text:
    No. 1940.
    The State of Louisiana, ex rel., Champlin et als. v. Judge of the Second District Court of New Orleans.
    A suspensive appeal taken by the executor or administrator of an estate, from a judgment in favor of a creditor, will not prevent the creditor from proceeding against the executor or administrator by motion, for an accountshoiving the condition of the estate, and the amount of funds on hand, while a suspensive appeal is pending in the Supreme Court.
    A mandamus will Re to compel the District Judge to take jurisdiction of, and try the motion by the creditor, calling on the executor for an account, pending the suspensive appeal.
    The District Judge is only divested of jurisdiction, pending a suspensive appeal, in all matters pertaining to or involved in the judgment appealed from.
    APPLICATION for a Writ of Mandamus.

      G. M. Conrad <& Sons, for petitioners.
   Wyly, J.

The relators had judgment against the succession of Alex- 1 ander Gordon, deceased, in the Second District Court, and a suspensive appeal was taken from that judgment.

Whilst this appeal was pending, the relators made a motion in the Second District Oourt suggesting that they are creditors of said succession, and as such interested in its due and faithful administration according to law ; and further, suggesting that the legal representatives of said succession, have failed to deposit the moneys collected by them for account of said succession in a chartered bank of this State, or a branch thereof ; that they have not kept an official bank-book ; and have withdrawn the deposits of funds belonging to said succession, if any deposits were ever made, before a tableau of distribution had been homologated, and without an order of Oourt. And further suggesting their desire to know whether said legal representatives have any funds in their hands belonging to said succession, and if so, what amount. On these suggestions a rule was granted, requiring the executors of said succession to show cause within ten days after service, why they should not file a true statement of their accounts as executors, and their bank-book, showing the amount of funds collected by them for said estate ; and they wero further required to show cause why they should not be dismissed from office on account of their failure to fulfil their duties as required by law, and why they should not be condemned to pay for the irse qf said estate, twenty per cent, per annum, interest on any amount of funds not deposited or withdrawn without authority.

The executors of Alexander Gordon, deceased, filed an exception to this rule taken against them, on the ground that a suspensive appeal liad been taken from the judgment in favor of relators, which was still pending in the Supreme Court; and that that Oourt could not grant the rule, or take any proceedings against said succession until the final decision of said appeal, and therefore, that that Court bad no jurisdiction of said rule.

The District Judge maintained this exception, and dismissed the rulo with costs.

The relators apply to this Court for a writ of mandamvs, to compel tho District Judge to entertain their rule, and require the executors of Alexander Gordon, deceased, to discharge their duty as prescribed by act of 1855.

The act of 1855, requires that “ all executors, administrators, curators and syndics, shall deposit all moneys collected by them as soon as the same shall come into their hands, in one of the chartered banks of this State, or in one of their branches, allowing interest on deposit, if there be one in the parish. They shall keep a bank-book in their official name, and shall on no account withdraw the deposits, or any part thereof, until a tableau of distribution shall be homologated, or unless ordered by a competent court, and then only, to pay such debts as may be ordered for payment. On failure to comply with the provisions of this section, they shall be condemned jointly, and severally with their sureties to pay to the use of the estate, twenty per cent, interest per annum, on the amount not deposited, or withdrawn without authority, besides all special damages suffered, and shall be dismissed from office.”

Section throe of that act provides that “ any creditor, or other person interested, may at the regular sittings of the courts of New Orleans, and in the country, as well during the vacation as the sitting of the court having jurisdiction, file in the clerk’s office a motion to know whether any executor, administrator, curator'or syndic has any funds; and he shall he hound within ten days to file a true statement of his accounts, and his bank-book; if he'has one, showing the amount of funds collected by him, and ou failure to do so, shall be dismissed from office, and pay ten per cent, per annum interest ón any sums for which he may be responsible. ” (See Revised Statutes, page 2, Sections 2 and 3.)

The question presented is, can a creditor whose judgment has been suspended by an appeal, file the motion to know whether the executors have any funds, and ask that they be ruled to file a true statement of their accounts, their bank-book, etc. ? Can the executors by taking a suspensive appeal from relators’judgment, deprive them of the right to know the condition of the succession, and whether its legal representatives are acting faithfully ? We think not.

Thd relators certainly have sufficient interest in the estate to make the 'motion. The law permits it to be made by “any creditor, or other person interested.”

But the Judge a quo, urges that having granted a suspensive appeal lxis “ Court cannot take any proceedings against said succession, until the said appeal is decided by the Supreme Court, and therefore, his Court has no jurisdiction of said rule.”

We do not think, that the right to file the motion has any immediate connection with the judgment appealed from ; it is not a right growing out of that judgment, but a right that the law gives to every “creditor, or other person interested,” it matters not how the indebtedness is evidenced, whether by account, note or judgment.

We fully concur with the District Judge in his statement that “ where an appeal is taken from a judgment rendered by an inferior court to the Supreme Court, the inferior court is divested of all jurisdiction over said case, except to test the solvency of the security given on the bond.”

But we do not regard the filing of the motion, to ascertain the condition of the succession, as in any manner disturbing the jurisdiction of this Court over the judgment appealed from.

It has been urged in the argument, that relators’ rights are protected by the appeal bond, and therefore, they should not be permitted to file the motion. ' We think the greatest protection to creditors is the fidelity of tlié‘legal representative of file succession. That the executors are the officers of court pro line nice, and the law of 1855, provides the means by which “ any creditor or other person interested, can call upon them stíminarily, and ascertain whether they are acting faithfully.

The law has wisely provided, that these'officers of court, shall deposit the funds of estates in their hands in hank, and that the creditors and parties interested, can at any time ascertain the true condition of the estates.

If the stringent requirements of the act of 1855, could be evaded by an appeal, unfaithful executors, administrators and curators,’ would refuse to allow any of debts of successions, however just, and take suspensive appeals on all the judgments that might be rendered in the inferior courts, for the purpose of using the funds of the estates confided to their charge. The whole object of the law would thereby be defeated.

We think the District Judge had jurisdiction, and should have entertained the motion.

This proceeding' and the suit now on appeal, are separate and independent proceedings.

It is therefore ordered, that the writ of mandamus, he made peremptory, requiring the Judge of the Second District Court of New Orleans, to take cognizance of, hear and determine the motion of relators dismissed on exception.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 1403.
    J. C. Labatt, for use of Grace Labatt, Wife of S. H. Levy, v. J. H. Durruty.
    An appeal from a judgment not signed by the District Judge is prematuro, and the Supreme.Court will notice the lact of their own accord and dismiss the appeal.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      D. O. Babail, for plaintiff.

      A. L. Tissot, for defendant.
   Ludeling, C. J.

This Court will take notice, of its own accord, that the judgment appealed from is not signed. The appeal is premature. C. P. Art. 546; 4 R. 47; 7 R. 451; 9 An. 42.

It is therefore ordered, adjudged and decreed that the appeal he dismissed, and that the appellant pay the costs of the appeal.


author: Taliaferro, J.

text:
    No. 1425.
    Wolf & Pretto v. National Marine and Fire Insurance Company of New Orleans.
    The value of the property at the time and place of the inception of the risk must be taken in estima* ting the loss arising from perils insured against.
    APPEAL from the Fourth District Court of New Orleans, Théard, J.

      M. M. Cohen, for plaintiffs.

      H. B. Kelley, for defendant.
   Taliaferro, J.

This suit is brought on a policy of insurance, by which the plaintiffs allege that the defendants insured them against loss from the perils of the sea to the extent of four thousand dollars,, upon certain merchandize, worth $35,000, shipped by plaintiffs from Matamoras to New Orleans on the bark Honduras. They aver that the goods so shipped were much damaged, during the voyage, by becoming wet from contact with salt-water. That the loss from this cause amounts to $11,459 07. That the proportional amount of the loss which the Company is bound to them for is $3,274 02.

The defendants specially deny that the merchandize was injured by any of the risks insured against, and that the goods were damaged to the amount alleged by the plaintiffs. They deny that they were duly notified by the plaintiffs of the loss complained of, or, presented with the usual preliminary proof of the same. The defendants allege the prevalence of a custom, for many years, in New Orleans and the other principal seaports of the United States, and which they aver formed a part of the policy declared upon, which requires that the master of a vessel immediately upon arriving in port, from a voyage during which, heavy weather has been experienced, to call a survey on the hatches ” of the vessel by the master and wardens of the port, to determine if they were well secured, whether the cargo in sight be dry or not and before breaking bulk, to ascertain the condition of the bales, packages, etc., generally, as being wet or stained by water, sweat of the hold, leakage, or otherwise. They aver that in this case the usage or custom alleged to prevail has not been observed by the master of the Honduras. That the responsibility therefore rests with the vessel, her master and owners, and not with the underwriters.

The plaintiffs had judgment for the amount claimed, and the defendants have appealed.

Each party litigant took a bill of exceptions to the ruling of the Court in regard to the admission of evidence. It will be unnecessary, in disposing of this case, to examine both the exceptions. The first is the one taken by the defendants. They excepted to the introduction of a specified bill of lading, on the ground of its irrelevancy, and that it is res inter alios acta. That it was offered in an attempt to prove by hearsay the shipment of goods, which could only be proved by direct and positive testimony.

To a specified document, showing the value in New Orleans of tho goods shipped by plaintiffs on the Honduras, they objected, on the ground that the liability of the defendants was for the value of the property insured at the place of shipment, and not at the place of destination. And lastly, the protest of the master of the Honduras, introduced to prove rem ipsam, was objected to as not being evidence against aby one except the parties who executed it.

We think the exception should have been sustained. It seems to be a settled principle in the estimate of loss arising from perils insured against, that the value of the property at the time and place of the inception of the risk is to be taken, and not that at the place of destination.

In this case, the merchandize insured was shipped from Matamoras, in Mexico, to New Orleans. The loss was estimated upon the value of the goods in New Orleans. We do not consider the invoice as legal evidence of the value of the goods. The judgment should have been one of non-suit.

It is therefore ordered, adjudged and decreed that the judgment of the District Court,be annulled, avoided and reversed. And it is ordered that this suit be dismissed without prejudice, the plaintiffs and appellees paying costs in both courts.

Parsons on Insurance, Yol. 2, p. 72, and notes; 1 Rob. 442; 1 M. 128.

Mr. Justice Howe, having been of counsel in the case, took no part in this decision.


author: Howeee, J.

text:
    No. 1863.
    State v. J. Volkman.
    A legislative body is competent to enaot any legislation, not prohibited by the Constitution of the State or the United States.
    The act of the Legislature, approved April 4.1865, No. 55, entitled an act to provide for increasing the levenne of the State, and raise means to pay the interest on the State debt, does not violate the Constitution in levying a license tax on certain trades, professions and callings
    Under the Constitutions of 1864 and 1868, the Legislature has the power to levy a license tax on all persons pursuing any occupation, trade or calling, subject to the condition that it is uniform on all persons embraced in the levy.
    This grant of power to the Legislature is independent of the power to levy an income tax on the amount of business done.
    APPEAL from the Fourth Justice’s Court, Parish of Orleans, Baum, J.

      Henry C. Dibble, for Auditor of State.

      H. Howard Me Caleb, for defendant.
   Howeee, J.

The defendant has appealed from a judgment against him for the sum of $100 as a license tax for the year 1868, upon his occupation, as keeper of a brewery, assessed by virtue of the 7th section of an act to provide for increasing the revenue of the State, and to raise means to pay the interest on the State debt, approved April 4, 1865.

The tax is resisted as unconstitutional, in not being equal and uniform, nor pro rala upon the amount of income or business done, and the law imposing it is said to violate Art. 124 of the Constitution of 1864, under which it was adopted, and Art. 118 of the Constitution of 1868, under which it is sought to be enforced.

Counsel for defendant admits that such a tax has been held not to be in conflict with the Constitution of 1852, but he contends that the Constitutions of 1864 and 1868 have made a material change on this subject, and virtually forbidden the imposition and collection of a 1 license tax. ’' The three instruments declare alike, that all taxes shall be equal and uniform throughout the State, and that property shall be taxed in proportion to its value.

On the point now before us, that of 1852 says, in Art. 123: “The Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession.”

That of 1864, in Art. 124, says: “ The General Assembly shall levy an income tax upon all persons pursuing any occupation, trade or calling, and all such persons shall obtain a license, as provided by law. All tax on income shall be pro rala on the amount of income or business done.”

That of 1868, in Art. 118, says: “The General Assembly may levy an income tax upon all persons pursuing any occupation, trade or calling. And all such persons shall obtain a license, as provided by law. All tax on income shall be pro rata on the amount of income or business done.”

The only differences in the last two are, that the word ‘ shall ’ is used in the former, and the word ‘ may ’ in the latter, in the first part of the clause; and in the former a comma is used, and in tlie latter-^a period after the word ‘calling.’

It is urged that the Constitution of 1852 did not restrict or limit the 'Legislature to a pro rata tax on the amount of income or business done, and that such a restriction was inserted in the Constitutions of 1864 and 1868, expressly to prevent the injustice and inequality of taxation, which made small traders pay the same license as large traders; that by the latter instruments the tax should be . pro rata on the “ occupation, trade or calling,” and on the, amount of income or business done; and that only the persons upon whom this income tax has been levied are required to obtain a license, because the levying of an income tax is a prerequisite to the obtaining of a license, which is dependent upon and inseparable from the income tax.'

As it is conceded that a ‘ license tax ’ upon persons pursuing any occupation, trade or calling, if it operate uniformly on all persons of the same class, was held not to be in; conflict with the the Constitution of 1852, and as-it is not suggested that some brewers are made or required by the law in question to pay one sum and others another, we have to inquire whether or not there is any inhibition, special or by necessary implication, of such a tax in those of 1864 and 1868, and if not prohibited, whether or not it is imposed in an unconstitutional form or manner. The theory of our form, of government, is, that the Legislature, in its sphere, is supreme in all respects, save when restricted by the Constitution of the State or United .States, and may do anything not prohibited by such authority. S.ee the cases collated in Hen. Dig. (new ed.) at pp. 267, (c). 1,) No. 6; 268, No. 11; 272, (c) 4,J No. 7.

The Constitution of 1852 says, the Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession. The power to levy each tax is distinctly recognized.

The Constitutions of 1864 and 1868, in somewhat different words, recognize the same power to levy an income tax, saying the Legislature shall (or may) levy an income tax upon all persons pursuing any occupation, trade or calling, and instead of adding, ‘ and tax all jjersons pursuing any occupation, trade or calling,’ simply say: “and all such persons shall obtain a license, "as provided bylaw.” In the first, the power to levy a tax on all persons pursuing any occupation, is expressly declared; in the last two, it is not prohibited, but there is a positive injunction, that all such persons shall obtain ajicense, leaving it, as we think, to the discretion of the Legislature to levy or not a tax, or fix a price for the license, which is required. Without a prohibition, the Legislature has the authority to impose or fix it. And, in our opinion, the phrase, ‘ as provided by law,’ implies affirmatively that the Legislature may prescribe the manner and conditions of obtaining a license, including the condition, of paying a tax orprice uniform as to all persons in each particular occupation, trade or calling.

Neither instrument says that the license shall be furnished without charge. Nor does either, in our opinion, make the levying of an income tax necessarily a prerequisite to a license, or the obtaining of a license dependent on and inseparable from the income tax.

We construe the words, ‘all such persons,’as referring to those engaged in any occupation, trade or calling, and not to the persons only-, upon whom an income tax is-or has been levied. Ail persons pursuing any occupation, trade or calling shall obtain a license, and all incomes arising therefrom shall be taxed pro rata on the amount of income or business done, which latter is the only restrictive change on this point, made by the Constitutions of 1864 and 1868. The Legislature, which in this matter is the judge of expediency or necessity,’may consider the revenues from only one of these subjects sufficient, and'not impose a tax on the other, or it may impose a tax on both, which will not, we think, be a double tax on the same thing — -the permission or license to pursue any calling being very different from the income derived from that calling.

We consider the constitutional equality and uniformity of such taxation, as is here resisted, long since:firmly established by this tribunal, and we cannot see, in the Constitutions of 1864 and 1868, anything which conflicts therewith, or anything which the law in question-violates. In our opinion, the pro raía principle, as established in these Constitutions, does not apply to the license to be obtained. The tax on license, however, must be equal and uniform, as heretofore interpreted by this Court.

It is a principle of jurisprudence, and one necessary to the harmony of our system of government, that the judiciary will only pronounce a law unconstitutional when it is manifestly so. 3 M. 12. 4 N. S. 138. 5 R. 383. 8 A. 341. 9 A. 562.

Our conclusion is, that there being no constitutional inhibition, special or by necessary implication, upon the Legislature to impose the tax claimed, and it being equal and uniform as to all persons in the class to which defendant belongs, and not in conflict, as to the’ form or manner of levying it, with the Constitutions of 1864 and 1868, it can be collected.

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


author: Howell, J..

text:
    No. 1945.
    City of New Orleans v. C. Lusse and R. Rhulman.
    The third section of ilie act of tlie Legislature of 1855, page 327, prohibiting Municipal Corporations within the Stato from levying any tax on persons engaged in selling articles manufactured by themselves within the State, is notin conflict with article 118 of the Constitution of 1808. A tax levied by the city of New Orleans on such persons is illegal. f

    A PPEAL from tlie Seventh District Court of the parish of Orleans, jíi Collens, J.

      F. Miuhinard, for plaintiff and appellant. F. Howard MeCaleb, for defendant and appellee.
   Howell, J..

The defendants are sued for a license tax, imposed by-section thirty-nine, of Ordinance No. 818 N. S., upon their occupation as brewers for the year 1868.

They x>lead exemption therefrom by virtue of the third section of the act of 1855, page 327, entitled An Act relative to Municipal Corporations,” in the following words: That it shall not be lawful hereafter, for any municipal corporation within this State, to lay any tax on persons engaged in selling articles of their own manufacture, manufactured within this State.”

The city contends that this section is repealed by article 124 of the Constitution of 1864, and article 118 of the Constitution of 1868, which, it is ,urged, withdrew from the Legislature the power to exempt from taxation, save in certain specified cases, in which the present tax is not included. The article 124 reads: Taxation shall he equal and uniform throughout the State. All property shall he taxed in proportion to its value, to he ascertained as directed hy law. The General Assembly shall have power to e.xempt from taxation pmperty actually used for church, school or charitable purposes. The General Assembly shall levy an income tax upon all persons pursuing any occupation, trade or calling, and all such piersons shall obtain a license, as provided bylaw.” Article 118 of the Constitution of 1868 is the same, except that in the last clause it says, that the General Assembly may levy an income tax,” etc.

In neither do we find anything inconsistent with the power of the Legislature .to exempt persons from a license tax. Such a power not being prohibited, expuessly or by necessary replication, is permitted. See State v. Volkman, not yet reported, and the cases in Hen. Dig. 788, III. Nos. 1, 2, 3, 4 and 6.

All laws in force at the time of the adoption of each Constitution, not inconsistent therewith, were continued in operation. The law quoted exempting manufacturers from the tax opposed herein, was declared in the case of the City v. Mascaro, 11 A. 733, to be in force, notwithstanding the prrovision on this subject, in the city charter (see acts 1856, p. 158, 102); and as the Constitution does not repieal it, we must consider it stil in force.

The judge a quo did not err in giving judgment in favor of the defendants.

It is therefore ordered that the judgment appealed from be aflirmed with costs.


author: Wyly, J.

text:
    No. 1164.
    Succession of George McCausland.
    Where an appeal has been taken from a judgment on a tableaux and opposition thereto, all the parties figuring on the tableaux must be made parties, otherwise the appeal will be dismissed for want of proper parties.
    from the Seventh District Court, parish of Point Coupee, Cooley, j.

      Collins & Lealce, for administrator and ap>pellec, W. D. Winter for opponent and appellant.
   Wyly, J.

The administrator of this succession filed his final account- and tableau. An opposition was filed to the homologation thereof, and from- the judgment on the opposition this appeal has been taken.

The case is now presented on a motion to dismiss the appeal because all the creditors in the tableau are not made parties thereto, the appieal bond being in favor of only part of the creditors.

Tbe creditors in tlie tableau, wbo make this motion are clearly interested in maintaining the judgment appealed from, and the bond is defective in not being in their favor also.

The motion to dismiss is well taken. (See the case of the succession of Jacob Weigel, lately decided, and the authorities there cited.)

It is therefore ordered that the judgment rendered by this court on fourth February, 1867, dismissing this appeal, remain undisturbed.


text:
    No. 1462.
    Succession of H. E. A. Dolhonde, opposition of Louisiana Mutual Insurance Company to the Account of Natural Tutrix.
    One partner cannot sue the other for a specific sum until the affairs of the partnership have been liquidated. The liquidating partner of a commercial firm cannot be called in warranty by the administrator on a demand against the estate of a deceased partner.
    The holder of a promissory note, deposited before matuiity, to secure the payment of a preexisting debt, has a right to sue for and recover the whole amount.
    A, a member of the commercial firm of A & B, executed his two promissory notes, payable to his own order and by him indorsed in blank, secured by mortgage on his iudrvidual property. A placed the notes in the hands of the commercial firm of A & B, who deposited thorn in pledge with C, to secure the payment of a note of the firm. The-note ol the firm was taken up by them together with the mortgage notes held as collateral security; Held by the Court — That the mortgage given to secure the notes of A, was not extinguished by confusion, they not having been returned into his hands. Ihat the fact that they were returned into the hands of the firm of which A was a member did not place them in his individual hands, and the mortgage still exists.
    A PPEAL from the Second District Court of New Orleans, Thomas, J. .Ol -P. Ghas.

      Guvellier for Tutrix, Appellee. Clarke & Bayne, for Louisiana Mutual Insurance Company, Appellant.
   Ludeling, C. J.

H. E. A. Dolhonde was a member of the commercial firm of John S. Wallis & Co.

On the seventeenth day of July, 1865, he executed an authentic act, in which he acknowledged that he was justly aud truly indebted to JM. Crawford in tbe sum of twelve thousand dollars; that for the reimbursement thereof he had made and signed two promissory notes, dated same day, to the order of and endorsed by himself, each for six thousand dollars, payable two years after date, at the Canal Bank in this city, and bearing seven per cent, per annum interest from maturity and tbat to secure tbe payment of tbe notes he mortgaged certain property in favor of J. M. Crawford, etc. The notes were paraphed by the notary.

The evidence shows that J. M. Crawford had no interest whatever in the notes, that he signed the act of mortgage at the request of Mr. Dol-honde, and that he never had possession of the notes.

On the twenty-fifth of July, 1865, the firm of John S. Wallis" & Co. obtained from Pike, Lapeyre & Brother, a loan of ten thousand dollars for thirty days, on the pledge of an envelope containing some unt current bank bills and tlie mortgage notes, and in due time Wallis & Co. redeemed their pledge. On the tenth of October, 1865, the firm of Wallis & Co. obtained from the Louisiana Mutual Insurance Comjjany a loan of $8,000, for which amount the firm executed a note payable on demand.

About the middle of December, 1865, the Louisiana Mutual Insurance Company demanded payment of the note, or security; and Dolhonde said “ the firm would secure the note by a pledge of mortgage paper, as collateral security.”

Sometime in the year 1866, Dolhonde died. His widow was confirmed as natural tutrix of his minor children. She caused the property of the succession to be sold, and filed an account and tableau of distribution which was opposed by the Louisiana Mutual Insurance Company on the ground that they are the legal owners and holders of the two' mortgage notes, already described, and that as such they are entitled to be paid by preferctice out of the proceeds of the sale of the mortgaged property, and that the tutrix has failed to place them upon the tableau.

To this opposition the tutrix filed an answer, in which she denies the allegations made in the opposition, and she avers the ownership of the notes to be in the deceased, and consequently the nullity and extin-guishment of the notes and the mortgage. She calls John S. Wallis, surviving partner and liquidator of the firm, in warranty.

John S. Wallis excepted to the call in warranty, for the following, among other reasons given, to wit: “there has been no final liquidation of the partnership affairs.”

By agreement the exception was referred to the merits.

The exception ought to have been sustained. 10 Mart. 433. 8 N. S. 281 11 An. 509.

It appears that the Louisiana Mutual Insurance Company received these notes before maturity, and in due course of their business, as a pledge to secure the payment of a subsisting debt. The secretary of the Insurance Company, in giving his testimony, says, “ When I insisted on the security, the pledge was given” — “When I applied for the amount of the note, Mr. Dolhonde told me the firm would give some mortgage notes as collateral -security.” The president of the company says, “six per cent, is a fair rate of interest on call loan notes. It is important for offices like ours to have money lent on short time, so that it might be called in promptly.”

The'counsel for the tutrix and appellee admits that the commercial law protects the bona fide holder of negotiable paper, received before maturity, against equities existing between the maker and the payee; but he insists that there are exceptions to this rule, and he claims that the case at bar constitutes one of the exceptions, because the notes sued on were given as collateral security for the payment oí a pre-existing debt.

Ii| Swift vs. Tyson, 16 Peters, p. 20, Judge Story as the organ of the court said, “We liave no hesitation in saying, that a pre-existing debt does constitute a valuable consideration, in the sense of the general rule already stated, as applicable to negotiable instruments. * * *

“ The question has been several times before this court, and it has been uniformly held that it makes no difference whatsoever, as to the rights of the holder, whether the debt for which the negotiable instrument is transferred to him, is a pre-existing debt, or is contracted at the time of the transfer. In each case he equally gives credit to the instrument.

“ Every person is, in the sense of the rule, treated as a bona fide holder for value, not only when he has already advanced money, or other value for it; but when he has received it in payment of a precedent debt, or wlien he has a lien on it, or has taken it as a collateral security for a precedent debt, or for future, as well as for past advances.” Story on Promissory Notes, § 195.

By the Civil Code, Art. 1887 the obligations which can have no effect are those which are without a cause, or which have a false or unlawful cause.

By the cause of .the contract is meant the consideration or motive for making it. What then was the cause, consideration or motive for making the pledge? Evidently an extension of the credit or forbearance to sue. There was a cause, therefore, which was neither false nor unlawful. The cause was sufficient. 5 N. S. 562. 12 B. 378. 8 An. 97.

The notes were pledged in conformity to law, and the pledgee had a right to sue for the recovery of the amount thereof. Acts of 1866, p. 266. King v. Gayoso, 8 N. S. 370.

It was held in Matthews v. Rutherford, that in the commercial law the only difference between the absolute holder for value, and the party who. takes the note as collateral security, so far as the right of recourse against the maker is concerned, was that the former may recover in full, whilst the latter, if there be equities, is restricted to the extent of Ms debt. He is considered a purchaser in good faith pro tanto. 7 An.’225.

It is urged that the notes were returned to the malcer after they had been pledged to Pike, Lapeyre & Brother, and that, at least, the mortgage had been extinguished by confusion. The proof, op. the contrary, is that John S. Wallis & Co. pledged the notes to Pike, Lapeyre & Brother, and that the firm of John S. Wallis & Co. redeemed the pledge, and the notes and other property pledged were returned to them through John S. Wallis. The secretary of the Louisiana Mutual Insurance Company says, “I asked security of Mr. Dolhonde, and they were handed to mo by Mr. J. S. Wallis — all I know is that these notes came from Mr. J. S. Wallis. I understood Mr. Dolhonde, when he said he would give me mortgage paper, that it was paper over which he had control as a member of the firm of John S. Wallis and Company. When treating with Dolhonde I was treating with John S. Wallis & Co.”

But we are not prepared to admit tliat the mortgage would have been extinguished, as between Dolhonde and the Louisiana Mutual Insurance Company, even if it had been proved that the notes had been returned to the possession of Dolhonde individually. The Louisiana Mutual Insurance Company was ignorant of the fact, and Dolhonde himself represented that the notes were secured by a mortgage.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, and that the opposition of the Louisiana Mutual Insurance Company to the account and tableau of distribution filed by Marie Fourcade, widow of II. E. A. Dolhonde, deceased, and natural tutrix of her minor children, be sustained to the extent of eight thousand dollars, with six per cent, per annum interest thereon from the tenth of October 1865, with privilege upon the proceeds of the sale of the property mortgaged to secure the notes sued on. And it is further ordered that the tableau be amended, and that the Louisiana Mutual Insurance Company be placed upon said tableau as mortgage creditors, to be paid by preference over all other mortgage creditors except Lafitte, Dufilho & Co., and the New Orleans Mutual Insurance Company.

It is further ordered that the succession pay the costs of both courts.


author: Howe, J.

text:
    No. 1413.
    H. & M. Marx v. L. Bloom.
    An action will not lie to recover an account for goods sold where it is shown that & partnership exists between the partios. In such a case the suit will be dismissed with the rights of the party reserved to sue for a settlement of the partnership accounts.
    Appeal from the Third District Court of New Orleans, Féllomes, J.

      J. B. Cotton, for appellees, Breaux & Fenner for appellant.
   Howe, J.

This action is brought upon an open account for bill oi goods sold and delivered to defendant, November 2, 1862.

The defendant excepted, and answered that there existed a partnership between the plaintiff and himself in reference to the goods whose price is sued for, and also in reference to certain liquors

The judge before whom the case was tried arrived at tfte conclusion that the partnership existed, that the goods were shipped to the defendant for sale, the profits to be divided between plaintiff and defendant; and an examination of the testimony leads us to the same conclusion.

But we think the court erred in holding that under these circumstances the plaintiffs were not bound to resort to an action of accounting and settlement. It is true there was but one shipment, but that fact is not decisive of the question, for there may be many items of accounting necessary to fix the rights or liabilities of partners in the profits or losses of a single consignment. 13 A. 576,

Tlio view we have taken of the ease renders it unnecessary to consider the plea of proscription of three years.

For the reasons given it is ordered and adjudged that the judgment' appealed from he reversed, and that there ho judgment dismissing the claim of plaintiffs, witli costs in hoth courts, reserving, however, their rights to sue for a settlement of these transactions, considered as those of a partnership.


author: Howell, J.

text:
    No. 1451.
    Collins & Leake v. J. O. Friend, Robertson Yeatman, Garnishee.
    In an attachment suit, no judgment can be rendered against the garnishee before judgment is obtained against the debtor.
    from the Fourth District Court of Now Orleans, Fellowes, J.

      Cooley & Phillips, for plaintiffs and appellees. M. C. Dwm, for garnishee and appellant.
   Howell, J.

Plaintiffs brought suit hy attachment against the defendant, a non-resident, and propounded interrogatories to R. Yeat-man as garnishee, who answered, in substance, that he neither held any property behrmring, nor was indebted to the defendant, but that, as agent of Mrs. Aoklin, in January 1867, he entered into a contract of compromise with the defendant (Friend), Gomkel' and Lanier, for annulling a lease- of certain plantations in West Feliciana, and purchasing certain movable property thereon from two of said lessees, Gomkel and Lanier, upon its value being ascertained by referees to be chosen by the contracting parties; that no settlement has been made under said contract, on account of an attachment suit of Hunt and Macaulay against said Gomkel and Lanier, and the interventions therein, in which defendant was made garnishee before cited in this suit; that .he had knowledge of a written transfer by Lanier, one of said parties, to J. 0. Friend, the defendant, of one-half of his interest in said act of compromise, estimated at $8000, to be paid by the garnishee to said Friend, after paying costs and attorney’s fees in the suit of Lanier v. Gomkel; but that individually he is in no way liable to Friend. Plaintiffs then, without any further proceedings against defendant, took a rule to set aside said answers, take the interrogatories for confessed, and obtain judgment against the garnishee for the amount of their claim, to be paid into the hands of the sheriff, on the grounds that the answers are untrue, and that they show he has funds belonging to defendant. On the trial the only testimony was that of the garnishee, who testified that he acted only as the agent of Mrs. Acklin, whose funds he held, which he was prepared, when legally authorized, to pay to any one decreed entitled thereto under the act of compromise and the private transfer; that after paying the claims having preference over Lanier’s claim, there was coming to Lanier $1200 or $1300 and that he felt hjinsejf hound to pay any balance there may be to Lanier and not to Friend. The Judge a quo gave judgment ordering the garnishee “to proceed within the shortest delay possible to settle his account as agent of Mrs. Acklin, and pay over to the sheriff one-half of the amount found to ho due to Lanier, to be held subject to the claim of plaintiffs.” ' From which the garnishee appealed.

. The judgment is erroneous in ordering the garnishee to make a settlement with third parties and pay any sum into the hands of the sheriff before judgment is rendered against the defendant.

The only questions between the plaintiffs and garnishee are, is the latter indebted to the defendant, and can he safely pay the plaintiffs ? To ascertain this he may perhaps be required, in certain circumstances, to show the state of his accounts with the defendant, but not other parties, or to institute or prosecute legal proceedings against persons with whom the defendant may have contracted; and in no case can judgment be had against a garnishee before judgment is obtained against the debtor. 5 N. S. 307; 12 L. 16; 10 R. 133; 14 A. 374.' This proceeding is therefore prematurely acted on.

It is therefore ordered that the judgment appealed from be reversed, and the cause remanded for further proceedings according to law.


text:
    No. 1458.
    George Siegel v. Philip Drumm.
    The stipulation in the act of mortgage of five por cent, to cover attorney’s fees in case the holder is compelled to resort to legal proceedings to compel- payment of the obligation is not usurious. Damages will not be allowed for frivolous appeal unless prayed for in the answer to the appeal.
    from the Sixth District Court of New Orleans, Leamownt, J.' Fifth District Court, presiding.

      Walter H. Bogers and G. H. Lrauglm for appellee, Ootton & Levy for appellant.
   Taliaferro, J.

The defendant appeals from an order of seizure and sale rendered against him by the Judge a quo upon a promissory note for the sum of $3600 secured by mortgage. The defense set up in this court is that the contract is usurious, inasmuch as there is a stipulation of eight per cent, interest and five per cent, to cover attorney’s fees in case the plaintiff should be compelled to resort to legal means to compel payment of the obligation. This court has frequently decided that such a stipulation as to attorney’s fees docs not constitute usury. 11 An. 217, 12 An. 407.

It would seem that the course pursued by the defendant has been merely for procrastination, and that his appeal may properly be classed with those which receive no countenance from this Gourt.

The plaintiff’s counsel asks in his brief that this court award damages for a frivolous appeal. This we are precluded from doing, as he has filed no answer to the appeal. See Code of Practice, Article 907, 8 An. 73.

It is ordered, adjudged and decreed that tlie judgment of the lower court be affirmed, and that the sheriff proceed according to law to the execution of the writ issued in the case.


text:
    No. 1865.
    D. E. Mandell v. Mayor and City of New Orleans.
    Officers of tlie city of New Orleans who received their appointment from the military authority during the time the city was under military control, have no claim against the city for salary for the term fixed by law for such office, where it is shown that they have been dismissed by the military before the term of the office expired by law.
    "Where the salary of an officer is fixed by law for all services rendered in his official capacity, no action will lie for tlie recovery of additional compensation for alleged extra services.
    from the Sixth District Court of the Parish of Orleans, Gooley, J.

      JB. Jñlleul, for appellee, JB. It. Borman, for appellant.
   Ludeling, C. J.

The evidence shows that the plaintiff was appointed a member of the Board of Assessors of the city of New Orleans by the military commandant of the city of New Orleans, on the nineteenth day of September, 1862, and that he continued to discharge the' duties of said office until the seventh November 1865, when he was removed by Acting Mayor Kennedy.

It is in proof that the compensation to he allowed to the assessors for all services performed by them was fixed at one hundred and seventy-five dollars per month, on the first December 1862. That this salary was payable monthly, that it was punctually paid. One of plaintiff’s witnesses says: “The assessors have always been paid as the pay rolls fall due, as long as they retained their position. I don’t remember that the' assessors were ever paid the balance of the year, after seventh November, when their work was complete.”

There is no evidence to show that the salary above fixed was changed until June 28, 1866, long after the plaintiff had ceased to perform the duties of the office. It is fair to presume that the salary at which he was engaged as a member of the Board of Assessors was one hundred and seventy-five dollars per month. He was entitled to he paid for the time he served as a member of the Board of Assessors, to wit: from the nineteenth of September, 1862, to the seventh of November, 1865, at the rate of $175 per month.

The plaintiff claims that he had a right to the office for the term of two years, dating from the first Monday in January, 1865, and ending the first Monday in January, 1867; that notwithstanding his removal on seventh November, 1865, he is entitled "to be paid for the nnexpired term of two years. He further claims additional compensation for assessing the eighth district in 1865.

The evidence in the record proves that the city of New Orleans had been divided into twelve assessment districts, and that these districts were reduced to six, in tlie early part of 1865, and tliat to tlie plaintiff was assigned tlie duty of assessing tlie fourth, and tlie eighth districts.

It is true there is some testimony to show that when the plaintiff was informed of this change he complained, and at first made objection to this increased labor, without additional compensation, and that ho consented to do the additional work when Watkins (his witness) told him that Mayor Hoyt said “ it should he all right, that plaintiff should he paid, though no compensation was specified.” But we cannot admit that the declarations of Mayor Hoyt made in conversation with third parties can hind the city, or change the compensation of officers, which liad been fixed by the bureau of finance. Even if we admit that the city could be bound in that manner, the evidence only shows that the Mayor said the plaintiff should be paid for the additional work. No amount was specified. The plaintiff, who was a witness in his own behalf, swears he “did not agree to do the work for nothing.” He says Mr. Watkins said to him “that he should be paid for it.” And upon this, he claims the salary of two offices! The evidence does not show tliat any of tlie other assessors was paid two salaries. But it does show that some of them, who assessed two districts, were allowed small additional compensations; and from the testimony of Watkins we infer that something of the kind was expected, ex gratia of the Mayor or Bureau. And the admission of the plaintiff proves that ho received fifty dollars on account of extra work.

The contest about pay for additional laboi will seem strange when we remember that the assessors were paid for their services for what they did, per month, and that when their work was done, their engagement ended, and consequently their pay.

The plaintiff has been paid all that was due him, and the evidence, in this case satisfies us that his claims are without any foundation in law or in equity. He was appointed to perform the duties of assessor by the military authorities in New Orleans, without any fixed term. He held that position at their pleasure, and he had no right to the salary of the office, beyond the time he actually served.

He did not hold the office under the provisions of the city charter, and it is unnecessary to inquire into the question whether acting Mayor Kennedy had the legal right to remove him or not. The government of the city was under the control of the military authorities, and they permiUed the removal of the plaintiff or it could not have been done.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment in favor of the defendants, and that plaintiff and appellant pay the costs in both courts.

Rehearing refused.


author: Wxly, J.

text:
    No. 1446.
    Marquise de la Villa Palma v. Abat & Generes, et al.
    The insertion in the Act of Mortgage of the pact de non alienandp does not invest the mortgage creditor with the right to disregard the forms of law in mating a forced alienation of the mortgage debtor’s property. The non-alienation clause springs from the agreement of the parties and dispenses the mortgage creditor from the necessity of resorting to the hypoth* ecar^action.
    Tlie transferee of mortgaged property with the pact de non alienando contained therein, may ano to annul a forced sale of the property by the mortgaged creditor on the ground that the formalities of law have not been observed in making the sale.
    The objection that the mortgagee or his transferee has the right to require that the properly mertgaged shall be sold in separate parcels, comes too late if not made before the sale. This xact in itself furnishes no ground to annul the sale.
    from Third District Court of New Orleans, Felloioes, J. A.

      & M. Voorhies, for appellant, 0. Fufour, for Abat & Generes, appellees.
   Wxly, J.

Plaintiff, tlie purchaser of three lots subject to a special mortgage with pact de non alienando, sues to annul a subsequent sale under the foreclosure of said mortgage. The sale was made under executory process, and the three lots and improvements were sold in block, although appraised separately, and although described in the act of mortgage as separate lots.

Plaintiff’s vendor, A. Costa, had mortgaged these lots prior to selling them to her, and defendants had been the owners and holders of the mortgage note under which the sale was made contradictorily with a . curator ad, hoe, representing the mortgage debtor, A. Costa., who was an absentee. The appraisers were duly appointed by this curator ad hoe and the mortgage creditors on the day of sale.

They appraised two of the lots together at $1800, and the third lot by itself at $1000, making total amount of appraisement $2800.

The curator ad hoe gave the sheriff no instructions whether to sell the property in block or separately: and the same was sold by the sheriff in block under instructions of the seizing creditor’s counsel, for the price and sum of $3675 cash.

On the trial in the lower court there was judgment in favor of defendant, and against plaintiff. Plaintiff lias appealed.

The various grounds of nullity set out iu the petition, are all abandoned by plaintiff’s counsel in the argument before this court, except the position that the sale is null because the lots were sold in block by the sheriff and not separately.

We concur with plaintiff that the insertion in the act of mortgage of the pact de non alienando, does not invest the mortgage creditor with the right to disregard the forms of law in making the forced alienation of his mortgage debtor’s property.

We think the non-alienation clause springs from the agreement of the parties and not from aprohibitory law, based upon motives of public policy forbidding tbe transfer of property so mortgaged. The advantage of this clause is to save the mortgage creditor the necessity of resorting to the delays of the hypothecary action. He can proceed to enforce Ms mortgage directly against Ms mortgage debtor without reference to the transferee of that debtor. But still the transferee is subrogated to his vendor’s rights by virtue of the purchase, and has sufficient interest in the object of the contract of mortgage to sue to annul the sale if the forms of law have not been complied with by the mortgage creditor of his vendor in making the forced sale.

But from a careful examination of the law and the evidence in this case, we cannot concur with plaintiff that the sale is null because the lots and improvements were sold in block and not separately. The property sold in block for a much larger price than its appraisement, wMck was made separately. There is no evidence that the bystanders would have bid a greater price if the offering had been made separately.

But what right has this plaintiff to complain of the sale of property which she only held subject to the rights of her vendor’s mortgage creditor ? With the non-alienation clause she could not expect to be made a party to the sale. She occupied no better position than her vendor, and the sale was made contradictorily with him, through the curator ad hoe 'appointed by the court; and we regard the sale as valid. Even if the defendant in execution had the right to require the property to be sold separately, which we do not admit, still the objection now comes too late after the sale has been made contradictorily with the curator ad hoe. We cannot now permit that objection to be set up to the title acquired by the purchaser. (10 A. 725, 726).

The officer who made the sale in this case testifies that the curator was present and appointed an appraiser, but did not require Mm to sell the property separately; and this is corroborated by the evidence of the curator ad hoe himself.

The objection that the property was sold by the sheriff in block now comes too late. (See the case of Taylor v. Graham, 18 A. 656.)

Eor the reasons assigned wo are of opinion that the plaintiff has failed to make out her case, and her action of nullity must be dismissed. It .(3 therefore ordered that the judgment of the District Court be affirmed with costs.

Application for Rehearing, by A. & M. Voorhies.

The plaintiff respectfully prays for a rehearing, assigning as grounds:

I. — That the fact upon which this honorable court bases its opinion to conclude and estop plaintiff, so far from being borne out by the record, does not exist, and is not averred by the dependants themselves.

Tile court says that the curator was present at the sale and appointed an appraiser, but did not require the officer to make the sale separately; and that this is shown by the testimony of the officer and of the curator. If the curator had been' present at the sale and had remained silent, then, clearly under the decision in 10 An. p. 725, the purchaser would be entitled to.. protection; for that would be a clo'ar case of estoppel, 'flie presence and silence of .the party at the sale, protects third persons purchasing against all informalities and illegalities. But the curator was not present at the sale, and we say emphatically that he does not so state in Ms testimony, nor does tlie officer make such a statement. The whole testimony of the curator is at page 56, Rec., and all he says is, “lie gave no instructions at all to the sheriff in regard to the properties seized and sold in that case.” Not a word morel

Mr. de Annas, the officer, (Rec. pages 56-57). does not as much as allude to the curator ad hoe, nor,to his presence at the sale, nor even to his appointin'/ an appraiser !

The only part of the record that mentions the appointment of an appraiser by the curator, is the. very report of the appraisers, marked X, Rec. p. 39. This appointment was made on the seventeenth' March, 1866, two days before the sale! (Rec. pp. 39, 48).

II. — The case of Taylor v. Graham, 18 An. 656, does not present a case where the property was appraised separately and sold in Mode, notwithstanding the fact that the party had appointed an appraiser who actually had appraised the properties separately. Judge Ilsley says the objection simply was, “that the sheriff sold in block two distinct and separate pieces of property which should have been sold sepm’atel/y.n This objection is disposed of at page 658, the court merely observing: “we cannot perceive any irregularity or illegality in the appraisement of the property sold; and this ground must be disregarded.”

The court decided that there was no irregularity in the appraisement, but nothing more.

III. — The court says: “ The property, sold in block for a much larger price than its appraisement, which was made separately.” JUrqo, no injury was done:

The injury, on the contrary, is proven, not merely by the fact that bidders were deterred from buying; but, conclusively, by proof unmistakable as to the value of the property. The testimony of Bohnecaze, who was agent of plaintiff to rent said property, shows what the value was by the rent it yielded. (See Rec. p. 26.) If, even in war times, it rented for $408 a year, when, as is well known, rents here were merely nominal, your Honors must conclude that the property sold for one half its real value. If the sheriff obtained a higher bid ■ than the appraisement, that only proves how loosely and defectively the appraisement was made, a circumstance not unusual in proceedings by curator ad hoc. But if- the sale in block is irregular and informal, it is null without reference to the fact of injury; and the only object of proving injury in this case is to make it not only a legal but an equitable one.

IV. — The court is mistaken when it conceived that plaintiff was merely a purchaser of property, subject to a special mortgage with clause de non alienando. The plaintiff was the owner previously, but her title "was -not recorded when the mortgage was executed. The mortgagor, as her agent, made the purchase in his own individual name. (See title deeds, Rec. p. 34.) Her agent, subsequently (in fraud of her rights) executed the mortgage in the furtherance of his own individual affairs. Of course the defendants, as third possessors, are protected by the non-registry ; but is it not carrying the doctrine too far to assimilate her strictly to the condition of a mere subsequent tMrd possessor ? If, in the meantime, instead of taking a deed of sale from her agent, she had sued in revendieation and obtained judgment, the mortgage, unquestionably, would still, have remained. But, then, could she have been treated by the mortgagee as a mere third possessor ?

Be that as it may, plaintiff stands at least in the shoes of the mortgagor and if he could argue the nullity of the sale, she certainly can also. That is all she attempts to do here. And the question is: can he defeat her ¡rights by not joining her in the action of nullity? H this question is solved affirmatively, then she is at the mercy of her agent, who first violated his trust by taking title in his own name and then mortgaging the property for Ms own benefit.

Rehearing refused.


text:
    No. 1448.
    David N. Barrow v. William S. Pike.
    Contracts growing out of the uso of Confederate Treasury Notes as a medium of exchange cannot he judicially enforced. 19 An».269, 288, 359, Constitution of 1868, Art. 127.
    PPEAL from the Fourth District Court of New Orleans, Theard, J. lx.

      Pitot and Bright, for plaintiff and appellant, Morgan & New, for defendant and appellee.
   Howe, J.

The plaintiff sues to recover the sum of $19,752 91, with interest from September 14, 1863, upon the ground that he was a partner with the defendant and others in certain purchases and sales of sugar from September 29, 1862 to September 14, 1863; that a large profit was made and declared upon the books of the firm; that the share of the plaintiff being the sum mentioned above, was credited to the defendant for plaintiff, and that the defendant withdrew from the firm these funds of plaintiff and has since retained them.

A mass of testimony appears in the record, and numerous questions have been raised by counsel, but the view which we have taken of the case makes it necessary to consider but a single point.

It clearly appears that the whole transaction was conducted in what were called “Confederate Notes.” The sugar was purchased with these notes, it was sold for them, and it even appears from the testimony of Crutcher, one of the parties to the alleged partnership, that the amount thus realized in Confederate notes was, at the time of the trial of this case, still in possession of Crutcher & Co., by whom the sales were made.

Even if we admit, therefore, the truth of the allegations of the plaintiff as to the partnership and the profits, we cannot lend our aid to settle disputes in regard to such transactions, and to divide their apparent gains. 17 A. 261,19 A. 161, 164, 257, 269, 288, 359.

We think this question not only firmly settled in our jurisprudence, but rightly settled. But if there were doubt as to the correctness of this series of decisions, we think this court cannot now enforce the matters of contract disclosed in this case. By article 127 of our present Constitution, all agreements, the consideration of which was Confederate money, notes or bonds, are declared to be null and void; and it is decided that they shall not be enforced by the courts of this State. We think the case at bar is within tMs prohibition, for the business of the alleged partnership was to acquire and divide Confederate notes, and the foundation of the action is the averment that the defendant has received, and retains, the share of profits accruing to plaintiff.

The judgment of the court a qua was in favor of defendant.

It is ordered and adjudged that the same be affirmed, with costs in both courts.

Rehearing refused.


author: Lahauve, J. Howell, J.

text:
    No. 1228.
    Succession of Wm. Samuels, on opposition of G. Heation, Under Tutor, to account of Natural Tutrix.
    Tlie tutrix, under an order 01 the court, filed a final account of her tutorship, which the under-tutor opposed. The district judge dismissed the account and orderpd the tutrix to file another within fi fteen days. Held that — the account first filed should have been amended and corrected and homologated as thus amended. The under-tutor is not responsible for the expenses of litigations with a tutrix in behalf of minors unless he act in bad faith. 19 An. 153. 4.

    Reporter. Tliis case was decided in May, 1868, by the Supreme Court organized under tlie constitution of 1864. A rehearing was granted, and the case was transferred to the present court. On reexamination the decree was changed so as to relieve the under-tutor from the payment of costs.
    from tlie Second District Court of New Orleans, Thomas, J.,

      Buchanan <£ for appellant. Breaux & Bernier, for appellee.
   Lahauve, J.

William Samuels died on the third of September, 1860, leaving a surviving widow in community and four minor children, issue of that marriage. On tlie-day of August, 1865, tlie widow entered into a second marriage, and was continued in the tutorship of her children.

On the first of September, 1865, George Heation, under-tutor, obtained a rule upon tlie said tutrix and her second husband, James S. Marsden, to show cause on tlie fifteenth of September, 1865, wby they should not render an account of tutorship. This rule was made absolute, and the tutrix and co-tutor were ordered to render an account of tutorship on the first of October, 1865.

A final account was rendered according to an interlocutory order of the court, on the tenth of January, 1866, as follows:

September, 1861 — Property of Succession as per former Account.

Cash on hand. §584 87

Furniture, value. 461 00

Watch. 75 00

Lots in Greenwood Cemetery.,. 75 00

One double-barreled shot gun. 30 00

Lots of ground in Kennerville. 400 00

House and lot on Benton street. 7,000 00

Fifty shares Union Bank stock. 5,00.0 00

Twenty-two share's Bank of New Orleans. 2,200 00

Three notes of George Heation...15,680 34

Total value of succession...$31,506 21

July 15, 1863 — Amount of interest from George

Heation on account of his three notes.$2,822 40-34,328 61

One-half of which belongs to the minors.. 1 17,164 31

Deduct amount of debit of the minors. 3,847, 35

Amount of minors’ estate in property and cash as show» abpve,.. $13,316 96

On the sixteenth of January, 1866, the under-tutor opposed this account : .

“Notary’s fees $25, for holding a family meeting, and $200, fees paid Buchanan & Gilmore charged entirely to the minors, when it should be one-half; and the following amounts received by the tutrix not accounted for: .

“Rent from Benton street house from first of February, 1861, to thirtieth of September, 1862, $1,200; dividends on twenty-two shares of stock, Bank of New Orleans, $176; dividends on stock, Union Bank, $400; rents of house on Benton street from thirtieth of September, 1862, to April or May, 1865.

“ The house on Rampart street and that on Erato street have been rented since their purchase, and no account is given of the revenues thereof.

“The lots in Kennerville have been rented or might have been rented.”

The opposition concludes by praying that this amount be r yected, and that the tutrix and co-tutor be ordered to file a new account according to law, and to give security for their faithful administration.

The judge gave along decision, and concluded by decreeing that this account be rejected, and that the'tutrix and. co-tutor bo ordered to render a full and detailed account of tutorship within fifteen days.

The accountants and defendants took this appeal.

We are of opinion that our learned brother below erred in rejecting the account in toto. This account should have been amended, as the tutrix improperly charges herself with $2,822 40 interest on money due by Heation, and accrued during her widowhood, and also as she credits herself wrongfully against the minors with their board and tuition during the same time. The "widow was usufructuary of the shares of her children in the community up to her second marriage. Acts of 1844, p. 99, section 2. Therefore these interests were her property. The charge of '$3,600, made against the minors for their board and tuition, when they had no revenue and pending the usufruct, is improper in this, that there were no means to pay such expenses except from the capital, and the tutrix does not pretend or show that she was authorized to touch the capital of the minors. C. C. Art. 343. The other charges made against the minors must be rejected for the present, to wit: Notary’s fees for holding a family meeting, $25; Buchanan & Gilmore, $200; Clerk’s fees, $22 35. Nothing shows what they are for, and we see similar charges made to the succession in a former account.

The opposition is untenable. All the house .rent, dividends on bank stock, and lot rent accrued during the usufruct, belong to the usufruc-tuary. Besides, the house on Rampart street, and that on Erato street, which she purchased since the death of her first husband belong to her and not to the succession, nor to the minors, notwitstanding she may have paid with money derived from the succession.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and proceeding to render such judgment as the court below should have rendered. It is further ordered and decreed that the oppositions be dismissed. That the interest of two thousand eight hundred and twenty-two dollars and forty cents received of Heation and charged to the tutrix, and the amount of three thousand eight hundred and forty-seven dollars and thirty-five cents charged to the minors for their board, tuition, etc., be rejected from said amount, reserving to the tutrix to show hereafter at proper time, the propriety of the notary’s fees, twenty-five dollars; Buchanan & Gilmore’s fees, two hundred dollars; and the clerk’s fees, twenty-two dollars and thirty-five cents; reserving to the parties their respective claims to revenues, interest of money and rents, and for support and tuition of the minors, accrued subsequently to the expiration of the usufruct. And that the account thus corrected and amended, and showing an amount of thirty-one thousand five hundred and six dollars and twenty-one cents in value of property and money received, one half of which belongs to the minors, be homologated.

It is further ordered and decreed that the plaintiff, George Heation, under tutor, pay the costs of the opposition below and those of apprnal; and the defendants and appellants all the costs below, other than in the opposition.

On Reheakinol

Howell, J.

A rehearing has been granted in this case to the under-tutor on that portion of the former decree of this court, which condemned him to pay costs of his opposition in the lower court and those of appeal.

In the case of Lacey v. Lanaux, 19 A. 153, the principle was recognized that an under-tutor is not responsible for the expenses of litigation with a tutrix in behalf of minors, unless he act in bad faith, but that the minors or their estate must bear such expenses. In this case no bad faith exists on the part of the under-tutor. On the contrary, the opposition made by him seems to have resulted somewhat to their advantage.

It is therefore ordered that so much of the decree rendered herein by this court, on the eighteenth of May, 1868, as condemns George Heation, under-tutor, to pay the costs of the opposition below and those of appeal,” be set aside, and that said costs be paid by Mrs. M. A. Marsden and her husband, J. S. Marsden, in their capacity as tutrix and co-tutor of the minor heirs of Wm. Samuels, and that in other respects said decree remain undisturbed.


text:
    No. 1921.
    State of Louisiana, ex rel. Francis Sternberg v. Cleophas Lagarde.
    To entitle a party to an appeal it must appear that the amount in controversy exceeds five hundred dollars. Constitution of 1868, art. 74. Meyers v. Mitchel. 20 An. 5:13.
    The right to an office cannot be inquired into under a proceeding by mandamus. * Only tho right to the possession of the books, papers, room, keys, etc., can be made the subject of inquiry under this writ. 4 N. S. 623, 12 An. 719, Acts of 1808, p. 71,199 and 220.
    from tlie parish, of Lafourche, Train, J.

      Bush di Goode, for relator.
   Ludeling, C. J.

The petitioner, alleging himself to he tlie de jure and defacto sheriff of tho parish of Lafourche, applied to tlie judge of the Third Judicial District for a 'mandamus to compel his predecessor in office to deliver to him the “room, keys, papers, records, hooks, documents and other things appertaining to tlie office of sheriff.”

A peremptory mandate was issued, ordering the party to do what was demanded of him.

Prom this order the defendant has appealed. Even if tlie defendant had such an interest in the matter in contestation, to wit: the possession of the “room, keys, papers,” etc., belonging to tlie office, as to authorize him to take an appeal from the order, it does not appear from the records that their value exceeds five hundred dollars. This court; is without jurisdiction, rati one materia. Constitution of 1368, art. 74. Myers v. Mitchel, 20 An. 533.

It is true, it is alleged, that “tlie office of sheriff” is worth over five hundred dollars. But tlie “matter in dispute” is not “the office of sheriff,” hut “ the room, keys, papers,” etc., belonging thereto. The. right to an office cannot he tested, under existing laws, on an application for a writ of mandamus. 4 N. S. Lafitte v. Duncan, 623; 12 An. 719; acts of 1868, pp, 220, 71 and 199.

It is therefore ordered, adjudged and decreed that tlie appeal he dismissed at the costs of the appellant.


author: Wily,/.

text:
    No. 1410.
    Bank of West Tennessee v. Citizens’ Bank of Louisiana.
    Contracts or transactions, tlie basis of which was Confederate Treasury notos, cannot bo judicially enforced by the courts of this State. 19 An. 161,164,1S6,196, 269, 288, 359, 432, 464; constitution of 1868, art. 127.
    from the Fifth District Court of New Orleans, Beaumont, J.

      Hays, Adams ffi Moise, for appellees. A. Pitot, for appellant.
   Wily,/.

Plaintiff has instituted this action against the defendant to recover a large cash balance for deposits and collections by the defendant, the Citizens’ Bank of Louisiana, for and on account of plaintiff, tlie Bank of West Tennessee, during the year 1862.

Defendant sets tip in answer th at the transactions between the parties were in Confederate States Treasury notes, and that on the tenth of September, 1863, the amount claimed by plaintiff was paid over to the United States Quartermaster in obedience to general orders No. 202.

On the trial in the District Court there was judgment in favor of plaintiff for $90,887 22 with eight per cent, interest thereon from tenth September, 1863, and costs.

Defendant has appealed.

In the investigation of this case the first important question presented is: Was the transaction between the plaintiff and defendant based upon Confederate Treasury notes ?

Plaintiff has filed in this suit the account current of defendant, extending from seventeenth of March, 1862, to eleventh of September, 1863; plaintiff’s witnesses state that this account current is correct, and that it was sent to plaintiff by the defendant under cover of a letter dated May 2, 1865, which is also filed. There are several enteries in this account of Confederate Treasury notes. We have observed a very largo debit of $20(5,000 entered in that account 'on twenty-sixth May, 1862. Plaintiffs action seems to be based upon that account to recover the balance due thereon. It is true that the record discloses no positive proof that defendant was instructed to collect the drafts in Confederate States Treasury notes, but a careful examination of the record satisfies us that plaintiff knewthat his transactions with defendant were on abasis of Confederate notes. This large entry of $200,000 in the account is explained by the correspondence of Mr. Rousseau, the cashier of the Citizens’ Bank, with Mr. May, the cashier of the Bank of West Ténnessee.

On twentieth of May, 1862, Mr. Rousseau wrote: “As you have in our hands a large amount of currency deposits, without being able to bring it back, we think it more prudent on both sides, to send you by the bearer, L. E. Simonds, Esq., a large portion of said funds; the balance may be sent to you in the same manner if you desire it, on which please instruct us by return of Mr. S.”

On twenty-fourth of May, 1862, Mr. May, the cashier of Bank of West Tennessee, rejilied: “I have received your favor of twentieth, per Mr. L. E. Simonds, together with $200,000 treasury notes, placed to credit of your account. I have a good many checks out which may pass through the lines or may be held, should I not be able to take them up here. I have not charged you with any of my collections for some time; do not send me the balance; our paper past due you will hold, as I fear to take the risk of transmission.”

By this correspondence, it appears that there could have been no misunderstanding between the parties as to what was meant by the expression of “currency deposits,” because on twenty-fourth of May, 1862, the plaintiff was in possession of the letter of defendant, stating “you have in our hands a large amount of currency deposits. We think it more prudent on.both sides to send you, by Mr. Simonds, a Large portion of said funds. Plaintiff received, without objection, from Mr. Simonds, the $200,000, Confederate States notes, knowing that they were a “a large portion of said funds.” What'does the expression in plaintiff’s letter, “do not send the balance,” mean? “I have received your favor of twentieth per Mr. L. E. Simonds, together with $200,000, treasury notes;” “do not send the balance.” The balance evidently meant the amount of treasury notes remaining in the hands of defendant.

Why did plaintiff wish to hold the balance? Because there were cheeks out drawn against this currency deposit which might passthrough the lines. Plaintiff had frequently sent packages of Confederate-States notes, as well as drafts for collection, to defendant.

On the first of February Mr. May, the cashier of Bank of West Tennessee, wrote to Mr. Rousseau, cashier of the Citizens’ Bank: “ Our president, T. O. Nelson, Esq., loaves fcr your city to-morrow, and will be there several days. By him I send a deposit of treasury notes, $100,000. Against those deposits plaintiff drew various drafts, payable in currency.

When defendant became uneasy and desiring to relieve themselves’ from so much responsibility, they sent $200,000 in treasury notes to plaintiff and offered to send them the balance, but plaintiff instructed them to hold on to the balance to meet some checks that they had drawn against these funds which might pass the lines.

On the tenth of March, 1862, plaintiff sent to defendant for collection a check on the Union Bank for $58,416 19, payable in Confederate notes.

It appears that all the deposits and collections were kept in the same account, and from the correspondence of plaintiff we infer that monthly accounts had been rendered by defendant to them. When plaintiff sent the coupons of Confederate bonds to defendant for collection, he wrote “ as this interest is payable in coin, you will so¡ oblige me as to collect and send me the coin by express.”

Prom a careful examination of the evidence, we are satisfied that the collections made by the defendant for the plaintiff were in Confederate notes, and that plaintiff was aware thereof, that this action is based upon transactions in Confederate Treasury notes.

Under the constitution of 1868, the courts of this State cannot entertain. an action based upon transactions in Confederate Treasury notes.

We think the evidence discloses that this case is founded upon deal-, ings in an unlawful currency, and this court has often refused to .lend its aid to transactions-reprobated by law.

It is therefore ordered, adjudged and decreed that the judgment of the court below be avoided and-annulled; and it is now ordered that there be judgment in favor of defendant, dismissing this action at plaintiff’s costs in. both courts.

Rehearing refused.


text:
    No. 1426.
    Alred Penn, Appellee, v. Kearny, Blois & Co., Appellants.
    NVbere a party baa leased, for a given time, certain described premises, including several bouses and lots oi groiind in t^e ci£y of New Orleans, and a ¿re breaks ou£ wbicb destroys “tbe buildings on á portion oí tbe leased premises,- tbe lésseo .}ias tbe option under art. 2607 of tbe C. C ,-to demand a revocation of tbe entire lease or a diminution pro tanto of tbe rate. He cannot retain tbe portion of tbe leased property unaffected “by tbe fire and bavo tbe lease revoked as to that wbicb was destroyed'.-
    Where tbe evidence shows that a commercial firm have enjoyed the benefits of a lease that has been made to and in tbe name of one of tbe members of tbe firm, they will be held liablo iu solido for tbe rent of tbe property leased.
    Evidence to show that the firin' name wás maréócí on-goods depositad in tbe warehouse is admissible in a’suit by tbe lessor tó rojover tbe rent.
    ñ-om tlie Second District Court of New Orleans, Thomas, J.

      Wm. ÍL JIunt, for appellee. George Í. Bright, for appellants.
   Howe, J.

This suit is brought to tecover $6,184 98 for rent of á warehouse and adjacent lots, let by plaintiff to. Alfred Kearny, the obligations of which hiring, it is alleged, were assumed by the defendants as a commercial firm. The rent is claimed from July 1,1861, to November 1, 1862. The defendants gave their notes,'in' their firm name,-for a portion of the rent up to November 1, 1861, and four of these re.nt notes, amounting, with costs of protest, to §1,489 98, form part of the sum sued for. The balance, $4,700, is for rent from November 1,1861, to November 1,1862.

The defendants, admitting the' execution óf the leases and rent notes sued on, acknowledged ait indebtedness of $615 '94 for rent to August 24, 1861, and deposited that sum in court. They further averred that on the twenty-fourth of August, 1861, the buildings and improvements belonging to plaintiff, upoji the property leased, were destroyed byfire, and the lease became canceled and annulled by the effect of law, and the revocation of said lease demanded by the lessor.”

The case was tried before a jury, who rendered a verdict for the sum claimed, less the amount paid into court, and the sum of $700 as diminution'of the rent; and from a judgment on this verdict, the defendants, after applying without success for a new trial, have appealed.

It appears that on the ninth of July, 1853, plaintiff leased to Alfred Kearny two of the lots ahd the warehouse, for $150 per month, from November 1, 1858, to November 1, 1859; that ón the fifteenth of February, 1859, he leased to the same a large lot lying next below the warehouse, and also another lot on Julia street, to first of November, 1859, at $130 per month; that oh the twenty-fourth of February, 1859, the plaintiff and Mr. Kearny executed a written instrument, in which, after reciting the foregoing leases, they expféss themselves as follows:

“Now, then, Alfred Penn aihd Alfred Kearny have this day entered into a contract of lease for the whole of the aforesaid property, measuring in the aggregate about two hundred and fifty-spveii feet front on Magazine street, and about eigbty-nine feet fronting on Julia street, running back to tbe lots fronting on Magazine street, and forming a bey to the same, viz: Alfred Penn releases to Alfred Kearny all of tbe said property for tbe term of three years from tbe first day of November next, 1859, to tbe first of November, 1862, tbe same being renewed with all tbe conditions and- privileges recited in every particular in the two aforementioned leases, with tbe exception of tbe price, which is hereby consolidated, and agreed upon at tbe rate of forty-five hundred dollars per annum to commence from the first day of November next and payable monthly, say $375 per month, said lessee agreeing to grant his'rent notes each year in advance for tbe same, say twelve notes of $375 each.”

In consideration of certain improvements made by plaintiff, tbe rent was further increased to $4,700 per annum.

On the twenty-fourth of August, 1861, a fire occurred on tbe lot lying next below tbe warehouse, on Magazine street, and a shed, fifty-four feet long and forty-seven feet wide, in tbe rear corner of that lot was destroyed. Tbe defendant, Kearny, ton days after, sent tbe following letter to plaintiff: •

“ Mr. Alfred Penn:

“Dear Sir — A portion of tbe buildings upon tbe premises situated on Magazine and Julia streets, which I rented from you, having been destroyed by fire, I now notify yon that I demand a revocation of the lease, and am no longer tbe lessee of tbe premises. Tbe merchandise now on tbe premises will be removed therefrom as soon as possible, not, however, before paying tbe rent due, which we are ready to pay on demand.

“ALFRED KEARNY.

“New OuleaNS, September 3,1861.**

. The letter was sent at a time when plaintiff was absent from the city, and it appears that about November 7, 1861, be notified defendant, Kearny, that be did not recognize tbe right of revocation, and offered to rebuild tbe shed. Tbe shed was, in fact, rebuilt about February 25, 1862; and it was for tbe seven months elapsing from tbe time of the fire to tbe time of tbe completion of tbe new shed that tbe jury allowed tbe diminution at tbe rate ot one hundred dollars per month — a sum apparently about equal to tbe proportion of rent for tbe whole lot on which tbe shed stood.

Tbe shed which was burned covered an area of about two thousand five.hundred square feet; tbe lot on which it stood contained about twenty-one thousand square feet; tbe whole property leased, including warehouse and adjoining lots, contained upward of fifty thousand square feet. Tbe defendants continued to occupy tbe warehouse, tbe upper Magazine street lot, and tbe Julia street lots; at least there is neither allegation nor evidence that they abandoned them. As for tbe lot on which tbe burned shed bad stood, tbe letter of Kearny of September 3, 1861, shows that they were still in occupation ten days after the fire, and, though mention is made of an intention to remove, there is no satisfactory evidence to show that they ever did really remove, and the burden of proof was certainly on them. There is evidence furnished by plaintiff, to show that they occupied the lot on which the shed was, burned until some time after the shed was rebuilt.

But even if we admit the positions of defendants that the agreement of,February 24,1853, was the only contract in force at the time of the fire; that the destruction of the shed gave to'defendants, under article 2667, C. C., the option to cancel the lease or to demand a diminution of rent, and that the defendants did remove from that portion of the premises on which the fire occurred, it is still difficult to perceive how the claim of cancellation of the whole lease and discharge from the obligations to pay any rent after the fire,, can be allowed. If the defendants had surrendered to plaintiff the whole premises, our conclusions might have been different, though even in such case it must be remembered that our laws do not favor the abrogation of leases where the lessor is not in fault. 6 A. 279; 12 A. 823; 17 A. 322. But when we find them remaining in possession of the principal portion of the object of lease, we must conclude that the diminution of rent allowed by the jury was an ample satisfaction of any right the defendants had under the circumstances.

In this connection we havo been referred by defendants to a passage from Marcado, volume 6, p. 448. The author is commenting upon article. 1722 of the Code Napoleon, the equivalent as to this case, of article 2667 of our Civil Code, and says:

“ La destruction partidle donne au locataire le clioix de le reseller, ou do le continuer sur se qui reste aveo diminution du, j¡¡rix; le simple en-dommagement ne permet la resiliation ne a l’une ni a l’autre des parties, et oblige seulement le bailleur a reparcr le degat pour- remettie la chose en bon etat.”

The doctrine quoted seems to be in favor of plaintiff rather than defendants, admitting that the destruction of the shed was such a “ destruction partidle” as to give the lessee the choice of canceling the lease or of continuing to occupy the remainder of the buildings, “ ee qui reste," at a reduced rate It is evident he cannot do both. If he cancel the lease he must give up the whole property,- .-If he “ continue to occupy what remains with diminution of rent,” he cannot cancel the lease. A right of choice between two methods is not a right to adopt both.

It is contended by the counsel for defendants that there is error in the judgment because it is rendered against them in solido; that the lease is signed by Alfred- Kearny; that there is no evidence to make the firm of Kearny, Blois & Co. responsible; and that if there be any, there is none to show that the firm is a commercial firm so as to bind the members in solido.

In Reynolds v. Swain, 13 La. 197, it was held by this court that where one of the defendants, sued as commercial partners, hired the premises in Ms individual name, but that the store was occupied until abandonment by the partnership, the latter circumstance showed that the contract was made for the affairs of the partnersMp; and the firm was therefore bound by tbe act of tbe partner, lessee, though made in bis indi-yidual name. Tbe case at bar is, perhaps, a stronger one in favor of plaintiff, since tbe firm of Kearny, Blois & Co., furnished rent notes under tbe lease of February 24, 1859, tbe one specially pleaded in tlio answer, occupied tbe premisos as we have seen, admitted in their answer the execution of tbe rent notes, made tender of tbe rent up to tbe time of tbe fire, and finally prayed that the lease might be annulled and canceled, and that tbe notes described in plaintiff’s petition be surrendered to tbe respondents.”

&nd we think it abundantly shown that the defendants’ firm was a commercial partnership. Tbe allegation that it was is not specially denied. We find from tbe evidence that tbe firm carried on their business in tbe leased premises, bad a stock of merchandise there, and that tbe merchandise was insured as such in tbe firm name. It will hardly be contended that such a business is not commercial.

Tbe defendants Teserve a bill of exceptions to evidence introduced by plaintiff that tbe defendants, in their firm name, were insured upon their stock of merchandise and upon a shed on tbe leased premises.

Tbe evidence was offered to prove tbe occupancy of tbe premises and the ownership of goods in them by tbe defendants during tbe time for which rent is claimed, and in this view is unobjectionable.

For tbe reasons given, it is ordered and adjudged that the judgment appealed from be affirmed with costs.

Rehearing refused.


text:
    No. 1449.
    Cyrus W. Field & Co. v. New Orleans Delta Newspaper Company.
    The holdor of negotiable paper must, in order to bind the indorser, give notice of non-payment by the maker in conformity with the rules prescribed by the law merchant!
    The doctrine on which the necessity of notice to the indorser rests, is the presumption of damage or injury in his favor.
    •Whoever is entitled to a recourse over against another paity, is presumed in law to be injured by a delay in receiving notice of non-payment. •
    from the Second District Court of blew Orleans, Thomas, J.
    JF. TP". Sandlin, for appellants. II. J. Leovy, for self and D. Da Ponte, Hosier and JBuohamm & Gilmore, for Mrs. Bonford, appellees.
   Howell, J.

As stated by counsel for plaintiffs and appellants, the only question presented on this appeal is: Áre the members of theNew Orleans Delta Newspaper Company, who indorsed tbe notes sued on, liable, without notice of dishonor?

The notes are made by H. J. Leovy, business manager, .to his own order and indorsed by him. individually and before delivery to plaintiffs, tbe first holders, by D. Da Ponte and P. E. Bonford, all three of whom were members of tbe company.

Itis urged by plaintiffs that these parties ape piei;c sureties, andno.ten-titled to notice, ándinsuppprtof thisposijjión tbeyrely.ona doctrine in the case of Crane, executor, v. Trudeau, 19 A. 308, in tie following (words:

“ j,n relation to third persons and bona fide holders, the obligations of accommodation indorsers are coextensive with those of indorsers of .business paper. It would be different if the transferee of a note indorsed (jets it from the malcer. In such a case the'indorser would be a surety.”

Tiie latter doctrine, not being essential to the decision'in that case, may be regarded as obiter; but whetlici-a correct law or not, it cannot apply in this case, when the note is duly indorsed by the payee (who is not the holder), and the subsequent indorsers thus malting it, on its face, commercial paper, and the evidence shows that the defendants intended to bind themselves as accommodation indorsers, and it seems to be settled here, at least since the case oi Weaver v. Murrell, 12 A. 517, that although they may, in some sense, be sureties, they are entitled to notice. We must view them as accommodation indorsers, whose liability depends on the rules applicable to negotiable instruments in general, and consequently the holder must take the steps necessary to bind any indorser of business paper' according, to the law merchant. They were parties to the notes when received by the plaintiffs. See Story on Notes, $$ 134, 268, 288, 292, 295, 367, 479, 480; 6 N. S. 517; 12 R. 183; 10 A. 98; 12 A. 517; 14 A. 305; 16 A. 108.

In the case of. Keeler v. Bartine, 12 Wendell 118, it is said that “the circumstances that the indorser is an accommodation indorser adds cogency to the considerations in favor of strict notice of the defaidt.”

The doctrine on which the necessity of notice rests seems to be the presumption of damage or prejudice in favor of the indorser, who is entitled to a recourse over against another party. In other words, whoever is entitled to a recourse over against another party is presumed in law to be injured by a delay in receiving knowledge of non-payment — is therefore entitled to prompt notice. ■ Chitty on Bills 435.

In this case the indorsers, if notified in due time, may have secured themselves against, or obtained payment from the maker.

The plaintiffs contend, however, that the New.Orleans Delta Newspaper Company was a mere private partnership, and its members not being permitted to plead ignorance of their o'Wn affairs, must be held to know that the notes were not'paid, that-the maker, knew it, and notice to one was notice to all.

The reply to this is that plaintiffs have introduced in evidence the charter, which shows that none of the 'stockholders had any control of, or anything to do with the business, except Leovy, the business manager, and that knowledge is not necessarily notice. The notes were made payable at the Canal Bank, and although Leovy, as business manager, may have known that they were not paid, he did not, therefore, know, without legal notice from the holder or other proper party, that he would be looked to for payment as indorser. See 1 Parson on Notes and Bills 521, 525, 526 and 629. ' ,

The judgment was correctly rendered in favor of the indorsers.

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

Rehearing refused.