text:
    No. 3110.
    D. Redmond v. B. L. Mann and Mrs. L. L. Mann.
    An application to tlie Supreme Court to oxtenel tho time fixed in the order of appeal hy the lower court is without effect il‘ not made within three judicial days after such return day. After the right of appeal has lapsed through the fault or negligence of the appellant, the Supremo Court can not legally take cognizance of the appeal.
    Appeal from the Sixth Judicial District Court, parish of Tangipahoa.

      Filis, J. John W. Addison, for plaintiff and appellee»

      T. <£ J. Filis, for defendants and appellants.
   Howell, J.

A motion is made to dismiss, on the ground that the appeal was not brought up within the legal delay, and an extension of time was not applied for until six judicial days after the return day.

The order of appeal was granted on the twenty-fifth November, 1870, and it merely made the appeal' “ returnable according to law,” not naming the return day. No objection is raised owthis ground, but tbe order is treated by the appellee as sufficient. The objection is, and it ■appears to us to be a good one, that the appellants have not compiled with it, because by section one of act No. 45 of 1870 (page 99), appeals from the parish of Tangipahoa are returnable on the first and third Mondays of each month of the session, and by section four of said act the return day, according to the ordor in this case, was the first Monday of December, and if there was not sufficient time to give the motion required by law and prepare the record by the said first Monday, then the third Monday (nineteenth) of December, at farthest, might bo deemed the return day, and it was the duty of the appellants to apply to the Supreme Court (which was in session on that ■day) within three judicial days thereafter for an extension of time, or it was their duty to make their said application within three judicial days after ttie first Monday (fifth) of December, 1870, the legal return day under the order of the court, whereas it was not made until the twelfth of January, lw71, at least five or six judicial days alter the third Monday of December, and at which time the appeal had lapsed, and consequently the order of extension was ineffectual, not being competent to revive the right of appeal lost by mere delay. The rule that when an act is to bo done within a given time it may be done afterwards, if nothing occur to prevent it, does not apply to such a ease. 8 L. 206; .6 R. 79; 9 An. 21.

We are constrained to hold that the appellants have been guilty of laches in not bringing up their appeal within the legal delay, and the appeal must be dismissed, not because of any defect in the order of ■appeal, but because, taking said order to be regular, and not in violation of the law, the appellants have not obeyed it, and have not taken the steps necessary under the law to bring up the appeal within the delay fixed by the ordor of appeal.

It is therefore ordered that the appeal heroin be dismissed, with costs.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 3372.
    Succession of J. J. Bergold.
    The order of the Supreme Court granting an extension of time to the appellant to "bring up the appeal has no effect if the return day has expired before the application for the extension of the time is made to the court.
    Appeal from the Parish Court of Tangipahoa.

      Bradley, Parish Judge. JDirhamer cB Kennavd, for appellant.

      T. d> J. Bilis, for appellees.
   Howell, J.

The order of appeal herein was granted on the fifth of December, 1870, and the appeal made returnable according to law. By the act of 1870, page 99, appeals from the parish of Tangipahoa are returnable on the first and third Mondays of each month of the term. The record was not filed until nineteenth April, 1871. It seems that ■on twenty-seventh March an extension of time to bring up the appeal was granted. The application was too late, as it should have been made in December, 1870, or at fartherest, in January, 1871, and the ■order of extension could nob revive the right to complete the appeal which had lapsed.

The motion to dismiss, based on these facts, must prevail, as just held in Redmond v. Mann et al.

It is therefore ordered that the appeal herein be dismissed, with ■costs.


author: Hqwe, J. Taliaferro, J.

text:
    No. 2885.
    State, ex rel. James F. Ard, v. Henry H. Bankston.
    ~Wher© a case involving tlie right to office is tried in chambers and an appeal is taken by motion, in open court, citation of appeal is not necessary.
    Hf the appeal bond embraces all the parties necessary to the appeal, the fact that the order of appeal fails to set out the proper parties is not good cause for dismissing the appeal.
    'The failure of the order of appeal to fix a return day is not good cause for dismissing the appeal, because the fault is not attributable to the appellant.
    ‘The fact that the transcript was not filed until fifteen days after the judgment of the court below, in suit involving a contest for office, does not lay the foundation for a motion to dismiss the appeal.
    .In a contest for oflice whore each one of the contestants holds his commission from the Governor of the State, with no evidence before the court showing that a vacancy has occurred in the office, and no evidence dehors the commissions is offered which contradicts their recitals, the contestant who holds the commission first issued will be declared entitled to continue in the office.
    Appeal from the Sixth Judicial District Court, parish of Tangipahoa.
    Ellis, J. Bolivar Edwards, District Attorney, and Wilson & Perrin, for relator and appellant.

      T. & J. Ellis, for defendant and •appellee.
    On Motion to Dismiss Appeal.
   Hqwe, J.

The defendant, appellee, has moved to dismiss this ■appeal on the grounds:

First — That the appeal having been taken by motion, at chambers, there is neither petition nor citation.

Second — That the order of appeal does not fix any place to which it shall be returnable, fior return day.

Third — That the record of appeal was not brought up in time (the right of oflice being involved), the judgment having been signed May 7, 1870, and the transcript filed May 23, 1870 ; and

Fourth — That the State, co-plaintiff, is not made a party to the .appeal.

The case was tried in chambers under the provisions of the intrusion :act of 1868. The court was duly open and the motion of appeal was made on the same day the judgment was read, “ in open court,” and jqo citation was necessary.

If it be a defect that the order does not fix a time and place, it is not attributable to the appellant.

The fact that the transact was not filed till fifteen days after judgment in the court below, does not lay a foundation for a motion to dismiss.

The State was made a party to the appeal by the appeal bond in favor of the clerk. All possible parties are brought before us in this way.

Motion to dismiss overruled.

On the Merits.

Taliaferro, J.

This is an action brought under the “Intrusion Act.” The relator avers that he was duly appointed sheriff of the parish of Tangipahoa by the Governor of the State and was confirmed by the Senate on the sixteenth of March, 1870, and in accordance with this appointment he holds the proper commission issued to him on the-same day; that he has duly qualified as sheriff by taking the oath and furnishing the official bond required by law; that notwithstanding his legal right to hold the office and discharge the duties appertaining to it, he is obstructed and prevented from so doing by one Henry H. Bankston, made defendant herein, who pretends that he is the sheriff' of said parish, and that he unlawfully holds and controls the said office of sheriff, retaining from the possession of the relator the archives, books, papers and appurtenances of the office. He prays judgment against the defendant as an intruder into the office aforesaid; that he be decreed to be unlawfully acting in the capacity of sheriff of said parish; that he be ejected and excluded therefrom; that relator be put into possession of the office and maintained in the peaceable exercise of the duties thereof; that he recover from defendant two thousand dollars damages for his tortious and illegal acts and for all costs of this proceeding.

The answer is a general denial. The defendant specially alleges that the relator is disqualified by the fourteenth amendment of the Constitution of the United States to hold office; avers that ho'is himself the duly appointed, commissioned and qualified sheriff of Tangipahoa parish, appointed thereto and commissioned on the ninth of March, 1869, in pursuance of the act of the Legislature of the sixth of the same month, establishing the said parish; that by the provisions of said act the Governor was authorized to appoint the parish officers of the new parish, and their term of office was made to extend to the next general election then next ensuing. There was judgment in favor of the defendant and the relator has appealed.

The point which the relator strives to make is, that the appointment. of Bankston on the ninth of March, 1869, continued only to the end of the next session of the Legislature; and he avers that when it was made the Senate was not in session to confirm nominations, the Legislature having adjourned sine die nine days before; that there was, therefore, a vacancy in the office, which arose at the end of the regular session of the Legislature, about the first of March, 1870; that the relator was appointed 'on the sixteenth of that month, during the extra session of the Legislature called immediately after the termination of the regular session that preceded, and that his nomination was confirmed by the Senate during the extra term. There is no difference between the commissions except in their dates and the names of the appointees. Both commissions recite that the appointments were made by and with the advice and consent of the Senate. There is no evidence dehors the commissions contradicting their recitals, and we are not authorized to take judicial cognizance, without proof, of the legislative transactions recorded in its journals in order to ascertain the truth of the fact as to whether confirmations were made by the Senate of the persons purporting, by these commissions, to have been appointed. In the entire absence of anything showing that there has been a removal from office of the party first appointed or that the office had, from any cause, become vacated before the date of the last commission, we can only presume the last commission was issued in error, and must, therefore, maintain the defendant in the right he sets up to the office in virtue of his holding the older commission. This case differs from the case of George v. Tucker, 23 An.

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


text:
    No. 2162.
    E. G. Cook v. A. Miltenberger & Co.
    The -written promise to accept an existing bill is an absolute acceptance which is binding on the party who makes it; therefore, if a party promise in writing to accept drafts drawn upon him by the collector of internal revenue for the amount of taxes imposed upon him on account of cotton received, he is bound on such drafts, and can not be heard to urgo that the laws of the United States prohibit tax collectors from collecting taxes in any thing but lawful money. 2>Tor can he be allowed to urge that no one but the United States is entitled to recover.
    Appeal from the Fourth District Court, parish of Orleans.

      Ihéard, J. J. M. Bonner, for plaintiff and appellant.

      Campbell, Spofford c& Campbell, for defendants and appellees.
   Howell, J.

Plaintiff, Collector of Internal Revenue for the First District of Mississippi, sues the defendants upon six drafts, drawn by C. F. Caruthers & Co., of Osyka, Mississippi, in pursuance of the following letter of defendants, dated October 26, 1866: “ We have no objection to your drafting upon us in payment of the internal revenues tax on cotton shipped to us. Your drafts for same will therefore be duly honored.” This was in reply to the following from said Caruthers & Co., of October 24: "Please to inform us whether it would suit you if we were to give a draft on you for the internal revenue tax, the collector here preferring same instead of money.” The drafts amount to $2790, are dated, the first on October 27, payable at ten days, the second on November 10, at sight, the third December 3, at sight, the fourth December 15, at sight, the fifth December 24, (1866), at sight, and the sixth January 28, 1867, at sight, aud were protested April 11, 1867. The defendants except that there is no cause of action, because the laws of the United States prohibit the collectors from collecting taxes in any thing but lawful money, and if any party is entitled to recover it is the United States; and for answer they allege that they had no notice of said drafts ttntil after the accoxtnt of the drawers was closed and settled; that said drafts are largely in excess of any shipments to defendants; and that the non-presentment by the holder, the failure to give notice by the drawers, the time given to the latter, and the violation of the act of Congress, have released defendants, who plead illegality, collusion, fraud and want of interest in plaintiff. The exception was maintained, and plaintiff appealed.

The laws of Congress, invoked by defendants, are enacted in the interest of the government of the United States, and can not avail as a ■defense to this action on behalf of defendants, who are liable, if at all, on their agreement to accept commercial paper, given lor the amount ■of the revenue tax on cotton shipped to them. See 1 Brightley Dig'., pp. 887, 888, $§ 50, 57, 58, 59, 60, 66; 13 Stat. at Large, p. 400, §§ 25, 51; 14 Stat. at Large, p. 98, §§ 1 and 2.

There is ample proof that defendants wore notified of each draft as drawn and promised to pay them, and that they were drawn for the tax on cotton shipped to defendants, in accordance with their authorization of October 26, 1866. Their subsequent settlement with the •drawers, without including or providing for the same, was at their own risk, so far as the holder is concerned. The written promise to accept an existing bill is an absolute acceptance, and nothing but payment or .a release can exonerate such acceptor. Story on Bills, §§ 244, 254; Parsons on Notes and Bills, vol. 1, p. 324. There was a written promise on the part of defendants to honor each one of these drafts in addition to the first letter agreeing to do so.

Under the circumstances they must be held liable.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff recover of defendants, A. Miltenberger and G-. Miltenberger, in solido, the sum of $2790, with legal interest from April 11, 1867, and costs in both courts.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 2369.
    Victor Morano v. Alfred Shaw et al.
    The vendee of a purchaser at sheriff sale, though expressly subrogated to all the rights and privileges acquired by his vendor under the sheriff sale, has no right of action against the recorder of mortgages for having given an imperfect and erroneous certificate, whereby his* vendor was induced to purchase property charged with incumbrances not made known at the time of the sale. The action for damages against the recorder for omitting to give a full and complete certificate of the incumbrances on the property to bo sold is a personal one, and can, therefore, only be exercised by the purchaser at sheriff sale.
    Appeal from the Fourth District Court, parish of Orleans.

      Théard, J. St. 11. J3erav.lt and A. <& J?. J. Pobert, for plaintiff and appellant.

      Clarice, Baijne & Benshaw and T3. Bermudez, for defendants and appellants.
    This case was tried by a jury in the court below.
   Taliaferro, J.

The object of this suit is to render a recorder of mortgages liable in damages for having furnished a mortgage certificate by which the sheriff of' the parish of Orleans sold under execution ■certain lots of ground as being free from all liens and incumbrances whatever, when in fact there existed a mortgage for a large sum against the property, which mortgage was, subsequent to the plaintiff becoming the owner of the lots sold at sheriff sale, enforced against them, to his great detriment and injury. The plaintiff joins- in this action his vendor, Daniel Martin, who was the purchaser of the property at the sheriff’s sale, and who sold it to the plaintiff with full warranty in all respects. Martin answered, averring that in an injunction suit instituted by the plaintiff against the party enforcing the mortgage complained of, the plaintiff had the means of defeating it, but failing to do so and abandoning the injunction proceeding, he lost all recourse upon him in warranty.

The defendant, Shaw, pleads the prescription of one, three and five years; that the plaintiff has no right of action against him; and avers that the plaintiff has entered into a fraudulent combination with others to extort from him a large sum under the pretext of damages that, had the plaintiff given him reasonable notice of the proceedings taken against the property purchased as alleged by the plaintiff, and which was sold under an older mortgage, not specified in the certificate of mortgage, he could have pointed out available defenses which the plaintiff might have resorted to and protected himself.

The cause was tried before a jury, which rendered a verdict against the defendant, Shaw, for the sum of $4500. From the judgment thus rendered he appealed. From that part of the judgment releasing Martin, the plaintiff appealed.

The facts of the case are that the city of New Orleans, in its administration of the McDonogli school fund, sold to onp Gubernator four lots of ground in a specified locality in the city, the lots being designated by the numbers one, two, three and six. The sale was made on a credit; notes were given, and a special mortgage upon the property retained. Subsequently White, a paver, having a claim amounting' to several hundred dollars against Gubernator for paving in front of some of those lots, brought suit against him, claiming a privilege upon the lots. Ho had judgment for the amount he claimed, with recognition of privilege. The lots were offered for sale under execution, and two of them, lots one and six, were sold, Daniel Martin being the purchaser. It was at this sale that the property was declared to be free of incumbrances, the recorder of mortgages having omitted to name in his certificate the mortgage in favor .of the city of New Orleans given by Gubernator to secure the payment of the price of the property. Martin sold these lots to Morano, the plaintiff, with full warranty against all incumbrances, a mortgage certificate being appended to the act of sale, and therein recited that the property was unincumbered. Afterwards the city sued Gubernator on his notes for the price of these lots, and under a judgment against him recognizing the mortgage claimed, the lots were seized by the sheriff and advertised for sale. The plaintiff in this suit, Morano, took out an injunction to prevent the sale, alleging ownership, and praying damages for the seizure. The injunction was dissolved, with twenty per cent, damages. The plaintiff in injunction applied for and obtained an order granting an appeal, but the appeal was abandoned. The claim of the city against Gubernator, it seems, was settled, and the property was not sold under execution. The sheriff’s return on the execution recites that the debt was paid by Gubernator and that the writ was finally returned twenty-ninth August, 1867. Still, an alias fieri facias was issued on the eighth of February, 1868, and lots numbered two, three and six were again seized and were advertised for sale on the twenty-eighth of March, 1868, although it appears no sale was made. Pending this advertisement, Shaw, the defendant, wrote, under date of March S3, 1868, to both Daniel Martin and Morano, five days before the time fixed for the sale, suggesting available defenses that might be resorted to by them. It is shown that certified copies of these letters were served respectively on Daniel Martin and Morano the same day they were dated.

It appears by a notarial act dated seventh of May, 1867, that Gerard Stith, President of the Board of Commissioners of the McDonogh school fund, in consideration of the sum of $3943 received from Francis Martin, assigned to him all the right, title and interest of the said commissioners in and to the judgment obtained by the city of New Orleans for the use of the McDonogh school fund against Gubernator, and subrogated him to all their rights in the said judgment and the notes upon which the judgment was predicated.

In this state of affairs Morano says that, being desirous of retaining the property he liad purchased and improved, he entered into an agreement with Francis Martin and Gubernator, the parties interested, by which he retained the corner lot by paying one thousand dollars, the estimated value of the lot without the improvements he had made upon it; the other lot, valued at six hundred dollars, to be sold under the execution; that he moreover obligated himself to pay the damages awarded against him in the injunction suit and all costs, and that having paid in all $2250, he was quieted in his possession of the property. To this sum ho adds “ damages suffered from privation of the property, loss, trouble, etc., $2250,” footing up his entire demand at the sum of $4500.

Morano bought the two lots from Daniel Martin on the third of September, 18C6, and gave, as recited in the deed, $1200 for them. The suit of the city for the use of the McDonogh school fund against J. L. Gubernator was filed on the twenty-eighth of February, 1865, judgment rendered on the twenty-eighth of February, 1866, execution issued February 1, 1867, and returned satisfied August 29, 1867.

The date of the assignment by Stith to Francis Martin bears date of May 7, 1867. This shows that although the execution was not returned satisfied until the twenty-ninth of August of that year, the debt due by Gubernator to the McDonogh school fund had been paid several months before, and that this payment had been made before the termination of the plaintiff’s injunction suit to stop the sale of the two lots he purchased from Daniel Martin. By the payment of the debt by Gubernator who owed it, the mortgage was extinguished. This fact, it seems clear, Morano might have shown in the injunction suit. He was then no longer in danger of being injured by this mortgage, which the city had been seeking to enforce. But it is held that the mortgage was transferred, and all the rights the city held under it passed to Francis Martin, who stood subrogated to them. On the other hand it is contended, and we think successfully, that there was no subrogation to Francis Martin. It seems clear that Stith was without authority to make it. The payment was not made by a third party, but by Gubernator, who paid $2511 53 to the sheriff. Stith, in his testimony, says “no money came into my hands under this document,” meaning the act of subrogation. He acted under an order of the board in passing the act, and does not know whether any money was received or not; that no money got into his hands personally for anything. He could not recollect whether Francis Martin was present at the time, nor whether Martin spoke to him on the subject. It is shown that an application had been made previously to the city attorney by Gubernator to have the subrogation made to a third party, whose name was not remembered, but the city attorney refused to comply. The conditions necessary to constitute subrogation are wanting in this case. Civil Code, 2155, 2156.

The facts shown by the defendants do not, in our opinion, enable them to sustain their plea of prescription. Civil Code, 3537, 3502. The act of omission by the recorder of mortgages which is complained of, if it give rise to an action at all, it is a personal action, and not in the character of a real action which follows the property. There is no liability on this defendant in the nature of warranty. There is no privity between him and Morano. See the case of Smith v. Mooro, 9 Rob. 65. If liable on account of the omission complained of, the recorder would only be answerable in a personal action to the personpurclwising the property.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed as to the decree rendered against Alfred Shaw, and affirmed as to that in favor of the other defendant, Daniel Martin, the plaintiff and appellee paying costs, in both courts.

Rehearing refused.


author: Wyly, J.

text:
    No. 2912.
    Henry Safford v. D. R. Carroll.
    An attorney at law is entitled to be paid a fair compensation for bis services by tlie party wbo employs bim in a litigation. If by compromise between tbe plaintiff and defendant, after judgment, tbe defendant agrees to pay tbe counsel fees of plaintiff in tbe case, such agreement is not binding on the attorney, and be may, notwithstanding tbe agreement, recovor from his client a fair compensation for bis services.
    Appeal from the Fourth District Court, parish of Orleans.

      Théard, J. Semmes & Mott, for plaintiff and appellee.

      Mays & New, for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment against him for $2500 for professional services rendered by the plaintiff in the case of D. R. Carroll & Co. v. D. H. Boullt, in the District Court of the parish of Natchitoches.

It is shown that the plaintiff prosecuted the claim to judgment and afterwards caused it to be executed; the judgment was for $27,500 and the property bought thereunder by the defendant is shown to be worth $30,000, although under an agreement of parties it was purchased for a nominal price.

The value of the services is fully shown by the evidence; indeed, it is not seriously contested by the defendant. But the latter insists that the judgment against Boullt was the result of a compromise by which the firm of D. R. Carroll & Co. was to have $25,000 and the defendant, Boullt, was to pay all costs, including the fee of the plaintiff, $2500.

But the judgment under which the defendant bought the property and which he agreed should be considered discharged after buying the property seized thereunder, even though the price of adjudication should be less than the amount thereof, was in favor of D. R. Carroll & Co. and against the defendant, D. H. Boullt, for $27,500, $2500 thereof being the amount of tee incurred to H. Safford, Esq., plaintiff’s attorney at law,” etc. By accepting the property in discharge of the whole judgment the defendant became liable to the plaintiff for his foe secured therein, even though the latter had only recourse against the judgment debtor. But it is not shown that the plaintiff agreed to discharge D. R. Carroll & Co. from their obligation to pay his fee; no consideration is shown for such discharge and no one is presumed to give. Because in the compromise resulting in the judgment to which we have referred Boullt stipulated to pay the fee of D. R. Carroll & Co., attorney, that did not preclude the attorney from demanding of his clients a just remuneration tor his services.

There is no merit in the defense.

Let the judgment be affirmed, with costs.


text:
    No. 2376.
    A. Shiff, Agent. v. E. Ezekiel.
    Failure to pay tlio rent as it becomes due, is sufficient cause to authorize the provisional seizure of the tenant’s property. The fact that the landlord has abated former installments of the rent at the request of the tenant, furnishes no reason why he should be deprived of the legal process to enforce its payment promptly in the future.
    Appeal from the Fifth District Court, parish of Orleans.

      Beaumont, J. Clarice, Bayne & Benslum, for plaintiff and appellant.

      Cotton & Bevy, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from a judgment on a rule setting aside the writ of provisional seizure sued out by him against the defendant to recover the rent which the latter agreed to pay him for the lease of a building on Camp street. The proceeding seems to have been regularly taken out under article 287 C. P., on a written contract of lease in which the defendant agreed to pay for the premises $417 per month, one month’s rent being past due.

Because the plaintiff had for several months prior voluntarily abated the monthly installments at the request of the defendant, no obligation thereby arose compelling- him likewise to do so in the future.

Failure to pay the rent was sufficient cause for the provisional seizure; the property of the defendant in the premises being for. sale, the plaintiff might-justly fear its removal. 8 An. 366, 374.

It is therefore ordered that the judgment herein be avoided and annulled; and it is ordered that the rule herein be discharged and that this cause be remanded to be proceeded in according to law, appellee paying costs of appeal.


author: • Howe, J.

text:
    No. 2338.
    Henry Reiners v. Valentine St. Ceran.
    Tli© pica of payment admits the correctness of the plaintiff’s demand, and when made concludes every other defense to the action.
    Appeal from the Fourth District Court, parish of Orleans.
    Théard, J. J. J. JE. Planchará, for plaintiff and appellee.

      Somor <& Benedict, for defendant and appellant.
   • Howe, J.

This case was before this court in 1867 and was remanded to give the defendant an opportunity to plead payment. 19 An. 207. It is evident from the decree then rendered that this plea of payment was allowed to be filed as a peremptory exception, which admitted the claim of the plaintiff to be correct, and alleged that it had been extinguished by payment.

On the second trial the court again gave judgment in favor of plaintiff for the balance claimed, and the defendant has again appealed. Instead of confining his defense to the peijmitted issue, which admits tho claim of plaintiff to be correctly set forth in his petition, and alleges its payment, he now attempts to obscure the case by raising points which have no merit. His plea of payment, at which alone it is necessary to look, is not established.

Judgment affirmed.

Rehearing refused.


text:
    No. 2609.
    Nicholas Hobson v. Emily Woolfolk—Clark and Hubbard, Garnishees.
    Third parties who have stored or deposited their cotton in the gin of the defendant, can not recover damages from tho seizing creditor, caused by the burning of tho gin while it was under seizure, unless it be shown affirmatively that the seizure was the cause or occasion, of tho fire.
    If the plaintiff and seizing creditor be a resident of another State, citation to answer a re-conventional demand set up by defendant, or citation in case of intervention by a third party, is unnecessary. O. P., 375.
    Appeal from the Fifth Judicial District, parish of Iberville.

      Posey, J. Barrote & Pope, for plaintiff and appellant.

      Samuel Matthews, for garnishees and appellees.
   Taliaferro, J.

The plaintiff, who is a resident of Tennessee, and a judgment creditor of the defendant, caused execution to issue, and took out process of garnishment against Clark and Hubbard, lessees oí a plantation called “West Oaks,” assumed by plaintiff to have been leased for a large sum by the defendant to the garnishees. The plaintiff took out a writ of provisional seizure in order to exercise his debtor’s supposed privilege as lessor, and caused the movable property on the premises, belonging to the lessees, to be seized and taken into the possession of the sheriff. The seizure embraced the mules, carts, farming utensils, a number of bales of cotton, corn and other crops, furniture, etc. The garnishees in their answer denied that they were in any manner indebted to Emily Woolfolk, or that she' ox the plaintiff had any privilege as lessor or any other lien on the movable property seized on the Woet Oaks ” plantation, under the writ of provisional seizure, taken out by the plaintiff. They claim in reconvention the sum of §17,376 20 as damages sustained by being deprived of the control and use of their property; the further sum of $8000, value of thirty-seven bales of cotton, consumed by fire during the time it was under seizure; $1500 as attorney’s fees, incurred in defending the proceedings taken against them, etc. Interventions wore filed by Campbell and Bogan, the former alleging the loss of two thousand pounds ■of ginned cotton, consumed by the burning of the gin on the “ West Oaks ” plantation while it was under seizure by the plaintiff and out of the possession of the lessees, Clark and Hubbard. The other intervenor, on the same ground, claimed §3270 as damages sustained from the loss of cotton by the burning of the gin. The lessees had judgment in their favor on their reconventional demand for $2829 26. The intorvenov, Campbell, had judgment against the plaintiff for $497 09. Bogan, the other intervenor, having died pending the suit, and no revival being made, no judgment was rendered on this claim.

The plaintiff has appealed.

It is fully established that the lessees of the West Oaks ’’.plantation obtained it by contract of lease ffom the heirs of Beaty, through their agent, and that Mrs. Woolfolk had no interest whatever in the lease, and was to receive nothing on account of it.

' The defense set up against the reconventional demand of the lessees rests chiefly upon technical grounds. It appears that Clark and Hubbard, and Ide, a resident of Ohio, had formed a partnership in the planting business, and that they owned the property that was seized by the plaintiff, except that portion of the cotton claimed by the interven ors, who had placed their seed cotton in the West Oaks gin, to bo ginned for them by the lessees. The plaintiff contends that Clark, Ide and Hubbard, being particular partners, are third parties to the suit; that Clark and Hubbard, individually, were garnisheed; that a claim for the partnership could only be presented by intervention. It is objected that the plaintiff was not cited to answer the reconventional demand, the citation made upon his attorneys being insufficient. Eor the same reason it is urged that there was no citation made on the plaintiff by the intervenors, and that the judgments rendered are null.

The plaintiff, Hobson, being a resident of a different State, the re-conventional demand could be set up against him. Code of Practice, 375. No citation was necessary. The plaintiff was in court and bound to take notice of the demand in reconvention, and the law raises an issue on that demand without an answer in writing. 3 L. E., 100; 3 N. S., 364. The answer of the parties made garnishees that they, with Ide, constituted a planting partnership, did not affect their right to claim as partners the damages they alleged were sustained by the acts of the plaintiff, who caused the partnership property to be taken into the custody of the sheriff, .under a writ of provisional seizure, and who proceeded against the two resident partners by process of garnishment.

The court is of opinion that the cause assigned for the damages alleged to have arisen from the loss oí the cotton is too remote to admit of charging the plaintiff with the loss. The occurrence of the fire, by which the cotton was destroyed, did not result directly from the seizure of it by the sheriff, and was an event the plaintiff had no' agency in bringing about. We think, therefore, that the court a qua erred in allowing the defendants the sum of $2185 50 as damages sustained by them for the loss of cotton. For the same reason the allowance of the claim Of the intervenor, Campbell, for $457 90 as damages arising from the accident by fire should be rejected.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, so far as it awards to the defendants $2485 50, and the intervenor, Campbell,. $457 90 as damages for loss of cotton. That the judgment be annulled by stiiking out and disallowing the same, and that the judgment so amended bo affirmed, the defendants and appellees paying costs ol this appeal.


text:
    No. 2363.
    Succession of Magdeline Young.
    A purchaser of properly sold, unilor an order of the court to affect a partition of community property between the surviving partner and the heirs, may be compelled to comply with , his hid, if the record shows that all the formalities required by law have boon complied with in making the sale.
    APPEAL from the Second District Court for the-parish of Orleans.

      Buvigneaud, J. Cotton <& Levy, for appellant.

      Brice & Mitchell, for appellees.
   Howell, J.

This is a proceeding against the adjudicatee of succession property sold on the petition of the surviving husband and natural tutor of a second set of minor children of tho deceased, to compel him to comply -with his bid. His answer is that the sale was made without issue being joined or judgment rendered in the suit for a partition, and that a legally formed family meeting was not held in the case by the appointment of a special tutor ad hoe for each minor.

The deceased left two sets of minor children — one by' the surviving husband, N. Young, who was confirmed their natural tutor, and W. Seifert, appointed under tutor, the other by a former husband, N. Baker, to whom A. Dorr was appointed tutor and P. Dorr under tutor. Young prayed for a second inventory on the ground that since the date of the first valuable improvements had been made on tho community property which enhanced its value; for the appointment of experts to report whether said property could be divided in kind or must be sold tor a partition thereof between himself as survivor in community and the heirs of his deceased wife, as his interest was distinct from that of his own children; that their under tutor as well as the tutor of the Baker children be cited. Citations were accordingly issued and served. The inventory was taken, the experts reported that a sale was necessary; this report and the inventory were homologated, a family meeting to advise as to a partition and fix the terms of sale wore prayed for and ordered, the deliberations of the family meeting recommending the partition and fixing the terms of sale were approved by the tutor, Dorr, and under tutor, Seifert, and homologated by the court and the sale ordered.

This seems to be a compliance with all the essential requirements of the law for making an inventory and sale of community property for the purposes of partition. It is true there was no formal answer to the petition for partition nor default entered, but the proper representatives of the minors were cited; they attended the family meeting and expressed their approval of the partition and sale, and the homologation of these proceedings w'as an authority for the partition and sale upon which the order of the court issued. The purchaser has no interest in raising the question as to the form or mode of making the. partition.

The grounds urged by the purchaser for not complying with his bid are not sufficient, and the district judge did not err in ordering him te comply.

Judgment affirmed.


text:
    No. 2344.
    Mrs. Widow J. M. Arent v. Francis Bone et al.
    Tho prohibition to the lessee to sublet the loasod promises in a private act of lease not* recorded, is not binding on a> third party ■who subleases the promisos from the lossoo.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. JS. D. Craig, for plaintiff and appellee.

      J. M. Dirhwmmer, for' defendant and appellant.
   Wyly, J.

The defendant, Francis Bond, appeals from the judgment against him for the value of the property of the plaintiff, which he caused to be seized and sold in satisfaction of his claim for rent against his tenant, Charles Moore, occupying the premises at 57 Rampart street.

The plaintiff was an under tenant-, Laving rented part of tlie leased premises from tlie said Charles Moore; slie was not indebted to the latter at tbe time the provisional seizure was levied on her property, and, therefore, the lessor, Francis Bone, had- no right of pledge thereon. C. C. 2676. But the defendant contends that in the contract of lease the said Charles Moore bound himself not to underlease the property without his written consent, which was never given. This is true; but the contract of lease was an unrecorded private act. It was, therefore, inoperative as to the plaintiff, a third party, who is presumed to have dealt with the lessee under the provisions of article 2696 of the Civil Code, which gives the lessee the right to underlease. The appellant has not filed a brief and we are unable to perceive any error in the judgment.

Judgment affirmed.


author: Taliaferro, J. Howe, J., Ludeling, C. J.,

text:
    No. 3373.
    State of Louisiana, ex rel. Samuel Smith & Co., v. The Board of Liquidators of the Floating Debt of the State.
    The act of tlie General Assembly approved March 4, 1871, which authorized the Hoard of Liquidators of the floating debt of the State to exchange a certain amount of bonds of the State for warrants on the State Treasury at a certain rate of discount, by limiting their power of exchange to a certain amount of bonds, vested in them, a discretion as to what warrants they would accept in exchange forth© bonds placed in tbeir bands for that purpose. Tlio writ of mandamus will not, therefore, lie to compel them to make a pro rata distribution of the bonds in. tbeir bands to the different creditors in proportion to the amount of warrants they may respectively hold. 22 An. 3X8, 6X1.
    The charges of bad faith against the Hoard of Liquidators can not be judicially inquired into in a proceeding by mandamus to compel thorn to do a particular thing.
    APPEAL from tbe Eighth District Court, parish of Orleans.

      Dibble, J. Lea, Finney <£ Miller, lor relators, appellants.

      Armand Pitot and Semmes & Mott, for defendants and appellants.
   Taliaferro, J.

This and several other appeals came up in one record, and all involve the same question. The Legislature of the •State, in 2870, authorized the issuing of State bonds for the purpose of tailing up the floating debt of the State. These bonds were to be exchanged for debts of the State, under the direction of the Governor, the Auditor, and the President of the Citizens’ Bank of Louisiana, to constitute a board for the purposes of the act, to liquidate and redeem •all outstanding warrants of the State; 'and, by an act approved March 4, 1871, the board was authorized and required to exchange the bonds for evidences of debt, at the rate of $100 in. bonds for $70 of indebtedness. Under the authority of the statute it seems the hoard issued the following order: '

“To the Citizens’ Bank of Louisiana, Piscal Agent — We have received the following evidences of floating debt of the State of Louisiana — amounting to $359,069 67 — to he exchanged for bonds at seventy cents on 1lie dollar. [List of evidences of floating debt.] We hand, you herewith the above mentioned evidences of debt, for whicli yon are directed to deliver over to this board, for distribution to parties interested, @513,000 Louisiana State six per cent, bonds, known as floating debt bonds, now in your possession.

(Signed) H. C. WARMOTII, Governor.

JAMES GRAHAM, Auditor.

J. G. GAINES,

President Board of Liquidation.”

On the eighth of March, 1871, before this order was executed, Samuel Smith & Co., obtained an injunction from the Eighth District Court of the parish of Orleans forbidding the Citizens’ Bank, as the Fiscal Agent of the State, to part with or dispose of tlio bonds in its possession. On the same day the same plaintiffs and others obtained writs of mandamus against the Board of Liquidation, directed to the several members thereof, praying that they be obliged to receive from the various plaintiffs their warrants and certificates ot indebtedness, amounting to $165,000, and to deliver to them @335,000 in State bonds, known as floating debt bonds.

The ground of complaint seems to he in all these cases that the-Board of Liquidators used partiality, and were governed by favoritism in the action it was about to take in tlie matter of exchanging the bonds for warrants, there being a much larger amount of warrants and other evidences of State indebtedness presented for exchange than there were bonds to be exchanged, a strong competition arose among the holders of warrants in obtaining bonds for the State securities they held.

An exception was filed in behalf of the defendants, on the ground' that there is nothing in the proceedings complained of authorizing the plaintiffs to resort to the writ of mandamus, and on the merits denied their right to the privileges claimed by them. The court below dismissed the rale, and from that judgment the several plaintiffs have-appealed.

The act which the members of the board were required to ao was ministerial, and from its very nature involved a discretion in them in regard to the manner of doing it. It was not possible for them to> exchange bonds with all the holders of warrants. They were beset on all sides by the holders of the State securities, anxious to invest them in bonds, all clamorous to be served and importunate to obtain precedence of each other in exchanging. Before the act of the Legislature was passed authorizing the exchange on the basis of one hundred dollars in bonds for seventy dollars in warrants, it is shown that tlio president of the bank was repeatedly urged to receive warrants for large amounts in order that they might be first paid as soon as the bill then before the Legislature to authorize the exchange became a law. This unseemly haste certainly conferred upon those who exhibited it no right to be first served. Other competitors, who by sharp vigilance ■contrived to be first applicants after the bill became a law, would not thereby, in our judgment, be entitled to greater consideration. But the state of things engendered by the fierce competition placed the Board of Liquidators in a delicate position. They had to exchange tho bonds with some of the parties; they could not exchange with all of them. A proposition, it is argued, was made on the part of the plaintiffs to adopt the supposed equitable mode of pro rata distribution. But what right has the board to make a pro rata distribution of the State bonds? They surely would not undertake to x>roceed in the distribution of those bonds as an administrator would do in distributing the assets of an insolvent estate. Where would be the equity if such a basis were adopted in limiting the division to those only who presented securities for exchange*? Other holders, not presenting theirs, would got nothing. In short, a case was presented in which the necessity was forced upon tho members of the board to exercise a discretion in performing the duty they had to discharge.

In such a case, this court has several times held that it is without power by mandamus to direct an officer how to perform a duty. If, in the exercise of the discretion he is vested with, he acts in bad faith .and fraudulently, to the injury of parties interested, the act might be inquired into in another form of action, but we think it can not properly be done under a proceeding by mandamus.

It is therefore ordered, adjudged and decreed that the judgment of ■the district court bo affirmed, witli costs. 22 An. 318; ibidem, 611.

Howe, J.,

conmrring. The true object of the writ of mandamus is to enforce a clear legal right by compelling an officer to perform a legal duty which he has no discretion to decline. The showing made by relators does not authorize such a process. They claimed in their petition, and sought to prove, a right of absolute priority in the distribution of these bonds. This right of priority they signally failed to ■establish. Having thus failed, they shifted their ground completely, .and claimed on equitable considerations a distribution pro rata, and ■even this they did not do by any amendment of their pleadings, but by a mere verbal request of their counsel. There is no law requiring ¡such pro rata division. The respondents are not the administrators of .a dead person, or the assignees of a bankrupt. The equitable right ■claimed is of very doubtful character, but if it exists, it is not to be «enforced by mandamus. The courts of Louisiana, by proceedings via ordinaria, accompanied with the conservatory remedies provided in the Code of Practice, are amply able to protect equitable rights. Hennen’s Digest, “Equity,” page 480. They will marshal securities and determine priority as to contributions, and the rank of different claimants holding liens on the same fund or estate. They will decree an account ■of assets, arrest creditors in their race of diligence and force them into the court to litigate their claims together. In these particulars, as in many others, they proceed according to the principles of equity. But they do not proceed by mandamus. Much less do they attempt'by mandamus to guide the co-ordinate branches of the government in any matter of mere discretion or good taste.

Eor these reasons, and those given in the written opinion of the judge a quo, I concur in the decree pronounced,

Rehearing refused.

Ludeling, C. J.,

dissenting. I can not concur in the opinion of the majority of the members of this court in this case.

Tile object of the writ of mandamus is “to prevent a denial of justice, or the consequence of defective police, and it should therefore be issued in all cases when the law has assigned no relief by the ordinary means, and when justice and reason require that some mode should exist ■of redressing a wrong, or an abuse of any nature whatever.” C. P. article .830.

By the act No. 43 of the General Assembly of 1871, it was made the ■duty of the Board of Liquidators “to settle and redeem all the floating debt of the State created by authority of law, and also all certificates ■of indebtedness issued prior to the passage of this act, and all past due bonds and past due interest coupons of the State; and for that purpose said board is authorized and required to exchange said bonds for the aforesaid evidences of debt, at the rate of one hundred dollars in bonds for every seventy dollars or indebtedness.”

It appears that the amount of warrants presented for exchange ■exceeded the amount of bonds held by the liquidators, and that they undertook to distribute them arbitrarily to parties who had deposited their warrants with different members of the board.

In my judgment, the law never contemplated conferring such powers ■on the Board of Liquidators. Before the law, all citizens are equal, and where the bonds were insufficient to absorb the debt for which they were intended to be exchanged, the only rule which should have governed the Board of Liquidators should have been the principle of priority — “the law favors the vigilant.” The evidence shows that all the applicants for bbnds made application before the law was signed. Therefore all the applications were in fact before the Board of Liquidators at the instant the law came into force, and in point of time all ■were equal

I think, therefore, that the bonds should have been distributed pro rata among the creditors of the State who asked to exchange their warrants.- Justice and reason required that this mode should have been pursued, and I think this court should grant the writ to prevent an abuse of power and a wrong to citizens

Howell, J. I concur in the dissenting opinion of the Chief Justice.


text:
    No. 2285.
    J. M. Wells v. G. Merz and Sheriff.
    Judgments of the Supreme Court, whether affirming or reversing the judgments appealed from, must he sent haolc to the inferior court for their execution. C. P. 915. The objection that the execution did not issue on the judgment of the Supreme Court, cannot therefore he urged by the defendant in execution. ,
    The objection by the defendant in execution that the property seized was not advertised in the official journal is without weight, if at the time of the advertisement there was no official journal in the parish. The fact that an official journal was selected before the day of sale, will not affect the validity of a sale which had been advertised according to* law before it was selected.
    APPEAL from tbe Second Judicial District Court, parish of Jefferson.

      Pardee, J W. B. Hyman, for plaintiff and appellant.

      Birhammer & H. Gommandeur, for defendants and appellees.
   Howell, J.

Plaintiff enjoins -the execution of a judgment against Mm as indorser of a promissory note, and seeks to annul it on various grounds, as follows:

First — That tbe writ directs tbe execution of tbe judgment of tbe district, instead of tlie Supreme Court.

Art. 915 C. P. declares that no execution shall issue on the judgments of the Supreme Court, but such judgments, whether confirming or reversing those appealed from, shall be sent back for their execution to the inferior court, and no mandate need be directed to tbe latter for that purpose; but the clerk may file and record them, and issue execution thereon as the judgments of the inferior court.

Second — That the property seized was not advertised in the official journal of tlie parish of Jefferson.

At the time of seizure an official journal for said parish had not been selected, and it was not the duty of the sheriff to wait until such selection might be made. Having advertised tbe property according-to law, the subsequent selection of an official journal before tbe day of sale, did not render the advertisement invalid or affect it in any way.

Third — That tbe property was not advertised to be sold on tbe first-Saturday of the month, as required by the act of 1855. The attempt, iu 1861 to repeal the act of 1855 was null, because it was an act of a. rebel Legislature, and the net embraced two objects.

The Constitution of 1868, section 149, cured the first defect, if it existed, and there seems to be no applicatiou of tbe second objection...

Fourth — That the judgment should be annulled, as there was fraud in obtaining it.

It seems that pending the suit against Wells and others as indorsers, Merz, the plaintiff in said suit, collected a part of 1 lie claim, and did not make the credit before obtaining judgment, but did place it on the execution when issued. No injury resulted therefrom to Wells, and no cause for annulling the judgment on account thereof. It is contended further that time was given by Merz to the principal debtor, who gave other security to Merz, and these facts were fraudulently concealed from Wells, until after judgment was rendered against him, by which ho was released.

The evidence does not sustain this charge; and we concur in the opinion of the district judge that plaintiff has shown no sufficient reason for annulling the judgment against him or enjoining its execution.

Judgment affirmed.

Rehearing refused.


text:
    No. 2382.
    Mrs. C. A. P. Graham v. Charles S. Rice.
    In case there is no note of evidence in the record of appeal, it will "be presumed that the-judgment of the court a qua was properly rendered, and upon evidence properly before-the court.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Sentírtele Fgan and L. Madison Bay, for plaintiff and appellant.

      Whitaker c& Bice, for defendant and appellee.
   Taliaferro, J.

The plaintiff sues on a promissory note for $800 due twenty-fifth December, 1867, with five per cent, interest from maturity. The defendant pleads payment and sets up a reconventional demand against the plaintiff for $71 65, with legal interest from judicial demand. The judgment of the lower court was against the plaintiff and in favor of the defendant for his reconventional demand. The plaintiff has appealed.

The plaintiff contends that although some testimony and document® are found in the record, the same were not offered in evidence. We find no note of evidence in the record. In such a case we will presume that the judgment was properly rendered and upon evidence properly before the court. The testimony in the record justifies the judgment rendered. The note itself is credited with a payment of $200. Several other credits on it were acknowledged by the plaintiff and others established by the defendant, sufficient in all to extinguish the note and leave a balance in favor of the defendant.

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


text:
    No. 2295
    G. W. Dunklin v. Horrell, Gayle & Co.
    A resident oi* Missouri during tlie late war between tlie United. States and. tlie so-called Confederate States, while Confederate notes were the only circulating medium ia Mew Orleans, shipped and consigned to merchants in the latter place a lot of corn to l>e sold. The corn was sold for Confederate money and advices given to the owner with return of sales, and the Confederate notes which had been received were forwarded in ldnd; but on account of military operations they failed to reach the plaintiff, who resided in .Missouri. On receiving notice of the result the consignor objected to the mode of transmission by tho agent in Mow Orleans, but made no objection as to tlie sale for Oonfod-. erato money. Mold — That having made special objection to the mode of transmission and not having made any as to the consideration or currency received for the price of the corn sold, lie must be considered as having ratified the sale and receipt of that hind of currency, and that ho can not now recover on the account of sales.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Randolph, Singleton & Browne, for plaintiff and appellee.

      J. Ad. Rosier, for defendants and appellants.
   Howell, J.

Plaintiff, a resident of Missouri, sues on an account of sales of a lot of corn rendered by defendants on twenty-first February, 1862.

One ground of defense is, that at the time said corn was shipped the plaiutiff knew that it could be sold only for Confederate treasury notes, which wore then the only currency in circulation in this city ; that the corn was sold for said currency and according to plaintiff's instructions, received with the consignment; a part of the proceeds was invested in a bag of coffee and a bale of osnaburgs, and the balance put up in a package, was forwarded with said goods to the care of J. D. Morton & Co., Memphis, Tennessee, to be forwarded by them to care of J. K. Robbins, New Madrid, Missouri, for plaintiff, which could not be done, as military operations prevented.

The proof is that the corn was received by defendants with a letter from plaintiff, dated February 14, 1862, which directed them to make tile purchase, as above stated, and forward the same with the balance -of proceeds to care of J. K. Robbins, New Madrid, Missouri; that after waiting five or six days in vain to ship to New Madrid,-defendants shipped the package of Confederate notes and the two parcels of goods, marked for jdaiatiff, tu J- D. Morton & Co., Memphis, Tennessee, with instructions to bo forwarded to plaintiff; that Morton & Co., being unable to forward them, used the goods and deposited the package of Confederate notes with an agent, who still has ifc and who, in 1863, notified plaintiff of the fact, and that about the same time defendants wrote to plaintiff, informing him of the sale for Confederate currency and the disposition they had made of the proceeds and goods, and that plaintiff replied to this letter, complaining of the mode in which the shipment had been made as not in conformity to his instructions, and declaring his intention to hold the defendants responsible, but did not object to the currency for which his com had been sold.

Under these circumstances we are of opinion that he must have expected his property would be sold for the currency prevailing at the time in this market, and that when he was expressly informed that it was so sold, he did not repudiate the sale, but simply objected to the mode of transmission as not in accordance with his instructions, and that he has thereby ratified the sale and can not recover (see 22 An. 490) except for the amount invested in the goods ordered by him, for which defendants are liable, as their agents have made it impossible for them to be delivered. The amount is $29 36.

It is therefore ordered that the judgment appealed from be reduced from $798 78 to $29 36, with legal interest from twenty-first February, Í862, and costs of the lower court, and as thus amended it be affirmed; plaintiff and appellee to pay costs of appeal.


author: Wxlt, J.

text:
    No. 1738.
    Benjamin Jacobs v. Mrs. Widow M. B. Warfield.
    A procuration or power of attorney wliicli does not specify the time at which the agency is to terminate, leaves it discretionary with the principal to discharge the agent at pleasure. The agent can not, therefore, maintain an action against his principal in damages for a breach of contract in having discharged him at any particular time, if good cause is shown.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. Saucier <£ Michinarcl, for plaintiff and appellee.

      John H. llsleij, for defendant and appellant.-
   Wxlt, J.

The defendant has appealed from the judgment condemning her to pay the plaintiff $2610 for violating the contract which she made with him on the sixth day of October, 1865, and for money advanced by him for her benefit under said contract.

In this contract the plaintiff was employed as an agent to superintend all the business of the defendant in the parish of St. John the Baptist, in relation to certain wild lands which the defendant owned in said parish; and he was specially authorized to take charge of and exercise general control over said property; to prevent the commission of trespass or wastes upon said lands, and to apx>earin court to prosecute and defend all suits in reference thereto, as occasion might require, “with the distinct understanding that no other charge shall be made by the said. Jacobs for Ms services in taking charge of the said lands and removing therefrom all trespassers, than one-fourth interest in the revenue derived froin the sale of wood and timber cut therefrom by said Jacobs and his employes, as herein expressed, which shall he a full and adequate remuneratiou and compensation for all services that he, said Jacobs, may render the said Mrs. Warfield under and by virtue of this procuration.” It was further stipulated that the said agent was not to institute proceedings against any trespasser without first obtaining the written consent of the defendant; and, also, that the said Jacobs was in no wise to disturb or interfere with such persons as might have the written sanction of Mrs. Warfield to be on said lands and cut and sell timber therefrom.

There was no period fixed in the act as the term for which the said Jacobs was employed. . '

Under this contract we think the defendant had the right to discharge her agent and employe whenever she saw fit to do so.

From the evidence we are satisfied that the plaintiff did not comply with his contract, and the defendant had good cause to discharge him. His demand for damages for breach of contract must, therefore, fail. It appears, however, that the plaintiff paid ten dollars to an attorney and twenty-five dollars costs in a suit for the benefit of the defendant, and we think he was justifiable in doing so under the act of procuration. For these sums he should have judgment. The demand for the other sums which the plaintiff claims to have paid for the defendant pursuant to the contract is not supported by the evidence.

It is therefore ordered that the judgment herein be reduced to thirty-five dollars, and as thus amended that it be affirmed. It is further ordered that the plaintiff pay costs of this appeal.

Rehearing reiused.


text:
    No. 2337.
    Succession of Arthur W. Horlor.
    Where an administratrix lias been appointed after a contest for the position, she is allowed ten days to execute her bond and qualify. The appointment of another party by the judge bofore the ten days has elapsed is therefore null and of no effect.
    APPEAL from the Second District Court, parish of Orleans.

      JDuvigneemd, J. A. L. Tissot, for appellee.

      Hornor & Benedict, for appellant. -
   Wyly, J.

James H. Jones, a creditor, applied for the administration of this succession and the surviving widow of the deceased opposed it and asked for the appointment.

The suit was tried, and on the ninth day of February, 1869, the judgment was signed, maintaining the opposition and ordering the opponent, Mrs. Horlor, to be appointed on giving bond and qualifying according to law.

On the nineteenth day of February, 1869, the said Jones presented a petition to the judge, alleging that the said administratrix had suffered more than ten days to elapse since her appointment without having qualified or caused an inventory to be begun; and he prayed the court to appoint Mm administrator, which was done on the same day. He then obtained an inventory and an order for the sale of the property.

Mrs. Horlor then instituted this proceeding to arrest the sale of the property and to set aside the appointment of tho said J. H. Jones. The court gave judgment in her favor and he has appealed.

The appointment of Jones was intended to be made under the act. of 1855, which provides “that whenever the testamentary executor or any other administrator of a succession shall suffer ten days to elapse after his confirmation or appointment without having either qualified or caused an inventory to be at least begun, the judge shall forthwith and ex officio appoint a successor in office, as if no such officer had been confirmed or appointed.” In the case before us the ten days had not yet elapsed when the judge ex officio appointed Jones, and the appointment was consequently illegal.

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


text:
    No. 2375.
    John Seiler v. Daniel Fairex.
    The writ of injunction will not lie to restrain the owner of a plantation from seeking to annul and set aside a contract with another person, on tho allegation that under the terms of the contract tlio agent has the exclusive right to control the plantation. In such a case the agent has his action against the principal in damages for violations ot tho contract, but he can not prohibit him from proceeding by the process of injunction.
    APPE AL from tho Fifth District Court, parish of Orleans.

      Leaumont, J. Whitaker & Bice, for plaintiff and appellant.

      Cotton & Levy, JU. T. Mellowes and JS. Bermudez, for defendant and appellee.
   Taliaferro, J.

The defendant engaged the plaintiff to take charge of his plantation, as sole manager thereof, for the term of eight years from the first of May, 1868. The terms and conditions of their contract are specifically set forth in a written instrument of considerable length. It appears that in pursuance of this agreement the plaintiff went upon the plantation with his family to reside, and proceeded to the discharge of his functions as manager to superintend and carry on the cultivation of it, having the exclusive control and direction of all the business affairs of every kind appertaining to the raising of crops and keeping the establishment in order and good condition. The contract appears to have been entered into in contemplation of á long-absence in Europe of the proprietor, the defendant in the case.

About a year after this engagement was entered into, it seems the proprietor becoming dissatisfied, as alleged by the plaintiff, made use of improper means to supersede him in the control and management of the plantation, and endeavored forcibly to dispossess plaintiff by threats of violence and by efforts to remove his family off the place. Tho plaintiff thereupon resorted to a writ of injunction, which forms the basis of this action, to restrain the defendant from interfering with or disturbing him in the management of the ulantation, and prays damages and costs.

In tlie court below tlie injunction was dissolved on an exception filed on the part of the defendant, and the plaintiff has appealed. Wo think the judgment correctly rendered. We are not aware of any right the plaintiff has under the contract to be maintained in the possession aad control of the defendant’s plantation against his will. If the latter think proper to violate his engagement with the plaintiff, he would thereby subject himself to damages in favor of the plaintiff.

It is therefore ordered, adjudged and'decreed that the judgment'of the district court be affirmed, with costs.


author: Wxly, J.

text:
    No. 2349.
    Walton & Deslonde v. New Orleans, Jackson and Great Northern Railroad Company.
    Messrs. Walton & Deslonde, brokers, contracted, witli tlie New Orleans, Jackson and. Great-Northern Railroad Company to cause to he released from the custody of the United States-authorities, and to sell or procure a purchaser for at a given price, a certain piece of property on Camp street, for which they wore to receive five per cent, commission, or two and a half peí* cent, commission if they failed to procure a purchaser. .They succeeded in getting the property released, for which they were paid two and one-half per cent, commission as agreed upon. Subsequently other brokers were employed, who negotiated a. sale of th’e property, for which they were paid a commission. Walton & Deslonde now bring suit for the additional two and one-half per .cent, commission on the gross sale, under their contract, alleging that the sale was taken out of their hands without their consent. The evidence shows that after several months delay, they failed to procure a, purchaser on the terms and conditions prescribed by the company.
    Held — That the first brokers, Walton & Deslonde, not having complied with the terms and conditions of the latter part of their obligation, by effecting a sale of the property or procuring a purchaser at the price and on the terms and conditions agreed upon, they are not entitled to recover the commissions therefor.
    APPEAL from the Fourth District Court, parish of Orleans.
    Ihiavcl, J. Clarice, Bayne c& Benshaw, for plaintiffs and appellees.

      Campbell, Spofford and Campbell and L. E. Simonds, for defendant and appellant.
   Wxly, J.

The plaintiffs allege that the New Orleans, Jackson and Great Northern Railroad Company placed in their hands for sale a house and premises on Camp street, opposite Lafayette Square; that they “developed a purchaser,” who was willing to pay $70,000 for said property; that the name of the proposed purchaser, viz: the Odd Fellows’ Hall Association, was communicated to said company; that subsequently and while the said property was in their hands “for sale under agreement to pay them as brokers and agents two and a half per cent, commissions on the same, .said property was, without any notice to them, sold, through other agents or brokers, to the same purchaser, viz: the Odd Fellows’ Hall Association, for the same or less price than was offered through them, thus availing of the labor and skill of petitioners without compensation,” On these allegations they prayed judgment for $1750, being two and a half per cent, commissions, on the price of said property, to wit: $70,000.

The answer is a general denial.

The court gave judgment for half the amount demanded by the plaintiffs, viz: $875, and the defendant has appealed.

It appears that in May, 1863, the New Orleans, Jackson and Great Northern Railroad Company employed the plaintiffs to procure the release of the property described in the petition, which was then in possession of the United States military authorities, and to sell the same “for the price of seventy-five thousand dollars or more.”

In tlie contract we find the following stipulation : • “ And it is further agreed that Messrs. J. B. Walton & Deslonde shall at once proceed to obtain the release of the property from the United States authorities' and its restoration to its rightful owners, and to sell the same, for which services they are to be paid five per cent, on the gross amount of the sale as full compensation.”

“In the event of the property not being sold, Messrs. J. B. Walton & Deslonde are to be reimbursed all costs for advertising, etc., and for obtaining the release of the property, they are to be paid a liberal commission, said compensation to bo two and one-half per cent, on $70,600, to include all expenses.”

It appears that after much trouble the plaintiffs got the property released from the United States authorities, and being unable to get a a purchaser for the price fixed in the contract, to wit: “$75,000 or more,” they collected two and a half per cent, on $70,000, the amount of compensation fixed in the contract to cover all expenses for releasing the property in the event of the sale not being effected.

This settlement, we are satisfied, terminated the contract of the fourth of May, 1866, to which we have referred. How the plaintiffs can now claim two and a half per cent, commissions on this contract wo can not imagine.

Under that instrument they undoubtedly had the obligation of the defendant to pay them five per cent, commissions “on the gross amount of the sale,” provided they obtained the release and sold the property “for seventy-five thousand dollars or more,” and in event of failure to effect the sale they were to have two and a half per cent, on $70,000, as compensation for obtaining the release of the property and all expenses. They acknowledge that they have been paid according to contract for obtaining the release of the property, and they do not pretend that they have ever procured a purchaser for the defendant, who was willing to pay the $75,000 for the property. It is not shown that this contract was ever amended so as to make it a perpetual one, and so as to preclude the owners from ever afterwards selling the property for a price less than $75,000, without incurring the obligation to pay the plaintiffs two and a half per cent, on the amount of the price. It is admitted that the property was sold to the Odd Fellows’ Hall Association in July, 1867, and the evidence shows that this sale was effected through other brokers, without the “labor and skill of the petitioners.”

It is true the plaintiffs wrote to the President of the New Orleans, Jackson and Great Northern Railroad Company in March, 1867, proposing a purchaser at $70,000, and this offer was rejected by him; and subsequently, to wit: on the tenth of May, 1867, the president wrote the plaintiffs the following letter:

“Dear Sirs — The Executive Committee of the Board of Directors of this company having reconsidered their action relative to the sale of the building on Camp street, opposite Lafayette Square, have concluded to dispose of it for $75,000 cash, and if the parties who made you an offer some time ago are willing to pay the amount on these terms, we will give them the preference,” etc.

It is not pretended that the plaintiffs procured a purchaser at the price stipulated in this letter.

Now, because the defendant several months afterwards concluded to sell its property for a less sum and through other agents, we do not see that a cause of action thereby arose in behalf of the plaintiffs.

It is not shown that the sale of the property by other brokers, of which the plaintiffs complain, was consummated by their labor or skill, and from the evidence we see no merit, in the demand of the petitioners.

It is therefore ordered that the judgment apiiealed from be annulled, and it is ordered that there be judgment for the defendant, the plaintiffs paying costs of both courts.

Rehearing refused.


text:
    No. 2273.
    Succession of L. Millaudon—On Opposition of George Holtzman.
    No appeal lies from a judgment not signed "by the judge a quo,

    APPEAL from tlie Second District Court, parish of Orleans.

      DavUjneaud, J. O. Dufour, for appellee.

      li. IL. Marr and John II, Bonner, for opponent and appellant.
   Taliaferro, J.

The judgment rendered in this case appears from the record not to have been signed by the judge of the lower court. The appeal, therefore, is nugatory. It can not be entertained by this court.

It is therefore ordered that the appeal be dismissed at appellant’s cost.

Rehearing refused.


author: Taliaferro, J. Howe, J.

text:
    No. 3242.
    Succession of Josiah Huie—Contestation for Dative Testamentary Executorship.
    "Where several parties apply for the appointment of dative testamentary executor, the judge may exercise a sound legal discretion in making the appointment, and if the record discloses nothing showing that the discretion has been improperly exercised by the judge a quo, his judgment will not be disturbed on appeal.
    APPEAL from the Parish Court of Rapides.

      J. H. 0. Barlow, Parish Judge, if. 8. Losee, executor, in person, appellee.

      B. J. Bowmam, for opponent and appellant.
   Taliaferro, J.

By the decease of the executrix appointed by the will of Josiah Huie, the office became vacant, and the affairs of the -estate requiring a representative, three applicants presented themselves for the office of dative testamentary executor. The judge appointed the first applicant after hearing the two opponents. It is settled that, 1n cases like the present, the judge may exercise a sound legal discretion in making the appointment. We find nothing in the proceedings that authorizes us to conclude that the discretion has in this instance been improperly exercised. The succession is small and consists entirely of landed property-. The case in 3 An. 566, is closely in point_ Both the opponents have appealed. We see no good reason for altering the judgment:

Judgment affirmed

On Rehearing

Howe, J.

A rehearing was granted in this case on the suggestion that one of the applicants for letters of dative executorship was the beneficiary heir of the deceased, and therefore entitled to a preference in appointment. C. C. 1035,1037,1038; 6 An. 811; 10 An. 290; 18 La. 402; 2 R. 395.

We find, however, on examining the record that this beneficiary heir •did not apply for the appointment. He merely opposed the appointment of Losee in favor of the other applicant. Rec. page 22. As between Losee and the other applicant, the judge a quo had the right to exercise a wise discretion, which we are not prepared to say has been improperly exercised in this case.

It is therefore ordered that our judgment heretofore rendered remain undisturbed.


author: Ludeling, C. J.

text:
    No. 3358.
    The State of Louisiana ex rel. Salomon & Simpson v. James Graham, Auditor of the State of Louisiana.
    The-proceedings instituted against the Auditor of the State to compel him to warrant in favor of J. 0. Nixon, under the act of the General Assembly passed March 1,1871, No. 32, entitled “An Act for the relief of J. 0. Nixon, late Public Printer,” is a suit, and the State of Louisiana has the right to intervene to prevent her agent from being compelled to do an act which she avers is unauthorized by law. The State has, therefore, such an interest in the success of the defendant as will authorize her to intervene in the suit. 22 An 366. .
    The Legislature has no power by the terms and conditions of an act of the General Assembly to conclude the State itself from inquiring judicially into the validity and constitu- ' tionality of the act. In such a case the doctrine of estoppel has no application. In determining the amount of the debt of the State within the meaning of the third amendment to the constitution, it was held that all bonds authorized to be issued by the General Assembly on condition that something was to be done by the grantee as a condition precedent to their issue formed a part of the debt and must be estimated. It was held further that bonds of the State, which had been issued to the banks, although amply secured by mortgage, óould not on that account bo excluded from the estimate.
    Tho State having employed I. 0. Nixon as Public Printer, and having made full and complete settlement for all claims and demands, it was held that the act awarding Mm a certain amount thereafter passed on first of March, 1871, to make up a deficiency which he claimed to have sustained by being compelled to negotiate the warrants at a discount, created a new debt against the State. It was further held that it being shown by evidence offered in this case, that tho State debt at tho time of the passage of this act was in excess of twenty-five millions, the constitutional limit to which tho debt could be allowed to go, and that therefore the act No. 32, of March 1, 1871, appropriating to J*. 0-Nixon fifty thousand dollars for tho purposes set forth in tho preamble of the act is unconstitutional, null and void.
    APPEAL from the Eighth District Court, parish of Orleans.

      Dibble, J. Labalt dsAroni, for relators, appellants.

      Semmes dsMoit, Hayes ds Hew, and Hornor & Benedict, for defendants and appellees.
   Ludeling, C. J.

The relators pray for a writ of mandamus to compel the State Auditor to issue a warrant to them for fiity thousand three hundred and tliirty-ouo dollars and forty-six cents. They sue as tlie assignees of the right of James 0. Nixon, under an act of the General Assembly of the State of Louisiana, passed on the first of March, 1871, and numbered thirty two.

The Auditor alledged, as cause for refusing to issue the warrant, that the act No. 32 of the General Assembly of the State of Louisiana is unconstitutional.

And the State of Louisiana, represented by the Attorney General, intervened in the suit, and denied tlie right of J. 0. Nixon to a warrant, on the ground that the act No. 32. is unconstitutional, inasmuch as at the dat.e of its passage the debt of the State exceeded twenty-five millions of dollars, and the General Assembly was prohibited by the third amendment to the constitution of the State, promulgated in December, 1870, to increase the debt of the State'after it bad reached that sum.

To this intervention the relators excepted, on the following grounds, to-wit;

Mrst — That this is not such a case as authorizes the intervention of tlie State to prevent the issuance of the warrant demanded under act. No. 32 of the Legislature of 1871.

Second — That the State is estopped by the terms of the act itself from appearing herein for the purposes set forth in the petition of intervention, and in law is estopped from disputing the validity of its acts duly passed according to law, and binding upon all officers of the government.

Third — That the intervention discloses no cause of action.

I. An intervention is a demand by which a third person requires to-be permitted to become a party to a suit between other persons, either by joining the plaintiff in claiming the same thing, or something connected with it, or by uniting with the defendant in resisting the claim of the plaintiff. C. P. 337. In order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit. C. P. 389.

Is the proceeding instituted by the relators against the Auditor a suit ? We think it is. Has the State an interest in the success of either of the parties to a suit ? Unquestionably she has. We can perceive no reason why the State should be denied the right to intervene to prevent her agent from being compelled to do an act which she avers is unauthorized by law. 22 An. 366, State, ex rel. Burbank, etc., v. Dubuclet, State Treasurer.

II. If the doctrine contended for by the relators be correct, the amendment of the constitution fixing the limit of the State debt would practically be without effect, whenever the Legislature inadvertently or designedly disregarded its provisions. The doctrine of estoppel is utterly inapplicable to a case like this.

III. The State is interested in enforcing the provisions of the constitution, and in resisting the claims of the relators.

The judge a quo correctly overruled the exception, and permitted the-intervention. It is unnecessary, therefore, to decide whether the Auditor had any discretion relative to issuing the warrant in question. '

On the merits, the question presented, is the constitutionality or unconstitutionality of the act of General Assembly passed March 1,1871, and numbered thirty-two.

The solution of this question depends upon two facts : Did the debt of the State of Louisiana exceed twenty-five millions of dollars at the date of the act of the Legislature aforesaid, and did the said act create a debt?

The evidence in the record leaves no doubt that the debt of the State exceeded twenty-five millions of dollars on or before the first of March, 1871.

The total amount of bonds of the State, issued at that date, was........................................§22,560,233 00

The total amount of debts other than bonds on December 31, 1870, was.................................. 2,461,501 40

Total debt on December 31, 1870................§25,021,734 40

Between the thirty-first of December, 1870, and the first of March, 1871, the increase of warrants and certificates, was.................................... $ 552,174 14

But if we concede, what is not true, that the uncollected back taxes would absorb the warrants and certificates of indebtedness, still there is no room to doubt that the debt of the State largely exceeded the limitation of the constitution on the first day of March, 1871.

The remaining bonds of the State, in favor of the Mississippi and Mexican Gulf Ship Canal Company, to bo issued under act No. 116 of the General Assembly of 1869, amount to............................... $126,000 00

'The remaining bonds of the State, in favor of the North Louisiana and Texas Railroad Company, to bo issued under act No. 108, of the General Assembly of 1868, is not less than.................................. 594,000 00

The bonds of the State, in favor of the New Orleans, Mobile and Chattanooga Railroad Company, to bo issued under the seventh section of act No. 31 of the General Assembly of 1870, equal.............. 3,000,000 00

Total amount of bonds to be issued............. §3,720,000 00

Total amount of bonds issued.................. 22,560,000 00

Total amount of bonded debt..................$26,280,000 00

Besides this, the State has obligated itself to indorse the bonds of the New Orleans, Mobile and Chattanooga Railroad Company, and the New Orleans, Baton Rouge and Vicksburg Railroad Company to the •extent of $12,500 per mile of each of said railroads, as they are completed. It is contended that the bonds issued in favor of the property banks, amounting to $4,839,933 33, should not be computed as debts of the State, because they are amply secured by the assets of the banks, and because the accrued interests thereon have boon promptly paid by the banks. It is well known, especially in this country, that persons, natural and artificial, frequently fail in business; and from affluence they áre suddenly reduced to insolvency. The present ability of the property banks to meet tlioir liabilities is no guaranty that the State will not eventually have to pay her bonds, issued to aid said banks; and much less is it a reason to say that the said State bonds should not be computed as a part of the debt of the State. If it bad been intended to exclude these bonds or others in the computation of the debt of the State, limited by the constitution, it would have been done in express terms.

In the case of the city of Baltimore v. Gill, 31 Md., the court held that a temporary loan to the city, made on a pledge of railroad stock owned by the city, was a debt, notwithstanding it was stipulated in the contract that the city was exempted from all personal liability, and that the lender should look alone to the pledge for payment. In that case the city of Baltimore had attempted to evade a constitutional provision, by which the debt of the city could not be increased, except on the joint assent of the Legislature and of the people by a vote.

It is also insisted by counsel that “the indebtedness of the State can only be ascertained from the amount of the outstanding liabilities, for the payment of which, part of the principal and the annual interest,, the authorities must provide and raise a revenue; but obligations or promises to issue hereafter bonds to railroads, when they are built and which, perhaps, never will be built, do not constitute an indebtedness, because the State need not provide to pay a part of the principal and the interest on the bonds which do not exist. And if the State is ever called on to issue such bonds they will be amply secured by mortgages, which will be at least an equivalent, and consequently an asset ta counterbalance the liability.”

The fallacy of counsel consists íd assuming, first, that a conditionar obligation is no obligation; and second, that the promissory note of A secured by a mortgage on the property of B, is not a debt of the-maker, A, because it is secured. Both positions are untenable

“ Conditional obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition, etc. C. C., article 2021.

The condition being complied with has a retrospective effect to the> day that the engagement was contracted; if the creditor dies before the accomplishment of the condition, his rights devolve on Ms heirs. C. C., article 2041. “And the creditor may, before the fulfillment of' the condition, perform all acts conservatory of his rights.” C. C., article 2042.

Thus the obligations of the State,'in relation to the railroaa companies aforesaid are suspensive and potestative conditional obligations;, the State is a debtor to those companies, and the fulfillment of the conditions will have a retrospective effect to the time when the engagements were contracted. For example, when the Mississippi and Mexican Gulf Ship Canal Company will have completed the construction of the lock on said canal, the company will be entitled to demand the bonds of the State for $126,000, and when issued, it will not be-denied, the bonds will form a part of the debt of the State. But when •and how was the debt created1? It is clear it was created by the act of the Legislature in 1869. The law on this subject is the same in the other States of this Union.. “A party bound by either an express or an implied contract, in virtue whereof he may become liable to the payment of money, is a debtor, although his liability be contingent.” 5 Barb. 410; 18 Wend. 375, 386;. 5 Cowen 67; 8 Cowen427; and 4 G-reenl., 195.

Tlie reasoning of Chief Justice Mellen seems conclusive.

“The objection is that Yan Wyck was not a creditor of Seward at ■the date of the deed, because it was then uncertain whether he would ever have a cause of action on the covenant. Let us see where this ■doctrine would carry us. If one promise to pay money at a future day, he may pay before the credit expires, and until that time arrives, it is uncertain whether an action will ever accrue on the promise. The contract of surety only creates a contingent liability. Until the principal is in default, it is uncertain whether an action will ever accrue against the surety. The drawer of a bill of exchange is only bound to pay it upon a contingency, which may never happen; and so it is with the indorser of negotiable paper of all kinds. The contract of indemnity is another case where an action may never accrue upon the undertaking. In these, and all other cases depending upon contract, the person with whom the engagement is made is as much a creditor, within the meaning of the statute, as though he had a debt on which a right of action already existed.’r

Did the appropriation made in favor of J. 0. Nixon create a debt ■■against the State, or was it only a recognition of a debt existing prior to the constitutional amendment and unaffected by it ?

The preamble to the act recites that, “ Whereas the State of Louisiana, by act of March 22, 1866, and by her contract with James 0. Nixon, as public printer, engaged to pay him in cash, monthly, certain rates and prices for public printing by him to be executed; and whereas said Nixon executed his bond for ten thousand dollars to the State for the faithful performance of his duties as public printer; and whereas the said Nixon did faithfully and'promptly execute the duties incumbent on him by law; and whereas the State paid him only part in cash and the remainder in warrants, which he was compelled to receive or get nothing at all; and whereas to comply with his engagements to the State he was compelled to sell these warrants at various and heavy discounts; and whereas good faith of the State requires that it should make good the losses incurred,” etc.

It appears from these recitals that the State had settled with J. O. Nixon in full for the work done by him as public printer, and that his necessities comnelled him to sell at a discount his warrants, received in the settlement. If instead of the State it had been a private individual who had contracted with Nixon and who had given his note in settlement, could Nixon have enforced his claim for losses in consequence of the sale of the note? Certainly not. After the settlement aforesaid and the sale of the warrants the State did not owe Nixon, but tbe bolder of the warrants. Therefore the act No. 32, if valid, necessarily created a debt.

But it is contended by tbe relators that the appropriation does not create a debt, “ because the money is presumed to he in the treasury.” This raises the very serious question whether or not the Legislature can make appropriations, unless there be money to meet the warrants authorized thereby, either actually in the treasury or provided for by the revenue hill ?

The power of appropriation is the right to apply to public purposes money in the treasury. Article 104 of the Constitution declares :

No money shall he drawn from the treasury hut in pursuance of •specific appropriations made by law.” '

An appropriation is an authorization to the Auditor to check upon the treasury for moneys there deposited. If, therefore, the revenues be inadequate to meet the interest of the public debt and the current expenses of the necessary State agencies to preserve the government, ■an appropriation (whereby the liabilities of the State are increased) for any other purpose than the support and maintenance of the machinery of government is a debt within the meaning of the constitutional amendment, which declares “ that prior to the first day of January, 1890, the debt of the State shall not be so increased as to exceed twenty-five millions of dollars.”

It is further contended that the prohibition in the constitutional amendment is inoperative until the Legislature shall provide by law how to carry it into effect. And the case of Groves v. Slaughter, reported in 15 Peters 449, is relied on to support the position. The case is wholly inapplicable.

That there are provisions of the Constitution which require legislative action to carry them into full operation, can not he doubted, hut it is equally certain that there are other provisions of the Constitution which are effective independently of the action of the ■.General Assembly. This amendment does not require legislation to fee operative. 13 Barb. 63 and 188. It is a check upon the General Assembly itself, and its efficacy is independent of the legislative will. 'The proper way for the Legislature to give effect to this amendment is not to pass laws for its enforcement, but to refrain from enacting laws in violation of its commands.

The evidence shows that the revenues of the State are inadequate to ihe expenditures.

We are, therefore, constrained to declare that the act entitled “ An act for-the relief of James 0. Nixon, late public printer,” passed at the General Assembly of the State of Louisiana on the first day of March,, 1871, is unconstitutional, null and void.

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

Rehearing refused.