text:
    No. 801.
    Succession of Henry Pearce.
    Their own public and expressed consent, and the consent of their master, were alone sufficient to give validity to a marriage between slaves in Louisiana, and from the moment of their emancipation such a marriage has secured to them and their posterity all the rights and privileges bestowed by the State on marriages authorized and sanctioned by its laws.
    j^PPEAL from the Parish Court of Morehouse. Norwood, J.

      Newton & Hall for administrator and appellee.

      Todcl & Brigham for opponents and appellants.
   The opinion of the court was delivered by

DeBlanc, J.

Born in slavery, Henry Pearce remained a slave until the general emancipation which followed the war. In 1855, he and one Charlotte, who — as himself — was then a slave, were — with the consent of their masters and in presence of a large assemblage — married by a minister of the Gospel of their class, and lived as man and wife, and so acknowledged by all who knew them, until the death of Henry Pearce, in 1875.

They had nine children, eight of whom are under age. Those children were always recognized and treated by them as the issue of their marriage, and — by the death of their father, they and their mother have been loft in necessitous circumstances. They have no means, no property. These facts are admitted.

It is also admitted that Pearce and Charlotte were not married otherwise than as heroin stated : that neither of them could read or write, and they did not — by notarial act — confirm their marriage and acknowledge their children.

Considering their penniless condition, the administrator of Pearce’s succession has allowed them the sum of one thousand dollars, and classed them in his account as privileged creditors for that sum. That proposed allowance is opposed by Silbernagel & Co, on the grounds :

1. That — when they married — Pearce and Charlotte were slaves, and that their marriage neither could nor did produce any of the civil effects which result from such a contract.

2. That they did not — in accordance with the Statute of the 5th of November 1868 — ratify any private marriage which may have existed between them before their emancipation, and did not legitimate the children born of their cohabitation.

Two of the provisions of the act of 1868, referred to in the opposition, are in these words :

Sec. 1. That all private or religious marriages contracted in th’s State at any time previous to the passage of this Act, shall be deemed valid and binding and as having the same force and effect as if said marriages had been contracted with all the formalities and forms prescribed by the laws then existing; provided, that at any time within two years from the date of this Act the parties having contracted such private or religious marriages shall by authentic act before a duly commissioned Notary Public, if they reside in the State, or before a competent officer if they reside in another State, or a United States Embassador, Charge d’Affaires or Consul or Yice-Oonsul, if they reside in a foreign country, make a declaration of their marriage, the date on which it was contracted, the names, sex and ages of the children born of such marriages, acknowledging said children as their legitimate offspring, and in accepting the benefit of this Act, bind and obligate themselves to perform all the duties and to assume all the obligations imposed by existing laws in relation to civil marriages, and to abide by same,” etc.

Section 5. “ That any parties who at any time previous to the passage of this act have lived together as man and wife and who desire to contract a legal marriage shall be entitled to the benefit of the provisions of this law, and the issue of such cohabitation shall be thereby legitimatized upon the parties complying with the foregoing requirements,” etc.

It is urged that these legislative enactments amount to a declaration that such a marriage as that of Pearce and Charlotte was null and void, and that they prescribed the formalities which were to be complied with to impart to it a legal existence, a now contested validity.

Here, the law sanctions the marriage, when the parties were willing, able to and did contract pursuant to the forms and solemnities which it prescribes. To those who had so contracted — whites or blacks, freemen or slaves, and by whatever name their marriage may be called, whether public, private or religious — the law of 1868 was entirely useless. It could neither add to or detract from an already existing validity.

It is objected that the marriage of Pearce and Charlotte was celebrated by one who had not been authorized by a license to celebrate it. Our Code does not declare null a marriage not preceded by a license —6 La R. 470 — and, as to those who were our slaves, their own consent and that of their masters were alone sufficient to give to their marriage an undeniable validity, one which produced no effect as long as they were held in bondage, but which — from their emancipation — has secured for them and their posterity the rights and privileges bestowed by the State on a marriage authorized and sanctioned by its laws, on the birth of children legitimated by that marriage.

Nearly sixty years ago, this court said: “It is clear that slaves have no legal capacity to assent to any contract. With the consent of their masters, they may marry, and their moral power to agree to such a contract or connection as that of marriage, can not be doubted: but, whilst in a-state of slavery, it cannot produce any civil effect, ■'because slaves are deprived of all civil rights. Emancipation gives to the slave his civil rights, and a contract of marriage, legal and valid by •the consent of the master and moral assent of the slave, from the moment of freedom — although dormant during slavery — produces all •the effects which result from such a contract among free persons.” •

Girod vs. Lewis, 6. M. R. 560.

From the parties’ admissions, Charlotte was legally married to Pearce, 'lived with him and as his wife until his death, had nine children whom he recognized as his, by whom he was recognized as a father, and — under no precept of either law or justice — can she now be considered as a concubine and her children as bastards : she is the widow and they are the heirs of Henry Pearce. That — as such — they are entitled to the amount allowed them by the administrator and the lower court, there can be no •reasonable doubt.

From the judgment of the lower court Silbernagel & Co alone have appealed. Of the several grounds of opposition urged in their pleadings, only one is now insisted on, and that one we have decided.

It is, therefore, ordered, adjudged and decreed that the judgment • appealed from is affirmed with costs.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 779.
    The State vs. Wilson Jessie.
    In criminal eases an objection to the ruling of the lower court must be put into the form of a bill of exceptions, and the bill must be filed. Article 488 of the Code of Practice, and the amendment thereof, do not apply to exceptions reserved in criminal prosecutions. .
    Where the information charges that the accused wounded another, with intent to commit murder, the jury may find that he was guilty of inflicting a wound less than mayhem, with intent to kill. The verdict is responsive to the charge.
    A new trial will be refused unless it be shown that injustice has been done to the accused.
    The amendment of an information which charges an “ intent to commit murder,” to one'which charges an “intent to kill and murder” does not make any substantial change in the information.
    'Where the verdicts returned by a jury'are informal, the judge may properly so inform them, and remand them, with additional instructions, to bring in another verdict.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Duffel, J.

      Fred. B. JEarhart, District Attorney, for the State.

      J. B. Winchester for defendant,
   The opinion of the court was delivered by

DeBlanc, J.

In the information as at first filed by the district ■attorney, he charged that — on the 20th of November 1876 — defendant did feloniously, wilfully and of his malice aforethought, shoot and wound with intent to commit murclcr. He, afterwards, with leave of the Court, amended the information, and charged that defendant’s intent was to kill and murder.

The prisoner’s counsel objected to the amendment: his objection was overruled and he reserved a bill of exceptions which he did not file, under the impression — at least we so presume — that his reservation was sufficient and would stand in lieu of a bill. If we are not mistaken as to the impression under which he acted, the counsel was mistaken as to ■the purpose of the Statute of 1877, which amends the 488th article of the Code of Practice. That article, before and since the amendment, relates to exclusively the exceptions reserved on the trial of suits and not of criminal prosecutions. This is self-evident.

C. P. 488 — Acts of 1877, p. 176.

The prisoner was tried and three successive verdicts returned against him, the two first in these words : “ Guilty, with intent to kill - and the third and last one in these: “ Guilty of inflicting a wound less than mayhem, with intent to kill.”

Defendant applied for a new trial on the grounds:

1. That — after the trial had commenced — the information could not ■have been amended as to a matter of substance.

2. That, as amended, the information charged the commission of ■two distinct crimes in one count, and is bad for duplicity.

8. That the Judge erred in refusing to charge the Jury, as he was ■asked to do — that, unless it was proven beyond a doubt that the prison•er’s intention was to murder, he should be.acquitted — that malice is the •essence of the crime charged and must be established, and that proof •which — in case of the death of the wmunded party — would have justified ■a conviction for manslaughter, could not justify any conviction under 'the information.

4. The first verdict rendered by the Jury should have been recorded, and the Judge could not legally have instructed them, after said ■verdict, that — if they so found — they could declare the prisoner guilty •under sections 793, 794 and 972 of the Revised Statutes.

5. The third verdict — that which was recorded — is not responsive •to the information.

I

The amendment allowed by the Court was entirely useless: the •original information charged that the prisoner shot and wounded with Intent to commit murder, and — under that information — the prisoner could have been found guilty of the lesser offense, that of inflicting"a. wound less than mayhem, with intent to kill. 28th A. 434; Revised. Statutes.

“ A motion for a new trial is based upon the supposition that injustice has been done to the prisoner, and unless such is shown to have-been the case, the application is invariably denied.” The record which, we have under consideration does not disclose any error which could' have caused injury to the prisoner.

State vs Brown, 16 A. 384; Waterman’s Criminal Digest, p. 44, No. 4; Wharton’s Crim. Law, Sect. 384 ; Chitty’s Crim. Law 638; Bishop’s Crim. Law, Sects 885, 887 and 888.

II

There is no difference between the offence of shooting with intent to-commit murder, and that charged, in the amended information “ of wilfully, feloniously and with malice aforethought, shooting with intent to kill and murder. When preceding the qualification “ murder,” the qualification “ kill” is a mere surplusage. To murder, to kill and murder, to shoot with intent to murder or with intent to kill and murder constitute only two and not four distinct offences. It would be different, if, to a charge “ with intent to kill, the State Attorney^ were to attempt to add' “ and murder.” If allowed, such an amendment would amount to a new information, for an offense of a higher grade than that charged-in the first.

III

The Judge did not refuse to charge that malice is of the essence of the crime of murder and intent to murder, but charged — in substance — that, though not guilty of the greater, the prisoner might be guilty of a lesser offence, and that — if the jury so found — they were, not absolutely bound to acquit him, as contended by his counsel, but that they could return against him a verdict for any offence of the same class as that charged in the information, but of a lower grade than-that, for the presumed commission of which he was informed against.. This instruction was in strict accordance with the legislation and jurisprudence of our State.

Rev. Statutes, Sect 1053.

IY

The first and second verdicts were informal, and the court properly-informed the Jury of that fact. He, then, gave them additional instructions, without any objection on the prisoner’s part: they, thereafter, retired to deliberate and brought in a verdict of “guilty of inflicting a wound less than mayhem) with intent to kill.” In this there was-mo irregularity.

Y

The prisoner’s counsel contends that the last verdict is not responsive to the information, and — to obtain its reversal — he relies on the decision rendered, by this Court in the case' of the State against Pratt, in which it was held: “ that the charge of inflicting a wound less than •mayhem,” is not “necessarily included in a charge of shooting with a ‘dangerous weapon, with the intent to kill and murder.”

Entertaining, as we sincerely do, the most profound respect for the -acknowledged ability and learning of those who then composed the 'Supreme Court of the State, we have attentively read and considered the decision referred to, and we are constrained, though' not without hesitation, to differ in opinion with them. To inflict a wound less than mayhem, to do so with a shotgun and with intent to kill, is to do that which — if done with malice aforethought — -would partly constitute the crime of murder. To thus shoot, wound and attempt to destroy life, is to perpetrate an offence which- — it seems — belongs to but one class of crimes, that charged in the information. In both, the intent to kill must exist and be, in part, carried into execution: the only difference between those offences is that one is premeditated and the other not. They do not necessarily differ in the instrument used, and — in both — the assailant’s purpose is to kill: without that purpose and without the infliction of a wound, neither can be committed. To shoot and wound with intent to murder, is to perpetrate a crime higher — by only one degree — to the offence of shooting and inflicting a wound less than mayhem, with intent to kill; the latter is ever included in the former and as inseparable from út as the assault from the battery.

“Under an indictment for a felony, the accused may be convicted of a misdemeanor, when both offences belong to the same generic class, ®nd the information for the higher offence contains all the averments tnecessary to let in proof of the misdemeanor.”

Waterman’s U. S. Crim. Digest, p. 639, Nos. 34 and 31; 28 A. 434 ; <6 A. 286 ; 14 A. 830 ; 13 A. 243 ; 12 A. 625.

“ Generally speaking — says Wharton — where an accusation includes -.an offence of an inferior degree, the jury may discharge the defendant of the high crime and convict him of the less atrocious, and in such •a case it is sufficient if they find a verdict of guilty of the inferior offence and take no notice of the higher.”

Wharton’s Orim. Law, Sect. 384.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed.


author: Seencee, J.

text:
    No. 785.
    The State ex rel. A. Agusti vs. J. D. Houston, Sheriff.
    The jurisdiction of this court does not extend to cases of conviction under act No. 9 of the Legislature passed in 1874.
    An appeal will not lie to this court from the decree of an inferior court in a matter of habeas corpus.

    The interest which entitles a party to appeal must be a real, existing interest in. the particular cause, and not a conjectural one, contingent on the happening of' an uncertain future event.
    REPEAL from the Fourth District Court, parish of Orleans. Houstonp.

      Alex. Dalsheimer for plaintiff and appellee.

      C. H. Luzenberg for defendant and appellant.

      Thos. J. Semmes, amicus curiae.

   The opinion of the court was delivered by

Seencee, J.

This is a proceeding by writ of habeas corpus, sued out. by Agusti before the Fourth District Court of Orleans, against the-Criminal Sheriff of said parish.

The facts are as follows : Relator, Agusti, was arrested and tried by Recorder Smith for violation of act 9 of 1874, relative to the selling-of lottery tickets in New Orleans, and was sentenced to pay a fine of twenty-five dollars' or be imprisoned for five days.

Agusti applied to the judge of the Fourth District Court for writ-of habeas corpus, and was upon hearing thereof discharged from custody by said judge.

Thereupon Recorder Smith ordered the re-arrest and commitment-of Agusti, under the said former conviction. At the same time the-recorder applied to the Superior Criminal Court, reciting the facts, and alleging that J. D. Houston, Criminal Sheriff, would again release said Agusti, unless restrained, etc. Whereupon he prayed for a mandamus, on said sheriff, to compel him to retain said Agusti in custody under said sentence. After hearing, this mandamus was made peremptory by said Superior Criminal Court, and the said sheriff was ordered to execute the sentence of the recorder upon Agusti, “ any proceeding in any other court in the premises notwithstanding.”

Agusti being thus recommitted, again applied to the Fourth District Court for writ of habeas corpus, which was granted. The sheriff declined to obey it, on the ground that he could not disobey the order of the Superior Criminal Court above referred to. The sheriff was thereupon committed for contempt by the Fourth District Court — but finally obeyed the writ and produced the body of Agusti — showing as authority for the detention, first, the commitment by Recorder Smith,, and, second, the mandate of the Superior Criminal Court. Upon heariag the parties the Fourth District Court again sustained the writ of habeas corpus and discharged the prisoner. From that decree the-present appeal was taken by Houston, Criminal Sheriff; who alleges that he is aggrieved thereby, and that he has an interest in the result exceeding §500 — since by reason of said decree he has been forced to disobey the mandate of the Superior Criminal Court, whose executive officer he is, and thereby is liable to a fine of §500 and suspension from his office, the emoluments of which are far beyond §500, etc.

At the threshold we are met by the appellee’s objections. First, that this court is without jurisdiction, and, second, that Houston has no such interest as entitles him to an appeal.

We think both objections well taken.

. In the case of “ The State ex rel. Geale vs. Recorder,” reported in 30 An. 450, we held that our jurisdiction did not extend to cases of convictions under said act No. 9 of 1874. It is unnecessary to again state-the grounds of that decision.

Besides, it is well settled that an appeal will not lie to this court from the decree of an inferior court in a matter of habeas corpus. In ex-parte Mitchell, 1 An. 413, this court said : A judgment rendered on-an application for a habeas corpus can in no sense be considered a final judgment. It does not decide all the matters in controversy between* the State and the accused, but is in the nature of an interlocutory order, the tendency of which is not to work an irreparable injury to the prisoner. If the language of this article (63) had left the intention of its framers in doubt, that doubt would be removed by reference to the sixty-seventh article, which gives to-this court and to each of its judges the power to issue writs of habeas corpus at the instance of all persons in actual custody under process, in all cases in which they may have appellate jurisdiction.” “This grant of original povoer precludes the-idea of an appellate jurisdiction in relation to the same subject.” “Appeal dismissed.”

This case was cited and reviewed with approval in “Cook et al. vs. Keeper of Parish Prison.” 15 An. 347.

It is therefore manifest that we have no jurisdiction of the original habeas corpus case of “ State ex rel. Agusti vs. Houston, Sheriff.” But it is contended that as Houston may be fined and suspended from his. office, and thereby injured to amount of more than §500, an appeal will lie in his behalf. The answer to this proposition is that it will be time-enough for him to appeal when the decree inflicting these severe penalties on him has been rendered. It would be difficult to conceive a case where an appeal would not lie, if a party may substitute for the amount actually in dispute conjectural and indirect losses which may upon future contingencies result to him. The interest which entitles a party-to appeal must be a real and personal interest in the particular cause, and not a merely conjectural one in some possible consequence of that cause. Sheriff Houston has no such interest in this suit. We are at a loss to conceive how it can be said that the matter or thing in dispute in this case is Sheriff Houston’s office. His office is no more involved here than it is in every other case where he is called upon to perform official duties. The ease cited of “ Simonds vs. Judge of Sixth District Court,” 24 An. 424, is not in point. That was a proceeding where the judgment creditor of an alleged partner had seized his debtor’s interest in a partnership and took a rule against the other partners to show cause why a receiver should not be appointed and the whole property of the partnership taken from them and turned over to the receiver. From a judgment so decreeing it was held that an appeal would lie, although the judgment of the creditor was only $175, but the value of the property sought to be taken was over $1000.

The appeal in this cause is therefore dismissed at cost of appellant.


author: Seenoeb, J.

text:
    No. 839.
    The State vs. Thomas Ryan.
    The continuance óf a criminal ease can not be asked on the ground of the absence of material witnesses, when it is not shown that due diligence was used to secure the attendance of the witnesses.
    The widow is a competent witness to prove the dying declarations of her former husband,
    Threats of the deceased against the one oh trial for killing him, not shown to have been made in the presence of the accused, or communicated to him, are not admissible in evidence.
    It is too late, in a motion for a new trial, to urge objections to the charge of the judge which were not reserved at the time the charge was given.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Duffel, J.

      Fred. B. Earhart, District Attorney, for the State.

      James D. Augustin, John H. llsley, Jr., and John A. Cheevers for defendant.
   The opinion of the court was delivered by

Seenoeb, J.

Defendant was indicted, tried, and convicted, without capital punishment, on a charge of murder. He appeals ; but his counsel have not favored us with an oral or written argument.

We fin 1 in the record the following bills of exception :

1st. To the refusal of the court to grant him a continuance on his affidavit of the absence of two material witnesses. The judge a quo refused the continuance on the ground that proper diligence had not been shown to procure said witnesses, who were stated in the affidavit to be residents of the parish of Ascension. The affidavit alleges, in general terms, that due diligence had been used, but does not set forth in what it consisted. It does not show even that subpoenas had been issued, but only avers that on account of their absence “subpoenas can not be served upon them.” Non constat, that had subpoenas been issued in time, they might have been served before they absented themselves. The district judge had better opportunity of knowing the diligence used than we, and much is trusted to his discretion in these matters. On the face of defendant’s showing, and taking all his allegations for true, we can not say the judge improperly refused the continuance.

2d. The next bill is to the competency of the widow of the deceased to prove his dying declarations. We see no possible reasons for excluding her; because, even admitting that the wife is not a competent witness for the State, in a prosecution against one who has committed a criminal •offense upon her husband (a proposition we are not prepared to assent to), still, after the husband’s death, she is no longer his wife, and the rules of evidence, as between husbands and wives, are no longer applicable.

3d. The next bill is to the refusal of the judge to allow defendant’s •witness to testify to threats by the deceased against the accused, where It was shown those threats were not made in the presence of accused or otherwise communicated to him. The judge did not err. See 6 A. 554, .14 A. 570, 827, 5 A. 489', 22 A. 454, 10 A. 458. Dupré vs. State, 33 Ala. 380, also 22 Ala. 39.

4th. The judge delivered his charge in writing, to which no exception was taken. But the accused submitted certain written charges, ■and requested the court to give them to the jury. The judge declined to do so, on the grounds that so much of said special charges as were legal had been embraced in and were fully covered by the written charge he had already given. We have carefully compared the judge’s charge with that requested, and we think this is true.

5th. Defendant filed a motion for new trial, based on the following grounds; first, that the verdict was contrary to the law and evi-. dence. It is not for us to review the evidence in criminal matters, were -the evidence in the record, as we have no jurisdiction of the facts, but •only of law. Second, that the court erred in refusing the continuance referred to above, also in admitting the testimony of the widow, and in •excluding evidence of threats, as detailed above by us, and also erred in certain charges given the jury and in refusing the charges asked. These matters have all, with one exception, been reviewed in noticing the various bills of exception, wherein all of them were properly presentable. They can not be presented by motion for new trial, but must be by bill of exception. This is especially true of objections to the judge’s charge. It is too late, in a motion for new trial, to urge objections to the charge which were not reserved at the time the charge was-given. See State vs. Gunter, 30 A. 536. The third ground for new trial is newly discovered evidence. The showing is not sufficient, either as to-its materiality, competency, or discovery after trial, etc. The judge a quo properly refused the new trial.

The judgment and sentence appealed from is affirmed.


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

text:
    No. 783.
    Dodd, Brown & Co. vs. John Bishop & Co. et al.
    A promissory note executed in the name oí a certain commercial firm, in liquidation, by an agent of one of the former partners, alter the dissolution of the firm,, is not binding on the former membors who have notgiven any specific authority for the execution of the note.
    Where a creditor of a former commercial firm sues its individual members for goods sold to the firm, and declares in his petition on the itemized account of the goods, and also on a promissory note of the firm, given in liquidation of the account by one not authorized to sign for the firm, he will be entitled to recover for the goods, on the unopposed proof of their salo and delivery.
    One who acts in such a manner as to induce others to believe that he is amember of a certain partnership, makes himself liable to them as a partner.
    One who executes a promissory note in the name of another without authority to-do so, becomes personally liable for the amount of the note.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. Parsons, J.

      W. W. Farmer and Cobb & Gunbij for plaintiffs and appellees.

      Wells & Potts for John Bishop.

      B. W. & B. Biohardson for Mrs. L. S. Berry.

      J. W. Wells, Jr., for J. M. Berry.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs allege that John Bishop, Mrs. L. S. Berry, and' her husband, J. M. Berry, are solidarily indebted to them in sums of money amounting to $1186 95, with ten per cent interest thereon, as-stated in the petition. That the said John Bishop and Mrs. Berry were commercial partners, doing business under the name of John Bishop & Co., and that J. M. Berry, the husband, having permitted his wife to trade as a public merchant, was bound solidarily with -her. Plaintiffs then set forth in detail how said indebtedness arose, and aver that it was-for the price of goods, wares, and merchandise, by them sold and furnished to Bishop & Co. That, from time to time, Bishop & Co. executed) notes and drafts in acknowledgment oí these debts, and in renewal and extension thereof. That on June 15,1874, Bishop & Oo. executed three notes (the amounts and maturities of which are set forth, and aggregate $1186 95) in settlement and extension of their indebtedness, which notes are signed “ John Bishop & Oo., in liquidation.” They aver the liability of said Bishop and Mrs. Berry on these notes thus given in the course of the liquidation of the partnership. They pray for judgment in solid»' against all said parties, and for general relief.

Subsequently, plaintiffs filed an amended petition alleging that Mrs. Berry was judicially separate in property from her husband, and that the debt inured to her separate advantage. That in the management of said partnership J. M. Berry acted as agent of his wife, but held himself out as a partner in said firm, and so declared in the notes sued upon, which were signed, “John Bishop & Oo., in liquidation,” by him, and which recited in their body that he was a member of said firm. They pray as before.

The defendants answered separately. Bishop generally denies plaintiffs’ allegations, admits the partnership, and avers that the firm of Bishop & Oo. was dissolved on day of February, 1874, months before the notes were executed, and denies J. M. Berry’s authority, as agent or otherwise, to sign notes with the firm name after its dissolution. Mrs. Berry makes a similar answer, and J. M. Berry alleges that he signed and acted as agent, and not for himself, and denies that he held himself out as a partner, and avers that his name as a partner was inserted by error in the body of said obligations by plaintiffs’ agent.

There was judgment for plaintiffs against all the defendants in solido, and the latter have separately appealed.

So far as Bishop and Mrs. Berry are concerned, there is not the least doubt of the correctness of this judgment. Plaintiffs very properly allege upon the original debt created by the sale and delivery of the goods, as well as upon the notes executed by J. M. Berry, in the name of “John Bishop & Go., in liquidation,” in acknowledgment thereof. They have fully and indisputably established their claim by evidence outside of and beyond that of the notes, producing full and complete proof of all the items of account, with the letters of Bishop & Oo., and bills of lading, receipts, etc. In fact, Bishop’s counsel, in his pointed and able argument before us, makes this admission: that the “ testimony of the plaintiffs does shoio that Bishov & Go. owed an amount to the plaintiffs, equal to the notes, a fact which Bishop has never denied.” Now, when it is remembered that all this testimony was admitted without any objection whatever, we are at a loss to conceive how, under the pleadings, we can be expected to do otherwise than affirm the judgment. Had the plaintiffs declared specifically and exclusively on the notes (which they did ■not), we would, under the 'long-settled jurisprudence of this State, be bound to give effect to this proof if admitted without objection.

We are free to say that if the only proof of plaintiffs’ claim consisted ■of the notes signed “John Bishop & Co., in liquidation,” executed and ¡signed by J. M. Berry, whether as agent of his wife or partner, we should hold it insufficient to bind Bishop or Mrs. Berry. These notes carry •on their face evidence of the fact of the previous dissolution of the firm, and in such case it is well settled that after dissolution one of the partners can not without special authority (and much less an agent of one •of them) “ renew a partnership debt, impose new obligations on it, or vary the form or character of those already existing.” See Kent, vol. 3, sec. 43,.p. 69, seventh edition; Story on Partnership, sec. 322; 5 Bob. 172 ; 6 Bob. 70 ; 7 A. 356 ; 13 A. 479 ; 29 A. 586. But, as we have seen, plaintiffs have fully sustained their demands by evidence dehors these ¡notes, and the proof shows no novation was effected or intended. This •disposes of the case as to Bishop and Mrs. Berry. It only remains 4o examine the case as to J. M. Berry.

It seems to be conceded that Berry was not in reality a partner in the firm of John Bishop & Co. The articles Of partnership and its dissolution show’ that it was Bishop and Mrs. Berry who composed that firm ; that Berry acted therein as representative of his wife, and as her alter ego. But plaintiffs without objection amended and charged that whether Berry was partner or not he, by his declarations, conduct, and .acts, had held himself out as such, and induced them to so believe, and was, as to them, liable as partner.

Berry swears positively and emphatically that he never did represent himself as a partner, and that the insertion in the body of said notes ■of his name as a partner was done by plaintiffs’ agent, and said notes were signed by him in error, and without noticing the recital of his name rfcherein. This is, perhaps, true; yet the fact of plaintiffs so inserting ¡his name shows, also, that they believed him to be a partner (and Dodd, ¡plaintiff, swears that his recollection is that Berry so stated). Did his ¡acts and conduct (aside from his declarations) justify such belief ? It is ¡shown that Berry was the active manager of the partnership; that it was he who visited St. Louis and bought the goods from the plaintiffs ; ¡that he repeatedly signed notes with the name “John Bishop & Co.,” without adding any words indicative of his doing so as agent. He admits ¡that he never told the plaintiffs that he was not a partner. All his letters ¡and correspondence with plaintiffs were signed “John Bishop & Co.,” ¡and nowhere in his transactions with plaintiffs is there to be found, by word, deed, or writing, any thing from Berry indicating that his acts were those of an agent.

Besides, as we have seen, he had no authority after the dissolution of the firm to sign the notes sued upon; and although he did not. thereby bind others, he bound himself: especially as he did not profess to act as agent, and did not indicate that he was not acting as a principal. ' This conduct on his part induced plaintiffs to postpone demanding-their claims from John Bishop & Co. for several months, and induced delays that may have been prejudicial to their interests. The district, judge held Berry liable, and we are not prepared to say that he erred.

The plaintiffs remitted in the court below two per cent of the interest allowed by the judgment below; and have prayed in this court for damages for frivolous appeal. We do not think this a proper case to. inflict them.

The judgment appealed from is affirmed at the costs of appellants.

Oisr Application rob Rehearing.

Manning, C. J.

One of the grounds for the rehearing prayed by the defendants is the allowance of eight per cent interest. The rehearing is granted.

On Rehearing.

The interest allowed by the lower court should be reduced to five per centum per annum. It is therefore ordered and decreed that the judgment of the lower court be amended by reducing the rate of interest allowed to five per centum, and as thus amended, that it be affirmed, and that the appellees pay the costs of appeal.


author: Spencer, J.

text:
    No. 869.
    James A. Cawthorn et al. vs. J. D. Cawthorn, Administrator.
    The parish courts have exclusive original jurisdiction of suits brought against the administrator of a former tutor, by the former wards of the latter, for a settlement of the tutorship.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boorman, J.

      Nutt & Leonard and W. H. Wise for plaintiffs and appellees.

      N. C. Blanchard for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs, representing themselves as heirs of Ashley T. Cawthorn, brought this suit to recover of J. D. Cawthorn, administrator of the succession of W. M. D. Cawthorn, the sum of $8337 37 in gold, with legal interest from January 1st, 1867, for this, viz.: “The value of the property which belonged to the succession of A. T. Cawthorn, deceased, sold and converted to his own use by said W. M. D. Cawthorn, deceased, for notes collected by him due said succession of A. T. Caw-•thorn, and for rents of lands belonging to said succession, which came into possession of said W. M. D, CaWthorn as tutor for your petitioners, and as administrator of the succession of A. T. Oawthorn, deceased, and for which he has never accounted,” as per detailed statement annexed to the petition. In this statement figures amount of inventory of 1865, which is put down at §2730.

The answer is a general denial of indebtedness, with a special averment that W. M. D. Oawthorn had paid out for the estate more money than he has received, as shown by the inventory. The items of credit ■are given in detail, vouchers filed, and defendant reconvenes and prays for judgment.

There was judgment in favor of plaintiffs, and the defendant appeals. A. S. B. Prior, alleging that he is the surety of W. M. D. Caw-thorn as tutor of plaintiffs, and injured by the judgment, also appeals.

The appellant Prior urges that this whole proceeding is void for want of jurisdiction in the district court; and in this we think he is right.

This is, and can be, nothing else than an action by the plaintiffs against the administrator of their deceased tutor for a liquidation and settlement of the affairs of the tutorship. The district court has no jurisdiction of such suit. Constitution, arts. 87, 88. “Sarah L. Lacy vs. Succession of O’Neil,” 25 A. 608. “Gibbs vs. Lum,” 29 A. 526.

It is- therefore ordered and decreed that the judgment appealed from be -annulled; and plaintiffs’ suit is dismissed as in case of nonsuit, appellees paying costs of both courts.


text:
    No. 774
    The State ex rel. Daniel Wilson vs. E. T. Parker.

      ■ When an act o£ the Legislature, creating an office, takes effect from its passage, the term of the office will commence to run from the passage of the act, in the absence of any provision in the act to the contrary.
    One who is appointed to the office of Public Administrator at any time during an unoxpired term of that office, is entitled to hold it, in virtue of that appointment, only to the end of that unexpired term.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Thomas J. Semmes, Robert Mott, and F. P. Stubbs for relator and appellant.

      Ra7idell Hunt, W. W. KiTig, John T. Ludelmg, and Boatner & Riehwdso7i for defendant and appellee.
   The opinion of the court was delivered by

Spencer, J.

Relator claims from defendant the possession of the •office of Public Administrator of the parish of Orleans, by virtue of a -commission thereto, issued by Governor Nieholls, on the 3d May, 1878.

Parker claims to hold, under a commission from Governor Kellogg, of date June 10th, 1875, and contends that his tenure does not terminate •until 10th June, 1879.

The act creating the office of Public Administrator was approved March 5th, 1870, and provides that the Governor shall appoint a suitable person as such, etc.

Section 6. “ That the Public Administrator shall hold his office for the term of four years, and until his successor be appointed and duly qualified.”

Section 10 provides, “ That this act shall take effect from and after its passage.”

The first appointment was of one Eoulke, on the 2d April, 1870. Eoulke resigned, and E. T. Parker was appointed, 14th June, 1872, “vice Eoulke, resigned.” On 10th June, 1875, Parker was again appointed, as stated above, and claims that he is entitled to hold for four years from that date, or until 10th June, 1879.

The decision of this cause depends upon the question, When did the term of four years, for which Parker was last commissioned, begin? The defendant contends that it began on the day of his re-appointment, to wit : 10th June, 1875.

Relator contends that it began either on the 5th March, 1874, (being four years after the passage of the act), or on the 2d April, 1874, (four years after the first appointment under the act), and had therefore expired on the 3d May, 1878, the date of relator’s commission.

The object of the statute was most assuredly ihe creation of a public office. It can not be denied that on and after the 5th March, 1870, there existed in the parish of Orleans, as well as in the other parishes of the 'State, the “ office of Public Administrator.” It is equally certain that the Legislature intended to and did fix a term for that office, and that that term was four years. The “ office” commenced its existence on the 5th March, 1870, and in the absence of provision to the contrary, as an incident thereof, “ the term” commenced at the same time that the office did. There is no more reason for saying that the commencement of the term was suspended until there was an appointee, than there is for saying that the existence, the ■commencement of the office itself, was suspended. Neither the existence of the office, nor the running of the term, depended upon the appointment of an occupant, so far as we can gather from the terms of the act. We are of opinion that, in the absence of provision to the contrary, the term begins with the existence of the office — and not with the appointment of an incumbent — otherwise infinite confusion would be introduced in the tenure of public offices. As said by this Court, in “Bry vs. Woodruff,” 13 La. 563, “in offices for terms of years, it is important they should have a fixed date of commencement and termination” — and we think, that where there is nothing in the act creating the office and its term directing otherwise, we should hold in the interest of public order that the term begins with the going into effect of the act creating the office.

But the defendant’s counsel urge with much earnestness that the act does provide otherwise, because it declares “ that'the Public Administrator shall hold his office for the term of four years, and until his successor is qualified, etc.” We regard this clause as simply fixing the term of the office; and upon examination it will be found that those are the almost invariable words used in the Constitution and Laws of this State for fixing the terms of office. Thus it is said of the Governor, “He shall hold his office for the term of four years.” The same is said of the Secretary of State, the Auditor, the Treasurer, the Attorney General, the Judges, the Sheriffs, and Clerks. Does any body suppose that these provisions entitle one of these officers, who may be appointed in the middle of a term, to hold for a full term ? When the law says that “the Public Administrator shall hold his office for the term of four years” it means precisely what it does when it uses the same words with reference to other officers. It means to fix the “term” of the office, i. e., the longest time it may be occupied without re-appointment; but does by no means imply that every incumbent shall hold it for four years, regardless of the time at which that term began, and of the time he was appointed. The effect of defendant’s argument is to make the term of this office depend upon the mere agreement and consent of the executive and incumbent, instead of making it dependent upon the law. Its duration is at the caprice of these functionaries. Thus, they say that Foulke was appointed 2d April, 1870, and his-term expired with his resignation in June, 1872. That Parker’s first term commenced on the 14th June, 1872, the date of his appointment, and expired 14th June, 1875, the date of his present commission, and the date at which he and the Executive tacitly agreed that the term should end. This is to completely confound the term of that office with Parker’s tenure of it. The latter is within the control of the parties, and may be longer or shorter, according to circumstances ; but the former is not. The term remains invariable, always the same, and is not subject, in its duration, to the wishes or agreements of any persons whomsoever; while the .tenure of an incumbent may always be terminated by his resignation and its acceptance. During one term there may be several tenures, but there can not be several terms in one tenure.

There is no sort of analogy between this case and that of “Kelly vs. Gilly,” 5 A. 534. To make the cases parallel, the act creating this office should authorize the Governor “ to appoint as many public administrators as he deems necessary;” just as the law provides relative to notaries. Then we could say of public administrators what the Court does in that case of notaries : “ The law does not require the Governor to fill vacancies as to the office of notary public, but to appoint the notaries that may be necessary. * * * The notary appointed “does not fill the unexpired term of his predecessor, but is appointed a notary under the law, and is entitled to hold the office for four years from the date of his appointment.” And why ? Because each notary, in the opinion of that' Court, is appointed to a different, independent office, never before held or occupied by any predecessor — that notaries had no predecessors in the proper and legal sense of that term ; since it is not necessary that one should go out of office before another comes in — the Governor having authority to appoint ad libitum. Their possession of the record® of notaries who may have died or resigned, or whose terms may have expired, was not by virtue of successorship, but by virtue (as said in “Kelly vs. Gilly”) of the direction of the Governor, whose duty as chief executive is “to take care of and preserve the public property and records, where the laws have not otherwise provided.” The whole decision in Kelly vs. Gilly rests upon this fundamental proposition, that there are as many offices as there are notaries, and that there is no succession among them. Can such d proposition be predicated of public administrators ? It is absurd to contend that it can, for there can be but one public administrator at one time. There is but one office, and each incumbent is successor of the one who preceded him.

We hold, therefore, that the first term of the office of public administrator expired on the 5th March, 1874, and that the second term thereof expired on the 5th March, 1878. That Parker’s first appointment on 14th June, 1872, was for the vacancy created by Foulke’s resignation, and was not made to fill what is sometimes called “ an original vacancy,” i. e., one caused by expiration of the term. That his second appointment on June 10th, 1875, was for the residue of the unexpired term commencing 5th March, 1874, and ending 5th March, 1878. That his tenure from 5th March, 1874, to 10th June, 1875, was by virtue of that provision, common to this statute and the general law, authorizing him to holdover until his successor was appointed. That this time, during which he held over, constituted legally no part of the first term of said office, and that the fact that no appointment was made on 5th March, 1874, did not continue the first term of the office beyond that day. These views render it unnecessary to discuss the authorities cited from 9 Wheaton, 734, and the opinions of Attorney Generals Taney, Berrien, and Mason, relative to the effect of the acceptance, by an incumbent, of a new commission before the expiration of his old one; since we hold that Parker’® first commission, had expired before the second one was issued to him. The judgment appealed from is erroneous, and must be reversed.

It is therefore ordered, adjudged, and decreed that the judgment •of the court a qua be annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that the relator, Daniel Wilson, be and he is hereby decreed to be the lawful Public Administrator of the parish of Orleans, and as such entitled to hold and exercise the same; and it is further decreed that E. T. Parker unlawfully holds said office, and he (said Parker) is hereby ordered to deliver and turn over to said Wilson said office, together with its books, papers, and archives, and to pay costs of this suit in both courts.


author: Egan, J.

text:
    No. 771.
    W. P. Weight et al. vs. Liverpool, London & Globe Insurance Company.
    A foreign corporation, represented by a general agent, and local Board of Directors residing in the city of New Orleans, can not be brought into court by a citation served on a local agent domiciled in one of the country towns of Louisiana, who is only authorized to receive applications for insurance, and give binding receipts for the same, and who has not exercised, or represented that he possessed, any other authority.
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Parsons, J.

      Cobb & Gunby for plaintiffs and appellees.

      W. W. Farmer and Frank P. Stubbs for defendants and appellants.
   The opinion of the court was delivered by

Egan, J.

The plaintiffs sue upon a contract of insurance effected through one Behen, acting as agent for that purpose at the town of Monroe, in Ouachita parish. The allegation and proof are that the defendant is a foreign corporation having no domicile in the State, but having a general agency and board of directors in the city of New ■Orleans for the conduct of business of the company in Louisiana. This suit was instituted in the parish of Ouachita by means of citation addressed to and served upon J. E. Behen as agent of the defendant company. He excepted that he had no authority to stand in judgment or represent the absent defendant; and further, that said defendant had a New-Orleans department under the management of Andrew Foster Elliott of said city as general agent and a board of directors, also residing in said city, of which one Urquhart was chairman, and that suit should have been brought there. He also denied his authority to accept or pay losses, and averred that his authority was confined to soliciting insurance, receiving and forwarding applications, collecting and receipting for premiums, and issuing what are termed binding receipts to hold good for a limited time, subject to the approval of the New-'Orleans department or agency, and to the terms and conditions of the policies of the company, wherefore the court was without jurisdiction. It was admitted on the trial below that Behen had a printed sign stuck up in front of his place of business as agent for the defendant and other insurance companies. It is however shown that the only authority or power conferred upon him was derived from a letter or commission dated New Orleans twenty-fifth of May, 1876, addressed to him at Monroe, La., as follows :

“ Dear Sir — By this present you are duly authorized to receive applications for insurance for this company and to issue the usual binding ■receipt for same until approval by this office.

“ Your obedient servant,

“(Signed) Andrew Foster Elliott,

Recording Secretary.”

Elliott testified in response to interrogatories of plaintiffs that the foregoing was Behen’s commission as agent of the company; that no additional commission had been since issued, and that Behen had no other power than as therein set forth; and no authority to appear in court in any judicial proceedings; that all proofs of loss and applications for the payment of losses in this department are made to the resident secretary and by him submitted to the board, and when approved are paid by the secretary in New Orleans; that the company has a New-Orleans department and general agent for Louisiana, to wit, himself; that he resides in New Orleans ; and is also resident secretary of the company, which is a foreign one, domiciled in England, and from which all the rights and powers of the Louisiana agency are derived, and that the American branch of said company has separate capital under the control of trustees for American policy holders to the extent of over three millions of dollars. He further swears that Behen is furnished with printed forms of application and -receipt, and has no authority to change or erase from them in any way.

It does not appear that Behen ever acted or professed either to the plaintiffs or any one else to have authority in excess of the powers conferred by the before-recited commission, and we do not consider it material for the present inquiry whether he was agent of the company or simply of the New-Orleans department; his powers were the same in •either case. The receipt sued on simply certifies that the insured had effected insurance against loss or damage by fire subject to the conditions of the company’s policies on the property described therein, and that the certificate is binding for thirty days, unless a policy is sooner delivered or notice is given that the risk is declined. And so- far from indicating that Behen, who signed it, had power to issue policies, as is-usual with general agents, or that he had the powers usually incident to such agencies, the fact of the issuance of the binding receipt (as it is termed) in such form instead of a policy, indicated very clearly that he had no such general powers, but only the limited ones stated in the letter of commission, and that his action was subject to the approval of the New-Orleans department or some other authority not present from whom the policy should emanate, and that the insured must have been and was affected with notice of those facts at the time the receipt was issued. We think the evidence sustains the exception that Behen had no authority to represent the defendant company in any suit or judicial proceeding, either when this suit was brought or at any other-time, and that the district court of Ouachita was without jurisdiction of the defendant company, which if suable otherwise than by attachment, or where it had property by the appointment of an attorney ad' hoc, would seem from the present record to have been so suable only through its agency in the city of New Orleans.

The case of Michael vs. Mutual Insurance Company of Nashville, 10 An. 737, relied upon by the judge a quo and plaintiffs’ counsel, has no application to the facts of the present case. There the exception admitted that the person upon whom citation was served had been agent of the absent company, but averred that he was so no longer. It did not appear that the company had any other agents in Louisiana than Johnson, who had issued the policy, and th'e court held that a foreign insurance company doing business through an agent in New Orleans, and taking risks in Louisiana, can not be permitted to frustrate a claim in a Louisiana court upon a contract made with it by revolting the power of the agent on the eve of the institution of suit for a loss of Which it has been notified, a doctrine which is perfectly correct, as was the decision under the facts of that case. Here, however,' there is no question of the revocation of a power once existing, but a denial of power at any time in-Behen, who alone was cited to represent or stand in judgment for the absent defendant company. The case of Quinn vs. Manhattan Life Insurance Company of New York, 28 An. 135, also cited by the plaintiffs’ counsel, is equally inapplicable. There was no question of jurisdiction ór of authority to defend suit or stand in judgment in the case. On the contrary, although the defendant company had withdrawn its Louisiana agency, and so advertised, and also notified the plaintiff more than a year before the institution of suit, the trial was purely on the merits, and the defendant company appeared by counsel and obtained judgment rejecting the plaintiff’s demand; and in that case the court said there was no law requiring foreign insurance companies taking policies within this State to keep an agency within its borders. We-think the law is correctly stated by Wood on Eire Insurance in the passage quoted in the brief of plaintiffs’ counsel," that the same rules apply to insurance companies as apply in case of individuals, and a person who is clothed with power to act for them at all is treated as clothed with authority to bind them as to all matters ivithin the scope of his real or .apparent authority, and that third persons are not bound to make inquiry beyond their apparent powers.” Sec. 383, p. 624. This, however, must be taken in connection with and subordination to the positive provisions of our own law, which require that the power to defend a suit shall be express and special. C. 0. 2997-98. Indeed, the principle referred to relates rather to the power to bind the corporation by the acts or contracts of the agent than to the special matter of representing it in judicial proceedings. And in' the present case no act or fact shown can be interpreted into the representation, appearance, or exercise of any other or greater powers in Behen than those conferred by the written commission already quoted, or than as shown by the evidence ■of Elliott and other witnesses.

In Fuselier, Administrator, vs. Robin, 4 An., the doctrine of the Louisiana law in accordance with our Code was announced to be that the power to represent a principal in the defense of actions is not one of administration. Such a power can result only from the express terms of an instrument, or from an implication so clear as to be irresistible. And the absent defendant with foreign domicile had one agent in Pointe 'Coupee who had authority to institute and prosecute suits, and another in New Orleans with power to defend also, and the court held that he ■could only be sued at the domicile of the New-Orleans agent. This case is referred to and the doctrine re-affirmed in Dickson vs. Morgan, 6 An. 562. In De Lizardi et als. vs. Pouverin et als., 4 R., the court said that where the power was a limited one (as in the present case) it can not be extended beyond what is expressed therein. In Rowland vs. Pascal’s Executors, 10 La., 598, it was held that when there is nothing to show the character of the mandate with which an attorney is clothed it loill not be presumed that he had authority to receive service of citation. In Sloan vs. Menard, 5 An. 218, a general authority and public notice to all persons that the agent was authorized to attend to the business of the principal in his absence was held not to authorize the agent to briDg the principal into court as a defendant, and judgments so obtained against him were annulled. In Dawson vs. Landreaux, 29 An. 363, it was held that ■even the admission of an alleged agent that he was authorized to represent a third person in a suit does not prove the agency, and that the ■•authority to represent an absent defendant in a suit must be shown ex-, ipressly or from implication so clear as to be irresistible.

It is, however, needless to multiply authority on 'a point so well s ettied in Louisiana. We think it probable from the evidence that the absent corporation might have been suable in New Orleans; it certainly was not in Ouachita, under the evidence in this record, otherwise than by an attachment, or, at all events, by the appointment of a curator or attorney acl hoc in case property was found in the parish, which fact does not appear in the present case. Fortunately, henceforward all difficulty-on this subject will be removed by the act of 1877 requiring foreign corporations doing business in this State to establish and make public a-domicile and agency therein for the purposes of suit.

It is therefore ordered, adjudged,, and decreed that the judgment-of the court below be and it is avoided and reversed, and it is now ordered that the exception to the capacity of J. E. Behen to defend this suit and stand in judgment, and to the jurisdiction of the district court of Ouachita be maintained, and that plaintiffs’ suit be dismissed at their-cost in both courts.


author: Manning, C. J.

text:
    No. 787.
    M. L. Kelly vs. G. M. Sandidge et al.
    Tlicbypotheeatory action can not be maintained unless the evidence shows that amicable demand on the debtor for the payment of the hypothecary debt was made in a formal manner, thirty days previous to bringing the suit.
    The creditor who brings the hypothecary action must declare on oath that the debt is really due him, and that he has demanded payment of his debtor thirty days previous to bringing the suit.
    Where a settlement is made after the termination of a tutorship, by which the former ward accepts the former tutor’s individual obligation, payable at a distant day, in lieu of the security of his bond, and the legal mortgage resulting from its record, the former ward loses all recourse on the property of the tutor which has passed into the bona fide ownership of a third person.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Parsons, J.

      Bussy & Morgan for plaintiff and appellee.

      Newton & Hally for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

Mark Gouder was appointed tutor to the plaintiff' in 1859, and gave bond for six thousand dollars, which was recorded. At that time he owned a tract of land in Morehouse of two hundred and twelve acres, which through several mesne conveyances has become the-property of the defendants. This suit is to enforce her mortgage upon it..

The tutorship was terminated by the marriage of the plaintiff in 1866. She and 'her husband took a rule in 1869 upon Gouder to file an account of the tutorship. He filed a partial account, and asked for further time to complete it. In January 1871 they had a settlement. The-indebtedness of the former tutor was fixed in round numbers at two thousand dollars, and they agreed to separate it into six equal instalments, the first of which he paid cash, and for the others, gave his five notes maturing from one to five years after the settlement. This suit was instituted in 1875, and service was made in September and October of that year on the two defendants. Gouder has not been sued at any time on these notes.

The action is hypothecary, and is based upon the mortgage resulting from recording the tutor’s bond in 1859, and from recording a statement of the tutor’s indebtedness prior to 1870, under the Constitution of 1868 and the act of the general Assembly thereunder.

The defendants except on several grounds, of which only these need be noticed, 1. That the thirty days demand has not been made of the debtor prior to the institution of this action; 2, that affidavit of the existence of the debt was not made by the plaintiff; 3, that the alleged claim of the plaintiff has not been judicially ascertained, and determined contradictorily with her debtor. In their answer, they plead in defence, that the plaintiff has made a voluntary and extra-judicial settlement with her tutor, which releases his bond, and the mortgage created by the tutorship.

It is a condition precedent to the institution of the hypothecary action, that amicable demand shall have been made of the debtor for the payment of the hypothecary debt thirty days previous to bringing the suit. Code of Practice, art. 69. The demand, contemplated and provided for by this article has not been made. The only demand of' which there is any proof is the ten days demand made of the third possessor, and we have no means of knowing that even that was made prior to the filing of the suit, since this Record presents the singular feature of not exhibiting the filing, or the date of filing, of any paper copied in it. The ten days notice is dated Aug. 24,1875, was received by the sheriff on the 27th., and served on 28th. of same month. When the suit was filed does not appear. For aught that the Record shews, it may have been filed before the notice was issued or served. The citation upon the petition was served on one defendant Sept. 20, and on the other Oct. 9. But assuming that the suit was not filed until after the expiration of ten days from Aug. 28th., the date of service of that notice, there is still wanting any evidence of the demand upon the debtor thirty days before.

The testimony of Gouder, who now lives in Texas, was taken under commission, and he was asked if demand of payment of the notes had not been made of him. He answered that demand of the payment of each note, as it matured, had been made of him by the plaintiff’s counsel by letter. This is not the demand contemplated by the Code of Practice as the necessary precursor to the institution of the hypothecary •action against a third possessor of property, but the demand ordinarily ■made of a maker of a note prior to the institution of a suit against him personally for the recovery of the amount of the note. The formal demand, as set forth in the article above cited must be made, or the action fails. Broussard v. Philips, 6 New Series, 310. Robichaud v. Worsham, 4 La. 125.

It is also proscribed that the creditor who brings the hypothecary action must declare on oath that the debt is really due him, and that he has demanded payment of his debtor thirty days previous to bringing the suit. Code of Practice, art. 70. But it has been held that where the creditor proceeds via ordinaria, such oath is not necessary. Smith v. Blunt, 2 La. 132. Gravier v. Baron, 4 La. 239.

There was no judicial ascertainment of the sum due by the tutor to his ward. Gibbs v. Lum, 29 Annual, 531. Long after she had become sui juris, she made an extra-judicial settlement with her tutor of his tutorship, and by concert with him established a fixed sum as the amount due her, and voluntarily entered into an arrangement with him, whereby the sum due was divided in several instalments, the first of which was paid cash, and the last was not to be paid until five years thereafter. Eve i if such voluntary and extra-judicial settlement of a tutor’s accounts be sufficient to base an hypothecary action against property alienated by him, and in the ownership of a third possessor, a question not necessary now to be decided, we think such settlement, made as in this case with postponement of the time of payment to a distant day, and by the •acceptance of the tutor’s individual obligations in lieu of the security of his bond, and the legal mortgage resulting from recording it, destroyed the right of the former ward to have recourse upon the property of the tutor which had passed into the possession and bona fide ownership of third persons.

The plaintiff took the settlement of her tutorship out of the hands of the law, and made one for herself, by the terms of which she must abide. To permit her to adjust her accounts with her former tutor, as her inclination or his suggestion prompted, and after that arrangement had become unproductive of benefit to her, to pursue the third possessors ■of his property through the hypothecary action, would be introducing a new and additional harsh feature in that proceeding, and would open the door to collusive settlements which might work incalculable injury. The judgment; of the lower court is erroneous.

It is ordered, adjudged, and decreed that the judgment of the lower •court is avoided and reversed, and that there be now judgment in favour ■of the defendants against the plaintiff upon her demand, and for her ■costs in the lower court, and the costs of appeal.

Renearing refused


text:
    No. 863.
    J. C. Williams vs. Wm. Heffner, Sheriff, et al.
    An alleged sale of his property by a debtor can have no effect as against a creditor who has attached the property, when the purchaser of the property fails to show that the act of sale was filed or recorded before attachment was levied.
    A PPEAL from the Tenth Judicial District Court, parish of Caddo. a. Boarman, J.

      Nutt-& Leonard for plaintiff and appellee.

      Wm. H. Wise for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

. Hamilton & Co. being creditors of one J. C. Grigg for a large amount sued out an attachment against his property, under which writ the sheriff seized and took possession of the land in controversy in this case. The seizure under the attachment was made about four or fivep. m. on January 9, 1874. But on the morning of January 9,1874, Grigg and his half-brother, J. C. Williams, plaintiff herein, had gone before the recorder and passed an act whereby said Grigg purported to sell to his brother, J. C. Williams, the land in controversy for $7000; of which $1000 is stated to be cash ; $2000 assumpsit of a mortgage to one Moore; and for the balance, $4000, the purchaser executes his note at twelve months. There is nothing to show the date of the filing or registering of this deed beyond the certificate of the recorder, given on November 15,1877, that the act is “now on file and record” in hjs office.

Hamilton & Co. proceeded in their attachment suit to judgment against Grigg, obtained recognition of their attachment privilege, issued execution thereon, and seized and advertised the property attached for sale. Williams, alleging his inability to give bond for injunction, filed this third opposition to the sale, citing the sheriff and Hamilton & Co. as defendants. The sale proceeded, and Hamilton & Co. bought the property. They answer the opposition of Williams by alleging:

1. That they seized and attached the property before the said pretended sale could have effect, and have bought the property under said attachment proceeding.

2. That the sale from Grigg to the plaintiff was a fraudulent simulation.

Both defenses are good.

1. The plaintiff has failed to show that his deed was filed or recorded as the law directs before Hamilton & Co. attached.

2. Williams and Grigg are brothers. Grigg is shown to have been greatly embarrassed and insolvent. He stated to one of the witnesses a few days before this pretended sale that he wanted to dispose of his property, “ to beat old Hamilton, if he could.” Williams is shown to have been impecunious, without credit, industry, or enterprise; living most of the time with his mother. The $1000 cash payment,' as usual in such cases, turns out to be a pretended stale indebtedness, due years before by Grigg to plaintiff and another brother for loaned money and an'indefinite amount of cotton. The only evidence that this claim ever existed is Grigg, and he represents it as being, so far as the $500 borrowed is concerned, money borrowed by his aged and almost indigent mother for his said two brothers,who loaned it to him. One of the brothers, E. D. Williams, was sworn as to the reality of the sale from Grigg to J. C. Williams, but he knows nothing except what they had told him. He is silent as to this pretended loan. Plaintiff prudently does not testify, nor does the mother.

In our opinion the whole transaction between J. C. Williams and Grigg is an audacious and fraudulent simulation, so transparent as to be almost ludicrous.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that there be judgment rejecting the demands of J. C. Williams at his costs in both courts.

Mr. Justice Egan recused.


text:
    No. 818.
    The State vs. E. H. Doane et al.
    The sureties on the appearanco bond of one committed on a felonious charge are entitled to be released from their bond, after the discharge of the grand jury at . the first term of court after the execution of the bond, without finding a true bill.
    APPEAL from the Fourteenth Judicial District Court, parish of Rich-land. Parsons, J.

      W. N. Potts, District Attorney, for the State and appellant.

      Wells & Williams for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

E. H. Doane was charged with being an accessory before the fact to the murder of Isaac Myrick, and after a preliminary examination, was held in a bond of five thousand dollars by the committing magistrate to answer the charge before the District Court. He gave the bond with two sureties. That court afterwards met at the regular time for its next ensuing term, and a grand jury was empanelled, which failed to find a bill against Doane. After, the discharge of the grand jury, Doane’s sureties moved to be released from their bond.

The State opposed their discharge for the reason that although the grand jury had not found a true bill against Doane at that term, non constat that a subsequent grand jury would not find such a bill at some subsequent term, and the crime being imprescriptible, Doane was liable always to an indictment. The State also contended that the sureties must be held bound until the grand jury had acted on the charge, and! returned, not a true bill.”

If the sureties to a bond of this kind must be held bound until a second term of the court is held, and a second grand jury has been empanelled and discharged, they may be held until any subsequent term of court, or forever. They were entitled to a discharge from the appearance bond after the discharge of the grand jury at the first term after the execution of the bond, without finding a true bill.

The failure of the grand jury to indict the accused does not of itself ' relieve him of liability to a future prosecution. That can only be done by the jury acting on the charge, and returning, “not a true bill.” But that is not the question here, but solely, whether the sureties to his-appearance bond should be released by a judgment of court under the facts shewn. We think they were properly released from their bond.

Judgment affirmed.


text:
    No. 871.
    Helena Snider et al. vs. Leonard Cutliff et al.
    Until the rendition of an account, and classification of the debts of the succession, the executor can not, even under an order of court, transfer to one creditor, in compensation or payment of his debt, an asset of the succession. Such a transfer is null and void.
    "Where the vendee of succession property sold on a twelve-months bond fails to paw the price, the executor may resolve the sale, and recover the property,
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      W. A. Seay and N. C. Blanchard for plaintiffs and appellants.

      Land & Taylor, W. H. Wise, and Nutt & Leonard for defendants and! appellees.
   The opinion of the court was delivered by

Spencer, J.

The property of the succession of Mildred S. Cutliff,. on-application of her husband, R. A. Cutliff, as executor, was sold to pay debt, on twelve-months credit, the purchasers executing twelve-months-bonds.

Among other property sold was the “ Southern Hotel,” in Shreveport, adjudicated to A. H. Leonard for $13,600, for which he gave a -twelve-months bond with E. A. Leonard as security. The deed to Leonard was recorded in Conveyance Book, February 26,1874, but there was no registry in Mortgage Book until twenty-second January, 1875. Prior to this registry in Mortgage Book, to wit, on December 30,1874, Snider & Holmes, plaintiffs herein, obtained and registered in the Mortgage Book •a judgment against A. H. Leonard, thereby acquiring a judicial' mortgage on his property in Caddo.

On application of the executor, ex parte, the parish judge ordered that “ he be authorized to pay the debts due by the succession by transferring to the creditors the twelve-months bonds given by the pur■chasers of the property at the said succession sale. This order was granted and its execution attempted to be carried out with some of- the creditors. This was before there was any account rendered or classification of debts in the probate court, and before any judicial ascertainment of the solvency of the succession' — that being yet an open and disputed question.

The twelve-months bond of A. H. Leonard was a large one — for $13,600 — larger than the debt of any one creditor. Thereupon the executor .hit upon this novel device to meet the exigencies of the occasion. He found that the debts due Jacob Hoss, W. A. Pegram, and Louis Taylor amounted to $11,041 32, or $2558 68 less than the bond. He -thereupon wrote upon the bond as follows: “This bond is credited with the sum of $2558 68 Of its date, and is now transferred to Jacob Hoss, W. A. Pegram, and Louis Taylor in payment of debts due them by estate of M. S. Outliff, deceased, March 11,1874.

“ R. A. Outliff, Executor.”

The proof is direct and positive that not one dollar had been paid on said bond. Indeed, it is not stated in the indorsement that any payment had been made, but simply that “ a credit” was put on it. It- is shown that R. A. Outliff was not under bond as executor and not responsible ; that a vexatious litigation had been goiDg on between him and some of the creditors — they trying to force him to give bond, and he trying to sell the property without doing so ; that a sort of compromise was reached, and under the sanction of the court it was arranged that the sale should proceed and the funds should be deposited in bank, and the executor be not required to give security. This arrangement to give over these twelve-months bonds to the creditors was evidently a sub-' ■■stitute for the “ bank deposit scheme.” By this arrangement it was expected that their collection by an irresponsible party would be avoided •■and the creditors secured. It needs no argument to show that an •executor of a probably insolvent succession can not, by renouncing its Tights, give away its effects; and it would seem equally certain that ¡before the rendition of an account, and classification and ascertainment of its debts, he can not, with or without the order of the court, set off and give to one creditor an asset of the estate, even at its face value, for the reason that the remaining assets might prove worthless, and the-other creditors be left without any thing. Such a mode of settling successions is not to be tolerated; and we hold that the attempted assignment of Leonard’s twelve-months bond did not divest the succession ot its rights of ownership therein; and further, that the so-called credit indorsed thereon did not extinguish any part of the said bond.

Some time after this attempted assignment and credit, the creditors to whom the bond had been given returned it to the executor, who brought suit against A. H. Leonard to resolve the sale for non-payment of the price. Leonard answered the suit on the same day that the petition was filed, admitted the non-payment, and made no opposition to the dissolution. There was judgment dissolving the sale and restoring the property to the succession of Cutliff free of all incumbrances imposed on it by Leonard.

The plaintiffs bring this revocatory action to annul this judgment as obtained and consented to by their debtor Leonard, in fraud of their rights, and with intent to defeat their judicial mortgage on the property. The basis of plaintiffs’ .argument is that the succession of Cutliff had parted with the twelve-months bond, and did not therefore hold the debt due for the price of the sale, and had no interest in its resolution; that no one but the vendor himself can bring the resolutory action, and that therefore as the assignees of said bond could not do so they fraudulently interposed Cutliff, executor and vendor, to bring the suit. It is unnecessary for us to decide in this case whether the right of resolution passes or not to the transferee of the debt for the price. We may say, however, that we consider it an open question. Such being the cornerstone of plaintiff’s pretension, our conclusion, stated above, that the estate of Cutliff, the vendor, does own the bond, would seem to remove it. Sublato fundamento, casit opus.

We think it highly probable that this actio.n in resolution was prompted and necessitated by the fact that by not registering the bond in the mortgage office .promptly the security of the debt was jeopardized by the interposition of plaintiffs’ judicial mortgage. It can not be denied that if the price be not paid the vendor may resolve the sale. This is an indubitable right. Plaintiffs do not pretend that the price ever had been paid. On the contrary, they show that Leonard was and is hopelessly insolvent, which of itself is strongly presumptive of :qon-payment. It may have been wrong or wicked in him not to pay, and thereby he undoubtedly injured plaintiffs. But we do not see in this any reason why the executor of Cutliff should have allowed plaintiffs to swallow up the property of that estate, when by the exercise of a plain legal right it could be averted. No doubt Leonard was gratified at the opportunity of getting rid of an elephant in the shape of a hotel, which plaintiffs’ counsel assert was worth much less than he gave for it. Whatever were his motives, the vendor in exercising the remedy of resolution and thereby recovering a thing never paid for and honestly belonging to him, does no wrong to the creditors of the vendee. What equitable right have they to take property to pay their debts, when that property did not belong to their debtor, because not paid for ? If they thought it their interest to keep the property in the patrimony of their debtor, they could have done so by exercising his right and paying the price to the vendor. But if the property be worth less than the price due, as is admittedly the case here, we are at • a loss to see what wrong plaintiffs have suffered by having it taken back, and their debtor burdens thereby diminished. Plaintiff’s claims has little to support in law and less in equity.

The judgment appealed from is correct, and is affirmed at costs of appellants.


text:
    No. 866.
    Wilberga Schneider vs. Etna Life Insurance Co.
    A case will be remanded on the ground of newly discovered evidence filed in this court, whenever it shall appear that the ends of justice demand it.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Land, J., ad hoc.

      Looney & Elstner for plaintiff and appellee.
    21 Alexander and 21 FI Bell for defendant and appellant.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues to recover three thousand dollars, the amount of a policy of insurance on the life of her husband, William Wackerle, of which she is the beneficiary. She had judgment in the lower court last December.

The defendant files in this court the affidavit of William Wackerle, .made in San Francisco on the 24th of last month, in which he details his history, giving the names of his parents, of his wife, the date and circumstances of his marriage, the name of the priest who celebrated it, his removal from Minnesota where the marriage took place, his war service in company H, 9th. Regiment from that State, his residence in other States and finally in Quincy, 111. where he left his wife in 1870, and went to Sacramento, Cal. and shortly afterwards to Hydesville in that State where he is now living, and does not know where his wife is, not having heard from her for several years.

There are other affidavits filed which were taken on the same day, at the same place. Joseph Weinmann’s is that he knew Wackerle in Minnesota, and his wife also — that he was a lieutenant of the company of volunteers, of which Wackerle was a member, and served with him, and has been in correspondence with him several years about obtaining a pension for him — that he is present while Wackerle is making his affidavit, and recognizes that affiant as the man whom he knew in Minnesota, and in military service, and whose wife’s name was Wilberga. John Hein and Nicholas Hein swear that they were members of the company along with Wackerle, and give the name of the captain, .as well as that of Weinman as lieutenant, and that have now before them then the same Wackerle, whom they recognize, and who has just then made the affidavit before mentioned.

It appears the affiant Wackerle then went to a photographer, and we have his affidavit that the photograph which he appends was taken by him on that day of a man who represented himself as William Wackerle.

The defendant thereupon prayed the court not to enter upon the consideration of the merits of the qause, but to remand it for a new trial upon this shewing. This motion, and the accompanying affidavits were filed on the 16th. of this month, the day after the transcript of appeal was filed. The plaintiff filed her counter-affidavit on the 17th., stating that she has just arrived at this place, and inspected the photograph, and read the affidavits filed by the defendant, and that the person thus photographed is not her late husband, and is not like him — that “ her husband’s hair was curly, different pointedly and distinctly from that of the photograph annexed, in fact in every feature there is no similarity between the photograph and her late husband, and that the affidavits as to identity are false.”

The suit was filed in January 1877, and the answer at the ensuing April term, and the defendant then denied the death of the William Wackerle, whose life it had insured. During the interval between that and the December term numerous depositions were taken, and on the trial the plaintiff herself testified. She related her personal history, giving date and place of her marriage, the name of the priest-celebrant, which the clerk has spelled Wistman — idem sonans with Wissmann, the name given in Waekerle’s affidavit — the subsequent journeys and removals of her husband and herself, and his final departure, as she says, for Texas. She heard of his death in that State in January 1873, she being then in St. Louis, and came on in April of that year. A labourer of the same name as her husband had been killed on the railway, by the passenger train crushing his leg, a few miles from Shreveport on Dec. 25, 1872. She proved to the satisfaction of the lower court that this man was her husband.

When, a party to a suit dies after judgment in the lower court and before the appeal is heard, his counsel upon suggestion or proof of his death, moves in this court to have his representative made a party to the appeal, and it is granted as a matter of course. Here is a suit based upon the death of a person, and the suggestion is that he is alive, and the proof, filed with the suggestion, ex-parte and not entirely regular in its authentication, apparently supports it, while the plaintiff emphatically contradicts it.

We can not receive new and original evidence except for certain purposes, and there is no precedent in our Reports to this application. Nevertheless, it is the duty of courts to make precedents when the ends of justice demand it. If we should refuse this motion to remand, and proceed to the examination of the merits, and reverse the-judgment already obtained by the plaintiff, she would in her application for rehearing no doubt join in the defendant’s motion. If we should affirm the judgment, our concurring assent to the lower judge’s belief in her husband’s .death would so firmly fix that belief in her own mind that she might abate any efforts to ascertain whether he be alive or not, while the defendant would have suffered a serious and irreparable wrong, if it shall in the end prove true that the William Wackerle who is now living in California is really the husband of the plaintiff. a

We are not unmindful that under cover of a motion to remand for evidence subsequently discovered, attempts may be made to delay appeals in other cases, but the remedy is in our own hands, and the circumstances of the present application are extraordinary and exceptional. We shall give to both -parties an opportunity to ascertain a fact so interesting to them.

It is ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that this cause is remanded thereto for a new trial, the costs of this appeal to await final judgment therein.

On Application hob.Rehearing.

The plaintiff applies for a rehearing, and complains that we have granted more than the defendant in its motion asked. The rehearing is granted.

On Rehearing.

The motion of the defendant was to remand for the purpose of enabling it to verify by proof before the lower court the truth of the affidavits filed here in support of its motion. When we determined to remand, it occurred to us that we might possibly do the plaintiff an injustice if we should confine the lower court to an examination of the sole question whether the insured was still living. But since she desires that question alone to be submitted, we shall make our decree in accordance with the wishes expressed in her counsel’s brief. Therefore

It is ordered and decreed that our former judgment is set aside— that the judgment of the lower court is avoided and reversed — and that the case is remanded to the lower court solely to receive proof of the existence of the insured in manner and form as set forth in the motion of the defendant, and then to render judgment between the parties upon all the proof in the present record and that to be taken on the trial as herein ordered, and that the costs of this appeal await the final decision of the cause.


author: Marr, J. DeBlanc, J.

text:
    No. 827.
    Newman Brothers vs. S. E. Cuney.
    The Parish Court has exclusive original jurisdiction in all ordinary suits, in which the sum involved is less than $500 exclusive of interest.
    This Court has appellate jurisdiction of all judgments rendered by the District Court in eases appealed from the Parish Courts, when the amount involved, including principal and interest, is more than $500.
    APPEAL from the Twelfth Judicial District Court, parish of Catahoula. Ellis, Judge ad hoc.

      Charles J. Boainer and 8. L. Elam for plaintiffs and appellants.

      John S. Boainer for defendant.
   The opinion of the court was delivered by

Marr, J.

Newman Brothers obtained a judgment in the párisht court, against Mrs. Jane O. Cuney, for $398 73, with eight per cent interest from the- third of January, 1869, which they caused to be recorded as a judicial mortgage. They afterward brought an hypothecary action, in the same court, against Stephen E. Cuney, to whom their judgment debtor had sold certain lands after the recording of the judgment; and obtained judgment, on the twenty-sixth April, 1875, for the $398 73, with interest and costs, which was made executory and ordered tó be enforced on the property standing in the name of Stephen E. Cuney, described in the judgment.

Prom this judgment Cuney appealed to the district cqurt. He amended his pleading, and obtained a judgment annulling the judgment of the parish court, on the ground of want of jurisdiction. From this judgment Newman Brothers have appealed to this court; and Cuney moves to dismiss, on the ground that the judgment of the district court, on an appeal from the parish court, is final; and that this court is without jurisdiction.

The judgment of the parish court for $398 73, with eight per cent interest from January 3,1869, was for an amount largely in excess of $500. According to article seventy-four of the Constitution, the jurisdiction of the Supreme Court “shall extend to all cases where the matter in dispute shall exceed five hundred dollars.” The matter in dispute in ■the parish court and in tne district court exceeded five hundred dollars; and this court has jurisdiction, by the express terms of article seventy-four of the Constitution.

By article 85 of the Constitution, the district courts have original jurisdiction in all civil cases where the amount in dispute exceeds five hundred dollars, “ exclusive of interest;” and by article 87 the jDarish courts have exclusive original jurisdiction in ordinary suits, in all cases where the amount in dispute exceeds one hundred dollars, and does not exceed five hundred dollars. If these articles are taken literally there is no court in the State which could take jurisdiction of a case in which the capital sum, the amount of the debt, is five hundred dollars, if any interest whatever be due on it. The district courts can not take jurisdiction, because the capital sum due must exceed $500, exclusive of interest;” and the parish courts can not take jurisdiction, because the limit is “when the amount in dispute does not exceed five hundred dollars; that is, the amount in dispute, principal and interest, must not exceed $500.

We had occasion to consider this subject fully in Decklar vs. Frankenberger, 30 An. 410; and our conclusion was that the words exclusive of interest must be supplied, with respect to the jurisdiction of the parish courts, so as to make the clause of article 87 in question read thus : “ They shall have exclusive original jurisdiction in ordinary suits, in all cases where the amount in dispute exceeds one hundred dollars, and does not exceed five hundred dollars, exclusive of interest; subject to an appeal to the district court in all cases when the amount in contestation exceeds one hundred dollars, exclusive of interest.”

The plain meaning of the articles eighty-five and eighty-seven is that the district courts have original jurisdiction when the capital sum, the amount in dispute, exceeds five hundred dollars, exclusive of interest; that the parish courts have exclusive original jurisdiction in all ordinary suits when the capital sum, the amount in dispute, does not exceed five hundred dollars, exclusive of interest; and that the district courts have appellate jurisdiction in all the ordinary suits falling within the jurisdiction of the parish courts, “ when the amount in contestation exceeds one hundred dollars, exclusive of interest.”

We have in this case all the elements of jurisdiction in the three courts. The capital sum is less than $500 : and therefore it falls within the exclusive original jurisdiction of the parish court. It falls within 'the appellate jurisdiction of the district court, because the amount in dispute exceeds $100, exclusive of interest; and it is subject to the jurisdiction of this court because the amount in dispute, principal and interest, exceeds $500.

The judge of the district court erred in deciding that the parish ■court was without jurisdiction. We have no authority, on this appeal, to deal directly with the judgment of the parish court; but we have revisory power over the judgment of the district court.

It is therefore ordered, adjudged, and decreed that the judgment of ■the district court, appealed from, be annulled, avoided, and reversed; that this cause be remanded to the district court, with instructions to that court to proceed to hear and determine the appeal herein taken from the parish court to the district court, according to law, and the principles herein announced; and that the appellee, Stephen E. Cuney, pay the costs of this appeal;

Dissenting Opinion.

DeBlanc, J.

Eor the reasons given by me in “ Adam Decklar vs. Frankenberger,” I respectfully dissent from the opinion and decree in this case.