author: Wtly, J.

text:
    No. 5726.
    Louisiana National Bank v. City of New Orleans et als.
    The plaintiff, as a creditor and a taxpayer lias no right to interfere in the administration of the municipal corporation oi New Orleans, or to invoke the aid of the court to compel the city to collect license in money and not in Metropolitan Police warrants as required by law. He has no direct pecuniary interest in the question raised. Hence, on this ground, the intervenors, holders of said warrants, who are the real parties whose rights are at issue, can object to this litigation and to the application of plaintiff for an injunction against the city. They have good cause to oppose the issuance of a proceeding prejudicial to them, at the instance of a party without interest to demand it. As the interests of the city were not affected, she set up no serious defense, and it looks as if the judgment as to her was a mere consent judgment. The real controversy was with the intervenors.
    APPEAL from the Superior District Court, parish of Orleans. HawJcins, J.

      Finney <& Miller, for plaintiff and appellee. B, F. Jonas, city attorney, for defendant and appellee. J. W. Thomas and A. G. lewis, for intervenors and appellants.
   Wtly, J.

The plaintiff a creditor and taxpayer, enjoins the city of New Orleans from receiving in payment of licenses Metropolitan police warrants.

The city makes no serious defense. But John Klein and Thomas Talis, Jr., who are holders of many of these warrants have intervened, alleging that these warrants are receivable for licenses under act No. 33 of the acts of 1874; that they were also receivable for licenses under act 44 of the acts of 1869 in force at the time they were issued; that on the face of these warrants it is stipulated that they are receivable for all licenses, taxes and debts due or to become due to the parishes of Orleans, Jefferson and St. Bernard, and the cities of New Orleans and Carrollton up to the amount of the apportionment assessed by the Metropolitan Police Commissioners against said parishes or cities respectively for the fiscal year in which they were issued ; and that the value of said warrants will be impaired if the city is enjoined from receiving them for licenses as required by law, and that intervenors will consequently be injured. The court perpetuated the injunction, and dismissed the intervention ; the city acquiesced in the judgment, but the intervenors have appealed.

As the interests of the city were not affected, she set up no serious defense, and we are inclined to regard the judgment as to her a mere consent judgment. The real controversy was with the intervenors. They object; first, that plaintiff as a creditor and a taxpayer, has no right to interfere in the administration of the municipal corporation of New Orleans or to invoke the aid of the court to compel the city to collect license in money and not Metropolitan police warrants as required by law. The plaintiff has no more right to the writ which it seeks than any other creditor and taxpayer, and we apprehend the law could not be administered if every person, occupying the same position, could rush into court for an injunction, by which he could exercise a supervisory control over the administration of government in the city of New Orleans.

As to plaintiff, the questions raised in the petition and in the argument are purely speculative; they apply to matters not under plaintiff’s administration, and in which it has not a direct pecuniary interest.

As the intervenors are the real parties whose rights are at issue, we think they can object to this litigation and to the application of plaintiff for an injunction, on the ground that plaintiff has no interest in the matter complained of, and has no right to raise a controversy in which only the city of New Orleans and the holders of the Metropolitan police warrants are concerned. They can object to the issuance of an injunction prejudicial to them at the instance of a party who is without interest to demand it. It is the business of courts to adjust the rights of litigants and settle issues which they have an interest in presenting.

An injunction should not be issued on the petition of a party wholly without interest, to restrain a municipal corporation from performing its duties, and if the corporation acquiesces, as in this ease, the parties interested in the performance of the duty sought to be restrained can raise the objection of the want of interest in the applicant to obtain the restraining order.

It is therefore ordered that the judgment appealed from be annulled, and it is decreed that the injunction be disallowed and plaintiff’s petition be dismissed with costs of both courts.


source: Caselaw Access Project

author: Ludelxng, C. J.

license: Public Domain

text:
    No. 4102.
    L. A. Welton v. R. P. Burton, Captain, and the Owners of Steamboat Ruth.
    The plaintiff had no privilege on the boat, as he claims, because the $500 advanced by him were to cover the expenses which he undertook to defray. The sequestration was therefore wrongfully issued.
    A APPEAL from the Sixth District Court, parish of Orleans. Cooley, J-

      S. JS. é C. Ij. Walker, for plaintiff and appellee. Bentinek JSgan, for defendants and appellants.
   Ludelxng, C. J.

The plaintiff alleges that he loaued the. defendant $500, to enable the boat to make a trip up Red river, in which he says he guaranteed a profit of $450. He claims that there was a profit of $300 on the trip. He alleges that he had a privilege on the boat for the money loaned, and he obtained a writ of sequestration against the boat, etc. He further prayed for damages and attorney’s fees.

The defendant moved to dissolve the sequestration, which was refused. He then answered, and during the course of the trial offered to pay the plaintiff $297 45 with five per cent, from twenty-eighth December to thirtieth March, 1872. This was intended as a real tender, but it was made only in the presence af one witness. C. P. article 407. There was judgment for the five hundred dollars, with privilege on the boat, etc. Defendant has appealed.

The evidence shows that the plaintiff chartered the boat for one trip up Red river for $450; that before starting, the captain and owner required the plaintiff to advance $500 for the expenses of the boat, which was done. The trip was made' for the benefit of the plaintiff, and at his risk and expense. His obligation was to defray all expenses, and pay besides $450, the price of the charter, and he was to reap the gains or profits of the trip. The evidence shows that the profits were $247 45. The $500 advanced exceeds the price of the charter of the boat by $50, which with the profits must be paid to the plaintiff, with legal interest from judicial demand. The plaintiff had no privilege on the boat, as the $500 advauced by him were to cover expenses which he undertook to defray; the sequestration was, therefore, wrongfully issued.

It is therefore ordered that the judgment of the lower court' be set aside, and that there be a judgment in favor of the plaintiff against the defendant for two hundred and ninety-seven dollars and forty-five cents, with five percent, interest per annum from judicial demand, and all costs of the lower court, except those incurred by the sequestration, which must be paid by the plaintiff. The costs of appeal to be paid by the plaintiff.


author: Morgan, J. Wyly, J., Howell, J.,

text:
    No. 5423.
    D. & J. D. Edwards v. Fairbanks & Gilman. Charles Cavaroc & Son v. D. & J. D. Edwards.
    Admitting that the New Orleans Mutual Insurance Association had no right to purchase the property in controversy from Fairbanks & Gilman, it does not make said property liable to Fairbanks & Gilman’s creditors in payment of their debts. If the company did any thing contrary to law, the result might be the failure of its charter, but this court does not understand the law to be that if a corporation acquires property in a manner even prohibited by law, the property thus acquired still belongs to the vendor who has received his price, and that it can be seized by his creditors to pay his debts.
    The sale of the machinery (the property in question) was a valid sale. Fairbanks & Gilman remained in possession it is true, but they held by a precarious title, to wit, a lease from the purchasers, and could have been divested of possession at any time, if the conditions of the lease had not been complied with.
    The machinery thus sold to the New Orleans Mutual Insurance Company was paid for by Fairbanks & Gilman either at the time the sale was made or before this suit was instituted. This would, of course, destroy whatever privilege the Edwards, plaintiffs, had as vendors. But all the machinery and materials which were not mentioned in the act of sale to the said insurance company and all the machinery and materials put into the building by D. & J\ D. Edwards since that sale are liable to tbeir execution. Whether or not the company have the landlord’s lien on these effects can not now be settled. If they have, when the property is sold, they can exercise it.
    The intervention of Cavaroc & Son must he maintained as to the sugar and molasses seized. These articles had been furnished to he refined for a compensation to Fairbanks & Gil-man of two-thirds of the profits Cavaroc & Son might make. These relations between Cavaroo & Son and Fairbanks & Gilman were not those of partners, each liable for the acts of the other. No part of the property seized ever belonged to Fairbanks & Gilman. What they were to receive from Cavaroo & Son was, in reality, only a stipulated price for work which they agreed to perform. Whether Cavaroc & Son owed any thing to Fairbanks & Gilman or not on-account of tbeir transactions, is another matter. But this question can not be decided in the present controversy.
    APPEAL from the Fifth District Court, parish of Orleans. Gullom, J.

      Hornor & Benedict, for D. & J. D. Edwards, plaintiffs and appellants. Randolph, Singleton & Browne, for the New Orleans Mutual Insurance Association, intervenor and appellant. J. S. Whitaker, for Fairbanks & Gilman, defendants and appellees. F. Fuselier, for Cavaroc & Son, intervenors and appellees. B. 1. Merriclc, Race é Foster, for Oliver Pierce, intervenor.
   Morgan, J.

D. & J. D. Edwards obtained judgment against Fairbanks & Gilman for $17,609 45 for machinery furnished and work and labor performed in a refinery which is alleged to belong to the defendants.

Under execution the machinery was seized. Subsequently, certain sugars and molasses found in the refinery, and which had been refined there, were also seized.

The New Orleans Mutual Insurance Company claim that the machinery seized belongs to them. Cavaroc & Son aver that the sugars and molasses seized are their property. The insurance company claims the property under a notarial act, dated November 8, 1872, in which it is declared by Fairbanks & Gilman that they had sold certain machinery, etc., which, is detailed in the act, to the company for $25,000, reserving to themselves the right of redemption within three years on the repayment of the like sum.

By the same act the machinery, etc., was to remain in the possession of Fairbanks & Gilman; the building in which it was located was rented to them for several years upon their paying a monthly rent therefor. To which the plaintiffs answer that, as an insurance company, the laws of Louisiana will not permit them to enter into any such contract as that now set up, and that the contract now insisted upon being in direct violation of. their charter, as well as the law, can not be enforced against any third person not party or privy to it, who-has rights independent of it, and growing out of it. It may be admitted that the company had no right to purchase the property in question from Fairbanks and Gilman. Does that make the property liable to Fairbanks & Gilman’s creditors in payment of their debts ! We think not. If the company did any thing contrary to law, the result might be a forfeiture of its charter. But we do not understand the law to be that if a corporation acquires property in a manner even prohibited by law, the property thus acquired still belongs to the vendor who has received his price, and that it can be seized by his creditors to pay his debts. Admitting that the purchase by the company transferred the title, the formalities of the law with regard to its tradition having been complied with, the next question in this case is whether the requisites of the law were complied with; that is to say, the objects sold being machinery, were they movables? If movables, was delivery necessary to complete the title to them ? Was there a delivery? The buildings in which-Fairbanks & Gilman’s machinery was contained belongs to Del Bondio; Del Bondio leased to Willoz; Willoz transferred his lease to Fairbanks & Gilman.

On the eighth November, 1872, Fairbanks & Gilman sold all their interest in certain machinery contained in that building to the New Orleans Mutual Insurance Company, who acknowledged possession of the same for $25,000. To the sale was attached the power of redemption, and it was stipulated that in ease Fairbanks & Gilman paid back to the insurance company the amount received by it within three years, there was to be a retrocession of the property sold. By the same act Fairbanks & Gilman transferred to the insurance company their lease of the property. And by the same instrument the insurance company leased the building and the machinery therein contained to Fairbanks & Gilman, who were allowed to make such alterations upon the buildings and improvements, and to add thereto such new machinery and apparatus as might better adapt them for|the purposes for which they were intended.

The sale of the machinery was, we think, a valid sale. Fairbanks & Gilman remained in possession, it is true, but they held by a precarious title, to wit, a lease, and could have been divested of possession at any time if the conditions of the lease had not been complied with. We think, therefore, that the machinery mentioned in the act of sale of the eighth November, 1872, was not liable to be seized under execution to pay Fairbanks & Gilman’s debt. We also think that the machinery thus sold was paid for by Fairbanks & Gilman either at the time the sale was made or before this suit was instituted. This would, of course, destroy whatever privilege the Edwardses had as vendors.

But the record shows from the testimony of witnesses on the part of the intervenors, that besides the machinery, etc , covered by the act of sale, there were other articles belonging to Fairbanks & Gilman, worth some $30,000. The insurance company, however, says that if this be the fact, the instant Fairbanks & Gilman acquired the same as owners, the title of the company eo instanti attached, and it became the owner thereof, and the possession of Gilman & Fairbanks was the possession of the company.

The result of this doctrine, if correct, would be that if a man leases a building and that which the building contains at the time of the lease, everything which the lessee puts into the building would become the property of the lessor. We find no authority upon which such a conclusion could rest.

It does not, therefore, in our opinion, matter whether the goods furnished by IJ. & J. D. Edwards, after the sale from Fairbanks & Gil-man to the insurance company, were paid for or not. There is no doubt in our mind that the debt claimed by the Edwardses is due, and whether due or not is no concernment to the company. They have the right to protect their own property from illegal seizure, but they have no authority to prevent a creditor from making his debt out of the property of his debtor.

The only question before us is whether the property sold to Fairbanks & Gilman, after their sale to the insurance company, belongs to Fairbanks & Gilman, or whether it belongs to the insurance company, who never bought or paid for it. It seems to us that the question answers itself. The authorities cited, 5 An. 532; 12 La. 170; 9 La. 99; 5 N. S. 247; 16 La. 94, do not, in our opinion touch the question at issue here.

We conclude, therefore, that all the machinery and materials, which was not mentioned in the act of sale of the eighth of November, 1872, and all the machinery and materials put into the building' by D. & J. D. Edwards, since that period, are liable to their execution.

Whether or do the company have the landlord’s lien on these effects can not now be settled. If they have, when the property is sold, they can exercise it.

As regards ihe intervention of Cavaroc & Son, it must, we think, be maintained.

Cavaroc & Son were commercial copartners. Fairbanks & Gilman were sugar refiners.

Cavaroc & Son agreed to furnish raw sugars and molasses, which Fairbanks & Gilman agreed to refine. The compensation they were to receive for this work was two-thirds of whatever profit Cavaroc & Son might make out of the sugars and molasses. At the time of the seizure a quantity of sugar and molasses, which had been furnished by Cavaroc & Son, was in the possession of Fairbanks & Gilman. The relations between Cavaroc & Son and Fairbanks & Gilman were not those of partners, each liable for the acts of the other. No part of the property seized ever belonged to Fairbanks & Gilman. What they were to receive from Cavaroc & Son was in reality only a stipulated price for work which they agreed to perform. Whether Cavaroc & Son owed anything to Fairbanks & Gilman or not on account of their transactions is another matter. But this question can- not be decided in the present controversy. The only thing for us to decide is whether the property seized is or not liable to the payment of Fairbanks & Gilman’s debt.. We think it is not.

The district judge gave judgment in favor of plaintiffs, decreeing them entitled to a privilege on all the machinery and apparatus used and contained in Fairbanks & Gilman’s refinery; dismissed the intervention of the New Orleans Mutual Insurance Company; maintained ■the intervention of Cavaroc & Son, and gave judgment in favor of Fairbanks & Gilman for two-thirds of the net profits that have been or mayjbe hereafter realized from the sale of the sugar and molasses manufactured by them in their refinery, under their contract with Cavaroc & Son.

The judgment is partly right and partly wrong. It is right in so fiar asjjit gives to plaintiffs a privilege, by virtue of their seizure, upon the machinery found in the defendants’ refinery, and placed there after the sale from them to the insurance company. It is wrong in decreeing the property purchased from the defendants by the insurance company liable to pay the plaintiffs’ debt. It is wrong as regards the dismissal of the insurance company’s intervention, in so far as the property purchased from the defendants is concerned. It is right in dismissing the intervention in respect to the machinery purchased by the defendants subsequent to the sale to the company. It was right in maintaining the intervention of Cavaroc & Son, but it is wrong in passing upon the question of interest in the profits of the sugar and molasses which had been manufactured by the defendants. This is. not the proceeding in which such an interest can be ascertained.

It is therefore ordered that the judgment of the court a qua be-amended by decreeing that all the machinery found in the building, subsequent to the act of sale be subject to the plaintiffs’ execution, and that the intervention of the insurance company be maintained in so far as the property mentioned in said act of sale is concerned; that the intervention of Cavaroc & Son be maintained; that the question of interest of Cavaroc & Son and Fairbanks & Gilman in the profits arising from the manufactured sugars and molasses, found in the building at the time of the seizure, be reserved, and the question of the landlord’s privilege be reserved. Costs to be paid by D. & J. D. Edwards.

Wyly, J.,

dissenting. I am satisfied that the notarial act from Fairbanks & Gilman to the New Orleans Mutual Insurance Company was not intended to be a sale.of the machinery. There was no intention to buy or to sell in that contract. Its real purpose was to secure the New Orleans Mutual Insurance Company for a loan to Fairbanks & Gilman, and the real contract was disguised nnder the form of a sale.

The machinery was personal property and was not actually delivered ; there was not a moment of time that this property ceased to be in the possession of Fairbanks & Gilman.

As to plaintiffs there was no sale of this personal property, because there was no delivery; the notarial act added nothing to the validity of the contract. It is the real intention of the parties that determines the character of the contract, regardless of the form under which they have chosen to disguise it. Fairbanks & Gilman wished to secure the insurance company in a loan of $25,000. They sold the machinery which they had in a leased building used by them as a sugar refinery and transferred the lease; in the same act they released the building and the machinery and reserved the right to redeem the property. They continued the operation of the refining without any change of possession, except what appeared merely on paper.

The plaintiffs, creditors of Fairbanks & Gilman, ought not to be evaded in the pursuit of their debtors by such a shallow device.

Can any one believe that the insurance company, unauthorized and prohibited by law from carrying on a commercial business, really intended to buy the machinery of Fairbanks & Gilman; to lease the. house for the purpose of engaging in the commercial business of a sugar refinery, and before completing the act changed their mind, concluded not to go into the business, but would release the house to Fairbanks & Gilman and let them keep the machinery with the right of redemption? Why should the insurance company, prohibited from carrying on a refinery, lease from Fairbanks & Gilman their sugar refinery and in the same act release it to them, unless their real purpose was to get an apparent or constructive possession of the machinery remaining in the actual possession of Fairbanks & Gilman, and thereby obtain a title to this personal property as a security for the loan which they made to Fairbanks & Gilman ?

The law ought not to bo circumvented, and the sale of personal property without actual delivery ought not to be validated by an apparent but fictitious delivery, concocted by the ingenuity of debtors to evade the pursuit of their creditor. I can not believe that Fairbanks & Gilman really intended to sell their machinery and retire from the business of operating a sugar refinery; on the contrary, the record teems with evidence satisfying me that their purpose was to extend their business and operate upon a larger scale. For that purpose they immediately expended large sums in buying more machinery; and to aid them in a more extensive operation of the refinery, the insurance company actually loaned the money on the security of a fictitious sale of the machinery described in the notarial act.

In this litigation the insurance company not only claim the machinery described in the notarial act, but they claim the title of all the machinery subsequently bought by Fairbanks & Gilman, worth at least twenty-five thousand dollars. They ought not, under the disguise of a sale, to obtain a security on personal property which the law does not authorize; they ought not to succeed in their attempt to rescue all the machinery, the personal property of Fairbanks & Gilman, from the seizure of their judgment creditors, the plaintiffs herein.

I therefore dissent in this case.

Howell, J.,

dissentmg. I concur in the dissenting opinion of Mr. Justice Wyly.

Rehearing refused.


author: Wyly, J.

text:
    No. 5724.
    Widow Elizabeth Marchal v. Harriet Hooker et als.
    A judgment is not completed and can not operate as a judicial mortgage or liave any effect until it is signed. It is the recording of a judgment that gives a judicial mortgage, and until a final judgment is signed it is no judgment.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      J. H. Ferguson, for plaintiff and appellant. J. Fish and B. Shackleford, for defendants and appellees.
   Wyly, J.

On the first of July, 1874, Mrs. Harriet Hooker obtained judgment against John Barrera, but it was not signed until the third day of November following. On tbe twenty-eigbtb of July, 1874, however, she recorded it.

Subsequently, to wit, on the twenty-sixth of August, 1874, Barrera conveyed to plaintiff the property involved in this controversy, which the defendant contends is affected with a judicial mortgage resulting from the registry of her said unsigned judgment.

The question is, did the registry of defendant’s unsigned judgment operate as a judicial mortgage on the property conveyed by Barrera to plaintiff in August, 1874, before said judgment was signed by the judge? We think not. Until signed the judgment was not completed, and it could not operate as a judicial mortgage or have any effect. It is the recording of a judgment that gives a judicial mortgage, and until a final judgment is signed it is no judgment. 5 N. S. 105.

It is therefore ordered that the judgment herein in favor of defendants be annulled, and it is decreed that plaintiff is the owner of the property described in the petition; that the same is not affected with the judicial mortgage set up by the defendants, and that plaintiff’s injunction be perpetuated at the cost of defendant, Harriet Hooker, in both courts.

Rehearing refused.


author: Howell, J.

text:
    No. 5592.
    Peet, Yale & Bowling v. J. J. McDaniel & Co. L. H. Gardner & Co. and A. Baldwin, Garnishees.
    3?be garnishment process was not intended and can not be used to litigate and settle side issues. In this case were the attachment sustained, it would be the engrafting of the suit oí 3. 3. McDaniel v. L. H. Gardner & Co. and A. Baldwin for damages, upon the suit of Peet, Yale & Bowling v. 3. 3. McDaniel & Co., and making Beet, Yale & Bowling the plaintiffs in the said suit for damages.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Semmes <& Mott, for plaintiffs and appellants. T. M. Gill, JE. D. White, Kennard, Rowe <& Prentiss, for defendants and appellees.
   Howell, J.

The plaintiffs, having obtained judgment against the defendants, issued garnishment process against L. H. Gardner & Co. and A. Baldwin, who answered that they were not indebted to the defendants and had no property belonging to them. The plaintiffs traversed these answers and averred that L. H. Gardner & Co. as principals and A. Baldwin as security on the attachment bond in the suit of L. H. Gardner & Co. v. J. J. McDaniel & Co., No. 4542 on the docket of the Sixth District Court, are indebted to the said McDaniel & Co. for the damage caused by the wrongful attachment therein 5 that said damage amounted to $5000, for which sum said Gardner & Co. are indebted to said McDaniel & Co., and A. Baldwin is indebted to them in the sum of $1300, the amount of the attachment bond signed by him as security. To this the garnishees excepted :

Mrst — That the action of plaintiffs is premature, there being a suit against them by said McDaniel & Co. pending on exceptions not at issue on the merits and in which their liability for damages, if any, is involved.

Second — That such liability and the issues in said suit can not be tried collaterally as is attempted here.

Third — That there is no privity of action between plaintiffs and ex-ceptors.

The exceptions were maintained and the plaintiffs appealed.

We think this proceeding, if properly termed a traverse, is premature, because the liability for the alleged damage is not ascertained and can be ascertained only in the suit for that purpose. The garnishment process was not intended and can not be used to litigate and settle side issues. This is really the ingrafting of the suit of J. J. McDaniel v. L. H. Gardner & Co. and A. Baldwin for damages upon the suit of Peet, Yale & Bowling v. J. J. McDaniel & Co., and making Peet, Yale & Bowling the plaintiffs in the said suit for damages. This can not be done, and the second ground of the exceptions is good.

Judgment affirmed.


text:
    No. 4089.
    Widow Stewart v. V. M. Killmartin and J. B. Davis.
    The defendant, a married woman to the knowledge of the broker who negotiated the lease on which she is sued, being without authority to make the contract or to stand in judgment, and not being shown to be pursuing a separate business for herself, the plaintiff can not recover.
    APPEAL from the Seventh District Court, parish of Orleans. Col-lens, J.

      Louque, for plaintiff and appellant. Mc&loin c6 Nixon, for defendants and appellees.
   Howell, J.

This is a suit for rent according to a written lease of certain premises to Mrs. Killmartin, with J. B. Davis as security.

It is shown by competent evidence that Mrs. Killmartin was a married woman, and the house broker who negotiated the lease for plaintiff knew this fact. She was not authorized to make the contract of lease or to stand in judgment, nor is it shown that she was pursuing a separate business for herself. The judgment, therefore, as rendered adversely to the plaintiff, is correct.

Judgment affirmed.


author: Morgan, J.

text:
    No. 5749.
    John Fitzpatrick v. The City of New Orleans.
    This suit originates in a claim against the city of New Orleans for salary and fees of office as clerk of the Superior Criminal Court, in alleged conformity with the second section of the act of 1874, establishing said court and providing for the clerk thereof. The act says that tor issuing any process, the iee whereof is not determined by law, the judge of the court shall fix the compensation to which the clerk is entitled, in addition to his regular salary.
    Process is so denominated, because it proceeds, or issues forth in order to bring the defendant into court to answer the charge preferred against him, and signifies the writ or judicial means by whioh he is brought to answer.
    Motions made by the Attorney General, copies of Indictments, etc., are not process. These are services, which seem to be paid for by the fixed salary of five thousand dollars allowed by the act.
    The judge of the Superior Criminal Court has no power to certify the costs of any thing but process for which no provision has been made in the statute. The charges in this case were not for the issuing of any process. The judge, therefore, under the statute, had no power by his certificate of their correctness to make them a liability of the city, and his approval was binding upon no one.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Brauglm, Buck & JDinkelspiel, for plaintiff and appellee. Samuel P. Blanc, assistant city attorney, for defendant and appellant.
   Morgan, J.

Plaintiff sues the city for $7016 66, for salary and fees of office as Clerk of the Superior Criminal Court.

His bills have been approved by the judge of that court.

There is no contest as regards his salary. The city, however, contends that his account is swelled up by charges which he is not entitled, under the law, to make.

Plaintiff contends: First, that he has only charged such fees as are allowed by law; and, second, that the approval of his accounts by the judge is conclusive.

Section two of the act of 1874, p. 220, which established the Superior Criminal Court, and provided for a clerk thereof, says: “ The clerk shall receive a salary of ñve thousand dollars per annum, and such fees as are now allowed by law for.the issuing of attachments, subpenas to witnesses and writs of habeas corpus, and also ten per cent, on all fines collected; and for issuing any process, the fee whereof is not provided by law, the judge of the court shall fix the compensation, which salary, fees and compensation shall be paid quarterly by the treasury or Department of Finance of the city of New Orleans.”

Many of the charges winch go to make up the total of the sum claimed from the city .consist in motions made by Attorney General to file indictment,” “recording, docketing and indexing same,” “copies of indictment,” “ reading information to jury,” etc.

“ Process is so denominated because it proceeds, or issues forth in order to bring the defendant into court to answer the charge preferred against him, and signifies the writ or judicial means by which he is brought to answer.” Bouvier’s Law Dictionary, verbo Process.

Motions made by the Attorney General, copies of indictments, etc., are not process. These are services which, it seems, are paid by the salary of five thousand dollars.

The second ground relied upon by the plaintiff is, that the account sued on having bee.n approved by the judge, the city is concluded. He quotes the one thousand and forty-second section of the Revised Statutes, which provides that “ all expenses incurred in the different parishes of the State and in the city of New Orleans, by the arrest, confinement, etc., of persons accused or convicted of crimes*** and all expenses whatever attending criminal proceedings shall be paid*** after an account thereof shall be duly certified to be correct by the clerk of the court and the presiding judge thereof.” And he relies upon the cases of Parker v. Robertson, 14 An. 249; Shaw v. Howell, 18 An. 195, and on the case of the City v. Patton, lately decided.

Parker’s claim was for expenses in criminal proceedings. His accounts were approved by the judge and clerk. The court said: “ The act of 1857 leaves it to the wisdom of the judge and clerk to interpret the act of 1857, and to decide what are the expenses intended by it.*** The Legislature have manifested their compliance by clothing them with the power of certifying these accounts.” But the decision goes on: “It is true that as the certificate is, according to Mr. Crittenden, the evidence of the exercise of a special and limited jurisdiction, it must show upon its face a case within that jurisdiction. If, for example, the certificate of the judge and clerk should show upon its face that it was for fees in civil suits, the auditor might refuse to authorize its payment, because there is no law empowering the judge and clerk to certify them in order to have them paid by the State.”

The case supposed is the case before us. The judge has no power to certify the costs of any thing but processes, for which no provision had been made in the statute. The charges complained of were not for the issuing of any process. The judge, therefore, under the statute, had no power, by his certificate of their correctness, to make them a liability of the city, and his approval was binding upon no one.

Shaw’s case was identical in facts with Parker’s case, and Patton s case does not differ from either.

In our opinion the account A should be reduced $1802 05, and account B $398 75.

It is therefore ordered, adjudged and decreed that the judgment of the district court be amended by reducing the same from $9089 21 to $6888 41, and that, as thus amended, it be affirmed; defendant to pay costs in the court below, the costs of appeal to be borne by plaintiff.


author: Ludeling, C. J.

text:
    No. 5676.
    Parish of West Baton Rouge v. Robert Morris.
    In this instance the claim of the plaintiff against the defendant, tax collector, for uncollected taxes and licenses, is unfounded in law and equity. If the defendant is responsible to the plaintiff for the uncollected taxes, the defendant would have the right to continue to collect them after his removal from office — which he can not do.
    There is no evidence that the defendant received the warrants in payment of taxes, which he tendered in settlement, or that he was authorized to receive them. They were therefore properly refused by the treasurer in settlement of taxes collected.
    The defendant was the agent of the parish and he is bound to return to the parish the amount of taxes he received in currency, and the court will presume that he received ourrency, unless the law authorized the receipt of warrants in payment of taxes, and the evidence showed that he actually received warrants in settlement of the taxes. Tax collectors can not be permitted to speculate in parish warrants.
    APPEAL from the Fifth Judicial District Court, parish of East Bacon Rouge. Dewing, J. Jury trial.

      N. W. Pope, district attorney, pro tern., D. H. Barrow, J. O. Fuqua, for plaintiff and appellant. A. 8. Herron, B. G. Posey, W. H. Goodale, for defendant and appellee.
   Ludeling, C. J.

This is a suit for the parish taxes of 1869, 1870 and 1871 and licenses for said years, alleged to be due by the defendant, to wit, $13,315.

The defendant admits that he was parish tax collector for said years and that he received the tax rolls and licenses, and he alleges that he has paid into the treasury all the taxes and licenses collected by him, except á small balance in currency and the amount of parish warrants, which he says he has tendered to the parish treasurer, together with a list of delinquent taxpayers and unissued licenses. The plaintiff’s theory is that the collector is responsible for the taxes and licenses not collected. The evidence shows that the defendant delivered to his successor the tax rolls, showing the uncollected taxes, and that the plaintiff is now collecting and has been collecting the taxes for which the defendant is. sued. This shows that the claim of the plaintiff against the defendant for uncollected taxes and licenses is unfounded in equity or in law. If the defendant is responsible to the plaintiff for the/uncollected taxes, the defendant would have had the right to con-tin,úe to collect them after his removal from office. This, it is clear, ui^der the law, he could not do. There is no evidence in this record to :-.how that the defendant received the warrants which he tendered in settlement, in payment of taxes, or that he was authorized to receive them. They were, therefore, properly refused in settlement of taxes collected. The defendant was the agent of the parish, and he is bound to return to the parish the amount of taxes he received, in currency— and we will presume he received currency — unless the law authorized the receipt of warrants in payment of taxes, and the evidence showed that he actually received warrants in settlement of the taxes. Tax collectors can not be permitted thus to speculate in the warrants of the parish.

We do not consider it necessary to decide in this case the various questions raised by bills of exceptions taken during the course of the trial. The plaintiff charges that the defendant as tax. collector owes her $13,315 09. The defendant admits that he was tax collector, and pleads payment or tender of payment and settlement. The simple inquiry, therefore, is the truth or correctness of defendant’s pleas.

It is therefore ordered that verdict of the jury and the judgment of the district court be set aside and annulled, and it is ordered and adjudged that there be judgment in favor of the plaintiff and against the defendant for the sum of two thousand one hundred and ninety-five dollars and eighty-five cents, with legal interest from judicial demand, and costs in both courts.

Rehearing refused.


text:
    No. 5356.
    Citizens’ Bank of Louisiana v. St. Louis Hotel Association and J. Cockrem, Receiver and Third Opponent.
    In this instance the contract for repairs and improvements was entered into on the seventeenth of June and was not recorded until the nineteenth of said month. By the law, the privilege of the contractor in such a case does not have a preference over creditors whose mortgages then had three.
    APPEAL from the Superior District Court, parish of Orleans. Hewhins, J.

      A. Pitot and A. Grima, for plaintiff and appellant. ILornor & Benedict and J. I). Bouse, for intervenor and third opponent, appellee. F. Fuselier, for the St. Louis Hotel Association, appellee.
   Howell, J.

This is a contest between the vendor of real estate and the holder of the claim of a contractor for repairs and improvements.

There was a separate appraisement of the land and buildings' respectively, and the third opponent was allowed the claim' asserted by.him for the repairs and improvements. \’

The plaintiff invokes article 3274 R. C. C., and contends that' the preference so allowed was lost by the failure to record the contract, fc>ut of which the claim springs, on the day it was entered into, as provided in said article. V

This position is correct. The contract was entered into on the seventeenth of June, and was not recorded until the nineteenth of said month. By the law the privilege of the contractor in such case does, not have a preference over creditors whose mortgages then had force. See Gay & Co. v. Bovard, Opinion Book 44, p. 224.

It is therefore ordered that the judgment appealed from be reversed,; and that the demand of intervenor and third opponent for preference; or privilege herein be rejected, with costs in both courts.

Rehearing refused.


author: Howell, J. LudeliÍstg, C. J.

text:
    No. 4990.
    Aimee Jumonville, wife of E. Vives v. A. Jackson Sharp.
    The delay to record an act of salo can not defeat the vendor’s privilege and mortgage in favor of a creditor of the vendee wlio held a legal or judicial mortgage against him, if the mortgage and privilege were recorded at the same time with the act of sale.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Flagg, J.

      J. B. Whittington, for plaintiff and appellee. Q. Schmidt, for defendant and appellant.
   Howell, J.

This is a hypothecary action, by which the plaintiff seeks to enforce the judgment she obtained against her husband, upon property in the possession of defendant and subject, as she alleges, to her legal mortgage.

The defense is that her judgment is a nullity, having been obtained by fraudulent collusion between herself and husband, and not having been executed for two years after rendition; that a portion of it is slave consideration, and that her mortgage has not been registered. From a judgment in favor of plaintiff the defendant appealed.

The plaintiff’s judgment against her husband, and which she seeks to enforce against the defendant, is for $7300 60, with five per cent, interest from the seventeenth of September, 1867, and mortgage for $500 from the first of April, 1854,- $431 25 from the third of April, 1858; $431 25 from the third of April, 1859; $431 25 from the third of April, I860; $5113 87 from the eighteenth of February, 1861, and $392 98 from the thirtieth of April, 1861.

The evidence sufficiently establishes the validity of plaintiff’s judgment against her husband as to the amounts and dates, its execution and registry, and the only serious question relates to the want of authority in the wife to institute either the suit against her husband or the present action. This question of authority was not raised in the lower court. As to her authority to prosecute this suit, we find in the record an appearance by the husband for the purpose of giving such authority, which is sufficient. In regard to the suit against her husband, there is no order of the judge authorizing her to institute and prosecute it, as she specially prayed; but, as held in the case of Le Blanc v. Dubroca, 6 An. 360, article 105 C. P., making such authorization necessary, is intended to protect the husband against unadvised and vexatious family suits, and, being an exception in his favor, does not afford ground for annulling a judgment against him in a controversy between his creditors and his wife. We are disposed to adhere to this view, and we do not think such interpretation of said article is a judicial annulment of the law, as contended by counsel.

The question of slave consideration does not seem to be pressed be.fore us; but the evidence does not satisfy us that any part of the wife’s claim, as allowed, was for the price of slaves.

Her mortgage was duly recorded before 1870, which preserved it as it existed from the dates fixed in her judgment, and the act under which defendant’s author acquired his rights, not having been recorded before her mortgage operated upon and attached to the land in question, her mortgage takes preference. See 20 An. 79.

The judgment in this case, however, has given the plaintiff more interest than she is entitled to, and several items not embraced in her demand, in which respects it must be changed.

It is therefore ordered that the judgment appealed from be set aside and proceeding to render such judgment as should have been given below, it is ordered that defendant, A. J. Sharp, be condemned to pay the plaintiff the sum of seven thousand three hundred dollars and sixty cents, with five per cent, thereon from the seventeenth of September, 1867, and costs in the lower court, and in default thereof that the property described in plaintiff’s petition and now owned by the defendant be seized and sold under plaintiff’s mortgage for $500 from first of April, 1854; for $431 25 from the third of April, 1858; for $431 25 from the third of April, 1859; for $431 25 from the third of April, 1860; for $5113 87 from the eighteenth of February, 1861, and for $392 98 from the thirtieth of April, 1861, and costs below. The costs of appeal to be paid by plaintiff and appellee.

On Rehearing.

LudeliÍstg, C. J.

This is a contest between the plaintiff, who is trying to subject, to her legal mortgage a plantation in the possession of the defendant, a third possessor.

The facts, disclosed by the record, are that the plaintiff has a judgment against her husband, Edward Yives, for a large sum of money, and to secure this sum she has a legal mortgage against the property which may have been owned by the husband since the existence of her claim. The property in the possession of Sharp was sold to Edward Yives in 1861, and a mortgage and vender’s privilege were retained on the property. The act of sale was not recorded till 1866, at which time the mortgage and privilege were also duly recorded in the parish where the property is situated. This property was seized and sold to pay a part of the price, secured by the vendor’s privilege and mortgage, and the vendee at that sale sold to Jackson Sharp.

After this the wife of Edward Yives obtained her judgment and recorded it. She now claims that her legal or tacit mortgage was superior to the vendor’s privilege and mortgage, and that the property bought by Sharp is subject to her mortgage, because the mortgage and privilege of Dalferes, the vendor of Yives, her husband, were not recorded immediately after the sale.

The mortgage and privilege were recorded at the same time the act of sale was recorded in the records of the parish.

In the case of Rochereau v. Colomb, recently decided, we held that the delay to record the act of sale could not defeat the vendor’s privilege and mortgage in favor of a creditor of the vendee, who held a legal or judicial mortgage against him, if the mortgage and privilege were recorded at the same time with the act of sale.

Eor the reasons given in that case, it is ordered and adjudged that our former decree be annulled, and that the judgment of the court a qua be set aside.

It is further ordered and adjudged that the plaintiff’s demand be rejected, with costs of both courts.


text:
    No. 5527.
    Succession of Ernest Poree.
    "Where a judgment of partition and sale was rendered without all the parties in interest being parties to the suit of partition, said judgment is an absolute nullity, and the sale made under it is also null and void.
    APPEAL from the Second District Court, parish of Orleans, lissot, J.

      Charles Louque, for appellants. A. J. Yillere, for appellees.
   Ludeling, C. J.

Charles P. Poree died, leaving five children. Helena Poree is a minor. The property remained in their possession without opening the succession of the father. Subsequently, Ernest, one of the children, died, and Morand, a creditor, caused himself to be appointed administrator of said succession, and sued the other heirs for a partition of a tract of land owned by the heirs. He caused a tutor ad hoc to be appointed to represent Aline Poree. The person appointed never qualified as tutor ad hoe.

Citation addressed to Aline Poree was served on the person appointed to represent her; he filed an answer stating that the minor’s name was Helena Poree, and reserving the rights of the minor to have the terms of sale fixed by a family meeting. A judgment by default was confirmed against the heirs of age, and the property was ordered to be sold for cash, and it was sold. In the meantime, one of the brothers was appointed tutor to his sister, and all the heirs united in taking an appeal from the judgment in the suit for partition, and also in a rule taken against the vendee and administrator aforesaid to show cause why the sale aforesaid should not be set aside, the price whereof is still in the sheriff’s hands, and from the judgment dismissing this rule they also appealed.

It is necessary to notice only the following objection urged against the judgment of partition and sale — that all the parties in interest were not parties to the suit of partition. Selena Poree, a minor, was never cited. The judgment was an absolute nullity, and the sale made under it is also null and void.

It is therefore ordered that the judgment in the partition suit be set aside and the sale made under it be declared void, and that the case be remanded to be proceeded with according to law. Costs of appeal to be paid by the appellee and the costs of the lower court to be paid by N. St. Morand, administrator.


text:
    No. 4935.
    James H. Lynch v. Mrs. E. Kennedy and Husband.
    Tlxe plaintiff is himself a ship carpenter, and all the defects which he alleges to be in the schooner which he purchased at a public sale, if they existed, being ai>parent, he can not complain that the property he purchased was not what he had a right to expect it would be.
    APPEAL from the Superior District Court, parish of Orleans. Saio-Icms, J.

      B entinóle Began, for plaintiff and appellee. Ogden & Sill, Lacey & Butler, for defendants and appellants.
   Morgan, J.

Plaintiff purchased a schooner from the defendants for five thousand dollars, two thousand five hundred dollars cash and the balance in his two notes, one for five hundred dollars, payable one month after date; the other for two thousand dollars, payable four months after date. The purchase was made on the twenty-sixth of February, 1873.

On the twentieth of March following he brought this suit to enjoin the defendants from disposing of the notes, and to recover $2141 21 to be credited on the notes.

His allegations are that the defendants fraudulently concealed from him the draught of the vessel, and that the rigging, sails, etc., were not new, as they were represented to be.

The sale was made by public act, and in that act nothing is said as to the draught of the schooner or the condition of her rigging.

The plaintiff is himself a ship carpenter, and all the defects of which he complains were, if they existed, apparent. He can not, therefore, complain that the property he purchased was not what he had a right to expect it would be.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed; that the injunction herein issued be dissolved; that this suit be dismissed, and that the plaintiff pay costs in both courts.

Rehearing refused.


text:
    No. 5576.
    New Orleans, Mobile and Chattanooga Railroad Company v. T. S. Dugan.
    The defense of the surety on an appeal bond furnished by the plaintiffs, on tho ground that the necessary proceedings were not had against tho principals, can not be sustained, two executions having been issued without effect, and the United States Circuit Court having specially enjoined the execution of any writ against the plaintiffs.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Flagg, J.
    J. L>. Augustin, for William Harris, surety on appeal bond, and appellant. Legendre & Foehé, for defendant and. appellee.
   Howell, J.

William Harris has appealed from a judgment against him for $1000, as surety on an appeal bond furnished by the plaintiffs.' His defense is that the necessary proceedings were not had against the principals. The evidence shows that two executions were issued without effect, one in New Orleans and the other in St. Charles. It is shown that the United States Circuit Court had possession of the property of the plaintiffs, and specially enjoined the execution of any writ against them. This brings the ease within the doctrine in Alley v. Hawthorn, 1 An. 123, and Lepretre v. Barthet, 25 An. 124. It differs materially from the circumstances in the case of Saux et al. v. Betz, just deoided.

Judgment affirmed.

Rehearing refused.


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

text:
    No. 5305.
    Mrs. Virginia C. Burke, Testamentary Executrix, v. Mrs. Clarissa Bishop and Mrs. Risley.
    ‘The check, the amount of which plaintiff, in her capacity of testamentary executrix, seeks to recover as having been embezzled by one of the defendants, Mrs. Bisley, waB not of Hampton Elliott, whose succession she represents, but was a check drawn by Britton and Kountz to the order of said Elliott. The moment Elliott indorsed it and handed it to Mrs. Bisley, his property in it ceased. It was not his money which the bank paid when it paid the check after his death. It was Britton and Kountz’s money. The bank paid under instructions from them and not under any mandate from Elliott.
    A check is not an obligation. It is an unconditional order to pay. It, in fact, represents money, and to all practical-intents is money. "When, therefore, Elliott gave the check in ^question, indorsed by him, to Mrs. Bisley, it was money which he gave her, and which she reduced to her possession when she took it.
    APPEAL from the Sixth District Court, parish of Orleans. Sauoier, J.

      Lábati, Aroni and Clinton, for plaintiff and appellee. J. A. Campbell, J. 8. Whitaker, F. Bermudez, for defendants and appellants.
   Morgan, J.

Plaintiff, in her representative capacity, seeks to recover from the defendants $1434 47, amount of a check drawn by Britton and Kountz, to the order of Hampton Elliott, and by him indorsed in blank, and which she alleges the defendants embezzled and misappropriated.

There was judgment in favor of the plaintiff.

As regards Mrs. Bishop, the record shows that she was a married woman when the suit was instituted, and she was not authorized to-stand in judgment by her husband or by the judge. As to her, therefore, the judgment was not authorized.

In respect to Mrs. Risley, her codefendant, she claims that the check was a manual gift from Elliott to herself and that she can not be forced to return it.

The facts are that Elliott gave the check to Mrs. Risley on the twenty-seventh March, 1872. On that day, in the afternoon before three o’clock, Mrs. Bishop gave the check to a visitor at the house, who had transacted other business for her, and requested him to have it cashed. He advised her to deposit it in the bank where she kept an account, and he took the check from her and her bank book to have the deposit made. He did not make the deposit that afternoon. The following day was Good Friday, and the bank was closed, so that ho could not deposit it on that day. On Saturday he deposited it, and on Monday morning it was paid. On Friday Hampton Elliott died. He was therefore dead when the check was paid. The position of Mrs. Burke is, that the succession is protected by the 1536th article of the Code, which provides that “ An act shall be passed before a notary public and two witnesses, of every donation inter vivos of immovable property or incorporeal things, such as rents, credits, rights or actions, under the penalty of nullity;” -and also by the 1538th article of the same Code, which declares that “a donation inter vivos, even of movable effects, will not be valid, unless an act be passed of the same, as is before prescribed.” And in support of her pretentions she relies-upon the succession of DePouilly, 22 An. 97; 12 R. 76; 17 La. 144. The defendant rests her case upon the 1539th article of the Code, which says that “the manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.”

If the thing given to Mrs. Risley had been a promissory note, her case would be covered by the cases of Barriere v. Gladding, 17 La. 144; Morres v. Compton, 12 R. 76; Succession of DePouilly, 22 An. 97; in all of which cases it was held that the donation of a promissory note must be preceded by the formalities required by article 1538 (1525) of tfhe Code.

If it had been a check drawn by Hampton Elliott, and he had died before the check was presented, and the check was a donation, the check would have been worthless, because by the demise of the donor his mandate to his agent, the bank, was revoked.

But the check in question was not of Hampton Elliott’s drawing. It was a check drawn to his order. The moment he indorsed it and handed it over to Mrs. Risley, his property in it ceased. It was not his money which the bank paid when it paid the check. It was Brit-ton and Kountz’s money. The bank paid under instructions from them and not uuder any mandate from Elliott.

A check is not an obligation. It is an unconditional order to pay. It, in fact, represents money, and to all practical intents is money. When, therefore, Elliott gave the cheek in question, indorsed by him, to Mrs. Risley, it was money which he gave her, and which she reduced to her possession when she took it.

Under these circumstances the judgment which condemns her to return it is erroneous.

It is therefore ordered, adjudged and decreed that the judgment of the district court as regards Mrs. Bishop, be annulled, and that as regards Mrs. Risley, it be also avoided, annulled and reversed, and that there be judgment in her favor with costs in both courts.

Ludeling, C. J.,

dissenting. I dissent in this case. The defendants filed only a general denial; and, in my opinion, there is no evidence worthy of credit, that the check was given to either of the defendants. Elliot died in the house occupied by the defendants, and after his death the check, which had been sent to Elliott a day or two before his death was collected by the defendants. I think plaintiff should have judgment for the amount .of the check.

Taliaferro, J.,

dissenting. I concnr witli the Chief Justice in his dissenting opinion.

Rehearing refused.


author: Taliaferro, J. Morgan, J.,

text:
    No. 3866.
    Randolph, Singleton & Browne v. Joseph W. Carroll.
    It is a rule long settled by tliis court that it will not be implicitly governed in regard to questions relating to the value of professional services rendered by attorneys at law to their clients, by the opinions of legal men taken in evidence, but will be guided by a conscientious estimate of the value of the services performed, and will, of itself, fix the amount, without reference to the opinions of witnesses.
    APPEAL from the Eighth District Court, parish of'Orleans. Dibble, J. Jury trial.

      Finney & Miller, for plaintiffs and appellees. Bandolph, Singleton & Browne, personally.
   Taliaferro, J.

This suit is brought to recover the sum of twenty-two huudred dollars for professional services rendered the defendant by the plaintiffs as attorneys at law. The defense is that the amount claimed is excessive and out of proportion to the labor performed.

The plaintiffs liad judgment as prayed for, and the defendant has appealed.

It is a rule long settled by this court that it will not be implicitly governed in regard to questions relating to the value of professional services rendered their clients by attorneys at law, by the opinions of legal men taken in evidence; but will be guided by a conscientious estimate of the value of the services performed, and will, of itself, fix the amount, without reference to the opinions of witnesses. In this case, from the services shown to have been performed, we are not satisfied with the judgment of the lower court. It is for a larger sum than we conclude to be a fair compensation for the labor and services bestowed.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered that the plaintiffs recover from defendant twelve hundred dollars, the defendant paying costs in the lower court, and the plaintiffs and appellees the costs of this appeal.

Morgan, J.,

dissenting. I think the fee charged by the plaintiffs, and established by evidence, is reasonable, and that the full amount claimed by them was earned and should be paid. I therefore dissent from the reduction made thereto.

Rehearing refused.


text:
    No. 3508.
    Edgar A. Switzer v. Mrs. M. A. Zeller et als.

    The defendants in this instance are the legal representatives of one Zeller, who went security on a release bond given in the suit of Switzer v. Steamboat !Frolic. The defense is that the assignee in bankruptcy for the owners of steamboat 3Trolic had no right to stand in judgment for said owners, and that the State court had no jurisdiction to render a judgment against the assignee. This defense is not well founded. The bankrupts having been discharged, no judgment against them could be obtained, and there is nothing in the bankrupt law which required the discontinuance of suits already commenced.
    APPEAL from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Egan & Whittemore, for plaintiff and appellant. A. G. Brice, and E. T. Merrick, Race & Foster, for defendants and appellees.

      Carried by writ of error to the Supreme Court of the United States.

   Ludeling, C. J.

This suit grows out of the suit of Switzer v. Steamboat Prolie and owners, recently decided by this court. In that suit E. A. Switzer obtained a judgment against E. E. Norton, assignee in bankruptcy of the defendants, with a recognition of a privilege on the steamboat, which had been released on bond, with F. C. Zeller as security. The defendants in this suit are his legal representatives, and this suit is to enforce the obligation of said bond.

The defense is that the judgment against Norton, assignee, is absolutely null and void, because not rendered against Heinn and wife, the owners of the Frolic, and the assignee had not the right to stand in judgment for them, and the State-court had no jurisdiction to render a. judgment against the assignee, etc.

The bankrupts having been discharged, no judgment against them could be obtained, and there is nothing in the bankrupt law which required the discontinuance of suits already commenced. See Kemp’s ' Bankruptcy, p. 186. See also case of E. A. Switzer v. John Heinn and Mary Heinn, recently decided, aud authorities therein cited.

It is therefore ordered and adjudged that the judgment of the lower court be set aside; that the exception be overruled; that the case be remanded to be proceeded with according to law; and that the appellee pay costs of appeal.

Rehearing refused.


author: Taliaferro, J. Wtlt, J.

text:
    No. 5736.
    State of Louisiana ex rel. Mississippi and Mexican Gulp Ship Canal Company v. The Administrators of the City of New Orleans.
    The intervenor in this case, J. Q. A. Fellows, has not given bond for appeal. It is not suffioientfor him to have joined the city in taking an appeal, and that the city has given bond for costs, the only bond that could bo required. The intervenor is aseparate, independent party in the litigation. The obligation of the city to pay costs does not cover the costs of intervention.
    This suit is for the same purpose as that stated in hTo. 5735, previously reported. As pledgers, the relators have sufficient interest to demand that respondents shall peril nn the duties required of them by their pledgee.
    APPEAL from the Superior District Court, parish of Orleans. HawJtins, J.

      Charles 8. JRiee, for relator and appellee. B. F. Jonas, attorney, Samuel P. Blano, assistant city attorney, for respondents appellants. •
   On Motion to Dismiss.

Taliaferro, J.

There is a motion to dismiss the appeal taken in this case by J. Q. A. Fellows, intervenor, on the ground that he has not given bond for an appeal. The record shows that the intervenor has failed to give appeal bond. He contends, however, that he joined the city in taking an appeal, and that the city has given bond for costs, the only bond that could be required in the case.

The intervenor is a separate independent party in the litigation. The obligation of the city to pay costs does not cover the costs incurred by the intervention. We think the intervenor should have given bond.

The motion to dismiss is sustained, and it is ordered that the appeal, so far as it relates to the intervenor, be dismissed.

On the Meeits.

Wtlt, J.

This case presents the same question as presented in the case just decided, namely, whether the respondents can be compelled by mandamus to collect the judgments for drainage assessments to provide funds to pay the warrants issued by the Administrator of Accounts under act 30 of the acts of 1871.

This proceeding is for (he same purpose as that stated in the case just decided. The cases were tried together and the same decree entered in each.

We regard the assignment to Yan Norden by the relators herein merely as a pledge of their franchises. re-

As pledgee, Yan Norden had sufficient interest to compel the respondents to perform the duty imposed on them by act 30 of the acts of 187L

As pledgers, the relators have sufficient interest to demand that the respondents shall perform the duty required of them by Yan Norden.

Judgment affirmed.


text:
    No. 5529.
    City of New Orleans v. City Hotel, R S. Morse and James E. Zunts.
    The tax "bill on which this suit is brought is made oat against the City Hotel, B. S. Morse and James E. Zunts. The judgment was that the City Hotel, etc., is hereby condemnedto pay, etc. This proceeding was had in the case entitled the city of New Orleans v. City Hotel, B. S. Morse and James 3G. Zunts, who have appealed on the ground that they know of no law which justifies a judgment against property, the owners of which are not unknown. who
    unknown. There can bo no doubt, under the circumstances, that the appellants were the parties who were condemned in the judgment, which must be construed with reference to the pleadings in the case and the obligation sought to be enforced. This is necessarily implied in their application for an appeal. the clerk of the
    their an It is just as much the duty of the plaintiff as of the defendants to see that the clerk of the court, or the judge, makes no error in entering the judgment.
    APPEAL from the Superior District Court, parish of Orleans. Hcm-Tcins, J.

      8. JP. Blanc, assistant city attorney, for plaintiff and appellee. J. W. Thomas, for defendants and appellants.
   Howell, J.

The defendants, R. S. Morse and J. E. Zunts, have appealed from the judgment in this case, which is for taxes, and the only complaint they make is, that it is rendered against the City Hotel, and they know of no law, they say, that justifies a judgment against property, the owners of which are not unknown.

The tax bill is made out against the “ City Hotel, B. S. Morse and James E. Zunts;” all the forms of law axe observed in the institution and conduct of the legal and judicial proceedings; default taken and confirmed, the judgment being that the defendant, City Hotel, etc., is hereby condemned to pay, etc. This proceeding was had in the case entitled City of New Orleans v. City Hotel, B. S. Morse and James E. Zunts, with the proper number on the docket. These two parties applied for and obtained an appeal, alleging that they are aggrieved by the final judgment rendered herein.

We think there can be no doubt, under these circumstances, that the appellants were the parties who were condemned in this judgment, whicli must be construed with reference to the pleadings in the case and the obligation sought to be enforced. This is necessarily implied in their .application for an appeal. See 3 La. 275 ; 4 La. 100; 5 La. 284; 14 An. 831.

The city attorney, however, concedes that the judgment is for a sum several hundred dollars larger than the tax bill which was reduced, and is in the record, along with the original bill, the error arising from following the latter in drawing up the judgment. He asks, however, that the city be not condemned to pay costs of appeal, as the error could and would have been corrected upon the suggestion of the defendants. It was just as much the duty of the plaintiff as the defendants to see that the clerk of the court did his duty, or the judge made no error in entering the judgment, and since the judgment was rendered on default, and it may be that the defendants did not know the error until too late for new trial, in making this necessary change we will draw the judgment in due form.

It is therefore ordered that the judgment appealed from be reversed, and that the judgment by default herein entered on the third day of November, A. D. 1874, be now confirmed and made final, and that the said-defendants, the City Hotel, B. S. Morse and James E. Zunts, are hereby condemned to pay to the city of New Orleans the sum of four thousand three hundred and seventy-five dollars, with ten per cent, interest per annum from the thirty-first day of July, 1874, until paid, seventy-five cents costs of advertising, and all costs of suit in the district court, and with lien and privilege according to law on the property described in the tax rolls and bills or claims on file. And it is further ordered that for the payment of the sheriff’s and clerk’s costs they do have a lien and privilege upon the judgment herein rendered. Costs of appeal to be paid by the appellee, the city of New Orleans.

Eekearing refused.


text:
    No. 5723.
    Louisiana Savings Bank and Safe Deposit Company v. Cyrus Bussey.
    In this instance, under the contract of pledge, the plaintiff had special authority to sell the collaterals at public or private sale at its option.
    Article 3165 of the Revised Code was amended on the twenty-third of February, 1872, so as to make it lawful for the pledger to authorize the sale or other disposition of the property pledged, in such manner as may be agreed on by the parties, without the intervention of courts of justice. According to the judicial admissions of the defendant, it appears that the pledge was taken after the amendment of article 3165.
    APPEAL from tlie Superior District Court, parish of Orleans. HemTcins, J.

      Bice & WMtaJcer, for plaintiff and appellee. H. O. Dibble, for defendant and appellant.
   Wyly, J.

The defendant, who was sued as an indorser of a promissory note, appeals from a judgment condemning him to pay a balance of some $4800 due on said note.

Besides the general denial the answer sets up a special defense that at the time the note in suit was discounted by plaintiff, certain shares-of the stock of the Mexican Gulf Ship Canal Company were given in pledge, or as collateral security, that “plaintiff, instead of availing itself of the collateral security, in its hands at the time of the maturity of the note to satisfy the same, held the aforesaid stock for several months, and until it had largely depreciated in value. And respondent further shows that at length, that is to say in the month of March or April, 1873, the said bank assumed to make a private sale of the stock aforesaid, and that said stock was so disposed of without any warrant of law. Respondent shows that plaintiff had no. authority to dispose of said collateral security except by sale at public auction j” and the amount plaintiff pretends to have realized, and which is credited on the note, was not the value of said stock; that if it had been sold at public auction it would have yielded enough to pay the balance due on said note.

This special defense is not established by the evidence in the record. Under the contract of pledge the plaintiff had special authority to sell the collaterals at public or private sale at its option. Furthermore, we find in the record the following written request of the defendant to plaintiff to sell the stock:

“New 'Orleans, March 29, 1873. W. Yan Norden, president of the Louisiana Savings Bank: I wish you to sell the stock of the Mississippi and Mexican Gulf Canal Company, pledged to your bank to secure a note oí the canal company indorsed by me. CYRUS BUSSEY.”

A few days thereafter, that is to say, on the second of April, 1873, the stock was sold and the proceeds credited on the note. The attempt to prove the stock was worth more than the amount realized by plaintiff was a failure. Notwithstanding the allegations of the answer and the written request of the defendant, he contends in his brief that the authority to sell in the contract of pledge was stricken with nullity by article 3165 of the Revised Code. That article was amended on the twenty-third February, 1872, so as to make it lawful for the pledger to authorize the sale or other disposition of the property pledged in such manner as may be agreed on by the parties without the intervention of the courts of justice.

The note in suit was made subsequently, to wit: On the second of April, 1872, and in the answer the defendant alleges that “at the time the note was taken for discount by the bank, plaintiff accepted as collateral security for the payment of the note one hundred and twenty shares of the stock of the Mississippi and Mexican Gulf Ship Canal Company.” According to the judicial admissions of the defendant, therefore, it appears that the pledge was taken after the amendment of article 3165.

It is unnecessary to notice the bills of exceptions, as the judgment appealed from is correct in view of all the evidence in the record.

Judgment affirmed.


author: Morgan, J. Ludeling, C. J.

text:
    No. 5444.
    Milton Benner v. Warner Van Norden et al.
    The motives which influence a person to exercise a legal right do not destroy that right or affect its enforcement.
    A valuable consideration may, in general terms, bo said to consist either in some right, interest, profit, or benefit accruing to the party who malees the contract, or some forbearance, detriment, loss, responsibility or act, or labor or service on the other side; and if either of these exist, it will furnish a sufficient valuable consideration to sustain the mailing or indorsing of a promissory note in favor of the payee or other holder.
    . He who sells a credit or incorporeal right warrants its existence at the time of the transfer. The seller does not warrant the solvency of the debtor, unless he has agreed to do so. There is no lesion, in such sales, and no reliof can be granted.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Randolph, Singleton (<s Broime, J. W. Huntington, for plaintiff appellee. Rice & WMtalcer, for defendants and appellants.
   Morgan, J.

Van Norden, one of the defendants, is sued on a promissory note for $2500. The note is dated'New Orleans, thirteenth June, 1874, and is payable seven months after date. Palmer, the other defendant, is sued as guarantor that the note would be paid at maturity. The execution of the note is admitted. The defense is, .as to the maker, that it was given without any legal or valid consideration, and that the transaction or contract under which the note was given was illegal, reprobated by law, and of no effect. Palmer pleads, first, tbe general issue, and second, be adopts Yan Norden’s answer.

The litigation grows out of transactions connected with the Missis sippi and Mexican Gulf Ship Canal Company, a corporation established by the Legislature. In 1871 the Legislature passed an act entitled “An act for the drainage of New Orleans.” See acts of 1871, p. 75. The first section of this act provides that the Mississippi and Mexican Gulf Ship Canal Company shall be authorized and empowered to excavate drainage canals and build protection levees within the then corporate limits of New Orleans and Carrollton, under certain conditions and stipulations therein expressed. Other sections mapped out the work which was to be done by the company. It was on the largest possible scale. One canal and protection levee was to be built near the shore of Lake Pontchartrain ; the canal was to be not less than sixty-five feet wide on the surface and fifteen feet deep in the middle-The protection levee was to be not less than one hundred feet wide, and of sufficient height to completely protect the city from overflow from Lake Pontchartrain. Another canal and protection levee was authorized to be built below the city to connect the lower end of the protection levee, along the lake, with the Mississippi river, of a sufficient size to fully protect the city from overflow, and to construct a like canal and protection levee above the city. The company was also authorized and empowered to excavate canals of the dimensions and at such localities as might be fixed by the board of administrators of the city as were necessary to fully drain the area bounded by the protection levees contemplated by the act. The company was also authorized to dig all the smaller canals required for the drainage of New Orleans and the lands in the rear of the city, the required width of which would be ten feet or more in width.

During the prosecution of these works, the board of administrators were required to build and run all the pumps and draining machines necessary to lift the drainage water from the canal or canals over into Lake Pontchartrain, and to keep the water in the canals in process of excavation, so far as practicable, at the proper level for the work of excavation, and at the same time assist the drainage of the adjacent lands. The eighth section of the act provided that at the end of every month, the city surveyor, or an engineer appointed by the board of administrators for that purpose, should examine the work which had been done by the company during that month, and upon a measurement of the width and depth of the canal, canals, or parts of canals dug, and protection levees built, certify as to the number of cubic yards excavated and the number of cubic yards of protection levees built during the said month. It was made the duty of the administrator of accounts, on the presentation to him of the certificate of the city surveyor or engineer, by the president of the company, to draw a warrant or warrants on the administrator of finance, in payment of the work done, at the rate of fifty cents per cubie yard of excavation, and fifty cents per cubie yard for the protection levee, the warrants to be of such denomination as might be required by the president of the company. It was made the duty of the administrator of finance to pay these warrants on presentation, and should there not be any funds in the city treasury, he was required to indorse upon the same the date of presentation, after which date the warrant or warrants were to bear interest at the rate of eight per cent, per annum until paid.

On the twenty-second May, 1872, the company, through its proper and authorized officer, by public act, declared that Whereas they had always been paid in warrants for the work done by them, which Warrants were only convertible to cash at a discount of twenty-five per cent, and more; whereas the expenditures of the company in constructing and executing their work have tobe paid in cash; and whereas, Warner Van Norden has agreed to advance to the company during the ensuing twelve months $150,000, to meet the expenses of their work, the $150,000 to be given in such installments as may be deemed necessary as the work progresses; therefore, to secure the payment of this loan, together with the interest thereon, the company transferred to Van Norden its rights and advantages granted under the act of the Legislature above quoted, as well as to all sums of money, profits and benefits that might inure or be realized by virtue of the performance and execution of the work therein provided for; and the company agreed to transfer to Van Norden all certificates, cash, warrants or bills that might be made out and delivered by the surveyor or other officers of the city for all work done by the company.

On the twenty-second November, 1872, the company, by public act, acknowledged itself indebted to Van Norden in the sum of $161,962 86, advanced by him, to the company to enable it to do the work required of it under the act of the Legislature. In part payment thereof it transferred to him certain property estimated at $50,000. This left the debt due him $111,962 86.

Benner was a director in the company. So was one Champlin. Benner frequently said to Van Norden, as is to be gathered from the testimony in the record (uncontradicted by him when on the stand), that Van Norden had what he, Benner, called “a big thing,” and that “he wanted some of it;” that some of the money received for the work done for the city should come to him; that he had got it all fixed, and that if Van Norden would come down and fix it as he wanted, he would make every thing all right; if not, he would lose by it.

To these appeals and threats Yan Norden seems to have turned a deaf ear. Champlin then instituted proceedings in the United States courts to force the company into bankruptcy. He was a director in the company, a stockholder and a creditor. His stock consisted of two hundred shares of $100 each. His credit was the company’s warrants for $1500. It was upon this last that the proceedings in bankruptcy were commenced. The act of bankruptcy, as alleged, was the sale of the company’s property to Van Norden, on the twenty-third of November, 1872.

Then commenced the publication of a series of articles in one of the public papers of this city, in which Van Norden’s conduct was severely criticized, and in which many things damaging to the character'of any man were boldly charged against him. They were conspicuously published, and attention called to them by their almost startling headings. In one of the articles it was stated that in the month of December preceding, the company had reached a condition which was regarded by the directors as one of hopeless bankruptcy.

By themselves these articles would amount to but little, and one of them would rather indicate that Champlin did not know anything about them. In one oí them it is stated: “ A director, Mr. Champlin, nest enters the field as a contestant for honors in this delectable squabble. We know nothing to this gentleman’s prejudice, and therefore can not say that his petition to place the company in the bankruptcy court resulted from disappointment, or because he did not share as liberally as more enterprising men did. Be this as it may, he has done so, and thus paved the way for a full disclosure of the affairs of this horribly managed company.”

But the author of these articles, a writer on the paper in which they were published, was examined as a witness with regard to them. He tells us that he was in the Customhouse on one occasion, when his attention was called to these proceedings in bankruptcy by Champlin. The first article, ho thinks, if not the second, was written at Benner’s house, that is, chiefly written there. He wrote in their presence, consulting with them, Benner aud Champlin, as to the facts. "They were both present, and when it was all prepared, they revised the copy, read it over, and corrected it, making some changes in it.” So that all the public knew of the inside workings of the company was disclosed to the reporter by Champlin and Benner — Champlin, the plaintiff in the bankruptcy proceedings; Benner, the plaintiff in this suit, and both of them stockholders of, and directors in, the company whose affairs, according to them, had been so horribly managed that it was hopelessly insolvent.

And so the conflict waged. Van Norden was pitilessly attacked in the public prints. This was a serious matter, not only as an individual, but because of a position of great trust which he held, viz: President of a savings bank. Besides this, he saw his enormous debt of over 8100,000 figuring on the debit side of a bankrupt company’s schedule, and he saw a likelihood of the property which had been, transferred to him going into the hands of an assignee in bankruptcy. It seems to be conceded on all hands that in such an event there would have been an end of it all. Just then propositions for negotiating were made to him. Benner held 1620 shares in the stock of the company. The transaction was a simple one. Van Norden was to purchase Benner’s stock, and Benner was to see that Champlin’s proceedings to force the company into bankruptcy should be dismissed. And so it was done. Van Norden gave him six notes for $2500 each, payable at various dates, and caused two of them to be discounted, thus paying him in cash $5000, and giving his notes of $2500 each for the balance. Benner then bought Champlin’s stock for $4000 — about twenty dollars a share — and the suit in the bankrupt court was discontinued. The suit now before us is on one of the $2500 notes.

In our opinion the evidence in the record shows that from first to last Benner was acting with the sole desire of forcing money out of Van Norden without any pretence of right thereto; that the stock which he made the pretext for his attempt was worthless when he made it, and was only a subterfuge to cover his original determination to get something from Van Norden to which he had no right. In our opinion courts of justice were not made to settle controversies standing on such a basis, and that their doors should be barred to such suits and suitors.

In regard to the defendant Palmer, he was bound only as surety. The principal obligation being declared null, the surety is discharged.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendants, with costs in both courts.

On Rehearing.

Ludeling, C. J.

The plaintiff sued the defendant, W. Van Nor-den, as drawer of a promissory note, of which the following is a true copy:

“ $2500. “New Orleans, June 13, 1874. “
“ Seven months after date, I promise to pay to the order of myself twenty-five hundred (and 00-100) dollars, value received, with interest at the rate of eight per cent, per annum from maturity until paid.”
(Signed) “ W. VAN NORDEN.”
Indorsed “ W. Van Norden.”

The defendant, E. C. Palmer, was sued as guaranteeing the payment of this note at maturity, as per his agreement, found on page 85 of the record.

The following are true copies of the answers of these two defendants :

“And now comes Warner Van Norden, one of the defendants in aboye entitled cause, and for answer to the petition of plaintiff, denies all and singular the allegations therein contained, except so far as hereinafter specially admitted.
“ He admits signing the notes sued on; but specially denies that he is in any wise bound for the payment of the same; and avers that the same was given without any legal or valid consideration, and that the transaction or contract under which said note was given was illegal and reprobated of law, and of no effect.
“Respondent avers that said plaintiff, in combination and conspiracy with one Edward P. Champlin, and others, caused suit to be filed in the District Court of the United States for the District of Louisiana, in the month of May, 1873, numbered 1313 of the docket of said court, entitled 'Edwin P. Champlin v. The Mississippi and Mexican G-ulf Ship Canal Company,’ a corporation in which this respondent was largely interested; that in said suit the said Champlin, as petitioning creditor, alleged that he ‘ was a creditor of the said company in the sum of four hundred and sixteen dollars and sixty-six cents, and did pray that said company might be adjudicated a bankrupt.’
“That said Benner and said other persons did openly declare that the purpose of said suit was to extort money from this said respondent; and said suit was, ip truth and fact, brought for that purpose.
“That, being largely interested in the affairs of said company, and having large sums of money invested in the business of said company, as all said persons well knew, and being fearful of the proceedings instituted in the United States District Court, and that through the efforts of said Benner and others, the said company would be adjudicated a bankrupt, and respondent thus personally suffer a great loss, he offered to said Benner and said Champlin, and other said persons, to pay the amount of said claim, together with all acts, charges and attorneys’ fees, to which they might have been subjected; but his said offer was refused.
“And the said Benner and said other persons did demand and requiie of respondent, as the sole condition upon which they would discontinue said proceedings in said bankrupt court, the execution by him of six certain promissory notes, in the sum of five hundred dollars each, and their delivery to said Benner; all of which said respondent was compelled to do,.and did. Whereupon said proceedings were discontinued.
“ He further says that he has paid two of said series of notes, amounting to the sum of five thousand dollars, and that the present suit is upon another of said series of notes.
“Respondent shows further, that at the time of the execution of said notes, the said Benner and others transferred to him certain, say eight hundred, shares of the capital stock of said company; but that the same had no real market value, and has not had since. That the sum heretofore stated, paid by him, far exceeds any real or pretended claim held by said Benner, or said Champlin, or by other persons combining and conspiring with them, or by all of them, against said company, or respondent, and the value of the stock transferred as aforesaid.
“And he says that it is not in equity and good conscience that he is compelled to pay the note sued on.
“Wherefore he prays that plaintiff’s suit be dismissed, with costs, and that he have all general relief.”

From the admissions in the answer, and from the evidence, it appears that Yan Norden was a creditor of the company to a very large amount; that one Champlin, an admitted creditor of the company, had filed a suit in the United States District Court to put the company in bankruptcy, and it is not denied that he had just grounds for his suit; on the contrary, Yan Norden states in his petition that he was “fearful of the proceedings instituted in the United States District Court, and that, through the efforts of said Benner and others, the said company would be adjudicated a bankrupt, and respondent thus personally suffer a great loss.” He made propositions to compromise the suit, which resulted in the dismissal of the suit, and- the sale of eight hundred shares of stock of the company to Yan Norden for the price for which he executed his notes. It seems to us the consideration of the notes was good. The motives which influence a person to exercise a legal right do not destroy that right, or affect its enforcement. It would be against good conscience to permit the defendant to refuse to execute his obligation after having had the suit dismissed and received the stocks.

Article 1856 C. C. declares: ‘.‘If the violence used be"only legal constraint, or the threats of doing that which the party using them has a right to do, they shall not invalidate the contract. A just and legal imprisonmeut, or threats of measures authorized by law and by the circumstances of the case are of this description.”

Mr. Justice Story, in his work on Promissory Notes, says a valuable consideration “may, in general terms, be said to consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility or act, or labor or service on the other side. And if either of these exist, it will furnish a sufficient valuable consideration to sustain the making or indorsing a promissory noto in favor of the payee or other holder.” Section 186.

But the defendant says the stock had no value. The plaintiff’s answer to this is, that if the fact be as stated by the defendant, it was because the defendant had a hold upon the vitals of the corporation, and was himself absorbing its entire substance. But be this as it may, whether the stock had a market value or not, the existence of the stock is not denied. “He who sells a credit or an incorporeal right, warrants its existence at the time of the transfer,” etc. C. C. 2646. “ The seller does not warrant the solvency of the debtor unless he has agreed so to do,” C. C. 2694. There is no lesion in such sales, and the defendant can not get relief.

It is therefore ordered that our former opinion and decree be set aside, and that the judgment of the lower court be affirmed with costs of appeal.

Mr. Justice Morgan adheres to the decision first rendered in this case.


text:
    5619.
    The State of Louisiana v. Jacob Morris.
    Tli© prisoner was charged with having forcibly entered a certain house in the night time, armed with a dangerous weapon, with the intent to Mil. He was fonnd guilty of everything he was charged with, except that he was not armed with a dangerous weapon. The verdiot is therefore responsive to the indictment, and a valid sentence could be rendered thereon. The two sections of the Revised Statutes, 850 and 851, form but one law.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J. Criminal case.

      A. D. Dead, district attorney, for the State, appellee. Knickerbocker & Stafford, for deiendant and appellant.
   Morgan, J.

The indictment charges that Jake Morris, late of the parish of East Baton Rouge, on the tenth day of October, 1874, did, with intent to kill, in the night time, break and enter the dwelling house of Charles Coleman, he, the said Morris, being at the time of such breaking and entering armed with a dangerous weapon, and the said Charles Coleman and Mrs. Hubbert being lawfully in said house, contrary to the forms of the statutes of the State of Louisiana, etc.

The verdict was : Guilty of entering the dwelling of Charles Coleman as charged, but without dangerous weapons.”

The defendant moved an arrest of judgment, for the reason that the verdict of the jury is not responsive to the allegations of the indictment, and no valid sentence could be rendered thereon.

Section 850 of the Revised Statutes provides that “Whoever, with intent to kill, rob, steal, commit rape, or any other crime, shall, in the night time, break a dwelling house, and any person being lawfully therein, and such offender being at the time of such breaking or entering armed with a dangerous weapon, or arming himself in such house with a dangerous weapon, or committing an actual assault upon any person lawfully being in such house * * * * * on conviction shall suffer death.”

Section 851 is, in terms, the same as section 850, except that it provides that, if the person breaking into the house is not armed with a dangerous weapon, or without committing an assault upon any person lawfully being in such house, he shall, on conviction, be imprisoned at hard labor not exceeding fourteen years.

The prisoner was charged with having forcibly entered the house in question, in the night time, armed with a dangerous weapon, with the intent to kill. He was found guilty of everything he was charged with except that he was not armed with a dangerous weapon. The verdict is, therefore, responsive to the indictment. The two sections of the statute form but one law. Under a charge of forcibly breaking into a dwelling, armed with a dangerous weapon, with the.intent to kill, he has been found guilty of having forcibly entered the house in question without being armed with a dangerous weapon. Instead of suffering death, he will be sentenced to imprisonment.

He moved for a new trial on the ground of newly discovered evidence. His allegations are that he will prove that the door of the dwelling was not fastened, and that certain witnesses who testified against him had perjured themselves. On this ground the motion was properly denied. If such a state of facts existed he must have known them before, and during the progress of the trial.

He claims a new trial because the judge, he says, charged the jury upon the facts, which he is prohibited from doing. The charge complained of is as follows:

“The prisoner and the citizen whose premises are charged to have been entered in the night time in question are colored men. You are called upon to say, by your verdict, whether the cabin is as much a castle as the dwelling of the most imposing pretensions. If you find persons in the house of Coleman on the night in question, with the assent of the owner, Coleman, they were lawfully there within the meaning of the act. If you find Sylvia and William Hubbert there in bed or out of bed on the night in question, with the consent, expressed or implied, of Coleman, they, too, are lawfully there within the mean-31 ing of the act. If the accused broke into the house, as alleged, for the purpose of assaulting William Hubbert with a dangerous weapon, even though you should be satisfied the accused and Sylvia had lived together under the bond of matrimony or not, even though he saw Sylvia in the embrace of the amorous Hubbert, then the accused is guilty as charged.” See B. pp. 10 and 11.

We do not see in this any charge as to what the facts were. The law is correctly stated by the judge.

Judgment affirmed.