author: Wxlt, J.

text:
    No. 530.
    W. L. Spears, Liquidator v. Mrs. J. Spears, Administratrix.
    As the plaintiff, W. L. Spears, resided in the parish of Claihorne, and could only have been sued there on claims against the firm of Spears & Ramsey, which he assumed to pay at the dissolution of said firm, the defendant had the right to set up the reconventional demand, which is objected to.
    Whether the plaintiff owns certain claims and the notes attached to his petition, as an individual or as a liquidator, is a matter into which defendant has no interest to inquire. The same is applicable to the claim of Ramsey, who was a member of the partnership and who authorized plaintiff to settle and liquidate its affairs. Defendant has no interest in asserting the rights of Ramsey. It is sufficient if payment to plaintiff will protect defendant írom a subsequent demand for the same debt by Ramsey, and of this there can be no doubt.
    APPEAL from the Eleventh Judicial District Court, parish of Union. Trimble, J.

      J. O. Egan, for plaintiff and appellant. G. H. Ellis and Cobb and Gunby, for defendant and appellee.
   Wxlt, J.

Plaintiff sues the defendant on an account for $2096 82. Defendant specifically denied items of this account, amounting in the aggregate to $1306 15, and pleaded in compensation and reconvention an account of $1854 35, praying judgment; in her favor for $1061 18. The court gave judgment for plaintiff for thirteen dollars and eighty-, six cents, and he has appealed.

As the plaintiff resided in the parish of Claihorne, and could only have been sued there on claims against the firm of Spears & Ramsey, which he assumed to pay at the dissolution of said firm, the defendant had the right to set up the reconventional demand.

After examining the evidence, we find that plaintiff has established his demand to the amount of $1910 90, and from the proof we fix the reconventional demand at $1086 26, exclusive of the claim for rent of the dwelling house, defendant’s right to which being preserved for a separate action.

The items aggregating $542 68 are not properly the debts of third persons; they are tor claims belonging to plaintiff, which the deceased, J. P. Spears, collected and appropriated. Whether the plaintiff owns the claim for $400 and the notes attached to the petition, as an individual or as liquidator, is a matter into which defendant has no interest to inquire. And the same remark is applicable to the item of $118, which defendant says is the property of Ramsey, who was a member of the partnership, and who authorized plaintiff to settle and liquidate its affairs. Ramsey gave the suit to the.clerk to be filed, and was present at the trial. Defendant has no interest in asserting the rights of Ramsey. It is sufficient if payment to plaintiff will protect defendant from a subsequent demand for the same debt by Ramsey, and of this there can be no doubt.

The item of $54 for repairs set up by plaintiff has not been satisfactorily established against the defendant.

It is therefore ordered that the judgment herein be set aside, and it is decreed that plaintiff recover of the defendant eight hundred and twenty-four dollars and sixty-four cents, with legal interest thereon from judicial demand and all costs.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 588.
    Sarah L. Lay et als. v. Succession of Elias O’Neal.
    The plaintiffs, as heirs of Isaac Lay, sue the succession of O’Neal for a large sum to be paid in the course of administration and allege in substance that O’Neal was their tutor for many years. The defendants have excepted to the mode of action and to the jurisdiction of the court. The judge a quo erred in overruling the exception.
    The plaintiffs should have called upon the executrix of the deceased, O’Neal, to file an account of his tutorship, and by opposition to the account, should have raised the issues involving its correctness, and then have the various matters in contestation duly proceeded with and determined, in their regular order, and the tutor’s liability, if any, definitely fixed by final judgment of tbe parish conrt.
    Instead of this proceeding, the plaintiffs bring suit in that court against the succession oí O’Neal for an arbitrary amount, which they fix themselves as the indebtedness of the tutor, and pray judgment against the succession for that sum, an amount far above the jurisdiction of that court in a direct action for a specific sum of money. This is illegal, and can not be maintained.
    APPEAL from the Parish Court, parish of Bossier. Baker, J.

      J. Z>. Watkins, for plaintiffs and appellees. J. A. Snider, for defendant and appellant.
   Taliaferro, J.

The plaintiffs, as heirs of Isaac Lay, sue the succession of O’Neal for $104,847 93, to he paid in due course of administration. They allege in substance that Elias O’Neal was their tutor for many years, and filed before his death eight annual accounts of his administration. The defendant excepted to the form of action instituted by plaintiffs, because the eight annual accounts filed by the tutor had been duly homologated by a court of competent jurisdiction, and the judgments of homologation could not be treated as absolute nullities, but must be avoided by direct action. Defendant further excepted that the parish court had no jurisdiction of the money demand brought by the plaintiffs as it so largely exceeds the sum of five hundred dollars.

The exception was overruled and the court proceeded with the case. The several annual accounts homologated as aforesaid were disposed of as follows: The first was confirmed; the second, third and fourth were rejected and annulled; the fifth was amended by greatly reducing the credits claimed by the tutor; the sixth was in like manner amended ; the seventh and eighth were annulled and amended so as to conform to the amounts previously fixed in the judgment of the court' now rendered.

Thirteen thousand thirty-four dollars and ninety-two cents was the sum fixed as the distributive share of four heirs, subject to certain credits.

Judgment was rendered accordingly and defendants have appealed.

We think the exception should have been sustained. Instead of following the plain provisions of article 998 of the Code of Practice, and calling upon the executrix of the deceased tutor to file an account of the tutorship of O’Neal, and by opposition to the account raised issues involving its correctness, and then having the various matters in contestation in their regular order duly and regularly proceeded with and determined, and the tutor’s liability, if any, definitely fixed by final judgment of the parish court, the plaintiffs bring suit in that court against the succession of O’Neal for an arbitrary amount which they fix themselves as the indebtedness of the tutor, and pray judg’njent against the succession for that sum, an amount far above the jurisdiction of that court in a direct action for a specific sum of money. We regard the proceeding in this case as irregular and not in conformity with law, and conclude that it can not be maintained.

It is- therefore ordered that the judgment of the parish court be annulled and reversed. It is further ordered that this case be dismissed at plaintiffs’ costs, without prejudice to their right to institute new proceedings on their demand.


author: Wyly, J.

text:
    No. 4476.
    Moore, Janny & Hyams v. Louis Lalaurie.
    The sureties on a suspensive appeal bond can be made liable where execution issued on certificate of the non-filing of the transcript by the appellant and the money could not be made after taking necessary steps against the principal.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Labatt & Aroni, for plaintiffs and appellants. Oharvet <& Duglantier, for defendant and appellee.
   Wyly, J.

In this case the question is whether the sureties on a suspensive appeal bond can be made liable where execution issued on certificate of non-filing of the transcript by the appellant, and the money could not be made after taking necessary steps against the principal.

The counsel for plaintiffs suggest that it is a new question. We find, however, the precise question was decided by this court in the affirmative in the case of Champonier v. Washington, 2 An. 1013.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the rule herein against the sureties on.the appeal bond of the defendant be made absolute as prayed for, with costs.


text:
    No. 5801.
    The City of New Orleans v. People’s Bank.
    The only question in this case is, whether ‘municipal taxes for 1873 on the capital stock of the People’s Bank can he imposed. It must be answered in the affirmative. In 1869, when the defendant, tlio People’s Bank, was incorporated under the act of the fifteenth of March, 1855, entitled an act to establish a general system of free banking in this State, the statute of 1857 exempting free banks from municipal taxation bad been, stricken with nullity by article 118 of the constitution of 1868. Such exemption formed, therefore, no part of the contract arising from the act of incorporation.
    Defendant contends erroneously that there is no statute authorizing the municipal taxation of a banking institution, and that the ordinance passed by the city without the sanction of such law is absoluteely void.
    The capital of a bank is its property and is liable to taxation unless specially exempt.
    By section 12 of the charter of 1870, the city of New Orleans is authorized and required to lt levy cm equal cmd uniform tax, tor the purposes of this act, on all property, real and personal, in said city.” A‘ * *
    APPEAL from the Superior District Court, parish of Orleans. Eawláns, J.

      Samuel P. Blame, assistant city attorney, for plaintiff and appellee, Braughn, Bucle & Binkelspiel, for defendant and appellant.
   Wyly, J.

Defendant appeals from the judgment in favor of the city of New Orleans for $6875 for municipal taxes on its capital stock for 1873.

In this court the sole question is, can the taxes in question be imposed on the defendant, a bank incorporated in December, 1869, under the act of fifteenth March, 1855, entitled “an act to establish a general system of free banking in the State of Louisiana,” in view of the act of 1857, which provides “that from and after the passage of this act all capital employed in free banking in this State shall be exempt from municipal taxation.”

The precise question was presented in the case of the same plaintiff against the Bank of Lafayette, and in May, 1875, this court decided that the exemption mentioned in the act of 1857 was repugnant to article 118 of the constitution of 1868, and was stricken with nullity thereby, except in regard to free banks incorporated prior to the adoption of said constitutional provision, and that the bank of Lafayette was incorporated subsequently. In 1869, when the defendant, the People’s Bank, was incorporated, the statute of 1857 exempting free banks from municipal taxation had been stricken with nullity by the constitutional provision referred to; it therefore formed no part of the contract arising from the act of incorporation. Defendant, however, contends there is no State law authorizing the municipal taxation of a banking institution, and that the ordinances passed by the city without the sanction of such law are absolutely void.

The capital of a bank is its property, and is liable to taxation, unless specially exempted.

By section 12 of the charter of 1870 the city of New Orleans is authorized and required14 to levy an equal cmd'uniform tax for the purposes of this act, on all property, real and personal, in said city.” * * *

The question of a commutation tax, argued by the learned counsel for defendant, is not in this case.

The State never contracted with defendant on the subject of commuting taxes.

Judgment affirmed.

Rehearing refused.


author: Howell, J.

text:
    No. 5429.
    Mechanics’ and Traders’ Bank v. Jesse R. Powell. James E. Zunts and Samuel R. Bertron, third opponents.
    Powell effected a four months’ loan with the New Orleans Banking Association, and gave as collateral security iour notes, with mortgage on his property. On the maturity of the four months’ loan, Powell, not having money to pay said loan, applied to Low & Ludwigson for a loan to pay the hank, which was furnished on condition that the twelve months’ notes pledged to the .New Orleans Banking Association should he delivered to them as collaterals Powell’s debt to the hank was paid with the money thus borrowed and the collaterals were delivered by tbe hank to Ludwigson, who pledged them to the Mechanics’ and Traders’ Bank, plaintiff in this suit, for a debt of Low & Ludwigson.
    After the transao ion aforesaid the mortgage rights of the third opponents arose. This court thinks that the third opponents erroneously contend that the payment by Powell of the four months’ loan extinguished the mortgage given to secure the twelve months’ notes, now in suit. Practically, the original debt to one creditor was extinguished by the substitution of another creditor, upon the express condition that the security should be continued as it then existed. It was clearly not the purpose or intention of Powell to extinguish the mortgage, and the manner in which the evidence thereoi was delivered to the new creditor did not have that effect.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      JRornor & Benedict, Randolph, Singleton & Browne, for plaintiff and appellee. Robert R. Marr, ior James E. Zunts, third opponent and appellant. James Lingan, for Samuel R. Bertron, third opponent and appellant.
   Howell, J.

The plaintiff, as holder and owner of several'mortgage notes, made by the defendant, sold the property under a writ of seizure and sale, and the third opponents claimed the proceeds by preference to satisfy judicial mortgages held by them.

The material facts are as follows: In November, 1869, defendant, Powell, effected a four months’ loan for $20,000 with the New Orleans Banking Association, and gave as collateral security four notes at twelve mouths’ from that time, secured by mortgage on property of Powell. At the maturity of the loan at four months, Powell, not having the money to pay, applied, through an agent, to Low & Ludwigson for a loan to pay the bank, which was furnished upon condition that the mortgage notes then pledged to the bank be delivered to them. as collaterals. The agent of Powell, with the money obtained from Low & Ludwigson, paid the four months’ loan and demanded the col-laterals for the purpose of delivering them, as promised, to Low & Ludwigson; but the president of the Banking Association, being of opinion that if said notes went into the hands of the maker, as requested, they would be extinguished, refused to give them up and sent for Ludwigson to come and get them, which he did, and afterwards pledged them to the plaintiff bank for a debt of Low & Ludwigson, After these transactions the mortgage rights of the third opponents arose, and they contend that the payment by Powell of the four months’ loan extinguished the mortgage given to secure the twelve months’ notes now in suit.

We think not. The agreement between Low & Ludwigson, who furnished the means to extinguish the four months’ loan, was that the mortgage notes should be transferred to them as collateral security for the advance. Practically, they simply agreed to take the place of the original lender, and the ojiginal debt was extinguished, as to the creditor, by the substitution of another creditor, upon the express condition that the security should be continued as it then existed. It was clearly not the purpose or intention of Powell to extinguish the mortgage, and the manner in which the evidence thereof was delivered to the new creditors did not have that effect. The same doctrine was enforced in the succession of Dolhonde, 21 An. 5.

Judgment affirmed.

Rehearing refused.


text:
    No. 5803.
    City of New Orleans v. Metropolitan Loan, Savings and Pledge Bank.
    Tlie defendant bank having been incorporated since the adoption of the constitution of 1868, there is no contract between it and the State under previous laws on the exemption from taxation, and there is no conflict with the constitution in levying the present tax.
    APPEAL from the Superior District Court, parish of Orleans. HawIcvns, J.

      Samuel P. Blane, assistant city attorney, for plaintiff and appellee. Bravghn, Bucle & Dinlcelspiel, for defendant and appellant.
   Howell, J.

The defendant hank being sued for a municipal tax on its capital, objects—

.First — That it is a free hank under the laws, and as such its capital is exempt from such tax. This point was decided adversely to this position in the case of the City v. Bank of Lafayette, not reported.

Second — The capital of the bank is the property of individuals, and as such already taxed. The record does not contain proof of this fact.

Third — The assessment is erroneous and excessive. The record also fails to show this.

Fourth — Any pretended law by which the city assumes to tax free banks is unconstitutional.

The defendant bank having- been incorporated since the adoption of the constitution of 1868, there is no contract between it and the State under previous laws on the subject, and there is no conflict in the levying of the tax with the constitution in this respect or any other that we can discover.

Fifth — The payment of ten per cent, of the proceeds of unredeemed pledges into the hands of the trustee of the Metropolitan Police District is declared not to be a commutation of taxes.

Judgment affirmed.

Rehearing refused.


text:
    No. 4876.
    E. B. Benton v. P. C. Mahan.
    The appellant'will not lose his right to appeal because his surety on the appeal bond has become insolvent, and in such case it is the duty of the court to allow a sufficient surety to l*e substituted. This is precisely what the court below has done. It allowed appellant to give new security within ten days after the trial of the rule which decided the insolvency of the surety on the bond.
    Appellant, who refuses to comply with this order and to substitute a new surety, has no right to expect this court to refuse to dismiss his appeal.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J. Jury trial.

      Says & New, for plaintiff and appellee. J. 8. Bartlette, for E. E. Chubbuck, subrogated to plaintiff. M. A. Dooley, John Bay, for defendant and appellant, and F. O. Mahan, in propria persona.

   Wyly, J.

In January, 1875, appellee took a rule, in the court below, on the appellant requiring him to furnish new security on the appeal bond, the surety given by appellant having become insolvent. At the trial of this rule, the court decided that the surety was insolvent and ordered appellant to furnish new security within ten days, or the appeal would be set aside. This the appellant has failed to do.

Appellee, therefore, now moves this court to dismiss this appeal because appellant has failed-to furnish an appeal bond as required by law. In the answer which appellant has filed to this motion, he alleges that the transcript of appeal was filed in this court November 13,1873; that-the surety on the suspensive appeal bond was declared insolvent on March 17, 1875, subsequent to the filing of the appeal, and that such insolvency is no cause to dismiss the appeal, but it is merely a ground for issuing execution. In support of this position he cites the case of Gray, Macmurdo & Co. v. Lowe & Pattison, 9 An. 478.

That case decides merely that appellant will not lose his right to appeal because his surety on the appeal bond has become insolvent, and in such case it is the duty of the court to allow a sufficient surety to be substituted. This is precisely what the court below has done. It allowed appellant to give new security within ten days after the trial of the rule which decided the insolvency of the surety on the bond.

Appellant, who refuses to comply with this order and substitute a new surety, has no right to expect this court to refuse to dismiss his appeal. An appeal with an insolvent surety is virtually an appeal with no surety, and this the law does not authorize.

It is therefore ordered that the appeal herein be dismissed at the cost of appellant.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 5814.
    City of New Orleans v. E. V. Fassman et als.
    The duties of tlie defendant, while acting in his official capacity of wharfinger was fixed by law. Compensation is an equitable remedy, and never takes place when it would be against good conscience. This case is similar to the case of city of New Orleans a. Pinnerty et al., previously decided, and must be controlled by the principles therein announced.
    APPEAL from the Superior District Court, parish of Orleans. , Hawkins, J.

      Samuel P. Blane, assistant city attorney, for plaintiff and appellee. Cotton & Levy, for defendant and appellant.
   Ludeling, C. J.

This is a suit against E. Y. Fassman, late deputy wharfinger of the First District of New Orleans, and his sureties, for $1409 55, with legal interest from eleventh November, 1874, being for moneys collected by him in his official capacity for the plaintiff. The defense is that the city owed him a like amount for services rendered, and that the claim of the city against him has been extinguished by compensation. The duties of the defendant, while acting in his offi" cial capacity aforesaid was fixed by law. See city charter, act No. 7 of 1870, sec. 50. See also ordinance No. 857, Administration Series. Compensation is an equitable remedy, and never takes place where it would be against good conscience.” 7 An. 46, 53; 11 An. 73. This case is similar to the case of city of New Orleaus v. Finuerty et al. recently decided, and' must be controlled by the principles therein announced.

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


author: Taliaferro, J,

text:
    No. 4035.
    Bogart Shall v. P. H. Foley and W. B. Conger, Testamentary Executors of Wilhelmus Bogart.
    The plaintiff sues to recover from defendants, testamentary executors of Wilhelmus Bogart, a certain sum of money, which, whilst plaintiff was a minor, said Bogart, acting in the capacity of under tutor, had under his control and management. After becoming of age, plaintiff received, in settlement with Bogart, certain promissory notes and commercial papers in which Bogart had invested plaintiff’s funds in 1860, and of which a considerable portion subsequently turned out to be worthless. After having kept the aforesaid obligations until 1871, a period of seven years, and after prescription has accrued, he now tenders them back on the ground of his having been induced to receive them in settlement by fraudulent misrepresentations.
    If said obligations and commercial papers were worthless at the time he received them, plaintiff must have become acquainted with that fact not long after, and might have used more diligence in seeking redress, when it was in his power to put the other party in the same situation he was in when delivering the assets to plaintiff. Therefore by his own laches the plaintiff has foregone the right he originally had to exact from the manager oí his affairs a rigid accountability.
    APPEAL from the Second District Court, parish of Orleaus. JDuvigneaud, J.

      John Bay, Semm.es & Mott, for plaintiff and appellee. Hunton ds Grover, Johnson & Denis, ior defendants and appellants.
   Taliaferro, J,

The plaintiff seeks to recover from the testamentary executors of the decedent, the sum of thirty-five thousand dollars, with interest at eight per cent, per annum from nineteenth of November, 1858, being, as he alleges, for money inherited by him during bis minority from the successions of bis father and his grandmother, and ^bich went into the possession and under the control of Wilhelmus Bogart, who was undertutor to plaintiff, his said grandmother, np to the time of her death, having been his tutrix. He alleges that, after he became of age, the said Bogart presented to him as his estate certain notes and commercial paper, in which he informed plaintiff his funds had been invested; that he received in error these notes, which for the most part were against insolvent parties and proved of no value to him. He seeks relief in this action from this alleged fraud practiced upon him by his former under tutor and prays judgment against his succession for the amount claimed.

The defendants filed the plea of res judicata, relying upon a judgment of the Second District Court rendered in January, 1870, homologating their final account as executors and ordering the entire estate of Wilhelmus Bogart to he distributed in accordance therewith ; they allege that the plaintiff is bound and estopped by this judgment from proceedings in this suit. They plead the prescription of one, two, three, four and five years, and that plaintiff discloses no cause of action. The exception beiDg overruled, the defendants, reserving their pleas, answered that they owe the plaintiff nothing; that the entire estate of Wilhelm as Bogart has been distributed by them in conformity with the provisions of the will of said Bogart, under a judgment and decree of the proper court homologating the final account of the executors, and that there is no property in their hands belonging to the succession with which to pay its debts, if any exist against it.

There was judgment rendered in favor of the plaintiff for $26,080 26, with five per cent, interest thereon from the sixteenth of January, 1860, until paid, less certain amounts detailed in the judgment. The defendants appealed.

It appears by the evidence that Wilhelmus Bogart had under his control a large sum of money belonging to the minor, which he invested in commercial paper about the year 1860, before the commencement of the late war. At the time of the investment these securities were doubtless good, and there were reasons to suppose the investment was one advantageous to the-then minor. In 1864, after the plaintiff had attained his majority he had a settlement with Bogart and received these notes and obligations as his estate or property, and received likewise in money $1443. This was in June, 1864. He kept these papers, or such of them as he failed to collect, until the time of filing this suit in November, 1871, a period of more than seven years, and now sues tlie executors of Bogart to recover from them the sum of $35,000, with eight per cent, per annum interest from the nineteenth of November, 1858, on the ground of fraud practiced upon him by Bogart and by inducing him by misrepresentations that the notes ancl obligations were his property. He alleges in his petition that he now tenders these notes and obligations back; but of what avail to the defendants would be the tender to return the notes after the plaintiff held them until they were prescribed ? lie did collect from these assets by his own showing $11,245. If, as he asserts, they were worthless when he received them, he must have become acquainted with that fact at no great period of time afterward, and might have used more diligence in seeking redress, and when it was in his power to put the other party in the same situation he was in when he delivered the assets to the plaintiff. Bogart’s liabilities were none the less than if he had been tutor, although he was not even undertutor after the expiration of the tutorship by the decease of the plaintiff’s grandmother, and it was in the power of the plaintiff within a proper and reasonable time to have held him to these liabilities; but we conclude that by his own laches the plaintiff has foregone the right he originally had to exact from the manager of his affairs a rigid accountability. The conclusion we have reached renders it unnecessary to pass upon the defendants’ exception.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed. It is further ordered .that there he judgment in favor of the defendants, the plaintiff paying costs in both courts.

On Rehearing.

The re-examination of this case presents nothing that induces us to change the judgment rendered on the first hearing. It may be that some of the securities were not prescribed when the plaintiff brought his suit against the executors. No offer was made by him to return any oi them, and it was not until a year elapsed after he was made acquainted with his rights by his legal advisers that he set up his demand.

It is ordered that the decree rendered in the case remain unaltered.


author: Wylt, J. Howell, J.,

text:
    No. 4454.
    Henry Talmadge v. John Williams & Sons.
    On tlie faith of a letter of credit given to them by defendants for $5000, Irish & Butler procured the discount of a draft of $3500, and sometime afterward one of $1500, from plaintiff, a banker in New York. On defendants being sued for payment oí the latter draft, they rely on a defense which is merely technical. A letter of credit must be interpreted and effect given to it according to the real intention of the parties. In accomplishing that object, it was immaterial whether the drafts were drawn by Fish & Butler in favor of their respective creditors as required in the letter of credit, or in íavor oí the drawers themselves, to settle with said creditors, as intended, and as they did.
    Both drafts were drawn alike, and when John "Williams & Sons accepted and paid the first one for $3500, they thereby conoeded there was no objection to the form or wording of the instrument, and they interpreted the letter of credit as the drawers did, and as this court does.
    APPEAL from tbe Sixth District Court, parish of Orleans. Oooley, J.

      Gibson <& Austin, for plaintiff and ap,pellee. Olarh, Bayne & Benshaw, for defendants and appellants.
   Wylt, J.

On tenth September, 1870, defendants gave Fish & Butler, merchants of Arkansas, the following letter of credit, to be used in New York:

“Gentlemen, you are authorized to draw on us to the order of such persons in New York as you may be indebted to, or wish to purchase goods from, to the extent of five thousand dollars, in such sums as may suit your convenience, payable on tenth March next, and your drafts will be honored on presentation and paid at maturity.
“Very respectfully, JOHN WILLIAMS & SONS.”

Instead of drawing in favor of their creditors for the sums due them respectively, Pish & Butler found it more desirable to draw the time drafts, payable to their own order, have them discounted and use the proceeds for the purpose contemplated by themselves and John Williams & Sous.

Accordingly, on twenty-ninth September, 1870, they procured the discount of a draft of $3500 from plaintiff, a banker of New York, ou the faith of the letter of credit, and on third day of October, 1870, obtained from the same party the discount of another draft for $1500. The proceeds of these drafts were used by Pish & Butler in the payment of their debts or in the purchase of goods. Both were drawn payable to the order of the drawers, and were discounted by plaintiff. The draft for $3500, the first one, was duly honored and paid, the other for $1500 was dishonored.

This suit was brought to compel the defendants John Williams & Sons to pay the draft of $1500.

The defense in this court is, the draft does not conform to the condition of the letter of credit in this, the draft was not drawn in favor of a creditor of the drawers, but to their own order, and plaintiff who discounted it was not a creditor.

The defense is too technical. That the credit given Pish & Butler by John Williams & Sons was used for the purpose contemplated by the parties there can be doubt. The object was that Pish & Butler might draw on John Williams & Sons for five thousand dollars in such sums as might suit their convenience, payable on tenth March, 1871, in order to aid them in settling with their creditors and to purchase a stock of goods.

In accomplishing that object it was immaterial whether the drafts were drawn in favor Of the respective*creditors or in favor of the drawers themselves.

•The letter of credit must be interpreted and effect given, to it according to the real intention of the parties. Both drafts were drawn alike, and when John Williams & Sons accepted and paid the first one for $3500, they thereby conceded there was no objection to the form or wording of the instrument, and they interpreted the letter of credit as the drawers did and as we do.

It is therefore ordered that the judgment herein in favor of plaintiff be affirmed with costs.

Howell, J.,

dissenting. The plaintiff seeks to make defendants liable for the amount of a draft drawn by Pish & Butler on them, which they refused to accept. - The action is based on the following letter:

“ New Orleans, September 10, 1870.
“ Messrs. Pish & Butler, Pine Bluff:
“ Gentlemen — You are authorized to draw on us to the order of such. persons in New York as you may be indebted to or wish to purchase goods from, to the extent of five thousand dollars in such sums as may suit your convenience, payable on tenth March next, and your drafts will be honored on presentation and p'aid at maturity.
“ Very respectfully, JOHN WILLIAMS & SONS.”

Upon this letter Pish & Butler drew, two -drafts in New York to their own order, discounted them with the plaintiff and used most of the funds in paying their creditors and buying goods in said city. One of the drafts was accepted and paid, but’ acceptance of the other was refused, and this suit is resisted on the ground that it was not drawn in accordance with the conditions of .the letter of credit, that is, not drawn to the order of persons whom the drawers owed, or from whom they purchased at the time.

It is contended on behalf of plaintiff that' defendants having accepted and paid one of the drafts, they placed a construction on the letter which bound them to honor the second-.. Had the second draft been given to and received by plaintiff after knowledge that the first was accepted, this position would be true; but the evidence shows that it was not presented to defendants for acceptance until some time after the first had been accepted, and hence plaintiff could not have been influenced by that act of the defendants in discounting the second draft.

We are of opinion that the defendants were justified in their refusal. Letters of credit are not to be enlarged or.varied by the bearers of them, but are to be followed strictly in all material points and conditions.' The defendants were willing to bind themselves in a specific manner for the benefit of their correspondents for reasons satisfactory to themselves, and some of which may readily be surmised.

Drafts to the order of and indorsed by the merchants from whom goods had been or might be purchased, would bear the obligation or endorsement of the payees, and bear evidence that they had been used for the purpose for which the credit had been extended. The draft in suit was drawn to the order of the holders of the letter and endorsed by the plaintiff only for collection,, and the evidence shows that some of its proceeds at least did not go for the payment of goods as designed by the defendants. This form of using the letter would enable the parties to divert the whole proceeds of the drafts.

The doctrine of strict conformity to all the material conditions of a letter of credit was established very early in the jurisprudence of this country. I have not found any authority to the contrary. See 2 Wheaton, 66 ; 1 Peters 283 ; 4 Peters 12f; 2 Story 241; 16 La. 499.

Rehearing refused.


author: Morgan, J.

text:
    No. 5765.
    City of New Orleans v. Globe Mutual Life Insurance Company.
    Tlie city of New Orleans, by a special act Kb. 73, April 26, 1872, is declared not to be restrained in requiring a license from the Insurance Companies within her boundaries, by either tlie act Kb. 42, March 3, 1871, or act Kb. 14, March 8, 1872, which provided for the general revenue of the State, and on which defendant relies in the suit instituted against it by the city of New Orleans for the recovery of a license tax.
    APPEAL from the Superior District Court, parish of Orleans. Eaio-Icins, J.

      Samuel P. Plane, assistant city attorney, for plaintiff and appellant. Samuel L. & O. L. Walicer, for defendant and appellee.
   Morgan, J.

The city sues the deiendant for three hundred dollars license tax. The defense is that by the third section of the act No. 42 of March 3, 1871, paragraph 15, “no insurance company, whose license tax shall be one thousand dollars, shall be liable to any assessment throughout the State, other than that imposed by this article and by section 6 of this act.” The sixth section provides that “from every insurer or insurance company transacting an insurance business in this State, there shall be collected, in addition to the license in such cases hereinbefore provided for, an annual tax of one per centum upon the gross amount of the premiums earned each year from policies issued through agencies in this State.”

Paragraph 15 of sec. 1 of act 14 of fifth March, 1872, enacts that no insurance company whose license tax shall be one thousand dollars shall be liable to any other assessment, State, parish or municipal, throughout the State, other than that imposed by this article and by section six of this act.” Section six of this act simply ordains that the act shall take effect from and after its passage.

If these laws stood alone, there would be little room for interpretation. Judgment would necessarily be for the defendant. But we are reminded by the counsel for the city that the last act under which defendant claims exemption is the act which provided a general revenue of the State, and was approved on eighth March, 1872, and that on the twenty-sixth April of the same year, the Legislature in act No. 73 declared that “ no provision in any general law of the State limiting the power of taxation by the several cities, towns, parishes and other corporations, shall be held to apply to the taxes of the city of New Orleans herein or otherwise specially authorized to be levied.” This is a special statute, and'it authorizes among other things the levy of a tax for the support of the city government.

It is not disputed that the defendant is protected only by the statute of the fifth of March, 1872. It seems to us clear that the section of that act which is relied upon is controlled by the sixteenth section of the aet No. 73, 1872 which expressly declares that no provision in any general law oí tlie State limiting the power of taxation by the several cities, towns, parishes and other corporations shall be held to apply to the taxes of the city of New Orleans, which were therein or otherwise specially authorized to be levied. In the case of the City v. Salamander Insurance Company, 25 An. 650, the question as to the liability of the company for a license tax was not before us.

It is therefore ordered, adjudged and decreed that the judgment of the district coiirt be avoided, annulled and reversed, and that there be judgment in favor of the plaintiff and against the Globe Mutual Life Insurance Company for the sum of three-'hundred dollars license tax, with five per cent interest thereon from the first of May, 1872, until paid, with lien and privilege according to law, and that the injunction obtained against them be reinstated and made perpetual; the costs to be borne by the defendants.


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    No. 5886.
    Albin Rochereau v. Charles P. Bobb, individually and as Testamentary Executor, et al.
    'The question in this instance is whether certain articles found on a mortgaged tract of land, seized and sold "by plaintiff and adjudicated to him as part of the mortgaged property, were covered by said mortgage, and in that case whether they could be afterwards seized, advertised and sold by defendant individually and as testamentary executor of the late William Bobb. The decision of this court is in favor of the plaintiff, on the grounds that the objects now in litigation were found on the premises seized; that they were used in carrying out the industry to which the real estate was subjected, and therefore that said property in dispute was properly seized, advertised, appraised aud sold as subject to the mortgage of the plaintiff, to whom it was adjudicated on the sale thereof.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      O. P. Schmidt, for plaintiff and appellant. B. Shackelford, for defendant and appellee.
   Morgan, J.

A. Rochereau & Co. held a' mortgage against certain real estate owned by William Bobb. The real estate consisted in several' adjoining tracts of land, situate-in the parish of Jefferson, operated, principally, as a brickyard and sawmill. The mortgage, in terms, covered the buildings, improvements and appurtenances thereunto belonging.

William Bobb died. His widow, as widow in community, legatee and testamentary executrix, represented in part his estate.

Rochereau & Co. proceeded against her in her representative capacity, and caused the property mortgaged to he seized.

According to the inventory made by the sheriff, he took possession, as having been seized in the suit, of two patent brick machines, with boiler, engine, supply pumps, etc.; two sand sifters, four tempering 42 wheels, sand boxes, fifty-three brick molds, a number of brick boards, a number of broken wheelbarrows, a number of racks and clapboards, one wooden.pump, ten iron-wheel brick trucks, three carts with wheels attached, nineteen cart bodies, a number of cart wheels, a lot of harness, a lot of doubletrees, one feed box, a spring scale, a grindstone, one windlass, a lot of blacksmith’s tools, anvil, bellows, etc.; two crowbars, a lot of carpenter’s tools, workbench, etc.; one corn mill, a lot of agricultural implements; a sawmill, with two boilers, engine saw, framed carriages, saws, rollers, belts, cars, pumps, etc.; a dredgeboat, with the machinery and apparatus thereof.

The tracts and parcels of land, together with all and singular the buildings and improvements thereon and appurtenances thereof,” were advertised for sale, in obedience to the order of seizure. The land was subdivided according to law. Appraisers were appointed on one side and on the other, to value the property which was about to be sold, and the articles above enumerated were estimated, each article upon the lot of ground upon which it was found. The property was sold, and Albin Rochereau became the purchaser thereof. His deed of sale, from the sheriff, recites the articles which we have detailed.

Subsequently, Charles Bobb, one of the executors of William Bobb, applied for and obtained an order to sell the above described property as belonging to the succession. Plaintiff enjoined the sale on the ground that the property seized belongs to him.

The district judge maintained the injunction, except in so far as the steam dredgeboat and machinery, the cornmill and stone, the tools in the blacksmith shop, the oil tank and the contents of the toolhouse. Rochereau appeals. Defendant asks for an amendment of the judgment in his favor.

Considering that the property in litigation was found on the premises seized ; that it was all used in carrying out the industry to which the real estate was subjected; that the carpenter’s tools and blacksmith’s tools were used as implements for carrying on the industry to which the land was subjected; and considering that the property in dispute was seized, advertised, appraised and sold as subject to the mortgage of A. Rochereau & Co., and that at the sale thereof Albin Rochereau became the purchaser thereof, we are of opinion that he acquired title to the same; that it was improperly advertised for sale as the property of the succession of Bobb, and that plaintiff’s injunction should have been perpetuated m toto.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended, and that the injunction issued by the said court be reinstated and perpetuated in toto, and that defendant .pay costs in both courts.


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    No. 5798.
    State ex rel. A. A. Milliken v. S. J. Ward.
    This suit is brought under the intrusion act. [From all this court is able to gather from this record, the relator has no cause of action. This court does not understand that defendant has usurped or intruded into the office of recorder, or placed it out of the power of relator by any unlawful force or any illegal means to perform the duties of recorder, if legally Tested with that power. He claims, as’mayor, the right to exercise certain functions which the relator claims as belonging to the office of recorder. It is not seen how the relator can maintain his action as one coming under the provisions of the law for preventing the usurpation of or intrusion into an office.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      W. H. Wise, district attorney, Bice <& WMiaJcer and A. W. O. Hieles, for relator and appellee. T>. M. Galiham, W. A. Seay, J. W. Duncan and Merrick, Race & Foster, for defendant and appellant.
   Taliaferro, J.

This suit is brought under- the intrusion act. The complaint of the relator is, that holding a commission of the Governor of the State as recorder in and for the city of Shreveport, the defendant, who is mayor of Shreveport, has usurped and intruded into the office of recorder of said city and illegally exercises all the powers and privileges belonging to the office of recorder, and prevents the relator from exercising and performing the duties appertaining of right to that office, and from receiving the fees and emoluments of the same. He prays judgment declaring him the lawful recorder of the city of Shreveport and entitled to all the fees, benefits and emoluments belonging by law to that officer.

The defendant denies the allegations of the plaintiff which relate to usurping and intruding into the alleged office of recorder of Shreveport, for the reason, as stated by defendant, that there is no such office. He avers that the act of the Legislature of March 9, 1869, establishing the office of recorder for the city, of Shreveport, and the subsequent act of March 16, 1870, defining more particularly the jurisdiction of the recorder’s court of said city, have both been repealed by the act of the Legislature No. 98, of the twenty-seventh of April, •1871, incorporating the city of Shreveport, defining its limits and providing for its better police and municipal government. The defendant contends that as mayor he is authorized to enforce the city ordinances, and that that power can no longer be exercised by the recorder.

There was judgment in favor of the relator; and the defendant has appealed.

From all we are able to gather from this record the.relator has no cause of action. We do not understand that the defendant has usurped or intruded into the office of recorder, or placed it out of- the power of the relator by any unlawful' force' or any illegal means to perform the duties of recorder if legally vested with that power. He claims, as mayor, the right to exercise certain functions which the relator claims belong to the office of recorder. We do not see that the relator can maintain his action as one coming under the provisions of the law for preventing the usurpation of or intrusion into an office. It is therefore ordered that the judgment appealed from be annulled and reversed. It is further ordered that this suit be dismissed at the relator’s costs.


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    No. 5892.
    State ex rel. Citizens’ Bank of Louisiana v. Board of Liquidators.
    This is a proceeding by mandamus to compel the Board of Liquidators to fund a certain promissory note for two hundred thousand dollars with eight per cent interest made by the Governor of the State on the twenty-seventh of February, 1872, and secured by a pledge of forty warrants of five thousand dollars each, subject to a credit of $120,000, amount of bonds received in exchange for said warrants under act 23b. 3 of 1874, known as the “ Funding act.”
    The law does not make it the duty of the liquidators to exchange the bonds authorized by act Ko. 3 of 1874 for anything hut the bonds of the State and certain warrants specified in section 3.
    Section 3 of said act is the only part thereof that confers authority to make such exchange, and it designates only “all valid outstanding bonds of the State and valid warrants drawn previous to the passage of this act by the respective Auditors, except warrants issued in payment of the constitutional officers of the State, at the rate of sixty cents in consolidated bonds for one dollar in outstanding bonds and all valid warrants.”
    The words “bonds and warrants” are here repeated to leave no doubt as to the object of the law, and the proviso which immediately follows declares: “ That the holder of any 'bond or warrant* rejected by a majority of said board may apply by petition to the proper court for relief, and if final judgment shall he rendered in his favor against said hoard, it shall be the duty of said board to fund Ms said claim in bonds at the rate provided for by this act.” Therefore only the holders of outstanding bonds and valid warrants can appeal to the courts for relief.
    Lest there should be any doubt, section five declares “that the consolidated bonds herein authorized shall be held and used by said Board of Liquidators only for the purpose of " exchange as aforesaid” — that is,'for the outstanding bonds and valid warrants.
    The relator having voluntarily accepted the terms of the law and taken sixty per cent, of its whole claim against the State by funding the warrants held by it, the purpose of the act . as to said debt has been attained, and the whole and only debt of the State due to the relator in this transaction has been funded, and the indebtedness of the State, pro tanto, has been reduced and restricted according to the intent and object of the act.
    APPEAL from the Superior District Court, parish of Orleans. Hawlcinsf J.
    A. Pitot, and G. L. Hall, for relator and appellant. A. P. Field, Attorney General, J. B. Cotton, and J". Q. A. Fellows, for respondent and appellee.
   Howell, J.

This is a proceeding by mandamus to compel the Board of Liquidators to fund a certain promissory note for two hundred thousand dollars, with eight per cent, interest, made by the Governor of the State on twenty-seventh February, 1872, under section two of act No. 12 of 1872, and secured by a pledge of forty warrants of five thousand dollars each, issued ljy the State Auditor under said section ; said note principal and interest being subject, as alleged, to a credit of $120,000, amount of bonds received in exchange for said warrants under act No. 3 of 1874, known as the “Funding act.”

The defense is that there is no law authorizing the funding of said note, such evidence of the State’s obligation's not being specified in the third section of the said funding act, and the warrants issued for the same debt having been funded by the relator, the entire obligation of the State for the said debt of $200,000 is by the provisions of said act merged in the bonds exchanged therefor, and further that there is no law authorizing interest to be paid on said debt.

The writ of mandamus can issue only to compel the performance of a ministerial duty and the question (conceding that the note evidences an existing debt) is, does the law make it the duty of the liquidators to exchange the bonds authorized by act No. 3 of 1874 for anything but the bonds of the State, and certain warrants specified in section 3?

A careful reading of the said act constrains us to answer the question in the negative.

Section three of said act is the only part thereof that confers authority to make such exchange, and it designates only “ all valid outstanding bonds of the State and all valid warrants drawn previous to the passage of this act by the respective Auditors of Public Accounts of the State on the treasurer thereof, except warrants issued by the Auditor in payment ot the constitutional officers of the S ate, at the rate of sixty cents in consolidated bonds for one dollar in outstanding bonds and all valid warrants.” The. words “ bonds” and “ warrants” are here repeated to leave no doubt as to the object of the law, and the proviso which immediately follows, declares “ that the holder of any bond or valid warrant rejected by a majority of said board may apply by petition to the proper court for relief, and if final judgment shall be rendered in his favor against said board, it shall be the duty of said board to fund his said claim in bonds at the rate provided by this act.” Only the holders of outstanding bonds and valid warrants can appeal to the courts for relief. And lest there should be any doubt, section five declares “ that the consolidated bonds herein authorized .shall be held and used by said board of liquidation only for the purpose of exchange as aforesaid,” that is for the outstanding bonds and valid warrants.

Sections 12 and 13 invoked by the relator refer to other subjects and not to the duty of funding, and we are not authorized to enlarge the objects and purposes of the act, especially where the language is so clear and explicit. To do so would be legislation on our part.

We have only to apply the law as it is in all its provisions, and we •must say that the relator having voluntarily accepted its terms and taken sixty per cent, of its whole claim against the State by funding the warrants held by it, the purpose of the act as to said debt has been attained and the whole and only debt of the State due to the relator in this transaction has been funded and the indebtedness of the State, pro tanto, has been reduced and restricted, as section thirteen, invoked by relator, declares is the intent and object of the act.

Any other construction of the said act in this case would give the relator an advantage over other creditors of the State, who may choose to accept the terms of the act.

Judgment affirmed.

Rehearing refused.


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    No. 6000.
    State ex rel. Liquidators of Salamander Insurance Company v. Judge of the Fourth District Court, parish of Orleans.
    ■Where the evidence showed that the existing liabilities of the surety on the appeal bond exceed his assets in this State, but where he testifies that he has in another State of the Union property worth a sum much larger than all his liabilities:
    Held: That he is a good surety in this State. The law does not require the property of the surety, but only the person or residence of the surety to be within the State.
    APPLICATION of a writ of prohibition against the judge of -the Fourth District Court, parish of Orleans.

      A. & W. Voorhies, for relator. Judge Lynch, in propria persona.

   Howell, J.

Pending the appeal in the case of O. N. Prudhomme v. Salamander Insurance Company, No. 4078, the sureties on the appeal bond were declared insufficient, and the defendant company (appellants) were allowed ten days to furnish other security. Another bond was given with Louis Lalaurie as surety. A rule was taken to test his sufficiency, and after hearing evidence the district judge concluded that he was insolvent and authorized the issuance of execution on the judgment appealed from, whereupon this proceeding was taken.

The evidence brought up shows that the existing liabilities of the surety exceed his assets in this State; but he testifies that he has in the State of Missouri property worth $60,000, which is largely greater than all his liabilities, and the question is, is he a good surety in this State?

The question was practically decided in the affirmative recently in the case of State ex rel. Fosdick v. Judge of Sixth District Court, not reported, where this court held that the law did not require the property, but only the person or residence of the surety to be within the State, and for the reasons therein it is ordered that the prohibition herein be made perpetual.


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    No. 5778.
    State of Louisiana v. Pete Phillips.
    The statute No. 124 of the G-eneral Assembly of 1874, conferring on the judge of the Superior Criminal Court the power to appoint an attorney to act in his place, is unconstitutional, because it provides a mode for choosing judges different from that prescribed in the constitution.
    It would be obnoxious to an additional objection, if the assumption of the State is correct, that Braughn, the attorney appointed by the judge of the Superior Criminal Court to act' in his place, was a de facto officer. In that case, the statute would provide for having two. judges for the Superior Criminal Court, whereas article 83 declares “that lor each court, one judge learned in the law, shall be elected.”
    Instead of authorizing the enactment of section 10 of act No. 124, article 90 of the constitution forbids it in terms of command. It directs the judge when and how he shall select another to preside in his place. Obviously this article did not confer any power upon the General Assembly; but, by indicating precisely how and when the judge shall select another to preside in his stead to try certain causes, it excludes other modes of selection and other causes; and as the manner of choosing a judge, provided -for in section 10 of ' act No. 124 differs from that prescribed in article 90, the said section is null and void.
    APPEAL from the Superior Criminal Court, parish of Orleans.

      G. R. Brauglin, attorney at law, acting in the place of Judge Atocha, disabled by sickness. A. B. Field, Attorney General, John MePhelin, district attorney, for plaintiff and appellee. J. J. Foley, for defendant and appellant.'
   Ludeling, C. J.

The defendant, having been convicted of the crime of perjury and sentenced to imprisonment at hard labor for five years, has appealed from said judgment.

It will be necessary to notice only the first assignment of error,' which is in the words following:

“The trial and sentence was coram non judice in this, that George H. Braughn, Esq.', an attorney at law, had no legal right to act as judge in the trial of the accused and pass sentence on him ; that the order appointing said George H. Braughn as judge of the Superior Criminal Court is null and void. Section 10 of the act 124 of 1874, under the authority of which said order so appointing said George H. Braughn as judge aforesaid was made, is unconstitutional and obnoxious to arti- ' cles 83, 90 and 94 of the constitution of the State.”

The State assumes the position that Mr. Braughn was a de facto judge, and that his right to hold the office can not be questioned col- ■ laterally. In his brief the Attorney General says:

“We assume the position that the question of Judge Braughn’s authority to act as judge of the Superior Criminal Court on the trial' of this case, can not be heard and determined by this court on this appeal.
“That if the court, from an examination of the record, finds that Braughn was a de facto officer when he tried the case, the validity of his acts will not be questioned.
“ This position is founded upon a rule of law which has been repeatedly recognized by the Supreme Court of this State, and of other States; i. e., that the acts of de faeto officers are binding as to third parties.
• “Whether the appointment of Braughn as judge of said court was or was not legal, can only be considered in a suit properly instituted, having for its object his vacation of the office into which he has intruded, or which he has usurped, or which, from any cause, he illegally holds.
“Any other mode of attacking his powers, or the legality of his acts considered only as a judge, would be subject to the objection that it is done by third parties, and done collaterally in proceedings the issues in which were made for wholly different purposes — to which the judge is not a party — and can not be incidentally made a party by plea or exception, and be thus required to contest his de jure right to act as a judge in a particular case.
“He can only be required to show in any case that he is acting under a color of title. On these points authorities are abundant to sustain what we have said. We refer to 15 Mass. 183, 171; 9 Johnson 135; 3 Abbot Dig. 352; U. S. Dig. vol. 2, 1871, p. 519; 3 An. 633; 10 An. 524; 13 An. 607; 22 An. 33; 16 Peters 71; 13 An. 404 ; 25 An. 548, 671.”

The proposition, that a de faeto officer’s right to the office held by him can not be attacked collaterally, is unquestionable. But the error in this argument is in assuming that Mr. Braughn was a defacto officer. Mr. Braughn did not pretend to hold the office of judge of the Superior Criminal Court, but, on the contrary, he recognized the right of Judge Atocha to said office, and he only claimed to exercise the functions of that office under a delegation of power from Judge Atocha. The right of Judge Atocha to said office was never disputed by Mr. Braughn, and his right to preside in that court would have been acknowledged by Mr. Braughn and the people any day during all the time Mr. Braughn acted under the said delegation of authority. Therefore, the question about the validity of a de facto officer’s acts can not arise in this case.

The question is, had the Judge of the Superior Criminal Court the right to appoint an attorney to act in his stead, as he did by the following general order rendered in chambers:

“New Orleans, February 20, 1875.
“ Order__The judge of the Superior Criminal Court for the parish of Orleans, A. A. Atocha, Esq., being temporarily unable to act in his capacity of judge, by reason of severe illness, it is ordered, pursuant to the provisions of section 10 of act No. 124 of the General Assembly of the State, approved April 9, 1874, and under the power and authority granted, that George H. Braughn, Esq., an attorney at law, who is duly qualified,, he and he is hereby appointed to preside as judge of the Superior Criminal Court for the parish of Orleans, during the inability of the judge to act, as above set forth, and shall, during the time he shall act, have the same powers as the judge of the court. It is further ordered that a copy of this order be forthwith communicated to the Governor, Attorney General, Secretary of State, district attorney and sheriff of the criminal courts. “ A. A. ATOCHA,
“Judge of the Superior Criminal Court of parish of Orleans.”

It seems to be conceded that the act No. 124 of the General Assembly of 1874 confers this power on the judge of the Superior Criminal Court, if it be constitutional. Is it constitutional1? Article 73 of the constitution provides that “ the judicial power shall be vested in a Supreme Court, in district courts, in parish courts, and in justices of the peace.” And article 83 of the constitution declaies that “the General Assembly shall divide the State into judicial districts, which shall remain unchanged for four years; and for each district court, one judge, learned in the law, shall be elected for each district by a plurality of the qualified electors thereof. For each district there shall be one district court, except in the parish of Orleans, in which the General Assembly may establish as many district courts as the general interests may require,” etc.

In 1853 the General Assembly passed an act to provide for the trial of recused cases out of New Orleans, by which the recused judge was authorized to select three members of the bar in attendance, from whom one should be chosen, by lot, to try the cases. This court held that said act was unconstitutional, because it provided a mode for choosing judges different from that prescribed in the constitution.

The act No. 124 is obnoxious to the same objection. It would be obnoxious to an additional objection, if the assumption of the State, that Mr. Braughn was a de facto officer, were correct; in that case the statute would provide for having two judges for ti e Superior Criminal Court, whereas article 83 declares that “for each court, one judge, learned in the law, shall be elected,” etc.

However, it is contended that the decisions above referred to, reported in 9 An. 62, and 10 An. 642, were made under the constitution of 1852, and that article 90 of the present constitution was not to be found in the constitution of 1852.

This is true — but instead of authorizing the enactment of section 10 of act No. 124, article 90 forbids it. In terms of command, it directs the judge when and how he shall select another to preside in his place. It provides, that “in any case, when the judge may be recused, and when he is not personally interested in the matter in contestation, he shall select a lawyer, having the qualifications required for a judge of his court, to try such cases. And when the judge is personally interested in the suit, he shall call upon the parish or district judge, as the case may be, to try the case.”

Obviously this article did not conier any power upon the General Assembly; but, by indicating, precisely, how and when the judge shall select another to preside in his stead to try certain causes, it excluded other modes of selection and other causes; and, as the manner of choosing a judge, provided for in section 10 of act No. 124, differs from that prescribed in article 90, the said section is null and void.

It is therefore ordered that'the verdict and judgment in this case be annulled; and it is further decreed that the case be remanded to the court a qua to be tried according to law.

Rehearing refused.


author: JIaliaferro, J.

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    No. 5860.
    Widow E. Lefranc, ex parte, on Rule to have Inscriptions of Taxes and Judgments for the same erased.
    The proceeding hy rule to annul the judgments complained of was irregular and inadmissible.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Henry O. Dibble, for plaintiff and appellee. Samuel D. Diane, assistant city attorney, for defendant and appellant.
   JIaliaferro, J.

The plaintiff in this case proceeded by rule against the city of New Orleans to show cause why various inscriptions for city taxes against her property, for several years on the rolls in custody of the Administrator of Finance, should not be canceled and all judgments thereupon annulled and set aside. Judgment was rendered in favor of the plaintiff and the city of New Orleans appealed.

The defendant, by its counsel, filed an exception to the proceeding of the plaintiff, averring that the various taxes in favor of the city against the property of the defendant have in due course of law become merged in judgments which can not be annulled in the manner pursued by plaintiff; that plaintiff shows no cause for annulling the said judgments, and the plea of prescription is interposed. We think the exception should be maintained. The proceeding by rule to annul the judgments complained of was irregular and inadmissible. Code of Practice, art. 610.

It is therefore ordered that the judgment of the lower court be annulled, avoided and reversed. It it further ordered that the exception be maintained and the suit dismissed at the plaintiff’s cost.


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    No. 5737.
    Succession of Michael R. Haggerty. Oppositions to Account of Administrator.
    In this instance the account and tableau of distribution, to which there are three oppositions, were homologated so far as not opposed. But this order or judgment was not signed, so far as this record shows.
    This omission or neglect is attempted to be supplied by a memorandum in the following words written on the margin of the page on which the unsigned judgment of homologation is found: “ The original of this judgment having been duly signed on the account, was lost or mislaid. O'. G-., Deputy Clerk.” This certificate or memorandum is unauthorized by law, and can not supply the defect or omission. If the judgment was signed the fact should have been proved, like any other fact, by legal evidence.
    Besides, it appears that the account was homologated without proof, except that the account had been advertised.
    The administrator having appropriated the proceeds of the personal as well as real property of the succession to the payment of a judicial mortgage, to the exclusion of the ordinary creditors, the judge a quo correctly maintained the opposition of Claffin & Co. to this distribution, and directed that only the proceeds of the real property be applied to the payment of the judicial mortgage, and that the proceeds of the personal property be distributed among the creditors.
    The court a, qua did not err in rejecting the claim of Thomas Dugan for a privilege. Dugan had rented a store to the deceased, and the claim, to secure which he pretends to have a privilege, was for damages done to the building. If the law gives a privilege for such a claim (unliquidated damages) the claim was not recorded, and the personal property in the leased premises had been removed.
    from the Second. District Court, parish of Orleans. Tissot, J.

      JB, Bermudez, for administrator, appellee. T. Gilmore & Sons, for J. J. Haggerty, opponent and appellant. Ciarle, Bayne & Rensliaw and Robert G. Bugué, for T. S. Dugan, opponent and appellant.
   Ludeling, C. J.

The administrator of the estate rendered an account and filed a tableau of distribution, which was duly advertised. Three oppositions were filed to the tableau of distribution, and on motion the account and tableau were homologated so far as not opposed. This order or judgment was not signed, so far as this record shows. This omission or neglect is attempted to be supplied by a memorandum, written on the margin of the page, on which the unsigned judgment of homologation is found, in the following words: “the original of this judgment having been duly signed on the account was lost or mislaid. J. GL, Deputy Clerk.”

This certificate or memorandum is unauthorized by law; and it can not supply the defect or omission. If the judgment was signed, the fact should have been proved like any other fact by legal evidence.

Besides, it appears that the account was homologated without proof, except that the account had been advertised. C. P. art. 1042 ; 21 An. 511; and 27 An., Succession of Dorville.

After this motion or order had been granted, a supplemental opposition was filed, objecting to the manner in which the proceeds of the personal property of the succession had been distributed. This was objected to, but the judge allowed the opposition to be filed, and no bill of exceptions was taken to the ruling.

It appears that J. J. Haggerty was a judgment creditor for upwards of $12,000, and that the administrator had appropriated the proceeds of the personal property as well as of the real property of the succession to the payment of the judicial mortgage to the exclusion of the ordinary creditors. The judge a quo maintained the opposition of Claffln & Co. to this distribution, and directed that only the proceeds of the real property be applied to the payment of the judicial mortgage, and that the proceeds of the personal property be distributed among all the creditors. From this part of the decree J. J. Haggerty, the mortgage creditor, appealed.

And Thomas Dugan appealed from the judgment rejecting his claim for a privilege. Dugan had rented a store to deceased, and the claim, to secure which he pretends to have a privilege, was for damages done to the building. If the law gives a privilege for such a claim, unliquidated damages, the claim was not recorded, and the personal property in the leased premises has been removed from it.

We think the judgment of the district court correct.

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

Rehearing refused.


text:
    No. 5761.
    City of New Orleans v. Mechanics’ and Traders’ Bank.
    Where a final judgment has never been revised in the manner provided, by the Code of Practice, it can not be practically reopened and reviewed, on a proceeding by rule, by the same court which rendered it, four months after it became final and while the fieri facias was in the hands of the sheriff.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Samuel P. Blanc, for plaintiff and appellant. Henry O. Dibble, for defendant and appellee.
   Wyly, J.

On November 14, 1874, the city of New Orleans recovered final judgment against defendant for $6800 for taxes due on the assessment roll of 1873.

On March 20, 1875, fieri facias issued on said judgment.

On March 23, three days after the fieri facias issued, the defendant took a rule on plaintiff to reduce the assessment on its capital from $250,000 to $84,000, and to reduce the tax from $6800 to $2100. No answer was filed. The rule, however, was made absolute and the assessment and tax were reduced as prayed for.

From this judgment plaintiff has taken this suspensive appeal. The case presents a question of practice which can not be sanctioned by this court.

Here a final judgment for $6800, which has never been revised in the manner provided by the Code of Practice, is practically reopened and reviewed, on a proceeding by rule, by the same court which rendered it, four months after it became final and while the fieri fadas was in the hands of the sheriff.

The tax sought to be reduced had long previous been merged into a judgment, and that judgment, the property of plaintiff, can not be reopened, revised, or in any manner disturbed, except as provided by the Code of Practice. And this the defendant has not attempted to do.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the rule herein be discharged at plaintiff’s costs in both courts.


text:
    No. 5949.
    State ex rel. Patrick Leahy v. Third Justice of the Peace. parish of Orleans, et al.
    It -was never contemplated that one sued before a justice of the peace could bring his case to be revised before the district or parish court, and before this court also. The right of double appeals is not conferred by the constitution.
    APPEAL from the Third District Court, parish of Orleans. Memiier, J.

      Walter S. Eogers and Alfred Shaw, for relator and appellant, J. W. Baker, for respondent and appellee.
   Ludeling, C. J.

J. H. Grover brought a suit before the Third Justice of the Peace for the parish of Orleans, to obtain the possession of his property from his tenant, the relator. The defendant in that suit claimed to hold under a verbal lease for two years, entered into before Grover bought the property; that the amount of said lease exceeds $500; and that the justice’s court is without jurisdiction, ratione materia. This exception was overruled. The defendant then applied to the Third District Court of New Orleans for a writ of prohibition against said justice of the peace to prevent him from usurping jurisdiction in the case. From the refusal of the district judge to perpetuate said prohibition, this appeal is taken. Conceding that the Third District Court might have granted the prohibition, this court has no power to revise the action of the Third District Court, refusing to perpetuate the prohibition. C. P. 845. The Third District Court could reverse the judgment of the justice’s court, on appeal; or if the Third Justice of the Peace had no jurisdiction over the case, an action of nullity could be brought, or the execution thereof might be enjoined, on the ground of its nullity. But it was never contemplated that one sued before a Justice of the Peace could bring his case to be revised before the district or parish court and before this court also. The right of double appeals is not conferred by the constitution.

It is ordered that the appeal be dismissed with costs.

Rehearing refused.


author: Morgan, J. Wyly, J.

text:
    No. 4824.
    J. B. Henry v. Meyer Goldman. Leon G’Sell, Appellant.
    An order of seizure and sale can be issued against mortgaged property transferred to a third possessor who assumed the payment of the mortgage debt, where the act of mortgage does not contain the non alienation clause.
    Whether proper notice has been given to the parties entitled to it, can not be considered in this appeal from an order of seizure and sale. It has repeatedly been held in an appeal of this hind that the only question is, whether the evidence authorizes the issuing of the hat.
    APPEAL from the Fifth District Court, parish of Orleans.

      Tissot, Judge of the Second District Court acting in the place of Gullom, J. Braughn, Buck <& Binkelspiel and Hornor <& Benedict, for plaintiff and appellee. Charles Bouque, for Leon G’Sell, appellant.
   Morgan, J.

This is an appeal from an order of seizure and sale, appellant being the third possessor of the property seized, having purchased the same subsequent to the execution of the mortgage which is now sought to be enforced. The act of mortgage does not contain the pact de non alienando, and, under ordinary circumstances, the proceeding via executiva would be an improper one.

But in the act of sale by which the appellant became the purchaser of the property now sought to be sold, he assumed the payment of the notes sued on. This places him in the same position relative to the plaintiff that the original debtor was. The act of mortgage made by the original mortgager imported a confession of judgment. Executory process could have issued against the property while it remained in his possession. It may issue against it when held by a party who has assumed the obligation of -the mortgager.

It is therefore ordered that the judgment of the district court be affirmed.

On Rehearing.

Wyly, J.

In this case the question is, can an order of seizure and sale be issued against mortgaged property transferred to a third possessor who assumed the payment of the mortgage debt, where the act of mortgage does not contain the non alienation clause. This question we answer in the affirmative. This court entertained the same opinion in the case of Woodward v. Dashiell, 15 La. 185.

As to the objection, that there is no evidence of appellant’s assumption of the payment of the mortgage debt, the reply is, the deed which he offers to this court to prove he.is a third possessor and entitled to appeal, shows also his assumption of the mortgage debt. The question whether proper notice has been given to the parties entitled to it. can not be considered in this appeal from an order of seizure and sale, It has repeatedly been held in an appeal of this kind that the only question is, does the evidence authorize the issuing of the flat.

It is therefore ordered that our former judgment remain undisturbed.


text:
    No. 4457.
    G. Henshaw & Sons v. D. Flannery & Co.
    Ho answer having been filed by the defendants, no judgment by default having been entered against them, it follows that there was no issue joined when final judgment was rendered. Without issue joined the court was incompetent to pronounce judgment. The fact that one of the defendants did not answer interrogatories within the legal delays, does not join issue with plaintiffs’ demand.
    APPEAL from the Fifth District Court, parish of Orleans. Leammont, J.

      Jacob Hawldns aud Tharp, for plaintiffs and appellees. W. L. Lancaster, for defendants and appellants.
   Morgan, J.

Plaintiffs sue the defendants on a balance of account. To their petition they attach interrogatories to be answered by Flannery, “under oath and within the legal delays.” The order issued as prayed for. Citation, with the service of the interrogatories and the order thereon, was served on Flannery on the second of August, 1872.

On the fifth of November, 1872, on motion of plaintiffs’ counsel, and on their showing to the court that the defendants, although duly cited, have failed to answer the interrogatories propounded to them within the legal delay; it was ordered that the interrogatories be taken for confessed, and that judgment be. rendered against them for the sum claimed. Defendants appeal.

No answer had been filed by the defendants; no judgment by default had been entered against them. There was, then, no issue joined when final judgment was rendered. Without issue joined the court was incompetent to pronounce judgment. The fact that one of the defendants did not answer interrogatories “within the legal delays,” does not join issue with plaintiffs’ demand.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the case be remanded to the lower court, to be proceeded in according to law.


author: Howell, J. Morgan, I.,

text:
    No. 5997.
    State ex rel. H. Newgass v. Judge of the Superior District Court, parish of Orleans.
    The judge a quo refused to grant an appeal from his refusal to grant an injunction in chambers. This court can issue no mandamus in the matter. The judge a quo has, in this case, simply refused to act and grant an expw'te order upon an expanse showing. This refusal can not be considered as a final judgment or an interlocutory order within the purview of the Code of Practice or any law from which an appeal lies, because it may work an irreparable injury. There is nothing for this court to revise, and hence there is no ground tor an appeal. It would be virtually assuming original jurisdiction were an order granted for an injunction, when none had been issued by the lower court. The non-action of the district judge in the premises can not be revised, amended or modified by this court.
    Application for a mandamus to be issued to tlie judge of the Superior District Court, parish of Orleans.

      Mornor & Benedict, for relator. Judge Mawlcins, in propria persona.

   Howell, J.

The relator seeks by this proceeding to compel the judge of the lower court to grant him an appeal from a refusal to- issue an injunction on an ex parte application. He alleges that, in a suit entitled, State ex rel. Robert Ray v. A. Dubuclet, Treasurer, the said judge granted an ex parte order of injunction prohibiting the said treasurer from paying any warrants from the funds then or thereafter in the treasury other than those held by the said Ray, and those of same nature held by other persons; that being the holder of warrants the payment of which was thus enjoined and prohibited, he presented a petition, affidavit and bond to the said judge, asking that Dubuclet, treasurer, be enjoined and prohibited from paying any warrants on the funds of 1874, until the right of parties in interest in said suit of Ray v. Dubuclet be finally determined, after proper parties are made thereto or permitted to intervene and be heard, and that upon the said petition the judge wrote the words “injunction refused,” whereupon he, the relator herein, asked in due form for a suspensive appeal from said refusal to grant the injunction thus prayed for, but the appeal was refused him, and he now asks for a mandamus to compel it, and for a prohibition forbidding the judge below to take further cognizance of the cause of Robert Ray v. Dubuclet, State Treasurer, and forbidding the said Ray from further prosecuting said case and forbidding the said treasurer from complying with the order in said case, until the further order of this court.

It is clear that the provisional writ of prohibition herein was improvidently issued by us, and the only question to be determined is whether or not the appeal should be granted. We think the simple statement, as made by the relator himself, shows that he has mistaken his remedy and is not entitled to a writ of mandamus.

The only case in our reports, in which an appeal from a refusal to issue an injunction seems to have been declared allowable, is that of the State v. Judge Lewis', 7 M. 457, decided in March, 1820. Since then no such right seems to have been exercised or recognized. The facts of that case are meagerly reported, but it appears that the parties who asked for the injunction, and whose property was about to be sold, had intervened in a pending litigation. Here the facts are very different. The refusal of the judge can not be considered a final judgment, or an interlocutory order, within the provisions of the Code of Practice or any law, from which an appeal lies, because it may work an irreparable injury. The relator is not without a remedy. The judge has simply refused to act — refused to grant an ex parte order upon an ex parte showing. There is nothing for us to revise, because the judge rendered no judgment and made no order, and hence there is no ground for an appeal. Further, were the appeal to be brought up and we should say that the judge erred in refusing the injunction, what order or decree could we render, and what would be its character ? Would it not be virtually assuming original jurisdiction, were we to grant an order for an injunction when none had been issued by the lower court? What is there for us to revise, amend or modify ? Certainly not the non-action of the district judge. We can not in this proceeding examine the merits of the contemplated injunction suit and determine whether or not the injunction should have been granted. The only question to be considered now is .whether or not the relator is entitled to an appeal from the refusal complained of. It appears to us very clear that he is not. The appeal could bring before us only the ex parte application which was presented to the district judge in chambers, and this tribunal, whose jurisdiction is only appellate, would be substituted for the lower court and would have to refuse or grant the application for the injunction, a matter not within our jurisdiction. We could not say that we would render such a decree or order that he should have rendered; for he rendered none for us to correct. There must be parties to a controversy before us, as well as the subject matter of the controversy, or some proceeding in the lower court. As the record now stands, there is no defendant in the application for an injunction. There was no defendant before the district judge, and we can not order one to be made a party.

In any view that we can take of the subject, we can discover no legal ground for an appeal.

Had what is called a rule nisi been taken and, after a hearing, the judge refused the injunction, or had the relator intervened in the .suit of Ray, a different question would be perhaps presented. But the relator neither intervened nor asked to be permitted to intervene in said suit of State ex rel. Ray v. Dubuclet, Treasurer, and there were no proceedings in his, relator’s application to the judge for an injunction, to be revised by us. See article 895, Code of Practice.

It is theretore ordered that the writs of mandamus and prohibition issued herein be set aside and dismissed with costs.

Morgan, I.,

dissenting. The relator presented a petition to the Judge of the Superior District Court, in which he alleged that a large amount of tases of the revenue of 1874 were about being paid into the treasury, which should be paid to him and to other holders of warrants on the State treasury.

That Robert Ray had filed a suit in that court against the Treasurer, in which he had prayed for and obtained an injunction prohibiting him from paying any other warrants than those held by Ray, or others of like nature, and especially from paying the warrants held by relator and others of like nature; that he is informed by the clerk that the petition is not on file, but that it is in the possession of the plaintiff, and therefore that he, relator, can not know its allegations, and that he only has knowledge of the injunction issued thereon; that relator’s warrants are of equal validity, date and rank with those held by Ray, and should be paid equally with Ray’s; that the preference allowed by said injunction to Ray is a manifest and irreparable injury to him, relator, and was granted without notice to him, and without furnishing any bond to secure him against the damages he will suffer by the preference given by said injunction ; that he has an interest in contesting the claim and pretensions of Ray, but that it is impossible for him at this time, and before the injury shall become irreparable, and that it-is necessary to prevent the treasurer from paying any of the warrants drawn on him by the Auditor against the revenues of 1874 until the rights of the parties and all in interest can be definitely settled; that by reason of said suit and the orders thereon, Ray is obtaining a preference contrary to law, and is thus violating the constitution of the State of Louisiana, and is virtually depriving him of his property without due process of law, contrary to the constitution of the United States; that he prayed that-the treasurer be enjoined and prohibited from paying any warrants on the revenues of 1874 until the right of parties in interest in the suit of Ray'u. Dubuclet can be'finally determined, after proper parties are made thereto, or be permitted to intervene and be heard therein; that there be reserved to him his rights for such damages as he may suffer; that his injunction may be made perpetual; that he made the necessary affidavit and offered a sufficient bond; and that the judge rendered judgment as follows: “Injunction refused,” and signed it; that he moved for a suspensive appeal from this judgment, tendering a sufficient bond therefor, which was refused.

He prays for a mandamus to the district judge commanding an appeal to be allowed him, and for a writ of prohibition forbidding the judge from taking further cognizance of the case of Ray v. Dubuclet, forbidding Ray from prosecuting his suit and the Treasurer from complying with the order rendered in that case, until the further order of this court.

In my opinion both orders should be granted.

That the relator had a right to intervene in the suit of Ray v. Dubuclet, I think, can not be‘seriously denied, and that, having intervened, he would be entitled to an appeal from any judgment rendered therein, interlocutory or final, which did him an irreparable injury, is, it seems to me, clear.

In this instance he could not intervene, because there was no petition on the files of the court in which he could file an intervention.

Now, what did the relator ask at the hands of the district judge? Simply that an injunctionftissue prohibiting the Treasurer from proceeding under the injunction issued in favor of Ray until he can intervene in the suit out of which the injunction issued. This the court refused.

I think the relator was entitled to the injunction.

An injunction may compel parties or public officers to do certain acts, as well as restrain them from acting. It is as effective to enforce a right as to prevent a wrong. C. P. 298; McDonogh v. Calloway, 7 R. 442, 2 An. 773.

It seems to me that whenever one has the right to enjoin, he has the right to appeal from an order refusing him an injunction in any case where the appellate court has jurisdiction.

In the case of the State v. Lewis, 7 M. 457, the court held that, an appeal will lie from the refusal of a judge to enjoin a sale.

The relator alleges that he is the holder of certain warrants drawn by the proper officer of the. government upon the treasury; that a party has obtained from the district judge an order enjoining the Treasurer from paying any warrants except the one held by him and others of similar character; that the petition upon which the injunction issued is not on the files of the court; he alleges that he is enjoined by this injunction, and prays for a counter injunction until he can intervene and proper parties may be made, that it may be ascertained whether the original injunction properly issued. His application is denied. He asks for an appeal. I think he is entitled to it.


text:
    No. 3959.
    Wm. Durbridge v. The Slaughterhouse Company. A. J. Oliver, Intervenor.
    This court will have nothing to do with a suit springing from a fund created for the purpose of corrupting and improperly influencing members of the Legislature in their action on matters of legislation then before them.
    APPEAL from the Sixth District. Court, parish of Orleans. Cooley, J.

      J. A. Bartlette, J. Livingston, for plaintiff and appellant. A. Voorhies, JBornor & Benedict. Semmes & Mott, for defendant and appellant. Wooldridge & Thomas, for intervenor and appellant.
   Morgan, J.

The motion to dismiss this appeal on the ground that the record does not contain all the evidence, comes too late. The record was filed in April, 1870. The motion to dismiss was made shortly before the argument.

On the merits we are satisfied, from an examination of the testimony, that the ground from which this action springs was a fund created for the purpose of corrupting and improperly influencing members of the Legislature in their action on a matter of legislation then before them. We will have nothing to do with it.

It is therefore ordered, adjudged and decreed that this appeal be dismissed at appellant’s costs.

Rehearing refused.


author: Taliaferro, J. Morgan, J.,

text:
    No. 5996.
    State ex rel. M. A. Pike and John H. Pike v. The Judge of the Superior District Court, Parish of Orleans.
    A. L. Gusman, alleging an interest in the affairs of a defunct insurance company, applied to the judge of the Superior District Court, parish of Orleans, for a mandamus to compel M..A. Pike and John A. Pike who had possession of the books of the company, to grant him access to the same for examination. On the writ being made peremptory, the relators M. A. Pike and John A. Pike moved for a suspensive appeal, which being granted was subsequently set aside and permitted to operate only as a devolutive one. Whereupon relators applied to this court for a writ of prohibition to be directed to the judge a quo and the civil sheriff of the parish of Orleans, restraining them from proceeding in the premises. As there is nothing in the record to show that there is an amount exceeding five hundred dollars in dispute, this court has no jurisdiction ratione materice.

    APPEAL for a writ of prohibition against the judge of the Superior District Court, parish of Orleans.

      H. B. Magruder, for relators. Henry B. Kelly, for A. L. Gusman. Judge Haidkms, in propria persona.

   Taliaferro, J.

A. L. Gusman, alleging an interest in the affairs of a defunct insurance company, the books and papers of which being in. the possession of Wm. S. Pike as president, during his life time, were found in his succession after Ms decease, applied to the judge of the Superior Court for a mandamus to compel Mary A. Pike and John H. Pike, the legal representatives ofWm. S. Pike, deceased, to grant him access at seasonaMe and proper hours to the said books and papers for examination. The writ prayed for was made peremptory and the relators applied for a suspensive appeal, which was granted on bond with surety in the sum of $300 as fixed by the judge. The required bond was furnished, but subsequently, on application of Gusman, the judge set aside the appeal as a suspensive one, and permitted it to operate only as a devolutive appeal. The relators thereupon obtained an order of this court requiring the said judge and the civil sheriff of the parish of Orleans to show cause why a writ of prohibition should not issue restraining them from further proceedings in said case. The judge a quo and the sheriff answered the rule,.and as we think satisfactorily in their behalf.

It is clear that this court has not jurisdiction ratione materiw. See case State ex rel. DeSt. Romes v. The Steam Cotton Press Company, 22 An. 622, and State ex rel. Nugas v. Friedlander, 25 An. 43, and 24 An. 148. Let the writ be discharged.

Morgan, J.,

dissenting. The plaintiff in the rule out of which this proceeding grows, does not claim to be the owner of the books in question. The relators do not pretend to their ownership.

W. S. Pike, it is alleged, was the President of an insurance company. The books of the company were in his possession. The relators found them among his effects.

No person has been appointed by the parties interested in the insurance company to take charge of them.

The plaintiff took a rule upon Mrs. Pike and John Pike, not for their possession but to be authorized to. examine them. He alleges that he owns stock in the company exceeding $3000. No direct action has been instituted. The proceedings commenced by rule. The judge ordered that the books be subject to the inspection of the plaintiff in rule whenever he pleased to examine them on days not legal holidays between the hours of 10 A. M. and 3 P. M.

From this judgment the relators moved for a suspensive appeal, which was granted upon their furnishing bond in the sum of $300. Plaintiff in rule then moved to set aside the appeal, which was done, as regards its suspensive effect, upon the ground that the bond was not sufficient.

I can not agree with my brethren in the opinion that we are without jurisdiction ratione materiw. The relators are by the judgment of the district judge, condemned to submit to a diurnal visit during every legal day, and during all the business hours thereof. To my mind this involves a great deal more than the sum of five hundred dollars. It gives to the plaintiff an office in the relator’s house or at their place of business. It puts a person near them, overlooking their business, and destroys their privacy. Such inconveniences and annoyances are in my opinion of much greater consequence than five hundred dollars.

I think, too, that the bond was sufficient. It was in the sum fixed by the judge, and, as there was neither moneyed judgment to be executed, nor property to be delivered, the bond given was sufficient.

I think the mandamus should be made peremptory.