author: Howell, J. Howell, J.

text:
    No. 354.
    A. D. Battle v. W. Jenkins.
    Upon tlie question of tlie nature of tlie evidence necessary to prove a planting partnership, presented in defendant’s bill of exceptions in this suit, tlie court knows of no law which requires the proof to be in writing.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Levisee, J.

      Nutt & Leonard, for plaintiff and appellee. Land <& Taylor, for defendant and appellant.
   Howell, J.

This is a suit for the settlement of a planting partnership, shown to have existed between plaintiff and defendant during the year 1867, and to establish a privilege on the crop in favor of Gilmer & Hopkins, the commission merchants of the plaintiff, for a debt contracted by the latter. The defendant has appealed from a judgment in favor of plaintiff, for the use of Gilmer & Hopkins and against the defendant, for $594 37, with legal interest from the first January, 1868, in full settlement of the planting partnership and of their personal' accounts to first January, 1868, and sustaining the sequestration taken out by plaintiff, with all costs. The plaintiff asks that the judgment be increased to $841 01.

The principle on which the partnership accounts should be adjusted,, when no different agreement is shown, is, that each should share equally in the profits and losses, and each should contribute equally to-the payment of the expenses. If one has paid more than the other, the one who has paid less owes to the other the sum necessary to make the payments equal.

In this case the items and amounts of the expenses are somewhat unsatisfactory, as presented in the evidence, but we will adopt the figures of the plaintiff’s counsel, but not their mode of adjustment.

The value of the crop is...................................$3,854 23-

The amount of the expenditures is......................... 3,540 60

Amount of profits to be divided............................ $313 63

The share of each is the half, $156 81£.

The whole crop being in the hands of the defendant, he must account to the plaintiff for the one-half of the profits ($156 81J-), but it appears that the defendant paid $2749 55 of the expenses, while he was bound for only the one-half, to wit: $1770 30 (one-half of $3540 60, as above). The difference is $979 25, which the plaintiff, must make up, and which added to the amount paid or furnished by the plaintiff, to wit, $791 05, makes $1770 30, the half of the whole expenses. From this sum of $979 25, due by plaintiff to the defendant on account of the expenses, the share of plaintiff in the profits ($156 81|j must be deducted, which leaves $722 43-3,- due by plaintiff.' to defendant. On the theory on which the foregoing calculation is based, we do not allow the charge for the board and lodging of plaintiff and his wife. They furnished their own room, and the nature of the items of expenses indicates that the table was probably supplied at the common expense.

But the account of plaintiff against defendant for $296 65, which is-proven to be correct, seems to be entirely distinct from the partnership affairs, and should, under the pleadings and evidence, be allowed to plaintiff. This leaves the plaintiff’s indebtedness to defendant on a general settlement to be $435 781. We will add that the other items in defendant’s account against plaintiff, besides the board, are accounted for or explained by the latter.

Upon the question of the nature of the evidence necessary to prove a planting partnership, presented in defendant’s bill of exceptions, we-will remark that we know of no law which requires the proof to be in writin'g. There is in it no partnership in the ownership of real estate,. or in the usufruct or use of real estate, in the sense contended for by defendant’s counsel.

It is therefore ordered that the judgment appealed from be reversed, and that the defendant recover of plaintiff $435 78-J-, with legal interest from first of January, 1868, in full settlement of their partnership and personal accounts for the year 1867, and costs in both courts.

On Rehearing.

Howell, J.

Upon a re-examination of this case, we think we erred both in the “figures” and the “mode of adjustment” adopted by us in our former opinion, and we now adopt the calijulation and conclusion of the district judge, who gave the facts a thorough analysis, and whose decree has done justice to the parties as nearly as can be under the circumstances presented in the record. He found that the expenditures exceeded the value of the crop, and made the defendant, who had in his possession the crop or its proceeds, account to plaintiff for a sum proportionate to the amount contributed by the latter, embracing in the settlement the personal accounts of the two partners. In their brief the' plaintiff’s counsel say the judgment of the court a qiia is erroneous only in not allowing plaintiff enough. We think it allows as much as he is entitled to in the most favorable view. But we can not, under the unsatisfactory evidence, reduce the amount or give judgment in favor of defendant, who has retained the crop.

It is therefore ordered that our former decree be set aside, and that the judgment appealed from be affirmed with costs.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 396.
    Mrs. M. J. Puckett and Husband v. W. Ingram Law. E. Nalle, Warrantor.
    It was clearly the purpose of the Legislature, by the act of 1840, enlarging the powers of commissioners for the State residing in other States, to confer upon them the usual powers and functions belonging to notaries by the laws of this State.
    Written acts which, by intendment of law, are clothed with solemnities in their execution, in order that they may become enduring records of past events, more surely to be relied upon than the frail memory of men, should not hastily be disregarded even upon the positive evidence of a single witness of their falsity, when such evidence is isolated, unsupported by facts aliunde, and given by the witness in his own behalf under strong influences of self-interest.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Todd & Brigham, for plaintiffs and appellants. B. (?. Gobi, for warrantor and appellee.
   Taliaferro, J.

In this case, a married woman having obtained a judgment against her husband for paraphernal claims, institutes a hypothecary action to enforce the same against lands formerly owned by her husband, which are now owned by and in possession of third parties To the plaintiff’s suit, Nalle, the principal defendant, answered, denying that the wife ever had any just claims against her husband to entitle her to a mortgage on his property, and avers that ii, by law, there ever existed a legal mortgage in her favor on the lands now owned by defendant, she formally renounced the same in a notarial act passed before John D. Elliot, a commissioner of the State of Louisiana for the State of Mississippi, on the fourteenth of June, 1860.

In an amended petition, the plaintiff alleges that the pretended renunciation of her rights, set up by the defendant, is null and void, alleging as nullities:

First — That the so-called commissioner was wholly unauthorized to receive or pass any act of renunciation, not being clothed by the laws of the State of Louisiana, then in existence, with authority to execute such acts.

Second — That she signed the writing called a renunciation in error of law and of fact; that she was not apprised or informed by the pretended commissioner, nor by any other person of the nature, character and extent of her rights on the said property of her husband, and was in entire ignorance of the character of the writing she signed; that she was not examined out of the presence or even in the presence of her husband, and an explanation of her rights given and her consent obtained to a renunciation of these rights according to the laws of the State of Louisiana; that she was induced to sign the act irom the effect and constraint of marital influence exercised over her by her husband at the time and before she signed the act.

Third — That the pretended renunciation was procured by Edward Nalle fraudulently, through his promise to furnish her husband $3300 to enter lands with — an agreement which he never fulfilled.

The plaintiff pleads the prescription of one year against the attack made by the defendant upon her judgment, alleging the same to have been obtained on the first of June, 1871, nearly two years before the filing of defendant’s answer, in which she sets up the nullity of her judgment. In this amended petition the plaintiff goes on to state the origin of her parapernal rights, about the validity of which there was much controversy, and much evidence taken. We have thought proper to narrow down this controversy to the consideration of the first two points made by the plaintiff, viz :

I. The authority or right of the commissioner to receive or pass acts of renunciation by married women.

II. Whether the renunciation taken by the commissioner is valid in law.

We think it was clearly the purpose of the Legislature, by the act of 1840, enlarging the powers of commissioners for the State residing in other States, to confer upon them the usual powers and functions belonging to notaries by the laws of this State. Among these is the power to take renunciations of married women of their rights on property sold or mortgaged by their husbands. By the first section of the act of twenty-fourth March, 1840, commissioners are “authorized and empowered to take the acirnowledgment and proof of any deed, mortgage or conveyance of any lands, tenements, slaves or real property lying and being in the State of Louisiana, and to take the acknowledgment and proof of the execution of any instrument of writing for the sale, transfer or assignment of any property, movable or immovable, and of rights and debts,” etc. If the terms here used do not directly and expressly confer upon commissioners the power to take the renunciation of married women of their rights on property, they would seem from their general scope clearly to imply that power. A different construction would, it is obvious, render nugatory to a considerable extent the benefits and facilities to business transactions which were the primary objects of the act.

The renunciation of the plaintiff in the case before the court was made on the fourteenth of June, 1860. She brought suit against her husband in 1871, and on the first of June of that year recovered judgment against him for the sum of $7857 97, with eight per cent, interest thereon from the third of April, 1857, with recognition of legal mortgage to date, and take effect from that time, and she is in this suit endeavoring to enforce that mortgage which she formally renounced before the commissioner in Mississippi nearly eleven years before. But this renunciation, as we have already seen, she repudiates as having been obtained unduly through the marital influence of her husband and the fraud of the defendant.

The act of renunciation upon its face is in every respect full and complete. It recites that all the requisites of the law necessary to the validity of such acts have been complied with, giving in detail all the formalities used in receiving the renunciation, and announcing the declaration of the wife that she executed the act voluntarily, after being fully informed of the nature and effect of the renunciation. The act is signed by the wife, together with her husband, before the commissioner and in presence of two witnesses. The act bears the official signature of the commissioner, with his seal of office. The act must prima fade be regarded as authentic, and all the acts and declarations of the parties to it, we must assume, were done, made and acknowledged as detailed by the commissioner.

There is nothing in the record, except the testimony of the plaintiff herself, that impugns the verity of the act, or tends to show that its recitals are untrue. There are no circumstances which support her testimony. On the contrary, there seems to be some which go to weaken it. She testifies wholly in her own interest, and that interest donbtless a very strong one. Neither the commissioner himself, nor either of the attesting witnesses, nor any one else, has been called to testify on the subject. Her delay of ten or twelve years to have the alleged violation of her rights redressed is unexplained. Her memory of events that transpired in 1860, after the exciting events that have intervened in this country, may not, as to all matters relating to the act passed before the commissioner, be perfect and distinct. Written acts which by intendment of law are clothed with solemnities in their execution, in order that they may become enduring records of past events, more surely to be relied upon than the frail memory of men, should not hastily be disregarded, even upon the positive evidence of a single witness of their falsity; when such evidence is isolated, unsupported by facts aliunde, and given by the witness in his own behalf, under strong influences of self-interest.

We therefore conclude that the judgment of the court rejecting the plaintiffs’ demand was properly rendered. Considering that the wife’s rights, if she ever had any on the property she seeks to enforce her claims upon, were renounced by the act of fourteenth of June, 1860, before the commissioner, it becomes unnecessary to review the other issues made by the pai ties in this casé.

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


author: Wydy, J.

text:
    No. 376.
    John H. Wisner’s Curator v. The Mayor and City Council of Monroe.

      A political corporation caii not make a contract in violation of the law of its incorporation. Under a title purporting to amend only tlie first section of a statute, it is not competent to amend other sections of said act. Such amendments not being covered by the title, are null and void, because made in violation of article 114 of the constitution.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Bay, J.

      Morrison <& Farmer, for plaintiff and appellant. B. G. Oobb, for defendant and appellee.
   Wydy, J.

The plaintiff alleges that in 1868 the defendants employed John H. Wisner, then sheriff of the parish of Ouachita, to execute all the duties which it was previously the duty of the town constable to perform, and they fixed his salary at one thousand dollars per annum; that this contract or ordinance was adopted by the defendants pursuant to section 4 of act 94 of the acts of 1868, amending act 76 of the acts of 1866; also that they employed him by an ordinance to take care of a fire engine, at a salary of one hundred and fifty dollars per annum; that on these two contracts the defendants owe a balance of five hundred and seventy-five dollars, for which judgment is prayed.

The court rejected, the demand of the plaintiff, and he has appealed.

There is no controversy as to the existence of these contracts and as to the performance of the services; but the question is, had the defendants authority thus to contract 1

The act of 1866 provides for the election of a town constable, whose terra of office shall be for two years; that in case of resignation or death, the vacancy to be filled by election, after ten days’ notice; that in case of sickness, a constable jpro tem. to be appointed; and that the duties of this officer, among others, shall be, to ‘‘ execute all summons, orders, warrants, judgments, and decree of the justice of the. peace of the town.”

In 1868 the statute was amended, the office of town constable was abolished, and the duties thereof were directed to be performed by the constable of the ward in which Monroe is situated, or by the sheriff and his deputies. It appears, however, that this part of the act is violative of article 114 of the Constitution — it is not covered by the title, and it is void.

The title of the act of 1868 is “an act to amend the first section of an act to incorporate the town of Monroe, in the parish of Ouachita, and to provide for the government of the same, approved eighth of March, 3866.” The first section of the act to be amended relates only to the geographical limits of the town. Under the title, therefore, purporting to amend only the first section of the statute of 1866, it was not competent to amend other sections of said act, to abolish the office of town constable and transfer the duties thereof to the sheriff and his deputies. Without this provision of the act of 1868, the defendants could not employ John H. Wisner, because the act of 1866 remained in full force, designating the duties in question to be performed by the town constable.

A political corporation can not make a contract in violation of the law of their incorporation.

There are other questions, but they are not of a serious character.

Judgment affirmed.


author: Morgan, J.

text:
    No. 403.
    Gerspach & Herring v. W. H. H. Mullin.
    The assignment of error, upon which a reversal of the judgment is asked, that parol evidence was introduced to prove a promise to pay eight per cent, interest, is a ground to amend the judgment.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Ray, J.

      R. G. Cobb, for plaintiff and appellees. J. T. Strother, for defendant and appellant.
   Morgan, J.

The first assignment of error is that parol evidence was introduced by the plaintiffs which contradicts the deed introduced by themselves.

We find that the evidence was introduced to explain how the cash payment was made, and not to contradict the deed. The evidence was therefore properly admitted.

The second error assigned is that parol evidence was introduced to prove the promise to pay the debt of a third person, which is in contravention of the prohibitory provisions of the code.

But we do not find any promise to pay the debt of a third person. There was then no reason why the testimony should not have been received.

The last assignment of error upon which a reversal of the judgment is asked, is that parol evidence was introduced to prove a promise to pay eight per cent, interest. This is a ground to amend the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be amended by reducing the interest therein allowed from eight to five per cent., and that, as thus amended, it be affirmed. The costs of the lower court to be borne by the defendant j. those of this court by the appellee.


author: Wyly, J.

text:
    No. 378.
    J. A. Willard v. W. D. Brigham. Woodruff Norsworthy et als., Third Opponents.
    Under the statutory provisions of the United States, the property of a bankrupt may be sol'd free of incumbrances by order of the bankrupt court.
    But to sell property free of incumbrances, the assignee must apply to the bankrupt court for' an order to that effect, and must set forth the facts that justify the application, so that the judge may decide whether it shall be granted, and the secured creditor must be properly notified and summoned to appear and protect his interests. Otherwise, being the holder of a prior mortgage and not being a party to the proceedings, he would not have his rights affected thereby, and his hypothecary action, as in this case, would interrupt prescription, where notices were served upon the third possessor under the act of sale by the assignee.
    The property having passed out of the jurisdiction of the bankrupt court, it was useless t<>' cite the assignee in a proceeding against the hypothecated property, because he had no-interest therein,- and it was also useless to cite the discharged bankrupt (the obligor), because he was no longer bound for the debt.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. Bay, J.

      Bunn, Neioton c6 Male, for plaintiff. J. & 8. B. MeEnery, for defendant. Biehardson & MeEnery, for third opponents.
   Wyly, J.

In 1866 William D. Brigham bought from W. A. Parks-one undivided third of the plantation known as the Parks’ place, and to. secure the notes given for the price, he gave a special mortgage with vendor’s privilege on the property purchased. These notes were afterward transferred to the third opponent, Woodruff Norsworthy.

Brigham went into bankruptcy, and in 1869, Norton, his assignee, sold the land at bankrupt sale, free of all incumbrances. The plaintiff; James A. Willard, bought it, with some two thousand five hundred acres of other lands, for the price of $1600; and in a few days thereafter, sold the same to W. D. Brigham, the discharged bankrupt, for $4500, on credit, taking notes, secured by mortgage on the land. Brigham failed to pay these notes, and Willard foreclosed the mortgage, and proceeded to sell the hypothecated property, when Norsworthy, who had caused his mortgage to be rendered executory, filed a third opposition, claiming the proceeds. And this is the controversy now before the court.

The plaintiff, the purchaser at bankrupt sale, claims the funds because of his special mortgage and vendor’s privilege, resulting from his sale to Brigham. Norsworthy claims the proceeds of the sale because of the prior special mortgage and vendor’s privilege, securing the debt of Brigham to Parks, which, as before said, was transferred to him. Norsworthy held the first mortgage and vendor’s privilege on the undivided third of the Parks place when Brigham surrendered it in bankruptcy. He never proved his claim against Brigham, nor did he make any appearance in the bankrupt proceedings. Willard claims,, however; that this mortgage was extinguished by the sale of the property in bankruptcy, sold by order of the court free of incumbrances, and by the cancellation of this mortgage on the records of Morehouse parish, by order of the United States District Court sitting in bankruptcy. The important questions are :

First — Whether the United States Court sitting in bankruptcy had authority, under the bankrupt law of second of March, 1867, to order ' the sale of the property in question free of prior incumbrances 9

Second — If the court had the authority, have the requirements of law been observed so as to remove the special mortgage and vendor’s privilege set up by Woodruff Norsworthy, the third opponent in this ease1?

On the first point we find no difficulty. The provisions of the bankrupt act of 1841 were similar in this respect to the one now1 in force, and the Supreme Court of the United States have frequently held that the property of a bankrupt may be sold free of incumbrances by order of the bankrupt court. And the same has been decided by this court, 5 R. 27, 49; 6 R. .159; 3 Howard, 296, 426 ; 6 Howard, 486.

In order, however, to sell property free of incumbrances, the assignee must apply to the bankrupt court for an order to that effect, and must set forth the facts that justify the order, that the judge may decide whether the application should be granted. “As this proceeding specially affects the rights of the secured creditor, he must be properly notified and summoned to appear and protect his interests. This is done by passing an order to show cause, and directing that a copy of ■such order and of the petition be served upon him.” Bump on Bank■ruptcy, sixth edition, p. 151, and authorities there cited.

In the case before us we do not find that Norsworthy was properly •notified, or was legally made a party to the proceeding resulting in the ■ order to sell the property in question free of his prior mortgage. Not being a party to the proceedings, his rights are unaffected thereby.

There is no force in the objection that the hypothecary proceedings of Norsworthy did not interrupt the prescription of the notes. Notices • of the proceeding were served upon the third possessor. The property had passed out of the jurisdiction of the bankrupt court; therefore it •was useless to cite the assignee in a proceeding against the hypothecated •property, because he had no interest therein. It was useless to cite the discharged bankrupt, the obligor, because he was no longer bound •for the debt. The only right remaining to Norsworthy was a hypothecary right against the property. We regard his proceeding as a hypothecary action, and the notice served in this case interrupted-prescription.

The other objections urged by the appellants are without weight.

It is therefore ordered that the judgment herein in favor of the third opponent be affirmed with costs.
      Carried "by writ of error to the Supreme Court of the United States.


author: Ludeling, C. J.

text:
    No. 407.
    J. J. Hasley and J. B. Rutland, Tutor, v. Phinetta B. Hasley.
    Where a will was made in these terms: “ At home, March 4,1870. I this day make my will. I want my wife to keep and maneg all of my estate both reil and pursnol deuren her lif time and be Lowed to sell eny of the land for not les than the apprsment and I apoint my wife administrator;
    Held — That said will contains no substitution and no fidei cormnissum, which are never to be presumed;
    ' That the words of a will, like those of a law, are generally to he understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words;
    ‘That said will, construed by these rules, means that the testator intended to give the usufruct of his estate to his wife, and is valid.
    APPEAL from the Parish Court, parish of Ouachita. Balcer, J.

      B.

      <x. Oobb, for plaintiffs and appellees. B. W. & B. Richardson, for defendant and appellant.
   Ludeling, C. J.

David Hasley died, in Ouachita parish, on the ninth October, 1873. Phinetta B. Hasley, the defendant, is his widow; and the plaintiffs are children, by a former marriage, and forced heirs .of David Hasley.

The deceased left a large estate, a considerable portion whereof is ■claimed to be community. On the fifteenth January, 1873, was probated, as the last will and testament of David Hasley, the following instrument-:

“ At Home, March 4th, 1870.
I this day make my will.
“ I want my wife to keep and maneg all of my estate both reil and pursnel deuren her lif time and be lowed to sell eny of the land for not les than the apprsment and I appoint my wife administrate!’.
David Haslet.”

The plaintiffs sue to annul the probate aud to have the will declared void, on the following grounds :

That the document is not a will, “ as it does not convey anything to the supposed universal legatee, and is contrary to the laws of this State, containing a substitution and fidei commissa clause contrary to law; that plaintiffs are the sole forced heirs of David Hasley, and that said document, so pretended to be probated on the fifteenth of January, 1873, attempts to deprive them of their legitimate portion secured to them by law; and that said pretended will is void for want of meaning, and that the probate thereof is null and void.”

The probate judge decided that the will was null for want of meaning, and annulled the probating thereof.

The defendant has appealed.

We observe that the grounds, upon which the will is attacked, are inconsistent, but we will proceed to notice them.

There is clearly no substitution. Rachal v. Rachal, 1 R. 115; C. C. 1520. Nor do we think that there is a fidei comtmsswm. Nimmo v. Bonney, 4 R. 176; 3 An. 494.

The Code, in abolishing substitutions and fidei commissa, has for its •object the prevention of the evil of tying up property in the hands of individuals, for a length of time, and placing it out of commerce. The reverse of this appears to have been the intention of the testator in this case. Substitutions and fidei commissa are never presumed. Unless the will can not be understood otherwise than in the sense of establishing a substitution or fidei eommissum, it will be maintained. “A disposition must be understood in the sense in which it can have effect, rather than that in which it can have none.” C. C., art. 1713.

And the words of a will, like those of a law, “ are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular •use of the words.” C. C. article 15.

Construed by these rules, we are bound to hold that the testator intended to give the usufruct of his estate to his wife.

The plaintiffs’ counsel contends that the words “ keep and manage,’ only convey the idea of administration, or agency. The second definition of the word keep,” given by Worcester, is to have in possession, use, care, or custody.” Keep is a very general term, and is variously applied. A.person keeps what is his own, and retains what is not taken from him. He keeps his farm or property, and retains an office.” When Paul tells Peter he can keep his gun, or eart, or farm during a certain period, he will be understood to give Peter the use and enjoyment of the property. And such, we think, was the meaning in which the word was used by David Hasley. That he intended to constitute the instrument in question his last will can not be doubted, for he says so in unequivocal language. Can it be supposed that he desired to make his will solely to impose a burden upon his-aged spouse, in case she should survive him, by giving her the care and management of his property, without its use and enjoyment 1

It appears that on the day after David Hasley made his will, Mrs. Hasley went before a notary and made her will' by public act, as she-could not write. In that will she gave the use and usufruct of all her property to her husband during his life, and appointed him her-executor.

We think it is a fair inierence to be deduced from the facts, that the making of said wills was the result of conference and a mutual understanding between the two spouses ; that they should make reciprocal testaments in favor of each other, giving the survivor the use and usufruct of the testator’s property.

The will of David Hasley has all the formalities of an olographic testament, and it is capable of being understood in the manner interpreted by us. It is our duty therefore to maintain its validity.

It is therefore ordered and adjudged that the judgment of the lower-court be set aside, and that there be judgment in favor of the defendant, and against the plain tiffs,, rejecting their demand with costs.

On Application por a Rehearing.

The application for rehearing is refused. The only question under the written agreement in the record before the court a qua and this court for decision, was the validity or nullity of the will. Our opinion, and decree refer to that question alone.


text:
    No. 399.
    W. G. Kennedy v. C. H. Morrison et al.
    This is an action to set aside the pretended transfer of a suit on the ground that it was the sale of a litigious right in oontravention of article 2447 of the Revised Code.
    It is the actual intention of the parties, and not the form of the instrument, that determines .the character of the contract.
    Article 2447, Revised Code, did not preclude Morrison, one of the defendants in this case, from making a contract with Kennedy, the plaintiff, fur the compromise and settlement of the suit which the latter was prosecuting against him. Farmer, attorney at law, also one of the defendants in the present case, was merely a party interposed, and acquired no rights whatever under the settlement. Morrison gave the consideration under the settlement, and Kennedy transferred the suit for the purpose of having it dismissed.
    Rut even if Farmer had paid the price, or given the consideration, it would not have been the sale of a litigious right in the sense of article 2447, because the purchase was made, not to carry on the litigation, but to end it.
    Assuming that the sale or transfer of the suit was actually made to Farmer, there is an insurmountable obstacle in plaintiff’s way. He has not returned, nor offered to return, the consideration which he received. He can not keep the fruits of the transfer, even though it be the sale of a litigious right, and ask to be restored to the ownership of the thing which he transferred.
    APPEAL APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. J. T. Strother, presiding in the place of Judge Bevy, recused.

      B. G. Oohb, for plaintiff and appellant. Morrison <£ Farmer, in proprie persones.

   Wyly, J.

In December, 1867, the plaintiff, who had a suit pending in the District Court of the parish of Ouachita for $5829 87 against C. H. Morrison, signed an act transferring it to the defendant, W. W. Farmer. He now sues to set aside this transfer on the ground that it was the sale of a litigious right, in contravention of article 2447 of the Revised Code, .the purchaser, W. W. Farmer, being then an attorney at law practicing in the court where the suit was pending. He also sues to set aside the order dismissing said suit which was granted after the said transfer to Farmer; and also to have the case reinstated on the docket and consolidated with this suit, and he prays judgment against Morrison for $5829 87, the amount of said suit. The court rejected the demand of the plaintiff, and he has appealed.

C. H. Morrison testifies that: 'v During the summer and fall of 1867, while the suit of Kennedy against him was pending, and after Gray-son had gone into bankruptcy, probably after the property had been advertised, but prior to the sale of the Grayson place by the assignee, ■Kennedy, W. J. Q. Baker came to me and said that Kennedy said if I would give Kennedy ten mules, and bid in the Grayson.place on my oldest mortgage, and pay what money was necessary to pay the remaining costs and some privileged claims, it should be in settlement or compromise of the suit No. 349 (Kennedy v. Morrison). I said to Baker that I would give four mules, on the Filhiol place, and that Kennedy might take his choice out of the lot. Mr. Baker returned to me after that, and stated that Kennedy was willing to do as I had' proposed. Either at that time, or soon afterwards, Mr. Baker,, as I understood, representing Kennedy, asked me about the incumbrances., and I admitted there were some judicial mortgages recorded against me. He then suggested if I could not get Parmer to bid it in (theGrayson place) in his name, as Kennedy did not want it to pass through my hands, I being incumbered with those mortgages; to this-I consented, provided Parmer was willing. Parmer did consent and carried out the agreement made by myself and Baker, representing Kennedy. I gave the order for the mules; I gave a receipt for the amount of my judicial mortgage against Grayson ($787 41), and a receipt for Byrne-, Vance & Co. for their distributive share on their second oldest mortgage (for $116 81), * * * I paid the balance of Parmer’s bid in money necessary to pay the remaining costs and privileged debts, according to the agreement. Por these receipts, the four mules and the money, I received no other consideration whatever from Kennedy, or any one else, except the compromise and settlement of suit No. 349 (Kennedy vs. Morrison.). Kennedy did not pay me the amount of those two receipts; on the contrary, I paid Kennedy in money the amount of Parmer’s bid, less those two receipts. Parmer never made any claim on me, or never asserted any right to the suit No. 349; on the contrary, it was well understood that in acquiring the suit he acted solely in my interest. His reasons for acting at all, were to pass the land through him. to Kennedy, and thus to avoid the incumbrances- or mortgages against me.”

The testimony of this witnesses is corroborated by the evidence of other witnesses, and the truth thereof is not disputed by the plaintiff.

Parmer testifies that at the first term of the court after the transfer of the suit in question, it was dismissed in open court by Kennedy’s attorney, and that he (Parmer) was present and consented. He also- • testifies that the suit was not purchased to carry on a litigation against Morrison, but to compromise and to put an end to it. He also swears that the purchase of said suit was not for himself, nor for his use or benefit; that the sole purpose was to assist and benefit Morrison; that he never thought of claiming the suit, or using it or prosecuting it ;. that he never received or expected to- demand any consideration from Morrison for the discontinuance of the suit; that he never received nor paid one cent during the entire business ; that he became a party to the transfer of the suit at the request of Kennedy y that it was well understood at the time it was made that it was for Morrison’s benefit,.

and that it was in full compromise and full settlement of the suit against Morrison.” He also testifies that when he bid in the Grayson place at the bankrupt sale he paid no part of the price bid; was never-called on by Kennedy to pay it y on the contrary, that Kennedy told him that it was settled between him and Morrison, as he well knew before he was told.

It appears, therefore, from the testimony of these witnesses and others in the record, that Farmer was merely an interposed party y that although he appeared in the instrument as the transferree of the-suit, in fact he never became the owner thereof. The real contract was a compromise between Kennedy and Morrison, and the real intention of the parties was, not to transfer a litigious right, not to foment, but to terminate the litigation. Kennedy had sued Morrison for-$5829 87, and he desired to compromise with him, as he had been advised by his counsel. Kennedy was the assignee of Grayson, a-bankrupt, and had advertised his land, known as the Grayson place,, for sale. He came to an agreement with Morrison to take, in compromise for his suit against him, the Grayson place and four mules. Morrison was to become the purchaser of said place at the bankrupt sale,, and to receipt to him (Kennedy) for the first judicial mortgage which-he held, also for the second mortgage of Byrne, Vance & Co.; and besides, to pay over sufficient cash to pay the costs and certain privileged debts.

It appeared afterwards, that Morrison could not well become theadjudicatee of the Grayson place, because there were judgments-recorded against him, and the property would become incumbered in-passing through his hands. It was then suggested, for Kennedy’s protection, that the adjudication should be made to Farmer, and that the-whole transaction or business be settled in his name. Farmer, therefore, bought in the land, transferred it to Kennedy, and received in return the transfer of the suit of Kennedy against Morrison, which was-dismissed, as before said, at the first term of the court thereafter.

This was all done pursuant to the understanding between Kennedy and Morrison for the compromise and settlement of the litigation, which Kennedy now proposes to revive.

In this case, there was no sale of a litigious right in the meaning of article 2447 of the Revised Code. The object of the parties to this agreement was the reverse of that contemplated by that article. So-far from it being the object or intention of the parties to foment litigation, their sole purpose was to compromise and settle the litigation, between Kennedy and Morrison. There was but one object in view, from first to last, and that was a compromise. It is the actual intention of the parties, and not the form of the instrument, that determines-the character of the contract.

Article 2447, Revised Code, did not preclude Morrison from making the contract with Kennedy for the compromise and settlement of the suit which the latter was prosecuting against him. Farmer was merely a party interposed, and acquired no rights, whatever,, under the settlement. Morrison gave the consideration and Kennedy transferred the suit for the purpose of having it-dismissed.

But even if Parmer had paid the price, or had given the consideration, and become the owner of the suit, it was not the sale of a litigious right in the sense of article 2447, because the purchase was made, not to carry on the litigation, but for the purpose of dismissing the suit and ending it.

There is another insurmountable difficulty in the way of the plaintiff in this case, assuming that the sale or transfer of the suit was actually made to Parmer. It is this: the plaintiff has not returned, nor offered to return, the consideration which he received. He can not keep the fruits of the transfer, even though it be the sale of a litigious right, and ask to be restored to the ownership of the thing which he transferred.

On the whole, the demand of the plaintiff seems to be utterly without merit, either in law or equity.

Judgment affirmed.


author: Howell, J.

text:
    No. 348.
    Sarah L. Lay v. Succession of Elias O’Neil.
    'This court lias no jurisdiction over tliis cause. It involves the examination and correction of a tutor’s accounts, and, as set out, is virtually an opposition to said accounts, which are in the prohate court, and of which the parish court has jurisdiction, although the amount involved exceeds five hundred dollars. Const. 87, 88.
    By the allegations in the petition the tutor’s annual accounts, or some of them, are homologated by the probate court, and the opposition to them must be made in the same tribunal.
    from the Eighteenth Judicial District Court, parish of Bossier. Fort, special judge.

      J. B. WatJcins, for plaintiff and appellee. Griffin & Snider, for defendant and appellant.
   Howell, J.

The plaintiffs, who are the heirs of Isaac Lay, deceased, allege that they inherited from their father a large estate subject to ■ but few debts; that Elias O’Neil was the administrator thereof, and afterwards became their tutor, to wit, in 1859, and so continued until his death, in 1871, his succession being now represented by Mrs. Elizabeth O’Neil; that said Elias O’Neil filed eight annual accounts in the probate court of Bossier parish, contradictorily with the under tutor; that said accounts set forth many illegal and erroneous charges, as shown by a statement annexed to the petition herein, by which it appears that their said tutor is indebted to them in the sum of $130,-390 04, with interest, of which the sum of $25,442 11 was in gold, for property sold in December, 1866, as per proces verbal; that Mary E. Lay, one of the petitioners, signed a receipt with her husband to said O’Neil for a sum of money, which money she never saw, and no account was ever shown or rendered to her; that other receipts may have been signed by others of the heirs, but they are not •conclusive against any of the petitioners, three of whom are married, and that all the said acts and administration are open to inquiry. They pray that the under tutor of the minor heir be cited, as his tutor has an adverse interest; that Mrs. O’Neil, administratrix, be cited and judgment be rendered in their favor for the sum as above set forth.

Mrs. O’Neil, as executrix, excepts to the jurisdiction of the court, and avers that the parish court has exclusive jurisdiction of this cause.

Mrst — Because the matters in controversy involve the settlement of a succession.

Second — Because they involve the settlement of tutor’s accounts and administrative and probate proceedings.

They further except that a direct action for a specific sum can not be brought by the minors or wards against their tutor or his succession on account oí his tutorship, their remedy being for the rendition of an account; that the under tutor can not thus sue because the interest of the minor is not opposed to that of his present tutor, and can not sue for a specific sum, but can only sue for the removal of the tutor, and ¡not for an account.

The exceptions were overruled, an answer was filed, and judgment (rendered against the defendant, who appealed.

We have come to the conclusion that the district court had not jurisdiction of the cause. It certainly involves the examination and correction of the tutor’s accounts, and as set out is virtually an opposition to said accounts, which are in the probate court, and of which the parish court has jurisdiction, although the amount involved exceeds five hundred dollars. Const. 87, 88.

By the allegations in the petition the said annual accounts, or some of them, were homologated by the probate court, and the opposition to them must be made in the same tribunal.

It is therefore ordered that the judgment appealed from be reversed, that the exception to the jurisdiction be maintained and the suit dismissed, with costs in both courts.


author: Howell, J. Wyly, J.,

text:
    No. 4584. .
    Mary C. Winter and Husband v. H. Tounoir, Public Administrator, and New York Warehouse and Security Company.
    Act 3$To. 95, approved March 8, 1869, was passed, as its title announces, to carry into effect article 123 of the State constitution of 1868. The judgment which, in this instance, is the act of adjudication, stipulating the amount of the property held in common with a minor and adjudicated to her mother, was duly recorded in the book of mortgages, and was a compliance with the said law.
    The prescription of ten years set up by defendants does not apply to said judgment of adjudication. The judgment is not and was never intended by the law to be a judgment for money against the natural tutrix, upon which execution could issue in favor of the minor,
    The amount, however, of plaintiff’s claim, so far as secured by mortgage, must be reduced, as it is shown that a portion of it was for the price of slaves adjudicated with lands. It was a sale, the price of which is still nnpaid. The question has already been settled by this court, and is now jurisprudence.
    APPEAL from the Seventh Judicial District Court, parish of Poiute Coupee. Butler, J.

      Barrar & Montgomery, for plaintiff and appellant. B(hoard Phillips, for defendants and appellees.
   Howell, J.

This is a suit to enforce a minor’s rights of mortgage upon property in the hands of a third person.

John C. Clark, the father of plaintiff, died in 1853, leaving a widow, her mother, two minor children, and a considerable estate, all commanity property. One of the children died soon after, and on twenty-eighth March, 1855, judgment was rendered and signed, adjudicating all the property to the widow at the appraised value, which judgment was recorded on twenty-second June, 1868.

On first February, 1859, the widow sold the land to one Mrs. Stirling, who assumed to pay the amount due the minor at her majority, to the extent of $20,000, with six per cent, interest, and stated to be “secured by the tacit mortgage, accorded by law.” This act of sale was not recorded until the eighteenth June, 1866, when it seems to have been recorded in the book of mortgages, and was reinscribed on eleventh December, 1869.

On the twentieth May, 1859, the widow filed an account, showing the sum due the minor to be $9688 95, and on the ninth of June, of that year, this account was homologated, and the judgment signed. This judgment is not recorded.

On the nineteenth January, 1866, prior to the recording of the act of sale from Mrs. Clark to Mrs. Sterling, the latter mortgaged the said land to one R. B. Hill, who transferred the mortgage notes to the New York Warehouse and Security Company, one of these defendants. In this act, which was recorded on seventh February, 1866, is a recital of the minor’s mortgage, as existing, for $12,489 59, with six per cent, interest from February 1, 1859, as fixed by judgment, and payable at the majority of the minor, then about fifteen years old.

After this, to wit, on eighteenth June, 1866, as above stated, the act of sale from Widow Clark to Mrs. Sterling, of first February, 1859, was recorded in the mortgage book, and reinscribed December 11,1869. On twenty-fifth April, 1868, the said land was sold at Marshal’s sale, under foreclosure of the Hill mortgage, and purchased by the New York Warehouse and Security Company, holder of the notes, the mortgage certificate furnished at the time, reciting the minor’s mortgage, as existing, for $20,000, and by special instruction it was not erased upon recording the purchaser’s title. On the twenty-second June, following (1868), the judgment of twenty-eighth Mafch, L855, homologating the adjudication of the community property to the widow was recorded, as already stated. And on the sixteenth October, 1869, an extract of the inventory of Mrs. Clark, deceased, made on the twenty-seventh April, 1861, was recorded.

The principal question presented is, has the minor’s mortgage been preserved 9

She relies on the recording of the judgment of adjudication, the abstract of inventory of Mrs. Clark’s succession, and act of sale from Mrs. Clark to Mrs. Sterling, showing an acknowledgment of $20,000 due the minor and secured by mortgage.

Section six of act No. 95 of 1869, approved March 8 (session acts, p. 115), provides: “That when mortgageable property has been adjudicated to either parent of the minor, the act of adjudication shall be recorded in the book of mortgages in the parish in which the property is situated, and it shall operate a mortgage and vendor’s privilege; the amount of the value of the property, as stipulated in the act, shall operate a mortgage against such property in favor of the minor; and no such adjudication shall have any legal or binding effect until such record is made.”

This statute was passed, as its title announces, to carry into effect article 123 of the constitution of 1868, which made it the duty of the Legislature to provide by law for the registration and preservation of tacit mortgages then existing in favor of minors and others, as well as any subsequently arising or created. The judgment, which, in this instance, is the act of adjudication, stipulating the amount of the property held in common with the minor and adjudicated to the mother, was duly recorded in the book of mortgages, and was, we think, a compliance with the said law.

There can be no question that the mortgage existed up to January, 1870, in favor of the said minor, under the laws and jurisprudence .,heu in force, and it was only a question of preservation or perpetuation, as contemplated by the constitution, prior to the first day of •January, 1870. We must think that it was preserved and perpetuated by the compliance with the above law as stated. What the law directed to be done in such a case, was done, and the rights of the minor in this respect were protected.

The prescription of ten years, set up by defendants, does not apply to this judgment of adjudication. The judgment is not, and was never intended by the law to be a judgment for money against the natural tutrix 'upon which execution could issue in favor of the minor. Nor is the claim of the plaintiff prescribed. The amount, however, so far as secured by mortgage, must be reduced, as it is shown that a portion of it was for the price of slaves adjudicated with the land. It was a sale, the price of which is still unpaid.

This question has already been settled by this Court, and is now jurisprudence. See 21 An. 537, 643,661.

The proportion of the slave to other property was as thirty-five is to thirty-two — a fraction more than one-half. The amount due the minor on twentieth May, 1859, was $9688 95. The proportion we ascertain to be enforceable is $4420 with five per cent, interest from said date, and for which the plaintiff should have the right of mortgage upon the property described in her petition, this being the only matter brought up by this appeal, the plaintiffs having appealed from the judgment in favor of the New York Warehouse and Security Company.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that the plaintiff, Mary Clark,, wife of William S. Winter, be decreed to have a legal mortgage on the following described tracts of land acquired by the New York Warehouse and Security Company at judicial sale on twenty-fifth April, 1868, and now in their possession, to wit: All of lots number forty-nine and fifty, and so much of lots number fifty-one, fifty-two and fifty-three as lies south of a line drawn from the front corner of lots fifty-three and fifty-four to the rear corner of lots fifty and fifty-one; also so much of section seventy-six as is found south of the east and west dividing line of the same, west of the south-east eighty-acre lot and north of a line running due east from fill© back corner of lots forty-eight and forty-nine, all in township four, of range eight east, in the Southeastern Land District, in the parish of Poiute Coupee — the whole tract above described containing in all six hundred and twelve acres more or less. And also the following described tracts of land on the west bank of Bayou Fordoche, purchased by J. C. Clark from James K. Harris, viz : lots or sections eighteen, twenty and twenty-one in township four, range eight east, containing 1138.85 acres, situated on Bayou Fordoche, in said parish, and that the same may be ordered to be seized and sold to pay and satisfy the above sum and interest, with costs in both courts.

Wyly, J.,

dissenting. In 1853, John C. Clark, the father of the plaintiff, died in the parish of Pointe Coupee, leaving a surviving wiuow and community property consisting of a plantation and slaves inventoried at $67,113 25. In 1855, this community property was adjudicated to Mrs. Clark, the mother of the plaintiff, according to the provisions of article 338 of the Code of 1825.

In 1859, Mrs. Clark sold the plantation to Mrs. Mary C. Sterling, who subsequently mortgaged it for $75,000 to Richard B. Hill. This mortgage was subsequently transferred to the defendant, the New York Warehouse and Security Company, who purchased the plantation under the foreclosure of said mortgage.

In May, 1859, Mrs. Clark filed her final account, showing that $9683 95 were due the plaintiff, her minor daughter, after paying all the debts of the community.

The plaintiff, Mary Clark, having been emancipated by marriage, brought this suit against H. Tournoir, the legal representative of the succession of her mother, and against the New York Warehouse and Security Company, to recover judgment for the amount due her from the succession of her father, and to enforce her mortgage pn the plantation held by the New York Warehouse and Security Company.

The court gave judgment as prayed for against the legal representative of the succession of the mother of the plaintiff, but refused to ■recognize and enforce the tacit mortgage on the plantation. From this part of the judgment plaintiff appeals.

I think the registry of the act of adjudication of the community property pursuant to article 338 Civil Code, prior to the first of January, 1870, was a sufficient compliance with the registry laws and the Constitution of 1868; and that it continued in force the mortgage of the plaintiff against her mother, her tutrix, to secure the sum due.her resulting from said adjudication.

But the defendant, the New York Warehouse and Security Company, the present owners of the plantation affected by this tacit mortgage, contends that, as the common property adjudicated to the mother of the plaintiff was land and slaves, the court can not enforce the claim •of the plaintiff without enforcing a debt in part for slaves, in contravention of the jurisprudence of this State, which requires debts of •this character to be reduced to the extent of the consideration thereof not for slaves. I think this is an objection that this defendant can not set up ; because the bases of plaintiffs’ demand are the judgment adjudicating the common property in 1855, and the judgment homologating her mother’s final account of administration in May, 1859, which judgments existed prior to the mortgage debt, under which the defendant, the New York Warehouse and Security Company, acquired the property.

It is well settled that a creditor whose claim arises subsequent to the rendition of a judgment can not demand its nullity for want of consideration of the debt on which it was based, or for any other cause.

It is only creditors whose claims existed at the time of the rendition of the judgment, or who had an adverse interest, that could be injured by it; therefore they only can demand its nullity.

When these judgments were rendered, upon which plaintiff’s action is based, the New York Warehouse and Security Company had no adverse claim whatever, because the mortgage debt under which they bought the property was not then in existence.

In the case of Silliman it was held that the objection to the slave consideration of the debt upon which a judgment is based, can not be raised by one whose claim arose subsequent to the rendition of said judgment.

The judgment in this case, as against the legal representative of the succession of the mother of the plaintiff, can not be disturbed, ■because no appeal has been taken therefrom.

The judgment adjudicating the common property, pursuant to article 338 C. C., is not a money judgment in the meaning of section 2831 of the Bevised Statutes of 1870, nor is the judgment homologating the .account filed by the mother of the plaintiff; therefore the prescription of ten years, pleaded in bar thereof, is inapplicable. Wade v. Caspari, 24 An. 211, is cited as authority to the contrary, but an examination of that case will show that it is not like the one before us.

There, the court applied prescription to a money judgment obtained by a tutor against his predecessor, who had been removed. Here, the tutrix causes the common property to be syndicated to her, pursuant to article 338 C. C., and she procures the homologation of her final account as administratrix. There was no money in these judgments that the tutrix was then called upon to surrender; on the contrary, it was her duty to retain it until the termination of the tutorship. These judgments were clearly not prescriptible.

I, therefore, dissent from that part of the decision of the majority of the court reducing the claim of the plaintiff on account of the slave consideration of part of the debt.

Rehearing refused.


author: Hgvyeli,, J.

text:
    No. 4761.
    State of Louisiana, ex rel. J. Hays, v. Judge of the Fifth District Court, Parish of Orleans.
    If fclio appellant, when called on, does not adduce proof affirmatively to show that his surety is good, and no evidence to impeach him is offered, it is now the jurisprudence of this court that the judge a quo can not pronounce him to be insufficient and order execution to issue.
    Some proof is necessary to destroy the presumption of sufficiency arising from the acceptance of the bond, with the surety signing it.
    APPEAL for a writ of Prohibition directed to SE. SB. Oullom, judge of the Fifth District Court, parish of Orleans.

      SB. SB. SFor-

      man, for relator.
   Hgvyeli,, J.

The only question presented in this proceeding is, whether or not the lower court can order the execution of a judgment, from which a suspensive appeal has been taken, because the appellant fails to produce and justify his surety on the trial of a rule taken by the appellee for the purpose of testing the sufficiency of the bond. Or, in other words, if when called on, the appellant does not adduce proof affirmatively to show that his surety is good, and no evidence to impeach him is offered, can the lower judge presume him to be insufficient, and order execution to issue ?

It is now the jurisprudence of this court that he can not, because some proof is necessary to destroy the presumption arising from the acceptance of the bond with the surety signing it. See 22 An. 592; 23 An. 714.

It is therefore ordered that the prohibition herein be made perpetual with costs, and without prejudice to appellee’s right to impeach the surety on the appeal bond.


author: Morgan, J. Taliaferro, J.,

text:
    No. 4757.
    Auguste and Joseph Pierre v. Auguste Fontenette et als.
    Emancipation gave to the slave his civil rights, and a contract of marriage, legal and valid/ by the consent of the master and moral assent of the slave, although dormant during tha slavery of the parties, produced, from tho moment of their freedom, all the effects which result from suoh contract among free persons.
    But the marriage which was to produce these civil results must have existed at the time the emancipation took place. If the marriage was dissolved before emancipation, the parties’ rights were no longer dormant; they were dead; and the subsequent emancipation, as it could not resuscitate the marriage, could produce none of the civil fruits which are the' results of a civil marriage.
    APPEAL from the Probate Court, parish of St. Martin. Fournet, J.

      JDeBlane & Perry, for plaintiffs and appellants. Felix Voorhies and F. Simon, for defendants and appellees.
   Morgan, J.

Magdeline Vincent, by what purports to be a nuncupative testament by public act, instituted Auguste Fontenette her universal legatee. Auguste and Joseph Pierre allege that they are the nephews of Magdeline Vincent. They ask to be recognized as her-heirs, and that her will be declared a nullity. The exception is, that plaintiffs are not the legitimate issue of Magdeline Vincent’s brother, through whom they claim, and can not, therefore, attack the will.

The plaintiffs and the testatrix were born slaves. Magdeline Vincent’s husband died a slave, and so did the mother of these plaintiffs. Their father purchased his freedom. Both their father and mother died before the war.

Plaintiffs claim that their father and mother having been married) according to the forms prescribed by the law in regard to persons of their class, their subsequent emancipation gives to the marriage of their parents a civil effect which it would not otherwise have had, and confers upon them the title of legitimacy, and the consequent right of inheritance. It is established that their father and mother lived; together as husband and wife, with the consent of their masters.

By the law as it was at the time when slavery existed, slaves could make no contract, except with reference to their freedom. They could not marry, except with the consent of their masters, and their marriage produced none of the civil effects which result from such a contract. They could transmit nothing by succession or otherwise, except that what they might have inherited from free persons, had they been free, might pass through them to such of their descendants as might have acquired their liberty beiore the inheritance fell to. them. C. C. 174, 176, 182.

Marriage is a civil contract; legitimation is the result of that contract; the right of inheritance is also the result of it. These are the-civil effects of the contract.

It has been held that emancipation gives to the slave his civil rights,, and that a contract of marriage, legal and valid by the consent of the master and moral assent of the slave, from the moment of freedom, although dormant during the slavery, produces all the effects which 'result from such contract among free persons. Girod v. Wells, 6 Martin, 559. This doctrine we do not deny or controvert. But we think that the marriage which is to produce these civil results must exist at the time the emancipation takes place. In this case the marriage was dissolved before emancipation. The parties’ rights, therefore, were not dormant; they were dead; and the subsequent emancipation, as it could not resuscitate the marriage, could produce none of the civil •fruits which are the results of a civil marriage.

The legitimation, then, of these plaintiffs became impossible as a «result of marriage, by the death of one of their ancestors. They can not, therefore, claim to be legitimate heirs; and as it is only by reason of their possessing this status that they can attack Magdeline Vincent’s will, it follows that the exception taken against them was properly ■maintained, and the judgment must be affirmed.

Judgment affirmed.

Taliaferro, J.,

(Mssentmg. The plaintiffs, claiming to be the legal ‘heirs of one Magdeline Vincent, bring this suit against Auguste Fonte«nette, to recover the succession of Magdeline in his possession, the ownership of which he claims as universal legatee under her act of last will, duly probated and ordered to be executed. The plaintiffs •seek in this action to have the will of Magdeline annulled and to be recognized as her legal heirs. The defendant, by exception, denies that the plaintiffs are the legal heirs of Magdeline Vincent; that they have any right to her succession ; and, having no interest in setting aside her last will and testament, they have no cause of action.

The exception was sustained, judgment rendered in favor of the ■defendant, and the suit dismissed.

The pretensions of these plaintiffs are resisted on the ground that by the laws that existed in Louisiana prior to emancipation they were incapable of inheriting property; that no legal marriage did or could fake place between their parents, and therefore they were not legitimate heirs, and were incapable of being legitimated.

A solution of the question presented must be sought for in the proper •construction to be given to the one hundred and eighty-second article of the Code of 1825, interpreted in reference to the changed condition of the plaintiffs by emancipation.

The father of these plaintiffs wks a slave, who acquired his freedom and died before the abolishment of slavery in this country, possessed of a small amount of property. Their mother died a slave; her death ■preceding that of the father. Magdeline Vincent was the sister of Pierre, the father of the plaintiffs. She, it appears, originally a slave, had during the existence of slavery become free, and at the death of Pierre succeeded as heir to his small succession. She died in 1869, leaving a will, hv which she constituted Auguste Eontenette her universal legatee. The status of the plaintiffs was that of slaves up •to the time of the general emancipation.

Magdeline Vincent, as we have seen, had become free previous to the general emancipation, and by that event Auguste and Joseph Pierre acquired the status of free persons. This was their condition -at the time of the decease of Magdeline in 1869. They were, therefore, capable of inheriting from her, unless there existed at that time some legal disability other than that which previously existed on account of their being slaves. The question of their legitimacy is the principal one to be determined.

The cohabitation, by their own consent and by the permission of their master, of a man and woman who were slaves, was termed by the one hundred and eighty-second article of the Code of 1825 a marriage. The words of that article are: “Slaves can not marry without the consent of their masters, and their marriages do not produce any -of the civil effects which result from such contract.”

A marriage thus entered into possessed all the efficacy which could have been imparted to it had it been accompanied with more ceremonies and formalities. The interposition of a priest or minister of the Gospel to pronounce the formulas of uniting persons in wedlock could have conferred upon slaves entering into that state no greater rights or privileges. It would seem, then, that the objection opposed to these plaintiffs, that their parents were not married according to law, is not well taken, inasmuch as in their case all the requisites necessary to constitute marriage were complied with. The sense in which we are to understand the provisions of article one hundred and eighty-two of the Code of 1825, would seem to be that the marriages of slaves do not, during the condition of the parties as slaves, produce any of the civil effects which result from such contract. In other words, that the -civil rights resulting frnm the marriage of slaves were, during the period they occupied that status, dormant and inoperative; but on passing out of that status into the opposite one of freedom, those ■rights revived and became effective.

In the case of G-irod v. Wells, 6 Martin’s Reports, page 559, it was announced by Judge Matthews, the organ of the'court, that “it is clear that slaves have no legal capacity to assent to any contract. With .the consent of their masters they may marry, and their moral power to agree to such a contract or connection as that of marriage can not be doubted.; but whilst in a .state of slavery it can not produce any civil effect, because slaves are deprived of all civil rights. Emancipation gives to the slave his civil rights, and a contract of marriage, legal and valid by the consent of the master and moral assent of the slave, from the moment of freedom, although dormant during the slavery, produces all the effects which result from such contract among free persons.”

It is clearly shown that the father and mother of the plaintiffs lived together on the plantation of their former owner as man and wife, according to the general custom of slaves at that period; that they were so recognized by their master and by their acquaintances, white and black, in the neighborhood; that Pierre and Magdeline were reputed brother and sister, and as between themselves they recognized that relation. It is likewise shown that the plaintiffs were recognized by their owner and generally by others acquainted with them as the children of Pierre and his wife, their mother. It is shown that the general custom among the slave population in the matter of marriage was to obtain the consent of the master and mistress, and live together in the relation to each other of husband and wife. The formality of a marriage ceremony by a priest or other person authorized to solemnize marriage was sometimes resorted to, but this was by no means a gene" ral usage. In the great majority of cases the simple agreement of the parties themselves to form the relation of husband and wife, followed by the consent of the master or of the master and mistress, constituted marriage among the slave population of the State.

Article 182 of the Civil Code of 1825 declared that “slaves can not marry without the consent of their masters, and their marriages do not produce any of the civil effects which result from such contract.” A solution of the question presented must be sought for in the proper construction to be given to this article of the Code, interpreted in reference to the changed condition of the parties by emancipation.

The plaintiff»’ parents were married in the manner the law permitted marriages to take place between persons in their condition of life. The civil rights resulting from marriage between white people did not accrue from their marriage at the time it took place because these rights, from motives of policy then existing, were withheld. Afterwards, when the motives which prompted the prohibition ceased, the disabilities ceased also. Oessante ratione cessat et ipsa lex. During the state of slavery the rights and benefits arising from marriage were, in their case, suspended. At the termination of slavery these rights and advantages were developed and took effect. They accrued to the benefit of the heirs who, by the general emancipation, became free, although their parents did not survive the period of slavery. The heirs became legitimated and capacitated to receive. They inherit from Magdeline Vincent, through their father, whose succession was taken by ber, tbe acknowledged sister of Pierre, and who acknowledged his children as her nephews. Civil Code of 1825, articles 176 and 945.

But it is urged that by the statute of 1868 (No. 210, page —, of Statutes of 1868) provision was made for persons of this unfortunate class, enabling them to legalize private or religious marriages upon complying with certain formalities within two years from the passage of the act; and that the enactment of this statute shows that it was never the intention of the Legislature to sanction a marriage entered into merely by the consent of the master and not followed out and perfected by a solemnization of some sort. This act, I conceive, came in aid of persons whose cohabitation had never been sanctioned by any proceeding which the law recognizes as marriage. It applied to all persons whether free or bond, white or black. Besides, it is not for the Legislature to divest rights acquired from any form of marriage recognized by law.


text:
    No. 4776.
    State ex rel. Mrs. Jane D’Arcy v. Judge of the Fourth District Court, Parish of Orleans, et als.
    'Tlie question whether the relator in this case had, as owner of an urban lot of ground, the right to build a wall or fence on her own property for her own profit and convenience, involves a larger interest than the five hundred dollars damages claimed by her next neighbor as resulting from the erection of said wall or fence, and therefore a suspensive appeal lies to this court from a judgment rendered against relator. It is a question concerning the ownership of property and its enjoyment, and may involve the entire value of the property on which the wall or fence is built.
    APPLICATION for writs of mandamus and prohibition directed to JB. L. Lynch, Judge of the Fourth District Court, parish of Orleans.

      Ootton & Levy, for relator. B. L. Lynch, in propria persona. Bichará Shackelford, for Andrew Parle.
   Morgan, J.

The relator, it appears, is the owner of a house and lot of ground within the corporate limits of this city, in which she resides. Upon her own lot she caused a high fence to be erected, which prevents her house and premises from being overlooked by her neighbor, Parle. For exercising what she considered this act of ownership Parle brought suit against her for five hundred dollars damages, for which he had judgment. From this judgment the relator asked for an appeal to this court, which was refused, on the ground that the sum claimed in Parle’s petition does not come within our appellate jurisdiction.

In our opinion the claim he presents is not one exclusively for an insignificant sum of money. It is the assertion of a right which con■cerns the ownership of property and its enjoyment. It is to be decisive of the question whether or no the proprietor of a house can protect-himself and his family from public view, and their interior domestic-life from the, perhaps, impertinent overlooking of his neighbor^, whether he must have his family subjected to view the behavior of his neighbor in his own house, however scandalous such behavior may be, whenever they go to their windows, with the alternative of being completely blocked out from air and light; whether, in short, a man may enjoy in peace and comfort what he has acquired by toil.

It involves, also, the right of the owner to build a wall on his own property, for his own profit or convenience, without incurring the obligation of paying damages therefor. It may. indeed, and in many cases certainly would, involve the entire value of the property upon-which the wall or fence is built.

When, therefore, Parle attacked Mrs. D’Arcy because she exercised this right, he put at issue something which involved a larger interest than five hundred dollars. In point oí fact he set up a revolving claim for five hundred dollars, to be prosecuted against his neighbor as often as the first one should be satisfied, or as long as she prefers her privacy to his scrutiny. The rights of property, its use and enjoyments, are-of too much consequence to be thus trifled with.

Let the rule be made peremptory.


text:
    No. 4781.
    State of Louisiana ex rel. Solomon Silverstein, v. Judge of the Fifth District Court, Parish of Orleans.
    "Where all objections to tbe solvency of tbe surety or sureties on the suspensive appeal bond were waived, and no controversy waged as to tbe sufficiency of tbe bond wbicb was received as executed in tbe manner required by tbe order of tbe court, said court was divested of jurisdiction over tbe case, and tbe subsequent proceedings under tbe rule to show cause wby tbe suspensive appeal should not be set aside, consequently without • effect.
    APPLICATION for a writ of prohibition, directed to the Judge of the Fifth District Court, parish of Orleans. of

      T. A. JBartlette, for relator. A. L. Tissot, Judge of the Second District Court, acting in place of JS. N. Oullom, Judge of the Fifth District Court, parish of' Orleans.
   Taliaferro, J.

The relator sets forth that, in a suit instituted, against him by certain parties to dispossess him of property occupied by him underlease not yet expired, a judgment was rendered against him in September, 1873, ordering him to vacate the premises and deliver the same to the plaintiffs; that he applied to tlie court which, rendered the judgment for a suspensive appeal, which was granted within ten days from the time the judgment was signed, and made returnable to this Court on the first Monday of November, 1873, conditioned that the relator enter into bond, with good and sufficient security, according to law, which he avers he did do in conformity with the order of the court.' The relator camplains that, notwithstanding his compliance with the order of the court in furnishing-security on his bond, the sufficiency of which was not contested, a rule-was taken on him to show cause why his suspensive appeal should not be set aside; and, upon hearing, the same was made absolute and the-appeal annulled and set aside; that the plaintiffs thereupon obtained an order of the court, directed to the sheriff, to eject the relator from the premises in conformity with the judgment appealed from. The relator now applies to this Court for a writ of prohibition against further proceedings in the case, and for an order to the court a qua to send up the appeal taken by him as aforesaid.

From the facts that appear in this case, we think the relator entitled to the relief he seeks; all objections to the solvency of the surety or-sureties on the appeal bond were waived and no controversy waged as to the sufficiency of the bond. Having received the bond executed in the manner required by the order of the court, we think the court was-divested of jurisdiction of the case, and the subsequent proceedings-under the rule consequently without effect.

It is therefore ordered that a writ of prohibition issue directing the-judge of the Fifth District Court to take no further action in the case numbered 4857, entitled Arnold Ellis et al., Trustees, v. S. Silverstein,. on the docket of said court, until the case be heard on appeal, and that he be ordered to send up to this court the appeal granted to the-relator in said case.


text:
    No. 4723.
    Hypolite Mossy v. H. H. Harris, Tax Collector.
    To authorize a writ of mandamus, there must appear a specific ministerial duty which the applicant has a direct right or interest in having enforced.
    Where the pleadings indicate that the application is simply to obtain a judicial order in favor generally of holders of a certain class of warrants, and not to secure a specific right to a particular party, it is not «a serious contest, and not a case for a mandamus.
    APPEAL from the Superior District Court, parish of Orleans. HawIdus, J.

      Kennard, Howe <& Prentiss, for plaintiff and appellant.
    A. P. Field, Attorney General, for respondent and appellee.
   Howell, J.

The relator, who resides in the city of New Orleans,, alleges that “he is the lawful owner and holder of two warrants, drawn by the Auditor of Public Accounts, of the State of Louisiana/ on the treasury of said State, for $300 each, for the salary of L. B.. Watkins, as district judge (of the eighteenth judicial district), which warrants are by law receivable for all taxes and license taxes, the proceeds whereof go to the general fund of the treasury; that he . offered said warrants to H. H. Harris, tax collector of the second district of New Orleans, in payment of an equal amount of license taxes, the proceeds whereof go by law into the general fund of the. treasury, but that the said tax collector has illegally refused to do his duty in the premises belonging to the office with which he is clothed j that the •action of the said tax collector is a denial of right and justiceand ■he prays for a writ of mandamus, commanding the said tax collector “ to receive in payment of said license taxes as above set forth.” We presume the words “ said warrants ” are accidentally omitted.

An exception was filed by the Attorney General, that the demand of the petition sets forth no cause of action, and that if it does, then the law invoked violates section 10 of article 1 of the Constitution of the United States, which prohibits a State from emitting bills of credit, or making anything but gold and silver a tender in payment of debts. From a judgment refusing the mandamus the relator has appealed.

Conceding that the receiving of State warrants for taxes or licenses ■is a ministerial duty imposed by law, which a tax collector may be compelled by mandamus to perform (a question upon which it is unnecessary now to express an opinion), the allegations made by this relator did not disclose a sufficient interest to authorize him to sue out ■the writ. He does not show any legal right of which he or any one else is deprived, or any injury caused to him by the action of the defendant. He does not allege that he or any one whom he represents is entitled to a license for any particular calling or vocation, to follow which a license is necessary. He makes simply a general allegation .that he offered two certain warrants of $300 each, in payment of an equal amount of license taxes, for whom or for what purpose is not shown or intimated. If he was endeavoring to purchase from the tax collector a quantity of licenses, he of course must fail in his application. If his purpose was merely to obtain judicial authority for the defendant and other tax collectors to receive from any and all persons a certain kind or class of warrants, he must equally fail. It is the province of courts to pass on real contests between parties, enforce or protect specific rights, and redress actual wrongs, and not to issue general orders regulating or defining the duties of public officers. Certainly this last is not the purpose of the writ of mandamus. To authorize it there must appear a specific ministerial duty, which the applicant has a direct right or interest in having enforced. The relator does not show any such right, nor that he will suffer any particular wrong by the alleged refusal of the defendant to receive the said warrants. The pleadings indicate that this case is presented simply to ■obtain a judicial order in favor generally of holders of a certain class ■of warrants, and not to secure a specific right to a particular party, .and is, therefore, not a serious contest, and not a case for a mandamus.

Judgment affirmed.


author: Taliaferro, J. Ludeling, C. J.,

text:
    No. 3699.
    State ex rel. Blackemore, Wooldridge & Co., v. James Graham, Auditor.
    A. third, party, appealing from a judgment, must allege and show a direct pecuniary interest in the subject matter of the suit.
    The act of nineteenth April, 1371, which provides for the refunding of certain taxes improperly collected by the State, and on which the relators in this case rest their claim, is unconstitutional, as‘it clearly increases the State debt to an amount exceeding'twenty-five millions.
    Said act of the nineteenth April, 1871, is also in violation of article 111 of the State Constitution, because, while creating a debt exceeding one hundred thousand dollars, it does not provide adequate ways and means for the payment of the current interest and of the principal when the same shall become due.
    Kb appropriation was made by law for drawing from the Treasury the large sum needed to reimburse the numerous claimants applying for this refunding* of taxes under the law of 1871, which is, therefore, in violation of article 104 of the Stafie Constitution.
    The act Kb. 55, approved April 4, 1865, has never been held to be in violation of the State Constitution.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      Semmes <& Mott, Breaux, Benner & Hall, Hays & Hew, for relators, Hornor <& Benedict and W. W. Hoioe, for respondent. S. Belden, Attorney General, for State in intervention. Denne & Belden, for John Klein, in intervention.
   Taliaferro, J.

By seetion three of an act of the Legislature, approved April 4, 1865, entitled “An act to provide for the increase of the revenue and raise means to pay the interest on the State debt,” it was provided “That there shall be assessed and collected the sum of one quarter of one per cent, on the annual gross sales or receipts of each and every person pursuing any trade, profession or occupation, whose annual receipts exceed the sum of two thousand dollars.” A class of merchants in New Orleans, engaged principally in what is called “the Western trade,” receiving and selling, under commission, Western produce, such as pork, bacon, flour, corn, cotton bagging, etc., made objection to the payment of this tax, on the ground that commodities of that kind were consigned to them for sale by citizens of the United States residing beyond the limits of the State of Louisiana, and sold by them in the form in which such produce was prepared by their constituents beyond the limits of the State of Louisiana. They contended that the property thus introduced into Louisiana from other States, and thus sold, is exempted, by the Constitution of the United States, from import duty or other tax -for the benefit of the State of Louisiana. In 1867, the commercial house of Kennedy & Co., large dealers in Western produce, was sued by the State for the amount of tax assessed to them under the act of fourth of April, 1865, and the question underwent judicial investigation.

In the case of the State v. Kennedy & Co., 19 An. 424, this Court held the tax to be null on the ground that it was contrary to section ten of the first article of the Constitution of the United States, which declares that “No State, without the consent of Congress, shall lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.”

The Legislature passed an act approved on the nineteenth of April, 1871, which provided “that all taxes which were collected by the State under the third section of an act entitled an act to provide for increasing the revenue of the State and raise means to pay interest on the State debt, approved fourth of April, 1865,’ shall be and are hereby refunded to the parties who paid the same, or to their proper representatives, and the Auditor of Public Accounts be and he is hereby authorized and required to issue to said parties, or to their proper representatives, certificates for the amount paid by them which shall be receivable by all State tax collectors in payment of the general fund tax.”

The purpose of the present suit by Blackemore, Wooldridge & Co. is to compel the Auditor to issue to them certificates for $1411 70, the amount of the aforesaid tax, which they allege they have paid under the act of fourth of April, 1865. They proceeded by mandamus, and a rule being taken against the Auditor to show cause, he answered, in substance, “ that prior to the nineteenth of April, .1871, the debt of the State exceeded twenty-five millions of dollars, and that the annual revenues of the State are insufficient to meet the necessary expenditures and current expenses of the State under the present rate of taxation ; that the claim of the relators form no part of the current expenditures for the necessary government of the State, or for the maintenance of its peace and order, and that the General Assembly was without power to pass the act of 1871, in violation of the constitutional amendment restricting the State debt, which was promulgated on the fifteenth of December, 1870, and it is therefore null and void. He further answers that the sum collected as taxes under the act of fourth of April, 1865, and which the act of 1871 directs to be refunded, amounts to $525,475 88; that the reimbursement of that sum would be indirectly an appropriation exceeding $100,000, and no means are provided to meet such expenditures, and is in violation of article 111 of the Constitution of 1868.

The Attorney General intervened on the part of the State, adopting the defense of the Auditor. Judgment was rendered in the court below making the mandamus peremptory, and the Auditor appealed.

After the judgment was rendered, Klein, a third party, alleging that his interests were affected by the judgment, appealed. There is a motion to dismiss his appeal on the ground that he shows no interest in the controversy that authorizes his appeal. He sets up in his intervention that he is the owner and holder, as agent, of State warrants to an amount over $100,000, payable out of tbe general fund, and. if the judgment appealed from is not reversed he will suffer great injury, and loss exceeding $20,000.

A third party appealing from a judgment must allege and show a direct pecuniary interest in the subject matter of the suit. 21 An. 743. We do not think the intervenor in this case has shown such an interest in the subject matter of the suit as entitles him to appeal. The appeal is therefore dismissed at the cost of the appellant.

We can not regard the aet of April, 1871, under which the relators claim to have their debt or amount of tax refunded, otherwise than as virtually creating a debt of more than half a million of dollars. This would clearly increase the State debt to an amount exceeding $25,000,-000, and therefore under the act unconstitutional. It recognizes and makes exigible an obligation to pay certain claimants a sum of money amounting to more than $100,000. It does this in violation of article 111 of the State Constitution, which is express that “whenever the General Assembly shall contract a debt exceeding in amount the sum of $100,000, unless in case of war to repel invasion or suppress insurrection, it shall in the law creating the debt provide adequate ways and means for the payment of the current interest and of the principal when the same shall become due.”

“No money,” it is provided by the article 104 of the Constitution, “ shall be drawn from the treasury but in pursuance of specific appropriations made by law.” No appropriation was made by law for drawing from the treasury the large sum needed to reimburse the numerous claimants applying for this reimbursement. The equitable grounds set up in favor of refunding the tax in question we do not regard as entitled to consideration. The decision of this court in the Kennedy case declaring the tax contrary to the Constitution of the United States, can not now be referred to as authority in behalf of those who paid the tax, seeing that the Supreme Court of the United States ruled differently in a ease carried before it from Alabama in 1868, where the same question was made, and that tribunal decided that such a tax laid by a State is not contrary to the provisions of the Constitution of the United States. 8 Wallace, 124.

That the act of April 4, 1865, is in violation of the State Constitution has never been held.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the rule be discharged, the relators paying costs in both courts.

Ludeling, C. J.,

dissenting. The defendant has urged several objections to the constitutionality of act No. 93, approved nineteenth of April, 1871, only two of which have even the semblance of being well founded. They are, that it violates article 111 of the Constitution, which prohibits the General Assembly from contracting a debt exceeding $100,000, unless it provides for payment of the principal and interest. If it be conceded that a debt was created by that act, still the Legislature did provide for the payment thereof by making the certificates receivable for taxes. The General Assembly was vested with the discretion to say what waj's and means should be provided for the payment of the debt, and that discretion is not subject to the control or suspension of the courts. Cooley, Con. Lira. 187; 36 Barb. 193; 34 Ind. 137; 15 Md. 376; 19 Barb. 81; 23 111. 207; 22 An. 555.

The other objection is, that the law violates the constitutional amendment, limiting the State debt to $25,000,000. Entertaining the opinion, which I expressed in the dissenting opinion in the case of the Factors’ and Traders’ Insurance Company v. the City of New Orleans, that there is no natural obligation to pay an unconstitutional tax, I can not recognize that the act aforesaid created a debt. It simply recognized a debt which had existed ever since the erroneous payment of the tax. I dissent, therefore, from the opinion of the majority of the court.

Wyly, J. T concur in the dissenting opinion of the Chief Justice. Rehearing refused.


text:
    No. 4713.
    Citizens’ Bank of Louisiana v. Mrs. Joseph Deynoodt and Husband.
    The statute of 1873 declaring that the amount of the contribution due by the stockholders of a bank shall be recoverable by summary process, as in case of a confession of judgment, is not in violation either of the State constitution or of the federal one.
    The statute provides a remedy for the more speedy enforcement of an obligation. It does nofj affect in any manner the obligation of the contract, nor is it retroactive; ’it provides only for the future.
    APPEAL from the Superior District Court, parish of Orleans. Ilaw-Mns, J.

      A. Pitot, for plaintiff and appellee. Clarice, Bayne & lienshaw, for defendants and appellants.
   Ludeling, C. J.

This is an appeal from an order of seizure and sale. The only question for decision is, necessarily, whether or not the evidence upon which the judge acted was sufficient to authorize the fiat.

The charter of the plaintiffs and the amendments thereto, together with the original act of mortgage for the amount of defendants’ stock, executed by Forstall, and the assumption of the liabilities attached to the stock by the intermediate vendees, and the act executed by the defendants themselves are in evidence. The mortgages are given to secure the prompt payment of the interests, as they accrue, as well as the principal of the bonds.

In addition to the foregoing evidence is a properly certified copy of the resolution of the Board of Directors, calling upon the stockholders for a contribution to meet the interest to accrue in August on the bonds of the State.

The statute of 1873 provides that the amount of the contribution shall be recoverable by summary process, as in case of a confession of judgment.

We think, therefore, that the evidence authorized the fiat, unless there be some prohibition in the State constitution or in the constitution of the United States forbidding this, and we are of the opinion that no such prohibition exists.

The statute provides a remedy for the more speedy enforcement of an obligation. It does not affect in any manner the obligation of the contract, nor is it retroactive ; it provides only for the future.

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


text:
    No. 4332.
    State ex rel. Livingston & Guthrie v. James Graham, State Auditor.
    Tk© Attorney General having neglected or declined to take an appeal, after having intervened and gone into the defense of the case, adopting the defense made by the Auditor and superadding grave objections to the relator’s claim, it became the duty of the Governor, under this condition of affairs, to take, in the interest of the State, the appeal which ho did. ¡

    The evidence of a documentary character offered by the Auditor to show that, at the time the contract relied on by plaintiff was entered into, the debt of the State was in excess ■ of twenty-five millions of dollars, was improperly rejected.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      Billings & Hughes, John Bay, for relators and appellees. Hornor <& Benedict, for respondent and appellant.
   Taliaferro, J.

This case was before us at the last term of this court and decided adversely to the relators. Upon an application for a rehearing the case was remanded to the lower court for the purpose of obtaining evidence more satisfactory in regard to the amount of the State debt at the time the alleged contract was entered into. See 24 An., pp. 366 et seq.

In the court below a judgment in favor of the relators was rendered as on the first trial in that court. Prom this judgment the Auditor has appealed. An appeal was also taken by Messrs. Hornor & Benedict, attorneys at law, specially engaged and authorized by the Governor to prosecute the appeal. A motion to dismiss this appeal is made on several grounds; the principal one is that the Auditor is without inteiest or right in the controversy. The Attorney General neglected or declined to take an appeal after having intervened and gone into the defense of the State, adopting the defense made by the Auditor, and superadding grave objections to the relators’ claim. Under this state of affairs, we think it became the duty of the Governor, in the interest of the State, to take the appeal which he did. We think the case fully before this court, and we therefore overrule the motion to dismiss.

The Auditor offered evidence of a documentary character to show that at the time the contract was entered into the debt of the State was in excess of $25,000,000. This evidence was rejected on purely technical grounds. It should have been admitted. The documentary evidence rejected is appended to a bill of exceptions taken to the refusal of the judge to admit it. The bill of exceptions was well taken. The evidence is before us, and it fully makes out the original allegation in the answers of the Auditor and the Attorney General that the contract is null, as having been made in contravention of that clause of the constitution which forbids an increase of the State debt beyond $25,000,000.

It is therefore ordered that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there be judgment in favor of the defendant; that the rule be discharged at the costs of the relators.

Howell, J. I concur in the decree for the reasons which I gave on the first hearing of this case.

Ludeling, C. J.,

dissenting. I dissent from the opinion of the majority of the court, and I will hereafter file my reasons.