text:
    No. 8126.
    State of Louisiana ex rel. Fredricks vs. E. K. Skinner, Judge, and Thos. Duffy, Civil Sheriff.
    'This Court has already several times decided that, under Art. 90 of the Constitution of 1879, it has authority to issue remedial writs to all inferior Courts, even in cases in which no Appeal lies to this Court. In the future, defences of this character will he ignored.
    The City Courts of New Orleans can entertain jurisdiction of suits for the ejectment of tenants.
    The Sheriff, who has seized property occupied hy lessees, has authority to institute suoh ejectment proceedings before said City Courts, in proper cases.
    Application for Writ of Prohibition.

      J. J. Foley for the Relator.
    First — The First City Court is without jurisdiction to evict a tenant from leased premises, or to entertain a suit for the posséssion of an immovable. Art. 135 Con. of 1879.
    ^Second — There is no privity of estate or contract between the sheriff who seizes under a fieri facias and the tenant whom he finds in posession, and, consequently, no relation of landlord and tenant.
    Third — Property under seizure is in custodia legis, and the sheriff, for all the purposes of the writ, must invoke the aid of the court having custody of the property, and of which he is the executive officer.
    Fourth — The First City Court is without jurisdiction herein.

      Whitaker & Adams for ^Respondents.
    TIIB 3? DBA TO THE JURISDICTION.
    First — If this cause were within the appellate jurisdiction of the Supreme Court, Fredricks, not having filed any special defense, supported hy his oath, that all the facts contained in his answer are true, and entitled him to retain possession of the premises; and not having given bond with good and sufficient security for all such damages as your respondent, Duffy, may sustain, is not entitled to have execution suspended. R. S. Seo. 2157.
    .’Second — As this Court has not cognizance of appeals from the First City Court, the writ in the present case should not have issued. The writ of prohibition can be issued by this Court merely in aid of its appellate jurisdiction. Const. Arts. 135, 130 ; O. P. Art. 847; 4 R. 48; 10 R. 169; 12 A. 513; 22 A. 459; lb. 517 ; 25 A. 381.
    ON THE MERITS.
    First — The only question at issue in matters of prohibition is whether the inferior court exceeded the hounds of its jurisdiction. C. P. Art. 845; 27 A. 158; 4 A. 11; 11 A. 696; 14 A. 505.
    Second — The lessee cannot contest the title of the lessor, although the latter he a sheriff, who took possession of theproperty by virtue of a writ off. fa. 23 An. 586; 17 An. 154; 10 D. 362; 8 R. 213; 11 L. 173.
    Third — The civil sheriff, having seized a house, was compelled at the same time to take all the rents and revenue which this property may yield. C. P. Art. 656.
    Fourth — The sheriff having seized a house, has the right to institute the proceedings neoessary to secure the expulsion of a delinquent tenant; for, in such case, the house remains sequestered in his custody; he may even lease it for a time not beyond that appointed for •the sale. C. P. Art. 658.

      -Fifth — The city courts of New Orleans have jurisdiction in proceedings to expel tenants, after due written notice in accordance with law, to such tenants to remove, whenever the monthly rent paid "by the tenant does not exceed one hundred dollars. Const. Art. 135; Act 45 of 1880, Sec. 7; Acts 1855, p. 345; E. S. Seca. 2155, 2156; C. C.2713.
   The opinion of the Court was delivered by

Bermudez, C. J.

The questions presented in this case are :

First. Whether the city courts of New Orleans can entertain juris■diction of suits for the ejectment of tenants.

Second. Whether a sheriff, who is in possession under a writ of ■fieri facias of productive real estate, occupied by tenants, has authority to institute such ejectment proceedings before such court in proper •cases.

We have already several times decided that under article 90 of the 'Constitution which vests us with supervisory control and general juris- • diction' over all inferior courts, we have authority to issue remedial ■writs to them, even in cases in which no appeal lies to this Court.

The exception of the respondents to the jurisdiction of this Court in this’matter, on that score, is, therefore, overruled.

In future, defenses of this character will be ignored.

I. The Constitution provides (Art. 80), that the judicial power shall •be vested in a Supreme Court, in Courts of Appeal, in District Courts, and in Justices of the peace. It further declares (Art. 92), that no such .powers shall be conferred on -any officers, other than those mentioned. The inference is irresistible that no one can claim to be clothed with judicial powers, unless he be a member of the Supreme Court, or of a ■Court of Appeals, or a District Judge, or a Justice of the peace.

By Arts. 81,90,89,200, the jurisdiction of the Supreme Court was defined. By Arts. 95, 109 and 125, the jurisdiction of the Courts of Appeals and of District Courts throughout the State,’ the parish of Orleans excepted, was prescribed. By Arts. .128,130,135, the jurisdiction of the ■ Court of Appeals, of the District Courts and of the City Courts, for the parish of Orleans, was specially declared.

There exists no difference between the jurisdiction of the Courts of .Appeal throughout the State, that of the parish of Orleans included. They were created for the same purposes, and have the same powers.

The difference between the civil jurisdiction of the District Courts, out of, and in the parish of Orleans, is, that the lower limit of the former is fifty, while that of the latter is one hundred dollars. (Arts. 109,130). . /

The difference between the civil jurisdiction of Justices of the peace ■out of the parish of Orleans, and the City Courts in New Orleans, is that •the upper limit of the original exclusive jurisdiction of the former is fifty dollars, that of their concurrent jurisdiction is one hundred dollars--in capital (Art. 125), and that an appeal lies to the District Courts when the matter in controversy exceeds ten dollars exclusive of interest (Art. 111), while the upper limit of the jurisdiction of the City Courts which is original and Anal, is one hundred dollars exclusive of interest,, and that there lies no appeal from their judgments. (Art. 135).

In the case of the State ex rel. Howard vs. Walsh, Constable, not yet reported (O. B. 53, f. 298), we had occasion to consider, to some extent, the question which is now before us, and we there held that the convention intended to, and did abolish, the system of justices of the peace, clothed with civil jurisdiction in the parish of Orleans, and designed to and did replace the Justices’ Courts by the City Courts, which were vested with an exclusive and final jurisdiction in civil matters.

It surely never was contemplated by the framers of the Constitution, while they preserved the organization of Justices of the peace everywhere else in the State and abolished it in the parish of Orleans,, to abstain from substituting to it there another system, at least as efficient. Had they so abstained, matters of controversy not falling within the jurisdiction of the Civil District Court in that parish would have-found no forum for assertion and determination. On the contrary, the evident idea was to provide for judicial officers throughout the State, exercising the powers of justices of the peace, whether under that name or another. The name was immaterial.

The courts of Justices of the peace, such^ as they formerly existed,, ceased in the parish of Orleans on the' day on which the City Courts were organized and went into activity, under article 266, but the laws, not incompatible with the Constitution, concerning their jurisdiction and powers were continued in force, and the causes which were pending before them were transferred to the City Courts, which had jurisdiction thereof, under the Constitution. Art. 261, $ 3, Art. 135.

In furtherance of constitutional mandatory injunctions the General Assembly has, by Acts 45 and 136 of 1880, organized the City Courts by regulating their territorial jurisdiction; by providing that the manner and form of proceedings before them are to be governed by the laws then in force concerning Justices of the peace, and by directing the transfer of the archives, books, and papers of the late Justices’ courts-to the City Courts in the order indicated, and fixing the costs and fees in all such proceedings, including those in which no amount is claimed. (Act 136, Sec, 14, ? 6). .

The laws relative to the jurisdiction of Justices of the peace in the parish of Orleans, so far as they were not inconsistent with the Constitution, were expressly continued in force (Art. 258); but to -the extent, however, that they permitted an appeal, they were abrogated, as the-■city courts were given a final jurisdiction. (Art. 135). This was done, no doubt, because the city court judges were required to be qualified •attorneys, which was not previously the case.

Those laws were mainly to the effect that Justices of the peace had in the parish of Orleans an original jurisdiction and power to hear and •determine all civil cases in which the amount in dispute did not exceed one hundred dollars, exclusive of interest. R. S. 2074; 25 A. 60; C. P. 1064; in which claims were set up for the restitution of movable property not worth more than one hundred dollars, C. P. 1063; in which the expulsion of tenants was demanded. R. C. C. 2713; R. S. 2155; 8 N. S. 563; 6 L. 54; 2 R. 284; 13 An. 137; 15 An. 660; 32 An. 428. They were not, however, to have jurisdiction in petitory or possessory actions, or even any real rights, even where the value of the property in dispute was less than one hundred dollars. C. P. 1068, 46.

It is proper to state that an action by a landlord to eject his tenant is not possessory in character, as the latter cannot be heard to dispute ■the title of the former, under whom, and for whose account he precariously holds. The possession of the tenant is that of the landlord.

It is purely an action by a principal against an agent to vacate the 'property to which no title is involved. Such has always been the uniform interpretation of such an action, both by the Legislature and by the judiciary, as is shown by the authorities just quoted. V., also, 10 L. 362; 11 L. 173; 2 R. 461; 6 R. 139; 8. R. 213; 10 An. 622; 17 An. 154; 23. An. 586.

The words “ sums not exceeding one hundred dollars,” found in article 135 of the Constitution creating City Courts for the parish of Orleans, were substantially used in previous Constitutions to define the jurisdiction of Justices of the peace. V. Art. 82 of Const, of 1864; 89 of 1868.

Identical or similar words are used in the present Constitution to •determine the jurisdiction of the Courts of Appeals and of the District Courts, Arts. 95,109, 111, 128,129,130, and have to be accepted in their enlarged signification, so as to comprehend suits in which property or rights in value of the amount specified are claimed, due regard being had to the court before which they are to be brought.

A different interpretation would lead to the absurdity that those courts whose jurisdiction is provided for and defined by similar expressions would have no jurisdiction over cases in which the demand would ■be for anything but money, and, therefore, that they could not entertain •petitory or possessory actions and proceedings in ejectment of tenants; .and so, that the citizens and people whom it was the object of the Constitution to protect successfully have rights, but have no remedies for their enforcement; a conclusion which is utterly inadmissible.

II. A sheriff is the forced legal agent of parties litigant, particularly of the defendant, whose property he has seized under due process of law. 6 R. 100; 14 An. 503, 587; 15 An. 34. He is expressly authorized when he seizes houses to take at the same time the rents, issues and revenue which the property may yield, and to receive the rent from those who occupy them. He may lease the same and sue for the rent. C. P. 656, 658; 5 An. 174; 23 An. 585. His powers of administration are a matter of necessity. He cannot, however, exercise more rights than the defendant himself could.

When, therefore, tenants are in possession of property under-seizure, and place themselves in a situation in which the defendant could have instituted ejectment proceedings against them, sheriffs and similar officers viriute officii, are perfectly empowered to take the steps prescribed by law for their summary expulsion.

Whether in the present instance the facts alleged by the respondent will justify the ejectment asked, is a question on which we have no-opinion to express, and which is to be determined by the court before-which the case is pending, and whose decision on the subject will be-final. Const. Art. 135.

Our conclusions are, that all the laws in civil matters which were-in force on the first Monday of August, 1880, relative to Justices of the peace in the parish of Orleans, are still in existence; that they apply to,, and can be enforced by, the Oity Courts created by article 135 of the Constitution for the parish of Orleans (which are a new system of Justices of the peace), with this exception that the judgments of said-courts are not subject to review by appeal, as were those rendered by J ustices of the peace; and that a sheriff has a right in proper cases, and before the competent court, to institute proceedings for the expulsion of' tenants from property in his legal custody.

Considering, therefore, that the First City Court has jurisdiction to-hear and determine cases of expulsion or ejectment of tenants as validly and effectually as the J ustices of the peace for the parish of Orleans-could previously have done, and that a sheriff in possession of property seized can, in the cases provided by law, institute proceedings inejectment of tenants before said court, and that the charge of usurpation of authority is unfounded,

It is ordered that the preliminary order herein made be rescinded,, and the application for a prohibition be refused at the relator’s costs.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 8155.
    State ex rel. Mayor and Councilmen of Morgan City vs. Judges Court of Appeals of the Fifth Circuit.
    A judgment of the late Parish Court of the Parish of St. Mary, passing upon the constitutionality of a certain municipal ordinance of Morgan City, was appealed from directly to this Court and the Appeal dismissed on legal grounds. The present Eelator then obtained an Appeal from the said original judgment of the Parish Court to the Court of Appeals of the Pifth Circuit, which.also dismissed that Appeal. This is an application for a Mandamus to oompel the latter Court to try the case. Held that the dismissal of the Appeal by this Court rendered the judgment of the Parish Court final.
    -Á.PPLICATION for a Mandamus.

      B. F. Winchester for the Relators.
   The opinion of the Court was delivered by

Bermudez, C. J.

The relators pray for a mandamus to compel the-respondents to try a case appealed from the late parish court of the-parish of St. Mary, in which one Bateman, charging the unconstitutionality of a certain municipal ordinance relative to marketmen, enjoined the corporation of Morgan City from enforcing it against him,. and in which the injunction was perpetuated. '

The judgment which was thus taken to the Court of Appeals, has-been before us for review, at Opelousas, last year. Considering that the ordinance assailed was not in the transcript, as also, that it did not appear that the plaintiff had been condemned under its provision to any fine or penalty, or had been relieved therefrom by the judgment appealed from or by any other judgment, or that the injunction had been, perpetuated because of the unconstitutionality of the ordinance, we dismissed the appeal. 32 A. 891; 27 A. 620. Const., Art. 81.

Since then, assuming without authority that we had intimated that the judgment could be reviewed, in another forum — a question on which we studiously avoided expressing any opinion, formally saying so — -the municipal authorities applied for an appeal returnable to the Court of Appeals for the Fifth Circuit, which was allowed.

Considering that the Supreme Court alone had jurisdiction in such cases, and that its judgment of dismissal impressed upon the.judgment appealed from the character of finality, the latter court dismissed the appeal.

We are asked to review this judgment of dismissal, to decree that it is not correct, and to compel the Court of Appeals to try the case. We cannot grant the relief sought. The decree of dismissal of this Court did leave the judgment assailed in the condition in which it would have been had it been affirmed, with this difference, that its correctness was not recognized. The effect as to the plaintiff, but as to him alone, is perfectly the same nevertheless.

It was for the relators to present to this Court, at Opelousas, a case which would have justified a revision of the judgment complained of. Th'e transcript, to say the least, was defective, owing to its incompleteness. The appellants should have submitted a revisable case. They have not done so, and have no one to blame but themselves for the consequences of such omission on their part. We regret our inability to relieve them.

If it be true, that by such judgment a hardship has been inflicted upon the corporation, it must be a satisfaction for it to know that the judgment can operate as res judicata only as regards the plaintiff in injunction; that the city can, if the ordinance be constitutional, enforce it against others similarly situated, and, íd case of conflict, make and present a case in a form which will secure an'adjudication from this Court upon the vexed question.

The application is refused with costs.


text:
    No. 8085.
    State of Louisiana vs. James Collins and Simon Kinney.
    The accused being present in court during the trial, and the jury having retired and returned after a short time with their verdict, it will be presumed that the accused was also present in court at the rendering of the verdict and judgment. If, in point of fact, the accused was not present when it is presumable he was, the burden of proving his absence rests on him.
    The information is not defective for duplicity because it contains a description of the manner in which the crime was committed, and, for that purpose, mentions a minor offence punishable by a different statute.
    APPEAL from the Sixth Judicial District Court, parish of West Carroll. Brigham, J.

      J. G. Egan, Attorney General, for the State, Appe'llee.
    First — Where the record shows the prisoner to be in court during the trial, and that the trial of the case was proceeded with, and a verdict rendered on the day of trial, it will be presumed that the prisoner was in court at the time of the rendering of the verdict. And such presumption will stand until disproved. 33 111. 276.
    Second — When the record states that “ the accused, Simon Kinney and James Collins, having nothing further to say why sentence should not be passed against them,” etc., it is conclusively shown that they were present when the judgment and sentence were rendered by the Court.

      Third — An indictment is good when the crime for •which the accused is tried is distinctly charged therein, although the same count contains'a description of how that crime was committed, and in so doing mentions another, a minor crime, for which the law provides a penalty; there is the commission of hut one crime charged. 10 Met. 422,425; 14Ind. 23; LawKep. 1 C. C. 241; 1 Iowa, 542; 39 JC3T. H. 96.

      C. T. Bunn, Spencer & White, Richardson, McEnery & Polk, for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused assign as errors, that it does not appear from the record that they were present in court at the time of arraignment, or during the trial of the cause, nor at the rendering of the verdict, nor at the time that judgment and sentence were passed.

Since the assignment was filed, the incomplete transcript was perfected.

The record distinctly shows that the accused were arraigned in open court, pleaded not guilty, and asked for trial by jury.

It further shows expressly that they were present in court during the trial, which was proceeded with; that the jury was formed and empaneled to try the accused; that, after hearing the evidence, argument of counsel, and a charge from the court, the jury retired to consider their verdict, and, after a short time, returned into court with a verdict of guilty, as charged in the indictment — the whole in the same day.

The record does not show that any interval elapsed during the time of the trial and the rendering of the verdict. The presumption is that the prisoners were continually present from the beginning to the end. Persons indicted for felony may waive the right to be present during trial, so far as to be temporarily absent. Where the presumption of their presence exists, and the fact of their absence, without waiver, •can be established, the burden is upon them to rebut the presumption. In this the accused have failed. Schermer vs. People, 33 Ill. 276; Hill vs. State, 17 Wis. 675.

The transcript formally shows that the prisoners were present when judgment and sentence were passed on them, as it declares “ the accused having nothing further to say why sentence should not be passed,” etc. The inference is conclusive that they were in attendance when judgment and sentence were pronounced.

The defendants further complain that they cannot be sentenced on the charge set forth in the information, because,

First — The charge does not, as it should, set forth that the accused •made the assault by feloniously and willfully shooting, etc.

Second — The verdict is obnoxious for duplicity, and cannot be executed, because two distinct offenses, to wit, “ an assault with a dangerous weapon ” and by willfully shooting at,” are set forth in one and* the same count in the information.

I. The indictment distinctly charges that the defendants “ did feloniously, wilfully and with malice aforethought, make an assault with dangerous weapon,” etc.

II. It is true that there exist two different statutes which denounce assault with a dangerous weapon and willful shooting; and that if two-distinct offenses had been charged, the indictment would have been defective, and the verdict being obnoxious for duplicity, could not be executed; but there is but one offense charged in this case. The assault is-not a simple but an aggravated one. The information is not defective,, or vicious, because it contains a description of how the crime was committed, and for that purpose mentions a minor crime punishable by law. The greater offense includes the lesser. The description does not jeopardize the rights of the accused any more than if they were left to inference. The offense is charged in the exact language of the statute. 14 Ind. 23; Law Rep. 1 C. C.; 1 Iowa 542; 39 N. H. 96; 10 Met. 422, 423.

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


author: Poché, J.

text:
    No. 6676.
    Gabriel Childs vs. New Orleans City Railroad Company.
    Case of contributory negligence on tbe part of the injured party. Re-affirmance of the principle, that the party inflicting the injury is not liable in damages, in such cases, even. ' if he is also at fault.
    ^PPEAL from the Sixth District Court, parish of Orleans. Bightor,.

      Breaux & Hall for Plaintiff and Appellee.
    Yirst — The streets are the common property of all citizens and theiruse by railway companies must be such as not to unnecessarily endanger those who are exercising only a legal right in using them. Barks&ul vs. H. O. & C. R. R. Co., 23 A. 182; Shea vs. 6th Av. R. R Co.r 62 H. Y. 180; Shea vs. Protero R. R. Co., 44 Cal. 414; 66h Av. R. R. Go. vs. Ker, 45 Barbour, 140; Redfield on Railways, K&. 1867, pp. 318, 319.
    Second — Acts in a legal sense neither imprudent nor negligent, will not prevent a party from recovering damages from a defendant at fault; and the exercise of a legal right is not imprudent or negligent. Knight vs. Pontchartrain R. R. Co., 23 A. 464 j Ohoppin vs. C. R. R. Co., 17 An. 19.

      Garleton Hunt for Defendants and Appellants.
    "When in a suit to recover damages for personal injuries it is proved that the plaintiff was negligent, and contributed by his carelessness to the disaster, he cannot recover, even, though the defendant he in fault.
    The evidence shows that the plaintiff in this case was guilty of contributory negligence.
   The opinion, of the Court was delivered by

Poché, J.

Plaintiff sues the City Railroad Company for ten thousand dollars as damages alleged to have been caused him by the negligence- or carelessness of one of its drivers in running his car over plaintiff, whose leg was thereby crushed and damaged so as to necessitate an amputation of the limb, and thus disabling him from pursuing his usual, trade or occupation of white-washer and plasterer.

The accident occurred on Esplanade street, in this city, on the 2d' of October, 1875, at about six o’clock in the evening.

The defense is a general denial, and the plea that plaintiff, by his-own negligence and carelessness, contributed to the disaster.

The judgment of the lower court, predicated on the verdict of a-jury, allowed five hundred dollars to plaintiff, and defendant appeals. Plaintiff, joining in the appeal, prays that the judgment be amended so as to allow him the full amount of damages which he prayed for in his-petition.

Defendant calls our attention to three bills of exceptions which he-has reserved from the refusal of the District Judge to give to the jury three separate special charges which were asked by the defendant, and which, together, contain in substance the following principles: That-plaintiff cannot recover if at the time of the accident he was walking in-the narrow space between the double track of defendant’s road; and that notwitstanding the warning given him by the driver of one of defendant’s cars- then going in the opposite direction, he continued to-walk on one, or between the two tracks, when he couid have taken either one of two dirt or wagon roads on either side of said double track; that under such circumstances plaintiff, having by his negligence-contributed to the disaster, he cannot recover, even though defendant be in fault.

The solution of the question presented in these bills involves an examination of the law and of the jurisprudence bearing on such cases.. But these principles have been of such frequent application in our own,, as well as in the Federal Courts, the question can no longer be considered as doubtful.

In a recent case decided by us, (Weeks vs. The New Orleans and Carrollton Railroad Company, 32 A. 615), we had occasion to examine-into the very principle involved in this case, and to thoroughly review and compare all the authorities which could throw any light on the-subject, and after such examination we concluded to .recognize and reaffirm the doctrine laid down by our immediate predecessors in the case of Schwartz vs. City Railroad Company, 30 An. 15.

And we consider as now well settled in our jurisprudence, that in such cases the party injured cannot recover, if he contributed to produce the result, or in other words, if both parties are in fault, neither •can recover damages from the other. 18 L. 339; 3 An. 48, 441; 6 An. 496; 11 An. 292; 23 An. 462; 27 An. 53; 5 Otto, 700.

The instructions which the defendant urged upon the judge being consonant with the principles enunciated in the rule thus established, we think that the judge erred in refusing to give them to the jury, who might have returned a different verdict if properly instructed.

Having laid down the rule of law which should govern this case, we must now apply it to the facts of the case, as disclosed by the record.

The testimony is unavoidably conflicting on many points, and unsatisfactory on a most material point. Not a single witness saw the collision between plaintiff and the ear which crushed him. At or near -the point where plaintiff was injured, two cars of the same company met, one of them, No. 76, going from Canal street to the Bayou St. John bridge or depot, and the other, No. 93, from tl?e depot to Canal street. And it is singular that no witness declares absolutely which of the two •cars struck the injured man.

Plaintiff himself does not know which, if any, car struck him, and •seems to have very little, if any, recollection of the circumstances surrounding his painful accident. In one part of his testimony he says he was walking towards the city, with his face turned that way; that the •car or object which struck him was behind him, and yet he says that he was stricken and hurt on the front or forepart of the face. On this, and •on several other points, his testimony is so conflicting and unsatisfactory that we are disposed to give but'little weight to any of his statements.

But after eliminating from the evidence many trivial and unimportant facts or circumstances, and after carefully comparing and weighing together the many statements made by some witnesses and contradicted by others, we glean from the record the following statement of facts, in substance: On the 2d of October, 1875, at about 6 o’clock in the evening, .just as the light of day was giving way to the darkness of night (the lamps burning in the cars), Gabriel Childs, who had been out hunting on Bayou St. John, was returning home in the city, with his gun on his shoulder, and followed by his dog, which he led by having him fastened to a string or rope. When he had reached a point on Esplanade street, near its intersection with the Dumaine street railroad, and in front of the Pair Grounds, he was walking on the narrow space, three feet wide, between the two tracts of the City Railroad, on which were then and there running two of its cars, No. 76 on one track, going towards the bayou or depot, and No. 93 on the other (or western) track and going from the depot or bayou. When car No 76 was approaching Childs and was within some twenty feet of him, the driver of that car warned him in a Soud voice to get out of the way. The warning was not to get out of the way of that ear, but out of the way of car No. 93, which was approaching him from another direction, and in his rear.

Either misunderstanding, or not heeding, the warning thus given and intended, Childs did not get out of the way, that is, did not move away from the narrow space, but rather receded from the track occupied by car 76, and in thus doing, approached too near to the track on which ran car 93, and in thus moving, embarrassed by both his gun and his dog, he came in collision with this car 93, from which he received the injuries which resulted in the amputation of his leg.

He charges that car 93 was being driven at a very brisk or dangerous speed. This is not supported by the evidence which shows that the ear was stopped within eight feet of the spot where he was found wounded, which would have been impossible if the car had been running fast. As he was not on the track occupied by car 93, but in the narrow space between- the two tracks, the driver of that ear was not bound to warn him off, and cannot be blamed for running over him if plaintiff moved towards his track just at the moment that the car reached him.

It is true, as contended for by plaintiff, that he has the right in common with all other citizens, to use the public streets of the city, and that the city railroad companies, under their charters, have not acquired the ownership or exclusive use of the ground or of that part of the streets on which their tracks are laid.

But it is equally true that the public, acting through the city authorities, have agreed to give to these roads the use of certain- streets for the purpose of laying their rails and of running thereon their numerous cars, from the rapidity and safety of which, as common carriers, the convenience of the public is so greatly enhanced, that all citizens have cheerfully agreed to allow to these railroad companies the paramount right of way over these streets, such as the public convenience requires.

Hence, it is that all foot travelers and vehicles move out of the way of the city cars, and that the public service and public’ necessity will not allow the free and unobstructed passage of these cars to be in any way impeded.

Now, at that point, the street is very wide, and besides the ground occupied by the double track of the railroad company, and by the intervening space, there is on. each side a wagon road fully fifteen feet wide, on which pedestrians can easily walk and keep away from the danger of being run over on the railroad track. If the inconvenience of walking on a dirt road, occasionally muddy, induces people to prefer walking on the plank road of the car company, they must do so at their peril, and must be understood as preferring to run the chances of danger than to incur the inconveniences of mud and inferior roads. And the plaintiff who took these chances.should have been on his guard against the approaches of cars which are running there, at that time of day, every two or three minutes. Ordinary prudence teaches that a man walking on either of these tracks should direct his attention to the movement of the numerous cars which incessantly run back and forth, and cross each other so frequently.

That portion of the city is thinly settled, fewer vehicles run on that street than in the centre of the city, and make less rumbling noise than on streets which are paved, and these circumstances facilitate the people ■who are walking on the track in hearing the approaching car with its .jingling bell. And these increased facilities to warn the foot traveler of ■the approaching danger, all combine to aggravate the negligence and ■ carelessness of the plaintiff in not heeding the voice of warning which came to him from the driver of the outgoing car, and contribute to ¡saddle on his imprudence the greater responsibility for the disaster which occurred and caused him suffering and lasting disability. Applying these facts to the rules of law governing such cases, it is logical to ■conclude that plaintiff’s contributory negligence being the leading cause of the accident from which he has so painfully suffered, and which has destroyed his usefulness to himself and to his family, must defeat his right to recover anything from the defendant, even though its driver ■may have been in fault in not averting the collision and the consequent -disaster.

To reach a different conclusion would be to rule that a foot traveler walking on the track of a city railroad can use his own discretion, and take his own time in giving way to a passing car, and to empower him thus to inconvenience, and delay the passengers on the common carrier, and virtually to defeat the very end proposed by the law in authorizing such corporations for the safe and speedy transportation, for business or pleasure, of the innumerable persons who use this mode of conveyance in all the large cities of this continent.

Notwithstanding our reluctance to disturb the verdict of a jury in such cases, we are compelled to disagree with them in their conclusions in this case.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and that the verdict of the jury be set aside. And it is further ordered that plaintiff’s -demand be rejected, and his suit dismissed at his costs in both courts.

Justice Fenner, having been of counsel in this case, recuses himself.

Rehearing refused.


text:
    No. 8036.
    State of Louisiana vs. Hamp Mullen.
    'The District Court having admitted tho testimony of a convicted felon, notwithstanding the Defendant’s objection, the verdict of the jury must be set aside and a new trial granted, although the objectionable witness testified he hnew nothing about the case.
    ÁPPEAL from the Second Judicial District Court, parish of Bossier. Drew, J.

      J. A. W. Lowry, District Attorney, and J. C. Dgan, Attorney General, for the State, Appellee.

      W. G. McDonald, and J. Henry Shepherd, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

The defendant, having been convicted of the crime of ■rescuing persons committed to prison for capital crimes, and having been sentenced to imprisonment for two years-in the State Penitentiary, has taken this appeal, and relies for reversal of the judgment on a bill of exceptions taken from the ruling of the District J udge in admitting as a witness on behalf of the State one Thomas Campbell, a convicted and unpardoned felon.

The bill shows that defendant objected to the witness on account of his alleged incompetency, which was proved by the record of the court by which he had been convicted and sentenced, notwithstanding which •objection and proof the witness was sworn and allowed to testify.

The judge assigns in the bill as reasons to justify his course, that the accused was not injured by the obnoxious witness, who stated that he knew nothing of the case, as he was asleep in the jail at the time that the rescue was effected.

We are at a loss to conceive how such a circumstance could justify ■the court in allowing an incompetent witness to testify in the case.

We are yet to learn that the nature or character of the testimony which may or may not be given by a proffered witness can be used as a test of his competency to be heard in evidence.

Under the common law, felons are incapacitated from testifying by reason of their infamy, and because of their want of honor and honesty <stheir oath is entitled to no weight.

As soon as proof is made of the witness’ conviction and sentence of an infamous crime, his mouth is sealed, and he cannot be heard, without considering the nature or effect of the testimony which he might give.

In this case proof having been given of the conviction and sentence ■of Thomas Campbell, objection having been made by the defendant to his being sworn and heard as a witness, for reason of his infamy, it was the bounden duty of the judge to exclude his testimony. Under the ruling of the judge the accused has not had a fair and impartial trial, (16 An. 273), and he is, therefore, entitled to relief.

It is, therefore, ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment of the lower court annulled, avoided and reversed. And it is further ordered that the cause be remanded to the lower court for a new trial according to law, and to the views herein expressed.


author: Fenner, J.

text:
    No. 7982.
    Mrs. Mary E. Miller, Wife of W. L. Jackson, vs. T. H. Handy, Sheriff, et al. Executors of Phillips, Intervenors.
    It is not incompatible with the wife’s personal and sple administration of her paraphernal ' property, that she should employ her own husband as her agent for the purpose of that administration.
    When the paraphernal property is thus administered by. the husband, as agent of his wife, by virtue of a special and express power of attorney, and his administration is clearly and positively in her name, for her own account, and subject to her control and authority, the fruits of the property belong to her and not to the Community.
    [Hote of the Reporter]: The property in this case was a plantation situated in the State of Mississippi.
    The wife has the right to buy property for her separate account, partly for cash and partly on credit, when she pays the cash portion of the price with her paraphernal funds, and has revenues derived from her paraphernal property, sufficient to pay the credit portions of the price when they become due.
    The property thus bought by her is paraphernal.
    General principles laid down by the Court to show when and how the wife may buy property for her separate account, on credit.
    APPEAL from tbe Fourth District Court, parish of Orleans. Houston, J.

      B. F. Jonas and J. O. Nixon, Jr., for Plaintiff and Appellee.
    We submit the following propositions:
    Dirst — The evidence is that Mrs. Jackson made two payments, one of $8500 in 1869, and one of $9000 in 1872, besides interest upon the house in controversy; and that those p ayments were made out of her own money.
    Second — That the evidence is that she retained the administration and control of her own funds. *
    Third — That a married woman can purchase property partly on credit, provided her means and circumstances justify the investment. Lehman, Hewgass & Co. vs. Mrs. Barrow, et nx., 23 A. 183; Jordan & Co. vs. Mrs. Anderson, 29 A. 749 ; Terell vs. Cutrer, 1R. 367 j Stroud vs.‘Humble, 2 A. 930; Dyson vs. Phelps, 14 A. 733; Succession of Pinard vs. Holton, 30 A. 167; Metcalf vs. Clark, 8 A. 286.
    Rourfh — That the evidence is that Mrs. Jackson’s circumstances are such as to justify her purchase.

      Thos. J. Semmes, for Intervenors.
    ■Wife may, during the existence of the community, purchase on credit for investment of paraphernal funds, if she has at her disposal property reasonably sufficient to enable her to make the acquisition.

      G. L. Bright and D. N. Barrow, for Defendants and Appellants.
    First — Pleadings cannot he amended during the trial.
    Second — Petition foriDjunction should not he amended, unless an affidavit be made to the allegations and causes necessitating the amendment.
    Third — Aitera cause is taken under advisement, evidence should not be received.
    Fourth — 3$To part of the purchase price of the property was ever paid out of Mrs. Jackson’s money. The cash payment by Mrs. Jackson, and the credit payments were made by mortgaging the same property, and but one of the mortgages has been paid, viz., that for §5000, and this was paid by the sale of part of the property purchased.
   The opinion of the Court was delivered by

Fenner, J.

We find in the record a lengthy and exceptionally able opinion by the District Judge, which presents a lucid statement of the complicated issues involved, as well as a masterly review of the evidence, and we shall avail ourselves of its contents in our statement of the case.

THE ISSUES.

“Certain judgment creditors of Wm. L. Jackson have seized, under “ execution, a portion of ground, with improvements, situated at the “ corner of Coliseum and Polymnia streets, in this city. The plaintiff, “ the wife of Wm. L. Jackson, enjoins further proceedings against the “ property under the executions against him, and prays to be recog- “ nized as the owner thereof, and for damages for an illegal seizure of “ her property. She alleges that she is separated in property from her “ husband with whom she lives, in Adams county, Mississippi; that she “ purchased the property from John S. Scott on the 18th of December, “ 1869 ; that she purchased it in her own name, with her own separate “ paraphernal funds, which fact is recorded in the act of sale from Scott “ to her; that those paraphernal funds were the profits arising from the “ cultivation of a cotton plantation owned by her and situated in “ Adams county, Mississippi; that the said plantation, her separate “ paraphernal property, was administered by her and not by her hus- “ band.”

The'seizing judgment creditors of the husband defend, denying the allegations of the plaintiff's petition, and averring per contra that “ Wm. “ L. Jackson, on May 20,1869, bought the property, and to conceal it, and defraud his creditors, took title to it in the name of his friend and partner, John S. Scott; that on December 18,1869, Scott, without con- sideration, and at the request of Wm. L. Jackson, transferred it to “ him by making title in the name of Mrs. Wm. L. Jackson, the plain- “ tiff; that all these acts were simulated and fraudulent; that the “ property was acquired during the existence of a community of acquets " and gains between plaintiff and her husband, ¥m. L. Jackson, and ■“ purchased with the funds of that community, and not with separate " paraphernal funds of the plaintiff.” They make other allegations assaulting the validity of the judgment of separation between plaintiff and her husband, which seem irrelevent to the issues to be determined, because the rights of the wife originated before said judgment, and are, in no manner, dependent upon its validity.

The defendants demand a dissolution of the plaintiff’s injunction and statutory damages.

“ The testamentary executors of Mrs. Rosina Phillips have inter- “ vened herein by consent. They allege that the succession of Mrs. Ro- “ sina Phillips is the holder and owner of a note for $7000, dated Eebru- “ ary 14,1874, payable one year after date, drawn by plaintiff, Mrs. M. “ E. Jackson, authorized by her husband, and further authorized by the certificate of the Judge of the Sixth District Court for this parish, and " secured by mortgage granted by Mrs. M. E. Jackson, plaintiff herein, ■“ on the property herein described ; that on January 19,1880, they, as “ executors, obtained judgment in suit No. 10,794 of the Sixth District Court, against M. E. Jackson in personam, for the amount of said “ note, with recognition of mortgage on the property herein described ; “ that they caused execution to issue, and thereunder seized the prop- “ .erty.”

They espouse the side of the plaintiff in the original controversy, asserting that the property is paraphernal, and not community, and, therefore, responsible for the wife’s, and not for the husband’s, debts. The plaintiff does not dispute the intervenors’ claim.

The defendants, however, deny the allegations of the intervenors; reiterate the defenses opposed by them to the plaintiff; and further set up certain special defenses attacking the validity of intervenors’ claim against the wife, which they are clearly without interest to urge, being creditors of the husband only, and claiming nothing against, or in right of, the wife.

We shall consider the questions presented by these issues and the ■evidence taken thereunder, in the following order, viz :

1st. Was the Jackson’s Point plantation (with the revenues of .which the plaintiff claims to have made the payments on account of the property), the paraphernal property of Mrs. Jackson ? We think there can be no question that it was. The evidence fully establishes that the property originally belonged to Ralph Miller, the step-father of plaintiff. Having borrowed money from Hoover, to secure its payment, Miller transferred to him the title to this plantation. Having paid Hoover, ;and desiring to present the plantation to Mrs. Jackson, then married, he directed Hoover to convey the property directly to her, which was done. Although in the form oi\an onerous title, this constituted it paraphernal property, as much so as if Miller had taken a reconveyance from Hoover to himself, and then made a donation of it to his daughter. Such was the opinion of our predecessors, as expressed in the ease of Mrs. Jackson vs. Her Husband. Op. Bk.

2d. Was the Point plantation administered by the wife, separately and alone, in such manner as to preserve the paraphernal character of the revenues, and to prevent their falling into the community?

The evidence conclusively shows that Mrs. Jackson administered the plantation, in her own name, her husband acting as her agent by virtue of procurations which she was careful always to prepare'and to deposit with her merchants, who are shown to have recognized her authority as principal in all transactions, and the authority of her husband solely as her mandatary. The accounts with the successive merchants were always kept in her name; she was credited with all its revenues and charged with all its expenses. Her husband, who conducted other plantations for his own account, kept his own accounts with the same merchants entirely separate from the wife’s plantation accounts.

The Code emphatically declares that “ the wife has the right to administer personally her paraphernal property without the assistance of her husband.” Rev. C. C. 2384.

The terms, “ without assistance,” as used in this article, mean, unquestionably, without his control, without the necessity of being thereunto authorized by him, as is the case with many of her acts. It is not incompatible with her personal administration that she should avail herself of the assistance of her husband, if he is willing to render it, provided he act under her authority and merely as her proclaimed agent. Such ■acts, though performed by him, are still the acts of the wife, under the maxim “ quifacitper alium, facitper se.” With regard to the administration of her paraphernal property, when she chooses to retain it, a married woman has all the powers of a feme sole, including the power to employ agents fo aid and represent her in reference thereto. See Reynolds vs. Rowley, 2 A. 893.

Dodd vs. Orillon, 14 A. 68.

Jordan vs. Anderson, 29 A. 749.

' Her right to employ her husband as her agent, when she is separate from him in property, was long since recognized.

Barataria vs. Field, 17 La. 426.

And it has been distinctly decided that even during the existence of the community, the wife may personally administer her paraphernal property through the agency of the husband, without thereby forfeiting the paraphernal character of the revenues.

Lauve vs. Sheriff, 17 La. 183.

The learned counsel for defendants, though he does not in terms; refer to or discuss this last case, yet evidently repudiates its authority, as being in conflict with the provisions of articles 2385 and 2386, Rev. 0: C., providing, in substance, that paraphernal property, “ which is not administered by the wife separately and alone,” is considered to be administered by the husband; and that, when so administered by him, or even by him and the wife indifferently, the fruits pass into the community. We can perceive no conflict or inconsistency.

The wife, as we have seen, has the absolute right to administer her paraphernalia “separately and alone.” She may, at her option, exercise this right, or she may leave the administration to her husband. If she have left the administration to her husband she may withdraw it from him when she chooses. Art. 2387. What is meant by the wife’s administration “separately and alone,” is the retention of the administration under her sole, separate and exclusive control and authority, with the view of making the revenues her own. What is meant by leaving the administration to her husband is the exercise of a voluntary election, by which she abandons her own right of authority and control and suffers the husband to manage, not as her agent and subject to her authority, but as if the property were his own. So long as the acts of the spouses make it clear and certain that the wife intends to reserve the administration to herself and for her own benefit, and to permit no' acts to be done in reference thereto except by herself either in person or through properly constituted agents, and that the husband does not assume to interfere in the administration except as the express and open agent of the wife, we can see nothing to prevent the administration from being considered as that of the wife “ separately and alone,” in the sense of the law. As, with reference to such administration, the wife has all the powers of a feme sole, we find nothing in the law preventing her from employing agents, and nothing restraining her from employing her husband as such agent, provided the agency be express, public, and clearly proved. We have carefully examined all the authorities quoted by defendants’ counsel, (23 A. 198; 21 A. 344; 20 A. 208; 18 A. 106; 17 La. 299; 9 A. 347; 2 A. 763; 11 R. 447), and find nothing inconsistent with this doctrine. In none of them did the intention of the wife to retain her separate administration appear, nor did it appear that the acts of the husband were done under the express power of attorney of the wife.

We, therefore, conclude that, under the facts disclosed by the record, the revenues of the Point plantation -^.ere paraphernal funds of plaintiff.

3d. Was the sale of the property now in controversy by Scott to Mrs. Jackson a real and bona fide transaction, or was it, as alleged by defendants, a purchase by W. L. Jackson for his own account, and with his own means, and was the placing of the title in the name of his wife ■a mere Action, intended to cover up his property from his creditors ?

This question may be summarily disposed of. The theory of the defendants And, in the evidence, not the slightest support that we can discover. Whatever other objections the plaintiff’s title may encounter, we And nothing in the record to raise a doubt that it was the intention of all the parties to this transaction, ab initio and throughout, that Mrs. Jackson should acquire and hold this property as her separate paraphernal estate. Contrary suggestions are supported only by the merest surmises and assumptions based simply on alleged suppressions -of evidence not brought home .to plaintiff, or even to her husband — assumptions improbable in themselves, and Aatly contradicted by every •fact and circumstance in the case aS established by the testimony not only of the plaintiff, but of other disinterested witnesses. Whether we assume the hypothesis of plaintiff’s counsel, that Jackson was rich, and owed no debts, or that of defendant’s counsel, that he was deeply involved, the inference of defendant’s counsel would And no support from •either. The Arst hypothesis would negative all motive for concealment. The last would suggest the strongest possible motive for having the homestead purchased by the wife, with her paraphernal funds,, so as to protect it from his creditors.

4th. Were the payments made on account of the purchase price actually paid out of the plaintiff’s paraphernal funds ?

The plaintiff testiAes that, being about to remove to New Orleans, and desiring a home of her own, she instructed John S. Scott, a member of the Arm of Scott & Cage, her commission merchants, to purchase for her a house. During her absence at the North, on May 20th, 1869, "Scott purchased the property in litigation for the sum of $25,500, and took the title in his own name. While at the North she purchased furniture for the house, and a carriage and horses, which were paid on her drafts by Scott & Gage, and charged to her Point plantation account. During the same period the. insurance on the house and furniture were ■charged to her. On her return from the North, on the 18th of December, 1869, Scott made over the title to her, she repaying him the amount of the cash payment, $8500, by a draft in his favor, on Scott & Cage, and assuming the deferred payments.

In determining whether she had paraphernal funds under her control to make this cash payment, and whether it was made out of the •same, we have nothing to do with anything, except the state of her ac-counts, on December 18th, 1869, the day on which she actually acquired the property, and on which the cash payment was made. With her relations to the property prior to that date, under the merely verbal 4 directions given to Scott to buy, we have no concern. Scott acted in his-own name in the purchase, made the cash payment himself, gave his-own notes for the deferred price, and took the title to himself. This-gave Mrs. Jackson no legal title, and no equitable title capable of being enforced.

What was the state of Mrs. Jackson’s account on the 18th of December, 1869 ? Whatever else is missing, we have the ledger of Scott & Gage containing her Point plantation account from August 16th, 1869;. to January, 1870; and after charging herewith between four and five-thousand dollars paid on account of furniture, etc., it appears that on December 18th, there was actually to her credit a sum of about seven-thousand dollars. After charging her on that day with the $8,500 paid to Scott, the account was closed with a debit against her of only $1630: Her crop, however, had not then been all disposed of. The new firm of Scott & Jackson began operations in January, 1870, and her áccount was-continued on their books. In January and February that firm made-further sales of her crop, and, after charging her with the balance from Scott & Gage, their account showed to her credit, on March 31st, 1870,.. a balance of $3434 14.

It seems to us that this places it beyond controversy,that on the 18th December, 1869, Mrs Jackson had under her control paraphernal funds, ample to make the cash payment of $8500, and that she did pay it out of; the same.

The verity of the items on the ledger account of Scott & Gage is veemently assailed by defendants’ counsel, and charges are made of erasures and false entries. These charges are, however, sustained by no-evidence, and are conclusively rebutted by the testimony of the bookkeepers who had charge of the books.

The defendants also complain that the book of Seott & Gage, showing the account of Mrs. Jackson prior to August 16th, 1869, and from which is taken the balance with which the ledger account opens, is missing, and not produced ; that the page of the journal which contains the-original entry of the draft in favor of Scott, has been torn out of the book, and that the ledger accounts of both Scott & Jackson have been torn out. They complain that these suppressions and mutilations have been made in the interest of plaintiff, to conceal evidence, and that the lost pages would show that the property was really purchased by W.. L. Jackson. We can-discover no principle upon which we can hold Mrs. Jackson responsible for these mutilations, with which neither she nor her husband is proved to have had anything to do. Nor is. there a. scintilla of evidence to show that they were made in her interest. Neither can we see how the missing pages could possibly establish the inferences suggested by counsel, unless they should prove that the entries on the ledger account were false and fraudulent, which hypothesis is-absolutely excluded by the testimony of the book-keepers, without whose connivance such fraud could not be perpetrated. After carefully considering the skillful and ingenious arguments of counsel, and weighing the suspicious circumstances to which they call attention, we can find no justification for impugning the correctness of the ledger account of Scott & Cage, or refusing credence to the testimony of unimpeached witnesses.

So much for the cash payment. Subsequently, a further payment of $9000 was made on account of the price, which we are fully satisfied,. from the evidence, was made by Mrs. Jackson out of her paraphernal funds. We announce our conclusion on this question of fact without more particular discussion, because the question was before our predecessors in the case of Mrs. Jackson vs. Her Husband ; and, as to this payment, they announced the same conclusion reached by the District Judge and by ourselves.

5th. It only remains to determine whether the title of the wife to-the property in question as paraphernal property, is impaired or destroyed by the fact that her purchase was made partly on credit.

To the general rule that estates purchased in the name of either spouse during the existence of the community become community property, there exists a recognized and well established exception in the case of a purchase made in the name of the wife, with the avowed intention. of acquiring for her separate benefit, and paid for out of her paraphernal funds.

The wife has the right to invest her paraphernal funds, and “to acquire property as the result of such investment.

From a thorough examination of our reports, we find no case holding that a wife having sufficient paraphernal means to make a purchase, is debarred from availing herself of the usual terms of credit, or forfeits her right by accepting such terms.

On the other hand, we find several cases in which the wife’s title was protected where she had purchased partly for cash and partly on credit-on showing that the cash paid was paraphernal, and that she had paraphernal means to meet the credits..

See Metcalf vs. Clark, 8 An. 284.

Cockburn vs. Wilson, 20 An. 40.

Succession of Van Rensalaer, 6 An. 803.

Squier vs. Stockton, 5 An. 742.

Stroud vs. Humble, 2 An. 930.

See analogous case, Jordan vs. Anderson, 29 An. 749.

There are other oases where similar purchases have been considered and have been overthrown on grounds entirely distinct from the credit character of the transaction.

Shaw vs. Hill, 20 An. 532.

Bouligny vs. Fortier, 16 An. 209.

In the case of Mrs. Jackson vs. Her Husband, No. 5979 on the docket of this Court, our predecessors had this very title under consideration on a rule taken by the plaintiff upon the present defendants to show cause why their judicial mortgages as judgment creditors of her husband should not be decreed inoperative as encumbrances upon this property therein claimed as her paraphernal property. That case presented the same issues as those involved here. Had the Court been of the opinion that the paraphernal title of plaintiff was destroyed by the credit terms of the purchase, they would have so decided, and the present controversy would never have arisen. But the Court confined its examination to the question as to whether plaintiff had proved that the payments made on account had really been made by plaintiff out of her paraphernal funds. Finding that the proof then submitted was not sufficient as to the cash payment, they merely nonsuited the plaintiff. The conclusion is irresistible that, had the proof on that point been sufficient, the Court would have maintained plaintiff’s rule. Else, why the mere nonsuit ? We consider this decision as equivalent to a direct authority in favor of plaintiff on the present issue.

We think the doctrinéis correctly laid down in the case of Bouligny vs. Fortier, 16 An. 214, that “the wife is required, not only to prove that she had paraphernal effects at her disposal, but also that they were ample to enable her, reasonably at least, to make the new acquisition.” This language would be absurd, if the Court had considered that the purchase by the wife could only be maintained when she had actually paid in cash, out of paraphernal funds in hand, for the property purchased.

In the present case, at the moment of the purchase, the plaintiff had actually in hand more than $8500 in money, and disposable crops purely paraphernal. She was the owner of a valuable plantation yielding large revenues, fully justifying her in the reasonable anticipation that she would have an equal or greater sum at her disposal every year. She desired to purchase a home. Was she compelled to find one that could be purchased at exactly $8500 or less ? Were not her paraphernal property and revenues “ ample to enable her, reasonably at least,” to purchase a home for $25,500, when her vendor was willing to accept the $8500 as a cash payment, and credit her for the balance ? We think she had. The transaction was, in no sense, a “wild and ruinous speculation,” such as those reprobated by the Court in Bouligny vs. Fortier. It was a reasonable business transaction, such as any person in the pecuniary circumstances of the plaintiff might well have engaged in without the charge even of imprudence. At all events, she had the right to do with the $8500 what she pleased. Tnere was no reasonable chance of her losing more than that amount by any decrease in the value of the property purchased. If, however, there should be a greater decline,' her revenues were ample to meet it. In point of fact, she has since paid out of those revenues $9000 more on the price, leaving now due only the $7000 note of intervenors herein. Neither the husband nor ■the community has ever paid a cent on the property, and we can see no possible reason, equity or law, in allowing his creditors to take the property so nearly paid for by the wife, in satisfaction of their debts, and thus impose upon the wife the loss of her entire investment.

It is difficult to lay down precise rules as to the limits within which the wife’s liberty to purchase on credit should be restricted, but we think the following general propositions are reasonable, viz: 1st. It ■should be regarded as essential that the wife should have some paraphernal funds to invest, because such investment is the foundation of her right to purchase.

2d. The cash so invested should bear such fair proportion to the total price of the purchase, as to render it reasonably certain that the property purchased would furnish sufficient security for the credit portion of the price.

3d. The wife’s paraphernal property and revenues should be ample to enable her to make the acquisition, with the reasonable expectation of being able to meet the deferred payments.

These circumstances concurring, as they do in the present case, we see no reason for defeating the wife’s rights under such a purchase, where all the other requirements of the law are complied with.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed, and that appellants pay costs of this appeal.

Levy, J,, absent..

Rehearing refused.


text:
    No. 7903.
    Pierce Butler vs. Mrs. Cora A. Slocomb.
    A mortgage is not negotiable like the note it is intended to secure, but, on the contrary, passes into the hands of the transferree subject to all the equities and defenses which existed between the original mortgageor and mortgagee.
    The Defendant in this case is the accommodation endorser of the note of a married woman, authorized by her husband. The holder did not have it presented and protested at maturity. Plaintiff charges that Defendant is liable both as surety and as endorser, and in the latter capacity though the note was not presented and protested. Defendant pleads she is not a surety and has been discharged as endorser for want of demand and protest. JEEeld that, under the circumstances of the case, Defandant is liable as endorser, although the note was not demanded and protested. Pull exposition of the law governing the case; like this, of the endorsement of a note for which the maker is primarily not liable.
    ^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

      Leovy & Kruttsohnitt for Plaintiff and Appellee.
    First — Plaintiff knew'nothing of the financial relations existing between the parties to the note sued on at the time that he acquired said note.
    Had he known said relations, such knowledge would not injuriously affect his case.
    Second — If defendant be an endorser, as she claims, then plaintiff not only had the right, but was bound to consider that Urquhart acquired the note, not from his wife, but from defendant.
    Third — If defendant is to be considered as an endorser quoad plaintiff, then she is still bound, notwithstanding want of protest and notice, as warrantor of the validity of the maker’s obligation on the note.
    Pourth — Under the facts of this case, defendant is no more an endorser for the accommodation of the maker, than the maker is a maker for the accommodation of the endorser. Both maker and endorser obligated themselves to accommodate a stranger to the paper; both participated in the original consideration of the note; and both are makers.
    Fifth — Article 2398 of the Civil Code is not a prohibitory law established in the interests of public police or of good morals, but of certain particular persons. It is aprohibitory law established merely in the interests of married women, and is of the same nature as all other laws established for their protection.

      Kennard, Howe & Prentiss for Defendant and Appellant:
    First — The decision is admitted to be correct in refusing to enforce the mortgage, and in treating Mrs. Slocomb as an indorser.
    Second — The error complained of is in holding her as an indorser when it is conceded that no demand was made of the maker at maturity, nor-any notice of dishonor given to the defendant.
    Third — The obligation of an indorser in Louisiana is conditional, and the condition is suspensive. When read in full it is this: If this note be duly presented at maturity, and due demand made and payment refused, and if I be duly notified of the dishonor, then, and then only, will I pay the amount.” In no other way, as a rule, can the suspensive condition be accomplished and the obligation converted into one that is simple or absolute.
    ^Fourth — Such a suspensive condition is legal and possible, and must, therefore, be performed strictly, and m forma specijica. As to the third holder, it is protestative, and if he does not choose to accomplish it, the loss must fall on him. Volenti non fit injuria* Larombiére on Ob. vol. 2, pp. 91, 92.

      liffch. — The maxim lex cogit neminem ad vana should not be applied to solve the question presented in this case. It is never applied in favor of one party to nullify a lawful and possible condition agreed upon with another. Such a condition is the law which the parties have made for themselves, and cannot be repealed by a consideration of the comparative - utility of its performance. Larombibre, vol. 2, p. 92.
    Sixth — But if that maxim can be applied in any case, it does not apply to this. Mrs. Slocombhad a recourse against David TTrquhart which she might have enforced 'if she had received timely notice. Authorities cited.
    Seventh — The obligation of an indorser is established under the suspensive conditional form at the moment of indorsement and delivery. Duranton, vol.. 11, Ho. 52. Any change made thereafter by a statute has been held to impair the obligation of a contract. 27 G-rattan, 230.
    Eighth — A fortiori, could not the plaintiff, as third holder, by his act in loaning money to a third person, his pledgor, change or increase that suspensive, conditional obligation. Ho might cause it to bo accomplished by demand and notice, but he could not by any other act of his convert it into an absolute obligation.
    Hinth — When the defendant, then, indorsed the note, it was, as to the maker, perfectly valid. The maker had made a contract with the authority of her husband. It was not a case of incapacity. But for the act of plaintiff himself — a subsequent act of which the defendant is conceded to have had no knowledge — it would have remained valid. If the plaintiff had seen that the money was applied to the maker’s benefit, it would have continued to be valid.
    Tenth — The authorities cited from England and the common-law States are not applicable-here. At common law, the note of a married woman is an absolute nullity at the time she signs it, and ever thereafter. The endorser is held as a person who has indorsed a forged note.
    Eleventh — But if we are to adopt the English rule, let us adopt it m toto. If adopted in toto the note as to Mrs. TTrquhart was absolutely void, but as her husband authorized it and procured the defendant’s indorsement for his benefit, he was liable on it. The wife’s act was his, and Mrs. Slocomb had recourse against him as much as if he had signed the note..
    Authorities cited, and dilemma stated. Mrs. Slocomb was plainly entitled to notice, then, that she might enforce her recourse against David TTrquhart.
    Twelfth — Another case of same plaintiff against same defendant, involving the same and another question, is coming up as Ho. 7973 of the docket. This case might be reargued with that, or that with this. Both judgments are secured on appeal, and no harm can result to plaintiff by permitting an oral argument of the above points.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff seeks to hold the defendant responsible personally, and to subject her estate, with mortgage, to the payment of the “ mortgage note ” sued upon. It is chiefly claimed that the defendant is liable as surety and as indorser, though the note was not protested, and that her estate is burdened with a mortgage given to secure the payment of the note, and which encumbered it when she acquired it. The defense is, that the defendant is liable, neither as a surety nor as an indorser, nor otherwise, and that the mortgage claimed never had any and has no legal existence. The facts of the case are not disputed. Questions of law strictly alone are presented. There was judgment in favor of the plaintiff, and the defendant has appealed.

We take the facts as substantially represented by the defendant’s ■counsel.

Mrs. O. A. Urquhart, wife of David Urquhart, appeared before a notary and executed an act of mortgage, in which she acknowledged being indebted to her mother, Mrs. Slocomb, the defendant herein, in the sum of $20,000, to represent which amount she executed and indorsed four promissory notes for $5000 each, which were drawn to the ■order of and were indorsed in blank by herself. The act was executed, the notes drawn and indorsed by Mrs. Urquhart with the authorization of her husband. Mrs. Slocomb signed the act, but no consideration passed. To secure payment of those notes, Mrs. Urquhart mortgaged a piece of real estate in this city, her separate property. After the act was completed and the notes signed and indorsed by Mrs. Urquhart, Mr. Urquhart obtained on them, for his accommodation, the blank indorsement of Mrs. Slocomb, which was placed under Mrs. Urquhart’s signature.

Afterwards, Mr. Urquhart, being desirous to raise money for his •own account, offered, as collateral security, for his own obligation, the notes so made, signed and indorsed. Plaintiff accepted the offer, received the collaterals, and loaned the money. Mrs. Slocomb was not present at the time, nor had she any communication with plaintiff, nor •did she know that he held the notes of Mrs. Urquhart, indorsed by her. When the note sued on fell due, plaintiff did not demand payment of it, nor did he have it protested, or give any notice to Mrs. Slocomb of its non-payment by the maker. In April, 1879, Mrs. Urquhart sold and transferred to Mrs. Slocomb the property described in the mortgage act, but Mrs. Slocomb did not assume payment of the notes apparently •secured by mortgage on it, nor did those notes form part of the purchase price. Some two years after the maturity and non-payment of the note, plaintiff demanded payment of Mrs. Slocomb. On her refusal he brought this suit, for the purpose of making her personally liable on the note, and of subjecting the property to the mortgage.

It is worthy of notice that during the trial and the admission of ■evidence, no bill of exception was taken to the introduction or rejection ■of any.

This suit embraces, therefore, two actions, the hypothecary and the personal.

The two causes are totally distinct. Both may be good, both bad, or one good and the other bad.

The defendant filed an exception of no cause of action, but on its being overruled she pleaded to the merits. We will not review the j udgment on the exception, as its correctness will be virtually and practically tested in determining the merits of the case.

i.

The plaintiff advances the proposition that a mortgagee who transfers his mortgage and the notes secured by it to áthird person, warrants the legality and validity of said mortgage and of the debt evidenced by the note, and in a subsequent suit to enforce the mortgage brought by said third person against said mortgagee as third possessor of the mortgaged property, the latter is estopped from setting up the illegality or invalidity of said mortgage, and in support of that theory, he quotes the ease of Saltzman vs. His Creditors, 2 R. 243; Barkdull vs. Herwig, 30 An. 618; Troplong, des Priv. et Hyp. vol. 1, No. 367; Grenier, des Hyp. vol. 1, No. 93.

We do not propose to inquire into the correctness of these authorities, either by contrasting them with article 2102 R. C. C., which refers to conventional and legal subrogation, and with the jurisprudence under it; or, by going into an elaborate discussion of the principles which, it is claimed, they consecrate; but we do not hesitate to say that they can have no application to a case like the present one, in which there was no assignment of the mortgage, said to have existed, for the reason that no such mortgage ever having had life, it could not be and was not transferred.

Pont, Priv. and Hyp., p. 214, Sec. 239.

In so saying we do not lose sight of the fact that the note in question was apparently secured by the act, by mortgage, as well in favor of the mortgagee as in favor of any subsequent holder of the note. We are not to be understood, however, as saying that in such cases, when the note passes from the mortgagee, the mortgage does not pass with it, for such is not our opinion, inasmuch as the mortgage does follow the note. But what we say is that the mortgage, when it does pass, is acquired in the same condition that it was in before the mortgagee parted with his rights, if any, under, or to the same. We assert and affirm the proposition, that a mortgage, when assignable and assigned, cannot be transferred to a third person, so as to give him any greater right than the mortgagee himself possessed. In so.doing we are supported by justice, by law and jurisprudence.

Schmidt vs. Frey, 8 Rob. 435; 5 N. S. 56; 5 An. 495; Bouligny vs. Fortier, 17 An. 121; 26 An. 376; 28 An. 855.

In this case the evidence is conclusive that Mrs. Slocomb gave no consideration either for the note or for the mortgage which was a mere accessory to the principal obligation; that the notes had been issued, and the mortgage given to secure their payment, by a married woman, with the authority of her husband; that she has not received any consideration for the same, and derived no benefit from the issuing of the note and the giving of the mortgage.

Now, had Mrs. Sloeomb never parted with the notes, which, the act T-says, were delivered to her as lender and as mortgagee, could she ever have, in case of non-payment at maturity, enforced payment by suit against Mrs. Urquhart, under the circumstances of this case? Assuredly not. She being the original holder and mortgagee, Mrs. Urquhart could undoubtedly have successfully pleaded, not only want of consideration, but also, if the amount had been received by her, that it had not enured to her benefit. It would have been the bounden duty, as a •condition precedent sine qua non, of Mrs. Sloeomb, to have established •affirmatively the consideration and the enurement to benefit denied. She had, therefore, no legal right to enforce payment of the note, and, to that end, to foreclose the mortgage. It cannot be nor is it denied, that the note, being negotiable, and passing to a third innocent party in ■due course of business, the want of a right, on the part of Mrs. Slo■comb, to coerce payment of the note, merely as a negotiable instrument, could prove injurious or prejudicial to such third party, for such is not the law ; but the rule does not obtain as to the mortgage, which is not in its nature negotiable. The notes were, on their face, notes issued and secured by mortgage by a married woman, with the mere authorization of her husband, for this is not the case of a married woman' empowered by the judge to borrow and mortgage, under the provisions of Arts. 126,127 and 128 of the R. C. O. This was sufficient notice to any third party, and to the world, to provoke inquiry as to whether the notes were issued for consideration enuring to the benefit of the drawer. 5 An. 495; 4 R. 508; 6 An. 590; 26 An. 376; 28 An. 855; Toullier 2, 622; Troplong 2, 1447; Marcadé 5, 1450; Dig. L. 50, Tit. 17, L. 19. The act of mortgage is not a negotiable instrument, and, unlike -the notes which it apparently secured, when assigned, was subject to •all equities between the original parties. If the plaintiff claim under the act, he makes himself a party .to it, and is affected by the notice which the act itself affords: that the drawer of the note and the mortgageor had no right to incur the debt, utter the note and give the mortgage, unless the amount enured to her benefit. If the plaintiff do not claim under the act, then he abandons his hypothecary action, is a stranger to it, and has no reason to complain if the mortgage be pronounced a nullity, as given to secure notes, which themselves have no legal existence, and cannot be enforced against the drawer.

The plaintiff has, no doubt, realized this insuperable objection, for he does not so much contend that a mortgage existed, as that Mrs. Slocomb is estopped, being now the owner of the property, and having endorsed the “mortgage” note, from denying the validity and existence of .the mortgage claimed.

The doctrine of estoppel, it is insisted, has never been carried to that extent, nor, it is said, can it be, in this State under our peculiar system of laws relative to the rights and obligations of married women. 21 An. 14, 476; 22 An. 369; 30 An. 53.

Whether it be so or not, does not matter, as the plaintiff, claiming under the mortgage as privy to it by his own act, cannot ask its enforcement without, under 1 he exceptional features of this case, establishing its validity, even against the defendant, who, under no circumstance, can be considered to have, by her endorsement, warranted its validity, although she may have warranted that of the debt.

When Mrs. Slocomb, as holder or bearer of the note and as mortgagee, parted with the note and the mortgage, she transferred only those rights which she had to the mortgage, and no third person, how•ever innocent, can be heard to claim any greater rights. As Mrs. Slocomb could not have enforced the mortgage consented, for the payment of the notes, her transferrees, whether original or subsequent, having -acquired no greater rights than she herself had, cannot accomplish what she could not herself have done.

In the act of purchase by Mrs. Slocomb of the property apparently mortgaged, it does not appear that she assumed payment of the .notes and a reversion of the mortgage in favor of any holder of the note. Not only is the act not reticent on the subject, but it distinctly provides that the purchaser will be kept harmless, owing to the existence of the apparent encumbrance. We, therefore, conclude that, even if Mrs. Slocomb were liable personally for the note sued on, that note is not secured by mortgage on the property in question.

We do not wish to be understood, when deciding this case, on the validity of the mortgage in question, as saying, that where the holder of a note secured by mortgage, who was competent to bind himself by it, with or without consideration, parts with it, in the ordinary course of business, in favor of a third innocent party, such transferree’s rights to the mortgage would be contingent upon the validity of those of the original mortgagee, to the mortgage, for any cause, simulation or other, which could effectually prevent the mortgagee from enforcing the mortgage. Such'is not the law. The doctrine which we maintain applies only to those cases in which the evidence of the obligation secured by mortgage exhibits an illegal consideration, or puts the party legally upon the inquiry, whether the consideration expressed as received was or not . so, and whether it did or not enure to the benefit of the party signing the instrument in person or by power, legal or conventional. 8 R. 435; 17 An. 171; 26 An. 376; 28 An. 855.

II.

The next question which arises is whether the defendant can be treated as a surety, and if not, whether she can be held as an endorser, although the note sued on was not presented for payment at maturity, and was not protested.

The views which we entertain as to the liability of Mrs. Sloeomb, as an endorser, dispenses us from considering and determining her responsibility as a surety.

III.

If Mrs. Sloeomb were not liable as a surety, she would be responsible as an endorser, although no demand of payment was made, no protest took place, and no notice was given to her.

A review of the cases adjudicated and of the opinions of commentators satisfies us that the contract of endorsement is a distinct and separate one, by which the holder of a note, having possession of it, transfers it by his signature on it, with warranty as to certain matters, •and binds himself eventually to its payment. .

The endorser warrants the genuineness of the note, the competency of prior parties to bind themselves in their ostensible capacities, the validity of his own title to the note, the payment of the note at maturity, and in case of non-payment, when he has reasonable grounds valid in law to believe that it will be honored, he asserts his liability to pay the same.

As an original proposition, it cannot be denied, nor is it, that usually an endorser cannot be held liable, in the absence of demand, protest and notice, as provided by law. Such is assuredly the rule, but is it inflexible, is there no exception to it, does there exist no case in which the law admits excuses in justification of the absence of demand, protest and notice? A good deal has been written, and more said on the subject, and now, for the first time in this State, does the question occur for solution.

In the inquiry which we are about to institute, and the determination which we are to make on this vital matter, we promise that we have allowed ourselves to be guided — as the mariner is by the polar star — by the wise maxim of the law, which we deem is entitled to full application in this case, that lex neminem cogü ad vana. However, before proceeding further, it is material that we should first settle the character of the endorsement of the defendant, or the note sued on.

When that note came to the hands of Mrs. Sloeomb, its appearance or complexion was that of the unconditional obligation, to pay money, of a married woman, to her own order, signed and endorsed by herself, with the authority of her husband, for value received.

In this last particular, under the evidence in this case, it was false, as no consideration had passed to her for it. It was valueless, as to Mrs. Sloeomb, who not having given any consideration, could not prove that any had enured to her benefit, and who, therefore, could not enforce payment of it in case of resistance on the part of Mrs. Urquhart. It could acquire no value, for the same reason, in the hands of even innocent third persons, for they would likewise have been powerless to show consideration and enurement to her benefit. To acquire any legal and, besides, real value, the note or paper had to become the evidence of an indebtedness, other than that of Mrs. Urquhart, by the act of a party competent to bind himself by his mere volition, and who would be responsible in point of solvency. It was not until that act had been done that the note or paper could have been considered as the evidence of a debt which third persons could absolutely enforce. The endorsement of Mrs. Slocomb was necessary to give to the paper life and validity, as the evidence of a debt; but that endorsement could not, and did not quicken a vitality not previously existing even in embryo, for it was then altogether lifeless as to its maker, who was also the apparent payee. The endorsement vivified it as an original evidence of a "new and distinct indebtedness, binding primarily and solely upon Mrs. Slocomb as the first, and under the circumstances, the only person competent to incur an obligation. The note so signed and endorsed by Mrs. Urquhart with her husband’s authority was not legally uttered, and was not binding upon her when it came to the hands of Mrs. Slocomb, nor had it been uttered when the latter endorsed it, as it was then in the possession of one who had not become the owner of it, who had given no consideration for it to' the maker or to the mortgagee, and who could not enforce the payment of it. Even after it had been endorsed by Mrs. Slocomb, he himself could not, under any circumstance, have coerced payment of it, either against his wife or his mother-in-law, delivery to a person capable of enforcing payment being essential. Daniels on Neg. Inst., v. 1, pp. 56, 112; 2d. p. 540; 30 An. 89; 28 An. 358; 24 An. 36.

Mrs. Slocomb never legally owned the note. She endorsed it, not to infuse life into it as an original'obligation of Mrs. Urquhart, but for the-sole purpose of enabling Mr. Urquhart to use it, with her valuable security, either by discounting it, or using it as a collateral guarantee, for the payment of some obligation of his. i

Under the circumstances of this exceptional case, the endorsement of Mrs. Slocomb must be viewed as being as well that of the payee as-an original and independent contract, whereby she bound herself, primarily, to its payment. In either case would she be bound. Dealing with her then as with the original payee and endorser, let us consider whether she can set up, as a valid defense, want of demand, protest and notice, at maturity.

There can be no doubt that in its-technical sense, endorsement means : writing one’s name, with the intent to incur the liability of a party who warrants payment of the obligation, provided it be duly presented to the principal at maturity, and remain unpaid by him, and that these facts be seasonably signified to the endorser, the endorser affirming and warranting that the original parties to the note were competent to bind themselves in their ostensible capacity, otherwise they would not be real parties to it. Therefore it is, that if the drawer, acceptor or maker be an infant, a lunatic, or a married woman unauthorized to act ■and not liable, the endorser’s affirmance or warranty is broken, and he •can be sued, either upon the instrument itself, without proof of demand and notice, or for the-recovery of the original consideration which has failed. When there is, in such a case, no principal party legally bound upon the note, both presentment and notice are superfluous, and can, therefore, well be dispensed with. Hence, also, when the note is void between the drawer and payee, on account of an illegal consideration, the endorser may be held without any proof of demand and notice. When he endorses such note, the endorser warrants by the very act that the drawer is legally liable to pay it, and practices a deception for which he is responsible, knowing, as he necessarily must, that such is not the case. The holder, in the belief of its truth, might look only to the maker, and fail to take the necessary steps to charge the endorser, and if, when he becomes aware that the maker was not legally bound for it, he could not recover against the endorser — the latter would be protected by his own fraud, and the holder suffer by the confidence placed in him!

So say, almost verbatim, the writers on negotiable instruments, and .such is the jurisprudence on which the doctrine is based.

Besides: The principal excuses to justify absence of demand, and •consequently of protest and notice, can be classed under two distinct •heads: 1st, the impossibility of a demand; 2d, the acts, words or' position of a party, showing that he has abandoned the right, or was not entitled to the demand, of the want of which he seeks to take advantage.

How far death, absence, insolvency, and other accidental circumstances, may justify the absence of demand, protest and notice, because of the impossibility of making any, has been extensively considered and treated by authors, and expounded by jurisprudenbe, but, as the in•quiry is not presented in this case, we will not enter upon it. The excuse for a want of demand being offered on a different ground, we will •now proceed to consider-its sufficiency.

The payee may have waived demand, protest and notice, and in ■such a case he clearly could not plead the absence of such in bar to recovery against him; but where he has made no such waiver, he is entitled to the fulfillment of those formalities, provided he be in a position to require them, provided, by their non-fulfillment, he has been deprived •of rights which he otherwise would have enjoyed. The authorities are numerous to that effect.

But in this case Mrs. Slocomb was not in a position to demand the observance of those ceremonies, and by their non-fulfillment she has lost no right which she otherwise would have possessed, for, under no imaginable circumstance, was she entitled to any against Mrs. Ur•quhart.

The reasons for this are obvious. She had no right to put in circulation, as a valid obligation, a note which she knew was, as to her, radically void, and which, under the evidence in this case, had been made to her knowledge by a married woman, not for her own benefit, but for the advantage of her husband, in derogation of a prohibitory law, and ■next, she knew that she could have no action against the maker, in case of non-payment, as that maker was under no obligation, legal or moral, to pay the same to her, and she was also aware that she had no reasonable ground, nay, no right whatever, to expect payment of it by her. The demand, protest and notice, had any taken place, could have conferred on her no right whatever against the drawer, and the absence or want of the same has taken none away from her. She has, therefore, no valid cause of complaint on account of their omission, and is amenable and chargeable for the debt pressed against her.

This view of the case is in full accord with the jurisprudence, and consonant with the teachings of commentators on the subject, predicated as they are, on commercial usages and customs, long established •and respected, both in England and in this country.

We will not assume to quote particularly the authorities upon which we rely to justify our conclusions. We deem a collective reference to the main ones sufficient, without mentioning specially the language used in any one ease, as, in the course of this opinion, we have copiously made the sayings of others our own, with some modification to suit our views. Daniels on Neg. Inst., vol. 1, p. 536, vol. 11, 142, 143, §§ 1112, 1113; Parsons on Bills and Notes, vol. 1, 353; 442-445, 463, 464, 532, 536 and note; 559, 560; Edwards on B. and N., 290, and the authorities substantially quoted in the notes. See, also, Copp vs. McDugall, 9 Mass. 1; Cundy vs. Marnott, 1 B. and A., 696; Farmers’ Bank vs. Vanmeter, 4 Randolph (Va.) 557, 558; Erum vs. Downs, 15 N. Y. 575; Dalrymple vs. Hillenbrand, 2 Hun. N. Y. 488; also authorities collected in H. D. 1, p. 178; Vo. Bills and Notes iv (d) (2) No. 3; 25 An. 477; 24 An. 139; 19 An. 307.

The judgment of the lower court was entirely in favor of plaintiff, recognizing the validity of the mortgage, allowing attorney’s fees under the act, for the prosecution of the suit for the payment of the note sued on. It is erroneous, except so iar as it allows the face of» the note-with the interest stipulated.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, so far as it allows plaintiff five thousand dollars with eight per cent interest per annum from February 8th, 1876, until paid,, and costs of suit, be affirmed; and that in all other respects, it be-avoided and reversed.

It is further ordered that as regards the claim of plaintiff to a mortgage and attorney’s, fees, plaintiff’s petition be rejected with judgment ia favor of the defendant.

It is further ordered tnat the plaintiff pay the costs of the lower court, and that he and the defendant pay the costs of appeal, share-alike, from the date of appeal.