author: Wyly, J. Howell, J., Moeuak, J.,

text:
    No. 6348.
    State ex rel. L. C. Roudanez et al. vs. B. L. Lynch, Judge of the Superior District Court, Parish of Orleans.
    Relators having enjoined the Mayor and Administrators ol the city o£ New Orleans from levying a tax in aid of the. New Orleans Pacific Railroad Company, the said company intervened and moved to dissolve the injunction, which was done. On the relators applying for a suspensive appeal it was denied. Thereupon they applied to this court for a mandamus, which -was granted and made peremptory. The judge a quo, in obedience to the decree of this court, granted a suspensive appeal, but declined to fix a return day and the amount of the bond, whereupon the relators tendered a bond in tho sum of one thousand dollars, conditioned according to law. But the judge a quo ordered an additional bond in favor of the intervenor to bo filed with the clork of his court, conditioned that the appellants shall pay such damages.as the intervenor may sustain, and ordered that said intervenor appear before him on a fixed day to present his proof , as to the probable injury the said intervenor might sustain,'and that plaintiffs and appellants be notified to be present at the taking of said testimony.
    The judge a quo erred. It was his duty to grant a suspensive appeal, fixing a return day and the amount of the bond, in pursuance of the peremptory order of this court, without reauiring an additional bond in favor of the intervonor to secure him from damages resulting from the granting of the injunction. There is no law sanctioning such a course.
    When the judge granted the injunction, he fixed the bond to cover the damages that might result therefrom. He had no authority to fix other conditions than those prescribed by law in order that the relators might have the constitutional right of appeal. Relators have not enjoined the execution of t, mortgage, nor have they restrained the disposition of property. Relators have, by their injunction, merely suspended the execution of a law. There is therefore no reason for a bond for damages other than the one that was given when the injunction issued.
    APPLICATION foi’ writs of mandamus and prohibition against the Judge of the- Superior District Court, parish of Orleans.

      B. B.

      Forman and H. N. Ogden, for relator.

      Kennard, Hoioe & Prentiss, for ■respondent.
   Wyly, J.

The relators enjoined the mayor and administrators of New Orleans from executing act twenty of the acts of 1876, which authorizes the levy of a tax of one half per cent annually in aid of the ■New Orleans Pacific Railroad Company to be collected on condition it is sanctioned by a majority of the registered voters, on the ground that said statute is unconstitutional. The railroad company intervened and moved to dissolve the injunction, which was done. Relators then applied for a suspensive appeal, which was denied.

Thereupon they applied to this court for a mandamus, which was granted and rendered peremptory on fifteenth of May. On the sixteenth, when the relators presented to the judge of the Superior District Court this decree, he granted a suspensive appeal, but declined to fix a return day and the amount of the bond. Relators then tendered a bond in the sum of one thousand dollars in favor of the clerk and conditioned according to law.

The judge, however, rendered the following order:

“ In granting a suspensive appeal in this case, in compliance with a peremptory mandamus issued by the Honorable Supreme Court, 1 deem dt my duty under the doctrine and action of that court in the case of the State vs. the. Judge off the -Fifth District Court, 19 .La. 167, and also in the recent case of Temple S. Coons vs. the Judge of the Superior District Court, to require the appellants to file.with the clerk of this court their additional bond in favor of the intervenor with good and sufficient security in solido, conditioned that said appellants shall pay such damages as the intervenor, the said New Orleans Pacific Railroad Company, may sustain in case it should be decided that the injunction heretofore obtained has been wrongfully sued out and illegally and unlawfully kept in force. It is therefore ordered that the said intervenor, the New Orleans Pacific Railroad Company, appear before this court on Saturday, the twenty-seventh instant, at 11 a. m. and present their proof as to the probable injury the said company may sustain by the issuance of said injunction -and its being kept in force by virtue of said suspensive appeal. It is further ordered that plaintiffs and appellants be notified to be present at the taking of said testimony and to present to the court such evidence as they may have to offer in the premises.”

It was the duty of the judge to grant a suspensive appeal fixing a return- day and the amount of the bond in pursuance of the peremptory ■order of this court.' There is ho law Requiring an additional bond in favor of the intervenor to secure him from damages resulting from the .granting of the-injunction. When the judge granted the injunction he fixed the bond to cover damages resulting therefrom. The judge had no authority to fix other conditions than- those prescribed by law in Order that the relators might have the constitutional right oí appeal. The cases cited by the judge are not like the one now before the court. Relators have not enjoined the execution of a mortgage nor have they restrained the disposition of property. They have simply enjoined the execution of a statute looking to the enforcement of a tax, on the ground that it is unconstitutional. The collection of the tax is suspended merely by operation of the injunction. No property rights can be destroyed, and we see no reason for a bond for damages other than the one that was given when the injunction issued.

We can not say in advance of a hearing of the cause that the judge erred in issuing the injunction, or that the bond he exacted in this case is not sufficient to cover damages resulting from the injunction. We think the bond of one thousand dollars tendered by relators was suffi■cient and a suspensive appeal should have been granted in a bond for ■that sum with good and solvent securities.

It is therefore ordered that the mandamus and prohibition herein bo made peremptory and perpetual, and that the judge grant relators a -suspensive appeal on giving bond in the sum of one thousand dollars with good and sufficient security, and that he fix a return day as re•quired by law. See 20 An. 108, 529.

Howell, J.,

dissenting. I think the answer of the judge a quo shows good grounds why the mandamus should not be made peremptory. The judge has not refused to accept a bond and grant the appeal; but has only fixed a day for hearing evidence on the question of injury or damage that may be caused or may result to appellees by the appeal, which, upon the principle announced in the cases of State ex rel. Walden vs. Judge of the First District Court, 19 La. 167, and State ex rel. Coons vs. Judge of Superior District Court (not reported), he was authorized to do. The bond, of course, to be drawn according to law.

I therefore dissent.

Moeuak, J.,

dissenting. We issued an order to the district judge to grant the plaintiffe a suspensive appeal in this case.

In the application for this order we were. asked to fix the amount of d;he bond. This we declined to do. We granted the order with the condition that the plaintiffs should furnish a bond conditioned according to law.

The judge has obeyed our mandate. He has granted the appeal. But .-as to the amount of bond to be given he has postponed action until he ■ should be satisfied,-by evidence, what the amount should be. I see nothing in this of which the plaintiffs have any cause to complain. . Tho judge could have fixed the bond at an arbitrary amount. If he had, the plaintiffs could have applied to us for relief. So they could now if, after hearing testimony; the judge should fix too large an amount. In other words, the exercise of his discretion would be subject to our review. As the'case now stands, I do not see why we should interfere.

For these reasons, as well as for those given by Mr. Justice Howell, I think the present application should be dismissed.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 5883.
    Peter Helwege vs. Hibernia National Bank.
    By tho law merchant of this country tho eortilicate of a bank that a chock is good is equivalent to acceptance.
    This is a suit against the defendant on a certified chock for $il50. The defense is tho chock was raised from forty-one dollars after it was certified, and tho dato was altered from tho second to the seventh of July. Plaintiff acquired it on tho seventh of July, in due course of business for value.
    There was a blank between tho words forty-one and dollars in which tho drawer fraudulently inserted the additional figures and absconded after the perpetration of the fraud,
    Tho bank was negligent in certifying tho check without drawing a line with a pon across the blank between the words forty-one and dollars, thereby enabling the drawer to perpetrate the fraud. There was nothing in the appearance of tho chock to excite the suspicion of plaintiff or a prudent man of business. Tho bank therefore is responsible.
    APPEAL from the Sixth District Court, parish of Orleans, Saucier, J.

      K W. Huntington, for plaintiff and appellant.

      iC. Gilmore & Sons and Finney & Miller, for defendant and appellee.
   Wyly, J.

Plaintiff appeals from the judgment rejecting his demand against the defendant on a certified check for $4150. The defense is the check was raised after it was certified, and the date was altered.

■ It appears the Hibernia Bank, on the second of July, 1874, certified a check of its customer, J. Weidner, for forty-one dollars; that there was a blank between the words forty-one and dollars, in which the drawer fraudulently inserted, the words hundred and fifty; that the date was changed from the second to the seventh of July, and that plaintiff acquired it on the seventh of July in due course of business for value; also that Weidner has absconded.

The bank was negligent in certifying the check without drawing a line with a pen across the blank between the words forty-one and -dollars, thereby enabling the drawer to perpetrate the.fraud. It is admitted that if George Soulé, an expert, had been prodilcéd as a witness he would testify that “ if a line had been drawn from those words (forty-one) to the word dollars, it would have been impossible to erase it without leaving a mark; thoro was no such lino drawn; such a lino could not hayo been taken out by the uso of chemicals without leaving- some traces of 'the action of the acid on the paper.” The evidence is, there was nothing in tho appearance of the cheek to excite the suspicion of the plaintiff or a prudent man in business.

We think this case is controlled by tho case of Isnard vs. Torres and Marquez, 10 An. 103, where the indorser was held liable for a note raised. from one hundred and fifty dollars to eleven hundred and fifty dollars under similar circumstances. Tho court said: “Thoro was a want of proper caution on the part of Marquez in indorsing anote containing such a blank. This want of proper caution on Ills part enabled Torres to commit a fraud by filling up the blank so as to increase the amount in a manner entirely freo from suspicion, and surely tho equity of Marquez, whose case is certainly a hard one, is inferior to that of Isnard, who has parted with his money on the faith of a state of things which the imprudence of Marquez enabled Torres to' create.” “ By the law merchant of this country tho certificate of tho bank that a chock is good is equivalent to acceptance.” 10 Wallace, 647.

It is therefore ordered that the judgment heroin in favor of defendant be annulled, and that plaintiff recover of defendant forty-one hundred and fifty dollars, with legal interest from tho seventh of July, 1874, and costs of both courts.

Rehearing- refused.


author: Wxly, J.

text:
    No. 6145.
    Jean Mandere vs. Francois Bonsignore et al.
    The court « <i«a oiml in not permitting plaintiff to adduce In evidence tho chock, tho signature ot which was admitted, because ho tailed to prove tho, genuineness oí the writing in tho body of the check. Tho burden of proof in regard to the alleged forgery of said writing was on tho party sotting up tiiat defense. The bill of exceptions to the exclusion of said cheek and protest was well taken. They aro in tho record, and are sufficient to fix tho liability of defendant, who has failed to establish the alleged forgery.
    APPEAL front the Fourth District Court, parish of Orleans. Lynch, L.

      G. Sehmult, for plaintiff and appellant.

      Clarke, Bayne <& Ben-shaiu, for defendants and appellees.
   Wxly, J.

Plaintiff appeals from the judgment rejecting as of nonsuit Iris demand against the defendant, Francois Bonsignore, the drawer of a check for twenty-eight hundred dollars which was duly protested and notice thereof given to him.

' The defendant, Bonsignore, admitted the signature, -but alleged the filling up of the check was a forgery.

"We think the court erred in not permitting- plaintiff to adduce in evidence the cheek, the signature of which was admitted, because he failed to prove the genuineness of the writing in the body of the check. The burden of proof in regard to the alleged forgery was on the party setting up that defense. The bill of exceptions to the exclusion of said check and protest was well taken. They are in the record, and are sufficient to fix the liability of defendant, Bonsignore. The defense of forgery is not established by the evidence.

It is therefore ordered that the judgment herein be annulled, and that there be judgment in favor of plaintiff and against the defendant, Fran-gote Bonsignore, for twenty-eight hundred dollars, with legal interest thereon from tho ninth day of September, 1875, and costs of both courts.

Rehearing refused.


text:
    No. 4422.
    M. A. Bechnel, Administrator, vs. the New Orleans, Mobile, and Texas Railroad Company.
    In this easetho defendants, Reynolds, Dowling & Kennedy, gave an appeal bond, but procured no order oí appeal. Therefore tlio brief filed by their counsel will not be noticed.
    The evidence- is satisfactory on tho point that tho work done on Marmillion’s plantation was done under the supervision of tho engineer of the company, who had ■control of the matter and could have prevented the damages resulting to plaintiff, but neglected or failed to do so.
    In tlio notarial instrument in which the right of way was granted by widow Mar-million to tho company there is a special clause, tho meaning of which is that tho company shall pay for all damages caused by it or its employees in constructing tho road through tho plantation in question. Responsibility under this contract can not he avoided by letting out the work to contractors.
    The condition upon which the company obtained the right of way has been violated, and by tho terms of the contract tlio corporation is responsible for the damages complained of. Besides, there arc clauses in the contract between the company and tho contractors and in the contract between the contractors and sub-contractors which fully establish that responsibility, the engineer of the company, its special agent, having the direction and constant supervision of the work embraced in the contract of the principal contractors and in tho contract of the -sub-contractors. Hence, the Now Orleans, Mobile, and Chattanooga Railroad Company is l-osponsible for the damagos occasioned by the sub-contractor on the plantation belonging to tho succession represented by plaintiff.
    APPEAL from tlio Sixth 'District Court, parish of Orleans. Cooley, J.

      Cooley & Phillips, for plaintiff and appellee.

      J. A. Campbell, for the Now Orleans, Mobile, and Chattanooga Railroad Company, defendant and appellant.

      John H. IMey, for Reynolds, Dowling & Kennedy, defendants and appellants.
   Wyly, J.

Plaintiff, the administrator of the succession of Louis B. Marmillion, sues the defendants, the New Orleans, Mobile, and Chattanooga Railroad Company, and Smith, Kilpatrick, Reynolds, Dowling & Kennedy, who were contractors with said company ior the embankment of said railroad, for ten thousand dollars damages, which he alleges they caused the plantation belonging to the succession of Marmillion, situated in the parish of St. John the Baptist, to sustain by the improper manner in which they erected the embankment for said railroad through said plantation in 1871, and for the loss of a draining machine by fire, .which occurred by the fault or neglect of said company or its employees.

Smith and Kilpatrick were not cited. At the trial the court below gave judgment for five thousand dollars in solido against the New Orleans, Mobile, and Chattanooga Railroad Company, and Reynolds, Dow-ling & Kennedy. From this judgment the New Orleans, Mobile, and Chattanooga Railroad Company has appealed.

Reynolds, Dowling & Kennedy gave an appeal bond, but procured no order of appeal. The elaborate brief filed by their counsel will not, therefore, be noticed.

Dillon, Casement & Co. were the contractors; they employed Reynolds, Dowling & Co., who sublet the contract for the work across the field or the plantation in question to O. C. Smith.

Whatever damage was done to the plantation, it was by this sub-contractor and his laborers. The evidence fails to show that the fire which destroyed the draining machine was caused by the fault or neglect; of Smith or the hands employed on the railroad. At most, the evidence only creates a suspicion against them.

. As to the damages resulting from excavations beyond the right of way, and the obstruction of the drainage and the plantation road, the evidence is quite conflicting. After carefully examining the evidence, we conclude that the statement of plaintiff, who testified, is correct. He, being the administrator of the estate, was without personal interest, and his estimate of tne loss seems reasonable and fair. He says that “the railroad passes through the plantation at about forty arpents from the river. The excavations were made by the employees of the railroad company a considerable distance outside of the limits of the right of way; I remonstrated frequently to them against doing so, and they promised to stop it, but did not do so, and continued the work; the earth was taken very irregularly; in some places where it was easy to dig, it was taken very deep, three or four feet; in other places very little was taken. The value of the land which was rendered useless by these excavations, outside of the right of way, was worth about four hundred ■dollars; the excavations alluded to are on the lower side of the road. The manner in which said excavations were made has rendered unfit for cultivation a large tract of valuable land, which can not, in consequence ■thereof, now be drained; had the excavations been properly made, and an outlet provided, tho water could have been drawn off. It was not necessary that the earth should be dug in that manner, and the damage caused thereby I estimate at five hundred dollars, and no less. The plantation road was out by the employees of the said company, which was entirely unnecessary for tho purpose of constructing the road or embankment, thereby preventing communication on the place, the damage caused thereby (he estimates) at two hundrod dollars.”

On cross-examination this witness states: “ The estimation of damages which I have given is what I consider the real and actual damages caused by tho acts mentioned.”

Several other witnesses, examined on behalf of plaintiff, fix tho damages at a much higher sum. Wo will take his estimate of the loss sustained by the estate under his administration by the illegal acts of the sub-contractor and the laborers on tho railroad; and we fix the amount of damages sustained by plaintiff in his representative capacity at eleven hundred dollars.

Now, the question arises, is tho New Orleans, Mobile, and Chattanooga Bailroad Company responsible for these damages occasioned by this sub-contractor and the hands employed on'the railroad?

Appellant takes the position that the evidence shows that no agent or servant of the company was guilty of any of the trespasses or wrongs of which the plaintiff complains; that a railroad contractor employs his own agents and servants; it is an independent employment; tho direction or control of tho persons so employed is entirely with their employer; and the corporation has no immediate control of them in the performance of the work, but only over tho work after it is done. Therefore appellant is not responsible.

If the corporation had no control over tho performance o'f the work,, and the persons committing the wrong were not their servants or agents, of course no responsibility can be fixed on it. But tho evidence satisfies us that the work was done under the supervision of the engineer of the company, who had control of the matter, and could have prevented the damages, but neglected or failed to do so. 'The right of way of one hundred feet in width across the plantation was conveyed to appellant in a, notarial act executed by the widow of the deceased, who was then living. One clause thereof is as follows: “It being fully understood that said company bind themselves to keep open tho necessary drainage, build all the necessary bridges, and pay for all the damage they may cause in the destruction of buildings, crops, and property generally; and, further,, that the company be authorized and empowered to use the tract of land adjoining the road aforesaid for the ordinary purposes thereof, in hauling, carting dirt, stone, timber, iron, etc., free of costs or damage, upon condition that the said company will make no unnecessary waste, or damage to the said tract of land.” The moaning of this clause is that tho company shall pay for all damages caused by it or its employees in constructing the road through the plantation in question. Responsibility for damages under this contract can not be evaded by letting out the work to a contractor. The condition upon which the company obtained the right of way has been violated, and by the terms of the contract the corporation is responsible for the damages complained-of.

That there may be no mistake in regard to the finding that the work was done under the supervision of the engineer of the New Orleans, Mobile, and Chattanooga Railroad Company, and he had authority to prevent the damages complained of, but failed or neglected to do so, after being duly notified by plaintiff, we will copy a few clauses of the contract between the said company and the principal contractors, also a few clauses of the contract of the sub-contractor, Smith, who caused the damages: In the contract of the corporation with the principal contractors it was stipulated that “ all the work embraced in this contract shaM be executed under the direction and constant supervision of said engineer.” * * Also, “ if any foreman or laborer employed by said parties of tho first part (meaning- the contractors) shall in the opinion of the engineer execute his work in an unfaithful or unskillful manner, ox-in any respect prove remiss or inadequate to the performance of his duty, or disrespectful or disorderly in his conduct, lie shall forthwith by direction of said engineer be discharged; and no person shall be employed on the work in any capacity who has been previously discharged for like cause from any work on the said line of said railroad by said engineer.” * * * Also, “ If any damage shall be done by the partios of the first part, or by workmen in their employ, to the land, the crops, fixtures, and other appurtenances of the property adjoining or in the vicinity of the work herein contracted to bo done, tho said engineer of the party of the second part shall have the right to estimate or appraise the amount of said damages and to pay the same to tho owner or occupant, and the amount so paid for such damages shall be deducted from the value of the work done under this contract.”

And in the contract with O. C. Smith, the sub-contractor, who caused the damages complained of, it was stipulated that “ all the xoork embraced in this contract shall be done under the direction and constant supervision of said engineer.” * * * * Also: “If any foreman or laborer of the party of the first part (meaning Smith) shall in the opinion of the engineer execute his icork in an unfaithful or unskillful manner, or in any respect prove remiss or inadequate to the performance of his duty, or disrespectful or disorderly in his conduct, he shall forthwith by direction of said engineer be discharged, and no person shall .be employed on the work in any capacity ioho has been discharged for like cause from any work on tlie lino of said railroad by said engineer.” * * * Also: “ If any damage shall be done by the party of the first part or by workmen in his employ to the land, crops, fixtures, or any other appurtenances of the property adjoining or in the vicinity of the work herein contracted to be done, the said engineer of the party of the-second part shall have the right to estimate or appraise the amount of said damages and to pay the same to the owner or occupant, and the-amount so paid shall be deducted from the value of the work done under this contract.” It therefore appears that the construction of the work which caused the damages to plaintiff was done under the “ direction and constant supervision” of the engineer of the company, icho by express stipulations of the origined contract and the sub-contract had authority to discharge “any foreman or laborer” employed on the railroad when in his judgment it became necessary, and no person so discharged could be subsequently employed in any capacity on said railroad.

How, then, can it bo pretended that tho New Orleans, Mobile, and Chattanooga Railroad Company had no control over the hands employed on the railroad who did the damages of- which plaintiff complains ? The engineer of the company, its special agent, had the “ direction and constant supervision” of all the work embraced in the contract of the principal contractors and in the contract of the sub-contractor, Smith,-who caused the damages. He not only had tho supervision, but he had tho absolute right to discharge, at his option, any foreman or laborer employed on any work on the line of railroad.

"When complaint was made of the damages being done to the plantation by Smith, tho sub-contractor, the division engineer wrote the following letter:

“It has been reported to mo that your sub-contractor, O. C. Smith, now at work at section ten, on Widow Marmillion’s plantation, has been taking earth to make the embankment across said place beyond our right of way — fifty feet each way from tho centre of the lino of tho road— thereby subjecting this company to a claim for damages for the land so taken beyond our right of way. I am also informed that Mr. Smith assured the manager of the Marmillion place that this company would pay for the damages done by him outside of our right of way. Neither Mr. Smith nor yourselves have had permission to excavate beyond our right of way on tho Marmillion place, or elsewhere, and it is my duty to notify you, and I do accordingly hereby notify you, to settle with the owners of tho Marmillion plantation for the damages already done to the same, and that you will bo hold accountable for such damages in all cases.”

Beyond the giving of this notice the Now Orleans, Mobile, and Chattanooga Railroad Company did nothing to prevent the damages to the plantation, as it was bound to do by the stipulations oí the contract whereby it acquired the right oí way across said plantation, and as it was bound to do by law, because it had the “ direction and constant supervision” of the work, with tho right to discharge any foreman or laborer at the option of its engineer.

Our conclusion is the New Orleans, Mobile, and Chattanooga Railroad Company is responsible for the damages occasioned by Smith, the subcontractor, to the plantation belonging to tho succession represented by plaintiff. See the case of Camp vs. the Wardens of the Church of St. Louis, 7 An. 322.

It is therefore ordered that the judgment herein against the New Orleans, Mobile, and Chattanooga Railroad Company be amended by reducing it to the sum of eleven hundred dollars, and as •amended that it be affirmed, appellee paying costs of appeal.


author: Taliaperro, J.

text:
    No. 6089.
    Charles T. Estlin vs. State of Louisiana.
    The plaintiff, authorized by an act of the Legislature to bring this action, sues the State of Louisiana ior services alleged to have been rendered by him to the State as an auctioneer. But the sixth section of act No. 81 of tho acts of 1872, referred to in tho plaintiff’s petition as conferring authority upon tho Auditor and Treasurer to employ an auctioneer at tho expenso of tho State to make salo of the bonds in question, does not confer such power; but, on tho contrary, specially directs that the Auditor and Treasurer themselves shall offer such bonds at public auction, from day to day, to the highest bidder- Tho plaintiff is not an auctioneer, nor is it alleged. He has shown no causo of action.
    APPEAL from tlic Superior District Court, parish of Orleans. Ilaiv-kins, J.

      Charles 8. Bice and Isaiah Tharpe, for plaintiff and appellant.

      A. P. Field, Attorney General, J. Q. A. Felloics, and J. J3. Cotton, for defendant and appellee.
   Taliaperro, J.

Tho plaintiff, authorized by act of tho Legislature to bring this action, sues the State for $10,969 56 for services, as he alleges, rendered the State as an auctioneer in selling thirteen hundred and fifty bonds transferred from the “ free:school fund” and tho “ redemption-of-the-State-debt fund,” pursuant to the requirements of section six of act No. 81 of 1872 of the General Assembly of the State. Ho avers that he was appointed to sell these bonds by tho Auditor of Public Accounts and the Treasurer; that the bonds sold by him aggregated in amount $1,300,500, and tho proceeds netted $1,096,965.

The plaintiff is met by a peremptory exception that his petition discloses no legal cause-of action. This exception was sustained by the court a qua and the suit dismissed. The plaintiff appealed.

It appears that Estlin, the plaintiff, being an employee in the Auditor’s office at the date of the sale of the bonds, was designated by tho Auditor and the Treasurer to perform the act of crying the sale, for which lie claims he is entitled as auctioneer to one per cent commission on the net sales. But the sixth section of act No. 81 of the acts of 1872, referred to in the plaintiff’s petition as conferring authority upon the Auditor and Treasurer to employ an auctioneer at the expense of the State to make sale of the bonds in question, does not confer such power; but, on the contrary, specially directs that the Auditor and Treasurer themselves shall offer such bonds at public auction, from day to day, to the highest bidder, etc. The plaintiff is not shown to -be an auctioneer, nor is it alleged.

The judgment appealed from was properly rendered, and it is affirmed with costs.

Rehearing refused.


author: Taliaeebeo, J. Howell, J.

text:
    No. 5800.
    Succession of William M. Smith.
    In this com! the widow claims in brief and argument tho recognition of her community rights, l’his claim was not set up in tho court below, and parties can not go beyond their pleadings.
    APPEAL from the Second District Court, parish of Orleans. T’mot, J.

      McOloin & Nixon, for M. McCue, tutor and appellee.

      Andrew J. Murphy, for James and Matthew Reilly, appellants.

      Hornor & Benedict, for administratrix and appellant.
   Taliaeebeo, J.

Tho decedent was twice married. By his first wife he left three children. The second marriage was without issue. The widow of deceased qualified as administratrix, made various sales, and filed her account. She placed herself down as being- in necessitous circumstances and entitled to the homestead of one thousand dollars.

McCue, appointed tutor to tho minor heirs, Smith’s children by his first wife, opposed this claim of the widow for homestead right. He also opposed the claims of the widow’s sons by her first marriage, Matthew and James Reilly. He also filed oppositions to the claims of tho attorney and auctioneer of the estate. Several other oppositions wore filed; one by Hirscli, another by Loob, a third by J. G-. Gibbons & Co., and a fourth by James Gernon. These oppositions were sustained. Tho opposition of McCue, tutor, was sustained in so far only as to the rejection of the widow's homestead claim of one thousand dollars, James Reilly’s claim for §611 for wages, and Matthew Reilly’s claim of §308. The attorney’s fees reduced from five hundred dollars to three hundred dollars, the auctioneer’s fees reduced from §220 to §144 50. In other respects the opposition of McCue, tutor, was dismissed. The account as thus adjusted was confirmed and homologated. From the judgment of homol-ogation the administratrix and the Reilly brothers have appealed. The counsel of the tutor, McCue, asks the court to correct an inadvertence of the court below in neglecting to recognize the minors Smith as heirs of the deceased and according to-them the residuum of the estate as prayed for in the opposition of the tutor.

We think that the judgment was rendered correctly, except as to the demand for recognition. It was shown that the succession was not an insolvent one and that the widow was not left in necessitous circumstances to entitle her to the thousand-dollar-homestead provision. The estate, it seems, was worth §1484 36 over all debts. In this court the widow claims in brief and argument the recognition of her commuity rights. This claim was not set up in the court below, and parties can not go beyond their pleadings.

The claims of the Reillys for services seem not well founded. One of them, from his own statements under oath, attained his majority only a few days before the death of Smith, and the other is yet a minor. The services of these sons of Mrs. Smith she was entitled to during, their minority. The services were no doubt rendered without the expectation of wages. It is shown that the treatment of Smith toward his stepchildren was kind and liberal, acting toward them as to his own. They all lived with him as members of his family. He paid for the schooling and clothing-' for all. Ho gave them spending money from time to time, Matthew receiving the amount of one hundred and eighty dollars from his step-father during the year in which he died. It seems from the record that Matthew Reilly, the minor, was not, at the time of the trial of the oppositions to the account, represented by a tutor, and it was properly decided by the lower court that ho had no standing in court to urge a claim against the succession. He labored under -the same disability when his attorney took the appeal for him. The appeal, therefore, must be disregarded.

It is ordered that the judgment of the lower court be amended by recognizing the minors, Julia Smith, Mary Smith, and Lizzie Smith, as the sole heiis of William M. Smith, deceased, which is hereby ordered, and it is further ordered that the residuum of the succession of their father after final settlement be paid over to them, and as thus amended it is ordered that the judgment of the lower court be affirmed with costs.

Ok ApplicatioN for a Rehearing.

Howell, J.

Counsel lor the administratrix complain that our judgment gives the whole of the community property to tho heirs of tho deceased. This an error. Tho decree only gives “ the residuum of the succession of their father after final settlement,” which, of course, consists of his separate estate, if any, and one half of tho community, after the payment of community debts.

As to tho demand for recognition, it was practically granted by the lower judge, and wo can see no injury resulting from the action taken.

Rehearing refused.


author: MoegaN, J.

text:
    No. 6281.
    Wm. J. Taylor vs. Kehlor, Updike & Co. Kehlor Brothers, Intervenors.
    Plaintiff recovered j udgment against tho defendants, Kehlor, updiko & Co., who arc non-rosidenis, in a suit by attachment. Execution being issued, several partios woro garnisliood. Some of tho garnishees answered that they held property belonging to Kehlor Brothers, but that they held nothing belonging to Kehlor, Up-diko & Co. The firm of Kehlor, updiko & Co. was dissolved while tho suit of the plaintiff against them was pending. Kehlor Brothers intervene and claim tho property seized under the garnishment process.
    Tho suit was filed on the thirteenth of May, 1870. A motion to bond was made by Wooldridge & Thomas, attorneys for defendants, on tho sixth of June, 1870, and, on their motion, bond having been furnished, tho property attached was released. Thomas was appointed curator ad hoe on tho seventh of October, 1871, and iiled an answer in that capacity.
    On tho fourteenth of December following, Wooldridge & Thomas, of counsel for defendants, moved for a commission to take testimony on their behalf, and the affidavit necessary to obtain the commission is made by Wooldridge, who swears that he is of counsel for defendants.
    It is ovident therefore that tho defendants were in court before tho appointment of curator ad hoc. was made.
    under these pleadings tho decree of tho court was, that plaintiff hayo and recover judgment against tho defendants for sixteen hundred dollars, with legal interest from judicial demand and costs, with privilege upon the property attached.
    This judgment was a personal one, and can be executed in tho usual manner, by seizure of tho defendants’ property wherever found.
    The proposition that the property of one firm can not bo attached to pay tho debt of another is correct as a general rule. But it has been held, correctly, too, that “ tho attachment in this State of the interest of a non-resident in the property of a foreign commercial firm, for a debt due a citizen of this State, is not forbidden by any law or opposed by any consideration of public policy; but, on tho contrary, is recommended as a matter of remedial justice in favor of our own citizens.”
    In this ease the plaintiff is a resident of this State; tho defendants are non-residents. There is property belonging to his debtors within tho jurisdiction of our courts. That property must be held liable for his debt.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      T. Gilmore & Sons, for plaintiff and appellee.

      Breaux, Fenner <£• Hall, for intorvenors and appellants.
   MoegaN, J.

In April, 1874, plaintiff recovered judgment against the defendants, Kehlor, Updike & Oo., who are non-residents. His suit was instituted in May, 1870. In May, 1874, he issued execution and garnisheed several parties. Some of the garnishees answered that they held property belonging to Kehlor Brothers, but that they held nothing-belonging- to Kehlor, Updike & Oo.

The firm of Kehlor, Updike & Oo. -was dissolved while the suit of the plaintiff against them -was pending.

Kehlor Brothers intervene in this proceeding and claim the property seized under the garnishment process. They assert — •

First — That the judgment which plaintiff seeks to enforce is one by attachment; and

Second — That the property of one firm can not be attached to pay the debt of another.

The original suit commenced by attachment, and a curator ad hoc was appointed to represent the absent defendants, -who answered in his official capacity. The curator was J. W. Thomas, Esq., a member of the bar, and a member of the legal firm of Wooldridge & Thomas. The suit was filed on the thirteenth of May, 1870. A motion to bond was made by Wooldridge & Thomas, attorneys for defendant, on the sixth of June, 1870, and on t-lieir motion, bond having bpen furnished, the property attached was released. Thomas was appointed curator ad hoc on the seventh of October, 1874, and filed an answer in that capacity. On the fourteenth of December following, Wooldridge & Thomas, of counsellor defendants, moved for a commission to take testimony in their bohalf, and the affidavit necessary to obtain the commission is made by E. Wooldridge, who swears that he is of counsel for the defendants. It is evident, therefore, that the defendants wore in court before the appoint-, ment of curator acl hoc was made.

Under these pleadings the decree of this court was that “ plaintiffs have and recover judgment against the defendants for sixteen hundred-dollars, with legal interest from judicial demand, and costs of both c .rarts, with privilege upon the property attached.”

This judgment was, wo think, a personal judgment, and can bo executed in the usual manner, by seizure of the defendants’ property wherever found.

The second proposition, that the property of one firm can not be attached to pay the debt of another, is as a general rule correct. But fi-lias been held, and correctly, we think, that “ the attachment in this State of the interest of a non-resident in the property of a foreign commercial firm, for a debt due a citizen of this State, is not forbidden by any law or opposed by any consideration of public policy ; but, on the contrary, is recommended as a matter of remedial justice in favor of our own citizens.” Frost & Co. vs. White, 14 An. 140.

In the case before us the plaintiff is a resident of this State. The defendants are non-residents. There is property belonging to his debtors within the jurisdiction of our courts, and we think it is liable for his debt.

Judgment affirmed.


author: Morgan, J.

text:
    No. 5789.
    Rhoda E. White vs. Myra Clark Gaines. Louis Schneidep, and Others, Sureties on the Appeal Bond.
    The whole Question respecting the rights o£ judgment creditors to proceed against sureties on appeal bonds has been lately examined by this court in t-lie case of whann vs. Irwin, precedontly reported, This case is decided according to the doctrine therein laid down,
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      B. DeGi'ay, Semmes & Mott, tor plaintiff and'appellee.

      Finney <£• Miller and J. Q. A. Fellows, for .defendants and appellants.
   Morgan, J.

Plaintiff obtained judgment against Mrs. Gaines for thirty thousand dollars, with interest at seven per cent from May 30, 1805, until paid, with the right to take out execution for $20,105, the amount then exigible. The judgment also recognized plaintiff’s right of mortgage on property therein described.

From this judgment she took a suspensive appeal, giving as bondsmen J. H. Oglesby, W. S. Pike, Patrick Irwin, and Louis Schneider, each for eight thousand dollars, the condition of the bond being that she, Mrs. Gaines, should prosecute her appeal and satisfy whatever judgment might bo rendered against her, or that the sanie should be satisfied by the proceeds of the sale of her property, real or personal, if she should be cast in the appeal, otherwise her sureties above named to be liable in her place.

. The judgment was affirmed. Execution issued thereon. Personal demand was made upon the defendant, who, through her counsel, pointed out the property which was subject to the plaintiff’s mortgage under the judgment. The sheriff’s return is, after reciting the above facts: “And it appearing from all the circumstances that nothing could be realized toward the satisfaction of this writ, the description of the property being too indefinite to seize and advertise the same for sale, upon the defendant refusing to furnish metes and bounds, other than as contained in the act of mortgage, I herewith return this writ, nothing made under-this writ toward satisfaction of the same. After due demand made of both parties, I found no other property than that above mentioned.”

Therefore plaintiff took a rule on the sureties on the appeal bond to show cause why they should not pay, to the extent of the amount for which they bound themselves, the judgment appealed from. There was judgment against them, and they have appealed.

The defense is:

First — That the judgment can be rendered only for the $20,105 in the aggregate, that being the amount suspended from execution by the appeal.

Second — That the judgment is based upon property recovered by Mrs. Gaines from the estate of Daniel Clark, it being fifteen dollars out of every one hundred dollars found by the courts to have been thus recovered, the judgment also recognizing a mortgage or first lien on all of said property, according to the terms of the mortgage sued on, and that they have the mortgaged property first exhausted.

Third — That the plaintiff has not attempted to have the mortgaged property subject to her mortgage sold, and falsely stated to the sheriff that she know of no property to be pointed out.

Fourth — That defendant did point out property upon which the judgment recognized a lien.

As to the first objection, it is sufficient to say that the amount of the judgment sought against the defendants is the amount of the judgment rendered- against the party for whom they became sureties, $20,105. As to the second, third, and fourth grounds, they may be considered -together.

The mortgage upon the property which the plaintiff had did not contain the pact de non' alienando. It was sold before execution issued, with the exception of two squares, which, the evidence shows, were not only covered with water, but also burdened with taxes to an amount exceeding- their value. It would have, therefore, been worse than useless to attempt to sell it, for the purchasers of those lots which had been sold could have prevented its sale by the sheriff, and as to the two lots which were covered with water and taxes, an attempt to sell them would only have resulted in costs.

The whole question respecting the right of judgment creditors to proceed against sureties on appeal bonds has been lately examined by us in the case of Whann vs. Irwin. We think the application which we made of the law there was correct. Under that decision the judgment of the district courfxin the present case is correct.

Judgment affirmed.

Rehearing refused.


author: Taliaeeebo, J. Moegan, .J.

text:
    No. 6124.
    State ex rel. Charles Prager vs. Recorder of Mortgages and Samuel Johnson.
    This suit turns on a conflict between a privilege and a mortgage. The written contract from which a builder’s privilege) is claimed by Johnson, and which was signod on the twenty-sixth of January, 1874, was recorded on the thirtieth of May, 1875. The conflicting mortgage, granted to one william Henry, was dated the thirtieth of August, 1S75, and recorded on the next day, the thirty-first of August, 1875.
    On the thirtieth of August, 1875, Johnson, the builder, whoso original contract for building a certain railroad had been recorded as aforesaid on the thirtieth of May, 1875, made out a written statement, to the truth and correctness of which ho made affidavit. In this written act he sets up a claim against the railroad company for extra work on their road, not stipulated for in the original contract, and for damages, ete., for which privilege is claimed. This sworn statement was recorded on the thirty-first of August. 1875.
    'The relator can not claim that, because the builder's privilege resulting from the recording of the contract on the thirtieth of May, 1875, was not recorded on the same day it was executed, it is therefore null and d íes not take precedence of his mortgage, which was not recorded for three months afterward.
    Rut the written statement of Johnson, the builder, made under oath and recorded on the same day the relator’s mortgage was recorded, stands on a different footing. In the first place, it is not a detailed statement of the amount due as contemplated and required by article 3272 of the Civil Code. In the next place, the recordation of it, although made on the same day the mortgage was recorded, has no effect against the rank of the mortgage, for the reason that the instrument or statement from which it is claimed the privilege arises was executed the day bei'oro it was recorded, whereas article 3274 of the Civil Code declares that a privilege “ shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act or evidence of the debt is recorded on the day the contract was entered into.”
    APPEAL from the Superior District Court, parish of Orleans. Haw-láns, J.

      flornor & Benedict, for relator and appellant.

      Me Briery, Ellis & Ellis, for P. H. Thode, subrogee to Johnson and appellee.
   Taliaeeebo, J.

In this case there is a conflict between a.privilege and -a mortgage. Samuel Johnson, one of the defendants, entered into a written contract with the Canal-Street and City Park Railroad Company to build their railroad. The contract was entered into and signed on the ■twenty-sixth of January, 1874, and was acknowledged before a notary ■public the same day. This written contract was recorded in the office of the recorder of mortgages on the thirtieth of May, 1875.

The mortgage of the company to William Henry is dated the thirtieth of August, 1875, and was recorded in the mortgage office on the next •day, thirty-first of August, 1875.

On the thirtieth of August, 1875, Samuel Johnson, the builder of the ■aforesaid railroad, and whose contract with the company for building it was recorded in the mortgage office on the thirtieth of May, 1875, made out a written statement, to the truth and correctness of'which he made affidavit. In this written act he sets up a claim against the railroad •company for extra work done on their road, work not stipulated for in the original builder’s contract, and for damages, etc., in all a demand of thirty thousand dollars, for which he claims a privilege on the said railroad. This sworn statement was recorded "in the mortgage office on the thirty-first of August, 1875.

The relator in this case alleges that he is the holder and owner of three several promissory notes for the total amount of twelve thousand five hundred dollars of the Canal-Street, City Park, and Lake Railroad Company, secured by mortgage upon the said railroad, its franchises, etc., .and certain real estate belonging to it, duly recorded. The relator then refers to the privilege claimed by Johnson as builder, and to his claim of privilege on his demand for extra work, and alleges that the two inscriptions of Johnson are null and void; that they have been, illegally entered upon the records of the mortgage office; that he has a direct interest in having the said inscriptions erased, as he desires to sell his mortgage notes and can not obtain their real value on account of the mortgage securing their payment being primed by the said pretended privileges as •they now stand on the public record, and if they are erased his mortgage will then apparently as well as really have its real value. He therefore prays that a mandamus issue to the recorder of mortgages ordering him ‘to erase the inscriptions of these alleged pretended privileges from the records of his office.

Johnson and the recorder of mortgages were called upon to show cause why the required erasures should not be made. Johnson answered disclaiming any interest in the matter, having transferred his rights to Peter Tliode. 'The latter appeared, by consent of all parties, and filed exceptions to the relator’s proceedings, denying his right to demand the erasures of the privileges, and setting forth his ownership of the- privileges in question, and asserting their superiority in rank to the relator’s mortgage.

The judgment of the lower court discharged the rule taken by the relator, and he has appealed.

The issues here presented are not difficult of solution. The relator can not maintain that because the builder’s privilege resulting from the recording of the contract on the thirtieth of May, 1875, was not recorded on the same day it was executed it is therefore null and does not take precedence of his mortgage, which was not recorded for three months afterward. Civil Code, article 3273: “Privileges are valid against third persons from the date of the recording of the act or evidence of indebtedness as provided by law.”

But the written statement of Johnson,'made under oath and recorded on the same day the relator’s mortgage was recorded; stands on a different footing. In the first place, it is not a detailed statement of the amount due, as contemplated and required by article 3272 of the Civil Code. In tho next place, the recordation of it, although made on the same day the mortgage was recorded, has no effect against the rank of the mortgage, for the reason that the instrument or statement from, which it is claimed the privilege arises was executed the day before it was recorded, whereas article 3274 of the Civil Code declares that a privilege “ shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act or evidence of the debt is recorded on tho day the contract was entered into.”

It is therefore ordered that the judgment of the lower court be annulled, avoided, and reversed. It is now ordered—

First — That tho privilege resulting from the recording of tho contract between tiro parties for tho building of tho railroad in question be recognized as having priority of rank over tho relator’s mortgage.

Second' — That tho claim sot up by the defendant, Tliode, to a privilege as arising from tho recording of the statement and affidavit of Johnson before referred to be rejected and disallowed.

Third — That the privilege so claimed be erased by tho recorder of mortgages from tho records of his office.

It is lastly ordered that tho plaintiff and appellant pay costs in the lower court, the defendant and appellee those of this appeal.

On Application nob Rehearing.

Moegan, .J.

The only ground for-the application for a rehearing herein is in regard to tho costs. There .was error in the judgment in this regard, but wo can correct it without having the whole case re-argued.

It is therefore ordered, adjudged, and decreed that our judgment, in so far as it puts the costs on the plaintiff and appellant, be avoided and annulled, and that the decree bo that the defendants pay costs in both courts, and that as thus amended our former decree remain undisturbed, and the rehearing asked for refused.


author: Morgan, .J.

text:
    No. 5548.
    State ex rel. New Orleans Sanitary and Fertilizing Company vs. the Board of Health.
    Aot No. 102 oí the session oi 1810, commanding the Board o£ Health to perform certain work under the second section oí said act, is repealed by tho act No. 46 of the session oí 1S74.
    APPEAL from, the Superior District Court, parish of Orleans. Hawkins, J.

      Lacey <& Butler, for relator and appellant.

      Bice & Whitaker, for-respondent and appellee.
   Morgan, .J.

The relators ask for a mandamus against the Board of Health, commanding them to perform certain work under the second section of the act No. 102 of the session of 1870.

But we think this act is repealed by the act No. 46 of the session of 1874.

Judgment affirmed.

Mr. Justice Wyly dissents, and will file his reasons hereafter.


author: Howell, J.

text:
    No. 6229.
    A. A. Delaroderie vs. Mrs. Anna Hillen, Tutrix, et al.
    It is not in the power of an assessor to vest title in any one by simply entering land in the assessment roll in the name of such person. A tax-eolleetor’s deed of sale is prima facie evidence of title, hut the property must have belonged to the person to whom it was assessed. Plaintiff has failed to make out his claim; it does not concern him to have the validity of defendant’s title tested.
    APPEAL from the Fifth Judicial District 'Court, parish of East Baton Bouge. Dewing, J.

      Samuel P. Groves and ‘j. H: Halsey, for plaintiff and appellant.

      Parrot & Damon, for defendants and appellees.
   Howell, J.

This is a petitory action to recover a tract of land in the ■possession of the defendants. Plaintiff sets up title from one John Elliot, who acquired the land at a tax-collector’s sale, recorded January 25,1873. The answer denies that said land belonged to the person to whom it was assessed and as whose property it was sold, avers fatal in-formalities in the alleged tax-sale, and sets up title and possession for over thirty years. The plaintiff must recover on the strength of his own title, and not on the weakness of his adversary’s title. C. P. 44; ,10 An. 160; 11 An. 546, 512; 13 An. 393; Heirs of Thompson vs. Bridgers, hot reported. .

The evidence of the origin of plaintiff’s title is a certificate of.’ the assessor giving the description on the assessment, roll, which states that the land was entered by one Gillespie in 1854 with warrant No. 944; and reliance is placed on section 3149 R. S. for the validity of this evidence. This section reads: “It shall be the duty of the recorder of each parish throughout the State to procure from the United States and State land offices a correct abstract of all lands lying in their respective parishes which have been disposed of, giving the. name and date, to whom and when sold.”

The next section provides that, “ when such abstract or descriptive list shall have been procured,' it shall be filed in the recorder’s office for the purpose of enabling the assessors to make a full and correct return of all lands which may be held or claimed by non-residents.”

Conceding that this law makes a compliance with its provisions proof of title to land, there is no evidence of the registry of Gillespie’s entry, or of the description as required.

It is not in the power of an assessor to vest title in any one by simply entering land in tho assessment roll in the name of such person. A tax-collector’s'deed of sale is prima facie evidence of title; but tho property must have belonged to the person to whom it was assessed. Plaintiff has failed to make out his title to tho land claimed, and it does not concern him to have tho validity of defendant’s title tested.

Judgment affirmed.

Rehearing refused.


author: "Wyly, J.

text:
    No. 6125.
    Christian Kline vs. the Parish of Ascension.
    Plaintiff recovered judgment for the amount of his salary as parish treasurer during 1873 and 1874, together with an order rociuiring the board of assessors to proceed forthwith to assess a special tax to pay the amount of said judgment. The objection is not to the amount of the judgmont, but to the order directing a special- tax to be collected for the payment of the same, because said debt is embraced in tho estimate of tho taxes levied for the years 1873 and 1874, and a sufficient amount is due and uncollected on said assessments to pay the debt owing to plaintiff.
    Plaintiff, however, relies upon section 2028 of tho Revised Htatutos; but this section must bo construed with other provisions of the law, and effect must be given, if possible, to each. Another provision of tho law on the same subject is found in section 2450 of the Revised Statutes.
    This last section, 2450, is the one applicable to the case at bar. Therein is to bo found tho remedy if the tax-collector fails to collect tho assessments providing for this debt and others.
    where a debt has not been provided for, or where the tax intended for the payment of a debt can not be collected from any cause, or whore the money has been diverted, the creditor will find relief in the above-mentioned section, 2828, of tho Revised Statutes.
    under, this interpretation effect may be given to both sections of tho Revised Statutes, and tho absurd eonsetiuonee of double taxation may bo avoided.
    APPEAL from tho Fourth Judicial District Court, parish of Ascension. Flagg, J.

      Legendre, Focha & Franklin, for plaintiff and appellee.

      Frederick Duffel, District Attorney pro tern., for defendant and appellant.
   "Wyly, J.

Plaintiff recovered judgment for tho amount of his salary as parish treasurer during the years 1873 and 1874, together with an order requiring the board of assessors to proceed forthwith to assess a special tax to pay the amount of said judgment.

Defendant appeals. Appellant does not complain of tho amount of tho judgment, but the objection is to the order directing a special tax to be collected for tho payment of the same; because said debt is embraced in tho estimate of the taxes levied for the years 1873 and 1874, and a .sufficient amount is due and uncollected on said assessments to pay tho debt owing to plaintiff.

As tho evidence shows that plaintiff’s debt has been provided for, and .a sufficient amount to pay the same remains uncollected on the assessment rolls, we see no reason why an additional tax should be levied to pay it. If one creditor whose claim has been provided for in the general assessment of the current year pan resort to tho court and obtain a decree ordering a special tax to be levied for the payment of his claim, every other creditor can likewise do so; and the result will be that .a double tax may bo assessed and collected from the taxpayers, in contravention of that provision of the law which limits the amount of parish taxes in one year to one hundred per cent on the amount of State taxes. The police jury may assess a tax of one hundred per cent on tho amount of State taxes to pay its creditors, and the latter can by the process of the court require a special tax, amounting in tho aggregate to one hundred per cent upon the amount of State taxes. The result will bo that two hundred per cent on the amount of the State taxes may be levied and collected for parish purposes, and the salutary provision •of the law protecting the people from excessive taxation by municipal corporations will cease to be a protection and have the effect its authors intended it should have.

Plaintiff, however, relies upon section 2628 of tho Revised Statutes, which declares that whenever a judgment for money is rendered against a parish tho judge shall in the same decree order the board of assessors to assess a special tax to pay said judgment.

But this section must be construed with other provisions of the law, and effect must be given, if possible, to each. Another provision of tho law upon the same subject is found in section 2450 of the Revised Statutes, which provides that whenever a police jury shall have provided for the payment of a debt by levying a tax, and shall fail or refuse to cause the tax to be collected for the purpose of paying the debt, it shall be the duty of the district judge, on motion of the attorney of any creditor of the parish, after having obtained judgment, to issue his mandate directed to the tax-collector to proceed forthwith to collect the taxes, and the same shall be appropriated to the payment of said judgment. This section is the one applicable to tho case at bar, where plaintiff alleges and the evidence shows that his debt has been provided for, and there are ample taxes uncollected to pay tho same. He is tho treasurer of tho parish, and if the tax-collector fails to collect the assessments provided for this and other debts owing by the parish, the law has .provided a remedy in section 2450 of tho Revised Statutes which' will give the necessary relief.

■Where a debt has not been provided for, or where the tax intended for the payment of a debt can not be collected from any cause, or where the money has been diverted, the creditor will And relief in section 2628 of the Revised Statutes.

Under this interpretation effect may be given to both sections of the Revised Statutes, and the absurd consequence of double taxation may be avoided, and the provision of the law limiting the amount of parish taxes to the amount of State taxes owing by a taxpayer may be upheld and respected.

It is .therefore ordered that the judgment herein be amended so as to strike out that part directing a special tax to be collected to pay the amount thereof, and as amended that it be affirmed, appellee paying costs of appeal.


author: TaliakeRbo, J.

text:
    No. 4830.
    M. L. Block vs. A. Bonnet.
    Plaintiff was entitled to possession of tlio premises leased to him until ho was legally dispossessed, which it is clear he was not, and the acts of Bonnet, the lessor, by-prostituting legal proceedings to accomplish his purpose of ejection, by which plaintiff was damaged and his rights recklessly disregarded, gave a right of action for damages. The verdict of the jury has done justice between the parties.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J. Jury trial.

      John Bay and B. Phillips, for plaintiff and appellee.

      William S. Sant, for defendant and appellant.
   TaliakeRbo, J.

This is a suit for damages caused, as the plaintiff alleges by a series of unwarrantable, illegal, and oppressive acts perpetrated against him by the defendant through avaricious motives and vindictive feelings, using illegally and unwarrantably for his own bad purposes the machinery of the law under the guise of judicial proceedings. By the defendant exceptions were filed and overruled.

The answer is a general denial. Defendant avers that the only acts done by himself were sanctioned by the process of the third justice of the peace, which process he denies was in any manner abused or oppressively employed by respondent. Defendant specially denies that any damages were sustained by the plaintiff through the agency of the defendant. The answer closes by a prayer for trial by jury. A jixry trial was had and resulted in a verdict in favor of the plaintiff for the sum of twelve hundred and fifty dollars. The defendant has appealed.

In the year 187Í Block rented a house from Bonnet, the lease to commence on the first of September of that year. This controversy had its origin in a disputation that arose between the parties in regard to whether the lease was by the month or by the year. The agreement was not reduced to writing. Bonnet asserted that the property was leased by the month, and Block that the lease was by the year. Fourteen days after Block went into possession of the premises he received notice from Bonnet to vacate them. This he refused to do, and he was thereupon summoned to appear before a justice of the peace to show cause why he should not deliver the leased property to the lessor. Judgment was rendered against him, ordering the delivery of the property. From this .judgment he appealed to the Third District Court, making the affidavit required by article 2157, Revised Statutes, to entitle him to a suspensive appeal. He furnished the required bond, which was accepted. After the appeal was granted and the appeal bond was accepted, Bonnet applied to the justice of the peace to dismiss the appeal on the ground that-the answer was not sworn to as the law required. The appeal was dismissed on the sixth of November, 1871; and here still more active and energetic measures commenced. On the same day, between one and two o’clock' p. m., a writ of ejectment was issued, and the furniture and effects of the lessee were summarily removed from the house under the supervision of •a constable and placed on the sidewalk in a rough, careless manner, by which it is shown a piano and other articles were damaged. This was done, it seems, within two hours after the appeal was dismissed, and without the knowledge of Block and an opportunity being afforded him to remove the property himself, and McArthur, the, new lessee, was immediately put in possession. Block thereupon applied to the Third District Court for a writ of mandamus requiring the justice to grant the appeal and to send up the record. The mandamus was made peremptory. A writ of prohibition was also issued by the Third District Court, and also an injunction ordering all the furniture to be replaced in the house and Block to be restored to possession. These orders were entirely disregarded by both Bonnet and McArthur, who refused to obey them when called upon by the constable so to do. A rule was then taken to cause the parties to be punished for contempt of court. It appears that at this stage of proceedings McArthur applied for and obtained an injunction from the Eighth District Court restraining Block from all further action to obtain possession of the premises. This writ of injunction was served on Block on the tenth of November, 1871. He ceased further action in the direction he had pursued, and filed the present suit for damages on the seventeenth day of November, 1871.

The position assumed by counsel in instituting this suit is that after the appeal was granted to Block from the judgment ordering him to vacate the premises, and after a sufficient appeal bond had been tendered and accepted and no objection afterward made to its sufficiency, the justice of the peace was divested of all jurisdiction of the case; and all that he did in the case afterward was coram nonjudice,*without warrant of law and absolutely void. They contend that the ground alleged by the justice for dismissing the appeal was wholly without foundation, and, oven if it were not, it could only be examined and determined by the appellate court. Numerous authorities are invoked in support of these views and the positions assumed. 15 La. 391; 6 La. 58 ; 24 An. 600 ; 25 An. 622.

Looking now to the evidence in regard to the verbal lease of the property from the defendant, Bonnot, to the plaintiff, we find that Block, the plaintiff, as a witness on- his own behalf, swears positively that the contract of lease was for one year. Wo consider this statement abundantly sustained by the testimony of other witnesses, and by testimony going to show that a strong motive existed to influence the conduct of Bonnet in giving the plaintiff notice to vacate the promises after ho had occupied ..them only a month. This was that he could lease the property for much more than ho leased it for to the plaintiff. Indeed, it is shown by the admissions of Bonnot himself that ho leased the house for one year, and that he was influenced "in making the change” by his own pecuniary advantage. James McCunie, a witness, who was present at a conversation between the parties, on the thirtieth of September, 1871, says Block paid one month’s rent, fifty dollars, and asked Bonnet why he had sent the notice to vacate, and asked him whether he did not recollect their agreement when he leased said premises in which it was understood that he, Block, would not take the house unless ho could have it permanently at least for one year. Mr. Bonnet replied that he did remember, but was sorry, and having an opportunity to rent for seventy-five dollars per month, and considering his interest, he had agreed to rent it for that .amount; at the same time stating to Mr. Block that he had no complaint to make against him as a tenant, (did not deny the agreement), that he> "makes the change solely for his own pecuniary advantage.” The evidence leaves no doubt that the plaintiff, by the faithless conduct of the-defendant in violation of the contract, was seriously incommoded, put to great trouble and inconvenience, and harassed in his feelings. It is in proof that he rented the house in view of his marriage which was then-soon to take place ; that the lady who was to become his wife went with him to inspect the building which they were to occupy, and that slio was. pleased with it. It is further shown that plaintiff had gone to pains to construct on the premises a bath-house and to have coal laid in for the winter; to have the gas and water works transferred to his own name, and to have other things done to render the intended residence .of himself and wife comfortable.

The exceptions of prematurity and no cause of action filed by the defendant against the plaintiff’s demands were properly overruled. Block was entitled to possession of the premises until ho was legally dispossessed, which it is clear he was not; and the acts of Bonnet by prosti-. tuting legal proceedings to accomplish his purpose, by which Block was damaged and his rights recklessly disregarded, gave him a right of action for damages.

The main purpose of Block in prosecuting liis case in the Third District Court was to recover possession of the leased premises and hold them under what he contended was the contract. That purpose was effectually thwarted by Bonnet’s getting McArthur into possession and by the injunction sued out by the latter in the Eighth District Court restraining Block from interfering with his possession. I-Iow the original suit in the Third District Court for possession may result is of no importance hero. It is no issue in the present ease. We think the verdict of the jury has done justice between the parties.

It is therefore ordered that the decree of the lower court bo affirmed with costs.

Rehearing refused.


author: Taliaferro, J. Taliaeereo, J. Wvly, J.,

text:
    No. 5890.
    Mrs. Widow L. Cormier vs. M. Soye et al.
    This is an injunction suit to stay the sale under executory process by the defendants of certain property belonging to plaintiff, and mortgaged to secure the payment of two promissory notes. The plaintiff alleges fraud and misrepresentation on the part of defendants in obtaining her signature.
    The plaintiff makes affidavit to the truth of all the allegations of hor petition. In a supplemental petition, containing no new matter, she prays for trial by jury. The prominent question in this case is the question of fraud. It has been repeatedly decided by this court that it is peculiarly within the province of a jury to determine questions of fraud. Therefore the judge a quo erred in refusing a jury trial. The case must be remanded.
    A PPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      F. Howard McCaleb, for plaintiff and appellant.

      Charles F. Claiborne, for defendants and appellees.
   Taliaferro, J.

This is an injunction suit to stay the sale of certain mortgaged property belonging to the plaintiff and seized under executory process by the defendants: The judgment of the lower court was 'in favor of the defendants, and the plaintiff appealed.

The plaintiff assigns as error patent on the record the refusal of the judge a quo to grant plaintiff a trial by jury, and prays for that reason alone that the judgment appealed from be set aside and the cause remanded for trial before a jury as prayed for.

The facts seem to be that Madam Cormier executed two promissory notes on the twenty-fourth of May, 1870, payable to her own order and indorsed by her, payable one year after date, each note for the sum of three thousand dollars. These notes were delivered to Soye for her indebtedness to him, and to secure the payment of these notes she executed a mortgage on a lot of ground and buildings thereon situated in the city of New Orleans.

On the fifth of June, 1873, she signed an act purporting to be a.mortgage on another lot of ground with the buildings upon it, for the purpose of further securing the payment of the two notes given the twenty-fourth of May, 1870. When the defendants proceeded via executiva against these two lots of ground and caused them to be seized, the plaintiff enjoined the sale on the ground that her signature to the act of the fifth of June, 1873, was obtained by fraud and false representations on the part of the defendants; that upon false statements to her as to the object in view in requiring her signature to the act, and without reading it or being given an opportunity to read it, and by threats of foreclosing the mortgage she had executed previously, she signed the act in ignorance of what it was; that she never consented to give a mortgage on property when she put her signature to the act of the fifth, of June, 1873; that the defendants’ agent brought the act to her house, representing that it was an agreement to postpone the foreclosure of the mortgage executed by her on the twenty-fourth of May, 1870; that the notary whose name appears to the act was not present when it was signed, and that she never appeared before him to execute the said act as is falsely stated theroin.

The plaintiff makes affidavit to the truth of all the allegations of her petition. In a supplemental petition, containing no new matter, she prays for trial by jury.

The prominent issue in this case is the question of fraud. It has been repeatedly decided by this court that it is peculiarly within the province of a jury to determine questions of fraud, and wo think the judge erred in refusing a jury, trial.

It is therefore ordered that the judgment appealed from be annulled and reversed. It is further ordered that this case bo remanded to the court of the first instance to be tried ele novo, with instructions to the judge a quo to grant a trial by jury, as prayed for by the plaintiff in her supplemental petition. It is further ordered that the defendants in injunction pay the costs of this appeal.

Ox Reiiearixo.

Taliaeereo, J.

Wc find nothing on a review of this case that inclines us to disturb the decree first rendered by us. It is therefore ordered that our former decree in this case remain unaltered.

Wvly, J.,

dissenting. Plaintiff enjoined the executory process sued out by defendant on her mortgage notes mainly on the ground that the act of mortgage was “ procured by fraud, misrepresentation, and falsehood.”

Defendants, in their answer, changed the action from an executory process to a suit via ordinaria for the foreclosure of the mortgage. Subsequently plaintiff filed a supplemental petition praying for a trial by jury, without annexing an affidavit as required by article 494 of the Code of Practice. That article requires that in all suits on promissory notes, bills of exchange, and generally on all unconditional obligations, the party desiring a trial by jury shall “ make oath that the signature to said note or other obligation is not genuine, or that he expects to prove the same had been obtained through fraud or error, or want or failure of consideration.” ****** * * * *

The law is mandatory; it prohibits a trial by jury in a suit on an unconditional obligation, “unless the defendant shall make oath,” etc. Now, is a mortgage note less an unconditional obligation than a note without a mortgage ? A mortgage imports a confession of judgment; it authenticates the note and gives it a higher character than it before possessed. Here, then, is a suit to obtain a personal judgment on a promissory note and to have the mortgage given to secure it rendered execu-tory. Yet plaintiff insists that she was entitled to a trial by jury, notwithstanding she failed to make oath as required by article 494 of the Code of Practice.

The affidavit annexed to the petition for the injunction does not affirm that the note was obtained through fraud, or error, or want or failure of consideration. It merely supports the averment of the petition that the act of mortgage was “ procured by fraud, misrepresentation, and falsehood.” This is not sufficient to obtain a trial by jury of the demand on the note, because it in no sense complies with the positive provision of article 494 of the Code of Practice.

The case of Haines vs. Verret, 11 An. 122, is directly in point, and the court refused to allow a trial by jury in an executory process changed into a suit via ordinaria, on the ground that the sum demanded was an unconditional obligation, and there was no affidavit denying defendant’s signature or averring that it had been obtained through fraud, or error, or want or failure of consideration. The note is the principal obligation; the mortgage is an accessory obligation. In the face of the positive requirement of article 494 of the Code of Practice has the plaintiff the right of a trial by jury on the principardemand because of the affidavit she made in regard to the mortgage ? Which is to control, the accessory or the principal demand? It is- the general rule that the accessory follows the principal. But in the case at bar it seems to me the majority of the court is reversing this rule. But the gravest objection is, the court, by the ruling in this. case, virtually amends article 494 of the Code of Practice in regard to tlio right of trial by jury. This law, which is undoubtedly mandatory, prohibits a trial by jury on a promissory note “ unless the defendant make oath that his signature to said note or other obligation is not genuine, or that he expects to prove that the same had boon obtained through fraud, or error, or want or failure of consideration.” * * * Here no such oath has been made by plaintiff in injunction, who is defendant in this proceeding, changed into a suit to foreclose the mortgage ña-ordinaria.

It is true she swore that the mortgage was “ procured by fraud, misrepresentation, and falsehood.” But the law does not say a jury trial may bo had in a suit on a mortgage note if the defendant shall swear that the mortgage given to secure the note was “procured by fraud, misrepresentation, and falsehood.”

In my opinion, the terms of a mandatory law must bo complied with strictly. A conditional right ought not to be allowed, unless the party claiming it has complied strictly with the conditions prescribed by law. And the court has no authority to accept a compliance with conditions not prescribed by law as a substitute for a compliance with the conditions fixed by law. The moment the court permits the conditions precedent to be varied, or allows others to bo substituted therefor, it transcends the bounds of duty and encroaches upon the functions of the legislative department.

I therefore dissent in this case.


text:
    No. 4934.
    Mrs. Mary Powlis vs. N. B. Cook and P. Goldstein. Jeannette Goldstein, Intervenor.
    It is well settled that a creditor of the husband can require his wife, separate in property, to establish the verity of the judgment she recovered against her husband if the same be prejudicial to him, and he is not concluded by the proof adduced when said judgment was rendered; nor is the wife precluded from introducing other proof in support of her judgment, whenever its verity is questioned by a judgment creditor of 'her husband. ■
    It is true, in the ease at bar the husband consented that the case might be flxed and tried, but that did not make it a consent judgment.
    The court a erred in not permitting Mrs. Goldstein, the intervonor, to introduce proof in support of her judgment at the trial of this injunction suit.
    APPEAL from the Sixth District Court, parish of ^Orleans. Saucier, J.

      Singleton & Browne, for plaintiff and appellee.

      Max. Dinkelspiel and David Goldman, for intervenor and appellant.
   Wyly, J.

On the first of March, 1873, the intervonor, Jeannette Gold-stein, recovered against her husband, P. Goldstein, a judgment of separation of property, and a decree for $3700 for paraphernal funds received by him.

In discharge of this debt P. Goldstein made an act of giving in payment whereby ho transferred to his wife a lot of jewelry owned by Mm in a store on Magazine street. Subsequently plaintiff, a judgment creditor of P. Goldstein, seized these goods, and Mrs. Goldstein sued out an injunction. It is well settled that a creditor of the husband can require his wife, separate in property, to establish the verity of the judgment she recovered against her husband if the same be prejudicial to him, and he is not concluded by the proof adduced when said judgment was rendered. Nor is the wife precluded from introducing other proof in support of her judgment, whenever its verity is questioned by a judgment creditor of her husband.

It is true, in the case at bar the husband consented that the case might be fixed and tried, but that did not make it a consent judgment. On the contrary, the money demand was sufficiently proved. That the husband was in embarrassed circumstances, rendering a separation of property necessary to protect the paraphernal rights of his wife, is manifest from tMs litigation, if not otherwise shown.

The court erred in not permitting Mrs. Goldstein to introduce proof in support of her judgment at the trial of this injunction suit. The record, however, contains sufficient evidence to support her demand in this case.

.. It is therefore ordered that the judgment hereiD, dissolving the injunction'sued out by the intervenor, Jeannette Goldstein, be annulled, and it is decreed that said injunction be made perpetual at the costs of plaintiff in both courts.


text:
    No. 6313.
    State of Louisiana ex rel. H. Boutté and J. P. Leblanc, Co-Executors, vs. Judge of the Superior District Court, Parish of Orleans.
    The right to an appeal is protested by the constitution, and the judge has no right to refuse it, however indifferent or baseless the demand on the merits may be.
    The whole cuestión is whether relators are entitled to a suspensive.appoal, and to this question there is but one answer. It is a final judgment, and the matter in dispute exceeds Uve hundred dollars. Therefore an appeal suspensive or devol-utive will lie at the option of appellants on complying with the requirements of the law.
    APPLICATION for a writ of mandamus against Jacob Hawkins, judge of the Superior District Court, parish of Orleans.

      McEnery, Ellis & Ellis, for relators.

      Judge Haioldns, in propria persona.

   Wyly, J.

This is an application for mandamus to compel the judge of the Superior District Court -to grant a suspensive appeal from the judgment dismissing relator’s injunction suit where the matter in dispute exceeds five hundred dollars.

The right to an appeal is protected by the constitution, and the judge has no right to refuse it, however indifferent or baseless the demand on the merits may be.

To'determine the present inquiry, we can not look into the case and say whether or not the judge erred in sustaining the exception to the jurisdiction of his court. That question will arise, perhaps, when the case is examined on appeal by this court.

The sole question now is whether relators are entitled to a suspensive appeal, and to this question there is but one answer: It is a final judgment, and the matter in dispute exceeds five hundred dollars; therefore an appeal, suspensive or devolutive, will lie at the option of appellants on complying with the requirements of the law.

It is therefore ordered that the mandamus herein be made peremptory.


text:
    No. 6244.
    The Rising Sun Society vs. the Rising Sun Benevolent Association.
    The controversy is about the right to a lot of ground in Girod-Street Cemetery, and a tomb therein known as the “ Young Rising Son Society Tomb.”
    Defendant’s suit for this property and for recognition of this right was dismissed as of nonsuit by the Superior District Court, and the injunction accompanying the same was dissolved. Defendant subsequently brought suit respecting the same right, without seeking an inj unction, in the Sixth District Court.
    Thereupon plaintiff brought this suit in the Superior District Court, and enjoined the defendant from proceeding further in the prosecution of said suit in the Sixth District Court.
    The judgment perpetuating this injunction was manifestly erroneous. The Superior District Court was utterly without jurisdiction to restrain by injunction the trial of the suit pending in the Sixth District Court. If the defendant in said suit was of opinion that the Sixth District Court was without jurisdiction, his remedy was an exception to the jurisdiction, and on this plea being overruled, the action of the court thereon could be revised by this court on appeal.
    The Superior District Court has no appellate or supervisory power over the Sixth District Court.
    APPEAL from the Superior District Court, parish of Orleans. Haic-Icins, J.

      G. H. Luzenberg, for plaintiff and appellee.
    D. M. C. Hughes and JS. C. Kelly, for defendant and appellant.
   Wyly, J.

Plaintiff and defendant are corporations organized for charitable and religious purposes by notarial acts under the general law of the State authorizing such corporations.

Each of the contestants claims to be the successor of the “ Young Rising Sun Benevolent Society,” and as such entitled to a lot of ground in Girod-Street Cemetery, together with a tomb erected thereon known as the “ Young Rising Sun Society Tomb.”

Defendant’s suit for this property and for the recognition of this right, was dismissed as of nonsuit by the Superior District Court, and the injunction accompanying the same was dissolved.

Defendant subsequently brought suit asserting the same rights, without seeking an injunction, in the Sixth District Court.

Thereupon plaintiff brought this suit in the Superior District Court and enjoined the defendant from proceeding further in the prosecution of said suit in the Sixth District Court.

The ground stated for the injunction is that the Sixth District Court was without jurisdiction, because by act No. 2 of the acts of 1872, organizing the Superior District Court, that court has exclusive jurisdiction over all suits in which “ any corporation established by act of the General Assembly and domiciled in the parish of Orleans shall be a party.” * * * The court perpetuated this injunction and defendant appeals.

.The judgment was manifestly erroneous. The Superior District Court was utterly without jurisdiction to restrain by injunction the trial of the suit pending in the Sixth District Court. The right to prosecute a lawsuit, whether well founded or not, is a right guaranteed by article ten of the constitution. If the defendant in said suit was of opinion that the Sixth District Court was without jurisdiction, his remedy was an exception to the jurisdiction, and if this plea was overruled, the action of the court thereon could be revised toy this court on appeal.

The prosecution of this suit in no manner interfered with any cause pending in the Superior District Court, and that court has no appellate or supervisory power over tho Sixth District Court.

It is therefore ordered that the judgment appealed from be annulled, and it is decreed that the injunction herein be dissolved, and plaintiffs suit be dismissed with costs of both courts.


author: LüDEtisra, C. J.

text:
    No. 6260.
    Joseph S. Bouchard vs. Mrs. M. Mulvey et al.
    In this instance the judgment on tho merits was premature. There had been no answer or trial on the merits when the Anal judgment perpetuating the injunction was rendered, alter overruling an exception to the jurisdiction of the court.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Alfred Shaio and William H. Hunt, for plaintiff and appellee.

      J. H. Grover and Lyman Harding, for H. Bird, defendant and appellant.
   LüDEtisra, C. J.

An execution was issued on a judgment rendered by the Fifth District Court of New Orleans. An injunction to restrain the sale of property seized under said execution was granted by the Superior District Court on the application of a third person, who claimed the property.

A plea to the jurisdiction of the Superior District Court was filed. After trial the exception was overruled, and a final judgment was rendered perpetuating the injunction. The defendant in injunction appealed,'

The judgment on the merits was premature. There had been no answer or trial on the merits when the judgment was rendered. ■

It is therefore ordered that the judgment on the merits bo reversed, and that the case bo remanded to be proceeded with according to law. It is ordered that appellee pay costs of appeal.


text:
    No. 6286.
    Willis H. Hogan vs. Mississippi Valley Bank.
    8. H. Young & Co. wore the real consignor- to whom plaintiff, on the guarantee of the cashier of the Mississippi Valley Bank, had agreed to advance fifty dollars per bale, all drafts coming through the Mississippi Valley Bank. Young & Co. having failed, plaintiff seeks to hold defendant, responsible for a balance due him. But this he can not do, beeauso the guarantee of defendant was not in writing. The promise to pay the debt of another can not bo shown by parol evidence.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      T. (rilmore £ Som, for plaintiff and appellee.

      F. L. llivhardson, for defendant and appellant.
   Wyly, J.

Plaintiff sues defendant for $5923 82, a balance of an account which lie alleges defendant owes him as factor for advances on shipments of cotton in October, November, and December, 1873. The shipments were made by S. H. Young & Co., from Vicksburg, a,ncl the advances were on their drafts coming through the Mississippi Valley Bank. The theory of the plaintiff is the bank was the principal and S. H. Young & Co. were their agents in these transactions, and the account was kept with S. H. Young & Co. at the request of defendant, and with the understanding that defendant was responsible.

The first shipment was undoubtedly for account of defendant, because the balance of the proceeds after paying the draft on the shipment were to bo placed to its credit in the Germania Bank. Another shipment was received from S. H. Young & Co., and the cashier of the defendant bank was in the city. He made arrangement with plaintiff that the business should bo carried on with S. H. Young & Co., directing him not to deposit the balance .of the proceeds of the first shipment as first directed, but to place them to the credit of S. H. Young & Co., and he made a verbal agreement with plaintiff to guarantee him from loss in future business with S. H. Young & Co., all drafts by the shippers to come through the Mississippi Yalley Bank.- Plaintiff wrote to S. H. Young & Co. agreeing to advance fifty dollars per bale on all shipments by them.

Plaintiff made a strenuous effort to prove that the defendant was the party with whom he dealt, and that S. H. Young & Co. were not the real consignors for whom he acted as factor. After carefully examining tho evidence, vve regard this attempt as a failure. S. EL Young & Co. were the real consignors to whom plaintiffs, on the guarantee of the cashier of the Mississippi Yalley Bank, had agreed to advance fifty dollars per bale, all drafts coming through the Mississippi Yalley Bank.

In the course of the transactions cotton declined, the shippers lost by the speculations, and failed in business. The balance of $923 82 plaintiff can not make out of the shippers, S. H. Young & Co., with whom ho kept tho account, and to whom he rendered account sales, and for whom he did business, because they have failed. He now seeks to hold defendant responsible. Ho can not do so, because the guarantee of defendant was not in writing. The promise to pay the debt of another can not bo shown by parol evidence.

The bill of exceptions to the admission of the depositions of S. H. Young was not well taken, the objection to the seal used by the Louisiana commissioner being trivial.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled, and that plaintiff’s demand be rejected with costs in both courts.

liehearing refused.


author: Ludeling, C. J.

text:
    No. 4790.
    Richard England vs. J. S. Neal and J. C. Sinnott.
    Tho only evidence as to Sinnott guaranteeing tho payment of tho note is tho testimony of tho plaintiff. This kind of proof was not legal, and can not be considered by the o rart, boeauso tho promise to pay tho debt of another by parol is prohibited by law. But that evidence, even if legal, fails to prove tho promise.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      JE. K Whittemore, for plaintiff and appellee.

      L>. H. Ogden, for defendant and appellant.
   Ludeling, C. J.

This suit is similar to the case of Fox vs. J. S. Neal and J. C. Sinnott, decided by this court and recorded in' Opinion Book No. 44, p. 370, and it arises from the samo transaction. It is a suit on a promissory note for one thousand dollars executed by J. S. Neal, payable to the order -of and indorsed by the plaintiff and J. E. Hicks.

The present case differs from the Eox ease in this only, that it is now alleged that the note inured to tho benefit of Sinnott, and that he guaranteed it.

The evidence does not establish either statement. The only evidence as to Sinnott guaranteeing the payment of the note is the testimony of the plaintiff. This kind of proof was not legal, and can not be considered by the court, because the, promise to pay the debt of another by parol is prohibited bylaw. Beyised Statutes, section 1443 ; 23 An. 690; 24 An. 398; 25 An. 492.

But even if legal the evidence fails to prove a promise to pay, and what Sinnott did say in the conversation alluded to is explained differently by himself and another witness. We adhere to what we said in the case of Fox vs. Neal and Sinnott above referred to.

It is therefore ordered and adjudged that the judgment of the lower court be reversed as to Sinnott, and that there be judgment in favor of the defendant, Sinnott, rejecting the plaintiff’s demand with costs in both courts.


text:
    No. 4822.
    Consolidated Association of Planters of Louisiana vs. J. Numa Avegno.
    Ronds with coupons payable to hearer are negotiable securities' and pass by delivery, and, in tact, have all the qualities and incidents of commercial paper. The bonds in controversy were payable to bearer; they wore not due when bought by the defendant, who gave value for them. The purchaser was therefore unaffected by want of title in the vendor.
    APPEAL from the Superior District Court, parish of Orleans. Ilmc-Idns, J.

      Jules Lavergne, and Charles F. Claiborne, for plaintiff and appellant.

      W B. Koontz, for defendant and appellee.

      J. E. Austin, tor P. O. Eazende, called in warranty.
   Ludeling, C. J.

The plaintiff sues for certain New Orleans City Waterworks bonds, which were stolen from the bank of plaintiff by burglars on the night of the twenty-ninth of January, 1870. The loss was advertised in the newspapers.

The defense is that they were acquired in due course of business, in good faith, before maturity, and for value.

The bonds were payable to bearer; they were not due when bought by the defendant, who gave value for them; the purchaser was therefore unaffected by the want of title in the vendor. 20 How. 452; 2 Black. 386; 2 -Wall. 110.

Bonds with coupons payable to bearer are negotiable securities and pass by delivery, and, in fact, have all the qualities and incidents of commercial paper.” 3 Wall. 331; 20 An., Doll vs. Rosetti.

It is therefore ordered that the judgment be affirmed with costs of appeal.

Mr. Justice Howell dissents.