text:
    No. 1850.
    M. Beyris, Widow and Administratrix, v. J. G. Spor.
    The question of tlie identity of a party wlio sues in a representative capacity, must be pleaded specially in limine litis, and before issue is joined.
    In case of a deposit of a particular thing, such as gold coin, the depositary may be condemned in the alternative to return the thing deposited, or pay its value in money.
    APPEAL from the Third District.Court of New Orleans. Emerson, J.

      Saucier & Miehinard, for plaintiff and appellee. Cooley & Bhil■liys, for defendant and appellant.
   Howell, J.

The plaintiff, as administratrix of the succession of Franc Sartini, deceased, sued the defendant for $835, gold, deposited as per receipt given by the deceased. The answer is, first, a general denial, a special denial of plaintiff’s capacity and appointment, and an allegation that said gold was left with defendant, by Sartini, to be sold, and the proceeds to be placed to the, credit of the latter, which was done, and that a balance of $547 57 is still due defendant on account, by the succession, which he pleads in reconvention. Judgment was given in favor of plaintiff for the amount of the gold, or in the alternative for $1169, as its equivalent.

No evidence was adduced to sustain the special defense, but the defendant contends that the plaintiff has failed to prove her capacity ■, that the letters of administration, introduced in evidence, were issued to W. M. Sartini, while plaintiff describes herself as “Mina Beyris, widow in community of her late husband, and administratrix of his ■succession,” and there is no proof of identity.

There is carelessness in the pleadings on both sides, and in the presentation of proof; but we are inclined, under the circumstances of this case, to sustain the action of the judge a qiio, who, we presume, was satisfied that the letters of administration were issued to the person who presented them, as her authority to stand in judgment in behalf of the succession, rather than conclude that' she practiced a deception and fraud in suing in a capacity possessed by, and using-letters-issued to, another. The judge was satisfied that the plaintiff legally represented the succession, which was the question really raised. But, as urged by her counsel, this question, to avail defendant, should have been pleaded in limine litis, and not after issue was joined by a general denial. See 21 A. 188.

The defendant further contends that there is error in condemning him to pay the amount of gold claimed, or its equivalent in currency. He is sued as the depositary of a certain sum in gold, and Art. 2915 C. C. says, he “ ought to restore the precise object which he received. Thus, a deposit of .coined money must be restored in the same specie in which it was made, whether it has sustained an increase or diminution of value.” The relations of depositor and depositary, and not those of creditor and debtor, exist. The evidence sustains the value fixed by the District Judge, which is to be paid in default of paying the gold.

We find in the record no good ground for remanding the cause to give the defendant an opportunity to make out his defense.

Judgment affirmed

Rcheariug refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 1876.
    Pierce Bayly and W. F. Houston, Curator, v. R. H. and G. M. Bayly.
    The principal is not bound by the receipt of his agent, when it is shown that the agent has been deceived by false representations of the debtor. In such a case the principal may recover from the debtor the balance duo, after deducting the amount paid to the agent m fall settlement c-f the demand.
    APPEL from Sixth District Court of New Orleans. Duplantier, J.

      1lace, Foster & F. T. Merrieli, for plaintiffs and appellees. J. Ad. Rosier, for defendant and appellant.
   Taliaferro, J.

Tins suit was brought by Pierce Bayly, and, after his decease, continued by his curator, against the defendants, to recover from them the sum of $2386 45, and interest, an alleged balance due the plaintiff on the collection of a promissory note of N. C. Eolger, owned by plaintiff, and placed in the defendant’s hands, to be collected for him. ■ He charges that this sum of $2386 45, with eight per cent, interest, from the nineteenth of August, 1865, has been illegally and fraudulently withheld from him by defendants, who, in December, 1865, rendered to plaintiff’s agent, II. M. Thompson, a false and fradulent account of his transactions in regard to plaintiff’s interests, and by which they concealed from plaintiff’s agent the fact that they had collected the said note of Eolger; in full, pretending that they had compromised with Eolger, by receiving fifty cents on the dollar only,' and by these fraudulent misrepresentations had induced the agent, Thompson, to sign a receipt for a much smaller sum than was justly due the plaintiff. The answer denies all the allegations of the plaintiff, and prays that his demand bo rejected.

The judgment of the lower court was in favor of the plaintiff for the amount claimed by him, and the defendants have appealed. Pending this suit in the lower court, the pdaintiff died-, and Houston rvas appointed curator of his estate, and in his name, as curator, the suit was continued.

A clerical error in the supplemental petition of the curator, by which he was styled, “ curator of absent heirs,” gave rise to an exception that in that capacity he could not stand in judgment. On motion afterwards of plaintiff, the clerical error was corrected, it being shown, that Houston was appointed curator of the succession of Pierce Bayly. To this ruling of the court the defendants objected, and retained a bill of exceptions. We think the court properly allowed the correction of the error, which was obviously a mere clerical one. It worked no injury to the defendants, and was a right the plaintiff was entitled to. Several other bills of exceptions are in the record, but we deem it unnecessary to pass upon them. The one relating to the competency of the witness, Thompson, on the ground that his wife was named universal legatee of Pierce Bayly, in his will, wo omit to examine, because there is abundant evidence in the record without that witness’ testimony to decide the controversy.

The facts of the case are, that Pierce Bayly, a resident of Mississippi, was the owner and holder of several promissory notes of considerable amounts, which he had intrusted to the defendants, his relatives in New Orleans, to collect for him. Among these notes was the one already mentioned of N. C. Eolger, for the sum of $3500. This note was one of a scries of five, executed by Eolger, the whole amounting to $22,500. R. H. Bayly, who figures prominently in these proceedings, and against whose acts the plaintiff complains most, was the holder of the other four notes, and having control of the one owned by Pierce Bayly, proceeded against the maker by suit, obtained judgment and an order for a sale of certain valuable property in New Orleans, mortgaged to secure their payment. The. notes were all dated twenty-third January, 1860, and drew eight per cent, interest from their respective maturities. The note for $3500, owned by Pierce Bayly, was due twenty-third January, 1861. The other four on the twenty-third January, 1862. Three of them for $5000 each, and the other for $4000. On the $3500 note there was indorsed receipts for the payment of interest for the first and second years — that is, from 1861 to 1802. These indorsements were made by Pierce Bayly, as it seems, before the note went into the hands of R. EL Bayly. In like manner, on the other notes, indorsements of payments of the interest for one year, or up to 1863, appear. The mortgaged property was sold on the seventeenth of August, 1865, and purchased by R. H. Bayly, at the price of $26,500. The property was sold at twelve months’ credit, but no bond, it appears, was given, the sheriff’s return showing that the purchaser, as holder of the five notes, retained in his own hands the entire amount bid.

On the fourteenth December following the sale of the property, an account was furnished Thompson, the agent of Pierce Bayly, in which it is stated that at the date of August 19, 1865, the note oí Eolger, owned by Pierce Bayly, amounted, principal and interest, to $4238 90, and that it was “ settled at fifty cents on the dollar, cash, on principal and interest.” Thompson, it appears, believing this statement true, and that the account was rendered in good faith, received the one-half of $4238 90, for his principal. In the month of March, 1866, suspecting that there was error and unfair dealing in the statement made in December, counsel were employed to investigate the matter. A letter was written by the counsel to the defendants, suggesting error, in the account furnished Pierce Bayly, and requesting them to call and explain the apparent error, and, if need be, correct it. This letter was dated March twentieth, and, no response being made, it was followed by another, under date of the thirtieth of that month, of a more decided and stringent character. Thereupon, as stated by one of the counsel who testified in the case, an account was exhibited, but a copy of it was not permitted to be taken. That afterwards, on the trial of the cause, an order duces tccmn to produce that account, another and different account was produced. This is the account designated in the record as document “,0,” over which the contest in this case is made. Subsequent to the rendition of this account, defendants wrote to Thompson, the agent, informing him ho had bought the property sold under the mortgage, on joint account, for themselves and Pierce Bayly. By the account “O,” it was made to appear that the proceeds of the sale fell short of paying the entire amount of all the notes, and interest due on them, $467 50, the deficit on Pierce Bayly’s note, on a pro rata estimate, being only $72. A scrutiny of the account by the plaintiff shows that Eolger was charged with interest on the $3500 from twenty-third January, 1861, and on $19,000, amount of the other four notes from the twenty-third January, 1862, whereas the interest on all of the notes had, before suit was brought, been paid up to twenty-third January, 1863. The additional amount of interest thus included in the judgment, sum up the claim against Eolger to more than $1500 above the true amount of his indebtedness, thus showing the pretended deficit of $467 50. Deducting the overcharge of interest, it appears that the 'entire debt, principal and interest, was fully jiaid. Tlio plaintiff shows various other errors and inaccuracies in this account, which it is not necessary to notice. We are fully satisfied that the defendants collected the whole amount of the debt against Eolger, and that they should account to the plaintiff for the amount-claimed in his petition as awarded by the court below. The course pursued by the defendants appears to have been singularly irregular, to say the least of it; showing throe different accounts at different times, all at variance with each other, obtaining judgment for more than they were entitled to, and first informing the plaintiff’s agent that they had compromised with Eolger for one-half, then presenting accounts showing they had realized the whole debt, and afterwards setting up that the property was bought on joint account.

It is ordered, adjudged and decreed that tlio judgment of the District Court be affirmed, with costs in both courts,


text:
    No. 1678.
    Louis Surgi v. George Colmer
    In a petitory action tlie party assailed may inquire into the regularity of the proceedings under an order of seizure and sale by which the attacking party acquired title to the property, and if the formalities required by law have not been observed in making the sale under the order, the title of the sheriff is a nullity.
    A sale of property under an order of seizure, after the mortgage debtor has died, without making the heirs or legal representatives parties, is a nullity,
    A party having acquired title and possession of real property at probate salé, regularly made, will hold it against a sheriff’s'title made under an order of seizure, in which the formalities required by law have not been observed.
    APPEAL from Second Judicial District, parish of Jefferson. Fugue, J.

      Finney <& Miller, for plaintiff and appellant. F. Wooldridge, for defendant and appellee.
   Taliaferro, J.

The plaintiff instituted this suit to recover a tract of land situated on the the Island of Barrataria, known as The Little Temple,” by which term is designated a large mass of shells, which it seems constitute the principal value of the property, and which are brought in large quantities to New Orleans and used for tlio improvement of the streets, landings, etc., of the city. The defendant is in possession, and for near twelve months before the institution of this suit,' leased the property to persons engaged in the traffic in shells.

Both parties trace title from one Louis Decueris, a former owner, who, both contestants admit, had a perfect title. The plaintiff claims under a sheriff’s deed to him as purchaser of the property at a sale made via executiva, to pay a debt owing by Decueris to plaintiff and secured by mortgage on the property. The defendant sets up title by virtue of a probate sale of the property of the succession of Deeueris, made in the parish of Livingston. This sale was made on the fourth of May, 1867. Deeueris died on the twenty-seventh of November, 1862. The sheriff’s sale, made under an order of seizure and sale, and by virtue of which Surgi claims the property, toolc place on the seventh of July, 1863. On the trial of the case in the court below, the defendant had judgment in his favor, and the plaintiff takes this appeal.

The defendant combats the validity of the title set up against him on several grounds:

That no notice of the demand or of the order required by article 736 of the Code of Practice was ever issued by the clerk who illegally issued the writ immediately and before the delay for a suspensive appeal had expired.

That the appointment of R. L. Preston curator ad, hoc was illegal and inoperative, because the defendant was not an absentee.

That when seizure was actually made the delay within which the sheriff was bound to return the writ had expired.

That Louis Deeueris having died on the twenty-seventh of November, 1862, the suit of Surgi against him was suspended until his heirs or representatives were made parties, w'hich was never done; and consequently the sale made on the seventh of July, 1863, was null, and transferred no title to Surgi, whose claim is under that sale.

The plaintiff’s counsel argues that the defendant can not draw in question collaterally the validity of the plaintiff’s title, founded as it is upon the decree of a competent court and the adjudication of the sheriff of that court; that Demieris might have contested that decree and adjudication by appeal or action of nullity, but that they must stand and have effect in any controversy between plaintiff and third persons, until set aside by a direct action.

To this reasoning we can not assent. This is a petitory action, in which the plaintiff seeks to wrest from the defendant certain property-in his possession, and to do so in virtue of the judgment, seizure and sale by which he asserts title. Ho makes directly the issue upon that title. The defendant has the right clearly to protect himself if ho can do so by showing the invalidity of the title with which he is attacked.

The case of Dufour v. Camfranc, 11 Martin, p. 607, is referred to by counsel in support of the position they assume. In- that case, Dufour and his -sister, heirs of Victor Dufour, deceased, sued Camfranc for certain slaves in his possession. Camfranc answered that he purchased the slaves sued for at a sheriff’s sale, made in the execution of a judgment against the absent heirs of Victor Dufour, and showed the sheriff’s deed. The plaintiffs replied that the judgment was null, assigning, among other reasons, that there had never been a citation issued. The court said : The decree rendered was conclusive between the same parties or those claiming under them for the • same thing.” ' But Dufour, the plaintiff, was one of the heirs against whom the judgment was rendered; therofore he could not incidentally and collaterally set .up its nullity. In Bernard v. Vignaud, 1 N. S. p. 8, a judgment had been obtained, against Foque, as tutor of minors, with recognition of legal mortgage on all the real estate he owned during the tutorship. Under this judgment proceedings had been taken against certain property then in possession of Yignaud, tho defendant, a third party, who had purchased it from Foque. The defense set up was the nullity of tho judgment, on various grounds. The plaintiff objectod to tho proceeding, as attacking collaterally the judgment he was seeking to enforce, and cited the case of Dufour v. Camfranc, just noticed. But the court ruled that Yignaud, the third possessor, was a stranger to the proceedings against Foque, and not concluded by them. That ho could therefore oppose tho nullity of the judgment.with which ho was assailed.

We sec no material distinction between that case and the one at bar. Tho defendant in this case was no party to tho judgment of Surgi against Dccueris. He was a stranger to tho proceeding. He purchased the property at a probate sale of Dccueris’ succession, and went into peaceable possession of it under that title, having previously held the promises more than twelve months as the agent of Dccueris’ widow. The defendant had clearly tho right to plead the nullity of the judgment offered by plaintiff as the basis of his title. See 3 L. 245; 15 L. 59; 2 A. 1G0; G L. 731; 1 N. S. 7.

Looking into the character of the plaintiff’s judgment, we find that upon a mortgage to him by Decucris, importing a confession of judgment, he took out an order of seizure- and sale. Tho petition was filed on the eighteenth of May, 1861. It set out that Decucris was then a resident of the parish of Orleans. The order and the writ were issued on the same day. We do not find that this writ was ever returned. We find no notice issued by the clerk. Yarious proceedings were had subsequently. An alias writ was issued on the fourteenth May, 1863, and the property sold seventh July, 1863. 'Article 736 C. P., requires the clerk of the court issuing the order to direct to the sheriff of tho parish where the debtor resides a written notice to bo given to him, and it shall, be the duty of the sheriff to serve the notice and return the original with his return, in the same manner as in ordinary citations.’’ The party against whom a proceeding via exccutiva is taken is entitled to the delay prescribed by article 736 C. P., in order that lie may take a suspensive appeal. 1 R. 295 ;• 5 A. 737; 8 A. 23.

The order was equivalent to a judgment; and the seizure being- made without the required notice being previously given, the defendant was deprived of the right of a suspensive appeal. It is shown that at the time Decucris was proceeded against as an absentee, he was living in the parish 0f Livingston, cultivating a farm and running a saw mill in that parish. The return of the sheriff of Livingston parish, to whom a notice had been sent to be served upon Decueris, that he was unable to find such a person, is scarcely to be taken as showing due diligence to find him, confronted as it is by several witnesses who swear to his actual residence and domicile there at that time.

On the twenty-fourth or twenty-ninth of November, when the writ (vas recorded in the. mortgage office, according to the act of 1857, p. 158, the time at which, by the provisions of that act, the seizure was made, the delay within which the sheriff was bound to return the writ had expired. Decueris died, as we have seen, on the twenty-seventli November, 1862. No proceedings were taken to make his heirs and representatives parties. Sale of the property was made on the seventh of July, 1863. “No judicial proceedings can be carried on in the name of a dead man, nor can the property he leaves bo taken from his heirs and legal representatives without proceeding against them as directed by law. Such execution is a nullity.” 5 R. 508; 5 A. 737. This last case is very close in point with the one before us. The judgment resisted in that case was pronounced a nullity on the grounds that there was no notice of seizure, and that the sale had been made after the decease of the defendant, without making his heirs parties.

The proceedings in the succession of Decueris in relation to the probate sale at which the defendant purchased the property in controversy seem to have been regularly conducted.

It is, for the reasons given, ordered, adjudged and decreed that the judgment of the District Court be affirmed, with costs in both courts.


author: Howell, J.

text:
    No. 2493.
    State of Louisiana ex rel. E. Marin et al. v. Parish Judge of Plaquemines.
    Where the heirs in possession allege, in opposition to the appointment of a dative testamentary executor and administrator, that there is no estate to be administered, a suspensive appeaL will lie from the judgment of the probate court dismissing the opposition; and a writ of prohibition will issue, staying all further proceedings in the cause pending the appeal.
    Articles 580 and 1059 of the Code of Practice, and article 1113 of the Civil Code, authorizing the provisional execution of a judgment appointing executors, etc., pending the appeal, where there is a contest between two or more persons for the right of preference to tho appointment, do not apply in a case whore the question is succession orno succession.
    for Writ of Prohibition. — Parish of Plaquemines.

      APPLICATION Smnbola & Diteros, for relator. William M. Prescott, Parish Judge, in propria persona.
   Howell, J.

The relators ask for a writ of prohibition to restrain the Parish Judge of Plaquemines and P. Maspero from proceeding iu the execution of a judgment dismissing their opposition and appointing said Maspero dative testamentary executor of A. Durnford, deceased, and administrator of the succession of Mrs. Durnford, deceased, on the grounds :

Mrst — That a suspensive appeal had been granted to thorn from said judgment. •

Second — That a suspensive appeal properly lies when the question at issue is, whether or not the appointment of an executor or administrator is legally possible.

Third — That the Parish Judge aforesaid was incompetent ratione materia to appoint an administrator or executor under the facts Of the case, and hence exceeded his jurisdiction.

The material facts are, that Andrew Durnford died on the thirteenth of July, 1859, leaving a will, but without appointing an executor. On the eighteenth of February, 1866, his widow was appointed and qualified as dative testamentary executrix. On the tenth of June following she died, and on the twenty-third of the next month William Erskine was appointed to represent the two estates, who died on the thirty-first of December following. On the twenty-fourth of the next month (January, 1867), the heirs of Mr. and Mrs. Durnford were put in possession of all the property of said estates by judgment of the District Court for the parish of Plaquemines. One of-the heirs afterwards sold his interest in á plantation (which constitutes the bulk of the property) to Edgar Marin, who, and the other two heirs, are the relators, and are in possession. In July, 1869, P. Maspero and another instituted proceedings before the Parish Judge, to cause the executors of Erskine to sell the property of the Durnford estates, to pay their claims in accordance with an account which had been filed by said executors.' This the relators opposed, and from the judgment overruling their opposition they took a devolutive appeal. In October following, Maspero applied to be appointed dative testamentary executor of A. Durnford, and administrator of the succession of Mrs. Durnford, which the relators opposed on the grounds that there is no succession property, as such, to be administered; that they are in possession as owners, and are the only parties to bo pursued for any debts, in the courts of ordinary jurisdiction; and one of them alleged a superior right to the appointment. From the judgment dismissing their opposition and appointing Maspero, a suspensive appeal was granted; but the judgo has since ordered that the judgment bo executed under the provisions of articles 5S0 and 1059 C. P. and 1113 C. C. lienee this application.

These articles of the Codes are applied when successions are opened to be administered, and the controversy is between two or more persons for the right of preference to the appointment of administrator, but not, as in this case, where the principal question is, succession or no succession; or whether an administration is necessary, or legally possible. The demand made by one of the relators as heir, to be appointed in preference to the creditor applying, was only incidental, and dependent on the necessity for an administration. From the judgment on the issues in this controversy a suspensive appeal was; properly granted, and any subsequent action of the judge a quo in executing the judgment appealed from is beyond his jurisdiction. See State ex rel. Stackhouse v. Judge Fifth District Court; State ex rel. Johnson v. same; State ex rel. Heirs of Pearson v. Parish Judge of Jefferson.

It is therefore ordered that the writ of prohibition issued herein be: made perpetual.


text:
    No. 1890.
    George D. Wolf v. Witherell & Co.
    The amount due at the time of the institution of the suit constitutes the matter in dispute, and' if the interest which is due at the time suit is brought, when added to the principal, is not above five hundred dollars, the Supreme Court is without jurisdiction.
    APPEAL from Sixth District Court, Parish of Orleans. Duplcmtíer, J.
    If. If. Cohen, for plaintiff and appellee. Randolph, Singleton & Browne, for defendants and appellants.
   Howell, J.

A motion is made to dismiss this appeal for want of jurisdiction.

The demand is for §480 20, with five per cent, interest from the twenty-third of February, 1867, and citation was served on the fourth of April following, at which date the principal and accrued interest amounted to less than $500. But the defendants and appellants contend that, at the time when the appeal was taken, viz: first of June, 1868, and at the time when this court was established, under the present constitution, the matter in dispute exceeded $500.

It has long been settled that the amount 'due at the institution of the suit constitutes the matter in dispute. 1 N. S. 138; 12 L. 156; 1, R. 25; 5 R. 90; 2 An. 793, 911; 7 An. 109; 10 An. 170 ; 12 An. 87. The ruling in. the case of the State ex rel. The Western Union Telegraph Company v. The Judge of the Seventh District Court for the Parish of Orleans, recently decided, is not in conflict with this doctrine, and does not apply to this case.

It is also settled that this court can not entertain jurisdiction of cases which were appealable irndor the constitution of 1864, if the matter in dispute did not exceed $500 at the institution of the suits in the lower-court. See Myers v. Mitchell, 20 An. 533.

It is therefore ordered that this anneal be dismissed, with costs.


text:
    No. 1904.
    Mayor and Council of the City of Jefferson v. L. P. Delachaise.
    .In proceedings for the expropriation of private property f:r public uso, all tho formalities prescribed by law must be strictly observed.
    APPEAL from Second Judicial District. Duplcmtier, J.

      J. Hawlcins, City Attorney, for plaintiff and appelleo. O. JS. Schmidt, for defendant and appellant.
   Taliaferro, J.

This action has arisen from a proceeding taken by the city authorities of Jefferson City to expropriate certain property of the defendant for the purpose of opening and extending one of the streets of that city. The report of the commissioners appointed to assess the damages that would ;e caused to the defendant from the •expropriation, being returned to court, its homologation was offered by the defendant. The report was confirmed by a judgment of the court; .and the defendant appeals.

The defense is, that tho proceedings were irregular, illegal, and not in conformity with tho order of the court or the provisions of the .statute regulating the manner of making expropriations.

It is provided by tho tenth section of the act of the Legislature, incorporating tho City of Jefferson, approved eighth of March, 1867, that whenever the Mayor and Council shall be desirous of opening, «to., of any street or public place, and it shall become necessary to expropriate or use any property belonging to individuals, public notice •shall be given in the city journal for one month, and in one newspaper in the city of New Orleans; that a petition, to which shall be annexed at least three copies of the newspaper in which1 the notice was inserted, and a copy of the plat of the survey of the property to be expropriated shall be presented to the District Court, requesting tho appointment of three commissioners, who shall be sworn, etc.; .that after performing the work assigned to them, the commissioners tshall return to tho court their report on or before the day fixed for the return; that public notice for twenty days shall be given of the filing of this report, calling upon all persons interested to show cause why tho same should not be homologated, etc. Under the jiro visions of this act it is shown that, on the twenty-eighth of August, 1867, an order was rendered appointing three persons as commissioners to make an assessment or valuation of tho property necessary to be expropriated for tho purpose of opening “Delachaise street from St. Charles avenue to Apollo street,” and that they should make return of their report on or before the tenth of September, 1867, and that twenty days’ notice should bo given thereof. The report was made on the tenth of September. It recites that “the valuation of fifty feet between parallel lines running from St. Charles avenue to Apollo street was found to be $3000. That the benefit accruing to the owner of that property would be $1400, and the difference would be $1600.”

Here then, by this report, the owner was to have $1600 for the ground to be taken from him. On the nineteenth of September, nine days after making this report, an. application was filed, asking further time for the commissioners to report, and, without obtaining that delay or extension of time, the commissioners, on the seventeenth of October following, presented another report, which was made the basis of the judgment. By this report the benefit accruing to the defendant from the expropriation of his property was put down at $1555, for which judgment was rendered against him, with eight per cent, interest from the twenty-ninth of April, 1868.

The rule of society, that the property of an individual may be taken from him when the wants and convenience of the community around him require that it should be dedicated to public uses, is founded upon principles recognized to be just and arising from the nature and fitness of things. The sacrifice of the individual’s rights in such cases can not be made without ample compensation to him for the deprivation he is to undergo.

This deprivation can not, in every case, be measured by commissioners •appointed to inquire, and consequently they are unable always to estimate it in dollars and cents. The principle of expropriation, although just, is not without a savor of harshness, and hence the guards thrown around the rights of the individual, to protect him fully, as far as practicable, from loss and inconvenience. These consist of a systematic order of proceeding, due notice and deliberation in every step, and a series of formalities throughout.

We do not think the requirements of the law in this case have been complied with. A second report of the commissioners, varying essentially from their first one, and made, as it seems, without judicial authority, and -more than a month after they presented their first report, is, in our view of the case, not a proper basis to found a. judgment upon. Courts have always, and properly, required in matters of expropriation a strict observance of all the required formalities. The case of City of New Orleans, praying for the opening of Dryades street, 11 An. 458, is very similar to the one before us.

It is therefore ordered, adjudged and decreed that the judgment of the District Court, be annulled, avoided and reversed. It is further ordered that this case be remanded to the court of the first instance, in order to be proceeded with according to law.

Chief Justice Ludeling and Justice Wyly absent.


text:
    No. 1355.
    State v. Charles O’Brien.
    In a verdict of guilty of murder, the jury added a recommendation of the prisoner to the mercy of the court. Held — That this addition was not’a qualification of the verdict.
    APPEAL from First District Court of New Orleans. Abell, J.
    . A. S. Herron, Attorney General, for the State. H. 0. Castellanos, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment sentencing him to imprisonment for life 'in the penitentiary for the crime of murder, and tlie points for our review are presented in his motion in the court below for a new trial:

First — The evidence is insufficient to establish a moral certainty of guilt. This question is not within our jurisdiction.

Second — -The court erred in intimating that the jury would not, under the evidence, be justified in finding the prisoner guilty of manslaughter.

There is nothing in the record to show that the judge a quo so charged the jury.

Third — The verdict rendered was qualified in language which rendered it null and void.

The qualification consists in adding to the verdict of guilty without capital punishment, a recommendation to the mercy of the court. The verdict, without this addition, was .responsive to the whole issue, and the recommendation must be considered surplusage. State v. Bradley, 6 An. 560.

We can discover no cause for disturbing the judgment, and it is, therefore, affirmed, with costs.


text:
    No. 1855.
    J. M. Wardwell v. Jacob Sterne.
    A due bill, containing an unconditional promise to pay money, falls under the denomination o promissory notes, and is prescribed by ñve years.
    APPEAL from Fourth District Court of New Orleans. Théarcl, J.

      Breaux <& Fenner, for plaintiff and appellee. D. 0. Babcttt, for defendant and appellant.
   Taliaferro, J.

This suit is brought upon an instrument written in these words:

“Due to Moses Steinbin or bearer, fourteen hundred and sixty dollars, for value received, with ten per cent, interest.

“JACOB STERNE.”

“ Jefferson, February 10, 1861.”

After an answer containing a general denial, and setting up several grounds of defense, the defendant filed a jteremptory exception, pleading the prescription of five years in bar of plaintiff’s demand. The plaintiff had judgment in his favor, as prayed for, and the defendant has appealed.

A bill of exceptions was taken by defendant to the admission by the court of certain testimony offered by plaintiff, and which had been taken under commission in the State of Texas. The objection was, that the testimony offered was not authenticated in the manner required by law j that the capacity of the justice of the peace before whom it purports to have been taken is only certified by a person subscribing himself as county court clerk of the county of Marion. The objection, we think, should have been sustained. 4 L. 119, 5 L. 265.

It lias been frequently lield by this court that the Governor’s attestation under the great seal of the State, is the best evidence of a justice’s capacity, next to his commission. See 13 L. 362; 10 R. 456; 14 An. 795. It is argued by the plaintiff that the instrument sued on in this case is not subject to the prescription of five years, not being a promissory note; and he refers to the case of Garland v. Scott, 15 An. 143" The form of the written act sued upon in that case is similar to the one [now before the court, but it differs essentially from it in this respect, that it does not contain the words or order ” “ or bearer,” and is not a negotiable instrument. True, the court there said that the instrument sued on was not a promissory note, and that, not containing on its face an express promise to pay money, it was a mere acknowledgment of a debt, leaving the law to imply the promise from the acknowledgment of indebtedness. But the instrument sued on in this case is a negotiable due bill, and we think the settled doctrine is, that a negotiable due bill is a promissory note. Parsons on Bills and Notes, vol. 1, pp. 25, 26.

In reference to the plea of prescription, the article 3505 of the Civil 'Code reads: “Actions on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, are prescribed by five years, reckoning from the day these engagements wore payable;” and by-statute of fifth of March, 1852, “ all promissory, notes, whether the same be negotiable or otherwise, shall bo prescribed by five years.”

The proscription is applicable in the present case, and no interruption of prescription being shown, the action is barred.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that judgment be rendered in favor of the defendant, the plaintiff and appellee paying costs in both courts.

Chief Justice Ludeling and Justice Howell absent.


author: Wyly, J..

text:
    No. 1852.
    Lockwood, Voorhies & Co. v. Alfred Penn et al.
    The cancellation of the official bond of the sheriff by the Governor, and the erasure of the mortgage in the manner indicated by the act of March 12, 1855, discharges the sureties from all liability on the bond. -
    APPEAL from Fourth District Court, parish of Orleans. Théavd, J.

      J. Ad. Bogie)-, for plaintiffs and appellees. Bradford, Lea & Mnney, for defendants and appellants.
   Wyly, J..

The defendants have appealed from a judgment against them as sureties on the oficial bond of John Mi Bell, formerly sheriff of the parish of Orleans, who died iu 1859.

They resist the demand of the plaintiffs on the following grounds.

First — Because the bond on which they are sued was regularly canceled and annulled in 1859 (after the termination of Bell’s term of office), according to the provisions of the act of twelfth March, 1855,, whereby their obligation as sureties was discharged.

Second — Because the plaintiffs have not preserved and enforced their legal mortgage on Bell’s property, resulting from the registry of his official bond; that failing to assert their rights as mortgage creditors on his property or its proceeds, and failing to resist the-erasure of the mortgage, they have lost their recourse on them as-sureties ; that plaintiffs can not now subrogate them, to their rights as. mortgagees, and they are discharged, under article 3030 of the Civil Code,, and the decision in Saulet v. Trepagnier, 2 An. 428, 429, and the-Succession of Pratt, 16 An. 357.

We can not assent to the views expressed by the learned judge who decided the case in the corirt below. The cancellation of the bond,, and the erasure of the mortgage in the manner indicated by act of 1855, in our opinion, discharged the obligation of the sureties. The-language of the law is clear and unambiguous. The ninth section ©f the act declares that, The Governor is authorized to raise and annul,, on the application of any interested party, all bonds with security, and all mortgages which have been furnished by any public officer who may have resigned or died, or whose office may have expired by limitation, or when dismissed from office. Whenever there shall be no opposition thereto, after public notice, as provided in the following section, and when he shall be satisfied that the duties and obligations, imposed by law on such public officer, and for the faithful performance of which the bond' had been furnished, were either by him or his successors or assigns faithfully executed.” Revised Statutes, 68,. section 9.

The eleventh section provides that whenever, after the legal notices, any opposition shall be made, it shall be the duty of the Governor to refer the parties to any court of competent jurisdiction, that it may be decided on their respective rights, according to law.

The plaintiffs could have preserved their claim against the sureties on the bom., by making opposition within the period fixed by law,, after publication of the legal notices. That their claim against Bell was in litigation is no excuse for their laches.

The law prescribing the bond and its effect as a legal mortgage, after-registration, on the property of the principal obligor, has wisely provided the mode of releasing the sureties, as well as the mortgage.

The constitutional objection is without weight.

It is therefore ordered that the judgment appealed from be avoided and annulled, and it is ordered that plaintiffs’ demand be rejected,, with costs of both courts.

Chief Justice Ludeling and Justice Howell absent.


author: Howe, J.

text:
    No. 1796.
    Mrs. M. J. Fisher v. Michael Hyland.
    On questions of fact, the verdict of the jury is entitled to weight, and will not he disturbed on-appeal, unless it is manifestly erroneous.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      Thomas Sunton, for plaintiff and appellee. Buchanan & Gilmore, for defendant and appellant.
   Howe, J.

This suit was instituted to recover a sum of money alleged to have been unduly paid bjr or in behalf of plaintiff to defendant. We do not deem it necessary to state the voluminous and conflicting testimony which is to be found in the record. It appears to, liave been established to the satisfaction of the jury before whom the-cause was tried, and of the judge a qiio, who refused a new trial, that the claim of the plaintiff was well founded, and we are not prepared to say that the judgment thus rendered is manifestly erroneous. Denaule v. Nunez, 6 L. 31; Orleans Nav. Co. v. Allard, 6 L. 492.

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

Rehearing refused.


author: Howe, J.,

text:
    No. 2457.
    Henry Keenan v. W. A. & F. G. Freret.
    Evidence or affidavits not offered or filed in tho lower court can not be filed or noticed in the Supreme Court.
    APPEAL from District Court, parish of St. Charles. Beauvais,

      B. Billeul, for plaintiff and appellee. Birrhammer & Kennard, fox-defendants and appellants. . . '
   Howe, J.,

The defendants and appellants ask- that this .cause may be remanded for a new trial, on the ground that they- were- deprived of their legal rights in the lower court, tho plaintiff, they allege, having “ disregarded the uniform practice, and violated positive rules of the court, in securing his judgment, as will appear from the record and accompanying affidavits.”

We have not permitted the affidavits to be filed, as no new evidenco can be received in this court in such a case as this. The record itself does not support the allegations of the appellants. Tho appellee has prayed for damages.

It is therefore ordered that the judgment appealed from be affirmed, with costs, and with fifty dollars damages for a frivolous appeal.


text:
    No. 1656.
    J. M. Oriol v. His Creditors—On Opposition to Tableau.
    The wife of an insolvent, having specially renounced her mortgage rights in due and legal form, in an act of mortgage given by her husband before his insolvency, in favor of a creditor, must show, in order to defeat the rank of the mortgage over that of her own after ins - vency, that her renunciation was obtained through improper influences of her husband. The fact that the husband was present at the time of signing the renunciation does not prove that he exercised improper influence in procuring her signature.
    APPEAL from Sixth District Court of New Orleans. Duplantier, J.

      John N. New, for plaintiff and appellant. 33. Bermudas, ior Mrs. Oriol. M. M. Cohen, for syndic, appellees.
   Howell, J.

J. M. Lapeyre and Pike, Lapeyre & Brother have ■appealed from a judgment rendered on various oppositions to the tableau filed by the syndic herein. They complain that the mortgage ■of the insolvent’s wife has been enforced upon the proceeds of the real estate surrendered, and their own disallowed.

More than three months prior to the failure of the insolvent, he ■executed his note for $5000 to his own order, payable at the banking-house of Pike, Lapeyre & Brother, and secured by mortgage on certain property in favor of J. M. Lapeyre, a member of said firm, in which ■act of mortgage Mrs. Oriol, the wife of the mortgagor, duly assisted, intervened and made a renunciation in the usual forn , in favor -of the mortgagee, his heirs and assigns.

In her opposition to the tableau she alleges that her husbam. received no consideration for the note and mortgage given to Lapeyre; that at the date thereof her husband was insolvent to the knowledge of Lapeyre, and that she signed the act of mortgage and renunciation ■of her rights unaware of the contents of the document, in the presence of her husband and under his influence and pressure.

The act of renunciation is in due form, and contains all the declarations and recitals required by law, as to-the manner of taking the renunciation, reading and explaining the act of mortgage, specially informing the wife of her rights, etc., out of the presence of the husband; and there is not sufficient evidence in the record to contradict this authentic instrument. Her signing it in the presence of the husband is no proof of undue marital influence, but something necessary to be done.

The evidence shows that Oriol, the mortgagor, was, at the time, largely indebted to Pike, Lapeyre & Brother, and that, in taking the note and mortgage, Lapeyre acted for his firm, and to secure their debt pro tanto, taking also other securities for other portions thereof; and it does not show that he was then aware of the debtor’s insolvency.

The fact that the mortgage was taken in the name of a member of the firm is no proof of a want of consideration or of invalidity. The principal obligations had a legal existence, and the accessory, being- in legal form, is binding on the property mortgaged, and must rank the mortgage of the wife, who specially renounced her mortgage rights.

W. W. Carié & Co., appellees, in their answer to the appeal, ask an amendment of the judgment, but as the change prayed for would affect others beside the appellants, it can not be granted, even'if thoy bad a good, ground of complaint. They should have appealed, as judgments can not be amended as between appellees.

It is therefore ordered that the judgment appealed from be reversed so far as it sets aside the mortgage in favor of J. M. Lapeyre, for Pike, Lapeyre & Brother, and that they, the said Pike,.Lapeyre & Brother, be placed on the tableau as mortgage creditors to the amount of five thousand dollars, next in rank to J. B. Leprétre, to be paid out of the proceeds of real estate mortgaged to said partios, and in preference to the claim of the insolvent’s wife.

And it is further ordered that, as thus amended, the judgment be affirmed, costs of appeal to be paid by the insolvency.


text:
    No. 2466.
    State of Louisiana v. John L. Lewis, Judge of the Eleventh Judicial District of the State of Louisiana.
    In a contest for office under tbe Intrusion Act, a Parish. Judge may, pro hac vice, when acting in the place of the District Judge recused, exercise all the powers conferred on District Judges by the Intrusion Act.
    The capacity of a public officer to x>erform the duties of his office can not be inquired into collaterally.
    If tho evidence shows that a District Judge has, prior totholate war, taken an oath as a member of a State Legislature or other public office of any State, to support the Constitution of tho United States, and that after the breaking out of hostilities ho has violated his oath by active participation in the rebellion, his right of office and his eligibility to hold the same may bo tested by proceedings in the courts in the name of tho State, under the Intrusion Act, and the prohibitions contained in the fourteenth amendment to the Constitution of the United States will, in this proceeding, be enforced against him.
    The issuing of a second commission by the Governor to a public officer will not cure his ineligibility under tho first commission.
    APPEAL froA the Eleventh J udicial District, Parish of Claiborne. Scott, Parish Judge.

      IT. J. Sandlin, District Attorney, and Henry Gray and L. H. Watlcins, for plaintiff and appellee. J. G. TEyan, for defendant and appellant.
   Taliaferro, J.

This suit is brought under the “ Intrusion Act,” against John L. Lewis, claiming the right to exercise the duties of the office of District Judge of the Eleventh Judicial District of the State.

Tho case was tried before the Parish Judge of the parish of Claiborne, acting in place of the District Judge, recused. There was judgment against the defendant, divesting him of the office he claims, and he prosecutes this appeal.

■ We will first examine the motion to dismiss the appeal. The ground taken is, that the appeal was not brought up within ten clays from the time of the rendition of the judgment, as required by law. The appellant is clearly not in faiüt. The law does not require vain or impossible things to be done. The order of the judge a quo fixing the return day at a period extending beyond ten days was necessary, under the circumstances, for making out tbe .transcript and transmitting it the distance it bad to be sent, at a,time when intercommunication is slow and difficult. . Tbe motion to dismiss is overruled. See 12 An. 825 j 13 An. 175;. 21 An. 289.

Several exceptions were filed by the defendant, which it becomes necessary to examine..

First — That N. J. Scott, before .whom the case was tried, is not Parish Judge.

Second — That Parish Judges have no warrant of law to try causes in chambers.

'Third — That this case, having been instituted against the defendant when he was acting as judge under his first commission, it can not be maintained now, as he exercises the duties of his office under and by virtue of a commission subsequently conferred upon him.

Fourth — That N. J. Scott was never required, as Parish Judge, to try the present case, and that he was never recognized by the District Judge as.being Parish Judge.

It appears that N. J. Scott performs the duties of the office of Parish Judge of the parish of Claiborne. His capacity’ and right to perform these duties can not. be inquired into collaterally. Whatever functions or powers District-Judges are invested with under the Intrusion Act, Parish Judges may exercise pro hoc vice when acting in. place of the District Judge recused. If ineligible under the first commission, the defendant is equally so under the second, unless subsequent to the date of the last commission the ineligibility, if any, has been removed. The order of the defendant recusing himself directs the Parish Judge to try the case, but names H. A. Drew as that official, and adds : “ He refuses to do so.” The order is directed to the Parish Judge,” and the person acting under that order in the capacity of Parish Judge will be presumed to be the proper officer. We think the exceptions were properly overruled.

The ruling of the court was also correct in rejecting the written opinion of the defendant rendered on declining to recognize N. J. Scott as judge, at the time of making- the order of recusation.

The petition charges that the defendant unlawfully holds the office of District Judge of the Eleventh Judicial District, and makes the following allegations: .

That anterior to the late rebellion, the defendant held, in the State of Georgia, and under the constitution and laws, the several offices o* State Solicitor, District Attorney and member of the State Legislature) and, in order to hold those offices, took an oath to support the constitution of the United States, and afterwards voluntarily engaged in rebellion against the United States, in aid of the so-called Confederate States; that the disabilities thereby incurved by virtue of the third section of tlie fourteenth amendment to the constitution of the United States have not been removed ; that defendant is not learned in the law, as required by article 83 of the constitution of 1868 ; that defendant has not practiced law for the space of two years next preceding his appointment to said office, as required by article 84 of the constitution of 1868; that there was no vacancy in the office at the time of. his appointment to it.

To establish the first allegation, the plaintiff introduced the law of Georgia, approved twenty-eighth of January, 1822, making it obligatory upon all officers, civil and military, in the State, to take an oath to support the constitution of the State and of the United States. The testimony of a witness who had served in the Georgia Legislature as a member of that body, at the same time that the defendant was also a member, proves the same fact of the requirement to take an oath to support the constitution. He testifies to having taken the oath himself, as a member of the Legislature of Georgia. It is fully established that, during the rebellion, the defendant went into its support in command of a company of soldiers. The facts shown abundantly justify the strong presumption that, as a member of the Georgia Legislature, prior to the rebellion, the defendant took an oath to support the constitution, of the United States. Nothing is offered to rebut this presumption, and no reasonable doubt of the fact remains. Our view of this case renders it unnecessary to examine the evidence offered to sustain the other allegations, and we are satisfied that the judgment of the court a qua is correct.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed, with costs in both courts.

Chief Justice Ludeling and Justice Howell absent.


author: Wyly, J.

text:
    No. 2487
    The State, ex rel. James Bankhead, v. The Judge of the Seventh District Court for the Parish of Orleans.
    A party wishing to stay the execution oí a judgment directing the seizure 'and sale oí mortgaged property by a suspensivo appeal, must give bond within the time aUowed in an amount one-half over and above the amount of the order, the same as in an ordinary judgment for a fixed amount.
    If the District Judge has committed an .error in fixing the amount of the bond for a suspensive appeal from an order of seizure and sale, the appellee is entitled to proceed with the execution of the judgment, and a writ of prohibition will not issue restraining him from executing the order pending the appeal.
    APPLICATION for Writ of Prohibition. Parish of Orleans.

      Jj. JS. Bimonds, for relator. T. Wharton Collens, Judge.
   Wyly, J.

The relator appealed from an order of seizure and sale, sued out against him by Solomon Rosenthal, on a mortgage note for $13,000 and interest, the amount of appeal bond being $2800, as fixed by the Judge of the Seventh District Court for the parish of Orleans.

That part of the order of appeal fixing the amount of the suspensive appeal bond, was subsequently rescinded by the judge, and execution was allowed to issue.

The relator now applies to this court for the writ of prohibition to restrain the execution of the judgment, on the ground that the District Court was divested of jurisdiction when he complied, within legal delays, with the order of appeal, by giving bond in the amount fixed by the judge, and that the said court could thereafter inquire only into the sufficiency of the surety, and whether the order of appeal had been complied with; that if the judge erred in fixing the amount of the bond at too small a sum, his error could be corrected by the Supreme Court only ; and his own judgment could not be revised by him after signing it.

The relator also contends that the amount of the bond so fixed by the judge is sufficient for a suspensive appeal, being sufficient to cover costs and damages, inasmuch as the appeal is from an order of seizure and sale, and not from a personal judgment. By article 575 of the Code of Practice, it is provided that the appeal, when taken within legal delays, shall stay execution till final judgment be rendered on the appeal; “provided, the appellant give his obligation with a good and solvent security, residing in the jurisdiction of the court, in favor of the appellee, for a sum exceeding by one-half the amount for which the judgment was given, if the same he for a specific sum, as surety for the payment of the amount of such judgment, in caso filio same be affirmed by the court to which the appeal is taken.”

Article 578 declares: “If the appeal be taken after the ten days have expired, or if the appellant fail to furnish the surety required in the preceding articles, such appeal shall not stay execution of the judgment.” * * * * * * * *

The mortgage imported a confession of judgment, and the order oí seizure and sale granted thereon was for $13,000 and interest — a specific sum. A judgment in, rem may be for a sum as specific as a personal judgment. To suspend the execution of a judgment for a specific amount, whether it be an order of seizure and sale or an ordinary judgment, the appeal bond must conform to article 575 C. P. 20 An. 179.

If the appellant fails to furnish such a' bond, within legal delays, the appellee has the right to proceed with the execution, notwithstanding the appeal. C. P. 578 ; 9 R. 186; 5 L. 129 ; 5 An. 360; 12 An. 175.

The question is not whether this court-, or the court below, has jurisdiction, for undoubtedly the bond for the amount fixed by the judge, -though less than the law requires for a suspensive appeal, is sufficient for a devolutive appeal, and this court is invested with jurisdiction of the case ; but the question is, can the improvident order of the District Judge, fixing the bond for less amount than required by law, deprive the appellee of the right to proceed with the execution of his order oí seizure and sale, notwithstanding the appeal? We think not. The only limitation of the right of the appellee to do so is that imposed by article 575 C. P., which stays the execution, provided a bond with solvent security be given, within legal delays, for a sum exceeding by one-half the amount for which the judgment was rendered. If for a less amount, as in the case before us, it will not stay execution. C. P. 578; 5 An. 360 ; 12 An. 175.

Whether that part of the order, fixing the amount of the bond in a sum less than that required by law for suspensive appeals, was rescinded or not, the appellee was entitled to proceed with the execution of the order of seizure and sale; and wo can not grant the writ of prohibition applied for to restrain the District Judge from permitting the appellee to pursue his legal rights.

It is therefore ordered that the writ of prohibition be disallowed, and that relator’s petition bo dismissed, with costs.


text:
    No. 2485.
    The State, ex rel. Wm. S. Mount et al., v. The Judge of the Sixth District Court of New Orleans.
    Tbe jurisdiction of the appellate court attaches as soon as the bond is filed, and citation oí appeal is issued.
    The jurisdiction of the District Court ceases at the moment the appellate jurisdiction attache i, and any order made or proceeding had by the District Judge, after his jurisdiction has ceased, is null.
    From the moment the appellate jurisdiction attaches, a writ of prohibition will issue restraining the District Judge from further proceeding in the cause pending the appeal.
    APPLICATION for Writ: of Prohibition. — Parish of Orleans.

      J. B. Beclcwith, City Attorney, for relator. IF. B. Oooley, Judge.
   Taliaferro, J.

The Judge of the Sixth District Court of New Orleans having, on the relation of C. M. Prost, issued a writ of mandamus against William S. Mount, Treasurer of the city of Now Orleans, ordering him to pay Prost a sum of money, and the order being made absolute, the defendant, Mount, and the City of New Orleans, applied for and obtained suspensive appeals, which afterwards,' upon a rule taken upon them by the relator, Prost, were set aside. The defendants thereupon applied to this court for a writ of prohibition, and a rule nisi being granted, the judge responded in a written argument, in which he maintains the following propositions:

That the court a qxia does not lose its jurisdiction simply by granting an appeal. That it loses its jurisdiction at the same moment that that, of the appellate court attaches. That article 901 of the Code of Practice teaches that the jurisdiction of the appellate tribunal attaches only by the happening of one or the other of two conditions, viz : Pirst. Citation of appoa-. Second. Transmission of the record. Ho further shows that article 583 of the Code of Practice requires that the appellee shall be cited, and that article 595 is express that until citation the appeal obtained may be dismissed at the instance of the appellant, by motion in the District Court. He refers to 3 R. p. 42; to 2 Au. 484, and to 11 An. 614; also, to Hennen’s Digest, volume 1, p. 72, title YIL, section 3.

The judge next takes the ground that the party appealing in this case has no right to an appeal, and cites the decisions of this court in the case of Metropolitan Police Board, and the case ex rel. Belden. Attorney General, v. Markey, Kaiser et al., in which it was ruled that a proceeding by mandamus is not a money judgment, and that under this process the appellant must show a money interest to entitle him to appeal. He infers from the position of Mount, the City Treasurer, that he has no moneyed interest in the judgment, and, under the decisions cited, not entitled to an appeal.

In the case cited in 3 R. 42, the appellant applied for a suspensive appeal after the expiration of the ten days within which he could, by law, take a suspensive appeal. The order of appeal was granted, and a bond given to cover costs only. No bond, then, such as the law required, was given ; -no transcript had left the clerk’s office, and the case was within the jurisdiction of the probate court. The judgment of the appellate court, in that case, seems to rest upon the more substantial defect of there being no bond than upon the manifest error or inadvertence of the judge iu granting the suspensive appeal.

The case in 2 An. p. 484, presents au instance in which two appeals were granted, and a transcript sent up in each. In the appeal first taken all the parties were not cited, and on that ground a second appeal was granted, and all the parties were cited. The first appeal was dismissed by consent of parties. The court say it was irregularly-taken, and that the inferior court had not lost jurisdiction, and could render a second order. The “ irregularity’’ consisted in nothing that appears in the report of the case, except in the fatal defect of want of citation.

The third case cited is that in 11 An. 614. There two orders of appeal were granted. It was admitted that the appellee was not cited under the first order of appeal. The court said: “As the statement of facts is silent upon that point, we will presume that the appellant obtained leave from the lower court to withdraw his first appeal,” and decided that under article 595 of the Code of Practice, the appellant could renew his appeal.

The cases enumerated in 1 Hennen’s Digest, p. 73, sec. 3, to which we are directed, announce “that-as a general rule, the jurisdiction of the appellate court attaches as soou as the appeal bond is filed and the citation issued; and the lower court has no longer authority to take any steps, but such as may be necessary to transmit the record to the Supreme Court, or by a provisional and conservatory order to secure the ultimate execution of the appellate judgment.”

The articles 901, 583 and 595 C. P., sustain these positions taken by the respondent: That the jurisdiction of the appellate court only attaches when there has been citation of appeal, or transmission of the record; that the appellee must be cited, and that until citation the appeal may be dismissed at the instance of the appellant by motion íd the District Court.

We have carefully considered the argument, and all the' authorities relied upon by the respondent, and are unable to find that they are applicable to the state of facts presented in the record before this court. The appeal was taken in open court, upon motion of the appellant, and that dispensed with service of citation. We find at the end of the order of appeal granted by motion in open court, according to the amendment to article 575 C. P., the following words : and that all parties to this proceeding be notified thereof.” This must be regarded as mere surplusage. No service of citation was necessary, as would have been required had the appellant proceeded by petition, and not by motion in open court.

There was then citation, and in this respect one of the conditions stated by respondent was fulfilled. The required bond of appeal was filed in court the same day and accepted. No exception was taken to the bond in any particular. Then, there being citation and a bond on the same day, the numerous cases we have been referred to in 1 Henuen, under section 3, title VII., page 73, lay down that “ as a general rule, the jurisdiction of the appellate court attaches as soon as the appeal bond is filed and the citation issued.” Then it follows that this general rule applies to the case under consideration, unless it can be shown that it comes under an exception, and this is not shown. If the jurisdiction of this court attached at the time of citation and the filing of the bond, the lower court was divested of jurisdiction at that moment, and its subsequent order dismissing the appeal was null. It is unnecessary to consider the ground set up by respondent that the relator is not in this case entitled to an appeal; being divested of jurisdiction, that was no matter for the action of the lower court.

It is therefore ordered that the writ of prohibition granted in this case be made peremptory.

Chief Justice Ludeling and Justice Wyly absent.


text:
    No. 2331.
    State v. Timothy Hays.
    In a criminal prosecution for the crime of murder the witnesses for the accused may, under the plea of insanity, he permitted to give to the jury the acts, declarations, conversations and exclamations they saw, had with, and heard the accused make at any time shortly before, at the time of, or after the hilling. The objections to such testimony goes to its effect.
    Previous or subsequent insanity will not discharge the accused. It must be shown to exist at the time the deed was done.
    APPEAL from the First District Court of Now Orleans. Abell, J.

      S. Belden, Attorney General, for the State. MeOay, Bevy <& J. B. Cotton, for defendant and appellant.
   Howe, J.

The defendant was tried for murder, found guilty without capital punislnnont, and sentenced to imprisonment in the State Penitentiary for life. Prom this judgment he has appealed.

It appears by a bill of exceptions that the defendant placed on the stand certain witnesses, and asked each of them seriatim, “to state the acts, declarations and conversations and exclamations, they saw, had with and heard the prisoner make, at any time shortly before, at the-time of, or after the killing of Sinnott, tending to show the condition of his mind; which question and answer was objected to by the Attorney General for the State, on the grounds that his (the prisoner’s) statements, declarations and conversations- were inadmissible, and were illegal. The court sustained the objection to the question and answer, in so far as to limit the same to the acts and the exclamations of the prisoner a short time previous to and at the time of the killing2, and to the acts after the occurrence.”

In signing the bill, the judge adds, “Every conversation for two osthree months previous to the homicide, accompanying any act indicating unusual excitement, was admitted; other conversations were excluded.”

The defense in this case was insanity. In the solution of the question presented by this bill of excex>tions, it becomes necessary, therefore, to inquire what scope is allowed to'the prisoner in establishing such a defense by the enlightened spirit of modern jurisprudence.

Insanity is a disease. It has its pathology and its symptoms, and it would seem that its existence can be determined only by a careful scrutiny of those symptoms. The tree is to be known by its fruits : the condition of the hidden mechanism is to be ascertained by those communicated movements which are external and ax>x>arent. To this end the usual expressions of a mental state are original and competent evidence. If they are the natural language of mental alienation, they furnish satisfactory, and sometimes the only proof of its existence. It is true, that such expressions may be feigned, and often are; but whether they were real or feigned is for-the jury to determine. Hence, the rule prevails that as indicia of the mental condition, not only the acts, but the conversations, exclamations and declarations of the person may be shown. Of course, this rule should not be extended beyond the necessity on which it is founded — mere narration or statement by the accused, as that at a certain time he said or did something, or that at a certain time he was insane, must be excluded; but testimony of such dex>ortment, action, comx>laints, exclamations, declarations and expressions, as usually and naturally accompany and furnish proof of an existing-malady, ought to be freely admitted.

We think it equally well settled that all such indicia occurring after the commission of the offense, may be shown, and that the judge, therefore, erred in confining the testimony to acts done after the homicide. It is true, that, mania is often simulated, and it is quite likely that the danger of simulation may increase after the commission of a. homicide; but this consideration relates rather to the effect of the testimony than to its admissibility. It may have little weight; but such as it has, the jury must estimate. Previous or subsequent insanity in itself is no matter of excuse; the mania must have existed at the time the act was done; yet, evidence of the presence of the malady, either before or after the- act, is proper to be weighed by the jury, for the purpose of forming a conclusion whether insanity existed at the time the alleged crime was committed. And this evidence, we apprehend, may be identical in character with that which is admitted to establish mental unsoundness prior to the act.

Grant v. Thompson, 4 Conn. 203; Kenne v. Kenne, 9 Conn. 102; Dickinson v. Barber, 9 Mass. 225 ; Norwood v. Marrow, 4 Devereux & Battle, 442; McLean v. The State, 16 Ala. 672; McAllister v. The State, 17 Ala. 434; Bacon v. Charlton, 7 Cushing, 581.

For the' reasons given, it is ordered that the judgment appealed from be avoided, and the verdict of the jury set asido, and that the cause be remanded for a new trial, according to law.

Chief Justice Ludeling and Justice Howell absent-


author: Tali arerró, J.

text:
    No. 1823.
    R. W. Adams & Co., in liquidation, v. W. A. Gordon and J. C. Denis.
    A party wbo indorses a noto as surety is not entitled to notice of dishonor by the principal.
    The surety is entitled to have the property of his principal discussed before proceeding against him, if he furnish a sufficient amount of money to pay costs of proceedings.
    APPEAL from the Fifth District Court of New Orleans. Beaumont, J.

      B. JEejcm, for plaintiffs and appellees. G. T. Bemiss, for defendants and appellants.
   Tali arerró, J.

The defendants are sued as sureties of P. Chew on two promissory notes, each for $333 33, dated first January, 1866, due one year after date, with six per cent, interest from date until due, and eight per cent, after maturity until paid.

The answer admitted the indorsement of the notes, but alleged that no demand of payment of the notes had been made at the place of payment; that there was no protest, nor notice of protest, nor notice to defendants of non-payment. The defendants answered further that if bound as sureties, they then plead discussion, and point out a. tract of land belonging to Chow, situated in the parish- of Tensas, in this State, which land, they aver, was mortgaged by him to secure the notes sued upon; together with others, and may be proceeded against by order of seizure and sale. They further tendered the sum of thirty dollars to pay costs of the discussion,

There was judgment for the plaintiff for the amount of the notes, with the right reserved'to the defendants to require that the judgment oo first enforced against the property of the principal on condition that they, within ten days from the rendition of the judgment, deposit two hundred dollars, less the thirty dollars already furnished, to pay the costs of discussion. Prom this judgment the defendants have appealed.

There was no necessity for a protest and notice. The obligation of the defendants is that of sureties. We see no error in the judgment. The right of discussion was allowed the defendants on condition oí their furnishing a sum of money sufficient in amount to pay costs oi proceedings in discussion. In the opinion of the court a qua, the thirty dollars tendered was quite inadequate for the purpose, in which ■opinion we concur. The plaintiff asks damages for a frivolous appeal; but we are not inclined in this case to award damages. The defendants may have been in error as to the amount necessary to discharge the cost. They seem to have aimed to comply with the law. Civil Code, articles 3014, 3015, 3016.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, with costs in both courts.

Chief Justice Ludeling and Justice Wyly absent.


text:
    No. 1889.
    Tapp, Kennedy & Walsh v. Green & Brother. Campbell & Strong, Garnishees.
    As a general rule, tlie garnishee may be permitted by the District Judge to amend his answers to interrogatories, after an order pro confessis has been made, and before judgment against the defendant. But the case would be different if the answers are manifestly evasive, and calculated to jeopardize the rights of the attaching creditor, or defeat the jurisdiction of the court over the defendant. '
    APPEAL from Sixth District Court of New Orleans. JDxvplantiar, J.

      Randolph, Singleton & Browne, for plaintiffs and appellants. James McConnell and W. M. Rogers, for defendants and appellees.
   Howe, J.

The only question in this case is, whether it is within the discretion of the District Court to allow a garnishee who has ■answered interrogatories in good faith, but not as fully as he might have done, to amend his answers after an order pro confessis has been made, but before judgment against the defendant.

We are of opinion that this question must be decided in the affirmative. Answers which are manifestly evasive ought not to be permitted •to be amended. Davis v. Oakford, 11 An. 379. Nor when a garnishee has once answered and admitted a certain indebtedness, should he bo allowed to retract his judicial expression, and declare that he owes nothing. De Blanc v. Webb, 5 L. 86. But where answers, as in the 'case at bar, are really responsive to the interrogatories, though they might have been more comprehensive, and where there is no charge of fraud, evasion or deceit, we can not say that the action of the court a, qua, in permitting an amendment, exceeded the limits of a sound discretion. Rose v. Whaley, 14 An. 374 ; 11 An. 379.

It is urged by the counsel of plaintiff that such a permission would entirely jeopardize the rights of plaintiffs in attachment; that by the first answers of garnishees the court might be invested with jurisdiction-over the deiondant, while by the amended answers the jurisdiction might be taken away. To this we reply that such a case would be different from the one at bar, and would fall under the rule of De Blanc v. Webb. An amendment producing such an effect should never be permitted. But in the case now before us, the amendment allowed by the District Court, so far from impairing its jurisdiction, increased somewhat the amount found due by garnishees to defendants.

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

Chief Justice Ludeling- and Justice Wyly absent.


author: Tariaperko, J.

text:
    No. 2307.
    State of Louisiana v. John Schnapper and E. B. Malone.
    The answer of a juror on liis voir dire to questions propounded by the accused, that from what he has read in the public prints he has formed an unfavorable opinion of the character of the accused, but that he has iormed no opinion as to his guilt or innocence of the crime charged, does not disqualify him from sitting on the jury.
    Section sixteen of the acts of 1855 limits the District Judge, when presiding over criminal trials, to giving to the jury a knowledge! of the law of ilnrcase; bnt in doing this the judge may make such observations as tend only to aid the jury in their inquiries, abstaining irom all comments on the testimony calculated to influence their minds in deciding upon the iacts.
    APPEAL from the First District Court of New Orleans. Abell, J.

      8. Belden, Attorney G-eneral, for the State. A. A. Atocha, for defendants and appellants.
   Tariaperko, J.

The defendants appeal from the judgment of the lower court sentencing them to imprisonment — the one for a term of eighteen months in the Parish Prison, the other for two years at hard labor in the State Penitentiary. The sentence was rendered on the verdict of a jury convicting them of larceny.

The grounds on which the appeal was taken are embodied in two exceptions taken to tbe ruling of tbe court on the trial of the case.

The first is, in the refusal of the court to sustain a challenge for cause made by defendants to the competency of a juror. The second, relates to the charge of the judge to the jury.

First — A juryman being sworn on his voir dire, answered to an interrogatory put to him on the part of the defendants, that he had read different accounts in the newspapers in reference to John Schnapper, one of the accused, and that he was prejudiced and biased as to his character, hut not as lo his guilt or innocence in the case on trial.” The defendant, Sclinapper, avers that, from this ruling of the court that the juror was competent, he was compelled to use one of his peremptory challenges to exclude him, when he should have been set aside on the challenge for cause.

We see iio error in the ruling of the court. The juror was not disqualified. He, doubtless, had formed an unfavorable opinion of one of the accused from what he had read of him in the irablie prints. It is natural that he should. He could not have done otherwise. Every person who read the same accounts, doubtless, formed the same opinion. But the juror disclaimed any prejudice or bias against the accused in regard to the case before the court. It is argued, however, that the juror could not divest himself of the influence of the prejudice and bias which he expressed as to the general character of the accused, and that this influence would, imperceptibly to himself, operate upon his mind to the disadvantage of the party of whose guilt or innocence he was to judge. The reasoning by which this conclusion is reached is speculative and unreliable. How are we to determine this imperceptible influence ? By a decision of the juror against the party? How, if he render a verdict of acquittal ? Shall we lose sight of all other influences that might possibly operate upon the mind of the juror? Would the accused have nothing to hope from his sense of justice and duty ? Nothing from his manliness and independence ? We apprehend that it is going too far to suppose it impossible for a juror to act impartially under such circumstances. We may underrate the motives of human action, as well as ascribe greater merit to them than they deserve. We consider the rule settled that, where there is no bias or prejudice existing in the mind of the juror in relation to the matter at issue, affecting his opinion adversely to the accused, touching the accusation against him, he is not disqualified, whatever may be his estimate of the general character of the accused party. See State v. Brette, 6 An. 653; State v. Ward, 14 An. 673; State v. Bringer, 11 An. 607, and 14 An. 461; 3 Denio’s New York Reports, 121; 18 Connecticut Reports, 166.

Second — The second exception is in relation to the charge of the judge to the jury.

It is alleged that in charging the jury the judge used expressions tending to influence the jury against the defendants, and in violation of the sixteenth section of the act of 1855, numbered 121; and we are referred to 10 An. 271 and 799 and to 11 An. G33. The defendants, by their counsel, requested the court to charge the jury that “if they find that burglary has not been committed, the accused can not be found guilty of the larceny of property not described in the count of the indictment for larceny.”

It is admitted that this charge was given in substance. The court, however, aded: “ But, gentlemen of the jury, in cases of larceny, the property is not always found, a large part of it being squandered or disposed of by tlie thieves before their arrest;” and afterwards, upon 'objection by counsel, the court said that its remarks were not intended to be ajiplied to this caso. It was again objected that the effect of the language first used by the court, and excepted to, would not be.removed by the subsequent qualification. Tlie court'instructed the jury that they must ho satisfied that the prisoners stole the property mentioned in the indictment, but that it was not essential that the property stolen be produced or were found; as in a large portion of larcenies committed tlie property is never found, or if found, not susceptible of identification, such as money, etc.”

Wc do not conceive that tlie judge traveled out of his province in what he gave in charge to the .jury, or that the remarks made were out of the way. They wore not in any manner calulated to direct thfe minds of tlie jurymen in settling on their verdict. The sixteenth section of the act of .1855, page 152, requires the judge to limit himself to giving to tlie jury a knowledge of the law applicable to the case. He shall abstain from stating or recapitulating the evidence so as to influence their decision on tlie facts. He shall not state or repeat to the jury the testimony of any witness; and shall give no opinion as to what facts have been proved or disproved.

An explanatory remark by the judge, or an occasional observation intended only as information to aid the jury in their inquiries, abstaining from such comments on the testimony as would tend to influence their minds in deciding upon the facts, is no infringement of the law cited by counsel-in this case. The authorities referred to in 10 and 11 An. do not sustain the ground taken in this exception.

See State v. Roger, 7 An. 382; State v. Johnson, 10 An. 456; State v. Green, 7 An. 518.

We think the motion for a new trial was properly overruled.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be affirmed, the defendants and appellants paying-costs of this appeal.


text:
    No. 2405.
    H. P. Lamayer v. Laurent Uter et al.
    A proposition to extent!, tlie time of payment of a promissory note, unaccepted by tile maker, will not discharge the indorsor.
    APPEAL from Seventh District Court, parish of Orleans. Oollens, J.

      Boselius & Philips, for plaintiff and appellee. Duvigneaud <fi Tissot, for defendant and appellant.
   Howe, J.

The defendant, appellant, was sued as indorser of a promissory note. Ilis defense is, that he has been discharged by an extension of time or indulgence granted without bis consent to the maker by tlie plaintiff. .. . ,

The evidence shows that the plaintiff merely consented to grant the maker a respite, provided that all his creditors would do the same. This was the condition on which the proposed extension was based, and it never having been complied with, the respite never was granted. The plaintiff’s right of action was never suspended, and the indorser might at any time have paid the note, and pursued the maker. The case differs widely from that of Gustine v. the Union Bank, 10 Rob. 412, cited by appellant. In that case, the agreement by the holder was such as to release tho accommodation indorser, and having been once executed it was held that its rescission did not revive the right of action against tho indorser.

The appellee has prayed for damages for frivolous appeal, and they must be granted.

It is therefore ordered that the judgment appealed from be affirmed,, with costs, and with five per centum damages for frivolous aprieal.

Rehearing refused.


author: Howell,t J.

text:
    No. 2072.
    New Orleans Mutual Insurance Company v. J. H. Ruddock, Syndic, and Chales R. Railey.
    The syndic of ceded property, having regularly advertised and offered it for sale, and the purchaser, having failed to comply with his bid by paying tho amount, may expose tho samo for sale a second time on the same day, without giving further notice by advertisement.. C. P. 689.
    Property offered at syndic salo a second time, on the same day, on account of the first purchaser failing to comply with the terms, is not so exposed at the risk of tho purchaser at first offering, and the syndic can not recover of the purchaser at first offering the difference in amount which tho property brings at second offering below that of the first. In such a. case a third party purchasing the property at second offering can only be required to pay' the amount bid, without reference to the amount bid at the first offering.
    APPEAL from the Sixth Judicial District, Parish of St. Tammany. milis, J.

      Alfred Ilennen, for plaintiff and appellant. Gibson. Austin, for defendant and appellee.
    Reporter. — The first opinion in this caso hoing overruled cm rehearing, is not published.
   Howell,t J.

A rehearing having been granted on the merits of this case, tho first question pressed on our attention is, what formality must be .observed in making tbe second offering of ceded property,, when the bidder, at the first offering, fails or refuses to comply with the terms of sale 9 In other words, can the syndic, in such case, immediately expose said property anew to sale and adjudicate it again, as. authorized by article 680 C. P., or must he, at tho end of ten days- . and after the customary notices, again expose it to sale, at tho risk of the first purchaser, as prescribed by article 2589 C. C.9

Upon a more careful examination of the articles of the two Codes- and the jurisprudence on this subject, we have come to-the conclusion that article 689 C. P. must apply in such sales. ,

Article 2594 C. C., the first in chapter teu, which treats of judicial sales, declares sales which arc made by authority of law to be of two-kinds:

First — Those -which take place -when the property of a debtor has been seized by order of a court,, to be sold for the purpose of paying the creditor.

Second — Those which are ordered in matters of succession or partition.

According to this classification or. division, it seems that all judicial sales, that is, those made through.the intervention of courts of justice,, must fall within one or the other of these two kinds.

The next article (2595) declares that judicial sales are subject to the-rules laid down in chapter nine for public sales in general,, in all such things as are not contrary to the formalities expressly prescribed for such sales, and with the modifications contained in the articles following: (“» tout ce gui ii’est pas contraire aux formalités, pariiculiérc■mentprescrite pour ces sortes de ventos, et en outre sauf les modifications■ ci-apres.v)

In chapter nine of the Code, embracing articles 2579 to 2593, and referred, to in the above article, the sale by auction (or ■public sale) is. defined to be that which takes place when the thing is offered publicly to be sold to whoever will give the highest price, and it is declared to-be either voluntary or forced; voluntary when the- owner himself offers his property for sale in .this manner; forced, when the law prescribes this mode of sale for certain property, such as that of minors;: it must be made through the ministry of a ptiblic officer appointed fertile purpose; and whether voluntary, or forced, is subjected to. the rules prescribed or mentioned in said chapter. It is further declared therein that the sale by auction, as it is made by officers of justice, (as distinguished from a public officer, mentioned above) is treated of separately, under the title of judicial sales, in chapiter ten, already referred to; and among the rules laid down in chapiter nine, for piublic sales in general, is the one in. article 2589,' which says: “ In all cases of sale b.y auction, if the person- to whom the adjudication is made does not pay the pírico at the time required,- agreeably to the .two pireceding.articles,, the seller, at the end of ten days, and after the customary notices, may again expióse to public sale the thing sold, as if the first adjudication had never been made,” and' it will be at 'the risk of the first, piurchaser. " '

The question now arises, is there any formality pirescribed for the sale of ceded piropicrty, different from or contrary to this rule, as contemplated by article 2595, quoted above ?

Article 2180 provides that all sales of ceded piroperty must be made on the same terms and under the same formalities that piropierty seized on execution is sold; but this sale is made by the syndics, or some person appointed by them, at piublic auction. The act of 1826, pi. 136;. sec. 3 (re-enacted.in 1855, p. 437, sec. 29), authorizes the creditors to change the terms and conditions, but not the formalities. The formality for the sale of “property seized on execution,” as to the particular now under consideration, is found in article 689, C. P.j and •since the case of Lafon v. Smith, 3 L. 473, decided in 1831, it has been held that this article evidently contemplates an immediate exposure again to sale, if the purchaser at the first offering fails to comply with the terms; but not, however, at the risk of the said first purchaser. See 19 L. 308, and authorities there cited.

In the case of Stout v. Voorhies, 4 L. 392, the opinion was expressed that article 2589 C. C., is particularly applicable to voluntary sales, as also article 2588. The sale in proceedings under a voluntary surrender is not a voluntary sale. It is a judicial sale, ordered for the purpose of paying the creditors, as expressed in article 2594, and is governed, as to the formalities to be observed, by the Code of Practice regulating sales of property seized on execution, although conducted or controlled by the syndic.

The next question is as to plaintiff’s right to retain the price bid and claim the sale to bo completed by the adjudication which wa> made to their agent at the first offering. This we have, in our formei opinion, answered adversely to their pretensions, and wo adhere to that opinion. The agent should, at least, have paid the proportion oi his bid duo on the concurrent mortgage.

As to the reconventional demand of the syndic for the difference between the amount of the bid by plaintiff’s agent and that for which the property was sold, wo must say that it seems to be based on the theory that the second sale was one a la folio cnohore, in which, however, the syndic and the said agent wore mistaken; and if the contest were only between the plaintiffs and the syndic, their pleadings might force a different conclusion - as to the adjudication to the said agent. The syndic, from the allegations and admissions of his answer, and his notice to the agent, intended the second sale to bo made at the risk of the first purchaser, who was justified in declaring that such a sale, on the same day, was illegal, and his principals can not be held responsible to the syndic for any loss resulting from such a declaration. The conduct of the agent at the second offering can not be said to be factious or malicious, and the fact that he and the syndic were in error as to the formalities to be observed, can not change the real character of the sale, or affect the rights of the third purchaser at the second offering.

The judgment of the lower court against the plaintiffs on the syndic’s reconventional demand for this sum, must be reversed.

It is therefore ordered that the decision heretofore rendered by us be set aside, and it is now ordered that so much of the judgment appealed from as condemns the plaintiffs to pay the syndic the sum ol' twelve hundred dollars be reversed, and that in other respects it be affirmed. Costs of appeal to be paid by the syndic.

Chief Justice Lndeling and Justice Wyly absent.