text:
    No. 7778.
    Christian Kline vs. The Parish of Ascension. J. C. Boulanger et al., Garnishees.
    Tli© Court a qua ruled properly, that tlie Petition of intervention of tlie judgment debtor in the garnishment process against third persons, should stand as an Answer.
    The rents of property dedicated to a Parish for public use, are, like the property itself, ex* empt from seizure for debt, even if the object of the dedication has been abandoned or changed by the municipal authorities of the Parish.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Duffel, J.

      Frederick Duffel for Plaintiff and Appellee:
    Eirst — The cases of Egerton vs. The Third Municipality, 1 An. 435; Police Jury of Baton Rouge vs. Michel, 4 An. 84; Parish of Plaquemines vs. Eoulhouz'e, 30 An. 65; McKnight vs. Parish of Grant, 30 An. 61; Police Jury of Jefferson (right bank) vs. McCormack et al., 32 An. 624 and others relied upon as settling the principle, that taxes due to a municipal corporation, public things under articles 453 and 454 R. C. C., as well as public squares, court-houses, jails, etc., of a parish cannot be seized under execution by a creditor of the corporation, do not apply to the question in controversy here.
    Second — The rents seized in this caso now before the court cannot be regarded as having the same character as that of the taxes, or of the public buildings, or of the property dedicated to public use held by a municipal corporation in trust, not liable to alienation, mentioned in the cases referred to above, where the principle announced was based mainly upon the ground that the paramount interests of public order and the principles of government forbade the right claimed by a creditor of the corporation to seize and sell that class -of rights and property. They (the rents) are neither essential nor indispensable to the existence of the parish corporation, nor to the useful and proper exercise of the municipal administration. And the parish might be deprived of them without in any degree impairing the capacity of the Police Jury to exercise their functions under the law. City of New Orleans vs. Home Mutual Insurance Company, 23 An. 61; MoEnery vs. Pargoud, 10 An. 500.
    Third — Under the rule in Municipality Ho. Three vs. Hart, 6 An. 571: City of New Orleans vs. Home Mutual Insurance Company, 23 An. 61; 14 An. 875, and 16 An. 407, and for like reasons, a judgment creditor of the parish may cause such rents to he seized and sold in satisfaction of his debt. See, also, 10 An., p. 500.
    Eourth — To exempt from seizure the rents due by the lessees occupying the square bounded by Cabahanosse, Opelousas, Attakapas streets and the public square, it was incumbent on deiendant to prove whát lie alleged, viz: that the said square had been donated to all the inhabitants of the Parish of Ascension for public school purposes, that the revenues derived therefrom were hors de commerce, and that the Police Jury could only administer said revenues under the limitations prescribed by the acts of donation. Ho actual donation of the locus in quo has been proved, and defendant has failed to show any title in the parish. (See his brief, p. 4, verbo “Third.”) It is a well settled rule of practice that, “to recover, one must make his claim certain; to make it only probable is not enough.” Hen. Dig. vol. 1, p. 524, verbo Evideuce XIII, Ho. 1, and oases cited. “ Plaintiff must prove his allegations or he cannot recover.” Ib. Ho. 3, and authorities cited. “ If plaintiff’s evidence be inconsistent with his pleadings he cannot recover.” Ib. Ho. 6.
    Eifth — The property alleged to De donated by documents marked “A” and “B,” with the buildings thereon, intended and appropriated for a jail and court-house, for the use of the county aioresaid, “have been used for the public purposes so intended to the present day and have never been nse for any other purposes” (Record, pp. 31, 32), and the copies of the act of donation marked “ B ” fails toshow that thelot leased to Raphael Mousse is included in the locus in quo. Record, pp. 41, 42.
    Sixth — The Act of 1842, amending the Act of 1833, entitled, “an act granting to the Police Jury of the Parish of Ascension, the lots and buildings erected by the State at the town of Donaldsonville, commonly called the ‘ State House,’ ” only provided that the proceeds of the sale of said property should he applied to the purposes of public education exclusively. (See Sess. Acts of 1842, p. 298, Ho. 117). It is not pretended that said property has been sold, and the contest is not about the proceeds of the sale, but of the rents thereof.
    Seventh — The distinction attempted to be drawn by defendant, between the Police Jury representing the inhabitants of the parish and the inhabitants themselves, is too remote for practical purposes. 10 An. 499; 11 An. 631; 7 An. 515; 15 An. 362.
    Eighth — The evidence in the record is insufficient to show dedication to public use, pleaded by defendant, of the square hounded by Cabahanosse, Opelousas, Attakapas streets, and the public square. It fails to show any title thereto in defendant. Hor does it show anything. equivalent to such dedication of the locusinquo, except that the main building on this land was used as a public school and a residence for the teacher from 1821 to 1861; was generally called “the college," and was never used for any other purpose-during that time than for keeping a public school. Per contra, the said property not being used any more for public school purposes, never having been so used from the year 1861 up to the present day, has-lost its dedication to public use, if its use as above be considered as such dedication; and it has ceased to be public — if ever it was — from the fact of its not being used any more for the public purposes to which it was formerly appropriated. The parish forfeited the same-by misuser. 16 An. 407; 10 An. 499, 500.
    Ninth — There is this broad distinction between the cases cited by defendant and that before the court, which must be seen even at a passing glance. Here there is no question of the alienation of property dedicated to public use, of the right to seize and sell taxes due a corporation, or the court-house, jail, recorder’s office, clerk’s office and office furniture? whilst in the cases relied upon in the 1, 4, 8, 30, 32 and other Annuals, those were the only questions raised and decided.
    But granting that the soil itself, if donated to the parish and dedicated to public use, cannot be seized for any debt due by the parish, it by no means follows that the rents of the soil may not be. 30 An. 361.

      B. N. Sims for Defendant and Appellant:
    Lands held by a city for public purposes or ground rents arising therefrom and forming a part of its public revenues, are not subject to seizure and sale on execution. 7 An. 148, Klein vs. New Orleans; 9 Otto, 149.
   The opinion of the Court was delivered by

Levy, J.

The plaintiff, having obtained judgment against the defendant for the sum of $1625 33J, issued thereon a writ of fieri facias, and had process of garnishment served on Boulanger and others, who, he alleged, were indebted to the defendant, said parish. The garnishees in their answers acknowledged themselves to be indebted to the parish in certain sums for the rent of certain lands situated in the town of Donaldsonville. The Police Jury of Ascension parish filed a petition (which is styled in the agreement or statement of facts, in the transcript, one of intervention and injunction, and which was, by the court, ordered to stand as an answer or opposition of defendant to the garnishment proceedings), wherein they alleged that the purpose of the garnishment process was " to cause to be seized and applied to the payment of said judgment the revenues or rentals, arising from the lease, to the garnishees of portions of lands which do not belong to the Parish of Ascension, but are the common property of all the inhabitants of said parish, and which were donated to the inhabitants for the purpose of erecting thereon a court-house, jail and public schools, and were dedicated for common use as public property, and are ‘ hors de commerce-,’ that the revenues derived therefrom by lease or in any other manner cannot legally be applied to the payment of any parochial indebtedness; that the Police Jury of the parish has administered said property and its revenues solely as trustees of all the inhabitants of the parish, and that • the revenues therefrom, as well as the lands themselves, are ‘ hors de ■commerce,’ and not liable to seizure.” They also prayed for a writ of injunction, restraining the plaintiff from proceeding further in the enforcement of the said garnishment process, so far as said revenues are con•cerned, and enjoining the garnishees from paying to plaintiff any sums ■due as rentals of said lands. The record does not disclose any action of the court on the prayer for the injunction. There was judgment of the •court a qua in favor of the plaintiff, decreeing that the rentals due and to be become due, should be paid by the garnishees to the plaintiff to the •extent of said judgment. The defendant has appealed.

The court a qua ruled properly that the “petition of intervention,” should stand as an answer.

The judge a quo in his reasons for judgment held, that he did “ not -consider the rents seized in this case were essential to the existence of the corporation of the Parish of Ascension, nor to the useful and proper exercise of its functions. The parish might be deprived of them without in any degree impairing the proper exercise of their functions by the Police Jury thereof, and we*think they can be very properly held to form a part of that class of rights which a creditor can seize under Art. 637, ■C. P.” * * * “ We think, therefore, that the sums due to the parish for rents of lots belonging to it are liable to seizure.”

The only question for our consideration and decision, is that pre■sented to the lower court, viz: Are the rentals of the parochial lots liable to seizure ?

The authorities cited by the plaintiffs seem to us inapplicable to this. Tn the cases quoted by them, the seizure of taxes or of pecuniary indebtedness to the parishes or municipalities growing out of bonds given to these public corporations or fines due them, was involved: in this, the right to seize and render liable for their indebtedness the revenues derivable from property donated to a parish for specified public purposes or dedicated to the public use.

The property, from which the rentals áre sought to be subjected to .plaintiff’s judgment,-was donated to the Parish of Ascension, or dedicated to it, for public uses. If the parochial authorites, who, we think, are •mere trustees for the benefit of the inhabitants of the parish, fail to administer the property for the purposes intended by the donors, this fact •cannot vitiate or annul the donation or dedication. At best such acts ■and conduct can only be regarded as unfaithful administration, and the remedy rests with the inhabitants or any of them to invoke the aid of the courts, and in proper proceedings restrain the malappropriation or misappropriation of the property or its revenues, when violative of the úntent of the donor. The decision in the case of The Police Jury of the Parish of Plaquemines vs. Foulhouze, 30 An. 64, in our opinion, covers this case. There the Court said: "Property dedicated to public use cannot, be the subject of private ownership. It is out of commerce and not liable to seizure. R. C. C. 449, 454, 455 and 458; 4 An. 84; 7 An. 595; 18 An. 560; 2 An. 627; 21 An. 244; 29 An. 38, 630; Dillon on Municipal Corporations, sec. 531.”

“ A municipal corporation has no implied or incidental authority to-alienate or dispose of for its own benefit property dedicated to, or held by it, in trust for the public use, nor can it extinguish the public usee in such property; nor is such property subject to the payment of the debts of the municipality.” Dillon on Municipal Corporations, g 512.

We hold then that property donated or dedicated to a parish, for public.uses, is not liable to seizure for debts due by the parochial corporation, and the revenues derived from such property have the same character as the property itself, are destined for public uses, and are likewise not liable to seizure. But, it is said, the property itself and its-revenues are not applied to the specific purpose for which the donation or dedication was made. If such be the case, they are none the less-property with its accessory revenues, intended for public uses, and the right to have the donation or dedication annulled and the property revert to the donor, for the reason that the conditions have not been fulfilled, remains with the donor, and the misappropriation by the doneemay be rectified by the parties in interest.

A parish, or rather parochial authorities, are but the representatives within certain territory, and with limited statutory powers of the people within its territorial limits, and while their acts, within the scope of their clearly defined granted powers, are binding upon their constituents,, we cannot admit that their malfeasance or misfeasance can divest such constituents of their vested rights of property. The closing portion of' the opinion o£ the Court in the case just cited, seems to us to be decisive of the principle herein involved. “ We see no significance in the facfr that the whole of the donated tract is not in actual public use. It suffices that the public has a right to use. Nor does the fact that the part seized was cultivated in rice in 1875, under lease from the parish, operate-to deprive the public of its rights of use. We have just seen that the parish cannot directly or indirectly divest the property of its public-character. How much of said property is or is not needed for the use of the public, is not, in its nature a judicial question. It suffices for us to know that the public has a right to the use of the whole, and for aught we can know, may have some day necessity for its use.” Dillon on Municipal Corporations, § 531, 445, 64, 446; 9 Otto, 149; 7 An. 148.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered in this case, it is ordered, adjudged and decreed that the opposition of defendant to the-proceedings in garnisment be sustained, that said garnishment proceedings be dismissed, and that the appellee do pay the costs of both courts.

Mr. Justice Poché recuses himself in this case, having been of counsel in the original case.

Behearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8015.
    New Orleans Taxpayers’ Association et al. vs. The City of New Orleans et al. L. Conroy, Intervenor.
    Act No. 74 of tli© Legislature of 1880, “ To authorize the City of New Orleans to fund its floating debt, &o.,” is not unconstitutional on the ground, that it is a local and special law passed in violation of Article 48 of the Constitution, because, if alooal and special law, it is taken out of the operation of this prohibition by Article 250 of the same Constitution.
    Nor is said Act No. 74 violative of Article ¿9 of the Constitution, which provides, that every law shall embrace hut one object, and that shall he expressed in the title.
    But, as said Act No. 74 only authorizes the funding of the valid indebtedness of the City of New Orleans, it does not comprise that part of its floating debt, amounting to about $1,000,000, contracted between the 2d of November, 1874, and 1st of January, 1880, in violation of the Constitutional Amendment of 1874, which prohibited the said City from increasing its debt in any manner or under any pretext whatever, and of issuing warrants for the payment of money except against cash actually in the treasury.
    At the same time that that portion of the floating debt of the City, cannotbe funded by virtu© of said Act No. 74, yet the holders of such claims have vested rights upon the uncollected revenues of the City for the respective years in which the obligations were contracted; and, inasmuch as Act No. 74 affects those vested rights, it is unconstitutional.
    APPEAL from the Civil District Court for the parish of Orleans. Lazarus, J.

      B. B. Forman for Plaintiffs and Appellees:
    First — Act 74,1880, is a local and special law, and the substance thereof with notice of intention to apply therefor was not published for thirty days in New Orleans, and the fact of such publication is not recited in the Act. Constitution Art. 48. Bouvier, verbo locals Webster, local.

    Second — The Act and its title embrace more than one object, and the Act embraces objects not expressed in the title. Constitution, Art. 29.
    Third — The Act grants exclusive privileges to holders of floating and unbonded debt, contrary to articles 46 and 254 Constitution.
    Fourth — There is no valid unbonded floating indebtedness of the City of New Orleans, from November, 1874, to 1st January, 1880, because the city was prohibited from contracting any debt. Constitutional Amendment, 1874; Acts 1874, No. 22, p. 56.

      Chs. F. Buck, Oity Attorney, for Defendants and Appellants.

      B. F. Jonas, F. C. Zacharie and Chs. S. Bioe for Intervenor and Appellant.

      JD. C. & L. L. Labatt for the Lady School Teachers, and as Amici Curiae, on the same side:
    First — A constitutional or statutory inhibition on a municipal government not to increase her debt, when repealed by a new Constitution and provision substituted therein to liquidate that character of its indebtedness, and exchange them for a new security, is legal, lust and equitable, and should be upheld by the court if possible.
    Second — That where a statute contains two distinct classes of municipal obligations, and directs their exchange for bonds, payable out of the particular revenues dedicated to ex* tinguish these obligations originally, is deemed by the court void, as to one class only, it should be upheld as to the other class of creditors not affected by the grounds on which such determination rests.
    Third — A part of a statute may be void, and the balance may be constitutional. See State ex rel. Sanger vs. City, as to “registry of judgments " under Act 5,1870, October term, 1880.
    Fourth — It is unascertainable whether a debt of a city has been increased or diminished, merely because she cannot pay her obligations; it may be produced by failure to collect her revenues, and in time, if collected, and applied properly, show a diminution of her debts. Limitations of this character are ex necessitate, directory.

      F. C. Zacharie and Ohs. S. Bice on Application for Rehearing:
    First — The amendment of 1874 to the Constitution of the State, which forbids the City of New Orleans from increasing its debt in any manner or form, or under any pretext, did not prevent the city from incurring ordinary running expenses, payable out of revenues appropriated solely to such expenses.
    Second — Bonds issued for such unpaid expenses, but payable only out of revenues appropriated to pay such expenses, do not constitute an absolute obligation of the city to pay at all events, but only as such revenues are collected.
    Third — If intervenor has a vested right in the revenues appropriated for the payment of claims described in his petition, there can be no repugnance to the amendment of 1874 in Act No. 74, which provides merely for bonds payable out of such revenues.
    Fourth — The last clause of the " ordinance for the relief of delinquent taxpayers ” necessarily ’ implies the validity of the “ floating indebtedness ” of New Orleans incurred previous to January 1,1879, and Act No. 49, by designating specially police warrants of 1875 and 1876, as part of what was receivable for taxes under the act, necessarily implies the inten* tion to include other “ floating indebtedness” of the same period, as also so receivable, and Lence valid.
   The opinion of the court was delivered by

Fenner, J.

The New Orleans Taxpayers’ Association, a corporation, joined by seven individual taxpayers, claiming and admitted to be owners of taxable property in New Orleans, exceeding $60,000 in value, brought this suit against the City of New Orleans and the Mayor and Administrators thereof. They aver, substantially: that, pursuant to the provisions of the Act of the State Legislature, No. of 1880, the said Mayor and Administrators are about to issue an indefinite and unlimited amount of interest-bearing negotiable bonds, which, if issued, will constitute a lien and privilege on the taxable property of petitioners, will necessitate increased taxation for the payment of the same, • and will diminish the funds and resources of the city available to keep the streets clean, light them, pay the police, and carry on the necessary functions of a municipal corporation; that if said negotiable bonds are once issued and passed into the hands of third parties, their validity cannot be inquired into, or their consideration questioned, and that, under the jurisprudence of the Supreme Court of the United States, the power to issue said bonds implies the power and duty to levy and collect taxes sufficient to pay the bonds; that thus an increased burden will be illegally placed upon petitioners, and that the amount involved and the petitioners’ interest therein exceed one thousand dollars.

They further allege that the defendants have no power or authority to issue said bonds except such as may be derived from said Act, No. 74 of 1880; and that said Act is unconstitutional, null and void on several grounds, which they will hereafter mention and discuss in their order.

They pray for an injunction against the defendants restraining them from executing said Act No. 74, or issuing any bonds in pursuance thereof.

To this suit, Lawrence Oonroy, with permission of the court, and without objection from any party, intervened, alleging that he is the owner of valid indebtedness of the city to the amount of $17,000, exchangeable for the bonds authorized to be issued by the Act No. 74 of 1880; that he is greatly interested in having the said act executed, and the bonds, to which he is entitled, issued to him, and will be greatly and irreparably damaged by the issue and maintenance of the injunction prayed for by plaintiffs. •

He joins the defendant in denying the allegations of plaintiffs’ petition, and in the prayer that the demand thereof be rejected.

There is no dispute about the facts which are embodied in admissions by the parties.

The district judge, in an able and elaborate opinion, disposed of all the points in the case, and rendered judgment in favor of the plaintiffs, perpetuating the injunction prayed for, and dismissing the intervention, from which both the defendants and the intervenor have appealed.

We shall consider the constitutional objections urged to the Act No. 74 of 1880, in their order, viz;

1st. It is claimed that the act is a local and special law passed in violation of article 48, of the Constitution of 1879, which provides that no local or special law, upon any subject not mentioned in article 46, shall be passed unless thirty days notice shall have been given by publication in the locality to be affected thereby, the evidence of such notice having been given to be exhibited in the General Assembly, and the act Itself to contain a recital that such notice had been given.

The Act 74 contains no such recital, and it is not pretended that any notice concerning it was published.

We do not find it necessary to express any opinion upon the delicate question as to whether or not this act is a local or special law, within the meaning of the Constitution, because we consider that, even if it were both local and special, this particular act is taken out of the operation ■of the general prohibition contained in article 48, by the special mandate of article 254, which positively directs that “ the General Assembly, at its next session after the adoption of this Constitution, shall enact such legislation as may be proper to liquidate the indebtedness of the City of New Orleans and apply its assets to the satisfaction thereof.” Act 74, by its express terms, is passed in obedience to this article.

It was the duty of the General Assembly to adopt such legislation; and it could find no excuse for the non-performance of this duty, in the fact that nobody had seen fit to give the notice required by article 48.

2d. It is next urged that the act violates article 29, of the Constitution, which provides that: “ Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in the title.”

The title of the act is, “ An Act to authorize the City of New Orleans-to fund its floating debt; to provide for the issuance of bonds thereof; to make such bonds receivable for certain back taxes and for the purchase price of property sold for certain back taxes or otherwise; to provide for the interest on such bonds and for their ultimate payment.”

It cannot be justly charged that this title embraces more than one general object, viz: the funding of the floating debt of the city, which naturally and properly includes the mode of funding, the issuance of bonds therefor, provisions for retiring such bonds, whether by receiving them in settlement of obligations ,due the city or by payment, and provisions to meet the current interest thereon. All these are parts of one general object.

We have, heretofore, had occasion to interpret this article of the Constitution, to consider its motives and the mischiefs intended to be remedied by it, and the principles which should govern its application.

See State vs. Henderson, 32 An. 779.

Under the views there expressed, the title of this act is subject to-no valid objection.

3d. The next charge is that Act 74 violates'that clause of article 48 of the Constitution, which prohibits the passage of any local or special law “ granting to any corporation, association or individual, any special or exclusive right, privilege or immunity.”

It is obvious that this provision has no conceivable application to the act in question.

4th. The final objection urged would seem, on first impression, to go rather to the effect, than to the validity, of Act 74, and to limit, rather than to annul, the power of the city to act thereunder; but we shall see that, if maintained, it must have a more radical effect.

The objection is, that the act only authorizes the funding of the valid indebtedness of the City of New Orleans, and that all the so-called floating debt of the city, contracted between November 2d, 1874, and January 1st, 1880, is invalid and void because in violation of the constitutional amendment of 1874, which was in force between the dates above mentioned, and which provided:

“ The City of New Orleans shall not hereafter increase her debt in any manner or form, or under any pretext. And after the 1st day of January, 1875, no evidence of indebtedness or warrant for the payment of money shall be issued by any officer of said city, except against cash actually in the treasury,” etc.

This was a perfectly valid constitutional provision, operating in futuro only, and absolutely binding not only on the City of New Orleans, but on all persons dealing with the city.

No gloss or commentary can make its meaning more perspicuous.

It rendered it impossible for the city, by any voluntary act, to incur increased debt, “ in any manner or form, or under any pretext.” All persons were fully charged with notice that, whatever services they might render, whatever supplies they might furnish, they could never become creditors of the City of New Orleans, because she was utterly incompetent to contract additional debt.

If they choose to deal with her, without exacting present payment, upon the faith of expected revenues appropriated to their payment, they simply acquired rights or claims upon that fund, dependent exclusively on its realization and only payable out of the same when converted into “ cash actually in the treasury,” against which alone could a warrant for their payment ever be drawn.

The risk of any deficiency in the revenues to meet the expenses was thrown exclusively upon them, because the City of New Orleans could not, “ under any pretext,” incur increased debt.

It appears from the admissions in this record! that, but for this suit, “ the defendants were about to issue interest-bearing bonds under Act 74, in exchange for what appears upon the books of the Administrator of Accounts as floating indebtedness,” amounting to $1,460,111 63, of which about $1,000,000 was contracted after the adoption of the amendment of 1874. In other words, it was assumed that, in the face of a constitutional provision absolutely disabling the city from increasing her debt in any manner or form, or under any pretext,” she had nevertheless actually incurred additional “ valid indebtedness ” to the amount of a million of dollars.

The proposition refutes itself. Its maintenance would rob the constitutional amendment of all effect, and leave in full force the main mischief it sought to remedy. The huge debt of the City of New Orleans had been, in great part, piled up by the funding of claims arising from deficiencies of revenues to meet extravagant expenditures. The object of the amendment was to stop this process, to place it out of the power of the city to incur indebtedness for such deficiencies, and- to confine all liability for expenditures within, not estimated, but collected revenues.

Mindful of the meritorious character of many of the claims expected to be funded under this act and of the strength of their equitable tide to relief, we have looked at this subject in every possible light; but we find ourselves confronted, at every point, with the imperious question: Can there exist “ valid indebtedness ” of the City of New Orleans, created during a period when, by an existing, valid, constitutional provision, the city was absolutely prohibited from increasing her debt, “ in any manner or form, or- under any pretext ? ”

Subtler casuists than ourselves may find a different answer to this question; but we have been able to discover none but a peremptory negative.

We have not seen the necessity of following counsel in discussion of various authorities cited, which apply to cases only deceptively analogous. It was the intention of the constitutional amendment to close the mouths of those who would invoke such analogies, and who would thus maintain that it did not apply to debts created in some peculiar manner or form or under some particular pretext. Eor this reason, the amendment prohibited the creation of increased debt “ in any manner or form, or under any pretext.” Thus the law is written, and it cannot be construed away.

The question is, not merely whether the Legislature might have had power, since the repeal of the constitutional provision referred to, to authorize or direct the city to fund and to assume payment of these claims, but whether the Legislature has done so. The Act 74, in its title and in its body, only authorizes the city to fund its “ debt,” its “ valid indebtedness;” and, if the claims arising under unpaid ordinances between November 2d, 1874, and January 1st, 1880, are not “ debt,” or “valid indebtedness” of the City of New Orleans, they are not covered by the terms of the act, and are excluded from its benefits.

It may well be, that the city might now issue certificates that these claims are valid claims against the uncollected revenues appropriated for their payment, and might even make such certificates receivable in payment of those delinquent taxes; but this is very different from the issuance of interest-bearing bonds, declaratory of municipal liability, and chargeable, not merely on these particular delinquent revenues, but on other resources of the city.

It is contended, however, that the exclusion of these claims does not impair the validity of the act so far as it authorizes the funding of the floating debt created prior to November 2d, 1874.

We are constrained to conclude differently.

The excluded claims, though not debts of the City of New Orleans, are perfectly valid claims against the uncollected revenues of the city for the years in which they were created, which revenues were appropriated to their payment. Such appropriation was within the power of the city, and, when made, constituted a quasi assignment of said revenues. The city collects these revenues as a kind of trustee, and is bound to appropriate them, when collected, to the payment of these claims.

The rights of these claimants upon these revenues are vested rights, which cannot be divested without payment or adequate compensation.

Now the effect of section 5 of Act 74 is to -withdraw all the taxes and licenses due the city prior to January 1st, 1879, from the payment of these claims and to set them aside and constitute them a special fund for the payment of the principal and interest of the bonds authorized by the act. The bonds themselves are made receivable for all such taxes, and all moneys received in payment of said taxes are required to be devoted exclusively to the payment of said bonds and interest.

This operates a complete divestiture of the rights of the excluded claims upon these revenues, in direct violation of article 155 of the constitution.

We are constrained, therefore, to confirm the conclusion reached by the district judge, declaring the act unconstitutional and perpetuating the injunction.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed at appellants’ costs.

Rehearing refused.


author: Todd, J.

text:
    No. 8224.
    A. D. Rawlings et al. vs. Mrs. M. J. Bowie et al.
    Plaintiff, alleging himself to have an interest in common with Defendants in a certain judgment against a third person, enjoined the judgment debtor frbm paying the amount of his interest to Defendants. The latter on Motion obtained the dissolution of the injunction.
    Held — Dor the purposes of the Motion to dissolve the injunction, the averments of the Plaintiff’s petition must be taken for true. Therefore, as part owner of the judgment, Plaintiff had the right to enjoin the judgment debtor from paying his share of it to Defendants, and the injunction should not have been dissolved.
    APPEAL from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      JE. H. Farrar for Plaintiff and Appellant:
    Hirst — Prom the fact of co-proprietorship in indivisión, the law, independent of any convention between the co-proprietors, begets certain mutual rights and duties, such as the right of partition, the right of mutual participation of the fruits and revenues, and the consequent duty to account to each other therefor; the duty of the co-proprietor in possession to take the same care of the property as if it were wholly his own; the right of incurring expenses necessary for the preservation of the common property, and consequent obligation of reimbursing one another for such outlays. Smith vs. Nelson, 10 An. p. 257; Bomat, Part 1, Book II, title 5, section 2, Nos. 1, 2, 3 and i ¡ Merlin Rep. verbo Indivisión.
    Second — All acts done by a co-proprietor, and relating to or affecting the common property, are presumed to have been done by him for the common benefit of himself and others. Freeman on Cotenancy and Partition, § 166.
    Third — Therefore, where part of the owners, without making their co-owners parties, sue a trespasser on part of the common estate, for the recovery of the same, and for rents and revenues, alleging themselves to be sole owners, and obtain against such trespasser a judgment for such rents and revenues, during the term of his occupancy, the co-owners will be entitled to their proportional share of such judgment.
    Fourth — Courts will presume that the suing part-owners acted for the common benefit in such a proceeding.
    Fifth — Such unrepresented co-owners have an equitable title to their proportional share of such a judgment, which the courts will enforce.
    Sixth — In an action to enforce such equitable title, the plaintiffs have a right, under articles 302 and 303 of the Code of Practice, to enjoin the judgment debtor from paying over their proportional share of such judgment to the parties holding the legal title to the same, without any allegation whatever of the insolvency of such parties.
    Seventh — Where, in such an action, after judgment by default has been regularly entered against all the defendants, a motion is made, without even setting aside the default, to dissolve the injunction on the face of the papers, based on grounds which, in substance, are exceptions to form, such motion will be stricken out on proper application. O. P. articles 357, 359, 360, 333 and 344; 1 Rob. 190 ; 4 An. 534.
    Eighth — An answer of an appellee, asking for an amendment of a judgment, by increasing the damages given below, must be filed three days before that fixed for the argument of the case. C. P. article 890.

      Steele & Garrett for Defendants and Appellees :
    First — A party has not the right to enjoin the execution of a judgment absolute and unconditional as to the matter it professes to decide, pending a litigation as to other matters in controversy not decided by the judgment. Heriford vs. Babin, 14 An. 333; Henderson vs. Wilcox, 2 An. 502; Sue. of Dunford; 1 An. 92; Wilcox vs. Henderson. 7 Rob. 328.
    Second — A third person cannot enjoin the defendant in a former suit from paying a judgment of the Supreme Court, pending a suit to liquidate his demand against the original plaintiff claiming the proceeds of the judgment. His remedy is by intervention or third opposition in the original suit or direct action against the original plaintiff and seizure of the judgment. C. P. articles 299, 300, 301, 302, 303; 20 111. 310; 2 Johns. Ch. 144; 1 Tern. 399; 3 Atk. 200; 27 Tesey, 51.
    Third — Pending the suit to liquidate a demand against the defendant involving the right to a sum of money due to defendant in the hands of a third person, an injunction will not lie to prevent the payment of the money due to the defendant, except when the plaintiff alleges under oath that the defendant is insolvent and that he will be in danger of losing the money if thus paid. 15 An. 456 ¡ 7 An. 290.
    Fourth — ” A party applyingfor aninjunction must present an affidavit clear and unequivocal, establishing by this oath all the facts which would warrant the interference of the court, and laying a clear basis for an indictment for perjury if any of the assertions sworn to be untrue.” Rice vs. Walshe, 4 An. 346; 14 L. 274; 1 R. 316; 13 L. 46 ; 5 L. 52, 82.
    Fifth —“Where a party has recourse to an injunction, ho must discloso all the facts of his case upon which he bases his right to an injunction, or it will be presumed that those not disclosed would work against him.” Sauvinet vs. City'of New Orleans, 1 An. 346.

      Kennard, Howe & Prentiss on same side, for a Behearing:
    First — The importance of the question stated.
    Second — The article 296 of the Code of Practice does not dispense plaintiff in an injunction suit from allegiance to the rules of pleading. Avery vs. Onillon, 10 An. 127.

      Third — The article 298, in paragraph 8, providing for an injunction where the ownership of an estate, real or personal, is in dispute, has no application in favor of plaintiff at har,
    UTourt/h — The article 303 provides for an injunction where it is necessary to preserve the property in dispute, but not where the allegations of the petition fail to reveal any such necessity. Denson vs. Stewart, 15 An. 456.
    UTifbh — The rules of equity have been adopted in Louisiana, in construing tbe law of injunctions, where there are no specific provisions to the contrary. Black vs. Good Intent Towboat Company, 31 An. 499.
    And by tbe general rules of equity in England as well as the United States, the plaintiff at bar has stated no case for an injunction. 20 111. 310.
    It was absolutely essential that lie should have stated clearly the insolvency of the judgment creditors in'Bowie vs. Weatherly. In the absence of such statement it was evident that the money would be as safe in the hands of the plaintiffs in that case as in the hands, of the defendant, Weatherly. High on Injunctions, p. 293.
    Sixth — The Court has erred in holding that plaintiff was a joint owner of the judgment in Bowie vs. Weatherly. There is no such allegation in the petition, and therefore no proof. He may have had an eventual claim for a share of net proceeds of the judgment when collected, but not before, and an injunction would thus prevent such claim from accruing at all.
    Seventh — The Court has erred in holding that the default taken in the case at bar, could affect the questions raised by the motion to dissolve. The exception was not that certain facts were stated, hut stated too vaguely. It was a peremptory exception that certain vital facts were not stated at all. And, besides, the default was substantially set aside by consent and order.
   The-opinion of the Court was delivered by

Todd, J.

Thomas P. Farrar is appellant from a judgment dissolving an injunction sued out by Mm under the following facts, substantially set forth in his petition :

That he, said Farrar, and his co-plaintiff, Rawlings, were the owners in indivisión with all the defendants, except Weatherl}’, of two-thirds of the Hollywood plantation, in the parish of Tensas.

That the defendants, Matilda J. Bowie, Andrew S. Routh, and Annie M. Bowie, with a full knowledge of the plaintiffs’ interest in said plantation, had recovered a judgment against John R. Weatherly as a trespasser on said plantation, amounting, at the date of the institution of the suit, to $10,557, in which the share of each of the plaintiffs was $1161. That the plaintiffs fear that the entire amount of the judgment thus recovered, and in which they are entitled to share, will be paid over by Weatherly to the plaintiffs in the suit in which the judgment was rendered to their, the petitioners’, great injury and. damage.

All the parties in interest were asked to be cited, and judgment prayed for decreeing the plaintiffs to be entitled to the interests claimed by them in the judgment, and that Weatherly be enjoined from paying over to the plaintiffs in that judgment the amount of their respective interests in the same, or in the sums which Weatherly was adjudged to pay under it.

The motion to dissolve the injunction, which was sustained, contained substantially, the following grounds :

1. That John R. Weatherly, against whom the injunction was directed, was a third person, and this was not a case in which an injunction could issue, under the articles of the Code of Practice, against third persons.

2. That there is no allegation that either of the defendants are insolvent, or that plaintiff 'was in danger of losing the money if paid over to them.

3. That the injunction worked a great hardship to Weatherly by preventing him from satisfying the judgment, the amount of which by the terms of the decree increased 12000 per annum till paid.

The suit was dismissed as to the plaintiff A. D. Rawlings, on motion of H. R. Steele, and upon his showing that he had become the subrogeeof said Rawlings, and J. P. Earrar became the sole plaintiff in the case.

The motion to dismiss was tried and sustained, and the plaintiff,. Parrar, condemned to pay one hundred dollars damages. Prom which judgment the present appeal was taken.

Por the purposes of this motion the allegations of the petition must be taken as true.

A party is entitled to an injunction to prohibit one from doing an act which he contends may be injurious to him or impair a right which he claims. C. P. 296.

It is evident from the allegations of the petition, that i£ the defendant, Weatherly, pays to his co-defendants the entire judgment in question, he would do an act that might prove injurious to the plaintiff and impair the right that he asserts in this suit. That right is the ownership of part of this judgment and the right to receive from the defendant in such judgment, to the extent of his interest therein, the money-which he alleges Weatherly was about paying to other parties.

If his allegations are true, he was entitled to a decree recognizing-his interest in the judgment, just as he would be entitled to have recognized a just claim asserted by him to any other species of property. If Weatherly paid this judgment to the plaintiffs therein, the judgment-would be extinguished and the plaintiff’s right in the judgment destroyed' with the extinction of the judgment itself. Plaintiff might in such event-have recourse against the parties who had received his money, some of whom it is shown were non-residents of the State; but he would be-precluded from enforcing payment from Weatherly, the judgment debtor. If he was the joint owner of the judgment, he had a joint right with the other owners to control it, to enforce payment of it, and to receive his share of the money paid in satisfaction of it; in short, to exercise all the rights that his co-proprietors in the judgment could exercise. These-rights would have been impaired had the judgment been extinguished by payment made by the defendant to other parties, and parties who ignored the interests of the plaintiff therein. Consequently he had an undoubted right to prevent the payment of the judgment to other parties, to the extent of his share of the judgment, until he could obtain a recognition of his alleged interest therein by the proper decree.

Nor was it necessary for the plaintiff to allege the insolvency of the parties to whom payment was about to be made. That was a matter of proof that he 'might or might not offer on the trial of the cause to show the just and reasonable apprehension of the injury to result from the acts of the parties as charged in the petition. It was sufficient to allege, as was done, that the act or acts would cause him damage. And if such general allegation of injury was insufficient, its sufficiency should have been questioned by the proper exception before default was taken on the petition. The motion to dissolve was filed after default. And this part of the motion, now under consideration, was equivalent to an exception that the cause of action was not sufficiently set forth in the petition.

Nor is there any force in the last ground urged for the dissolution of the injunction, namely, that the delay caused thereby would work hardship to Weatherly. Weatherly was not enjoined from paying the entire judgment, but only to the extent of plaintiff’s alleged interest in it. It is not easy to perceive any peculiar hardship in such restraint, and it could easily have been avoided by properly depositing the amount; but whether a hardship or not, if plaintiff was a co-proprietor in the judgment he had the right to prevent Weatherly from paying his part of it to any one else.

For th'ese reasons we think the injunction was improperly dissolved.

It is, therefore, ordered, adjudged and decreed that the judgment be reversed and the injunction reinstated, and the case remanded to be proceeded with according to law; defendants to pay costs of appeal.

Rehearing refused.


text:
    No. 6858.
    George W. Stockton vs. Firemen’s Insurance Company.
    A general insurance agent, with authority to solicit and receive applications for insurance, has no power to accept such applications and bind his principal by stating to the applicant that the risk attached at a certain moment.
    •To convert a proposition by one party to another into a contract, it is not sufficient to show strong probability that it was or would have been accepted, under certain circumstances: acceptance, actual, final and irrevocable, must be proved.
    APPEAL from the Third District Court for the parish of Orleans. Monroe, J.

      Hornor & Benedict and F. W Baker for Plaintiff and Appellant.
    Braughn, Buck & Binlcelspiel for Defendants and Appellees:
    First — "Where there is do agreement between an applicant for insurance and the company ho proposes to insure in, as to the amount of insurance, either direct or implied, there can be no contract between the parties. May on Insurance, 52; Civil Code, 1766,1798; Pothier, Traite de Confc. d’Ass. No. 87.
    Second — An insurance contract is only then complete, when nothing remains to be done but issue the policy. To constitute a valid contract of insurance, the minds of the parties must meet as to the premises and the risk; as to the amount insured; as to the time the risk shall continue, and as to the premium. 28 17. Y. 153, 1863; Bates’ Big. 200; May on Insurance, l, 3.
    Third — An agent having authority only to solicit insurance, to receive and forward applications, without authority to issue policies, is the agent of the insured. 4 R. 1.141; Bates' Big. 39, 50, 52; 22 Barb. N. Y. 527; 53 111. 516; 3 Allen, 213; 9 Allen, 332.
    Fourth — A general insurance solicitor, appointed by an insurance company to solicit risks, subject to the approval or rejection of the company employing him, cannot waive the necessity of submitting his applications for insurance to the company, and thus bind the company whether it desires to accept the risk or not.
    Fifth — That the application for insurance given by the plaintiff to the insurance solicitor herein, did not and does not constitute a contract binding upon either party.
    Sixth — As the application of the plaintiff was not accepted by the defendant before the property sought to be insured was destroyed, there could he no contract of insurance, and defendants are not liable.
    Seventh — That all statements made by the insurance solicitor not contained in the application, not warranted by his instructions, or justified by the rules and regulations of the company, no matter what their nature, do not and cannot bind the company.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit upon an alleged contract of insurance, which plaintiff claims to have been formed with defendant by reason of the following facts, viz:

Plaintiff, on March 13th, 1875, was solicited by H. D. Hill, a general insurance agent and solicitor, who had authority to solicit for defendant as well as other companies, to insure his stock in trade and machinery in the Firemen’s Insurance Company. Upon asking the rate of insurance, Hill sent to him the inspector of the company, who, after examination, stated the rate would be two and a half, or three per cent. Plaintiff said he would not pay that rate, but would give two per cent; to which the inspector replied that he would report to the company and let him know.

The inspector saw the president who said, “ he thought probably he could take it at two per cent; ” and the next day, he reported to plaintiff that this rate would be accepted. Thereupon, on the 17th of March, Hill, the original solicitor, called and prepared an application for the insurance, upon the machinery in the sum of $1500, upon the stock in the s.um of $1000, and upon three mules in the sum of $300, at a premium of two per cent, per annum for one year, commencing March 17th, 1875, at 12 o’clock M. This application was signed by plaintiff, and delivered to Hill, who stated to him that the risk attached from noon of that day, March 17th. Hill did not present the application to the company until the next day at 9:45 A. M., and in the intervening night the property had been destroyed by fire, to the knowledge of both Hill and the company at the moment when the application was presented. Of course it was rejected by the company.

The evidence conclusively establishes that Hill had no authority to bind the company in any way. The limit of his authority, if such it can be called, was the permission granted to him by the company to solicit and receive applications for insurance, which were to be presented by him to the company, and after reference of the same to the inspector of the company, and proper consideration, he would be informed as to whether they were accepted or rejected, and, if accepted, he would be entitled to a certain commission on the premium.

From this it follows that the mere statement by Hill to plaintiff, on receiving the latter’s application for insurance, that the risk would immediately attach, was without any binding force on the company.

Counsel for plaintiff seeks to evade this conclusion by sheltering his case under the principle that an agent, clothed with authority to represent his principal in some official capacity, is clothed with authority to bind him as to third persons in all matters within the scope of the apparent and usual authority generally attaching to such employment, and that third persons are not bound to inquire as to special limitations on such usual and apparent authority, which may exist in particular cases.

He has referred us to several cases in which, in matters of insurance, this doctrine has been applied, under particular circumstances, to acts of officers, of general agents, and of local agents representing insurance companies at places distant from their corporate domicils. For convenience in the transaction of business, such agents are frequently, perhaps generally, invested with powers of making binding contracts for their principals, and are furnished with policy blanks for that purpose, and persons dealing with them have rightful claim to suppose that they have the necessary powers usually accorded. He refers us, however, to no ease where the principle has been extended to mere local solicitors of resident companies. Such solicitors are not ordinarily vested with authority to consummate contracts, and, considering the dangers of such delegation and the absence of all necessity therefor, there seems to be no good reason why they should be, or why any person should suppose them to be, clothed with such power. We are constrained to conclude that the power of Hill to bind the defendant must be limited to the terms of his mandate, and that, if plaintiff has been deceived by placing imprudent trust in him, he must bear the consequences.

It only remains to consider whether the acts of the company, through its president, with reference to this insurance were sufficient to create a complete and binding, contract.

It is well established that a company maybe bound by a parol agreement to insure, as effectually as by a policy in due form, and when such preliminary parol agreement is complete, its validity is not affected by delays in the issuance of the policy or in the payment of the premium resulting from mutual understandings between the parties.

May on Insurance, Sec. 128, 14,15,16.

Id. Section 43, p. 41.

Wood on Eire Insurance, Section 4, p. 10.

Franklin Fire Insurance Co. vs. Colt, 20 Wal. 371.

Evans vs. Home Insurance Co., 4 Otto, 621.

But it is none the less of essential necessity that the contract should be complete.

“ The consent of the contracting parties in all things which constitute the substance of the contract, is of the essence of the contract of insurance as of all other contracts.”

Pothier Cont. d’Ass. No. 87.

“To constitute a valid contract of insurance, the minds of the parties must meet as to the premises and the risk; as to the amount insured; as to the time the risk shall continue; and as to the premium.”

Baptist Church vs. Brooklyn Co., 28 N. Y. 153.

May on Insurance, pp. 41, 42, 52.

The evidence in this case discloses no knowledge of, or consent to, any of the terms of the proposed contract by the president of the company, except as to the premises on which the things to be insured were, and as to the rate of premium. As to the risk or things to be insured, the application includes two mules which, it is not pretended, were even ' mentioned to him, and there is, therefore, no room to assert that he ever assented to the application as made. Although plaintiff does not claim the value of these mules, yet his application must be treated as a whole and it is clear that the president was not bound to accept the risk on mules which had never been mentioned to him', nor could he have rejected that part of the application and accepted the rest without the further consent of plaintiff.

There is an equal absence of proof that he was informed of the time for which the insurance was desired; and it is admitted that the amount of insurance was only fixed at the moment of making the application.

It seems too clear for argument that there was here no aggregatio ‘mentium upon essential elements of the contract.

“ A proposition does not become a contract until accepted by the party to whom it is made, and then precisely as made, unless the party proposing agree to a variation.”

McDonough vs. Winchester, 1 La. 190.

To convert a proposition into a contract, it is not sufficient to show strong probability that it would have been accepted: acceptance, actual, final and irrevocable must be proved.

Eor these reasons, itis ordered, adjudged and decreed that the judgment appealed from be affirmed at appellant’s costs.


text:
    No. 8213.
    Succession of Robert Anderson. Rule of C. M. Pilcher, President of Board of School Directors, vs. R. K. Anderson, Administrator.
    Interest cannot be collected on a judgment for money, which, by its terms, is silent as to interest.
    A judgment is not a debt within the meaning of Article 1938, C. C.
    ^PPEAL from the Parish Court, parish of East Carroll. DuBose,

      F. F, Montgomery for Plaintiff and Appellee:
    AH, debts bear interest at five per cent from maturity, whether expressed or not. R. C. C. 1938; 15 An. 465.
    A judgment is a debt, and one of the highest character, and hence should bear interest, whether it is expressed in the judgment or not.
    Inasmuch as creditors of successions can only obtain payment after certain delays, interest-should be allowed on tbeir claims from the death of the debtor, or from the maturity of the debt. C. P. 959. A judgment creditor forms no exception to this rule.

      J. M. Kennedy for Defendant and Appellant:
    Ho interest can be recovered on a judgment which carries none on its face; judgments do not bear interest as a legal right. Succession of Regan, 12 An. 116; idem, 112; 7 H. S. 14; 21. 512; 3 L. 487.
    That the word “ debts,” as used in Art. 1938 of the R. C. C., does not refer to, nor embrace judgments, because:
    iPirst — A judgment neither creates, adds to, nor detracts from a debt. It only declares its existence, that is, the existence of an already subsisting debt, fixes its amount, and provides the means of enforcing its collection. 29J An. 841, Hill & Co. vs. Bourcier et al.; and authorities collated in 1 H. D. 726, Ho. 8, and in I. D, 335, Ho. 13.
    Second — The language of the article is inconsistent with any other interpretation.
    Third — That Arts. 1936, 1938 and 2924 C. C. must be construed together, being laws in pari materia; that by these articles there are only two hinds of interest, “conventional and legal;” that “legal” interest is again legal interest proper, or judicial interest; that the interest claimed, if allowable at all, is judicial interest; that judicial interest is “that which is allowed on all sums which is the object of a judicial demand; and that a judgment is not the object of a judicial demand, and, therefore, cannot bear judicial interest; and,

      fourth — Because, to allow interest on a judgment which bears none on its face, would be violative of Art. 157 C. P., a prohibitory law.
    That the probate court was without jurisdiction to render a judgment for interest on a judgment which carried none on its face. Con, 1868, Art. 87. «
    That a sheriff in the execution of a writ must confine himself to the express letter of that writ.
    That a judgment rendered without a contestatio litis, either express or tacit, is a nullity. 21 An. 461, Brown vs. Brown; idem. 665; 7 N. S. 287; 18 An. 187; 19 An. 373.
   The opinion oí the Court was delivered by

Fenner, J.

The only serious question involved in this case is one of law, viz: Whether-intere'st can be collected on a judgment for money, which, by its terms, is silent as to interest.

At common law, judgments did not draw interest.

In some States, statutes have been passed providing that interest should run and be collectible on all judgments for money.

In an action on a j udgment rendered by a court of a sister State it is held that interest thereon cannot be recovered in absence of proof of the existence of such statute.

Thompson vs. Monrow, 2 Cal. 99.

The same rule has been applied to judgments rendered by courts of the United States.

Saunders vs. Taylor, 7 N. S. 14.

This doctrine has been repeatedly applied to judgments rendered by courts of this State.

Saul vs. Creditors, 7 N. S. 437.

D’Aquin vs. Cordon, 8 N. S. 608; 2 La. 512; 3 La. 487; 4 An. 6; 12 An. 112, 116.

It is contended, however, that the present article 1938 of the Civil Code is equivalent, in effect, to a statute providing that judgments for money shall draw interest irrespective of their terms. That article provides that “ all debts shall bear interest, at the rate of five per cent per annum, from the time they become due, unless otherwise stipulated.”

The equivalency contended for cannot be conceded.

A judgment is not a debt within the meaning of that article. “A judgment neither creates, adds to, nor detracts from a debt. It only declares its existence, fixes its amount, and secures to the creditoi the means of enforcing its payment.”

18 La. 414; 9 R. 119; 10 Rob. 412, 155; Hill vs. Bourcier, 29 An. 841.

A judgment has been defined to be “ the decision or sentence of the-law, pronounced by a court of competent jurisdiction upon the matter contained in the record.”

Jac. Law Dic., 3 Bla. Com. 395, Tidd’s pr. 930.

“ The judgment is yea or nay for one party and against the other.”' 9 Iowa, 114.

It is a fiat of a court settling the rights of the parties, and however unjust, erroneous, or illegal the settlement may be, the parties can only claim under it that which, by its terms, the judgment awards.

Article 1938 C. C. is a rule of law which, like all other laws, should be observed and enforced by judges in their judgments. But if -they neglect or refuse to enforce it, they simply commit error, which can be corrected only in some of the modes pointed out by law. Error in the judgment cannot be remedied by enlarging or restricting the execution thereof.

That, in the view of the law-maker, the article is merely intended as a law to be followed by judges in rendering their judgments, is manifest from the fact that it has been embodied in the Code of Practice, under the rubric “of judgments and costs,” Art. 554, which declares that “interest at the rate of five per cent shall be allowed on all debts from the time they become due, unless otherwise stipulated.” This follows Art. 553, which declares that “interest shall not be allowed by the judgment, unless the same have been expressly claimed.”

From these two articles it clearly appears that the question of interest vel non is, in all cases, submitted to the judge and is passed on and concluded by his judgment, like all other matters. The reasoning of the court in the case of Saul vs. his Creditors (7 N. S. 437) is, therefore, entirely applicable. We quote: “ The judgment is silent about interest, and we are ignorant of any law which makes the interest follow as a consequence of giving judgment for a debt which would bear it. * * Had the judgment in express terms rejected interest, there would have been no room for argument that it furnished to the parties opposing the claim the plea of res judicata against a second demand. We think there is equally a rejection of the claim, when both principal and interest are demanded, and the former alone is given by the decree.” That learned court, in a long and philosophic opinion, enforces the above views by unanswerable arguments and authorities. They are applicable to, and conclusive of, the present case, which is not, in our opinion, affected by statute referred to.

An analogous ruling, equally conclusive, was made in construing article 522 of the Code of Practice, relative to the verdicts of juries; and it was there held that where the verdict of the jury was for a specific sum, without mentioning interest, the court, in rendering judgment, could not give interest.

Cochrane vs. Murphy, 4 An. 6.

The question has arisen, in but one ease, since the Act of 1852 (now C. C. 1938) was adopted, and there, on state of case indistinguishable from the present, interest on judgment was disallowed.

Succession of Regan, 12 An. 116.

It is only because the effect of this new statutory provision was not discussed in that decision, that we have felt called on to give our reasons at length.

If the plaintiff in ruléis holder of a judgment which unjustly denies to, and withholds from, him, his legal right, it is a misfortune which might have been repaired before that judgment became final, but which is now past remedy.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to strike out the interest allowed upon the principal of the judgment referred to and described therein, and that, as thus amended it be affirmed, appellee paying cost of this appeal.

Behearing refused.


author: Bermudez, C. J. Poché, J.

text:
    No. 8180.
    Wm. B. Glasscock et al. vs. Charles G. Clark.
    The title to one-lialf of the Community property is vested in the heirs of the deceased wife at the moment of her death, and it is not necessary for them, when they claim it, to allege that the Community is liquidated and solvent. Decisions in 25 An. 379, and 36 An. 639, overruled. Decision in 32 An. 848, affirmed.
    APPEAL from the Ninth Judicial District Court, parish of Concordia, Hough, J,

      J. 8. Boainer for Plaintiffs and Appellants.

      Wade B. Young for Defendant and Appellee:
    Where the plaintiffs claimed three-tenths of a certain tract of land and plantation as heirs of their deceased mother, who had an undivided community of interest in said plantation now in possession of defendant,-
    Held — That plaintiffs’ petition discloses no cause of action, inasmuch as it is not alleged that the community between the plaintiffs’ father and mother owed no debts, nor that anything remained after paying the debts thereof.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs, as heirs of their mother, sue to be decreed the owners of an undivided interest of certain real estate acquired during the community between her and her husband, and which the latter assumed of his own authority to sell, as a unit, after her death.

The defendant filed a peremptory exception of no cause of action, which was sustained, and the suit was consequently dismissed.

The District Judge assigned no reasons in support of his decree, other than that the law was “ in favor of sustaining said exception.”

' From this judgment the plaintiffs have appealed. Counsel for defendant have not favored us with their views on the merits of the defense they set up.

We are left to infer, from the brief filed on behalf of the plaintiffs, that the judge of the lower court considered that the plaintiffs could have no right of action unless upon allegation of the liquidation and solvency of the community, as was announced in 25 An. 379, and 26 An. 639.

The exception was not well founded, and the judgment sustaining it is erroneous.

At the death of plaintiffs’ mother, the effects which composed the partnership of gains were divided into two equal portions between them, in their mother’s right, and their father in his own; R. C. C. 2406; Domat, v. 2, p. 32, No. 2470; and the rights so acquired vested so effectually in the plaintiffs, that the surviving partner could not legally alienate or encumber the property so as to affect them. 23 An. 638; 15 An. 113.

The heirs being considered seized of the succession from the moment of its being opened, the right of possession which the deceased would have had, if the community had been dissolved by judgment, vested and continued in the person of the heirs, and each heir became an undivided proprietor of the effects of their mother’s succession, for the part or portion coming to him, which formed among them a community of property, as long as it remained undivided; R. C. C. 936, 1214; so much so, that a judicial mortgage can be acquired by registry, against an heir, affecting all the mortgageable property thus acquired and owned by him. 21 An. 253; 27 An. 504; 31 An. 748; Brennan vs. Bernard, 7 L. 222; see, also, 7 N. S. 94; 9 L. 284; 12 R. 266; 1 R. 149, 378; 10 R. 18; 3 An. 562.

This doctrine was fully sustained in Bennett vs. Fuller, 29 An. 663, in which it was held, that, after the dissolution of the community, the husband, as its former head, has no power to sell, and can convey title to no greater part of the community property than his undivided half interest in it. See 31 An. 493.

In Tugwell vs. Tugwell, decided by the present Court, 32 An. 849, we distinctly held, that the interest of the deceased spouse attaches at the moment of the dissolution of the community to the property-of the same, subject to the payment of the community debts, and that for the enforcement of the rights so acquired by the heirs it is not necessary that they should have been recognized or the community liquidated previously.

By instituting the suit, in the right of their mother, the plaintiffs have accepted her succession and, consequently, the community which existed between her and their father.

In the Tugwell ease, the principle announced in Gennan vs. Gay, 9 L. 582, which is decisive of the question here presented, was distinctly affirmed, the Court making a copious extract from the opinion delivered at the time.

See, also, 5 An. 581, 582; 6 An. 295; 16 An. 49; 18 An. 409; 19 An. 428; 7 R. 183; 5 R. 9; 2 L. 300; 12 R. 258.

We also there held, that an heir can sue for his share in a succession without being constrained to make his co-heirs parties. 5L. 430; 4 O. S. 472; 3 L. 134; 32 An. 949.

The rulings on the points now before us, as found in 25 An. 379, 26 An. 639, 27 An. 634, may well now be treated as no longer authority.

We have otherwise considered the petition, and do not find that it is deficient. We think that it discloses a right of action as to the mat^ ters now before us.

It is, therefore, adjudged and decreed that the judgment of the District Court be reversed; that the exception of the defendant be overruled, and that he do answer to the merits. It is further ordered that this case be remanded to the lower court for further proceedings according to law.

On Application por Rehearing.

Poché, J.

In defendant’s brief in support of his application for rehearing, we find the following language :

“As it appears from the opinion rendered in this cause that your Honors have not read the brief filed for the defendant, and that the oral argument of defendant’s counsel has escaped your recollection, we trust that you will pardon us for troubling you with a petition for a rehearing.”

1st. That we did not, and could not, read his brief, is easily explained by the fact that he had filed no brief in time for our consideration in disposing of the cause. The following facts appear from the records of the Court:

The case was submitted on the 19th of February, with leave to defendant to file his brief by the 23d of that month. After the expiration of that delay, no brief having as yet been filed by defendant, the transcript was handed in by the clerk for action by the Court. The case was decided on the 7th of March, and defendant’s brief was handed to the clerk on the 24th only, fully six days after the filing of his brief for rehearing now under consideration.

2d. The oral argument of his counsel, which had been listened to with earnest attention and interest, had not escaped our recollection, but fell short of the intended effect, which was to induce us to review two decisions which had been considered as erroneous by our immediate

predecessors (in 29 An. 663), whose conclusions had been reaffirmed by ourselves in Tugwell vs. Tugwell, 32 An. 849; and which decisions we then considered, and now declare, to be formally and finally overruled. We refer to the cases of Phelan vs. Ax, 25 An. 379, and Daniel vs. Ivy, 26 An. 639.

In'view of the confident earnestness with which defendant urges-a reversal of our decree, and of the fact that his brief on the merits of: the case reached us only a few days ago, we have given our serious and-patient attention to his reasoning in both briefs, and have carefully examined all the authorities on which he relies; but considering that the-correct principles on this important question of our jurisprudence are announced in the early decisions of this Court, as interpreted in the two-cases of 29 An. 663, and 32 An. 849, we are constrained to adhere to our previous rulings, and to conclude that a rehearing should be denied.


author: Poché, J.

text:
    No. 6321.
    John Klein & Co. vs. Geo. B. Johnson, Auditor.
    Act Ho. 19 of the Legislature of 1876, appropriating the sum of §7850 for the payment of the-expenses of a joint committee of the Senate and House of Representatives appointed in 1875 for the purpose of examining the books and accounts of the State Auditor and Treasurer, is violative of the Third Constitutional Amendment of 1874, which provided that; the revenue of each, year should be devoted to the expenses of the same year.
    APPEAL from the Superior District Court for the parish of Orleans. Lynch, J.

      John Bay for the Relators and Appellants.

      Hiram B. Steele, Attorney General, and Chs. S. Bice for Defendant and Appellees.
   The opinion of the Court was delivered by

Poché, J.

This is a proceeding by mandamus to compel the Auditor-to issue in favor of plaintiffs, out of the appropriation for the year 1876, warrants in payment of vouchers issued in favor of members and employees of a joint committee of the Senate and House of Representatives, appointed during the session of 1875, for the purpose of examining-the books and accounts of the State Auditor and Treasurer.

Among other defenses, the Auditor urges that the Act of the Legislature of March, 1876, appropriating $7850, for the páyment of the expenses of said joint committee, which was appointed and completed its-labors during the year 1875, is violative of the third constitutional amendment of 1874, which provided that the revenue of each year, derived from taxation of all kinds, should be devoted solely to the ex-. penses of the said year for which' it shall be raised, and that the Legislature was, therefore, powerless to appropriate any portion of the revenue of the year 1876, for the purpose- of meeting the payment of the expenses of a joint committee of both houses, appointed for and operating during the year 1875.

The lower court maintained this defense, and dismissed plaintiffs’ action, and we see no error in that judgment. The record shows that the committee was appointed and organized during the regular session of 1875, and that it submitted a full and exhaustive report on the 19th of April of that year, at the extra session of the Legislature. ■

An attempt was made by plaintiffs to show that the committee did not complete its labors before the year 1876, but this attempt was not successful, or at least the evidence fails to show that the committee performed any labors after its report of April 19th, 1875, which resulted in the impeachment of the Auditor.

We are satisfied from the evidence that all the labors performed by the joint committee were done and completed during the year 1875, and that the payment of its expenses could not be provided for out of the funds appropriated or raised for the year 1876, and that the lower court properly refused the mandamus asked by plaintiffs, and by the intervenor H. Beir.

It is, therefore, ordered, adjuded and decreed that the judgment appealed .from be affirmed at the costs of plaintiffs in so far as the main action is concerned, and at the costs of H. Beir, intervenor, in so far as his intervention is concerned.


author: Bermudez, C. J. Levy, J.

text:
    No. 8112.
    J. P. Maritche vs. Board of Liquidation.
    The very object of an application for a rehearing is to have this Court reconsider whether or not there is error in the Decision rendered on the record such as it is. When there is no such error, the rehearing must be refused.* If the record is defective, it is not after judgment rendered in this Court, that it can be corrected. Bacas vs. Smith, 33 An. 142, affirmed.
    APPEAL from the Civil District Court for the parish of Orleans. Monroe, J.

      W. S. Benedict for Plaintiff and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

We are asked by plaintiff to affirm the judgment rendered in his favor, and which he brings up for review, declaring certain State warrants issued prior to January 1st, 1874, amounting to $2,746 98, to be fundable under Act No. 73 of 1874, and that bonds issue therefor.

That judgment was rendered by default.

The record does not disclose that a citation was issued and served.

The State authorities have not joined issue in the lower court, and have entered no appearance in this Court.

It is, therefore, ordered and decreed that the judgment of the lower court be reversed, and that the case be remanded for further proceedings at plaintiff’s costs.

On Application eor Rehearing.

Levy, J.

The plaintiff, appellee, applies for a rehearing, and with his application files a copy of the citation and return thereon, accompanied- with a certificate of the clerk of the lower court, to the effect, that these documents had been inadvertently omitted from the transcript, under a misapprehension of the rules of this Court. It is too late to supply the omission after the case has been decided by us. By our decree the cause has been remanded to the lower court for further proceedings where the appellee may have an opportunity to bring the case properly before -that tribunal. We are called upon in the very nature of an application for rehearing to decide whether or not there is any error in our decision rendered on the record, which was before us. Bacas vs. Smith, 33 An. 142. There was no error in our opinion and decree, and the rehearing is therefore refused.


text:
    No. 8147.
    Abney & Co. vs. Wm. E. Walmsley. Wm. Boland, Third Opponent.
    Tbe owner of concurrent mortgage notes, wlio bas assigned some of them for value, has no right to compete with his transferree in the proceeds of the mortgaged property, if they are not sufficient to satisfy the claims of both. This is well established in our jurisprudence.
    The fact that, in endorsing and transferring the notes, he stipulated he was not liable for the same, makes no exception to the rule.
    The principle is equally binding upon him, if he made a gratuitous donation of the notes to a person, who afterwards assigned them for value.
    APPEAL from the Tenth Judicial District Court, parish of Red River. Logan, J.

      J. F. Pierson, M. S. Jones and Alexander & Blanchard for Plaintiffs and Appellants:
    First — A contract, or agreement, cannot be enforced bj- a third opposition. An agreement to divide the proceeds of a sale will not support a third opposition, which can exist only upon the issues designated in C. P. 396. 3 La. 495; 1 P. 41; 8 P. 14; 12 An. 341; 3 An. 454; 29 An. 274; 23 An. 2'45; 22 An. 135; 27 An. 560; 2 An. 684; 5 An. 756; 10 An. 238; 26 An. 260; 21 An. 263, 500.
    Second — The transferrer of one of a series of mortgage notes, seoured by the same mortgage, cannot be permitted to come in competition with his assignee in the enforcement of the note so transferred, nor to pro rate the proceeds of the sale with said assignee, 'when the mortgaged property is insufficient to pay both. 2 P. 243; 30 An. 618.
    "Third — A vendor always guarantees the genuineness of the paper ho sells, or that anything else he offers is really •what he pretends it to be; and bis liability in this respect, if it can in any case be excluded, can be so only -when expressed in the most positive manner. 10 P. 404; 29 An. 129; C. O. 2646.

      L. B. Watkins for Third Opponent and Appellee.
   The opinion of the Oourt was delivered by

Poché, J.

The main question involved in this case, is whether a mortgagee, who transfers part of the mortgage debt to another, with the «express reservation that he shall not be held liable for the payment of the note transferred, can compete with his transferee or the assignee of the latter, for the proceeds of the mortgaged property, where the amount Is not sufficient to satisfy both; and the present litigation is predicated mpon the following facts, as shown by the record :

In July, 1870, J. W. Wray and Wm. Boland, joint owners of a plantation on Bed Biver, sold the same to Walmsley for $7500, represented •by his three promissory notes of $2500 each, maturing respectively in November, 1870,1871, and 1872, and payable to the order of J. W. Wray or Wm. Boland, the vendors.

The note maturing in 1872, was subsequently transferred, without •endorsement, by Boland to his daughter, Mrs. E. A. Carroll, who subsequently transferred it to plaintiffs; at which time it was endorsed by Boland, under the reservation mentioned above.

In due course of business it became the property of Lisso & Scheen, who afterwards made an assignment under the insolvent laws of the State to O. Chaffe, Jr., their syndic, the actual plaintiff in this case.

Walmsley having sold the plantation to V. A. Stewart and P. A. Hunter, Abney & Co. obtained by the hypothecary action judgment against the latter as third possessors, for the purpose of enforcing their mortgage, and in execution of that judgment the plantation was seized by the sheriff and sold for $2600 cash.

Pending the seizure, Wm. Boland, holder of the other two Walmsley motes, of $2500 each, filed a third opposition, in which he prayed for and obtained an order directing the sheriff to hold the proceeds of the sale subject to the final judgment in the case, and prayed for a pro -rata distribution of the proceeds of the sale of the mortgaged property ¡between himself and the plaintiffs.

Ia a supplemental petition lie sets up a verbal contract between plaintiffs and the administrator of Walmsley’s succession, in which it was agreed that at the sale of the mortgaged property, Boland, the third opponent, would participate pro rata with plaintiffs in the, proceeds of the sale.

The judgment of the lower court recognized the right of third opponent to participate pro rata with plaintiffs in the proceeds of the sale, and condemned the syndic and the sheriff in solido to pay to him his share of the funds realized by the sale, after deducting necessary eosts.

In oür opinion, this judgment is erroneous, and should be avoided. It is well established under our jurisprudence, that a mortgagee who transfers part of the mortgage debt to another, cannot compete with his transferee for the proceeds of the mortgaged property, where the amount is not sufficient to satisfy both. This principle is not only established by sound jurisprudence, but derives its sanction from reason and equity, which both repel the idea that a vendor of a claim, after receiving the price of it from his assignee, should be allowed by his own act to defeat the latter in his right of recovery.

Salzman vs. His Creditors, 2 R. 243.

Barkdull vs. Herwig and Smith, 30 An. 618.

Reine vs. Sack, 31 An. 859.

In this case, after deducting costs, the balance of the proceeds of the sale is $2400; and plaintiffs’ note with interests, after deducting credits, amounts to $2200, and hence, under the decree of the lower court, the amount realized by plaintiffs as assigpees, under their execution, would dwindle down to a trifling sum; and by excluding third opponent from any participation in the proceeds of the sale, their claim would be satisfied.

But third opponent urges that he is not affected by the rule quoted above, for three reasons:

1st. Because in his endorsement of the note, so as to vest ownership in Abney & Co., he expressly stipulated that he would not be held liable for the payment of the note.

Such a stipulation could and did have the effect of releasing him of any personal responsibility as endorser but no more. It could not and did not release him from his obligation as warrantor, C. C. 2646, and of itself it cannot place him beyond the reach of the rule applying to him as mortgagee selling to another a part of the mortgage debt.

2d. He urges that having made a donation of the note to his daughter, Mrs. Carroll, and having received no consideration from Abney & Co. for his endorsement, he occupies an exceptional position as transferrer.

The record is silent as to the consideration of the transfer to his daughter. But even if it were proved, as alleged, that it was a donation, his position would be equally untenable. The fact that the daughter in her transfer obtained valuable consideration from Abney & Co. is sufficient to shield the latter as assignees, as against Boland the original mortgagee. He could not be tolerated in donating such a claim to-his daughter, to ensnare innocent third persons to give her credit on the strength of the claim thus transferred, and then attempt to defeat such assignees, holding under his title, in their right of recovery.

3d. He finally relies upon a special contract under which Abney & Co. agreed with the administrator of the Walmsley succession to his participating pro rata with them in the proceeds of the sale.

Plaintiffs objected to the introduction of any testimony in support of this alleged contract, on the grounds that a third opposition is allowed under our laws only when the third opponent claims to be the owner of the thing seized, or when he sets up a privilege on the proceeds of the thing seized and sold.

In this case third opponent did set up a privilege on the thing sold, and the proof of the alleged contract, being intended to show that his privilege was concurrent with that of plaintiffs, the evidence was properly admitted. T. C. Walmsley, the administrator, is the only witness who testifies to the existence of the alleged contract, and his statement is flatly contradicted by two other and disinterested witnesses, and is also rebutted by circumstances and transactions shown by the record.

A careful examination of the evidence on that point, satisfies us beyond á doubt that no such contract was ever entered into.

Our conclusion is, therefore, that third opponent has utterly failed to show any facts, agreement, or circumstances which should screen him from the operation of the rule which we have quoted above.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and adjudicating as the lower court should have done, we order, adjudge and decree that the proceeds of the property seized and sold in this case be applied by preference over all other creditors to the payment in capital and interest of the note transferred to Abney & Co., and now held by C. Chaffe, Jr., syndic of Lisso & Scheen, and that the balance, if any, of such proceeds be applied to the payment of third opponent’s claim; and it is further ordered that all costs incurred by his third opposition, and the costs of this appeal be paid by third opponent.

Levy, J., recuses himself in this case.


author: Bermudez, C. J.

text:
    No. 8186.
    Succession of John Frazier.
    A testamentary executor, who is also a universal legatee, although, he has been recognized by the Probate Court in the two capacities and ordered to be put in possession, can be compelled to give security under Article 1670, C. C., if he has continued to act as executor.
    After the order to give bond has been rendered by the Court, the executor cannot, to prevent its execution, raise any issue as to the merit of the creditor’s claim.
    The giving of bond does not admit the creditor’s claim, which may be afterwards contested in other proceedings.
    A PPEAL from the Twelfth Judicial District Court, parish of Grant. Barbin, J.

      B. J. Bowman for Plaintiffs and Appellees:
    In a rule to compel a testamentary executor to give bond and security, under Art. of R. C.f the executor cannot contest the order of the probate judge, that he shall give security within thirty days from service.
    Such an order is within the exclusive discretion of the probate judge is a mere conservatory proceeding, not subject to revision by appeal.
    To permit the executor to refuse to obey, under the pretext of litigation, would be to defeat the very purpose of the law, as there would be no difference in the delay and expense between such a proceeding and in an action to recover judgment, and this delay would often consume years, and leave the succession unrepresented, or the executor free to waste its effects without security.

      Jaoli & Buchner for Defendant and Appellant.
   The opinion of the' Court was delivered by

Bermudez, C. J.

John Frazier died in 1878,'leaving a will by which he instituted his wife his universal legatee and appointed her the executrix thereof.

Shortly after, she was recognized by the court in both capacities» and was ordered to be put in possession.

Two years afterwards, parties 'claiming to be the heirs of John. Waddill and, as such, to be creditors of the estate of John Frazier, who-had served as surety on the bond of the administrator of their- father’s-estate for upwards of twelve thousand dollars, presented a petition, sworn to, averring their claim and asking that the executrix be ordered to give bond under the provisions of 3710 R. S., which now form Art. R. C. C. 1670.

The court made an order directing the executrix to furnish a bond, within thirty days, in favor of the petitioners, in a sum exceeding by one-fourth the sum of $12,980 63, or by one-fourth the amount of the-inventory of the succession of John Frazier.

Mrs. Frazier, as surviving widow and as executrix, came into court, and filed an answer, setting up seven grounds of defense, which it is unnecessary to enumerate, but which assail the pretensions of the plaintiffs as creditors.

From a judgment sustaining the order to give bond, the executrix has appealed.

The portions of Article 1670, which applies to this case, read as follows:

“ Any person having a claim for money against the succession, or claiming the ownership of specific property in possession thereof, whether such claim be liquidated or not, can compel the testamentary executor to give security for an amount exceeding by one-fourth the amount of money, or the appraised value of the property claimed.
“It shall be the duty of the judge, without further proceeding or delay, to issue his order commanding the testamentary executor to give the required security,” etc.

As a rule, testamentary executors are dispensed from giving security, but to that rule, the law has made exceptions, within which the present case comes.

The record does not show that Mrs. Frazier has liquidated the estate of her husband, and has been legally put in possession of it as his universal legatee. The .very appearance which jshe has entered in this case is in her capacity of executrix.

In order to vest the property of a succession in a universal legatee, who is at the same time testamentary executor, there must be some deliberate act on his part showing a purpose to take possession as such. Labatut vs. Prewett, 1 Woods, 144.

■The action for a separation of patrimony can only be maintained where the heir has accepted unconditionally. 29 An. 445.

Until then the possession of the executor is for account of all concerned, whoever they be.

The objections made by the petitioners to the trial of the issues sought to be made by the executrix, were properly urged.

The law distinctly says that “ no proceeding,” under the provisions quoted, "shall decide in any manner the merit of the claim set -up against the succession.”

We consider that it was the right of the petitioners, although their claim was not liquidated, to provoke and obtain the order to give bond, which was issued, and that the executrix should have complied with it, without prejudice to any of her rights to contest in a proper action, the pretensions set. up by the plaintiffs, either against the succession or against herself as universal legatee. 27 An. 347.

We find no error in the judgment appealed from. It is affirmed with costs.

Mr. Justice Levy recuses himself, having been of counsel.