text:
    No. 2213
    Samuel L. James v. Pike, Lapeyre & Brother.
    In a contract of pledge the pledgee has the right to dispose of tlie thing pledged iu payment of bis obligation at maturity, whether tho thing pledged belongs to the debtor or to a third party, who gave it as surety for the debtor. Tho contract of pledge is different from that of surety. In the former case a material thing is given in pledge as security for the debt, while in the latter case a person is given as security that the debt will be paid, and in tho latter case if the creditor give to the principal debtor an extension of time without giving notice to the surety, the surety thereby becomes discharged, which is not tho case where a thing has been given as a pledge that the debt should be paid.
    APPEAL from tlie Fourth District Court, parish of Orleans.

      Tkéard, J. F. F. MeCaleb and Gibson & Austin, for plaintiff and appellant.

      Hays & New, lor defendants and appellees.
   Wyly, J.

The plaintiff has appealed from a judgment dismissing his injunction and rejecting his demand for the recovery of thirty-one shares of stock of the St. Charles street Railroad Company, which were pledged by him to the defendants, Pike, Lapeyre & Brother, to secure a loan to Walton & Deslonde on the note of the latter for $1500, due and payable the first and fourth of June, 1868.

The ground taken by the plaintiff is, that having pledged his stock to secure a loan to others, he is, in contemplation of law, a surety, and the defendants having granted the principal obligors an extension of time for the payment of the debt without his consent, thereby released his stock from the pledge.

We are unable to agree with the counsel of the plaintiff, either as to-the facts or the law ot this case. We are not satisfied from the evidence that there was an extension of the time for the maturity of the note. There was, however, an indulgence of a few days granted on the day of the maturity of the note to Walton & Deslonde, on the representation of Walton that James, the pledgee, was absent from the city, and in consequence thereof he was unable to pay the note, but that he would do so as soon as Mr. James returned, which would be in a few days. We regard the delay in enforcing the payment of the note as a mere indulgence -, it was not an extension contracted for a valid consideration between the payees and the makers without the consent of the surety, if James, the pawnee, be considered such. But we do not concede that the contract of pledge can be extinguished in the manner contended for by the plaintiff.

The jeasoning in the learned brief filed by the counsel of the plaintiff, showing the analogy between the obligation of suretyship and the contract of pledge, and the reason why the latter should become extinguished, as the former is discharged, by the prolongation of the terms granted the principal debtor without the consent of the surety, is ingenious, but not sound.

The contract of suretyship is where a person is given to secure a debt. The contract of pledge is where a thing is given to secure the debt. The two contracts have separate and distinct features. The right of the plaintiff to pledge his certificates of stock to secure the debt of Walton & Deslonde and the validity of the contract did not. result from the law of suretyship, but from the law of pledge, C. C. 3100, 3108, and the rights of the pledgees in this case are the same ■whether the stock pledged belonged to the plaintiff or belonged to-their debtors, Walton & Deslonde. The law authorizing the contract of pledge has not provided different modes of extinguishing it according as it may have been made for one’s own debt or as security for the debt of another. The right of Pike, Lapeyre & Brother to the thing pawned in this case was just as valid, just as absolute and enduring as if they had received it from their debtors, Walton & Deslonde, instead of receiving it from the plaintiff. Protest and prompt notice of dishonor were in no manner necessary to protect them as pawnees; the rights of the parties were fixed by the contract of pledge and the law-under which it was made. C. C. 3108, 3112, 3122. If protest and notice of protest were not necessary to preserve the pawn if it had been given to Pike, Lapeyre & Brother by their debtors, Walton & Deslonde, it was not necessary to preserve it when given to them by the plaintiff to secure the debt of said Walton & Deslonde. Where the law has not discriminated, we can not. Where the law of suretyship, viz., C. C. 3032, declaring “the prolongation of the terms granted to the principal debtor without the consent of the surety, operates the discharge of the latter,” has not been made applicable to the contract of pledge', and made a mode of extinguishing the obligation resulting therefrom, we ought not to apply it or declare it a legal mode of discharging obligations of that character.

The plaintiff also contends that as the stock was not transferred on the books of the St. Charles street Railroad Company to Pike, Lapeyre & Brother, the pawn was not legal; that the transfer and delivery of the certificates of stock to them, together with the written act of pledge, were not sufficient. Here we think the counsel of the plaintiff' is again in error. We think the contract in this case is provided for by the express terms of the act of the twelfth of February, 1852, viz.: “Whenever a debtor wishes to pawn promissory notes, bills of exchange, stocks, obligations, or claims upon other persons, he shall deliver to the creditor the notes, bills of exchange, certificates of stock, or other evidences of the claims or rights to be pawned, and such pawn so made without further formalities, shall be valid, as well against third persons as against the pledgers thereof, if made iu good faith.”' We think the judgment of the court below is correct'

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No 1949.
    Waldo J. Elmore v. Kearny, Blois & Co.
    Plaintiff, a merchant in New York, sold a lot of goods to Kearny, Blois & Co. of New.Or* leans. The evidence is that the goods were shipped on "board the steamer Texana, without insurance; that the Texana was captured by a rebel cruiser on the high seas and the cargo became a total loss. Plaintiff brings suit against Kearny, Blois & Co. for the amount of his bill so shipped, who resist the payment on the ground that, not having received the goods, they were hot liable.
    Hold — That the purchasers having ordered the goods, and given special instruction not to insure, they must be considered as having taken the risk of the goods upon themselve® and they were therefore liable, notwithstanding tbey had not been received.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. Fellows & Mills, for plaintiff and appellee.

      Geo. L. Bright, for defendants and appellants.
   Taliaferro, J.

The plaintiff, who is a merchant óf New York, sued the defendants, who are commercial partners, trading and doing business in Now Orleans, for the sum of $557, the amount of a bill of goods shipped by the plaintiff to the defendants in the month of April, 1863. i The answer is a general denial. The plaintiff had judgment in the court below, and the defendants appealed.

The evidence shows that the parties had previously dealt with each other, the defendants ordering goods at different times previous to ordering the bill for which this suit is brought. The plaintiff filled the bills and was in the habit of forwarding to New Orleans at each shipment the bill of lading and draft on defendants for the amount of the bill of goods. The last shipment, but one, was made on the fifteenth of April, 1863, and was composed of the goods for which defendants refuse to pay. This shipment was made on board a vessel called the “Texana,” which was captured and destroyed by a rebel cruiser. The goods were consequently never received. One of the plaintiff’s witnesses in his testimony specifies three different shipments made by plaintiff to defendants, two before the one made on fifteenth April, 1863, and one afterwards. All the shipments seem to have been made in the same manner and upon the same basis. This witness says, in regard to insurance, that nothing was ever said by the defendants in their business correspondence about it except on one occasion in a letter received from the defendants before the shipment of the goods that were lost, and they said in that letter “ don’t insure.” An effort is made on the part of the defense to show a discrepancy between the articles shipped and those ordered. The letter ordering the articles specifies only one article of a particular kind — a large kind of lamps, describing them — which, if not to be had others were to be sent. We find in the bill quite a variety of this kind of merchandise, such as lamps, lanterns, etc., of various names and kinds. The defendants further contend that if the merchandise was at the risk of the defendants at the time of the shiinnent the subsequent orders of the plaintiff wholly changed the obligation- of tbe defendants. This change of relation between the parties, set up in defense, is that as soon as the shipment was made plaintiff transferred to a banker of New York tbe bill of lading and gave him a draft on the defendants with these instructions : “No protest; if paid please remit; jf not accepted please return all the papers to me. If they refuse acceptance on account of non-arrival of the goods shipped, pleaso take acceptance on the arrival thereof.” Ujaon this, the defendants say that the arrival of the goods was a condition precedent to the payment for them. We think differently. When, by ordering the shipment, and especially after instructions to the defendants before the shipment was made not to insure, they plainly took upon themselves the risk of the goods. We can not believe the plaintiff assumed the risk and entered into a stipulation by which he might be injured and the defendants alone benefited. One of the firm of Kearny, Blois & Co. in his testimony says: “The goods were ordered by us.” We see no force in the defense, and think the decree of the lower court was correctly rendered.

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


author: Ludeling, C. J.

text:
    No. 2020.
    W. & H. Stackhouse v. James E. Zunts.
    This is an injunction suit to prevent tile enforcement of a mortgago on a plantation sold hy defendant to plaintiff, by written notarial act of sale, on the ground that the consideration of the notes given by plaintiff to defendant; was for tho prico of tho sale of persons (slaves). On trial the plaintiff offered parol evidence to show that the consideration of the notes on which the order of seizure and sale of the land had issued was the price of the sale of persons (slaves). The defendant likewise offered parol evidence to show that the consideration of the notes sued upon was not tho price of tho sale of persons (slaves), but were given for a part of the price of the sale of the land (plantation), which was objected to hy the plaintiff on the ground that parol evidence was inadmissible to explain, contradict, vary or modify a valid written act of sale.
    Hold — That, although the rule is well established that parol evidence is not admissible to explain, contradict, vary or modity a valid written act of sale, yet, in tbe present case, there being no issue before the court in relation to tho contract evidenced by the written notarial act of sale, and the object of the defendant in offering the testimony was not in aid or explanation of tho written instrument, but was offered to controvert the same class or kind of testimony which had been offered by the plaintiff, it should, therefore, have been admitted for that purpose.
    APPEAL from the Fifth District Court, parish of Orleans.

      Pecmmont, J. G. Poselius and Alfred Philips, for plaintiffs aud appellants.

      Pandall Punt, for defendant and appellee.
    Reporter — The first opinion rendered in this case being, overruled by this opinion, rendered on rehearing, its publication is omitted in these reports.
   On Rehearing.

Ludeling, C. J.

On the trial of this case, the plaintiffs having-offered parol evidence to establish that the consideration of tho notes sued on was the sale of persons, the defendant likewise offered witnesses to prove that the sale of slaves was not the consideration, but that these notes formed a part of the price of a plantation, in accordance with an agreement made a considerable time before the sale of the Bellechasse plantation hy the heirs of Packwood and defendant and plaintiffs. This was objected to on the ground that it was an attempt to contradict the notarial act of sale hy the heirs of Pack-wood and Zunts to the plaintiffs. In our former opinion we held that the objection was well taken; but on more mature consideration we are not satisfied with that ruling. The subject matter of that notarial act is not under consideration in this suit. Tho object of this suit is not to enforce any right growing out of the contract evidenced hy that notarial act, and, therefore, the object of the testimony offered is not to aid in the interpretation of the act. It is a general rule that “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument,” and the reason of the rule is to prevent the substitution of a new and different contract for the one which was really agreed upon and reduced to writing.

It is evident that the reason of the rule does not apply in the case in-band. There is no contest in relation to the contract, evidenced by the notarial act. The notarial act itself was only introduced to prove the declaration of Zunts relative to the price stated in that act of sale-All considerations of evidence must be pursued' with reference to the subject matter to which it is to be applied, and to weigh the competency or sufficiency of evidence, in any given case, it is requisite to-discern with accuracy the nature of the proposition it is offered to-establish. Evans’ Pothier Appendix, No. 16, rec. 11, p. 216.

We are of opinion that the declaration in the notarial act by Zunts- and the Paekwood heirs that the price was $100,000 does not estop Zunts from showing that the notes sued on formed a part of the price-of the plantation, wlieu it is attempted to prove that the consideration of the notes was slaves. Otherwise truth might be suppressed.

The evidence in the record is conflicting. • We believe that the ends-of justice will be better subserved by remanding the case for anew trial.

It is therefore ordered and adjudged that our former decree be set aside; that the judgment of the district court be annulled; that this-case be remanded to tire court a qua to be tried de novo j and that the appellee pay costs of appeal.


author: Iiowic, J.

text:
    No. 1466.
    Mrs. De St. Romes v. D. B. Macarty
    A purchaser of real property at forced sale can not be required to pay the back taxes which» have accrued and are standing against it of date prior to tlio sale. The sheriff has not-the right, therefore, to pay such taxes out of the purchase price, and thereby reduce the amount to be credited on the fieri facias to that extent.
    APPEAL from the Second District Court, parish of Orleans.

      Duvigneaitd;J. Whitaker é Bice, for plaintiff and appellant.

      Honor d-Benedict,- for defendant and appellee.
   Iiowic, J.

This controversy arose from the payment of certain taxes-for the plaintiff which she insists were not due by her

An examination of the record shows that she did not personally owe the taxes for the years 1852 to 1855, inclusive, which accrued prior to her purchase of the property in 185S. Upon the forced sale of the-property by defendant, tiie sheriff had, therefore, no right to pay these taxes for the plaintiff, and decrease her credit on the w-rit of fieri faciasby their amount. The error amounts to $159 33.

It is therefore ordered that the judgment appealed from be reversed,, and that the defendant herein be enjoined and restrained from collecting any sum upon said fieri facias, or the judgment on which it was issued, beyond the sum of $1288 34, being balance legally due after-sale of January 27, 1865, with interest according to the terms of said, judgment, and that the defendant pay costs.

Kohearing refused.

Mr. Justice Howell vp.cn«ed


author: Ludeling, C. J. Howe, J.,

text:
    No. 2249.
    Joseph Hernandez v. A. B. James et al.
    A judgment rendered out of term time, on a rale taken against a surety on an appeal bond,. is null and void, although it be rendered in open court and signed by the judge while on • the bench,
    ■ Under article 303 of the Code of Practice, an injunction will lie to restrain the enforcement of a judgment that is null and void because it was rendered in vacation or out of term time, and the injunction will continue pending the appeal from such judgment.
    As a general rule, an injunction ■will lie in all cases where the act complained of, if committed, would give rise to an action of damages,
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooleij, J. Oooley & Phillips, for plaintiff and appellant.
    P. R. Morgan, for defendant and appellee.
   Ludeling, C. J.

A. B. James having obtained a judgment against the testamentary executor of Alex. Gordon et al., the executor took a suspensive appeal to the Supreme Court, and gave bond according to law, with Joseph Hernandez as security. The judgment on appeal was affirmed, property of defendant was seized and sold, and the execution was returned unsatisfied.

A rule was then taken on the surety, Hernandez, to show cause why judgment should not he rendered against him for the remainder of the judgment against the executor of Alex. Gordon. The rule was made returnable on the first of October, 1868.

Hernandez excepted to the proceedings on the ground that the court was in vacation, and could not legally entertain and render judgment on the rule at that time. The exception was overruled, and judgment was rendered against Hernandez for $10,313 03.

Execution having been issued under this judgment, Hernandez obtained an injunction to prevent the sale of his property under the writ,, on the ground thatftlie judgment, having been rendered in vacation, was null and void. There was judgment dissolving the injunction, and the plaintiff has appealed

Tlie defendant contends that the plaintiff acquiesced in the judgment by paying a large amount thereof, and therefore he can not appeal from that judgment or enjoin its execution.

The fallacy of this position consists in the assumption that it is a judgment. Whether it is or is not a judgment, is the question for decision. We are of opinion that it is not a judgment; the law did not authorize the rendition of a judgment at the time when it was rendered.

In Simonds & Co. v. Leovy et als., 21 An. 306, this court held: “The law maker has been careful to express for what particular proceedings and business the codrts shall he open all the year, and the act necessary for making judgments in other matters final, not being- mentioned, is excluded.”

If the judge was without power to make a judgment final by affixing Ms signature to the judgment, a fortiori, he is powerless to try and decide a case, and sign the judgment.

The judge a quo held that, under article 10 of the Constitution, courts must be considered as always open, and that judges had the right and power at any time to open court, hear and decide cases, and sign judgments. Article 10 declares: “All courts shall be open, and every person for injury done him in his land, goods, person or reputation, shall have adequate remedy by due process of law,” etc. Open here means the opposite of closed or secret — free of access — and it may also mean that litigants shall have the right, during all tbe year, to institute suits in the courts. But we think the article is not susceptible of the interpretation placed upon it by the learned judge of the district court.

The defendant also insists that an injunction can only be granted for ■one of the causes enumerated in the Code, and that the ground alleged in the petition is not enumerated as a cause for injunction in the Code of Practice.

Article 303 declares: “Besides the cases above mentioned, courts of justice may grant injunctions in all other cases where it is necessary to preserve the property in dispute, during the pendency of the action, and to prevent one of the parties, during the continuance of the suit, from dilapidating the same, or from doing some oilier act injurious to the other party.”

“A party may always have an injunction when the act would give a ■claim for damages.” 5 N. S. 501, Carraby et al. v. Morgan. Article 10 of the Constitution declares that every one shall have adequate remedy for injury done him in his property or person. C. P. 298.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that the injunction be perpetuated. It is further ordered that the defendant pay costs of both courts.

Rehearing refused.

Messrs. Justices Howe and Howell dissent in this case, for reasons to be filed.

Howe, J.,

dissenting. First — I do not understand how it can be maintained that the judgment sought to be annulled in this case is not a judgment. Tlie plaintiff, in his petition, calls it a judgment, and his principal prayer is as follows (Record, p. 6):

“ Therefore petitioner prays that said A. B. Janies ho eited to answer this petition, and that after due proceedings it he ordered, adjudged and decreed that the judgment rendered in favor of said A. B. James and against petitioner, in the case of A. B. James against Pellowes & Co., No. 17,054 of the docket of this court, be decreed to be null and void aud of no effect,” etc.

This judgment was rendered and signed by a competent judge, sitting on his bench, with a clerk and sheriff and in open court. The plaintiff admits (also in his. petition) that the court was open for some purposes, as for the trial of interlocutory orders, and ior the trial of certain suits (landlords’), and the rendering of final judgments therein. Record, p. 5. The court being open for some purposes, and especially for the rendering of some final judgments, how can it be said that the judgment against Hernandez, which he admits to be a judgment, is no-judgment? It may be a judgment tainted with an irregularity, hut-irregularity is one thing, and nonentity is another.

Second — Assuming, then, that this is a judgment, the plaintiff ha» acquiesced in it by the payment, after long negotiation, of $7000 on account. He does not pretend that he does not owe the rest of the principal. The dispute is about a difference between five and ei- lit per cent, interest. The judgment, being acquiesced in, can not be the subject of any remedial action. The courts have business enough on hand without spending their time in reopening such cicatrized wounds. See Abbott v. Wilbur, 22 An. 368, and cases there cited on this point.

Third — The alleged nullity in this case is one of form, as distingushed from those nullities which pertain to the merits of the case. C. P.

In Blank v. Speckman, lately decided, 23 An. 146, we held that a. judgment could not be annulled for any vice of form save those catalogued in C. P. 606. This case is not in this category, and therefore-no action of nullity lies. The j>roper remedy is by appeal. 9 La. 79; 9 An. 197; 9 An. 428; 10 An. 641; 14 An. 656.

Fourth — No injunction could be lawfully issued in this case, the remedy by suspensive appeal being exclusive and ample. The case of Conoly v. Morgan, 5 N. S. 501, is not opposed to this view. The injury arrested in that case is distinctly mentioned in C. P., article 298. The statement in that case is that "a party may always claim the aid of the laws of his country to prevent a wrong which, if inflicted, he could claim damages for,” is true in a general sense, but if meant to apply to prevention by writ of injunction, was a dictum, unnecessary and toe-broad. Courts do not grant injunctions to prevent apprehended assaults- and batteries, though if inflicted they may give a claim for damages. C. P. 303, applies, by its terms, only to property in dispute, and its subsequent general phrases must be limited to such property.

Fifth — If the merits of the case be examined, it is by no means clear that there was any error in the judgment. The object of law, itsraison d’etre, in civil matters, is the speedy collection of debts. Against the surety on an appeal bond, who has helped to delay the creditor for •some weary years, tlie law accords a summary remedy by rule — “by mere motion.” C. P. 596. The courts of New Orleans, unlike those in the rural parishes, are open every month for motions. The plaintiff admits this in his pleadings. They are open also for some final judgments. He admits this fact in his petition. I do not perceive, then, any harm, but great justice, in giving the judgment as it was given in the district court. Otherwise, if the Supreme Court affirm a judgment at the close of its session, the successful appellee may be obliged to wait nearly six months before he can avail himself of what the law has, I presume, with no intention to be ironical, called a “summary remedy by more motion.”

Howell, J. I concur in the above opinion of Mr. Justice Howe.


text:
    No. 2080.
    Heirs of Wenderlin Doll v. James Kathman.
    A purchaser of property at judicial sale acquires an indefeasible title by complying with his hid. In case of an active violation of the contract of purchase by the purchaser, or in caso of open refusal to comply with his bid after demand., default is not necessary as a condition precedent to the action for the rescission of the sale and the recovery of damages. But if no demand has been made on the purchaser to comply with the terms of the sale, then, «and in that case a putting in default would seeni to be a condition precedent to recovery. *
    As a condition precedent to the action for the rescisión of contracts and the recovery of damages for the nonperformance of engagements, the putting of the party in mora is strictly required, and the default must he made certain.
    APPEAL from the Seventh District Court, parish of Orleans.

      Oollens, J. 0, Poselius and A. Philips, for plaintiffs and appellants.

      O. Schmidt and Fellows & Mills, for defendant and appellee.
   Taliaferro, J.

The plaintiffs sue to recover certain real estate in New Orleans, alleging the defendant is in the possession of it, and illegally withholds it from them. The defendant denies that the plaintiffs have any right to it, and sets up title to the property in himself, averring that he bought it at a probate sale of the su ccession of the plaintiffs' father, Wenderlin Doll. The judgment of the court a qua was in favor of the defendant. The suit was dismissed, reserving to the plaintiffs any right they may have to enforce the payment of the price at which the defendant bought the property. Plaintiffs have .appealed.

Prior to the institution of this suit and as far back as 1861, the •defendant, Kathman, brought a suit in the Second District Court of New Orleans against the administrator and heirs of Wenderlih Doll, who died in February, 1861, to obtain title to an undivided half part of various lots of ground and buildings thereon, the lot and buildings at the corner of Bienville and Marais streets, forming the object of tbe present controversy, alleging that at the time of the purchase by Doll ■of the property from Massey, he in fact acquired an interest in the pur■chase although the title was taken in Doll’s name, and that by an agreement between himself and Doll the latter was to make Kathman .•a .title upon the payment by him of $7500. He averred that by this agreement all the property which they owned in the Second District •of New Orleans was to remain under Katliman’s control and administration. That lie was charged no interest on the sum he agreed to pay Doll, and that he was to he credited with one-half the net revenues of the property as they were collected.

It seems Kathman had the property in dispute, as well as all the other property which he alleged was jointly owned by himself and Doll, in the Second District, from the early part of the year 1859, Doll having purchased from Massey in March of that year. This suit in the Second District Court was protracted for a great length of time. The administrator of Doll’s estate died an exception to the suit in May, 1804, and in January, I860, the hoirs of Doll answered, denying any right in Kathman to claim what he demanded, and set up a reconwentional demand against him for largo sums alleged to have been •collected by him in rents and revenues of the property in his possession, and which were unaccounted for. In May, 1866, this suit was dismissed b.y order of the court. In November following, upon a rule •to have the case reinstated on the docket, the rule on exception by the offering counsel was discharged. Here, this branch of the litigation between the parties seems to have ended

In January, 1862, the property of Wenderlin Doll’s succession war ■sold .at public sale, and Kathman bought the property for which he h ■sued In the present action. The price was $8009, one-third cash, th - remainder in one and two years, with mortgage retained, and interest at eight per cent, from date.

The defendant, it is charged, has never paid any part of the price o: the property, and it is not shown that he has. It is argued on the part of the plaintiffs, that never having paid for the property, he is not the •owner of it. It is not shown, however, that the heirs or any person authorized have ever made any demand of payment, or that the defendant has been put in default, a condition precedent to the right of the plaintiffs to recover. It was on this ground that the judgment of the district court was rendered, and the main question in this case is, whether from the facts shown, a formal putting in default was necessary. The rule we take to he well settled that where there are negative or passive breaches of contracts a default is necessary; but they are net necessary where positive breaches take place. This court in •the case of Washburne v. Green, 13 An. 333, an authority cited on be-half of the plaintiffs, laid down the doctrine that “ although article 3586 of the Civil Code declares that the adjudication completes the sale, yet, it was never the intention of the lawgiver to say this consequence should follow, and the sale should be complete where the purchaser had refused to comply with the terms of the sale on demand,, and liad been decreed by the judgment of a competent court to bo in default.” And in the same case the court said further: Tne purchaser at a judicial sale acquires such a vested right to the property by tho adjudication that itcannot.be divested and taken from him unless he refuses to comply with the terms of the sale. It is in his power by a compliance with the terms of the sale to become the owner by indefeasible title. It can not be taken from him. In this sense the adjudication is the completion of the sale. But if the purchaser-refuses to comply with the terms of the sale he is considered as never having been owner, saving' to the vendor his right to compel a specific performance of the contract.” Many decisions are to the same effect. There are among them 14 La. 588, 590; 5 L. R. 472; 15 La. 398 ; 2-An. 361; 14 An. 449.

In the case at bar, as we have before remarked, we are not shown that the defendant lias ever been applied to amicably or by judicial demand to comply with the terms of the adjudication. How then can it be said that he ever refused to comply ? Por the plaintiffs it is responded that the law is satisfied by any evidence which indicates an intention not to comply with tho adjudication, it is argued that Katliman was guilty of an active breach of the contract by continuing to prosecute a claim as owner of the property under an alleged antecedent and conflicting title until long after the institution of the present suit. Under the circumstances a formal putting in default may possibly have been a vain and useless thing, not required to he done. But, after all, would it not be mere conjecture to say that the defendant would not have complied if a proper demand had been made ? Do the-facts relied upon as evidencing an active positive breach of the contract, render it legally certain that a demand would inevitably have been followed by a refusal? We must keep in mind that the heirs of Doll permitted the defendant to remain in uninterrupted iwssession of the property from the death of their ancestor in 1861, until the institution of this suit in July, 1866, after the judgment had been rendered against him in his suit against the heirs for one-half of all the property. The administrator too received from him revenues of tho property. After the defendant’s failure in that suit, be may have thought-it best to pay for the property he bought at the probate sale. At alii events, during this long period, no proper demand was made, and consequently no direct absolute and positive refusal was made. We are-referred to the cases of Rowley v. Kemp, 2 An. 360, and Pendarris v. Ware, 14 An. 449, as more especially in support of the position assumed on tlie part of the plaintiffs; but we do not consider them as bearing on the case at bar. In Rowley v. Kemp, it is said that “ Rowley, as agent of Lansing, bid for the property, and. it was adjudicated to him, and he not complying with the terras of the sale, the sheriff read vortised the property for sale, treating the acts of Rowley, attorney in fact, as nullities, as he was bound to do; for his conduct throughout shows that his sole object was to embarrass the proceedings of the sheriff, and defeat the process of the court.” But we learn further, that Rowley refused to comply with his bid, and the reasons assigned for his refusal were not satisfactory to the court. In the other case, Pendarris v. Ware, there was an active breach of the contract, because the widow tendered in payment of her bid, not money, which was required by the terms of sale, but claims against the estate of her deceased husband, and positively declared she would give nothing else.

As' a condition precedent to the rescission of contracts and to the recovery of damages for the nonperformance of engagements, the putting the party in mora is strictly required; and the default must be made clearly to appear.

We think the plaintiffs in this case have not made out the alleged refusal of the defendant to comply with the terms of the sale with that precision and clearness which, in our opinion, the law requires.

The conclusion we have arrived at renders it unnecessary to pass; upon the several bills of exceptions found in the record.

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


text:
    No. 2300.
    Benner & Ranlett v. J. T. Michel and P. Gallaher.
    The fact that the owner of a drug store permitted a party, who was employed therein as a-clerk, to manage its affairs for a share in the profits, to hold himself out to tho world as the owner thereof, did not give a judgment creditor of such clerk on a debt which originated before he had any connection with the store as a clerk, the right to seize and sell the store as the property of the clerk, in satisfaction of the judgment against him individually.
    Tho sheriff and seizing creditor are liable, in solido, in case the sheriff has seized and sold tho property of a third party, after being notified that such property was not that of tho judgment debtor,* and in fixing*'the amount of liability, the estimate * placed on tho property shortly before the seizure will be taken, as a basis, rather than the vague? appraisement made at the time of the sale.
    APPEAL from the Second Judicial District Court, parish of Jefferson.

      Pardee, J. G. W. -Hi Mart' arid J. If. Priclcell, for plaintiffs and appellees.

      W. T. Scott and K. G. Kelly, for defendants and appellants.
   Taliaferro, J.

The defendants are sued for $2000 as damages alleged to have been sustained by the plaintiffs from the illegal seizure and sale under execution by defendants of the property of the" plaintiffs. The answer is a general denial. Plaintiffs had judgment for $1000, and defendants have appealed.

Gallalior having obtained a judgment against B. E. Hughes, caused execution to issue, and the sheriff, Michel, seized as property of Hughes the contents of a drug store in the city of Jefferson at the coiner of Magazine and Jena streets, and after an inventory and appraisement of the effects seized and advertisement made, sold the entire stock for $103.

It is in proof that after the seizure was made the sheriff was distinctly informed by Benner, one of the plaintiffs, that the property seized did not belong to Hughes, but to himself and Ranlett.

The defendants show that the contents of the drug store were under the control of Hughes, who held himself out to the world as the owner; that he kept the establishment, made sale of the drugs, and was considered the owner. They contend that the plaintiffs’ claim as owners is simulated, and set up to screen the property of Hughes from the pursuit of his creditors.

It appears from the evidence that in the latter part of the year 1805, and in the early part of I860 this apothecary establishment belonged to a Dr. Hynes, who, during the time lie kept it, had Hughes employed as a clerk; that Hynes sold the establishment to Ranlett, at the price of $1700, the estimated value of the entire stock, as appears by the receipt of I-Iynes, dated seventeenth March, 1866. An instrument is in evidence dated eleventh of March, J866, and signed by Ranlett and Hughes, the purport of which is that they were to carry on the drug and apothecary business in the city of Jefferson; that the business was to he carried on in the name of B. F. Hughes, who was to keep the accounts and render a full statement of affairs at the end of each month and pay over to Ranlett such sum of money as might be on hand after deducting the expenses of carrying on the business. Ranlott was to buy the stock in trade of Hynes, the profits and losses to he equally divided.

The seizure was made on the ninth of August, 1867. On the nineteenth of June previous an estimative inventory of the stock of drugs on hand was made and, as stated, the value of the drugs was set down according to wholesale prices, the aggregate amount being $1103. Hughes testifies that between the time of making the inventory and tlie seizure there was sold an amount between fifty and one hundred dollars. The sheriff’s inventory and estimate seem to have been made carelessly, and the drugs set down at about what the appraisers judged they would he likely to bring at an auction sale.

The fact that the plaintiffs permitted Hughes to bold himself out to the world as the owner of the establishment would, according to well established principles, involve a responsibility to persons giving Mm credit on the faith of the pretended ownership. Still, under the facts shown in this case, we think no liability results against them. The judgment of Gallalier against Hughes arose from a debt contracted jointly by the latter and one Spann, before Hughes had anything to do with the drug store. The defendants were notified that the property they had seized belonged to the plaintiffs, but they proceeded notwithstanding to sell it, and consequently the sale was made at their peril.

The evidence, we think, sufficiently shows that the plaintiffs were the owners of the property sold. Hughes was destitute of means. That Ranlett paid the whole price of the stock purchased from Dr. Hynes, there can be no doubt. The statements of Ranlett and Hughes, in connection with the receipt of Hynes, make this clear, and the tenor of ■ the contract between Ranlett and Hughes corroborates their statements under cath as to the ownership of the stock in trade. If Hughes were to participate in tlio profits, it does not follow that there was a community of interest in the property itself. The contrary, wo think, is established.

In estimating the value of the plaintiffs’ property sold, we are inclined to adopt tlio opinion of the judge a quo, who assumed the valuation made shortly before the seizure as more reliable than the evidently vague appraisement made at the time of the sale. Deducting one hundred dollars, the amount sold after the first appraisement or valuation, irorn §1100, ho gave judgment for $1000, and we think correctly.

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

Rehearing- refused.


author: Howe, J.

text:
    No. 3339.
    State ex rel. H. E. Shropshire v. The Judge of the Fifth District Court, for the parish of Orleans.
    On application i'or a writ of prohibition against tlio judge a quo, tho Supreme Court will review tbo evidence taken in the court below, touching the solvency and sufficiency of the surety on the appeal bond, and if tho surety is found to be sufficient and the case is in other respects appealable, tho prohibition will issue.
    APPLICATION for prohibition.

      Fellows & Hills, for relators.

      Charles Leaumont, Judge, respondent.
   Howe, J.

The application for a prohibition in this case, to preserve the appellate jurisdiction of this court and the right of the relator to suspend execution pending the appeal, involves the sufficiency of the surety on the appeal bond. The bond is for $900; the surety declares he is w'orth that amount over and above his debts; and that his property consists of real estate worth $6000, encumbered for $4000. No evidence is offered to contradict these statements, and we do not see why they are not conclusive in establishing his sufficiency.

It is therefore ordered that the prohibition granted herein, be made perpetual.


text:
    No. 2288
    George Hubener, etc., v. The New Orleans and Carrollton Railroad Company et al.
    In this case tho evidence establishes that a small boy, eight years old, a son of the idaintiff, attempted, while the steam car was in motion, on the way from Hew Orleans to Carroll-ton, to jump from tho ground near tho track to the platform of the car; that he was thrown from the car to the track, and one of his legs cut entirely off by the wheel of tho car. It is further shown that shortly before the accident he was told by a person on the car not to attempt to get on, that he would get hurt, etc.; that the boy was not a passenger on tho car, which had then loft the station and was in motion on the track:
    Held — That the accident having occurred to a person, not a passenger, without any fault or blame on the part of those in charge of and running the cars, the company was not therefore liable for the damages caused by tho injury which such person had received on account of tho accident.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. J. B. Cotton & Bevy, for plaintiffs and appellees.

      L. JS. Simon&s, for defendants and appellants.
    This ease was tried by a jury in the court below.
   Howe, J.

Action for damages alleged to have been caused by carelessness of defendants in running over the child of plaintiffs, aged eight years, and cutting off one of his legs. Verdict and judgment in favor of plaintiff, George Hubener, as natural guardian of the child, for $7500, and in his own right for $2500. Appeal by defendants.

The child, Charles Hubener, testified that he was coming down St. Charles street in one of the horse cars of the company; that some ladies got in, and he rose and gave them his seat, and went out on the front platform; that while there another hoy crowded him off; he fell backwards, yet fell on his face. This was near Calliope street. He saw the steam train coming out of the depot at Tivoli Circle before he fell. He then stumbled, according to his own account, backwards under tho wheels of this upward bound steam train, and suffered the injury from which the suit originated.

The following questions and answers are taken from the record of his testimony:

“Question. As yon fell from the car, you say you fell backwards from the platform?

“Answer. Yes, sir.

“Q. And your logs, as you say, fell over on tho steam car track?

“A. Yes, sir.

“Q. At the time the car ran over you, vrere you standing up with one foot out, or were you on the ground, fallen “A. I stumbled.

“Q. But did you stumble and fall?

“A. I stumbled off the horse car, over the middle horse car track, with my leg on the steam track.”

It is clearly shown by a witness of plaintiffs that the distance over which the child declared he thus “stumbled backwards,” was nineteen feet eight and one-fourtli inches. It was shown, also, to be made up as follows: From tho down horse track to the up horse track, six feet; up horse track, in width, four feet eight aud one-half inches; from up horse track to river or left' side of steam track, about nine feet; and that between tho tracks there were draining gutters, and between the up horse track and the steam track there were piles of rubbish, some as high as two feet. But, furthermore, tho evidence establishes that the child was run over on the right hand side of the steam track, going up, or tho swamp side, which would increase the distance over which he stumbled backwards to about twenty-four feet, of as a witness for plaintiffs says (page 468), twenty-six and one-half feet. And it must' be further noticed that to have got from tho car from which he was pushed to the rail on which his log was crushed, he must not only have stumbled backwards over two gutters, two sets of railway tracks and some piles of rubbish, but must have -passed over or under or around a steam train, by one of the rear cars of which he was injured, his leg lying on the right hand or “ swamp side” rail.

We apprehend that we shall not be asked, in earnestness, to believe this story. Not that the poor boy has with design told a falsehood — it is not necessary to say that — but he was a little child when tho accident occurred, and ho was still a child 'when the trial took place, about a year after. “ When a child is a witness,” says Mr. Ram in his Treatise on Facts, page 151, “it will be natural to receive its evidence with proper caution. A child may be very quick to perceive aright some things which it sees or hears; but from want of knowledge or experience it may perceive imperfectly other things it sees or hears. In seeing it may mistake one thing for another, and in hearing ina3>- misunderstand words, and for those which it- heard may substitute others of a very different meaning. And there is danger lest a child should borrow something from its imagination, or from what it has heard other people say, and so amplify facts beyond their just measure. But a child is naturally artless and means to speak the truth. It is not to be forgotten, however, that a child is open to be beguiled, biased, influenced, or intimidated by the false representations or the promises or threats of designing persons.”

To this it may be added that the memory of children is very treacherous, and their judgment of time, distance and cause and eflect very defective.

Peter Lurges, a boy of twelve or thirteen, testifies in a very credible manner that he saw the accident; that the boy Charles Hubener jumped on the steps of the steam car on the swamp side of the track, and then slipped off and so was hurt. The attempt made to contradict his statements in some particulars was a signal failure. Record, pages 468 to 473.

Coleman (page 284) testifies that the boy Hubener stated to him that he got hurt trying to jump on the steam car.

Mrs. Bevans, who nursed the boy, says he told her (page 415), “I was on the steam car, and the boy pushed mo off and the steam car ran' over me.”

The testimony of Flanagan, a witness residing in the parish of Jefferson, was taken by commission, and then excluded by the judge because another witness had stated casually, on cross-examination at the trial, that he had seen Flanagan in the city that morning. The defendants reserved a bill of exceptions to this ruling, a ruling cle.irly erroneous. The testimony had been regularly taken. ,C. P. 425. The witness resided in another parish, and we fail to perceive how the fact that another witness had seen him in the city that morning, could establish the ability of the defendants to produce him in court or cast on them the duty of doing so. His testimony (page 78), whicli should have been laid before the jury, shows that the boy Hubener was playing about the steam cars about the time they started, “hanging on the steps,” and that he told him “to go away from there or he would get. liurted.”

The statements of the boy Klein, for plaintiffs, are not in necessary conflict with those quoted for the defense.

We gather from the record, as a whole, that the boy may have been pushed from the platform of the horse car, as he says he was, but that, this fact had no causative relation to the subsequent injury, any more-than if it had happened an hour or a year before; that finding himself left behind, he went across and attempted to amuse himself by jumping on the platform of one of the steam cars, which were moving slowly up on the farther side of the street or neutral^ ground; that Improbably had time to cross the steam track before the train came up,, and when he attempted to get on, jumped up from the swamp side. It. was at this moment that young Lurges saw him, and a moment after he fell and was injured. “He was jumping on,” says this witness,, page 201, “ with his two knees when he fell.” He was not a passenger on this steam train. The company owed him no duty as a common carrier, and no greater duty than they owe to all who walk the-streets- — the duty of running their trains lawfully and carefully. This-train was running very slowly and carefully, and it nowhere appears-that by any fault of defendants was the unfortunate child injured.. The verdict of the jury is without foundation.

It is therefore ordered that the judgment appealed from be reversed, and the verdict set aside. It is further ordered that there be judgment-in favor of the defendants herein, with costs in both courts.

Rehearing refused.


author: Howell, J.

text:
    No. 2348.
    R. Bormann v. Thiele, Motz & Co.
    A person wbo makes a contract with a mercantile bouse or firm to act in the capacity of clerk anil book-keeper in the store for a fixed rate, or price, and for a fixed period of timo, on being discharged by bis employers before the expiration of the time agreed upon, without any just cause therefor, is entitled to sue for and recover his wages for the entire time of his employment
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. JE. D. Craig, for plaintiff and anpellee.

      C. J3. Schmidt, for defendants and appellants.
   Howell, J.

This ease presents the questions of fact, whether or not plaintiff was employed as clerk by the year, and defendants had good cause to discharge him.

After an examination of the evidence, we concur in the conclusion of tho district judge, that lie was so employed, and that lie was discharged without sufficient 'cause.

The positive testimony of plaintiff, as to the term of the engagement is supported by the letter of the defendants, informing him. of their decision to reduce his salary from $1500 to $1000 per annum, which also shows that the only reason for this reduction was to curtail expenses. Because of plaintiff’s refusal to acquiesce therein, he was discharged.

This view of the case renders it unnecessary to consider the hills of exception in the record.'

Judgment affirmed.


author: Wyly J.

text:
    No. 2279.
    Emile Dupre v. Bold, Allen & Co.
    Planting partners are bound jointly, each for one-half of a debt contracted by them for the benefit of the partnership,
    APPEAL from the Fifth District Court, parish of Orleans.

      Jheaumont, J. A. c& iff. Voorhies, for plaintiff and appellee.

      Trudeau & JPhilips, for defendants and appellants.
   Wyly J.

The defendants have appealed from a judgment against them for balance of account and for commissions on a part of the crop of rice which they failed to consign to the plaintiff for sale, he claiming as their commission merchant, the right to the same. The balance of account, to wit: $276 09, the defendant, Boyd, in his evidence admits, to he correct. He, however, contradicts the statement of the plaintiff, who testified that he advanced the rice seed to the defendants upon the condition he was to have the sale of the entire crop. It appears that the plaintiff did not advance the supplies generally to make the. crop, hut only advanced the seed; we believe that the witness, Boyd, has stated correctly the understanding upon which the seed was advanced ; and that the plaintiff has failed to make his demand sufficiently certain to entitle liitn to recover judgment for two and one-half per cent, commissions on that part of the crop consigned by the defendants to other merchants. Besides, he has not shown the value of the balance of the crop diverted from him, assuming that the advance by him of one item entitled him to the right to sell the whole crop. The defendants, Boyd & Allen, were planting partners, and are therefore liable, each for half the debt due the plaintiff.

It is therefore ordered that the judgment against the defendants be reduced to the sum of one hundred and thirty-eight dollars thirty-four ■and one-half cents, against each of them, with five per cent, per annum interest thereon, from the twenty-third day of October, 1868, and as thus amended it is ordered that the judgment herein be affirmed.

It is further ordered that the plaintiff pay costs of this appeal.


author: Wyly, J.

text:
    No. 2534.
    Daniel Clark Osborn, Testamentary Executor, et als. v. John C. Osborn et als.
    In a mufc by executory process to enforce the payment- of mortgage notes shown to ho for a mixed consideration, partly for lands, and partly for slaves, an injunction taken out to prohibit the sale on tlio ground that tlie consideration of tlie notes is illegal, will ho dissolved to the extent of the consideration shown to he for the lands, and maintained for that portion of the consideration which is shown to ho for slaves. 21 An. 757, 771
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. 0. Poselius and Alfred Philips, for plaintiffs and appellees.

      H. King Outler, for defendants and appellants.
   Wyly, J.

The defendant, John C. Osboru, has appealed from the judgment perpetuating the injunction sued out by tlie plaintiffs to restrain the execution of an order of seizure and sale obtained by the said defendant, against certain property inherited by them from the late Winuey Hubbard, deceased. Tlie main ground for the injunction was tlie slave consideration of the note, on which the order of seizure and sale was granted. It appears that in 1854, the late Winney Hubbard, from whom the plaintiffs derived title, purchased the undivided half of a plantation, and sixty-five slaves, in the parish of Jefferson, for the price of $40,000; and that the note on which this order of seizure and sale was granted, is the last installment due on said purchase. It is admitted that the value of tlie land was $25,000, and the slaves $15,000, embraced in said sale. There was no conventional imputation of the payments heretofore made, and under the settled jurisprudence of this State, the debt must be apportioned, and can only bo enforced for the part which was not for slaves. This apportionment, under tlie admission of the parties, we fix at $3000, the amount of the note being $5000.' 21 An. 757, 771.

It is therefore ordered that the judgment appealed from be avoided ancl annulled, and it is now ordered that the injunction herein be dissolved so far as to permit the defendants to proceed with the order of seizure and sale to enforce the payment of $3000, the valid part of the mortgage note, with eight per cent, per annum interest thereon from ' the first day of April, 1868, and costs, and in other respects that the injunction be maintained.

It is further ordered that the defendant, John C. Osborn, pay costs of the injunction, and that the plaintiffs pay costs of this appeal.


author: Wyly, J. Taliaferro, J.,

text:
    No. 3094.
    Charles Case, Receiver of the First National Bank of New Orleans, v. Richard Taylor.

      A right resulting from a contract of labor between the State on tlio one band and a private citizen on the other, is not liable to seizure for the debts of the latter. The contract entered into between the State of Louisiana on the one hand and Richard Taylor on the other, whereby tho said Richard Taylor bound himself under bonds to widen and deepen the oSTew Canal and to keep it in repair for a given time, for which the said Richard Taylor is to have and enjoy the tolls arising from tho uso of said canal and shell road by the public, is a contract resulting from tho obligation to perform tho labor of widening, deepening and improving the canal, and the tolls arising therefrom aro not, therefore, liable to seizure by tho judgment creditors of the said Richard Taylor.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumoni, J. J. D. House and Elmore & King, lor plaintiff and appellant.

      W. JET. Hunt and O. Hoselius, for defendant and appellee.
   Wyly, J.

The plaintiff has appealed from a judgment perpetuating tho injunction sued out by the defendant restraining the plaintiff, his judgment creditor, from selling “all the right, title and interest of the defendant in and to the lease of the New Canal, granted to him by tho State of Louisiana, as per act passed before T. 0. Stark, notary public, March 6, 1866, together with his right of use and enjoyment of said canal thereunder and the revenues thereof.”

The main question in this controversy is, what is the character of the thing or right the defendant has enjoined his judgment creditor from selling? Is it the lease of a thing, or is it a contract for labor, skill or industry? If it be the lease of a thing, there is no doubt that the right of the lessee may bo seized and sold by his judgment creditor. 11 An. 432; 14 An. 217; 17 An. 174.

If, 011 the other hand, the contract seized has for its cause the labor, skill or industry of tho defendant in operating and administering the public highway belonging to the State, the right of the defendant, the obligor in said contract, is not liable to seizure. “All contracts for the hire of labor, skill or industry, without any distinction, whether they ■can be as well performed by any other as by the obligor, unless there be some special agreement to the contrary, are considered as personal on the part of the obligor but heritable on the part of the obligee.’’ Revised C. C. 2007. Rights which are merely personal and of this character are not liable to seizure for the payment of debts. Revised C. C. 1992.

The right of the defendant to collect the tolls of the canal and shell road on the day the seizure was levied was the right which he held by contract with the State under 'the acts of 1866 and 1867. Under these acts and the act of 1870, the defendant acquired the right to collect the tolls imposed by law, and he incurred the corresponding obligation to-do certain works for the State, to wit: to widen and deepen the canal, to construct certain basins and other works as stipulated, and to keep the canal and shell-road in good order. It seems to us’that the right of the defendant which has been seized is a right resulting, not from a contract of lease, but from a contract for labor. As a remuneration for repairing, enlarging, improving and keeping in order the canal and shell road, its public highway by land and by water from the city to* the lake, the State has given the defendant the right to collect the tolls thereon for a limited time. For the faithful penormance of this work, the defendant has given securities accejited and approved by the Slate.

The contract before us, as modified by the acts of 1867 and 1870, is-not a lease, because there is no fixed price, which is one of the essential elements of tho contract of lease. Revised Civil Code, articles 2670, 2671. It matters not what name the parties have given to tho instrument, its character is determined by its constituent elements. We therefore regard the right of the defendant, arising from his contract with the State, as a recompense for the personal services ho lias bound himself to perforin for the State during the period of the contract; and this being a personal right, is not liable to seizure by virtue of article 1992 of the Revised Civil Code. Taking this view of the merits, it becomes unnecessary to consider the other questions presented lor adjudication.

It is therefore ordered that the judgment appealed irom be affirmed, with costs.

Mr. Justice IIowc is recused in this case.

Taliaferro, J.,

dissenting. I dissent from tho opinion of tne.majority of the court for the following reasons:

The rights and credits of a debtor may be seized under execution. Code of Practice, article 647. The right of the debtor in the present case is the right to receive the tolls of a public canal under a contract-with the State to do certain work on that canal. I know of no law that prohibits the seizure of the defendant’s right under this contract. What, then, is in tho way of the judgment creditor’s seizing and selling, in default of any other property of his debtor, this right to receive the tolls of the canal to any person willing to buy it under the condition of performing the labor required to be done on the canal? The objection against doing this is said to be that the State has an interest in this contract, and the contract can not be interfered with by the substitution of another party in place of' the one with whom the State contracted. But the obligation of the party bound to the State in this case is not a personal obligation. Hundreds of men could be had at any time to perform all the required labor as promptly and efficiently as it is now done. It is easy to perceive that there is no difficulty whatever in the matter of substituting another contractor, and equally easy to see that no injury could thereby arise to the State. The State has no right to object to such a substitution. It would comport indifferently with its dignity to undertake thus to screen a debtor from the pursuit of his creditors. The intervention of the State was unnecessary and uncalled for, and should be dismissed. The injunction should be dissolved, and the plaintiff allowed to maintain his seizure and proceed to a sale of the rights seized


text:
    No. 2236.
    Robert H. Dixey v. Peter C. Mandell—R. King Cutler, Warrantor.
    A judicial salo of real property to satisfy a mortgage, under executory process issued from a competent court, which is clothed with all the forms and requirements of law, can not be regarded and treated as an absolute nullity. In a proceeding to annul and set aside a-sale of the kind, all the parties interested in the sale and transfer must be made parties, to the suit. In such a proceeding, if the purchaser is not made a party, the suit will be dismissed on that account.
    In a petitory action the plaintiff must make good his title, otherwise ho can not recover.
    APPEAL from the Second Judicial District Court, parish of Jefferson.

      Pardee, J. P. 0. Labatt, for plaintiff and appellee.

      Hornor dr Bencdiet, for defendant and appellant. E. Eilleul, for warrantor.
   Taliaferro, J.

On the thirteenth of January, 1862, Dixey, the plaintiff, bought a lot or square of ground in the parish of Jefferson at the price of $14,966 66. He paid part of the price in cash and executed two promissory notes, each for $4216 66, payable respectively on the thirteenth of January, in the years 1863 and 1864, and secured their payment by special mortgage on the property Salvant, as. owner and holder of the note last falling due, applied to the judge of the Second Judicial District of the parish of Jefferson on the second of February, 1864, and obtained an order of seizure and sale of the mortgaged premises, and after the usual proceedings the property was sold by the sheriff on the twentieth of April following and adjudicated to R. King Cutler, tjie last and highest' bidder. In October, 1866, Cutler sold the property to Mandell, the present defendant. This suit is brought by Dixey to annul the sale made under the order of the judge of the Second Judicial District of the parish of Jefferson and to recover the property, with fruits, revenues, etc., and for damages. He alleges that the sale of the property is null and void for various reasons. He avers that the Second Judicial District'Court of Jefferson, , at the time of the rendition of the order, was without jurisdiction over the subject matter; that foreclosures of mortgages were forbidden at that time by a military order of the commander of the Department of the Gulf; that the proceedings were otherwise defective and null; that he was never cited or served with notice of seizure or with any other notice of any kind of the proceedings taken against him; that the sheriff’s return showing personal service of citation is untrue; that the proceeding gotten up against him is fraudulent and intended to injure him and to deprive him unjustly of his property.

The answer is a general denial. The defendant called his warrantor, Ciitler, in warranty. The warrantor avers that he acquired a legal title to the property by virtue of the sheriff’s sale. Excepts to the petition of the plaintiff as attacking collaterally and indirectly the ■sheriff’s deed. Especially avers that the plaintiff has failed to refund the price received by the sheriff and applied to the payment of the plaintiff’s debt.

The case was tried twice in the court below with the same result, that of the rendition of judgment in favor of the plaintiff, recognizing him as the proper owner of the lot of ground in controversy, reserving to the defendant the right to recover from his warrantor the purchase money paid him, with all interests, damages and costs incurred by the eviction. The judgment also decreed that all valid mortgages that existed against the property on the twentieth April, 1861, in the name of the plaintiff, be recognized as still in force in the order in which •they stood at that date¡ unless since paid and discharged by him.

From this judgment the defendant has appealed.

Taken as an action to annul, all the parties required in such a proceeding are not before the court. Salvant, the purchaser of the property, was not cited and does not appear in the proceedings as a party. 'The plaintiff has not succeeded in making out such a title as enables him to recover in a petitory action. The sale of the property, under an order issued by the judge of the Second Judicial District, can not be regarded as an absolute nullity. The prohibition of sales under foreclosures of mortgages by the military order of February 8, 1863, would seem scarcely to apply to property of the kind in this controversy. At all events, it is shown that permits were frequently granted j by the commanding general for the execution of orders of sale rendered by the courts, and the evidence seems to establish that such a permit was obtained in this case. We think the sale, clothed as it is with the sanction of judicial authority, can not bo attacked collaterally. 19 An. 69; 21 An. 420; 23 An. —

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that there bo judgment in favor of the defendant, the plaintiff and appelleo paying costs in both courts.


author: Wxly, J.

text:
    No. 2258.
    Joseph Christen v. Nicholas Keiffer.
    Wlioro the plaintiff and defendant "both testify in the case, and that given by the one contradicts that of the other, judgment will ho given in favor of the party having the preponderance of evidence, without reference to the testimony of the jiarties to the suit./
    APPEAL from the Fourth District Court, parish of Orleans.

      TMard, J. B. Howard McGaleb, for plaintiff and appellee.

      B. B. Bormant for defendant and appellant.
   Wxly, J.

The plaintiff sues the defendant to recover a sum of money which he alleges he was compelled to pay as surety for the rent of a certain beer saloon and boarding house on Hospital street. That although in the notarial act of. lease, Mrs. Richard Zorn appears as lessee, and the petitioner as her surety, in truth and in fact he signed it as the surety of the defendant, Nicholas Iieiffer, who was the owner of the contents of said leased premises, and the proprietor of said saloon and boarding house. That he signed said contract at the request of, and for the said Nicholas Keiffcr, who represented to him that he was the proprietor and lessee, and that the contract was made and the business carried on in the name of the said Mrs. Zorn, merely for convenience, and for the custom thereby to be drawn, and that ho would pay the rent for petitioner’s protection. That it was for the direct use and benefit of said Keiffer, that the plaintiff became surety for said rent, which he has been compelled to pay'; and that the said Keiffor has repeatedly acknowledged his direct indebtedness to him, and has promised to pay and indemnify him therefor, but has failed to do so. The answer is a general denial.

The court gave judgment for the plaintiff, and the defendant appeals. Our attention is directed to a bill of exceptions taken by the defendant, which we deem it unnecessary to consider, as the proof fails to sustain the demand of the plaintiff. The testimony of the, plaintiff is contradicted by that of the defendant, both having testified in the ease. The other evidence preponderates in favor of tlia defendant.

It is therefore ordered that the judgment appealed from be annulled, and that there be judgment for the defendant, plaintiff paying costs of both courts.


text:
    No. 2972.
    John M. Hoyle v. N. O. City Railroad Company.
    Erom and after tlie passage of tlie act creating tlie Eighth District Court lor the parish of Orleans, the other district courts of the’parish were divested of all jurisdiction over cases in which exclusive jurisdiction was given to the Eighth District Court. The signing of a judgment in an injunction suit by the judge of the Sixth District Court, after tlio passage of tlie act creating the Eighth District Court, is therefore null and without legal effect, because the Sixth District Court was divested of jurisdiction over the case.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. Oooley & Phillips, for plaintiff and appellee.
    IF. H. Hunt, for defendants and appellants.
   Howe, J.

A judgment was rendered in this ease oil the sixteenth •day of May, 1870, in favor of plaintiff, commanding the defendants to dosist from the construction of their road on certain neutral ground mentioned in the petition. On the same day the act of the Legislature, No. 2, extra session of 1870, became a law, and divested the Sixth District Court of all jurisdiction of the canse, except to make an order of transfer to the Eighth District Court, it beiDg an injunction suit. .Twelve clays after,- the judge of the Sixth District Court signed the judgment. On the thirty-first May the defendants moved to transfer the case to the Eighth District Court, hut.the motion was denied, and thereupon the defendants appealed.

The judge a quo had no jurisdiction to sign the judgment

It is therefore ordered that this cause he remanded to the court a qua with directions to transfer the same to the Eighth District Court for the parish of Orleans, and that the .plaintiff, appellee, pay the costs of appeal.


text:
    No. 1457.
    Succession of M. Morgan and W. R. Morgan v. P. L. Morgan et als. (Consolidated.)
    An appeal from a judgment removing a testamentary executor from office will he dismissed, if it appear that the plaintiff in the proceeding in the lower court has not been cited, nor made appearance in the appellate court.
    One coproprietor of property held in common, can not be judicially compelled to incur a debt for improvements, in accordance with the views and wishes of the other, on the property held in common. In determining a question, of this kind, courts are not required to call in aid natural law and reason, because the lawmaker has made ample provision for tlio protection of the rights of coproprietors.
    APPEAL from the Second District Court, parish of Orleans.

      Thomas, J. Bradford, Lea & Finney, for appellants.

      A. Hennen and B. It. Forman, for appellees.
   Howell, J.

W. R. Morgan, as .executor and heir of Matthew Morgan, deceased, and trustee named in the will, brought suit against the widows and heirs of said Matthew Morgan and of George Morgan, •deceased, residing in New York, coproprietors with him of a certain valuable lot in this city, the building on which had been destroyed by fire, to have himself authorized to rebuild thereon such a store as, in flic opinion of experts to be appointed by law, will most promote the interests of all the parties concerned, and in order to do so to be ^authorized to borrow $50,000, to be secured by mortgage or lease of ■said premises.

The widow hud heirs of George Morgan acceded to the prayer of the petition, and offered to contribute ratably to the erection of the proposed building, but asked to be saved from costs of suit. The curator •ad hoa, appointed to represent the other defendants, answered, denying the right of plaintiff to ask and the authority of the court to grant the relief sought, and averring that all the property of the succession •of Matthew Morgan situated in this State is subject to the usufruct of his widow, pending which neither she nor the children of said M. Mor.gan can be required to'make the improvements demanded by plaintiff, who has only the naked ownership of one twenty-fourth of the property in controversy.

In the meantime, one of the heirs of Matthew Morgan died a petition •in the mortuary proceedings to rescind the order appointing W. R. Morgan testamentary executor. The two suits were consolidated, and .judgment was rendered removing W. R. Morgan as testamentary •executor, and granting his prayer for authority to remove the old '.walls on said property, or rebuild new stores under the direction of an architect appointed by the court, if not selected by the parties, at any cost less than $75,000, and constituting him a creditor of his co-pr.oprietors lor their shares of the cost, and giving the defendants •sixty days to agree upon some course before the plaintiff shall exercise his choice.

Prom the judgment so rendered, the curator ad hoe oi the widow ■and heirs of Matthew Morgan took a devolutive appeal by petition. •In answer to the appeal, W. R. Morgan asked that the judgment depriving him of the executorship be reversed, and one rendered ■ authorizing him to give security and act as executor.

If it be considered that the appellants appealed from this judgment of removal, we can not revise it, as the plaintiff in the proceeding, Edward Morgan, has neither made apimarancc nor been cited. Upon the other branch of the subject, it is said: “As Louisiana has no express law to regulate the proceedings and make proper provision in the matter, the court must decide according to natural law and reason. ■C. <h, art. 21.”

We are unable to recognize any -aw or reason in the judgment or -demand. Our code has made ample provision for the protection of the rights of coproprietors of property, in which, however, is not embraced the right to judicially force one to make a contract and incur a debt •for the improvement of property according to the view of another. ’The record discloses no grounds for a resort to the exercise of such equitable powers as are invoked by the ulaintiff in these anomalous, proceedings.

We perceive no force in the suggestion that the defendants have voluntarily carried out the decree of the lower court.

It is therefore ordered that the appeal, as to the judgment depriving W. R. Morgan of the executorship, be dismissed, and that the judgment in his favor authorizing him to rebuild on and mortgage tho property in question be reversed, and that there be judgment in favor of defendants, rejecting his said demand, costs of both courts to be. paid by him.

Rehearing refused.


text:
    No. 2218.
    William H. Simmons et al. v. Howard, Prestons & Barrett.
    In case tho .appellant has failed to canso a noto of tho ovidonoo, on trial in tho court below,, to bo affixed to tho record, the Supremo Court will presumo that tho judge a quo, in rendering his judgment, proceeded to do so on proper and sufficient ovidonoo.
    In a proceeding to cause a judgment of another State of the Union to bo made executory in this State, it is sufficient under tho general issue for the plaintiff to show that the judgment which is sought to be rendered executory has been duly rendered, and that the record thereof has been properly authenticated.
    APPEAL from the Fifth District Court, parish of Orleans.

      Beaumont, J. Face, Foster & F. T. Merrieh, for plaintiffs and appellees-

      F. Wooldridge, for defendants and appellants.
   Taliaferro, J.

This is an action to render executory a judgment obtained by the plaintiffs against the defendants in the State of Mississippi. , The defendants excepted to the proceeding on the ground that the petition and transcript filed with it, set out no cause of action ; and under the allegations of the petition and the transcript setting up. more judgments than one, each in'favor of a separate plaintiff, the plaintiffs have no right to join in one suit, and prosecute a joint action on their separate and distinct judgments.

The defendants filed an answer denying the legal existence of either of tho four judgments alleged upon; and if ever rendered, it was. without citation, and without answer filed by defendants to the merits. No action seoms to have been taken by tlie lower court upon the-exception before rendering its judgment, and of this the defendants complain as irregular.

Judgment was given in favor of the plaintiffs, rendering the Mississippi judgment executory, and the defendants have appealed.

We find no note of evidence in the record. In such a.case we will presume the court a qua, in rendering its judgment, proceeded on. proper evidence. The judgment sought to be made executory, appears, to have been duly rendered and tlie record properly authenticated.

It is therefore ordered, adjudged and decreed that the judgment of tho district court he affirmed with costs.


author: Ludeling, C. J. Howe, J.

text:
    No. 2324.
    Charles E. Leverich v. J. M. Dulin et al.—Summers & Brannins, Garnishees.
    In garnishment suits, tlie jurisdiction is attested by the original demand. If, therefore, tlier claim against the debtor is above five hundred dollars, the Supreme Court will have jurisdiction of the appeal irom a judgment in the garnishment process.
    A judgment that has been rendered against a party as garnishee, after he has been eliminated, from the suit, is void and of no effect.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J„ J. MoOonnell, for plaintiff and appellee.
    D. O. Lábatt and J. O. Hm-rison, for garnishees, appellants.
   Ludeling, C. J.

The appellee has moved to dismiss this appeal our the ground that the amount in dispute does not exceed five hundred dollars.

The plaintiff alleges that the defendant owes him $2192 64, with interest and commissions; that the garnishees have forty-two hales of cotton in their possession belonging to J. M. Dulin, his debtor, and he prays for judgment, in solido, against them for said amount.

In suits by garnishment, the amount in contestation is the claim against the debtor and garnishees. The question of jurisdiction is tested by the demand of the petitioner. I La. 246; 3 R. 370; 12 Rob. 178; 2 An. 163; 13 An. 510.

The motion to dismiss the appeal is therefore refused. •

On the Merits.

Howe, J.

The plaintiff, in his petition, alleged that the defendant,. Dulin, a resident of Arkansas, was indebted to him in the sum of $2192 64 for plantation supplies; that Dulin had shipped fortv-two. bales of cotton, on which plaintiff claimed a lien, to Summers & Brannins, of this city; that the cotton had been sold and the proceeds-passed to the account of R. D. Lee, in fraud of plaintiff’s rights; that-the cotton was the property of Dulin, and the proceeds still belonged' to him, and was subject to plaintiff’s lien and privilege. He prayed: for a writ of attachment against the rights, credits and funds to tlie account of R. D. Lee in the bands of Summers & Brannins, for citation against the three parties, and judgment against all of them, in solido,, for the full amount of his claim.

A writ of attachment was ordered as prayed for. The clerk issued: a writ against the property of Dulin. The sheriff made seizure apparently of all the property of both Lee and Dulin in the hands of Summers & Brannins. A curator ad hoo was appointed for Lee and Dulin, hut his appointment, as to Lee, was afterwards revoked, and Lee if-not, therefore, a party to this suit.

Summers & Brannins being made garnishees, were required to answer the following interrogatories:

First — “ Have you any money in vour hands now to the credit of one Dr. E. D. Lee, and what amount ?

Second — “ If yea, is said amount the proceeds of sale of forty-two bales of cotton, say of forty bales marked ‘L’ and two bales marked ‘A’ in a diamond? In this connection state fully the whole transaction.” See record, p. 3.

And they answered as follows:

First — In answer to the first interrogatory they say: “They had at the time of the service of the citation, and then in this case, and yet have, only the sum of $476 in their hands or under their control for or to the credit of said E. D. Lee. They neither had then nor since to his credit or for him any other or greater sum than $476.”

Second — In answer to the second interrogatory they say: “That said sum of $47G was not the proceeds of sale of forty-two bales of cotton, of which forty were marked ‘L,’ and two of which were marked ‘A’ in a diamond, but were'and are the balance of proceeds of sale of forty bales of cotton marked {L,’ consigned to them by E. D. Lee. The said forty bales of cotton were shipped from Douglass Landing by said E. D. Lee, on or about the sixteenth December, 1867; were consigned to these respondents; were received as the property of E. D. Lee, and the x>roceeds thereof are claimed and belong to said E. D. Lee, and were sold, and the proceeds thereof, except the sum of $476, remitted to and accounted for to him before service on tiiem of the citation herein, and before they had any notice or knowledge of the claim set up by the plaintiffs herein. They never received any cotton from or on account of said J. M. Dulin, and none in which he had any interest, so far as they were informed, know or believe. About the time they received said forty bales, as above, they received two bales marked ‘A,’ consigned to them by and for account of D. B. Alexander, which they sold and accounted for to him by remitting him the net proceeds, before service of the citation on them in this case, and before they had any notice of plaintiff’s claim.”

Tile plaintiff traversed these answers as untrue, and considerable testimony was taken. The judge a quo, after taking the matter under advisement, dismissed the rule to traverse. On motion of plaintiff, a new trial was granted on the rule, and no further proceedings appear to have been taken on it.

At this point the case may be summed up in this wise: An attachment is prayed for against funds to the credit of Lee; the clerk issues the process against property of Dulin; the sheriff attempts to seize the property of both Lee and Dulin; interrogatories are addressed to the garnishees, inquiring if they have not money to the credit of Lee, and on their replying in the affirmative, the plaintiff takes a rule to traverse the answers as false; Lee is then dismissed from the suit; the rule to traverse is next dismissed, and then the same rule is reinstated and left pending.

Noth withstanding this condition of things, the next step was to give a judgment in favor of plaintiff against Dulin, and finally, on motion •of plaintiff, to give a judgment against Summers & Brannins in favor •of plaintiff for the $476 in their hands, which they had declared to •stand to the credit of and belong to Lee. Summers & Brannins have •appealed.

It is clear that this judgment is erroneous. The answers of the garnishees are full and truthful, and they effectually dispose of plaintiff’s •case. Dulin was not in court, either by personal service or by any •seizure of his property, and Lee had been eliminated from the controversy some time before ihe judgment appealed from was rendered by •which it was sought to take his balance of $476 and turn it over to the plaintiff.

It is therefore ordered that the judgment appealed from be avoided .and reversed, and the suit dismissed at plaintiff’s costs.


author: Taliaferro, J. Howell, J.,

text:
    No. 2315.
    Pelleman M. Williams v. The City of New Orleans.
    -The acfc of the General Assembly which created a Metropolitan Police District for the city of Now Orleans and took away from the city authorities the management of the police force and vested it in a Board of Metropolitan Police, did not repeal or modify the statute of 1855, re-enacted in 1869, which makes the city liable for property destroyed by a mob or a riotous assembly within the limits of the corporation. The city is, therefore, liable, under this act, for the damage done to property within the corporation, whether the owner of such property bo a resident of the city or an' absentee.
    APPEAL from the Fifth District Court, parish of Orleans.
    Lealfmont, J. Hays & New, for plaintiff and appellee.

      George S. Lacey, for defendant and appellant.
   Taliaferro, J.

The plaintiff in this case seeks to render the city •of New Orleans liable to him in the sum of $1744, the amount of losses he alleges he sustained from the destruction and carrying off of property by a mob of disorderly and riotous persons, who, by violence, entered his dwelling on the nights of the twenty-sixth and twenty-seventh of October, 1863.

The answer is a general denial. The plaintiff had judgment for twelve hundred dollars, with legal interest from judicial demand. The defendant appealed.

The claim of the plaintiff is predicated upon the statute of 1855, re-enacted in 1869, which declares that “the different municipal corporations shall be liable for the damages done to property by mobs or liotous assemblages in. their respective limits.” Revised Statutes of 1870, p. 485, § 2453.

The principal ground of defense seems to be that by the statute of fourteenth of September, 1868, entitled “ An act to establish a Metropolitan Police District, and to provide for the government thereof,” the city of Now Orleans was divested of the power and means to maintain order and suppress riots, mobs and insurrections. This defense seems more specious than solid. The liability of municipal corporations for losses occasioned by riotous conduct within their limits, is not made to depend upon the condition of having police forces. The underlying principle on which laws of the character of the statute of 1855, re-enacted in 1869, already referred to, are founded is, that it is the interest of every one that property should be protected, and that it is for the general good that such laws should exist. When the importance of social order and the security of person and property resulting from it are impressed upon .the public mind by the strong influence of pecuniary responsibility, a sharper vigilance is excited and a more efficient action aroused, in regard to the prevention and suppression of riotous assemblages, by which, in large cities especially, property is so often damaged and destroyed. This usage, it appears, is of ancient origin. It prevailed among the Franks and the ancient Germans, and was adopted at a later day in other countries from nations of German descent. In England, in the districts called Hundreds, from having formerly contained each one hundred families, it was introduced at a remote period. In many eases where an offense is committed within the Hundred, the inhabitants are civilly responsible to the party injured. In other States of the Union, laws have been passed making cities or counties responsible for the destruction of property by a mob. Such a law is in force in the State of New York, and we are referred to' numerous decisions in suits instituted under its provisions. Looking to the reason for the establishment of such laws and turning to our statute on the subject, we And its terms clear, positive and unambiguous. It declares that “the different municipal corporations of this State shall be liable for the damages done to property by mobs or riotous assemblages in their respective limits.” The language is plain. There are no words of limitatioii or qualification. We conclude, therefore, that the establishment of the Metropolitan Police force does not release the corporation of New Orleans from the provisions of this law. The equitable considerations invoked by the defense seem to “possess little weight. The Metropolitan Police, although not under the control of the city authorities, is nevertheless established for the benefit of the city of New Orleans and the other places within the Metropolitan District. Section forty-one of the act establishing the Metropolitan District enumerates numerous duties required to be performed by the Metropolitan Police. Among these, it is required, at all times of day and night, "to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress mobs, riots and insurrections, disperse unlawful and dangerous assemblages,” etc.

Section fifty-one provides " that the Board of Commissioners shall, at all times, cause the ordinances of the cities of New Orleans, Jefferson City and Carrollton, and of the towns of Algiers and Gretna, and the ordinances of the parishes of Orleans, Jefferson and St. Bernard, not in conflict with the provisions of this act, to be properly enforced; and it shall be the duty of the said board, at all times, whenever consistent with the rules and regulations of the board and with the requirements of this act, to furnish all information desired by the Mayors, Common Council and other authorities of said cities and towns.”

Here, then, is a competent force for all the various purposes for which it was established; a force which is to carry into execution the ordinances of the city of New Orleans and to co-operate with the Mayor and Common Council in regard to police matters concerning the interests of the city. For all that appears the duties with which this police force is charged, are performed as efficiently as if it wore under the control of the Mayor and Common Council. Tbc organization of the Metropolitan Police force does not disarm the municipal authorities of the power to use means to prevent and suppress mobs and riotous assemblages. It is provided by section twenty-six of the act of 1856, No. 164, approved March 20, and re-enacted by the act ” To extend the limits of the parish of Orleans,” etc., approved March 16, 1870, That the Mayor shall be the chief executive officer of the jitj. He shall keep his office in the City Hall; he shall affix the seal of the corporation to all its official acts; he shall see that the laws and ordinances be properly and faithfully executed; he shall be ex officio justice and conservator of the peace.” Acts of 1870, p. 32.

The chief executive officer of the city being constituted a justice of the peace ex officio and a conservator of the peace, he is necessarily clothed with all the powers incident to and conferred by law upon justices of the peace. What is there to prevent him, if need be, from, calling upon the proper authorities.and resorting to the means within his power as a conservator of the peace to prevent or suppress mobs or riotous assemblages'?

We think the plaintiff’s case is fairly made out and that he is under the law entitled to recover.

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

Howell, J.,

concurring. I do not consider it necessary, in this suit, to express an opinion on the question of the powers and duties, respectively, of the city government and the Metropolitan Police in regard to the suppression of riots, as the law on which this action is. based, is clear and unambiguous, is not repealed or unconstitutional and is not made dependent for its operation on the existence or nonexistence of a police force, but upon the aggregate responsibility of the inhabitants, whose interest it is or should be to maintain good order, and it seems to me clear that if public sentiment is opposed to-mobs, no mobs of any extent will be apt to occur.

On this ground I concur.

Ho aye, J. I concur on the grounds stated by Mr. Justice Howell.


text:
    No. 2237.
    J. BecK v. Germania Insurance Company.
    A discrepancy between tlie value of goods destroyed by fire, as sworn to by the insured, and the value as proven on tlie trial in a suit against tlie company to recoverdilie policy, is not necessarily evidence of fraud against the company on the part of the insured.
    APPEAL from the Fifth District Court, parisli of Orleans.

      Leaumont, J. A. & M. Voorhies and H. iS. Schmidt, for plaintiff.

      J. M. Lirrhmimer and O. JS. Schmidt, for defendant and appellant.
   Howell, J.

This is an action on a policy of insurance for the sum of $2600, the amount specified therein as the value of a stock of merchandise and fixtures insured with defendant by plaintiff.

The defense is that the statement of loss furnished by plaintiff to defendant is false and untrue, and by reason thereof plaintiff has forfeited tlie insurance. Judgment was rendered for $1800. A motion was made for a new trial on various grounds, and upon plaintiff’s entering a remittnv for $800, the new trial was refused, and defendant appealed.

The clause of the policy relied on by appellant is in these words: “All fraud and false swearing shall cause a forfeiture of all claims on the insurers, and shall be a full bar to all remedies against the insurer on the policy.” The appellant admits that to create a forfeiture under this clause, the false swearing must be done willfully and knowingly, with a view to defraud the company; but contends that the evidence and the act of making the remittur show the intention to defraud, and not an innocent error on the part of the assured.

The remittur was the act of the attorneys,-as explained by them, to avoid the delays of the law from a possible new trial and appeal, and should not enter into the consideration of the intention of plaintiff in making his statement qf loss.

The testimony is conflicting as to the value of the goods destroyed, but it does not justify us in deciding that plaintiff swore falsely with a view of defrauding the defendant,” as contended. It is shown that about four months prior to the fire plaintiff acquired the store in question, which was then insured at $2600, and he took out a new policy for the same amount, the company being unwilling to allow the policy of the vendor to be transferred as was stipulated, and that plaintiff kept the stock at about the same amount, if not greater, up to the time of the fire, and there ih no good reasos-ve suppose that he removed any part or did any act for the purpose of recovering from defendant insurance for goods not destroyed, or an amount of value beyond what he may have'honestly believed them to be worth. He swears that at the time of effecting the insurance he proposed to the company to inspect the stock.

The difference between the amount sworn to by him and the value proven on the trial, is not necessarily evidence of fraud and false swearing on his part, and the circumstances of this case are not such as to impose on him any further explanation of the discrepancy than the record contains. It is often extremely difficult, if not impossible, to prove the exact value of goods insured in an open policy, and merchants may always be supposed to consider their goods worth more than they give for them. Hpon the whole, we see no good reason for disturbing the judgment of the court below.

It is therefore ordered that the judgment be affirmed, with costs.


text:
    No. 3162.
    J. A. Abbott, Collector, v. Britton & Koontz.
    A tax tliat has "been, imposed after the law which authorized it has heen repealed, is -void and of no effect.
    APPEAL from the Thirteenth Judicial District Court, parish of Concordia.

      Sough, J. S. Selden, Attorney General, for the tax collector, nlaintiff and appellant.
    <?. Spencer Mayo, for defendants and appellee.
   Ludeling, C. J.

The tax collector of Concordia parish instituted this suit in 1870 to enforce the collection of a specific tax on cotton raised in 1868, which he alleges was imposed by the act No. 55 of the Legislature of 1865, and which was assessed on the roll of 1869.

The act of 1865, referred to, was repealed and superseded by the revenue bill of 1868, and it was itself superseded by the act of 1869. Neither of these acts imposed the tax claimed. The judge a quo correctly rejected the demand.

It is therefore ordered that the judgment of the district court be affirmed, with costs of appeal.