text:
    No. 5964.
    Louis Schwartz vs. George Cronan et al. Geo. A. Fosdick & Co., Intervenors.
    A contractor who furnishes materials for a building and fails to record his contract, acquires no lion on the building, and the lot on which it is erected, and hence, no creditor of his can acquire such a lien from him, either by subrogation, or in any other way.
    No amendment of the judgment below will be made in favor of the appellee which he has not specially asked for.
    One who sells to a contractor the raw materials which are actually used by the contractor, in a manufactured form, in constructing certain portions of a building, and who has served on the ownor of the building an attested account of the amount due him by the contractor, is only entitled to recover from the owner such an amount of the sum due by tho owner to the contractor, as has been adjusted, ascertained, and fixed, in some one of the modes pointed out by sections two and three of article 2772 of the Civil Code. Such a furnisher of raw materials can acquire no lien, or privilege, except as subrogee to such privilege as tho contractor may have acquired and preserved.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Chas. 8. Bice for plaintiff and appellee.

      Thos. Gilmore & Sons for defendants and appellants.

      Singleton c& Browne for intervenors and appellants.
   The opinion of the court was delivered by

Marr, J.

This suit was brought to recover the balance of an account alleged to be due for materials furnished to Cronan, and used in the construction of St. Patrick’s Hall.

The petition charges that the St. Patrick’s Hall Association is indebted to Cronan under the contract with him in an amount exceeding plaintiff’s demand; and that plaintiff served on the association a duly certified statement of the materials furnished by him, and caused registry of the same to be made in the office of the recorder of mortgages. The prayer is for judgment against Cronan and the association, in solido, with lien and privilege on the building known as St. Patrick’s Hall, and the ground on which it stands.

Cronan admits that he purchased the materials, but denies that he is indebted for them; and he specially denies that plaintiff has any privilege or preference. The association pleads a general denial; and specially denies that plaintiff has any privilege as claimed by him.

Eosdick & Co., by intervention and third opppsition, claim to be paid by preference the balance of an order given by Cronan to them, on the tenth June, 187J, payable out of the money coming to him for work done and materials furnished for the building, alleged to have been accepted by the association, verbally, on the day of its date, payable whenever Oronan should be entitled to the amount free from any privilege or lien claims against him on the funds.

To this petition Cronan and the association answered by general denial. Schwartz in his answer alleges that the order relied upon by intervenors has no legal existence; that it was given without valid consideration ; that it has not been accepted by the association ; and that intervenors ought not to be paid out of the money in the hands of the association in preference to him.

There was judgment in favor of Schwartz, against Cronan, for $301 38, and against the association for $500, with privilege on the funds in the hands of the association on the8th August, 1874, due to Cronan; and the residue in the hands of the association was reserved for ulterior adjudication. Eosdick & Co. and the association appealed separately; and Schwartz, in answer to the appeal, prays that the judgment may be so amended as to decree in his favor against the association the full amount of his demand, with lien and privilege on the funds belonging to Cronan, under his contract, in the hands of the association on the eighth August, 1874; and that “in other respects the judgment of the lower court be affirmed.”

The account sued on was sufficiently proven as against Cronan; and the order relied upon by intervenors was shown to have been given In settlement of a judgment in their favor, rendered against Cronan in January, 1874. This order was given to the attorneys of intervenors. It was presented by them to John Henderson, the vice-president, who represented and acted for the association in all that pertained to -the building of the hall. Henderson verbally accepted the order in the terms alleged, and it was left with him for payment; and he afterward made the two payments on account of it, as stated in the petition.

Cronan undertook to furnish certain iron work for the building, to put up the railing of the galleries, and to furnish mechanics to bolt and secure his cast iron work on Camp street, whatever that may have been, for the gross sum of $5070, without specification of the price of the sevei’al parts, except, so much for the east-iron work, and so much for the wrought-iron work. There was no agreement as to when any part of this work was to be commenced or completed, nor as to when or how the payment was to be made. His agreement, such as it was, was not registered in the office of the recorder of mortgages ; and, therefore, he was entitled to no privilege, and Schwartz could derive none from him by subrogation, or otherwise.

The privilege which the law grants to undertakers, workmen, and the furnishers of materials is, specifically, on the building and the lot of ground, not exceeding one acre, on which it is erected, R. C. C. 2772, 3249; and this is precisely the privilege which plaintiff asserted, and ¡sought to have enforced. We are relieved of the necessity of inquiring whether plaintiff had acquired and preserved this privilege in his owrt right, under articles 3249, 3272, of the R. 0. 0., because the judgment of •the district court did not allow him this privilege, but accorded him a privilege on the money due Oronan, in the hands of the association, on -the eighth August, 1874, the date at which plaintiffs claim seems to have been registered in the office of the recorder of mortgages, and at which he delivered a statement of his account to the president of the association. Plaintiff did not appeal from this judgment; and in his prayer for amendment of the judgment he asks that he may be •allowed the same privilege on the money for the whole amount, instead of for part only of his demand; and that the judgment appealed from ■be in other respects affirmed. This is an acquiescence in the judgment disallowing the specific privilege asserted and demanded in the petition ; and, while we incline to the opinion that he had no privilege on the 'building and lot of ground on which it is erected, we go no further ¡now than to say that we have no power to review the judgment in so 'far as it disallows that privilege, because plaintiff did not appeal; and ■because of his prayer for the affirmance of the entire judgment, excépt as to the amount allowed him against the association.

Cronan was not an undertaker, in the ordinary sense of the term. 'St. Patrick’s.Hall was not built by an undertaker of the entire work. The different parts were done by persons whose bids or offers were ■accepted; and Cronan’s bid for cast and wrought iron work to be used in the construction of the building, and for putting up the railings of the galleries, was accepted. In great part his undertaking was to furnish materials which those who constructed the building were to use •and put in place.

Schwartz did not deal with the association. He sold to Cronan, at different times, in April and May of 1874, sundry lots of old iron, principally cast iron, which was not in a condition to be used in the building. The testimony makes it quite uncertain as to what part of the iron sold by him to Cronan was used in the building; but so much of it as was applied to that purpose was melted at Cronan’s works, just as if it had been pig iron, and was cast into the shapes and patterns required in the ‘construction of the building. He is to be dealt with, therefore, as the furnisher of raw material to a manufacturer who wrought and fashioned it into the perfected material which he, the manufacturer, had undertaken to furnish to the owner, to be used in the construction of -the building.

Under the Code, the person who has contracted with the undertaker, ¡and not with the owner, of the building, has these remedies:

1. By art. 2770 of the R. C. C. masons, carpenters, and other workmen, those who, in the language of Troplong, have done un travail manueV in the construction of a building, may bring a direct action against the-owner, and may recover of him up to the amount which may be due by him to the undertaker at the time of the commencement of their action.

This article was copied into the Code of 1808, page 386, article 78, from the Code Napoleon, article 1798; and it was incorporated in the-Civil Code of 1825, as article 2741, and in the R. C. C. as.article 2770,' without change. By its terms it does not include the furnisher of materials ; and the French commentators and jurisprudence agree that he is-excluded from its benefits. Troplong, Échange et Louage, 3, p. 260, number 1052 ; Marcadé, 6, p. 545 ; Guesdon c. Nannet, Sirey & Yilleneuve, 1846, part 2, p. 262. It is a remarkable fact that neither the Code-Napoleon nor the Louisiana Code of 1808 granted any privilege to thefurnisher of materials. The Code of 1825 granted him a privilege only where he supplied the owner with materials which were actually used in the work. C. C. article 3216, number 3. It would seem from a comparison of this article with article 2743, R. C. C. article 2772, that a privilege-on the building was allowed only to those who were employed directly by the owner, who contracted with him.

2. By article 2773, which is copied from the Code of 1825, article-2741, workmen, and those furnishing materials, who have contracted with the undertaker, may cause the moneys due him by the owner to be seized ; and they are, of right, subrogated to his privilege on the building. By article 2774, this right of seizure extends to payments which the owner may have made to the undertaker by anticipation, that is, in advance of the time of payment fixed by the contract between the owner and the undertaker. See Baldwin’s case, 11 La. 453.

3. As the furnisher of materials is not included in the terms of article 2770, Schwartz could not have brought suit under that article; and as Cronan, with whom alone he dealt and contracted, had no privilege, Schwartz acquired none from him by subrogation ; and, therefore, he could have proceeded under article 2773 only by seizing in thehan-ls of the association the moneys due to Cronan, including any payments the association may have made to Cronan in anticipation. As-Schwartz did not proceed under this article, he is remitted to the act originally passed in 1844, re-enacted in 1855, and in the Revised Statutes-of 1870, and incorporated in the R. C. C. as an addendum to art. 2772.

This Act was entitled originally “ An Act to amend article 2744 of the Civil Code, to promote the better security of mechanics and others-erecting buildings or furnishing materials, in the State of Louisiana.” 1844, page 34. In 1855, page 327, it was re-enacted under the title, “An Act relative to mechanics’ lien.” In the Revised Statutes, it is placed iru the title “privilege,” under the heading, “enforcement of mechanics’ lien,” p. 561, see. 2879 et seq.; and in the R. O. 0. it is inserted between ■article 2772, which was article 2743, and article 2773, which was article !2744. This whole matter would have been greatly simplified • if the original design of the Legislature had been carried out, and this act had been accepted and treated as an amendment to article 2744; and if .articles 2741, now 2770, and 2745, now 2774, had been stricken out and ■omitted in the Revised Civil Code. We must take the law as we find it, not as we think it ought to have been, and endeavor to ascertain the rights of litigants, in accordance with its terms and provisions.

The first section of this act authorizes workmen, etc., employed by a contractor, to deliver to the owner an attested account of the work they have done, and for which they have not been paid; and, thereupon, such owner shall retain, out of his subsequent payments to the ■contractor the amount of such work and labor, for the benefit of the person so performing, etc.;” and section five extends all the provisions of the act to the furnisher of materials.

Section two makes it the duty of the owner to furnish his contractor with a copy of such attested accounts, in order that, if there be any ■disagreement between the contractor and these workmen and furnishers -of materials, his employees and creditors, it may be adjusted amicably between them, or by arbitration. In case of failure of the contractor within ten days after the receipt by him of such copies to give the ■owner notice that he intends to dispute the claim, or if, in ten days after giving such notice, he shall refuse or neglect to have the matter adjusted, he shall be considered as assenting to the demand and the owner shall pay the same when it becomes due.

Section three provides for the adjustment of these accounts, and the ascertaining and fixing of the amount due, in case of dispute, by arbitration, on the agreement of the parties to submit the matter: the award of the arbitrators, in writing, to be final and conclusive.

Section four provides that, whenever the amount due shall be adjusted, as provided in sections two arid three, if the contractor shall not within ten days after it has been so adjusted and ascertained pay ■the sum due to the creditor, with the costs incurred, the owner shall pay the same out of the funds, as provided ; and the amount due may be recovered from the owner by the creditor of the contractor, and the creditor shall be entitled to the same privileges as the contractor, to whose rights the creditor “shall have been subrogated,” to the extent In value of any balance due by the owner to the contractor, under the contract with him, at the time of the first giving of the notice, or subsequently accruing to the contractor,.if such amount shall be less than the •sum due from the contractor to his creditor.

Section six defines the payment by .anticipation to be that which is made by the owner to the contractor in advance of the sum due on the-contract; and if the amount still due the contractor after such payment shall be insufficient to satisfy the demand made for work and labor done, or materials furnished, the owner si all be liable to the amount, that would have been due at the time of his receiving the account, in-the same manner as if no such payment had been made.

There is some difficulty in construing this act, and in applying it to the case under consideration:

1. By the terms of section one it seems to be limited to those cases-in which the building is constructed under a contract between the owner and the builder, or other person undertaking the whole work. As this-is a remedial statute it should be construed liberally ; and it would be but reasonable to apply it to all building contracts, whether the different parts are undertaken by different contractors, or the whole work is-undertaken by a single contractor. St. Patrick’s Hall was not undertaken by a single contractor; and the claim of Schwartz is for raw-material sold by him to a person who had contracted to furnish a large amount of manufactured, perfected material, and to do but a very small part of the work of construction. In a letter addressed to the-president of the association by Cronan, April 8, 1874, containing his entire proposition, which was accepted, and became the contract between him and the association, he says :

“ In my bid I propose to put up the railing of the galleries, and to-furnish mechanics to bolt and secure my east-iron work on Camp street front. The balance of the work can be placed as they progress.”

He then gives a detail of the cast-iron work, without any mention of the prices, or reference to any labor to be done, ending with a statement of the gross sum, total price, $3144 95. This is followed by a-detail of the-wrought-iron work, without mention of prices, or reference to work or labor to be done, closing thus : “Total, $2455 05. Cast-iron,. $3144 95; wrought-iron, $2455 05 ; total, $5000. Less estimated deduction in size, etc., of above mentioned wrought-iron work, etc., details of which I left with Mr. Freret, $530. Bid now stands $5070, with alterations and amendments above stated.

“ Accepted.

“(Signed) GEORGE CRONAN,

JOHN HENDERSON.” '

The price or value of the work and labor to be done was manifestly small, and was included in the gross price of the material; so that it can not be ascertained from the contract.

The testimony shows that Cronan used some part of the iron purchased of Schwartz in work for other persons: that he purchased $500-worth of iron at one time from Schwartz, for which he paid cash; and that this iron was used for St. Patrick’s Hall. That he purchased iron from other persons; that the raw material was dumped at his foundry confusedly, and put into the furnace and cast confusedly; that no account was kept at the foundry by which it could be shown what part of each purchase of raw material was used for any special work; and that it could not be stated otherwise than approximately what part of the iron mentioned in the account or statement of Schwartz was used for the perfected material furnished by Cronan to St. Patrick’s Hall.

It also appeal's that Cronan paid Schwartz $200, credited in the account under date May 16. Cronan says this payment was for material used by him for the hall; and, according to his estimate, not more than $300 to $400 worth of the iron charged in the account of Schwartz was used for the work on the hall, on account of which he paid the $200.

If it be conceded that Cronan was such a contractor, and that Schwartz was such a furnisher of materials as the act contemplates, it seems clear that the statement, or “attested account,” to be delivered to the owner of the building must be limited to the materials furnished to be used and actually used in the work done on the building; and that it is not a compliance with the law to deliver to the owner an account the greater part of which is for materials used for other purposes.

2. Sections 2, 3, 4, of the act, contemplate and provide for those cases only in which the owner of the building, having received the attested account, furnishes a copy to the contractor; and the amount due by the contractor is adjusted, ascertained, and fixed, either by the failure of the contractor to give the owner notice of his intention to dispute the claim ; or by amicable arrangement; or by arbitration ; or by the neglect or refusal of the contractor to have the matter adjusted. It is evident from the mere reading of section four that the action which it authorizes the creditor of the contractor to bring against the owner is for the recovery of the amount, as it has been adjusted, ascertained, and fixed, in some one of the modes pointed out with so much precision in sections two and three. It does not authorize or enable the creditor to sue the owner for any other sum or amount, nor for this precise sum, until, by this preliminary adjustment and final and conclusive fixing of the amount, as between the contractor and his creditor, the contractor shall be in default by failing to pay the sum due within ten days.

In the erection and finishing of a large building, under a contract with an undertaker of the whole work, there might be several hundred persons, many of them creditors for small amounts, who would come within the comprehensive terms of the act, furnishers of materials, mechanics, workmen, journeymen, laborers, cartmen, sub-contractors, and other persons doing or performing any work toward the erection, construction, and finishing of any building, etc., all of whom might deliver attested accounts to the owner ; and it would require no small amount of clerical labor and of time to make copies of such accounts, and to furnish them to the undertaker. This labor would be increased in case there were several different contracts for the different parts of the work. If, from any cause, the owner should fail or not choose to take upon himself this burden, the act has made no provision for any other means of effecting a compulsory adjustment, or of putting the undertaker or contractor in default. It might have been well for the Legislature to have required the creditors themselves to deliver copies of their attested accounts to the undertaker, and thus to have enabled them to compel a speedy adjustment, as between the undertaker and themselves, and to recover, with the least delay practicable, the money duo them for wages cr materials, with or without suit.

As the act itself has not provided for the failure or refusal, of the owner to assist these creditors of the undertaker in the adjustment and recovery of the amounts due them, the only consequence is that they can not avail themselves of the remedy, because the prescribed conditions upon which depends the right to resort to that remedy have not been realized ; and they must seek redress by some other means.

Articles 2741 and 2741 of the Civil Code were in force at the time the . act of 1841 was passed ; and they figure in the Revised Code, without change or amendment, as articles 2770 and 2778. Article 2770 is limited to “masons, carpenters, and other workmen; but article 2773 includes “ workmen, and persons furnishing materials.” These articles and the act of 1844 all relate to persons employed by and contracting with unle:takers. The act of 1844 instead of appearing as an amendment to article 2773, corresponding with article 2744 of the Civil Code, is a part of article 2772, which was 2743 of the Civil Code.

The first clause of article 2772 gives the undertaker a privilege on the building ;' and the second clause gives the same privilege to workmen employed immediately by the owner. Then follow the six sections of the act of 1844, as clauses of this article which relate exclusively to those who have contracted with the undertaker. No privilege is given them on the building, except as subrogees of the undertaker. They may acquire a right of action against the owner directly; but only, ex vi termini, when the conditions prescribed by that act harm been fulfilled.

Then follows article 2773, which was 2744 of the Civil Code, which declares that “ workmen, and persons contracting with the undertaker, have no action against the owner who has paid him. If the undertaker be not paid, they may cause the moneys due him to be seized ; and they are of right subrogated to his privileges.”

The compilers of the Code probably foresaw that cases would arise in which workmen and furnishers of materials would not be able to avail themselves of the right of action conferred by section four of the a,et of 1844, clause six of article 2772 of the R. 0. 0., by reason of the failure to have an adjustment and fixing of the amount due by the contractor, and the consequent inability to put him in default, a pre-requisite to suit against the owner ; and they, therefore, retained article2770, which gives the right of action to “ masons, carpenters, and other workmen,” which is limited to the amount due by the owner to the undertaker at the time of the commencement of the suit. This article would afford no relief to the furnisher of materials; and so they retained article 2773, which includes “workmen, and persons furnishing materials.”

The action which is authorized by article 2770 is against the owner: “the action authorized by the act of 1844 is against the owner; but the action authorized by article 2773 is against the undertaker, and the ■owner is made party by the seizure in his hands. Neither article 2773 nor the act of 1844 gives' to the person who has contracted with the undertaker any lien or privilege, except as subrogee to such privilege as the undertaker may have acquired and preserved. The act of 1844, section four, gives the creditor the same privilege as the contractor is ■entitled to, and none other. The whole theory of this act is that where the workman, etc., has brought himself within its terms, the owner of The building becomes his debtor, and may be sued directly, and compelled to pay the amount ascertained, as provided in sections two and •three, to be due to him by the contractor, up to the amount due and to become, due by the owner to the contractor. If the contractor has taken the precaution to preserve the privilege accorded to him by law on the building, the workman, etc., will be secured by that, privilege as legal subrogee; but, otherwise, that act gives him no privilege. The act entitles the creditor, workman, or furnisher of materials to be paid out -of the money due and owing to the undertaker; but neither the act nor •any article of the Code gives any privilege on the funds' in the hands of the owner, except where the creditor, by the adjusting of his account, is entitled to sue and to recover of the owner.

Plaintiff has not brought himself within any law authorizing him to proceed by direct action against the association ; nor conferring on him .any privilege on the funds of or money due to Cronan in the hands .of the association.

Precisely at what time the draft of Cronan, sued on by intervenors, 'became exigible we are not informed ; but it operated a transfer of so •much of the money in the hands of the association due to Cronan, from the date of the acceptance. Two payments, one of $350, September 12, 1874, the other of $450, May 10, 1875, have reduced the amount to sixteen hundred and sixty-one dollars and thirty-two cents ($1661 32). There is no prayer for interest in the petition; and we think substantial justice will be done by allowing interest from judicial demand, under the prayer for general relief.

It is therefore ordered, adjudged, and decreed that the judgment of the District Court, except that part of it which is in favor of Louis Schwartz against George Cronan, which was not appealed from and is not to be disturbed by this decree, be annulled, avoided, and reversed ; that the demand of Louis Schwartz against St. Patrick’s Hall Association be rejected with costs ; that George A. Eosdick & Co., intervenors,. do have and recover of and from the St. Patrick’s Hall Association the sum of sixteen hundred and sixty-one dollars and thirty-two cent» (§1661 32), with interest at the rate of live per cent per annum from the tenth of June, 1875, until paid, to be paid out of the funds or money in the hands of the association due and owing to George Cronan for work and labor done and materials furnished by him toward the building of St. Patrick’s Hall; and that Louis Schwartz pay the costs of defendant, the St. Patrick’s Hall Association, and of the intervenors,. George A. Eosdick & Co., in the District Court, and all the costs in this-court.


source: Caselaw Access Project

author: Manning, O. J. Egan, J. Manning, C. J.

license: Public Domain

text:
    No. 6848.
    Succession of R. H. Woods. On Opposition of Chubbuck et al.
    Where, in consequence of an agreement between the attorneys of a succession, and’ of its opposing creditors, entered into to prevent the record of appeal from being-too bulky, certain necessary papers have boon accidentally omitted, a writ of cerliorari will be alloyed to supply them.
    No loss suffered by a stockholder, in consequence of a call authorized by the charter of the corporation, made upon each stockholder to pay a proportion of the price due on his stock, will give rise to a claim for damages against the directors, of the corporation.
    The contents of a written promise, or admission can not be proved by parol, until! its destruction, or its loss, and proper efforts to recover it, have been shown.
    A stale demand for unliquidated damages on the succession of a deceased, on account of an alleged tort of the deceased, and never made during his life, will1 not be allowed, except on the strictest proof of its justice.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,,

      E. C. Kelly and Chas. S. Sice for administratrix and appellee.

      T. A. Bartletie for opponents and appellants.
   The opinion of the court on the motion to dismiss and on the application for a rehearing was delivered by Manning, C. J., and on the merits. by Egan, J.

On Motion to Dismiss.

Manning, O. J.

Hornor & Benedict, acknowledged, creditors on the-account of the representative of this succession, move to dismiss this* appeal for the absence from the record of certain papers which they allege constitute a part of the record, and that they were not parties to the agreement between the attorneys of the succession and of the-opponents specifying what papers should constitute the record.

The papers specified as necessary to make a proper and intelligible-record have been supplied since by a writ of certiorari. The agreement to select such papers out of the mass as would be necessary to present the issue between the opponents and the-suecession was evidently made-to save costs, and to save this court the useless labor of reading numerous documents and proceedings, irrelevant to the issue, and not necessary to a comprehension of the matters for decision. We should be sorry to thwart or discourage so laudable a purpose by inflicting a punishment upon those who conceived it.

The representative of the succession, who had judgment below, does not move the dismissal, and the grounds upon which it is asked' by the movers are insufficient.

The motion to dismiss can not prevail.

On the Merits.

The opinion of the court was delivered by

Egan, J.

The opposition of Chubbuck is not in the record, although opportunity to perfect it in this and other respects has been afforded.. As, however, the substance and nature of it is set forth by the counsel on both sides, and the record affords the means of passing upon it intelligently, we will proceed to do so. It appears that decedent was bookkeeper and cashier of the Loan and Pledge Association, and by virtue of the latter office a director, also. One Mahan was a stockholder, who, it is alleged, desired several years ago to transfer his stock, and was: prevented or not allowed to do so by the president and by the deceased, who, as a director or other officer, also joined in a call of ten per cent on all outstanding stock, whereby it is alleged the stock was greatly depreciated, and heavy loss resulted to the said Mahan, whose stock was> afterward bought up by the association or its president, Benton, at greatly reduced price. Subsequently, in 1874, the opponent purchased at sheriff’s sale for the price of twelve dollars all the rights and claim, of F. C. Mahan, of whatever nature, against said Loan and Pledge-Association or Accommodation Bank (as it was sometimes called), and against any and all of the directors thereof, in either their official or individual capacity, in consequence of any of their acts in connection with him and with said company, and now wages this opposition, and •claims unliquidated damages against the succession of Woods,-as the transferee of Mahan by virtue of his purchase at the sheriff’s sale. The demand is, to say the least of it, a stale one, and when urged in this form after the death of Woods requires to be supported by strict proof. The district judge thought, and we agree with him, that such evidence was not offered or given. We have recited the precise description given in the sheriff’s deed, or proces verbal, of what was acquired, from which it appears that the particular claim now relied on was not named or described. It is very questionable if a claim for damages in the nature ■of a tort would pass under such description, even if more minute, and whether it would not be confined at most to claims and obligations •growing out of some legal act or pact, and not from “délits or quasi délits.” Were it, however, otherwise, it is by no means clear from the evidence that 'Mahan himself could at the time of his application transfer stock which was at the time pledged by him for a loan from another person, and it does not appear that the certificates were in his possession, or exhibited to the president or deceased at the time of the application to transfer, as required by the rules of the association, and by ordinary prudence in its officers. Neither is the evidence satisfactory that loss resulted from the call for stock. Indeed, ordinary experience would teach us that compliance with the call would have enhanced its ■value to that extent, and at all events that any loaner or pledger interested, or Mahan himself, might have paid the call if need be out of the loan. At all events, his contract with the company as a stockholder was to pay the amount of his stock as called for under the charter until fully paid up, and if injury or loss resulted from such call, it was damnum absque injuries,” and affords no basis for a claim for damages which are never recoverable for the mere enforcement of a legal right or obligation.

The Loan and Pledge Association would seem from the evidence to be a corporation of very questionable vitality, and affording its president and chief manager an opportunity to ply his avocation of manufacturer at Baton Rouge, away from its domicile and place of business In New Orleans, if, indeed, it has any at all. This opposition is based upon an attempt to alter the entries in and boobs of the company, as kept by the deceased, subsequent to his death, and with his widow and ■administratrix necessarily at great disadvantage. To do this reliance is had upon parol evidence of a very loose and unsatisfactory character, which, taken even for all its worth, leaves both facts and amounts in great uncertainty. The chief witness is Benton, the president of the association, who swears in general terms that the deceased must have made improper entries and charges against the company for money loaned and interest collected on account of the loans, when in point of fact he had not the means to make such loans. He does not pretend to have any knowledge of the particular acts or facts of these entries, which it seems were going on for a long time, and always open to the inspection of the president and directors. The former confesses that he had so much confidence in the deceased that he did not examine the books as he ought to have done. He, however, swears that Woods subsequently admitted to him that he had used moneys of the company for his own purposes, and promised to make it good, and gave a writing to that effect. If so, that writing was the best evidence. It has neither been produced nor legal steps taken to pave the way for the reception of evidence of its contents. It is not shown to have been destroyed, and, if lost, no proper efforts have been made to recover it. Under these circumstances the judge a quo very properly refused to receive or consider the evidence of its contents.

The same witness also swears that the deceased was entitled to only $100 per month salary as bookkeeper, and that the credits on the books of larger amounts or at higher rates in his favor should be disallowed, or rather disregarded, and his succession made to account for these sums, also. It appears that $100 per month was the 'salary due deceased as bookkeeper only. He was subsequently made cashier, also, and it is elsewhere shown by the same witness that the former cashier received $2000 per annum, or, perhaps, $1800. No resolution or action of the directory, nor any contract or understanding -with the deceased that he should perform the duties of cashier for less than his predecessor, is shown. It was unreasonable to expect him to perform the additional duties of another office, and one so important, without additional compensation, also. It does not appear that the items in question were overcharges under the circumstances. As to the ability of the deceased to make the loans to the company upon the want of which, and not upon any knoioleclge to the contrary, the witness relies, it appears from his own testimony that the deceased owned a house which had cost him several thousand dollars, and which, as was not uncommon at that time, he may have used as a basis of credit to make the capital so invested active and interest-producing instead of dead or inactive, and that the witness himself bought from him stock to the amount of over $2800, although he says that was raised to liquidate the indebtedness of deceased — to whom or for what purpose is not shown. The entries on the books charging the company with the loan correspond in date and amount with this transaction, and it is at least singular that they should have been made by the deceased with so much boldness, if in fact, as charged, he was a defaulter; or, at all events, that he should have afforded by his own entries on the books of the company as to this and •other matters so ready a means for his own detection. It also appears on the books, and is equally singular according to the theory of the ■opponent, that in less than a month afterward, in June, 1872, the deceased charged himself with $1200 loaned money returned to him, ¡and at different times with small sums of from twenty dollars to fifty dollars interest on loans paid him, thus multiplying- the means of •detection and evidence against himself, if there was no foundation for xhe entries. Another, and perfectly disinterested witness, Yan Benthuysen, also avers that he bought three lots from the deceased, and paid him $6000 cash for them. So that, taking into account this sum, the $2850, price of stock, and the amounts derived from current salary due monthly, and if not drawn properly chargeable against the company in favor of the deceased, and without reference to other means or sources ■from which moneys might have been derived, as shown by this record, the argument that the deceased did not make the loans to the company 'because he could not has no great weight, especially in view of the evidence of the same witness, Benton, that he himself made advances, but •of his own means, in buying up stock for the benefit of the company, 'which does not seem to have been independent of aid from its own offi•cers at times. There are other and minor items which it is unnecessary ‘to discuss. The deceased seems to have been so implicitly trusted by the president, directors, and company while living that the offices of ‘bookkeeper and cashier were combined in his person. The books, ¡always open to inspection, were kept in a manner far from suspicious, ¡and very unusual for one seeking to defraud. He is dead, and his voice ■and evidence sealed forever. That of the president, upon whose testimony the opponent relies almost entirely, even if given all the weight which can be claimed for it, fails to make opponent’s case certain or satisfactory. The demand is waged against a succession on items origin¡ating, if at all, years since, and which do not appear to have been legally demanded during the life of decedent, and while the books kept by the deceased might not have been receivable at his instance or that of his administratrix in his own favor, they were offered as they appear with entries both of debit and credit by the opponent, who is, therefore, bound by them, unless they are satisfactorily contradicted, or shown by other evidence to be false. This has not been sufficiently done in a contest waged under these circumstances, and at this late day, after the death of the deceased, and based solely on parol evidence of the grossest violations of law and common honesty in one whose good character ¡and standing for years while living is shown by the evidence of the ■opponents themselves. The district judge heard and saw the witnesses; be is intelligent and capable, and thought that the opponent’s claim should be rejected. The record before us does not warrant us in arriving at a different conclusion. Neither are we prepared to say that he erred in ordering stricken out or in refusing to consider the evidence in chief of a witness in the absence and by reason of the failure to produce at the same time the cross-examination of the same witness, or in refusing to receive or consider after the submission of the cause, on the evidence then on file, evidence sought to be filed subsequently — matters raised by two bills of exceptions taken by opponent.

The judgment below rejected the oppositions both of Chubbuek and of the Loan and Pledge Association. It was correct, and is affirmed.

On Application por Rehearing.

Manning, C. J.

Rule IS of this Court requires that printed statements of the points and authorities, upon which the applicant for rehearing relies, shall be filed in support of his written or printed petition for a rehearing.

This rule has not been complied with, and therefore

The rehearing is refused.


author: Mabe, J.

text:
    No. 7001.
    Edward J. Gay & Co. vs. Gilbert A. Daigre et al.
    The privilege acquired by one creditor on certain property gives him, or his transferee, no preference over another creditor who had previously acquired a mortgage on the property, unless the act, or other evidence of the privilege debt, was recorded on the day the debt ivas contracted.
    Recording an account current for advances made by a factor to .a planter, running through several months, the day after the date of the closing of the account, is not recording the evidence of the debt on the day on -which the contract for making the advances was entered into.
    The pledge which the aet No. 60, passed by the Legislature in I87i, gives to factors, and others, on certain property of planters, when they have made and recorded certain written contracts, will not operate to the prejudice of creditors holding pre-existing mortgages on the property, unless the contracts were recorded on the day they were entered into.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Mofea, J.

      Barrow & Pope for plaintiffs and appellants.

      Sami. P. Greves and A. S. Herron & Bird for defendants.
   The opinion of the court was delivered by

Mabe, J.

The executors of John Bird recovered judgment against Gilbert A. Daigre for $5000, with recognition of their mortgage rights and vendor’s privilege on Mulberry Grove plantation, situate in the parish of East Baton Rouge; and in another suit they recovered judgment against Daigre for $20,331 85, with recognition of their mortgage rights on the same property.

The note on which the judgment for $5000 was obtained was secured by a mortgage recorded in October, 1869. The judgment for $20,331 85 was for the aggregate sum represented by four notes of different dates; one for $5700, secured by mortgage recorded in March, 1870; two amounting to $11,811 66, secured by mortgage recorded in June, 1870 ; and one for $2817 19, secured by mortgage recorded in July, 1870.

On these two judgments executions issued on the twenty-second December, 1871, under which the sheriff seized and sold the plantation, with the appurtenances; and the executors purchased the whole for $25,200, which the sheriff applied pro rata to the two writs, as shown by • his return.

Before the day of sale Edward J. Gay & Co. intervened by way of third opposition, and claimed privilege-and preference on a quantity of cane, part of it put up for seed, and part already planted for the crop of 1875, hay, cord wood, and five mules. They claimed a privilege on the mules for $300, the balance of the price, as subrogees of the vendor; and a lien and privilege on the cane, hay, and cord wood, under an act of pledge in conformity to the act number sixty-six, of 1871.

The judgment of the district court, from which Gay & Co. appealed, was in favor of Bird’s executors, and rejected the demand and opposition of Gay & Co.

The mules were purchased by Daigre, for the use of the plantation, on the tenth February, 1871; and he acknowledged, in writing, the balance of $300 to be due. The claim was transferred to Gay & Co. by the vendors on the eleventh December; and the whole was recorded in East Baton Rouge on the twenty-second December. As the law was at that time, and continued to be up to the passage of the act number forty-ñve, of 1877, page fifty-nine, no privilege conferred a preference on the creditor who held it over a creditor who had acquired a mortgage, unless the act or other evidence of the debt was recorded on the day the contract was entered into. R. C. C. article 3271; State ex rel. Prager vs. Recorder of Mortgages, 28 A. 534; Succession of Marc, 29 A. 112.

Manifestly, the contract on which the vendor’s lien and privilege rested was that between Daigre, the purchaser, and Payne, his vendor; and this lien should have been recorded on the day it was entered into, February 10,1871. The vendor could have transferred to Gay & Co. no other right than he himself had, at the date of the transfer, December 11,1871; and the recording on the twenty-second December was wholly without effect, so far as the mortgage creditors were concerned.

The law under which the right of pledge is claimed is entitled an -act. “to enable planters, farmers, merchants, traders, and others to pledge and pawn cotton, sugar, and other agricultural products to merchants, factors, and others, and to confer a pledge by the transmission of a bill of lading or carrier’s receipt by mail or by the carrier.” Under 'this act a contract of pledge and pawn was made between Gay & Co. ■•and Daigre, on the third July, which was recorded on' the seventh July, 1874 Gay & Go. also made up their account current, beginning with a balance of §6851 56, on the thirty-first July, brought down to twenty-fourth November, with a balance of $8869 23; and another, account, beginning November 24, with this balance, and closing December 21, '1874, with balance, $3382 29 ; in addition to which they claimed balance •of $19,874 59 on mortgage notes held by them. These accounts were recorded on the twenty-second December, 1874; and it is the balance, :§3382 29, for which.they claim the lien and pledge.

The second and third sections of this act are but enlargements of the privilege of the consignee as established by the R. 0. 0. article 3247; •■and it is not necessary to consider them, as there was no shipment or •consignment of the property in question.

The first section of the act provides that, in addition to the privilege now conferred by law, any planter, etc., may pledge or pawn his ••growing crop of cotton, sugar, or other agricultural products for advances in money, goods, and necessary supplies that he may require for the production of the same, by entering into a written agreement to pledge the same, and having the agreement recorded in the office of the recorder of mortgages of .the parish where said cotton, etc., is produced, “which recorded contract shall give and confer on the merchant, ■ etc., a right of pledge upon the said crop, the same as if the said crop had been in the possession of the pledgee.”

The law which gives a privilege for necessary supplies, etc., furnished to any farm or plantation, “ on the crops of the year and the promeeds thereof,” is article 3217 of the R. O. 0., embodying the act number 195, of 1867. Of course this privilege falls under the dominion of the •constitution of 1868, article 123, which requires all privileges to be recorded in order to have effect against third parties, and of the R. O C. article 3274, which required the act granting the privilege or other evidence of the debt to be recorded on the day that the contract was ■entered into in order to confer a preference over creditors who have .-acquired a mortgage. Beard vs. Chappell, 23 A. 694; Bank of America vs. Fortier, 27 A. 245; Adams vs. Adams, 27 A. 275. The recording on -the twenty-second December could not have been on the day the cbn-tract between Gay & Go. and Daigre was entered into; and the recording of an account current for advances running through several months on the day after the date of the closing of that account is not, in any sense, the recording of the evidence of the debt on the day the contract. under which the advances were made was entered into. Prager vs. Recorder of Mortgages, 28 A. 535.

The right of Gay & Oo. depends upon the agreement of July 8,.. 1874, recorded on the seventh July, not on the day the contract was-entered into. The counsel for Gay & Co. contend that the contract was-a pledge, and although the law requires it to be recorded, it does not. prescribe the time at which it shall be recorded; and that' it takes ■ effect from the date of the recording. This may be true in general;, but it is not true so far as creditors having pre-existing mortgages are-concerned ; and we think that, whenever the law requires a contract to-be recorded, and is silent as to the time within which it must be recorded.,. its effect is limited and controlled by article 3274.

The lessor need not record the right of pledge by which the rest Is-secured to him, because the movables subject to his right are in his possession, that is, they are in his house, on his premises. The law does-not require the consignee who has made advances on the goods «on-signed to him, or to whom a general balance is due for advances, to record his claim, because when the shipment is made, and the goods a rain the possession of the carrier, the carrier is the agent of the consignee ; his possession is the possession of the consignee; and the bill, of lading or the carrier’s receipt, when it has once passed beyond theeontrol of the shipper, the consignor, by being deposited in the mail, or-delivered to the carrier to be transmitted with the goods, vests ikelegal title, the right of possession and control, in the consignee for toe-purposes and subject to the terms and conditions of the consignment;, and the holder of such a title to movable effects has no occasion to pet. upon record the evidence of his right and title.

It suffices to say, with respect to the privilege of the lessor and that: of the consignee, that the law does not require them to be reeoxctecL The act of 1874 distinguishes between the right of a merchant making-advances to a planter under the contract authorized by the first se®ti©»- and that of the consignee to whom the goods have been dispatehed. It. requires, in express terms, that the agreement between the merehaat:. and the planter shall be recorded, while it imposes no such conditioB on-the consignee.

Pledge is the generic term ; that form of pledge by which movables, are put into the possession of the creditor as security for a deM fe. called a pawn ; and where the property pledged is immovable the eon-tract is called antichresis. R. C. C. 3133, 3134, 3135.

An essential requisite of the pawn is that the thing must be actually delivered to and must remain in the possession of the creditor, or of a.. third person agreed on by the parties. R. O. 0. 3162. The act of 1874 authorizes the pledge or pawn of a growing crop, which can not, until it is gathered, be delivered to the creditor. To supply the want of actual delivery, the act requires that the agreement shall be'recorded in the office of the recorder of mortgages, in the parish in which the crop is produced. The act does not say when it shall .be recorded; and, no doubt, it would be good against creditors acquiring rights and privileges after the recording. But article 3274 declares, in the broadest terms, that no privilege can confer a preference over creditors having acquired a mortgage, unless it be recorded as prescribed by that article. It would require the positive declaration of legislative will to that effect to withdraw the contract authorized by the act of 1874, section one, or any other form of contract creating a privilege which the law requires to be recorded, from the control of article 3274, which is the general law applicable to every species of privilege.

If the right of the lessor and of the consignee need not be recorded, it is not because they are pledgees ; but because the law-making power has not seen fit to impose upon them the condition of recording which the act of 1874, section one, requires of the creditor for advances to a farmer or planter.

The counsel for Gay & Co. argue that, by the certificate of the recorder of mortgages, it appears that the mortgage debt of Bird’s executors, with interest up to the date of the sale, amounted only to $17,872 28; and, as the price of the adjudication was $25,20.0, there remains a sum sufficient to pay the debt of Gay & Go., $3382 29, with interest. The certificate was that which was annexed to the sheriff’s return; and, as copied in the transcript, it omits the mortgage for $11,814 66, recorded in June, 1870, as stated at the beginning of this opinion. The solemn judgment of the court recognizing this and the other mortgages, all of which appear in the record, with the certificate of the recorder of mortgages on each of them, showing the dates at which they were respectively recorded, can not be affected by the accidental omission in the certificate of the recorder of mortgages, prepared for the sheriff, and which was offered in evidence only incidentally, as part of the sheriff’s return. This omission may have been the fault of the recorder, or of the- copyist who prepared the transcript; but with the other evidence in the record, showing the precise amount of the mortgage debt and the dates of recording, it is wholly immaterial.

Edward J. Gay & Go. were not entitled to any right or privilege on the mules, or the cane, or the hay, or the cord wood, in preference to the mortgage creditors; and the district judge did not err in rejecting their demand and opposition.

The judgment appealed from is therefore affirmed with costs.


author: DeBlanc, J.

text:
    No. 7050.
    Julia A. Ventress, Executrix, vs. Isaac D. Brown et al.
    The objection that a part of tho immovables oí a succession sold ior less than their appraised value, and hence that its sale was null, is not an objection which the notary, before whom a judicial partition of the succession property is pending, could be roctuirod to rotor to the court, before completing the partition. Such an objection can only be properly urged by way of opposition to tho homologation of the partition.
    The. immovable property of a succession, even though partly owned by minors, may be sold for less than its appraised value, to effect a partition among co-heirs, or co-proprietors.
    Where, in a partition suit, the act of the lower judge complained of was done on his own motion, and neither he, nor the parties interested in the partition, are before this court, the appeal will be dism issed,
    ^PPEAL from the Parish Court of Iberville. Croivell, J.

      Barrow & Pope for plaintiff and appellant.

      A. & E. B. Talbot for defendant and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

On the twelfth of December 1876, the probate Court of the parish of Iberville ordered a judicial partition of the property belonging to the successions of James N. and Esther D. Brown, between the parties therein interested. The partition was referred to Adonis Petit — a notary public — who, on the 3d of December 1877, after notice to said parties, was proceeding to complete the same, when Isaac D. Brown, who is entitled to a share in said successions, submitted in writing to the notary his objection to the partition which was then about to be closed, and that objection is that lands situated in the parishes of Iberville and East Baton Rouge and which formed a part of the estates of James N. and Esther D. Brown, were sold for debts and adjudicated at less than their appraised'value.

The said Isaac D. Brown urged that — on that account — said sales are null, that the lands thus adjudicated should be re-sold, and the partition suspended until this be done. The notary refused to suspend his proceedings and refer that objection to the Court. He was enjoined and commanded so to do by an order from the parish judge.

Mrs. Julia A. Yentress then interfered, and claimed — in her individual capacity and as dative testamentary executrix — that the notary should disobey the injunction to discontinue the partition, for the reason:

1. That the objection urged was frivolous and had been granted ex-parie, at chambers, without affidavit or bond.

2. That — when the order of injunction was served — the partition, though not signed, was complete, and — at that stage — its homologation alone could have been properly opposed.

The notary closed the proces verbal of his proceedings and filed it in the parish Court. The judge, considering that it had been filed in contempt of his injunction, ordered that it be, and it was — accordingly— returned to the notary.

This done, the counsel for Mrs. Ventress attempted to file a motion to homologate the partition, the proces verbal of which was — under a. previous order of the GC' —to be returned to the notary. His application was denied, and Mrs. Ventress excepted to the ruling on this point.

The objection made by the counsel representing Isaac D. Brown, that lands of the herein mentioned successions were sold under their appraised value, is not one .of those which he could have required the notary to refer to the court, for the reason that the court could not have passed upon the reference, and maintain or annul the purchasers’ titles in a proceeding, the sole object of which was and still is to effect a partition among co-heirs. The notary properly disregarded that objection.

11 L. 497 ; 4 A. 8.

The notary appointed to make a partition is the ministerial officer of the Court by which the partition was ordered, and his duty is to execute the decree under which he is called upon to act, in accordance with its terms. If he fails to do so, any interested party may protest against his action, and — in such a case — the notary must suspend his operations- and refer the matter to the judge, for his decision thereon. As to other errors and irregularities, they should be urged by way of opposition to-the homologation of the partition.

R. C. C. 1348-1368; 12 R. R. 417 ; 13 A. 359; Gilbert, Codes Annotés,. • p. 346.

The lands which Isaac D. Brown alleges to have been sold for less than their appraised value were s Id under a judgment of the parish court, of the 12th of December 1876, ordering the partition — by licitation — of the successions of James N. and Esther D. Brown; and this court has held again and again that lands, though partly belonging to minors, may be sold for less than their appraised value, to effect a partition among co-heirs and co-proprietors.

12 M. 185 ; 7 L. 8 L. 179.

From the recitals and the divers clauses of the act of partition, Isaac D. Brown’s objection was made at the close of the notary’s operation, when the active and passive masses had already been established, and the balances due by and to the heirs ascertained and fixed. The notary had, then, but to pign himself, tender to the interested parties for their approbation or disapprobation, the proces verbal of his operations and return it into Court. This he did, and the application of Julia A. Yentress to have the partition homologated, after the delay and formalities prescribed by law, should have been received and passed upon.

We are informed, by the bill of exception taken by her counsel, that it was the judge who — of his own motion — ordered the procés verbal to be returned to the notary and rejected the application made in appellant’s name, and — as neither the judge, nor the parties interested in the partition are before us—

It is ordered that this appeal be and it is dismissed at the costs of Julia A. Yentress.


author: Marr, J.

text:
    No. 7156.
    State ex rel. Kramer, Widow, etc., vs. Judge Sixth District Court et al.
    In the rule nisi granted by this court on an application for a writ of prohibition, the answer of the defendant should be sworn to.
    After the bond required by the lower court has been given, and filed, that court has no farther jurisdiction of the ease, except to pass upon the solvency and sufficiency of the sureties on the appeal bond. The lower court can not set aside a suspensive appeal, or make it a devolutive one, on the ground that the amount of the bond (fixed by itself in a case where the court is required to fix it) is not the correct amount. _
    j^PPLICATION for a writ of prohibition.

      John & C. B. Bay and L. Charvet for relator.

      A. J. Lewis for respondent.
   The opinion of the court was delivered by

Marr, J.

Bernard Seir, by his will, gave to his wife, Catherine Kramer, the usufruct of his entire succession ; and he left a daughter Josephine, wife of Joseph Snow, who was his forced heir. The will was probated; and by judgment of the Second District Court of date May •4,1876, Mrs. Seir was recognized as the usufructuary, and her daughter Josephine was recognized as sole forced heir of her deceased father: and it was ordered that the usufructuary and the daughter, sole heir, ■“in their respective capacities, be put in possession of all the property, real, personal, or mixed, left by said deceased.”

In October, 1877, Mrs. Josephine Snow, aided and assisted by her husband, brought suit in the Sixth District against her mother, to have •the usufruct declared to be extinguished, for various causes. The proceeding is novel.

On March 16,1878, final judgment was signed, the reasons for which were orally assigned, decreeing the “ absolute extinction of the right of usufruct bequeathed to Catherine Kramer, widow, by her deceased husband, Bernard Seir.” She moved for a suspensive appeal, on the same «slay., in open, court, and it was granted, returnable in this court on the .-Jirsfc Monday of April, on her giving bond in the sum of $500. The bond -was® given and filed on the 25th March. On the 16th March, the day on the judgment was signed and the appeal granted, nine days be■foce the appeal bond was dated and filed, plaintiff’s counsel took a rule on the defendant, appellant, to show cause why the appeal should not be • dismissed, and execution issue, on the grounds:

1. That the surety in the bond is not good and solvent, nor such as ■ Is required fey law;

2. That the amount of said bond is insufficient and' entirely inade- • quate to the protection of plaintiff’s interest.

One would naturally suppose that the taking of this rule on the first .ground would not have preceded the giving of the bond ; but the origi,inal «notion is before us, and it was actually filed on the 16th March, as ths copy from the minutes in the transcript shows.

The rule was tried and submitted on the 28th March ; and on the T2th April it was made absolute: the appeal, so far as it was made susCgeBsive, was dismissed; and it was ordered that execution issue to enforce th.% judgment

Meantime, on the 4th April, Mrs. Kramer’s appeal was perfected by ■the filing of the transcript in this court. Subsequently she applied for -a writ of prohibition, forbidding the judge and the plaintiffs, Josephine tSffiow and her husband, Joseph Snow, to proceed further in the cause. YThe -usual rule nisi was granted; and an answer, which begins with a ¡.general denial, was filed. This answer purports to be that of Josephine ¡and Joseph Snow. It is signed by their attorney, and also by the judge; it is not sworn to by any one. We think it should have been sworn to: this has been the practice; and it is in every respect proper.

The .party applying for a writ of prohibition makes out such a state -of ease, by the allegations of his petition, as, prima facie, entitles him to the writ, and the object of the rule nisi is to enable the judge and the persons against whom the writ is prayed for to be heard, and to -.show any facts, not stated by the relator, which may tend to destroy the prima fade case made by the petition. This rule does not admit of ‘¡exceptions, nor of the general denial: it simply requires a statement of such facts, appearing of record, or reference to such rules of law as, in ’the estimation of the respondent, authorize the acts complained of.

The judgment making the rule absolute, .and ordering execution, •¡áoes net inform us whether the judge decided that the sureties were ¡pecuniarily insufficient, or that the amount of the bond was not suffi.-•eieni. If he held that the sureties were not pecuniarily sufficient, we do ¡-mot agree with him. There were two sureties, both owners of real estate, -one of them a man of large means, either of them amply sufficient. If lie decided that the amount was not sufficient, the error in fixing that: amount was his ; and the utmost that he could have done, if he had that, power, after the bond was signed and filed, would have been to have-allowed a rule on appellant to show cause why bond should not be given for a larger amount. But we think, when the bond was once given and: filed, the District Court had no further jurisdiction or control of the-case, except to inquire into and to pass upon the solvency and sufficiency of the sureties on the appeal bond. If the judge erred in fixing the-amount of the bond, his order might have been reviewed by this court we think it was not competent for him to do so.

The judgment appealed from did not decree the payment of any sum of money; and it did not decree the delivery of any movable or immovable property. It simply decreed the extinction of the right of usufruct.

The answer states that the value of the real property subject to theusufruct was $6300 : that the revenues for three years, during which the-appeal would probably be pending in this court, would be $2592 ; and that a bond for $10,188 would be necessary to protect the plaintiffs.

As the judgment is not one falling within the terms either of article-575 or 576 or 577 of the Code of Practice, the judge was bound, in granting the appeal, to fix the amount under the provisions of articles. 573, 574. Having done this, and the bond having been given and filed,, the judge had no power to dismiss the appeal, nor to make it devolutiveinstead of suspensive.

If the bond should have been for a larger amount, it would be highly unjust to deprive the appellant of the benefits of a suspensive appeal' for no other fault than a strict compliance with the terms and conditions on which the order of appeal had been granted. In this case the judge decided that the bond was not sufficient, on the 12th April, nearly a month after the judgment appealed from was signed ; and when the right of suspensive appeal no longer existed. If the objection had been passed upon within the delay fixed for a suspensive appeal, non constat that appellant would not have been able to have given such bond as might have accorded with the changed views of the judge. His attention was called to the amount of the bond on the 16th March, the day on-which he had fixed the amount; and it was too late for him, after the bond had been given and filed; after the delay for a suspensive appeal had expired, to impose upon the appellant new conditions, or to dismiss the suspensive appeal.

It is therefore ordered, adjudged, and decreed that the rule nisi herein granted be made absolute: that the'prohibition as prayed for be made peremptory; and that respondents pay the costs of this proceeding.


text:
    No. 7155.
    Succession of Widow L. F. Foucher, Marquise de Circé.
    When by the will of a foreign testator property is devised to minors, in this 'State-under the tutorship of their surviving fathers or mothers, it will fall under-the administration of the tutors, or tutrices. Any clause in the. will reguiring judicial appointment of special administrators to take charge of the property-during the minority of the legatees, will be considered as not having been written.
    A devise, by which property left to a minor is put in the possession and under the-control of a third person until the majority of the minor, involves a Mel commissum, which is prohibited by our law.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,,

      Henry Denis and Henry Chiapella for dative testamentary executor- and appellant.

      E. Bermudez for Widow G. Burthe, tutrix and appellee.

      Victor Olivier for Widow E. Burthe, tutrix and appellee.

      B. T. Beauregard for Widow L. Burthe, tutrix and appellee.
   The opinion of the court was delivered by

Marr, J.

Widow Eoucher, Marquise de Circe, died at Paris, leaving-a last will, duly probated, by which she instituted as her universal legatees, “ conj .lintly,” the children of her four brothers deceased, and in default of children their descendants, in equal portions, in each branch.

“ Entendant, ainsi, leur donner tous hiens, meubles et immeubles, qui dependent de ma succession, tant en Erance, que dans tous autres. pays, et notamment en Louisiane.”

. The clause of the will which occasions this controversy is as fol-1 dws :

“Youlant sauve-garder, autant qu’il peut dópendre de moi, les in~ tóréts de tous mineurs prives de leur pére, qui seraient appelós a recueillir une part de ma succession, je veux qu’il leur soit nomme par justice un administrateur special, sans lequel, jusqu’á leur majorité, il ne pourra étre procede á aucun róglement ni partage de ma succession, et qui aura soul droit de toucher et retirer tous objets valeurs et capitaux, comme tous revenus appartenant aux dits mineurs.”

Mrs. Widow George Burthe, natural tutrix of her minor children,, alleged to be heirs of one eleventh, under this will, took a rule on Arthur Denis, dative executor, to show cause why he should not proceed to a distribution of the large sum of money deposited in bank and susceptible of immediate distribution. •

A few days after this rule was taken, the dative testamentary executor, Arthur Denis, took a rule on Widow Andró Burthe, Widow Emmanuel Burthe, and Widow George Burthe, natural tutrices respectively ■of their minor children, to show cause why the court should not proceed to appoint a special administrator to these minors, as required by the ■will.

The defendants in this rule plead that the clause of the will in ■question is void, and should be considered as not written :

First. — Because, by the laws of this State, the tutor is alone and ■exclusively entitled to administer the property belonging to his ward, ■to receive all moneys or revenues accruing to him, and to represent him in all legal proceedings ; and that respondents, as the natural tutrices of. •their minor children, can not be deprived of the administration of their ■property by the appointment of any special administrators, who are ■officers unknown to our laws ;

Second. — Because the said disposition creates a trust or fidei com■missuin, which is reprobated by the laws of Louisiana.

They pray the court to decree the nullity of the disposition directing the appointment of special administrators, and, furthermore, to decree that respondents are fully entitled and authorized to represent their minor children, in all the proceedings pertaining to the settlement of this estate, as if said clause had not been written by the testatrix.

On the trial it was agreed that the only issues between the parties were : 1. Whether a special administrator can legally be appointed to ■the minor legatees ; 2. In case the court decides that this can not be done, whether the dative executor may, legally, under the provisions ■of the will, make settlement with and distribution to the universal legatees before the majority of the minor legatees.

The court made absolute the rule of Widow George Burthe, and ■decreed that the executor proceed, at once, to the distribution of the sum of money in his hands, according to law ; and that the rule of the •executor to appoint a special administrator to the minor heirs be dismissed.

The copy of the will in the transcript contains no appointment of ■executor; and from its terms it seems that the testatrix did not contemplate any administration of her succession in Louisiana. The instituted heirs were the children and descendants of her four brothers deceased ; and her intention seems to have been that a special administrator ■should be appointed to the fatherless minors ; and that the major heirs and the administrator would settle and make partition of her succession, •the portions coming to the minor heirs to be controlled and administered by the administrator.

In France, where this will was written, the law permits the testator to appoint an administrator to minor beneficiaries of the will, only where, by the death of either father or mother, they are under tutelage. So tong as father and mother live the father administers the estates of -their minor children ; but when, by the death of either, the minors are under tutelage, the testator may appoint an administrator of the property bequeathed by him to the minors ; and thus deprive the tutor, whether surviving father or mother, or some other person, of the administration which otherwise would belong to him in virtue of his office. Marcadé, 2,160, No. 152.

There is but little difference in the provisions of the Code Napoleon •and of our Code in respect to minors and their tutorship; and we should be inclined to follow the French jurisprudence and commentators in a •case in which our own Code or jurisprudence is silent. Article 250 of the R. C. C. declares that the tutorship of minor children belongs of right to the surviving father or mother.

The mother may refuse to accept the tutorship; but in that event •she would retain the superintendence of the children, and the care of their education ; and the tutor would be intrusted merely with the administration of their property. R. C. C. 253.

The tutor administers the estate of the minor : he has the care of ¡his person ; and represents him in all civil acts. R. C. C. arts. 336-337.

The mother may refuse the tutorship, or she may forfeit it by second marriage, without having obtained the consent of the family meeting -that she shall retain it; and the father may be excluded or removed from the tutorship for the causes specified in the Code. But where, for any •cause the surviving father or mother is excluded or removed, the law provides for the appointment of a tutor ; and it is always the tutor, and ■no other than the tutor, who administers the estate of the minor, and ■represents him in all civil acts.

Our law knows nothing of a special administrator for the minor; -and the duties of such an administrator would clash with those imposed ;by law upon the tutor. The testatrix did not name a special administrator ; but she required one to be appointed judicially. Her will in this respect conflicts with the plain text of the law of Louisiana. The judges having probate jurisdiction have no power to give the custody of the minor or the administration of his estate to any other than his tutor. 'It is only the surviving father or mother who can by will or public declaration before a notary appoint a tutor; and if the court should attempt in obedience to the will of the testatrix to appoint an administrator, that administrator would be clothed with all the powers of the tutor with respect to the estates of the minors, during their minority; that is, he would be intrusted with part of the functions of a tutor, while the real tutor would be charged with the remainder of the duties and functions of that office. Perhaps the testatrix was advised that the law of Louisiana, which is like that of France in this respect, would not permit her to appoint a testamentary tutor ; and that the estates of minors must be administered under the control and supervision of the Court of Probates. Be this as it may, our law gives no power or authority to the Probate Court to appoint any other administrator of the estates of minors than the tutor, who becomes an officer of the court, and is subject to the orders and control of the court in his administration. If the father or mother be living and competent, the court can not refuse to recognize and confirm such father or mother as natural tutor or tutrix, because the tutorship devolves upon them of right; and the court has no power to separate the administration of the property, to deprive the tutor of it, and to intrust it to a special administrator, or any other person or officer whomsoever.

In Clague vs. Clague, 13 La., 1, the will required the executors to continue their administration until the majority of the children, heirs of the testator, and to retain the funds of the estate until that period, for-their benefit. The widow, natural tutrix, demanded to be put in possession, and called upon the executors to account and pay over to her whatever balance might remain in their hands. This court decided that the disposition requiring the executors to retain the property in their hands until the majority of the heirs was a fidei commissum, and was forbidden by the Civil Code, article 1507, R. C. C. 1520. See, also, Hoggatt’s case, 10 A. 169.

It is obvious that the testatrix, in this case, when she used the terms “ réglement et partition de ma succession,” had in view only the separation of the portions falling to the major heirs from those of the minors; and that her intention was that the special administrator should retain the custody of the portions of the minors, and administer during their minority. This was a trust; and it does not differ, in any respect., from the disposition in Clague’s will, except that the persons charged with the trust in Clague’s will were the testamentary, executors; while in this will the person so charged is the special administrator. That the testatrix intended that he should retain in his hands and administer the entire portions falling to the minors, is manifest from the whole context, and is placed beyond question by the last clause :

“ Les revenus de la part de chaqué mineur serviront á son education et & ses besoihs personnels.”

It will be observed that the Code Napoleon, article 896, which corresponds in all other respects with articles 1507 of the C. C., 1520 of the R. C. C., prohibits substitutions only, while our Code prohibits fidei commissa, also. If, as this court decided in Clague’s case, the charge imposed upon the executors was a fidei commissum, the fact that fidei commissa are not forbidden by the law of France, when they are not also substitutions, enables us to understand why it is that under the-law of France a testator may deprive the tutor of the administration of property bequeathed to a minor during his minority, while such a disposition would not be tolerated under our law.

We incline to the opinion that the clause in the will oí the Marquise •de Circe in question falls within the prohibition of article 1520 of the R. •O. 0.; but, whether this be true or not, the condition that a special administrator shall be appointed for the minor heirs is illegal, and, in that sense, impossible, and it is to be considered as nothavingbeen written ; that is, as not forming any part of the will. The legal title to all ■that the testatrix owned passed to and was invested in the universal legatees, and it must be administered in accordance with the law of Louisiana; that is, those portions which fall to the minors must be delivered to the only legal representatives recognized by our law, their mothers, natural tutrices, having the custody of their persons and the care of their education, and charged by law with the administration of their ■estates.

The judgment appealed from is affirmed with costs.


author: Manning, C. J. Manning, O. J. Spencer, J.

text:
    No. 6947.
    Sara T. Bowman vs. Kaufman, Sheriff, et al.
    When the plaintiff in injunction appeals, by motion in open court, from the judgment dissolving the injunction and condemning him and the surety on his bond in damages in solido, the surety thereby becomes a party, appellee, and hence is disqualified from becoming the plaintiff’s surety on his appeal bond.
    An appeal taken separately by one of two defendants who have been condemned in solido, will not prevent the other from taking an appeal at a subsequent time, within the legal delay.
    A married woman may enjoin the execution of a judgment against her, when the ground of the judgment was a debt of her husband, even though she failed to set up that defense in the suit in which the judgment was obtained.
    'The failure on the part of a wife to prosecute an appeal she had taken from a judgment against her on account of her husband’s debt, will not estop her from subsequently contesting the legality of the judgment.
    A married woman, even though separate in propei-ty, can not be held liable for a debt contracted by her husband, unless it be affirmatively shown that it inured to her separate benefit.
    As between appellees, the j udgment of the lower court will not be disturbed.
    APPEAL from the Seventh Judicial District Court, parish of West Feliciana. Yoist, J.

      Sam J. Powell for plaintiff and appellant.

      W. W. Leake for defendants and appellees.
   On Motion to Dismiss.

Manning, C. J.

The appellees move to dismiss on the grounds, that there is not a legal bond of appeal — that the surety on the injunction bond is incompetent as a surety on the appeal bond, having been condemned as a party to pay damages — and that the order for one of the appeals is void, because rendered after the jurisdiction of this court had attached.

The plaintiff had obtained an injunction upon a bond with surety, conditioned in the usual form. The injunction was dissolved, and judgment was rendered for fifty dollars as damages against the plaintiff and her surety in solido. She moved for a suspensive appeal in open court, and perfected it by giving bond with the same person as surety. In the following month, the surety prayed an appeal by petition, and gave-another person as her surety.

In an early case it was held, that the conditions of the two bonds-being different, the original one being only for damages consequent on a wrongful suing out of the injunction, and the last, that the surety will' pay the judgment to be rendered on the appeal, the same person may well sign both, if otherwise unexceptionable, unless he has been condemned as a party by the judgment appealed from under the act of 1831. Leeds v. Yeatman, 12 La. 383. That act is now incorporated in the Revised Statutes of 1870 as sec. 1754. The defendants insist that the solidary condemnation of the plaintiff and her surety on the injunction bond to pay the damages, as provided by the act of 1831, places this case pointedly within the exception mentioned in that decision.

The plaintiff cites Greiner v. Prendergrast, 2 Rob. 235 as conclusive-authority for the contrary doctrine. In that ease, upon a dissolution of the injunction, the plaintiff and his surety were condemned in solido to pay twenty-seven dollars as damages, with ten per centum interest-on the amount of the injoined judgment. The plaintiff prayed a suspensive appeal, and gave bond with the same surety. The same objection was made then as now, and the court held that a party had a right to a suspensive appeal, provided he offered such surety as would indemnify, his adversary against all consequences which might result from the appeal. It is true, say the court, that if both the principal and surety, against whom damages had been given on the dissolution of the injunction, had joined in an appeal, they would have been bound to give one solvent surety, although they were both admitted to be- sufficiently solvent to remove all idea of danger on that score. The reason would be that the law expressly requires surety on the grant of any appeal.

It will be-observed that case is identical with the present one, and the two Justices who were the organs of the Court in the two cases-cited were both on the Bench together when each of them was decided. The last must then be considered as overruling the first, if indeed it is-not reconcilable with it. The expression, unless the surety has been condemned as a party, may be understood as another way of stating the-reason of the rule why he could not then be taken as a surety, viz that-he would then be a principal and must himself furnish a surety.

But since those decisions were made, important and radical alterations have been made in the laws governing appeals. Now, when an-appeal has been taken by motion in open court, all parties who are not appellants are declared appellees, and the bond in favor of the clerk is-for the benefit of each and every one of the appellees, and may be sued on accordingly.

When the plaintiff took her appeal in open court, and filed her "bond, the surety, who had been condemned with her solidarily for damages, became eo instanti a party to the appeal, as appellee. When that surety then became again a surety on the appeal bond, he occupied the--double and inconsistent positions of an appellee, whose interest was a. maintenance of the judgment, and a security to pay the judgment on appeal, in case the appellant did not pay.

Under these changes in the laws governing appeals, and because-of them, we hold that in all cases where a party is necessarily appelleeif he be not appellant, the surety on an injunction bond is incompetent to be a surety on a bond for an appeal from the judgment dissolving the injunction, and for damages against principal and surety in solido. And it was so held by us at the last term. Dumas v. Mary, Opinion Book, 47 p. 265. The appeal of the plaintiff is therefore dismissed.

But that of the surety is good. That appeal was taken by petition, ' and a separate security given. The filing a bond of appeal by one of' the parties condemned in the judgment below lodged only her appeal in’ this court, and did not prevent the other from taking an appeal at a different time within the permitted delay.

The motion to dismiss the appeal of plaintiff is allowed. The-motion to dismiss the appeal of the surety is denied.

On the Merits.

The opinion of the court was delivered by

Manning, O. J.

This suit is to have decreed the nullity of. a judgment, obtained by J. E. Irvine against the plaintiff, and to restrain its enforcement by fieri facias, to accomplish which an injunction was obtained. The plaintiff is married, is separate in property from her husband, and alleges as causes of nullity that the debt, for which the judgment was rendered, was solely a debt of her husband, and that it was rendered without service of citation upon her.

The answer pleads the general issue, and discloses the want of interest of Irvine in the judgment because of its transfer through another party to Flash, Lewis & Co. its present owners, who intervene and •defend.

It is excepted by the intervenors that Mrs. Bowman can not nowr ‘injoin the collection of a judgment for matters which she could have opposed to the demand in the original suit, a general proposition, the soundness of which is incontestable. It is however subject to some modification, as in the cases where the party sued was under an incapacity to contract. Hence a judgment against a married woman upon -two notes, executed by her husbaDd, and by herself as his surety, was held open to assault by means of an injunction, although she had failed to make that defence to the suit upon them, because the judgment, quoad the wife, was null, being upon obligations in fraudem legis, which •she was incapacitated to make. Medart v. Fasnatch, 15 Annual, 651. And that principle has been carried so far that the wife is permitted to sue to annul, and to injoin the enforcement of a judgment which she had confessed. Baines v. Burbridge, Idem, 628.

It was also objected that Mrs. Bowman appealed the original judgment, and failed to prosecute her appeal, and therefore she is now estopped from contesting its legality. But if she can contest the legality of a judgment she has solemnly confessed, how much more can she contest one which she disputed, and particularly when the failure to •prosecute the appeal was owing to marital influence. Bisland v. Provosty, 14 Annual, 169. She testifies that she signed the appeal bond for the purpose of prosecuting her appeal, and never instructed her atfcor- • ney to desist.

The proof is very complete that the debt was the husband’s. Irvine was a factor in New Orleans, and kept his-account for advances ;and supplies, against the husband, or ‘in his name as a courtesy,’ as he says, and this account was the basis of the judgment. It does not matter what words or name were written at the heading of the factor’s books, so far as fixing liability goes. He could not make her liable by merely keeping the account against her, and she could not avoid liability, if it was kept in the husband’s name, if in fact she was legally •chargeable.

But it is manifest that Mrs. Bowman was not thought of until it was apparent that a suit was looming in the near future. The account -was opened in 1869 against the husband and was continuous to 1874, with ■such charges as payments of ‘your draft,’ the draft being the husband’s, and statements of account, invoices, etc. were made to him alone. The bookkeeper says; — the whole account was kept and made out in the name of Mr. Bowman, and the items, ‘ by your draft,’ mean the draft of Mr. B. The account was afterwards changed to the name of Mrs. Bowman, after the transactions were closed, with the view of bringing the ■■suit as he supposed. The change was made just previous to bringing -the suit, by order of Mr. Irvine.

Nothing is better settled than that the debt must be shewn affirmatively to have enured to her benefit, when a party is seeking to enforce it against a wife, and she alleges that it is her husband’s debt alone, and the fact that she is separated in property from him does not change the •nature of the proof required, nor shift the burthen of proof from him who seeks to make her liable upon her who is attempting to escape liability. Erwin v. M’Calop, 5 Annual, 173. Lee v. Cameron, 14 Annual, 700. Even if the wife executes a mortgage under the authorization of the judge, the authority being for a specified sum and an expressed purpose, and the mortgage is for a different sum, and for the purpose ■expressed but- also for an additional and previously unexpressed purpose, any one Seeking to enforce the mortgage upon the wife’s separate property must prove aliunde that the debt, secured by.the mortgage, has enured to the wife’s separate benefit, even though the debt is evidenced by a negotiable note, and its holder is the party enforcing its payment. Conrad v. Leblanc, 29 Annual, 123.

The proof not only fails to fix liability on Mrs. Bowman, but she establishes by affirmative testimony that the debt was her husband’s, ■and that nó part of it enured to her separate benefit, or the benefit of her separate estate. The suit is only one more instance, of which the Reports furnish many, where parties, having goods to sell or money to lend, and seeing a fair chance of profit, deliver their merchandize or ■■send their funds with unsuspecting confidence to a man who has nothing with which to satisfy a judgment, but whose wife is mistress of the household treasury, and delude themselves with the fallacious hope that she will requite their complaisance by taking care that no harm «omes to them.

There is not, and there never has been, any doubt about the law governing a married woman’s liability. The courts have never wavered in applying it, and if parties will persist in ignoring what has been long •settled through repeated adjudications, they Inust bear with equanimity ■the losses, the risk of which was incurred through rashness.

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the plaintiff do now have Judgment perpetuating her injunction, and for the costs of both courts.

DeBlanc, J. I concur in the foregoing decree.

On Application fob Rehearing.

Spencer, J.

As stated in our previous opinions in this case, Sarah. ¶. Bowman enjoined the execution of a judgment against her. There was judgment against her, dissolving the injunction with damages against her and the surety on her bond in solido. Mrs. Bowman appealed by motion, in open court. Her surety appealed by petition and citation. On motion we dismissed Mrs. Bowman’s appeal, but maintained that of the surety, so that Mrs. Bowman is no longer before us as appellant, since her appeal has been dismissed. She appears only," then, as appellee in the surety’s appeal. As between her, therefore, and the other appellees, we can not correct the judgment. See 15 A. 433 ; C. P. 890; 28 A. 99, 455. Our decree, therefore, so far as it annuls and reverses the judgment of the lower court as to Mrs. Bowman, is erroneous, and must be limited in its effects to the surety only.

The rehearing is granted. ,

On Rehearing.

We are satisfied, upon re-examinatioD, with our conclusions upon the facts of this case. The debt was, we think, one for which the wife-was not liable, and could not bind herself, being that of the husband. The surety has the right by appeal to relief from the effects of an erroneous judgment.

It is therefore ordered, adjudged, and decreed that the judgment heretofore rendered by this court be set aside and annulled ; and it is now ordered, adjudged, and decreed that the judgment appealed from,, in so far as it affects or condemns Mrs. Mathers, the surety on plaintiff’s injunction bond, be annulled, avoided, and reversed, and that she recover of appellees the costs of this appeal.

The said judgment appealed from, so far as the same affects the-plaintiff, Mrs. Bowman, is not before us, and is not passed upon.


author: Spencer, J.

text:
    No. 7114.
    State ex rel. Louisiana Board of Trustees for the Blind vs. the Judge of the Sixth District Court.
    Except in eases of attachment, where the law fixes the fee of a curator ad hoc, the court can not, ex-parts, assess and order to be paid the fees of such an officer.
    A suspensive appeal in a ease prevents, pending the appeal, any proceeding, contradictorily taken, for fixing the fees due to a curator ad hoc.

    A PPLICATION for a writ of prohibition.

      Merrick, Race & Foster and Jno. A. Campbell for relators.

      Thos. Hunton and Richardson & Magruder for respondent.
   'The opinion of the court was delivered by

Spencer, J.

The present relator brought suit in the Sixth District Court praying an injunction against Y. J. Dupuy et al., causing curators cicl hoc to be appointed for several of the defendants therein.

There was final judgment dismissing plaintiff’s demand and refusing the injunction. Plaintiff took a suspensive appeal to this court.

After the appeal had been so taken and perfected, the court a qua on motion, ex-parte and without notice to plaintiff, rendered an order taxing or decreeing the payment of fees to said curators, as follows: To Richardson & Magruder §250; to E. E. Mo'ise §150, and A. L. Tucker §100. Relator, alleging that said court has no jurisdiction or power to render said ex-parte decrees, after appeal, and averring that said decrees will be executed, prays for a prohibition.

The judge a quo, in answer to the writ, admits the facts, but denies that he has exceeded his jurisdiction. He contends that relator as plaintiff is primarily liable for all legal costs, and that the appeal does not suspend the right of the officers of court to enforce them. That the allowances to the curators were part of the taxed costs accrued before relator’s appeal, and the amount thereof peculiarly within his discretion. That if aggrieved, relator should have moved to rescind or made opposition.

The questions for us to decide are—

First — Whether in suits other than by attachment (when the law fixes a fee of §10 for the curator without proof) the allowances of fees or compensation to curators ad hoc can be properly classed as costs that may be taxed ex-parte and on motion without notice. It is, we think, clear that the payment of such costs as may be so taxed is not suspended by plaintiff’s appeal. He is bound to pay them whenever due, and their payment may be enforced notwithstanding his appeal from the judgment in the cause. The taxing of these costs is a mere matter of calculation, and is not in fact a “ further proceeding” in the cause, within the meaning and intendment of article 575 C. P.; 10 R. 150. But we think that outside of the case of attachment, where the law fixes or taxes a fee of ten dollars without proof, the court can not, by ex-parte order and without notice, order the payment of specific sums to curators ad hoc as fees or compensation.

Unless the law itself fixes the amount of a fee, it can only be fixed contradictorily with the parties in interest. Any other rule would be intolerable, and .violative of elementary principles. 13 An. 150.

Second — Holding, therefore, that the fees of curators in cases like the present must be adjudicated and fixed in a proceeding contradictorily taken, the next question is, does the appeal prevent such proceeding being had after it is taken ?

We think the answer to this question is found in article 575 of the Code of Practice, which declares that the suspensive appeal “ shall stay execution and all further proceedings until a definitive judgment be rendered on the appeal.”

“ As soon as the appeal is perfected the court of the first instance can take no farther steps in the case, except such as may be necessary to transmit the record to the Supreme Court.” 10 R. 419.

It is therefore ordered that the writ of prohibition heretofore issued be npde peremptory at the costs of respondent.