author: Bekjiddez, C, J.

text:
    No. 9319.
    Paul Doullut vs. Hugh McManus.
    "Vagueness, want of precision. or generality in the averments of a petition, should be taken-advantage of by exception before issue joined, unless the opposite party has not therefrom had sufficient notice of the nature ot the demand and would be truly surprised. The object of pleading is to notify the adverse party, so that he may be prepared to rebut. He cannot, for the lack of moro explicit pleadings, be permitted to exclude pertinent evidence of whose existence and intended introduction he was previously aware.
    It is also to serve as record evidence to bar future investigation of same matters between same parties.
    A petition for slander which contains a clear statement of the time, place and circumstances, when, where and in what manner the defendant acted, and which sets forth want of probable cause, malice and injury, and a specific money claim, discloses a cause of action.
    If, in order to prepare himself, tho defendant wishes more explicit allegations, he must require the same by exception filed before issue joined. Nailing to do so then and in that mode, he cannot object at the trial to the introduction of evidence in support.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe.

      Sambola & Mueros for Plaintiff and. Appellant:
    1. A petition for slander needs only contain a concise statement of the cause of action, with circumstances of time and place, and with a claim for damages stated in a round sum. C. P. 172: 4 N. S. 280: 3 L. 290 : 3 Ann. 70: 23 Ann. 280.

      ■2. Any nullity or informality, suchas vagueness, want of precision or generality of the averments of the petition can be taken advantage of only by a peremptory exception filed before an answer to the merits. O. P. 343, 344; 1 K. 190; 4 Ann. 537; 10 Ann. 528.

      Walter H. Rogers for Defendant and Appellee.
   The opinion of tho Court was delivered l>y

Bekjiddez, C, J.

This is an action in damages.

The plaintiff charges that, on April 1, 1884, in this city, at No. 11 Noith Front street, the defendant did then and there publicly, falsely and maliciously slander, defame and abuse him, calling him a thief, a ■fraud, a son of a hitch, a liar, a puppy, using other abusive and defamatory language in the presence and hearing of many other persons; that this conduct of defendant was unprovoked and unjustifiable, and that he, plaintiff, was thereby injured in his feelings and reputation, standing and business, in over five thousand dollars, which he is entitled to recover as real and vindictive damages; which $5000 he claims.

Tho defendant filed no exception, but pleaded the general issue.

On the day of tiial, when plaintiff offered evidence in support of his averments, counsel for defendant objected on the ground that tho allegations disclosed no causo of action for the damages claimed; that no allegation of charges, actionable in themselves, had been made, and that no specific damages have been set forth and detailed under which plaintiff could recover.

The court ruled that the objection, as far as it goes to the want of specification of tho damage arising from different causes being combined together, are too general properly to put defendant on his guard or to justify tho admission of evidence in support.

From a judgment of non suit, plaintiff appeals.

The objections to the admissibility of the evidence are twofold : 1st. No cause of action. 2d. No specification of damages said to have been sustained.

The appellee contends that tho exclusion of the evidence is justified ■on those two grounds.

I.

The objection that tho petition discloses no cause of action is simply that tho averments, if proved, would not warrant the judgment sought.

The petition contains a clear statement of tho time, place and circumstances of tho occurrence. Tt specifies the words used. It charges malice, want of provocation, and absence of all justification. It values •the damages, real and vindictive, at a round sum, and prays for corresponding relief.

It is clearly sufficient to place tile defendant in possession of the nature of the facts proposed to he proved and to enable him to prepare his defense.

It is manifest that, if on the trial, the plaintiff supports his allegations by legal proof, he will he entitled to a judgment. C. P. 172; 4 N. S. 280; 3 L. 290; 3 Ann. 70; 23 Ann. 280; 3 L. 207; 2 R. 365 ; 5 R. 116 ; 8 R. 51; 16 L. 389.

II.

The objection that the claim for specific damages has not been set forth and detailed under which plaintiff can recover, is likewise unfounded. That omission could not justify the exclusion of the evidence.

It is well settled that vagueness, want of precision, or generality in the averments of a petition, should be taken advantage of by exception, which should be filed in limine before answer to the merits, unless the opposite party had therefrom no sufficient notice of the nature of the demand and would he surprised.

The object of pleading is to notify the adverse party so that he may be prepared to rebut. He cauuot, for the lack of more explicit pleadings, exclude pertinent evidence, of whose existence and intended introduction he was previously aware.

It is also to serve as record evidence of matters once decided, so as to bar their future investigation. 6 M. 649 ; 4 N. S. 277 ; 7 N. S. 354; 17 L. 238; 5 Ann. 531,673; 9 Ann. 119,254; 10 Ann. 528; J2 Ann. 795; 23 Ann. 676.

The rule is different in cases of irrelevant or impertinent averments. The defendant there may either except, in order to have them stricken out, f-liat he may know precisely what he may have to rebut on the trial; or he may wait till the plaintiff offers evidence, and then object. Rut this rule docs not. extend to cases of lack of more explicit pleadings, where sufficient averments are made to put defendant on his guard and to justify a judgment on legal proof. 20 Ann. 193; 21 Ann. 273.

It is clear, in the instant case, that the defendant was sufficiently informed of the essential facts on which plaintiff relies to claim damages from him. He could plead surprise to no pertinent fact proved to establish the averments of the petition.

It is likewise positive that a final judgment rendered on the merits of this controversy, in favor of either of the litigants, will constitute res judicata to any new suit bronght on averments similar to those contained in the petition.

Had the defendant deemed it necessary, in order to prepare Ins defense, to demand a specification of the various items on which plaintiff bases his claim for real and vindictive damages, he ought to have filed before issue joined an exception requiring the same to be set forth and detailed with minuteness.

We conclude that the plaintiff is entitled to be allowed to introduce legal evidence in support of his allegations.

It. is therefore ordered and decreed that the judgment appealed from he reversed, and that this case he remanded to the lower court for farther proceedings according to law, the appellee to pay costs of appeal; those of the lower court to abide the final determination of the suit.


source: Caselaw Access Project

author: Pociié, J.

license: Public Domain

text:
    No. 9422.
    G. Corral & Co. vs. Eclipse Towboat Company.
    A party who briaga an action must have an actual interest which he pursues.
    Hence a ship agent cannot personally recover damages which he charges to have been caused to vessels consigned to him on account of overcharges on towage, when the amounts alleged to have been overcharged were paid by the owners or charterers of the vessels themselves. .
    PPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Bayne & Denegre for Plaintiffs and Appellees.

      B. D. Graig for Defendant and Appellant:
    1. Plaintiffs, suing exclusively for their own benefit, in order to recover, must have an interest in the damages claimed at the institution and during the pendency of the suit., C. P.3 Art. 15; 1 Bob., 470; 5 A., 263.
    2. Agents cannot recover for their principals unless they set up in their pleadings that the-suit is instituted un behalf of their principals, and must disclose the names of said; principals in their pleadings. 24 A., 18; 28 A., 412.
    3. The putting of a debtor in default is, under our law, a condition precedent to the recovery of damages for the violation of a contract. The want of it need not be pleaded, and can at any time he taken advantage of. O. O , 1912 ; 6 Martin 2sf. S., 229 ; 3 Bob., 403 ; 9 Boh., 501.
    4. Where there are two parties to a contract and there exists a condition binding upon one-of the said parties precedent to the fulfilling the contract by the other, which condition requires the former obligor to do a certain thing on the occurrence of a certain event, and which requires a notice to be given to his obligee of said event, in order that said obligee may know when to act in order to fulfill his part of the contract, and the said, obligor neglects to give .the said notice as conditioned, the obligee is not bound and cannot be held as having been put in mora, so as to render him liable for the damage because of his passive disregard of the contract. Art. 1913, O. C.; 3 Boh., 403; 11 A., 300.
    5. When it is a condition in a contract for towage that the vessel to he towed must sail to the bar in the Gulf of Mexico at the mouth of the Mississippi river, and then give notice of said arrival to the owners of the towboat, the condition mast be expressly com - plied with, in order to put the owners in default, and a different notice stating that the vessel had sailed, or was expected to sail, from Havana to Hew Orleans, and without stating the time of her arrival at the bar, does not fulfill tho condition. Arts. 1903 and 1913 C. 0.
    G. The interests of various parties, distinct and separate, united in the same cause of action by a party plaintiff, would be a misjoinder of parties, and not admissible.
    '7. ‘When the true intent of a contract or any stipulation thereof, is not ambiguous, but is well understood, according to the rules of legal interpretation and language, it; must; have tho effect of law upon the parties, which none but tho parties, mutually, can abrogate or modify; neither equity nor usage can be resorted to to restrain that intent, and •the courts are bound to give legal effect thereto, according to the true intent of all jjarties. Compare Arts. C. C. Hos. 1901,1903, 1913, 1945 and 19G3.

      S’. Gilmore & Sons on the same side.
   The opinion of the Court was delivered by

Pociié, J.

Defendants prosecute this appeal from a judgment condemning them to pay to plaintiff $4329.88 for an alleged violation of a contract, by which they had bound themselves to tow to the city of New Orleans from the Gulf of Mexico and back again, for a term of one year from July 11, 1882, all the vessels which would come to this port on consignment to plaintiffs, at a stipulated price per tonnage for the round trip.

The amount claimed by plaintiffs and allowed by the District Court consists of the sum of $40, spent by them as counsel fees in some litigation growing out of defendant’s alleged violation of their contract, .and of the difference in towage dues paid by them on vessels consigned to plaintiffs during the year, and the price of such dues as fixed by the contract.

Among other defences, tho defendant company urges that under ■their pleadings plaintiffs have shown no personal rights to claim and •recover the amount which forms the judgment of the District Court. In our opinion that defence should have prevailed, and the judgment •of the lower court is therefore erroneous. The evidence, which consists,in the main, of plaintiffs’ own testimony, shows to our entire satisfaction that the various amounts winch form the basis of their •demand were paid directly by the owners or charterers of the vessels which were consigned to plaintiffs during the time covered by the contract, and that therefore they incurred no losses on that score through. the alleged violation of the contract by the defendant company.

Plaintiffs have utterly failed to allege in their petition, or to intimate in their testimony, that they were pressing this claim as agents, or for tlie use and benefit of the owners or charterers of the respective vessels, on which the burden of the alleged overcharges fell and to whom they are due, if recoverable at all.

In his testimony the senior member of plaintiffs’ firm distinctly states that he actually or personally lost nothing through the transaction which ho declares upon, and that his only losses consist in the loss of business on account of his failure to secure cheap towage on vessels which would in that event have been consigned to him, and whose owners were thereby deterred from consigning to this port, under the control of his firm.

His testimony is clear on that point, and proves beyond a doubt that he lias no personal cause of action in claiming the various amounts-which form the basis of his demand. Hence plaintiffs cannot maintain their present action, although in a proper action, on proper showing, they may be legally entitled to recover such damages as they may show in consequence of decrease of business as a result of the defendant^ alleged violation of its contract, and to that end we shall reserve their rights under our decree.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered that plaintiffs’ demand be rejected and that their action be dismissed as in the case of non-suit, at their costs in both courts.

Judgment reversed.


author: Todd, J. Manning, J. Manning, J.

text:
    No. 9234.
    Mrs. Elizabeth Bedell vs. David Calder et al.
    The prescription of four years is a bar to a minor’s action against bis tutor respecting the acts of the tutorship.
    If a provisional account has been rendered by the tutor during the minority and has been homologated, and the minor does not within four years after majority take legal action to finally settle his rights and enforce them, prescription will apply.
    If the real property of the tutor has meanwhile passed into the hands of purchasers under forced alienations, they may plead prescription even though the tutor lias renounced it..
    APPEAL from the Nineteenth District Court, Parish of Si. Mary. Goode, J.

      M. J. Zoster and A. 0. Allen for Plaintiff and Appellant.

      D. Gaffery for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

This is an hypothecary action to enforce a legal mortgage claimed to have resulted from an indebtedness to the plaintiff by her natural tutrix, who is alleged to have owned the land described in the petition, during tlie tutorship, and now sought by this suit to be subjected to said mortgage.

Pleas of prescription of four and ten years were filed in the lower court against the demand,' and that of four years sustained and the suit dismissed, and from this judgment the present appeal is taken.

Mrs. Célézie Hays, widow of Jotlian H. Bedell and mother of the plaintiff, was confirmed as her natural tutrix on the 30th of January, 1860.

On the 12th of May, 1870, the tutrix filed an account of her tutorship in which she stated the balance due the plaintiff at that time to be $8190.58. This account, as between the plaintiff and her tutrix, oías to this particular indebtedness, .appears not to have been homologated during the minority of the plaintiff, who became of age in the year 1873.

On the 14th of June, 1880, plaintiff presented a petition to the court .asking that 'this tutorship account, in so far as it concerned her, be •approved and homologated and the mortgage resulting from this acknowledged debt of the tutrix be recognized and made'executory, •and ap judgment was rendered in conformity to this prayer on the 28th •of April, 1881.

To enforce the mortgage thus recognized the present suit against these defendants was instituted on the 19.th of September, 1882.

The question to be decided is whether, under this state of facts, the claim of the plaintiff is barred by the prescription pleaded against it.

Prescription did not run against the plaintiff during her minority. €. C., 3522; Sewell vs. McVay, 30 A., 673.

After the expiration of four years from her majority no action would lie in her favor to compel the rendition of an account by her tutrix, or to change or alter in her favor any account of the tutrix rendered—or, in short, to establish any indebtedness on the part of the tutrix •“ respecting the acts of the tutorship ” not already legally acknowledged or fixed. This we take to be the true intent and meaning of Art. 362 of the Civil Code.

We find, however, that in this instance the indebtedness of the tutrix to the plaintiff, her ward, at the time the latter attained her majority, was liquidated and established by the judicial admission of the tutrix made in her tutorship account as stated. The liability and the debt thus acknowledged stood uncontroverted up to the time plaintiff attained her majority. It was for her after that period to accept or reject it. It is evident that she tacitly accepted it by her silence and failure to oppose it, and afterward expressly by her motion to have the account homologated. And notwithstanding her long delay in talcing this last step she was not debarred from doing so.

At the attainment by plaintiff of her majority the tutorship account filed three years before might be properly regarded as a proceeding-pending in court between her and her tutrix, in which the latter as accountant occupied the position of plaintiff and she, the ward, as defendant cited to answer the account. She might at any time, by a simple appearance and answer, have procured the homologation of the account. That she appeared by formal petition to effect this object might appear irregular, but such irregularity did not in fact alter her true position or affect her rights. It could not be regarded as an “action” against her tutrix to fix or establish an indebtedness, for that had already been done by the tutrix’s own formal judicial acknowledgement, made in the most solemn form and in the manner-prescribed by law. It denoted only an express acceptance on plaintiff’s part oí what she had always accepted by her previous silence and inaction. The judgment homologating the account only declared the legal effect, with respect to the mortgage, that the law imparted to the debt.

The proceeding to have the account of tutorship homologated and the judgment of homologation both took place before the expiration of the ten years from the plaintiff’s majority and were in time.

This suit to enforce the mortgage based on the debt thus recognized was filed the next year.

Our conclusion, under these circumstances, is that the prescription ■of four years was improperly sustained, and it is quite as clear that the prescription of ten years is equally inapplicable.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the case be remanded to that, court to be proceeded with according to law, the costs of appeal to bo paid by the defendants.

Dissenting Opinion.

Manning, J.

The plaintiff was of age in May 1873. Her action against her tutrix was filed June 14,1880, service having been accepted on 12th of the previous month. The present suit was filed September 19, 1882.

I think the action of the minor against her tutrix is barred by the prescription of four years, and her capacity to sue therefore terminated in May 1877.

The voluntary rendition of the account by the tutrix has no effect upon this prescription quoad other parties. To hold otherwise will' facilitate collusion between parent and child, after majority is attained, and subject purchasers in good faith to disastrous reclamations. If" any one must suffer for a mother’s waste of her child’s money, it should be the child.

I think the judgment should bo affirmed.

On Rehearing.

Manning, J.

The mother of the plaintiff was appointed her tutrix in January I860 and filed a provisional account of her tutorship in. May 1870 shewing that over eight thousand dollars was due the plaintiff. She attained her majority in May 1873.

An abstract of the inventory of the deceased father’s estate had been> recorded in 1869 and reinscribed in 1879. The tutrix had real estate which by forced alienations had passed into the hands of the defendants. This suit is a hypothecary action to subject that real estate to« the claim of the plaintiff against her mother, and was instituted in September 1882.

The prescription of four years is pleaded and that time expired in-May 1877 running from the plaintiff’s majority. Up to that date no-attempt had been made by the plaintiff to enforce her mortgage-against her mother’s property and no suit had been instituted respecting the acts of her tutorship. It was not until May 1880 that the-plaintiff sued her former tutrix (as her counsel’s brief says) “with the view of homologating and making executory the account filed two or three years before her majority.” Judgment Was rendered in that suit-in April 1881 and this suit followed in the next year.

The action of the-minor against her tutrix is prescribed after four years, Rev. Civ. Code art. 362, and more than that timo had elapsed, from the plaintiff’s majority to her suit in 1880. The account filed by the tutrix in 1870 during the plaintiff’s minority was one of those periodical accounts rendered provisionally that are required to bo filed every year. Even when homologated, the judgment of homologation is merely prima facie evidence of their correctness, and this account, was never homologated. It lay dormant until a suit by the Bedell heirs against the widow Bedell was instituted when the amount stated as due by this account was reduced, and that it was not considered-determinative of the plaintiff’s claims is apparent from her suit in 1880 instituted expressly to obtain an adjudication of them. Such accounts-are not conclusive on the minors vho may contest them after majority, Lay v. O’Neal, 29 Ann. 722, and they are not therefore a judicial ascertainment of the rights and liabilities of the parties respecting the tutorship. Wo have lately held after mature consideration that, they cannot serve as a foundation for the hypothecary action. Cochran v. Yiolet, ante 221, and in that case we went further than is necessary to hold in this.

The minor is given four years after majority to overhaul these accounts, to contest their correctness, and to compel the tntrix to a settlement. If after this time has elapsed and no legal action has been taken respecting the tutorship, third parties have acquired rights upon the property of the tntrix, the former minor has no one else but herself' to blame for not using the first four years of majority in forcing an adjudication of her rights.

The inscription of the inventory of the father’s succession in 1869' and its reinscription in 1879 preserved the mortgage of the plaintiff, but could no more keep alive the debt which that mortgage secured than the inscription and timely reinscription of an ordinary mortgage-can keep alive a note secured by it. Suit must be brought upon a mortgage note within five years or prescription must otherwise be interrupted or else the note will be prescribed, and the fact that th©' mortgage is still alive will not save the note.

So long as the relation of tutrix and ward exists prescription does-not begin, but whether provisional accounts have been rendered during minority or not, prescription does begin from the majority of the ward, and the Code interposes it as a conclusive bar to any claim respecting the acts of the tutorship, and to protect third persons from collusion between the former tntrix and ward or from failure of the tutrix to use the plea, it was long- ago held in a case very similar to this that a third possessor can avail herself of the plea even when the tutor has-renounced it. Blanchard v. Decuir, 8 Ann. 504.

The lower court sustained the plea but we reversed that judgment on the first hearing.

It is therefore ordered and decreed that our former judgment be set: aside and that the judgment of the lower court is affirmed with costs.

Todd, J. adheres to the opinion read by him on the first hearing.


author: Manning, J. Bermudez, 0. J

text:
    No. 9388.
    Wade R. Young vs. Maria J. Jackson.
    Damages for slander cannot be awarded wlien tlie only evidence of tlie alleged slander is vague rumors, tlie origin of which, is not traced to the defendant, and she denies ever having uttored the slanderous words.
    In the absence of express or implied agreerhent, an agent is not authorized to retain out of the funds of his principal in his hands any amount which may be due him, unless the same be for necessary disbursements, expenses and costs, a stipulated commission or a liquidated debt. The law forbids a mandatory from offsetting, except in such cases. H. O. C. 3022-5.
    APPEAL from the Tenth District Court, Parish of Tensas. Beeves, J. ad hoc.

      Wade B. Young, Plaintiff and Appellee, propria persona. •

      Percy Boberts and Steele <& Garrett for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

This action is described by the plaintiff as a suit “for . a settlement of accounts and cumulated therewith an action in dam-, ages for breach of contract and for slander and defamation of character.”

The plaintiff is a lawyer practising in the courts of Tensas. The defendant owns with her children a plantation in that parish and lives in Adams county, Mississippi. She employed the plaintiff in 1878 to take charge of the succession of her deceased husband which she was then administering. The property consisted of a plantation and the usual movables. He was not only to attend to her legal business, but to be her agent and general business-nnm besides, to secure a factor for her who rvould supply the plantation, to lease the plantation' and ■ collect the rents, in other words to be her factotum as country lawyers usually are for impecunious clients who own plantations and who do not own anything else.

The property had already been mortgaged and was under a lease for three years, but the tenant had not paid the rent for the first year and had made partial default on the rent of the second. Suits were promptly instituted and prosecuted successfully and near ten thousand -dollars realized.

Then followed overhauling the succession matters and preparing the accounts,' and other leases of the plantation or arrangement with the negro labourers for its cultivation, and finally the great overflow of 1882. Throughout this time down to the spring of 1883 the plaintiff • continued rendering his services as lawyer, accountant, land-steward, agent, business-man, and when he was discharged, the property was ■nut of debt and was yielding a satisfactory rental. For his services during these live and a half years charges were made which are contested. The sums realized by his administration of the business, including the rental for 1883 which he had already arranged, amount to over thirty thousand dollars.

The jury rendered a verdict for the plaintiff for one thousand dollars as damages for the alleged slander, and in the matter of accounts •adjusted them by giving to each certain items enumerated in'the verdict.

If the plaintiff had been slandered by the defendant as alleged we ■should not hesitate to affirm the judgment upon that branch of the ■case, but no evidence was introduced sustaining that charge save the existence of vague rumors floating in the community not traced to her, •and she as a witness emphatically denies that she ever used the opprobrious language attributed to her.

Upon the other branch of the case we are not disposed to disturb the adjustment made by the jury, composed as the plaintiff says “of the most intelligent men of the parish who sat patiently throughout the trial for near a week.” The largest items and the most objectionable were included in an account made by the plaintiff and rendered the defendant, and were not objected to by her. Her silence then closes her mouth now. ■

It is therefore ordered and decreed that the item, of one thousand dollars damages for slander be eliminated from the verdict of the jury and the judgment of the lower court, and as thus amended that it be .affirmed, the plaintiff paying the costs of appeal.

On Rehearing.

Bermudez, 0. J

Both parties having applied for a rehearing, we re-examined their differences and came to the conclusion that, although the plaintiff had received at our hands what he was entitled to recover, •the defendant had apparently valid grounds of complaint, to which full justice had not been done.

We refused the rehearing sought by plaintiff, allowing one to the defendant, but only on the right of plaintiff to charge for services as •agent in the years 1882 and 1883.

The defendant urges that the plaintiff is not founded in his demand, because he agreed to make the contracts with the hands of defendant for 1882 and charge nothing whatever for the services.

The evidence shows that the administration of the plantation had ■been entrusted to S. N. Jones, a competent and remunerated superintendent, and that no service was actually rendered by the plaintiff, not even that of procuring a factor, none being necessary, as this had already been done.

It appears that in the account which plaintiff tendered on April 7,, 1883, in which every item to which he thought himself entitled had' been minutely detailed and placed, he did not charge for his services-for 1882.

This omission implies the admission that, in his own estimation, he had acted gratuitously during that year.

This conclusion is fortified by his letter of May 19, 1883, in which plaintiff, referring to his claim for labor and responsibility, states that, the payment of the same is left entirely to defendant's generosity and that it is not an object to him.

The defendant further urges that the plaintiff cannot be listened to-ask compensation for 1883, for the double reason that not only did he not render any service, but also that he was discharged for cause by her before one third of the year had gone by; the cause being time lie-had charged her with a disbursement of $625 55 of her own money in his hands for taxes of 1882 on the plantation, when the fact is, that the deducted sum had never been thus applied, and that the defendant had-herself subsequently to pay those identical taxes.

It is unnecessary to determine whether the plaintiff was or not discharged for cause. It is clear that if he is not entitled to remuneration for 1882, he cannot, for the same reasons, claim any for 1883.

The record shows that the plaintiff has retained, as his compensation,, the sum of one thousand dollars to meet his services for those two-years.

He was without authority to retain that sum, in the absence of express or implied agreement, as it did not represent ’ disbursements,, expenses and cosis, a stipulated commission or a liquidated debt.

The law forbhis absolutely an offset by an agent, unless in such cases. R. C. C. 3022, 3023, 3024, 3025.

Our previous judgment allowed the plaintiff $1189 23, and shouid be-reduced by the one thousand dollars illegally retained by him.

It is therefore ordered and adjudged that our previous judgment be amended by allowing plaintiff to recover of defendant one hundred and eighty nine dollars and twenty-three cents only, ($189 23) with costs of the lower court, those of appeal to be paid by him, and that thus amended it remain undisturbed.


author: Fenner, J.

text:
    No. 9316.
    Mrs. Jessie R. Bell vs. Riggs & Bro.
    3Tor tho reasons given in State ex vel. Bell vs. Judge, 36 Ann., 886, the order dissolving the injunction herein appealed from is annulled and set aside.
    A PPEAL from the Civil District Court for the Parish of Orleans ..¿A. Bightor, J.

      Bcrn'l Gilmore and Jas. T>. Hill for Plaintiff and Appellant.

      Branch K. Miller and Albert Voorhies for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This is an appeal from an order dissolving an injunction on bond, which was granted under our mandamus in the case of State ex rel. Bell vs. Judge, 36 Ann., 886.

For tlie reasons given in that decision it is evident that the dissolving order was erroneous and must be reversed.

It is, therefore, ordered and decreed that the dissolving order .appealed from herein be annulled and set aside, at cost of appellee.


text:
    No. 9339.
    Mrs. Jessie R. Bell vs. A. Riggs & Bro.
    Xu the matter of ordinary preliminary injunctions the function of fixing the amount of the hondrequired is confided bylaw to the discretion of the.judge before whom tho action is pending,
    "While this discretion is legal and not arbitrary, and while we might afford relief in cases of oppressive nnd unreasonable requirements amounting to a denial of justice, yet where tho amount fixed is supported by evidence or otherwise evinces a prudent and sincere exorcise of his legal discretion, we are not justified in criticising his order and substituting our discretion for that which the law attributes to him alone.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Bam’l Gilmore and Jas. D. Mill for Plaintiff and Appellant.

      Branch K. Miller and Albert Voorhies for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

In this case a preliminary injunction restraining •defendants from erecting a steam engine for the prosecution of their •business on their premises was issued on a bond fixed by the judge at the sum of seven hundred and fifty dollars.

Defendants subsequently took a rule to have the bond increased on the ground of insufficiency. After hearing evidence contradictorily between the parties, the judge a quo made the rule absolute “in so far-as to increase the bond for injunction from the sum of $750 to the sum of $5000,” from which order the present appeal is taken.

The right of the judge to increase the'amount of the bond upon proper showing that the amount originally fixed was inadequate is too clear to admit of question. The ouly point involved is the correctness of the order of the judge upon the evidence before him. In ordinary injunctions the law has seen fit to confide the duty of fixing the amount of the bond required to the discretion of the judge having cognizance of the case.

Of course, this is a legal and not an arbitrary discretion, and in case of abuse and denial of justice by unreasonable and oppressive requirements, we should not hesittate to extend relief.

But we find no such case presented here. The ruling of the judge is supported by responsive evidence, and evinces a -prudent and sincere exercise of the discretion confided to him by law.

Under these circumstances we would not be justified in criticising the correctness of his appreciation of the evidence before him and in thus substituting our discretion for that which the law attributes to-him alone.

Judgment affirmed.


text:
    No. 9548.
    Conner & Hare vs. George M. Robertson.
    1. Sales of property for futuro delivery, with tho bona, fide intention and obligation to make actual delivery, are lawful contracts; but if, under the form of such a contract, the real intent be merely to speculate on the rise or fall of prices, and the goods are not to be delivered, but the contract to be settled on the basis of differences of price, the transaction is a wager and is non-aotionable.
    2. But in order to affect the contract, tho alleged illegal indent must have been mutual, and such intent in one party, not concurred in by the other will not avail.
    3. The law presumes lawful purpose until the contrary is proved; and when one party charges illegal intent, the burden of proof is imposed upon him.
    4. The validity of the contract depends upon the state of things existing at its dáte. and-is not affected by subsequent agreements under which the parties voluntarily assent to a settlement on tho basis of differences.
    5. The mere fact that at tho date of his contract, the vendor had not the goods, and had made no arrangement for obtaining them and had no expectation of receiving them unless by subsequent purchase, does not suffice to impair the contract. The contrary doctrine, once announced, is now thoroughly overruled.

      6. It follows that the failure to identify tbe particular goods sold does not afCect the matter, because the sale is not of ascertained articles, but of articles of a designated kind and. quantity to be selected thereafter, which is a lawful contract, when th e obligations are reciprocal.
    Applying the foregoing principles to the facte ef this cage, which is a contract for the future • delivery of cotton under the rules of the Cotton Exchange of How Orleans, tbe defense of wagering is not sustained.

      A PPEAL from the Twenty-first District Court, Parish of Opelousas., J\. Gdies, J.

      Ji. S. Berry ', for Plaintiffs and Appellants.

      Breaux ó JRenoudet, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

This case involves the legality of transactions in the-purchase and sale of cotton for future delivery, conducted under the rules of the Cotton Exchange of New Orleans, and the right of brokers, who act as agents in effecting such transactions, to recover from their principals commissions for their services and losses paid by them in the execution of their mandate for account of said principals.

The New Orleans Cotton Exchange is a corporation chartered in accordance with the laws of the State. Its membership comprises the leading merchants engaged in all the ramifications of the vast cotton trade of the city. Tt conducts its business in the most splendid building of tbe metropolis, situated upon one of its important public thoroughfares. Amongst its purposes, as declared in its charter, are the following: “To establish just and equitable principles, uniform usages, rules and regulations, and standards for classification, which shall govern all transactions connected with they cotton trade; to acquire, preserve, and disseminate information connected therewith; to decrease the risk incident thereto, and generally to promote the interests of the trade, and to increase the facilities and the amount of the cotton business in the city of New Orleans.”

In execution of these purposes, tlie Exchange has adopted an elaborate system of “Rules governing contracts for tbe future delivery of cotton.”

These Rules recognize no contracts except for the sale and purchase^ of cotton to bo actually delivered and received at tlie future period ) stipulated. They ini]tose upon the seller the absolute obligation to¿ deliver, and on tlie buyer the absolute obligation to receive tlie cotton with tlie single self-evident and superfluous qualification, “that any party holding a contract against another, corresponding in all respects,. except as to price, with one held by the other against him, may close or cancel both by giving notice in writing to the opposite party at any time before notice of delivery,” which is an obvious application of the principles of set-off or compensation.

The Rules explicitly discountenance and forbid any contracts dispensing with the obligation of actual delivery, and providing for a more settlement of differences in price, declaring: “All contracts for the future delivery of cotton shall be binding upon members, and of full force and effect until the quantity and qualities of cotton specified in such contracts shall have been delivered and the price specified in said contract shall have been paid. Nor shall any contract be entered into with any stipulation or understanding between parties at the time of making such contract, that the terms of said contract, as specified in Rule 1, are not to he fulfilled, and the cotton received and •delivered in accordance with said rule.”

These Rules are, by their own terms and by the terms of the contracts entered into under them, written into the contracts and form as much part of the agreement of the parties as the stipulated price or •quantity of the cotton.

They are published for the information not only of members hut of •■outsiders dealing through them, are accessible to all, are referred to in the contracts, and no person dealing thereunder can he allowed to plead ignorance of them.

The facts exhibited in this particular case are the following :

Plaintiffs aro members of the Cotton Exchange doing business as Brokers in contracts for future delivery of cotton. They received an -ordei from defendant’s-brother to sell, for defendant’s account, one thousand hales of cotton for delivery in September, 1882. They executed the order by entering into a contract conforming in all respects to the rules of the Exchange, for the sale of one thousand hales deliverable in September, in accordance with said rules, at the price of 11 78-100 cents per pound. Defendant was duly notified of the sale •and fully ratified it.

Under the rules, plaintiffs were the guarantors of the contract made for defendant, and were hound to execute it, whether he provided them with the cotton or not.

The price of cotton rose and defendant was called upon to face a loss. He did not comply with tiie contract made in hi-s behalf nor take any steps to do so. The 23th day of September arrived and his agents were confronted with the necessity of providing for the execution of their obligations under the contract on the following day. They, therefore, purchased from a member of the Exchange transferrable orders or contracts for the delivery of one thousand bales of cotton due on the following day. They paid for these the market price of the day. They then called upon the holders of the original contract which they had made in behalf of defendant, and effected a settlement with them by which the latter accepted the transferrable orders just purchased and surrendered the contract made for defendant. The difference between the price at which they sold and the price at which they repurchased was fifty-seven hundred and forty 77-100 dollars, which they paid out of their ojvn pockets for account of their principal.

Defendant was immediately furnished with a statement of the transaction showing the amount due by him to plaintiffs on account of his loss and commissions.

He made no objections to the account or to the contract of his agents. His commission merchants in the city made sundry partial payments -with his full approval. He sought the assistance of his father to enable him to settle the account which was denied. He finally said that he was broke and could not pay, and then this suit was brought. He now sets up a two-fold defense, viz: First, that plaintiffs were not authorized to make the transaction for him. Second, that the transac- '/ tion itself was a wagering contract, a mere gambling transaction, ! affording no basis for a judicial action. '

Defendant’s own testimony is sufficient to show that he should have spared his conscience the strain of making the first defense, and it needs no further notice.

The questions arising under the second branch of the defense are, in great measure new to this court, but they have been often considered and determined by the courts of England and of the United States. We think there is no substantial difference, at least affecting this case, between the law of Louisiana and the existing law of England and of the other States of the Union on the subject of aleatory or wagering contracts.

We have no concern with the general definitions and provisions of our code on the subject of aleatory contracts. Tiro only question here is whether this is a non-aetionable aleatory contract, and the only provision of our law affecting this question is Article 2983 of the Civil Code, which provides: “ The law grants no action for what has been won at gaming or by a bet, except for games to promote skill in the use of arms, such as the exercise of the gun, and foot, horse and chariot racing.’’ ■

It follows that the only question affecting plaintiff’s right of action is whether the cause on which it rests was, in form or substance, “gaming” or a “bet.”

This is the precise question which arises under the English statute (8 and 9 Victoria, C. 109, Sec. 18), which in effect declares all contracts by way of gaming and wagering null and void, and renders actions for the recovery of money won on any wager unsustainable. A like rule doubtless prevails generally among the States of this Union.

This is sufficient to show that the decisions of the English and other American Courts as to what constitutes “ gaming, ” or “ a bet, ” or a “ wagering contract, ” are entitled to full considerations as' pertinent authorities.

These decisions are numerous and they exhibit quite a consensus of opinion on the following governing principles, which we accept and announce with our own full approval.

1. It makes no difference that a bet or a wager is made to assume the form of a contract. Gambling is none the less such because it is carried on in the form or guise of legitimate trade; and if, under the guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitutes nothing more than a wager, and is non-actionable. Irwin vs. Willar, 110 U. S. 499 ; Benjamin on Sales, ( Bennett’s 3d Am. Edition) § 542, and numerous authorities there cited. 2. In order to affect the contract, the alleged illegal intent must have been mutual, and the intent of one party, not communicated to or concurred in by the other, will not avail. Grizewood vs. Blanc, 11 C. B. 536 ; Ashton vs. Dakin, 4 Hurlst & Nor. 867 ; Knight vs. Cambers, 15 C. B. 562; Cassard vs. Hinman, 1 Bosu. 207. 6 Bosu. 8; Kingsbury vs. Kirman, N. Y.; Smith vs. Bonvier, 70 Penn. St. 325 ; Rumsey vs. Berry, 65 Me. 570; Pixley vs. Boynton, 79 Ill. 351; Clark vs. Foss, 7 Biss. 540; Williams vs. Tiedeman, 6 Mo. App. 269 ; Sawyer vs. Taggart, 14 Bush. 729.

3. The law presumes that the true intention of parties is that which is expressed upon the face of their contracts, and also lhat men, in their business transactions, do not. intend to violate the law or to make contracts for the enforcement of which the law refuses a remedy. Hence, when one party charges that the contract is infected with an illegal intent, the burden of proof is imposed upon him to establish •this allegation. Irwin vs. Williar, 110 U. S. 499 ; Frost vs. Clarkson, 7 Cowen, 24; Dykers vs. Townsend, 24 N. Y. 57; Pixley vs. Boynton, 79 Ill. 351; Williams vs. Tiedeman, 6 Mo. App. 269; Rumsey vs. Berry, 65 Me. 570.

4. The validity of the contract depends upon the state of things existing at its date, and is not affected by subsequent agreements under which the parties voluntarily assent to a settlement on the basis of differences in price. Parties to such contracts have the same liberty to settle their transactions by common consent according to their own discretion, which is accorded to parties to other contracts. Clark vs. Foss, 7 Biss. 540; Williams vs. Tiedeman, 6 Mo. App. 269 ; Sawyer vs. Taggart, 14 Bush. 729; Fareira vs. Gobele, ( Penn.) 20 Alb. L. J. 48.

5. The law is now perfectly settled that an executory contract for the sale of goods for future delivery is not infected with the quality of a wager by reason of the fact that, at its date, the vendor had not the goods, and had not entered into any arrangement to provide them, and had no expectation of receiving them unless by subsequently going into the market and buying them.

The contrary doctrine announced by Lord Tenterden in Larymer vs. Smith, 1st B. & C. 1, and Bryan vs. Lewis, R. & M. 386, has been distinctly and repeatedly overruled and now ranks as an 'utterly exploded legal heresy. Benjamin on Sales, §§ 541, 542, 82, 83; Hibblewhite vs. McMorine, 5 M. & W. 462; Mortimer vs. McCallan, 6 M. & W. 58; Irwin vs. Williar, 110 U. S. 499, and nearly every case heretofore cited..

6. It follows, necessarily, from the foregoing that the failure to identify the particular goods sold does not affect the matter, because, from' the very nature of the contract, the sale is not of ascertained articles-but of articles of a designated kind and quantity to be selected hereafter, and is discharged by tbe delivery of articles answering to the-general description given in tbe contract. Sawyer vs. Taggart, 14 Bush. 729.

Applying the foregoing principles t.o the facts of this case, the defense absolutely fails at every point. The contract assailed imports, upon its face, an absolute obligation on the vendors to deliver, and oir the purchasers to receive, the cotton sold. All the evidence concurs in establishing that such were the absolute and actual obligations of the contract.

Not a line of evidence,'direct or circumstantial, connects either plaintiffs or their vendees with any agreement, understanding or intention,, express or implied, annulling or impairing these obligations.

The circumstances relied on by defendant—that he never intended or expected to deliver any cotton; that he liad no cotton to deliver, to the knowledge of the plaintiffs, and had no expectation of having any; that no particular hales of cotton were sold, hut only so many indefinite hales of a fixed weight and quantity, and others of like character —all prove, under the principles above announced, to he insignificant and of no avail to impair the rights of plaintiffs.

Defendant’s objection that plaintiffs did not execute the contract by the actual delivery of cotton, and that he is not hound by the settlement made without his assent, has.no force.

Plaintiffs delivered to their vendees what the latter were willing to accept as the equivalent of the cotton, to wit: transferable orders from responsible parties for the same amount and quality of cotton at the same time. They bought and paid for these orders, and they could not have bought and delivered the actual cotton at a less price or with less loss to the defendant. What ground of complaint has defendant1? Plaintiff carried his contract to the very eve of its maturity, and only when it was evident that he had no intention of providing them with the means either to execute or settle it, and that they would be compelled, under their own obligations, to settle it themselves, did they make the settlement complained of. It was a substantial execution of the contract, but, had it been otherwise, plaintiffs, left to protect themselves by the unwarrantable default of defendant, might have ■claimed the right to discharge their obligations in the way most convenient to themselves and to hold defendant responsible for the loss incurred, provided, at least, that loss was not increased by the mode ■of settlement adopted. The case of Irwin vs. Williar, 110 U. S., 499, needs only to he read in order to show that it contains nothing antagonistic to the foregoing.

The defense in this case is thus fully disposed of.

The course of dealing in futures on the Cotton Exchange, so far as involved here, is not violative of the existing law. On the contrary, the framers of its rules have exhibited the greatest care and skill in •conforming them to the law and jurisprudence. If it is attended with •evils hostile to the general welfare, remedy must be sought in future legislation. Prom the publicity and notoriety of the course of these transactions, it must be inferred that the legislative brand) of the government has not seen the necessity of interfering with them.

Even had the legality of the contract here been successfully impeached, the defendant would still have had to meet the serious qüestion whether the plaintiffs, as mere brokers or agents of defendant, might not have recovered, under their contract of agency, their commissions and what they had paid for account of defendant, irrespective of the validity of the contract between the buyer and seller. On this point we express no opinion, only .referring to the following authorities for information. Petrie vs. Hannay, 3 Ten., 418; Faihney vs. Raynons, 4 Burr; Planters’ Bk. vs. Union Bk., 16 Wall., 500; Knight vs. Cambers, 80 E. C. L., 561; Hacker vs. Hardy, 4 L. R. Q. B., 685; Durant vs. Barthe, 98 Mass., 168; Lehmann vs. Strassburger, 2: Woods, 554.

We desire to acknowledge the assistance afforded us in the examination of these questions, not only by the learned briefs in the case, but by the able brochure of Julius Aroni, Esq., of the New Orleans Bar, entitled “Entures.”

It is, therefore, ordered, adjudged and decreed that the judgment-appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs condemning the defendant to pay to them the sum of four thousand tifo hundred and fifty-two dollars, with legal interest from December 15, 1883, and all costs in both courts.


author: Bermudez, C. J. Fenner, J.

text:
    No. 9441.
    Mrs. Mary E. Fairex vs. Henry Bier.
    An appeal by a married woman will not be dismissed, on objection, urged for the-first time in this Court, of want of marital authorization, where the record shows that the husband attended the trial of the cause below and signed himself the bond of appeal, with the wife. His active agency in the prosecution of the suit constitutes authorization.
    The policy of the law in requiring such authorization is, not only the prevention of ill' advised litigation by or against the wife ; but also the protection of the adverse party, in order that the judgment to be rendered may bind the wife.
    ■Whenever it appears that the litigation is sanctioned by the husband and however this be shown, the right of the wife to stand in Court for further prosecution or defense, should bo recognized.
    The transferees, for value, of negotiable securities not due, from the possessor and apparent owner, gets a title which cannot be defeated without proof of actual or constructive notice of the imperfect title of his transferror, amounting to mala fidus. The fact that such securities have attached to them interest coupons i ast due, does not destroy^tlie negotiability of the bonds.
    APPEAL from the Civil District Court for the-Parish of Orleans. Tissot, J.

      W. 8. Benedict for Plaintiff and Appellant.

      A. O. Lewis for Defendant and Appellee:
    1. An appeal taken, from a judgment, where a wife is the plaintiff will be dismissed on motion, if it appears thac she was not legally authorized to prosecute the suit in the court below. The authorization of the wife must be given either by the husband or the judge before the trial of the cause a qua. 2 Ann. 140; 21st Ann. 576 ; 2 2 Ann. 204 and authorities therein cited. »
    2. An appeal will be dismissed on motion where the transcript is imperfect and incomplete and such imperfection is attributable to the fault of the appellant or her counsel.
    3. Where a party sues for specific property alleged to be in the possession of a/nother, the burden of proof is upon such party to show the aííimative, and failing to do so, the action must necessarily fall.
    4. This being an action for specific property, and there being no prayer or claim in the alternative for the value of the property claimed, there can be no judgment other than one of dismissal or for a thing itself; there can be no monied ju'dgmont of the value of the •thing.
    5. Coupon bonds, of the character of those involved in this case are negotiable by the commercial usage of the civilized world, and possess all the qualities of negotiable commer. cial paper. Mercer County vs. Hackets, 1 Wall 95; Gelpke v§. Dubuque, Id. Ib, 175 ; Consolidated Association vs. Avigno, 28 A. 552.

      Possession of negotiable bonds payable to bearer, or endorsed in blank, carries title with it to the holder. They pass by delivery. The purchaser is not bound to look beyond the instrument, and a purchaser of them in good faith is unaffected by the want of title in the vendor. The burden of proof on the question of such faith lies on the party who .assails the possession. The law is well settled that a party who takes áuch negotiable paper before duo, for a valuable consideration without knowledge of any defect of title, in good faith, can hold it against the world. A suspicion that there is a defect of title in the holder, or a knowledge of circumstances that might excite suspicion in the mind of a cautious person, or even gross negligence at the time, will not defect the title of the purchaser. Nothing short of actual or constructive notice that the instrument is not the property of the person who offers to sell it—that is, nothing short of mala jides—will defeat the right of the purchaser, and this, even where the possession is acquired by theft. Hotchkiss vs. Banks, 21-Wall. 384; Murray vs. Lardner, 2 Wall. 110; Goodman vs. Simonds, 20 How. 343J; Railway vs. Sprague, 103 IT. S. 760; Collins vs. Gilbert, 94 IT. S. 754; Shaw vs. Railway Company, 101 IT. S. 563 ; Consolidated Association vs. Avegno. 28 A. 552; Dale vs. Pezotti, 20 A. 264. Overdue and unpaid coupons for interest attached to bonds not matured, do not render the bonds dishonored paper nor affect the .negotiability, nor the rights of a purchaser in good faith, without notice. Cromwell vs. Sac County, 95 H. S. 57; Railway vs. Sprague, 103 U. S. 758.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The ground relied on, is that the plaintiff, who is a married woman, has brought this suit and appealed from the judgment dismissing it, without authorization, either from the husband or from the Court.

The objection to this want of authority was not pleaded in limine, or before trial on the merits of the case, which were put at issue by an answer. It is urged on appeal, for the first time.

The record shows that the husband of plaintiff was present in court while the trial was progressing, and that he signed the bond of appeal furnished by Ins wife.

The policy of the law in requiring marital, or when it is refused, or -cannot be obtained, judicial authorization in suits by or against married women, is double, not only, for the prevention of ill advised litigation ; but also for the protection of the other party to the suit, who has a right to claim that the judgment to bo rendered be binding on the wife.

The facts in 22 Ann. 204, are not analagous to those of the present case. Tiie record did not show there as it does here, that the husband had attended the trial.

In a subsequent ease, our immediate predecessors, reversing the first judgment therein of the previous court, by which the ruling in 22 Ann., had been made, and somewhat departing from it, held that the signing of the appeal bond by the husband as agent of his wife might not of itself suffice as his authorization, but that his active agency in the suit was proof that it was prosecuted with his approbation and assistance, .and coustinnted authorization. Jones vs. Henry, Manning’s Unrep. C. p. 65; O. B. 46, fol. 360.

In a more recent case, the present court held that the signature of •the appeal bond by the wife’s counsel, as attorney for the husband in the absence of proof of special authority to him, to that end,—was insufficient to justify the deduction of marital authorization to prose-cute the appeal. The opinion strongly implies that, had the special power been shown, the appeal woidd have been sustained. Gibson vs. Hitchcock, 35 Ann. 1201; O. B. 57, fol. 815, N. R.

After a snivey of all the authorities bearing on the subject, the rule may fairly be announced to be : Whenever the record shows that the litigation is sanctioned by the husbaud, and however this appears, the right of the wife to stand in court for further prosecution or defense should be recognized.

In the present instance the denial of marital authorization was not at all urged in the lower court, either before or after the joining of issue. Had it been that plaintiff failed to adduce proper evidence of it, the case would have presented a quite different feature.

The judgment appealed from is not one of dismissal for want of such authority. It is a judgment which passes on the issues presented on •the merits of the contention.

Had the judgment been one of dismissal for want of authority and was there not in the record sufficient proof of such sanction, the objection would have presented a grave difficulty.

But it is apparent, not only that the point was not raised below, but also that the husband attended in person the trial of the case before thelowei court, and sanctioned the appeal, signing- with his wife the bond furnished to perfect it. Clearly then, the litigation is approved by the husband and the judgment to be rendered on the merits will conclude: her.

To dismiss the appeal would serve no useful purpose.

Interest reipublica ut sit finis litium.

Motion overruled.

On the Merits.

Fenner, J.

Plaintiff is one of the heirs of her father, John B. Schiller, who died in 1869, leaving a valuable estate belonging to the community subsisting between himself and his surviving wife. His succession was duly opened and Mrs. Schiller, in 1871, obtained a judgment recognizing her as owner of the undivided half of the property as rvidow in community and as usufructuary of the other half during her widowhood. Under this judgment of a competent court, she held and dealt with the estate until January, 1881, when this Court rendered a decree annulling and setting aside said judgment and recognizing the right of' the heirs to enforce a liquidation and partition of their father’s succession.

Amongst the property of Schiller were thirty consolidated bonds of the city of New Orleans for $1000 each, running to maturity.

Plaintiff, in the present suit, averring her ownership, as heir, of one-sixth of said bonds, and alleging- that they are in possession of defendant and that he acquired the same in 1878 from Mrs. Schiller, well knowing that they belonged to the succession of J. B. Schiller, and that Mrs. Schiller was without right to dispose of petitioner’s interest therein, prays for judgment recognizing her ownership and ordering defendant to restore to her the said bonds to the extent of her said interest.

It might be sufficient answer to the action, in its present form, to say that the evidence shows that the bonds were not in the possession of defendant, but liad been disposed of long prior to the institution of' this suit.

But, aside from this, the bonds were negotiable and not due, and were passed to Bier upon a valuable consideration by the holder and apparent owner, and, unless plaintiff can show that Bier was in had faith and took the bonds witli knowledge of his transferror’s defective-title, she cannot maintain her action. No principle is more firmly imbedded in jurisprudence. Murray vs. Lardner, 2 Wall. 110; Hotchkiss vs. Banks, 21 Id. 354; Collins vs. Gilbert, 94 U. S. 754; Shaw vs. Railroad Co., 101 U. S. 563; Cromwell vs. Sac. Co., 95 U. S. 57; Railway Co. vs. Sprague, 103 U. S. 758.

These cases emphatically hold that nothing less than actual or constructive notice of defective title, amounting to mala jides, can defeat, the transferee for value.

Plaintiff relies upon two circumstances, as destroying the application of the foregoing principles in this case:

1st. That the bonds, though not themselves matured, had attached tpthem certain interest coupons which were past due and not paid, which, it is claimed, should operate constructive notice and destroy their negotiability. The proposition has no force in reason and has been pointedly ruled in an adverse sense very recently. Railway Co. vs. Sprague, 103 U. S. 756.

2d. It was charged that defendant knew that Mrs. Schiller held these bonds in her capacity as representative of the succession of Schiller.

.We have closely studied the evidence and it convinces us, as it did the judge a quo, that no such knowledge is brought home to him.

The case of Stern Bros. vs. Bank, 34 Ann. 1119, and those cited from 31 Ann. 215, 32 Ann. 1250, 21 Wall. 143, 96 U. S. 193, 97 U. S. 371, and 99 II. S. 434, relied on by plaintiff, have received our careful attention, hut we find them inapplicable to this case.

Judgment affirmed.


author: Pochíé, J.

text:
    No. 9503.
    The State ex rel. A. J. Sterken vs. Judge Civil District Court, Division A, et al.
    A suspensive appeal does not lie from an interlocutory decree dissolving an injunction on* bond, unless it appears that the act prohibited would work an irreparable injury to the plaintiff.
    "When the plaintiff in injunction has failed to allege any personal injury to flow from the act complained of, it is safe to conclude that he could not suffer irreparable injury from the interlocutory order dissolving his injunction on bond.
    A district judge who allows an injunction to be dissolved on bond, because the act com-' plained of would not work irreparmble injury to the plaintiff, should consistently refuse a suspensive appeal from his dissolving order, as the latter only applies when the inter* locutory decree would cause irreparrable injury»

      A PPLICATION for Mandamus and Prohibition.

      F. MieJmard for the Relator.

      W. S. Rogers for the Respondents.
   The opinion of the Court was delivered by

Pochíé, J.

The relator complains of the refusal of the respondent .judge to grant him a suspensive appeal from an order dissolving on bond a writ of injunction previously obtained by him.

The proceedings in which the injunction had issued are brought up by the relator, and they show that on his petition, charging that the defendant in that suit, “The Louisiana Excavating and Manufacturing 'Company,” was using, contrary to law, certain wharves in the city of '.New Orleans, in the pursuit of its business, an injunction had been issued forbidding the defendant company from performing the acts complained of by the xdaintiff in that suit, who is the relator in the present proceedings.

His petition for injunction contained no allegation or intimation of ■the nature or extent of the damages which he could suffer in consequence of the illegal acts therein charged against the defendant company ; and in fact it contained no averment of any personal injury •which relator could have suffered from the acts complained of, and •which he sought to enjoin.

His right to a suspensive appeal- from the interlocutory order dis-.solving his injunction on bond, depends upon the alleged irreparable ■.injury which could result to him from'the decree in question, and it thus appears that his failure to allege any personal damage at all in his petition for injunction, strips his present allegation of irreparable injury of all force and of all weight whatever.

The rule, as established by numerous decisions of this Court, is that no appeal will lie from an interlocutory order dissolving an injunction ■ on bond, unless it appears from the pleadings that the xrerformance of •the acts complained of would work irreparable injury to the plairtiff -'in injunction. Wm. T. Levine et al. vs. Mitchell, 34 Ann. 1181, and .authorities therein cited. It therefore stands to reason that the rule will apply with immeasurable force, in a case where the plaintiff in injunction had utterly failed to allege any personal injury in consequence of the act which he sought to prohibit.

In this, and in all similar cases, in which the j udge’s order dissolving vtlie injunction on bond, is predicated and rests on the legal belief and •conclusion that the act prohibited would not work irreparable injury, it would be inconsistent in him to allow a suspensive appeal, the legality of which depends upon a condition of things entirely to the reverse.

The judge’s course in the instant case, in refusing a suspensive appeal, is consistent with his motives in allowing the dissolving order; it is amply supported by the pleadings, hence it must be maintained.

It is therefore ordered that the writs of mandamus and prohibition herein prayed for, be denied at the costs of relator.


author: Todd, J.

text:
    No. 9492.
    The State ex rel. Joseph Notal vs. R. C. Davey, Judge of First Recorder’s Court.
    'Where a party is tried, for violating a city ordinance relating to private market, and in his defense charges that the ordinance is unconstitutional and illegal, he has the right to appeal from a sentence against him; and after the appeal, if suspensive, is perfected by the execution of the required bond, the recorder imposing the sentence is deprived of all jurisdiction over it and can be prevented from executing by a writ of prohibition.
    ^PLICATION for Prohibition.

      JBelden & Ambruster for the Relator.

      W. S. Boyers, City Attorney, for the Respondent.
   On Application for Prohibition.

The opinion of the Court was delivered by

Todd, J.

The relator represents that he was tried before the' re-spondent for keeping a private market in violation of City Ordinance No. 4798, A. S., and was found guilty and sentenced to pay a fine of twenty-five dollars, and in default of payment to be imprisoned thirty ■days.

That he applied for and obtained a suspensive appeal from said sentence to this Court, and perfected the appeal by executing the required bond; that notwithstanding said appeal, the said recorder (respon■dent) is arbitrarily attempting to execute said sentence by the forcible collection of said fine or by his (relator’s) imprisonment; and he asks for a writ of prohibition to restrain the recorder from further proceedings in the premises.

An alternative writ was granted and the recorder required to show -cause why the same should not be perpetuated..

The recorder has answered, but does not in his answer deny the facts alleged in tbe relator’s petition touching the trial, sentence and appeal, as set forth. He merely alleges that in his opinion the relator was-properly convicted, and that his defense to the charge against him— which was, in substance, that the ordinance under which lie was prosecuted was unconstitutional—was not a valid defense ; and that said ordinance, in a similar proceeding, had been pronounced by this Court constitutional and legal.

This answer does not justify the action of the recorder complained of. Though the sentence in question may, in his opinion, have been entirely correct, yet the relator, from the character of his defense, had the right to appeal therefrom. This right was conceded by tbe recorder who granted the appeal; and the appeal when perfected, as stated, suspended the execution of the sentence and deprived the recorder of all jurisdiction over the matter. His attempt therefore, notwithstanding the appeal, to execute the sentence appealed from, by coercing tlie payment of tbe fine or tlie imprisonment of the relator, was wholly unwarranted. It may be that upon tbe trial of tbe appeal tlie sentence-complained of may be found correct and affirmed by this Court, but this has nothing to do with the issue now before the Court. Whether the sentence bo right or wrong, so soon as the appeal therefrom was-taken and consummated, the recorder lost all jurisdiction and control over it.

The prohibition asked for is therefore made peremptory.


text:
    No. 9218.
    The State of Louisiana vs. George Washington, alias George Bartley.

      A prisoner who, for want of a safe jail iu tlie parish, is confiued in the jail of an adjoining parish, remains in the legal custody of the sheriff and subject to the jurisdiction of the court of the parish where he is under prosecution, and service on him of notice of trial and list of jurors by sheriff of the latter parish, though made at the jail in another parish, is a sufficient compliance with R. S. Sec. 992.
    When after three jurors are empanelled, accused for the first time objects that the list had not been called in regular order, and when, thereafter, the names are so called as-required, no ground of complaint exists.
    After trial begun and jury partially empanelled accused cannot obstruct progress of trial, by requiring attachments for absent jurors.

      APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Halm, J.

      M. J. Ounniiigham, Attorney General, Q. Leslie, District Attorney, «.nil A. E. Billings, for the State, Appellee.

      A. Sambola for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Tire first bill of exceptions is to the refusal of a ■continuance applied for on two grounds, viz:

1st. That notice of trial and list of jurors were not legally served upon him nor in due time. It is admitted that they were delivered to him more than “two entire daj'S before the trial,” which, as to time, is a full compliance with the requirement of Sec. 992, R. S. As to the mode of service, it appears that, owing to the absence of a safe jail in the parish of Jefferson, the prisoner was confined in the jail in New Orleans, and the service was made there by the sheriff of Jefferson. Although confined in New Orleans, he was still iñ the legal custody of the sheriff of Jefferson and subject to the jurisdiction of the Jefferson court, and we think the service was properly made. The statute simply requires that the list and notice should be “ delivered," to the prisoner, and while it no doubt contemplates an official delivery, we think the requirement was fully complied with here. Besides, even had the service been irregular, there is no showing of injury, and, as ■his counsel resided in New Orleans, the presence of the prisoner there increased his convenience for consultation.

2nd. Because the defendant was deprived of the service of the counsel of his choice, who was unable to defend him by reason of the fact that he was district attorney of an adjoining district. The ground is frivolous, since it invoked a continuaee until a certain attorney should cease to be a district attorney, and thus be in a position to become his counsel, which he was not at the date of trial.

The second exception complains that the jurors were not called in the order in wdiich their names appeared on the jury list. The judge explains that the jury-list had been previously called, and certain jurors being found absent or excused their names were omitted in the ■calling in this case; that accused did not object to this until three jurors had been empanelled, and that, after his objection, the calling was made according to his wish. Certainly no error is apparent in this. ■

The third and fourth bills are leveled at the action of the judge in calling talesmen after exhaustion of the regular jurors present and in refusing to issue attachments for the absent jurors. The application-for attachments was not made until after three jurors had been empanelled, and the action of the judge is fully sustained by repeated-decisions of this court. State vs. Saunders, 37 Ann. 389; State vs. Farrer, 35 id., 316.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9489.
    The State ex rel. H. E. Upton vs. H. L. Lazarus, Judge, etc.
    A mmidamus lies to compel the granting of a suspensive appeal from a judgment directing the sale of succession property exceeding two thousand dollars in value.
    The capacity of one representing himself as attorney for absent heirs, and whom the mortuoria shows to have been appointed and to have acted as such, and who was expressly recognized by the judgment from which he seeks to appeal, cannot be successfully contested by the district judge, on the application for the mandamus.
    APPLICATION for Mandamus and Prohibition.

      H. U. Upton, propria persona.

    Respondent Judge, propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the granting of a suspensive appeal.

The relator claims to be the attorney, appointed by the court, to-represent the absent heirs of one Fischer.

He avers that an application having been made for the sale of all1 the succession property, he opposed it, as unnecessary; but that, his opposition having been discharged and the sale ordered, he applied fora suspensive appeal, tendering a proper bond ; that the same was refused him.

He therefore invokes the intervention of this Court to secure such appeal.

The district judge returns, denying that the relator is the attorney for the absent heirs of Fischer, and justifying the correctness of the-judgment discharging the oppositions and decreeing the sale.

The record of the mortuoria shows that the relator was appointed attorney for absent heirs on the 17th of April, 1884, and that the opposition to the sale prayed for by the Public Administrator was filed by him, in that capacity. The entry on tlie minutes and the judgment show that he officiated as such attorney at the trial of the opposition,, and that, in as many words, the court ordered that the opposition filed by him, naming Mm, be dis charged. ,

But the district judge says, that on the 22 d of March, 1878, another' attorney had been appointed to tlie absent heirs, and that on the 17th, of April, 1884, when the relator was appointed, the first order of ap-pointment had not been cancelled.

The relator was appointed on the petition of the widow of the deceased, averring a state of facts and concluding with a prayer for the appointment of an attorney for absent heirs.

It may well be that tlie district judge thought that, under the circumscances stated, another attorney should be appointed in place of' the former one, and that be acted accordingly.

The last appointment impliedly revoked the previous one, as there could be appointed only one attorny to the absent heirs of the deceased.

The district judge is presumed to have then done bis duty.

He subsequently, at the trial of tlie opposition to the sale, recognized and treated the relator as attorney for absent heirs. It is difficult to perceive how he can presently dispute that capacity.

It is immaterial, under tlie actual phase of the controversey, to deter nine whether the district judge decided or not correctly. That question will come, up on tlie appeal to dissolve.

The only question to he solved is, whether tlie order of sale which lie made and which lias the form and substance of a final judgment, contradictorily rendered and signed, is or not appealable.

Tiiis judgment belongs to the class of those, tlie execution of which can cause irreparable injury. It orders tlie sale of property exceeding in value two thousand dollars, and is supensively appealable. State ex rel. Fassman, 22 Ann. 200; Const., art. 81; 36 Ann. 887.

It. is therefore ordered that the alternative mandamus herein issued be made peremptory and tlie restraining order perpetuated.


text:
    No. 9447.
    Marie L. Lutenbacher vs. Simon Loscher.
    This being an action for nullity of a marriage on the ground of a subsisting prior marriage * of one of the parties, and the evidence sustaining the charge being held sufficient, judgment is rendered for plaintiff.

      APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Maries & Bruemi for Plaintiff and Appellant:
    1st. Where the subject matter of «a negative averment lies peculiarly vrifchin the knowledge of the other party, the averment is taken as true unless disproved, by that party. 1 Greenleaf, Sec. 79; 31 Aun., 69L; 13 Anu., 397; 10 Ann., 639; 1 Bishop, Marriage and Divorce, Secs. 435, 436.
    2d. Every intendment of law is in favor of matrimony, thereby casting the burden of proof upon the party objecting, requiring him to rebut the presumption, temper preesumitur pro matrimonio. 1 Bishop, Marriage and Divorce, Sec. 457.
    3d. A presumtion, precise, weighty and consistent adduces, naturally, the unknown fact from the known fact. Such presumption is not susceptible of application to other circumstances than those which it is sought to establish, C. O., 2288 ; 3 Anu. 103,
    4th. A certified copy of marriage contract, duly authenticated, is admissible in evidence as of the res gestee. 15 Aun. 313; 1 Bishop, Marriage and Diverce, Sec. 471.
    5th. Marriage is a civil contract, and as such may be proven by any evidence, not legally prohibited, where no higher species is presupposed as within the knowledge or under the control of the party averring. C. C., Art. 86; 6 Louisiana, 470 ; 5 Anu. 480; 30 Ann. 1388.
    ■ Cth. hTames of husband and wife, date of marriage and certificate, duly authenticated, is 2?rima facie evidence of identity of parties thereto, sufficient to put contestants to proof of contrary. 7 Ann. 252. Such identify may also be established by circumstantial evidence. 1 Bishop, Marriage and Divorce, Sec. 479.
    7bli. The deliberate admission or confession of the fact of such marriage transpiring either in this or in a foreign country is competent evidence, and will be considered . 1 Bishop, Marriage and Divorce, See. 497, and authorities cited; 1 Greenleaf, Sec. 195; 2 Green-leaf, Sec. 461, noto and authorities there cited.

      Tj. Brielcerson and J. Duvigneaud for Defendant and Appellee.
   'The opinion of tlxe Court was delivered by

Fenner, J.

This is an action for a decree of nullity of a marriage 'between plaintiff and defendant on ilxe ground of a subsisting prior marriage of tho latter. The evidexxce is to the following effect:

. The parties to this suit were married in this city in January, 1884. In March following a letter addressed to defendant was received and opened by plaintiff, which came from France, was signed Virginia Loscher, and in which the signer addressed him as her husband. Upon being taxed with this he denied the former marriage, took away the letter and burned it. Subsequently, on further inquiry instituted in -France, a cablegram was received confirming his former marriage. At this moment he was in prison upon some criminal charge. On receipt of the cablegram tbe brother-in-law of plaintiff visited lxim in prison, and he then fully confessed his crime and asked the visitor to do him. the last favor of procuring him some poison in order that he might end a ruined life.

On the trial duly authenticated certificates of both marriages were produced, in each of which he was described as born in Austria and as being the legitimate son of Ignaee Loscher and Anna G-uggenbicldor.

The priest who celebrated the marriage here testified that the above particulars of his nativity and parentage were obtained from defendant himself, who at first objected to giving them, and only did so upon the priest’s insisting that it was necessary.

There was also produced the official certificate of the mayor of Besangon, France, duly authenticated, attesting that the first wife was still living.

Against this strong array of evidence the defendant, who was present at the trial, offered no opposing testimony.

The judge a quo rendered a judgment of nou-suit.

The respect which we entertain for his opinion causes us to regret the absence from the record of any statement of the grounds on which he based his judgment, and the failure of del'endaut to furnish us with any oral or written argument leaves us in darkness on the subject.

The intrinsic force of the evidence above set forth, strengthened by the powerful presumption resulting from the failure of defendant to offer any countervailing testimony, negativing or explaining the facts adduced, certainly suffices to establish, beyond reasonable doubt, the truth of plaintiff’s allegations. In absence of any suggestion of connivance, which, indeed, could hardly exist in such a case, and is moreover conclusively rebutted by the record, we are convinced that plaintiff is justly entitled to the relief for which she prays.

It is therefore ordered, adjudged and decreed that the judgment, appealed from be avoided and reversed; and it is now ordered and decreed that there be judgment in favor of plaintiff and against defendant, decreeing the nullity of the marriage entered into between said parties in the city of New Orleans on January 12th, 1884, and the release of plaintiff from all legal obligations aiising thereunder,, defendant to pay costs in both courts.


text:
    No. 9481.
    Succession of Louisa Dorries.
    A. nuncupative -will Toy public act -which does not contain express mention that it was written by the notary, is a nullity. The omission to so declare is fatal, as it cannot he supplied by testimony aliunde.

    The ia-w imperiously exacts not only that the prescribed formalities be observed, but also that an explicit recital be made that they have been fulfilled j and this under pain of* nullity of the act

      PPEAL from tlie Civil District Court for tlie Parish of Orleans. !JL Tissot, J. -

      J. R. Beelcwitll and H. JS. Upton for Appellant:
    If an examination of tlie "whole "will will show that it was read to the testator in the presence ence of the witnesses, it is immaterial in what words the idea is convoyed. 1 H. S. 73; 3 N. S. 368.
    It suffices if, from tlie whole instrument, it cnn bo inferred that the witnesses were present. 26 Ann. 338; 12 Ann. 604.
    When the will states that “the testatrix declared and dictated it to the notary, and that it was made and signed by her and the witnesses after it was read,” it may be fairly inferred that the witnesses and notary were all present during the dictation and execution. Pizerot et a], vs. Meiullon’s Heirs, 3 M. 114.

      Branujlvn, Buelc, Binlcelspiel <& Bart for Appellees:
    It is a fatal objection to a will offered as an authentic nuncupative one, that no mention is made of its having been written by the notary. 6 Hew Series. 263
   The opinion of the Court was delivered by

Bermudez, C. J.

The will of the deceased, which is in the nuncupative form by public act, is attacked on various grounds, one of which is that it does not contain the formal declaration that it was written by the notary.

We have carefully scanned the instrument and weighed each and every word used in the procés verbal of the notary, whether in the caption or in the closing part, and have failed to find any from which it can be even inferred tiiat the will was written by that officer.

The law, in mandatory terms, imperiously requires that express mention be made, not only that the will was'dictated by the testator and read to him, but also that it was written by the notary; and this under pain of nullity.

The omission to recite explicitly strict compliance with the requirements of the law is fatal, as it cannot be supplied by testimony aliunde. R. C. C. 1578, 1595; see 3 M. 167; 6 N. S. 263; 12 L. 114; 8 A. 469; 15 L. 28; 1 R. 48; 11 Ann. 108; 16 L. 82; 20 Ann. 203; 21 Ann. 115; 35 Ann, 480.

In the Lawson case, 12 Ann. 604, in which the will had been attacked because it did not set forth that it had been written by the notary, in the presence of the witnesses, the instrument contained express mention that the notary had written it in his own proper hand. What the Court held is: that it was fairly deducible from the tenor of the instrument that the witnesses were present while it was being prepared.

The other authorities referred to do not apply to a case of writing by the notary.

In the present case, the word written, or its equivalent, is essentially lacking.

The will is a nullity.

.Judgment affirmed.