author: Ludeling, C. J. Wyly, J.,

text:
    No. 4600.
    Succession of Jesse C. Patrick. Application of L. L. Butler, Executor, for sale of property to pay debts.—Intervention of Joseph C. Goodrich, creditor.
    Where a judgment creditor with special mortgage and vendor’s privilege caused a ji. fa. to bo issued by the district court against the property of a succession, which fi. fa. was injoined by the executor of said succession, and where, whilst the injunction was pending said executor applied to the parish court for the sale oí all the property of the succession, including the property involved in the injunction for the purpose of paying the debts of the succession, and the court refused to order the sale of the property on the ground that it was in the jurisdiction of the district court for the time being, by virtue of the seizure and custody of the sheriff, pursuant to its writ;
    Held — That the court erred in not granting the order prayed for by the executor. Succession property can not be sold under a jñ. fa. The executor was in possession of the property when seized, and the probate court had jurisdiction to order the sale.
    The creditor had a mortgage on the property, but he saw fit to pursue the via ordinaria, and having elected that mode of procedure, he could not have been allowed to change it after he had obtained judgment, even if he had attempted to do so, which he has not
    Ho injury can result to the judgment creditor by authorizing the sale prayed for by the executor if he has a mortgage superior to other creditors.
    APPEAL from the Parish Court, parish of West Baton Rouge. Lob-dell, J.

      S. M. Favrot, for intervenor and appellee. Barrow & Pope, for executor and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Ludeling, C. J.

Mrs. Ursin Soniat had a judgment against the succession of Patrick which she transferred to J. C. Goodrich. He caused a fi. fa. to be issued under said judgment, and under it the sheriff seized property of the succession, to sell which an order had previously been petitioned for by the probate court, to enable the executor to pay the debts of the succession. The executor it seems injoined the sale under the judgment of Soniat, and Favrot, the curator ad hoc, appointed to represent Goodrich, the transferree of Soniat’s judgment, ■in the injunction suit, filed for Goodrich on intervention opposing the application as far as it sought to sell the property, which had been ■seized by the sheriff under the said writ. Waiving the question whether a cmator ad hoc had a right to interfere in any other proceeding or suit than that in which he was appointed to act, we are of the opinion that the court erred in not granting the order prayed for by the executor to sell the property to pay the debts of the estate. Succession property can not be sold under ajft. fa. 1 An. 173.

The executor was in possession of the property, and the probate ■court had jurisdiction to order the sale. The creditor had a mortgage on the property but he saw fit to pursue the via ordinaria, and having elected that mode of procedure he could not have been allowed to change it after he had obtained a judgment, even if he had attempted to do so, which he has not done. 2 La. 547. No injury can result to the judgment creditor if he has a mortgage superior to other ■creditors, by authorizing the sale by the executor.

It is therefore ordered and adjudged that the judgment of the lower ■eourt be amended as follows: It is decreed that the sale of all the property belonging to the succession of Jesse C. Patrick be sold to pay the debts of the succession, according to law. It is further ordered that the intervenor, Goodrich, pay the costs of the intervention and of this appeal.

Wyly, J.,

dissenting. Mrs. Ursiu Soniat, the holder of certain promissory notes of J. C. Patrick, secured by vendor’s privilege and special mortgage, sued in 1867, in the district court of the parish of West Baton Rouge, to obtain judgment and to foreclose the mortgage against the succession.

After a protracted litigation there was a foreclosure of the mortgage •ordered against the land described in the act, and a personal judgment for half the amount of the demand, the other half being held to be not reversable in consequence of its slave consideration. Mrs. Soniat subsequently transferred this judgment to J. C. Goodrich, who caused •execution to issue against the hypothecated property.

The executrix of Patrick injoined the sale in the district court, and before the trial thereof applied to the parish court for the sale of all the property of the succession, including the property involved in the injunction suit, against which the mortgage had been foreclosed as aforesaid.

The curator, representing Goodrich, intervened on the following grounds:

First — That two courts can not at the same time have jurisdiction of the same property, and until the injunction is tried in the district eourt the property should remain in the custody of the sheriff, its executive officer; that the sheriff, as excutive officer of the district eourt, ought not to be placed in a position where obedience to its orders would be disobedience and contempt to the mandate of the parish court.

Second — That the holder of a mortgage importing a confession of judgment can subject the property to its payment, regardless of the manner of foreclosure, and whether the mortgageor be dead or not. The court refused to order the sale of the property on the ground that it was in the jurisdiction of the district court for the time being, by virtue of the seizure and custody of the sheriff, pursuant to its writ. 12 An. 591. The executrix of J. C. Patrick has appealed.

The question whether a mortgageor who forecloses his mortgage-via ordinaria can proceed directly against the property without resorting to the remedy provided in articles 990 and 991, C. P., is raised in the injunction suit pending in the district court.

In my opinion the property being under seizure in that court under its own process, and injoined by the executrix on the grounds stated, ought not to be ordered to be sold by the parish court pending that controversy; and the parish judge did not err in refusing to grant the order. The parish court ought not by its own orders to disturb the-jurisdiction of the district court, and in a case like this undertake to-dispose of a controversy pending in that court. I adopt the written opinion of the judge a quo on this point.

But laying out of view the question of the jurisdiction of the parish court, I am of opinion that the district court had jurisdiction to enforce, by its own process, the mortgage foreclosed via ordinaria against the property in possession of the executrix of Patrick. A creditor having an executory title may subj( ct the property to the payment of the mortgage whether it be foreclosed via ordinaria or vice executiva. The right to subject the property to the payment of.a mortgage importing a confession of judgment, is not a conditional but an absolute right, resulting from articles 61, 62, 63, 65 and 66, C. P., and articles 1421, 1433 and 1438 of the Revised Code.

The law gives the right to a creditor holding an executory title to-seize and sell the hypothecated property (in possession of the heirs) the same as if the original debtor were alive,” C. P. 66 ; and theije is nothing in it declaring that this right shall be forfeited if the mortgage be closed via ordinaria instead of via executiva. I imagine that a right accorded by law will not be lost if the owner thereof seeks to enforce it by either of the modes provided by law.

The subject of the articles referred to is the giving of the right, and not the mere machinery by which that right may be enforced. It was upon the principle that the hypothecary action is a real action following the property in whosesoever hands it may be found, andbeing'areal action it may be brought in a court of ordinary jurisdiction; that this court decided as early as 1846 that a creditor having a special mortgage importing a confession of judgment may obtain in a court of ordinary jurisdiction an order of seizure and sale against the hypothecated property under administration.

This was the doctrine announced in Boquille, administrator, v. Faille. 1 An. 205. In that case this court said: “It is true that, as a general rule, probate courts have exclusive jurisdiction of money demands against successions, but the rule is not without exceptions. C. P. 996, 983. The right of the hypothecary creditor to proceed against the mortgaged property in the possession of the debtor’s heirs ■appears to be beyond controversy. The Code of Practice after declaring the hypothecary action is a real action, which follows the property to which it is attached in whatever hands it may be found, provides that if the debtor has died leaving a single heir who has accepted the succession, or if he leaves several heirs who have accepted the succession, and there has been no partition among them, the creditor shall be entitled to seize and sell the hypothecated property in the same manner as if the original debtor were still alive. Being a real action it may be exercised in courts of ordinary jurisdiction.” C. P. 983, 61, 67, 734, 744; C. C. 1370, 1382, 1387, 1391.

Since 1846 this court has frequently affirmed this doctrine. 2 An. 509; 12 An. 551; 19 An. 510; 20 An. 374; but these cases were all under executory process.

The only case where the question was presented in a proceeding via ordinaria is that of Randolph v. Heirs of Chapman, 21 An. 486, where it was held that: “The holder of promissory notes secured by mortgage on real estate importing a confession of judgment, may proceed in rem after the mortgageor has died, to foreclose the mortgage without provoking the appointment of an administrator to represent the succession. Where the act of mortgage imports a confession of judgment and no partition of the estate has been made among the heirs, the mortgage creditor may seize and sell the hypothecated property as if the original debtor were still alive. If the widow and heirs of the deceased husband, whose property is specially mortgaged be non-residents, the mortgage creditor in a suit against the mortgaged property may provoke the appointment of a curator ad hoc to represent them.”

It is the character of the instrument and not the mode of enforcing it that gives the “ executory title against the debtor,” and authorizes ■the creditor, under article 66, C. P., to “seize and sell the hypothecated property (in possession of the heirs in the same manner) as if the ■original debtor were still alive.”

A mortgage retains its hypothecary character as thoroughly when it is foreclosed via ordinaria as via exeeutiva. It is directed against the thing as much in one form of procedure as in the other; and in this respect it is as much a real action in the one case as in the other.

If article 66, C. P., means what it says, and such has been affirmed repeatedly by this court, the death of the mortgage debtor in no manner affects the right of the mortgage creditor, because he can seize and sell the hypothecated property (in possession of the heirs in the same manner) as if tlie original debtor were alive.” Therefore, as Mrs. Soniat could subject, in a proceeding via ordinaria, the hypothecated? property in Patrick’s possession to her special mortgage, she has the-same right to do so when the property is in possession of his executrix. It is conceded that she could do so by proceeding via executiva; but the cases decided in 3 N. S. 498, 655 and 8 N. S. 96, are cited to show that she can not do so via ordinaria. Those cases will be searched in vain to find anything supporting that conclusion.

In those cases the question was whether the hypothecary creditor-can at the same time proceed via executiva and via ordinaria, and the-court said : “In the present case an attempt is made to combine two-actions, ordinary and extraordinary; and the order of seizure and sale seems to have been granted before the answer was filed. * * * The

manner of proceeding attempted by the plaintiffs is not an attempt to cumulate different causes of action in one suit, but to pursue one-course of action by claiming the benefit of two remedies for a single wrong which appears to us to be unjust, oppressive, contrary to reason- and of course contrary to law.” 3 N. S. 498.

In the case at bar two actions have not been combined; bub Mrs. Soniat has merely cumulated two different causes of action in one-suit, to wit: a personal action against the succession and an hypothecary action against the mortgaged property. So far from violating: the principles announced in the decisions opposed to her, Mrs. Soniat has followed their direction.

In the succession of Wilson, 12 An. 592, this court said: “Lastly, it is urged that the notes of the mortgage having been merged in a judgment they become extinguished by novation, though it is admitted-that the judgment itself decrees that the mortgage shall remain in force to secure the payment of the judgment. If this doctrine were correct, the highest possible recognition of a right would virtually extinguish it.”

Here Mrs. Soniat having the highest possible recognition of her mortgage right, is opposed in the execution thereof, solely on the-ground of said recognition. Without this recognition it is admitted-the mortgage would entitle her to seize and sell the hypothecated, property on an ex parte order at chambers.

Now, if the character of her mortgage will authorize the seizure and sale of the hypothecated property on an ex parte order of the judge,, why will it not authorize the same on an order obtained after a fair-trial contradictorily with the mortgageor or his legal representative?

It is the judicial recognition of the act importing a confession of judgment that authorizes the seizure and sale; and surely that recognition is just as solemn and authoritative when granted contradictorily with the parties as when granted ex parte.

But the ease of Bertin v. Phillips, 1 An. 173, is cited as authority against the Soniat mortgage.

That case is not in point, and is no authority here. In it the question was, whether an ordinary judgment on a privilege debt could be enforced by the seizing thereunder of a slave belonging to the succession of the judgment debtor; and the court properly held that succession property could not be sold in that way. That case was not based on a special mortgage, importing a confession of judgment, and of course it did not fall under article 61, 62, 63, 65 and 66 C. P. The case of Elmore v. Ventress, 24 An. 382, is directly in point. There the precise question is decided in accordance with the views I herein express. For the reasons stated I feel constrained to dissent in this case.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 2884.
    Henrietta Crocker and als. v. J. F. Hoag and Charles H. Reed.
    "Where A had the right to sell the share she olaimed to have in a piece of property, it is immaterial to inquire whether she owned any portion of said property. Having sold the-whole of it and received the price thereof, she was bound to complete the title, and the moment she acquired the same, it inured to and vested in her vendees. Their title became as complete as if she had executed to them a deed immediately after she had acquired said property. Her reconveyance of it to Mm from whom she had purchased it, passed no title. It was the sale of another’s property, and therefore a nullity.
    from the Seventh District Court, parish of Orleans. Oollens, J.

      Trist & Oliver, for plaintiffs and appellees. Whitaker & JRiee, and Fellows & Mills, for defendant and appellant.
    Justices concurring: Ludeliug, Taliaferro, Howell, Wyly and Morgan.
   Wyly, J.

This is a petitory action against the defendants for certain property situated on Rousseau street, described in the petition. Hoag being only the tenant of Reed makes no defense. The property belonged to Elkanah Reed, who died in 1850, leaving a widow and two children, the defendant, Charles H., about six years old, and Sarah Ann, aged about eighteen months. In 1851 Sarah Ann died. In 1853 the widow owning one undivided portion of said property, being 155-512 thereof, the share inherited from her deceased daughter, conveyed to the plaintiffs by notarial act, duly recorded, the whole property, stipulating that, if hereafter any claim should be urged or setup to any portion of the above described property on account of the only surviving heir and minor child of the deceased Elkanah Reed, named Charles Henry Reed, she, the said vendor, hereby agrees and ■obligates herself to satisfy and extinguish such claim without prejudice or loss to the purchasers.”

In February, 1868, the defendant, Charles H. Reed, being of full ■age, conveyed by notarial act his undivided shares, being 357-512 parts thereof, of said property to his mother, the vendor of the plaintiffs. The deed was duly recorded and the consideration was acknowledged to be $8000 cash.

In January, 1869, the property was reconveyed to Charles H. Reed by his mother for $7000, three thousand cash and the balance evidenced by a note. The plaintiffs contend that although their vendor •only owned part of the property in 1853, she sold the whole of it to them, and that their title became complete in 1868 when Charles H. Reed conveyed his share or interest in the property to his mother ; that this sale inured to their benefit. To this the respondent replies, that the title set up by the plaintiffs is null and void; because his mother sold them the property in 1853, without any order or authority ■of the court having jurisdiction of the estate of Elkanah Reed; that the signature of his mother to said act was obtained by iraud and (procured to be) made thereto by one Elisha Croker, who pretended to act for petitioners, and that said act was passed without consideration. He further pleads that said property was conveyed to him by ■his mother by authentic act on fifteenth January, 1869. The plea of fraud and failure of consideration is not sustained by the evidence. Whether there was an order of court or not, the mother of the re-. ■spondent had the right to sell her share of the property. Whether she owned any of the property or not, is immaterial, having received the price for the whole property, the mother of the respondent was .bound to complete the title, and the moment she acquired it in 1868, it inured to and vested in her vendees, the plaintiffs. Their title became as complete as if she had executed to them a deed immediately after receiving title from her son.

The reconveyance to Charles H. Reed in 1869, passed no title, because the moment he deeded the property to his mother in 1868, the title instantaneously passed to her vendees, the plaintiffs. It was the ■sale of another’s property and therefore a nullity.

We therefore conclude that the judgment herein in favor of the plaintiffs is correct.

Judgment affirmed.

See 9 La. 99;. 5 An. 532; 12 La. 170; 5 N. S. 247; 12 M. 187; Revised Code 3144, 3304; 18 An. 321.

Rehearing refused.


author: Morgan, J.

text:
    No. 4031.
    State of Louisiana ex rel. Jacob Strauss v. Antoine Dubuclet, State Treasurer.
    'This court, where there is a doubt as to its jurisdiction, would maintain it in a case in which the whole people of the State are interested, and if this were necessary in order to protect them from what may be, and as in this case appears to be, a fictitious claim upon the common treasury.
    It does not follow that, because the State has appealed through the Attorney General, she can not appeal through the Governor as well. He clearly has the right to appeal on behalf of the State, and this right can not betaken away from him, simply because another officer of the government has been before him, when he takes the appeaL within the delays required by law. In this case the appeal was taken in ample time.
    It is not legally Gorrect to say that no person is authorized to appeal on behalf of the State, except in cases where the attorney general is unable or unwilling to act. The prohi. Mtion is limited to the employment of counsel other than the Attorney General by the Treasurer and Auditor, and does not exclude the Governor from doing so.
    Judgment in this case being rendered on the thirteenth of May, signed the same day, and the appeal taken on the seventeenth of May, being made returnable on the third Monday of said month, there was a good reason for extending the return day from the third Monday of May, only a lew days after the judgment was rendered, until the first Monday in • Hovember; that being the first return day after the first Monday in May, on which this court would sit.
    Where the Auditor had no authority to draw the warrants he issued, the fact of his drawing them would create no debt against the State, and if issued with the intention of defrauding the State, the Treasurer is not bound to pay them, simply because they may happen to be in the hands of an innocent holder.
    .Something more than the genuineness of the Auditor’s signature and the lawfulness of the issue is required to protect the holder of State warrants, innocent though he may be. Hot being commercial paper, they can be transferred only by the indorsement of the parties in whose favor they were issued. The genuineness of that indorsement must be proved.
    from the Eighth District Court, parish of Orleans. Dibble, J.

      W. D. Rogers, for relator and appellee.

      Semmes & Mott, Days

      & New, and 8. Relden, Attorney General, for respondent and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Morgan, J.

Two appeals were taken irom the judgment herein rendered in favor of Jacob Strauss. One was taken by the attorney general, and one was taken by special counsel appointed by the Governor.

The one by the Attorney General was taken on the seventeenth May, 1872, and was made returnable on the third Monday in May. The ■other was taken by the special counsel employed by the Governor on the eighteenth May, and was made returnable on the first Monday in November.

We are asked to dismiss the second appeal on the following- grounds : First — “ That an appeal having been taken on behalf of the State of Louisiana by the Attorney General of the State, and made returnable on the third Monday of May, no other appeal on behalf of said .State could be taken pending the said first appeal, and the action herein taken thereafter in the lower court on behalf of said State was .and is null and void, for want of jurisdiction.”

Second — “ That no person is authorized to appeal on. behalf of the-State, except in cases where the Attorney General is unable or unwilling to act; that such facts do not exist herein, and, therefore, the Governor was without power to employ counsel.”

Third — “That the appeal was made returnable at a day other than as assigned by law, and no reason existed therefor.”

This proceeding was instituted on the twenty-fifth April, 1872. The relator’s object is to force the State Treasurer to recognize, as legal and binding debts of the State, certain warrants held by him, issued by Wicklifie, and to cause them to be paid out of the State treasury.

The warrants amount to within a fraction of' $140,000.

The answer is that they are fraudulent and spurious, and that the indorsements therein are forgeries.

The case was tried on the eighth May. It appears that these warrants, coming into the hands of auditor Graham, who succeeded Wickliffe, were maiked by him “ counterfeit,” that he could find no traces of their having been issued in the books of his office, and that he had examined many of the parties in whose favor they purported to have been drawn, and in whose names they were indorsed, and that they all declared their signatures to be forgeries. Notwithstanding which, not one of these parties, although many of them are residents, and well known citizens of this city, were ever examined as witnesses, nor does any attempt seem to have been made to procure their testimony.

Judgment was rendered in favor of the relator as prayed for, on the thirteenth May, and was issued on the same day.

On the seventeenth May, the attorney general, intervening on behalf of the State, moved for an appeal, returnable on the third Monday in May. His transcript of appeal was not filed on the return day, nor was any application made to this court to extend the time in order to enable him to bring it up, and the relator’s judgment has thus, in his opinion become final, and the State is to be saddled with the payment of $140,000, of which, the whole according to Auditor Graham; and the Attorney General, is spurious, unless we maintain the appeal taken by the special counsel of the State, which the relator says the law prohibits us from doing.

Where there is a doubt as to the jurisdiction of the court, we would maintain our jurisdiction in a case in which the whole people of the State are interested, and if this were necessary, in order to protect them from what may be, and, as in the matter before us appears to be, a fictitious claim upon the common treasury.

But in this case we are not called upon to do so. The letter, as well as the spirit of the law gives us the required jurisdiction.

First — It does not follow that because the State has appealed through the Attorney General that she can not appeal through the Governor;. as well. He clearly has the right to appeal, on behalf of the State, and this right can not be taken away from him, simply because another officer of the government has been before him, when he takes the appeal within the delays required by law. In this ease the appeal was taken in ample time.

Second — It is not legally correct to say that no person is authorized to appeal on behalf of the State, except in cases where the Attorney General is unable or unwilling to act. The prohibition is limited to the employment of counsel other than the Attorney General by the Treasurer and Auditor, and does not exclude the Governor from doing so.

Third — There was a good reason for extending the return day from the third Monday of May, only a few days after the judgment was rendered, until the first Monday in November, that being the first return day, after the first Monday in May, upon which this court would sit.

And we must believe that the Attorney General was of the opinion that these objections could not be well urged against the State, otherwise we take it for granted that he would have filed his transcript of appeal in time. He must have believed that the appeal taken by him had been superseded, for we can not believe that he could have been guilty of the carelessness of allowing a judgment to become final, upon a claim involving so enormous a sum of money, which claim he had denounced as spurious and forged, and from the judgment recognizing it to be valid he had appealed. He must have considered that the State was protected by the appeal taken by the special counsel employed by the Governor, and in this opinion we think he was right.

The motion to dismiss is refused.

On the Merits.

The warrants upon which these proceedings are had, were drawn by Wiekliffe, in favor of various parties. They have come into the possession of the relator. He and his employes say he got them in the usual course of business. Employes in the Auditor’s office say that they appear to be drawn in the form generally used by Wiekliffe, and that they believe his signature to them genuine. This may all be true. But if Wiekliffe had no authority to draw the warrants, the fact of his drawing them would create no debt against the State; if they were uttered with the intention of defrauding the State, as is alleged in the answer, the treasury is not to be depleted to pay them, simply because they may happen to be in the hands of an innocent holder. Besides, something more than the genuineness of the Auditor’s signature, and the lawfulness of the issue is required to protect the holder, innocent though he may he. Now, the warrants in question, as we have already-stated, are all issued in favor of certain parties, and are therefore only payable to those parties or to their order. Their indorsement alone could give them transfer, they not being commercial paper, and a forged indorsement conveys no title. And if they were made payable to the parties named, which parties were real creditors of the State, and their signatures thereon were forged, and the warrants had been paid, the State would still remain their debtor, and would have to pay again. Now, the Auditor of Accounts (Graham), testifies that when these warrants came into his possession he caused many of the indorsers thereon to come before him, and they each declared that their signatures were forgeries. Under this state of facts, and with this evidence before us, we can not affirm the judgment which orders their payment. Neither can we decide the case entirely against the relator. He may be right. If so, he will only suffer delay. . But we think that the interest of public justice requires that the case should be remanded, in order that the validity of the debt which is claimed against the State maybe properly inquired into, and the genuineness of the indorsements which alone gives to the relator his title, may be satisfactorily established.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided, annulled and reversed, and that the case be remanded to the court from which it came to be proceeded in according to law, appellees to pay the costs of appeal.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 3689.
    Delphine St. Amand, F. A. Luling, Subrogated, v. D. A. Long.
    Article 55 Code of Practice, forbids the cumulation of petitory and possessory actions, except by consent of .parties.
    In a possessory action title is not at issue, and judgment should not be given on the titles of the parties.
    The prayer of a petition characterizes it, and when the action it institutes is possessory, the defendant can not change it into a petitory one, and reconvene by setting up title.
    Where there is no answer to an amended petition, nor default taken, especially if the amendment be one of substance and not one of iorm, all subsequent proceedings are irregular and will be set aside. The contestatio litiv, which is the very foundation of a suit, did not exist.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. B. Bauvcds, J.

      W O. Denegre, B. King Cutler, Bradford, Legendre & Co., for plaintiff and appellee. J$. Killeul and James D. Augustin, for defendant and appellant.
    - Justices concurring, Ludeling, Taliaferro, Howell, Morgan.
   Taliaferro, J.

The defendant appeals from a judgment rendered against him decreeing the plaintiff to be the owner of certain lands claimed by the latter, and which are in the possession of the defendant. He alleges that the judgment is null and without any binding force through the irregularity and illegality of the proceedings upon which it is founded.

The facts presented are, that on the twenty-fourth of September, 1859, Delphine St. Amand, widow of F. Mayronne and tutrix of her minor child, filed a suit against D. A. Long the defendant, and Philemon Boutte, alleging that they are trespassing upon her lands by cutting wood thereon, a large quantity of which they had in readiness to remove from the land by transportation of the same to market over the New Orleans, Opelousas and Great Western Railroad. She prayed for and obtained a writ of sequestration to prevent the removal of the wood, and writs of injunction against the defendants and the railroad company, restraining the defendant from further trespassing ou the premises, and inhibiting both the company and the defendant from removing the wood. She prayed to be quieied in the possession of the lands trespassed upon, and for judgment against the defendant for one thousand dollars damages. To this suit the defendant answered by general denial. This suit is numbered four hundred and nine on the docket of the district court, and is clearly a possessory action in which damages are claimed for disturbance of possession and for trespass. On the sixth of December, 1859, the same plaintiff filed a supplemental petition in which she set forth an error in the original plot of survey of the township in which the lands trespassed upon are situated, and by which these lands were erroneously represented as lying in section one hundred and three. The supplemental petition gives their true location according to the corrected township plot of survey. Service of this suplemental petition was made upon both the defendants, but no answer was ever filed and no judgment by default taken. On-the third January, 1860, the same plaintiff brought a petitory action against Long alone for the same lands, alleging trespass as in the former suit, and prayed judgment on her titles decreeing her to be the owner of the lands. This suit on the docket of the district court is numbered four hundred and fourteen. Service of this petition was made on the defendant but no answer was filed, nor was a judgment by default taken. On the tenth of April, 1861. after the death of Mrs. St. Amand, the original plaintiff, her heirs filed a supplemental petition praying to be made parties to the original suit, that they may be allowed to carry on the same in their own name, and that they be decreed owners of the premises, etc. Both defendants were made parties and service was made on both; but, as in the previous eases, no answer was made and no default taken. The case remained in statu quo until the fifth September, 1870. During the intervening period of more than nine years the lands in controversy were sold under execution at the suit of creditors of the heirs of Mrs. St. Amand, and F. A. Luling became the purchaser. He renewed the suit ip his own name at the date last mentioned against Long alone, praying to be decreed owner and for damages, etc. Service of this petition and the accompanying citation was made on one Lawless as the agent of Long. To this proceeding Long excepted on the ground of want of citation. He denied that Lawless was authorized to receive citation, and averred that the defendant was in no manner bound by the service made upon Lawless. On the eighth of April, J871, final judgment was rendered in favor of Luling against Long, decreeing Luling to be owner of the lands in contestation, and rejecting the plaintiff’s prayer for damages. There has been an effort to blend this action brought by Luling with the case number four hundred and nine, the possessory action, in which Long and Boutte answered, but without effect.

It is clear there was no issue joined either in the petitory action brought by Mrs. Amand and continued by her heirs, or in that instituted by LuliDg in his own name. The first suit was a possessory action against Long and Boutte, alleging disturbance of possession and asserting a claim for damages, and praying to be quieted in her possession. The number of the suit is 409. The suit No. 414 is distinctly a petitory action describing additional tracts of land not mentioned in the possessory action and claiming a much larger sum as damages, and is brought against Long alone. The supplemental petition which sought to change the nature of the original action by claiming title, and converting the possessory into a petitory action, was never put at issue either by exception, answer or judgment by default. Article 55, Code of Practice, forbids the cumulation of petitory and possessory actions except by consent of parties. In a possessory action title is not at issue, and judgment should not be given on the titles of the parties; 4 M. C26, 5 M. 685; gnd the prayer of the petition characterizes it, and de endant can not change it into a petitory one; 16 La. 44, 7 Rob. 109; and even defendant can not reconvene by setting up title; 7 N. S. 488, 10 La. 140. When there is no answer to an amended petition, nor default taken, especially if the amendment be one of substance and not of form, all subsequent proceedings are irregular and will be set aside. 1 M. 206 ; 8 N. S. 298 ; 2 La. 130; 4 La. 13. “If there be no answer nor default, there is no contestatio litis, which is the very foundation of the suit; all subsequent proceedings are irregular and will be set aside and the cause remanded, or the appeal dismissed. 5 N. S. 515; 15 La. 209 ; 2 An. 352; 9 An. 417; 18 An. 187.”

As there was no contestatio litis in this case it follows that the judgment rendered can have no force or validity. The exception to the service of citation upon Lawless in Luling’s suit against the defendant Long, was well taken. No authority of any kind in Lawless as Long’s agent is shown. 16 La. 570; 10 La. 598; 19 An. 360

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled and reversed. It is further ordered that this case be remanded to the lower court to be proceeded with according to law, the plaintiff and appellee paying costs of this appeal.


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    No. 4489.
    Joseph Boudreaux v. F. P. Martinez and als.
    In the case of a dormant or secret partner, although credit is manifestly given only to the ostensible partner, no other party being known, yet it is not deemed an exclusive credit, but is binding upon all for whom the partner acts, if done in their business and for their benefit.
    The creditor is not affected by the State of affairs between the partners inter se. A deceit or fraud between them has nothing to do with their obligations towards third persons , who are not party to it.
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche. Taylor Beattie, J.

      Arthur F. and Olay Knobloeh, for plaintiff and appellant. F. W. Blahe, for defendants and appellees.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Taliaferro, J.

Martinez, a merchant of New Orleans, having -claims against Louis J. Meyer, a merchant of Thibodaux, in the parish of Lafourche, for merchandise furnished him, brought two suits against him in the parish court of Lafourche, and obtained judgments. Execution was issued and the stock of goods in the store of Meyer was seized. Thereupon Boudreaux, the plaintiff in this case, sued out a writ of injunction restraining Martinez and the sheriff from further proceeding with the seizure and sale and made Meyer a party to this injunction suit. Boudreaux alleges that he is the partner of Meyer ,and the owner of one undivided half of the stock of goods so seized. Be contends that Martinez lias no right to seize partnership property ■pn a judgment rendered against an individual member of a commercial firm. Be avers that to the knowledge of Martinez, Meyer possesses in the parish oí Lafourche unincumbered property in his own right to ■the amount of ten thousand dollars, and far more than sufficient to discharge the amount of the judgments obtained by Martinez against Meyer.

Tile plaintiff charges collusion between Martinez and Meyer to procure a sale of the stock of merchandise by which his share and interest therein may be divested at a great sacrifice and injury to him and to their advantage. He prays to be declared owner of an undivided half share of the stock of merchandise; that the injunction be perpetuated, and that he recover one thousand dollars actual damages and five thousand dollars exemplary damages.

The answer of Martinez is a general denial. He specially allege® that he dealt with Meyer alone without knowledge of the plaintiff as having any interest in the business of Louis J. Meyer, to whom alone he gave credit. He prays judgment dissolving the injunction, with twenty per cent, damages on the amount injoined, and special damages for attorney’s fees to the extent of two hundred and fifty dollars-Meyer, for answer, admits the interest of the plaintiff in the store, but;, avers that the plaintiff “ was ever and purely a silent partner therein,’ the whole of the establishment being in the name of and its affairs-administered entirely by the respondent Meyer. That the indebtedues® to Martinez arose from the purchase of goods for the common benefit of himself and plaintiff, that the debt was contracted on partnership account and should be paid out of partnership property. He pray® judgment in his favor, with damages, etc.

Judgment was rendered dissolving the injunction with twenty per cent, on the amount of the judgment injoined. Seventy-five dollars-special damages for attorney’s fees. That as to L. J. Meyer and the sheriff the injunction be dissolved at plaintiff’s costs and without damages. Prom this judgment the plaintiff has appealed.

It is pressed upon the consideration of the court that Martinez, brought his suit against one of the partners only, and that he can only recover judgment against him individually'- and enforce that judgment against the individual property of that partner, and could only seize-the residuary interest in the partnership of the partner sued in default of individual property. We do not understand the character of the-action to be such as described by the plaintiff in injunction. The evidence is clear that the commercial transactions of L. J. Meyer and the plaintiff Boudreaux were carried on exclusively by and in the name of L. J. Meyer alone. Boudreaux was unknown to the world a® a partner. Martinez in answer to an interrogatory put to him swear® that previous to furnishing Meyer with the goods he never heard that Boudreaux had any interest in the concern. Boudreaux himself, on cross examination, said: “I am a partner of Mr. Meyer, but my

name is not known. I was not known by Martinez except what Mr.. Meyer told them. Merchandise came marked L. J. Meyer alone. I know that Mr. Meyer was doing business with Mr. Martinez. I never authorized Mr. Meyer to do anything connected with the store. Mr. Meyer knew what to do himself. He bought the goods. Mr. Meyer made all the purchases in New Orleans.’’

It is beyond all question that Boudreaux was a mere passive member of the partnership, having an interest in it but taking no active part, in its business operations and unknown to the world as having any share or interest in its affairs. In bringing suit against L. J. Meyer, Martinez sued the firm. He knew no other firm than that of L. J. Meyer. He supplied the store with goods. It is shown that the goods went, into that store and were sold for the profit and benefit of all concerned in that establishment. Boudreaux claimed and was entitled to a share-of the profits of that store. Shall he be heard to say-that he will reap-the benefits of its operations and share in none of its liabilities'? But on the part of the plaintiff it is contended and much pains have been taken to show that there was a collusion between Meyer and Martinez, to defraud and injure the plaintiff. The fact that Meyer wrote to-Martinez to bring suits in the parish court against him ; that Meyer confessed judgment in these suits; the seizure of the stock of goods, and other acts are pointed out as indicating a concocted plan to enable Meyer to purchase the entire stock of merchandise at a low price and thus enrich himself at the expense of and by the injury of the plaintiff.. If Meyer was acting fraudulently and in bad faith with Boudreaux, we do not see that Martinez is implicated with it. The alleged fraud and misconduct of Meyer as affecting Boudreaux can not be inquired into-in this case.

The liability of secret or dormant partners in commercial partnerships in all cases like the present is so well established and so universally recognized that authorities need scarce be referred to.

“In tile case of a dormant or secret partner the credit is manifestly given only to the ostensible partner, for no other party is known. Still,, however, it is not treated as an exclusive credit, for the law in all cases of this sort founds its decision upon the ground that the creditor has had a choice or election of his debtor, which can not be where the-partner is dormant or unknown. The credit therefore is not deemed exclusive but binding upon all for whom the partner acts, if done in their business and for their benefit as in cases of agency for an unknown principal.’’ Story on Partnership, sec. 138; also same work,, sec, 139 ; also pages 227, 257.

In the case of Scanell v. Payne & Harrison 5 An. 255 this court said in relation to deception practiced by one partner upon another, “the validity of the transactions between the bank and the parties-who effected the loan and consented to its application, is not affected by the state of affairs between the partners inter se. A deceit between partners has nothing to do with their obligations towards third persons, who are not privy to it. There is no evidence of any connivance on the part of the bank.” The decision of the court a qua is clearly correct.

It is therefore ordered that the judgment of the district court be-affirmed with costs in both courts; but without prejudice to the plaintiff Boudreaux, to have his legal recourse against his partner, Louis J.. Meyer, on account of any matters growing out of their partnership.

Rehearing refused.


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    No. 2806.
    L. Charles Perret v. New Orleans Times Newspaper.
    The publication of any communication with or without the name of the author, which is defamatory and false, subjects the publisher as well as the author to damages in favor of the party aggrieved.
    The law looks to the animus of the publisher in permitting his columns to be used as a vehicle for the dissemination of calumny. In such a case, it is not incumbent upon the party assailed by defamation to show malice against himself on the part of tlio publisher, nor to prove that he has received injury by the publication. If the charges are false, the law implies malice in the publisher — not a malice which means a spite against the individual, but malus animus — a wanton disposition grossly negligent of the rights of others; and the injury inflicted is not repaired by the subsequent retraction or apology of the publisher, however promptly it may be made.
    'The proprietor of a newspaper is not exonerated from responsibility, because the libelous matter appearing in his paper was inserted without his knowledge, or approbation, or even against his wishes. He is responsible for the acts of his agents and employes.
    It is not sufficient for his exoneration that the printer, by naming the author, gives the party aggrieved an action against him.
    A reparation by recantation can-only be considered in estimating the amount of damages. In an action of libel it is not necessary to prove any special damage to recover.
    By the statute of 1855, Revised Statutes p. 706, sections 3640 and 3641, the truth of libelous matter may be pleaded in justification, and if it shall appear that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J. Jury trial.

      Lábatt & Aroni, for plaintiff and appellant.

      Alexander Wallcer, J. Lingan and Garrett Walicer, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Morgan.
   Taliaferro, J.

This is an action of slander. The plaintiff alleges that the defendant is liable to him in damages to the amount of ten thousand dollars, for the publication of a card signed by some unknown and irresponsible person’s whose residence is unknown and whose names are fictitious, containing false, malicious and libelous charges against him by which lie has been greatly injured and dam- • aged in the estimation of his friends and the public. The card •complained of is couched in these words :

■“New Orleans, February 39, 1869.
.“We, the undersigned, most respectfully lay before the public the following very astonishing facts that took place last night near the Carrollton depot: While we were on our way home from Carrollton to New Orleans, three police officers of the above place assailed us with revolvers pointed to us, to deliver every cent we had about us. All the money that we had was five dollars, and on delivering the same they left off. What sounds more horrible is that these so called officers were accompanied by his honor Judge Perret, judge of Carrollton and Canal .avenue.
“ Signed, JOHN BRIANT,
D. L. THOMPSON,
W..B. SAVORY,
H. B. DELORD,
JAMES B. RDBB,
No. 413 Frenchman street.”

The answer is a general denial. The defendant admits that the instrument so signed was published, as charged by plaintiff, but says it was published as an advertisement; that it was received by one of ;the employes of the establishment at a late hour of the night, and during the absence and without the knowledge of the proprietors of 'the newspaper. He specially denies that the said advertisement contains any libelous or slanderous charges or imputations that could -endamage plaintiff, and he specially denies that such publication was made with any malicious intent on the part of the respondent.

The case was tried before a .jury which rendered a verdict in favor -of the defendant.

The plaintiff has appealed.

A bill of exceptions, taken by the plaintiff to the charge given to the jury by the judge on the trial of the case below, presents for our •consideration several important questions arising in this case. The plaintiff insists that the judge erred in expounding to the jury the law relating to the publication of libels, and thereby misled the jury ■and caused their verdict to be rendered for the defendant.

These portions of the charge more especially excepted to are in the following words: “But this malice, whether express or implied, may be refuted, and it devolves upon the defendant to produce such proof. It is competent for him, as going to show the want of malice, to prove •that the article was published without his knowledge; that it came to the paper through the ordinary channels of public news; that the parties from whom it was received were men about whose credibility there existed at the time no reasonable suspicion. These remarks apply to the liability of proprietors of newspapers for publishing libelous articles, either as editorials or as anonymous communications, but I take it sound reason and justice require that the rule of responsibility should be different when the publication complained of is not an editorial nor an anonymous communication, but on the contrary «contains the name and residence of the writer. In this last ease the same degree of liability can not with propriety be exacted from the proprietor of a newspaper. If the same responsibility were enforced in both cases it would, in my judgment, amount to a complete stoppage to all such publishing enterprises, and I believe it to be the true -spirit of our institutions rather to encourage than prevent their existence. I consider the true rule to be that malice will be presumed in relation to publications which are proven to be defamatory and false, whether these publications are either editorials or anonymous communications, but there exists no such legal presumption of malice when the publication is one in the nature of an advertisement, the verity of which is vouched for by the signature and residence of the party asking its publication. In such a case, many of the reasons which vindicate the rules presuming malice in the other exists, and it would be senseless to apply rules when the reasons for their existence have ceased. Therefore you will decide as to the proper character of the publication complained of, whether it is an editorial or an anonymous communication; you will then consider whether the averments thereof have been proved to be defamatory and false. If you are satisfied that it is an editorial or an anonymous communication and that its averments are defamatory and false, then you may infer that it was-maliciously published, and you will give a verdict in favor of the plaintiff for such damages as in your opinion will compensate the wrong committed, and serve as a punishment to the defendant for his offense.

In this case you may take into consideration whether the publication was made with the knowledge of the defendant, and if by his-servants, whether in so doing they were acting within the scope of the duties confided to them to serve as guides in the discharge of those duties. The defendant can not be held responsible for vindictive damages if it be showm that the same was made by his employes against his wishes, and in violation of his express orders. If, on the contrary, you conclude that the publication was merely an advertisement, then you can not infer malice on the part of the defendant, simply from the fact that the advertisement is botli defamatory and false. In the case of an advertisement signed by parties who gave their residence, it is the duty of the plaintiff to prove malice, and unless he does he can not recover damages. The distinction between an editorial and an advertisement constitutes the reason for the difference of liability in the two cases. In the first the charge, if defamatory and false, comes from the proprietor himself; he vouches upon his own responsibility for the truth of the publication, and should be held strictly accountable if the publication turn out to be false and defamatory. But in the case of an advertisement bearing the signature and residence of the party who wishes its publication, the proprietor can not be said to vouch for the truth of the averments or charges in the. publication. Nobody in the community would believe the charge to be true, because they knew the proprietor of the paper to be a responsible man; in such a case the public would look to the character of the author of the publication to believe or disbelieve the charge. If the parties signing the advertisement are shown to be men who were known to the proprietor of the paper, and known by him to be entitled to no credit, or if the circumstances existing at the time were such that an ordinary prudent man ought to have made inquiries, then the proprietor could not claim the benefit of being presumed without malice. But if the circumstances under which the advertisement was inserted were the usual ones in such cases, and that there was nothing in existence at the time to excite the suspicion of a prudent man, then the publication is free from the presumption of malice however defamatory and false it may have been. No damages can be awarded by you unless the plaintiff has shown malice outside of the publication itself.”

We think the instruction given to the jury erroneous in several important particulars, and therefore that the exception was well taken.

We regard the doctrine as no longer controverted that the publication of any communication, with or without the name of the author, which is defamatory and false, subjects the publisher as well as the author to damages in iavor of the party aggrieved. Circumstances may be shown in mitigation of damages. The law looks (o the •animus of the publisher in permitting his columns to be used as a vehicle for the dissemination of calumny, whereby the fair character •of an individual may be blasted and his business pursuits ruined. In such a case it is not incumbent upon the party assailed by falsehood .and defamation to show malice against himself on the part of the publisher, nor to prove that he has received injury by the publication. The law implies malice in the publisher from the act of publishing the libel; not malice in the sense of spite, antipathy or hatred towards the party assailed, but the evil disposition, the malus animus which induced him wantonly, recklessly or negligently, in disregard of the rights of others, to aid the slanderer in his work of defamation by the potent enginery of the public press, written or printed slander being justly considered more pernicious than that uttered by words only. Neither does the law regard the injury inflicted as being repaired by the subsequent retraction or apology of the publisher, however promptly it may be made, for it is quite reasonable to infer that many may have read the libel who never saw or heard of its disavowal. Nor is the proprietor of a newspaper exonerated from responsibility because the libelous matter appearing in his paper was inserted without his knowledge or approbation, or even against his wishes. He is responsible in damages for the acts of his agents and employes. To the party affected by the slander the injury is the same, whether the publication was made with or without the consent of the proprietor. The ■agent or employe may be an irresponsible person.

In the case of Dole v. Lyon, 10 Johnson’s Reports, Chancellor Kent said: Individual character must be protected, or social happiness and domestic peace are destroyed. It is not sufficient that the printer by naming the author gives the party grieved an action against him. This reason of the rule is mentioned in Lord Northhampton’s case, and repeated by Lord Kenyon. But this remedy may afford no consolation ■and no relief to the injured party. The author may be some vagrant individual who may easily elude process, and if found he may be without property to remunerate in damages. It would be no cheek-on a libelous printer who can spread the calumny with ease and with/ rapidity throughout the community. The calumny of the author-would fa'l harmless to the ground without the aid of the printer. The injury is inflicted by the press which, like other powerful engines, is-mighty for mischief as well as for good.’’

In the case of Huff v. Bennett, 4 Sandford’s Reports 130, it was urged-on the part of the defendant, admitted to be the publisher of the Herald, who was sued for the publication of several alleged libels, that there was no evidence that he had actual personal knowledge of the-publication of the article in question. The court said: “This was.

an immaterial point. The defendant as the proprietor of the papenwas responsible for whatever appeared in its columns, and it was-unnecessary to show that he knew of the publication or authorized it,. This point is well established.”

“ In an action for a libel against the printer of a newspaper, it is not a justification that the publication was made at the instance of a person whose naine was given at the time, and who paid for it in the-usual course of business, though it may go in mitigation of damages.”' 2 Starkie 471, note; 3 Yeates 518; 3 Wash. 246; 1 Bouney 90;. 3 An. 69.

The case of Tresca v. Maddox, 11 An. 206, was an action against the proprietor of a newspaper for damages for a libel. One of the employes of the defendant, at that time the proprietor of the Crescent newspaper, and, as it seems, without the knowledge of the proprietor,, published an exaggerated and inflammatory article, in which the plain-tiff was called a pirate. The answer admitted that the charge was - false — that defendant had been misled by certain police reports — that instantly on discovery of the error, he had retracted it publicly in his - newspaper’, with which plaintiff had expressed himself satisfied. The defendant denied that there was malice in the act of publishing the-statement. The jury awarded a verdict in favor of the plaintiff for-$1000 damages, which was affirmed on appeal. This court said in that - case : “ No express malice was proved. Indeed it may be assumed, that the defendant, when lie made the publication, did not know who-. Captain Tresca was, and therefore could have had no special malice - against him. But in actions of this character malice is often implied.. At common law, if the words spoken or published are actionable (as - if they import an accusation of an indictable offense), malicious intent is an inference of law, and therefore needs no proof. 2 G-reenleaf Ev.. section 418 (4). In this case malice does not mean a spite against the individual, but malus animus, a wanton disposition, grossly negligent of the rights of others. We think the jury might properly have in-ierred such malice under the circumstances of the case. 3 La. 208.

The reparation made by recanting the charges the day after, they were made was proper to be considered by the jury in estimating the amount of damages; but could not, as the appellant contends, exonerate him entirely. The injury had been done. Vox semel emissa nunquam revertit. The slander circulated by one issue of the paper, could not be wholly obliterated by the recantation in another. All who saw the first may not have seen the last. And it is difficult wholly to restore a reputation thus positively and publicly accused of the highest crimes known to the law.” It is urged that the plaintiff is debarred from a recovery by the expression of his satisfaction at the apology and retraction published by the defendant. A bargain of this kind could be enforced under our law as it is competent for the injured party to release his claim for damages. But it must appear that he has released it, or expressly agreed to waive his action for the consideration named.”

In regard to malice, the rule is, that it need not be expressly proved but will be implied if the charge be false. Malice is an imputation of law from the false and injurious nature of the charge, and differs from actual malice or ill will towards the individual, frequently given in evidence to enhance the damages.” 4 Wendell.

On the question of damages recoverable in cases of libel, the doctrine is well settled that: “Actions of slander may be maintained without proving damages, and the party may recover. This doctrine was recognized by this court after a very full argument in the well considered case of Miller v. Holstein, 16 L B. 389. It was there determined that the courts of Louisiana are not bound by the technical and artificial rules of the common law in slander, but where our law is silent we may resort to a foreign system for a rule consonant to reason and equity. In that case it was announced that the court was not prepared to adopt the common law distinction between words actionable in themselves and words which are not so, and to say a plaintiff is not entitled to recover in an action of slander unless charged with an indictable offense, without proof of special damages.” And accordingly it sustained that part of the charge given to the jury in that case which instructed them that “ the [slanderous] words were to be understood in their common and popular meaning, and if they charged the plaintiff falsely and maliciously with moral turpitude, so as to injure his character and standing in society, they might find for the plaintiff, without showing any special damage.”

“In an action of libel, proof of damages from the publication is not necessary to recover. The actual pecuniary damage in such actions can rarely be proved, and is never the sole rule of assessment.” 3 An. 69; 11 An. ¿06.

“In actions of slander plaintiff may recover, though he show no ■special damage. The jury have no fixed rule in assessing damages, and may take into consideration the trouble incurred in seeking Telief.” 14 La. 198. See 15 An. 166 and 3 La. 207 ; 2 Rob. 365; 5 .Rob. 116 and 8 Rob. 51.

By a statute of this State, enacted in 1855, the truth of the slanderous, defamatory or libelous words or matter, for the uttering or publishing of which a party is sued, may be pleaded in justification; and if it shall appear that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted. Revised Statutes 706, sections 3640 and 3641.

We shall now proceed to inquire how far these principles and rules •of the law of libel, collated from various authorities are applicable to the facts presented in this case. About nine o’clock at night three or four men came into the defendant’s office much excited, and one of them, at least, in a state of intoxication. They complained of an outrage which they said had been committed against them at Carrollton, and wanted to publish a card in relation to it. They showed the card *to the managing editor, who advised them not to publish it. They replied that if the card had been brought in by wealthy people, better dressed than they were, there would have been no objection; but, be•cause they appeared to be poor men their card was refused. The •editor finally directed the employe having charge of the advertising department to receive their card, and take their names and residences. The spokesman of the party was under the influence of liquor. The ■advertising editor proposed to alter the phraseology of the card, which he considered ridiculous, but this was vehemently objected to by the parties, who displayed a dictatorial manner, demanding the insertion of the card as it was presented, and this was finally assented to. These ■men were entire strangers to the employes of the office, were coarse in their manners, and they demanded peremptorily the publication of •an article couched in language indicating that their ignorance was in keeping with their effrontery. The next morning, soon after the •article appeared in the paper, the plaintiff went to the defendant’s ■office to complain of the publication. The proprietor of the paper had known nothing of the matter. In conjunction with the plaintiff he used active measures to find the parties who had caused the publication to be made; but after strict search through the aid of police officers, not one of them was ever found. Every thing in relation to them appeared fictitious and mythical. One of them signed the card giving Ms residence No. 413 Frenchmen street. The numbering on the houses in Frenchmen street, it was found did not run as high as 413, and there was no tenement of any kind in that street having that number. Suit was instituted by the plaintiff against all the parties •and by the returns of the sheriff it appeared they were not to be found ■after due and diligent search and inquiry had been made. It turned •out that late in the day, previous and a few hours before they appeared in the defendant’s office to demand the publication of their •card, they had been arrested in Carrollton for disorderly conduct, and taken before the plaintiff, a justice of the peace, who had imposed upon one of them a fine of five dollars.

The defendant avers in his answer that when complaint was made to him by the plaintiff, that the advertisement was false and injurious to him, he caused to be inserted in an editorial article in the Times” newspaper an explanation, which the plaintiff accepted as satisfactory, ¡and in vindication of himself. This editorial is in these words: An •advertisement appeared in the Times yesterday in which Judge Perret, of Jefferson, and the police officers of Carrollton, are charged with ■certain very improper conduct toward five persons, whose names were ¡attached to the advestisement. We are assured by Judge Perret that there is not a word of truth in this card — that he aud the police offi•cers of Carrollton were engaged in the performance of their duties in preserving peace aud order in the cars, where the advertisers were •creating a disturbance, and violating the ordinances of the city and •the laws of the State. If Judge Perret’s statements are correct, the ■advertisers in question have assumed a responsibility by their publication which they have no right to expect us to share with them.”

The plaintiff, by the publication in question, is charged with complicity in the commission of a high crime. The terms used admit of no other construction. This charge is shown to be false aud defamatory. Malice is, therefore, implied as arising from the needless and reckless publication of the advertisement, in wanton disregard of the rights of others. The facts certainly show the culpable want of a prudent respect for the character and feelings of others which should ¡be shielded from falsehood and defamation. On the first presentation of the libelous card, the managing editor, as he states himself, advised ■the parties not to have it published. This clearly shows that he saw the impropriety of its publication, and yet he yielded to the importunities of those men, and permitted its insertion, an act which his first impression aud better judgment did not approve. In the defense of this case much has been said of the liberty of the press, and of the right of persons to make known to the public their wrongs and grievances, and it is asserted as a duty to publish pleas addressed to public •opinion, asking that justice be rendered, and a wiong like that complained of by the parties, who presented their card to the defendant, be condemned by the popular censure and disfavor. The press is set up as a tribunal for the redress of wrongs. The liberty of the press, we concede, is the palladium of civil liberty. It is one of the essentials of a free government. It is a sacred right secured by our organic law j but witli the grant of the right is imposed the obligation to refrain from its abuse. Public journalists, like everybody else, are held to an observance of the proprieties of social life. While the utmost latitude is accorded to them in the discussion of all subjects, and they may freely comment upon the acts and conduct of men as individuals,, to say nothing of the wide expanse of authority to speak faithfully and boldly in (he interests of the people regarding public measures and questions of all kinds that concern the community at large, still there is a limit beyond which this freedom becomes license. It is upon the confines of these that responsibility begins. The law which shields the private character and reputation of an inoffensive person from the assaults of calumny and falsehood, is founded upon a public sentiment of greater power even than that of the free press. It forbids the wanton violation of the sacredness of personal character and good name. In this case no public need required the publication of the offensive card. No public interest was subserved by it. No private wrong was redressed by it, and no good reason existed to suppose there would be. But as the result shows, a wrong was inflicted. A man of respectable character and good report in ihe community, was falsely charged with the crime of robbery; and the charge went forth to the world in the columns of a newspaper having an extensive circulation.

The defendant alleges that no injury could result to the plaintiff by the publication complained of, and sets up reparation made by the editorial article he caused to be inserted in the Times, and which he avers the plaintiff accepted as a satisfactory explanation. The plaintiff may have been damaged in character and standing in society, aud yet be unable to establish it by proof. But we have seen from the authorities already referred to that in actions of libel proof of damages is not necessary to enable the party to recover. 3 An. 69, 11 An. 206-The allegation that the plaintiff accepted the editorial article as satisfaction is not sustained by the evidence. The terms of the article do-not import an acknowledgment of the falsity of the charge made in. the card against the plaintiff. On the contrary they are vague and hypothetical. But the defendant relies principally upon the position that having, at the time the publication was made, reason to believe the statement of the parties signing the card was true, no malice can-be inferred against him, and he relies upon the case of Bodnell v. Osgood, 3 Pickering’s Reports, 384, where it is laid down that “the deliberate publication of a calumny when the publisher knows it to be-false, or has no reason to believe it to be true, is conclusive evidence of malice.”

We have already shown that in a case like the one at bar, the malice implied where the charge is f .l'se is not malice in the sense of hatred or spite towards an individual. It is the act of publishing to the world matter which is false and defamatory. It is the doing of this act with utter disregard to the effect it may have upon the rights, the character, the feelings and the interests of the individual traduced. Conduct of that kind is reprehensible in morals and is held culpable in law. The belief at the time of publishing the falsehood that it was-true can only go according to circumstances in mitigation of the offense, and not to exculpate the party. Upon the defendant’s doctrine even, we' should, in view of all the facts shown in this case, hesitate to conclude that he had good reason to believe the charge against the plaintiff to be true.

This case bears a close resemblance in most respects to that of Tresca v. Maddox, 11 An. 208, which we have adverted to. The case now before us, however, is a stronger one against the defendant.

The evidence in the record is full and clear and enables us to do justice between the parties. We are satisfied from a careful consideration of all the facts that the plaintiff has made out a case which entitles him to damages, and we think the amount should be fixed at five thousand dollars.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the plaintiff, L. Charles Perret, recover from Charles A. Weed, proprietor of the newspaper styled “ The New Orleans Times,” the sum of five thousand dollars, with interest thereon at five per centum per annum from judicial demand, and all costs of suit.

Justice Wyly being absent took no part in this decision.


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    No. 4568.
    Samuel Fisher, Guardian, v. F. D. Tunnard.
    There is no law which directs a book to be kept in the Parish Recorders’ offices for the recording of tutors’ bonds, and this court is not satisfied that the recording of a tutor’s bond in a book kept for the recording of any particular kind of bonds, or for the recording generally of bonds of every kind, would suffice to operate as notice of a minor’s mortgage, where in the same office are kept the books in which the law directs mortgages to be inscribed.
    It has been frequently held that in the country parishes the registry of a mortgage in the conveyance book in which all mortgages and privileges are recorded, is sufficient, if separate books be not kept; but if there be a separate registry of mortgages, the mortgage must be inscribed in it.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      8. P. Greves, for plaintiff and appellant. Fuqua & Callihan, for defendant and appellee.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan,
   Taliaferro, J.

W. F. Tunnard was appointed tutor to Lucy M. Phillips in 1855. His bond as tutor was recorded sixteenth of July, 1855, in Book A of Bonds, in the recorder’s office. The tutor’s final account was homologated on the twenty-first of July, 1865. The judgment of homologation authorized the tutor to execute a mortgage on a certain house and lot in Baton Rouge as additional security. This judgment was recorded in Book of Judicial Mortgages on the twenty-eighth of July, 1865. The special mortgage as additional security was recorded, but the date of the recording is not shown.

Two creditors of Tunnard, thetutor, obtained judgments against him, which were recorded on the twenty-second of July, 1865. Executions were issued on these judgments, and the property specially mortgaged by Tunnard as additional security in favor of the minor, was seized and sold, and the defendant, in this case, became the purchaser. On the decease of W. F. Tunnard, the first tutor of the minor, the plaintiff, Fisher, became her guardian, receiving the appointment in Warsaw county, State of New York. He brings this hypothecary action to enforce the minor’s mortgage against the property mortgaged by the former tutor as additional security for the tutorship. lie alleges that the former tutor qualified in that capacity in 1855, by giving bond according to law, “which bond was duly recorded in the recorder’s office of said parish in the book specially provided for the recording of tutors’ bonds, in order to create a mortgage upon the real estate of tutors, and according to law.”

The defendant denies that the bond of Tunnard, as tutor, was ever recorded in the mortgage records of the parish in conformity with law. He further contends that the judgments under which t'he property was sold, having been recorded prior to the recording of the judgment homologating the account of the tutor, Tunnard, the judicial mortgages resulting therefrom, take precedence of that of the minor’s judgment. Judgment was rendered in favor of the defendant, and the plaintiff has appealed. The prominent question in the case is, did the recording of the tutor’s bond in 1855 in the ‘ Book of Bonds” fulfill the requirements of law in regard to the recording of acts which are to operate as notice to the world of the existence of mortgages'?

' We have not been directed to any law, and we have found none, which directs a book to be kept in the recorders’ offices for the recording of tutors’ bonds. We are not satisfied that the recording of a tutor’s bond in a book kept for the recording of any particular bind of bonds, or for the recording generally of bonds of every kind, would suffice to operate as notice of the minor’s mortgage, where, in the same office, are kept the books in which the law directs mortgages to be inscribed. C. C. 3388, 3390.

, It is shown that in the recorder’s office of East Baton Rouge, separate books are kept for recording the different kinds of martgages. “A legal registry alone gives effect to the mortgage against third persons, as to whom it is valid, not as executed, between the parties, but as recorded ” 2 An. 917. It has been frequently held that in the country parishes the registry of a mortgage in the conveyance book in which all mortgages and privileges are recorded is sufficient if separate books be not kept; but if there be a separate registry of mortgages, the mortgage must be inscribed in it. 2 An. 438, 800; 5 An. 154; 6 An. 162; 2 An. 251. We are not prepared to say there is error in the decision of the lower court.

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


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    No. 4493.
    Doreino Landry, Curator, v. Delas, Lorio & Co. and als.
    The plea of payment admits the existence of the debt, whose continuance will be presumed unless the defendant makes good his plea.
    An administrator exceeds his proper functions when he enters into an agreement with the debtors of an estate to extend the terms of payment beyond that fixed by the original contract. The exercise of such a power by an administrator may be assimilated to acts done by agents which do not come within the purview oí their powers, and which are therefore not regarded as binding on their principals. Therefore the defendants’ plea in this case that they are not bound as sureties on the notes sued upon, for the reason that the plaintiff gave an extension of time to the principals without their knowledge and consent, is not well founded.
    APPEAL APPEAL from the Third (now the Fifteenth) Judicial District Court, parish of Lafourehe. Thamas B. Sherburne, acting Judge in the place of the District Judge, recused.

      Meholls & Leblanc, for plaintiff and appellant. O. Knobloch, Belcher and Louis Bush, for defendants and appellees.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Taliaferro, J.

Two suits under this title, between the same parties, were consolidated and tried together in the court below. Délas, Lorio & Co., in July, 1860, bought at the succession sale of Jean Coutade, deceased, a lot of ground with several buildings upon it in the town ol Tbibodaux, and a large lot of merchandise. The lot of ground with the buildings and improvements upon it was sold on a credit of one and two years. Four promissory notes, each for the sum of $1525, were executed by the purchasers for the payment of the price. Two of the notes were made payable in all the month of March, 1861, and the other two in all the month of March, 1862. The purchasers gave three sureties on these notes who were bound in solido with the principals. For the payment of the price of the merchandise the purchasers, with the same sureties, executed in solido a promissory note for $10,300, payable in all the month of March, 1861. The notes stipulate interest at eight per cent, per annum from their respective maturities. The principals having failed in business and taken the benefit of the insolvent laws, are lost sight of in (hese suits, the object of the curator, the plaintiff in the suit, being to enforce payment of the notes against the sureties.

The defendants answer that they are not bound on the notes, for the reason that the plaintiff gave an extension of time to the principals without their knowledge and consent. They further plead payment and claim the benefit of division and discussion.

Judgment was rendered in favor of the defendants and the plaintiff has appealed.

The defendants’ pleas are inconsistent. The plea of payment admits the existence of the debt, whose continuance will be presumed unless defendants make good their plea. 3 N. S. 273; 12 La. 397; 14 An. 54. An administrator exceeds his proper functions when he enters into an agreement with the debtors of an estate to extend the term of payment beyond that fixed by the original contract. The exercise of such a power by an administrator may be assimilated to acts done by agents which do not come within the purview of their powers, and which are, therefore, not regarded as binding on their principals. We think the judgment erroneous, and that the plaintiff is entitled to have judgment in his favor on the notes sued upon, ¡ ubject to the several credits we think the defendants have established. There are various bills of exceptions in the record. The third, fiftluand eighth relate to admissibility of the testimony of Délas, Lorio and Coynet to establish payments. We think the objections without weight. The defendants had certainly the right to establish the payments they made, and we think they have legally done so. The other bills of exceptions need not be passed upon for the purpose of deciding the case.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the plaintiff recover from the defendants in solido the following sums with interest, subject to the several credits herein below specified, to wit: Fifteen hundred and twenty-five dollars, with interest at eight per ceut. per annum from the first of April, A. D. 1861; the like sum with like rate of interest from the same date; the like sum with like rate of interest from the first of April, A. D. 1862; the like sum with like rate of interest from the same date, first of April, 1862, and also the further sum of ten thousand three hundred dollars, with eight per cent, interest thereon irom the first day of April, 1861; the whole subject to the following credits, viz : The sum of four hundred and eighty dollars, to date and have effect on the tenth of June, 1862 ; the sum of seven hundred and sixty-seven dollars and nineteen cents, to take effect from the thirteenth of August, A. D. 1861; the sum of six hundred and fifty-one dollars and thirty-seven cents, to date and have effect from the thirty-first of August, 1862; the sum of •seventy-six dollars and forty-six cents, to date and have effect from -the first oí September, A. D. 1865; the sum of two hundred and seventy-five dollars and eighteen cents, to date and take effect from ■the first of February, A. D. 1866; and the further sum of three thousand six hundred and sixty-five dollars, to date and take effect from the nineteenth of June, A. D. 1867. It is further ordered that defendants pay costs in both courts.


author: Morgan. J.

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    4492.
    Succession of Jean Baptiste Landry and M. Trahan, his wife, Dorcino Landry, and als v. Eugene Peray, Tutor, for a Partition.
    "Where a note for a certain sum of money was found in the success on o: the father of the maker’s wife, and was alleged to have been given in acknowledgment of an avancement dhoirie to said wife, who subsequently died, leaving minors for her heirs;
    Held — That said note being given in the individual name of the maker must be considered as his individual deb*-, and -s not subject to eolation on the part of the minors in the sue* cession of their grandfather, and that, even admitting said note to have been an acknowledgment of indebtedness by the drawer in. the name of his children, a tutor has no right to make such an acknowledgment.
    APPEAL from the Parish Court, parish of Assumption. A. P. Lawve, judge ad hoe, in place of the parisn judge, recusing himself.

      JR. IF. Sims, for appellee. Niehols & False, IJi/ram H. Carver, for appellants.
    Justices concurring: Ludeliug, Taliaferro, Howell, Wyly, Morgan.
   Morgan. J.

The only question in this case is whether a note for $8375 06, found in the succession of Jean Baptiste Landry, dated seventeenth September, 1861, and signed by Eugene Peray, is tobe colated as an “avancement d’hoirie” to the maker’s wife during her life time, or whether it is an individual debt of the maker.

Mrs. Peray was the daughter of J. B. Landry. She died before her father, leaving minor children. Her father was in the habit of making advances to Lis children in anticipation of their rights in his succession. The note which it is alleged is subject to eolation was given in the individual name of Peray, and must be considered as his individual debt. It is not signed by him as tutor to his children, and if it had been it would not have been binding upon his children. It was not an acknowledgment of indebtedness on the part of the children. The tutor has no right to make such an acknowledgment.

Admitting that the money which is represented by the note was given by Landry to his daughter, and was a debt due by her to him, ■when her father, after her death, took her husband’s note for the debt, he novated it by taking another obligee therefor. The note forms a part of his succession, but it is not an obligation which the mother’s ■children are responsible for.

Judgment affirmed.


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    No. 4588.
    Broaddus, Bettis & Co. v. Nolley, Andrews et als.
    It is no defense to a suit to plead tliat the plaintiff had said to the defendant that he ■would: discontinue his suit if some other creditor would do the same. Such a promise would neither discharge the debt nor bar the action, because an agreement without consideration is not obligatory.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison. Hough, J.

      Thomas P. Farra/r, for plaintiffs and appellants. Wells & Painey and F. JD. Farrar, for defendants and appellees.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Wyly, J.

The plaintiffs appeal from the judgment rejecting their demand against the defendants, the sureties on the bond to release the-property sequestered in the case of the plaintiffs against Neely &- Herrin, No. 681, on the docket of the district court, parish of Madison.

The defense is, that at the time of the sequestration, the property (the cotton) of Neely & Herrin was under provisional seizure to pay the rent of the place on which it was raised; it was released on bond in both cases, the defendants being the securities on said bonds; that J. C. Bettis, of plaintiffs’ firm, stated to Andrews, of defendants’ firm,that he was forced to sequester on account of the said provisional seizure, and that if he would induce the plaintiff in the provisional seizure case to dismiss or withdraw his suit, that Broaddus, Bettis & Co., would do the same; that Andrews accordingly paid the plaintiff in the provisional seizure case, and his suit was dismissed, and he notified Bettis thereof, who again consented to dismiss his suit; that-nothing was done at the fall term of 1870 on account of this agreement; that in February, 1872, the plaintiffs in the case against Neely & Herrin caused judgment to be entered contrary to and in utter-violation of said agreement. >

This defense is supported by the testimony of Andrews and Neely,, and it is flatly contradicted by Bettis, who swears he never made any agreement with Neely or Andrews in regard to the sequestration suit; that “as for making any agreement to take Neely for the debt and releasing Andrews and others on the bond, when I knew he was insolvent, would have been absurd.” The statements of Andrews and Neely are highly improbable, because no prudent man having his debt secured by the bond would consent without consideration to dismiss his suit- and look for payment to an insolvent. But assuming the truth of testimony of Andrews and Neely, we are of opinion that the defense-must fail. It is no defense to a suit to plead that the plaintiff had said to the defendant he would discontinue his suit if some other-creditor would do the same. Such a promise would neither discharge. the debt nor bar the action, because an agreement without consideration is not obligatory.

The defendants, the sureties upon the release bond, do not pretend that the judgment against their principals is not correct, nor do they deny their suretyship.

It is therefore ordered that the judgment appealed from be annulled,, and it is ordered that the plaintiffs recover judgment against the defendants, in solido, for sixteen hundred and seventy-four dollars and seventy-three cents, with five per cent, per annum interest thereon from fifteenth November, 1870, subject to a credit of six hundred and sixty-five dollars and fifty-three cents, on the fifteenth of January,. 1871. It is iurther ordered that plaintiffs have judgment against the-defendants for one hundred dollars, the amount of costs of said suit against Neely and Herrin, and that they pay costs of this suit.


author: Ludeling, C. J.

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    No. 3796.
    Northern Bank of Kentucky and als. v. The Police Jury of Pointe Coupee and als.
    Where in a suit to erase the mortgage of a third party, said party alleged that the mortgaged property had never been individually owned by the debtor of the plaintiffs, and that, even if it had been the property of said debtor, which was expressly denied, the mortgage was binding and operative, and that no valid reason existed in law to have it canceled j
    Held — That the two pleas were not contradictory, and that the judge a quo erred in ruling defendant to elect between them, because it was competent for the party to prove that the property seized not belonging to the debtor of the plaintiffs, they had no right or interest to inquire into the validity of the mortgage resting on it; and because it was also competent for said third party to establish at the same time that the mortgage in Ms favor was valid.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupée. Miller, J.

      JEd-ward Phillips, for plaintiffs and appellees.

      Scwalson <1 Claiborne, for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Morgan.
   Ludeling, C. J.

The plaintiffs having a judgment against Jules Labatut, caused a plantation, situated in Pointe Coupée to be seized, under an execution issued under said judgment, as the property of said Labatut. The plaintiffs then instituted this suit to erase a mortgage executed by Labatut in favor of the Police Jury of Pointe Coupee for the benefit of the Poydras College, for the sum of $23,166 60, on the ground that it had no legal existence.

The defendants in their answers allege that the property “ is and always has been the property of Zenon Porche’s succession, administered by Jules Labatut, dative testamentary executor of the will of Z. Porche, in which capacity alone has he now or has he ever had possession of said mortgaged property. They further alleged that if the property bo “ held to be that of Jules Labatut, and susceptible of mortgage by him individually, which is alleged by said plaintiffs, but which they (defendants) expressly deny, then they aver that said mortgage is binding and operative on the property mortgaged, and that no good and valid reason exists in law why the same should be canceled or set aside.”

The plaintiffs then moved that the defendants be compelled to elect which of the two pleas they would rely upon, on the ground that they were contradictory. The court ordered that the pleas were contradictory, and that the defendants should elect between the two. The defendants took a bill of exceptions to this ruling, and they elected to rely upon the defense that the property belonged to the succession of Porche and not the debtor of the plaintiffs.

On the trial the defendants offered testimony and documentary evidence to prove that the property, seized and claimed by plaintiffs to belong to Labatut, belonged to the succession of Porche as alleged in their answers, which succession was in course of administration in the parish court, and that the defendants were particular legatees under the will for the amount for which the mortgage had been executed; that their legacy was unproved and that there was no other property of the succession out of which said legacy could be discharged, to the introduction of which evidence the plaintiffs excepted on the ground •that the evidence was irrelevant, in this that if the property belonged to the succession, the cancellation of the mortgage could not affect injuriously the succession, and because the defendants having elected to claim as legatees under the will and not under the mortgage, had no interest in opposing its erasure. The court sustained the objections and rejected the evidence. The defendants retained their bill of exceptions.

It thus appears, that in a suit to erase a mortgage of a third partj , that party is forced to elect between two defenses against the action of the plaintiffs, on the ground that they are inconsistent; and that having elected the first they are then not allowed to establish it, because it is not material to the issue presented by the plaintiffs.

We are of the opinion that the defenses set up were not contradictory. It was competent to prove that the property, seized as the properly of Labatut, did not belong to him, to show that the plaintiffs, creditors of Labatut, had no right or interest to inquire into the validity of defendants’ mortgage on said property, and they might at the same time have shown that the mortgage was valid. The property was held by the testamentary executor and the property was in course of administration in the probate court. The executor was also the universal legatee, and he gave the mortgage in question to secure the payment of tlie special legacy in favor of the Poydras College. We •do not consider the defenses inconsistent or contradictory; and the rulings of the judge a quo were erroneous in forcing the defendants to .abandon one of their grounds of defense, and in refusing to allow them to prove that the property belonged to the succession of Z. Porche.

It is therefore ordered and adjudged that the judgment of the lower icourt canceling the moitgage in favor of the Police Jury of Pointe Coupée for the benefit of the Poydras College be annulled, and that this case be remanded to the court a quo to be proceeded with according to law. It is further ordered that the plaintiffs and appellees pay costs of appeal.


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    No. 2540.
    Adam Tate v. Laforest & Desmare.
    "Where defendants received a certain quantity of cotton, sold it, and collected tlie proceeds of tlie sale as commission merchants or factors of the plaintiff;
    .Held — That the debt resulting from :t is a fiduciary one and exempted by the insolvent law from its operation. The money was received in trust for the plaintiff. Defendants, by converting it to their own use, rendered themselves amenable to the criminal laws of the State. It cannot, therefore, be inferred that the insolvent laws of the State intended to discharge a debtor from such a debt, even if it had not been therein expressly excepted.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Randolph, Singleton & Browne, for plaintiff and appellee.
    A. Bitot, for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro, Wyly, Morgan.
   Ludeling, C. J.

The plaintiff sues to recover $2754 83, the net proceeds of cotton shipped by them to the defendants, as factors and commission merchants.

The defendants admit the correctness of the debt, but they claim that they have been discharged from the obligation to pay it by proceedings in insolvency.

On behalf of the plaintiff it is contended that the proceedings, as to the plaintiff, are null and void for want of citation, and that the debt was created in a fiduciary capacity, and that the insolvents were not released from such a debt.

The evidence satisfies us that Laforest & Desmare' received the •cotton as the commission merchants or factors of the plaintiff, and as such, sold the cotton and received the proceeds of the sale. The debt is, therefore, a fiduciary debt, and the insolvent law exempted such a debt from its operation. The defendants received the money for account of the plaintiff and held it in trust for them. By converting it to their use, they rendered themselves amenable to the criminal laws of the State. It could not therefore be inferred, that the insolvent laws of the State intended to discharge a debtor from such a debt, even, if it had not been expressly excepted in the law. The benefit of the insolvent laws is intended for the honest, but unfortunate debtor-4 La. 55; 1 M. 159.

We think the judgment in favor of the plaintiff for the sum claimed! is correct.

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