author:
Ludeling, C. J. Taliai’ERRO, J.,
      ~Wyly, J.,
     MORGAN, I.,

text:
    No. 5419.
    Peter Joseph vs. David Bidwell.
    Tho arrióle thirteen o£ the constitution of this State does not enunciate a moro abstraction, but it guarantees substantial rights. To facilitate tho enforcement of thoso rights the General Assembly has enacted laws, and it is tho duty of courts, when called upon, to enforce them. An examination of the evidence in tho record satisfies this court that the plaintiff was rudely denied admittance to the theatre solely on account of his being a colored man. Ho is therefore entitled to damages.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      8. Behlen and J. Foley, for plaintiff and appellee.

      B. Shackelford and A. P. Field, for defendant and appellant.
   Ludeling, C. J.

The plaintiff, a colored man, sued the defendant, the proprietor of the Academy of Music, a public theatre in the city of New Orleans, for five thousand dollars damages for refusing to admit him into the theatre after he had purchased a ticket which entitled him to a-soat in the parquette of said theatre. The case was tried by a jury, who disagreed, and, under the, statute of this State, the court discharged the jury and rendered a judgment in favor of the plaintiff.

Wc liave been unable to discover any tiling' unconstitutional in the acts of 1870 or 1871 referred to by counsel. The provision of the constitution of the United States which guarantees trials by jury has no application to trials in State courts. This has been repeatedly decided, and is not an open question.

Article thirteen of the constitution declares that all persons shall enjoy equal rights and privileges upon any conveyance of a public character; and all places of business, or of public resort, or for which a license is required by either State, parish, or municipal authority, shall bo deemed places of a public character, and shall be open to the accommodation and patronage of all persons, without distinction or discrimination, on account of race or color.”

This article of the constitution does not enunciate a mere abstraction, but it guarantees substantial rights. To facilitate the enforcement of these rights the General Assembly has enacted laws, and it is the duty of courts, when called upon, to enforce them. An examination of the evidence in this record satisfies us that the plaintiff was rudely denied admission to the theatre solely on account of his.being a colored man. See Sauvinet vs. Walker and Decuir vs. Benson.

Mr. Justice Taliaferro and I think the amount of damages awarded by the lowrer court not too high, but as a majority of the court do not agree in this, the judgment will be reduced to throe hundred dollars, with interest from the date of the judgment.

It is therefore ordered that the judgment of the lower court be amended by reducing the amount of the judgment in favor of the plaintiff to three hundred dollars, with five per cent per annum from the eighth of June, 1874, and costs of the lower court, the costs of appeal to be paid by the appellee.

Taliai’ERRO, J.,

concurring. After a very careful perusal of all the evidence found in the record of this case, I am well satisfied there has been, through the conduct of an agent of the defendánt, a wanton violation of a right and privilege secured to the plaintiff by the constitution and laws of this State as well as by the paramount law of the land. I am equally well satisfied that this violation of that right was perpetrated from no other consideration than that the plaintiff is a man of color, and that the personal indignity offered him proceeded solely from the same cause. The violation of the plaintiff’s legal right to enter, on the same conditions that all other spectators enter, the place of public amusement managed by the defendant, renders the latter liable in damages to the plaintiff, for the act of the agent under the circumstances of this case must bo regarded as the act of the principal. The amount awarded by the lower court as damages is not exorbitant or.unreasonable. The judgment ought to be affirmed.

~Wyly, J.,

dissenting: The defendant, the owner of the Academy of Music, a theatre in the city of New Orleans, appeals from the judgment of the court a qua condemning him to pay plaintiff, a colored man, one thousand dollars damages because the latter was rudely refused admittance to the entertainment on Saturday evening, March 7,1874, by one David Owen, the doorkeeper of said theatre. The ticket which plaintiff presented to the doorkeeper cost one doliar at the ticket office, and the following is a copy:

KPA1DESTG s bidwell’s

ACADEMY OE MUSIC.

ADMISSION TICKET.

CONTRACT

Between the Managers of the Academy of Music and the Holder of this Ticket:

It is agreed, and this ticket is sold with the understanding, that the management shall have the right to refuse admission to the holder upon returning the regular price of the ticket.

After being refused admittance by the doorkeeper, plaintiff did not apply to the office for a return of the price of the ticket, and it has not been returned to him.

Defendant, who was at the time sick and knew nothing of the conduct of the doorkeeper on this occasion, was sued a few days thereafter by plaintiff for five thousand dollars damages.

Under article thirteen of the constitution and act No. 38 of the acts of 1869, an act to enforce the same, plaintiff had the same right to enter the theatre as any other citizen, but he had no greater right. The fact that he was a colored man ought not to give plaintiff the right to recover a larger amount of damages against defendant than if he were a white man. The law of the State, as I understand it, in regard to the right to recover for a breach of contract or for damages arising ex delicto gives no greater remedy to one class of citizens than to another. If a white' citizen may not recover one thousand dollars for a breach of contract, the consideration of which was one dollar, a colored citizen ought not simply because of his color.

If a white citizen could not recover damages ex delicto from Bidwell because, like plaintiff in this suit, he failed to allege and prove that defendant could have prevented the damage occasioned by his servant, the doorkeeper, but failed to do it, plaintiff, a colored man, ought not to recover.

To discriminate in favor of a colored man in administering the law, or in enforcing an obligation arising from a breach of contract or ex delicio, would be to destroy that equality before tho law which the constitution of 1868 and the recent amendments to the constitution of the United States were intended to accomplish. They were never intended to confer on the colored citizen greater rights than the white citizen is permitted to enjoy.

Yiewing the case, therefore, without regard to the color of £>laintiff, I think the court erred in condemning defendant to pay one thousand dollars damages because his doorkeeper rudely refused to admit plaintiff to the theatre on Saturday evening, March 7,1874.

Plaintiff wholly failed to allege and prove that defendant authorized the conduct of the doorkeeper on the occasion referred to, or that he could have prevented the damage but failed to do so.

“Masters and employers are answerable for the damages occasioned by their servants and overseers in the exercise of the functions in which they are employed. Teachers and artisans are answerable for the damage caused by their scholars or apprentices while under their superintendence. In the above eases responsibility only attaches when the masters or employers, teachers and artisans, might have prevented the act which caused the damage and have not done it.” Revised Code, 2320.

The same article was in the previous Codes of this State, and has been frequently interpreted by this court. In 1830, in tho case of Palfrey vs. Kerr, 8 N. S. 503, which was an action for damages for tho acts of an agent or servant, this court hold “ that plaintiff can not recover, because he has not shown that the defendants could have prevented the acts from which the damages they claim are said to have resulted.”

In 1835, in the case of Keene vs. Lizardi, 8 La. 26, this court held that “smart-money or vindictive damages can only be given against tho wrong-doer or offender by way of punishment; but not against persons who are only consequentially liable on account of their relation to the wrong-door, as tho principal for tho acts of the agent.”

In 1840, in tho case of Ware vs. Parataria and Lafourche Canal Company, 15 L. 170, this court hold that “mastors and employers are responsible for tho damage occasioned by their servants and 'overseers in tho exercise of their functions, but this liability only extends to cases where the masters or employers might liavo prevented the act which caused the damage and did not.”

In Duncan vs. Hawks, 18 La. 548, and in numerous other decisions, the same ruling was had.

Under the well-settled jurisprudence of tho State plaintiff can not recover against defendant ex delicio, because he failed to allege and prove that the wrongful act of' the doorkeeper was authorized by the defendant, or that lie could have prevented the damage, but failed to do so. Can he recover ex contractu or for breach of the contract which arose when he acquired the ticket ? It is proved that for many years all tickets have issued for admittance to this theatre with a condition annexed just as the one which plaintiff acquired; that this condition is attached to all tickets that are sold for the theatre owned by defendant. The condition is a part of the contract.

Now the question is, not whether plaintiff was entitled under the article of -the constitution and the statute quoted to enter the theatre upon paying the usual price, one dollar, but whether, having purchased a ticket with the condition attached “ that the management shall have the right to refuse admission to the holder upon returning the regular price,” plaintiff can recover smart-money or vindictive damages against defendant, because the doorkeeper rudely refused to admit him on Saturday evening, March 7,1874.

If the condition was not in violation of a prohibitory law or against public policy, and I can not see that it isj it is a part of the contract and can not be separated from id; and it must be considered in determining whether there was a breach of contract. It is the law between the .parties. The ticket with the condition attached is produced in evidence by plaintiff to show his right to enter the theatre when he was wrongfully denied admittance by the doorkeeper. And upon this contract or rather upon the breach thereof I do not find that plaintiff is entitled to vindictive damages against defendant.

Like the breach of any other contract, he is entitled only to the damages he sustained. The evidence fails to show that he sustained any damages beyond the value of the ticket and the costs of this litigation.

Now, whether Bid well is entitled to obtain license and conduct a thea-tre upon issuing tickets as ho does is a question not presented in this case. And whether plaintiff had the right under the statute carrying into effect the thirteenth article of the constitution to demand an unconditional ticket, and if refused to claim damages, is also a question not presented in this case.

In the purchase of the ticket with the condition attached plaintiff made a contract with defendant which precludes the idea of vindictive damages for a breach thereof; and if he fails to recover what was not contemplated in his contract he will be without cause to complain.

For the reasons stated I dissent in this case.

MORGAN, I.,

dissenting. I think, as the laws now stand, that the plaintiff had the right to occupy the seat in the defendant’s theatre which his ticket called for, and had the defendant been present when the plaintiff’s access to the seat was denied him, or had he authorized his employee to refuse to the plaintiff the exercise of his rights, I should’ agree with the majority as to the amount of damages allowed.' But the defendant was not present, and his employee was not authorized by him to act as he did. Still, he is responsible for the illegal act of his employee (who still remains in his employ), and I think he should be made to pay for his illegal and improper conduct. -I think a judgment for one hundred dollars: would be reasonable and proper.


source: Caselaw Access Project

author: Taliaeebbo, J. Ludeling, C. J.,

license: Public Domain

text:
    No. 6060.
    State of Louisiana vs. Allen Phillips and John Reid.
    This ea=o is before this court on an assignment of error patent upon the record, viz.: that it does not appear from the record herein hied that the jury who tried the accused wero sworn before tho trial of the cause. This objection is fatal and seems to bo settlod in criminal jurisprudence.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J. Criminal case.

      Alvan E. Bead, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      George A. Griffith, for defendants and appellants.
   Taliaeebbo, J.

The defendants appeal from a judgment sentencing them to two years imprisonment in the State Penitentiary at hard labor.

The case is before us upon an assignment of error patent upon the' record, viz.: that it does not appear from the record herein filed that the jury who tried this case were-sworn before the trial of the cause.

It seems to be settled in criminal jurisprudence that the record of conviction should show that the jurors who tried the issue were sworn.

In the case of the State vs. Gates, 9 An. 94, where this question was directly presented, this court said: “ The original entry on the minutes, enumerates the jury, but does not state that they were sworn, and this material fact can not be supplied by the presumption of omnia rite acta, but should appear upon the record itself.” Yarious authorities were cited.

Tlie facts in regard to what appeared upon the record in that case are identical with those in the case at bar.

It is ordered that the judgment appealed from be annulled and reversed. It is further ordered that this case be remanded for a new trial.

Ludeling, C. J.,

dissenting. The only assigned error deemed important by the court is that the record does not show that the jurors who tried the prisoners were sworn. It lias been repeatedly decided by this court that objections to the qualification of the jurors who tried the prisoner will not be listened to, unless urged at the time of their selection and before trial. So that one convicted by an illegal jury can not object, because he is presumed to have waived Ms right to object; but, according to the opinion just read, if the clerk fails to note that the jurors were sworn, he may urge this objection after conviction, because nothing can be presumed against a criminal. I can not-assent to this. It is morally certain that the jury is sworn in all cases. This results from the manner in which the jurors are selected and sworn in courts, and I can not conceive how it is possible to fail to swear a jury in any case.

The decisions cited do support the opinion of the majority of the court, but the reason for the position -is not a good one according to my understanding; nay, it is no reason at all. Because it has been usual for the records in criminal cases to show that the jurors were sworn is not a reason for saying that the .record is fatally defective, even if the maxim “ omnia rite esse acta.” can not be applied in criminal cases. But I do not assent to the proposition that this maxim can never apply to criminal proceedings. I admit that all presumptions are in favor of the innocence of the accused, but that is not incompatible with the application of the maxim omnia rite acta. The one applies to the evidence and to the accused; the other applies only to the acts of the officers of courts. In fact, the position maintained by the majority of the court violates the first-mentioned maxim by assuming that the officers of the court have boon guilty of a dereliction of duty.

I therefore dissent.

Mr. Justice "VVyly concurs in this opinion.-


author: Mohgan, J.

text:
    No. 4730.
    In the Matter of the Succession of Mary Carroll, Deceased, Wife of J. M. Shafer.
    About nuncupative testaments made by public act article 1572 oí the Civil Code says: “ This testament must be signed by the testator. I£ ho declares that he knows not how or is not able to sign, express mention of his declaration as also oí the cause that hinders him from signing must be made in the act.” 1,1
    The only mention made in this case is, “ that the testatrix, being illiterate, has made her mark.” This is not sufficient: tho will is null and void.
    from the Second District Court, parish of Orleans. Tissot, J.

      McG-loin & Nixon, for Wm. Carroll, plaintiff and appellee, praying to be appointed administrator and for the nullity of the will of Mary Carroll.

      Alfred Gi'ima, for J. M. Shafer, universal legatee and testamentary executor, defendant and appellant.
   Mohgan, J.

The object of this suit is to annul the will of Mary Carroll on several grounds; among others, that the pretended will, which is in the nuncupative form, by public act, is not signed by the testatrix. The notary declares that the testatrix, being illiterate, has made •her mark.

Upon this part of the case, tho only one necessary for us to consider, the district judge has, in support of his judgment, which annuls th.e will, given reasons which are entirely satisfactory, and we adopt them: We agree with him, also, in his conclusion that there is no necessity for an administration, tho rights of all parties to such a cause being reserved to them.

Therefore, for the reasons assigned by tho district judge on the point here noticed,

The judgment is affirmed.

Rehearing refused.

EXTRACT

From the Decision of the Judge of the Second District Court, containing the Seasons adopted by the Supreme Court in Their Judgment in the Matter of the Succession of Mary Carroll, Wife of Shafer.

Another alleged ground of nullity is, that the will does not bear the signature of the deceased, but purports to have her mark affixed to the same, although there is no declaration on the part of said testatrix setting forth an inability to sign the same or setting forth the cause of said disability. This is a serious cause of complaint.

The will states “-that the said testatrix, being illiterate, has made her mark/'’ It is not signed by tho testatrix. She has affixed her mark thereto.

About nuncupative testaments, made by public act, article 1572 of the Civil Code says : “ This testament must be signed by the testator. If he declares that he knows not how, or is not able to sign, express, mention of his declaration, as also of the cause that hinders him from signing, must be made in tho act.”

The mention made is, that the testatrix, being illiterate, has made her mark.

As stated herein above, in the case of Mrs. Margaret Brand vs. N. A. Baumgarden, testamentary executor, et al., the Supreme Court has recognized the French doctrine of equipollentia, and held that the words in a testament: ‘ The testatrix, having declared that she could not write, has made her usual mark,’ are equivalent to the declaration that she did not know how to sign.

But the words “the testatrix, being illiterate, has made her mark,” are certainly not equivalent to the words that said testatrix ‘ could not write, has made her usual mark/ or to those ‘ that said testatrix did not know how to sign.’

“Illiterate,” says Webster, means “unlettered, ignorant oí letters or books, untaught, unlearned, uninstructod in science.”

In Bouvior’s Law Dictionary I find that the word illiterate means unacquainted with letters. Hence it follows that very often illiterate persons can sign their names.

Wo meet every day with persons who are illiterate and who can sign their names. See the example cited by Bouvier under the verbo: illiterate. “ To induce an illiterate man, by false representations and false reading, to sign a note for a greater amount than that agreed on, is indictable as a cheat.”

This example sustains the position here assumed, that from the fact that a person is illiterate it can not be concluded that he knows not how to write or sign his name.

But it was admitted. on the trial of this cause that the testatrix herein “ di d not know how to write or sign her name,” and it is contended that courts must act upon the proofs introduced without objection, and a fortiori, upon admissions of parties ; and that plaintiff has nothing to fight for, he having lost all grounds in the present instance from the moment that it is admitted that the testatrix did not know how how to sign her name or wri' o.

Le testament est le triomphe do la liberty dans le droit civil,” says Troplong. Droit Civil Expliqué. Donations et Testaments. Preface, page 11, vol. 1.

At page 356, volume iii. of the same work he says : “Un cles points sur lesquels 1’intervention régulatrice de la loi civile est le plus nécessaire, e’est la formo des testaments. II faut des regies precises pour que la volonté des mourants se montro avec certitude et qu’on n’abuse pas de jeur faiblesse; mais il faut que ces regies soient simples, claires, acces-sibles á tous. L’équité se révolterait contre des formalités minutieuses, inspiróes par un esprit d’hostilitó et non par un esprit de protection. Un droit sacre dans son essence, comme Test le droit do propriétó, doit Stre traite favorablement dans son oxercice; il ne doit pas étre environin' d’embuches.’

Marcadó, vol. iv. p. 22, says : “ II faut, du reste, dans l’interprótation dos lois concernant les formalités des testaments, et par consequent dans Tapplication des regles qui precedent, ne pas perdre de vue le bñt par-ticulier que le législateur s’est propose en réglant les formalités spóciales a chaqué forme de testament. Ainsi, dans le testament olographe, la loi, par les formalités prescritos, a voulu s’assurer que ce testament est l’ceuvre entiére et exclusive du testateur; dans le testament par acte public, que la demiére volontó du testateur a été écrite d’une maniere absolument conforme a sa declaration.”

Upon these principles, coupled, with the admissions of Mrs. Carroll, it is urged that there can be no doubt that the testament contains the free expression of the will of the testatrix, as she intended it, and absolutely in conformity with her declaration. It is therefore stated that I can not annul this. will.

But can I take under consideration the admissions of plaintiff? Can I say that they cure the defect of the will?

Article two of the Civil Code: “Law orders and permits and forbids; it announces, rewards, and punishes, etc.

Article twelve: “ Whatever is done in contravention of a prohibitory law is void, although the nullity be not formally directed.”

Now article 1572 says : “If the testator declares that he knows not how, or is not able to sign, express mention of his declaration, as also of the cause that hinders him from signing, must be made in the act.”

“Mais toutes les fois qu’il s’agira de la forme de l’acte, ce qui y manque d’essentiel, comme une date, ou une autre chose semblable, ne pourra etre supplóé qu’en puisant dans le testament méme et non ailleurs. Si les pre^wes extrinséques sont sans valeur, parceque dans tout ce qui tient aux solemnités, le testament doit sufflre a lui-meme.” Tropiong, iii. Donations and Testaments, p. 386, sec. 1462.

The same doctrine seems to have been sustained by our Supreme Court.

“ Formalities in a will are matters of strict law, and it is null if they be not complied with, however strong the moral evidence that it truly embodies a testator’s last dispositions.” Lewis vs. Lewis, 5 La. 387; Gaudé vs. Baudoin, 6 La. 725.

“An act, the real object of which is a disposition mortis causa, if executed without the legal formalities, is void.” Brittain vs. Richardson, 3 R. 78.

The will makes full proof of itself, and must show on its face that all the formalities required have been complied with. C. C. 1640; 16 La. 80 ; 12 R. 35 ; 7 An. 484; 10 An. 212.

When-all the legal requisites do not appear from the will itself, it must be declared null, because no omission to mention them can be supplied by testimony. C. C. 1588; Swift vs. Swift, 9 An. 117; Falkner vs. Friend, 1 R. 48.

A nuncupative will by public act must bear upon its face the evidence that all tho formalities required by law for its validity have been observed by the notary in drawing the testament.- No. 1485 ; Succession of Wilkin; 21 An. 115.

I believe, therefore, that I am compelled to declare the last will or testament of the late Mary Shafer null and void.


author: Ludeling, C. J. Wvly, J.,

text:
    No. 6255.
    F. Silvert Marionneaux et al. vs. Succession of F. Norbert Marionneaux.
    All orders and rulings of court rendered in all contestations pending the operation of tho partition before the notary- are interlocutory, and any party fooling aggrieved has his remedy, and may bo relieved when the partition is presented for final homologation; and it is from tho judgment thus rendered that an appeal would lie, subjecting the whole proceedings and all interlocutory orders to revision by this court. , ' ‘
    APPEAL from the Eifth Judicial District Court, parish of Iberville. Dewing, J.

      Samuel Matthews and E. B. Talbot, for plaintiffs and appellants.

      George Wailes and Barrow & Pope, for defendant and appel-lee.
   Ludeling, C. J.

Two appeals have been taken'in this case, one for an order homologating the report of experts and the other from an order directing a partition to be made in kind, and referring the parties to a notary to complete the partition. A motion has been made in this court to dismiss these appeals, on tho ground, among others, that tho orders appealed from arc interlocutory only, and do not work an irreparable injury. 'Whatever may be done by the notary will *pnly amount to a projet for a partition, which will not bind any one until the same shall have been presented to the court for final homologation; and from that judgment of the court, homologating the partition, any one interested can appeal.

This court said in the case of Gay vs. Marionneaux et al. that, “ according to said article all orders and rulings of courts rendered on all con-testations ponding the operation of tho partition before the notary are interlocutory, and any party feeling aggrieved has his remedy, and may bo relieved when the partition is presented for final homologation, and it is from the judgment thus rendered that an appeal would lie, subjecting the whole proceedings and all interlocutory orders to revision of this court.” 20 An. 358; C. C. 1270, 1290, 1297, 1298, 1299; 1 Rob. 415; C. P. 1028,1029,1030; C. C. 1304.

■ The evil effects of a contrary practice were shown in the case of Babin vs. Nolan.

It is therefore ordered that the appeals be dismissed with costs.

Wvly, J.,

dissenting. I think the order appealed from works an irreparable injury, and an appeal lies -therefrom under the express provisions of the Code of Practice and numerous decisions of this court. I therefore dissent.

Rehearing refused.


author:
Wyly, J. TaliafeRRO, J.,
     Ludelixg, C. J.,

text:
    No. 5768.
    State of Louisiana vs. Charles Clinton, Auditor, and Antoine Dubuclet, Treasurer. Williams & Guion, Intervenors.

    The State has enjoined the Auditor and Treasurer from paying tho coupons attached to the bonds issued under act No. 95 of 1871, on the grounds that tho issue of said bonds, amounting to two million five hundred thousand dollars, was in contravention of the constitutional amendment, and said bonds are not valid obligations of the State. To decide this question it is necessary to examine the acts of 1869,1870, and 1871 which were passed on the subject.
    Tho obligation of tho State under the acts of 1809 and 1870 adverted to was to guarantee tho second-mortgage bonds of tho New Orleans, Mobile, and Chattanooga Railroad Company on each section of forty miles “ ichicli said company shall construct” within the time mentioned in said acts, after the act of mortgage on said section so constructed shall have been delivered to the Governor, approved by him, and recorded in the office of tho Secretary of State.
    This was the subsisting obligation of the State when the constitutional amendment limiting the State debt to twenty-five million dollars went into operation in November, 1870. As tho amount of that limitation liad already boon reached, the General Assembly could not create a debt thereafter.
    Notwithstanding tho existence of this constitutional limitation, tho Goneral Assembly passed act No. 05, approved the twentieth of April, 1871, which provides, among other tilings, that tho Governor is authorized to subscribe for twenty-five thousand shares of one thousand dollars each oE the capital stock of said corporation on behalf of tho State, and to receive the certificate of stock thorofor as payment shall bo made for the same, etc., and further declares that the subscription for stock and the issue of the bonds aforesaid are intended to extinguish the obligation of the State to indorse or guarantee the second-mortgage bonds of said corporation under the act of the General Assembly relative to said corporation, approved February 21,1870, and as a discharge of either party from all-obligations for tho issue, indorsement, guarantee, and security of said mortgage notes, as provided for in the fourth section of said act; it is provided that tho said corporation shall comply with certain conditions, formalities, and stipulations;- and shall obligate itself to commence that part of Its railroad from Yermilion-ville to Shreveport within six months, and to complete the same within the time limited therefor in tho said act.
    On the twenty-fourth of April, 1871, four days after the passage of this act. the Governor issued to said company bonds of tho State amounting to two million five hundred thousand dollars, notwithstanding the fact that the railroad from Yer-milionville to Shreveport had not been located, and not a particle of work had been done by the said company.
    Didoed, the record shows that there never has been even a survey and location of that branch of tho railroad as contemplated by the act, and all tho work that has over been done by said company thereon consists of a ditch 291 feet long, six feet wide, and one and a half deep, proved to bo worth twelve dollars. That is the extent of tho labor of said company on tho road from Yermilionville to-Shreveport after tho expiration of five years, the period within which they were required to finish the whole line.
    The obligation of tho State to guarantee the second-mortgage bonds of tho New Orleans. Mobile, and Chattanooga Railroad Company had lapsed, because the said company failed to complete the first section of forty miles of tho main line by the eighteenth of January, 1871, and failed to achieve other works and fulfill other obligations according to specifications in said act of 1870.
    Under these .circumstances the act of the twentieth of April, 1871, and the issue thereunder by tho Governor of bonds to the amount of two million five hundred' thousand dollars was the creation of a debt in contravention of the constitutional limitation which went into force in November, 1870.
    The conditions precedent having not happened, the conditional obligation of the State resulting from the legislation of I860 and 1870 has not ripened into an unconditional obligation; it can never ripen into one, because the period within which it might become so by the performance of the conditions imposed on said company have all passed, and the conditional obligation of the State to sajd company has lapsed.
    As these bonds bear date subsoijuent to the adoption of the constitutional amendment, all persons ace wiring them were charged with notice of the existence and effect of that amendment; they were charged with notice that in 1871 it was not in the power of the General Assembly and the. Governor to bind the State by the issue of those bonds as a substitute for the obligation to indorse the second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, because said obligation was conditional, and it could only become binding on the State upon the happening of the conditions precedent, and they might never happen.
    The issue of these bonds as a substitute for a debt that did not exist, and that might never exist, was to all intents and purposes the creation of a debt in 1871, in contravention of the constitutional amendment.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      A. P. Field, Attorney General, Henry C. Dibble, Assistant Attorney General, J. B. Cotton, and J. Q. A. Fellows, for plaintiff and ap-pellee.

      Kennard, Howe & Pi-entiss, for intervenors and appellants.

      Carried by writ of error to the Supreme Court of the United States.

   Wyly, J.

The State enjoined the Auditor and Treasurer from pajfing the coupons attached to the bonds issued under act No. 95 of 1871, on the ground that the issue of said bonds, amounting to @2,500,000, was in contravention of the constitutional amendment, and said bonds are not valid obligations of the State.

The Now Orleans, Mobile, and Chattanooga Railroad Company intervened.

The case was before this court in 1874, and it was remanded. Before the trial on the remandment, Williams & Guión, holding certain bonds of this issue, intervened, setting up their right as third holders to obtain payment of the coupons and to have their bonds declared valid.

The court perpetuated the injunction and decreed said bonds to bo void. Thereupon the intervenors, Williams & Guión, appealed.

It will be necessary to examine the provisions of the acts of 1869,1870, and 1871 in order to determine whether the bonds in question are valid. By act No. 26 of 1869 it was provided the New Orleans, Mobile, and Chattanooga Railroad Company shall complete the first section of forty miles within one year from the survey and location, and the whole road to Houston, Texas, within three years and six months from the survey and location, eight months being allowed for making the survey and location; “ and in case of the failure of said company to survey, locate, and construct the said main line of said railroad within the State of Louisiana, in the manner and within the time limited in this section of this act for such survey, location, and construction, the obligation of the State of Louisiana, by virtue of this act, to guarantee the second-mortgage bonds of said company (as in this act provided) for or upon that portion, of the said main line of railroad not constructed within the time limited, shall cease and determine, and none of said second-mortgage bonds for or upon that portion of said main line of railroad, not constructed within the time limited, shall be guaranteed by the State of Louisiana. But no failure of the company to complete said railroad shall effect or forfeit the rights of said company to maintain and enjoy such portions of its railroad as it shall have completed, nor any other rights or franchises secured to said company under its charter, or by the laws of the State of Louisiana, or of any other State relating thereto.”

By act No. 31 of 1870 it is provided, among other things, “that the said company be and is hereby empowered and authorized to locate, construct, and build, and thereafter to own, maintain, manage, and use a railroad with one or more tracks and suitable turnouts, from any point upon the main line of its railroad, as the same has been or may hereafter be located in the parish of St. Martin, or in the parish of Lafayette, northwesterly, on such a course or route as the directors of said company may deem most expedient and for the interest of said company to adopt, toward and to Shreveport, in the parish of Caddo, via Alexandria, in the parish of Rapides; * * * provided, however, that such of the provisi:ns of the act entitled ‘an act to expedite the construction of the New Orleans, Mobile, and Chattanooga Railroad Company in the State of Louisiana,’ approved February 17,1869, as relate to the guarantee of the second-mortgage bonds of said company shall be applicable only to such parts or portions of the said lines of railroad to Shreveport, and to said point in the parish of West Baton Rouge, as shall be surveyed, located, and constructed within five years from the acceptance of this act by said company; and said provisions, of said act shall be applicable to such parts or portions of the said last-mentioned lines of road as shall be surveyed, located, and constructed within the time last aforesaid.”

But what are the provisions of the act of the seventeenth of February, 1869, which relate to the guarantee of the second-mortgage bonds of said company ? As they are made applicable to the branch road to be extended to Shreveport, it is important to determine the obligation of the State arising from said provisions.

Section one of said act provides that “the New Orleans, Mobile, and Chattanooga Railroad Company, a corporation of the State of Alabama, be and is hereby authorized .to make. and issue, from time to time, as hereinafter provided, its bonds to be known as ‘ second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, guaranteed by the State of Louisiana,’ of such denominations as the company may elect, but to an amount not exceeding in the aggregate twelve thousand five hundred dollars for each and every mile in length of the main line of its railroad, westerly from the city of New Orleans and within tlio State of Louisiana, which-said company shall construct.” * * *

Section seven provides that the said mortgage after it has been executed shall be delivered to the Governor, and, if the same be in conformity with the provisions of this act, he shall indorse his* approval in writing thereon and cause the said mortgage thus approved to bo recorded in the office of the Secretary of State.

Section eight provides that “when the said second mortgage shall have been so delivered, approved, and recorded, and one continuous portion or section of foi 'ty miles in length of said main line of railroad, within the State of Louisiana, shall have bean constructed by the company and the rails laid thereon, the company may deliver to the Governor of tho State of Louisiana five hundred thousand dollars, or one hundred thousand pounds sterling, of such second-mortgage bonds, and the Governor shall thereon subscribe a certificate, to be written or printed on each of said bonds in the following words: ‘ The payment of the principal of the within bond when due, and of the interest thereon when it accrues, is guaranteed by the State of Louisiana, pursuant to the provisions of the act of the General Assembly of said State authorizing such guarantee,’ and shall affix the great seal of the State of Louisiana to such certificate, and tho said seal shall be attested by the signature of the Secretary of State, and the bonds shall then be delivered to the company for its general uses and purposes authorized by its charter.”

Section nine provides that “upon the construction of each additional section or portion of forty miles in length of said main lino of railroad, within tho State of Louisiana, the company may execute and deliver to the Governor of the State of Louisiana a further amount of such second-mortgage bonds, equal to twelve thousand five hundred dollars or two thousand five hundred pounds sterling, as tho company may elect, for each and every mile in length of said main lino of railroad,” and thereupon the Governor shall subscribe a certificate of guarantee, etc.

The obligation of the State under the acts of 1869 and 1870 adverted to was to guarantee the second-mortgage bonds of th'e Now Orleans, Mobile, and Chattanooga Railroad Company on each section of forty miles “which said company shall construct” within tho time mentioned in said acts, after the act of mortgage on said section so constructed shall have been delivered to the Governor, approved by him, and recorded in tho office of the Secretary of State.

This was the subsisting obligation of the State when the constitutional amendment limiting the State debt to @25,000,000 went into operation in November, 1870. As the amount of'that limitation had already been reached, the General Assembly could not create a debt thereafter. Notwithstanding tho existence of this constitutional limitation, the General Assembly passed act No. 95, approved the twentieth of April, 1871, which provides, section one, that “the Governor-of this State be and'ho is hereby authorized to subscribe for twenty-five thousand shares of one thousand dollars each of the capital stock of said corporation on behalf of this State, and to receive the certificates of stock therefor as payment shall be made for the same, which certificates shall be deposited by him in the office of the Treasurer of this State, and shall not be assignable or transferable, except by the authority of the General Assembly. That, whereas the subscription for stock and the issue of bonds therefor herein provided for are intended to extinguish the obligation of the State to indorse or guarantee the second-mortgage bonds of said corporation under the act of the General Assembly relative to said corporation, approved February 21, 1870, and as a discharge of either party from all obligations for the issue, indorsement, guarantee, and security of said mortgage bonds as provided in the fourth section of said act, the said ■corporation shall be required, at or before the complete issue of the said bonds, to file with the Secretary of State a full release and acquittance of the obligation of the State so created to guarantee said mortgage bonds and for which the provisions of this act are designed as a ■substitute and discharge; and the said corporation shall, by its express-agreement made and entered into by the vote of its board of directors, and attested by its seal and the signature of its secretary, obligate itself to commence that part of its railroad from Yermilionville to Shreveport within six months, and to complete the same within the time limited therefor in the said act of the General Assembly.”

On the twenty-fourth day of April, 1871, four days after the passage of this act, the Governor issued to said company bonds of the State amounting to $2,500,000, notwithstanding the fact that the railroad from Yer-milionville to Shreveport had not been located and not a particle of work had been done by said company.

Indeed, the record shows that there never has been a survey and location of that branch of the railroad, as contemplated by the act, and all the work that has ever been done by said company thereon consists of a •■ditch 291 feet long, six feet wide, and one and a half deep, proved to be worth twelve dollars. That is the extent of the labor of said company on the road from Yermilionville to Shreveport after the expiration of five years, the period within which they were required to finish the whole line to Shreveport.

The obligation of the State to guarantee the second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company has lapsed, because the said company failed to complete the first section of forty miles of the main line by the eighteenth day of January, 1871; they failed to complete any of the other sections of the said main line within three years after the survey and location, and they failed to survey, locate, construct, and put in running order any part of the branch road from Vermilionville to Shreveport within five years, as specified, in the said act of 1870.

Under the circumstances, was not the act of April 20, 1871, and tlio issue thereunder by theGovernor ofbonds to the amount of two million five hundred thousand dollars, the creation of a debt in contravention of the constitutional limitation then in force ? In our opinion it was. When the constitutional limitation wentinto force,-in November, 1870, the State was under an obligation to guarantee second-mortgage bonds on sections of forty miles, if properly completed on the main line and on the branch lino to Shreveport. It was under no obligation to guarantee second-mortgage bonds on uncompleted sections or portions of said lines of railroad. If the sections should be completed and the rails laid within the time and manner specified in said acts of 18G9 and 1870, and the mortgage to the State should be approved by the Governor and registered in the office of the Secretary of State, then the State would be under obligation to guarantee said second-mortgage bonds.

The conditions precedent have not happened; the conditional obligation of the State resulting from the legislation of 1869 and 1870 has not ripened into an unconditional obligation; it can never ripen into an unconditional obligation, because the periods within which it might become so by the performance of the conditions by said company have all passed, and the conditional obligation of the State to said company has lapsed. Yet the State is now called upon to discharge the alleged obligation resulting from the issue by the Governor under act of the twentieth of April, 1871, of bonds amounting to two million five hundred, thousand dollars in contravention of the constitutional amendment then in force.

As there is now no obligation resulting from the acts of 1869 and 187O' in regard to the State guaranteeing second-mortgage bonds of said company, there is no debt due said company or those holding under it. As the bonds in suit do not represent a debt incurred prior to the constitutional amendment, for there was none, they merely evidence a debt contracted since then and in violation of said amendment. Neither the Governor nor the General Assembly had authority in 1871 to issue two million five hundred thousand dollars of State bonds in payment of a subscription for stock then made. Nor had they authority to substitute bonds of the State, unconditional obligations, for the conditional obligation arising from the legislation of 1869 and 1870 prior to the happening of the conditions precedent in said act. . ^

As these bonds bear date subsequent to the adoption of the constituí tional amendment, all persons acquiring them are charged with notice of the existence and effect of that amendment; they are charged with notice that in 1871 it was not in the power of the General Assembly and the Governor to bind the State by the issue of those bonds as a substitute for the obligation to indorse the second-mortgage bonds of the New Orleans, Mobile, and Chattanooga Railroad Company, because said obligation was conditional, and it could only become binding on the State upon the happening of the conditions precedent, and they might never happen. The issue of these bonds as a substitute for a- debt that did-not exist, and that might never exist, was to all intents and purposes the creation of a debt in 1871, in contravention of the constitutional amendment.

It is therefore ordered that the judgment herein perpetuating the injunction and declaring void the bonds issued under act No. 95 of the acts of 1871, amounting to two million five hundred thousand dollars, be affirmed, appellants paying costs of appeal.

TaliafeRRO, J.,

concurring. The bonds were issued without the authority and against the authority of the State, which had prohibited the increase of the public debt. The State through its amendment to the constitution in 1870 peremptorily forbade such increase. The Legislature issued these bonds in violation of the .constitutional provision prohibiting an increase of the public debt. The issuing the bonds was an increase of the debt, if the payment of them could be enforced. But whatever is done in violation of a prohibitory law is null and can have no effect. C. C. art. 12; 23 An. 267; State ex rel. Samuel Smith vs. the State Treasurer. Ab initio, they were null, and no vitality or force could be infused into them by their falling into the hands of third holders. Instruments of the kind have not the essential properties of promissory notes under the law merchant, and even securities of the latter kind are vitiated in the hands of bona fide holders before maturity and without notice, when the consideration is unlawful. Parsons on Notes and Bills, vol. 1, pages 212 and 213.

I concur in the decree just read.

Ludelixg, C. J.,

dissenting. The evidence in this record shows that the intervenors acquired the bonds in question in duo course of trade, for value, in good faith, and before maturity.

■ The act No. 26 of the General Assembly of 1869 authorized the bonds of the New Orleans, Mobile, and Texas Railroad Company to be guaranteed by the State, on certain conditions.

The act No. 31 of the General Assembly of 1870 authorized bonds of the company to be indorsed for a branch road to Shreveport. Both these acts were enacted before the adoption .of the constitutional amendment limiting the State debt. This amendment was ratified by a general election, in November, 1870. So that the obligation of the State to indorse the bonds of said company, on certain conditions, existed when the constitutional amendment was adopted.

Act No. 95 of the General Assembly of 1871 authorized the Governor to issue the bonds of the State in lieu of indorsing the bonds of the company, on condition that the company would release the State from its obligation to indorse and issue certificates of stock of the company to the State for the amount of the State bonds. In other words, it authorized the Governor to substitute the bonds of the State, instead of indorsing bonds of the company to a like amount, if the company would issue to the State certificates of stock. Certainly this did not create a debt; it was the substitution of one obligation for another, and was not prohibited by the constitution. The debt was the same, the evidence of it was changed. 23 An. 405, 622; 26 An. 561.

Rut it is said the conditions imposed on the company were not -performed before the adoption of the amendment. That fact might be important if the company were claiming the bonds or their payment. But Williams & Guión are innocent third holders of the bonds, which arc negotiable in their character, and whether the conditions wore performed or not, they had a right to presume that they had been performed, and that the bonds were regularly issued.

It seems to me that the rule is universal that where the power to make the obligation exists, and the law under which the bonds are issued authorizes the officers who sign them to execute them, and the bonds purport on their face to have been issued in pursuance of the statute, the bona fide third holder is protected, whether the conditions imposed on the party in whose favor the bonds issued have been performed or not. 21 How. 545; 9 Wall. 414; 1 Wall. 93, 393, 297; 5 Wall. 784; 7 Wall. 82, 619; 13 Wall. 297, Pendleton Cy. vs. Amy.

I therefore dissent from the opinion of the court.

Rehearing refused.


author: Wyly, J.

text:
    No. 5404.
    State of Louisiana ex rel. Mrs. W. P. Noble vs. Charles Clinton, Auditor. State of Louisiana, Intervenor.
    whore the appropriations are not in excess of revenues, no debt is created in contemplation ol the constitutional a-r ondmont limiting the Slate debt to twenty-live millions ol dollars. As it is not shown in this instance that the appropriation in lavor ol relator was beyond the revenues of the year in which it was made, this court concludes that no debt was contracted in violation of the con - stitution.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Breaux, Fenner <£• Hall, for relator and appellant.

      A. R

      Field, Attorney General, and Charles S. Bice, for defendant and interve-nor, appellee.
   Wyly, J.

The relator appeals from the judgment refusing to make peremptory the mandamus sued out by her to compel the Auditor to issue to her a warrant of the State for thirty-five hundred dollars, the amount appropriated to her by act No. 118 of the acts of 1874.

The State intervened and set up the invalidity of the claim, because at the time the act was passed the debt of the State exceeded twenty-five millions of dollars,, and no debt could be contracted by reason of the amendment of the constitution limiting the State debt to said amount.

On the first of April, 1874, when act No. 118 was passed, granting or appropriating thirty-five hundred dollars to the relator, the State debt largely exceeded the constitutional limit. Therefore the claim set up by the relator is invalid, because the statute creating it was unconstitutional. The relator, however, contends that this statute passed for her relief was a necessary expense of the State, and whether it was or not was a question resting alone in the. discretion of the General Assembly, and that the judicial department can not interfere with the exercise of the discretion.

If the principle contended for bo true, the constitutional provision limiting the State debt to twenty-five millions of dollars would be meaningless and without effect, because in the exercise of legislative discretion the General Assembly could go on from time to time increasing the State debt beyond the limit of twenty-five millions of dollars. ■ •

We apprehend that no discretion is involved in the matter regarding the power of the General Assembly to create a debt after the limit fixed in the constitution has been reached. It was reached when the statute for the relief of the relator was enacted creating a debt of thirty-five hundred dollars.

In declaring void an enactment violating this provision of the constitution the court is merely performing a duty which in no manner relates to the powers confided solely to the discretion of the General Assembly.

Judgment affirmed.

Ox Reheakixg.

On the first of April, 1874, the Governor approved act 118, appropriating out of any money in the treasury not otherwise appropriated three thousand five hundred dollars “for the purpose of compensating Mrs: W. E. Noble for services rendered in completing a manuscript index of all the acts of the General Assembly.”

After complying with the requirement stated in another part of said act, which entitled her to be paid, Mrs. Noble applied to the Auditor and Treasurer for payment. This being refused, she brings this mandamus proceeding to compel the Auditor to issue a warrant for said amount.

The answer alleges that the act No. 118 is void, because it creates a debt, which is prohibited by the constitutional amendment limiting the State debt to twenty-five millions of dollars.

The State through the Attorney General intervened and set up the ha'iie defense, alleging that the State debt had reached the constitutional limitation when said act was passed, that the General Assembly had no power to contract debts beyond the ordinary and legitimate expenses of the State government; “ that the appropriation in said act was the creation of a debt not necessary, nor a part of the legitimate expenses of the State government.”

At the trial the court discharged the rule and refused to make the mandamus peremptory. Thereupon the relator appealed.

In our former decision we held that act No. 118 created a debt in contravention of the constitutional amendment limiting the State debt to twenty-five millions of dollars, which sum had already been reached. But upon further examination we find we erred, because the act in question made an appropriation out of any moneys in the treasury not otherwise appropriated, and the record fails to show that this appropriation, added to the other appropriations for 1874, was in excess of the revenues for that year. If in 1874 the aggregate amount of the appropriations out of the general fund did not exceed the amount of revenues being collected for said fund during that year, no debt would be created by such appropriations or by either of them. Where the appropriations are not in excess of revenues, no debt is created in contemplation of the constitutional limitation referred to.

The General Assembly had as much right to make an appropriation to' pay Mrs. Noble for services rendered in completing the manuscript index of the statutes of the State as it had to make appropriations for other expenses in the administration of the government. As it is not shown that this appropriation was beyond the revenues of the year in which it was made, we conclude that no debt was contracted in violation of the constitution.

It is therefore ordered that our former decree herein be set aside, that the judgment appealed from bo annulled, and that the mandamus herein bo made peremptory at the costs of defendant.

The Chief Justice adheres to the previous decision.


author: Morgan, J.

text:
    No. 6257.
    Caroline Armand and Husband vs. F. E. Dumas, State Tax Collector.
    Plaintiff refuses to pay lior State tax on a house which she owns in the city of New Orleans, on tho ground that she rents it for the use of a public school.
    Plaintiff relies on Mrs. Lefrane’s ease. In that case it was shown, not only that her house was used for the purposes of education, but that she kept the school. Here the plaintiff does not keep the school. She owns tho property, and derives revenue from tho rent thereof. There is no reason why she should not pay taxes on such property, just as those who rent houses to dry-goods merchants are held to pay theirs.
    APPEAL from, the Superior District Court, parish of Orleans. Haw-Idns, J.

      Julien A. Seghers, for plaintiffs and appellants.

      Henry C. Dibble, for defendant and appellee.
   Morgan, J.

Plaintiff owns a house in this city. She rents it for the use of a public school.

Called upon to pay the State tax thereon, she says that the property, being used as a school, is exempt from taxation, and she obtained an injunction against the defendant prohibiting him from seizing and selling the same. She relies upon the decision in Mrs. Lefrane’s case (not yet reported, Opinion Book, 44, p. 170,) to reverse the decision of tho district judge, which dissolved the injunction.

In Mrs. Lefranc’s case it was shown not only that the house, was used for the purposes of education, but that she kept the school. Here the plaintiff does not keep the schopl. She owns the property, and derives revenue from the rent thereof. We do not see why she should not pay taxes on such property, just as those who rent houses to dry-goods merchants are held to pay theirs.

We think the judgment should be affirmed.

Rehearing refused.


author: Moegan, J.

text:
    No. 5524.
    Richard Francis vs. Mrs. Marie Louise Martin, Widow of Robert Johnson, et al.
    The judgment appealed from Is one rendered upon confirmation of a default. The judgment was rendered on the twentieth of November, 1871, and was signed tho same day, that being tho last day of court. Notice of judgment was issued on the first of December following, and was served on the seventh. Application for an appeal was mado on the tenth of December, three days after the notice of judgment was served. This was within tho delay granted by the law.
    It is contended in support of the motion to dism iss, that it must be governed by the proviso appended to article 575, Code of Practice. But the whole of tho article relied on must be taken together, and from the whole of the article it is apparent that the ten days commence to run from the day the judgment has been notified to the party east.
    It is urged that tho article in Question should read, “ whenever no answer has been filed,” instead of “whenever an answer has been filed;” but no reason can bo seen for changing tho whole force of the article.

      Tho decision in the ease oí Lazarre vs. Snow, 1 R., p. 60, is authority, it is true, for supporting the position that “ the period after the lapse of which no appeal will lie is to be computed from tho day when the judgment was signed, not from that on which it was notified to the party against whom it was given.” It would control tho court were tho law now what it was when that case was doeidod. But tho law has been changed. This decision was rendered in 1841. The statute changing tho 1 aw was passed in 1843.
    A married woman is sued on an obligation due by her alone; judgment is asked against her alone, and her husband is cited to authorize her to appear and defend the suit,and no appearance is made either by the wife or the husband, and, after proper sorvieo of the petition on each, no judgment by default has been taken against the husband, and no authorization from tho judge was given or asked for to enable her to defend the suit. To complete the statement, it must be addod that the wife in this ease was sued as the wife of Ragas, that she was cited . as his wife, that judgment by default was entered up against her as his wife, and that the default was made flnal against her as his wife. The Question whether said judgment is flnal must be answered affirmatively.
    Legal notice of a suit against the wifo (said wife being cited) having boon served upon tho husband is sufficient to bring her properly into court. Tho notice of the suit to the husband is sufficient, if he makes no objection, to allow her to stand in judgment. If ho has not come into court and has not authorized.his wife to make defense, it must be considered that he thought there was none to make, and, under these circumstances, to obtain an order from the judge authorizing her to stand in judgment would be a useless formality. She is in court from tho fact that the suit is brought against her. her husband being cited to authorize her. Being in court, proceedings may then be carried on against her in tho same manner as they are against other defendants. If she does not answer, default may bo taken against her. If the default, when taken, is not regularly set aside, it may be confirmed.
    The error assigned, that the judgment was rendered against the defendant without a judgment having been rendered at the same time against the widow in community of the surety, is not established. All tho parties to the suit are sought to be made liable in solido. It is as though separate suits had been instituted against them all, and judgment could have been rendered against each of them, or all of them, or one of them alone. With the effect of the judgment against the co-defendants, the plaintiff had nothing to do. If he sues-a number of persons and seeks judgment against each of them in solido, and judgment is rendered only against one and he is satisfied, the defendant who is alone condemned can not complain of the judgment in so far as he is concerned. The defendant’s rights as against his co-obligors are separate and distinct from the plaintiff’s rights against him.
    'The third error assigned, that the bond sued on is not conditioned according to law, can not be maintained for the reasons given in the judgment.
    The security on the bond was Robert Johnson. He died leaving a widow in community and several children (defendants herein), who were put in possession of his estate. The widow and children wore sued. Pending the suit, tho widow died, and the proceedings were carried on and completed against tho eliildron, the succession of the mother apparently not having been opened.
    If the Question was between the original parties to the bond — principal and surety— the conclusion would be that thoy were both bound in solido. But the parties before the court are the heirs of tho surety. .As to them the obligation is joint; they inherit the rights, credits, and obligations of their ancestor, but as the rights and credits of their ancestor are distributed among them, each according to his share, so are the obligations, each being bound for his proportion. The position which they assume, that they were bound for one-half of the obligation, because their mother was put in possession of one-half of the estate of their father, is untenable. The obligation was an obligation of the community. It was duo by the father. There was no succession to divide until the community debt was paid. As heirs of their father, they are responsible for his obligations, they having been put in possession of their share of his estate.

      A PPEAL from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      C. Howard Me Caleb, for plaintiff and appellee.

      Sambola & Dacros, for defendants and appellants.
   ON Motion to Dismiss.

Moegan, J.

Appellee moves to dismiss this appeal on the grounds—

First — That a suspensive, appeal was illegally granted.

Second — Because the appeal was not applied for within the delays allowed by law.

Third — Because the application for an appeal was granted after the expiration of more than ten days after the adjournment of the court by which the judgment was rendered.

The first ground need not be noticed, as the alleged illegality of the application and order of appeal are contained in the second and third grounds.

The second and third grounds may be considered together.

The judgment appealed from is one rendered upon confirmation of a default.

The judgment was rendered on the twentieth of November, 1874, and was signed the same day, that being the last day of court.

Notice of judgment was issued on the first of December following, and was served on the seventh.

Application for an appeal was made on the tenth of December, three days after the notice of judgment was served.

This was within the delays granted by the law. Taylor vs. Woodward, 25 An. 212. Riley vs. Howell, lately decided.

Counsel for appellee contends that his case is governed by the proviso appended to article 575, O. P., which says that “ in the country parishes no execution shall issue in eases where an appeal lies, until ten days after the adjournment of the court by which the judgment was rendered, within which delay a party may take a suspensive appeal on filing petition and appeal bond, as now provided by law.” But the whole of the article relied on must be taken together. Now, one part of the article declares that “ whenever an answer has been filed in a suit in which the defendant has had personal service made upon him to appear and file his answer, or when a'judgment has been rendered in a ease after answer filed by the defendant, or by his counsel, the party cast in the suit shall be considered duly notified of the judgment by the fact of its being signed by the judge,” and this precedes the proviso relied upon. From the whole of the article it is, we think, apparent that the ten days commence to run from the day the judgment has been notified to the party cast.

It is urged upon us that the article in question should read “ whenever no answer has been filod,” etc., instead of “ whenever an answer has been filed,” but we see no reason for thus changing the whole force of the article.

It is also pressed upon us that the case of Lazarre vs. Snow, 1 R., p. 60, is authority for supporting the position that “ the period after the lapse of which no appeal will lie is to be computed from the day when the judgment was signed, not from that on which it was notified to the party against whom it was given.” The decision quoted does decide in that way, and it would probably control us were the law now what it. was when that case was decided. But the law has been changed. This decision was rendered in 1841. The statute changing the law was passed in 1843.

The motion to dismiss is refused.

Os the Merits.

In the suit of Richard Francis vs. W. T. Lavine et al., Francis obtained a writ of sequestration under authority of which the sheriff took into his possession the pilot-boat Robert Bruce. The sequestration -was set aside and the boat released upon Lavine et al. furnishing bond in the sum of fifteen hundred dollars. Robert Johnson was surety on the bond.

Robert Johnson died, and his widow, as widow in community, Adrien Johnson, and Marie Louise Johnson, wife of Manuel Ragas, were put in possession of his estate.

The suit of Richard Francis vs. Lavine et al. was decided in favor of the plaintiff and against the defendants, in solido, for one thousand dollars, and it was ordered that the boat Robert Bruce be sold.

Plaintiff alleges that Lavine neglects and refuses to restore the boat into the custody of the sheriff, and that he refuses to comply with the conditions of his bond.

He brings this suit against W. T. Lavine, Mrs. Louise Martin, widow-in community of John B. Johnson, Adrien Johnson, and Marie Louise Johnson, wife of Manuel Ragas, heirs of John B. Johnson, in possession of his estate, and he prays for judgment against them, in solido, for one thousand dollars, with legal interest from the seventh of June, 1869, until paid.

It is important to observe that as regards Mrs. Marie Louise Johnson, wife of Manuel Ragas, the petition prays that Manuel Ragas be cited to ■authorize and assist his wife to appear and defend the suit, and that a ■copy of the petition be served on him.

Proper service of the petition and citation was made on all the parties defendant, including Manuel Ragas, and judgment by default was taken ¡against Lavine, John B. Johnson, Adrien Johnson, and Mrs. Marie Louise Johnson, wife of Ragas.

No default was taken against Mrs. Louise Martin, widow of John B. Johnson, or against Manuel Ragas. The default against Lavine was set aside upon his filing an answer.

As against John B. Johnson, Adrien Johnson, and Marie Louise Johnson, wife of Ragas, the default was confirmed, and they were condemned in solido to pay the plaintiff one thousand dollars, with five per cent interest from seventeenth June, 1869, until paid. This judgment was rendered on the twentieth November, 1874, and notice thereof was given to the defendants on the first December following. They appealed, Mrs. Ragas being authorized thereto by her husband.

The case is presented to us on an assignment of errors, as follows:

First — That Mrs. Ragas, appellant, is a married woman, and that the-judgment appealed from was rendered by default, without a defense, and without her having been authorized by her husband or by the court to defend the suit, which she could not defend without such authorization;

Second — That judgment was rendered against appellants without a judgment having been rendered at the same time against the widow in community of the surety, who, being dead, was never cited; or against her heirs and representatives, who were never made parties to this suit;

Third — That the bond is not conditioned according to law, and is not therefore binding on the surety or his heirs; and

Fourth — That under no circumstances could judgment be possibly rendered against them except for one-half of the amount thereof as heirs of their father, the surety, and that only jointly, each one for his virile share in said half, and without interest except from judicial demand.

First — In the case of Gilmore vs. Gilmore, 9 An. 197, where the petition concluded with the prayer that the defendant and her husband be cited to answer the petition, it was served on the husband in person, and a judgment by default rendered against both; it was held that the suit was brought in the manner required by article 118, Code of Practice, and that the feigned or tacit issue resulting from a judgment by default was binding on the wife and dispensed with the authorization by the judge, which is only necessary in the absence of authorization, express or implied, of the husband.

In Hall vs. Carroll, 10 An. 412, the suit was on an obligation made by the wife with the husband’s authorization ; both husband and wife were cited; judgment by default was rendered and confirmed. The court •said: “ The C. P. 118 provides that when the suit is brought against the wife for a cause of action relative to her separate interests, the husband must be made a party, and, if the husband is absent, the plaintiff must demand that the wife be authorized by the judge before whom the suit is brought to defend it alono, if she bo of age. The husband in the present case was not absent. Citations wore served personally on both .the wife and the husband. They were not bound to defend the suit. The effect of the default was to create a tacit joinder of issue as to both husband and wife, and to fully justify a final judgment against the wife.”

In the ease of Stone, Syndic, vs. Tew et al., 9 R. 194, (cited in Hall vs. Carroll by the court), the court said:

“ This suit is brought on three notes drawn to the order of plaintiff by Sarah Y.'Tew, the wife of William M. Tew, from whom she is separated in estate, and by Wiley B. Grayson. Sarah Y. Tew, whose husband was .made a party to this suit, suffered a judgment by default to go against her, while her co-dofcndant pleaded the general issue and want of an amicable demand. There was a final judgment entered up against both, from which they appealed.
“It is urged by tlio appellants’ counsel that the judgment of the lower court must be reversed as to Sarah Y. Tew, because the judgment by default given against her could not be made.flnal, the plaintiff having failed to have her authorized to appear and defend the suit.
“ The plaintiff, in our opinion, did ail he was legally bound to do when, ■in compliance with article 118 of the Code of Practice, he brought the ■present suit against both of the defendants, Sarah, and her husband, William M. Tew. If the latter, after having been made a party defendant, absented himself or refused to assist his wife in defending the suit, she could have obtained the necessary authorization by applying to the judge below. As she made no such application, we are bound to presume that her husband never refused to authorize her to stand in judgment, and that when she suffered a judgment by default to be rendered against her and confirmed, she was then acting under his advice and authorization. This presumption is much strengthened by the subsequent appearance in the suit of William M. Tow, who joined and assisted his wife in taking the present appeal.”

The last case is relied upon by the plaintiff as settling the question before us. The two former cases cited, also by him, are relied upon by the defendants in support of their defense.

The difference, or at all events the distinction, between the cases in the ninth and tenth Annuals and the one before us is that in both those cases the husbands were joined in the actions, while here the husband is only cited for the purpose of authorizing his wife to defend the suit, and in Stone’s case the suit was brought against both husband and •wife. And the question wo have to decide is this: When a married woman is sued on an obligation due by her alone, and judgment is asked against her alone, and her husband is cited to authorize her to appear and defend the suit, and no appearance is made either by the wife or husband, and, after proper service of the petition on each, no judgment by default has been taken against the husband, and no authorization from the judge was given or asked for to enable her to defend the suit, is a judgment by default rendered against her and made final binding upon her ? To complete the question, we must remark that the wife in this case was sued as the wife of Ragas, that she was cited as his wife, that judgment by default was entered up against her as his wife, and that the default was made final against her as his wife.

The only author who seems to have written upon this particular question is Duranton. At least, ho is the only one to whom we have been referred, and wo have examined others, who seem to have not consid ored it. Duranton says: “He who sues tho wife should at the same time sue the husband to authorize her; and if he does not appear, or refuses, the court seized with the demand supplies tho marital authorization.” 2 Duranton, No. 446.

If his conclusion is that when a married woman is sued for her own debt, and her husband is cited to appear and authorize her to defend the suit, and he makes no appearance, the authorization of tho judge is still required, we can not agree with him.

Why is it that when a wife comes into court either as plaintiff or defendant she must be authorized thereto by her husband, or, in his default, by the judge? As regards the husband, it is because she is considered to be under his guidance and protection; because what concerns her concerns him; because he is tho natural as well as legal guardian of her rights ; because it is presumed that he would not allow her to institute proceedings which were not well founded in law, or needlessly incur the responsibilities of' a losing suit. As regards the judge, it is to protect her, at last, from the possible injustice of her husband. But it seems to us that legal notice of a suit against tho wife, the wife having been cited, having been served upon the husband, is sufficient to bring her properly into court, and that the notice of the suit to tho husband is sufficient, if he makes no objection, to allow her to stand in judgment. If he has not come into court, and has not authorized his wife to make defense, it must be considered that he thought there was no defense to make, and, under these circumstances, to obtain- an order from the judge authorizing her to stand in judgment would be a useless formality. She is in court from the fact that tho suit was brought against her, her husband being cited to authorize her. Being in court, proceedings may then be carried on against her in the same manner that they are against other defendants. If she does not answer, default may be taken against her. If the default when taken is not regularly set aside, it may be confirmed.

Second — The next error assigned, that the judgment was rendered against the appellants, without a judgment having been rendered, at the same time, against tlie widow in community of the surety, is not, we think, established. All the parties to the suit are sought to bo made liable in solido. It is as though separate suits had been instituted against them all, and judgment could have been rendered against'each of them, or all of them, or one of them alone. With the effect of the judgment against the co-defendants the plaintiff had nothing to do. If he sues a number of persons and asks judgment against each of them in solido,-and judgment is 'rendered only against one and he is satisfied, the defendant who is alone condemned can not complain of the judgment in so far as ho is concerned. The defendant’s rights as against his co-obligors are separate and distinct from the plaintiffs rights against him.

Third — The third error assigned that the bond sued on is not conditioned according to law.

Applicants rely on the cases of Barker vs. Morrison et al., 4 An. 372; King vs. Baker, 7 An. 572; Mason vs. Butler, 12 An. 69.

In the first case, Barker et al. instituted suit against Doane et al., and ■certain movables were seized, which were surrendered to Doane upon his ¡giving bond, with Morrison and Deacon as his sureties, in the sum of twenty-five hundred dollars. The condition of the bond was that t:if the said defendant shall not send the above-described property out of the jurisdiction of this court, and that he will faithfully present the same in case he should be decreed to restore the same to the plaintiffs, and shall satisfy such judgment as may be rendered in the suit pending as above mentioned, then this obligation to bo void ; otherwise, to remain in full force.”

In the case before us the condition of the bond upon which the property sequestered was released was that “ if the said William T. Lavine, .and Robert Johnson, security, shall satisfy such judgment as may be rendered against the said defendants in the suit pending as above mentioned, then this obligation to be void ; or else to remain in full force.”

In the Barker case judgment was rendered against Doane et al. for $763 33, and execution issued, which was returned nidia bona. Plaintiffs then sued the sureties on the bond, claiming judgment for the amount of the judgment against Doane. The value of the property released under the bond does not appear to have been set up or established. The court said: It is true that the literal terms of the bond authorized such a decree,” which was in favor of the plaintiff. But it also said: “The legal intent of the instrument being to secure the presentation of the property, to be applied toward the satisfaction of the plaintiff’s privilege when definitively adjudged, and the penalty of the bond being inserted to secure the performance of that act, upon breach of the condition, the question is, quantum damnificatus. The injury sustained by the plaintiffs is the value of the sequestered property, which, if it had been pre¡sented, would have been applied to the payment of plaintiff’s claim. A judgment resting upon the mere standard of the amount of the plaintiff’s claim, without reference to the value of the property sequestered, is, therefore, erroneous. As we have no evidence of the value of the property, the suit must be dismissed;” and the judgment was reversed as in case of nonsuit. Here, the bond was for fifteen hundred dollars. The judgment against the defendants in the original suit was for one thousand dollars. The demand made against the defendants is for one thousand dollars. The evidence is that the interest of the plaintiff in the property released under the sequestration, and which was not returned after judgment, was worth one thousand dollars. The petition and the proceedings seem to have been conducted with regard to the views expressed in the Barker and Morrison case. That they were regular and proper we have no doubt.

The other cases relied upon do not touch the questions at issue in this proceeding.

Fourth — The surety on the bond was Robert Johnson. Robert Johnson died, leaving a widow in community and several children (defendants herein), who were put in possession of his estate. The widow and children were sued. Pending the suit, the widow died, and the proceedings were carried on and completed against the children, the succession of the mother, apparently, not having been opened.

These children, the present appellants, now say that the judgment against them being in solido is erroneoris ; that, under no circumstances, are they more than jointly bound as heirs of their father, each for his virile share in said half. In other words, that, if bound at all, they are bound as heirs of their father, who w7as only bound for one half the debt, and that for this half the judgment must be distributed among them.

Counsel for appellee contends that the obligation here sued upon has for its object the delivery of a boat, and is therefore indivisible. His argument is, that the original defendant, Lavine, and his sureties, bound themselves to deliver the entire vessel which had been sequestered and released on bond, to be sold for partition, or to pay the value. As they and their heirs have failed to deliver, as they were bound to do, the entire object which they were bound to deliver, as a whole thing, which could not be partially delivered, it follows, he says, that they are bound to pay the whole value which stands in the place of the thing itself.

If the question was between the original parties to the bond, principal and surety, there could be but one answer to it. They were both bound in solido. But the parties before us are the heirs of the surety. As to them the obligation is joint. They inherit the rights, credits, and obligations of their ancestor, but as the rights and credits of their ancestor are distributed among them, each according to his share, so are the obligations, each being bound for his proportion. The position which they assume, that they are bound for one half of the obligation, because their mother was put in possession of one half of the estate of their father, is untenable. The obligation was an obligation of the community. It was due by the father. There was no succession to divide, until the community debt was paid. As heirs of their father they are responsible for his obligations, they having been put in possession of their share of his estate.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended; and it is now ordered, adjudged, and. decreed that there be judgment in favor of the plaintiff and against the defendants, appellants, for the sum of one thousand'"dollars, each for his virile share, with interest as claimed in the petition; the costs of the lower court to be paid by the defendants, those in this court to be paid by the appellees.


author: Taliaferro, J.

text:
    No. 4804.
    Leberman & Co. vs. New Orleans, Florida, and Havana Steamship Company et al.
    An action can only be brought by one having a real and actual-interest which ho pursues, but as soon as that interest arises ho may bring his action.
    The defendants’ counsel in this case properly say that plaintiffs come into court suing and appearing for the benefit of whom it may concern; they .do not allego that defendants hayo causod them damage, but allege at the same time that they have sued their consignees, Smith & McKenna, for the value of the soap shipped to them. If Smith & McKenna are liable for the full value of the soap, notwithstanding the damage, then the loss resulting from such damage must fall upon Smith & McKenna, and plaintiffs, by their own allegations haying no interest in it, have no right of action for its recovery.
    APPEAL from tlie Fourth. District Court, parish of Orleans. Lynch, J.

      Hornor & Benedict, for plaintiffs and appellants.

      Leovy <& Monroe, for defendants and appellees.
   Taliaferro, J.

In November, 1871, the plaintiffe, it appears, shipped from Philadelphia to New Orleans one thousand boxes of soap consigned to Smith & McKenna, who refused to receive it on account of its being-in a damaged condition. The plaintiffs have sued Smith & McKenna for the price of the soap, and that suit is now pending. They allege in this suit (No. 38,422 of the docket of the Fourth District Court) that the defendants, the steamship company, are responsible for the value of the soap, and for all damages incurred by any party interested, and that the damages now amount to more than one thousand dollars, and that it is necessary to institute this suit to interrupt the prescription of one year. The plaintiffs therefore pray that after due proceedings luid the steamship company be condemned to pay the plaintiffs, Leberman & Co., for the use of whom it may concern, the sum of thirty-three hundred dollars, with interest from the ninth of November, 1871, being the value of the soap, and the further sum of one thousand dollars as special damages for storage, counsel fees, costs of court, etc.

To this petition the defendants filed the following exceptions:

First — That plaintiffs are not authorized to sue and can not legally sue for whom it may concern.

Second — That they allege no interest in the suit and ask no judgment in their favor.

Third — That they set forth in their petition that in their own suit against Smith & McKenna they have alleged that Smith & McKenna are responsible to them for any damage that may have been incurred.

Fourth — That plaintiffs have set forth no cause of action in this suit.

The exceptions were sustained and the suit dismissed. Plaintiffs have •appealed.

We find no error in the judgment.

“ An action can only be brought by one having a real and actual intcr-•est which he pursues, but as soon as that interest arises he may bring his action.” O. P., article 15.

The defendants’ counsel properly say: “ The plaintiffs come into court ■suing and appearing for the benefit of whom it may concern; they do not allege that defendants have caused them damage, alleging at the same time that they have sued their consignees for the value .of the .soap. If Smith & McKenna are liable to them for the full value of the .soap, notwithstanding the damage, then the loss resulting from such damage must fall upon Smith & McKenna, and plaintiffs by their own ■allegations having no interest in it, have no right of action for its re•covery.”

Judgment affirmed.


author: MORGAN, J.

text:
    No. 6157.
    A. P. Guilfont for the Use of, etc., vs. the Parish of Ascension.
    Nothing in tlie record shows that G-uilfont was authorized to institute this action. The warrants sued upon wore transferable by delivery. They are in the nature of a promissory note or bill of exchange, and it has been held that the payee of a note who has indorsed it can not maintain any action on it, even for the use of his indorsee.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Flagg, J.

      JR. N. & Wm. Sims, for plaintiff and appellant.

      F. Duffel, for defendant and appellee.
   MORGAN, J.

Plaintiff, who resides in the parish of Ascension, sues the defendant, for the use of Margaret Kentzel, also of that parish, for $1405 90, which amount he claims to be duo him for services rendered the defendant as keeper of the parish jail during the years 1871 and 1872.

The evidence in support of tho demand is certain warrants drawn by the secretary of the police jury on the parish treasurer.

Defendant excepts to the.proceeding on tho ground that the plaintiff had no right to institute this action in his own name; or in the name of his transferee, Mrs. Kentzel, alleging that neither of them had any interest in the warrants described in the petition.

It is in evidence that the warrants in question were transferred by Guilfont to Mrs. Kentzel.

Although Guilfont and Mrs. Kentzel reside in the parish where this suit was brought, nothing in the record Shows that Guilfont was authorized to institute the action. Interrogatories were propounded to them both as to tlicir title, in the answer which was filed. Guilfont answered. Mrs. Kentzel did not. The warrants were transferable by delivery. They are in the nature of a promissory note or bill of exchange, and it has been held that the payee of a note who has indorsed it can not maintain any action on it, even for tho use of his indorsee. Moore vs. Maxwell, 2 N. S. 249. The authority of that case sustains tho judgment of the district court, which was one of nonsuit.

Judgment affirmed.


text:
    No. 6110.
    City of New Orleans vs. H. S. Buckner.
    Defendant fails to show that ho resorted to tho mode provided by law and within the time prescribed to have the error of assessment of which he complains corrected. The letter he addressed to the Administrator of Assessments was not. supported by affidavit or other evidence showing specifically tho amount and valuation of his personal property.
    If the Question of the correctness of the assessment were now before this court there is nothing in the record to justify a reduction in the assessment. The testimony of tho defendant is indefinito, evasive, and unsatisfactory, and can not overcome the weight that should bo given to an assessment made by officers acting under oath.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Sam. P. Blanc, Assistant City Attorney, -for plaintiff ancl appellant.

      T. Gilmore & Sons, for defendant and appellee.
   Wyly, J.

Defendant resists the demand for the amount of his city taxes on personal property for 1875 on the ground that the valuation thereof in the assessment is excessive, and that he made proper application for its reduction, without success. Defendant fails to show that h& resorted to the mode provided by law and within the time prescribed to have the error of which he complains corrected. 19 An. 474; 21 An. 439. Tho letter ho addressed to the Administrator of Assessments was not supported by affidavit or other evidence showing specifically the amount and valuation of his personal property. And if the question of the correctness of the assessment were now before tho court we find nothing in the record to justify a reduction of the assessment. The only evidence offered on this point is the testimony of defendant, which is indefinite, evasive, and unsatisfactory. He fails to give a statement of what his capital consists and the true value thereof, also the amount of money he has at interest. Such evidence can not overcome tho weight that should be given to an assessment made by officers acting under oath.

It is therefore ordered that the judgment herein,be annulled, and it is decreed that plaintiff recover of defendant five thousand dollars with ten per cent interest from thirty-first March, 1875, and all costs.

Rehearing refused.


text:
    No. 6075.
    Jean Mandére vs. Francois Bonsignore and New Orleans Savings Institution.
    Tho New Orleans Savings Institution excepted to the jurisdiction, of the Fourth District Court on the ground that said Now Orleans Savings institution is a corporation established by act of the General Assembly and domiciled in the parish of Orleans, and that by the act creating the Superior District Court that court alone has jurisdiction as to this defendant. The court a qua erred in maintaining this exception.
    It is true act No. 2 of the acts of 1873, organizing the Superior District Court, declares that said court shall have exclusive jurisdiction over all eases in which. " any corporation established by act of the General Assembly and domiciled in the parish of Orleans shall be a partybut this defendant has failed to adduce proof showing it is “ a corporation established by act of the General Assembly.”
    If such an act exists it is a private statute which should have been introduced in evidence. It is not a general law of which the court will take notice.
    APPEAL from, the Fourth District Court, parish of Orleans. Lynch, J.

      G. Schmidt, for plaintiff and appellant.

      Clarke, Bayne £ Menshaw, for defendant and appellee.
   Wyly, J.

Plaintiff sued the defendant, Bonsignore, the drawer of a check on New Orleans Savings Institution, for two thousand eight hundred dollars, and prayed that he be condemned to pay said amount and the said Savings Institution be “ ordered to pay tho aforesaid check as a transfer to that extent of the funds of Bonsignore in their possession.” Tho New Orleans Savings Institution excepted, on the ground that the Fourth District Court was without jurisdiction, because it is a corporation established by act of the General Assembly and domiciled in the parish of Orleans, and by the act creating the Superior District Court that court alone has jurisdiction as to this defendant.

The court, maintaining- this exception, dismissed the suit as to the New Orleans Savings Institution, and plaintiff appealed.

Wo think the court erred.

It is true act No. 2 of the acts of 1873, organizing the Superior District Court, declares that said court shall have exclusive original jurisdiction over all eases in which “ any corporation established by act of the General Assembly and domiciled in the parish of Orleans shall be a party;” but this defendant has failed to adduce proof showing it is a “ corporation established by act of the General Assembly.” If such an act exists, it is a private statute, which should have been introduced in evidence; it is not a general law of which this court will take notice.

It is therefore ordered that the judgment herein be annulled, and that this cause bo remanded for trial on the merits according to law, appellee paying costs of appeal.

Rehearing refused.


author: Ludeling, O. J.

text:
    No. 6226.
    Louise B. Williston and Husband vs. Schmidt & Zeigler.
    This injunction was obtained by the wile nine days alter the sale of a certain piece of property to prevent the sheriff from putting the purchaser in possession. It is based on the claim of the wife to a homestead. The order of seizure and sale had been issued on a mortgage given to secure the purchase price. Besides, to secure the same debt there existed the vendor’s privilege. Therefore this ease can not be embraeod in the homestead act, section 1692 of the Revised Statutes. Furthermore, if the wife had possessed any such right, she should have asserted . it before the sale.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. James L. Cole, Parish Judge, acting for District Judge Dewing, re-cused.

      A. & B. B. Talbot, Barrote & Pope, and Merrick, Bace & Foster, lor plaintiff and appellee.

      Samuel Matthews and James If. Grover, for defendants and appellants.
   Ludeling, O. J.

This is an injunction suit to prevent the sheriff from putting the purchaser in possession of the dwelling-house and' one hundred and sixty acres of land, which had been sold under an order of seizure and sale, issued on a mortgage given to secure tlie purchase, price. To .secure the same debt there existed the vendor’s privilege. The injunction was obtained nine days after the sale, and it is based on the claim of the wife to a homestead. On the day of sale, the sheriff was requested, in writing, to notify all persons making bids on the property offered for sale that the judgment.debtor would take legal steps to enforce her right to a homestead on the property.

Elaborate briefs have been filed in this case to show that a wife may be the head of -a family during-the existence of the marriage, and that in such a case she is entitled to the benefit of the homestead law, but we do not deem it necessary to examine that question in this case, inasmuch as the property was sold to pay the purchase price, and was therefore not embraced in the homestead act.

Section 1692 of the Revised Statutes declares : “No property shall, by virtue of this act, be exempt from sale for non-payment of taxes or assessments levied pursuant to law, nor for debts contracted for the purchase price of said exempted property, nor for money due for rents, bearing a privilege on said property under' existing laws.” Besides, if she had any such right, she should have asserted it before the sale.

It is therefore ordered and adjudged that the judgment of the lower court be reversed, and that there be judgment in favor of the defendants dissolving the injunction and for one hundred and fifty dollars damages against the plaintiff and her surety on the injunction bond, in solido, and for costs of suit. ■

Rehearing refused.