author: Wyly, J. Howell, J.,

text:
    No. 4772.
    State of Louisiana ex rel. Francois Lacroix v. Judge of the Firth District Court et als.
    A suspensive appeal being in force, respondents in tbis case conceded nothing in releasing tlie seizure of the relator’s property for thirty days on his promise to pay the amount of the judgment rendered against him, with interest and costs. They had no right whatever to execute the judgment pending the suspensive appeal.
    Therefore the promise insisted on was a mere nudum pactu/m, which could no more defeat the appeal than a like promise not to take an appeal could defeat one subsequently taken according to law.
    WRIT OF PROHIBITION to the Judge of the Fifth District Court, parish of Orleans.

      A. B. Philips, for relator. M. B. Livaudais, for respondent.
   Wyly, J.

On the fifteenth of October, 1872, the judge of the Fifth District Court, parish of Orleans, set aside the suspensive appeal in the case of Mrs. S. Costera et als. v. Francois Lacroix, on the ground of the insolvency of the surety, and allowed the appellant ten days to-file another appeal bond, which was accordingly done.

On the twenty-first of May, 1873, the judge, in a proceeding contradictorily with the parties in interest, again set aside the appeal and ordered execution to issue against the relator on the ground that J. A.. E. Bonnet, the surety on the second appeal bond, was not good and sufficient. The relator subsequently applied for and obtained the writ of prohibition, upon which the case is now presented for determination..

The important question is, is the surety, J. A. E. Bonnet, good and sufficient ? If he is, the Fifth District Court was without jurisdiction to set aside the appeal and issue execution against the relator.

The amount of the judgment appealed from is $1145, with legal interest from twenty-first of May, 1872. A bond of $1800 would be sufficient for a suspensive appeal. The relator, however, gave a bond for $3500. It is proved that J. A. E. Bonnet is worth $2000, and that he owes no debts. There is no counteracting evidence. We think the surety is good and sufficient.

The respondents, however, contend that after the appeal was set. aside, and execution had issued against the property of the relator, the latter acquiesced in the order of the judge by entering into a verbal agreement with the respondents that he would pay the amount of the judgment, interest and costs if they would release the seizure of his property for thirty days, which was accordingly done; that at the expiration of the thirty days, the relator refusing to pay according to his agreement, execution was again issued against his property, and on the day preceding that fixed for the sale thereof they were notified of the-prohibition herein, being more than sixty days after the entry of the order setting aside the appeal.

We see no force in this defense. Assuming that the relator made-such an agreement (of which there is no proof except the ex parte affidavit of the respondents), we fail to observe any consideration therefor.

The suspensive appeal being in force, as we have just shown, the respondents conceded nothing in releasing the seizure of the relator’s property for thirty days. They had no right whatever to execute the judgment pending the suspensive appeal. Therefore the promise insisted upon was a mere nudum pactum, which could no more defeat the appeal than a like promise not to take an appeal could defeat one subsequently taken according to law.

It is therefore ordered that the prohibition herein be made perpetual, and that the relator, Mrs. Costera, testamentary executrix, pay costs of this proceeding.

Howell, J.,

dissenting. The writ of prohibition is not one of right,, but should issue or not just as the circumstances of each case will war-. ■rant. In this case, I do not think the facts justify its issuance. The first bond given by the relator was declared invalid, and he was allowed to furnish another, which was declared insufficient, and execution was ordered. It was issued and property seized. Instead of complaining, or taking any steps to arrest the execution of the judgment, he virtually admitted the correctness of the order setting aside his appeal and the right of the plaintiff in the writ to execute the judgment, by promising to pay the judgment within thirty days, if plaintiff would stay the sale that long. When that delay, thus granted to him, expired, and the judgment not being paid, the property was again advertised, and it was only four or five days before this second day of sale that he applied for a writ of prohibition. In my opinion, he is not entitled to it, under the circumstances, admitting the second bond to be good and sufficient, which I think is doubtful.

Morgan, J., concurs in this opinion.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 4828.
    State ex rel. P. C. Mahan v. Judge of the Fifth District Court, parish of Orleans.
    After an execution is injoined and a suspensive appeal taken from the judgment dissolving the injunction, tlie court is without power to order tlie sale of any part of tlie property under seizure and the proceeds to remain in the hands of the sheriff pending the appeal.
    The injunction bond is presumed to be ample protection to the plaintiff in execution, and until the injunction is finally determined, all proceedings in the case are suspended, except in regard to the appeal bond.
    APPLICATION for a writ of prohibition directed to the Judge of the Fifth District Court, parish of Orleans. the Judge of
    Tissot, Judge of the Second District Court, parish of Orleans, presiding in the absence of J3. W. Oullom, Judge of said Fifth District Court. John £ay, for relator.
   Howell, J.

After an execution was injoined and a suspensive appeal taken from the judgment dissolving the injunction, the plaintiff and appellee moved to sell a part of the property under seizure, the proceeds to remain in the hands of the sheriff pending the appeal, which, on hearing the parties, was ordered. The defendant and appellant now asks a prohibition restraining tbe said sale on the ground that the court a qua is without jurisdiction to render such •order. The judge answers that under the equitable power of the •court to preserve the property under seizure, he ordered the sale, ■because the expense of keeping exceeded the value of the property.

The court, was without power to render the order complained of after •a suspensive appeal was taken. The injunction bond is presumed to he •ample protection to the plaintiff in execution, and until the injunction •is finally determined all proceedings in the case are suspended, except in regard to the appeal bond. Let the writ herein be made perpetual.


author: Morgan, J.

text:
    No. 4778.
    State, ex rel. Pierre Magloire, v. A. L. Barbin, Sheriff; and Pierre Magloire v. A. L. Barbin.
    The delays for filing an appeal only run when this Court is sitting.
    .It is the duty of the appellant to see that the record contains all the evidence on which the ‘Case was tried. If he neglect so to do, the Court is without means of reviewing the case, • and the appeal will he dismissed.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Ileives, J.

      and appellee. Dncote, for the same. Irion & Thorpe, for defendant :and appellant.
   Morgan, J.

This is a contest for office. There was judgment in favor of plaintiff, and the defendant appealed.

Appellee moves to dismiss the appeal upon several grounds:

First — The transcript or record was not filed within the time required 'by law, ten days. Section 13 of the act of 1866, page 154, provides that, “In all cases in which the right to office is involved, and an appeal is taken from the judgment of the district court, returnable before the Supreme Court holding its sessions in New Orleans, it shall be returnable in' ten days after the judgment of the lower court; and fhe Supreme Court, on motion of either party, shall proceed to try the ¡qame by preference.”

The judgment appealed from was signed on the eleventh of August, 1873. An appeal was allowed returnable to this court in ten days. 'The transcript was not filed until the third of September.

The transcript was filed in time. This Court was not in session when the appeal was made returnable. The delays only run when we are sitting. The authority relied on in 21 Annual, page 174, does not apply, the delays having expired while the Court was open.

Second — Because the transcript filed by appellant is not complete : it not containing all the evidence offered on the trial of the cause below.

In his answer, the defendant avers that he was duly elected sheriff -of the parish of Avoyelles, and a commission issued to him as such, without reciting by whom the commission issued. On the trial, the ■defendant offered the commission in evidence. We can not find it in the record.

In Harris v. Hays, 8 An. 433, it was held that, “ It is the duty of the appellant to see that the record contains all the evidence on which the case was tried. If he neglect so to do, the Court is without means •of reviewing the case, and the appeal will be dismissed.”

In Hall v. Beggs, 17 An. 130, it was held that, “ Where documents ■offered in evidence below are not to he found in the record, the appeal will be dismissed.” The same rule has been observed in 11 An. 72 ; 16 An. 40; 18 An. 232.

In accordance with these authorities, the appeal is dismissed.


author:
Ludeling, C. J. Wyly, J.
     Ludeling, C. J.

text:
    No. 4029.
    Howard, Preston & Barnett v. William H. Simmons et als.
    Where tlie irregularities in the proceedings in the court a qua, which are complained of, are* more technical than real, and where, on the whole, substantial justice has been done, the-judgment will not be disturbed.
    While it' is a general rule that petitions in injunction suits are not allowed to be amended,, still when events have occurred since the institution of the suit, which would warrant a new injunction, there can be no good reason to refuse them to be stated in a supplemental petition.
    Courts abhor a multiplicity of suits, and they will not dissolve an injunction when it is apparent from the record that the party would be entitled to another.
    APPEAL from the Fifth District Court, parish of Orleans. Leaumont, J.

      Wooldridge <£ Thomas ior plaintiffs and appellees. Tace, Foster <& Merrielc for defendants and appellants.
   Ludeling, C. J.

On the twenty-fifth of August, 1868, the defendants obtained a judgment against the plaintiffs in the State of Mississippi, from which no suspensive appeal was taken. Thereupon suit was instituted in the Fifth District Court of the parish of Orleans on the seventeenth of December of the same year, in which, on the production of an exemplified copy of the proceedings had in Mississippi, that judgment was made executory in this State. The decree of the Fifth District Court was that the final judgment, rendered in the-Circuit Court in and for Eankin county, in the State of Mississippi, in. favor of each of the plaintiffs herein, with interest and costs, and* against the defendants, in solido, be ratified, confirmed and madeexecutory by this court, the same as in the said Circuit Court.” On appeal, this court affirmed the judgment.

While these proceedings were being had in this State, Howard,. Preston & Barnett were litigating in the courts of Mississippi in regard to said judgment. They took an appeal from the Mississippi, judgment without swpersedeas to the Court of Errors and Appeals of that State. At the November term of that tribunal for the year 1871,. a decree was rendered in favor of appellants, reversing- the judgment of the Circuit Court of Eankin county, on which proceedings had been instituted in this State, as aforesaid.

After the judgment of this court had been rendered an execution-was issued and placed in the hands of the sheriff, who went to the-office of Howard, Preston & Barnett to make a seizure. About two-hours afterwards, Howard, Preston & Barnett sued out an injunction, which was served on the sheriff at about half-past twelve o’clock.. The deputy sheriff who had the execution, remained in the office of Howard, Preston & Barnett until a little before three, when he stated to them that unless the execution was satisfied, he would seize the contents of their safe. To avoid this, they paid the amount of the execution — they say under protest, while Simmons et al. say they paid voluntarily.

We think the statement of facts above made shows the payment was ■not voluntarily made. The irregularities in the proceedings in the ■district court, complained of, are more technical than real. On the whole, we think substantial justice has been done. The defendants in ■this suit attempted to execute a judgment, which had not become res judicata, and the judgment was reversed on appeal before the money had been paid to them. We think that justice and law would require the money to be returned by the sheriff to the plaintiffs in this suit.

It is therefore ordered that the judgment appealed from be affirmed, ■with costs.

Wyly, J.

dissenting. The judgment which the plaintiffs injoin the ■ defendants from executing is a judgment which stands unrevoked, no attempt having been made to revise it in the manner provided in the •Code of Practice.

The plaintiffs, however, injoin its execution, because the judgment in Mississippi, upon which it is based, has been revised and reversed in ■that State.

I can not concede that a judgment rendered in this State (it matters not upon what evidence it is based) can be annulled by a proceeding in Mississippi to revise the judgment there. Nor can I sanction the practice of barring perpetually the execution of a final judgment in this State which has not been revoked nor sought to be revised in the manner provided by the Code of Practice.

That the judgment has been reversed in Mississippi might be a good defense to the suit here upon that judgment, but after judgment in this ■State no proceeding in Mississippi can destroy it. The court here ■which pronounced (he judgment, alone has jurisdiction to reverse it in

■ a proceeding to revise it according to the Code of Practice. It is well • settled that a judgment merges into itself the claim or instrument ■upon which the demand is based.

Therefore the claim or judgment from Mississippi became merged into the judgment in this State; and until it is annulled in a proceeding here it is a valid judgment, and can be enforced, notwithstanding the judgment in Mississippi has been pronounced invalid.

A judgment is property, and it can not be annulled or reversed except in a proceeding authorized by law. In this suit the plaintiffs have not demanded the nullity of the judgment. Perhaps the action is barred by prescription. The legal right of the defendants in virtue of ■their judgment, in my opinion, can not be destroyed by any judgment or decree whatever of the courts of Mississippi, and perpetually barring ■the execution of the judgment here is practically its destruction.

I therefore deem it my duty to dissent in this case.

On Rehearing.

Ludeling, C. J.

After a. careful re-examination of tlie record inr this case, we are convinced that the facts of the case were correctly stated, and that the conclusions arrived at were legal and just.

Tite technical objections, principally urged by defendants, were :• that there was no legal injunction bond in the case, because the bond is not signed by all the parties applying for the injunction, and because the bond is made payable to the clerk of the court; and that the supplemental petition ought not to have been filed.

The suit is brought in the name of a commercial firm; the bond is signed “Howard, Preston and Barnett,” and Howard & Preston and E. Woolridge as securities; and it is made payable to “ Louis Powers, clerk, and William H. Simmons et als., heirs and executors,” etc.

While the injunction suit was pending, the plaintiffs alleging that, since the institution of the injunction suit, the Court of Errors and. Appeals of Mississippi had reversed and annulled the judgment which had formed the basis of the judgment injoined in this State, and they urged that as an additional reason for sustaining their original injunction. The objections to this supplemental petition were : that it came too late, the case having been submitted for decision to the court; and that in an injunction suit, the petition can not be amended.

It is clear that, if the judge a quo had decided the case on hearing; the facts stated in the supplemental petition, he could have granted a, new trial. And while it is a general rule that petitions in injunction, suits are not allowed to be amended, still when events have occurred since the institution of the suit which would warrant a new injunction,., there can be no good reason to refuse them to be stated in a supplemental petition. Courts abhor a multiplicity of suits, and they will not dissolve an injunction when it is apparent from the record that the-party would be entitled to another. C. P. 748.

We therefore adhere to our original opinion.


author: Wyly, J.,

text:
      The State v. Zack McFarland.

       The omission by the clerk of the court at Monroe to send this dissenting opinion -with the record of tbe case, implied tliat there -was none, and prevented its being published in the proper 1 lace. See page 547.

   Wyly, J.,

dissenting. In January, 1873, the defendant, Zack McFarland, was indicted for murder. He was arrested by the sheriff of the parish of Caddo, and on the fifteenth day of March he applied to the District Judge of said parish for a writ of habeas corpus, alleging in his petition that he had been indicted for murder; had been arrested by the sheriff, and was lodged in jail. He also averred that he was not guilty of the crime charged, but at the time he shot the said Aleck (James Alexander) the said Aleck was then and there in the act of killing and murdering his (petitioner’s) brother, and that petitioner shot and killed the said Aleck to prevent the killing of his brother aforesaid. He further alleged that he had no preliminary examination, and no opportunity to vindicate his innocence, and that his imprisonment was illegal and unjust. The court granted the writ, tried the case, and on nineteenth March, 1873, finding that the accused was entitled to bail, c‘ ordered that he be released from custody upon giving bond with good security in the sum of three thousand dollars,, conditioned according to law, and the sheriff or any deputy be authorized to take and approve said bond.”

On the same day, to wit: Nineteenth March, 1873, the accused gave-the required bond in favor of the Governor of the State of Louisiana for $3000, with A. H. Leonard, John W. Lawton and John Lake as-sureties. This bond was approved by the District Judge.

On the third day of June, 1873, the bond was duly forfeited and judgment was rendered against the principal and his securities in so1ido> for the amount thereof, $3000. The sureties then moved to set aside-the judgment on the following grounds:

Mrst — There was no indictment against McFarland that he was. legally bound to answer, because it was not found by a legal grand jury ; consequently there was no warrant for his arrest, and his detention and imprisonment were illegal.

Second — If the indictment be valid, McFarland was not legally bound, to appear before the court at this term, because the law prohibits him from recognizing usurpers in office, and because the offices of clerk of said court and sheriff of said parish are now usurped by S. W. Morrison and J. W. Pickens, pretending to act without authority of an-election declared by a returning board constituted by law, and without authority of a commission from the Governor of the State.

Third — That the bond was not taken by any one legally authorized to take the same, and it is, therefore, null and void; that the court was without authority to order Pickens or any one acting as deputy for him to take the bond of said McFarland, and they were without authority and prohibited by law from so doing, or performing any •other act as sheriff.

They also allege that no judgment can be taKen on the bond or any ■other action be taken at this term of the District Court, because the clerk and sheriff are without authority to act as aforesaid. Considerable testimony was adduced for and against the rule or motion; the court, however, overruled it, and Leonard, Lawton and Lake, the sureties on the bond have appealed. Morrison and Pickens, the clerk and sheriff, were both commissioned by H. C. Warmoth, Governor, on the fourth day of December, 1872, and it is admitted that these ■officers have taken the necessary oaths of office and filed their bonds in accordance with law.” It is also ■“ admitted that J. W. Pickens ■obtained peaceable possession of the office of sheriff of Caddo parish •on the twenty-third of December, 1872, and on that day entered peaceably on the duties of said office, and has been continuously in possession thereof ever since, discharging the duties of said office.”

It is proved that S. W. Morrison has been the acting clerk of the Tenth District Court since twenty-third of December, 1872, and has •continued in the open, undisturbed and continuous discharge of the duties of said office ever since. Also that his immediate predecessor, Samuel C. Wright, voluntarily delivered to him possession of the ■clerk’s office, the books, records, etc.

The question is, are the official acts of the officers valid? Are they binding as to third persons, or are they absolute nullities ? Did the •commissions, the oaths, the bonds, and the open, peaceable and undisturbed possession of these offices since twenty-third of December,. 1872, ,give the sheriff and clerk of the parish of Caddo a color of title to their offices, the standing of de facto officers rendering their official acts ■valid 1 Under the settled jurisprudence of this State these questions must be answered in the affirmative. This is the jurisprudence of other States of the Union, and also of England. Buckham v. Ruggles, 15 Mass. 183; Mason v. Dillingham, 15 Mass. 171; Mclnstry v. Tanner, .9 Johnson 135; 3 Abbot’s Digest 352, sections 63, 64, 65, 66, 67, 68; United States Dig. (new series) vol. 2, 1871, page 519, section 23; 3 An. 633; 10 An. 524; 13 An. 607; 22 An. 33; 16 Peters 71; 13 An. 404.

In the Citizens’ Bank v. Bry et al., 3. An. 631, it was held that the .acts of an officer de facto in the exercise of the ordinary functions of his office are valid in respect to the rights of third persons who may •be interested in such acts.”

In the State v. Gilbert, 10 An. 524, a case directly in point, where the •sureties of Gilbert opposed the forfeiture of his bond on the ground that William H. Dinkgrave, who acted in taking said bond as sheriff, -¡was not sheriff at the time he took said bond, never having taken the •oath nor given bond as required by law, and being ineligible under the -constitution to act as sheriff,” this court held that: There is no weight in the position that Dinkgrave was not sheriff de jure. Conceding that he was not, it is shown that he was the sheriff, and the only sheriff de faeto, under color of title, and his official acts as such are not .absolute nullities, but must be held good in controversies between third persons.”

In Cash v. Whitworth, 13 An. 404, it was held that: The objection urged by the plaintiffs to the mode of choosing the Third Swamp Laud Commissioner can not avail them. He is an officer of the State de faeto, acting under color of legal authority, and he is not a party to this suit. To declare his acts null and void by a side-long judgment in a suit between third persons, would be contrary to reason as well as to precedent.”

In Miahle v. Fornet, 13 An. 607, it was held that: When a warrant is drawn by those who are de faeto directors of a public school of a particular district, the treasurer can not set up as a defense that the •directors were not elected and had not qualified as directors.”

In the State v. Lewis, 22 An. 33, the objection was raised that N. J. .Scott, before whom the case was tried, was not Parish Judge; in disposing of this objection this court used the following language:

“ It appears that N. J. Scott performs the duties of the office of Parish Judge of the parish of Claiborne. His capacity and right to perform these duties can not be inquired into collaterally.”

This has frequently been decided by this court, and in all the cases heretofore presented a different ruling has been made. Here the sureties on the bond of the defendant.seek to escape liability on the ground that Morrison and Pickens were not clerk and sheriff. They attack the title of these officers collaterally, and in a proceeding in which they are not parties, contrary to the well settled jurisprudence of this State. To decide in this collateral manner that Morrison and Pick-ens are not clerk and sheriff would be to determine their rights without giving them a hearing or any opportunity of making a defense. No one should be condemned without a hearing, nor deprived of a legal right without due process of law. Besides, the right to an office can not be inquired into in this State, except in a proceeding under the intrusion act or in a suit to contest an election. The question can not be raised by a maudamus or in any other way, as has frequently been decided by this court. State ex rel. Sternberg v. Lagarde, 21 An. 18 ; State ex rel. Hero v. A. Pitot, 21 An. 336, and other subsequent decisions.

In State ex rel. Viene v. Hyams, 12 An. 719, where the relator, who was commissioned sheriff of the parish of Natchitoches, sued out a mandamus to compel Hyams, who detained the keys of the Parish Prison, to deliver them to him, and where the respondent denied, in his answer, that the relator was legally elected sheriff, and claimed the right to hold over under his former commission until a successor could be legally elected, this court held : “That the act of 1846 prescribes-the mode of proceeding in contesting th'e election of a sheriff. The Supreme Court is not the tribunal to entertain such a contest, and can not go behind the commission to examine the proof upon which the Governor acted in issuing it.”

This was also decided in State ex rel. Bienvenu v. Wrotnowski, 17 An. 156, and in several later decisions. Now, if the court could not go behind the commission to examine the proof upon which the Governor acted in issuing it, in the case against Hyams, 12 An. 719, where the parties in interest were before the court, how can the court look behind the commissions of Governor Warmoth issued to Morrison and Pickens on fourth December, 1872, in this proceeding where the question is only presented collaterally, and where the parties whose title to the offices in question are not before the court ?

If Morrison and Pickens, who went peaceably into possession of their offices under commissions from the Governor, and who are admitted to have qualified and given bond according to law, are not, at least» acting defacto officers, under color of title, there never has been a de faeto officer in this State.

In my opinion the decree which declares all their official acts absolute nullities, flatly overrules the well settled jurisprudence of this State, practically defeats or destroys the titles of Morrison and Pickens to the offices of clerk and sheriff of the parish of Caddo, without giving them a hearing and an opportunity of making a defense.

It is the first time in the jurisprudence of this State that a title to an office has been successfully attacked collaterally, and it is the first time that a commissioned, qualified and bonded officer of this State has been held to be without title and a usurper, in a proceeding to which he was not a party.

But it is urged that the court is compelled to disregard the well settled jurisprudence of this State, to which I have alluded, because of the passage of act No. 41, approved fifth March, 1873. The title of this act is : “ An act declaring it a crime to usurp a public office, and providing the punishment for such offense ; providing that if any public officer shall adhere to or recognize any usurper, his office shall be forfeited and considered abandoned, and directing and regulating legal proceedings to have such abandonment and forfeiture declared; authorizing the Governor to declare such abandonment and forfeiture in certain cases, and to remove such officers and to fill the vacancy so made by appointment.” Section one provides : “ That if any person shall assume or pretend to be an officer of the State, executive, judicial or legislative, without authority of an election declared by the returning board constituted by law, or without authority of a commission from the Governor of the State, in case the laws require such officer to be commissioned, such person so illegally assuming or pretending to be a public officer, shall be deemed a usurper. If any such usurper shall attempt to exercise the functions of a public officer, and shall interfere with any public officer in the discharge of his duties, such usurper so interfering shall be deemed guilty of a crime, and upon conviction may be fined and imprisoned at the discretion of the court, or both.”

I find nothing in this section (and it is the only one bearing on the case) that in any manner alters our rules of practice, and compels this court to disregard that principle of universal jurisprudence which is, that no one should be deprived of a legal right in a proceeding to which he was not a party. Morrison and Pickens were not beiore the court, and in the statute before us there is no warrant whatever authorizing this court to decide they are usurpers, and all their official acts are absolute nullities. This court has only a limited appellate jurisdiction. It can not determine issues upon which the parties whose interest are affected, were not cited to trial in the court below.

The statute before us does not declare that Morrison and Pickens are usurpers. If it did, it would be unconstitutional, because it is a judicial question whether they are or not usurpers, and the authority to decide it belongs alone to the courts. This statute does not attempt tO' modify or in any manner alter the rules of practice by which civil and criminal cases are brought before the court; it simply makes it a criminal offense for any person not returned as elected by the lawful returning board, or not holding a commission from the Governor, to assume to be an officer and to interfere with any public officer in the discharge of his duties.

Now if Morrison and Pickens have done anything in contravention of this criminal law, inquiry concerning it can only be had by an indictment or information, according to the constitution of the State. And in order to convict them of the crime of usurpation, the facts presented to the court must bring them strictly within the provisions of the statute. Suppose the question was regularly presented by an indictment, and Morrison and Pickens were on trial for the crime of usurpation under the statute, would it not devolve on the State to show that these defendants not only usurped their offices, but also had interfered with some public officer in the discharge of his duties; also, that they assumed to be public officers without having been returned as elected by the lawful returning board, “or without authority of a commission from the Governor of the State?”

Morrison and Pickens do not fall within the provisions of this criminal statute, because they did not assume to be public officers without the authority of a commission issued by the Governor of the State. They obtained peaceable possession of their offices, under the authority of commissions issued to them by H. C. Warmoth, Governor of the State, on the fourth day of December, 1872, and it is admitted that they took the required oath of office, and gave bond according to law.

Morrison and Pickens went into office on December 23, 1872, under the authority of commissions issued by the Governor, under the great •seal of the State. -They were in office, and were recognized by the ■district judge, long before the statute in question was passed, which was on tlie fifth day of March, 1873.

If the Legislature had desired to embrace these acting commissioned ■officers within the provisions of this criminal statute, they would have said so. They would have said, that if any person shall assume to be •a public officer, and interfere with any lawful officer in the discharge of his duties, without having been declared elected by the lawful returning board, or without a commission issued by the Governor (not including the commissions issued by H. C. Warmoth, Governor, on the fourth day of December, 1872), such person si.all be deemed a usurper, and punished, etc. Will this court extend the provisions of a criminal statute, and hold that officers acting under the authority of commissions issued by the Governor, are criminals, and are punishable under a law which only provides a penalty against persons assuming to be ■officers without commissions issued by the Governor, or without having been returned as elected by the legal returning board?

Suppose the Legislature had extended its provisions so as to cover tiie case of Morrison and Pickens, and declared it a crime for these ■commissioned, sworn, bonded, and recognized officers to continue to discharge (he duties of their offices, would that part of the statute be valid and obligatory ? Are acquired legal rights thus to be destroyed in the face of article 110 of the constitution, prohibiting the Legislature from passing retroactive laws ? Is it competent for the Legislature to decide that Morrison and Pickens have no legal title to their offices in the face of that provision of the constitution conferring all the judicial powers of the State upon the courts? I think not. In the case of Downe v. Towne, 21 An., this court held that no man can be legislated out of office, and that a constitutional officer can only be removed by address or impeachment.

Morrison and Pickens hold constitutional offices; they held them before the criminal statute in question was passed. The validity of their titles is not a subject for legislative inquiry; it is a matter alone for the courts to determine. But it is urged that the Legislature has •only made it a crime for these officers to continue to fill their office; this is virtually deciding that they have no titles to their offices, besause the making it a crime for one to hold his property or his office under titles acquired before the passage of the law, is the strongest decision that he has no titles. The Legislature could not make this decision, and they can not destroy acquired rights by the passage of a retroactive law. Constitution, article 110.

But the strongest objection I have to the ruling of the majority of the court in this case is, that by its decision the court virtually adds to or supplements this criminal statute, by adding, as a further penalty', that all the acts of these officers are absolute nullities. The law has not prescribed this penalty. This court has no authority to supply it. While the Legislature would have no authority, on the one hand, to exercise judicial power, deciding that officers holding under Governor Warmoth’s commission of fourth of December, 1872, are usurpers, this court has no authority; on the other hand, to exercise legislative power, and to amend the criminal statute, No. 41, by providing as a further penalty for the crime of usurpation that all the official acts of such officers shall be absolute nullities. It is well for-each department of the State to keep within its prescribed powers. And it is dangerous for one department to encroach upon the functions of the other. In prescribing the penalty lor the crime of usurpation, if the Legislature had intended to inflict the further penalty that-all their official acts shall be absolute nullities, they would have said so in the statute. It was their duty to have informed the people of it,, in order that they might avoid, if possible, transacting business before-the clerk and sheriff of the parish of Caddo.

In the parish of Caddo is the city of Shreveport, the second largest-city of the State. The people of that parish, of this State, of other States, and of foreign countries, have, since the twenty-third of December, 1872, no doubt had much important business to ti ansact in. the clerk’s and sheriff’s offices, and also before the Parish and District Court, and no doubt several terms of the Parish Court. Citations have been served upon which it is perhaps relied to interrupt prescription in suits perhaps involving the entire fortunes of minors, married women and citizens of this State, of other States, and of foreign-countries. Judgments have been enforced, sales have been made* criminals have been punished, and all manner of judicial business has. been transacted. All this will be annulled, and the rights, perhaps, of thousands of innocent persons will be lost, as the result of the decision of this case. All these disastrous consequences must fall upon the people of Caddo and of other parts of the State, and also the people of other States, in order to punish the crime of usurpation under the statute of March 5, 1873, although that law will be searched in vain to And such a penalty.

In my opinion the case of Morrison and Pickens does not fall within the provisions of the statute No. 41, because it does not declare that a person holding office under Governor Warmoth’s commission of fourth ■of December, 1872, shall be deemed a usurper and punished as provided in the act. If the statute had denounced its penalty against officers holding such commissions, perhaps Morrison and Pickens would have abandoned these offices. It would be monstrous to convict Morrison and Pickens of the crime of usurpation under statute No. 41, because they have no commissions, when they actually hold commissions from the Governor. A law making it a crime to hold office without a commission ought not to be enforced against those who hold commissions from the Governor. I venture the assertion that there is no court in this State or in the civilized world that would convict Morrison or Pickens, in a criminal proceeding, of the crime of usurpation under statute No. 41.

If they be not usurpers in the meaning of that act (as I believe), no .part of the penalty thereof should be applied by this court, assuming that the absolute nullity of all their official acts is a part of the penalty. Criminal law is always construed strictly; in a criminal statute there is no offense except that specially described as an offense, and there is no penalty except that expressly declared to be the penalty. The statute in question has not declared it to be a crime to ■hold an office under a commission from the Governor; it has not prescribed, as a penalty, that the official acts of such officer shall be absolute nullities. This court can not declare the crime and prescribe the penalty. It can only enforce criminal law in proceedings by indictment or information. Until the criminal act is legally ascertained, the -court can not inflict any part of the penalty attached to said act or ■crime. If the nullity of the official acts of Morrison and Pickens be the result or the legal consequence of their having committed the crime announced in statute No. 41, that crime must be judicially established ■before the result or consequence or additional penalty can be inflicted.

It would be unreasonable and absurd to presume that Morrison and Pickens, in advance of a trial, are guilty of the crime announced in •statute 41, and therefore a part of the penalty, or the legal sequence ■of the penalty, must now be inflicted. But what has the statute in question to do with this case, a civil proceeding to enforce a bond subscribed by the appellants'? This statute only defines a crime and prescribes the penalty. It makes no change whatever of the forms of ■criminal or civil proceedings, the rules of practice, or the jurisprudence of this State. It authorizes no one to be condemned unheard. It does -not presume that any one is guilty. It does not require the court to •enforce any part of the penalty before the crime is judicially established. Here the appellants resist the payment of the obligation which they contracted when they signed the bond of Zack McFarland; And they place their sole defense on the ground that the commissioned, sworn, bonded and recognized clerk and sheriff of the court were not holding under color of authority, were not de facto officers, therefore the bond and all other official acts of the court and of these officers are absolute nullities.

I think I have shown that this defense can not avail them, under the well settled jurisprudence of this State, and under the principles of universal jurisprudence. I think I have shown that the criminal statute No. 41 in no manner changes, or proposes to change, the jurisprudence of this State on the point in question; that it merely defines a ■crime, affixes the penalty, and leaves the rules of civil and criminal practice and the jurisprudence of this State untouched, and in no manner modified.

I have given this subject mature consideration, and my conviction is, that the judgment of this court is erroneous. I therefore dissent in this case.


author: Ludeling, C. J. Wyly, J.,

text:
    3913.
    Hermann Daniel et als. v. City of New Orleans, Page & Co. et als.
    According to tlie twenty-fourth section of the present charter of the city of New Orleans, when one-fourth of the frout proprietors petition for the banquetting of the sidewalks, if a majority of the iront proprietors along said streets tail to object to the íequost of the said petitioners by a written petition addressed to the Council, they are presumed to have assented to the demand of the petition, and they should be bound by a contract entered into m accordance with said petition, to make the banquettes which they were legally bound to make.
    The evidence showing that the work was well done and that the price charged was reasonable, it would be repugnant to every principle of law and equity, to permit the plaintiffs to enrich themselves at the expense of others.
    'The law, when it speaks of one-fourth of the proprietors upon whose petition the City Council is to act, refers to the owners of property fronting on the portion of the street to be paved, and in whose front the banquetting is to be made.
    'The constitutional objection to the twenty-fourth section of the city charter, on the alleged ground that it imposes a tax which is not equal and uniform, is not well taken. The court does not understand that any tax is imposed by said section, in the technical sense of the word. It merely requires each proprietor to pay for his banquettes, and authorizes them to indicate when the banquettes shall be made and the character thereof; and, in doing this, the Legislature does not violate any provision of the constitution.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      A. A., A. H. and W. P. Ogden, for plaintiffs and appellees. lloselius & Alfred Philips, for Page & Co., defendants and appellants. George 8. Laeey, city attorney, for the city.
   Ludeling, C. J.

This suit was instituted by some of the owners of property fronting on St. Charles avenue, between Toledano and State streets, to annul a resolution of the Common Council of New Orleans, passed on the eighth of November 1870, and the contract entered into-in pursuance thereof with Page & Co., for laying Byrne’s Improved Concrete Banquetting, on the north side of St. Charles avenue, between State and Toledano streets, for the price of one dollar per square yard.

The grounds on which this nullity is claimed, are stated in the petition as follows: “ That by the express provisions of the charter of said city, approved March 16, 1870, and particularly of sections twenty-three and twenty-four of that charter, it is required that contracts for the purposes specified in the above agreement with said Page & Co., when they exceed five hundred dollars shall be made at public auction, and to the lowest bidder who can furnish satisfactory security, or that said contract shall be given to the person making the lowest sealed proposal therefor, and who can furnish satisfactory security to the-council.

Second — The Byrne’s Improved Concrete Banquetting is a patented •improvement, and a resolution of the common council directing the contract to be sold to the patentee of said improvement necessarily excludes all competition.

Third — That the mayor in making his contract with Page & Co., exceeded his authority when he undertook; to bind the front proprietors on the north side of St. Charles avenue separately from the other-inhabitants of said city, for the whole expense of said work.

Fourth — That section twenty-four of the city charter upon which the right of the city depends in laying banquetting at the expense of front proprietors, is unconstitutional, as it provides ior a tax which is not equal and uniform.

Fifth — That the petition of property owners upon which the action of the Common Council rests in this case is not signed by one-fourth, of the owners of real property fronting upon said avenue, as required by law.

Page & Co. filed a general denial, and called the City of New Orleans in warranty.'

The City of New Orleans answered the petition by the general issue, but filed no answer to the call in warranty.

By the twenty-fourth section of the present City Charter it is provided “that whenever one-fourth of the owners of real property fronting upon any unbanquetted street in the City of New Orleans shall, by petition signed by the petitioner, or petitioners, and addressed to the Council of said city, ask for the banquetting of said street, or for any portion thereof, setting forth the character and quality of said banquetting, said council shall cause said petition to be published in English in the official journal of said city, for and during four weeks; and if, at the expiration of said publication so made of such petition, a majority of the owners of real property fronting on said street or streets, or said portion thereof, shall not, by memorial signed by the memorialist or memorialists, and addressed to said Council, object to the same, the said Council shall, by resolution or otherwise, order said banquet-ting to be made in accordance with lines and levels to be furnished by the City Surveyor; and the whole costs of said banquettes, so made, as aforesaid, shall be borne by the owner or owners, of real property, fronting on said banquettes, in equal proportions, according to the running foot frontage. And in the event of the owner or owners of any portion of said property so banquetted, refusing or neglecting to pay the proportion so due for more than sixty days, the same shall constitute a-lien and privilege upon said property until the said sum so due shall be paid; provided, the proper proof of the due performance of the work is made before a competent Court, when the same shall be recorded in the office of the Recorder of Mortgages.”

The evidence shows that these provisions were strictly observed. A petition signed by one-fourth of the proprietors of property fronting on St. Charles avenue, between Toledano and State streets, was presented to the council asking that “ your honorable body will cause to be adjudicated a contract for the laying of Byrne’s Improved Concrete Banquette on the north side of St. Charles avenue between the two streets before named.”

On the eighth of November the Council adopted the following resolution: “Whereas, the proper legal time having expired and no legal objection having been made, and the petition having been published in the official journal for and during the time prescribed by law, therefore, be it resolved that the mayor be and he is hereby authorized and directed to enter into contract on behalf of the city, per notarial act before the city notary with Messrs. Page & Co. for laying Byrne’s Improved Concrete Banquetting on the north side of St. Charles avenue, between State and Toledano streets, for the sum and price of one dollar per square yard, the said service being pursuant to request of petitioners.”

According to the section above quoted, when one-fourth of the front proprietors petition for the banquetting of the sidewalks, if a majority of the front proprietors along said streets fail to object to the request of the said proprietors by a written petition addressed to the council, they are presumed to have assented to the demand of the petition, and they should be bound by a contract entered into, in accordance with said petition to make the banquettes, which they were legally bound to make. In consequence of their failure to object within the delay mentioned in the section above mentioned, a contract was entered into by which work was done upon their sidewalks which they were obliged to have done under the existing laws. The evidence shows the work was well done and that the price charged was reasonable.

Under such a state of facts, it would be repugnant to every principle of law and equity to permit the plaintiffs to escape responsibility. They should not be permitted thus to enrich themselves at the expense of others. 5 N. S. 392. Police Jury v. Hampton, 2 An. 146; 12 An. 225; 2 R. 139; 4 An. 22.

We think the law, when it speaks of one-fourth of the proprietors, upon whose petition the City Council is to act, refers to the owners of property fronting on the portion of the street to be paved. There can be no reason for supposing the law maker intended that either the assent of the owners, whose front had been already paved, or that of him, whose front it was not proposed to pave, should be had, but only the assent of those in whose front the banquetting was to be made. 23 An. 306.

It is not necessary to notice the constitutional objection to section twenty-four, urged on the ground that it imposes a tax which is not equal and uniform, further than to say, we do not understand that any tax is imposed by said section in the technical sense of the word. It requires each proprietor to pay for his banquette and it authorizes them to indicate when the banquettes shall be made and the character thereof, and in d >ing this, the legislature did not violate any provision of the constitution. 26 Ill. 357 ; 22 Ill. 574; 30 Mo. 541; 5 Ohio 243; 10 Ohio 159; 20 Johnson’s Rep. 429; 23 Barb. 166; 11 An. 220, 338; 14 An. 505; 20 An. 497.

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

Wyly, J.,

dissenting. Section twenty-three of the city charter provides : “ That all contracts for public works, or for material or supplies ordered by the council, when the same exceeds five hundred dollars, shall be offered by the administrator of the department to which such contract pertains, at public auction, and given to the lowest bidder, who can furnish security satisfactory to the council, or the same shall, at the discretion of the council, be advertised for proposals to be delivered to the administrator of the department to which such contract pertains, in writing, sealed, and to be opened by said administrator in the presence of the Mayor and the Administrator of Finance, and given to the person making the lowest proposal therefor, who can furnish security satisfactory to the council.”

Section twenty-four provides, in substance, that on the application of one-fourth of the owners of property fronting on any unbanquetted street, after due publication, and no opposition by the majority of property owners on said street, the City Council shall order said banquet-ting to be made in accordance with lines and levels to be furnishe I by the City Surveyor; “and the whole cost of said banquettes, so made, shall be borne by the owner or owners of real property fronting on said banquettes in equal proportions according to the running foot frontage.”

Section twenty-three, it will be observed, provides the form for making all contracts for public works when they exceed five hundred dollars; and section twenty-four provides that the whole cost of banquettiDg shall be paid by the owners of property fronting on the banquettes whose construction the city has ordered after the publication of the petition of one-fourth of the property owners, and no opposition by the majority of property owners on said banquettes.

It is conceded that the amount of the contract in this case exceeds five hundred dollars. The question is, could the city, under the two sections of its charter referred to, make a contract with Page & Co. for banquetting the street in front of the property owned by the plaintiffs with Byrne’s Improved Concrete Banquetting, a patent improvement owned by said contractors ?

The plaintiffs insist that the resolution of the council directing the contract to be sold to said patentees necessarily excludes all competition; and, therefore, the contract is void because not made conformably to the requirements of section twenty-three, at public auction to. the lowest bidder.

This was the precise question presented in the case of Burgess Bennett et al. v. The City of Jefferson, 21 An. 143, and there this court held that: The principle of competition enunciated by the statute must be observed by the council in letting out contracts for the improvement of the streets, otherwise the owners of property fronting on the streets improved can not be compelled to pay the charges assessed against them for making the improvement.” The case at bar is covered by the ease cited and in my opinion should have the same solution.

The defendants, however, insist that even though the contract was not made in conformity to section twenty-three of the charter, the work was for the benefit of plaintiffs and they are bound to pay for it, on the equitable principle that no one should enrich himself at the expense of another. This maxim has no application to the case at bar. There is no reconventional demand set up by the defendants; there is no claim as a quantum meruit before the court. The simple question is, shall the contract for laying Byrne’s Improved Concrete Banquetting and the resolution of the City Council authorizing it be annulled, because they are in violation of section twenty-three of the charter, •which requires all contracts for public works where the amount exceeds five hundred dollars, to be sold at public auction to the lowest bidder.

In the absence of the authority delegated in the charter, the city could not make a contract binding the plaintiffs to pay for the banquettes in iront of their property. The law authorizing the contract imposes in section twenty-three of the charter the formalities that must be observed. Under the limitation, that all contracts for public works exceeding five hundred dollars must be made at auction to the lowest bidder, the law authorizes the city to contract for banquetting at the expense of the front proprietors.

As the contract in question was not adjudicated at public auction to the lowest bidder, it is obvious, the city had no authority to make it, and therefore it is not binding on the plaintiffs and should be annulled.

I therefore dissent in this case.

Kehearing refused.


author: Morgan, J. Ludeling, C. J. Howell, J. Wilt, J.

text:
    No. 2900.
    B. M. Horrell & Co. v. H. N. Parish — Louisiana National Bank, Intervenor.
    A broker who acted for both parties in a transaction, and his son, who attended to the business at his office, were both competent to testify with regard to what passed between said parties, and to prove certain conversations and statements, to which a bill of exceptions was taken, on the grouud that they were made out of the presence and hearing of the parties objecting thereto.
    The court does not see why a man should not be allowed to testify in a civil matter, because his testimony may show that he has been guilty of an offense against the laws of the State. This is an objection which he alone could make.
    When cotton is on board óf a ship and under bills of lading when seized, it must be considered as under the control of the master of the ship, and the master holds it subject to the owners of the bills of lading — who are the intervenors in this case.
    There is no validity in the allegation that the title of defendants is not complete, because the bill of lading is not perfect, inasmuch as when the bill calls ior cotton “ as marked in the margin,” there are no such marks. There was nothing suspicious in the transaction, and the intervenors may be considered as sufficiently prudent when they treated on the pledge of the bill of lading.
    A bill of lading is, after all, ouly the evidence of a contract to deliver property at a certain point, and it is not the marks on the margin therein, or on the property shipped, which give life to the obligation. The marks are given only for the convenience of identification. But in this case there is no question of identity.
    Another fatal bar to plaintiffs’ light to recover, is the want of registry of their privilege, if they were entitled to one. The law grants a privilege for five days. The sale was recorded eight days after it was made, and two days after this suit was instituted. Therefore, plaintiffs had lost their privilege as to the intervenors.
    Appeal from the Fourth District Court, parish of Orleans. Ihe'ard, J.

      J. A. Bonier, for plaintiffs and appellees. Randolph, Singleton & Browne, for defendant and appellant. Lea, Finney & Miller, for intervenor and appellant.
   Morgan, J.

On the fourth February, 1870, Horrell & Co., through J. J. Browne, a broker, sold to Wilbur & Co., one hundred and twenty-seven bales of cotton. At the time of the sale, the cotton was stored in one of the presses of this city, and Horrell & Co. gave to Browne, the broker, an order on the press for the same. On the same day, Wilbur & Co. engaged room for one hundred and fifty bales cotton on the Weybossett, a steamer plying between this port and New York, for which Fosdick & Co. were the agents.

On the same day, Wilbur & Co. handed to Fosdick & Co. bills of lading for one hundred bales. Before signing the bills of lading, a member of the house of Fosdick & Co. called on Wilbur & Co.’s broker, who told him that he had purchased one hundred and twenty-seven bales for them, which he would receive and ship on that day, or the day after. Fosdick & Co. then signed the bills of lading for one hundred bales. The bills were signed at the countinghouse of Fosdick & Co. It is the custom, at this port, to sign bills of lading for property shipped on ocean steamers, at the office of their agents. There was some delay in sending the cotton to the ship, a member of the house of Fosdick & Co. declaring that from day to day he called upon the son of the broker through whom the sale was made, and who attended to the details of his father’s business, and he was daily promised that the cotton would be sent. It was finally sent, and it was all ■on board the steamer, and stowed, away on the ninth February; and was sent to the steamer under an order from Wilbur & Co.

On the fifth February, 1870, Wilbur & Co. drew their bill of exchange at ten days sight on Messrs. Williams,' Black & Co. of New York, for $9500. Attached to the bill of exchange was the bill of lading, dated the fourth February, signed by Fosdick & Co. for one hundred bales cotton. The bill was purchased by the Louisiana National Bank.

On the ninth February, 1870, Wilbur & Co. drew another bill of exchange on the same parties, at the same date, for $4000. Attached to this bill of exchange was also another bill of lading signed by Fosdick & Co., agents of the Weybossett,. for forty-five bales cotton. This bill was also purchased by the, Louisiana National Bank. Both of these bills were sold to the bank in the ordinary course, and were purchased by the bank, according to the testimony of its President, on the security of the bills of lading which were attached to them.

On the tenth February, and after all the above described cotton was stored on the Weybossett, plaintiffs instituted this suit, and seized the same, alleging that the price therefor, $13,379 28, had not been paid, and upon which they claim the vendor’s privilege. Their privilege was recorded on the twelfth February.

Parish, the master of the Weybossett, answers and claims in reconvention $323 63 for freight and charges on the cotton. The Louisiana National Bank intervenes and claims it under their bills of lading — the drafts to which they were attached not having been paid. The contest-in reality is between Horrell & Co. and the bank; the one, as above stated, claiming the right to enforce the vendor’s privilege upon the cotton; the other claiming it under their bills of lading. There was judgment in the district court for the plaintiffs. The defendant and the bank have appealed.

A bill of exceptions was taken on the trial to the ruling of the court, permitting Rareshide to prove that J. J. & J. M. Browne made certain statements to him relative to the shipping of the one hundred and twenty-five bales cotton; and also to his being allowed to detail certain conversations held with them out of the presence of Horrell & Co. relative to the purchase of the cotton in question by Wilbur & Co* and the shipment of the same by Wilbur & Co., and other conversations and statements, on the ground that they were made and took place out of their presence or hearing, and that the said J. J. & J. M* Browne had no authority to bind them. They also objected to the ruling of the court which allowed the intervenors to establish by the same witnesses the circumstances attending the signing of the bills of lading by Fosdick & Co. before the cotton had been delivered to the ship, or put under her control, on the ground that the laws of the State make it a criminal offense for any master or agent of a ship to sign bills of lading before the delivery of the property to be shipped,, and that no person guilty of such an offense can be permitted to testify thereto.

Browne was the broker who acted for both parties, and his son attended to the business of his office. They were both competent to testify with regard to the transactions between the parties. The objection went to their credibility and not to the admissibility of their evidence.

We do not see why a man should not be allowed to testify in a civil matter because his testimony may show that he had been guilty of an offense against the laws of the State. In our opinion this was an objection which he alone could make.

It is unquestionable that the cotton which forms the basis of this-controversy was sold by Horrell & Co. to Wilbur & Co. on the fourth February. The sale was made through their common broker, to whom Horrell & Co. gave an order to the press where it was stored for the delivery of the same. Their title to the cotton passed from them when they gave the order for the same. The broker held for Wilbur & Co. It was theirs to dispose of. It could have been shipped by them through the broker at any time. The broker was repeatedly called. upon by tbe agents of tbe steamer to send it down to the vessel, and the broker as repeatedly promised to do so; the reason he gives for not having done so being that the weather was inclement, and it was finally shipped under that order. It is distinctly proved that the cotton was on tbe Weybossett, under the bills of lading when it was seized. It was then under the control of the master of the ship, and the master held it subject to the owners of the bills of lading. See the case of the Thames, 14 Wallace, pp. 98-106, and the cases there referred to.

Under this state of facts we think the case is covered, in principle, by the case of Delgado & Co. v. Wilbur & Co., lately decided. 25 An. 82. It differs from Delgado’s case in this, that whereas, in the Delgado case, the seizure was made the day following the sale; in this case, it was not made for six days after.

It has been suggested that it would be inconvenient and hazardous for cotton buyers to be compelled to withdraw their funds from the banks and to pay for cotton which they purchas e as the bales pass the scales and are delivered. We do not say that this process is necessary, nor do we see why it should be. At all events, the “ inconvenient’* argument has no law to support it. If it could be listened to at all, it might, we think, be applied with peculiar force in favor of these infervenors, and those who are pursuing the same business, against the plaintiffs. As we have before seen, Horrell .& Co. sold to Wilbur & Co. one hundred and twenty-five bales cotton on, the fourth February. The terms of sale were cash. On the same day Horrell, & Co. gave to their common broker an order for the cotton, and on this order it was delivered to Wilbur,& Co. The intervenors, on the faith of the, bills of lading, advanced the value of the cotton to. their holder,, and. the bills were transferred to him. On the tenth of February, six ,days after the sale, and after the cotton was on shipboard, the cotton was seized, because the price for which it was sold had not been paid. No-requirement seems to have been made for the payment of the money from Wilbur & Co. when this cash sale was made, prior to delivery, no demand was made on them for it, or for any part of it; no tender was ever made of any sum in payment therefor until the ninth. On that day, Wilbur & Co. gave their check for $8000 — not $13,379, the price of the cotton ; this check was not certified by the bank upon which it was drawn; it was not presented for payment until the following day, about ten o’clock in the morning; there is no evidence in the record to show that if it had been presented on the day it was drawn it would not have been paid. It is established that it was not paid on the following day, because Wilbur & Co. had no funds in the bank upon which the check was drawn, and that their account was already overdrawn. But it does not appear when it was overdrawn^ and it is neither impossible nor improbable that it was overdrawn on the morning after and not on the day before the check was presented. At all events, these are matters of fact which were under the control of the plaintiffs, and about which there is nothing in the record. They sold for cash, and delivered their property without having received any cash; days elapsed after the sale, and they made no demand for the price; a check for part of the price was sent to them, which they accepted ; the check was not even certified to be good by the bank upon which it was drawn, and it was not presented for payment until the day after its date. In the meanwhile the intervenors had paid their money upon bills of lading which represented that the property was in the possession of the purchaser. Under these circumstances, who can say that Horrell & Co., if they suffer, do not suffer from their own negligence 1 And who can say that if the intervenors suffer, it will not be because of Horrell & Co.’s negligence ? To decide the case in favor of Horrell & Co. would be to hamper operations in commerce with almost prohibitory inconveniences. When a bill of exchange, drawn on a bill of lading, is presented to a bank, or dealer in exchange, the bank or dealer would have, first to send to the vessel on which the property is said to have been shipped, and find out whether or not it was aboard ; second, satisfied in this regard, he would then have to find out whether the property had really been delivered to the ■shipper; third, satisfied here, he would have to find out who sold the property; and, if it were cotton, and a large lot, and had been bought from various parties, the vendors would all have to be brought up, and it would have to be ascertained whether, in reality, they had made the sales imputed to them; fourth, this ascertained, he would have to find out whether the property sold had been paid for, and if not paid for when the sale was made, when possession was acquired, in order to determine when the vendor’s privilege attached and ended, and then search the recorder’s office to discover whether the privileges of the vendor had been recorded. How many transactions in exchange could be accomplished in a day if the sale of every bill involved the necessity of so much investigation? And all this, why? Because it is inconvenient for a purchaser to draw his money from the bank in which it is deposited, and pay for the property which he buys for cash, when it is sold to him. But the money has to be drawn from the bank by some one. Why should it not be done by the buyer as well as by the seller. In this way the transaction is easy and complete. No one is inconvenienced even, and no one is harmed; not the purchaser, for he has paid his money; not the vendor, for his property has been paid for; not the buyer of the bill drawn upon the property and attached to a bill of lading therefor, for the property is represented by the bill. and is free to go forward to its destination. To give this case to the plaintiff, is to place dealers in exchange at the mercy of every speculator who has the appearance of thrift, and the capacity to purchase apparently for cash, while in reality he is purchasing on credit.

It has been contended that the title to the bank is not complete, because the bill of lading is not perfect. The alleged deficiency is that while the bill calls for cotton “as marked in the margin,” there are no marks in the margin. They rely principally upon the testimony of W. S. Pike and Alex. Brother to establish the fact that if the marks are not inserted in the bill of lading, it is out of the usual course of business. These witnesses do say so. But they say further: “If the bills of lading came through a respectable channel, I should not consider the omissions of the marks as more than a clerical error, though not in the usual course, if everything else seemed fair. I should not on account of the omission of the marks, decline the bills, especially if one of the bills of lading was marked.” Now, there was nothing suspicious about the transaction connected with these bills. They were negotiated through a broker against whose standing nothing has been alleged; they were purchased in the usual manner and for a valuable consideration; they were drawn by a house in good reputation and credit, the best evidence of which is that plaintiffs allowed ■days to elapse without making a demand for the price of the property which they had sold them for cash. Indeed they never made a demand for the price of the sale. Days after it was made, they received a check as cash in part payment of the price, and the probability is that if the check had been paid on presentation, the cotton would have been at sea before any demand would have been made. If Horrell & Co. considered it safe to deal with Wilbur & Co. without exacting any security whatever, the Louisiana National Bank may be considered as having been sufficiently prudent when they treated with them on the pledge of a bill of lading. Besides, a bill of lading is, after all, only the evidence of a contract to deliver property at a certain point; and it is not the marks on the margin thereon, or on the property shipped, which gives life to the obligation. The marks are given merely for the convenience of iden tification. It could not be seriously contended that, if I ship one hundred bales of cotton on a vessel, the bales not being marked, or, if marked, the marks not being mentioned in the bill of lading, the vessel on arriving at her port of destination could not be compelled to deliver my cotton, simply because the marks were not described in the margin of a bill of lading. Everything shipped on a vessel is covered by a.bill of lading; and if everything so shipped had to be marked, and the marks had to be noted in the margin of the bill of lading, in order to entitle the party who shipped it, or to whom it was shipped, to obtain possession of it when it reached its destination, how would it be with relerence to a cargo of coal or a cargo of salt ? But there is no question of identity here. No one pretends that the cotton seized is not the cotton sold by Horrell & Co. to Wilbur & Co.; that it is not the cotton shipped on the Weybossett, or that it is not the cotton which is represented in the bills of lading upon the faith of which the bank purchased Wilbur & Co.’s bill of exchange.

Another fatal bar to plaintiffs’ right to recover, is the want of registry of their privilege, if they were entitled to one. The law grants a privilege for five days. The sale was made on the fourth of February; it was not recorded until the twelfth, eight days after the sale, and two-days after this suit was instituted. Counsel admit, that, upon this-point, the decisions of this court are in favor of the intervenors, “in cases of ordinary privileges;” but he contends that these decisions should not govern this case. The eases in which the decisions he refers to occurred were carefully considered, and the result arrived at after deliberate consideration and reflection. We then believed them to be a correct application of the law, and our minds now are the same that they were then.

It is urged that the interpretation we placed on the law is contrary to the custom and to the understanding of the bench and the bar for a long series of years. So far as we know of the opinions of the bench they are the other way. So far as the bar is concerned, their approbation of the correctness of our decisions is of consequence to us, although we should be obliged to decide against them, although they might be unanimous in their opinion against us. Custom, too, is to be considered, and we would be loth to disturb any practice which had become almost a part of the law itself. But inasmuch as the constitution under which privileges are required to be recorded in 1870, assuming the custom to be as they stated, we do not think it is so protected by the crust of antiquity as to make our breaking it a judicial sacrilege. But, in our opinion, the law has only been followed in the decisions complained of, and although no mere custom could have possibly affected the decision in those cases, no custom has been shown to have been changed by them.

In a pecuniary point of view the matter in dispute here is comparatively small, but the importance of the questions involved is of great moment to this essentially commercial community. It is for this reason that we have considered them so much in detail. The prosperity of a people depends upon their commerce, their agriculture or their manufactures. It is when they combine the three that they become powerful, and it is the excellence achieved in all these sources of wealth which has made this nation great amongst the greatest of the earth. Particularly are we of this city dependent upon commerce. It would be suicidal to hamper its transactions with onerous and useless requirements, and to throw obstacles in the way of its free pursuit. The prosperity of a people who, like ourselves, live by the sea, is commerce. Its actions should be as free as a due regard for the rights of the citizen will permit; as untrammeled, in so far as is possible, as are the waters upon which it floats, and as unconstrained as are the winds which drive it from shore to shore.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the Louisiana National Bank decreeing said bank to be entitled under their bill of lading to the one hundred and twenty-three bales of cotton in contest herein, and that they be put in possession of the same. The costs to be paid by appellees.

Ludeling, C. J.

The plaintiffs claim a privilege to secure the price of the cottou sold by them. They did not record their privilege until after the institution of this suit. They, therefore, had lost their privilege when this suit was instituted, as to the intervenors.

Whether the sale was perfected when it was completed, it is unimportant to determine, for the plaintiffs allege a sale and claim a privilege to secure the price thereof. They are concluded by their judicial admissions.

I therefore think that the plaintiffs’ demand should be rejected with ■costs.

Howell, J.

I concur in the opinion of the Chief Justice.

Wilt, J.

I dissent both as to the proof of the facts and the law of this case.

Rehearing refused.


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    No. 3065.
    George W. Hunter v. The Sun Mutual Insurance Company, of New Orleans.
    Hhe officer of a company must be presumed to know its by-laws adopted before bis appointment, and is bound by them as to bis tenure of office. Tbey have become tbe law between himself and his employers. By one of their by-laws tbe defendants bad reserved tbe right to remove their officers at pleasure. Plaintiff is an officer in tbe sense of the said by-law, and therefore can not complain.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Baee, Foster <& Merriclc and E. N. Whittemore, for plaintiff and appellee. J. A. Maybin, Leovy & Monroe, for defendant and appellant.
   Morgan, J.

Petitioner alleges that on the first December, 1868, he

was employed as premium ledger book keeper by the defendants; that in February, 1869, the time fixed by the charter of the company for the election of the officers for the ensuing twelve months, he was engaged for one year at a salary of $2500 per annum; that he served the company during all that year, and up to the first Monday in February, 1870, when he was re-engaged for another year, and that, without any cause,, he was on the first April, 1870, dismissed. He sued for his salary for the balance of the year, and had judgment.

The ninth article of the by-laws of the company provides that “ the tenure of all the officers of this corporation shall be during the pleasure of a majority of the board of directors, and at the first meeting of each new board an election shall be held for all officers of the company.”

These by-laws were passed at least as early as the year 1866, before the plaintiff was employed by the defendants, and he must be presumed to have known them. We consider him to be an officer in the sense of the by-laws. He therefore knew the precarious tenure by .which he held his position. The directors had the right to remove him at their- pleasure, and having done so he has no claim against the company. It is admitted that he discharged his duties faithfully, and several witnesses, some in the employ of the defendants, say that when continued at the commencement of the year they consider themselves employed for the whole year. But other witnesses testify the other way. Under these circumstances we can not say that the plaintiff has established the evidence of any custom which would entitle him to be paid as he claims to be, and if he had we do not see how he could claim the benefit of it in the face of the article of the by-laws which we have quoted, and which is the law between himself and the defendants.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there^be judgment in favor of the defendants, with^eosts in both courts.

Wylt, J., dissenting.

Rehearing refused.


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    No. 4785.
    Marco Giovanovich v. Citizens’ Bank of Louisiana.
    Plaintiff claims to he the ov ner of certain notes which were placed by his agent into the hands of Ducros, a broker, to be sold by him, and which he avers that Ducros illegally pledged to the defendant as security for a debt of his own.
    That Ducros owed the Bank when the notes were put in its possession can not be disputed; that they were given to secure its indebtedness is established; and that the Bank had the right to receive them, is equally clear. The lawiul possession of the notes by Ducros can not be questioned. Being the lawful \ ossessor, he was, as to third parties, the owner. Being the apparent owner, he could dispose of them; if he saw fit to place them in the hands of the Bank in extinction of, or as a security for, a Jawful debt, the Bank had the right to receive them, and they must remain with the Bank until its debt is paid. The responsibility is from Ducros to his principal; and not from the Bank to the party who claims that Ducros cheated him.
    The burden of proof was on the plaintiff to prove, as he alleged, that the Bank gave no valuable consideration for the notes; that it is not the bona fide holder thereof; and that they came into the possession of the Bank in an illegal and unlawful manner. There was nothing in the transaction beyond the taking by the Bank of security for the payment of a pre-existing debt, and this it was authorized by law to do.
    Appeal from the Superior District Court, parish of Orleans. Hawhins, J.

      Johnson & Denis, for plaintiff and appellee. A. Ditot, for defendant and appellant.
   Morgan, J.

Ducros was a broker and a dealer in notes and stocks in this city, where he had business transactions with several of the banks. His operations appear to have been large. His account with the Citizens’ Bank alone, for the month of February, 1873, exceeded $90,000. In that bank, he had a note falling due on the first of March, 1873, for $8000. • The payment of this note was secured by the pledge of several other notes, as follows :

Mortgage note of J. Cazabene...............................$2,000

Mortgage note of J. Cazabene............................... 1,000

Mortgage note of M. Lopez.................................. 1,000

Mortgage note of M. Lopez.....'St........................... 1,100

Mortgage note of M. Lopez.................................. 1,136

Mortgage note of Marmiche................................. 5,000

$11,230

He lacked $3538 93, to the credit of his account to make up the sum required for the payment of his note. He was authorized by the bank to overdraw his account, leaving still in the possession of the bank the pledged notes.

The bank is in the habit of making call loans. In these loans no note is given to the borrower; the bank either gives a check or permits the borrower to overdraw his account on depositing securities. With these securities in the possession of the bank, Ducros was permitted to overdraw his account on March 1, $3538 93, on the third of March, $1729 25, and on the fourth of March, $5000. Thus, on that date, he was indebted to the bank, for what the bank terms call loans $10,268 18. The margin of the bank’s security was therefore $962.

On the seventh of March, Ducros withdrew the pledged notes from the bank, through his clerk, telling the defendant that he intended to sell them and, with the money received, to settle his account. Ducros had been for many years a broker, and possessed the confidence of the community. The debt to the bank was not paid. The cashier called upon him either to pay the amount due, or to return the securities. A short time afterwards he gave to the bank the following notes :

Note of A. Lopez for........................................ $1,000

Note of A. Lopez for........................................ 1,100

Note of A. Lopez for........................................ 1,136

Note of Mrs. Giordano for.................................. 4,000

Note of Mrs. Giordano for.................................. 4,000

Note of Mrs. Giordano for.................................. 4,000

Note of Marmiche for....................................... 5,000

Total..................................................$20,236

And there the matter seems to have rested for some two or three weeks, when Ducros disappeared. Thereupon the bank instituted suit against him claiming the amount due ($10,018 18), alleging that the sum due was on called loans, averring that the notes above described were held by it as a pledge to secure the payment thereof, asking judgment against Ducros, and praying that the notes be sold and that it be paid out of the proceeds. The suit was instituted on the first of May, 1873. What disposition was made of it does not appear.

On the sixth of May, 1873, the present suit was instituted. Plaintiff claims that he is the owner of the three Giordano notes for $4000 each. He alleges that these notes, on or about the first of April, 1873, were in the possession of Dominique Bouligny, his agent; that Bouligny, acting for petitioner, placed them in the hands of Ducros with instructions to sell them for his account; that Ducros has failed to account either to Bouligny or to himself for their proceeds; that the notes are in the Citizens’ Bank; that the bank gave no valuable consideration for them, and is not the bona fide holder thereof'; that they came into its possession in an illegal and unlawful manner, and detains them without any right or justice. He prays that the notes be decreed to belong to him, and for their delivery. There was judgment in his favor, and the bank has appealed.

The judgment is wrong.

Plaintiff admits the general rule of law to be, in respect to negotiable paper, that the holder is presumed to have acquired it in the usual course of business and for value, and that the burden of proof is on tlie party impeaching his title. But, quoting the' words of Edwards (p. 292), he claims that “the party in possession of a negotiable instrument is grima fade the owner of it; but as soon as it is shown to have been lost or stolen from the true owner, the presumption is changed, and he must then show not only what consideration he gave for it, but also that he took the paper in good faith, in the ordinary course of business.” And he contends, under this authority, that the plaintiff having proved that the notes belonged to him, that he placed them for sale in the hands of Ducros, and that the latter fraudulently dealt with them, it remains for the bank to establish that it took them in the usual course of business, and gave a full and valuable consideration for them.

But the notes in question were not lost; they were placed by the plaintiff in the hands of his agent for sale. They were not stolen; they were given by this agent to Ducros to be disposed of. He could have done with them almost as he pleased. Certainly he could have sold them, as it was for this purpose they were placed in his hands, and if, after having sold them, he had embezzled the money which he had received for them, the innocent purchaser’s title would be good.

That Ducros owed' the bank when the notes were put in its possession is not disputed; that they were given to secure this indebtedness is established, and that the bank had the right to receive them we think equally clear. The lawful possession of the notes by Ducros can not be disputed.' Being the lawful possessor, he was, as to third parties, the owner; being the apparent owner, he could dispose of them; if he saw fit to place them in the hands of the bank in extinction of or as security for a lawful debt, the bank had the right to receive them, and they must remain with the bank until its debt is paid. The responsibility is from Ducros to his principal, and not from the bank to the party who claims that Ducros cheated him.

In Swift v. Tyson, 16 Peters, p. 1-19, the Supreme Court of the United States said:

■ “We have no hesitation in saying that a pre-existing debt does constitute a valuable consideration in the sense of the general rule already -stated, as applicable to negotiable instruments. Assuming it to be true (which, however, may well admit of some doubt from the generality of the language) that the holder of a negotiable instrument is unaffected with the equities between the antecedent parties, of which he has no notice, only where he receives it in the usual course of trade ■ and business for a valuable consideration before it becomes due, we are prepared to say, that receiving it in payment of or as security for a pre-existing debt, is according to the known and usual course of trade and business. And why upon principle should not a pre-existing debt be deemed such a valuable consideration ? It is for the benefit- and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances made-upon the transfer thereof, but also in payment of and as security for pre-existing debts. The creditor is thereby enabled to realize or to-secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor also has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper can not be applied in payment of or as security for preexisting debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts. What, indeed, upon such a doctrine would become of that large class of cases where new notes are given by tire-same or by other parties, by way of renewal or security to banks, in-lieu of old securities discounted by them, which have arrived at maturity? Probably more than one-half of all bank transactions in our country, as well as those of other countries, are of this nature. The doctrine would, strike a fatal blow at all discounts of negotiable securities for pre-existing debts. * * * We entertain no doubt that a bona fide holder, for a pre-existing debt, of a negotiable instrument is not affected by any equities between the antecedent parties, where he has received the same before it became due, without notice of any such equities.”

It will be seen that one of the cases used as illustration in the foregoing extract is the case now under consideration. But plaintiff contends that Mr. Justice Catron refused to concur in the portion of the opinion which has just been quoted, because the decision of the case did not require it, and he contends that in the case of Goodman v. Simmons, 20 Howard 343, the same court intimated very clearly that such doctrine formed no part as yet of the jurisprudence of the country.. But turning to that decision we find the following:

“A well defined and correct exposition of the rights of a bona fide holder of a negotiable instrument was given by this court in Swift v. Tyson, 16 Peters p. 1, as long ago as 1842; and we adopt that exposition relative to the point under consideration on the present occasion,, as one accurately defining the nature and character of the title to those instruments which such holder acquires when they are transferred to-him for a valuable consideration. This court then said, and we now repeat, that a bona fide holder of a negotiable instrument for a valuable consideration, without notice of facts which impeach its validity between the antecedent parties, if he takes it under an indorsement made before the same becomes due, holds the title unaffected by these facts, and may recover thereon, although, as between the antecedent parties, the transaction may be without any legal validity.”

He contends, further, that Swift v. Tyson was a case of payment and not of pledge or security. But we do not see how this can help him. The greater includes the lesser. If Ducros’ debt was a valid one, and the notes were in his possession, he could have sold them to a third party and appropriated the proceeds to the payment of the bank’s debt, or he could have sold them to the bank. Surely if he could sell them, and thus destroy the real owner’s title entirely, he could pledge them, and thus enable the owner to redeem them, if he saw fit, and save whatever balance might remain between the amount for which they were pledged and the amount of the notes.

He contends, further, that defendants do not come under the case in 16 Peters, because the bank in receiving the notes granted no extension of time to Ducros, and forebore from no proceedings against him, as a few days later it was bringing suit and asking judgment against him. But in another part of his argument he says that if Ducros’ account was overdrawn the bank should have prosecuted him, or at least have exposed him. We do not see how a bank can prosecute a depositor who has overdrawn his account, when the account was overdrawn with its consent; and its interest was to get its debt secured, not to expose its debtor. He was a mere ordinary debtor, and exposure would have shown an indebtedness, incurred with the consent of the bank, and nothing more. The bank could have reclaimed the pledged notes which they had intrusted to him, and this it did, and got them nearly all back, and others beside, among them those now in suit. It could, it is true, have pursued him at once for debt, but this it had no object in doing, as it was secured, and forbearing to sue was a consideration for the pledge. Suit was only brought after Ducros, the pledgeor, had disappeared, and when it was absolutely necessary to protect its rights.

It having been established that Ducros owed the bank, and that the notes were given to secure the payment of his debt, the burden of proof was on the plaintiff to establish the allegations of his petition, upon the truth of which alone he could recover: that the bank gave no valuable consideration for them, and is not a bona fide holder, and that they came into its possession in an illegal and unlawful manner. This affirmative, which he holds, he has not established by the evidence. We see nothing in the transaction of the bank except the taking security for the payment of a pre-existing debt, and this we think it was authorized by law to do.

It is urged upon us that the bank indulged Ducros by allowing him too long a time in which to pay his debt. But so long as the bank was secured, we suppose time was a matter of small consequence to it. But if the plaintiff suffers from the indulgence of the bank to Ducros, he suffers to a much greater degree from the indulgence of his own agent. The notes were given to him for negotiation about the first •April. The agent says: “I saw Mr. Ducros several times after-wards, and he told me that he had not sold them vet. I then claimed the notes from him, telling him that I did not want them sold, and to return them to me. He said that the notes were in his bank box, and that as soon as his clerk would come he would send them to my office. The last time I saw him was on the twenty-eighth April. He repeated to me the same thing, and said that in half an hour the notes would be at my office.” This was the day upon which he says Ducros disappeared. It certainly was no greater indulgence on the part of the bank to Ducros to allow the debt against him to stand, secured as it was by abundant collaterals, than it was negligence on the part of the agent to allow them to remain so long in his hands after having demanded them of them, and after he had promised to return them immediately. We thiuk the reason for the one, as for the other, is to be found in the fact that the bank considered itself entirely secured, and that both the bank and the agent had entire confidence in the man whom they both trusted, and who, the agent says, “enjoyed the confidence of all the people.”

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that plaintiff’s demand be rejected with costs.

Wyly, J., dissenting.

Rehearing refused.