author: Morgan, J. Wyly, J.,

text:
    No. 5908.
    State of Louisiana ex rel. Attorney General vs. Charles Clinton, Auditor, and Antoine Dubuclet, Treasurer. Frank Morey, Intervenor. The Funding Board made Party Defendant.
    Prom tlie pleadings in this ease, and from the evidence in the record, it is unquestionable:
    Hirst — That the bonds, which are the subject of this controversy, wore issued under and by virtue bf legislative authority.
    Second — That the proceeds thereof went into the State Treasury, and were appropriated for a purpose vital to the interests of the public.
    Third — That the bonds in suit are in the hands of a bona fide holder, who purchased them in open market, and for a valuable consideration; and that the acts under which they were issued are not unconstitutional.
    Therefore, the intervenor, Prank Morey, is entitled to have the bonds in question ■ funded by the Funding Board according to law.
    from the Superior District Court, parish of Orleans. Haw-Idns, J.

      A. P. Field, Attorney General, J: B. Cotton, and J. Q. A. Fellows, for plaintiff and appellee.

      John Bay and C. T. Bemiss, for inter-venor and appellant.
   Morgan, J.

The Attorney General avers that under act No. 35 of the session of 1865 the Governor was authorized to issue, and did issue, one thousand bonds of one thousand dollars each, payable in twenty years, bearing interest at eight per cent per annum, the interest payable semiannually, to defray the expenses of building levees in accordance with contracts which had been made by him and'the levee commissioners, which bonds were to be sold, if possible, after thirty days notice, at par, and if not sold within that time, that they could be jfiedged for loans in order to carry out the provisions of the law; that said bonds were executed and delivered to the Board of Levee, Commissioners as follows: One hundred, dated sixteenth of February, 1866 ; eighteen, dated tenth of March, 1866 ; five hundred and six, dated fourteenth of March, I860; one hundred and sixty-five, dated twentieth of March, 1866 ; two hundred and eleven, dated first of July, 1866.

That during tho summer of 1866 two hundred and eighteen of these bonds had been taken to New York for sale, but a sale not having been effected, were left there on deposit; that the remaining seven hundred and eighty-two bonds had been pledged, under the law, by the Board of Levee Commissioners on the first of September, 1866, as follows: Seventy-eight to Pike, Lapeyre & Brother, fifteen to the City National Bank, four hundred and ninety-eight to Forstall & Delassus, one hundred and thirty-three to Abat & Generes, forty to the Citizens’ Bank, and twenty-one to sundry insurance companies, three 'bonds to each company, less three bonds pledged to the Louisiana Mutual Insurance Company, redeemed- in June, 1866, and included in the two hundred and eighteen sent to New York for sale; that in October, 1866, six bonds (throe each) pledged to the Crescent and Citizens’ Mutual Insurance Companies were •redeemed, and the two hundred and eighteen sent to New York were returned, making in all two hundred and twenty-four bonds which were, on the fourteenth of December, 1866, exchanged by the Board of Levee Commissioners with the then Treasurer and Auditor for a like amount (two hundred and twenty-four thousand dollars) in State notes, otherwise called certificates of indebtedness.

That on the fifth of January, 1867, tho four hundred and ninety-eight bonds pledged to Forstall & Delassus were redeemed, and on the ninth of January, 1867, four hundred and seventy-six of the same were exchanged for State notes or certificates of indebtedness to an equal amount, which seven hundred bonds were from that date in the State treasury, or under tho control of the Treasurer and Auditor.

That said exchange of State notes for said bonds, or, in other words, the redemption of said bonds to the extent of seven hundred thousand dollars, though done without authority by tho Treasurer and Auditor, was subsequently ratified by act No. 117 of tho acts of 1867.'

• That on tho nineteenth of January, 1867, tho twenty-two bonds then in the hands of the Levee Commissioners and not exchanged with the Auditor and Treasurer were pledged by the Board of Levee Commissioners to the Citizens’ Bank, the disposition of said bonds being c n tho nineteenth of January, 1867, as follows: Seven hundred bonds in the treasury, and three hundred bonds pledged for loans made by the Levee Commissioners, as follows: to Abat & Generes, one hundred and thirty-three bonds; to Pike, Lapeyre & Brother, seventy-eight; to tho City National Bank, fifteen; to the Citizens’ Bank, sixty-two, and to sundry insurance companies, twelve.

That under act No. 35 of tho acts of 1867, authorizing the return of one hundred and fifty thousand dollars from the general to tho levee and drainage fund, the Treasurer, on the second of March, 1867, pledged throe hundred and thirty-two of these bonds to Pike, Lapeyre & Brother, and under act No. 88 of acts of 1867, authorizing the Treasurer to borrow fifty thousand dollars, he (the Treasurer) pledged seventy-five of these bonds to the Citizens’ Bank.

That the first of these acts authorized the loan to be made for sixty or ninety days, and the second to be for thirty or sixty days, said loans to be repaid out of the taxes and revenues as the same shall come into the general fund. •

He avers that the redemption of the bonds as aforesaid extinguished the same to the extent of seven hundred thousand dollars, and that the provisions of act No. 35 of 1867, authorizing the pledge of the three hundred and thirty-two bonds for the loan of one hundred and fifty thousand dollars was unconstitutional, the object of the loan not being named in the title to said act.

He avers that on the twenty-sixth of March, 1867, two acts of .the Legislature were passed, one, No. 115, authorizing the issue of four million dollars of bonds for levee purposes, and act No. 116, repealing act No. 35, of December, 1865, which authorized the issuing of one million dollars of levee bonds, and directing the Auditor and Treasurer, in the presence of the Governor and Secretary of State, to cancel all the bonds of the one-million-dollars issue in the hands of the Levee Commissioners, which they were ordered to return as well as those in the treasury, to wit: two hundred and ninety-three bonds, and those which then might be held in pledge, to wit: four hundred and seven bonds; that by the provisions of these laws ample means had been provided to redeem all those bonds which were in pledge for loans by the State, by way of first taxes coming into the general fund, and as to those loaned by the Levee Board, by the bonds soon to be placed in their hands known as the four-million-dollars issue of levee bonds ; that the two hundred and ninety-three bonds, by the act No. 110, became extinguished, null, and void, and those in pledge from the. moment they should be redeemed; that all said bonds then in pledge could and should have been redeemed before the expiration of the year 1867, and that they would have been, had the Auditor and Treasurer not been grossly derelict in their duty.

He avers that all these bonds, so far as they were in the treasury, instead of being canceled, were again re-issued, either .as pledges, or sold, and that those which had been pledged were suffered to be sold, and that they are now uncanceled.

He avers that under the provisions of act No. 122 of 1867, for the purpose of borrowing two hundred and fifty-thousancl dollars, two hundred and twenty of these bonds were, on the eleventh of April, 1867, pledged to Smith, Newman & Co.; sixty bonds, on the third of April, 1867, were pledged to the Canal Bank; and that on the twenty-eighth of March, 1867, ten bonds were pledged to the Citizens’ Bank. He avers that it is pretended that one hundred and sixty-seven of these bonds were sold by authority of act No. 123 of 1869, because the same were alleged to be in, pledge, when, in fact, they were in the vaults of the treasury, and should have been destroyed two years previous "to the passage of the act, and that three other bonds were disposed of under act No. 58 of 1869, which bonds should also have been canceled, and that they were in law canceled on the twenty-sixth of March, 1867.

He avers that none of the bonds which had been pledged were redeemed or canceled, as was required by act No. 116 of 1867, but that, in. violation of that act, were pretended to have been sold or suffered to be sold, as follows: one hundred and thirty-three bonds, held by Smith, Newman & Co., on the eleventh of March, 1868, for $37,959 20; the three-hundred and thirty-two bonds held by Pike, Lapeyre & Brother on the twenty-seventh of July, 1868, for $129,631 30; the eighty-five bonds redeemed from the Citizens’ Bank, three redeemed from the Canal Bank,, and three which had never been pledged, were, on the twenty-ninth of March, 1869, sold by the Treasurer, pretending to act under authority of act No. 58, approved March 5, 1869, with $30,800 of past due-coupons, for $74,165; -the two hundred and thirty bonds pledged to Smith, Newman & Co. on the fifth of June, 1868, for $64,300; the fifty-seven bonds pledged to the Canal Bank on the twenty-second of August,, 1868; for thirty thousand dollars; and one hundred and sixty-seven bonds, were sold by the Board of Public Works and the State Treasurer, under the authority of act No. 123 of 1869, for $125,513 89; making a total receipt from the sale of these bonds, with past due coupons attached, of $461,559 39, and not for a sufficient amount to pay the interest on the loans and the interest on the bonds at that time' already paid by the State, all of which was in defiance of the law ordering their cancellation, and when there was ample means in the hands of the officers of the State having custody of the same to carry out the law’s mandate with regard to them.

He avers that all of those bonds, except the one hundred and thirty-three pledged to Abat & Generes, the three hundred and thirty-two pledged to Pike, Lapeyre & Brother, and the seventy-five pledged to the • Citizens’ Bank, and that the other four hundred and sixty bonds were either in the hands of the Treasurer at the time of the passage of the act No. 116 of 1867, or were subsequently redeemed and came into his possession free from pledge, and should have been and were in contemplation of law canceled and destroyed, and are in no way, in law or good morals, binding on the State.

He prays that the Auditor bo enjoined from warranting on the Treasurer and the Treasurer enjoined from paying any of the bonds or interest coupons thereto attached issued under act No. 35 of 1865.

Tho injunction issued as prayed for.

Morey intervened in this proceeding. Ho averred that he is tho holder of twenty of the bonds issued in conformity with the provisions of act No. 85 of 18G5, with the coupons of interest thereto attached; that he purchased them years before this suit was brought, in open market, in the usual course of trade, and for full market value; that he has presented his interest coupons to the Auditor and to the Stato Treasurer for payment, which has been denied to him on account of tho injunction obtained by tho Attorney General. He prays that the injunction be dissolved, and that the Auditor bo ordered to audit and the Treasurer to pay the interest coupons which he holds.

Subsequently ho made the Funding Board a party to the suit, and ho prays that that board bo ordered to fund his bonds according to tho provisions of act No. 8 of 1874, known as the funding bill.

To this intervention tho Stato answers,1 admitting the issue of ono thousand bonds of one thousand dollars each, under act No. 35 of 1865, as described in tho intervention of Morey, for the purpose of building levees, hut denies that any of tho bonds were legally sold or parted with-by the Stato or by any person authorized to sell the same. 'It is averred that by act No. 115, approved March 26,1867, providing for the issue of four million dollars of bonds for the building and repair of levees, ample provision was made for the objects contemplated in act No. 35 of 1865, and for tho redemption of such bonds as might be out on pledge under the provisions of that act, and act No. 116, passed tho same day as act No. 115, required the Stato Treasurer and Auditor, with the Governor, to cancel and destroy all of tho ono thousand bonds issued under act No. 35 of 1865, and that these bonds wore, from the approval of acts Nos. 116 and 115, null and void, and incapable of being issued.

Tho foregoing are the pleadings in the case, and we have detailed them at length in order that tho issue between the parties may bo fairly and distinctly seen.

From these pleadings and from tho evidence in the record it is unquestionable —■

First — That tho bonds were issued under and by virtue of legislativo authority.

Second — That tho proceeds thereof went into the Stato treasury and were appropriated to a purpose vital to tho interests of the public.

Third — -That the bonds in suit are in the hands of a bona fide holder, who purchased them in open market and for a valuable consideration.

By act No. 35 of the'session of 1865, entitled an act to authorize the Governor to issue the bonds of the State for the amount of ono million dollars, and to provide for the sanio, to defray the expenses of building levees in accordance with tho contracts made by him and the levee com missioners appointed for that purpose, tlio Governor was authorized to issue the bonds of the State to the amount of one million dollars, payable in twenty years; the sale of these bonds was to be advertised for thirty days, the Governor and' Board of Commissioners having the power to accept or reject the bids from the general fund to the levee or drainage fund, and to appropriate the same to levee purposes. The Treasurer was authorized to return from the general fund to the levee and drainage fund one hundred and fifty thousand dollars borrowed from that fund by act No. 45 of 18G3. One hundred and fifty thousand dollars was appropriated for the purpose of paying sums then due to laborers upon the levees from the money to the credit of the levee and drainage fund, returned by this act; should there be no funds in the State treasury available for the purpose of the act, the Auditor and Treasurer were authorized and it was made their duty to borrow, for sixty or ninety days, as they might deem best, the said sum of one hundred and fifty thousand dollars then appropriated, and they were authorized to pledge as collateral security for said loan so much as may be necessary of the seven hundred thousand dollars of bonds of the State issued in accordance with the act of the twenty-second of December, 18G5, which bonds were then in the treasury of the State.

By act No. 115 of tlio twenty-sixth of March, 1867, the Governor was authorized and directed to issue bonds of the State to the amount of four million dollars, to provide means for the construction of levees.

By act No. 116 of the twenty-sixth of March, 1867, the act of the twenty-second of December, 1865, which authorized the Governor to issue bonds to the amount of one million dollars, was repealed, and by the same act the Board of Levee Commissioners wore to surrender bonds to the amount of seven hundred thousand dollars, issued to them under the provisions of the act of tlio twenty-second of December, 1805, to the Auditor and Treasurer, who, in the presence of the Governor or Secretary of State, wore to cancel and destroy the same, as well as the bonds of the same issue then in the. treasury, and also the bonds of the same issue which may have been pledged to borrow money under the provisions of law.

By joint resolution of the twenty-eighth of March, 1867, two hundred and fifty thousand dollars were appropriated to meet any danger of crevasses to the levees, and the State Treasurer was authorized to pledge the bonds then in the treasury for the purpose of borrowing the money which might be necessary to carry out the appropriation.

There is no dispute, or at all events it is undeniable, that all the bonds referred to in the different acts which we have quoted from, regarding bonds in the treasury, were bonds issued originally in pursuance to act No. 35 of 1865, and it is equally undeniable that whenever they wore issued and re-issued after having come again into the treasury, it was under the positive direction of the Legislature, and always for works of public utility.

It is not disputed that the Legislature had the power to issue the bonds under act No. 35 of 1865, but it is contended that they were not legally sold or parted with by any person authorized by law to sell the same. They were pledged in conformity with the laws which authorized this proceeding, and they were sold by the pledgees as they were 'authorized to sell them, when the debt for which they were pledged was due and unpaid.

It is claimed on the part of the State that the act No. 115 of the twenty-sixth of March, 1867, providing for the issue of four million dollars of bonds, made ample provision for the objects contemplated by act No. 35 of 1865, and for the redemption of such bonds as might be out on pledge under tho provisions of that act.

But the bonds in question were issued in pursuance of tho joint resolution passed on the twenty-eighth of March, 1867. The act No. 115 was evidently intended to enable a great work to be carried on; the joint resolution woiild seem to have been tho result of a sudden exigency requiring prompt and immediate action. At all events there is nothing contradictory in them, and if there were, the resolution being of later date would govern. It is, however, urged that act No. 116 of the twenty-sixth of March, 1867, repealed the act of the twenty-second of December, 1865, and that as the bonds issued under that act, which were then in the treasury, were ordered to be canceled and destroyed, tho joint resolution passed two days later could not bo carried into effect. In other words, that because tho bonds were ordered to be canceled, therefore they were canceled. But presumption must give place to facts, and the facts are that they were not canceled, but on the contrary were ro-issuod.

The power of tho Legislature to re-issue tho bonds after .they had come back into the treasury has been denied, but it seoms to us that if the Legislature had the power (which is not denied) to issue any bonds at all, it is a matter of indifference, when she orders them to be issued, whether they be bonds newly printed or whether they be her bonds issued at a former date, and which have been returned to the treasury and which have not been canceled.

But the State contends that the bonds now in suit were issued under the third section of act No. 35 of 1867, and that this section is unconstitutional because its object is not expressed in its title. Of this opinion was tho district judge, and it was for this reason that he dismissed the intervenor’s claim.

The object or objects of a law must be expressed in its title. Constitution, article 114. The title to act No. 36 reads as follows: “An act to authorize the return of one hundred and fifty thousand dollars from the general fund to the levee and drainage fund, and to appropriate tho same for levee purposes.”

Here were two objects, viz.: First, to return a certain sum of money from one fund to another; and, secondly, to appropriate that sum for levee purposes. Tho first section of the act authorizes the return of the fund to where it belonged; tho second section made tho appropriation. The third section authorizes the borrowing of tho money appropriated, and directs that bonds shall bo pledged to secure the payment of the amount borrowed.

Wo regard the third section of this act as a mere incident to tho second section. Tho appropriation was made by the second section, and the third section merely provided the means by which the appropriation might be obtained provided there was no money in the treasury with which to pay it. The object of tho bill was the appropriation, and that is certainly and in terms set out in tho title.

Therefore considering —

First — That the bonds in question were issued under and by competent authority;

Second — That the proceeds thereof, when disposed of, went into the treasury to be appropriated to legitimate purposes;

Third — That the acts under which they were issued aro not unconstitutional; and

Fourth — That they are in tho hands of a bona fide purchaser for value;

It is now ordered, adjudged, .and decreed that the judgment of the district court bo avoided, annulled, and reversed, and that there bo judgment in favor of the intorvenor, Frank Morey, and that the defendant, tho Funding Board, be ordered to fund tho bonds in question according to law.

Wyly, J.,

concurring. In my opinion tho third section of act No. 35 of the acts of 1867 is unconstitutional, because it is not covered by the title.

I placo my concurring opinion, however, on the grounds that the bonds were lawfully issued to the Board of Levee Commissioners under act No. 35 of the acts of 1865; that Pike, Lapeyre & Brother acquired them in good faith, and for value in pledge, on the second of March, 1867, four days before the passage of act No. 116 of the acts of 1867, repealing act No. 36 of tho acts of 1865, under which they were issued; that at the time Pike, Lapeyre & Brother acquired these bonds, the exchange of State notes for bonds made by tho State Treasurer with the Board of Levee Commissioners was unlawful, it not having been ratified by the State; that these bonds had not of right been returned into the treasury, although in possession of the Treasurer; that the latter being the holder of these bonds, lawfully issued by the State, could make a valid pledge of them to a buna fide lender of money on the faith thereof; that Pike, Lapeyre & Brother so acquired them; that these bonds were subsequently sold in open market, before due, for their market value, to Frank Morey, and that as the State derived a valuable consideration, the rights of Morey, tho purchaser, should be respected and upheld. As those bonds wore never returned into the treasury, they never came under the operation of tho act No. 116 of the acts of 1867, ordering them to be canceled. Without expressing any opinion as to the balance of the one-million levee issue, as they are called, I agree that the twenty of said issue of one thousand dollars each, held by the intervenor, Frank Morey, are valid obligations of the State, and should be funded. As the validity of the intervenor’s bonds are the only ones in question in the case now presented, the decision rendered can extend to no others.

I therefore concur.

See 21 Wallace, 138, 321, 354.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 6083.
    Edward J. Gay & Co. vs. Charles Nicol, Sheriff, et al.
    E. J. Gay & Co. have enjoined the sale of ten hogsheads of sugar seized in December, 1K71, by abridgment creditor of william P. Burton, the lessee of the Areola plantation. The injunction is on tho ground that they are tho owners of tho sugar; that, by a verbal agreement in tho early part of that year, made by them with Burton, with tho knowledge and concurrence of Burton’s lessor, they, at their own cost, cultivated tho plantation that year as owners of the crops produced. Tlieleaso between Burton and his lessor was a notarial one, and recorded. E. J. Gay, under the verbal agreement with Burton, wont on the plantation, took possession, and controlled its administration. Subsequently he constituted Burton his agent, representative, and manager, furnished all the supplies, and the whole crop was shipped to sajd Gay & Co.
    It is nocossary to allego fraud and simulation in order to introduce evidence to that effect.
    The objection of the defendants, based on tho ground that the verbal agreement between plaintiffs and Burton should, to affect third persons, have been reduced to writing and recorded, is of no weight in the present case. An incorporeal right only was transferred. Tho transfer was a lease — the right to E. J. Gay & Co. to cultivate the plantation that year for their own benefit. There was no debtor to give notice to as required by the Civil Code, article 2G93, but the notice of the transfer was given to the lessor, and approved by him.
    A PPEAL from tlie Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.

      Merrick, Hace & Foster and E. W. Blake, for plaintiffs and appellees.

      T. 8. Goode, John 8. Billleu, T. L. Winder, for defendants and appellants.
   Taliaferro, J.

This is an injunction suit. Adolphe Perrin, a judgment creditor of William P. Burton, the lessee of the Areola plantation, issued execution and caused to be seized, in December, 1874, ten hogsheads of sugar produced that year on tire Areola place, and was proceeding to have the sugar sold when E. J. Gay & Oo. enjoined the sale, on the ground that they were the owners of the sugar; that by a verbal agreement entered into in the early part of that year by them with Burton, with the knowledge and concurrence of Burton’s lessor, they, at their owir cost, cultivated the plantation that year as owners of the crops produced. The defendant in injunction puts in a general denial, and avers that Burton was the lessee of the Areola plantation during the year 1874, and that he held himself out to the world as such. The defendant prays a dissolution of the injunction, with damages. Judgment was rendered in favor of the plaintiffs, and the defendants appealed.

The facts se'em to be that Burton had been the lessee of the plantation for several years prior to 1874; that in the year 1871, on the expiration of a former term, the lease was renewed and extended to the end of the year 1874. This lease was by notarial act, and recorded in the parish of Lafourche. On the trial, Perrin, by his counsel, introduced certain interventions made by E. J. Gay & Oo. in two suits against Burton, by judgment creditors of his, wherein they seized under execution mules belonging to Burton which had been sold to him by E. J. Gay & Oo., and the price of which had not been paid. In these interventions the defendant in injunction aims to show that E. J. Gay & Oo. set forth that Burton was the lessee of the Areola place in 1874, and that they alleged that on the seventh of May, 1874, they sold thirty-five head of mules to Burton on credit, and that they claimed the vendor’s privilege on the proceeds of the sale of the mules. The defendant contends that by these declarations of E. J. Gay & Oo., made in their interventions and third oppositions, claiming the proceeds of the sale of the mules, are judicial admissions that Burton was the lessee of the Areola plantation, and that they are estopped from setting up that by the verbal agreement alleged by them to have been made with. Burton and Burton’s lessor, Nelson, in January, 1874, they took possession of the plantation and cultivated it on their own account that yean

It is clear from one of these interventions that the mules were sold by E. J. Gay & Co. to Burton in 1873, and not on the seventh of May, 1874, the date “ 1874” being manifestly a clerical error. In the same act, E. J. Gay & Co. specially declared that the sale of the mules made by them to Burton was recorded in the parish of Lafourche on the sixth of July, 1873, to preserve their vendor’s privilege. The order of the judge on their petition of intervention was rendered on the seventh of February, 1874. From the context of these documents it is clear that the sale of the mules took place on the seventh of May, 1873, and not on the seventh of May, 1874.

The plea of estoppel we think is not well founded. It is clear from the testimony that E. J. Gay & Co., under the agreement made with Burton and his lessor, took possession of the plantation through E. J. Gay, who went on the plantation and exercised possession and entire control of the business; that he subsequently constituted Burton his agent, representative, and manager; that E. J. Gay & Co. furnished all the supplies for the plantation, and the whole crop was shipped to them. It would seem from the examination of witnesses that the defendants were aiming to show fraud and simulation between the parties making the verbal agreement in regard to the cultivation of the Areola plantation in 1874. They have not alleged fraud and simulation in their pleadings. It was necessary they should have alleged fraud and simulation in order to introduce evidence to that effect. But fraud and simulation are not al-, leged and not shown. There is no evidence tending to show want of good faith and fair dealing in the parties entering into the agreement, which may be considered as bearing the character of an inchoate contract. Gay & Co. were to make the crop of that year on the Areola plantation for their own account and at their own expense, and, after reimbursing themselves for all outlays and expenditures incurred in making and gathering the crop and getting it to market, if any excess should remain, it should be applied to the payment of a pro-existing debt due them by Burton, and, on the other hand, if loss should result, it was to fall on E. J. Gay & Co. The objection by the defendant that this verbal agreement should, to effect third persons, have been reduced to writing and recorded, is of no weight in the present case. An incorporeal right only was transferred. The transfer was a lease, the right to E. J. Gay & Co. to cultivate the plantation that year for their own benefit. There was no debtor to give notice to as required by the Civil Code, article 2643, but the notice of the transfer was given to the lessor and approved by him.

There are several bills of exceptions in the record which.it is not necessary to examine.

We find no error in the judgment.

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

Rehearing refused.


author: Moe&an, J.

text:
    No. 4111.
    Henry G. Jeter vs. D. B. Penn.
    Plaintiff claims that ho was a sort of partner of the defendant’s in working two plantations, and that he could not be discharged. But he can not bo maintained in this position, for there were nono of the elements of a partnership in their agreement. Hp was neither to receive any of the profits, nor share in any of the losses, of the enterprise. He was merely to receive a certain portion of whatever crops might be made on the plantations, irrespective of any profits which the crops might result in. He was therefore a mere employee, to be paid in a portion of the crops, instead of a certain sum of money. Therefore, being an employee, ho could be discharged for cause.
    Plaintiff was employed by reason of his knowledge and skill. He certainly had no right, under pretense of bad health, to delegate his trust to another without the consent of his employer. His being unable to attend properly to the business for -which he was employed justified his discharge.
    The defendant’s plea that plaintiff is ontitled to nothing, has no force. As defendant retained plaintiff in his employ for some time, he must pay him for the time of his employment in proportion to the value of the crops, under their agreement. The proportion is to be established by the amount for which the crops sold, his demand having been instituted before the crops were gathered, and when the results thereof were conjectural. The proper method of ascertaining his rights is to divide the sum total of the crops by the number of day's in the year, and to allow him his share according to the number of days ho was in the defendant’s employ.
    ' A PPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Lcibatl <£ Aroni for plaintiff and appellee.

      Finney & Miller, for defendant and appellant.
   Moe&an, J.

In January, 1871, defendant employed the plaintiff to manage two plantations in the parish of Tensas. The terms of the plaintiff’s employment were that he was to receive one-thirteenth of the product of the two places, besides being furnished with provisions for himself and family, a cook, washerwoman, and fuel.

On the second of May following he was discharged, and on the fourteenth Novcmoer, 1871, he instituted this suit claiming from the defendant §2484 33 as his share of the crops which would come into the defendant’s possession, including expenses which he was put to, and which ho claims that the defendant owes him. He had judgment for §1463 73, and the defendant appealed.

Defendant justifies his action in the premises on the ground that plaintiff’s health was such as to prevent him from properly discharging his duties. He also alleges want of attention on the defendant’s part to his duties, and serious loss as the consequence thereof.

Plaintiff admits (indeed, he alleges it in his petition,) that he was ill, but says that the work which he had undertaken to do had been performed by his son and an assistant, under his directions.

Defendant contends that the work on the plantations was not properly carried on, and that he suffered serious loss by reason of his incapacity and inattention to the business confided to him, and that when he was discliarged his physical maladies and disabilities were such as unfitted and disabled him from performing any service whatever on the plantations. v-

Plaintiff claims that he was a sort of partner of the defendant’s, and that he could not be discharged.

He can not be maintained in this position, for there were none of the elements of a partnership in their agreement. He was neither to receive any of the profits nor share in any of the losses of the enterprise. He was merely to receive a certain portion of whatever crops might be made, on the plantations, irrespective of any profits which the crops might result in. He was, therefore, a mere employee, to be paid in a portion of the crops instead of a certain sum of money. Being an employee, he could be discharged for cause.

Did the defendant have cause to discharge him ? He contends not. .

First, he says that the business of the plantations was conducted by his son, assisted by another person, under his direction. But it seems to us evident that in this position he can not be maintained. Plaintiff contracted with him, and not with his son. He was employed by reason of his knowledge and skill, and he certainly had no right to delegate his trust to another without the consent of his employer. He says that the work was done under his directions, but we do not believe that a .man confined to his house by sickness can carry on the business of a plantation. Next, he says that his sickness was only temporary, and the testimony does show that he recovered.

But it is also established that from January, when he took charge of the plantations, up to the time when he was discharged, ho was ill, and unable to attend to his duties.

The defendant, under these circumstances, was, we think, justified in discharging him. He says that this was adding cruelty to misfortune. But we think his being unable to attend properly to the business for which he was employed justified his discharge. The physicians who were in attendance upon him were of the opinion that he would soon bo restored to health, and the evidence is that he was restored to health. But the necessity for active exertions in order to secure the crop which was then under way was urgent, and we do not think that the defendant urns called upon to wait for an event which might or might not happen, and which, if it did not happen, would result to the detriment of his interests. We must judge of his rights at the time he exercised them, and upon this point we are clear that he had the right to discharge him when he did.

The defendant claims that plaintiff is entitled to nothing, but we think that, as he retained him in his employ, he must pay him for the time of his employment in proportion to the value of the crop, under their agreement. This proportion is to be established by the amount which the .crops sold for, his demand having been instituted before the crops were gathered, and when the results thereof were conjectural.

One plantation produced $10,759 19; the other $8103 40; total, $18,898 59. If he had remained in charge of the plantations his share would have been- $1453 73, and this is what the district judge allowed him. But we think he is only entitled to his proportion up to the - time when he was discharged, and we think that the proper method of ascertaining his rights is to divide the sum total of- the crops by the number of days in the year, and to allow him for the number of days he was in the defendant’s employ. His service commenced on the first of January and ended on the second of May, which would make one hundred and twenty-two days. This would entitle him to four hundred and eighty-five dollars and ninety cents.

. It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended by reducing the amount thereof from .$1457 75 to four hundred and eighty-five dollars and ninety cents. As thus amended, the judgment is affirmed, appellant to pay the costs in tlio lower court, these of this court to bo paid by appellee.


author: Wyly, J.

text:
    No. 6135.
    Mrs. Mary B. Locke, Wife of A. Maureau vs. Lafitte, Dufilho & Co., acting for Marmillion.
    Tlio defendant, Marmillion, who parted with his money and acquired'tho mortgage note, executed under the authorization of the judge of the Second District Court, and which plaintiff prays to be declared null and void and returned to hor, must be protected in his rights, and the objection sot up by said plaintiff to the certificate that the judge did not state therein that lie had examined her separate and apart from lier husband, can not avail.
    The certificate of the judge was authority for drawing the act of mortgage, and although it docs not stale that he examined the plaintiff separate and apart from her husband, the presumption is he did his duty, that lie examined hor separate and apart from hor husband as required by law, Hence the obligation of the plaintiff is valid.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Breaux, Fenner & Hall, for plaintiff and appellee.

      J. L. Tissot, for defendant and appellant.
   Wyly, J.

Plaintiff, a married woman, sues the defendants, the holders of her moftgago note, to have the same decreed void and returned to hor, on the ground that she executed the same rmder marital influence, and that the loan of money obtained thereon did not inure to her separate benefit, but said money was used by hor husband for his own purposes.

Defendant, Marmillion, discounted the note and acquired it for value before due.

The mortgage was granted on the authorization of the judge of the Second District Court, his certificate reciting that “ said lady having been by me examined touching the object for which said debt is to be contracted, and she having satisfied mo that the same is for her separate advantage and benefit, I do by these presents grant my sanction,” etc.

We think that the defendant Marmillion, who parted with his money and acquired the mortgage note executed under the authorization of the judge as aforesaid, should be protected in his rights, and that the objection set up to the certificate, that the judge did not state therein that he had examined the plaintiff separate and apart from her husband, can not avail. The certificate of the judge was authority for drawing the act of mortgage, and although it does not state that he examined the plaintiff separate and apart from her husband, the presumption is he did his duty; that he examined her separate and apart from her husband, as required by article 127 of the Revised Code. Whether he did or not, the defendant parted with his money when he discounted the note on the faith of the mortgage executed under a valid authorization of the judge, and his rights must be protected. 26 An. 418.

It is therefore ordered that the judgment herein be annulled, and it is decreed that the mortgago note heroin is a valid obligation of the plaintiff, and that plaintiff’s demand be rejected, with costs of both courts.

Rehearing refused.


author: Moegan, J.

text:
    No. 6236.
    A. W. Hyatt vs. Police Jury of the Parish of East Feliciana.
    Plaintiff had j udgmont for fifty-four dollars, tlie amount claimed, but the parish judge refused to order an assessment to be made on the tax-roll because he said that the police jury of the parish had already levied the maximum tax allowed by the eighth section of the act of 1870, No. 08, and under act No. 17 of 1872.
    The legality of a tax, toll, or impost, fine, forfeiture, or penalty imposed by a municipal corporation, not being at issue here, this court is without jurisdiction.
    APPEAL from the Parish Court, parish of East Feliciana. Lyons, J.

      D. L. Wedge and T. A. Mooi'e, for plaintiff and appellant.

      F. J). Brame, Kilbovrne & Me Vea, for defendant and appellee.
   Moegan, J.

Article sovonty-four of the constitution gives to this court appellate jurisdiction in all cases in which the constitutionality or legality of any tax, toll, or impost of any kind or nature whatsoever, or any fine, forfeiture, or penalty imposed by a municipal corporation shall be in con-testation, whatever may be. the amount thereof. Plaintiff sued the parish of East Feliciana in the parish court for fifty-four dollars, with five per cent interest from the twenty-ninth of October, 1874, for books sold to the parish for the use of the recorder’s office of that parish. He prayed that the tax collector be ordered to assess and collect a sufficient per centagc upon the tax-rolls of the parish to pay and satisfy his demand.

He had judgment for the amount claimed, but the parish judge refused to order an assessment to be made on the tax-roll, because, he said, the police jury of the parish had already levied the maximum tax allowed by the eighth section of the act of 1870, No. 68, and under act No. 17 of 1872.

The legality of no tax, toll, or impost, fine, forfeiture, or penalty imposed by a municipal corporation is at issue here, and we are without jurisdiction.

Appeal dismissed.


author: Wilt, J.

text:
    No. 4651.
    J. E. Campbell vs. E. V. Fowler et al. M. A. Southworth, Intervenor.
    It is proved, that the sub-lessee, who intervenes and enjoins in this ease, was not indebted to the lessees of the plaintiff at the time of the provisional seizure by plaintiff, the lessor. Therefore the court below did not err in perpetuating the injunction and ordering the furniture of the intervenor tobe restored to him, but there was error in awarding to the intervenor seventy-five dollars damages, as attorney’s fees, occasioned by the seizure of the furniture. There is no law authorizing the allowance of counsel foes to a plaintiff in injunction in a ease like this.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Walter H. Rogers, for plaintiff and appellant.

      Hornor & Benedict, for defendants and appellees.
   Wilt, J.

Plaintiff sued out a writ of provisional seizure against the defendants, the lessees of his house, No. 396 St. Charles street, and under this writ the furniture described in the'petition belonging to the sub-lessee, M. A. Southworth, was seized.

Thereupon Southworth intervened, enjoining the seizure of his property, and claiming- damages. It is proved the sub-lessee was not indebted to -the lessees at the time of the provisional seizure by plaintiff, the lessor.

We think the court did not err in perpetuating the injunction and ordering the furniture of the intervenor to be restored to him (Revised Code, 2705),'but there was error in awarding to the intervenor seventy-five dollars damages as attorney’s fees, occasioned by the seizure of his furniture. There is no law authorizing the allowance of counsel fees to a plaintiff in injunction in a case like this. 14 An. 701, 738; 17 L. 265; 4 An. 304; 12 An. 239.

It is therefore ordered that the judgment herein be amended by striking out the amount of seventy-five dollars awarded the intervenor as counsel fees, and, as amended, that the judgment herein be affirmed, ap-pellee, M. A. Southworth, paying costs of appeal.


author: Howell, J.

text:
    No. 6155.
    Henry Newell vs. Daniel Shaffett.
    The subject of this controversy is about the effect of the sale of a certain piece of property to plaintiff for three hundred dollars, to be paid in plantation supplies, with the right of redemption by defendant within the year. At the end of the year, the amount not having been paid, an extension of another year was given. The plaintiff instituted this suit to be declared the owner of the property thus sold on redemption, for rent, and also a balance of account. The defendant answered that the act signed by him was in a reality a mortgage to secure advances to be made, and the amount had been paid. He therefore asked to be declared the owner of said property.
    whether a mortgage or a sale, with the right of redemption, it appears that the amount specified as the consideration of the contract was paid to the plaintiff within the extended time, and, no conventional imputation having been made by the parties, the law would impute it to the advances specified in the contract.
    APPEAL from tile Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J. Jury trial.

      George TT. Buckner, Read & Good-ale, for plaintiff and appellant.

      Knickerbocker c6 Stafford, for defendant and appellee.
   Howell, J.

On twelfth March, 1868, the defendant passed an act of conveyance to plaintiff of a certain tract of land, with thirty head of cattle, for the consideration of three hundred dollars, to be paid by the1 purchaser in plantation and other supplies for the said year at prices to bo agreed on, leaving to the vendor the use of the said property during the year, and on the condition that if the vendor shall within twelve months reimburse the purchaser in money or cotton for all supplies so furnished, the latter will reconvey the said property to the vendors. At the end of the year, the amount not having been paid, an extension of another year was given. The parties continued their dealings until September, 1874, when plaintiff instituted this suit asking to be declared the owner of the said property, for judgment for one hundred dollars per annum rent from first of January, 1869, until delivery, with interest and privilege, and for two hundred and sixty-one dollars and fifty-one cents, balance of account. The defendant answered that the act signed by him was in reality a mortgage to secure the advances made, and that the amount has been paid, and asked to be decreed the owner of said property.

' The ease was tried, before three juries, the first declaring- the notarial act to bo a mortgage, and allowed plaintiff five hundred and sixty-one dollars and fifty-one-cents, balance due him, the second failed to agree, and the third declared the act to bo a sale, but was canceled by payment of the amount stipulated within the time as extended, and gave a verdict for $661 61 with interest from judicial demand. From the judgment in accordance with this verdict the plaintiff appealed.

A careful examination of the record fails to convince us that the jury erred in their conclusion.

"Whether a mortgage or a sale with the right of redemption, it appears that the amount specified as the consideration of the contract was paid to the plaintiff within the extended time, and no conventional imputation having been made by the parties, the law would impute it to the advances specified in the written contract.

Judgment affirmed.


author: Ludeliítg, C. J.

text:
    No. 6177.
    James R. Andrews, President of Police Jury, Parish of Rapides, vs. E. R. Biossat et al.
    In this suit against the treasurer of the parish of Rapides and his sureties said sureties wore not entitled to plead discussion before the judgment. Under the statute they can reauiro the principal’s property to be sold before theirs can be seized.
    No mortgage is created by the registry of the official bond against the security; the mortgage exists only upon the real estate of the principal obligor therein. Hence the judgment of the court below recognizing a mortgage against the property of the sureties is wrong.
    APPEAL from the Ninth Judicial District Court, parish of Bapides. Orsborn, J.

      W. C. McG-imsey, Parish Attorney, for plaintiff and ap-pellee.

      T. G. Manning, for the sureties, defendants and appellants.

      M. Ryan, for Biossat, defendant and appellant.
   Ludeliítg, C. J.

This is a suit against the treasurer of the parish of Bapides and his sureties for $1173 90 and interest.

There was judgment against the defendants, in solido, with recognition of mortgage on the real estate of principal and sureties.

The evidence shows that Biossat received $1173 90 in the parish scrip of the parish of Bapides, which ho has not delivered to the parish. It seems that under authority of the police jury the tax collector was authorized to take in payment of taxes this scrip, and that the parish treasurer received from the collectors of Bapides .and Yernon, for account of Bapides parish, the amount of scrip above mentioned. He was authorized to receive this scrip in settlement with the tax collectors, and he must account for it.

The sureties were not entitled to plead discussion before the judgment. Under the statute they can require the principal’s property to be sold before theirs can be seized. Revised Statutes, sec. 364. No mortgage is ■created by the registry of the official bond against the security. The law is that “ bonds, when registered as above provided, shall operate from and after the date of the registry as a mortgage upon all of the real ■estate of the principal obligor therein in the parish where he exercises his office.” Revised Statutes, sec. 2769. The judgment recognizing a mortgage against the property of the sureties is wrong.

It is therefore ordered that the judgment of the lower court be set aside, so far as it recognizes a mortgage against the property of the sureties, and that in other respects it be affirmed. Costs of appeal to be paid by appellee.


author: Ludelixg, C. J.

text:
    No. 6191.
    John S. Compton et al. vs. W. L. Sandford.
    It is clear from the record and the judicial admissions oí defendant that the property seized as belonging to the father of plaintiffs, belonged to their mother, whether she subseauently transferred the title thereto to her husband or not, is not important, as such a transfer would have been an absolute nullity. Husbands and wives are forbiddc n from contracting with each other, except for specified purposes. The mortgage given by the husband to secure his debt on the property of his wife, can not be enforced.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. J. Bowman, for plaintiffs and appellees.

      T. C. Manning, for defendant and appellant.
   Ludelixg, C. J.

The plaintiffs enjoin the sale of certain lands seized under execution as the property of their father; they allege that the property belongs to them, having inherited the same from their mother.

The defendant alleges that the property belongs to his judgment debtor. He denies that the lands belonged to the plaintiffs’ mother at the time of her death. He alleges that the judgment rendered May, 1869, re-establishing the title of Mrs. Compton was only an incomplete statement of the record pertaining to this tract of land; that subsequent to the sale and deed of the sheriff to Mrs. Compton she reconveyed to her husband the title to said lands long before the death of Mrs. Compton.

It is clear from the record and the judicial admissions of defendant that the property belonged to the mother of plaintiffs, and whether she subsequently transferred the title thereto to her husband or not is not important, as such a transfer would have been an absolute nullity. Husbands and wives are forbidden from contracting with each other, except for certain specified purposes. C. C. 1884; 14 An. 604; 18 An. 37.

The mortgage given by the husband to secure his debt on the property of the wife can not be enforced.

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

Rehearing refused.


text:
    No. 4666.
    William C. Harrison vs. W. L. Jurgielewiez.
    In an action for tort a wrongful act at another timo and place from that sot up in plaintiff’s petition can not be pleaded in reoonvention.
    The court a qua did not err in reuuiring defendant, before going into trial, to elect between the plea of justification and the general denial, and to base his defense solely on the one or the other, the two defenses being inconsistent. The defendant elected the plea of justification.
    ‘The court below did not err in refusing to admit testimony of witnesses and publications of newspapers in regard to the malicious conduct and feeling of plaintiff toward the defendant. The testimony was irrelevant. The previous conduct and the feelings of plaintiff toward the defendant were matters entirely foreign to the issue presented by the pleadings.
    Defendant has utterly failed to justify his conduct in the use of his. slanderous and libelous words.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J. Jury trial.

      G. L. Hall and Joseph P. Hornor, for plaintiff and appel-lee.

      P. J. Kramer, Gabriel Fernandez, and Braughn & Buck, for defendant and appellant.
   Wyly, J.

Plaintiff, a druggist at the comer of Magazine and Thalia streets, sues the defendant, a druggist on the opposite comer, for twenty thousand dollars damages for slander and libel. He alleges that on the night of the thirtieth of July, 1872, the large and handsome gilt mortar on the post in front of defendant’s drug-store, used as a sign, was ruined by'having some acid or discoloring matter thrown on it, which gave it a very ridiculous appearance; that petitioner had nothing to do with committing this nuisance and knew nothing about it until the next morning, when his attention was called to it and when the defendant accused him of the act and told John P. Becker, an old citizen, that petitioner had. thrown acid or some discoloring matter on said gilt mortar with intention to injure it, and make it unsightly and thereby injure him in his business and vex and annoy him; that he has repeated this accusation to many citizens, showing them the unsightly mortar; that on the first of August, 1872, defendant nailed or fastened to the post on which the mortar sits and just under it two large cards facing on each street, on which was written in a large legible hand, that could be road by persons passing by either on foot or in the ears, these words: “This malicious mischief is done by my jealous neighbor;” that these cards remained so posted until about the fifteenth of September, when, by a severe storm, they were washed or worn off, and defendant again fastened or caused to be fastened at the same place similar cards containing these words: “This mischief was done by my jealous neighbor,” and they remained posted until this suit was brought. Petitioner alleges that in this very public place thousands 'of persons have had their attention called to this tarnished and unsightly sign, and great numbers of persons have been told by the defendant that it was the malicious and mischievous work of petitioner, to his great injury and the defamation of his character, causing great injury to his business and bringing discredit and the ill-will of many persons, thereby injuring his character as a good and peaceable citizen; that said slanderous and libelous words have caused him damages in the sum of twenty thousand dollars.

Defendant’s answer contained a general denial, a plea in justification, and a reconventional demand for forty thousand dollars damages for slanderous words and publications, whereby it is alleged plaintiff injured the business and character of defendant.

In an action for tort a wrongful act at another time and place from that set up in plaintiff’s petition can not bo pleaded in reconvention. King vs. Ballard, 10 An. 557.

Furthermore, defendant before the trial discontinued the reconven-tional demand.

We think the court did not err in requiring defendant, before going into trial, to select between the plea of justification and the general denial and to make his defense solely on the one or the other, the two defenses being inconsistent, and the bill of exceptions to the ruling of the court was not well taken. . '

The defendant elected the plea of justification. The court, on the verdict of a jury, gave judgment for plaintiff for five hundred dollars, and defendant has appealed.

. After a careful examination of the evidence wo see no cause to disturb the verdict of the jury and the judgment thereon.

We think the court did not err in refusing to admit testimony of witnesses and publications of newspapers in regard to the malicious conduct and feeling of plaintiff toward defendant “for the purpose of showing that the injury to the mortar could have come from no other quarter in his, defendant’s opinion.” The testimony was irrelevant. The previous conduct and the feelings of plaintiff toward the defendant were matters entirely foreign to the issue presented by the pleadings. The evidence shows that plaintiff did not commit the disgraceful act of which he was accused, and defendant has utterly failed to justify, his conduct in the use of the slanderous and libelous words. See 25 An. 170; 26 An. 313.

Judgment affirmed.


author: Morgan, J.

text:
    No. 6225.
    Seligman Kahn vs. Edward J. Gay.
    whore the amount in dispute does not exceed five .hundred dollars exclusive o£ interest the district court has no original jurisdiction.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      Samuel Matthews, for plaintiff and appellant.

      Barron' <£• Pope, for defendant and appellee.
   Morgan, J.

Article eighty-five of the constitution declares that “ the district courts shall have original jurisdiction in all civil cases where the amount in dispute exceeds five hundred dollars, exclusive, of interest.”

The amount in dispute in this case does not exceed five hundred dollars, exclusive of interest. The district court, therefore, was without jurisdiction and properly dismissed the suit. 23 An. 34; 24 An. 184.

Judgment affirmed.


text:
    No. 5877.
    City of New Orleans vs. Mrs. James A. Ferguson.
    By acts oí 187», section two, page thirty-eight, exclusive, jurisdiction is given to the Superior District Court of tax suits.
    There is no force in the plea that the assessment or publication was improperly made in the name of Mrs. J. A. Ferguson simply, and that the words “óslate of ” wore not added as they should have been, considering that the assessment was made after her decease. The sole purpose ingiving the name at all being to describe or identify the properly taxed and the tax assessed, it is evident that the addition of the word “ estate ” would no moro clearly indi"ate that the pro port y taxed is that known as Mrs. Ferguson's.
    APPEAL from the Superior District Court, parish of Orleans. Ilaw-kins, J.

      B. F. Jonas, Oity Attorney, and Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      A. & W. Toorhtes, for defendant and appellant.
   Taliaferro, J.

This is a tax suit for $550 — city tax of 1875. Its payment is resisted oil the ground that the assessment or publication was improperly made in the name of Mrs. J. A. Ferguson simply, and that the words “ estate of ” were not added as they should have been, seeing that the assessment was made after her decease. To this the reply was that the object of giving' the name at all is obvious; the sole purpose being to describe or identify the property taxed and the tax assessed, by the use of the name of Mrs. J. A. Eerguson, which it seems is admitted, would have been sufficient if she were still living; that after her decease, the addition of the word estate” would no more clearly indicate that the property taxed is that known as Mrs. Ferguson’s. The jurisdiction of the Superior Court was questioned, the defendant contending that the Second District Court has exclusive jurisdiction in suits against successions.. By acts of 1873, section two, page thirty-eight, exclusive jurisdiction is given to the Superior District Court of tax suits. Judgment was rendered in the court below in favor of the plaintiff, and defendant appealed. We see no error in the judgment, and we therefore affirm it with costs.


author: Wxly, J.

text:
    No. 6159.
    Bernhardt Weil vs. John Weil. John M. Sandidge & Co., Intervenors.
    The record shows that the plaintiff was entitled to judgment; and from the allegations of the intervenors and appellants they are entitled to no relief. They do not allege that defendant owes them any specific sum, nor do they seek to recover a judgment. Their potition discloses no cause of action.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      W. F. Blackman, for plaintiff and appellee.

      James G-. White and A. Cazabat, for defendant.

      W. W. Whittington, Jr., and Robert P. Hunter, for intervenors and appellants.
   Wxly, J.

Plaintiff sued defendant for three thousand dollars for salary as clerk, and claimed a privilege on the stock of goods belonging to defendant.

Defendant confessed judgment.

Jolin M. Sandidge & Co. intervened, alleging that the claim of plaintiff was simulated and fraudulent, and injurious to them; that they “are creditors of the defendant for a large amount and abovo the jurisdiction of this court; that plaintiff and defendant are brothers and commercial partners, and no suit can be" brought between them except to settle the partnership affairs. Intervenors expressly deny any privilege or recordation of the same, and, if recorded, they allege fraud and simulation therein and injury to them. Intervenors pray for citation according to law on plaintiff and defendant, and that no judgment be rendered against defendant on the claim of plaintiff, and for costs, all other and necessary orders, and for trial by jury and for general relief.”

The court rejected this and several other interventions and gave judgment for plaintiff.

The intervenors, John M. Sandidge & Co., have appealed.

The record shows that the plaintiff was entitled to judgment; and from the allegations of tho appellants they are entitled to no relief. They do not allege that defendant owes them a specific sum, nor do they seek to recover a judgment.' Their petition discloses no cause of action.

Judgment affirmed.


text:
    No. 6174.
    D. B. Penn vs. W. H. Farrenberg.
    In this attachment suit, the garnishee, an attorney-at-law, answered that ho had a note for collection drawn in favor of David T. Karrenbsrg, but ho could not say who is tho true owner thereof. Tho curator ad hoc for the defendant, a resident of Missouri, moved to dissolve tho attachment on the ground that no property had been attached. On tho trial of this motion, the curator ad hoc excepted to-tho evidence to show that said note belonged to tho defendant instead of D. T. Darrenberg. The judge a quo correctly admitted the evidence, as the motion, presented tho cuestión whether or not property of the defendant had been attached. Tho proceeding was not to annul an illegal and fraudulent transfer of property, but to show that tho property in Question belonged to tho debtor of tho plaintiff.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      F. H. Farrar and Steele, Clinton & Garrett, for plaintiff and appellee.

      L. V. Beeves, curator ad hoc, for defendant and appellant.
   Howell, J.

This is an attachment suit against the defendant, alleged to be a resident of Missouri. Interrogatories are propounded to two garnishees, one of whom, an attorney-at-law, answered that ho held a note for collection drawn by J. T. McGalliard in favor of D. T. Farren-berg, bur ho could not say who is the true owner thereof. The other, the maker of said note, answered negatively. The curator ad hoc moved to dissolve the attachment, on the grounds that no property had been attached and the bond was insufficient in amount. On the trial of this motion the curator ad hoc excepted to evidence to show that said note belonged to the defendant instead of D. T. Farrenberg, on the grounds:

First — That the answers of the garnishees had not been traversed according to law, and could not be contradicted.

Second — The ownership of the note could not be inquired into in this suit, to which D. T. Farrenberg was not a party; and,

Third — The necessary parties and allegations are not made to authorize the court to determine the question of ownership.

The court admitted the evidence, and, we think, correctly, to show that the note really belonged to the defendant, as the motion presented the question whether or not property of the defendant had been attached. The proceeding was not to annul an illegal and fraudulent transfer of property, but to show that the property in question belonged to the debtor of plaintiff, and we agree with the judge a quo that the evidence establishes such ownership, and that the judgment was properly rendered both on the motion and on the merits.

Prescription is not sustained.

Judgment affirmed.


text:
    No. 4682.
    F. F. King vs. J. F. Dittrich.
    The evidence shows that defendant caused the arrest and imprisonment of plaintiff, without showing probable cause. Malice is,presumed.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Thomas J. Cooley, J. Drouet, and J. H. Ferguson, for plaintiff and ap-pellee.

      Braugltn & Bucle and TF. B. Koontz, for defendant and appellant.
   Wyly, J.

Defendant appeals from the judgment against him for one thousand dollars damages .for malicious arrest and imprisonment of plaintiff. The evidence shows that defendant caused the arrest and imprisonment of plaintiff, without showing probable cause. Malice is presumed. 24 An. 330.

We think the judgment is correct.

Judgment affirmed.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 6130.
    Board of Health of Louisiana vs. M. A. Southworth.
    This suit was improperly brought in. the parish of Orleans. The Superior District Court had no jurisdiction rations inaierhe, defendant-being a resident of the parish of Plaquemines.
    APPEAL from the Superior District Court, parish of Orleans. Haic-kins, J.

      Charles S. Bice, for plaintiff and appellee.

      Kennard, House & Prentiss, for defendant and appellant.
   Ludeling, C. J.

This is an injunction suit against the defendant, who excepted to the jurisdiction of the Superior District Court of New Orleans rations personce.

The exception should have been sustained. The evidence shows that he was appointed resident physician at Quarantine Station, in the parish of Plaquemines, about eight months before the institution of the suit; that he has resided there ever since; that when he moved to Plaquemines parish he did so with the intention to make it his domicile, and that is still his intention. There is no evidence to contradict this. The sheriff’s return states that the citation and injunction were served on defendant in person in the parish of Plaquemines, at his domicile in that parish. These writs were sent to the sheriff of Plaquemines parish, who served them in that parish.

The suit was improperly brought in the parish of Orleans. O. P. 162.

It is therefore ordered that the judgment of the lower court be reversed, and that the suit bo dismissed at plaintiff’s costs.


text:
    No. 6237.
    Emanuel Meyer & Brother vs. Mrs. Mary S. Johnson.
    This suit is oil the release bond given by the intervenor. The judge a q\to did not err when he rendered judgment against the plaintiffs, on the ground that inter-venors have not the right to release property seized under attachment. The bond given by the intervenor is not a judicial bond, and the plaintiff can not recover. In cases of the kind it has been settled that the defendant only can bond the property attached.
    APPEAL from the Fifth Judicial District Court, parish of East Felici-ana. Dewing, J.

      W. F. Kernan, for plaintiffs and appellants.

      Wedge & Moore and K. A. Cross, for defendant and appellee.
   Taliaferro, J.

The plaintiffs brought suit by attachment against R. L. Dupré and Jack Rhea, and attached ten bales of cotton and a pleasure carriage or buggy. Mrs. G-aulden, a resident of Mississippi, intervened, claiming to be the owner of the property attached. She bonded the property attached, giving Mrs. Johnson as her surety. On trial of plaintiffs’ suit against Dupre they had judgment against Dupré and against Mrs. Gaulden, intervenor, rejecting her demand as owner of the property attached. The plaintiffs ran executions against Dupré and Jack Rhea, and they were returned nulla bona. The suit now before us is on the release bond given by the intervenor. Judgment was rendered against the plaintiffs, on the ground that intervenors have not the right to release property seized under attachment. The bond, therefore, given by the intervenor is not a judicial bond, and the plaintiffs cannot recover. The plaintiffs have appealed.

The judgment of the lower court was properly rendered. . In cases of the kind it has been settled that the defendant only can bond the property attached.

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


text:
    No. 6160.
    E. C. Brierly vs. N. H. Johns and Sidney Tanner, Administrators of the Estate of Jabez Tanner.
    upon its face, the obligation which is the foundation of the note on which tho estato Of Jabez Tanner is sued was prescribed when tho note was executed. It purports to have been done for work done and money advanced. That portion of tho alleged debt which was for work done, if plaintiff was a laborer, was prescribed by one year. If an overseer, his claim was barred by three years. That portion of it which was for money advanced was also barred by three years. If the note was given, as alleged, in renewal of another note, which could not be paid, and , which represented a large sum of money due to plaintiff, this second note which is the note sued on, is dated February 11,1807, and this suit was instituted on tho twelfth of November, 1874. Again, prescription has run, and is not interrupted • by payments said to have been made at different times down to the first of January, 1872; these alleged payments appear by indorsements on the back of the note. But they are not signed by any one. The judge a quo erred in permitting parol evidence to prove their verity.
    It is contended that a clause in a lease offered in evidence is a written acknowledgment of the debt sued upon, which takes it out of prescription. But the lease having been entered into on the thirty-first of December, 1868, more than five years had elapsed before the institution of this suit. Prescription, therefore, had again been acuuired.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      B. A. Hunter, for plaintiff and appellee.

      .W. F. Black-man, for defendant and appellant.
   Morgan, J.

The estate of Jabez Tanner is sued on the following instrument :

“ Cheyneyvillb, Rapides Parish, La.,
“February 11, 1867.
■“ $5586. One day after date I promise to pay to E. C. Brierly, or order, five thousand five hundred and eighty-six 68-100 dollars in gold, specie currency of the United States, for work done and money advanced for the use and benefit of the estate of the late Jabez Tanner, deceased, anterior to the year 1861, with eight per centum interest per annum from date until paid.
“(Signed) ESTHER P. TANNER,
“ Administratrix of the estate of Jabez Tanner, deceased.”

Upon its face, the obligation which is the foundation of the note was prescribed when the note was executed. It purports to have been given for work done and money advanced. That portion of the alleged debt which was for work done, if he were a laborer, was prescribed by one year. C. C. 3534. If he were an overseer, his claim was barred by three years. C. C. 3538. That portion of it which rested on money advanced was also barred by three years. C. C. 3538.

But plaintiff swears that Jabez Tanner owed him a large sum of money in the year 1869, for which he gave him his notes; that in 1862, Tanner having died in 1860, he presented these notes to Mrs. Tanner, who represented Jabez Tanner’s estate, who, having no money to pay the same, gave liim a note in renewal of the amount of the original note ; that in February, 1867, he again demanded payment of the note given in 1862, and she being still unable to pay him, he asked for a renewal of that note, to which she consented, and executed the note upon which this suit is brought.

The note sued on, as we have seen, is dated eleventh February, 1867, This suit was- instituted on the twelfth November, 1874. On its face, therefore, it is prescribed. Plaintiff contends that it is taken out of proscription by payments made at different times down to first of January, 1872. These alleged payments appear by indorsements on the back of the note. But these acknowledgments are not signed by any one. Their verity, however, was attempted to be proved by parol. To the introduction of this evidence the defendant excepted.

We think the court erred. See the case of Succession - of Hillebrandt, 21 An. 350.

But plaintiff still contends that he has a written acknowledgment of his debt in a lease of certain property belonging to the succession. The clause in the lease which is relied upon is as follows: “ And it is furthermore agreed to between the parties that the said George H. Sollis is to pay one-half of the yearly rent unto Edward C. Brierly until the debt which Brierly holds against the said Mrs. E. P.- Tanner, as executrix, is satisfied.”

If we admit that- this clause in the lease was a written acknowledgment of the debt, with reference to which, however, it is not necessary to express an opinion, still, the lease having been entered into on the thirty-first of December, 1868, more than five years had elapsed before the institution of this suit. Prescription, therefore, had again been acquired.

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

Rehearing refused.


author: MORGAN, J.

text:
    No. 6230.
    Fergus Mahier vs. Succession of Marie Henriette Henrie, Widow Keays.
    The document sued on is a promissory note due at the death oí the maker. It contains oí itseli evidence of consideration, which is, in the main, substantiated by the testimony of witnesses.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Deioing, J.

      Barrow & Pope, for plaintiff and appellee.

      Herron & Bird, for defendant and-appellant.
   MORGAN, J.

This is a suit on a document which is in the following-words:

“ Baton Rouge, 13 Aout, 1870.
“ Je promie péyer á mon fils, Fergus Mahier, la somme de mille pias-tres, pour l’ouvrage qu’il la fait de sur mon habitation, a ma mort.
“(Signed) MARIE HENRIETTE HENRIE, WIDOW KEATS.”

The English of which is:

“ Baton Rouge, August 13,1870.
“ I promise to pay to my son, Fergus Mahier, the sum of one thousand dollars, for work he did on my plantation, at my death.”

The defense admits the signature, but avers that the same is without ■consideration, and that no action will lie for recovery thereon.

The document is a promissory note, due at the death of the maker. It contains, of itself, evidence of consideration, which is, in the main, sub■stantiated by the testimony of witnesses.

Judgment affirmed.


text:
    No. 6242.
    L. B. Clarkson vs. Mrs. Marcilla P. Williams.
    Tiro plea of prescription can not avail in this case. It appears that the husband of defendant, who was the agent of his wife, acknowledged the claim by paying a small portion thereof before the prescription had accrued.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J.

      Roberts and Newman, for plaintiff and appellant.

      J. W. Montgomery and C. M. Pilcher, for defendant and appellee.
   Morgan, J.

Plaintiff sues tlie defendant for a balance due as the result-of a planting partnership which, he says, existed between them in the year 1869.

Defendant denies the partnership, and pleads the prescription of three years.

When the partnership is alleged to have existed, the defendant was a married woman and separate in property from her husband. The object of the partnership was the cultivation of a plantation which belonged to her. Her husband had her authority to manage her affairs. He formed the partnership with the plaintiff — the partnership consisting in working the defendant’s plantation on shares. This agreement, the evidence shows, was known to the defendant, and was acquiesced in by her. She had the advantage of it, and she must take its responsibilities also. All the plaintiff asks is to be paid his share in the partnership. This, we think, he is entitled to.

As to the plea of prescription, admitting that it is governed by the limitation of three years, which it is not necessary to decide, it appears that the husband, who was the agent of the wife, acknowledged the claim by paying a small portion, thereof before prescription had accrued. The plea; therefore, can not avail.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and it is now ordered that there be judgment in favor of the plaintiff and against the defendant for $1019 22, with legal interest from the thirty-first of May, 1872, until paid, with costs in both courts.


author: Taliaeebbo, J.

text:
    No. 6173.
    W. F. Halsey et al. vs. Leopold Lange.
    It appears that the note sued upon was paid through Mouton, who was dolendant’s commission merchant in New Orleans, from the pi'oceeds of defendant’s cotton in his merchant’s hands. Mouton, after he paid the note, pledged it to Cavaroe, who transferred it to plaintiffs. Mouton’s account with defendant shows that he paid the note, as stated, and charged the amount to said defendant. Therefore the note was part due when it went into Cavaroc’s hands. Plaintiffs can not recover upon it.
    APPEAL from the Seventh Judicial District, parish of Pointo Coupee. Hewes, J.

      Farrar & Montgomery, for plaintiffs and appellants.

      Thomas Sunton, for J. C. Peirce, the assignee of defendant.
   Taliaeebbo, J.

The plaintiffs proceeded via executiva to enforce the payment of defendant’s note for $2600, with interest, by causing to be seized a certain plantation belonging to the defendant, and situated in the parish of Pointe Coupee. The defendant enjoined the sale of liis property, alleging that the note sued upon had been paid, and that plaintiffs obtained fraudulent possession of it after it was paid, and with knowledge of that fact.

Judgment was rendered sustaining the allegation of the defendant that the note had been paid, and decreeing that it be canceled and annulled, and declared to be of no legal effect.

The plaintiffs have appealed.

The form of the plaintiffs’ action was charged to a proceeding via or-dinaria.

The facts elicited by the evidence are that Langp, in the latter part of the year 1870, bought at bankrupt sale a plantation in Pointo Coupee for the price of ten thousand dollars, taking title from Norton, the assignee. Half the price was paid in cash, and for the other half ho executed his two promissory notes, each for $2600, one payable ’on the first of December, 1871, the other on the'first of December, 1872. It is on the last-mentioned note, the one due in 1872, that this action is founded. This note was paid through Mouton, Lange’s commission merchant in New Orleans, from proceeds of Lange’s cotton in Ms mercliant’s hands. It seems that Monton, after ho paid the note, as just stated, to Norton, pledged it to Cavaroc, and tho latter passed it off to Halsey and others, who proceeded to enforce its jiaymeut by executory process. There is a discrepancy in tho testimony of Lange and his merchant, the latter saying that ho was authorized by Lange to pledge tho note. This Lange denies, and swears that he was surprised, tho day after Monten failed, when Cavaroc notified him that he was the holder of the note. Mouton’s account with Lange shows that lie paid the note to Norton and charged the amount to Lange. Tho note was past due when it was put into tho hands of Cavaroc.

We think tho plaintiff in injunction has fully made out his case, and that the decree of the lower court was correctly rendered.

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