author: MorgaN, J.

text:
    No. 6207.
    State of Louisiana vs. William E. Floyd, Tax-Collector, and William Golding, Surety.
    Defendant, william E. Eloyd, tax-collector, being stfocl lor a certain amount due to the State lor taxes collected, claims a credit on account ol delinquent taxes returned by him as not collected. His right to this credit is disputed ou the ground that the list ol delinquent taxpayers was not lurnished to tho parish recorder on tho second Monday ol December, 1873, as required by law, and that tho list is not true.
    Tho delinquent list was lurnished to tho recorder on tho thirtieth ol December, 1873. This was a dereliction ol duty, but it does not involve pecuniary responsibility, lor the question at last, as betweon the State and the delendant, would not bo about tho time when tho delinquent list was filed, but what was tho amount he had tailed to account lor. This court can not impose a penalty lor tho mere delay in filing a list when tho law does not declare what that penalty shall be.
    A tax-collector is not responsible lor tho amount returned on tho delinquent tax-roll, upon the obvious principle that he owes only lor tho taxes he has collected.
    Delendant claims the sum ol one hundred and fifty dollars lor sales of real estate in tho collection ol taxes. To this ho is entitled. The sales wore made and the titles recorded. Tho Ktato claims that it has the right to determine whether it will approve the samo or not. II tlio sales are not aeeoptod, then tho taxes are due on the land; but the defendant has not received them, andhoean only ho l'orcod to pay what ho has collected. If the sales are accepted, then the taxes are paid, and the State has them in tho shape of land.
    Compensation can not be pleaded by a tax-oolloctor when suod lor taxes collected by or chargeable to him. Ho can only discharge his obligation by paying.
    The decision of this court, in tho ease oí Hennon vs. New Orleans and Carrollton Railroad Company, 20 An., pago sa, relied upon in favor ol Golding, tho surety, does not apply to the proceedings in this suit. A majority ol this court think that tho authority quoted refers to and govorns proceedings in the courts ol this city alone, where by rules ol court notice ol trial is required, and not to proceedings in the courts of the country parishes, where notice of trial is not shown to bo necessary by any rule of court.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena. Kami), J.

      Charles E. Lea, District Attorney pro iem., and Henry C. Dibble, Assistant Attorney General, for plaintiff and appellee.

      Julius E: Wilson, J. A. Addison, and Merrick, Bace <£• Foster, for W. E. Eloyd, defendant and appellant.
   MorgaN, J.

The defendant, Eloyd, is suod on an alleged balance of $4700 28 as tax-collector for the parish of St. Helena. Golding is sued as surety on his'bond.

The suit was instituted in the parish of St. Helena against both principal and surety. The proceedings commenced by rule, under the provisions of the seventy-ninth section of tho act of 1871, p. 125. The rule was fixed for hearing on the fourteenth of October, 1875, at chambers. Service was made on Golding, who did not answer. On the fourteenth of October no action was taken on the rule.

Tho court met at its regular term on tho first Monday in November following. Eloyd answered. Golding did not. No judgment by default was taken against him. Judgment was rendered against both defendants. Both have appealed, filing separate transcripts.

We will examine both records together, giving, however, separate judgments in each. . .

We will first consider Floyd’s case. He first excepted to the petition, because he had not, prior to the suit, been published as a defaulter. There is certainly nothing in such an exception to merit any notice. Ho claims a credit of $3015 on account of delinquent taxes returned by him as not collected. His right to this .credit is disputed on the grounds:

First — That the list of delinquent taxpayers was not furnished to the parish recorder on the second Monday of December, 1873, as required by law; and

Second — That the list is not true.

The delinquent list was furnished to the recorder on the thirtieth of December, 1873. This was a dereliction of duty, but it does not involve pecuniary responsibility, for the question at last, as between the State and the defendant, would always be, not when the delinquent list was filed, but what was the amount he had failed to account for, and we •can not impose a penalty for the mere delay in filing a list, when the law •does not declare what that penalty shall be.

In the case of the parish of West Baton Rouge vs. Morris, not yet reported, Opinion Book 44, p. 415, we held that the tax-collector was not responsible for the amount returned on the delinquent tax-roll, upon the obvious principle that he only owed for the taxes which he had collected. Under that decision, the defendant here is entitled to a credit for the amount of these taxes. He claims $3015 as forming the delinquent list. The amount, however, for which he claims credit is not correct; he includes in his account the poll-tax, which is not debited against him. This tax amounts to three hundred and seventy-six dollars, and must be excluded from his credits.

We also find that he has received from several parties who are returned as delinquents $118 35. This sum must be deducted from his delinquent roll.

He claims credit for nine hundred and seventy-five dollars for blank licenses not issued. But for this amount he is credited on his account. They aro not claimed against him. He received them, and they were returned and placed to the credit of his account. He can not have them deducted twice.

He is not entitled to a credit of |168 39 error, as he alleges, in the aggregate amount of taxes charged against him. Experts appointed for that purpose reported that such a discrepancy existed, but they did not take into consideration the list of non-resident taxpayers, which it should have been in the power of the defendant to produce. We think the amount charged against him correct.

He claims in his answer one hundred and fifty dollars sales of real estate made in the collection of taxes. To this we think he is entitled-. The sales were made and the titles recorded. The State claims that it has the right to determine whether it will approve the same or not. If the sales are not accepted, then the taxes are due on the land, but the defendant has not received them, and he can only be forced to pay what he has collected. If the sales are accepted, then the taxes are paid and the State has them in the shape of land. Before us he claims that the record shows sales amounting to $487 61. But he has only claimed a credit for one hundred and fifty dollars, and this is all that we can allow him. To this amount we think he is entitled to credit.

He claims a further credit of $134 80 in compensation of whatever amount may be found to be due by him. The compensation which he pleads is a certificate from the chairman of the committee of the House of Representatives that $134 80 are due him for traveling expenses as a member of a committee of the House of Representatives. The evidence was properly excluded. Compensation can not be pleaded by a tax-collector when sued for taxes collected by or chargeable to him. He can only discharge his obligation by. paying.

The account should, we think, be stated as follows; Taxes chargeable to him. $4700 28

Deduct delinquent list.$2520 65

Deduct amount of sales.-. 150 00 '

- 2670 65

Leaving a balance of. $2029 63 for which amount the State should have judgment.

Up to this point, and as to the defendant Eloyd, we are all agreed. As to the defendant Golding, there is a difference of opinion between my brethren and myself. Golding is surety on the defendant’s bond. Golding resides in New Orleans. Proceedings were commenced against them both by rule. The rule was to be tried at chambers, and {out of term time. Both Eloyd and Golding were served with copies of the rule. On the day fixed for the trial of the rule nothing was done. No ■default was taken against Golding. No issue was, in my opinion, joined with him. The case was taken up at the regular term of the court which followed. No notice was given to Golding. He never made any appearance in the proceeding. He was, I think, condemned unheard. I think his case is governed by the decision of this court in the case of Hennen vs. New Orleans and Carrollton Railroad Company, 20 An. 544, in which we said the plaintiff was entitled to notice of the fixing of a rule which had been continued indefinitely in the same manner as he would have been, entitled to notice oí a new rule, and the case should therefore be remanded that the rule may be regularly heard.” But a majority of the court think that the authority quoted refers to and governs proceedings in the courts of this city alone, where, by rules of court notice of trial is required, and not to proceedings in the courts in the country, where notice of trial is not shown to be necessary by any rule of court.

If the proceedings had been instituted at a regular term of the court, and if Golding had been properly cited, and issue had been joined with him, I would share in this opinion; but as the proceedings were not instituted at the regular term, as no action whatever was taken on the rule, and when fixed and subsequently tried, without notice and without a joinder of issue, I think that, as to him, it should be remanded. I drew up the decree, however, in accordance with the views of the majority.

It is therefore ordered, adjudged, and decreed that tho judgment of the district court be amended so as to reduce the amount of the judgment to $2029 63, with interest as therein stated, and that as thus amended the judgment be affirmed; the costs of tho district court to be paid by tho defendants, those of this court to be paid by the appellee.

Rehearing refused.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 6013.
    A. A. Mandal vs. Heirs of Peter C. Mandal.
    To succeed in such a suit the plaintiffs should adduce the strongest proof, which they failed to do. They make grave charges of fraud, involving the crime of perjury, against their deceased father, while they have furnished evidence only of his admissions and declarations made to singlo individuals, which are justly deemed the weakest kind of evidence. The will which he is alleged to have made for the purpose of compensating tho plaintiffs contains no intrinsic evidence of such purpose other than the quantum given to them, which is not inconsistent with some other hypothesis, while the record presents solemn judicial proceedings and admissions, including a sworn statement of the mother’s estate, on the part of the father, which are irreconcilable with, the theory of the plaintiffs, and which can not bo overcome by the isolated declarations and tho presumptions relied on by them.
    Fraud must be proved; it can not be presumed. The delicate, sacred relation of parent and children should impose upon the latter tho greatest caution in assailing the honor of the former, and deter them from the attempt, unless they have the positive proof at hand to sustain them and are impelled thereto by the stern hohests of justice.
    APPEAL from the Second District Court, parish, of Orleans. Piss oí,
    J.

      Bornor & Benedict, for plaintiffs and appellants.

      H. jSF. Ogden, for defendants and appellees.
   Howell, J.

The plaintiff instituted a suit for the partition between himself, his two brothers of the Ml blood, and a brother and sister of ■the half blood, of all the property embraced in the inventory of their deceased father’s succession. The partition .was ordered, and subsequently this plaintiff and his two brothers of full blood, represented by their tutor, filed a petition alleging that their father, in the proceeding to inventory the property belonging to the community which existed between him and their mother, his first wife, wrongfully and fraudulently omitted from said inventory a very large portion of said community property, which they believe to have consisted of money, stocks, bonds, and other evidences of debt readily converted into money, with the design and for the purpose of protecting his real estate from the mortgage created by law in their favor; that after closing the succession of their mother and after his second marriage their father admitted and expressly declared that he had so acted, and made his will bequeathing to them all the disposable portion of his property in order to make up to them, in some part, the money and property which he had fraudulently withheld from the first community; and they prayed that they be declared owners of one half of all the property standing in the name of their father at the date of his death, as the sole heirs of their mother, and that the other half be divided equally between the children of both marriages.

Mrs. Barlow, tutrix of her two Mandal children, excepted that the claim of plaintiffs, if it ever existed, has been concluded and lost by the various judgments rendered in the matter of the succession of Peter C. Mandal, in the matter of the. succession of Emma Green, first wife of P. C. Mandal, and in the partition suit instituted by A. A. Mandal, one of those petitioners, from which no appeal has been taken, and thus forming res judicata. And for answer she pleads a general denial.' From a judgment in favor of the defendant, dismissing the action, the plaintiffs appealed.

To succeed in such a suit the plaintiffs should adduce the strongest proof, which, we agree with the district judge, they failed to do. They make grave charges of fraud, involving the crime of perjury, against their deceased father, while they have furnished evidence only of his own admissions and declarations made to single individuals, which are justly deemed the weakest kind of evidence. The will which it is alleged he made for the purpose of compensating the plaintiffs contains no intrinsic evidence of such purpose, other than the quantum given to them, which is not inconsistent with some other hypothesis, while the record presents solemn judicial proceedings and admissions, including a sworn statement of the mother’s estate, on the part of the father, which, are wholly irreconcilable with the theory of the plaintiffs, and which can not be overcome by the isolated declarations and the presumptions relied on by, them. Fraud must be proven; it can not be presumed. The delicate,, sacred relation of parent and children should impose upon the latter the greatest caution in assailing the honor of the former, and deter them from the attempt, unless they have the positive proof at hand to sustain them and are impelled thereto by the stern behests of justice.

Judgment affirmed.


author: "Wyey, J.

text:
    No. 6156.
    Felix Braud vs. the Town of Donaldsonville.
    In 1861 the General Assembly passed aet No. 69, authorizing the mayor and Selectmen of the town of Donaldsonville, parish of Ascension, to issue bonds for such sums, not exceeding twenty-five thousand dollars, as in their judgment might be required for the interest of said town.
    under this authority, in 1866, the town of Donaldsonville undertook to settle with all its creditors by issuing to them consolidated bonds amounting in the aggregate to less than twenty-five thousand dollars, payable ten years after date, bearing’ eight per cent interest, payable annually.
    The interest on these bonds was paid punctually till April, 1871. Subsequently, the. corporation refused to pay the interest as it accrued, and it passed an ordinance repudiating the bonded debt. Thereupon the plaintiff, holder of some of these-bonds, sues the defendant for the payment of the interest and capital represented by those bonds.
    The corporation had undoubtedly authority to issue the bonds in question, and it fails to show any want or failure of consideration or any other valid defense. If was anxious to settle with its creditors and procure a long term of years for paying the debts it considered it then owed.
    Corporations, like natural persons, should be honest. In the case at bar the town of Donaldsonville had authority in 1866 to settle with plaintiff or the party to whom these bonds were issued, whatever defense there was to the claim, it was presumably known at the time of the settlement.
    If there was not then a valid legal obligation, there was at least a moral obligation,, which was a good consideration for the bonds. If there was no other consideration, the delay of ten years was a legal consideration for the compromise in 1866 under which the bonds in question were issued.
    The refusal to pay the interest which was due in April, 1872, and April, 1873, and the ordinance of repudiation, did not cause the whole debt to become due, and, therefore, in May, 1878, whemthis suit was instituted, plaintiff had not the -right to demand payment of the bonds which were issued on the third of April, 3.866, and payable ton years after date.
    The holder of a debt against a corporation has no greater right than if the makcA, wore a natural person. The declaration of a natural person to the effect that he repudiates his obligation will not cause that obligation to mature before the time specified in the contract. Plaintiff is therefore only entitled to the interest accrued.
    APPEAL from tho Fourth Judicial District Court, parish of Ascension. Flagg, J.

      li. N. & Wm. Sims, for plaintiff and appellant.

      Nicholls <Sr Pugh, for defendant and appellee.
   "Wyey, J.

In 1861 the General Assembly passed act No. 69,'which provides “ that the mayor and board of selectmen of the town of Don&ld-.sonvillo, parish, of Ascension, be and they are hereby authorized to issue-bonds of said town for such sums, not exceeding twenty-five thousand dollars, as in their judgment may be required for the interest of said town.” Under this authority in 1866 the town of Donaldsonville undertook to settle with all its creditors by issuing to them consolidated bonds amounting in the aggregate to less than twenty-five thousand dollars, payable ten years after date, bearing eight per cent interest, payable annually.

The interest on these bonds was paid punctually till April, 1871. Subsequently, the corporation refused to pay the interest as it accrued, and it passed an ordinance repudiating the bonded debt. Thereupon plaintiff, the holder of sixteen of these consolidated bonds of one hundred dollars each, brought suit to recover one hundred and twenty-eight dollars, the amount of interest due on the third of April, 1872, and one hundred and twenty-eight dollars, the amount of interest due on the third of April, 1873, and alleging that by default in paying the interest and by the ordinance repudiating the- debt, the whole amount of the principal of said' bonded debt became due and exigible, and therefore he prayed judgment for sixteen hundred dollars, with eight per cent interest thereon from the third of April, 1873 ; he also prayed that a tax be ordered to be assessed and collected to pay the amount of the judgment. The court rejected the demand of plaintiff, and he appeals.

Many interesting questions are discussed in the brief filed by the learned counsel of defendant; but to us the questions involved in this controversy appear to be exceedingly simple.

First — Had the corporation authority to issue the bonds in suit ?

That is answered by the language of act sixty-nine of 1861, under which they were issued. Undoubtedly the corporation had authority to issue the bonds.

- Second — Has the defendant shown want or failure of consideration or any other valid defense ?

We think not. The corporation in 1866 was anxious to settle with its creditors and procure a long term of years for paying the debts it considered it then owed. Plaintiff says that his debt was for money loaned to the corporation and which it used in paying its debts for works of public improvement. Defendant says that the writing or evidence of the debt which was taken up in exchange for the consolidated bonds was not such as to bind the corporation. Grant it. If the corporation used the money, or received consideration for the debt owing plaintiff, it had authority to give him in 1866 consolidated bonds in evidence thereof. It not only had authority, but it was the duty of the corporation to pay its honest debts, however invalid the writing or instrument evidencing them, and whatever technical defense there might be to the same.

Corporations, like natural persons, should bo honest.

In the case at bar the town, of Donaldsonville had authority in 1866 to settle with plaintiff, or the party to whom these bonds were issued. Whatever defense there was to the claim, it was presumably known at the time of the settlement. If there was not then a valid legal obligation, there was at least a moral obligation, which was a good consideration for the bonds. If there was no other consideration, the delay of ten years was a legal consideration for the compromise of 1866, under which the bonds were issued.

We' are unable to agree with tlio learned counsel for plaintiff that the refusal to pay the interest which was duo in April, 1872, and April, 1878, and the ordinance of repudiation caused the whole debt to become due, and therefore in May, 1873, when this suit was filed, ho had the right to demand payment of the bonds. The bonds were issued on the third of April, 1866, and made payable ten years after date.

The holder of a debt against a corporation has no greater right than if the maker were a natural person. The declaration of a natural person to the effect that he repudiates his obligation will not cause that obligation to mature before the time specified in the contract. Plaintiff is therefore only entitled to judgment for the amount due at the time the suit was filed, to wit: two hundred and fifty-six dollars, the amount of interest due on the third of April, 1872, and the third of Api’il, 1873. In the ordinance authorizing the issue of these consolidated bonds, the council of the town of Donaldsonville passed a resolution levying a tax of one thousand dollars annually on “all the real estate of the corporation of the town of Donaldsonville, and that the same be set aside to form a sinking fund to pay the said consolidated debt».”

As the legality of this ordinance is not questioned in the elaborate brief filed by defendants’ counsel, it must be enforced, and the amount due plaintiff as fixed herein must bo paid ouf of the funds arising from the enforcement thereof.

It is therefore ordered that the judgment appealed from be annulled, and that plaintiff recover of defendant two hundred and fifty-six dollars, with five per cent on one hundred and twenty-eight dollars thereof from the third of April, 1872, and like interest on the balance from the third of April, 1873, and costs of both courts; and it is ordered that the demand of plaintiff for the amount of the bonds in suit be dismissed as of nonsuit. It is further ordered that the tax-collector proceed forthwith to collect the special tax of one thousand dollars levied by ordinance of the twentieth of March, 1866, on the rolls of 1871 and 1872, and out of the proceeds satisfy the judgment heroin rendered, and the balance turn over to the treasurer of said corporation to be applied according to the provision of said ordinance of the town of Donaldsonville.

Rehearing refused.


text:
    No. 6042.
    William Reid Mills vs. Eugene Waggaman, Sheriff, et al.
    Plaintiff, defendant in the executory proceedings in the case of Agelasto vs. Mills, enjoined the sheriff and said Agelasto from executing a sheriff’s deed for the property sold in said suit and putting the latter in possession as adjudicatee, on the ground that the bid did not exceed the mortgages and privileges resting on said property and having preference over the mortgage of the seizing creditor.
    The evidence in the record shows that the mortgage and privileges, including tlio interest and.penalties accrued on the taxes, both city and State, exceeded the bid of the purchaser by less than two -hundred dollars — the bid being two thousand dollars and the said incumbrances less than twenty-two hundred dollars. But it is shown that the purchaser, a few days after the sale, paid the city taxes, amounting to $675. The Question is, can the purchaser avail himsoif of the sum paid by him to the city, or must the case be decided upon the facts as shown to have existed on the day of sale, exhibiting a deficit of $117 32.
    The certificate of mortgages did not specify the interest and penalties on the unpaid taxes, and the amount in said certificate did not appear to correspond exactly with the amounts in the statements embraced in the settlement. Yet the law imposed both interest and penalties, under the circumstances of this case the plaintiff has no legal cause to defeat the sale. He is not injured, as the claims bearing privilege are extinguished.
    As presented by both parties, the incumbrances, as contained in the certificate, are less than the bid, and it is only by adding the interest and penalties that they are made to exceed it. Under such a state of facts, the purchaser is entitled to the benefit of the payments made by him, and the sale is a good one as to the debtor in execution.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Bice & Whitaker, for plaintiff and appellant.

      Bóbert (f. Bagué, for Agelasto, defendant and appellee.
   Howell, J.

W. R. Mills, defendant in the executory proceedings in the case of A. M. Agelasto vs. W. R. Mills, enjoined the sheriff and said Agelasto from executing a sheriff’s deed for the property sold in said suit on the sixth of February, 1875, and from putting the latter in possession as adjudicatee, -on the ground that the bid did not exceed the mortgage and privileges resting on said property and having preference over the mortgage of the seizing creditor. The defendant, Agelasto, excepted to the petition, moved to dissolve the injunction, and answered on the grounds substantially that plaintiff shows no cause of action, the injunction bond and surety are not in accordance with law, and the facts alleged are untrue.

The evidence in the record shows that the mortgage and privileges, including the interest and penalties accrued on the taxes, both city and State, exceeded the bid of the purchaser by less than two hundred dollars, the bid being two thousand dollars and the said incumbrances less than twenty-two hundred dollars; but it is shown that the purchaser, a few days after the sale, paid the city taxes, amounting to six hundred and seventy-five dollars, with the sum of four hundred dollars expended in cash and city scrip or warrants receivable for taxes. The ranking mortgage ($615) and the State taxes, penalties, etc., ($827 32) amount to $1442 32; and the question presented by plaintiffs counsel is, can the purchaser avail himself of the sum paid by him to the city, or must the case be decided upon the facts as they are shown to have existed on the-day of sale, showing a deficit of $117 32.

It should be remarked that the certificate of mortgages did not specify the interest and penalties on the unpaid taxes, and that the amounts in said certificate do not appear to correspond exactly with the amounts in the statements embraced in the settlement; yet the law imposed both interest and penalties. Wo think, under the circumstances of this ease, .the plaintiff has no legal cause to defeat the sale. He is not injured, as the claims bearing the privilege are extinguished. And it is not clear that the incumbrances which had preference over the claim of the purchaser were made by the certificate of mortgages to appear greater than the bid. As presented by both parties these incumbrances, as contained in the certificate, were less than the bid, and it is only by adding the interest and penalties that they are made to exceed it. Under such a state of facts, we think the purchaser is entitled to the benefit of the payments made by him, and that the sale is a good one as to the debtor in the execution.

Judgment affirmed.

Behearing refused.


author: "Wylt, J.

text:
    No. 6241.
    Succession of Anais Plantevignes, Wife of Lovel Ledoux. Opposition to Final Tableau and Rule for Additional Security.
    Mrs. Anna Ledoux, testamentary executrix oí Amaron Ledoux, being a creditor of the community which existed between the deceased, Anais Plantevignes, and her husband, and this succession consisting only of community property, her claim was properly placed on the account.
    The sureties on the bond of the administrator are shown to be insufficient. The rule requiring additional security on the bond of the administrator should bo ' made absolute.
    The children of the deceased are her heirs, and they are in.no sense mortgage creditors of this succession; their mother owed them nothing; by succession they succeeded to her rights. Whatever claims they have against their father on account of paraphernal funds of their mother disposed of by him they can not set up in this settlement of the succession of their mother.
    As the heirs have not renounced the community, they can not compete with a creditor of community for the funds in question, nor will they be permitted to set up in this controversy their mortgage rights against their father on account of paraphernal funds due by him to their mother.
    As the account filed only includes part of the assets of the succession, the court a qua, manifestly erred in accepting it as a final account and ordering the administrator to be discharged from further duty.
    APPEAL from tho Parish Court, parish of Pointe Coupee. Bonachaud> J.

      Edward Phillips and Bohert Montgomery, for plaintiff on rule and appellant.

      Tost & Harris, for the administrator, appellee.

      A. L. Malion-üeau, for the emancipated minor heirs of the deceased Anais Plante-.vignes. ' .
   "Wylt, J.

Mrs. Anais Plantevignes, wife of Lovel Ledoux, died in April, 1866, leaving a succession consisting of community property upon which her surviving husband administered.

Mrs. Anna Ledoux, testamentary executrix of Amaron Ledoux, shown to be a creditor for eleven hundred dollars of the community which existed between Mrs. Anais Plantevignes and Lovel Ledoux, took a rule upon the administrator of this succession requiring him to give additional security, the sureties on his bond not being solvent or sufficient to secure the said bond.

She also opposed the final account rendered by this administrator because it was incomplete, only a small part of the assets of the succession being placed thereon; also because Jules, Aristide, and Estelle Ledoux, heirs of the deceased, are improperly placed on said account as mortgage creditors.

Subsequently, these heirs also filed an opposition, denying that Mrs. Anna Ledoux, testamentary executrix of Amaron Ledoux, is a creditor of the community which existed between their mother and father, and they prayed that this claim be stricken from the account.

The various issues were cumulated and tried together. The court gave judgment dismissing the rule for additional security, also the opposition of Mrs. Anna Ledoux, testamentary executrix, and homolo-gating the final account of the administrator, ordered his bond to be canceled, and that he be discharged from his trust.

Erom this judgment Mrs. Anna Ledoux, testamentary executrix, has appealed.

The proceedings arc quite irregular; but as it is the interest of all parties that the litigation should be settled without additional expense and delay, we will consider the issues involved in this controversy and decide them.

The evidence satisfies us that Mrs. Anna Ledoux, testamentary executrix of Amaron Ledoux, is a creditor of the community which existed between the deceased and her husband, Lovel Ledoux, for eleven hundred dollars; and as this succession consists only of community property, this claim was properly placed on the account. The sureties on the bond of the administrator for twelve thousand dollars are shown to be insufficient. The rule requiring additional security on the bond of the administrator should be made absolute.

The children of the deceased are her heirs, and they are in no sense mortgage creditors of this succession; their'mother owed them nothing; by succession they succeeded to her rights. Whatever claims they have against their father on account of paraphernal funds of their mother disposed of by him they can not set up in this settlement of the succession óf their mother. As they have not renounced the community, these heirs can not compete with a creditor of community for - the funds in question, nor will they be permitted to set up in this controversy their mortgago rights against their father on account of paraphernal funds due by him to their mother.

As the account filed only includes part of tho assets of the succession, the court manifestly erred in accepting it as a final account and ordering the administrator to be discharged from further duty.

It is therefore ordered that the judgment appealed from be annulled, and it is decreed that Mrs. Anna Ledoux, testamentary executrix, be recognized as a creditor, as stated in the account; that the rule taken for additional security be made absolute; that the claims of Jules, Aristide, and Estelle Ledoux, as mortgage creditors, be stricken from the account; that the account of tho administrator be disallowed, and that he render a full and complete account of all the property placed under his administration within ninety days after this judgment becomes final. It is further ordered that appellees pay costs of both courts.


author: TaliafbrRO, J.

text:
    No. 5955.
    Succession of William N. Mercer.
    When posterior testaments do not expressly revoke prior ones, they must all he executed, unless the last tacitly revoke the first; but in tho latter case the last prevail, since tho testament is essentially tho expression ot the last will o£ the testator.
    Tho doctrine that because the first will of the testator is not expressly and unconditionally revoked by the testator in the second will therefore the first will in its entirety remains in full force is not tenable, for by the provisions of article 1691 of the Civil Code wills are revokod.taeitly as well as expressly.
    Tacit revocation results from some other disposition of the testator or from some , act which supposes a change of will, when, therefore, by the first will in the ease before this court the testator constituted Celestino Bastís legatee for one thousand pounds and by the second a legatee for five hundred pounds, there was a tacit revocation. There was a eonfliction between the provisions of the two wills in regard to the amount of tho legacy, the provision of the last will showing tho intention to bestow upon tho legatee live hundred pounds and not one thousand pounds.
    In tho eases of Mrs. Ximino and the minor. Anna Ximino, and tho two asylums, no change was made in tho legacies by the last will. This shows only the intention of tho testator repeated in the second will that these legatees should receive the legacies granted by tho first will.
    Upon no sound principle of reasoning can it be maintained that when anterior or preceding testaments are not expressly and entirely revoked by subsequent ones all the provisions of all the testaments have effect, and that in such eases there is a cumulation of the legacies contended for by tho opponents in this case.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      J. B. JSustis & Lazarus, for Celestino Enstis, Antonio de Ximino and wife, and Helen Cammack de Ximino, opponents and appellants.

      Charles G. Ogden, for St. Mary and St. Elizabeth Asylums, opponents and appellants.

      T. H. Kennedy and William K. Hunt, for Pierce Butler, executor and universal legatee, appellee.
   TaliafbrRO, J.

The testator left a large estate, and, having no forced heirs, disposed of the whole of it by testamentary dispositions, made at different times, in the forms of wills and codicils.. He appointed executors. The controversy in this case has arisen from a disagreement between the executors in regard to the interpretation of the provisions of the wills and codicils.

The account of Pierce Butler, one of the executors, was filed on the fifteenth of January, 1875, that of Wilmer Shields, the other executor, was filed on the twenty-first of January, 1875, and on the eleventh of February following was homologated so far as not opposed. The tableau of Butler, so far as not opposed, was homologated on the second of February, 1875. The tableau of Butler is opposed by Shields, Celestino Eustis, and Ellen find Anna de Ximino.

The executor Shields opposes the tableau of his co-executor in this, that he is thereon placed as legatee entitled to five thousand dollars, whereas he is entitled To twenty thousand dollars; that he is further placed on the tableau of Butler as entitled to one hundred shares of the capital stock of the Gaslight Company, when he is entitled to two hundred shares of that stock. He alleges, further, that he is entitled, under the wills, to the commissions allowed executors by law. He prays that his own tableau he homologated, or that the one presented by his co-executor be amended so as to conform to his own, and so as to allow him twenty thousand dollars instead of five thousand dollars, and two hundred shares of stock of the Gaslight Company instead of one hundred shares.

Celestine Eustis opposes the tableau of distribution presented by Butler on the ground that she is set down on his tableau as a legatee for twenty-five hundred dollars, whereas by the various testamentary dispositions of the testator she is entitled to fifteen hundred pounds sterling or the equivalent in gold, equal to seventy-five hundred dollars.

Ellen Cammack, wife of Antonio de Ximino, and the latter as guardian of his minor child, Anna Ellen de Ximino, oppose the tableau of Butler on the ground that the wife and the minor are each placed on it as legatee for twenty-five hundred dollars, whereas by the various wills and codicils of the testator they are entitled to five thousand dollars each, or one thousand pounds sterling.

Shields’ account and tableau is opposed by the other executor on several grounds, the chief ground, however, being that by an erroneous interpretation he has regarded legacies as expressed in subsequent testamentary dispositions just as they were in former dispositions as cumulative, and entitling the legatees to larger amounts than was intended by the testator; the executor, Butler, contending that the testator’s bequests by subsequent acts of last will are mere repetitions of his purpose where the former dispositions do not conflict with the latter.

Judgment was rendered in the court below in favor of the account filed by the executor Butler. The one filed by the other executor, Shields, was rejected, the opposition thereto by Butler being sustained, and an order was rendered that the funds of the succession be distributed in conformity with the account and tableau presented by the executor Butler.

.Appeals were taken from this .judgment by Celestine Eustis, Helen Cammack, wife of Antonio de Ximino, and by the latter as natural tutor of his minor child, Anna Ellen do Ximino, and also by the St. Mary Asylum and the St. Elizabeth Asylum, interested as legatees.

On the eleventh of April, 1866, the testator, W. Newton Mercer, executed a will declaring that “ I, \Y. Newton Mercer, of Laurel Hill, in Adams county, Mississippi, do make and declare thiá my last will and testament, revoking all other wills and codicils, bequests, or legacies.” He executed a will on the twenty seventh of April, 1869, in which he declares as follows: “I, W. Newton Mercer, formerly of Laurel Hill, Mississippi, but now of New Orleans, in Louisiana, do make and declare this to be my last will and testament, revoking and annulling all other wills and codicils of previous dates in conflict or at variance with it.”

Subsequently, by various codicils executed at different times, he made a few changes in the dispositions expressed in his last will, made some additional bequests, and supplied omissions that had occurred in executing his last will and testament, and, in a few instances, added explanations in reference to his purposes and intentions.

The article 1693 of our Civil Code declares that “ posterior testaments which do not in an express manner revoke the prior ones annul in the latter only such of the dispositions there contained as are incompatible with the new ones, or contrary to them, or entirely different.” This article is in substance the same as article 1036 of the Napoleon Code, from which it is derived.

The learning and research of the counsel representing the executor Butler have shown us clearly that from the interpretation given to this article by the jurisprudence of France, when posterior testaments do not expressly revoke prior ones they must all be executed, unless the last tacitly revoke the first; but that in the latter case the last prevail, since the testament is essentially the expression of the last will of the testator. The doctrine that because the first will of the testator is not expressly and unconditionally revoked by the testator in the second will therefore the first will in its entirety remains in full force, is not tenable, for by the provisions of article 1691 of the Civil Code wills are revoked tacitly as well as expressly. Tacit revocation results from some other disposition of the testator, or from some act which supposes a change of will. When, therefore, by the first will, in the case before us, the testator constituted Oelestine Eustis legatee for one thousand pounds, and by the second a legatee for five hundred pounds, there was a tacit revocation — there was a confliction between the provisions of the two wills in regard to the amount of the legacy; the provision by the last will showing the intention to bestow upon the legatee five hundred pounds and not one thousand pounds. In the case of Mrs. Ximino and the minor Anna Ximino and the two asylums, no change was made in the legacies by the last will. This shows only the will of the testator repeated in the second will that these legatees should recover the legacies granted by the first will. Upon no sound principle of reasoning do we see, can it be maintained that where anterior or preceding testaments are not expressly and entirely revoked by subsequent ones all the provisions of all the testaments have effect, and that in such cases there is a cumulation of the legacies, as contended for by the opponents in this case. We think the case clearly with the executor Butler, and approve the able judgment of the court a qua.

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

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 4890.
    Daniel & James D. Edwards vs. Edgar Marin.
    The proposition is incorroet that if one obtains an order for a suspensive appeal and fails to complete it and to prosecute it lie can not afterward take a devolu-tive appeal.
    If one abandons an appeal after the jurisdiction of the appellate court has attached he can not afterward appeal, but a failure to complete the suspensive appeal does not preclude the party from taking a devolutive appeal within the year after the judgment.
    In this ease, the surety given on the suspensive appeal bond having been declared not good, the appellant was authorized to take a devolutive appeal.
    The defendant is a resident of the parish of Plaauemines, and should have been sued at his domicile. The act No. m of 187G, which authorizes property to be sequestered, etc., and defendant cited where the property tobe sequestered, etc., is found, is not applicable to this case. This suit was instituted in 1872, long before the passage of said law, and can not be affected by it. The court did not have jurisdiction of the case when it was filed, nor when the judgment was rendered.
    APPEAL from the Fifth District Court, parish of Orleans. Cullorn, J.

      M'ornar <£• Benedict, for plaintiffs and appellees.

      Sambeta, & Hueros, for defendant and appellant.
   On MotioN to Dismiss.

Ludeling, C. J.

A motion to dismiss this appeal has been made on the ground that a suspensive appeal having been granted and the amount of the bond fixed in the order of appeal, and said bond having been given and set aside on account of the worthlessness of the security, and there being nothing of record to show the inability of appellant to give bond for a suspensive appeal, ho can not afterward take a devolutive appeal.

The proposition is, that if one obtains an order for a suspensive appeal and fails to complete it and to prosecute it he can not' afterward take a devolutive appeal.

We do not understand that to be the law. If one abandons an appeal after the jurisdiction of the appellate court has attached he can not afterward appeal, but a failure to complete the suspensive appeal does not preclude the party from taking a devolutive appeal within the year after judgment.

In this case the surety given on the suspensive appeal bond having been declared not good, the appellant was authorized to take a devolu-tive appeal. 2 An. 628, Gibson vs. Selby; 11 La. 382; 15 An. 116.

It is therefore ordered that the motion to dismiss the appeal be overruled.

On the Mekitr.

The plaintiff sued the defendant in the parish of Orleans, and, claiming a privilege, sequestered somo sugar in the city of New Orleans to secure the payment of his claim.

The defendant urged several dofenses. It is necessary to notice only one of them, to wit: that the court a qua was without jurisdiction ratione yersonce.

The defendant is a resident of the parish of Plaquemines, and should have been sued at his domicile. C. P. 162; 26 An. 300, 530. The plaintiff refers the court to the act No. 64 of 1876, which authorizes property to be sequestered, etc., and defendant cited where the property to bo sequestered, etc., is found, and thinks that statute controls this case.

This suit was instituted in 1872, long before the passage of said law, and can not be affected by it. The court did not have jurisdiction of the case when it was filed, nor when the judgment was rendered. 21 An. 755.

It is therefore ordered that the judgment of the lower court be reversed, and that there be judgment in favor of the defendant, rejecting the plaintiffs demands with costs of both courts.


text:
    No. 6142.
    S. M. Routh et al. vs. Citizens’ Bank.
    whether, when the Citizens’ Bank foreclosed its mortgage, on the fourteenth of March, 1874, and was enjoined by the heirs of Routh on various grounds, the adjudication of the community property to widow Routh in December, 1870. was regular or not, said widow was in possession, and she was proceeded against as tutrix and individually. The mortgage imported a confession of judgment and contained the pact de non alienando.

    If Mrs. Paulino Percy, one of the heirs, was not authorized by her husband to make the waiver of notice of seizure, etc., she purchased at said sale, and her husband authorized and assisted her to make the purchase. She is estopped therefore from denying the regularity of the notice of seizure, etc.
    If the mortgage notes wore prescribed, it was tho duty of the tutrix to plead proscription, and she may bo responsible to the heirs for her neglect, but this is no cause to annul a sale under tho judgment rendered on tho notes.
    As to the want of service of a notice of the order of seizure and sale on tho tutrix, it is alleged that the notice was not addressed to any one, and the tutrix signed it without affixing the word tutrix after her name. But the widow was sued individually and as tutrix. The title of the suit is given, and then the usual notice of the order of seizure and sale.
    This was delivered to the sheriff, who obtained tho signatures of the widow and of the heirs of ago present to tho following waiver, written at the bottom of the notice: “ Wo and each of us do hereby waive service and all legal delays or formalities and on the same day he served it on the curator ad hoc of one of tho heirs, who was absent.
    There is no law which requires this notice to bo addressed to any one, nor is there any force in the objection that the tutrix failed to add to her signature tho word tutrix. She had the right to waive the formalities, and sho manifestly intended to waive them, individually and as tutrix. But, be that as it may, the proscription of five years pleaded against any informalities connected with or growing out of tho sale must bo maintained.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      Mayo £ Hponoer and Brake, for plaintiffs and appellees.

      Labatt, Aroivi £ Clinton and Armcincl Pitot, for defendants and appellants.
   Ludeling, C. J.

On the first of February, 1858, Stephen M. Routh, Sr., executed a mortgage on his Palmetto and Routhwood plantations to secure sixty-five thousand dollars, evidenced by thirteen promissory notes made to the order of R. ~W. Estlin & Co. The mortgage was made in favor of any holder or holders of the notes, and contained the pact tie non alienando, and imported a confession of judgment. Estlin & Co. subsequently transferred these notes, by authentic act, to the Citizens’ Bank. In 1858 S. M. Routh died, leaving ten children, two majors and eight minors. In November his widow, A. E. Routh, qualified as natural tutrix of her minor children. The Routhwood plantation was the separate propertj7 of Stephen M. Routh; all other properties in his possession, when he died were community property.

In December, 1860, the community property was adjudicated to the widow, with the exception of the interests of three of the heirs, who at that time were of age.

On the twenty-second day of December, 1868, the Citizens’ Bank obtained an order of seizure and sale against the said plantation, and at the sale the bank bought the property. On the first of June, 1869, the bank sold the two plantations to S. M. Routh, Jr., Horatio P., Job R., Alice, Clarence, Octo, Charlés B. Routh, and Pauline Routh for the sum of fifty thousand dollars, five thousand dollars cash, and the balance on a credit, for which notes were given, secured by a mortgage on the plantations. It was stipulated in the deed by the purchasers that the minor heirs were to have the benefit of the purchase equally with the other heirs of Routh who bought.

Having failed to pay the notes given for the consideration of the price, the bank again foreclosed the mortgage on the fourteenth of March, 1874, and on the eighteenth of March all the heirs of S. M. Routh, Sr., enjoined the sale on the following grounds, to wit: that a part of the property mortgaged had been the separate property of their father; that the adjudication of the community property was null and void, for various reasons stated; that at the time the bank foreclosed the first mortgage Charles B. Routh, Ernest Routh, and Amelia Routh wore minors, and the notes of the bank were prescribed, and the minors were not affected by the acts of the tutrix in waiving demand and notice of seizure in the suit to foreclose the. mortgage, and that the tutrix could not in any manner revive the extinct notes; that at the time Pauline Routh accepted service of notice, etc., in said suit, she was not authorized by her husband to do so; that therefore the sale did not divest the title of said four heirs, and the purchasers did not acquire title to the whole of said plantations, and they ask for a diminution of the price to thirty thousand dollars, being six tenths of the whole, and this amount they allege they have paid.

Whether the adjudication of the community property was regular or not, the widow was in possession, and she was proceeded against as tu-trix and individually. The mortgage imported a confession of judgment, and contained the pact ele non alienando.

If Mrs. Pauline Percy was not authorized by her husband to make the waiver of notice of seizure, etc., she purchased at said sale, and her husband a\xthorized and assisted her to make the purchase. She is estopped from denying the regularity of the notice of seizure, etc. If the notes were prescribed, it was the duty of the tutrix to plead prescription, and she may be responsible to the heirs for her neglect, but this is no cause to annul a sale made under the judgment rendered on the notes.

As to the want of service of a notice of the order of seizure and sale on the tutrix, it is alleged that the notice was not addressed to any one, and that the tutrix signed it without affixing the word tutrix after her name.

The widow was sued individually and as tutrix. The title of the suit is given, and then follows the usual notice of the order of seizure and ■sale. This was delivered to the sheriff, who obtained the signatures of the widow and of the heirs of age present to the following waiver, written at the bottom of the notice: “We, and each of us, do hereby waive service and all legal delays and formalities,” and on the same day he served it on the curator acl hoc of one of the heirs who was absent.

There is no law which requires this notice to be addressed to any one. Nor do we see any force in the objection that the tutrix failed to add to her signature tutrix. She had a right to waive the formalities, and she manifestly intended to waive them individually and as tutrix. But, be that as it may, the prescription of five years pleaded against any inform-alities connected with or growing out of the sale must be maintained. C. C. 3543. As to the notice of the order of seizure and sale, it was ■served upon Ann Eliza Bouth, who was the tutrix. This is proved by her signature written at the bottom of the notice.

It is therefore ordered and adjudged that the judgment of the lower court be reversed, and that there be judgment in favor of the Citizens’ Bank dissolving the injunction, with five hundred dollars damages against the plaintiffe in injunction, and for costs in both courts, and that there be judgment in favor of the Citizens’ Bank against the mortgagers for the amount of the debt described in the answer, to wit: $38,787 51, with eight per cent interest from the eighteenth of December, 1872, and five per centum thereon as attorney’s fees, and that the mortgage bo recognized and made executory on the property described in the act of mortgage.

Behearing refused.


author: Morgan, J.

text:
    No. 904.
    Succession of John F. Miller. Opposition of Mrs. Cordelia D. Wheeler to the Application of the Public Administrator to be appointed Testamentary Executor.
    As heir the opponont took possession of the estate, having been formally put in possession by one, at least, of the executors. Tho succession is not only not vacant, but there is no succession to administer, the heir thereof haying possession of the same.
    APPEAL from the Parish Court, parish of St. Martin. Castüle, J.

      It. L. Belden and E. Simon, for the public administrator, appellee.

      J A. Breaux, for opponent and appellant.
   Morgan, J.

John E. Miller died in 1857. He left a will and appointed John Moore and C. Yoorhies executors thereof.

His niece and only heir, as the record shows, was put in possession of the estate since 1859.

The public administrator applied for the administration of the estate upon the ground that it remained unsettled. He is opposed by Mrs. Cordelia Wheeler, the niece and heir of Miller. The parish judge appointed the public administrator to take charge of the estate. Mrs. Wheeler appeals.

The public administrator moves’ to dismiss the appeal on the ground that the appellant moved for and obtained a suspensive appeal, and that a suspensive appeal does not lie from a judgment appointing an administrator. Whether the appeal granted was suspensive or not is a matter of no consequence here. It is sufficient for us to know that the-appeal is before us.

The motion to dismiss is denied.

' On the merits, it is evident that there is nothing for the public administrator to administer upon. As heir, the opponent took possession of the estate, having been formally put in possession by one, at least, of the executors.

The public administrator says in his testimony that he represents no one in this controversy except himself as public administrator, presuming that Mr. Miller’s succession is vacant.

The succession is not only not vacant, but there is no succession to administer, the heir thereof having possession of the same.

It is therefore ordered, adjudged, and decreed that the judgment of the parish court be avoided, annulled, and revérsed; that the opposition of Mrs. Cordelia Wheeler be maintained; that the application of the public administrator be dismissed, and that he pay the costs in both courts.


author: Lüdeling, C. J.

text:
    No. 958.
    Alfred Moss vs. James Munn & Co.
    In this caso tlio ploa in compensation and roconvention, being based upon a claim ior damages arising from a seizure in a matter altogether disconnected from the plaintiff’s demand and an open account against the plaintiff, can not bo maintained.
    from the Eighth Judicial District Court, parish of Calcasieu. Morgan, J.

      P. Perrodin, for plaintiff and appellant.

      Lewie Lóvégiie, for W. H. Kirkman, defendant and appellee.
   Lüdeling, C. J.

This is a suit on an account for $419 42, and on a due bill for $80 89, against the commercial firm of James Munn & Co.

The defense is a general denial and a plea in compensation and recon-vention.

The evidence establishes the demand of the plaintiff, dehorn the admission by the ploa of compensation. The plea in compensation and re-convention is based upon a claim for damages arising from a seizure in a matter altogether disconnected from the plaintiff’s demand and an open account for $175 against the plaintiff. The claim for damages alleged to have arisen in another suit can not be pleaded in compensation/1 and roconvontion in this suit. The claim for $175 is proved by the admission as to what the absent witness would swear if present.

It is therefore ordered that the judgment of the lower court be reversed, and, proceeding to render such judgment as should have been rendered, it is ordered that the plaintiff have judgment against the defendants, in solido, for the sum of $500 31, with ñve per cent per annum interest from judicial demand, and costs, subject to a credit of one hundred and seventy-five dollars, and that the defendant pay costs of appeal.


text:
    No. 972.
    Benjamin A. Smith, Administrator, vs. Fannie Anderson, Wife, et al.
    An appeal lies from an interlocutory order, only when it works an irreparable in- ' jury, and no injury of this kind can be seen to arise from the continuing of a case from one term to another.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. John 3ST. Ogden, Acting Judge.

      Henry L. Garland, for plaintiff and appellant.

      John F. King, 33. A. Martel & Hudspeth, for defendants and appellees.
   Morgan, J.

This is an appeal from an order of the district judge continuing the case.

These orders are within the discretion of the district judge. Even if we could interfere, the ease has been continued, and the reversal of the judgment would amount to nothing. Besides, this is an interlocutory order. An appeal lies from an interlocutory order, but only when it works an irreparable injury. We see no irreparable injury which can arise from the continuing of a cause from one term to another. .

Appeal dismissed.


author: Wyly, J.

text:
    No. 945.
    D. W. Roberts vs. M. T. Gordy, Sheriff, et al.
    Plaintiff, a printer by occupation, and the keeper of a ferry, has no right to claim the benefit of the homestead act of 1852. and to enjoin on that ground the execution sale of certain lots occupied by him in the unincorporated town of Berwick and embracing about three acres and a half.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      33. F. Winchester, for plaintiff and appellee.

      W. 33. Merchant and 33. Caffery, for defendant and appellant.'
   Wyly, J.

Plaintiff enjoins the sale by executory process of the lots of ground occupied by him in the unincorporated town of Berwick, embracing about three and a half acres, on the ground that they are exempted from seizure by the homestead act of 1852.

Plaintiff is by occupation a printer, and he is also the keeper of a ferry. We find nothing in this case entitling plaintiff to the benefit of the homestead act of 1852. See 26 An. 645.

It is therefore ordered that the judgment herein maintaining the injunction be annulled, and that the injunction be dissolved and the suit dismissed with costs of both courts.


author: Howell, J. Ludeling, C. J..

text:
    No. 835.
    Davidson B. Penn vs. John Evans, Jr.
    The evidence shows that the defendant owns property in this State, under the laws and the jurisprudence of this State that is sufficient to authorize an absentee to be sued therein.
    The principle, often decided, that one for whom a contract is made is presumed to have ratified it unless he repudiates it, applies to principals — to the parties to be bound; but it can have no application to joint agents as to the ratification of the separate act of one by the other. It is their acts and not their non-action which can bind their principals.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Morgan, J.

      Henry L. Garland, for plaintiff and appellant.

      Joseph M Moore and Lewis Brothers, for defendant and appellee.
   On Motion to Dismiss.

Howell, J.

A motion is made to dismiss the appeal in this case on the ground that the certificate appended to the transcript is not signed by the clerk.

This is not a cause of dismissal, being the result of the negligence of the clerk, but until the record is complete wo can not properly dispose of the appeal. C. P., article 898.

It is therefore ordered that the motion to dismiss be denied, and that the case bo continued in order to complete the certificate of the clerk.

On the Merits.

Ludeling, C. J..

The plaintiff sued defendant to render him personally responsible for a note of $1129 56, executed by P. E. Keary in favor of Joseph Hoy & Co.

The plaintiff further prays for foreclosure of a mortgage alleged to have been executed on the seventeenth of June, 1871, by the agents of defendant upon a piece of property in St. Landry. The proceedings at first were via executiva, but, having been enjoined, were changed to the via ordinaria, and a curator ad hoc was appointed to represent the absent defendant.

The curator ad hoc excepted to the right of action against defendant on the ground that the defendant is a resident of Mississippi and must be sued at his domicile; that he has an agent in this State residing in the parish of Bapides, where he should be sued if suable in this State, and that having an agent in this State no curator ad hoc could represent him.

The evidence shows that the alleged agent of defendant, William "V. Keary, had not authority to represent defendant in suits; his authority was to sign bonds and make affidavits. The evidence shows that the defendant owns property in this State. Under the law and the jurisprudence of this State that is sufficient to authorize an absentee to be sued in Louisiana. C. P. 116, 961; C. C. 51; 18 An. 209; 19 An. 36; 2 An. 1010; 6 An. 220.

The view we have taken of this case renders it unnecessary to notice particularly the bills of exceptions to the rulings of the court a qua in relation to reception of evidence, which we think were correct.

On the merits the facts seem to be as follows; On the ninth of March, 1869, John N. Evans, Jr., (who had obtained a judgment against Susan Keary decreeing the sale of the property now alleged to be subject to the mortgage claimed by plaintiff) executed a notarial power of attorney, by which he constituted Patrick E. Keary and William Y. Keary his agents, to buy and sell, to incumber and hypothecate, to contract loans and create debts, etc., and more particularly to do any thing in reference to said judgment. On the same day, by act sous seign privé, Evans authorized and instructed his said agents to pay out of the proceeds of the sale which was to be made under his said judgment against Susan Keary unto Joseph Hoy & Oo. the amount of advances made by them to the said P. E. Keary, as shown by act of pledge dated the twenty-eighth of February, 1868, and which the said Evans recognized as valid and binding as if made by himself. The notes thus pledged seem subsequently to have been placed in the possession of Evans, who obtained judgment on them, and, at a sale under said judgment, the property mortgaged to pay said notes was purchased by Evans. The debt held by the plaintiff is the same which P. E. Keary contracted toward Joseph Hoy & Co., and to secure which the pledge aforesaid had been made. The defendant ought not to be allowed to keep the property which secured the pledged notes and refuse to pay the debt for whose security the pledge was created.

The pretensions of plaintiff to a mortgage are based upon the act of mortgage executed by William Y. Keary, one of the joint agents of Evans. The mandate from Evans is to William Y. Keary and P. E. Iieary, who jointly could act, but not separately. Had the principal intended to confer the power on his agents to act separately, he would have so said, but the contrary of this is manifested when he says W. Y. Iieary and P. E. Heary may do certain acts. They have not acted, nor has Evans, the principal, ever ratified the act of W. Y. Iieary. 4 M. 78; 2 La. 275; 10 An. 621.

But it is contended that P. E. Iieary, the co-agent, was informed of the act of his co-agent, that a copy of the act of mortgage was sent to him for his signature and was found among his papers after his death unsigned, and (therefore he ratified the act. We think the inference to be drawn from these circumstances is that he refused to sign the act or to concur with his co-agent. The principle, often decided, that one for whom a contract is made is presumed to have ratified it unless he repudiate it when informed of it, applies to principals, to the parties to be bound, but it can have no application to joint agents; it is their acts, and not their non-action, which can bind their principals. We think, therefore, that the act of mortgage was invalid.

It is therefore ordered that the judgment of the lower court be affirmed, costs of appeal to be paid by the appellant.


text:
    No. 934.
    James S. Robichaud, President Police Jury, vs. Thos. W. Nelson et al.
    The judgment sought to be annulled was rendered in 1873. This action to annul was brought in 1875. The time in which it could have been attacked had passed.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.

      M. Voorhies, District Attorney pro tern., for plaintiff and appellant.

      Fred. Gates, for defendants and appellees.
   MorgaN, J.

In 1873 Thomas Nelson obtained judgment against the parish of St. Martin upon two promissory notes, drawn and subscribed by A. Duperier, in his capacity of president of the police jury of that parish. The board of assessors wore, at the same time, ordered to assess and collect a tax to pay the judgment.

In 1875, long after the judgment aforesaid had become final, plaintiff instituted this suit attacking the judgment in nullity, and obtained an injunction on the grounds — •

Eirst — That the judgment is null for causes which appertain to the merits of the question tried, and apparent on the face of the records.

Second — Because the notes upon which the judgment was obtained were drawn by A. Duperier, without the authority of the police jury, and in contravention of law.

Third — Because, admitting that delegation of power to Duperier, the notes were null and void and without legal existence, because issued in direct contravention of law.

Eourth — Because the proper parties were not before the court.

All these defenses might have been made in the first suit, and defendant’s exception was properly maintained. 26 An. 35, 41.

The judgment was rendered in 1873. This action to annul it was brought in 1875. The time in which it could have been attacked had' passed.

J udgment affirmed.


author: Mob&an, J.

text:
    No. 966.
    State of Louisiana vs. Louis Rousseau.
    under the first section of act No. ¡M of the acts of 1873, which fixes the qualifications, of jurors, the judge a quo had the discretionary power to decide whether a juror was incompetent to sit in this ease on account of his ignorance of the English language.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Morgan, J. Criminal case.

      Ferréol Perrodin, District Attorney, for the State, appellee.

      George H. Wells, for defendant and appellant.
   Mob&an, J.

The defendant, convicted of murder, appeals from the sentence which condemns him to be hung.

He relies upon -us to reverse the decree against him because he says the court erred, when impaneling the jury, in setting aside ex proprio motu, without any challenge, the juror Samuel Cart, solely on account of his want of familiarity with the English-language.

His bill of exceptions to the ruling of the court recites that “ on the impaneling- of the jury, Samuel Cart, a juror, regularly drawn and summoned on the regular venire of the jury drawn and summoned for said term of said court, was regularly called to the stand and sworn upon his roir dire, and examined concerning his qualifications to act as a juror on the trial of said cause. And on such examination it appearing that the juror’s native tongue was French, and that he declared himself not sufficiently familiar with the English language to clearly understand the testimony of witnesses, argument of counsel, and the charge of the court, to be given and made in the English language on the trial of said cause, the State, by the district attorney, thereupon stated to the court that he would leave it to the .court to decide whether the said juror had sufficient understanding of the English language to render him competent to serve as a juror on the trial of said cause. And, thereupon, before any order of said court being rendered in the premises, the said defendant and prisoner, by his counsel, stated to the court and to the district attorney that he would insist, and did insist, that the State, by the district attorney, should either accept said juror or challenge him peremptorily or for cause, and that in case of challenge of said juror by the State for cause, he, the said prisoner, reserved the right to traverse such challenge. And thereupon the court, after further examination of said juror touching his understanding of the English language, declared that in the opinion of the court the said juror did not understand the' English language sufficiently to render him competent to serve as a juror on the trial of said cause, and thereupon ordered the said juror to stand aside for that reason, and the said juror was so set aside by the court without any challenge to said juror either peremptorily or for cause having been made by the State through the district attorney.”

The law, we think, justifies the action of the judge. Section one of act No. 94 of 1873, which fixes the qualifications of a juror says that “nothing in this section shall be so construed as to deprive the judges of this State of the discretion to decide upon the competency of jurors in particular cases when, from any physical infirmity, or from relationship within the fourth degree, to be computed according to the civil law, or from ignorance of the English language and inability to understand the same when read or spoken, or other cause, the juror may be incompetent to sit upon the trial of any particular cause.”

Under this statute the judge of the district court could notbe deprived of the discretion of deciding upon the competency of the juror. He did decide, and his decision is conclusive.

Judgment affirmed.


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    No. 903.
    State ex rel. F. Richard, Attorney in fact, vs. William Robertson, Clerk.
    By tlie second section of act No. 21 of 1872 the clerk of the district court is not required to deliver the transcript of the record in which an appeal is taken before his fees for preparing the same have been paid.
    APPLICATION for a mandamus to be directed to the clerk of the district court in and for the parish of St. Landry.

      J. M. Moore, for relator.

      B. A. Martel, for respondent.
   Howell, J.

The relator complains that the defendant refuses to make out and deliver or transmit a transcript of appeal, although he, relator, has furnished an appeal bond with good security, as ordered by the judge of the lower court, and to which no legal objection is made.

The clerk, now in office, answers that the relator has refused and still refuses to pay for the cost of making out the transcript, which under act No. 24 of 1872 the clerk is not bound to deliver to the appellant until such cost is paid, and for this reason the respondent refuses to deliver the transcript of appeal. This implies that the transcript is made out and is not delivered to appellant or transmitted by the clerk to this court because its cost is not paid.

By the second section of the act cited, the clerk shall not be required to deliver the transcript of the record before his fees for preparing the same have been paid.

It is therefore ordered that the application for the mandamus herein be dismissed with costs.


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    No. 949.
    Sophia Martin, Executrix, et al., Heirs, vs. Frances E. Brashear and Husband.
    This is a potitory action. Prescription is pleaded, under the facts of the ease, the titles by which defendant holds are sufficient at least to sustain the proscription of ton years, and defendant has shown possession in herself and her authors for about thirty years.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      A. L. Tucker and W B. Merchant, for plaintiffs and ap-pellees.

      Fred. Gates, for defendant and appellant.
   Howell, J.

This is a petitory action, instituted in March, I860, to recover a tract of land in the possession of defendant, who sets up title to and the prescription of ten, twenty, and thirty years. Plaintiffs claim title through a confirmation by act of Congress approved February 28, 1823, upon the report of the Register Harper, Eastern District of Louisiana, that Robert Martin claimed the land by purchase under Antoine Pilboro, in whose favor an order of survey was made by Governor Gal-vez on the second of July, 1776. Defendant claims by chain of title running back to said Antoine Pilboro, who, by private apt, on the fifteenth of July, 1821, sold to James Bowie. The introduction of this title was objected to as not the best evidence, being a copy, and the loss of the original not accounted for. We think the testimony of H. E. Lawrence and L. Y. Gremillion, recorder of Avoyelles, sufficiently accounts for the loss of the original, and that the copy made by the latter from the records of his office was admissible. It was the best evidence that could be obtained. The same applies to the succeeding titles of a similar character.

The action of Congress divested any title that may have been in the government of the United States and remitted all parties to the courts of the country to settle any contests in relation to the titles to the land. ¥e do not find in the record any title from Antoine Pilboro to Robert .Martin. The act of Congress does not mention the name of Martin, but refers to the report of the register, which only stated that Martin claimed it by purchase from Pilboro. The confirmation inured to the benefit of the party deriving title from Pilboro, to whom the original grant was made in July, 1776. Under this state of facts the titles by which defendant holds are sufficient at least to sustain the prescription of ten years, and defendant has shown possession in herself and her authors for about thirty years.

It is therefore ordered that tho judgment appealed from be reversed, and that there be judgment in favor of defendant, Mrs. F. E. Brashear, with costs'in both courts.


author: MORGAN, J.

text:
    No. 946.
    William H. Aymar vs. Delmas & Halley.
    Tho judge a quo erred in nonsuiting the plaintiff on tho ground that the defendants liad not been put in default.
    This is not an action for damages arising from the violation of a contract. It is simply an action to rescind a sale for non-payment of the stipulated price and for the use of the property while in the hands of tho vendees.
    APPEAL from the Third Judicial District Court, parish of St. Mary. Train, J.

      Lacey & Butler and D. Cajfery, for plaintiff and appellant.

      A. L. Tuclcer, for defendants and appellees.
   MORGAN, J.

On tho sixteenth of February, 1870, Green & Elder, brokers, acting for the plaintiff, sold to defendants, subject to plaintiffs approval, a plantation containing two hundred and eighty arpents, together with all the improvements thereon, including farming utensils of every kind, and boats, if any there were, seven mules, and all the corn and .fodder on the place, as well as a quantity of cane which had been bought for planting purposes, sufficient to plant about forty acres, for $14,500, of which $5500 was to have been paid in cash; $2700 on the first of February, 1871; $3150 in one year ; and $3150 in two years. Aymar approved the sale, and so did the defendants, in writing. It was agreed between the parties that their contract.should be put in the form of a public act, and accordingly a notary public was employed to draw up the deed. After a little delay Aymar signed the act, but the defendants did not. Before signing the act, however, Aymar, upon the assurance of the defendants that they would comply with their contract, gave written instructions to his agent on the plantation to deliver it to the defendants. The order was given on the twenty-fifth of February, 1872. • Tho moment they obtained possession of the plantation they began to complain that it was not what they expected it was ; that a mule was wanting to make up the number which they had bought; that there were no boats; that the seed-cane was deficient in quantity; that some taxes were due ; .and some harness and plows missing, etc. This they made a pretext for .not complying with the terms of sale. In the meanwhile they held on to the plantation, making crops, receiving the proceeds, and paying not a ■dollar of the purchase price.

The object of this suit is to rescind the contract of sale and to obtain possession of the property, together with all the improvements, mules, carts, farming implements, etc., in the same good order and condition that they were at the time of sale, or their value, and for $15,000, value of the ■crops made by the defendants.

The answer admits the contract, but says that it has been violated by the plaintiff; that they were delayed in getting possession of the plantation, which prevented them from making a crop, resulting in a loss of §7000; that the seed cane, instead of planting forty acres, planted only fifteen; that the fences had been thrown down ; hogs and other cattle got in the seed cane ; that the improvements had been greatly injured and dilapidated; a large quantity of com had been consumed, destroyed, and carried away between the date of the contract and the delivery; that there, is a diminution in the quantity of land sold; that the agent of the plaintiff induced the laborers who were on the plantation when they purchased to leave it, contrary to their agreement; and many similar allegations. They say that the plaintiff can not maintain his action, because he has not performed his obligations, and because they have never been put in default; that he has never tendered to them such an act of conveyance as they were required to sign ; that he has never tendered to them a certificate from the recorder of mortgages showing that the property was free from incumbrances; that there are back taxes due on it; that they would not have been safe in paying the cash portion of the price and giving their notes fox the balance until after the liquidation and settlement of the damages arising from the condition of things as stated by them; and they demand a specific performance of the con- . tract, and aver that they are ready to perform their part of the same. They say that they have derived no revenue from the plantation; but, on the contrary, have expended $10,000 in improvements thereon. They pray to be quieted in their possession; that plaintiff be ordered to perfect their title; that they have judgment on their reconv.entional demand in the sum of $7000. Should the sale be rescinded, then they claim the value of their improvements, which they state to be $10,000.

This suit was instituted in 1871, and resulted in a nonsuit against the plaintiff in October, 1875. • So that from 1870 up to the present time the' defendants have been in the possession and enjoyment of the plaintiff’s property, deriving revenues therefrom, amounting in one year, at least, to some |8000, without having paid a dollar of the price agreed upon.

The ground upon which the judgment of nonsuit rests is that defendants were not prit in default. This is not an action for damages arising from the violation of a contract. It is simply an action to rescind a sale for the non-payment of the stipulated price, and for the use of the property while in the hands of the vendees. The defenses are not supported by the evidence.

The plaintiff asks for damages in the shape of rents and revenues. But we think there have been improvements placed upon the property which compensate the rents.

It is therefore ordered, adjudged, and decreed that tho judgment of the district court be avoided, annulled, and reversed, and that the sale made on the sixteenth of February, 1870, by Aymar to tho defendants, Delmas & Halley, be rescinded ; that Aymar be decreed to bo the owner of the plantation and property described in his petition; and that he be put in possession of the same.

It is further ordered that defendants pay costs in both courts.


author: MoegaN, J.

text:
    No. 876.
    Lastie Dupré vs. Richard H. Lumpkin et al.
    In support o£ liis ploa o£ proscription defendant alleges that the payments shown to have been made wore in Confederate money, and therefore no payments. But any payment, no matter in what currency, is an acknowledgment o£ tho debt, and therefore interrupts prescription.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Morgan, J.

      Lewis & Brother, for plaintiff and appellee.

      Martel & Hudspeth and Bailey, for defendants and appellants.
   MoegaN, J.

Defendants are sued for a balance • due on a promissory note, as follows:

“ Opelousas, March 26,1860.
“ On demand I promise to pay to Mr. Lastie Dupré, or order, the sum of one thousand dollars, with eight per cent annual interest thereon until paid, for value received.
“ Signed Richard H. Lumpkin, Alb. Desseau, Elbert Gantt.”

There was judgment against Lumpkin and Gantt. Desseau, or his estate (he being dead), was not condemned. Gantt alone has appealed.

It is admitted that Gantt signed the noto as surety.

He pleads that time was given to his principal, without his assent, and that this releases him from his obligation.

We fiad no extension of time in this case. Plaintiff simply received payments at various times from Ms principal obligor. The note was-payable on demand, and these payments were made, pro tardo, to discharge the obligation.

He also pleads prescription. The payments were made in time to take the case out of prescription. He says, however, that the payments were made in Confederate money, and therefore are no payments. Any payment, no matter in what currency, is an acknowledgment of the debt, and therefore interrupts prescription.

Judgment affirmed.


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    No. 932.
    Jules Mossy vs. M. T. Gordy, Sheriff, et al.
    The judge a quo erred in his ruling when ho maintained the oxeeption to the jurisdiction of his court in this ease. The object of the suit is to control the proceeds of property sold and to be sold in the parish of St. Mary in a suit in which Beraud & Gibert, of the parish of Orleans, were parties, and it is in the tribunal of that parish that the contest in relation thereto must be had. Beraud & Gibert were properly made parties in said parish. This is not a case to which the prohibition of article 162 of the Code of Practico applies.
    from the TMrd Judicial District Court, parish, of St. Mary. Train, J,

      D. Caffery and A. G. Dwmartrait, tor plaintiff and appellant.

      A. L. Tucker and Edward Simon, for defendants and appellees.
   Howell, J.

The plaintiff alleges that he entered into a written agreement with Béraud & Gibert, of the city of New Orleans, by which the latter were to roceive the sum of four thousand dollars out of the proceeds of certain property in the parish of St. Mary, to be sold in the suit of Béraud & Gibert vs. Mrs. Fuselier, and plaintiff to receive the surplus after paying costs and taxes, and also to receive the proceeds of the sale of other property of said party to be sold on twelve months credit, and the amount stipulated by one Mora to be paid to the creditors of said Mrs. Euselier; that in consideration thereof plaintiff undertook to have certain writs set aside which had been obtained in the above-mentioned suit; that he performed his part of the agreement; that the property first named was sold, yielding a surplus of more than two thousand dollars over the four thousand dollars to be received by Béraud & Gibert; but at the sale Gibert, one of said firm, in violation of the agreement, granted to the purchaser a delay of sixty days to pay the price, with the view of defrauding plaintiff of Ms rights under said written agreement. Whereupon this proceeding was instituted, asking that said Béraud & Gibert, of New Orleans; Thomas Mora, of St. Mary; and M. T. Gordy, sheriff of St. Mary; be cited, and that said Mora be enjoined from paying to Béraud & Gibert or others the amount of his indebtedness to Mrs. Euselier, and that the sheriff be enjoined from paying to Béraud & Gibert the surplus of the sale already made over said sum'of four thousand dollars, and the proceeds of the property to be sold on twelve months credit.

A motion to dissolve the injunction and an answer to the merits were filed by Béraud & Gibert, after which they filed an exception to the jurisdiction of the court, averring that they could be sued only at their ■domicile. This exception was maintained, and plaintiff appealed.

The judge erred in his ruling. The object of the suit is to control the proceeds of property sold and to be sold in the parish of St. Mary in a ■suit to which Béraud & Gibert were parties, and it is in the tribunal of that parish that the contest in relation thereto must be had. Béraud & Gibert were properly made parties in said parish. This is not a case to which the prohibition of article 162 of the Code of Practice applies.

It is therefore ordered that the judgment appealed from be reversed, that the exception of Béraud & Gibert be overruled, and the cause remanded to be proceeded in according to law, appellees, Béraud & Gibert, to pay costs of appeal.

Rehearing refused.


author: Taliavbrro, J.

text:
    No. 872.
    Corporation of Vermilionville vs. C. H. Mouton.
    The defendant, an attorney at law, refuses to pay a license tax of ton dollars, imposed by tlxe corporation of the town of Vermilionville on each attorney at law practicing; his profession within the limits of the corporation.
    Corporate bodies can exercise only the powers granted to them. In referring to the legislative act incorporating the town of Vermilionville it is impossible to find any power, express or implied, granted to the corporation to impose a license tax of any kind. Therefore the judgment rendered against the defendant was erroneous.
    APPEAL from the Third Justice Court, parish of Lafayette. Bayley, Justice.

      E. E. Mouton, for plaintiff and appellee.

      TF. C. Croio and C. Debaillon, for defendant and appellant.
   Taliavbrro, J.

The corporation of the town of Vermilionville im-X^osed a license tax of ten dollars for the year 1874 on each attorney at law practicing his profession within the limits of the corporation. The defendant, an attorney at law, refused to pay this license tax, and suit was brought against him by the corporation before a justice of the peace to compel payment, and judgment was rendered in favor of the corporation, and the defendant has appealed.

Corporate bodies can exercise only the powers granted to them. In referring to the legislative act incorporating the town of Yermilionville we were unable to find any power, express or implied, granted to the corporation to impose a license tax of any kind. The judgment rendered by the magistrate’s court we therefore conclude was erroneously rendered.

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


text:
    No. 861.
    C. Cavaroc et al. vs. Zachary T. Fournet, Administrator, et al.
    Tliore is no want of proper parties in this ease. It is not shown that there are other parties in interest than those plaintiffs pray to he cited.
    If the order for a curator ad hoc is invalid because tho party signing as judge is not judge, that is no cause to dismiss the suit. A new order may be granted by tho proper j udge.
    ‘One judgment creditor of a succession has an interest to attack the validity of the judgment of another creditor, whore tho funds of the succession ai-e not sufficient to pay both. The court below has jurisdiction to revise the judgment complained of, and plaintiffs have an interest to demand the nullity thereof.
    from the Third Judicial District Court, parish of St. Martin. Train, J.

      B. S. Perry, for plaintiffs and appellants.

      J. A. Breaux and JS. Simon, for defendants and appellees.
   Wyly, J.

Plaintiffs, who are mortgage creditors of the succession of Charles Durand, Sr., sue to annul the judgment which George ‘W. Banker recovered against said succession on the twenty-sixth of August, 1871, on the ground that the contract upon which said judgment was founded was illegal, for two reasons:

First — It was a contract between parties who during the rebellion occupied the position of enemies.

Second — The consideration of said contract was Confederate notes.

George "W. Banker excepted to the suit on the grounds:

First — Plaintiffs have not caused the necessary parties to be made.

Second — -The order appointing a curator ad hoe for Amelia Durand, an absentee, is illegal, because signed by a person other than the judge.

Third' — That plaintiffs are estopped from attacking said judgment, because it was obtained contradictorily with heirs and creditors of said succession.

Fourth — Exceptor pleads said judgment, which was affirmed by the Supreme Court as res judicata, against or in bar of this action.

The court maintained the exception and dismissed the suit. Plaintiffis appeal.

Appellees contend that this case was tried in the court below on the above exception, and also on a motion to transfer the case to the parish court, and that the said motion is not contained in the record. There were three suits on the docket between these contestants. The record satisfies us that this case was tried alone on the exception above stated, and there is no order consolidating this with the other cases. Finding no diminution of the record, we will proceed to examine the case.

We find no want of proper parties. It is not shown that there are other parties in interest than those plaintiffs pray to be cited. If the order for a curator ad hoc is invalid because the person signing as judge is not the judge, that is no cause to dismiss the suit; a new order may be granted by the proper judge..

The judgment complained of was not rendered contradictorily with plaintiffs; it is not res adjuclicata- as to them, nor are they estopped from demanding the nullity of the judgment which they allege is invalid for the grounds set up in their petition. One judgment creditor of a succession has an interest to attack the validity of the judgment of another' creditor, where the funds of the succession are notsufficient to pay both. We think the court below has jurisdiction to revise the judgment complained of and plaintiffs have an interest to demand the nullity thereof.

It is therefore ordered that the judgment herein dismissing plaintiffs’ suit be annulled, that the exceptions be overruled, and the cause remanded for trial on the merits, appellee, George W. Banker, paying costs, of appeal.


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    No. 884.
    Jean Bertrand vs. Parish of Vermilion.
    This suit must be regarded as one on warrants issued by a police jury, and is similar to that of Sterling vs. West Feliciana, 26 An. p, 59. The decision must be the-same, for the reasons set forth in that ease.
    APPEAL from the Sixteenth Judicial District Court, parish of Yer-milion. Mouton, J.

      Mouton & Débcvillon and W-illiam Mouton, for plaintiff and appellee.

      B. P. O’Bryan, for defendant and appellant.
   Howell, J.

The plaintiff, as holder by indorsement of various warrants amounting to $790, sued the parish to recover the same. The answer avers that the said warrants are invalid, the police jury being without right to issue instruments negotiable in form;

Second — The formalities of law have not been complied with, no provision having been made to meet their payment in the ordinance creating the debt;

Third — No taxes (cash) have ever been levied by said jury, nor have any ever been collected to-meet the payment of said warrants; and

Fourth. — The parish treasury has been without money to meet the payment oí any warrants drawn upon the general fund since the last seven years, no collection of taxes being made for that purpose.

Judgment was rendered in favor of plaintiff, and defendant appealed.

There is a motion to dismiss tho appeal on the alleged ground that a payment has been made on the judgment.

There being nothing before us to sustain this allegation, the motion must be refused.

We regard the suit as one on the warrants, and is similar to that of Sterling vs. West Feliciana, 26 An. 59, and for the reasons therein —

It is ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant with costs in both courts.

Behearing refused.


text:
    No. 891.
    State ex rel. Ludger Schexnayder vs. Minos T. Gordy, Sheriff.
    ■The relator took a bill of exceptions to the ruling of tho judge a quo admitting parol proof that the release bond accepted by the sheriff was taken to the clerk’s office and delivered to him to be filed, on the ground that the said clerk had issued a certificate to relator to the effect that no such bond had been so filed within the ten days prescribed, and such certificate could not be disproved by parol evidence.
    'The court below did not err. This is not such an official act as comes within tho rule invoked by relator. This court is not referred to any law which makes it the duty of the clerk to issue such a certificate as an authentic instrument. It is nothing more than a written statement by any other individual.
    APPEAL from the Third Judicial 'District Court, parish of St. Mary. Tram, J.

      A. G. Dumarlraii, for plaintiff and appellant.

      Fred. L. Gates, for defendant and appellee.
   Howell, J.

This is a proceeding by mandamus to compel the sheriff of St. Mary to deliver to the relator fourteen hogsheads of sugar, sequestered in the suit of L. Schexnayder vs. J. T. Dumesnil, upon relator’s furnishing a release bond for one thousand dollars as ordered by the judge a quo. The answer of the sheriff is, that within ten days of the seizure, the defendant in the sequestration presented an order of tho .judge and a bond, with good security, given in conformity therewith, and he, the sheriff, accepted the said bond, released the property to the said defendant, and returned the said bond into court as required by law.

The relator took a bill of exceptions to the ruling of the judge admitting parol proof that the bond taken by the sheriff was taken to the clerk’s office and delivered to the clerk to be filed, on the ground that the said clerk had issued a certificate to the relator to the effect that no such bond had been so furnished or filed within the ten days, and such certificate could not be disproved by parol evidence.

The judge did not err. This is not such an official act as comes within the rule invoked by relator. We are referred to no law which makes it the duty of the clerk to issue such a certificate as an authentic instrument. It is nothing more than a written statement by any other individual.

The evidence shows that the defendant furnished a release bond as ordered, and delivered it to the deputy clerk within ten days after seizure. This was sufficient, and the judgment in favor of the sheriff is correct.

Judgment affirmed.