author: Manning, C. J.

text:
    No. 7789.
    Allen, Nugent & Co. vs. H. S. Champlin.
    ‘Where an attachment is taken out for the whole debt claimed by the plaintiff, a part of which only is duo and exigible, the bond must bo for an amount to cover the whole debt. A bond to cover only the part then due is insufficient.
    The defendant in attachment has a right to have his motion to dissolve the attachment tried in a summary way.
    23b implication can arise against a plaintiff that he is actuated by malice in suing out a sequestration when the surrounding facts furnish good ground to the plaintiff for the belief and fear set forth in his affidavit.
    A general agent, who is specially instructed by his principal to place the latter’s claim against a third person in a lawyer’s hands, and to take such proceedings, with or without writs and affidavits as they may deem proper, is authorised to make affidavits, and execute bonds* in the principal’s name in a sequestration, or attachment suit.
    A defendant has no right to claim damages for an attachment of property which he himself avers he has transferred to the plaintiff. It is immaterial whether the transfer was intended as a sale, or as a security.
    A PPEAL from the Thirteenth Judicial District Hough, J. Cóurt, parish of Tensas.
    Reeves & Parrar for plaintiffs and appellees :
    First — That the facts justified the belief expressed'by plaintiffs in their affidavit for sequestration, and therefore malice cannot be inferred.

      •Second — That plaintiff in attachment cannot be held in damages for a seizure by the sheriff of property which the sheriff was not authorized by the writ to take.
    'Third — Defendant in attachment is not entitled to damages, on the dissolution of the attachment, when it appears by the judicial admission of defendant himself that the property attached belonged to plaintiff.
    T. P. Clinton, Steele & Garrett, and Kennard, Howe & Prentiss for defendant and appellant:
    First — That the rule to dissolve the attachment should have been tried summarily. C. P. 258 ; 2 An. 498.
    •Second' — That there was no reasonable ground for the fear and belief of plaintiff set forth in his affidavit for a sequestration, and therefore that the plaintiff was actuated by malice in taking out the writ, and is liable for vindictive, as well as actual, damage's. 25 An. 269 ; 24 An. 500 ; 26 An. 258, 641; 28 An. 819; 29 An. 89; 30 An. 394 ; 31 An. 687.
    Third — That the agent of plaintiff had no authority to make the affidavits, and execute the attachment and sequestration bonds. 5 An. 496.
    Fourth — When an attachment is set aside the defendant has in all cases a right to recover attorney’s fees, actual injury to property, and in a proper ease, exemplary damages. 13 An. 214, 440.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiffs sued the defendant on November 3, 1877, for the recovery of $1,962.55, value of supplies furnished him for the cultivation of the Holly Ridge plantation during that year, of which $303.35 were then due, and the residue would become due on 15th. of that month, and took out a sequestration. Five days afterwards they filed a supplemental petition and prayed an attachment, which was issued on a bond for $982.

The defendant moved to dissolve the attachment on three grounds, the last of which is the insufficiency in amount of the bond. The plaintiffs insist it is sufficient in amount, because the sum due at the time of the attachment was only $303.35, and the bond is for that sum and one half more.

The attachment was taken out for the whole debt. It is so prayed in express terms. The maturity of the whole was near at hand, i. e. one week after the filing of the petition for attachment. The amount of the bond is insufficient, Yale v. Cole, 31 Annual, 687, and the attachment should have been dissolved.

The only property seized under the attachment was six mules, six horses, blacksmith tools, 13 plows, and other farming implements. The crops were seized under the writ of sequestration — the quantity being an undivided interest in ten bales of cotton picked and housed, and in five bales in the ñeld, and in thirty bales in the seed raised by sundry parties, and same interest in eighty acres hanging by the roots also raised by sundry parties, and in fifteen acres of corn ungathered, and an undivided one half of twelve acres of corn ungathered, and five tons of hay, all the cotton seed, and four bales cotton in the lint. The sequestered property was released on the defendant giving bond for fourteen hundred dollars, a motion to set aside the sequestration having been refused.

The defendant in his answer prays for $1000 damages for destruction of his credit and of his business — $3000 damages for loss of seventy-five bales of cotton in the field — $2,500 more for loss by reason of inability to cultivate the plantation in 1878, the stock and farming implements being held by the sheriff under the attachment — $500 for lawyers’ fees — and $5000 for loss of credit, and for trouble and anxiety— in sum total twelve thousand dollars. This exaggerated estimate of damages invites a doubt of the defendant’s sincerity in making it.

The first term of court held in Tensas after the seizure under these writs was in April, 1878, on the first day of which the defendant moved to dissolve the attachment and set aside the sequestration, and asked for a summary trial thereof, which the court refused except as to one of the grounds, viz, want of authority of the agent to sign the bonds. A trial was had as to that ground, and the motion sustained, and a new trial immediately granted by the judge ex officio. A motion for continuance had been made on same day by the plaintiffs, and was granted, so that no hearing, either of the motions, or of the merits, was had until November 1879, two years after the motions had been filed, during which time the attached property was in the hands of the sheriff, and the defendant was prevented from using it.

The defendant should have been allowed to prove in a summary way the grounds of his motion to dissolve the attachment. Code Prac. art. 258. There was no reason why he should have delayed until the next term of court claiming and having a summary trial of that issue, and it should not have been deferred when he applied for it on the first day of the term. The motive of the law is obvious. The severity of the remedy by attachment — the stringent nature of the process — and the possible consequences to ensue from its enforcement if the defendant should be compelled to await the ordinary routine of the courts when their terms, as in the rural parishes, are separated by wide intervals — all suggest the propriety and even the necessity of allowing a summary trial. It often happens that the trial of these motions involves the merits to some extent, but that is no reason why the summary trial of the motions should be refused. Read v. Ware, 2 Ann. 498. Unforeseen and very serious consequences might result from such denial, and in the present instance, the defendant claims, have resulted from it.

One of the grounds for setting aside the sequestration is that the affidavit is untrue, and in the answer malice is charged in taking out the process, and for this the exemplary damages are claimed as well as those actually-sustained.

It is very difficult to get at the truth in such suits as this. Factors, like the plaintiffs, whose travelling agent is looking after their country business, discover facts which produce distrust of the good faith of the planter to whom they have furnished supplies. On personal application to him for explanation, and on the expressions of solicitude touching his future intentions, he is vehement in his protestations that every pound of his cotton shall go to them; and when distrust has ripened into a conviction that foul play is preparing, and the process of the courts is set in motion to arrest the diversion of the crop, large claims for losses consequent- thereon are made.

Anderson was the agent of the plaintiffs, and on reaching Tensas parish, found that Champlin had confessed judgment in favour of Peter Young for six hundred dols. with recognition of Young’s privilege on his crops for supplies furnished. Champlin gave his note to Young for that sum containing the acknowledgment of the privilege on Oct. 19th. Suit was instituted and judgment confessed on same day, and the judgment signed on the 20th, Whát could Champlin, have done better calculated to rouse suspicion of his good faith to the plaintiffs — better calculated to produce conviction of his bad faith than that. The plaintiffs had been furnishing him all the year. They had a recorded pledge of all his crops. They had transmitted accounts to him from time to time, and he had approved them. Every consideration of honour, honesty, good faith, nay even of prudence and good policy, forbade him to confess a judgment under such circumstances. The intentions of men are best shewn by their acts. He must have known what construction would inevitably be placed upon that act.

The reason given for it is that the plaintiffs would furnish no more supplies, and Young, who was a merchant at Vidalia, did furnish them, but we are looking at the act only in the aspect of its constituting ground for the plaintiffs’ sequestration. Certainly it was well calculated to produce the conviction that the defendant was disposing of his crop to the prejudice of the plaintiffs.

Anderson arrived on the ground soon after this and ascertained that Champlin had shipped four bales of cotton to Abraham, Lehman & Co. for account of Peter Young, and up to that time he shipped only four bales to the plaintiffs, and even this had not reached them when the seizure was made. He found also the defendant’s plantation had recently been seized by a mortgage creditor, and after examining the crop, gathered and ungathered, became satisfied that it would not cover the amount of the plaintiffs’ claim. Lessees were cultivating much of it on shares, Champlin’s interest being undivided, as appears from the inventory already recited. Anderson remonstrated with Champlin on October 31st. for removing any portion of the crop which was pledged 'to the plaintiffs, and said he would be obliged to take out writs to prevent the removal of more of it. Champlin begged him not to do so, and not to inform the plaintiffs of what had been done in the Peter Young business, and offered to pay him if he would not disclose it, and said he would replace the cotton. He also offered to receive on the place a custodian to look after the plaintiffs’ interests, but they could not agree on the man. Eour days afterwards the sequestration was taken out. There was good ground for the belief set forth in the affidavit.

We have not overlooked the testimony of Barrow and others in Champlin’s favour. The whole evidence has been sifted. We are to determine, not what his fribnds and neighbours believed or thought he would do, but what the plaintiffs and their agent had a right to believe he was doing and would continue to do, judging his intentions from his acts. The interests of both planter and factor, as of men in all other relations of life, are best promoted by good faith. The law which gives to the factor a lien and pledge on the crops of the planter is as much in the interest of the one as the other. The man who lends diminishes the interest or profits of lending in the same proportion as his security increases in strength and completeness. The man who borrows finds his credit enlarged if bis own integrity is beyond question, or failing that, if the law resolutely attaches inviolability to his engagement. He who advances money or furnishes supplies to make crops is fairly entitled to have the law enforced in his favour, when he acts on belief induced by a reasonable construction of the acts of his debtor. The plaintiffs so acted in this case.

As to the only remaining ground of objection, viz the want of authority in the agent, it is not well taken. It is as follows — you will please place our claims vs. H. S. Champlin in hands of an attorney in Tensas parish, La. with instructions to take such proceedings, with or without writs and affidavits, as they may deem proper.

It is awkwardly worded, but we think the intent was manifestly to confer upon the agent power to do whatever was necessary to take such proceedings as the counsel to be selected should deem proper, and, when coupled with the fact of his accredited general agency, sufficiently warranted him to make the affidavit and execute the bond in the name of his principals.

The dissolution of the attachment would involve damages, but it appears the defendant had previously transferred to the plaintiffs all the stock and farming implements. This transfer is alleged and recited by the defendant in his answer, as evidence of the plaintiffs’ malice, since they seized even what had already been transferred to them. If it were malice, and damage ensued, what complaint can the defendant make if the plaintiffs took what was their own ? It is insisted however that this transfer was made only “ in order more fully to secure ” the plaintiffs. This merely expresses the motive of the transfer. The fact of the transfer is alleged by the defendant, and it would seem the plaintiffs had done a supererogatory act in attaching the property transferred.

Judgment affirmed.

Behearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 6476.
    E. F. Golsan & Co. vs. J. R. Powell. On Rule against Garnishees.
    Until notice of tlie transfer of a claim has been given to the debtor, such claim, though transferred, is liable to attachment by the creditors of the transferrer.
    It was the assignment, and not the adjudications bankruptcy by the bankrupt court, under the late law of Congress, which dissolved attachments levied within the four preceding months.
    A creditor of the bankrupt cannot bo hoard to contend in the State courts that the attachment levied by another creditor was dissolved by the bankruptcy of the common debtor, because, if such wore the case, the property attached could only be claimed by the assignee of the bankrupt, and not by the contending creditor.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J. •
    Bayne & Renshaw for plaintiffs and appellees:
    First — As to third persons, the transfer of a debt can have effect only from the date of notification thereof to the debtor, and until the notification, the debt can be attached notwithstanding the transfer. 11 Rob. 326 ; 17 An. 258; 0. O. 2643 ; 7 An. 620 ; 20 An. 96 ; 9 An. 226.
    Second — By the bankrupt law, U. S. R. S. see. 5044, it is the assignment,
      and not the adjudication in bankrupcy, which may dissolve an attachment. 13 Nat. Bankr. Begister, pp. 252, 253 ; 21 Wall. 6á6 ; 91 U. S. 524.
    Lacey & Butler for A. N. Sutton, appellant:
    First — When the attachment of plaintiffs was issued, there was nothing ■ belonging to their debtor in the hands of the garnishee. The claim sought to be' seized had long before been transferred to this appellant, who, for a valid consideration, had become the owner of it.
    Second — Plaintiffs’ attachment was ipso facto dissolved by the bankruptcy of their debtor. This court cannot inquire into or pass upon the merits of that attachment. The matter is not before it, and it can only, in this respect, administer the Act of Congress. In re Ellis, 1st Bankr. Begister, p. 154; in re Housberger vs. Zibelin, 2 Bank. Beg. 33 ; in re Bowman vs. Harding, 4 Bank. Beg. 5; in re Morgan vs. Campbell, 11 Bank. Beg. 533; and others.
    Third — Plaintiffs having allowed this appellant to prosecute the suit against the insurance company at his own expense and trouble, while they were sleeping upon their rights, are now estopped from claiming the benefit of his efforts;, Herman on Estoppel, p. 337 ; 25 Illinois, 377; 1 Kentucky (Bush) 565, 599; 14 Wisconsin, 285; 9 Wallace, 274 ; 5 Bob. 518; 1 An. 11; 5 An. 107; 6 An. 349; 9 An. 528; 12 An. 473.
    Gibson, Hall & Montgomery for the garnishee.
   The opinion of the court was delivered by

Bermudez, C. J.

J. B. Powell sued the Factors’ & Traders’ Insurance Company in March, 1870, -to recover $3453 97. Judgment was rendered against him, in the lower court, but in his favor on appeal for the amount claimed.

Pending the litigation, namely, on May 7th, 1872, the plaintiffs sued Powell, attaching in the hands of the insurance company what assets they had- under their control, belonging to Powell, and they recovered judgment against him for $4183 in December, 1875, with privilege.

At the time the attachment issued, interrogatories were propounded to the insurance company, whose president answered, on May 16th, 1872, so as to make the liability of the corporation to Powell contingent on the decision of his suit against it.

The judgment rendered by the Supreme Court, in December, 1875, in favor of Powell, against the company, for $4183, having become executory, Golsan & Co. took a rule, in January, 1876, on the company •to show cause why they should not pay in court the amount of the judgment for distribution.

The company answered that on December 10th, 1871, Powell had assigned his interest in this suit against them to A. N. Sutton, and that the same interest had 'been seized by attachment in two stated cases. The company asked that Sutton and the attaching creditors be made parties.

Sutton resisted payment by the company to Golsan & Co. on the following grounds-:

First. He was the transferree and subrogee of Powell’s rights.

Second. The attachment of Golsan & Co., made two days previous to his notification to the company of the transfer and subrogation by Powell in his favor of his interest in his suit against them, had been •dissolved by the declaration of Powell in bankruptcy on June 22d, 1872.

On the trial of the rule, it was proved that on May 9th, 1872, Sutton •had been recognized by the court, in the ease of Powell against the ■company, as subrogated to the rights therein of the plaintiff; and that the nest day, May 10th, 1872, the company was notified by the sheriff of the motion and order declaring the transfer and subrogation.

The attachment, in the -case of Golsan against the insurance company, was served on May 7th, 1872, on the insurance company, while notice of the transfer of Powell’s interest to Sutton was given three days later, on May 10th, 1872.

“The transferree is only possessed, as it regards third persons, after •notice has been given to the debtor of the transfer having taken place.” •0.0.2643(2613).

“ If previous to notice having been given of the transfer, to the •debtor, either by the transferrer or by the transferree, the debtor should have made any payment to the transferrer,'the debtor is, discharged of rthe debt.” C. C. 2644 (2614); 11 R. 326 ; 17 Á. 258 ; 24 A. 623.

The seizure by attachment, made by Golsan & Co., who subsequently recovered judgment for their claim against Powell, gave them a preference dating back to May 7th, 1872, over Sutton, whose transfer was only signified three days later, on the 10th of May following, and who only acquired what might be left, which, as the facts turned out, happens 'to be nothing.

On the second defense, Sutton offered to introduce in evidence the petition, schedule, and order in the bankruptcy proceedings of J. R. Powell, before the United States District Court for the District of Louisiana, — to show that Powell had been adjudicated a bankrupt, and that the debt due by the insurance company had not been placed by Powell <©n hiSiSchedule.

The offer was objected to on two grounds :

1. The evidence was irrelevant.

2. A creditor cannot urge the adjudication in bankruptcy of his-debtor, as against another creditor, litigating with him, as a bar to the-recovery by that last creditor — for the reason that such plea can be-made by the assignee only, who alone represents the assets and the ■ creditors of the insolvent.

The objections were sustained and the evidence ruled out. A bill of exception was returned, but the proceedings were not annexed to it.. The bill says that the petition, schedule, and order, in the bankruptcy proceedings, were offered ; but does not set forth the nature of that order.

We are, therefore, unable to know from the bill itself whether the-order was one of assignment. This knowledge was important, for it is the assignment, and not the adjudication, which passes the assets to the-assignee, for the béneflt of the creditors, and which may dissolve the-attachments levied on the property of the insolvent within the four-months preceding.

13 Nat’l Bankruptcy Register, 252.

9 NatT Bankruptcy Register, 356.

21 Wall. 646 ; 91 U. S. 524.

In the last case the Supreme Court of the United States, however,, said: ’ .

' “ The opinion seems to have been quite prevalent in many quarters-at one time, that, the moment a man is declared bankrupt, the district court which has so .adjudged draws to itself by that act, not only all control of the bankrupt’s property and credits, but that no one can-litigate with the assignee contested rights, in any other court, except, in so far as the Circuit Courts have jurisdiction, and that other courts can proceed no further in suits of which they had at that time full’ cognizance; and it was a prevalent practice to bring any person, who contended with the assignee any matter growing out of disputed rights-of property, or of contracts, into the bankrupt court, by the service of a rule to show cause, and to dispose of their rights in a summary way.

This court has steadily set its face against this view.”

The debtor of a bankrupt, or the man who contests the right to-real or personal property with him, loses none of those rights by the-bankruptcy of his adversary.”

On the assumption, however, that the attachment assailed was dissolved as claimed, Sutton could not be heard to make that objection, as it could not benefit him at all. In such a case, the fund in dispute would accrue, not to Sutton, but to the mass of the creditors of Powell, whom the assignee alone represents. This functionary has not appeared in these proceedings to interpose any impediment to .the exercise of the-pretensions of Golsan & Oo. as asserted in this case. His absence cannot be supplied by Sutton. The fund must therefore be applied in the-same manner as it would clearly have been had Powell never gone into bankruptcy.

It is therefore ordered that the judgment of the lower court Reaffirmed with costs.


author: Poché, J.

text:
    No. 7673.
    Succession of Mrs. Jennie Ames Walker.
    An appeal-bond, which contains no mention of the title to the suit or matter in which the-judgment appealed from was rendered, nor of the date of the rendering and signing of the judgmont, nor of the name of the party in whose favor it was rendered, nor of the party cast in the suit, is radically defective, and cannot support the appeal.
    ^PPEAL from the Second District Court, parish of Orleans. Tissot,.

    J. Timony, E. Bermudez for W. P. Ames, appellee.
    E. North Cullom and J. E. Wallace for Dr. Sam’l Walker, appellant..
   On Motion to Dismiss.

The opinion of the court was delivered by

Poché, J.

Appellee moves to dismiss the appeal in this case on several grounds, and among others, that there is no appeal-bond, as the law requires.

We find in the transcript the copy of a paper purporting to be an appeal-bond, executed by Samuel Walker as principal, and M. E. Big-ney as surety, bearing date the 19th of November, 1879.

But the document contains no mention whatever of the title of the suit or matter in which the judgment appealed from was rendered, nor of the nature or scope of such judgment, nor of the date of the rendering and signing of the judgment, nor of the name of the party in whose favor it was rendered, nor of the party east in the suit.

In short, we find in the document no description, information, or landmarks of any kind, through which the pretended appeal-bond could be identified or connected with any cause pending before this, or any other, court. It is, therefore, an unmeaning paper, and if intended as an appeal-bond in this case, it is so radically defective as to justify the conclusion that this appeal comes to us without a bond.

6 La. 586 ; 10 A. 155 ; 12 R. 205.

It is therefore ordered, adjudged, and decreed that the appeal be dismissed with costs.

Chief Justice Bermudez recuses himself in this case, having been of counsel in the case.


author: Todd, J.

text:
    No. 7861.
    State vs. Jourdan Crawford.
    A motion in arrest of judgment can only be granted on account of an error patent on the face of the record; and no evidence dehors the record can be admitted to establish the error or in support of the motion.
    'The jurisdiction of this court in criminal cases being limited to questions of lav7- alone, it cannot review the evidence offered in the lower court, for the purpose of ascertaining whether such evidence was sufficient to support the conviction.
    A statement of the facts proved on the trial is only a substitute for the evidence itself, and cannot be considered by this court.
    ÜPPEAL from the Parish Court of Madison. Dennis, J.
    J. C. Egan, Attorney-General, for the State, appellee:
    ' 'The judgment of the lower court, refusing the motion-for a new trial and the motion in arrest of judgment, and sentencing the accused, should be sustained for the following reasons :
    First — Because the Supreme Court cannot review the correctness of a general verdict on questions of fact.
    Second — Because it does not appear that there was any discrepancy between the allegata and probata.

    Third — There is nothing on 'the face of the record tó justify a motion in arrest of judgment. -
    A. L. Slack for appellant.
   The opinion of the court was delivered by

Todd, J.

The defendant was tried in the parish court of Madison parish under an information filed in said court. He was convicted, and sentenced to the Penitentiary for one year, and has appealed.

The defendant was charged in the information with having stolen one hundred and thirty-five dollars from George Morris and Strather Payne. After his conviction he filed a motion in arrest of judgment and for a new trial, on the ground that the information alleged the owner•ship of the money to be in George Morris and Strather Payne, whereas the evidence showed that it belonged to George Ernest, Strather Payne, and Nancy Páyne; and a certificate, or statement, of the parish judge to establish this appears in the record.

The motion was overruled, and this ruling is the error assigned in this court, and relied on for reversing the judgment of the lower court. 'The error assigned, even if admitted, is no ground for a motion in arrest of judgment, for a judgment can only be arrested on account of an •error patent on the face of the record. No evidence dehors the record can be admitted to establish the error or in support of the motion. 8 , R. 573; 10 An. 265; 14 An. 827 ; 15 An. 185; 25 An. 370; 28 An. 129 ; 30 An. 90, 265.

There being no legal ground urged for an arrest of judgment, the next question presented is, whether this court can review the evidence offered in the lower court, embodied in the statement of facts, for the purpose of ascertaining whether such evidence was sufficient to support the conviction. This is virtually asking this court to try the cáse over again on the merits, and decide upon the guilt or innocence of the accused.

Our jurisdiction in criminal cases is limited to questions of law alone. In case of the State vs. Frank, 2 An. 837, the Court says:

“ By the well-known rule of criminal proceedings the evidence introduced on the trial is not reduced to writing, and if it was, we would be without authority to pronounce upon it. A statement of the facts proved on the trial would be only a substitute for the evidence itself, which we are not permitted to examine.” Con. 1879, art. 81; 2 An. 921; 3 An. 497.

This disposes of the case.

It is therefore decreed that the judgment and sentence of the lower court be affirmed with costs.


author: Levy, J.

text:
    No. 7713.
    City of New Orleans vs. the New-Orleans Savings Institution.
    It seems to "be a settled doctrine, that a State court is not prevented from entertaining an action and rendering judgmont against a receiver appointed by a Federal court, but only from interfering with bis possession or from enforcing tlie judgment in the State tribunal.
    Want of permission from the Federal court, which appointed a receiver, to bring suit against him in the State court, is waived by the appearance of counsel in his behalf, such appearance being an admission tbat tbe defendant has been regularly brought into court.
    The “New-Orleans Savings Institution ” was at least a bank of deposit, and, as such, liable to the payment of the annual licenso-tax imposed by the city of blew Orleans, under its ordinances, on “ banks, banking houses, banking companies, or banking agencies.”
    But privilege claimed by the city on its personal property, not having been registered, cannot be recognized.
    4 PPEAL from the Third District Court, parish of Orleans. J. Monroe,

    Sam. B. Blanc, Assistant City-Attorney, and E. H. Earrar for plaintiff and appellee:
    This suit was brought before the receivers were appointed.
    It may and ought to be continued without their participation. Jt does not purport or pretend to interfere with, or disturb the receivers’' possession of the assets of the corporation.
    For these reasons the State court should maintain its jurisdiction. 6 Bl. C. C. 235 ; 99 Mass. 395; 18 Wis. 75 ; 111 Mass. 508 ; 11 N. Y. 375 ; 42 Iowa, 083.
    The defendant was a banking institution, engaged in the business of a bank, receiving deposits, paying checks, discounting notes, etc. Bouvier, Law Diet, verbo Banks ; Morse on Banks and Banking, p.. 38 ; Burroughs on Taxation, p. 653 ; 3 Wall. 495 ; 17 Wall. 109.
    The privilege asked for should be recognized. Acts of 1870, Ex. Sess. No. 7, sec. 20 ; 27 An. 370.
    Bayne & Renshaw, Hudson & Fearn, and Robert Mott for defendant and appellant:
    First — That as the corporation and all its assets are in the hands of receivers duly appointed by the Circuit Court of the United States,, all claims, by creditors for money and for priority of rank, should be settled in that court; and that the exception to jurisdiction should be sustained, and if plaintiff has any claim, it should be transferred to the United States Court.
    The rule is universally recognized that where the receiver has been appointed, and the Federal courts have acquired jurisdiction, the State courts will not interfere or omertain jurisdiction affecting the assets of the partnership or corpora'ion, and it is equally true that the Federal courts will not interioro when the State courts have acquired jurisdiction. See High on Receivers, see. 50, et seq., where all of the authorities are collected. 20 Howard Rop. 583.
    Where syndics are appointed for insolvent estates, or where assignees-are appointed in bankruptcy, the courts in which such proceedings are taken have exclusive jurisdiction, as in probate courts, where claims for money are made against successions.
    Second — That the ordinance does not, in its terms, embrace the,New - Orleans Savings Institution, which is not a bank nor a banking company, and that this construction has been acted upon by plaintiff since the incorporation, and that it is neither legal nor equitable that the money held by the receivers, and which belongs for the most part to persons-who have become depositors since the alleged tax accrued, should now be claimed by plaintiff. 96 U. S. 394, (6 Otto).
    Third — That there can be no lien upon any present sum of money in the hands of the receivers, and that there is no evidence thatsueh fund, if any exists, constitutes any portion of the personal property of defendant .in 1870, or in any year following to 1878.

      Fourth — That if there is any privilege and pledge, it must be established in the forum in which the assets are administered contradictorily with creditors there, and if there is no privilege and plaintiff has any claim as an ordinary creditor which is denied the pro rata to ■which they may be entitled, can only be determined in the United States Circuit Court.
   The opinion of the court was delivered by

Levy, J.

On the 30th of December, 1878, the city of New Orleans instituted suit in the Third District Court of parish of Orleans, in which the plaintiff seeks to recover of the defendant, the New-Orleans Savings Institution, the sum of nine thousand dollars in the aggregate, being the annual license-tax, at the rate of $1000 per annum for the nine years from 1870 to 1878 inclusive, alleged to be due by rhe defendant for carrying on a banking business in said city during said years. Plaintiff claims legal interest on the several items from the 28th of February of each year for which the license is charged, and prays for recognition of privilege and right of pledge on the personal property of defendant to secure the amount sued for.

The defendant filed an exception to plaintiff’s petition, on the ground that the New-Orleans Savings Institution is not a bank, banking house, banking company, or banking agency; that it has no capital, nor capital stock, nor stockholders, and is not liable to the tax and license sought to be imposed. This exception was ordered to stand as an answer.

After the institution of the suit, the New-Orleans Savings Institution was placed in liquidation, and by order of the United States Circuit Court, of the 31st of March, 1879, J. H. Oglesby and W. C. Black were appointed receivers. The case was fixed for trial on the 19th June, 1879, and on that day counsel for the defendant suggested to and informed the court of, and offered in evidence the order of the United States Circuit Court appointing the receivers, whereupon the plaintiff insisted upon the trial of the case at that time, but the court, considering that under the circumstances the receivers were necessary parties to the suit, declined to order the trial to continue, and counsel for plaintiff excepted and reserved a bill of exceptions to the ruling of the court, and under protest, proceeded to make the receivers parties to the suit. The receivers were then, on motion of plaintiff’s counsel, ordered by the court to be made parties ; and on the same day, the receivers by their counsel entered an appearance, and afterward filed exceptions to the jurisdiction, on the ground that the Third District Court had no right to proceed with the case, because the United States Court had the possession of the said defendant, its assets and effects, and was administering the same and liquidating its affairs, and they prayed for the dismissal of the suit. The exception of the receivers was overruled, and there was judgment in favor of the plaintiff and against the defendant, represented by said receivers, for the amount with interest as claimed in the petition, and costs of suit, with privilege and right of pledge on the personal property of the corporation, defendant. From this judgment the receivers have appealed.

The first question for our decision is : Are the receivers properly before the court ?

They contend, that being appointed by, and officers of the. United States Circuit Court, and having possession of the defendant, its assets and effects, and administering the same, and liquidating its affairs,” the State courts have no right to bring them within their jurisdiction, without first obtaining leave of the United States Court. It seems to be a settled doctrine that a State court is not prevented from entertaining an action and rendering judgment against a receiver appointed by a Federal court, but only from interfering with his possession or from enforcing the judgment in the State tribunal. High on Receivers, sec. 60.

In section 258 the same author says: “ But it is to be observed, with reference to actions already begun against a debtor, of whose affairs a receiver is subsequently.appointed, that the receiver can have no status in court until he has become a party to the action, the proper course, if he desires to be made a party, being to apply to the court for that purpose ; and until this is done, he cannot appear or take any action in the cause.” And in sec. 261: “ A motion to dismiss an action brought against a receiver, upon the ground that leave of the court was not first had before beginning the action, is waived by the appearance of counsel for the receiver, such appearance being an admission that the defendant has been regularly brought into court. Want of permission, therefore, to bring the action cannot be urged as a ground for dismissal after such appearance on the part of the receiver.”

In this case, the receivers did appear by counsel, thus waiving the necessity of first obtaining leave of their court, and were, therefore, properly before the Third District Court in this cause.

The next question presented for our consideration and decision is: Is the New-Orleans Savings Institution liable to the license-tax imposed by the city of New Orleans, and sought to be recovered in this action ? The defendant denies such liability, and avers that the institution is not a bank, banking house, bankingcompany, or banking agency ; that it has no capital, nor capital stock, nor stockholders.

Under its charter, the New-Orleans Savings Institution is authorized to receive on deposit, from all persons, all sums of money from one •dollar upward, and to payout the same by check or otherwise, for which sums o£ money interest shall be allowed. The investment of the funds is limited to the purchases of certain bonds, etc., and to loans upon pledge of these securities, and loans secured by mortgage upon unencumbered real estate within the city of New Orleans. The board of trustees is authorized to regulate the rate of interest on deposits, the depositors to receive ratable share of profits, after deducting neces'sary expenses, etc.

While not combining all the powers which may be exercised by banks, it seems to us no matter by what name it is designated, and although not invested with all the faculties which may attach to banking corporations, that it is a bank of deposit, receiving deposits, paying interest thereon, investing those deposits which are placed in a common fund, making loans, and from time to time distributing its profits ratably among the depositors, in the form of interest upon their respective deposits. To our mind this constitutes a banking business, and renders it liable to the payment of the tax imposed by the city of New Orleans under its ordinances, on “ banks, banking houses, banking companies, or banking agencies.”

Morse on Banks and Banking, p. 38, gives the following definition of banking: “ The business or employment of a banker, the business of establishing a common fund for lending money, discounting notes, issuing bills, receiving deposits, collecting the money or notes deposited, negotiating bills of exchange,” etc.; and “to constitute an individual a banker, he need not combine all these functions ; the exercise of any one of them would suffice.”

In 3 Wallace, 507, Justice Clifford, who rendered the opinion of the court says: “ Banks in the commercial sense are of three kinds, to wit: 1st, of deposit; 2d, of discount; 3d, of circulation. All, or any two, of these functions may and frequently are exercised by the same association ; but there are still banks of deposit, without, authority to make discounts or issue a circulating medium.”

In 17 Wallace, 118, the same learned justice says : “ It is quite clear that the pass-book furnished to the depositor performs the same office as the certificate, check, or draft as between the person making the deposit and the bank,” and in regard to the operation of the United States Revenue act of 1866, taxing banks, banking companies, etc.: “ Savings banks which receive deposits and lend the same for the benefit of their depositors, if the bank is under obligations to repay the'amount when demanded, agreeably.to their by-laws and charter, whether upon check, draft, or certificate of deposit, are engaged in the business of banking, within the meaning of the body of the section imposing .the tax, though the bank has no capital stock, and does no, other business pf banking.”

As to the privilege and right of pledge on the personal property of the corporation claimed by the plaintiff and awarded in the judgment ■of the court a qua, there is no evidence in the record of its registry as required by law. 30 An. 1365.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by striking out the recognition of the privilege and right of pledge on the personal property of the eorpora•tion, defendant, and that in all other respects the said judgment be affirmed; and that the appellee do pay the costs of this appeal, and the appellant do pay the costs in the lower court.

Rehearing refused.


author: Poché. J.

text:
    No. 6443.
    Paradise & Bro. vs. Ben Gerson.
    it is a well-established principle of our jurisprudence, that the addition of a new member to a commercial partnership, creates a new firm, with distinct rights and liabilities; and that the latter is not responsible for- the debts of the former partnership, unless it has made itself so.
    Verbal evidence is not admissible to prove that the new partnership has promised to pay a debt of the former, which is clearly a third party.
    ^PPEAL from the Sixth District Court, parish .of Orleans. Saucier,

    E. H. Farrar for plaintiffs and appellants :
    'The debts and affairs of an individual member of a firm are entirely separate and distinct from the debts and affairs of the firm itself. The corpus societas is a legal entity, entirely distinct from each of its members. 4 M. 378 ; 11 M, 429 ; 2 La. 84; 9 Rob. 196 ; 7 La. 337 ; 14 An. 497 ; 22 An. 443 ; 10 An. 479.
    Parol testimony is inadmissible to prove the promise of a commercial firm to pay a pre-existing debt of one of its individual members.
    Cotton & Levy contra:
   The opinion of the court was delivered by

Poché. J.

Plaintiffs, a commercial firm, composed of Aaron Paradise and Bella J. Paradise, sue Ben Gerson on a balance of account of ■ '$1801 54.

As far back as the year 1871, Aaron Paradise, a merchant in Issa-quena county, Mississippi, began dealing with defendant, Ben Gerson, a commission merchant in this city, and continued down to the beginning of November, 1873, when Paradise formed a commercial partnership with his sister-in-law, Bella J. Paradise, under the name and style of Paradise & Bro. Through his brother, Jonas Paradise, who had' previously acted as his agent, and subsequently as the agent of the new firm, Aaron Paradise notified Gerson of the change of the firm, and .requested him to keep his accounts in the future with Paradise & Bro. .From that date all accounts were made by Gerson, and all correspondence addressed by him, sometimes to A. Paradise & Bro., but more fre■quently to Paradise & Bro.

In defense, Gerson filed two exceptions, in which he urged that he had .never had any dealings with the commercial firm of Paradise & .Bro., composed as set forth by plaintiffs; that his dealings had been ■with A. Paradise, of which firm Jonas Paradise was a dormant partner, and after November, 1873, with Paradise & Brother, a firm composed of ■■the same two brothers, with Jonas Paradise as an active partner ; and ■charging, further, that said firm of A. Paradise, continued as Paradise & Bro., waS indebted to him on a final balance of account in the sum of $1578 22.

On motion of plaintiffs’ counsel, the exceptions were referred to the merits.

The judgment of the lower court was in favor of defendant, reject-* ing plaintiffs’ demand and dismissing their case, and plaintiffs have appealed.

To reach a correct solution of this case, we must first determine -two questions of fact, as follows :

1st. Who composed the firm of A. Paradise ?

2d. Who composed the firm of Paradise & Bro.?

Defendant maintains that Jonas Paradise was a dormant partner of A. Paradise, and relies upon his own testimony, and that of his son, George Gerson, of J. M. Gould, and of the latter’s clerk, David David-son. The substance of their testimony is that the acts and sayings of Jonas Paradise impressed them with the idea that he was such a partner; but that his name was not allowed to figure in the firm by reason of his insolvency.

On the other hand, Aaron Paradise, Bella J. Paradise, and Jonas Paradise swear positively that Jonas never was a partner of Aaron, but ■acted under a general power of attorney in the management of his business ; and their testimony is corroborated by a stipulation in articles of partnership between Aaron and Bella Paradise, enacted on November 1, .1873, to the effect that Jonas Paradise had drawn from Aaron Paradise the sum of $865 06 for balance due on his wages.

We therefore conclude that Aaron Paradise alone composed the firm of that name.

2d. The evidence is equally conclusive on the second point, that the firm of Paradise &’ Bro. was composed of Aaron Paradise and of Bella J. Paradise; articles of partnership were executed between them' on November 1,1873, and due notice of the change of the firm was given to defendant, Gerson. True, this act was only recorded in July, 1874, but no law requires the registry of articles of partnership, and defend^ ant himself contends on another point, and correctly, that a commercial partnership can be proven by parol testimony. 17 An. 9.

Now Gerson, in his testimony, admits that all the business transactions between him and the firm of Paradise & Bro., from November, 1873, to May, 1874, when their relations were interrupted, left him in the firm’s debt for $1801 54, but he claims that by a continuous account between him and A. Paradise, from 1871 to 1873, and with Paradise & Bro. from thence to 1874, makes him a creditor for $1578 23. In other words, he seeks to ignore the change of partnership in 1873, or to hold the-new firm responsible for the liabilities of the previous partnership. Perhaps no principle of our jurisprudence is better established*than the reverse of defendant’s pretension. A commercial partnership cannot be held liable for the debts contracted by a previous partnership to which it has succeeded, nor for any debts previously contracted by. any individual member of. the partnership. The same* principle applies to a partnership to which a new member is added. The firm is thereby changed ; it becomes a new one with different parties, interests, and liabilities ; the component parts of the firm are distinct beings from the firm, as well as from each other, and their rights and liabilities must be tested and adjudicated accordingly. 10 An. 482 ; 19 An. 290.

The new firm did not, therefore, become liable for the debts of the firm of A. Paradise due to Gerson, unless the same were specifically assumed by them. Defendant attempted to prove such an assumption by his testimony and that of his son, reporting conversations with Jhnas Paradise on the subject. Plaintiffs objected to the introduction of such evidence, as being forbidden by sec. 3, art. 2278, C. 0. Their objections were overruled, and they reserved two bills of exception, which are in the record. The lower court erred in admitting parol testimony to prove the promise of the firm of Paradise & Bro.-to pay the debts of the firm . of A. Paradise, who was already a third party. 26 An. 512.

Outside of that testimony, we find no evidence in the record to support defendant’s plea, and we conclude that plaintiffs are entitled to their judgment.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed, and that plaintiffs recover judgment of the defendant, Ben Gerson, in the sum of eighteen hundred and one 54-100 dollars, with interest of five per cent per annum from judicial demand until paid, and costs in both courts.

Behearing refused.


text:
    No. 6312.
    Adolphe Bouchard vs. E. T. Parker, Public Administrator.
    An action against a succession, for the recovery of movable property or of a fund susceptible» of identification, is an action of revondication, which might not be defined to be a real action, but is closely allied to it.
    In the parish of Orleans, a court of ordinary jurisdiction, and not the Second District Court,, has jurisdiction of such an action.
    A judgment of the Supreme Court of tlio United States, rendered on appeal from the Court of Claims, constitutes res judicata in the courts of Louisiana, in a suit between the same parties, who were claimants against the United States, when said suit presents the same issues that were raised by the parties inter sese in the Federal Court.
    ^PPEAL from the Fifth District Court, parish of Orleans. Oidlom»
    M. C. Dunn and Ellis & EUis for plaintiff and appellant:
    The suit brought in the Court of Claims and decided on appeal by the Supreme Court of the United States was against the United States, • and was brought on a tort. The present suit is against the representative of Elgee’s estate, and is based upon a contract. The parties are not the same, the cause of action is not the same, the object of the suit is not the same. Not one of the elements of res judicata can be found in plaintiff’s demand.
    The Court of Claims could have no jurisdiction, under the Constitution of the United States, to decide inter se the rights of this plaintiff and this defendant, who are both citizens of Louisiana, and the courts of this State should take cognizance of this fact • and decree accordingly.
    This suit is not a probate cause, and the Second District Court for the parish of Orleans has no jurisdiction. It is a suit of revendicatiort of movable property ; the question is one of title to property; the parties are entitled to a jury, if they ask for it; it is in fact a real action, and the case can only be decided by a court of ordinary jurisdiction. On the subject of revendication of movable property by the real action, see Pothier, vol. 8, p. 237, g 1, sec. 282. Also, Bon-jean, Traité des Actions, vol. 2, p. 66, \ 275.
    John Finney, Henry C. Miller, and Branch It. Miller for defendant and appellee:
    The Supreme Court of the United States has finally settled the rights of the parties to this suit, on an appeal from the Court of Claims. The plaintiff is distinctly attempting to revive in the Louisiana tribunals a litigation closed by judgment of said Supreme Court of the United States, and to put again in issue the title adjudged by the same decree to be no title. The plea of res judicata should¡clearly prevail.

      Plaintiff’s demand is one for money against a succession, and the Second District Court for the parish of Orleans alone has jurisdiction, by special statute.
    Moreover, the fund claimed being already under the control of the same . Second District Court, no other courts can adjudicate upon it. 6 Wall. 166 and 196 ; 20 How. 583 and 595 ; 1st Kent’s Comm. 12th ed. 1st l, p. 410, note at foot.
   The opinion of the court was delivered by

Todd, J.

The plaintiff brought suit in the Fifth District Court of the parish of Orleans, claiming the proceeds of 572 bales of cotton. It was alleged in the petition that the cotton originally belonged to the late John K. Elgee,'was sold during the late war by Elgee’s agent to O. S. Lobdell, and by virtue of subsequent assignments the plaintiff became entitled to the proceeds of it. That the cotton was seized by the United States forces in 1864, sold, and its proceeds paid into the treasury. That suits were instituted before the U. S. Court of Claims by Woodruff & Co., of whose rights plaintiff was the assignee, and by the executrix of Elgee’s estate for these proceeds, and that the Court of Claims had decided in favor of Woodruff & Co.; but that, subsequently, this decision had been reversed by the Supreme Court of the United States, whose decision was that the funds belonged to Elgee’s succession, and which funds at the time of bringing the present suit were, it was alleged, in possession of E. T. Parker, who was administrator of the succession of Elgee.

Defendant pleaded the exceptions of res judicata, and want of jurisdiction in the Fifth District Court to entertain the suit ratione maierice, and alleging that the Second District Court alone had jurisdiction of such a suit.

The exceptions were, by consent, tried together, and were sustained, and the plaintiff has appealed.

We presume that the agreement for the'trial of the exceptions both of res judicata and as to the jurisdiction was made .from a disposition of the parties litigant to terminate the controversy. The proceeding is somewhat anomalous in a court deciding that it had.no jurisdiction of the cause and then exercising jurisdiction by deciding the plea of res judicata. If the court had no jurisdiction, the only legitimate order it could have rendered would have been to dismiss the suit.

From the view we have taken of the case it becomes necessary that we should review the decision on both the legal points involved.

We do not consider the exception as to the jurisdiction well taken. Had the suit been brought for the cotton itself, there is no question but that it would have been properly brought in the Fifth District Court. The suit is not for the cotton, but to recover its proceeds. Had these proceeds, after the sale of the cotton, been passed into the treasury of the United States and been mingled indiscriminately with the funds in the treasury, and the amount of the same, if in money, subsequently paid over by the United States to the legal representative of Elgee’s succession, so as to render it impossible to identify the particular fund arising from the sale of this cotton, then it would present the question whether plaintiff was a creditor of that succession on account of the conversion or withdrawing of money to which he was entitled. For the purpose of this exception, however, we must take as true the allegations of the petition, which are in substance, that the cotton was sold at public auction and the proceeds applied and invested in interest-bearing bonds of the United States. It is, then, a suit not for so much money, alleged to be owing by the succession of Elgee, but for the recovery of this fund, or these bonds representing it, and which are presumed to be easy of identification. Now an action of this kind, although. it might not be defined to be a real action according to the definition of our Code of Practice, since a real action proper, by the terms of the Code, would seem to be confined ‘to suits for the recovery of land or a real right, yet it is a species of action closely allied to such action, and fully recognized in the French jurisprudence, from which we derive our system of practice.

Thus, Pothier, vol. 8, p. 237, g1, sec. 282, says : “ Quelles choses peuvent étre l’objet de Taction en revendication ? Toutes les différentes choses particuliéres, dont nous avons le domaine de proprióté, peuvent étre objet de Taction de revendication, les meubles aussi bien que les immeubles.” See, also, Bonjean, Traité des Actions : “ II semble done qu’on pourrait definir Taction réelle, celle qui repose sur la violation d’un jus in reTet Taction personelle, celle qui fepose sur la violation d’un jus ad rem.” This is an action founded evidently upon an alleged jus in re, an action of revendication.

The plea to the jurisdiction should, therefore, have been overruled.

"We come next to the plea of res judicata.

Article 2286 of the Civil Code declares : “ The authority of the thing adjudged takes place only witn respect to what was the object of the judgment. The thing demanded must be the same ; the demand must be founded on the same cause of action ; the demand must be between the same parties, and formed by them against each other in the same quality.” As more tersely expressed : Eadem res, eadem causa, eadem conditio personarían.

The thing demanded before the United States tribunals was the fund arising from the sale of the cotton sued for in this case ; the cause of action was the alleged sale from Elgee of the cotton in question, which is also relied on in this suit as the basis or origin of plaintiff’s .right to the proceeds of the same; the demand is between the same ¡partiesfor Woodruff & Co. were the assignors to plaintiff of their rights in the cotton, derived originally from the alleged sale, and was likewise a member of the firm of Woodruff & Go., and the effect of res ljudicata has always been held to extend to the successors of the aijant ■cause, the assignees of the parties, and all those who claim through, them, 8 An. 126 ; and the quality or capacities of the parties are the same, the succession of Elgee being represented in the United States •courts by its executrix, and in this suit by its administrator.

It would seem from this statement that the facts and issues recited would present a complete and perfect case of a thing adjudged, and support fully- the plea urged.

It is, however, contended by the counsel for the appellant, that in the proceeding before the United States courts there was no issue joined between the parties inter sese by interpleader or otherwise, but that (Separate suits were instituted by Elgee’s succession, and by the plaintiff’s firm of Woodruff & Co. against the United States to test the right •of each party as against the United States to the funds in question.

We find, however, from an examination of those proceedings, that these separate suits were consolidated and tried together, and but one, .judgment rendered in the matters at issue therein. This action of the «court necessitated a trial of the respective rights of the two claimants to the fund in controversy. If it decided that the United States was without right to the fund, it was necessarily compelled to decide to which one of the claimants it did belong. A decision that it belonged •to the succession of Elgee excluded by necessity the idea or claim that it belonged to Woodruff & Co. And although the issue between the contending claimants may"not have been joined, and the pleadings con-' ducted according to the practice of our courts, yet from the very nature and circumstances of the case the issue was made and tried, and it is to toe presumed that every opportunity was afforded to the rival contestants ■to establish their respective rights.

To ascertain what was decided in the Supreme Court of the United States, with a view to determine the bearing of such decision upon the ■question before us, we must look to the record of the Court.

This is the statement of the case we find : “ Appeals from the Court ■of Claims, in which the representatives of one Elgee claimed the net proceeds in the treasury of the United States of the sale of certain cotton, under what is known as the captured and abandoned property act; the right of said Elgee being disputed by a firm of Woodruff & Co., and also by a certain Mrs. Nutt, executrix of one Haller Nutt, M. D., both of which parties claimed adversely to Elgee and to one another.”

And, again, we quote from the 'decision : “The fundamental ques-Hon, in all' the cases, is, whether Elgee parted with the ownership, by -either of the contracts under which the different parties claim.”

Be it noted, that Woodruff & Co. in that proceeding relied on the •same contract to establish their claim that is made in this suit the basis ■of their demand.

And, again, the Court say : “ We are then to inquire whether either Woodruff & Co., or Haller Nutt, had acquired the ownership of the cotton prior to its seizure by the agent of the United States ; for if either of these parties had become the owner and entitled to the proceeds of its sale before that date that party is .entitled to a judgment for the samé remaining in the treasury after the deductions are made provided by the statute. If, on the other hand, neither of those parties has shown that Elgee parted with his title; if the ownership .remained in Elgee until after the seizure and until his death, his representatives are the •only persons that are authorized to sue for the proceeds of the cotton ■in the Court of Claims, for they only are the owners, whatever equities anay exist in favcr of the parties who contracted to buy.”

And again: “In our judgment, therefore, the contract of July, 1863, ' •contract under which Woodruff & Co. claimed in that proceeding, and the plaintiff in this, must be regarded as only an agreement to sell, and •not as affecting a transfer of the ownership. It left the property of Elgee where it was before.”

* * * * * *

" This disposes of the whole case. The property in the cotton was in Elgee, and neither of the contracts proved divested him of his ownership. The result is that his personal representatives are entitled to a .judgment for the entire proceeds of the cotton held in trust for the •owner.” 22 Wall. 180.

It will be seen from the above quotations that the identical question presented by the pleadings in this case for decision was before the United States Supreme Court, and was by that Court expressly and ■finally decided.

It is, however, contended, that the Court of Claims had no jurisdiction of the case, because it was a matter of controversy between citizens of the same State, and we are asked to decide that the Supreme •Court of the United States rendered a final judgment in a case in which It had no jurisdiction, and to treat its decision as an absolute nullity. The plaintiff not only submitted to the jurisdiction of the Court of ■Claims, but provoked it, made no objection, so far as the record dis- ■ closes, when the different suits were consolidated and the issues between the contesting parties tried together, and one judgment rendered in the ■ease. It is admitted that the court had full and complete jurisdiction ¿as between the claimants and the Federal Government; it then became, as we have shown above, an incident, a necessity, in the exercise of this-acknowledged jurisdiction to determine the question of right between these contesting claimants. Besides, it is well settled that when a court has no jurisdiction of a ease ratione materice, and the ease is appealed,, the appellate court is bound to notice proprio motu this want of jurisdiction and dismiss the suit. In this instance the Supreme Court of the United States not only did not so declare a want of jurisdiction, but exercised jurisdiction by deciding every issue involved in the case, and the-judgment thus rendered is, therefore, as conclusive upon the question of jurisdiction as upon any other point determined, and its decision upon, this question, thus given, is binding on us.

• The plea of res judicata was therefore well taken and properly-maintained.

It is therefore ordered, adjudged, and decreed that the judgment of' the lower court be affirmed with costs.

Rehearing refused.


text:
    No. 7837.
    James Horace Ducoté vs. Louis V. Grémillion.
    In a contestation for office, under the provisions of Act No. 24 .of tbe Legislature of 1877, the» plaintiff must file with his suit a “petition signed by at least twenty voters of the parish,, praying the court to examine the facts and decide thereon. ”
    This requirement of the law is imperative, and a certified copy of such a petition (the original of which was filed by the same plaintiff in another suit), will not support his case.
    APPEAL from the Seventh Judicial District Court, parish of Avoy-elles. Yoist, J.
    Olivier O. Provosty and L. J. Ducoté for plaintiff and appellant:
    A certified copy of the petition of twenty voters, required by Act of' 1877, the original of which is filed in another suit between the same parties, fulfills entirely the, purpose of the law. The objection to-the copy of such a petition is purely technical. All that the statute-requires is that the election of public officers should not be contested on frivolous grounds, and that there should be before the-court evidence of the gravity of the facts upon which the contest is based, as a prerequisite of the plaintiff’s suit.
    Thomas Overton, A. B. Irion, Frith & Edwards, and H. 0. Edwards-for defendant and appellee:
    The law of 1877, which requires that a petition of twenty voters at least, should be filed with plaintiff’s suit for the contestation of a public-office, is sacramental and imperative, and should be strictly observed. The proceeding is one of public order, and the required petition is the very basis of it. No substitute in the shape of a. copy can support the plaintiff’s suit. 5 An. 733.
   The opinion of the court was delivered by

Poché, J.

This is a contest for the office of clerk of the district-, court for the parish of Avoyelles.

At the general election held on the 2d December, 1879, the parties-to this suit were competing candidates for that office, and defendant Grémillion was returned as elected.

Plaintiff Ducoté, complaining of irregularities, frauds, and other illegalities alleged to have been perpetrated at the election, in the interest of his opponent, and which, he alleges, changed the result of the election, instituted a suit in contest on the 10th of December, 1879 ; and, subsequently, on the 27th of January, 1880, he filed another petition in the same court, on the same cause of action, and containing substantially the same allegations, which suits numbered, respectively, Nos.. 6059 and 6064 on the docket of the district court.

In the first case, defendant filed an answer and general denial.

In the second suit, he filed an exception, in which he urged the following grounds for the dismissal of the action:

First. The pendency of another suit, before the same court, between the same parties, for the same object, and growing out of the same cause of action.

Second. That the allegations of the petition are too vague and! indefinite.

Third. That the petition is not accompanied by a petition of voters,, joining in the contest, as required by law.

Fourth. That the petition discloses no cause of action.

Fifth. That, from the allegations of the petition, it does not appeal" that any voters offering to vote were hindered from so doing.

The second case alone was tried, the exception was maintained, and the cause was dismissed by the lower court, on the ground that the-petition of voters, annexed by plaintiff to his petition of contest, was not signed by the voters themselves, as the law requires ; from which judgment plaintiff prosecutes the present appeal.

It appears from the evidence that the petition of voters presented by Ducoté, with the second petition filed by him, was not, and did not; even purport to be, signed by the voters in whose name it was presented,-but was merely a certified copy of the petition of voters filed in-the suit instituted on the 10th of December, 1879.

Therefore, in the case at bar, plaintiff’s petition of contest was not accompanied by •“ a petition signed by at least twenty voters of the parish, praying the court to examine the facts and decide thereon ; ” as is imperatively required by . law in Act No. 24 of the Legislature, ap-pro ved March 1st, 1877. The voters who signed the petition which was filed with the first suit, No. 6059, did not, and could not in law, contemplate the use of the same in a subsequent contest, and non constat that these voters, or the required number of other voters, would have signed a petition for use in the second suit. It follows that plaintiff’s action lacks a vital element, the omission of which is fatal to his cause.

This view of the case precludes the necessity of passing over the other grounds of exception urged by defendant.

It is therefore ordered, adjudged, and'decreed that the judgment "of the lower court be affirmed with costs.


text:
    No. 7863.
    State ex rel. C. J. Leeds vs. Judge Third District Court, Parish of Orleans.
    In a suit “brought against the husband on anote drawn by the wife and signed by him only for the purpose of authorizing her, though the notéis given for the price of property purchased in the wife’s name during the existence of the community, it cannot, with any plausibility, be pretended that the action is brought upon an unconditional obligation to pay a sum of money; and the defendant may be entitled to a jury without making oath as required by art. 494, C. P.
    The legal presumption that the purchase is for account of the community, and even the fact that the husband has assumed the debtof the wife, do not change the rule in that respect.
    Application for mandamus.
    B. R. Forman for relator :
    The relator is entitled to a mandamus from the Supreme Court to compel the judge of the District Court to try a case in which the defendant has no right to a jury. Const, art. 90 ; C. P. art. 829, 830, 831.
    The suit is upon the note of defendant’s wife and himself, given for the price of property purchased in her name during the existence of the community. The debt is, therefore, his own. C. C. art. 2402, 2398 ; 29 An.'75 ; 10 La. 148 ; 9 Rob. 210 ; 12 An. 598 ; 19 An. 206.
    Besides, defendant has assumed the debts of his wife.
    This suit is, therefore, upon an unconditional obligation to pay money, and defendant is not entitled to a jury, because he has not made oath according to art. 494, C. P.

      Kennard, Howe & Prentiss contra :
    Defendant is not sued upon an unconditional obligation to pay a sum of money, and is entitled to a jury without making oath as required by art. 494, O. P.
    He only signed the note sued upon in order to authorize his wife in the purchase of property made for her own account.
    The presumption that all purchases during the community are for its account can be rebutted. 8 An. 286 ; 30 An. 167 ; 1 Rob. 367.
    If defendant were liable in this case, his liability would arise, not from his signature placed on the note only to assist his wife, but from the operation of the law. *
    Defendant’s assumption of his wife’s debts, which is not binding upon him, because made by attorneys without special power to m'ake it, . was only an assumption of community debts, and not of her separate debts. If there is a doubt in the mind of the court, the trial by jury should be allowed. 3 An. 197.
   The opinion of the court was delivered by

Bermudez, C. J.

The relator applies for a mandamus to compel the District Judge to pass alone on a case which he refuses so to try and which he has, at the instance of the defendant, ordered to be submitted to a jury.

The suit to which reference is made was brought against R. E. Rivers, to recover from him the amount of a note drawn by Ms wife, with his assistance, in part settlement of the purchase-price of land in her name. With a view to fasten a liability upon the defendant, the plaintiff has substantially alleged : that the note has, for its consideration, property purchased by the wife with the consent of the husband, for account of the partnership of acquets, for the debts of which the husband alone is responsible, and that if the note be not a community debt, but be a liability of the wife, the defendant is still answerable as having, by a proceeding in her succession and otherwise, assumed to discharge all her obligations. On the other hand, the defense, besides the general issue — mainly is : that the property mentioned was not acquired for the benefit of the community, but by the wife, for herself, - her heirs, and assigns, as a paraphernal investment, and that the defendant has never assumed the payment of her individual debts. A jury was prayed for. The answer was not sworn to.

The case was placed on the jury docket. It was nevertheless assigned for trial as an ordinary court case, to be determined by the Judge alone. When it was called, objection was made by the defendant to its' being so disposed of, and a motion was offered to maintain it on the jury docket, to be tried accordingly.

The District Judge declined to decide the case alone, and continued it to be presented to a jury.

Dissatisfied with the ruling, which he considers as arbitrary, and averring a state of facts which, if uncontradicted successfully, might have militated to entitle him to a trial by the Judge alone, the relator charges a denial of justice, and invokes the power of this court for the enforcement of what he deems to be his right.

In answer to the rule on him, the District Judge has made a return which fully justifies his conduct.

It cannot, with any plausibility, be pretended that the note described in plaintiffs petition, drawn by the wife, with the husband’s authorization, apparently given for the solitary purpose of assisting her, is, on its face, an. unconditional obligation to pay money ; nor can it be claimed that the document by which it is averred that the defendant has bound himself to pay the debts of his wife brings the case within the same class of obligations. It is not apparent from its tenor that such an assumption was made.

It may well be, when the suit shall be tried, that the plaintiff will assert, and endeavor to establish, that, under the features of the case, the wife could not and did not acquire the property as a paraphernal asset; or, that the defendant will insist and prove by evidence, dehors the act, that the land was purchased by the wife for her separate advantage, and that she and her estate are alone liable for the payment of the price of sale claimed of him'. Those will be matters of fact and of law, upon which we studiously avoid expressing any opinion presently, but it is not until the case shall have been fully developed that the nature of the demand can be well determined.

^the presumption that the property was acquired for account of the cominunity, does not of itself make the note drawn by the wife, with the assistance of the husband, an unconditional obligation of the latter. That presumption may be rebutted by extrinsic evidence, by a wife, by her heirs, and even by her husband, when sought to be held responsible for a purchase-price which they might deny owing, as well as when the property is claimed as a separate asset of either the wife or the husband; or, they may signally fail in such an attempt.

When the proper time shall have come, the plaintiff may prove that the defendant has assumed to pay the debts of his wife, but the husband may overbalance and annihilate the evidence and propositions as named against him, and show that he has never, directly or indirectly, undertaken the payment of the note in question.

The theory of plaintiff’s case appears clearly to be: that if the land purchased was acquired for account of the community ; or, if the note be a debt of the wife, and was assumed by tlie husband, he, the plaintiff, will be entitled to recover from the defendant, ¿Rivers, the amount of the note and the other sums set forth in the petition.

The ease presented by the relator is, therefore, not a suit on an unconditional obligation to pay money, and the defendant was not required to take any oath in order to have it tried by a jury.

The apprehended inconveniences or injury, whether founded or not, consequent upon the delay to which the relator may be subjected by a trial of the case by a jury, are entirely foreign to the issue now presented, and must be left out of view.

It is wisely provided by law, that whenever parties desire to have their differences adjusted rather by a jury than by a judge, sitting by himself, they will, as a rule, on application, be entitled to that privilege. They cannot be refused such valuable right, unless the denial is clearly justified. There exist, no doubt, some exceptions to the provision, but the complexion of the cases thus taken out is not to be mistaken.

The legislator intended, for reasons of easy understanding, that cases based upon unconditional obligations to pay money should be tried speedily, without .the intervention of a jury, but at the same time he was directed that the liability on obligations apparently unconditional, can, in given instances, be referred for decision to a jury, provided proper averments in the answer be verified by affidavit

Article 494 of the C. P. refers to the trial of suits founded upon unconditional obligations. The averments of the petition against Rivers, accompanied as they are by the note, a copy of the act of sale with which it is identified, and the petition in the mortuaria of Mrs. Rivers’ estate, impress upon the proceeding the physiognomy of an action predicated upon conditional, alternative, and antipodal considerations. The relator is not entitled to the relief asked.

It is therefore ordered that the application for a mandamus be refused with costs.

Mr.-Justice Fenner recused himself in this ease, having been of counsel in the matter of the succession of Mrs. Rivers.


text:
    No. 6450.
    Dr. C. Reid vs. Commercial Insurance Company.
    Tn a suit against a corporation, by a party wlio claims to be the owner of stock standing in-the name of another person, and alleged to have been illegally transferred on the books of the company, if the demand is for damages, it must be. based upon allegations of wrongful and fraudulent acts on the part of the defendant j and if the demand is for the recovery of the stock itself, the stockholder in whose name it has been transferred and stands is a necessary party to the suit.
    ^jPPEAL from the Sixth District Court, parish of Orleans. Saucier,

    Ellis & Ellis, H. D. Ogden, and R. R. & J. A. Reid for plaintiff and appellant.
    Singleton & Browne for defendant and appellee.
   The opinion of the court was delivered by

Bermudez, C. J.

The plaintiff seeks to be recognized as the owner of a number of shares of the stock of the defendant, entered originally in the name of “Robert Pitkin, agent,” and also to be entitled to the dividends declared thereon. His petition concludes with a prayer for such other sums as may be due him, and for general relief. His demand in this court is further, that in the event that the shares could not be returned to him, the company be condemned to pay him their value, as damages.

It is in proof that, in 1871, the stock standing in' the name of “ Robert Pitkin, agent,” was by him, in that apparent capacity, actually transferred on the books of the company to Flash & Co., who are not parties to this litigation.

It cannot be claimed that the corporation has sufficient legal mandate as such, to stand in judgment, vicariously to represent and champion the rights of the transferrees of that stock in a case, like this, in which an adverse title is set up, to their absolute exclusion, as owners of the identical shares in their name. The powers of a corporation can be exerted in favor of its members only, ut universi and not id singuli. The corporation is their collective mouthpiece; but, for the protection of their individual interest in 'the concern, they must look to themselves. It is only in extreme cases, where, for the purpose of shielding itself from injury, it being impracticable to bring into the conflict those whose interest is at stake, that the corporation is allowed to assert and to assume to vindicate their rights, to the best of their ability.

Flash & Oo. may have defenses, of easy conception, of which the company may be unaware, which may be known to themselves alone, and which might prove destructive of the pretensions of the plaintiff; but they are not before the court, and their rights, whatever they maybe, cannot be passed upon in their absence.

The defendant had called them in warranty, but afterward disc.on-tinued the proceeding. This was certainly an intimation of want of proper parties to the plaintiff, who then undertook at his peril to prosecute his claim to judgment, without making such parties.

If the stock was properly transferred by “Bobert Pitkin, agent” (whether Dr. Beid was, or not, the occult owner of it, is immaterial), to Plash & Co., who must be treated as innocent third purchasers until the contrary is proved, the plaintiff would have no foundation upon which to rest his claim for recognition, as owner of the stock and dividends, or for the value thereof. When- sued, Plash & Co. may have to exercise some recourse against Bobert Pitkin, in some capacity, and it is not before proper notice has been given to those entitled to it, at least so far as the plaintiff may have to give it, that the differences herein set up can be finally adjusted. . - •

It is not until after the validity of the transfer has been adjudicated upon, whether contradictorily with the transferrees, or against the company alone, upon proper charges, to hold the corporation liable, that the plaintiff can be heard to claim from the company, in the shape of damages, the value of'the shares and the amount of the dividends, of. which he complains to have been illegally dispossessed by the tolerance or hurtful derelictions of duty on the part of the defendant.

The plaintiff was, perhaps, authorized to ask, in the form in which he did, in' the same proceeding, the stock and the dividends, or their value, but, technically, it may be that he should have done so more specifically by averment and by prayer, in the alternative, and this, too, distinctly, as against each of the proper parties. If the stock passed from “Bobert Pitkin, agent,” to Flash ■& Co. illegally, so that the company atoare of the illegality, should not, in its capacity of custodian, have permitted the transfer to be made on the books, and the plaintiff has sustained injury, the company should be made to indemnify him ; but if the shares were legally disposed of, in a manner binding on the plaintiff, inasmuch as he could not be aggrieved by a valid act, actually or constructively sanctioned, by him, he would be entitled to claim neither the shares and the dividends, nor the value thereof.

In a case in which a stock company is sought to be held answerable in damages for permitting an illegal transfer of shares, it is essentially necessary that grave and strong charges should be uttered against it, and that it should have ample notice of such averments, and of the demand formed accordingly.

The company is justly entitled to such admonition to prepare its defense, both as to the nature of the serious charges proffered, and as to the value of the stock and dividends claimed as damages. It may well be, that a suit to that effect can be brought against a company alone, "without connecting with it the party who may have an interest to have the transfer attacked, maintained in its integrity; but in such a case it should be alleged and proved that the damages claimed were caused by 'the wrongful and fraudulent acts of the company, or-of its agents or officers, for. whose doings it is responsible. However, where a party claims to be the owner of stock, and of dividends accrued thereon, and avers merely an illegal transfer of it to others, though not originally in his name, and asks to be declared the owner of the stock and dividends, and, in the absence of any of the serious charges ’ necessary to fasten a liability on the company, the plaintiff claims as damages the value of the stock and dividends, it is clear that he cannot recover the stock as against the transferrees without making them parties to the suit, or the damages against the company without proper averments, and without a corresponding demand, as said Mash & Go. are no parties to this suit. We find no such charges, or averments, or distinct demand against the • company, and the petition against it alone, must be deemed as not dis■closing a sufficient cause of action and demand.

We have considered the authorities to which the counsel of the plaintiff has referred us : 7 M. 269 ;1 N. S. 401; 7 La. 147; 7 La. 46 ; 5 A. 646 ; 15 A. 426 ; and even that, in the succession of MeCloskey, on petition of the widow for capitalization of her legacy of an annuity, not reported, which tend to show to what extent the prayer f orgeneral relief can be amplified, to allow specific remedy, not expressly asked; but the views which we have expressed make it unnecessary for us to express an opinion as to their applicability to the case at bar.

The rulings which we have made are well sustained by authority.

In de St. Homes vs. Cotton Press, 20 A. 383, on rehearing, it was distinctly established that no judgment can be rendered in favor of one claiming to be the owner of stock standing in the name of another on the books of the company, without making such appar&nt stockholder a party to the suit. The principle would apply to one claiming to be entitled to the dividends accrued on such stock. It appears, that in furtherance of the judgment of the court in that case, the plaintiff therein subsequently brought new proceedings against the corporation, the transferree of the stock, and even against his assignees, and that the litigation finally determined in favor of the defendants. 31 A. 228.

In the. case of the Factors’ & Traders’ Insurance Company vs. the Marine Dry Dock Co., 31 A. 160, the plaintiffs, claiming to be the original pledgees and apparent owners of the stock by transfer in blank, or the certificate therefor, sued the company alone, in damages. They were permitted to do so, and to recover, on charge and proof of the commis;sion by the company of torongful and fraudulent acts, which it is unnecessary to specify, and which the court thought, justified the redress -allowed.

In the condition in which this case is submitted, no adjudication can 'be validly made by us in favor of the plaintiff, which could affect the transferrees, Flash & Co., or saddle a pecuniary responsibility on the company. In other words, the plaintiff, under the showings made, is not entitled, presently, either to recover the stock and the dividends asked, ■or the value thereof, which he claims as damages.

The judgment of the lower court, which is one of nonsuit, leaves •the door open for new action.

It is affirmed with costs.

Rehearing refused.


author: Fenner, J.

text:
    No. 7857.
    State ex rel. City of New Orleans vs. the Judge of the Sixth District Court.
    'Though, under Article 90 of the constitution of 1879, itmight be proper for this Court to compel by Mandamus a District Court to grant an Inj motion in a case clearly sufficient on the facts and involving no question of law, and in which, therefore, the District Court would be without discretion to refuse the Injunction, still, as a rule, this Court will not use the power conferred upon it by said article of the Constitution, to compel an inferior judge to grant an Injunction which he has refused according to his conscience and his understanding of the legal issues involved in the case. The remedy, in such a case, is by Appeal.
    Tor the information of members of the bar and litigants, the Court lays down, in this case, the general rules, by which it shall ordinarily be guided in the exercise of the power granted by article 90 of the Constitution of 1879.
    -ApPLICATION for Writ of Mandamus.
    Samuel P. Blane, Assistant City Attorney, for the Relator :
    First — The District Judge was in duty bound to allow the preliminary Injunction. Nos. 1,10, and 20 of sec. 1 of Art. 7, Extra Session, 1870; Burroughs on Taxation, p. 148; 30 An. 682 ; 31 An. 644, 646. '.Second — Under Article 90, Const, of 1879, the Supreme Court has the power to compel by Mandamus the inferior Court to perform an act belonging to its place or duty. C. P. 829.
    Belden & Wolfson for Defendant.
   The opinion of the Court was delivered by

Fenner, J.

In the suit of George S. Wells against the city of New •Orleans, the plaintiff, alleging that by ordinance the city of New Orleans had levied an unlawful and unconstitutional license-tax upon him, and notified him to pay the same, and further alleging that, unless restrained,, said city,-“'by suit or otherwise,” would close his place of business and< thereby cause him an irreparable injury, applied for,.and obtained from the Sixth District Court, a writ of injunction “ restraining said city from closing or interfering with his said business, at 32 Royal street, and from collecting said sum of fifteen hundred dollars as license on said business.”

In the above suit the city moved to dissolve the said injunction, which motion was denied. She then filed answer, and a plea in recon-vention, asking judgment against Wells for the amount of said license,, and further praying that a writ of injunction might issue “ restraining said Wells from continuing to carry on his said business until he shall have paid the license.” The judge refused to grant the injunction; from which order of refusal the city has appealed, which appeal is pending. The city now applies for a writ of mandamus compelling the judge to-grant the injunction.

In the return to the Writ the Judge of the Sixth District Court assigns sundry causes why the mandamus should not be made peremptory, substantially as follows:

First. That in refusing the injunction he exercised judicial power and discretion legally vested in him.

It has been twice decided that this Court would not issue Mandamus to compel an inferior judge to grant an injunction.

State ex rel. Beebe vs. Judge, 28 An. 905.

State ex rel. Padron vs. Judge, 31 An. 794.

In the last case, however, the Court says that “ articles 820 and 821, C. P., are sufficiently broad ” to authorize the writ, if the Court had not been restrained by the constitutional provision “ which declares that its j urisdiction is appellate only.” As, under the existing constitution, the same restriction does not so broadly operate, we are, perhaps, more at liberty to give effect to the- said articles of the Code of Practice; and as it has been held that in a proper case, and where the requirements of the law have been complied with, the right to injunction is absolute, and the judge without discretion to refuse it (29 An. 796, 30 An. 78), Mandamus might be a proper .remedy in a case clearly sufficient on the facts, and where no question of law was involved.

In this case, however, it is a vital requisite of the city’s right to an injunction that there should exist a valid ordinance imposing the license-tax claimed by her. Its validity is purely a question of law. We do not say that,.ordinarily, a court should raise such questions, of its own motion, on an application for injunction. But if the injunction had issued and a motion to dissolve had been made, on the ground that the ordinance under which the city proceeded was unconstitutional and void, this would be a proper motion, and, if the court held the point well taken, we think, it would be bound to dissolve. So, if the court had had the same ordinance before it in other cases, and had decided that it was null and void, it should not then allow an injunction based thereon in a new case, because this would be granting an order which it would believe to be improper at the moment of granting it, and which, it would know in advance, would be immediately dissolved.

Now, in this very case, the Court had actually granted an injunction in favor of Wells and against the City, based upon the ground that this ordinance was null and void ; it had considered and denied a motion to dissolve; and the injunction was subsisting at the very moment when the City applied for the counter injunction. Under such circumstances the Court had a right to consider the question of the validity of this ordinance as an ingredient of the question whether the case presented was a proper case for an injunction. It was a judicial question proper to be decided according to the conscience of the judge. If there be error, it must be remedied by appeal. We cannot, by Mandamus, compel him to decide differently.

It is needless to say that we have not considered at all the question of the validity of the ordinance referred to, and have not formed^ and do not intimate, any opinion in relation thereto.

Second. The judge makes return that the granting of the injunction applied for by the City would render nugatory and null the previous injunction in favor of Wells.

The propriety of the first injunction is not before us, in any shape, for revision. We are compelled to treat it as an existing and valid order’, which we have no power, in this proceeding, to reverse or cancel. If we were to issue the Mandamus prayed for, it would simply create the new injunction without canceling the first; and the lower court would be placed in the position of issuing two contradictory and coexisting injunctions in the same case.

We cannot, by Mandamus, compel the court a qua to place itself in such an anomalous position.

Third. The judge returns that, having appealed from the order refusing its injunction, the City cannot now avail itself of the remedy of Mandamus.

It is too well settled to require citations of authority, that after valid appeal taken, the jurisdiction of the district court over the subject-matter of the original controversy is entirely divested, except as to the sufficiency of the bond of appeal. We cannot by mandamus compel the District Court to reverse a judgment appealed from and thus exercise a jurisdiction of which it is divested by the appeal.

The application of counsel for the City to have the Mandamus granted under the power of “ control and general supervision over all inferior Courts,” granted us by article 90 of the Constitution of 1879, makes it proper that we should, for the information of members of the bar and litigants, lay down some general rules by which we shall, ordinarily, be guided in the exercise of this power, and wo now proceed to do so.

1. The context of article 90 makes it clear that our revisory power should only be exercised through the medium of Writs of Mandamus, Prohibition, Certiorari, Quo Warranto, and we shall accordingly so confine it.

2. The articles of the Code of Practice regulating the said several writs are broad enough to cover many cases which were excluded from the cognizance of the late Supreme Court under the provision of the former constitution declaring that the “ Supreme Court shall have appellate jurisdiction only.”' Under its interpretation of this provision, that Court held that it could only issue the Writs of Mandamus, Prohibition, and Certiorari when invoked “in aid of its appellate jurisdiction.”

Padrón vs. Judge, 31 An. 795.

State vs. Judge, 15 An. 120.

Bush vs. Head, 22 An. 459.

Also, 16 A. 164 ; 30 A. 457 ; 22 A. 517 : 25 A. 381.

We consider that article 90 emancipated us from this restraint, and that we may issue said writs in all cases covered by the provisions of the Code of Practice.

3. The Code of Practice confines the power to issue these writs to inferior judges to Courts having immediate appellate jurisdiction over such judges. Under article 90 we do not consider this Court bound by this restriction. The power of the Courts of Appeal created by the present Constitution to issue these writs is exnressly limited to cases where they are invoked “ in aid of their appellate jurisdiction.” Arts. 104 and 128. All other grounds for the issuance of these writs, even in eases appealable to those courts, as well as all cases within the non-appealable jurisdiction of inferior courts, would be without redress, unless the power were exercised by this Court.

4. In the exercise of the power in the cases above indicated, we wish it distinctly understood that we shall respect the independence of inferior courts in the determination of all questions confided to their judicial discretion, and shall not usurp merely appellate jurisdiction not conferred upon us by the Constitution. It will be useless to apply to us for the exercise of this power over inferior courts not subject to our immediate appellate jurisdiction in any case except where there is a clear usurpation of power not conferred by law, or a refusal to perform some duty plainly imposed by law, and which they have no discretion to refuse, and when there is an entire absence of other adequate remedy.

We reserve to ourselves the right to make exceptions to these general rules, in cases rarely likely to arise, where urgent considerations of public policy may demand our interference.

The case at bar does not, in our opinion, justify the exercise of this power.

The peremptory Mandamus prayed for is refused at relator’s cost