text:
    No. 5838.
    W. A. Bartlett vs. C. J. Wheeler.
    A person who has formerly resided in this State butwho has departed, and resided with his family in other States for several years, leaving no known agent here, is an absentee, and may bo brought into court by a curator ad hoc appointed by the judge of the parish where ho has property.
    A curator ad hoc eanvalidlyacknowledge in writing service of petition and citation addressed to him as such, and such acknowledgment brings the defendant into court, and interrupts proscription.
    The motion made by a judgment dobtor to annul the judgment for want of jurisdiction because he resided in another parish, madeactpal citation unnecessary, and cured the defect if there had been no citation.
    The judgment of the court, rendered without opposition on a motion to annul a; judgment for want of jurisdiction, is res adjudícala on the Question of jurisdiction.
    ^PPEAL from the Sixth. District Court, parish of Orleans. Saucier,

      B. K Forman and Jas. Lingan for plaintiff and appellant.

      Leovy & Kruttschnitt for E. J. Hart, appellee.
   The opinion of the court was delivered by

Marr, J.

In April, 1866, Wheeler brought suit against Bartlett in the Second .Judicial District Court, for the parish of Jefferson, tore-cover the amount of two promissory notes, payment of which had been assumed by Bartlett; and to enforce the vendor’s mortgage and privilege on property in Jefferson City by which they were secured.

On affidavit that Bartlett was absent from the State, and had left no known agent to represent him, a curator ad hoc was appointed, who ■answered to the merits, prefacing the general denial with the statement that he had been “ duly appointed curator ad hoc to represent the absent defendant herein, having been duly cited.” The case was tried : ■the demand was proven by two authentic acts, and the two promissory notes ; and judgment was rendered in favor of Wheeler against Bartlett in accordance with the prayer of the petition.

Before this judgment became final, counsel of Bartlett took a rule •on Wheeler to show cause why it should not be annulled and set aside on the grounds :

1st. That the said Wm. A. Bartlett, the defendant therein, was at the institution of this suit, and is at this time, a resident of the parish of Orleans and city of New Orleans, and was, and is entitled to be sued only in personal actions before the judge of the parish of his domicile.

2d. That being a non-resident of. the parish of Jefferson, at the institution of this suit, he is not bound by the proceedings herein, this •court being without jurisdiction in the premises for the reasons stated.

On the trial of this rule the counsel who represented Bartlett, and who was the only witness, testified as follows : • •

“ I know that Wm. A. Bartlett was domiciled in the parish of Orleans, in the city of New Orleans, and that he lived there for over fifteen or twenty years with his family. He was in business there up to the year 1862. In the spring- of 1862 he left New Orleans with his family, took them to Mississippi, afterwards returning himself to attend to some unfinished business; but since that time he has lived in Georgia, North and South Carolina, Alabama and Virginia.
‘•I know he has never acquired a domicile in the above named States ; that since the close of the war he returned to New Orleans for a few weeks, and while here, and since that time in letters to me, has expressed his intention of returning to the city of New Orleans and -of resuming his business.”

Cross-examined.

I know Mr. Bartlett to have been a resident of the city of New Orleans in the year 1862. Since the occupation of the city by the Federal troops he has been here but once to my knowledge, and remained here about three weeks.

“Mr. Bartlett has no agent in the city of New Orleans or in the State of Louisiana to my knowledge except myself for certain purposes, numerous ones, but not referring to this property.

“ I think his last place of residence was on Felicity Road, near the corner of Camp street, previous to the occupation of the city by the Federal troops ; and his place of business was No. 81 Gravfer street. He is now in Tennessee, New York or Virginia.

“ He has not lived in New Orleans or the city since its occupation by the Federáis. He has not kept house in said city, nor carried on business since the occupation of it by the United States forces in 1862.”

This testimony was given on the 6th of June, 1866, and on the 16th June, after an elaborate opinion, the judge being satisfied that the judgment rendered contradictorily with the curator was “ valid and binding upon the absentee as far as it can be executed upon the property thus specially affected in favor of the creditor,” dismissed the rule ; and on the 21st Juno he signed the judgment rendered 28th May in favor of Wheeler against Bartlett.

No appeal was taken ; and no further opposition was made. Execution issued, and the mortgaged property was seized and sold by the sheriff, and was adjudicated and conveyed to Wheeler in September, 1866. In June, 1867, Wheeler sold it to Burthe and in August, 1867, Burthe sold it to E. J. Hart.

In November, 1869, Bartlett brought suit against Wheeler to have the judgment under which the property was sold annulled, and to recover the property and §500 damages. The alleged grounds of nullity are :

1st. Want of j urisdiction ; because of Bartlett’s domicile being in the city of New Orleans.

2d. That the curator ad hoc was not cited.

The case was transferred to the Sixth District Court of Orleans,, pursuant to the act of 1870, p. 105, section 5 ; and in November, 1872, a supplemental petition was filed making E. J. Hart a party. Hart set up several exceptions and pleas; and he also answered to the merits; calling his vendor, Burthe, in warranty. Wheeler also appeared and answered through the curator ad hoc appointed to represent him. Without stating the pleadings in detail, we shall proceed to consider such points as we think determinative of the cause.

' 1st. Bartlett was an absentee, in the sense of the law, and the court of the parish in which the property is situated had the power to appoint a curator ad hoc to 'represent him.

“ An absentee is a person who has resided in the State, and has departed without leaving any one to represent 'him.” R. O. C. art. 3556, No. 3.

He left New Orleans with his family in 1862; and up to June, 1866, his family had not returned, and he had been at New Orleans once only,, and remained about three weeks. He had no known agent in the State.. The court within whose jurisdiction the property of the absentee is. situated, alone has the power to appoint a curator ad hoc to represent, him, and the judgment rendered contradictorily with the curator may be executed on that property. O’Hara vs. Connell, 29 An. 821.

The plaintiff must demand that a curator ad hoc be named to defend the suit, “ if the person intended to be sued be absent and not represented in the State.” O. P., art. 116.

2d. The sheriff’s return shows that he served on W. T. Scott, on the-11th April, 1866, a copy of the petition and order of the court appointing “ W. T. Scott, Esq., attorney-at-law, curator ad hoc to represent the-absent defendant, Wm. A. Bartlettand Scott’s answer, in his capacity as curator ad hoc, filed on the .18th May, acknowledges that he had been duly cited.

In Millaudon vs. Beasley, 2 An. 916, it was held that a curator ad' hoc could validly acknowledge, in writing, service of petition and citation ; and that such acknowledgment brought the defendant into court: and interrupted prescription.

3d. The motion to annul and set aside the judgment for want of' jurisdiction, because of defendant’s alleged domicile in New Orleans,, was an appearance, which made actual citation unnecessary, and cured the defect if there had been no citation. Dunbar vs. Owens, 10 Rob. 140; Succession of Penny, 11 An. 197.

4th. The question of jurisdiction was determined on that motion ; and the judgment is res adjudicata. That motion was an informal action-of nullity, to which Wheeler might have objected. He did not choose to do so, but tried the issue in that form. In Plicque vs. Perret, 19 La.* 328, the court said: “ No matter in what form of action or proceeding* whether by petition or exception, or intervention, the question may have been presented, if the same question, once judicially decided between the parties, be again agitated, it is sufficient to create the presumption, resulting from the thing adjudged, and forms a complete bar:” and in Prescott vs. Lane, 12 An. 198, the court said :

“It matters not that the proceeding by rule was irregular, since the-party against whom it was taken waived all questions of form, and joined issue on the merits, The form of procedure is immaterial; if proper parties join issue upon questions either of law or of fact, before-a competent court, they must abide by the decision.”

Wheeler did not except to the rule, but appeared, cross-examined the witness, and tried the case. This was an effectual waiver of the question of form: the issue of nullity for want of jurisdiction was finally disposed of on the questions of fact and of law, in this informal manner ; and the judgment is conclusive.

He who provokes a judicial decision in any form* cannot be heard .afterwards to object to that form. At the time this suit was brought Bartlett had no power to controvert the validity of the judgment in favor of Wheeler; and it concludes him on all the questions upon which he relies.

The judgment appealed from is affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: Manning, C. J. DeBlanc, J.

license: Public Domain

text:
    No. 7327.
    The State vs. J. L. Gisch.
    The title of the law enacted, by the Legislature of 1878 (Sess. Acts, p. 152), authorizing the city of New Orleans to regulate private markets, etc., sufficiently expresses the object of the law.
    A municipal corporation, under legislative permission, can forbid the opening of markets, except at designated places, and such forbidding is an exercise of its power to regulate markets.
    'There is no unconstitutional discrimination in forbidding markets within certain prescribed limits, and imposing a license on all who keep markets outside of those limits.
    Where the legality and constitutionality of a fine and penalty, imposed by a city ordinance, is in contestation, this court has jurisdiction irrespective of the amount in dispute.
    ^PPEAL from the Fifth Justice’s Court, parish of Orleans. Zarraeln,

      JE. H. Me Caleb, City Attorney, for plaintiff and appellee.

      A. & W. Voorhies for defendant and appellant.
    The opinion of the court on the original hearing was delivered by Manning,'C. J., and on the rehearing bjr DeBlanc, J.
   Manning, C. J.

The defendant was arrested and fined for a violation of the City Ordinance prohibiting private markets to be kept within a radius of six squares of any public market. That Ordinance was passed under the authority of a law of 1878. Sess. Acts, p. 152. The law is attacked for unconstitutionality, in that its object is not expressed in its title.

The title is comprehensive, and sufficiently suggests the subject matter of the legislation. The special objection appears to be that an Act, ■conferring the power to regulate private markets does not include the power to prohibit them. The law of 1878 limits the power of prohibition, before exercised by the City, and confines its exercise within ■certain bounds. There can be no doubt that the City, under legislative permission, can forbid the opening of markets except at designated places, and such forbidding is an exercise of its power to regulate markets. Mr. Dillon thus states the source of the power, and its extent;—

“ The States under their police power, may delegate to municipal’, corporations the authority to establish, or authorize the establishment. of markets; and it is competent to such corporations under proper grants of power to enact ordinances forbidding sales and purchases of marketable articles, except at designated market places. * * * * * * In this country, the practice is almost universal on the part of the legislature to confer upon the municipal agencies more or • less authority with respect to markets and market places, and such grants are not so strictly construed as those which invest the corporation with powers of a more extraordinary or unusual character — at least such is the case, unless a monopoly in favor of private individuals is sought to be sustained against which the Courts strongly lean.” Munic. Corp. § 313.

In an early case this court said, in establishing markets, the City Council can designate certain spots or places for the sale of certain» articles of provision, and it has an undoubted right to prevent the violation of ordinances it may pass in establishing'markets. Moranov.. Mayor, 3 La. 217. Later, the right to prohibit the sale of particular things was considered and maintained. Municipality v. Cutting, 4-Annual, 335. The question presented here came up directly in New" Orleans v. Stafford, 27 Annual, 417, where the same objections were-made to the Act of 1874 that are now made to that of 1878. The former-act prohibited private markets within twelve squares of a public market. The later act diminishes the distance, and thereby gives a larger liberty. The dissenting opinions in that case were based upon a feature of it — the violation of a vested right — which this case does not contain. The principle, that under the power-to regulate markets the City can prohibit their establishment in particular localities, or within a given radius of them, is approved by writers of reputation, and has been sanctioned by judicial decisions, and is recommended by the necessity for its exercise in the interests of health, comfort, and cleanliness.

The defendant also attacks the Ordinance as unconstitutional, because it discriminates between those who keep private markets within six squares of a public market, and those who keep without six squares of one, because it imposes a license on the latter of $300, and does not impose any upon the former. It imposes no license on the former, but a prohibition, instead, and a fine for its violation. The City has the unquestioned right to impose a license, and when she prohibits a particular traffic within prescribed boundaries, is not guilty of the inconsistency of licensing that traffic within those boundaries. There is no discrimination between those who are permitted to carry on the.traffic.

The defendant also denies that a criminal prosecution to enforce the payment of a fine is warranted by law, and insists that the remedy •should be sought by civil proceedings in an action qai tam. The proceeding is to enforce an ordinance of a municipal corporation, and the legality and constitutionality of a fine, imposed under it and for its violation, is the matter in contestation. It is that feature that gives us j urisdiction.

The act conferring power on the City to regulate markets being constitutional, and the ordinance exercising that power being legal, the fine was properly imposed, and therefore

The judgment is affirmed.

On Application eor Rehearing.

DeBlanc, J.

We do certainly not underrate the importance of this cause ; but we do not enact, we construe the laws enacted by others. To the Legislature alone, and not to courts, must the inhabitants of the State apply to obtain redress against laws which — though constitutional — affect their interests. ,

We have demonstrated — and it was not a difficult task — that the statute of 1878 and the city ordinance passed under its authority, do not — as charged — violate any constitutional provision, and if they are as unjust as represented, those who are made to suffer by their execution, should apply — for their repeal — to the Legislature or the Council. They are too plain to justify the hope of any successful resistance to their enforcement.

That our jurisdiction does extend to this cause, we neither do nor can entertain any doubt. The assailed ordinance imposes a line and a penalty, the legality and constitutionality of which are contested by defendant, and the Constitution provides “that the jurisdiction of this court shall extend to all cases in which the constitutionality or legality of any fine or penalty imposed by a municipal corporation, shall be in contestation.” C. art. 74.

The rehearing is refused.


author: White, J.

text:
    No. 7466.
    J. Garcià y Leon vs. Louisiana Mutual Insurance Company.
    All rules or proceedings to traverse, or disprove the answers of a garnishee, either under a writ of attachment, or fieri facias, are prescribed after twenty judicial days from the filing of the garnishee’s answers.
    ^PPEAL from, the Third District Court, parish of Orleans. Monroe,

      George L. Bright for plaintiff and appellant.

      J, Ad. Hosier and J. W. Thomas for garnishee, appellee.
   .The opinion of the court was delivered by

White, J.

On the eleventh of November, 1874, plaintiff sued defendant in the late Superior District Court. The petition contained a prayer for an attachment, and that E. K. Bryant, among others, be made garnishee; the prayer was for judgment against the defendant and garnishees, E. K. Bryant being among the number, with lien and privilege on the property attached. E. K. Bryant was served with the usual interrogatories on the 17th of November, 1874; on the 27th of that month he answered as follows :

To the first question, which was couched in the usual printed form, and called upon him to answer whether he had under his control directly or indirectly any money, rights, credits or other property whatsoever directly or indirectly belonging or due to the said defendant in execution, etc., the question concluding with, “you being asked to make full disclosure in answer to the same,” he said : “ That at the date of the service of these interrogatories affiant was one of three liquidators appointed to wind up the affairs of the Louisiana Mutual Insurance Company, when the assets of said company were placed under charge of. affiant and his co-liquidators; subsequently these assets have been taken out of his charge by the appointment of a receiver by this honorable court, and he is unable to give a list or valuation of the same.”

To the second question, likewise framed in the usual form, and asking if he was indebted in any way, etc., and requiring full disclosure, he answered, “No.”

To the accustomed third interrogatory he answered, also, “ No.”

On the 27th November, 1874, R. S. Howard, receiver of the Louisiana Mutual Insurance Company, answered by a general denial. Judgment was rendered below against the company, and on appeal this court amended the decree by allowing the plaintiff a privilege on the property attached. The present controversy results from a rule taken on the 10th February, 1879, against E. K. Bryant, garnishee, directing him to ■show cause on Thursday, February, 27, among other things, “ why the same judgment rendered against the defendant should not be rendered against him on the answers filed by him; and because he has neglected and evaded and failed to answer some of the interrogatories propounded to him.” Bryant excepted by pleading to the jurisdiction of the court. He charged the absolute nullity of -the judgment against the defendant company, owing to want of jurisdiction in the Superior Dictrict Court to entertain a demand against a corporation not established by legislative act. He further excepted by pleading the prescrip - tion of twenty judicial days. The lower court maintained the first •exception, and dismissed the rule, whereupon plaintiff in rule appealed. The opinion we have formed as to the plea of prescription will render it unnecessary to pass upon the many other questions presented by counsel.

Act No. 27, approved March 28, 1877, provides as follows : “That hereafter in all cases where plaintiff desires to disprove or traverse the answer to interrogatories propounded to a garnishee, under a writ of attachment or of fieri facias, he shall, within twenty judicial days after said garnishee shall have filed his said answer, file a rule in-court, or institute other proceedings against said garnishee for the purpose aforesaid; and upon the failure of said plaintiff to file a rule or institute other proceedings as aforesaid, any property, rights or credits, in the hands of said garnishee shall, by the mere fact of said failure, be considered as released from seizure under said writ of attachment or fien facias.”

The answers of the garnishee were filed, as we have seen, on the 27th of November, 1874, and the rule now before us only on the 10th February, 1879. It is urged that the provisions of the act of 1877 do not apply. 1st. Because its terms only reach process initiated subsequent to its passage. 2d. Because this proceeding is not a traverse of the answers of the garnishee, but simply an effort to have his liability fixed, growing out of his failure to answer directly, or the evasiveness of the answers filed.

Neither of the propositions are tenable.

1st. The language of the statute is unambiguous, and leaves no room for construction. It does not say “in all garnishments hereafter issued,” but it declares in unequivocal language that “ hereafter in all cases where plaintiff desires to traverse, etc.” We think it bars the plaintiff’s rule if within its scope.

2d. Grant the theoretical correctness of the distinction between traverse and an attempt to hold the garnishee for not answering or evading — in other words, taking the interrogatories for confessed. The present case is clearly a traverse, because on the face of the interrogatories the garnishee cannot be made personally liable. There were three interrogatories, all of which were answered. To the first, as we have seen, the answer was that, as one of three liquidators, not individually, the garnishee controlled the assets of the company, that subsequently the assets, all of them, were taken from the board, of which he was one, by the court from which the garnishment issued, and he was therefore unable to give the list asked. Can it be contended, taking this answer for truth, the garnishee could be condemned personally ? We think not. The other interrogatories were answered No, and clearly such answer must be disproved before the garnishee can bo made liable.

Judgment affirmed.

Rehearing refused.


author: DeBlanc, J.

text:
    No. 5977.
    Paul Jules Fazende vs. Chas. Morgan.
    The grant of a right of way to a railway company, made by an owner of land by public act, in which act he sets forth the probable increased value of his land, on account of the building of the railroad, as one of the causes of the grant, is not a gratuitous donation. It is a transfer based on a valid consideration, and can not be revoked by any ex parte act on the part of the grantor for any of the causes which warrant the revocation of a gratuitous donation.
    The grant of a right of way for as many tracks as the business of the grantee, a railroad company, may require is not necessarily exhausted by the laying of one track. Such á grant includes the right to lay as many tracks as the evidence shall show that the business of the company require.
    The acceptance of a grant of the right of way by the grantee need not be evidenced by an authentic act. Actually using the right in part, for a number of years is admissible in proof, and is conclusive evidence, of its acceptance, as to the entire extent of the grant.
    Prescription must be specially pleaded, or it will not be considered.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Frank Michinard for plaintiff and appellant.

      Leovy & Kruttschnitt for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

On the 14th of October, 1852, and by act under private signature, plaintiff granted to the New Orleans, Opelousas and Great Western Railroad Company, a right of way through his land. The extent of that right is fixed in the act of 1852, the first and principal clause of which is as follows :

“ Be it known and remembered, that whereas the New Orleans, Opelousas and Great Western Railroad Company are now locating and about constructing their railroad, beginning in the town of Algiers, and whereas said line of road passes through the land or plantation owned by the undersigned, and whereas the construction of said railroad by the President and Directors of the New Orleans, Opelousas and Great Western Railroad Company through our said land or property, mil add to its value: therefore, in consideration thereof, and the pridé we take in so great a work, to the honor of our State, the undersigned do agree and do hereby donate and grant, free of all damage or costs, the right of way for the said railroad through the said land or plantation, unto the president, directors and company, and to their successors in office, in conformity with their charter, as long as the same may be required for the use of the company, and no longer; it being agreed and understood that no more land is to be reserved for the use of said road than is absolutely necessary for the convenient and safe transit of the locomotives and cars, over as many tracks of rails as the business of the com pany may requirealso, there is hereby granted a sufficient quantity of land for a station-house, water-tank, or depot, not exceeding one acre of land on the immediate line of road, should the convenience of the road require it,” etc.

In 1875, Charles Morgan, who — in 1869 — had purchased the New Orleans, Opelousas and Great Western Railroad and its franchises, was about laying an additional track or switch on the land described in the act of the 14th of October, when he was enjoined, by plaintiff, from proceeding so to do, on the ground that he — plaintiff—is the owner of the land on which the track or switch was about being laid ; and that — unless enjoined as prayed for — defendant would cause him an irreparable injury.

The lower court dissolved the injunction provisionally granted to plaintiff, and he appealed.

To defeat the injunction, defendant relies on the act of the 14th of October 1852, which — on the 12th of December, 1874, and without alleging any reason for the course which he then pursued, plaintiff attempted to revoke by an act passed before a notary of this city. He — in that act —acknowledged that, in 1852, he made a valid donation to the railroad company, then denied the validity of what he calls the pretended donation,” and concluded by the declaration that, if it was ever validly made, he revokes it and resumes the full and unimpaired ownership of his land.

In his pleadings, the only facts alleged by plaintiff to obtain the injunction, are: that he is the owner of the land on which defendant was —at that time' — preparing to lay an additional railway. He — in no part of those pleadings — alludes to what he himself styled a valid donation, nor to its attempted revocation, nor to the nature of the irreparable injury which he swore he would suffer on account of the proposed construction' of a switch on his land.

In the brief submitted by his counsel, he contends:

1. That the donation made by him to the railroad company, has none of the requisites prescribed by the Civil Code, and — for that reason —is stricken with nullity.

2. That — if it is not null — the company has, some twenty five years ago, exhausted the rights acquired under the donation, when it laid its first track on the land.

3. That said donation never was accepted according to law.

4. That — if it was accepted, it merely imposed a servitude, which has been extinguished by its non-usage for more than ten years.

1. Does the act of the 14th of October evidence a grant, or — as urged — a donation inter vivos ? It recites that Eazende — in consideration of the value it would add to his land, and the pride which he took in the great work then contemplated and long since executed, donated and granted, free of all damage and costs, the right of way through said land, no more of which was to be reserved than is absolutely necessary for the convenient and safe transit of the locomotives and cars over as many tracks of rails as the business of the company may require, and he also granted a sufficient quantity of land for a station-house, water-tank; or depot.

The act of 1852 does not evidence either a gratuitous, onerous or remunerative donation, but a grant of the use of the quantity of land absolutely necessary for the purposes therein specified. As to the consideration of that grant, it was the reasonable hope expressed by the owner, that the railway — when built — would a'dd to the value of, and benefit the very tract from which the necessary quantity was to be taken by the company. Such a consideration is undoubtedly valid, when the owner himself declares it to be, and accepts it as sufficient; and — in several of our States — is now regarded in fixing the compensation to be allowed in eases of expropriation.

Southern Law Review, April, May, 1879, pp. 37 and 38, and authorities therein cited.

In the act from Fazende to the company, what did he expresslygive and grant ? The use of a certain quantity of land for the safe and convenient transit of locomotives and cars, on as many tracks of rails as the business of the company may require — and, besides, for a station-house, water-tank, or depot. The importance of this grant can not be underrated, but its importance flows from plaintiff’s consent, and a right acquired from one who had the capacity to contract, can not be destroyed for the sole reason that it was imprudently conceded.

2. The evidence taken on the trial does not sustain the defence that the rights granted by the act of 1852 have been exhausted: but one track of rails has been laid on the land, and — according to the terms of the act — the privilege allowed is that of “ laying as many tracks of rails as the business of the company may require, and of building a station-house, water-tank, or depot.”

Does the business of the company require the additional track, the construction of which has been enjoined by plaintiff?

The superintendent of the railroad swore that the additional track is of paramount necessity, and his assistant that it is- necessary to a proper running of the trains. Their declarations stand uncontradicted by either Mr. Fazende or his son, who both testified in his behalf.

As to the company’s acceptance of the entire grant of the 14th of October 1852, though not evidenced by an act passed before a notary and two witnesses, it has been — for upwards of twenty five years — and still is daily proclaimed by the whistles, the bells and rattling of its trains, and that acceptance can not be restricted to exclusively those clauses of the contract which have already been executed, but extends to and embraces those clauses, the execution of which was made to depend on the happening of a suspensive condition.

The prescription of ten years is invoked, but in exclusively the brief of appellant; and — were it applicable — could not be considered.

We believe, as does plaintiff’s counsel, that the right of property should be sacredly protected against caprice and speculation, and that not an inch of land should be subjected to a servitude, until the owner has first received an equivalent for that which he surrenders — nay more: we believe as did the eminent English statesman who said: “There stands the poor man’s cottage; the rains of summer and the snows of winter may enter its crevices, but the king of England, with all its forces, dare not enter the poor man’s cottage.”

That right which — on proper occasions — should be protected against the caprice of 'kings and States, the speculations of corporations and individuals, can not be protected against either the liberality or imprudence of freeholders.

As to the plaintiff’s apprehensions that, after the construction of the switch, his field and garden would be exposed to constant depredations, they may be unfounded. Were they hereafter verified, defendant might be made to realize that a servitude can not — with impunity — be converted into a nuisance, and must ever be exercised with a careful regard for the rights of others.

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


text:
    No. 7477.
    John T. Nolan vs. Succession of John H. New.
    Where a surviving father joins in the petition of the universal legatee of his deeeased daughter, praying that the universal legatee be recognized as the owner of all her estate, and be put into possession of the same, he thereby effectively renounces his right of action to have his daughter’s legacy reduced to the disposable portion of her estate. Such action on the father’s part amounts to a ratification of the donation made by his daughter to his prejudice, and he is thereafter estopped from contesting the validity of the donation.
    REPEAL from the Second District Court, parish of Orleans. Tissot,

      Sor nor & Benedict for plaintiff and appellant.

      Mo'ise & Bassich for succession, appellee.
   The opinion of the court was delivered by

DeBlanc, J.

M!rs. New died on the 1st of July 1874 ; her father— John T. Nolan — was, then, her only surviving ascendant and forced heir. By her last will, she instituted her husband as her universal legatee, and to his love and protection recommended her father and sisters.

On the 15th of January 1877, John H. New filed, in the Second District Court, a petition in which he prayed :

1. That said will — which had already been probated — be executed,- and he recognized as the universal legatee of his wife, and owner of all her estate, real and personal; and

2. To be — as such — put in possession of said estate.

At the foot of that petition, plaintiff wrote: “I — John T. Nolan— of Dallas, Texas, father of the late Josephine G. New, and only ascendant,.hereby join in the prayer of the above petition.”

His signature to that document is properly authenticated.

John H. New died on the 17th of January 1879, and Nolan — as forced heir of his deceased daughter — claims from the succession of his son-in-law, and as the legitimate portion of which his daughter could not dispose to his prejudice, the sum of ten thousand dollars.

To sustain his demand, and in answer to the several defences urged against it, plaintiffs counsel contend :

1. That he could not have prevented the legatee from being sent in possession, and that no one is presumed to give.

2. That, as an heir, he could have renounced to the rights which he is now seeking to enforce, but by public act, in presence of two witnesses.

C. C. 1017 (1010).

We do not presume that plaintiff gaye what he now claims, but it is manifest that he did ratify the donation from his daughter to New. That donation was not null, but only reducible to the disposable portion, and — to reduce it — he, as a forced heir, had an action derived from the law; and when he joined New, in the latter’s application to be recognized as the universal legatee of his wife and as owner of her estate— real and personal — he undoubtedly renounced to the action which — at that very time — he could have exercised to reduce the legacy from the wife to the husband.

The last will of Mrs. New was probated on the 17th of October 1874, and — on the 16th of January 1877 — by a decree of the Second District Court, partly based on the express consent of the father and forced heir, the husband was — as universal legatee — put in possession of the entire estate.

The decree oi the 16th of January is not assailed — nor is it alleged that plaintiffs consent to the rendition of that decree, was obtained by any deception on the part of New, or given through error. The universal legatee sent to Texas the petition at the foot of which we have found the document already noticed, and which — we are bound to presume — plaintiff willingly signed, after he had read the petition itself, which contains a copy o£ the last will of his daughter, the mention that it was probated on the 17th of October 1874, and the prayer that he— John H. New — as universal legatee of his wife — be decreed to be the owner, and — as such — put in possession of the whole of her estate.

Plaintiff acted deliberately, with full knowledgé of the. nature and extent of his rights, fully informed as to the rights which were and could be acquired by the legatee of his daughter and under her will, and his act is not susceptible of adverse constructions. If it were, his unbroken silence since 1874 — when his action accrued — until 1879, when it was instituted — would contribute to convince us that — as he did in plain and positive terms — his intention was to ratify a donation which was merely reducible,-and the reduction of which he alone could— legally — have asked and obtained.

C. C. 1593 (1490) — 1504 (1491).

The Code provides that “ the confirmation, ratification, or voluntary execution of a donation by the heirs or assigns of the donor, after 'his decease, involves their renutfciation to oppose either defects of form, or any other exceptions; and that, when there are heirs to whom a portion of the property is reserved by law, they are seized of right — by the death of the testator — of all the effects of the succession, and the universal legatee is bound to demand of them the delivery of the effects included in the testament.”

C. C. 2274, (2254) — 1607, (1600).

Instead of joining New in his demand for the delivery of the property — real and personal — belonging to the succession of his wife — could not plaintiff have opposed, to that demand, the plea that he was a forced heir of his daughter, and — as such — authorized to retaiD, as his own, the excess of the disposable quantum ? He certainly could — but did the very reverse: he ratified the donation — and as, according to the jurisprudence of our State, it is only the dispositions reprobated by law which — in regard to wills — can neither be confirmed nor ratified, plaintiff has — by his express consent to the delivery of the entire estate of the testatrix, and by aiding in the unrestricted execution of her testament, lost, or rather abandoned his action to compel the reduction of a donation, which embraced both the legitime and the disposable quantum. 15 A. 154.

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


author: Manning, 0. J.

text:
    No. 7497.
    Succession of Walter Henry.
    The Public Administrator is not entitled to the administration of a succession-when the attorney in fact of an heir, especially if the heir be present, applies, for the administratorship, and tenders the reguisite security. In such a case the lower judge exercises the discretion vested in him soundly, by appointing-the agent of the heir.
    REPEAL from the Second District Court, parish of Orleans. Tissotr

      Bolt. Mott and Francis B. Lee for the public administrator, appellant.

      John and W. 8. Finney tor Trist, appellee.
   The opinion of the court was delivered by

Manning, 0. J.

Walter Henry died in Mexico, leaving property in' New Orleans. His sister, Bridget Kelleher, lives here, and applied for administration, but it appears was unable to give bond. Shortly after this application was made, and before it was acted on, Nicholas B. Trist applied for administration, alleging that he was the attorney-in-fact and agent of Mrs. Kelleher, who was unable to give bond, and that her procuration empowered him to represent her in all matters touching this succession, and to accept it for her, but with benefit of inventory only,, and authorized him to apply for administration in his own name. The public administrator opposed this application, .and claimed the administration.

The Public Administrator is to be appointed to administer intestate-successions, when there is no surviving husband or wife, or heir present or represented. Sess. Acts 1870, p. 120. He is also to administer vacant successions, but this is notin that class. An heir is present. And an heir-being present, the applicant argues that because of that circumstance, the public administrator cannot be appointéd.

The office of administrator was unknown to the civil law. It considers the heir the representative of the succession, and modifies his. responsibility or changes his relation to it, as he shall have accepted it-with or without the benefit of inventory. Eor successions that have no heirs present or represented, it appoints curators.

At common law, the heir had nothing to do with a considerable part of an estate i. e. the personalty. Eor the settlement of that, an administrator was always appointed, and when he paid over, after settling-debts (if there were any) and costs and charges, it was to the distributees. These distributees might be, and were often the same persons as-the heirs, but they were known by a different designation. So completely did that system separate the heir, as heir and eo nomine, from the personalty.

In our Oodes, these two systems are partially blended, and the blending has not added to the simplicity of either. This composite nature of our law is perceived in all the articles of the Oivil Code containing the regulations of the benefit of inventory and the delays for deliberating. The regulations are made for the heirs primarily, (arts.-1025 — 1033 new nos. 1032 — 1040) and then suddenly and by an abrupt transition, provision is made for an Administrator, and to all appearance without •a new emergency or contingency occasioning it. art. 1034 new no. 1041. Among these rules is this; — If the beneficiary heirs are absent, but represented in the State, their attorneys in fact can claim in the name of their constituents, the preference for the administration over every 'Creditor of the succession, provided they have a special power to accept or reject this succession, or a general power to accept or reject all suc'Cessions which may fall to their principals, art. 1038 new no. 1045. _ In Chew v. Flint, 7 La. 395 this court said; — “ This part of the Code regulates the administrations of successions accepted with benefit of inventory, and gives to the heir at law the preference over all others in the .administration. He administers, not for the exclusive interest of creditors, but has in his own right the residuary interest in the estate. The 'Code therefore, even in cases of his absence, does not exclude him, but his attorney in fact is authorized to demand the administration in his name, on furnishing the' necessary security.” Ibid. 403. That this privilege is exceptional, and was not given to creditors was ruled in Sue. Petit, 9 Annual, 207, where it was held that an agent or attorney in fact of a creditor is not entitled to a preference over strangers. In ■Sue. Bernard, 3 Annual, 565, the court thought the appointment by the lower judge of a legatee as administrator, at the request of several of the heirs, was the exercise of a sound discretion, and in Sue. Huie, 23 Annual, 401, the heir had n.ot requested the appointment of any one, but merely opposed the appointment of an applicant.

The Act of 1870 introduced a new aspirant for these appointments, •and gives him the exclusive right to them in certain cases. One is, •when there is no heir present. There is an heir present to this succession, and therefore the Public Administrator has not the right to this appointment. And if the Code does not exclude an heir from appointment as administrator, even in case of his absence, but authorizes his ••attorney-in-fact to demand it in his name, how much more does it allow such demand, when he is present. We say allow and not compel. For .as this succession is not one of those that the Public Administrator is designated to administer, and the present heir is not an applicant for its .administration, the case falls under the general laws for such appointments, and the court having cognisance of the matter has a discretion to exercise, as in the Bernard succession.

The demand of the Opponent was properly rejected, and the discretion exercised by the lower judge in appointing the applicant, Trist, appears to be sound.

Judgment affirmed.

Behearing refused.


text:
    No. 7091.
    The State ex rel. Ogden, Attorney General, vs. Judge Sixth Judicial District.
    Even after an appeal in a criminal case has been taken, the State may by a manclamus compel the lower judge to so amend and correct omissions in the minutes of the court, as to make them evidence facts admitted, or proven to have transpired during the course of the trial; as for example, to show that the defendant was present at his trial, and conviction.
    ^ PPLICATION for a mandamus.

      J. H. Mase for relator.

      S. D. JUllis for respondent.
   The opinion of the court was delivered by.

DeBlanc, J.

At a regular term of the Sixth District Court, held in the parish of Tangipahoa, one George Carroll was indicted for and convicted of murder. In obedience to the verdict, he was sentenced to death, and — from said verdict and sentence — took an appeal now pending in this .court.

Acting under the mistaken impression that, on the hearing of a rule taken by the District Attorney upon the already condemned convict, the honorable William Duncan, the judge of the court before which Carroll was tried, had refused to correct clerical errors and omissions conclusively proven to have occurred during the trial, and which exist in the minutes of said court, the Attorney General applied for and obtained from this tribunal an order addressed to the district judge, calling on him to show cause why he should not comply with the application of the State attorney and correct said pretended errors and omissions.

In his answer, the judge admits that a rule was taken on the sentenced prisoner, and when — since the sentence — his court had twice adjourned sine die. notifying said prisoner to show cause why the minutes kept at his trial should not be corrected and altered so as to prove that he was present at his trial and conviction; but he says that— on the hearing of said rule — no testimony was offered or brought before fhim, in his official capacity, either by affidavit taken ex parte, or in any other manner; and that, if any such was filed with the district attorney’s •application, he has never seen it or heard of it, and that none ever was produced before him as a judge, or otherwise.

The rule was excepted to by the prisoner’s counsel, the exception •taken up and argued, and considering — he avers — that the case of the State against Carroll had passed from and beyond his jurisdiction, and that he is now without power to alter the record of the trial, the judge— •on this and on other grounds suggested in the prisoner’s exception, dismissed the rule taken by the district attorney.

In this proceeding, the only parties are the Attorney General and the district judge — and the only documents placed before us are the former’s application and the latter’s answer. That uncontradicted •answer contains the assertion that, on the trial of the dismissed rule, no evidence was introduced to prove the existence of the pretended errors •and omissions, and — under these circumstances — the judge’s decision was legal and proper.

There is no doubt that, as soon as the jurisdiction of the appellate •court attaches, that of the lower court is superseded; but it is not so •absolutely superseded that it cannot — after due notice to and in presence of the interested parties and their counsel — correct an erroneous entry, supply an important omission, and — on legal, sufficient and incontrovertible evidence — so amend its minutes as to make them correspond with facts admitted or proven to have transpired during the course of •any trial.

Were it otherwise, after the filing of the bond and the issuance of ?the citation of appeal, the lower court would be divested of even the Indispensable and conceded authority which it has ever, exercised, of •taking every necessary step to secure the transmission to this tribunal of a correct and complete record.

The rule filed by the district attorney is referred to, but it is not before us. In substance — according to the judge’s answer, it is similar vto that filed by the Attorney General, and — in both — what is asked? Not an adjudication on any point raised and not decided during the ¡trial — not any addition to or reduction of any previous order or ruling, 'but — exclusively—that the omitted evidence of facts which transpired between the prisoner’s arraignment and the sentence pronounced against .him, and which the clerk failed to mention in the minutes, be now inter•calated where it should have been inscribed during the progress of the •.trial.

The correction now asked in behalf of the State, may — hereafter—• be asked in the name of a convicted prisoner, as a protection to a real and imperiled right, to reinstate the omitted elements of a legitimate ■defence; and — in the interest of sentenced convicts, the State and justice, such corrections should be allowed; but — as already said — on legal, sufficient and incontrovertible evidence that the alleged errors and omissions have occurred.

As — in this case — no evidence was offered to sustain the district attorney’s application, the rule issued by this court on the 6th of December 1878, is discharged at the costs of relator.

Ok Rehearing.

When we said — in the opinion delivered on the 30th of December— that the rule filed by the district attorney was not before us, we meant —and it was a fact — that it did not accompany the transcript, and not— as erroneously supposed by the assistant prosecutor — that we could not have properly considered the same in passing upon the application evidenced by that rule. We looked for it after the submission of the case, but — when we did — it was not in the office of the clerk of this court, and this induced the remark made in the opinion, that thé only documents placed before us were the relator’s application for a mandamus and the judge’s answer to the application.

To the rule taken by the district attorney is attached a copy of the judge’s decision, and these two documents, which we saw and read for the first time, only after we had rendered our previous decree, and since the filing of the assistant prosecutor’s application for a rehearing, conclusively show that the rule to correct the minutes was discharged— not,- as we inferred from the judge’s answer, “ because no testimony was offered or brought before him, in his official capacity, either by affidavit taken ex parte, or in any other manner,” but for another, a different reason, and that is — in the words of the exception which he sustained— that, as to the matters embraced in the rule, his court is absolutely without jurisdiction.

We have said, and our opinion has not changed — that the judge has, and that he should exercise the power to correct the erroneous entries made, or supply those which are shown to have been improperly or inadvertently omitted on the minutes of the court over which he presides. This, it is his duty to .do, on application of the officer representing the State, the prisoner’s counsel, or any litigant, after due notice to the interested parties, and — dn criminal eases — in presence of the accused or convict. In so doing, a judge does not alter, he perfects or completes the defective or incomplete record of the trial — he does not resume jurisdiction of any branch of the cause which has passed beyond the limits of his jurisdiction, he merely takes an authorized step to transmit to this court a true and correct record.

20 A. 580, 581, 582 — High’s Extraordinary Legal Remedies, p. 186, No. 245. H. D. — old ed. p. 73, No. 8.

In this instance, the writ of certiorari would have been inadequate, and believing — as we do — that the judge had jurisdiction, .and should have entertained the district attorney’s application,

It is ordered that our former decree is set aside, the mandamus issued by this court on the 6th of December 1878 made iieremptory, and that the judge of the Sixth District of the State take cognizance of, fix for trial, hear and determine the rule filed in his court, by the district attorney of said district, in the case entitled “ State of Louisiana vs. George Carrqll et ais.,” and that he pay the costs of this proceeding.


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

text:
    No. 7279.
    City of New Orleans vs. the Southern Bank.
    The Southern Bank can not be held liable by the city of Now Orleans for using the city bonds (issued under act of the 27th of February, 1868, and deposited with the bank as Fiscal Agent of the city) to liquidate, and fund at par such debts of the city as were embraced in the statement prepared by the Comptroller and Treasurer of the city, verified by the Mayor, and members of the Finance Committees, of the Board of Aldermen and Assistant Aldermen, and placed in the hand of the Fiscal Agent for its guidance. The Bank had no power to go behind that statement, and refuse to fund any debt embraced therein.
    Where a municipal corporation approves, and ratifies the illegal, and unauthorized action of its agent, and afterwards, when sued by a third person, pleads such action and its results as a ground of defence, it is thereby estopped from subsequently pursuing the agent on account of such action.
    A claim for damages, founding in an offence, or quasi-offence, committed by a private individual,'or by a public ministerial officer, is barred by the prescription of one year.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J. Trial by jury.

      Henry C. Miller and Sam. P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Bdivard Bermudez and A. £; W. Yoorhies for defendants and appellants.
   The opinion of the court was delivered by

Manning, C. J.

The City of New Orleans sues the Southern Bank, and Thomas Layton, and Antoine Dubuclet in solido for eight hundred and five thousand dollars of City Bonds, with all the attached coupons for twenty five years representing seven per centum per annum interest from March 1,1869; or in case that the Bonds and coupons cannot be returned, that the defendants be condemned in solido to pay the principal, with seven per centum interest annually from the above date for twenty five years. The case was tried by a special jury.

A verdict having been rendered for eighty four thousand three hundred and twenty three dollars and eighty four cents against the Bank and A. Dubuclet in solido, and of one hundred and fifty dollars against Thomas Layton, judgment was rendered accordingly, and the Bank and Dubuclet have appealed.

The cause of action was this ; — that by Act of the General Assembly, approved February 27, 1869, the City of New Orleans was empowered to issue bonds to the amount of two millions of dollars, payable twenty five years after date, and bearing seven per centum per annum interest,, to enable it to fund and liquidate the balance of its floating debt, existing at that date, such as judgments, outstanding warrants, etc., which bonds, when issued, were to be deposited with the Fiscal Agent, exclusively in payment at par of debts then due by said City, other than those evidenced by Oity notes; a full and particular statement of which debts should be prepared by the Comptroller and Treasurer of the City, verified by the Mayor and the members of the Finance committees, of the Boards of Aldermen and assistant Aldermen; which statement, so verified and attested, should be furnished to the Fiscal Agent; and “it shall be the duty of the Fiscal Agent to give said bonds at par in payment of the debts of the City to the creditors mentioned in said statement, or to their heirs or assigns” — that the Southern Bank was before, and at, that date the Fiscal Agent of New Orleans, and continued to be until during October, 1869, and the bonds thus provided for were issued and deposited with that Bank, and that eight hundred and five thousand dollars of them have been illegally and wrongfully retained, disposed of, or paid out by the Bank and others in this way;—

Under the Act, approved September 14,1868, the Board of Commissioners of the Metropolitan Police apportioned and assessed against the City of New Orleans for the year ending October 1,1869, the sum of eight hundred and five thousand six hundred and thirty five dollars, to be raised by taxation, and to be paid to the State Treasurer for that Police, and the provisions of that Act were reenacted on March 8,1869. In July 1869, the Common Council of New Orleans adopted an ordinance authorizing the proper officers to issue eight hundred and five thousand dollars of the two million of bonds, to be disposed of under such rules as the Finance Committees and the Mayor might establish, provided the bonds so issued be given by the Fiscal Agent at par in payment to such creditors of the City as should be determined by those Committees and the Mayor were within the purview of the Act. On July 15,1869 these Finance Committees, contrary to the requirements of the Act of February 27,1869, determined to use a portion of the bonds deposited with the Riscal Agent to pay the Metropolitan Police apportionment, and accordingly resolved that the Riscal Agent should pay to the State Treasurer the bonds referred to in the Ordinance of July, for the purpose of paying that apportionment, with the same proviso that was contained in the Ordinance, viz that such payment of these bonds to the State Treasurer be made at par, and no discount should be allowed on them, and with the further proviso that the receipt of the Treasurer shall stipulate that no discount on the bonds is to be made, and that none of them shall be paid to the Treasurer until he shall have been legally authorized to receive them, by resolution of the Metropolitan Police Board, in full payment of all claims it might have against the City.

This resolution was communicated to the Metropolitan Police Board, and to the Fiscal Agent, on July 16, 1869, and the Board refused to recognise the legality of the action of the Finance Committees, and refused to receive the bonds.

It is then alleged that the Fiscal Agent, despite this refusal of the Board, and contrary to the resolutions of the Finance Committees, arranged with Dubuclet, the State Treasurer, to take these bonds to New York and sell them — the Fiscal Agent making a paper transfer of the bonds to the Treasurer on July 20,1869, and taking his receipt therefor, which receipt, it is alleged, did not conform to the requirements and provisos of the Finance Committees; and immediately thereafter the bonds were taken by Thomas Layton to New York, with Dubuelet’s knowledge and consent, and were sold at a discount of twenty one and one half per centum. Mr. Layton was the President of the Southern Bank.

That with the proceeds of the sale of these bonds, Dubuclet undertook the purchase of Metropolitan Police warrants, and finally about five hundred and thirty seven thousand nine hundred and forty dollars and twenty eight cents in those warrants were paid out of those proceeds.

The plaintiff charges that the Southern Bank, as Fiscal Agent, was specially entrusted with the custody of the City Bonds, and the duty was imposed upon it of not paying them out, except for debts of the City that existed on February 27, 1869, and only for such of those as should appear in a statement of the City Comptroller and Treasurer, verified by the Mayor and the Finance Committees, and that not even for the payment of debts so stated and verified should the bonds be discounted — that in violation of its trust, the Fiscal Agent paid or gave out these bonds without haviDg the statement required, and at a loss by discount of twenty one and a half cents on the dollar, and for claims which were not, and viere not pretended to be, debts of the City of the ■class specified, the Ordinance of July not authorizing these bonds to be given in payment of the Metropolitan Police apportionment, and the Finance Committees having no power or authority to make such destination of them — that even if these bonds could have been issued to pay that apportionment, not more than $537,940.28 of Metropolitan Police warrants were actually retired by the bonds, leaving the residue, viz $276,694.72 of bonds of the City outstanding, with all their coupons, for which the City has not received any consideration whatever.

The Bank, after filing exceptions which we think untenable, pleaded a general denial, and admitted that it had received as Fiscal Agent the bonds as charged, and averred that it was its duty bylaw to apply them according to the statement, prepared and verified by the City officers mentioned in the law, and that it did so apply them — that this statement was furnished by those officers to it, and that it purports to be a statement of the indebtedness of the City, as required by the Act of February 27 1869, and includes among that indebtedness the apportionment for the Metropolitan Police — that in addition to this statutory direction for the application of tile bonds, the Ordinance of the City Counoil reiterated the same direction, and in obedience to both of these mandates, the Fiscal Agent gave to Dubuclet, the Treasurer of the State, the bonds in question at par and in full payment of the Metropolitan Police apportionment — that after the Bank had ceased to be the Fiscal Agent, it rendered its account to the City, shewing the disposition of the bonds made by it, which account was approved, and the residue of the two millions of bonds were delivered to its successor, and that the City has recognised its liability for the $805,000.00 of bonds by funding all or'a part of them under the law, known as the Premium Bond Plan. The Bank, then premising that the subsequent disposition of these bonds is none of its concern, informs the court and alleges that they have been disposed of, and did realize $537,940.28, which was applied to the retirement of the Metropolitan Police warrants, and prays judgment against the City for this sum. The Bank, in addition to all this, avers that after these bonds had been thus applied, the Metropolitan Police Board brought suit against the plaintiff to compel her to pay over to the Board the amount of the estimate and apportionment for that Pqlice, and the City set up in defence to that action, under the oath of her chief executive officer, that payment of that apportionment had been made by the delivery by her Fiscal Agent to the State Treasurer of $805,000.00 of these seven per cent, bonds, and that such delivery was a full payment and discharge of any and all liability on her part for and on account of such apportionment.

There can be no doubt that, under the law of February 1869, the City Comptroller and Treasurer should not have included the Metropolitan police apportionment in the estimate they were required to make of the floating debt of the City, and the Mayor and Finance Committees should not have verified such statement. But they did it. All the officers of the City, whose statement or verification was required by the Act of the legislature, joined in signing the papers, prescribed with so much particularity. The General Assembly doubtless thought that the requirement of a concurrence of so many officers in preparing the statement of the City’s indebtedness, and of the concurrence of an additional number of different officers in verifying it, was such a safeguard as would under all circumstances protect the City against either wrong doing, or a misconception of the duty to be performed. The Act expressly makes it 'the duty of the Fiscal Agent to give out the bonds at par in payment of the debts of the City to the creditors mentioned in said statement,” and it cannot have been contemplated that the Fiscal Agent should have the right — much less, that it should be its duty — to> go behind a statement, the correctness of which was supposed to be insured by requiring it to pass under the inspection of such a crowd of officers, and to receive the signature of each of them.

These officers had included the Police apportionment in their statement and verification in spite of the prohibition of the Statute, under which they were acting, and in wilfull contempt of its peremptory mandate. Their act was wilfull, because it is apparent from their careful observance of other details in the law of February 1869, that they knew its requirements, and were studiously consulting it in order to comply with its directory provisions as to the officers who should make the statement, and those who should verify it, and they complied with these, and with the command that the bonds should be given out only at par, by inserting that proviso in the Ordinance of July 1869. They intended to comply with those requirements which gave form and appearance to the authorization for paying out the bonds, the more surely to accomplish the illegal purpose of having them paid out for a huge estimate of Police expenses, which was not a part of the then existing floating debt of the Oity. ¡

The Bank avers that under that verified statement of the City officers, it had no option but to pay bonds for the Police apportionment, and that it complied with the legal mandate to pay them out at par, and triumphantly points to the receipt of the State Treasurer, acknowledging the delivery of the bonds at par.

This last averment is not sustained by the record. The bonds were never delivered to the Treasurer. That officer pretended to have received them, and signed a paper on July 20,1869, formally acknowledging to have received them from the Fiscal Agent in full payment of the statement of the Police assessment, whereas in truth the bonds were never in his possession. Worse still, the bonds were not then in the possession of the Fiscal Agent. The formal receipt of A. Dubuclet, signed as State Treasurer, professing to have received from the Southern Bank this large amount of bonds, which the one did not have and the other therefore could not take, was but a bunglingly performed feat of legerdemain, wherein an object not in one place is made to appear to pass from it into another place, to the great delight of the audience of City officers who witnessed, and with ready, complaisance applauded this ill-concealed trick of sleight of hand.

While the object and nature of this paper transfer is abundantly shewn, and indicates great carelessness on the part of the Fiscal Agent, the record fails to establish its mala fides. Holding then that it could not refuse to give out the bonds upon the verified statement of the City officers, this mode of putting them under the control of the State Treasurer, although reprehensible, is not fatal to its defence. And this the more, since we find that after it had ceased to be the Fiscal Agent of the City, it rendered an account of its gestión to the plaintiff, (which necessarily included the whole transaction relative to the giving out of these bonds) and that the plaintiff approved and ratified the defendant’s act. Such ratification was clearly within the City’s power to make, since she had the power, through certain designated officers, to order the doing of the act which was subsequently ratified. We lay no stress on the fact that a recognition of these Bonds was made by providing for funding them in Premium Bonds. The bonds were out, and the City was assumed to be liable for them. That liability constitutes the ground for this suit to recover their amount from those who are charged with unlawfully putting them out. And besides, after the plaintiff knew of, and had ratified the manner of putting her bonds out, even assuming that her Fiscal Agent had misapplied them, and when she in turn was sued by the Police Board, in order to relieve herself of liability for the apportionment of §805,635.00, she pleaded in defence that she had paid it by her Bonds for a fraction less than that sum, and that she was forever acquitted and discharged of the debt. It is a judicial declaration that binds her.

The plaintiff’s counsel seeks to draw a distinction between the City government then and now, and would have us disregard and ignore the acts and declarations of its officers at the period when these things were done. We cannot assume that those acts were not her will then. She speaks and acts only through her accredited servants, and if she has had bad servants, she suffers from their maladministration as an individual often suffers from the unfaithfulness of his agents; and as an individual would be bound by his ratification of a wrongful act of his agent, for which responsibility did not attach when it was done, so a corporation.must in like manner be bound by its ratification. The plaintiff condoned the malfeasance, if there were any — adopted the acts of her Fiscal Agent and made them her own, and screened herself from an alleged liability to a party professing to have been injured, by pleading those acts as a virtuous discharge of her obligation. She is estopped from recovering of the Bank now.

The defence of Dubuclet is of a wholly different kind. He was the-Treasurer of the State, and liis acts relating to this matter were official.

The Metropolitan Police Act-put in motion machinery, ingeniously contrived to strangle local corporate government. It substituted centralized autocratic domination to the exercise of corporate powers for local regulation. The parishes of Orleans, Jefferson, and St. Bernard; were territorially united for the purposes of police government and police discipline into one district, and the powers and duties connected with, and incident to that government and discipline, were vested in a. board of commissioners, who were to be appointed by the Governor of the State, and who were to appoint one of themselves to be treasurer of the Police District thus formed, which treasurer was to receive from the State Treasurer the moneys belonging to the Police Fund. Sess. Acts-1868, p. 85. Thus the Treasurer of the State was brought in connection with this organization.

The defence of Dubuclet is, that the cause of action set forth in the plaintiffs petition arises ex delicto, and is barred by the prescription of one year.

There is no pretence that the action is founded on any contract between the State Treasurer and the City, nor can there be; that it is founded on a quasi-contract. This latter is the lawful and purely voluntary act of one from which there results any obligation whatever to a third person. Civil Code, art. 2272 new no. 2298.

Pothier defines an offence to be un fait par lequel une personne, par vol ou malignité, cause du dommage ou quelque tort a une autre, and a quasi-offence to be le fait par lequel une personne, sans malignité mais par une imprudence qui n’est pas excusable, cause quelque tort a une autre. The characteristic therefore of offence or quasi-offence is-that the act, from which the obligation arises, is unlawful. The marked distinction then between a quasi-contract, and an offence or quasi-offence is, that the act which gives rise to a quasi-contract is a lawful act and therefore is permitted; while the act which gives rise to an offence or quasi-offence is unlawful, and 'therefore is forbidden. The Pandects clearly draw the line of distinction between contracts and delicts; — Ex maleficio nascuntur ohligationes, veluti ex furto, ex damno, ex rapiña, ex injuria, guce omnia unius generis sunt; nam hac re tantum consisiunt, iá est ipso maleficio, quum alioquin ex contractu obligaiiones non tantwm re consistunt, sect etiam verbis et consensu. Dig. L. 44 Tit. 7 sec. 4.

The distinction between damages ex delicto and ex contractu is, that the latter ensue from the breach of a special obligation, and the former from the violation of a general duty. Marcade says; — Remarquons bien que c’est de la violation d’un devoir proprement dit qu’il s’agit, d’un de ces devoirs gónéraux existant au profit de toutes personnes, et non pas de la violation du devoir existant spócialement de telle personne determinée a. telle autre determinée, et qui constitue l’obligation. Explic. du Code Napoleon art. 1382.

Applying this test to the plaintiff’s petition, it is apparent that the alleged responsibility of the State Treasurer is for an offence or quasioffence, and that the damages resulting therefrom are necessarily ex delicto, and the action therefor is prescribed in one year. Oivil Code, art. 3501 new no. 3536. It must be observed that Dubuclet was to receive only money — to be- raised by taxation, says the Act — and he did not receive money, but bonds, and his act was therefore unlawful, and is an offence or quasi-offence.

And the rule applies to ministerial officers as well as to individuals. This court said in Semple v. Buhler, 6 Mart. N. S. 665; — the law makes no distinction in this respect between public ministerial officers and private individuals, and we ought not to distinguish, and werh we at liberty to do so, it would be difficult to find any good reason for imposing a heavier responsibility on a public than a private agent. And this was reiterated in Edwards v. Turner, 6 Rob. 382, Emmerling v. Graham, 14 Annual, 389, Taylor v. Graham, 15 Annual, 418.

It is ordered, adjudged, and decreed that the verdict of the jury is set aside, the j udgment of the lower court is avoided and reversed as to these two defendants, and that there be now judgment in favor of the Southern Bank against the plaintiff upon the demand set up herein, and that there be judgment in favor of A. Dubuclet sustaining his plea of prescription, and that these defendants recover of the plaintiff the costs of appeal.

On Application for Rehearing.

Manning, C. J.

This case was decided at the New Orleans Term inMav, and an application for rehearing having been made, and time granted to July 7th for printed argument thereon, and the case having been brought here (Opelousas) by consent for the purpose of considering and determining that application,

It is ordered that the rehearing of this case is refused.


author: Spencer, J.

text:
    No. 7451.
    Mrs. George Burthe, Tutrix, vs. Arthur Denis, Executor.
    Where the intention of the testator, as to the auantity of interest devised to different legatees, can be ascertained with reasonable certainty by the terms made use of by the testator in his will, those terms will be relied on for determining what the intention was. But if those terms leave the testator’s intention doubtful, extrinsic evidence may be admitted to explain and interpret the intention. And in case of any remaining doubt as to the Quantum of interest disposed of, that interpretation -will be adopted which approximates closest to the order of distribution fixed by law.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,

      Edward, Bermudez for plaintiff and appellant.

      Henry Denis, Henry Ghiapella, and Thos. J. Semmes for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Mrs. Felicie Burthe, widow of Louis Frederick Foucher, Marquis de Cireé, died in France, November 22, 1877, without forced heirs, leaving an olographic will.

Her father had five children, to wit: herself and four brothers, Edmond, Henry, Leonce A., and Victor. These four brothers died before her, leaving children as follows :

Edmond, one child; Henry, two ohildren; Leonce, four children ; Victor, four children.

George Burthe, one of the children of Victor, died also before the testatrix, leaving six minor children who, through their mother as tutrix, are the plaintiffs in this cause.

Another of the sons of Victor, to wit, Emmanuel, died before the testatrix, leaving two children.

The contest before us grows out of the interpretation of the following clause in the will of Mrs. Foucher, Marquis de Circe :

“J’institue pour mes legataires universels conjointement les enfants de mes quatre f reres décédós, et á leur defaut leur descendants, par poi'tion égale dans chaqué branche.”
I institute for my universal legatees, conjointly, the children of my four deceased brothers, and in their default their descendants, by equal portion in each branch.”

As we have seen, these four deceased brothers left among them eleven children, two of whom were dead before the testatrix.

The plaintiffs contend that the estate must be divided in eleven equal portions corresponding to the number of the four deceased brothers’ children — that these eleven children were the legatees to whom was given, conjointly, the estate of the testatrix. That in default of any of these legatees, then to their descendants “by equal portion in each branch.” The defendants contend that the estate must be divided into four equal parts, corresponding to the four deceased brothers, and that one part, or one fourth, of the estate must go to the children or descendants of the brother Edmond, one part or fourth to those of the brother Henry, one part or fourth to those of the brother Leonce, and one part or fourth to those of the brother Yictor. So that as Yictor left four children, each of them would receive only one sixteenth, and as George, the father of plaintiffs, was one of Yictor’s four children, plaintiffs, as representing George, are entitled to 1-16 instead of 1-11, as claimed by them. The estate exceeds half a million of dollars in amount.

It will be seen that.under the theory of defendants, the will did not alter the legal order of descent, but distributed the estate just as the law would have done.

There are some elementary rules for the interpretation of wills which should be kept in mind, of which the following are pertinent to this case:

First — It is the intention of the testator which should be sought, and this should be deduced primarily, if possible, from the will itself, without resort to extrinsic circumstances.

Second — “ If, from the terms made use of by the testator, his intention can not be ascertained, recourse must be had to all circumstances which may aid in the discovery of his intention.” R. O. 0.1715.

This right of resorting to extrinsic evidence, is not limited to cases of ambiguity or obscurity in tho description of the legatee,” for that is provided for in R. 0. 0.1714; nor to the ascertainment of “ what the thing was, which the testator intended to bequeath,” for that is provided for by art. 1716 R. 0. 0. We see no reason to doubt that the rule of art. 1715 would extend to the case where there was ambiguity or obscurity, as to the quantum or portion of a legatee, as well as to the case where there is doubt as to sense in which words are used by the testator. The article is general and absolute, and makes no distinction between latent and patent ambiguities; but authorizes the court to resort “to all circumstances” which may throw light upon the matter, “when from the terms used by the testator Ms intention can not be ascertained.”

Such seems, also, to be the rule at common law, where much greater strictness has prevailed on this subject. Wigram on Wills, proposition Y, p. 155, thus states the rule ;

“For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the eireumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the person or thiDg intended by the testator, or to determine the quantity of interest he has given by his will.”
“ The legitimate effect of circumstantial evidence, in cases in which the quantity of interest given by the will is the point in dispute, is not perhaps so well defined as in the cases which have already been stated. The proposition, however, that such evidence is admissible where the quantity of interest is the point in dispute, is certain.”
“ This proves in the clearest manner the right of a court of law, where the estate or quantity of interest disposed of by a testator is in dispute, to look out of the will and be guided in the construction of it by the effect (if any) which the circumstances of -the case may have upon it.”

Third — Another important rule is, that in case of doubt, that interpretation should be preferred which will approximate closest to the legiil order of distribution. This rule flows from the general principio that the law favors the distribution which it itself provides, and gives effect to the will of' man only when that will is clearly expressed or fairly deducible.

In Lyon vs. Acker, 33 Connect, p. 229, the court says : “ It is a sound rule when a devise or legacy is given to heirs or their representatives for courts to apply the general principles governing the descent of estates, unless a contrary intention appears. The statute of distribution governs in all cases where there is no will; and where there is one, and the testator’s intention is in doubt, the statute is a safe guide.”

In Menton’s appeal, 4 Wright Pa. 111, the court says : “ When we find a man distributing his estate in whole or in part among his next of kin, and he leaves the proportions in which they are to take in doubt, it is quite natural for us to suppose that he had that statutory or customary form of distribution in his mind, and to interpret his will accordingly.”

In Clarke vs. Lynch, 46 Barbour 73, the court says : “ In construing • wills, the courts take notice of the natural relations in which the testator stands to the objects of his bounty, and the mode in which the law would dispose of the estate in case he had died without indicating his purposes; and thus they will interpret the will by these considerations and legal dispositions, unless such interpretation should be overcome by extrinsic facts clearly existing and obvious to the mind of the testator, or by the explicit and unmistakable terms of the will.”

In Fissel’s appeal, 3 Casey 27, Pa. State 55, the court says : “ In construing such devises we can not reject the legal and customary principles governing the descent of estates; and, according to them, distribution goes by classes. And this must be presumed to be the-intention of testators generally, unless the contrary appear, for all are-supposed to assent to the general justice of the law on this subject.. This is only another form of the rule that in doubtful cases the claim of' the heir shall have preference.”

Quia in dubiis testator videtur se conformare cum. legis dispositioneet ad earn se ref erre.”

Our first and primary duty therefore is to ascertain whether “from, the terms made use of hy the testatrix,” her intention, as to the mode-of distribution, and the quantum of interest, can be ascertained with reasonable certainty. The real difficulty is to determine to what does-the words “ each branch” refer and qualify ? Do they refer to the “ children” or to the “ four brothers ?” In other words, is each child a- “ branch,” or is each brother? It depends upon the standpoint taken,, and from which the question is viewed. Thus, viewed from the standpoint of the common ancestor, Dominique Burthe, each brother would be, in legal parlance, a “ branch,” while in respect to their descendants, each of these brothers would be a “root.” So that, admitting, as contended by plaintiff’s counsel, that the term “branch” has a fixed legal-signification not to be disregarded, the doubt still remains, and is not relieved, as to whether the testatrix had in her mind and viewed the kinsmen from the one or the other standpoint. If she intended to speak of her brothers as branches of her father’s family, then defendant’s interpretation must prevail. If she intended to speak of the children as-branches of her brother’s families, then plaintiff’s views are correct. Grammatical rules will perhaps admit of either construction being given.. Weincline to think that thefaetthat the testatrix has specified the number of her brothers, instead of the number of their children, indicates. that it was her intention to make that number the dominant factor in the distribution. This conclusion finds support in the third rule above stated, and is more conformed to the legal order of distribution than would be the plaintiff’s theory.

The judge a quo held that there was doubt and ambiguity in the-disposition, and he admitted extrinsic evidence to assist in ascertaining the intentions of the .testatrix. We are not prepared to say that he erred. Both interpretations, that of plaintiff’s and that of defendant’s, when deduced from and predicated upon the terms of the icill alone, are to say the least questionable and doubtful, arising from ambiguous expressions in the will.

If we resort to this extrinsic evidence, there no longer remains a doubt as to the correctness of defendant’s construction.

That evidence consists largely of the writings of the testatrix, proven to be genuine. She, during her life, and not many years before her death, divided out among these “ children of her four deceased brothers,” a large amount of funds, proceeding from the sales of property in New Orleans. Writing to one of these nephews (her agent) she says : “ Mon intention est de vous partager ma portion' de l’heritage de mes parents, qui ne m’est plus necessaire, et cela des aujourd’hui, et non au jour de ma mort, ce qui ne pourrait pas vous manquer. A partir de ce moment done, je vous abandonne a vous, mes neveux, les fils de mes quatre chers freres qui n’existent plus, toute ma part dans la succession de mon pere et de ma mere ; ainsi £ pour la branche de Leonce ; £ pour la branche de Yietor ; £ pour toi qui representes seul la branche d’Edmond, et £ pour la branche d’Henry. Ceci est bien posé.”

We have here her distinct avowal that she is doing this as a sort of advance upon what could not fail them when she was dead. We also see that the “ branches” she had in her mind were her four brothers. Other letters on this subject refer to her brothers as the branches. She speaks of “ the branch” in which there are “ four members,” etc. — "two members,” etc.

Finally, a paper, proven to be in her own handwriting, was found among her effects, and is produced, in which she explains the dispositions of her will, and from which it is clear that she intended to give the family of each of her four brothers one fourth of her estate.

The judgment below so decreed. It is correct, and is affirmed with costs.