provisions of said act, the said sum of $535, for which a warrant might be issued for the benefit of said Ferguson or for liis account.”

The act of the Legislature referred to recites that the appropriation was made “for services rendered the State as members of the Board of Registration and employes thereof after the fifteenth of December, 1868, and for which the aforesaid persons have not boon paid.” An execution was issued and the interest and right of Ferguson in this appropriation was seized. Mudgett, alleging that lie is the transferree of this claim of Ferguson, came in by injunction and third opposition and opposed the sale of it.

Tiie plaintiff answered the opposition, averring that he had acquired all Ferguson’s rights by virtue of the proceedings he had taken; that he thereby had acquired a privilege superior to any pretended right of the intervenor. Judgment was rendered in favor of the intervenor, perpetuating the injunction and declaring him owner of all the right of Ferguson in the Legislative appropriation. From this judgment the plaintiff appealed.

A certificate of transfer was shown from Ferguson to the plaintiff, dated sixth May, 1870. The plaintiff contends that this instrument is without effect as against him, because no notice of the transfer was ever given to the State, being in this case in the attitude of debtor, and cites Civil Code, article 2613. On the other hand it is urged that the compensation appropriated for Ferguson’s benefit is a salary for performing the duties of a public office, and therefore not liable to seizure for debt. C. C., article 1987; C. P., article 647,

We are not satisfied that the plaintiff acquired, a right to the defendant’s interest under the act of the Legislature referred to, as we do not recognize the legality of garnishment process against the-State. It is clear that the salary of the officer could not be seized and sold for debt.

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

Rehearing refused.


text:
    No. 3161.
    George S. Sawyer v. Robert Davis et al., and Robert Davis et al. v. George S. Sawyer. (Consolidated.)
    'Tho employer who has made «a contract with laborers, whereby the latter are to malee and gather the crop of cotton for a certain portion thereof, and the employer is compelled to engage other labor to help pick and gather tho cotton, ho, the employer, has a lien and privilege on that part of the cotton which may fall to the laborers to secure the reimbursement of such expense.
    APPEAL from tho Thirteenth Judicial District Court, parish of ’Concordia.

      Hough, J. George 8. Sawyer, in proper person, appellant.
    (S. Mayo, for appellees.
   Taliaferro, J.

This is a controversy between an employer and a 'number of laborers engaged by him in the cultivation of a cotton plantation during the year 1869. A written contract was entered into between the plaintiff and Henry Zinco as planting partners on the one side, and about thirty laborers on the other, by which it was agreed on the part of the laborers that they would work on St. Genevieve plantation, in the parish of Concordia, in a good and faithful manner for the employer during tho year 1869, in producing a crop of cotton .-and corn; that they would obey all orders that Sawyer and Zinco or their agent might give from time to time, put up and repair fences, and perform any work that might be required to be done; that, failing in any of these engagements, Sawyer and Zinco were to have the privilege to declare the contract void so far as any one offending was concerned. Tiie employers were to furnish the work animals needed in the cultivation of the place, feed for the animals, the farming utensils, etc., needed on the place, famish provisions for the laborers, and give them the one-fourtli part of all the cotton and corn grown on the plantation that year.

It seems that about the first of July of the year 1869 Zinco and Sawyer dissolved partnership, the latter, as he alleges, having purchased the interest of the former in the business.

About the commencement of tho picking season, or not long afterward, dissensions and difficulties arose between the parties to this «contract. The employer, without tho consent of the laborers employed under the contract, engaged other laborers to pick cotton on. the St-Genevieve plantation, informing the regular employes that they would he required to pay their proportional amount of the expense of these-additional laborers, and he aimed to justify this act by saying that the-laborers on the place'failed to do tlieir duty in the matter of picking the cotton, that they were remiss in their labor, not having worked two-thirds of the time they had contracted to work. During the month of November the first shipment of cotton was made from the plantation to New Orleans. About twenty hales were, by the direction of Mr. Sawyer, hauled out to the river hank to he shipped, when the laborers took possession of five of these-bales and hauled them back to the plantation, claiming them -as their share of the twenty bales-The employer thereupon took out au injunction against fifteen of the employes to restrain them from refractory and disobedient conduct-relative to the business of the plantation, and from interfering with, any portion of the crops raised on the plantation until a fair division of the crops or tlieir proceeds could be made. He prays judgment annulling the contract as to them; that the one-fourth part of the-crop or its proceeds be divided among all the laborers who have worked in and helped to make and gather the same, according-to the time they worked, etc. The injunction was served about the twenty-second of November.

In the month of February following twenty-six of the laborers, by their counsel, prayed for and obtained a writ of provisional seizure to-seize and take into the possession of the sheriff the crop or a sufficient amount thereof, if found, to satisfy tlieir demand, and if not fotfnd, a sufficient portion of the proceeds thereof, alleging that they have bylaw a privilege upon the crop or its proceeds. They aver that the crop raised on the St. Genevieve plantation in the year 18C9, amounted' to two hundred hales or thereabout, of tlie average weight of four hundred pounds each; that it has been entirely removed from the plantation; that a part of it, as they have reason to believe, has been-shipped to New Orleans and sold on account of G. S. Sawyer; that-they have not received more than eleven hales in the whole. They pray judgment for ono-fourth the amount of the crop loss the eleven hales they admit they have received, and that they receive the same in. kind, and failing in that, that they have judgment.against their said employer for such amount as may he due them at the rate of eighty-five dollars per bale.

The two suits were consolidated and tried together. The injunction was perpetuated as to two of the laborers complained against, and dissolved as to the others. The proportional amount of cotton received, by the parties respectively was fixed by the judgment at one hundred and fourteen hales by G. S. Sawyer and twenty-nine by the laborers.. It decrees that one-fourth of the twelve hundred and forty-eight dollars paid out to the third parties for picking cotton be refunded to him by the laborers employed to make the croj); that the provisional seizure be sustained, and the privilege claimed recognized; that the cotton seized under the writ be divided by the sheriff by weight, and decreed the basis and manner of this division ; that a privilege in favor of Sawyer be recognized on that portion of the cotton falling to the laborers to secure the payment to him of the one-fourth of the twelve hundred and forty eight dollars paid by him as aforesaid. The costs in both proceedings to be paid by the employer, except those the payment of which is provided for by the two parties against whom the injunction was sustained. Prom this judgment Sawyer, the employer, has appealed.

There is a mass of evidence in the record of a very contradictory character. It is apparent enough that neither of the contracting parties have properly complied with their obligations. There seems to have been dissatisfaction on the part of the employer on account of the maimer in which the labor was performed, and distrust on the part of the laborers of the fairness and good faith of the employer. After a review of the testimony, we are not inclined to think that justice has not been done between the parties.

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


author: Tamaeerro, J.

text:
    No. 2278.
    A. Skannall v. John A. Stevenson.
    • An agent engaged in the puvcMse of cotton must account to liis principal for tlie full quantity tliat ho has purchased.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Bandolph, Singleton & Browne, for plaintiff and appellee.
    Ciarle, Bayne <& Benshaw, for defendant and appellant.
   Tamaeerro, J.

On the seventeenth of June, 1865, a written contract was entered into between the plaintiff and defendant of this character: John Chaff, the duly authorized agent of Stevenson, obtained from the plaintiff one hundred and thirty-six hales of cotton, which were to be disposed of by Stevenson and the net proceeds to be equally divided between them. This suit is brought on this written agreement to enforce payment of one-half the value of the cotton, which the plaintiff alleges to he $14,000, and he prays judgment accordingly. The answer is a - general denial and defendant avers specially that he never received any cotton, the property of the plaintiff. Judgment was rendered in favor of the plaintiff for $3233 33, with costs. The defendant has appealed.

We think it fully established that Chaff was the authorized agent of Stevenson; that in that capacity he made the agreement with Skannall for one hundred and forty bales of cotton and received one hundred and thirty-six bales; that it was shipped by Chaff ir.om Lake Bisteneau to the mouth of Loggy bayou, on the Red river. Stevenson sets up in defense that this cotton was never received by him, or rather introduces evidence to establish that the cotton was seized under order of the Federal Government and appropriated to itself as cotton that had been sold by Skannall to the rebel government. It is true that Skannall had so disposed of his cotton, and in the agreement with Stevenson the latter specially bound himself to hold Skannall harmless and protect him against all claims of the United States in respect to it. The attempt of Stevenson to show that all this cotton was seized by the United States’ agents, we think a failure. The facts iu relation to it seem to be that in the month of June, very soon after the agreement was entered into between Stevenson’s agent and Skannall, the cotton was shipped to the mouth of Loggy bayou, thence to be reshipped to New Orleans. This shipment from the lake to the mouth of Loggy bayou was undoubtedly made in the latter part of June. Stevenson had other cottons which he was concentrating- at the same point and reshipping from thence to New Orleans. Fully a month afterwards it is shown that the government agents did s.-ize all the cotton that Stevenson had at that time (twenty-eighih July) at the mouth of Loggy bayou; but wo are saiisfied from the evidence of • Chaff that sixty-three bales of the Skannall cotton had been shipped to New Orleans and disposed of by Stevensou before this geneial seizure of coiton took place on the twenty-eighth of July. There was ample time for the shipment which Chaff refers to to have been made beiore the twenty-eighth of July. He says, speaking of the Skannall ■cotton: “My agent attended to the shipping of it. I also heard from the agent under my control of his receiving it at the mouth of Loggy bayou. After that the only knowledge I have is that I saw the bills of lading of sixty three bales of cotton shipped from the mouth of Loggy bayou to New Orleans. Further I know nothing but there were sixty-three bales of that cotton that I saw the bills of lading for shipped from the mouth of Loggy bayou to New Orleans. These bills of lading were produced to me by Joseph I). Hamilton.” A portion of the lot of cotton obtained by Stevenson through Chaff from Skannall was probably still remaining at the mouth of Lo-'gy bayou with other cotton under Stevenson’s control awaiting shipment, and was seized by the government on the twenty-eight of July. But that prior to that time Sixty-three bales of Skann all’s lot were shipped off and escaped the Federal officers, we think quite clear. These sixty-three bales Stevenson does not account for satisfactorily.

Whatever might be our view under a different state of facts in-regard to the traffic between these parties in cotton having the character of that of Skannall’s, we think that Stevenson having received the cotton as an agent of Skannall and, as wo are satisfied, has failed to account ior a part of it, he ought to be held liable. The case was tried before a jury in the lower court and they found a verdict for the amount stated. We do not feel authorized to disturb it.

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

Rehearing refused.


author: Howe, J.

text:
    No. 3099.
    Arnaud LeBourgeois v. Emma LeBourgeois, Wife of Louis Chenet, etc.
    The vendor of a tract of land may enforce the resolutory condition against a third purchaser from his vendee. If, therefore, it appear as matter of faot that the wife has taken a. tract of land as a datian an paiamant of her judgment against her hushand, which is subject to the resolutory condition because the price has not been paid, then and in such case she can not successfully resist the payment of notes and mortgage which she has placed upon it, on the grounds that the notes and mortgage wore given under marital influence and to secure a debt of her husband.
    APPEAL from the Fourth Judicial District Court, parish of St. James.

      Beauvais, J. Alfred Homan, for plaintiff and appellant.

      Legendre & Boché, for defendant and appellee.
   Howe, J.

In the early part oi 1 67 Arnaud Li-Bourgoois. Florian LeBourgeois and Emma LeBourge is were the owners, each, of one undivided third of a plantation in the parish of St. James. On the fourth April, 1867, under a judgment against them, the property was-sold by the sheriff and purchased by Louis Chenet, the husband of the defendant, Emma LeBourgeois. In settlement therefor it appeared, by the return of the sheriff, that Chenet paid the costs, the claim of the seizing creditor and sundry other claims, and the proportion of surplus going to Arnaud LeBourgeois and Florian LeBourgeois, and retained in his hands the pro rata of such residuum due to his wife„ Emma LeBourgeois.

On the thirteenth November, 1867, a judgment of separation was-rendered against Louis Chenet in favor of his wife, Emma LeBourgeois, and he was decreed to be indebted to her in the sum of $6247 20,. with certain interest. On the second December, 1867, by act of datienen paiement, Chenet conveyed the property to his wife, the price being fixed at $7000, and the latter assuming a mortgage which had in the-meantime been imposed by Chenet on the property in favor of a third party for $3800.

On the twenty-first day of October, 1868, Mrs. Emma LeBourgeois, being still the owner oí the plantation by the act lastly recited, appeared before the recorder, assisted by her husband, Chenet, and declared in substance that her husband did not pay in cash at the sheriff’s1 sale of April 4, 1867, the share of surplus coming to Arnaud LeBourgeois (the plaintiff at bar), but gave his note for it; that this note amounted to $3000, principal and interest, and was still held by Arnaud. The portion of the act referred to reads as follows:

“La dito dame comparante dóclare de plus, qu’en réglement et en priiement de la part ou portion revenant au dit Sieur Arnaud LeBourgeois dans le produit de la dite vente du 4 avril 1867, le dit Sieur Louis Chenet, son époux, lid avait fournie un simple billet tiré et souscrit par lui pour la dite somme de deux mille deux cent soixaiate-treize 27-1 piastres, payables á l’ordre de M. Arnaud LeBourgeois, au bureau du recorder de cette paroisse, a vuc.

“ Que ce billet s’óléve aujourd’kui, en capital et intéréts, á la somme de trois mille piastres; n’a pas encore été payé, et est toujours la propriótó du dit Sieur Arnaud LeBourgeois.”

She then recites the separation of property and the conveyance to her of the plantation; her desire to recognize the validity of the debt and to assure its payment; and proceeds to assume the amount of it and gives her notes therefor, with the authority of her husband, which notes are accepted’ by the plaintiff and are those on which this suit is brought.

The answer admits the execution of the notes, but alleges that they “ were executed by the defendant to represent a debt contracted, by her husband during the marriage, which debt was assumed by respondent, who bound herself by means of the notes.sued upon to pay the same, in direct violation of a prohibitory law, under marital influence and in ignorance of her rights.

To this delense the plaintiff, in argument, replies that a portion of the price bid by Chenet at the sale of April 4, 1867, remained unpaid; that the sale was liable to be dissolved ior this non-payment; that the resolutory condition thus implied would operate against the land in the hands of the defendant and deprive her of it, unless she came forward and paid the amount herself; that in the language of this court in Sorrell v. Cox, 10 R. 72, “though the debt was originally contracted by the husband, it bore upon the property purchased by the wife, * * and that the debt sued on was contracted for her private benefit.”

We think the case is with the plaintiff. Chenet had not paid the price of the land and it was subject in his hands to the operation of the dissolving condition. On the principle that a man can not transfer more than he himself has, and in accordance with the rules laid down in Jones v. Crocker, 1 An. 440, and Bloodworth v. Jacobs, 12 An. 699, the land was liable in the defendant’s hands to the same formidable attack. By giving the notes in suit she postponed this attack, and their payment would perfect her title as against this claim.

We do not understand tile decision in Spurlock v. Mawer, 1 An. 301, to control this case.

It is therefore ordered that the judgment in favor of defendant be reversed, and that the plaintiff have judgment against the defendant, Mrs. Emma LeBourgeois, wife of Louis Clienet, for the sum of $3000, with interest at eight per cent, per annum on $500 from January 1, 1869; on $1250 from September 1,1869; and on $1250 from September 1, 1870, until paid; and costs of suit in both courts.

Rehearing refused.


author: Wyly, J.

text:
    No. 2230.
    New Orleans City Railroad Company v. Crescent City Railroad Company.
    An injunction that Has issued to restrain other parties from erecting a street railroad on a particular piece of ground, predicated on the alleged exclusive right on the part of the petitioner, -will bo dissolved and set aside if it be not shown that He has such exclusive right. The fact that the vondor of the petitioner had acquired the exclusive right from the city of Now Orleans to build a street railroad over the neutral ground on Canal •street, and afterward abandoned it, will not of itself confer the exclusive right upon a third party who may obtain permission from the city to build a road thereon.
    APPEAL from the Sixth District Court, parish of Orleans.
    Cooley, TV. II. Hunt, for plaintiff and appellee.

      T. Gilmore, lor defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment perpetuating the injunction sued out by the plaintiff to restrain it from building a railroad on the neutral ground on Canal street, between Magazine and ■Camp streets.

The grounds for the injunction are that the plaintiff has the exclusive right to said neutral ground on Canal street for its railroad by virtue of- its contract with the city of New Orleans, and that the defendant is estopped from contesting this exclusive right by virtue of a compromise between the plaintiff and David McCoard, the vendor of the defendant, in which the latter renounced the right to extend his railroad over this section of the neutral ground on Canal street.

The 'first ground is not correct. The city of New Orleans has not •granted to the plaintiff the exclusive right to the use of the neutral ground in controversy, although it gave it permission to keep a double track thereon. It is not pretended that the defendant is interfering with the track of the plaintiff. It is only endeavoring to comply with its agreement with the city of New Orleans, made under ordinance No. 478, new series, approved by the Mayor on the fourteenth October, 1867, in which the defendant was authorized and required to extend .its road -over said space of ground.

The plaintiff having permission to run a street car on Canal street, has no cause to complain if for public convenience a like privilege has been .given to another by the common grantor. The city undoubtedly had the right to make the grant contained in the ordinance of the fourteenth of October, 1867, and we see nothing prohibiting the defendant from accepting it, nor do we see an obligation compelling the acquired right to inure to the benefit of the plaintiff.

Grant that McCoard, from whom the defendant derived title, abandoned or sold to the plaintiff the right which he had under a contract with the city in 1865 to build or extend the road over the space of ground on Canal street, his subsequent sale to the defendant of the balance of his rights did not incapacitate the latter from receiving the grant of the fourteenth of October, 1867. It may be true that the acquisition of a better title by the vendor than the one conveyed, inures to the benefit of the vendee by virtue of the obligation of warranty implied in the contract, and it would also be true that the acts, admissions or declarations of the vendor, in matters of title, are binding on the vendee; but these principles of law have no application to* the case before us.

Hero the right claimed by the defendant to the use of the vacant space in dispute was not acquired from McCoard. Ho had previously abandoned his right to run street cars on the neutral ground on Canal street, between Magazine and Camp streets, in a compromise with the plaintiff, and the city of New Orleans, which granted McCoard the right to do so in 1865, accepted and approved the said abandonment.

Assuming, then, that there was an obligation of the character contended for between McCoard and the plaintiff, -which we do not admit, that obligation has not been incurred by the defendant by virtue of the-transfer which McCoard made to it on the eighth of August, 1866, of all the rights "which he had to run street cars in the city of Now Orleans, remaining to him after the said abandonment. The right claimed by the defendant, and which the plaintiff has enjoined from being exercised, was not derived from McCoard; but the defendant acquired it in October, 1867, from the city of New Orleans.

Now, because the defendant acquired all the railroad interests vested in McCoard on the eighth of August, 1866, did that preclude it from acquiring from another source a right which McCoard once -had, but had abandoned previous to his conveyance to the defendant? As to the right in dispute, the defendant is not the vendee of McCoard, and is therefore not bound by his acts, admissions or declarations in relation thereto.

The right claimed by the defendant to run its cars upon the disputed territory was granted to it by the city of New Orleans, from whom the plaintiff also derived its privilege.

Under this state of facts, where does the obligation arise prohibiting the acquisition of the right claimed by the defendant, or if acquired,. compelling- it to inure to the benefit of the plaintiff? We aro unable to find the origin of such an obligation' in any of the sources known to the law from which legal obligations arise, and therefore we conclude that it docs not exist.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is now ordered that there be judgment ior the defendant, the plaintiff paying costs of both courts.


author: IIowell, J.

text:
    No. 3445.
    State ex rel. P. Murtagh et als. v. The Judge of the Eighth District Court, Parish of Orleans.
    An appeal will lio from a judgmont eitlior annulling or affirming an ordinance of the City Council, if the amount involved, in the ordinance by way of contract exceeds in amount the sum of five hundred dollars, notwithstanding there may "be several parties to the contract on tho one sido, no one of whom, may have an interest therein equal to five hundred, dollars.
    In such a case a mandamus will issue, on application, to tho judge a quo, directing him to grant tlio appeal.
    APPLICATION for a Writ of Mandamus.

      JET. Jf. Ogden and J. B. Bill, for relators.

      H. C. Dibble, Judge respondent.

   IIowell, J.

The relators, seventeen in number, allege that they, in connection with certain other parties, instituted suit in tho Eighth District Court, parish of Orleans, entitled James Ready et als. v. City of New Orleans et al., to annul ordinance No. 1438, new series, passed by the City Council of New Orleans, for tho purpose of authorizing and instructing- the controller to adjudicate the contract for shelling Locust street, from Felicity road to Washington avenue, at the sole cost and expense of the front property owners on said street, of whom the relators are a majority, and also to annul tho contract made with J. J. O’Hara, a defendant in said suit, in pursuance of said ordinance; that under said contract their united liability and interest exceed five hundred dollars and the whole amount involved is over five thousand dollars; that exceptions to the right of some of the plaintiffs in said suit to an action on the ground that the amount for which each was liable was under the jurisdiction of the court a qua, were maintained and the suit tried as to the others, against whom reconventional demands were filed by tlio contractor, O’Hara, their demand dismissed and judgments rendered against them oil the several reconventional demands; that they applied for an appeal and tendered the necessary bond, but the appeal was refused and executions were ordered. They pray for a writ of prohibition and mandamus

The judge answers that he refused tho appeal because the amount in disputo between each of the several relators and the dmendants in tho said suit of James Ready et als. v. New Orleans et al. is less than five hundred dollars and (he) relies upon the authorities cited in Hennen’s Digest, volume 1, title Appeal, page 20, 1 (A.) 3.”

Such a general reference to authorities is no aid to the court and would be as well omitted. We do not think tho reason justifies tho refusal. The object of the suit primarily is to annul an ordinance and contract involving the sum of five thousand dollars, and if it had been decided in favor of the plaintiffs therein, relators here, and against the city and O’Hara, the contractor, there is no doubt the city and O’Hara, or either of them, could have appealed, and hence, as said in tho case of the State ex rel. James Graham v. Judge of the Eighth District Court, decided at the last term in Monroe, the other party is entitled to the like right. The amount for which each of the relators may or may not be liable under the contract is not tho principal or primary matter in dispute, but is a consequence of the principal question — the validity of the ordinance and contract, and is directly presented only by the reconventional demands. It can not, therefore, control the right of appeal in the case.

It is therefore ordered that tho mandamus issued herein bo made peremptory.


author: IIowe, J.

text:
    No. 3499.
    State ex rel. E. K. Washington v. The Clerk of the Sixth District Court of the Parish of Orleans.
    iTlie clerk of the District Court can not be permitted to coerce a settlement of Ins costs “by holding on to tho transcript of appeal. In case, therefore, that the clerk refuses to deliver the transcript to tho appellant, on the ground that his costs therefor have not been paid, a mandamus will issue to the clerk on application of tho appellant directing him to deliver tho record, and pay tho costs of tho writ. 22 An. 563, 578.
    APPLICATION for Writ of Mandamus.

      J$. K. Washington, for relators.

      William Woeljper, Clerk of the Sixth District Court, respondent.
   IIowe, J.

Tho relator, who was plaintiff in the court below, took an appeal and gave an appeal bond. The clerk of the court a qua refused to deliver to him the transcript unless sundry fees were first paid, and the relator therefore asks for a mandamus.

The answer of the respondent contains no matter of defense. In the case of the State v. The Clerk of the Second District Court, 22 An. 583, whore, as in this case, the relator was plaintiff in the lower court, it was decided that “ the appeal bond having been given according to law, the clerk should have delivered the transcript to tho appellant.” The same ruling had theretofore been made in cases where a defendant was appellant. 22 An. 508, 563, 578.

It may therefore he regarded as settled that the clerk of the lower court can not coerce a settlement of his disputes with parties in regard to costs by withholding the transcript of appeal. C. P. 585.

It is therefore ordered that the mandamus issued herein ho made peremptory at respondent’s costs.


author: Tali arerró, J.

text:
    No. 3279.
    William Emmer v. Mrs. James Kelly.
    In an action of partition commenced, by the heirs, one citation addressed to the surviving ■wife in her individual capacity and as natural tutrix of her minor children is sufficient. In such a case there is not such a confliction of interest as requires the interposition of the under tutor.
    The tutor or tutrix is the proper party to invoke a family meeting for the purpose of deliberating on the question of a judicial partition where minors arc interested.
    APPEAL from the Fifth District Court, parish of Orleans.

      Reaumont, J. MeQloin (& Kleinpeter, for appellant.

      Randolph, Singleton & JBrowne, for appellee.
   Tali arerró, J.

This -suit is founded on a rule taken upon the defendant to show cause why she' should not comply with the terms of «ale of a certain lot of ground situated in New Orleans and purchased by her at public auction on the twenty-sixth of March, 1870, by a duly licensed auctioneer of said city; she being the last and highest bidder for the property, and the same having been duly adjudicated to her, she is required by the proceeding taken against her to comply with the terms of the adjudication and receive title therefor.

The defendant answers by alleging defects in plaintiff’s title, averring that he acquired the property from Riddell, and that the latter acquired it by an act ot partition of the succession of his father, Dr. Riddell, which partition the defendant alleges was illegal, and therefore void, for the’ reason that the formalities ot law required in judicial partitions were not observed in making the partition of the succession in question.

The judgment of the court was in conformity with the plaintiff’s motion, and the defendant has appealed. The case comes up on a statement of facts and admissions of the parties.

The excejitions taken to the proceedings in partition are numerous and of a technical character. First. That the citation was directed to the natural tutrix individually and as tutrix of her minor children, whereas two citations should have issued, one to Mrs. Riddell in person and the other to her as tutrix. We see no weight in this objection. The citation informed her that on her own behalf as having an interest in the succession and as the representative of her minor children she was called upon to show cause why a partition should not be made. The co-heir having an interest, had a right to compel a partition. It was his duty to cite the other parties in interest. In this incipient proceeding there was no such confliction of interest betwefen the tutrix and minors as made it necessary for the under tutor to represent them. These remarks embrace the first and second grounds. The third is that no trial was had on the issues made. A decree of partition was rendered. It was not appealed from, and seems to have been satisfactory to all the parties. Fourth. That the calling a family meeting to deliberate upon the manner of making tlie partition and advise in relation to tlie proceeding on the part of the minors was made by petition of the tutrix instead of tlie under tutor. We tbink it was the province of the tutrix to act in that case. Fifth. That there was in the incipiency of tlie proceedings such a confliction of interests as required the separate appointment of a tutor ad hoc to each minor. No such confliction of interest is shown. In the ulterior proceedings, especially in the act of making the partition, separate tutors were severally appointed for the minors. These tutors ad hoc specially appointed were duly sworn, and acted for the minors.

From tlie statement of facts we find there is no support given by them to the ground taken by the defendant that the partition was not duly homologated. The act of partition being completed, the notary by whom it was drawn up filed it in the proper court. A motion was filed by the tutrix suggesting the filing of the instrument, and obtained nn order that the various special tutors show cause on a day fixed why the act of partition should not be homologated. Service of ciiation and petition was- moved by all the tutors ad hoc. The motion was tried, counsel for the parties were present, the order of homologation was duly rendered and signed.

We see nothing in all the various objections rendering null these proceeding's, which took place in 1867, and seem to have been regular and sufficiently in compliance with law.

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


text:
    No. 2287.
    G. M. Bender v. James T. Belknap.
    A party is estopped from contradicting in a subsequent action what he has judicially admitted or averred to be true in a previous action between the same parties.
    APPEAL from the Fifth District Court, parish of Orleans.

      £eaumont, J. Semines <& Mott, for plaintiff and appellant.

      W. JB. Koonis, for defendant and appellee.
   Wyly, J.

The plaintiff alleges that in his absence one James F. Ainsley took possession of his plantation, cotton and other property in the parish of Caddo, and on the twenty-seventh of August, 1863, sold to one J. Dryfus fifty bales of said cotton, giving his written obligation to deliver the same to said Dryfus or any holder of said instrument, at Shreveport, when called on so to do, and in the meantime to keep the possession thereof; that at a subsequent period said written contract got into possession of the defendant, who claimed it as his property, and by means thereof succeeded in getting possession of thirty-eight bales about the month of March, 1865, which were worth at tho timo $300 per bale. Alleging that said Ainsley was wholly unauthorized to alienate his said property, he prays judgment against the defendant for the value thereof, to wit, $11,000.

The answer is a general denial and the averment that the acts of tho defendant in reference to said cotton wore as agent for Martin Gordon, Jr., and this he made known to all the parties with whom he dealt. The court decided in favor of tho defendant-, and the plaintiff appeals.

Our attention is directed to a bill of exceptions taken by tho plaintiff to tho evidence of certain witnesses admitted by the court to prove that the defendant acted as an agent in regard to tho cotton mentioned, and the value thereof claimed in the petition, and that the delendant did not receive any of the-proceeds of the said cotton when sold, and never had possession thereof, but that he merely acted as agent or broker for Martin Gordon, Jr. The objection to this testimony was that it contradicted tho judicial allegations and sworn averments of tho pleadings in the case of James T. Belknap v. G. M. Bender, on the docket of the district court, parish of Caddo, a duly certilied copy of which suit had already been offered in evidence by the plaintiff and was then before the court.

We think the court erred in receiving the testimony. The defendant was estopped by matter of record from denying his sworn averments and admissions in the suit which he brought at Shreveport against the defendant for nineteen bales of the cotton which ho claimed under tho contract between Ainsley and Dryfus. That suit was between the same parties as in this suit, and was to compel Bender to deliver nineteen bales to complete the contract between Ainsley and Dryfus, under which the delendant acknowledged that he received thirty-one hales, and by virtue of which he sought to recover the balance, to wit, nineteen halos. In that suit the defendant, Belknap, claimed to be the owner of the property due under tho contract, and acknowledged having received thirty-one bales thereunder, and he averred tho cotton was worth $300 per bale. lie obtained a writ of sequestration upon his oath that the averments of his petition were true, and he gave a bond as owner of the property. His suit was abandoned subsequently, and dismissed from the docket on the demand of Bender, the defendant therein, the plaintiff in this case.

It is a well settled rule in the administration of justice that a party will not be permitted to deny what he has solemnly acknowledged in a judicial proceeding. The defendant will not be heard to contradict Lis sworn statement that he received tho property in controversy as owner. The only means of courts to protect the integrity of judicial proceediugs are the sanctity which the law throws around them, and .if all the restraints of justice and truth are lost sight of by litigauts, the law itself meets the emergency by holding- the parties to their allegations of record, and not permitting tliem to falsify what they have solemnly declared to be the truth.” Deuter v. Erwin, 5 An. 18; Gridley v. Conner, 4 An. 416; Freeman v. Savage, 2 An. 269.

We think the plaintiff should have judgment for the value of the thirty-one bales which the defendant acknowledges having received from Ainsley, who was wholly unauthorized to sell the same, the said value being $300 per bale according to the judicial averments of the defendant.

It is therefore ordered that the judgment herein be avoided and annulled, and it is ordered that there be judgment in favor of the plaintiff and against the defendant for $9300, with five per cent, per annum interest thereon from the twenty-seventh of October, 1865, and costs of both courts.


text:
    No. 3437.
    State ex rel. New Orleans and Havana Steamship and Lottery Company v. The Judge of the Eighth District Court.
    The judge a quo is vested witlx discretionary power and authority to dissolve an injunction on bond. The writ of mandamus will not therefore issue from the appellate court directing the judge a quo to dissolve it on bond.
    APPLICATION for Writ of Mandamus.

      Cotton cfi Levy and Albert Voorldes, for relators.

      IT. C. Dibble, Judge, respondent.
   IIowe, J.

The relators being under injunction in the Eighth District Court, applied to the judge thereof to have the injunction dissolved upon their giving bond under article 307 C. P. The judge, in the exercise of the discretion reposed in him by the article under which the application was made, declined to dissolve the injunction.

Tile relators now apply to this court for a mandamus to compel the Judge of the Eighth District Court to dissolve the injunction ; in other words, to compel him, in the exercise of a distinctly conferred discretion, to do what lie thinks he ought not to do, and therefore does not. choose to do.

The doctrines that a mandamus can not be used to compel the performance of a discretionary act, and that this court will issue the writ, only in aid of its appellate jurisdiction, are well settled.

An appeal from the action of a district judge under article 307 C. P. may lie in certain cases, as in De la Croix v. Villeré, 11 An. 39, and White v. Casanave, 14 An. 57, but we perceive no legal reason for the mandamus asked for in this case. As well might we issue a mandamus to compel the judge to decide the cause on its merits in such a manner as to suit the wishes of the relators and our own views of law and fact.

Mandamus refused.


author: Howell, J.

text:
    No. 2432.
    Michel Dietrich v. L. Bayhi and H. D’Aquin.
    A stipulation in a written obligation to pay money that in case judicial proceedings be instituted to enforce payment, the lawyers’ lees, fixed at ten per cent., to be at the cost of the maker, does not change its character from that of an ordinary promissory note.
    A presentment by the notary of a promissory note to the maker for payment, is sufficient if made at his usual place of business, within reasonable hours, although he be absent therefrom at- the time, because if absent during business hours he is bound to have someone there to represent him.
    APPEAL from the Fourth DistrictCourt, parish of Orleans.

      TMard,J. A. & P. Robert, for plaintiff and appellee.
    F. Mtselier, for defendants and appellants.
   Howell, J.

H. D’Aquin has appealed from a judgment against him as indorser on the following note, to wit:

“ $4305. New Orleans, August 14,'1868.
Six months after dato I promise to pay to the order of Michel Dietrich forty-three hundred and five dollars, for value received, negotiable and payable without defalcation or discount. Should the note not ho paid at maturity, and judicial proceedings he instituted, the lawyer’s fees, fixed at ten per cent., to be at the cost of the maker.
(Signed) ' LEON BAYHI.
(Indorsed) II. D’AQUIN,
MICHEL DIETRICH,
MRS. JOHN GAUCHE.
MICHEL DIETRICH, Attorney.”

Judgment was asked and rendered only for the sum of $4305 and costs of protest aud suit, with legal interest from date of maturity of this instrument.

The appellant’s defense is that ho is in no manner liable on the said instrument as indorser, security or otherwise, because it is not a promissory note according to the intendment of the mercantile law,, and hence his signature is blank on the back of the instrument, he not being the payee, does not hind him as guarantor, surety or indorser under the commercial law or the civil law of Louisiana, and admitting; it is commercial paper, he is released by the want of legal presentment and demand.

Wo think the additional clause to pay ten per cent, as lawyer’s fees, which are not claimed in this suit, did not change the character of the instrument and make it different from what it is expressly declared to be, a note for a sum certain, payable at a date fixed. The payment of the sum was not made dependent on any condition. We consider the-presentment and demand legal. The protest says the notary, “in-order to present the said note, went to the office of the drawer, of this-city and found no one in or about the premises of whom demand eould be made, left my card on the desk of said drawer, stating the object of my call, and at the close of business hours had received no answer thereto.”

It is well settled that a presentment at either the dwelling or place of business of the maker is sufficient, if within reasonable hours, and if at the place of business, it will be sufficient if made within the usual hours of business, although he be absent therefrom, for in both instances he is bound to have a suitable person there to answer inquiries and pay his notes if there demanded. Story on Notes, section 235.

Judgment affirmed


text:
    No. 3462.
    State ex rel. D. C. Byerly v. The Judge of the Eighth District Court of New Orleans.
    A third party who shows an interest in a suit in amount sufficient to give the appellate court jurisdiction, may appeal from such judgment, and a mandamus will issue from the Supremo Court, on ai)plication of such third party, directing the judge a quo to grant the appeal.
    APPEAL from the Eighth District Court, parish of Orleans.

      Semmes & Holt, for relator.

      W. II. Gtoley, Judge of the Sixth District Court for the parish of Orleans, presiding in the Eighth.
   Taliaferro, J.

The Clerks of the Fourth and Eighth District Courts of New Orleans having obtained judgment in their favor iu a proceeding by mandamus to compel J. S. Walton, Administrator of Finance of the city of New Orleans, to institute all suits under his control in his said capacity, wherein the city of New Orleans may claim taxes due it for the year 1870, irrespective of the amount involved, in the Fourth and Eighth District Courts, (respectively, iu equal aggregate amounts sued for, the relator in the present case, who is Clerk of the Third District Court of the parish of Orleans, conceiving himself aggrieved by the judgment, applied to the court by which it was rendered for a suspensive appeal. The appeal was refused, and he applied to this court for a mandamus to the Judge of the Eighth District Court requiring him to grant the appeal.

In answer to the rule granted by this court, the Judge of the Eighth ' District Court assigns as reasons for refusing to grant the appeal:

First — -That this court is without jurisdiction ratione materia to hear and determine the questions raised by the pleadings in the case wherein the judgment complained of was rendered.

Second — That relator’s interest in the suit, by his own showing, is not such as to entitle him to an appeal, as the judgment can work no injury to him, it being so far as relates to the judgment obtained by him in a similar case, res intercilios acta.

The point decided is that the Fourth and Eighth District Courts of the parish of Orleans are entitled, under the provisions of the act of the Legislature approved March 13, 1871, No. 48, to jurisdiction of all suits of what amount soever for the recovery of taxes imposed by or due to the city of New Orleans. The Clerk of the Third District Court contends that that court is vested by law with exclusive jurisdiction of all tax suits contemplated by the acts of the Legislature in relation to the city taxes, where the amount of the tax is. less than $100; and if the jurisdiction of claims for these small sums be illegally transferred to the Fourth and Eighth Courts, he will be deprived unjustly and unlawfully of the costs that might arise in the prosecution of all claims for taxes amounting in each case to less than $100.

It is settled by several decisions of this court that a.third party may appeal from a judgment if he allege and show a direct pecuniary interest in a suit, and that that interest amounts to a sufficient sum to give jurisdiction to the appellate court. The relator in this case made bath in the court below that he has an interest in the judgment appealed from to an extent exceeding $ 1000, resulting from fees of office accruing to him as Clerk of the Third District Court. Wo think the appeal prayed for should have been granted.

It is therefore ordered that the rule be made absolute.


author: I-Iowe, J.

text:
    No. 2328.
    O. B. Graham & Co. v. Hemard & Hattier.
    A defendant is essentially a plaintiff when ho malees a reconventional demand. Xlie burden of proving the demand in roconvontion, therefore, falls exclusively on the defendant.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. Ilornor é Benedict, for plaintiffs and appellants.

      B. II. Mo Caleb and B. Wooldridge, for defendants and appellees.
   I-Iowe, J.

This is an action for a balance of account alleged to be due by defendants for advances, etc., made by plaintiffs on cotton shipped through their house to Liverpool by defendants.

There does not seem to be any dispute as to the amount of advances and charges, but the contest is over the reconventional demand of defendants, which, if sustained, brings the plaintiffs in debt. There was judgment in the lower court in favor of defendants for $1129 06, and plaintiffs have appealed.

The reconventional demand is founded upon the allegation that defendants shipped though plaintiffs’ house to Liverpool, per “Antonia,” sixty bales of cotton; that the plaintiffs were instructed and agreed to sell it as soon as it should arrive; that if so sold in February, 1866, it would have brought nineteen and a half pence per pound; that in violation of their duty and agreement the plaintiffs did not sell this cotton until August and September, 1866, and at much lower prices, and thus caused great loss and damage to defendants.

It is of course incumbent on defendants, who are to all intents and purposes plaintiffs in reconvention, to establish with legal certainty their claim for damages. A careful examination of the record will show that they have'not done this. On the contrary, the impression produced by the testimony is, that the sixty bales of cotton in question were shipped through plaintiffs’ firm under an arrangement which left, them a sound discretion as to time of sale, and that such discretion has-not been abused.

It is therefore ordered that the judgment appealed from be avoided and reversed, and the reconventional demand of defendants dismissed. It is further ordered that the plaintiff's, O. B. Graham & Co., Iiavejudgment as prayed for against Charles Hemard and Victor Hattier,. composing the firm of Hemard & Hattier, defendants herein in solido, for the sum of $4683 54, with legal interest from December 1,1865, with costs of both courts.

Rehearing refused.


text:
    No. 3436.
    Jane Wetmore v. Mutual Aid and Benevolent Life Insurance Association of Louisiana.
    One of tlie clauses in tlie policy of a life insurance issued by the Benevolent Aid and Life-Insurance Company of Louisiana was, that the insured agreed to pay into the treasury of the association one dollar and twenty-live cents upon tlie death of any member, within thirty days after date of said death, being notified thereof by publication in one daily newspaper published in the cit,y of Hew Orleans in English, German, and one in Erencli for five consecutive days. Held — That under this clause tlie 'assured was allowed tlieentire thirty days, commencing and counting from and after the last of the five days of publication. That tlio company could not claim the forfeiture of the policy on that account until thirty days alter the last of the five clays of publication bad expired.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble,. J. T. A. Bartlette, for plaintiff and appellee.

      J. D. Ilill & II. II.. Ogden, for defendants and appellants
   Taliaferro, J.

On the third of June, 1870, the defendants insured' the life of Robert Hancock Wetmore, who died on the ninth of September following. This suit is brought by tlie widow of tlie decedent’ to recover on tlie policy tlie sum of $2935, the amount insured for, and interest on that amount at five per cent, from ninth November, 1870. The answer admits that the policy of insurance was taken out as stated, but defendant avers that the insured party having- failed to-comply with one of the conditions stipulated in the policy tlie a.ct became void, and that defendant is not bound. The judgment of the lower court was rendered in favor of the plaintiff for the sum claimed,, and the defendants have appealed.

The condition referred to in the defense reads thus: Said Robert. Hancock Wetmore hereby agrees to pay into the treasury one dollar and twenty-five cents, upon the death of any member of the association, within thirty days alter date of said death, being notified thereof by publication in one daily newspaper published in the city of New Orleans in English, German and one in French for five consecutive days.”

The company say that this assessment on Wetmore, made on the decease of Joseph Parisoy, was due and unpaid until the expiration of the thirty days, at the end of which time the policy became forfeited, so that on tlie ninth September, 1870 (the day of Wetmore’s death), the policy by its terms and conditions was null and void, and conse^quontly no rights of any sort arose in favor of the plaintiff. The case turns upon the solution of the question, from what day does the thirty days begin to run? If the thirty days begin to run from the first day of publication, the time had elapsed before Wetmoro’s decease. If the commencement be on the last day of publication, the full period of thirty days did not elapse until after his death.

If the time begin to run from the first day of publication, why should the publication be required to be made for five days consecritively ? The reason for requiring five days publication would seem to be that this repetition of the publication for five days would be more likely to bring to parties interested knowledge of the event published than a single insertion in the gazette. Taking, then, this construction of the clause stipulating tlie condition as correct, the publication five times is to be considered the notice, and to be deemed equivalent to notice served personally. Therefore the last day of publication, and not the first, is the period from which the thirty days begin to run. It was upon this, and as we think the correct view of the question, the judge a quo decided in favor of the plaintiff.

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


author: Taliaferro, J. Wyly, J.

text:
    No. 3187.
    Jacob U. Payne v. Biddy Graham, Tutrix.
    Real estate in tlie possession of a third party under a recorded title ostensibly valid can not be seized by a judgment creditor of Ms vendor, under the allegation of fraud, until the title itself lias been set aside by a direct action. An injunction -will therefore lie in favor of such tMrd possessor restraining the seizure and sale by the judgment creditor.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison.

      Rough, J. Breaux & Fenner, for plaintiff and appellee.

      F. D. Farrar, for defendant and appellant.

      Jacob Rawlcins, for defendant and appellant on rehearing.
   Taliaferro, J.

The defendant in this case, representing the succession of her husband, having obtained a judgment against Charles J. Hester, issued an execution and caused to he seized by the sheriff several tracts of land as property of Hester. The plaintiff enjoined the sale on the ground that he is the owner of the property, and in possession of it under title duly recorded in the parish of Madison on the sixth of November, 1869. Tile plaintiff had judgment perpetuating the injunction, and the defendant appeals.

In its important features, this case bears a close resemblance to the «ase of Mary B. Waddill v. Payne & Harrison, just decided, and it must be disposed of on tlie same grounds.

Payne & Harrison having a judgment against Hester, rendered by the Fourth District Court of New Orleans, recognizing a special mortgage on four tracts of laud in the parish of Madison, and ordering the sale of them to pay a large debt owing by Hester to Payne & Harrison, seized under execution the mortgaged lands, which were sold, ■excepting one tract previously sold at sheriff’s sale under tlie judgment in favor of Graham’s succession, and the sale of which, under Payne & Harrison’s judgment, was enjoined by Mrs. Waddill when advertised for sale under the seizure of Payne & Harrison. Tlie sale went on as to the other tracts, and the plaintiff in this suit became the purchaser. The mortgage in favor of Payne & Harrison being the oldest of record in the parish of Madison against the property of Hester, and containing the pact ele non alienando, no sale of any of the lands could legally have been made under tlie judgment and judicial mortgage of Graham’s succession, unless they brought a sum exceeding the amount of the older mortgage. The second seizure under the same judgment, and which forms the subject of the present litigation, can have no .greater effect. It seems, however, that the defendant lias proceeded upon the assumption that the judgment of Payne & Harrison, rendered by the Fourth District Court of Now Orleans, is an utter nullity, presenting the same arguments that were used to sustain the injunction in the case of Mary B. Waddill v. Payne & Harrison. The grounds taken by the plaintiff in that case we considered untenable for the reasons there assigned, and we reler to them as applicable in this case. Besides, the defendant having merely a judicial mortgage, and that of posterior date to the special mortgage of her opponents, and not even alleging simulation in the act by which Payne & Harrison acquired title, we are not clear that she could properly attack their title and possession by a direct seizure.

It is therefore ordered, adjudged and decreed that the judgment rendered by the district court be affirmed with costs.-

Mr. Justice Wyly took no part in this decree

On Rehearing.

Wyly, J.

The defendant, Biddy Graham, tutrix, appeals from the judgment perpetuating the injunction herein 'sued out by the plaintiff, decreeing the latter to be the owner of the land seized, and condemning the defendant in solido to pay $500 damages.

At the time the land in question was seized by the sheriff under the judgment of Biddy Graham, tutrix, v. Charles J. Hester, it was possessed by the plaintiff as owner under a recorded title ostensibly valid. It has been repeatedly held that such a title can not be attacked collaterally. 23 An. 134.

On this ground alone, and without expressing an opinion in regard to the other points presented in the case, we think the injunction should be perpetuated, reserving, however, the right of the defendant, Biddy Graham, tutrix, to inquire, in a direct action, into the validity of the title asserted by the plaintiff to the land in controversy.

It is therefore ordered that the judgment of this court, of the thirteenth day of March, 1871, be set aside, and it is now ordered that the judgment of the court below be amended by striking out that part thereof recognizing the validity of the plaintiff’s title, and as thus amended that it be affirmed. It is further-ordered that the plaintiff pay costs of appeal.

Chief Justice Ludeling is recused in this case.


text:
    No. 3188.
    Mary B. Waddill v. Payne & Harrison.
    A judgment- rendered without legal citation to the defendant is absolutely null and void, and the nullity may he shown by any party in interest, wherever and whenever it is sought fro be enforced.
    The nullity of a judgment resulting from failure to cito the defendant may bo nrged before-the court having jurisdiction of the property sought to be made liable to it, although it may have been rendered in another paidsh hy a court which did not have jurisdiction of the property, and the party interested may, before the court having jurisdiction of the property stay its execution by the wilt of Id junction pending the inquiry into its nullity. S3 An. 537.
    The fact that the judge a quo has pronounced a citation good and sufficient, and has rendered a judgment thereon, which has not been appealed from, and has thereby become finalr docs not conclude the defendant or any other party interested from urging its nullity for want of citation whenever and wherever it is sought to ho enforced.
    A station must be addressed to the defendant and served upon him or his agont. A citation addressed to a third party and served upon the defendant is not binding upon and will not authorize a judgment against the defendant. A citation addressed to a third party, who is the authorized agent of the defendant, and served upon him, is not binding upon and will not authorize a judgment against the defendant.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison.

      Hough, J. H. JD. Farrar, for plaintiff and appellant.

      ■7. Hawkins, for plaintiff, on rehearing.

      Breaux & Fenner, for defendants and appellees.
   Taliaferro, J.

The plaintiff enjoins the sale of certain land» seized by tlie defendants under fieri facias as judgment creditors of Charles J. Hester. She alleges that she is in possession of the lands seized as owner, having bought the same at a sheriff’s sale made ou the third of April, 1869, under execution issued against Hester at the suit of Biddy Graham, tutrix and administratrix, v. C. J. Hester. She exhibits the sheriff’s deed as a muniment of title.

The defendants answer:

First — That plaintiff's petition discloses no cause of action.

Second — That defendants having prior special mortgages on the property when sold at the suit of Graham v. Hester, the plaintiff was compelled to assume the payment of all prior existing special mortgages; she has, therefore, no interest to justify her in bringing this suit; that she can only pay the defendants’ debt secured by their mortgages upon the land or give up the land.

Judgment in tlie court below was rendered in favor of the defendants, dissolving the injunction, and the plaintiff has appealed.

This suit is the protraction of a litigation that was commenced between these parties in October, 1869. Payne & Harrison having seized these same lands under their judgment against Hester, recognizing their mortgages, Mrs..Waddill took out an injunction to prevent their being sold. The injunction was dissolved by the district court and she appealed to this court. The judgment of the district court was reversed by this court, principally on tlie ground that the seizing creditors, not having shown that their acts of mortgage contained the non-alienat:on danse, could not attack the title and possession of Mrs. Waddill by a direct seizure under an execution against a former owner. Upon the dissolution of the injunction on the trial of that case in the ■district court, Payne & Harrison caused a second fieri facias to issue and again seized tlie land. Mrs. Waddill again enjoined the proceeding and we have the contest again before us, with a wider range of evidence that enables us to have a clearer view of the merits of tlie controversy.

We find that on the third of August, 1857, Ransom Graham sold to Charles J. Hester several lots or parcels of land, composed of entries at the United States Land Office of the proper district, amounting in all to about seventeen hundred acres. This sale was made on a credit for the greater part of the lírico of one, two and three years, from the first of January next ensuing, a part to be then paid. A special mortgage and the vendor’s privilege were retained to secure tlie payment ■of the purchase money. Graham died in 1859 and his wife, Biddy Graham, became his administratrix and tutrix of her minor children. Mrs. Graham, in her said capacity, brought suit against Hester in 1861 on his obligations for the payment of the price of his purchase, and ■obtained judgment against him on the twenty-ninth of October, 1861, with recognition of the mortgage and vendor’s privilege. The judgment was recorded the same day it was rendered. An execution followed, the land was seized and sold on the third of April, 1869, and purchased by Mrs. Waddill at the price of $600, leaving a large balance still due on tbe judgment. The mortgage retained by Graham in his sale to Hester in 1857 was never reinscribed and consequently lost its rank on the third of August, 1867, as the first mortgage on the property, the succession of Graham thereafter having only a judicial mortgage, dating and taking rank from the twenty-ninth of October, 1861. Hester, to secure a large indebtedness to the house of Payne & Harrison, of New Orleans, executed two mortgages in their favor on four separate tracts of land, containing over three thousand acres, all lying in the parish of Madison, one of these tracts being the land 'he purchased from Graham in 1857. The first of these mortgages was recorded in that parish on the eighteenth of March, I860; the second <on the nineteenth of January, 1861, and reinscribed on the first October, I860. This mortgage, dated fourteenth December, 1859, and reiuscribod first of October, 1869, contains the pact de non alienando. It was given to secure the payment of $44,000, to be paid in two annual installments, for which six several promissory notes were ..given — three in amount equal to one-half the debt, payable in one year after date, and three in like manner equal to half the debt, payable two years after date. The mortgageor confessed judgment and renounced the benefit of all laws then in force in Louisiana requiring defendants to be sued in the parish or district of their domicile, and in case of legal proceedings against him to foreclose the mortgage, accepted the jurisdiction of any of the district courts of the city of New Orleans and stipulated that notice served on P. L. Mitchell or Walter Huntington, of New Orleans, of all judgments, orders of court, citations and copies of petitions, should be equally as binding as if delivered to or served on himself. Payne & Harrison, in conformity with the conditions and stipulations expressed in this act, proceeded via ordinaria to obtain judgment on their debt in the Fourth District Court of New Orleans on the fifth of May, 1866. By this judgment the right of mortgage was recognized and the land mortgaged ordered to be seized and sold. Execution issued on the judgment and all the lands specified in the mortgage were seized and sold, except that portion of them which Hester bought of Graham and which had been previously sold at sheriff’s sale under the judgment of Graham’s ■•administratrix, and bought by Mrs. Waddill.

The plaintiff’ resists the claim of the defendants on two grounds:

First — That the pretended judgment rendered by the Fourth District Court of New Orleans is a nullity and cad confer no rights upon the defendants. Plaintiff alleges as cause of the nullity that Hester, the defendant in that case, was not cited; that he never had a domicile or residence within the jurisdiction of that court; and that no service was ever made upon him or upon a legally authorized agent representing him.

Second — -That the judgment was rendered upon notes that were prescribed.

First — The waiver of domicile, acceptance of the jurisdiction of the courts of New Orleans and the appointment of agents to represent him and upon whom citation might be served, are all acts which I-Iester, at the time, had the right to do. Tlie proceedings which the defendants predicated upon the rights then accorded to them, although not resorted to until after the passage of the law of 1861, prohibiting parties from electing domicile for the purpose of being sued, were legal, because the subsequent legislative act did not impair those rights. • This question was settled by this court after able discussion by counsel in the case of Jex v. Keary. 18 An. 81.

The plea of prescription is not well taken. Three of the notes, amounting to $22,000, were not due until the fourteenth of December, 1861. Citation was served upon Hester’s agents on the tenth of April, 1866, eight months before the term of five years expired.

After the peremption of the mortgage from Hester to Graham on the fourth of August, 1867, the defendants’ mortgage, which embraced tlio lands purchased by the plaintiff, was first in priority of rank and spread upon the records of the parish of Madison. The land in controversy being affected by it, a valid sale of the land could only have been made by selling it for a sum exceeding the amount of tiie prior mortgage. This was not done and the mortgage of the defendants consequently still attaches and the property may be made subject to it.

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

Mr. Justice Wyly took no part in this decree

On Rehearing.

Wyly, J.

The plaintiff appeals from the judgment dissolving the injunction sued out by her, to restrain the sheriff from selling the tract of land described in the petition, which she claims as owner, to satisfy the judgment of Payne & Harrison against Charles J. Hester, obtained on the fifth day of May, 1866, in the Fourth District Court ot Now Orleans, which said judgment renders executory a special mortgage bearing on said land, given by the' said Charles J. Hester, the former owner thereof, on the fourteenth day of December, 1859.

The grounds taken for the nullity of the judgment sought to be executed on the land claimed by the plaintiff are, that the Fourth District Court of New Orleans was without jurisdiction to render the. judgment of the fifth of May, 1866, against Charles J. Hester, who was a resident of the parish of Madison, by reason of the act of 1861, amending article 1G2 of the Code of Practice, and that the said Charles J. Hester was not legally cited.

To this the defendants reply that the citation was sufficient;1 that it was adjudged by the Fourth District Court to be sufficient, and whether right or wrong, that decision can only bo reversed on appeal; and that if the judgment were null, the only court competent to pronounce its nullity is the Fourth District Court.

Citation is the foundation of the action, and a judgment without it or the appearance ot the party sued is a nullity so absolute that it can be shown whenever and wherever it is sought to be enforced. In Simpson v. Hope, sheriff, et al., 23 An. 557, this court held that the court having jurisdiction of the parish where the defendant resided and had his domicile had jurisdiction to enjoin the execution of a judgment against him rendered without citation in another parish, and that parol evidence was admissible to show the fact. In Stevenson & Co. v. Riser et al., 23 An. 421, this court affirmed the judgment of the Second Judicial District Court, parish of Jefferson, declaring null the judgment of the Third District Court of New Orleans for want of sufficient citation. In Leblanc, Jr., & Co. v. Perraux et al., 21 An. 26, this court said: “It is well settled that a judgment rendered against a party who has never been cited nor appeared, is an absolute nullity; tha" a court can presume nothing with respect to a party being cited; that nothing will cure defect of citation or want of service except appearing and answering to the merits.” * * * *

There is no force in the position that the sufficiency of the citation can not be inquired into, because the Fourth District Court, at the same time it confirmed the default against Hester, decided that the citation was sufficient, and no appeal was taken from that judgment. If Hester was not legally before the court, no part of the judgment was valid. If the court did decide that Hester was legally cited, as the defendants aver, but which fact does not appear in the record, it did not mend the matter, because Hester not'being before the court, that judgment was not rendered contradictorily with him, and therefore did not bind him.

The mam question, however, is, was Hester legally cited? If he was not lawfully before the Fourth District Court of New Orleans, the judgment of the fifth day of May, 1866, against him rendering executory the mortgage bearing on the property claimed by the plaintiff is not valid, and ought not to be executed. . In that suit we find that the citation addressed to Charles J. Hester was not served on any one, the sheriff’s return stating that, “ after diligent search and inquiry, Charles J. Hester, the defendant herein, could not be iound.” * * * The only citations upon which that default was confirmed were addressed one to Walter Huntington and the other to P. L. Mitchell, and they were served upon them individually

The defendants contend that this was sufficient, because in the act of mortgage from Hester to Payne & Harrison, executed fourteenth day of December, 1859, there is the following clause, which justifies the manner of citation resorted to, to wit;

“And the said Charles J. Hester further renounces the benefit of all laws now or hereafter in force in the State of Louisiana, requiring defendants to be sued in the parish or district of their residence or domicile, and in case of legal proceedings against him for the purpose of foreclosing the present mortgage, he binds himself to accept, and lie hereby expressly and formally accepts the jurisdiction of any of the district courts of the city of New Orleans, or of the district court ■of the parish of Madison, * * * hereby agreeing that notice served ■on P. L. Mitchell or Walter Huntington, of this city, of all judgments, orders of court, and likewise citations and copies of petitions, shall be ■equally as binding as if delivered to or served on himself.”

In the petition we find the following prayer:

“Wherefore, they pray that said Charles J. Hester bo made defendant and cited to answer this petition, and if not cited that the said P. L. Mitchell and Walter Huntington be cited to answer in his place and stead; that they and each of them be served with a copy of this petition, and be recognized as fully authorized to represent and answer for the said Charles J. Hester in this suit, and that the said service of citation herein, and of all other notices herein on them or either of them, be adjudged to be as binding on the said Hester as if the same had been delivered to and served on him.”

In the clause of the act of mortgage quoted we fail to perceive any waiver of citation, if such could be legally made in advance when the debt was contracted; nor is there any waiver of the formalities required by article 179 C. P., to constitute a valid citation.

The agreement “that notice served on P. L. Mitchell or Walter Huntington, of this city, of all judgments, orders of court, and likewise citations and copies of petitions, shall be equally as binding as if delivered or served on himself,” did not bind Charles J. Hester to waive citation, nor did it amount to a waiver of the requirement that the citation “must mention the title of the cause, the name of the defendant to whom it is addressed,” and the other formalities required by article 179 C. P.

The clause appointing agents on whom citation may be served, can not fairly be construed as an agreement that there shall be no citation, or the formalities in the citation may be dispensed with.

If the citations served upon P. L. Mitchell and Walter Huntington had been served on Hester himself, they would not have been sufficient to bring him legally before the court. How such citations, when served upon parties claiming to be agents of Hester, under the clause in the act of mortgage to which we have referred, can be more efficacious than they would be if served on their principal, we can not imagine.

If the rule that the “court can presume nothing with respect to a party being cited,” and “that nothing will cure defect of citation or want of service except appearing and answering to the merits,” 21 An. 26, is to be adhered to, we do not see how the judgment against Hester ■can be valid, because the only citation in the suit addressed to him was not served, and the citations addressed individually to Mitchell •and Huntington were not citations to Hester. Hester’s agreement that citations for him might be served on Mitchell or Huntington, might mate the service in that manner valid; but it could not make valid a •citation upon its face invalid. 12 L. 596.

The authorities of Cooper v. Polk, 2 An. 159, and Monition of Hall, 21 An. 692, declaring the citation for an absentee valid, if addressed either to the party or his curator ad hoe, relied on by tlie defendants, are not applicable to this case. Here the citation was not addressed to Hester or to a curator acl hoe, Hester being not an absentee, but a resident of the parish of Madison.

“Citation must be addressed to the defendant in the suit, otherwise it is detective and void.” Bertonlin v. Bourgoin, 19 An. 360; C. P. 179, 206; 6 L. 577; 5 N. S. 429; 18 An. 481; 21 An. 630; 17 L. 42; 2 L. 169; 7 N. S. 161; 13 An. 405; 21 An. 482.

We conclude, therefore, that the judgment of the defendants, Payne & Harrison, against Charles J. Hester, sought to be executed on the land claimed by the plaintiff, was a judgment without citation, and †1 erefore it is an absolute nullity. 23 An. 421; 1 N. S. 9; 2 R. 512; C. P. 206.

The plaintiff, possessing the land as owner, has sufficient interest to have the nullity pronounced. 23 An. 134.

Taking this view in regard to the citation, it becomes unnecessary to examine the question of jurisdiction of the Fourth District Court, by reason ol the act of 1861 amending article 162 C. P., or to consider the ruling of this court in Jex v. Keary, 18 An. 81, as to the correctness of which we express no opinion.

As to the validity of the title of the plaintiff to the land seized, it will be time enough to consider that when the defendants shall have instituted legal proceedings to subject it to their mortgage, if they have one. They will not be permitted to sell the land under a judgment found to be absolutely void, however defective and imperfect the title of the plaintiff may be.

Id is therefore ordered that the decree herein of this court of thirteentli day of March, 1871, be set aside, and that the judgment appealed from be avoided and annulled; and it is now ordered that the injunction sued out by the plaintiff be perpetuated, and that tlie judgment sought to be executed be decreed an absolute nullity. It is further ordered that the defendants, Payne & Harrison, pay costs of both courts.

Mr. Justice Taliaferro adheres to the former decree in this case

Chief Justice Ludeling recused.


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    No. 3502.
    The State of Louisiana ex rel. John C. Golding et als. v. James Graham, Auditor.
    The Board of Assessors for tlie year 1807, who were removed from office before the one per cent, tax was levied by the General Assembly of 1868, have no right or claim to the per cent, allowed them as assessors, on the ground that their successors used the assessment rolls prepared by them in assessing the one per cent, tax of 1868. The suit against the Auditor to compel him to warrant on the treasury for such a demand was held to be vexatious.
    APPEAL from the Eighth District Court, parish of Orleans.
    Dibble, J. John M. Cooney and B. 8. Dennie, for relators, appellees.

      Ilornor & Benedict, for Auditor, appellant
   Ludeling, C. J.

The relators were members of the Board of Assessors for the parish of Orleans in the year 1867. They aver that by the provisions of act No. 55, of the General Assembly of 1865, their compensation was fixed at three per centum on the amount of taxes on property, gross receipts, etc., and they claim that they are entitled to receive the same per centage upon the one per cent, tax levied by the act No. 114 of the General Assembly, approved twenty-ninth September, 1868, as the tax rolls of 1867 were used as the basis of this tax. They claim $44,076 44.

The evidence shows that the relators were removed from office on or about the seventeenth of July, 1868, months before the one per cent, tax was levied by the General Assembly. According to the theory of the relators, if the Legislature which is to convene next month should see fit to adopt the assessment of last year as a basis for levying the taxes for the current year, the assessors who made that assessment, who have been paid already for making it, would be entitled to be paid again. The proposition is preposterous. The suit is frivolous and vexatious, and we regret we have not the power to mulct the relators in damages.

It is ordered that the judgment of the court a qua be avoided and reversed, and there be judgment in favor of the defendant rejecting plaintiffs’ demand, with costs of both courts.


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    No. 2412.
    Thomas P. Leathers et al. v. John W. Cannon et als.
    Xu a suit for a settlement of partnership accounts, the question as to whether a certain fund is a partnership asset, belongs of right to the merits of the case, and should not be passed upon in an appeal from an order appointing a receiver
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. T. 8. McKay and Hace, Foster t& K. T. Merrich, for plaintiffs and appellees.
    A. iff K. Marr, for defendants and appellants.
   IIowe, J.

This is an appeal from an order granted upon the application of plaintiffs for the appointment of a receiver of certain funds in the hands.of Kennett & Bell, codelendants with Cannon, alleged to be assets of a partnership which had existed between plaintiffs and Cannon in the business oí owning and running a steamboat.

The answer of Kennett & Bell admits a balance in their hands of $4890 94 to the credit of the owners of the boat, and the plaintiffs claim that tisis is a partnership asset. The defendant Cannon admits that there was a partnership in running the boat, though he contends that the funds in the hands of Kennett & Bell, derived from the insurance on the boat after'her loss, and the sale of certain property of the boat, belong exclusively to him. He prays in his answer for a liquidation and settlement of accounts between the parties.

The right of the court to appoint a receiver is not contested. The sole ground urged by appellants, as we understand them, is that the fund is not a partnership asset. But we think this question would be more properly determined on a trial of the merits. Conceding the right of the court to appoint a receiver under the case presented by the plaintiffs’ petition, and this is not disputed, we think the record shows a state of facts justifying the order appealed from.

Judgment affirmed.

Rehearing refused..


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    No. 2878.
    City of New Orleans v. A. W. Walker
    The burden falls on a taxpayer, who aims to go behind the assessment roll, of showing that he applied to have it corrected within the time allowed by law
    APPEAL from the Seventh District Court, parish of Orleans.

      Oollens, J. Georye 8. Lacey, City Attorney, for. plaintiff and appellee.

      John 8. Tally, for defendant and appellant.
   Taliaferro, J.

We gather from the pleadings that upon a motion made in the Seventh District Court of New Orleans by the assistant city attorney, for judgment against the defendant on a tax bill amounting to $643 50, due the plaintiff, the defendant filed an exception and answer, averring that he is an inhabitant of the parish of St. Bernard, and is properly taxable there; that the property, assessed at $30,000, is not urban but extra urban property. He denies that he owes the plaintiff anything, and sets np against the plaintiff a large reconventional demand. The exception was overruled, the motion ior judgment against the plaintiff was sustained, and he prosecutes tills appeal.

We think the judgment of the lower court correct. The law prescribes the mode by which erroneous assessments of property may be corrected. It is by examining the assessment rolls within the time allowed the taxpayers for having errors corrected, of which due notice is given. Having failed to avail himself of the privilege of examining the tax rolls and having them corrected if necessary, the injury, if any, is the result of his own inattention. Vigilantibus, non dormientibussubvenit lex,

We do not see that he has made out by the proof he introduced that the property assessed at $10,000 is not taxable by the city. A party aiming to go behind the assessment roll ought to give some satisfactory reason why he did not have the corrections made within the time assigned for corrections. He should specially allege and prove the errors. 21 An. 439. All the formalities required by the special laws-for the assessment and collection of the city taxes appear to us to have been followed, and the defendant has not satisfied us that he is entitled to relief.

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


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    No. 3259.
    City of New Orleans v. Bernard Heres.
    . A person driving a Iiorse and vehicle through the streets of ÜKTew Orleans who, by inattention or negligence, allows the horse to run away, is liable to the city for the damage done to the public property of the city by the running away of the animal. The measure of damages in such a case is the injury done to the property,
    APPEAL from the Fourth District Court, parish of Orleans.

      Théarcl, J. George 8. Lacey, City Attorney.

      Clarice, Bayne <& Benshaio, for defendant and appellee.
   Wyly, J.

On the twenty-seventh day of September, 1870, the. defendant and his driver, with a horse and vehicle belonging to the former, stopped at a grocery store on the corner of Annunciation and Robin streets for the purpose of selling vermicelli. Defendant and his driver left the animal unhitched, and with no precaution to guard against Ms running away. While thus negligently and carelessly suffered to remain, the horse took fright and ran away with the wagon through the fence of Coliseum Square, and damaged the same to the amount of $6'00, as the plaintiff alleges, and for which sum prays, judgment against the defendant. The defense is a general denial.

The court gave judgment for' $20 and costs, and the city of New Orleans has appealed.

There is no doubt that the damage was occasioned by the gross negligence of the defendant or his driver, and that the plaintiff should recover judgment for the amount thereof. i

It is shown that the city lias-incurred the expense of $500 in repairing the railings; but, on the other hand, it is contended that the railings were not in good repair at the time the damage occurred, and such seems to have been the fact.

It is in proof that the defendant estimated the amount of the damage at $250. We have concluded to fix the amount of the damage at $375, the medium between the estimate of the plaintiff and that of the defendant.

It is therefore ordered that the judgment of the court a qua be annulled, and it is ordered that the plaintiff recover of- the defendant $375, with five per cent, per annum interest from judicial demand and costs of both courts.


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    No. 2339.
    A. T. Stewart & Co. v. L. Haas et als.
    If a suit or litigation bo settled by compromise, no one of the parties to the litigation can, alter recovering the portion allotted to liim by the settlement, bo permitted to deny his t sanction to the agreement.
    APPEAL from Ihe Seventh District Court, parish of Orleans.

      Collens, J. Elmore dc King, for plaintiffs and appellants.

      C. Boselius, Clarice ds Bayne and E. C. Billings, for defendants and appellees.
   Ludeling, C. J.

This suit grows out of the bankruptcy of Loeb, Simon & Co. The plaintiffs were creditors of said firm, and also of Mr. Simon individually. The partners owned jointly real estate which was sold by the assignee for about $76,000. The property appeared to be encumbered with mortgages for about $95,000, and the assignee took a rule upon the mortgage creditors to settle the rank of their respective mortgages. At this stage of the proceedings A. T. Stewart & Co. filed an opposition to the claims of all the mortgage creditors, alleging the nullity of all the mortgages. The mortgage creditors were E. A. Jacobs, Vincent & Co. and L. Haas. An agreement was entered into between the attorneys representing the plaintiff and the mortgage creditors that the mortgage creditors would pay to the plaintiffs $3000 if they would dismiss their opposition, so as to permit the distribution of the funds in the hands of the assignee. The object of this compromise seems to have been to avoid the delay incident to the litigation.

In accordance with this agreement, the plaintiffs dismissed their opposition, and the funds were distributed under a decree of the United States District Court, and Jacobs, Vincent & Co. and L. Haas received their proportions thereof. ' Jacobs and Vincent & Co. paid to the plaintiffs $2000 in accordance with the agreement aforesaid, but L. Haas refused, to pay liis quota, on the ground that his attorney had no authority to enter into the agreement, and he repudiates the compromise.

The evidence is somewhat conflicting as to whether or not L. II as assented to this agreement or authorized his attorney lo make it before it was made. But of this there can be no doubt, that with a full knowledge of the agreement and of what had been done under it, he received his proportion of the funds distributed. He cannot be permitted to enjoy the Iruits of the compromise and at the same time to repudiate the corresponding obligation imposed on him by it.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment against L. Haas lor $1000, with five per cent, per annum interest thereon from the twenty-filth day of March, 1809, till paid, and costs of suit in both courts. r