text:
    No. 168.
    R. W. Turner v. William H. Hill and N. A. Durdin.
    The capacity of a sheriff duly commissioned ns such, cannot be tested or inquired ttito by an injunction against a suizute made on ajii./o.; ■ ? ° «
    from the Tenth Judicial District Court, parish of Bossier. Levisce, J.

      11. W. Turner, pro se, appellant, T. IT. Fort, for defendants and appellees.
   Taliaferro, J.

The defendant Durdin having obtained a judgment against the plainliff Turner, issued execution, and the other de.fendant Hill, acting as sheriff of Bossier parish, seized a steam engine? saw mill and fixtures belonging to the plaintiff. Thereupon the plaintiff enjoined the proceeding, alleging as ground for the injunction that Hill, the person making the seizure, is not sheriff of the parish ol Bossier, and that all acts he pretends to do in that capacity are illegal, null and void.

The answer is a general denial. The defendant, Durdin, prays the injunction may be dissolved, and that the plaintiff be condemned to pay him eight per cent, per annum interest on the amount enjoined, twenty per cent damages on that sum, and fifty dollars special damages, amount of attorney’s fee incurred.

The plaintiff prays that the defendant, Hill, be adjudged without authority as sheriff, and that the defendants be condemned in solido to pay him two hundred and fifty dollars as damages.

The judgment of the lower court dissolved the injunction and awarded the defendant, .Durdin, fifty dollars damages for attorney’s fee. The plaintiff appealed.

The facts seem to be that Hill was appointed and commissioned as sheriff of the parish.of Bossier by Governor Wells in November, 1866? and took the oath of office, and has continued, to act in that capacity ever since. It has often been decided that the capacity of sheriffs duly commissioned, cannot be inquired into incidentally and collaterally by third parties. A special statute of the State provides for inquiring into and testing tlie capacity and riglit of ]>crsons holding and exercising public offices. Whether the defendant is or is not constitutionally and legally sheriff of the parish of Bossier, we cannot in this form of proceeding undertake to determine. It is sufficient prima fado that he was duly commissioned in 1866, and no successor has boon installed into office. The State Constitution, article 122, provides that “ all officers shall continue to discharge the duties of their offices until their successors shall have been inducted into office, except in cases of impeachment or suspension.”

In the case of Gradingo v. Moore, curator, 10 An. 690, this court declared that “the capacity of sheriffs duly commissioned to exercise the duties of their office, is not to bo brought in question by third .persons in this collateral manner, nor the rights of litigants to be made to depend upon a future possible controversy between the State and one of its officers,” and added: “For the determination of this cause it is enough for us to know that Jean Baptiste David was, at the time his deputy served the citation, de facto sheriff of St. Landry, under color of title; it would not vitiate the service as between these parties, though it should ultimately turn out that David was not sheriff dejure.

The judgment of the District Court was properly rendered.

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


source: Caselaw Access Project

author: LudeliNG, C. J.

license: Public Domain

text:
    No. 119.
    Succession of Mahala Sprowl.
    An executor is not permitted to make any charges against the estate he administers for services rendered, other than the two and a half per cent, commissions allowed him by law on the amount of the inventory.
    An executor, having received the funds of the estate he administers and afterward disposed oí them for notes of the so-called Confederate States will be held liable to the heirs lor the amount thus received.
    from the Parish Court of the Parish of Natchitoches. Lems, J.

      Pierson ffi Levy, for executor, appellee. A. Lomee, attorney for absent heirs, appellant.
   LudeliNG, C. J.

Daniel Brown, the executor of the last will of Mahala Sprowl, filed an account of his administration on the sixth of February, 1866.

An opposition thereto was filed by the attorney for the abscut heirs, praying that the following items of the account be disallowed, to wit: Two hundred and ninety-six dollars due the executor for ginning and pressing the cotton in 1860, five hundred dollars duo the executor for superintending the plantation in 1859, and sixteen thousand nine hundred and ninety-seven dollars and fifty-two cents claimed as a credit for Confederate notes collected by the executor. The judge a quo sustained the oxiposition made to the item for five hundred dollars, and dismissed it as to the other two items, and- the opponent has appealed.

We think 1he charge for ginning and piclsing' thé' cotton Should net he allowed. A family meeting, convoked on the ninth day' of November, 1859, recommended the Sale of the plantará n, mules', slaves, éfce;, and the sale was not made until the fifth day of January, 1800. No reason is shown why the cotton was not ginned and pressed befólo thé sale. It was the duty of the executor to have fcansbd this tó be done, and wo will not permit him to take ádvanta'g’o of his hiélies tó cniicíi himself. "

The charge made by the executor for superintending tlíe plantation is not a proper charge. The commissions allóWed him by kiw ¡ire intended to compensate him for his superintendence and care of the property of the estate. C. C. article 1676; 1 II. 400. The facts in' the case of the succession Of Isaac Pipkin, reported in 7 Ah. p. 017, may have justified the court in coming tó thé conclusión which they did, but we think the ruling in the case of Baldin’s'execútors v. Carlo-ton more salutary and iu consonance with the Civil Code, which declares that the executor “ shall be entitled, for his trouble dnd care, to a commission of two dud a half p"er cent, on the whole áino¡ü¿t' o'f the estimate of the inventory,” etc. '

We cannot allow' the executor the credit for sixteen thousand nine hundred and ninety-seven dollars and fifty-two cents claimed by him to be for balance of Confederate notes on hand at the surrender. There is no evidence in the record to show that the. notes of W. W. Brown, given for slaves, were paid in Confederate notes. The only evidence offered to prove this fact is the testimony of the executor himself; and his testimony shows tliat.W. W. Brown settled these notes iu February, 1862, by transferring‘to the executor sufficient funds, which he had iu the hands of Payne, Huntington & Co. And the same testimony satisfies us that the funds in the hands of Payne, Huntington & Co., belonging to W. W. Brown in February, 1862, consisted of lawful money, and not Confederate notes. Having collected the slave notes he must account for them. “He is bound to restore to his principal whatever he has received by virtue of his procuration, even should he have received it unduly.” C. C. 2974.

It is contended by thé executor that he áéted as a prudent man, and that he believed the settlement with Páyne, Huntington & Có. a good one, and that therefore he should be i'oleased from responsibility. The: evidence does not satisfy us tliat fke executor administered the property prudently or faithfully. Whatever may have' been -his Opinion or the opinions óf his neighbors réláiivó to the eventual sü'éc'eés of tlie Confederate States iii insurrection, thé ékécutor tvás not authorized to' speculate in stocks of the said States with funds belonging tó thé estáte administered by him. In this cáse the executor’s duties- were plainly indicatéd by his mandáté, thé testament óf Mahala* Sprowl. 3 Ah. 468. “ If i), man Undertakes áñ ófficé o’f kindness he must discharge thé dilty faithfully and prudently, otherwise he is responsible for the consequences.” 10 M. 708; Fitz v. Richard, 20 An. 549, and succession J. W. Wilder, 21 An. The evidence shows that the notes of Mrs. Manning for three hundred dollars, given for a slavo, were collected in Confederate notes, and for this sum the executor would not be responsible. But having used it in the payment of Confederate taxes, which are not opposed, he is not entitled to any other credit for it. We do not consider that the letters of Mrs. V. G. Sprowl, one of the legatees of the testatrix, ratify the acts of the executor in any manner, even if she had the power to do so.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed; that the opposition of the attorney of absent heirs be sustained, and that there be judgment against Daniel Brown, executor of the last will of Mahala Sprowl, and in favor of the heirs and legatees of Mahala Sprowl for the sum of seventeen thousand seven hundred and ninety-three dollars and fifty-two cents, with five per cent, per annum interest thereon from the sixth February, 1860, till paid, and the costs of this appeal. It is further' ordered that in other respects the account be homologated.

Rehearing refused.


author: Howe, J.

text:
    No. 187.
    State of Louisiana v. McLean and Hamilton.
    Y7hcro two parties arcs tried together for the crime of murder, each, one in entitled to twelve peremptory challenges to the jurors. In such a case the privileges ol the one must not be prejudiced by the acts oí the other.
    The objection that one of the petit jurors was not a registered voter, comes too late if not made until after verdict.
    from the District Court, parish of Bossier, Revisee, J.

      Robert R. Rooney, District Attorney, for the State, J. It. Griffin and It. W. Turner, for defendants and appellants.
   Howe, J.

The defendants were indicted for murder, and having been tried and found “ guilty without capital punishment,” were sentenced to imprisonment at hard labor for the term of their natural lives. Erom this judgment they have appealed.

It appears by the record that they were- tried jointly, and that after McLean had challenged two jurors peremptorily, and Hamilton had in the same manner challenged ten, the counsel for the State objected to the peremptory challenge of another juror by Hamilton on the ground that the prisoners together had exhausted the twelve peremptory challenges accorded by law. The court sustained this objection, and the defendant, Hamilton, reserved a bill of exceptions.

We are of opinion that the ruling of the court was erroneous. The right of peremptory challenge is one of great importance, and where prisoners are tried together the privilege of one should not he prejudiced by the acts of the other. If twelve challenges are to be distributed between two or more defendants, liow is tbe division to be made ? In what order and in wbat ratio are the shares to be parceled out ? When thirteen defendants are tried jointly shall each be declared to have twelve-thirteenths of a peremptory challenge ? We think the law accords to each prisoner a right to twelve challenges of the peremptory sort. Acts of 1855, p. — State v. Cazeau, 8 Ann. 114.

We see no reason, however, for disturbing the judgment as to the defendant McLean. His only ground of complaint is that J. L. Biggs, one of the jurors, a talesman, was not a registered voter; but this objection was made for the first time after verdict, On motion for a new trial) The objection came too late. The petit jurors are severally presented to'the prisoner before being empannelod and sworn; and it is his duty at that time to examine them, if he desires to test their qualifications. 6 Ann. 310; 8 Bob. 590.

For the reasons given it is ordered and adjudged that the judgment appealed from, as to the defendant McLean, be affirmed with costs; and that as to the defendant Hamilton the said judgment be. avoided and reversed, and the cause remanded for a now trial according to law.


author: Ludeling, C. J.

text:
    No. 131.
    James H. Mumford v. E. McKinney.
    Parol evidence is not admissible to establish an agency to sell land.
    A party cannot attack, in the courts, the claim of a pre-emptor, without showing a prior equity ble right to the land.
    A possessor in good faith on eviction, is entitled to recover the amounts expended by him in useful improvements made on the land.
    from the District Court, parish of Natchitoches. Orshorn, J.

      11. J. Bowman and B. J. Cunningham, for plaintiff and appellant. Wm. M. Levy, for defendant. A. H. Pierson and J. M. B. Tuclcer, for warrantors, appellees.
   Ludeling, C. J.

This is a petitory action to recover seventy-two acres of land situated in the parish of Natchitoches. 'The plaintiff claims rents for the lands from first day of January, 1852, and for damages.

The defendant sets up title by purchase from T. C. Walmsley, who. bought' from Whitfield Williams, who purchased from Walkinshaw, who bought from Zadoc Mumford, the father of the plaintiff. The vendors were successively called in warranty. The defendant and the warrantors derive their title from Zadoc Mumford, and they allege that the plaintiff, who is the son of Zadoc Mumford, rali.ied the sale.

There was a verdict qnd judgment for the defendant, and the plain-tiff has appealed.

There was a bill of exceptions taken to the ruling of the judge a quo receiving the testimony of Zadoc Mumford, on the grounds that parol testimony is not admissible to establish an agency for the sale of lands, nor to prove a subsequent ratification, and that the written act could not be contradicted.

Thp evidence cquM gpj> be r.epeiypd ío psíab}i$h. an agenpy to spll lands. Ó. C.' ?961. ' '

It wa§ admissiblp to prove 9 ratificatipp. Crownover v. Randall (decided at Monroe.) '

The second bill of exceptions was Jo Jhe admission, of proof that at the time Jhe land was pre-empted by plaintiff bfi was a. minor, and that he perpetrfjt.od a fraud upon the government.

It is well settled that one, without a prior equitable right to the land, can not attack in the courts the claim of the pr.e-emptor, who holds a title from, the Unitpd States. In this ease the land department at Washington mgy cancel the entry, but this court has no right to examine into the regularity of the proceedings before the Register and Receiver, as it is not prptended that the defendants had a prior equitable right to the land when the pre-emptor entered it. Wilcox v. Jackson, 13 Peters — ; Lyttle v. the State of Arkansas.

The record does not contain any proof of a ratification by the plaintiff of the sale; nor had the defendant been in possession of the lands ten ypars when this action was commenced.

The defendant is a possessor in good faith, and he is entitled to be reimbursed the amounts expended in useful improvements. The verdict and judgment are erroneous. But justice requires that the case should be remanded, to enable the defendant to prove more accurately the enhanced value of the property resulting from the improvements placed on the lands.

It is therefore ordered and adjudged that the verdict of the jury be set aside; that the judgment of the District Court be annulled, and that this case be remanded to the District Court to be tried according to law, find that the appellees pay the costs of appeal.

Rehearing refused.


text:
    No. 123.
    A. B. James &. Co. v. Absalom Wade.
    WJiere the mail service can not be used as a means of conveying notice, the holder of commercial paper is not excused if he fails to use all other means within his reach of bringing home notice to the party whom he wishes to charge. 20 A. 399.
    To hold the indorser on a promise to pay a promissory note after discharge, the holder mifist 8ho\y that the promise was made with a full knowledge of his discharge.
    from the District Court, parish of Winn. Orsborn, J.

      J. 0. Weeks and J". If. Ti. Tuolcer, íqt plaintiffs and appellants. Jack & Pierson, for defendant and appellee.
   Howe, J.

The defendant is sued as the indorser of a bill of exchange drawn by W. R. Hughes on Moore & Browder, of New Orleans, and by the latter accepted, payable on the fifteenth February, 1863. . ’ ' '

On the day of its maturity the hill wasprotpstedbyanotaryinNew Orleans, and a notice deposited in the Postoffice in that city addressed to the defendant, at Winnfield, parish of Winn, Louisiana.

The record shows that in February, 1863, all postal and commercial intercourse was suspended between New Orleans and Winnfield. The war was, then raging, and the deposit of the notice in the Postoffice in New Orleans liad no effect in converting the conditional obligation of the indorser into an absolute liability. 19 A. 43, 63, 64, 72, 90; 20 A. 399.

If the holders of this bill desired to bind the indorser, it was their duty to have given him notice of dishonor within a reasonable time after the closo of the war, and the' resumption of commercial intercourse. There being no evidence that any notice except the one described above was ever given, the indorser must be held to have been discharged.

It is, however, urged that in 1867 the defendant promised to pay the bill, and that at the time' he made such promise he was aware that he liad been already discharged by the laches of the holders. On this point the only testimony on behalf of plaintiffs is the following statement by one of their witnesses:

“I brought up the original claim or draft due the firm of A. B. James & Co. to this place some time in April, 1867, and presented it to Dr. W:ule. The doctor looked qt it, and said that the indorsement upon the draft was his signature, and that was another of his misfortunes during the war; that at the time he indorsed it lie supposed that this man Hughes would pay it at maturity, but supposed that he had not, and that he would have it to pay. Dr. Wade remarked to witness that he was going to the city in a few days — that lie would call on A. B. James & Co. and try and settle it with them there. That the arrangement, he thought, would be made quicker than witness could effect it by bringing suit. Witness agreed to wait on Dr. Wade.”

Tlie defendant testified that in this interview he only proposed a compromise, and that when he went to New Orleans he offered to give the plaintiffs, by way of compromise, some land worth about fivehun-,dvcd dollars, which they refused to accept.

It is by no means certain that the promise sought to be established in this case was so explicit and absolute as to satisfy the requirements of the law. 16 La. 315; 2 A. 16.

But if the promise was made by defendant, it does not appear that it was made with a full knowledge of his discharge, and proof of such knowledge is clearly required to enable the plaintiffs to recover.

The language we have,quoted does not justify the inference that Dr. Wade knew that the holders had failed to give him legal notice of the dishonor of the bill. It is rather the language of a man who supposed his liability to be clear, and who ruefully, predicted that he would be forced to pay.

We conclude that the judgment rendered by the court a qua in favor of defendant was not erroneous. 11 L. 17; 13 L. 368; 1 R. 83; 17 L. 3SG; 7 R. 331.

It is therefore ordered and adjudged that the judgment appealed from he affirmed with costs.


author: Howell, J.

text:
    No. 1.
    State of Louisiana ex. rel. M. H. Twichell v. James R. Head.
    The District Judge is without authority, either on his own motion or by the consent of parties, to transfer a suit from the parish of the domicile of the defendant to another parish of the State. All proceedings had in a cause after such transfer are null.
    from the Eleventh Judicial District Court. Lends, J.

      N. J. Sandlin, District Attorney. L. B. Watkins and J. If. Jones, for relator. J. II. Head, pro se.

   Howell, J.

On the twenty-first June, 1869, the petition in this case, addressed to the “Judge of the Eleventh Judicial District of the State of Louisiana, holding sessions in and for the parish of Bienville,” was filed in the clerk’s office in said parish, in which it is alleged that the defendant is unlawfully holding and exercising the office of parish judge of the parish of Bienville, and judgment is asked against him and in favor of the relator, M. H. Twichell. The defendant was cited in the usual form to answer in said parish, on the first Monday of September, 1869. The judge of the district then issued an order addressed to tho defendant, to appear before him in chambers at Minden, Claiborne parish, on the second Monday in July, to try the case, and another order to the clerk of the District Court for Bienville parish to be present at said trial, with all the papers in his office appertaining to said case, and to act as clerk of the District .Court as fully as at a regular term. Another citation was then issued by said clerk to the defendant, citing him “ to appear before the Judge of the JSleventh District Court in chambers at the town of Minden, in the parish of Claiborne, and comply with the prayer of the annexed petition, or file your (his) answer thereto in writing, in the office of the clerk of the District Court in and for the parish of Bienville, on the second Monday in July next,” on which day, the record states, the court was opened, answer filed, jury disallowed, application for a continuance granted to the first Monday in August, and court adjourned to said date (second August, 1869), all at Minden, Claiborne parish. The record further shows that the “ court met pursuant to adjournment, in the town of Minden, parish of Claiborne, on the first Monday of August,” etc., at which time and place exceptions to the jurisdiction of the court were filed and overruled; trial was had, judgment rendered, and appeal granted. The above exceptions were not taken to the place and manner of trial, but it is now contended before us that the District Judge had no legal power to transfer the “ District Court in and for the parish of Bienville ” to Claiborne parish, and compel the defendant, his witnesses and the clerk to attend in the latter parish.

These proceedings were not only totally without authority in law, but are in evasion of the one hundred and sixty-second article of the C. P., as amended by the act of March 19, 1861, and construed by this court in the caso óf the State v. Judge of the Eleventh District, 21 A. n. 258. We there held that no one is permitted to consent to be sued elsewhere than in the parish of his domicile or residence, except in cases expressly provided for by law, and this case is not within such exceptions. The authority in act No. 156 of the statutes 1868, to try such cases in chambers, does not authorize the judge of a district to remove the parties and officers of one parish to another, but simply to try a case in chambers, in the parish, where the suit must be' brought. Section 2 of said act makes it the duty of the District Attorney of the parish in which the case arises, and of the Attorney General in the parish of Orleans, to bring such action against the offending party when required. Section 3 requires service to bo made, and the answer of the defendant to be filed within the delays, the same as in other civil suits, and the case to be tried by preference over all other cases, without being fixed for trial, after issue joined; and section 13 confers the additional right to have the case tried in chambers, or at a special term of the court, called by the judge of the district, upon giving legal notice to the parties interested, and it also reserves to each party the right of trial by a special jury, to be summoned according to law.

There is nothing in any of these provisions, or any other part of said act, giving the judge of the district power or authority to try the case out of the parish in which it arises. On the contrary, they plainly imply that the action shall be brought and tried in the parish of the defendant’s residence or domicile, as in other civil suits.

We are constrained, therefore, to declaré all the proceedings had before the district judge in this matter null and void, and as a legal sequence there are no other questions properly presented for our consideration.

It is therefore ordered that the judgment from which this appeal is granted, and all other proceedings herein before the district judge in the parish of Claiborne, including, the orders of twenty-sixth June, 1869, to the defendant and to the clerk, be declared null and void, and that this cause be remanded to the District Court in and for the parish of Bienville, to be proceeded in according to law. Costs of appeal to be paid by the appellee.


text:
    No 153.
    Union Bank of Louisiana v. Michael Ryan.
    "Wlum the defendant, the mater of a promissory note, establishes a failure of consideration's between himself and liis payee, amounting to a fraud, the holder by indorsement is obliged • to show that either he or some preceding holder took it in good faith and for value.
    from the District Court, parish of Rapides., Lewis, J.

      Manning, for plaintiff and appellant, ligan & White, for defendant and appellee.
   Howe, J.

This suit was instituted upon a promissory note made by defendant dated March 20, 186J, and payable February 10,1862, to the order of Rotchford, Brown & Co., and. by the latter indorsed.

The defendant admits in his answer the execution of the note but denies indebtedness to any one thereon, and avers that the noto is really his own property; that it never passed into the hands of plaintiff in the ordinary course of business, that it was really controlled by Rotchford, Brown & Co., the bank being only a nominal party; that during the year 1859 the defendant purchased a number of slaves, and that Rotchford, Brown & Co. indorsed part of the notes given for tlieir price, payable one year after date; that, when the notes were about to mature, Rotchford, Brown & Co. wrote to defendant and enclosed four notes to be signed by defendant, to take up or renew the original notes, leaving blanks for daté and timé of payment; that the defendant signed these notes and sent them forward for the purpose stated, but that Rotchford, Brown & Co. never took up those original notes, but used the series of notes of which the obligation in suit was one for their own benefit without the consent of the defendant, who was obliged after the war to pay the original notes to the holders thereof.

There was judgment in favor of defendant and plaintiff has appealed.

The evidence shows a total failure of consideration of the note in suit as between the maker and the payees. It' was executed and sent to the latter for a specific purpose, to be used in the renewal of notes about to fall due. It was not so used, but was misapplied by Rotch-ford, Brown & Co., to other purposes, and the defendant was obliged to pay the original notes. Upon the trial an account current between Rotchford, Brown & Co. and the defendant was offered by plaintiff, and on this the defendant appears to have been credited with the proceeds of the note in suit, by discount, $4926 80, but the account wás not in any wise proved,- it was only admitted by consent of defendant to establish “ the fact that sachan account was rendered, but not that defendant ever consented to its correctness or that it was binding on him.”

The defendant then having clearly established a failure of consideration through the fraud of his payees, it remains for us to consider what effect this fact has upon the rights of the plaintiff.

Wo consider it well settled that when upon the trial of a case like this the defendant clearly establishes failure of consideration, as between himself and his payee, amounting to á fraud, the plaintiff, as indorsee, is required to explain the circumstances of his possession, and to show that either he of some preceding party to the note took it in good faith arid for value. Bayíéy on Bills, p. 492 to 495, and notes; 9 Ann. 20, 22.

The plaintiff in this case made no such proof, and we therefore conclude that the judgment of the court a qua was correct.

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


author: Taliaferro, J.

text:
    No. 154.
    Robert C. Hynson v. John Cordukes and the Estate of R. C. Hynson, Jr.
    The lessor has a privilege for the payment of the rent on- all the movables found on the leased premises without reference to whether such property belongs jointly to the partners in the plauting business, or to one of them only. 19 An. 112 ; 20 An. 26B.
    Evidence is inadmissible m a suit by the lessor ior rent, to show the terms and conditions of a partnership berreen the lessees.
    from the Ninth Judicial District Court, parish of Rapides. Lewis, J.

      It. A. Hunter, for plaintiff and.appellee. T. G. Manning, ligan ch White, for defendants and appellants.
   Taliaferro, J.

The plaintiff leased his plantation for the years 1866 and 186? to his son, R. C. Hynson, Jr. He reserved to himself a small portion of the land surrounding the mansion house in which he continued to reside. The number of acres leased in 1866 ivas twelve hundred and eighty, and for the year 1867, reserving to himself a larger quantity than he did in 1866, the quantity of land leased Avas nine hundred and thirty acres. Six dollars per acre for each year Avas the amount agreed upon for the rent. R. C. Hynson, Jr., being Avithout means himself to sustain the expense of carrying on the cultivation of the place entered into a planting partnership with the defendant, Cordukes, Avho made all the advances necessary and paid for the supplies and current expenses of the plantation. This partnership was entered into about the time the lease was made. Besides the current expenses for the year 1866, it Avas essential to the enterprise the parties had engaged in, to erect new buildings on the plantation, Which by the calamities of Avar had become stripped of all its improvements. A costly steam gin and mill Svith all the necessary machinery Avere built and established— besides other Avorlcs of a permanent character Avere made. The Entire cost of these improvements was paid by Cordukes. It was stipulated in the contract of lease that the cost of replenishing the place Avith. necessary and permanent improvements should be taken out of the rent for the year 1866, the cost not to exceed the amount of the rent. There Avas no obligation on the part of the plaintiff to pay for any improvements made in 1867., as'it Avas deemed that those made in 1866 were sufficient. A corn crib and a cabin, however, were built in 1867.

The plaintiff claims $13,260.for rent of the plantation for the tivo years. The defendant, Cordukes, claims as cost of the improvements he put upon the place $10,245, and presented an account Avith vouchers to establish it, A part of the account was rejected in the court below, which reduced his claim to $8819 46. To this reduction we do not see that he objected. Robert C. Hynson, Jr., died, in the latter part of the year 1867, and Cordukes became his administrator. Soon after the plaintiff instituted this suit against Cordukes and the estate of Robert C. Hynson, Jr., jointly, for $4440 54, the balance due, as he claims, after deducting the $8819 46 for the improvements.

The plaintiff had judgment in his favor on this basis for $2320 27, with legal interest from service of citation, against Cordukes, individually, and for tire like sum and interest against him as administrator of the estate of Robert C. Hynson, Jr. The judgment also recognized the plaintiff’s right of privilege as lessor upon the work animals, mules, farming utensils, etc. found upon the place and ordered them (already in the hands of the sheriff by provisional seizure) to be sold to pay the judgment. From this judgment the defendant, individually, and as administrator, appealed.

The defense is, that by the contract between the defendant, Cor-dukes, and Robert C. Hynson, Jr., an ordinary partnership was formed; that each partner is bound only' for his half of the debts. On this ground lie contends that his expenditures in permanent improvements made on plaintiff’s plantation exceeds one-half the amount of the rent, and he accordingly claims from the plaintiff, in reeonvention, the excess, which he places at $5000. He also claims damages for the provisional seizure of the mules, stock, etc., found on the plantation, all of which, he alleges, belong to him individually.

A bill of exceptions was taken by the defendant to the exclusion of evidence offered by him to show the terms and conditions of the partnership entered into'betvveen himself and Robert C. Hynson, Jr. The evidence was properly excluded. The stipulations of the partners between themselves could not affect the plaintiff who was not á parts* to them. A second bill of exceptions to the same purport was taken which it is pot necessary to consider.

We think the judgment of the lower court correct. Here was a debt for the payment of which the law accords a privilege of the highest order. The defendant had been allowed the amount of his disbursements for improvements on the jdaintiff’s plantation and a balance remained. This balance was owing by the partnership, and whether jointly or not, the lessor’s privilege bore upon all the personal property-found upon the leased premises without reference to whether such property belonged jointly to the partners in the planting adventure or to one of them only. Civil Code article 2675; 19 An. 112; 20 An. 266 ; Civil Code 3185. See also, 18 L. R. 193; 3 Rob. 52 ; 10 An. 627.

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


author: IIowe, J.

text:
    No. 116.
    President, etc., of Louisiana State Bank v. Valery Gaiennie.
    A bank taking a note before maturity as collateral security for money loaned, becomes the, bolder in good faith for a valuable consideration. ’
    The pledgee of a promissory note payable to the drawer's own order and by him indorsed in blank may sue and recover on the note without the indorsement of the pledger.
    from the District Court, parish of Natchitoches. .Lewis, J

      D. Pierson and G. F. Dranguet, for plaintiffs and appellants.* Pier-son & Pevy, for defendant and appellee.
   IIowe, J.

On the twentieth April, 1860, the defendant, for the ac-

commodation of B. Toledano & .Taylor, made his promissory note to his own order for the sum of §10,956 56, dated at New Orleans, and payable three years after date, and indorsed the same in blank. On the thirteenth April, 1861, more than two years before the obligation matured, it was transferred to the plaintiffs, the Louisiana State Bank, as collateral security for three notes of Toledano & Taylor, amounting in all to $85,000, and falling due in 1863.

The notes lastly mentioned being unpaid, the bank instituted suit thereon in New Orleans against Toledano & Taylor, but proceedings were stayed by the voluntary surrender of the latter. Tiie syndic of Toledano & Taylor advertised and sold the note in suit, among others, subject to the rights of the pledgees, and the bank purchased it on the eighth June, 1867. The bank, however, had never given up the note ,to the syndic, but had already, on the twenty-eighth of March, 1867, instituted this suit upon it against its maker.

In his answer the defendant alleged that he made the note merely for the accommodation of Toledano & Taylor; that they transferred it to the plaintiffs, who had full knowledge of its character as to the respondent ; that it was transferred to plaintiffs as collateral security for a discount granted to ’ Toledano & Taylor; that the plaintiffs had brought suit and obtained judgment upon tiie principal obligation, and had collected the whole or a part thereof; that the note of defendant had been advertised for sale by the syndic of Toledano & Taylor, with the knowledge and consent of the plaintiffs, and that the titlo and-ownership of the same had been retransferred to Toledano & Taylor, and the note being only accommodation paper, had become subject to the equities existing between the latter and the defendant.

There was judgment for the defendant, and tiie plaintiffs have appealed.

We have stated above the facts which are established by the record.

The other allegations of the answer are not proved.

In view of these facts we are of opinion that the plaintiffs are entitled to recover.

In the first place, the very fact averred by the defendant, that he made the note for the accommodation of Toledano &. Taylor is important. He desired to give tliom credit. lie gave them the use of his name to the extent of the amount of the note, and thus enabled them to obtain credit. 7 Ann. 227. The note was then, as alleged in the answer, transferred to the plaintiffs as collateral security, and upon its faith a large discount was obtained, and the evidence shows that this transfer took placo long before the note fell due. The plaintiffs thus became holders of the note in good faith, for value, before maturity.

It is contended by .the defendant that inasmuch as the note in suit was not indorsed by Toledano & Taylor, the pledge to the bank was not valid under article 3128 of the Civil Code, which provides that “ notification of the act of pledge to the person owing the debt pledged shall not be necessary, if the debt is evidenced by a note or other obligation payable to bearer or order, because in that case it will suffice if the note or obligation shall have been indorsed by the person pledging it, to invest the creditor with the privilege above mentioned.'"

To this we reply that even if the defendant in this case, who has distinctly averred, in his answer, that the note was transferred to plaintiffs, can now question the validity of such transfer; and even if the article quoted has not been rex>ealed by the sweeping provisions of the act of 1855, in reference to the pledge of negotiable notes, yet the article in question does not declare the nullity of the transfer of a note like the one in suit to a pledgee merely because the name of the pledger is not indorsed upon it. It merely declares that such indorsement shall invest the creditor with the privilege provided by article 3124, aprivi-, lege on the obligation as against the other creditors of the pledger. The liabilities of the maker of the note spring from the rules of commercial law. When, as in this case, the note drawn to the order of the maker is indorsed by him in blank, and before maturity transferred for value to the plaintiffs, the maker can not bo heard upon a question which concerns only other creditors of the pledger, Matthews v. Rutherford, 7 Ann. 227.

It is further urged that the plaintiffs áre not holders for value because they received the note as collateral security only; but the contrary doctrine is well settled. Swift v. Tyson, 16 Peters, p. 20; Succession of Dolhonde, 21 Ann. p. 3.

And in such a case as this, where there is no evidence that the principal obligation has been discharged even in part, the rights of the plaintiffs are for all practical purposes the same as they would have been if plaintiffs had purchased the note before maturity.

Por the reasons given, it is ordered and adjudged that the judgment appealed from be avoided and reversed, and that the plaintiffs do have and recover from the defendant the sum of ton thousand nine hundred and fifty-six dollars and fifty-six cents, with interest at the rate of eight per cent, per annum from April 23, 1803, till paid, and costs in both courts.


author: Hows, J.

text:
    No. 189.
    Thompson Wood v. A. McCranie, Administrator, etc.
    An agent’s right to compensation may be.inferred from the nature of the services and the relations oi the parties, without proof of an express agreement; yet to recover in such case the plaintiff must show some specific act performed in the capacity of mandatory before any implied contract for compensation can bo established and form the basis of such recovery.
    from tlic District Court, parish of Bossier. Weems, J.

      L. H. Watlcins and J. IT. Jones, for plaintiff and appellee. W. B. liijmi, for defendant and appellant.
   Hows, J.

The plaintiff sued the defendant, as administrator of Winifred Wood, deceased, for .file sum of §1719 40, upon the following cause of action:

“ Por this, that petitioner hoarded, furnished rooms, fires and servants, and riding horses, and a carriage, and all necessary attention to Winifred Wood in her old age, such as her almost helpless condition made necessary, and such as her possession of a handsome fortune required. That petitioner also attended to her business generally, such as securing her demands by taking notes, by taking care of her effects, all from December 20, A. D. 1856, to twenty-eighth May, 1860. Por items and dates reference is made to the account hereto annexed as part of this petition.”

No account, however, was annexed to the petition, and it does not, therefore, inform us how long the hoard was furnished, how many rooms, fires and servants were supplied, and for what time, or how many riding horses were used by this aged and almost helpless lady, or’ how many notes he took for her, or what and how many effects he took care of.

The defendant pleaded the general denial, and alleged that the intestate was in the family of the plaintiff as an invited guest, and not as a hoarder; that she .allowed plaintiff the use .of her slaves and of her revenues and money to a large amount, and that if he ever attended to her affairs he did so gratuitously. He further averred that if the intestate ever owed plaintiff anything it had long since been paid, to wit, on the fourteenth April, 1860.

lie afterward pleaded the prescription of one and three years.

There was judgment for plaintiff for §1666 25, with interest on various installments, and defendant appealed.

The claim for hoard and lodging is prescribed, except that portion winch accrued during the year previous to the commencement of the suit. 'I'he citation was served September 23,1860, and the only portion of this claim which it is necessary to consider on its merits is that alleged to have accrued after September 1, 1859, about nine months, which, if the claim he real, is shown to he worth about eighteen dollars a month, or in all the sum of one hundred and sixty-two dollars. C. (J. 6499; 2 A. 759 ; 5 A. 599; 3 A. 141; 3 A. 548.

But the family physician of the inféstate, a witness for the plaintiff, testifies that she died in. 1858, and he would be likely to know more exactly than any of the other witnesses. The only matter in the record which seems to establish clearly that she was living in 18GO is a certified copy of a promissory note introduced by defendant, made by plaintiff to the order of Winifred Wood, and dated April 14, 18G0, for $1500, and intended to show that, at that time the plaintiff so far from being a large creditor of the intestate was in reality largely in her debt, and that this note was given as evidence of such debt. The plaintiff insists that this copy of a note proved nothing. If so, we must decide as matter of fact that Winifred Wood died in 1858, and that for board and lodging the plaintiff has no claim that has not been prescribed. If the evidence, on the contrary, shows that the plaintiff did make his note to the intestate in April, 1860, we must conclude that his whole claim is fictitious. In the absence of some explanatory evidence we cannot believe that the plaintiff would at that time have given his note at one year for $1500 to a helpless old lady of fortune, who is proved to have had large amounts of ready money, if she had been indebted to him in a still larger sum, or in any sum.

The plaintiff sought to show by the testimony of a member of the bar that notes are frequently given without a settlement of pre-existing accounts; and that the parties to this note were “ quiet country people not having much dealing commercially, and not familiar with legal rights in such matters.” We think his testimony rather makes against the plaintiff. In the bustle of business, or for the accommodation of each other, merchants having large commercial dealings may make notes to 'each other’s order, without a settlement of pre-existing accounts, but ‘'quiet country people” are not apt to do so unless the maker of the note is indebted to the payee. What would this helpless old lady of large means and ready money be doing with the plaintiff’s note, unless he was in her debt'? We must confess that the assertion of the defendant’s counsel that the claim in suit .was fabricated in order to compensate this note is not without foundation.

The claim of the plaintiff for services as an agent is not established, One witness says the plaintiff acted as agent from 1851 or 1852 till said Wood’s death, but he does not inform us of a single specific act of agency. He declares the agency was worth five hundred dollars per annum for the first five years, and three hundred dollars per annum lor the last three years, but how he arrives at this conclusion is not apparent. He proves no employment by Mrs. Wood, no agreement, express or implied; he does not inform us of a single act ever done by the plaintiff to which the law would affix any presumption of usefulness or value. It is declared by the Civil Code, article 2960, that the procuration is gratuitous unless there have been a contrary agreement; and while, under the Code, which has modified the Koman law, it is not of the essence of mandate that it be gratuitous, and an agent’s right to compensation may be inferred from the nature of the services, and the relations of the parties, without proof of an express agreement, yet it must be shown at least that some specific services were rendered in tlie capacity of agent before any implied contract for compensation could be established. • 5 A. 672; 7 A. 207; 10 L. 508; 11 L. 226; 14 A. 317.

For the reasons given, it is ordered and adjudged that the judgment appealed from be annulled, avoided and reversed, and that there bo judgment for defendant as administrator, with costs, in both courts.


text:
    No. 149.
    Pauline Lott and Harry Lott v. William Mills and Sheriff.
    Evidence to establish title is not admissible in a possessory action.
    from t-lie Ninth. Judicial District Parish Court of the parish of Rapides. Wm. A. Seay, attorney-at-law, selected to try recused cases.

      H. A. Hunter, for plaintiffs and appellees. Ay an & White, for defendants and appellants.
   Taliaferro, J.

The defendant, as executor of Edward Johnson, deceased, procured from the Parish Court an order of sale of a certain house and lot in the town of Alexandria, which, he alleges, belongs to the succession of Johnson, and was proceeding to have the property sold by the sheriff when the plaintiffs obtained a writ of injunction restraining the sheriff from making the sale.

The ground stated for the injunction is disturbance of the plaintiffs in the peaceable possession of the house and lot which they had enjoyed, as they allege, for a number of years, and which they had held and occupied as owners. Judgment was rendered in favor of the plaintiffs perpetuating the injunction and quieting them in their possession of the property seized. The defendant has appealed.

We find several bills of exceptions in the record, but do not deem it important to the decision of the case that they should bo formally examined. The action is in its character essentially possessory. That is the true issue made up between the parties, and we think the ruling of the court rejecting evidence going to show title was correct. This exclusion of testimony of that character forms the subject matter of several of the bills of exceptions.

We seldom meet with a record so abounding in contradictory statements of witnesses as the one now under consideration. There is certainly a considerable amount of the plaintiffs’evidence to which we cannot attach much credit; still, we think that the question of possession is made out and that the judgment rendered in the lower court is correct.

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

Rehearing refused.


author: Howis, J.

text:
    No. 183.
    R. T. Stinson v. W. H. Hill, Sheriff, et als.
    An injunction -will not lie to restrain the execution of a final judgment on the ground that the amount is erroneous.
    The property of the surety on the official bond of the sheriff can not be seized and sold undor a judgment against the principal and surety, until that of the principal has been discussed.
    A IJl PPEAL from the District Court, parish of Bossier. levisae, Jv

      Griffin t& Snider, for plaintiff and appellant. TFiJKamso» <£• Turner, for defendants and appellees.
   Howis, J.

The appellant, plaintiff, was one of the sureties upon the bond of L. F. Steel, sheriff of Bossier parish. In August, 1807, final judgment was rendered by this court against the administrator of Steele, and against Robert T. Stinson and Austin Martin as sureties in solido, in favor of Taylor, Knapp & Co., for the-sum of $031 78, with interest at eight per cent, per annum from March 30, 1853, till paid. See Taylor v. Hancock, 19 Ann. 403.

Execution was issued on this judgment, and placed in the hands of the defendant, Hill, for enforcement. The property of the plaintiff, Stinson, being thereupon seized, he procured the injunction now before us, upon the grounds, first, that the amount demanded in satisfaction of the writ exceeded in capital and interest the sum of one thousand dollars, to which amount he had limited his liability on the bond ; and second, that the bond having been recorded in compliance with law, January 7, 1803, operated as a mortgage upon the property of Steele, and that by law Taylor, Knapp & Co. could not, under the judgment upon this bond, make any sale of the property of the sureties until that of the principal, Steele, had first been discussed. The petition set forth certain property of the succession of Steele, from which it was averred the judgment might be satisfied. The answer was a general denial. There was judgment in the court below dissolving the injunction, and plaintiff has appealed.

The first ground urged for the injunction is insufficient at this time. It should have been i>leadod, if at all, before the judgment, the execution of which is sought to be restrained, was rendered. The judgment of August, 1867, is final, and its amount can not now he diminished. The court below, therefore, properly refused, as appears by a hill of exceptions, to permit inquiry into the amount for which the plaintiff was originally liable upon the bond.

But the second reason for the injunction has more force. It appears by a bill of exceptions that the plaintiff offered evidence to prove that there was sufficient unencumbered property belonging to the succession of Steele, which plaintiff pointed out in his petition, to satisfy the execution enjoined; but that the-court, upon the'objection' of defendants, excluded the testimony. ...

We are of opinion that there was error in this ruling. The plaintiff was not urging a defense that could have been pleaded only in the action in which the judgment of August, 1867, was rendered; nor was he attempting to review or revise that judgment. He was merely striving to regulate its execution in accordance with, the law upon the subject. The statute provides that whenever an execution shall issue upon a judgment rendered upon a bond like the one in question,- it shall be lawful for the officer to whom it may he directed to seize and sell according to law any lands which may have belonged to the principal obligor at the date of the registry of his official bond, without regard to any subsequent transfer or change of title, and in whatever hands the same shall be found — and that no sale shall bo made of the property of the sureties until that of the principal shall have been discussed. E. S. 1856, pp. 67, 63. This law seems to be imperative in'its provisions, and to prescribe a method of executing the judgment in this case fróm which no deviation should be permitted.

For the reasons given it is ordered and adjudged that the judgment appealed from ’<c avoided and reversed, and that the cause be remanded for anew and to be proceeded with according to law , and that the appellees pay the costs of the appeal.


author: Wvi,y, J.

text:
    No. 159.
    Carroll, Hoy & Co. v. Mrs. Eliza Huie, Executrix.
    To maintain an action by a creditor to remove an executrix from office, the party must allege that he is a creditor of the succession. Tho allegation that he is a creditor oí the executrix or the heirs is not sufficient C. P/1Q18.
    from Parish Court, parish of Rapides. Barlow, Parish Judge,
    -ft. A. Hunter, -for plaintiffs and appellants.. JL tí. Losee, for defendant and appellee.
   Wvi,y, J.

Plaintiffs seek to1 remove the executrix of the succession of Josiah Huie (claiming to be judgment creditors of her individually), on the ground that she moved to Texas with a view to reside there permanently without having rendered her account, and also because she sold at private sale a considerable amount of personal property belonging to said succession, and appropriated the proceeds thereof to her individual use.

They further represent that since the removal of Mrs. Huie the remaining property of said estate has been in the possession of persons not authorized by law to represent said succession, and consequently not responsible to the creditors either of Mrs. Huie or of the .«recession of Josiah Huie for their acts, and in consequence thereof they greatly fear that the remaining property will not bo enough to pay the debts due by the estate, and leave sufficient community property belonging to their debtor, Mrs. Huie, to pay their judgment against her.

To this suit Mrs. Huie filed her peremptory exception that the plaintiffs do not allege that they are creditors or have any claim against the succession of Josiah Huie, represented by her as executrix, and their X>etition shows no cause of action.

The court maintained the exception dismissing the suit, and the plaintiffs • appeal.

The plaintiffs reserved a bill of exceptions because the court refused to receive proof on the trial of the exception that they are judgment creditors of Mrs. Huie individually.

This is quite immaterial, as they made that allegation in their petition, and for the purpose of trying the exception, that no cause of action is shown, the allegations are taken as true.

The removal of curators of vacant estates and absent heirs, and that of testamentary executors or other administrators of successions, may be. prhyed for by any heir, creditor or other person concerned, etc. Code of Practice, article 1018.

This we understand to be the legal designation of what persons can sue to remove the legal representatives of successions.

Articles 1016 and 1019 of the Code of Practice authorize the judge, when made acquainted with any facts sufficient to justify a removed, to direct the subrogated tutor, or the curator ad lites, or the counsel of the absent heirs to institute a suit in their name to obtain the removal.

Under the articles last referred to, surely, the plaintiffs have no cause of action. They are not suing under the direction of the judge, and they are not such as lie could direct to bring the action.

Axe they such persons as are designated under article 1018? We think not. They are not heirs or creditors, or in any manner concerned in the succession of Josiah Huie. That they are judgment creditors of the heirs or the widow of the deceased, or those who have only a residuary interest, does not give them sufficient interest in this succession to authorize the suit.

Mrs. Huie does not occupy a fiduciary capacity toward the plaintiffs, who only claim to be individual creditors, and she cannot be proceeded against by them as an unfaithful agent. They can not sue under article 1018, which permits the heirs, creditors or those directly concerned in a succession to pray for the destitution of its unfaithful representative.

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


author: Wyly, J.

text:
    No. 138.
    O. K. Hawley v. J. H. C. Barlow.
    The act of the Legislature of 1869, No. 110, entitled “ an act to amend and re-enaet sections four and nine of an act entitled an act to organize the parish courts of this State,” otc., in authorizing clerks of district courts to perforin clerical duties oí the parish courts, and receive the fees therefor, does not create the office of clerk of the parish court, and is thorefore not in violation of article 117 of the constitution, which provides that no person shall hold or exercise, at the same time, more than one office.
    The ninth section of the act of 1869, No 110, in providing that the parish judges shall receive a salary and such lees as are allowed to clerks of district couits in all cases of appeals from justices of the peace, does not violate that part of article eighty-six of the constitution, which declares that parish judges shall receive a salary and fees, to be provided by law.
    from Ninth District Court, parish of Rapides. Orsborn, J.

      II. lii/an, for plaintiff and appellee. White & Maiming, for defendant and appellant.
   Wyly, J.

The plaintiff, who is clerk of the District Court of the parish of Rapides, has enjoined the defendant, who is parish judge of said parish, from taking the custody of the records of the parish court and from performing the clerical duties of said court aud collecting the fees provided by law therefor, except the fees arising from appeals from the justices courts. The court rendered judgment in favor of plaintiff, perpetuating the injunction, and the defendant has appealed.

The facts are admitted. Plaintiff’s claim to the custody of the records and to perform the clerical duties and receive the fees, is based on the act of 1869, No. 110, entitled-“an act to amend and re-enact sections 4 and 9 of ‘an act entitled an act to organize the parish courts of this State, and fixing the duties of sheriffs and clerks, providing penalties for their failure to discharge their duties, fixing seal for the clerk of the District Court, and providing a salary for the parish judges and giving the parish courts jurisdiction of suits for separation of bed and board and divorce and interdiction suits, approved September 4, 186S, and authorizing clerks of courts to issue marriage licenses, and fixing the fees to be allowed parish judges.’ ”

The defendant contends, the provisions of this act authorizing the district clerk to perform certain clerical duties and receive certain fees in the parish court, virtually creates the office of parish clerk, designating the district clerk to perform its duties.in violation of article 117 of the State constitution, which declares that, “no person shall hold or exercise at the same time more than one office of trust or profit, except that of justice of the peace or notary public.”

He also contends that said act violates article 86 of the constitiition, which provides that, “ for each parish court one judge shall be elected by the qualified electors of the parish. * * * He shall receive a salary and fees, to be provided by law. Until otherwise provided, each parish judge shall receive a salary of one thousand two hundred dollars per annum, and such fees as are established by law for clerks of district courts.”

The fourth section of this amendatory act declares that there shall be no clerk of the parish court. It, however, provides that, “the clerks of tlie several District Courts of tills State shall perform all the clerical duties to be performed in and for tlie parish courts. * * * Tliat for such services said clerk of the District Court shall have such fees as are now or may hereafter be provided by law for such services.” *■ * * * * It further provides that, “this section nor any provision in it shall not apply to any proceedings in cases of appeals from justices of the peace courts to the parish courts; in all such cases the parish judge shall be his own clerk and issue all such orders and writs of any kind pertaining thereto., and shall be entitled to all fees resulting. therefrom.” * * * * • * • * *

We cannot perceive that this act creates the office of parish clerk as urged by the defendant. It states expressly “that the parish court shall not be entitled to a clerk of the parish court.”

“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Civil Code, article 13.

If the act did not create the office of parish clerk it is not in conflict with article 117 of the constitution, by requiring the district clerk to perform the duties named in the act, and receive the fees.

The ninth section of the act under consideration provides, “that the parish judges shall have a salary, payable quarterly on their own warrants on the State Treasurer, graduated as follows :

“In parishes having one member, or new parishes not yet entitled to separate representation in the House of Representatives, two thousand dollars; in parishes having two or more members in the House of Representatives, two thousand five hundred dollars; and they shall further be entitled to the fees which are provided for clerks of courts in all cases of appeals from justices of the peace courts to the parish courts and no other.” Acts of 1869, 140, 142.

The defendant contends that this section violates that part of the eighty-sixth article of the constitution which declares that the parish judge shall have a salary and fees to be provided by law.

Can we say that the amendment to the act organizing the parish court, has not provided a salary and fees for the parish judge ? Surely not. Both a salary and fees are provided. In its discretion the Legislature has increased the salary and diminished the fees, and in so doing we cannot say the eighty-sixth article of the constitution has been violated.

The defendant urges that the act of 1869 was passed to evade the decision of- this court decreeing certain parts of the act of 1868 unconstitutional.

We cannot presume that the Legislature in passing this act intended to violate the constitution which they have sworn to support.

We will only declarean act unconstitutional-when it is manifestly so. 3 M. 12,553; 3 N. S. 472 ; 4 N. S. 138; 5 R. 383; 8 R. 416 ; 5 Á. 756 ; 8 A. 341 ; 11 A. 722.

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


text:
    No. 148.
    Eugene R. Biossat, Tutor, v. John S. Sullivan.
    A s:ile of community property by the husband, after the death of the wife, only conveys title to one undivided half thereof.
    An agreement to sell, where the consideration is shown to be Confederate treasury notes, will not be enforced.
    from the Ninth District Court, parish of Rapides. Edward G. Leclcie (attorney at law), selected to try recused eases.

      Manning, for plaintiff and appellee. Egan t& White, for defendant and appellant.
   Ludeling, C. J.

This is an action to recover a lot of ground in'tlie town of Alexandria, designated as lot number four, in square number one.

The defendant alleges in his answer that he purchased the lot from Adolphe Rachal, the father of the minors, represented by Biossat, tutor; that he gave seven hundred and fifty dollars for it; that Rachal promised to transfer the property in writing, hut that he never did so. He prayed to ho adjudged the owner of the lot, or that lie have judgment agaaist the heirs of Rachal for the price paid.

The evidence shows that the lot in question was acquired by Rachal during the community existing between himself and his wife, and that, at the period when, it is alleged, he sold the lot to the defendant, Mrs. Rachal had died. The undivided half of the lot, therefore, belonged to her children. The evidence does not satisfy ns that Rachal sold the lot to the defendant. John- Osborne, the witness of the defendant says : “ I drew up the title and went to Mr. Rachal cm the St. Nicholas and aslced him to sign it, which he refused to do.” We attach little importance to the declarations of Rachal, who is now dead. Jacob Irving, another witness for defendant, seems to know little about the transaction, except what Sullivan, the defendant, told him. Notwithstanding, he says, Rachal promised to make a title, when he received the money. It is difficult to conceive why ho did not make the written title then, if he had sold the lot.

Another witness testifies that Sullivan bought an old warehouse, which was on the lot, and that it was agreed at the time, that the house should be removed from the lot, and that the house Vas torn' down and carried away in accordance, with the agreement. If Sullivan bought the lot, why the agreement about taking the house away ? If the house and lot belonged to him, he could have removed the house or not without any agreement.

If full effect he given to the testimony of the witnesses for the defendant, and the evidence of the plaintiff ho disregarded, it would only prove an agreement to sell, or executory' contract, and the consideration was Confederate treasury notes. It is well settled that this court will not aid parties to enforce a contract which had Confederate notes for*a consideration.

It is therefore ordered, adjudged and decreed that the judgment of the District Court he affirmed, and that the appellant pay the costs of the appeal. •


text:
    No. 158.
    W. C. James, Administrator, v. R. C. Hynson and Sheriff.
    An heir, of ago, by accepting the succession, purely and simply, becomes personally liable for the debts of the estate. C. C. 1000.
    A creditor who permits the heir to take unconditional control of the estate, without causing it to be administered, loses the right to pursue the property of the succession, as distinct from that of the heir.
    from tlie District Court of Rapides. Orsborn, J.

      Ryan & White, for plaintiff and appellee. R. A. Hunter, for defendant and appellant. -
   Howell, J.

• Mrs. M. J. Calvit, a married woman, separate in property, died in 1862, leaving one child, named William N. Calvit, the issue of her marriage with J. A. Calvit, who died in 1865. This son, after the death of his father, continued to reside on the plantation, the property of his mother at her death, and which the evidence shows he managed from the time of her death as his own property, creating debts and giving mortgages upon it as early as March, 1867. On the twenty-third May, 1866, he confessed judgment in favor of the defendant, It. C. Hynson, which was recorded on sixteenth November, 1866.

In September, 1863, W. C. James was appointed and qualified as administrator of the succession of Mrs. M. J. Calvit, of which an inventory was taken in July preceding, containing only the said plantation, as the property of the succession.

James, now, as such administrator, institutes this suit to enjoin the sale of said property, seized by the sheriff in the suit of R. C. Hynson v. W. N. Calvit, alleging that the said succession ewes debts, and among others, one of $1200 to the succession of P.. M. Henderson, and that the property seized is the only property left to pay them and does not belong to W. N. Calvit, but to the succession of Mrs. M. J. Calvit, his mother — his interest therein being only residuary.

This injunction was improperly perpetuated.

The heir, by accepting the succession, purely and simply, received it with the debts due by his mother. Her creditors, not having claimed ¿a separation of patrimony, or caused her succession to be administered in due time, have lost their right to pursue her property as distinct from that of the heir, who has become their personal debtor, and the property inherited by him has become liable to the debts of his own creditors. C. C. 1006, 1370, 1398, 1409.

The plaintiff in this case had not, therefore, any legal right to interfere with a more vigilant creditor of the heir. The judgment enjoined is for $2049 19, with eight per cent, interest from fourteenth April, 1866.

It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of tlie defendant, R. C. Hynáon, dissolving the injunction herein, and that the plaintiff and his surety, Thomas Neal, be condemned, in solido, to pay said defendant twelve per cent, on the amount enjoined, as damages, with costs, in both courts.


author: Taliaferro, J. Ludelieg-, C. J. Howell, J. Wyly, J. Howe, J.,

text:
    No. 139.
    Edward Groves v. K. M. Clark and R. H. Carnal.
    A third holder of a promissory note, given for the price of a slave cannot recover thereon, although he acquired the note in good faith, for a valid consideration, before maturity. Constitution of 1868, article 128. Wainwright v. Bridges, 19 An. 234.
    from tlie Ninth Judicial District Court, parish, of Eapides. . JEdmard, G. Leclcie (attorney at law), presiding, vice Orsborn, re-cused.

      Edward Groves — plaintiff in person, appellant, Manning, for defendants and appellees.
   Taliaferro, J.

The defendants arc' sued upon a promissory note for $2225, dated January 4, 1859, made payable two years after date to the order of John H. Kansdell, tutor to the minor heirs of Austin W. and Harriet X. Burgess, and stipulating the payment of interest at eight per cent, per annum from maturity. Partial payments seem'to have been made upon the note, and the credits indorsed.

The defense is, that the sole consideration of the note was the purchase of slaves, which being emancipated and their services lost to the defendant, he is under no obligation to pay the note.

Judgment was rendered in favor of the defendants and the plaintiff appeals.

The facts of the case are that Kenneth M. Clark, the principal debtor, bought at a succession sale, of Austin W. and Harriet X. Burgess on the fourth of January, 1859,' five slaves at the price of $8900, of which he paid in cash $2225, and executed his three several promissory notes each for two thousand two hundred and twenty-five dollars, with Carnal the other defendant as his surety in solido, and executed a mortgage on the slaves purchased Jo secure the payment of the notes. The note sued upon is one of a series of three executed for the payment of the price of the slaves.

The plaintiff establishes that he acquired the note on which he founds this suit before its maturity. It seems that he took it in part payment for an interest of his brother, William P. Groves, in a drug store.

The article 128 of the State Constitution forbids the enforcement of obligations entered .into for the payment of the price of slaves. But it is contended that this provision of the State Constitution does not apply in cases where obligations having that character and in the form of negotiable notes are transferred before their maturity to third parties. The plaintiff alleges that he is a bona fide holder before maturity, and that ás between himself and the makor of the note the consideration cannot be inquired into.

We propose to examine cursorily the stress which is given in argument to the changed relations of parties arising from the transfer of a negotiable instrument by indorsement. Every indorsement is said to be equivalent to a new drawing. The contract between the payee and the indorsee is a new and different contract from that between the maker and the payee. But does not this new and different contract inevitably connect and complicate itself even with the eso._nt.ial parts of the first contract? A sells si ayes to B, and B executes his negotiable promissory note for the payment of the price, say at twelve months from the date of the transaction. Before its maturity, A transfers the note to C, to pay for a lot of mules he bought from him. IVhat is the purpose of the parties to this new contract'? B’s obligation is transferred to C in order that A may get the mules, and C gives the mules to acquire that obligation, and the right to enforce it. The consideration then for which C parts with his mides is identical with that for which A parted with his slaves,, namely, the price of the slaves which B had obligated himself to pay to A. It follows then that C did contract for an illegal obligation and for the right to enforce that illegal obligation, whether he knew it or not. He contracted for an obligation reprobated by law and forbidden to be enforced. But by the rules of the. law merchant ho would be protected as an innocent holder for value before maturity and without knowledge of equities or exceptions that might-exist between the original parties. But is the commercial law paramount? Certainly not. It prevails, so far as not modified, limited or altered by statutory or constitutional provisions. This we hold is now the case in Louisiana as regards obligations of every kind and in every form which have been entered into for the payment of the price of slaves. Article 128 of the State Constitution is couched in clear and unambiguous language. Its terms are unequivocal: its expression imperative. Contracts fdr the sale of persons are null and void, and shall not be enforced by the courts of this State.”

In the face of this paramount authority so plainly enunciated, can the courts of this State enforce contracts which it reprobates, whether the holder of the obligation is in good or bad faith, or a holder before or after maturity ? The positive prohibition of the article 128, makes no exception in favor of one class of holders over another. Shall the courts make such an exception ? This sanctity by the mercantile law of the rights of a bona fide holder before maturity is not recognized by the Constitution of the State quoad the contracts it repudiates. Its meaning is that all contracts for the sale of persons are null and void. Can this mean that some contracts for the sale of persons are null and void, and other contracts of the same kind valid ? Or, rather can it mean that contracts for the sale of persons shall be null in the hands of certain parties, but valid in the hands of other parties? If an obligation for the payment of the price of slaves in the hands of a third holder before maturity can be enforced, then there are some contracts for the sale of persons that are not null and void. Where is .the logic of such a conclusion? None dispute that obligations of the sort in question arfe by the terms of the 'article 128 of the Constitution utterly and absolutely mill "and ■void in the hands of the original parties. If thus stricken with nullity what is to revive' and give them validity ? We hold the purpose of article 128 of the Constitution of the State to be clear and without doubt, and that that purpose is, that the contracts which it reprobates shall bo null in whose hands soever they are found, and that the courts are forbidden to enforce them whether held by owneis bona fide ox male fide, and without reference to the time they acquired them.

But if the meaning and intention of that article of the Constitution were not clear and explicit, and it were a matter of inference and deduction, how would the case rest! Suppose a legislator should announce by a formal statute that all contracts, tire consideration of which were the commission of murder, should be null and void, and that the epurts should not enforce them. What construction would rationally be given to the statute 1 Could it be limited to contracts of that character to apply as between the parties only ? If so, the legislator would have done a very vain and a very useless thing, for by laws already existing no contract of that kind could be enforced between the original parties. The statute so construed would practically be nugatory. Then the interpreter would be required to give it some meaning and force, ii it were susceptible of it, beyond the previously existing laws on the same subject matter, llagis res valeat quampereat. lie could not, according to established rules of construction, conclude that the legislator intended to do so jejune and meaningless a thing as that of merely enacting a law which was already enacted. This would be absurd. He must then, if the terms of the statute would admit of enlargement, give it that enlargement as the purpose of the legislator,.and decree the nullity of the reprobated contracts against all parties and under all circumstances. Now under the hypothesis that the meaning'' of article 128 of the State Constitution is not free from doubt, let us apply tins process of reasoning for the purpose of determining that meaning.By the decision in the case of Wainwright v. Bridges, 19 An. 234, followed by many decisions affirming it, it was fully settled that contracts for the payment of the- price of slaves were null, and that the courts could not enforce them. These decisions -were the settled law of the State before the adoption of the Constitution of 1868. There was then no call for the insertion of the article 128 in that Constitution if the framers of the organic law did not intend to assert more broadly the doctrine of the Wainwriglit case than was announced in that decision, and to leave no question as to their intention to render null and abortive in the hands of any holder whatever all obligations . of the kind treated of in the one hundred and twenty-eighth article. We accept that article as being clear and explicit on the subject, and as necessarily overruling the case of the Canal Bank v. Templeton, 20 An. p. 141, decided before the adoption of the Constitution.

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

Ludelieg-, C. J.

The only obligation contracted by the maker of the note sued upon was to pay the amount thereof.

This is the obligation which we are called upon to enforce.

The record shows that this contract was for the sale of persons, and the Constitution of this State forbids the enforcement of such contracts by the courts.

For the reasons given in the case of Charles F. Dranguet, administrator v. E. Rost, 21 An., and the reasons stated in the opinion of Mr. Justice Taliaferro, I concur in his conclusions.

Howell, J.

As the proof in this case shows that the contract into which the defendant entered, and the consideration of which is evidenced or represented by the note sued on, is one for the sale of persons, it cannot be enforced under the Constitution, which controls the rules of the law merchant, established in the interest and for the convenience of commerce.

For this reason and those assigned in the case of A. Armstrong v. T. Lecomte No. 1291, I concur in the decree. '

Wyly, J.

I think the obligation between the indorsee and the maker of the note sued on, cannot be enforced without enforcing the original contract.

If the maker is forced by the court to discharge his obligation to the indorsee he is necessarily forced to discharge the contract he has made with the payee, which was for slaves.

This we cannot do without violating article 128 of the Constitution;

For these reasons and those given by Mr. Justice Taliaferro, I concur in the decree of the court.

Howe, J.,

dissenting:

The record in this case clearly shows that the note in suit was indorsed by its payee to one Burges, who in turn indorsed it in blank, and transferred it for value and before maturity to the plaintiff, who took it in good faith. The note itself bears upon its face no indicia of its origin. It is not even paraphed.

With such facts apparent and unquestioned, I find it impossible to concur in the opinion which has been delivered on behalf of a majority of the court.

It is hardly necessary to say that I do not propose to take ground in favor of enforcing “ contracts for the sale of persons.”

The jurisprudence of the State in this regard is settled; and the prohibition of the Constitution is plain and must be respected and obeyed. But it is difficult to perceive how the giving of judgment in this case, in favor of the plaintiff, can be considered in law the enforcing of a “ contract for the sale of persons.”

It is true that the consideration or cause of the contract between the makers and payee was the sale of slaves, and upon the authority of Wainwright v. Bridges, 19 Ann. 234, and many succeeding cases, this court would decline to enforce the note as between the original parties, and would point to the one hundred and twenty-eighth article of the constitution as a recognition and confirmation of the principles enunciated in those decisions. But it by no means follows that the contract between the makers of the note in suit and the plaintiff is a contract for the sale of persons, or that the sale of persons had any legal connection whatever with it.

On the contrary, I apprehend that the contract between the makers, of the note in suit and the plaintiff was that of the accepter of a bill drawn by Burges, the second indorser, upon the defendants in favor of the plaintiff, in payment for half a drug store. I believe all writers agree in this view, that the indorser of a note may be looked upon as a drawer of a new bill, the indorsee as the payee thereof and the original maker of the note as the accepter, and this is essentially a new contract. Hill v. Martin, 12 M. 183, and cases there cited; 7 L. 498 ; 11 R. 497 ; 9 M. 194.

If, therefore, to give judgment for the plaintiff in this case would be to enforce any contract of sale, it would be a contract for the sale of half a drug store, and not for the sale of persons,

i Suppose A, desiring the death of his neighbor, makes his note to the order of B, a hired assassin, and B transfers the note to C, who indorses it in blank and before maturity pays it to D for a pew in church. The innocent indorsee for value brings suit against A. It is clear that contracts to procure and commit murder are “null and void and shall not be enforced by the courts of this State and this provision is as imperative as if it formed an article in our Constitution. Their nullity is absolute, being founded on considerations of public order and good morals. Their execution is perpetually resisted by the law. But would A be listened to if he should say that D must not recover lest an agreement to do murder should thus be enforced. I think not. For it would not be the contract to procure assassination, or the contract to do murder, that would in such case be enforced; but that other obligation, that the maker, as accepter of a bill drawn by C, in favor of P,. inpayment, for a,pew in. church, would pay P the amount of the bill.

It is true that tlie law may declare* a note void in the hands of even tlie innocent indorsee, though the spirit of modern civilization is opposed to. such enactments, and if: the one hundred and twenty-eighth. article of the. Constitution declared that-notes like the one in suit, should be void in the hands of a. party-like-the. plaintiff I could not. urge the- views above expressed. But the Constitution does not so declare. It declares the nullity of contracts for the sale of persons, It. embeds in fundamental law the doctrine of Wainwright v. Bridges, a suit between the’original parties to. a slave note. But .I must confess my inability to see how, either directly or by implication, it forbids the enforcement of a bill drawn in favor of the plaintiff in;this case, in consideration of the sale of half a drug store, and in the eye of the law accepted by defendants.

In the case of the Canal Bank v. Templeton, 20 Ann. 141, decided about one year after the- case, of Wainwright, the defendant was sued upon his promissory notes given for the price of slaves. The defense was set up, as in this case and the consideration proved. But the court in a unanimous opinion said:

“We are satisfied from the evidence in the record, which is not rebutted, that the plaintiff is the bona fide holder of the notes sued on, indorsed and transferred to it previous to their maturity for a good consideration, without notice, and that no. want of consideration, even by the emancipation of slaves or otherwise, between the original parties, can be urged against the plaintiff.”

And.the judgment given against the defendant.was affirmed.

This decision was rendered in February, 1868, prior to the adoption of tb,e present Constitution; but shall it-.be said that the judges who rendered it thereby enforced' a “contract for. the sale.of persons,” and that they would have gone- on enforcing, such contracts if they had not-heen checked by article 128 of the hew Constitution? I trust not.

I must still believe, that the constitutional, provision does not apply to the case at. bar.

The s.ame. considerations, seem to furnish, a. reply to the statement that the-plaintiff cannot recover beoan.se the note as a contract was smitten through with nullity or destroyed by the destruction of slavery. Admit this nullification or destruction, is the note any less valid than one which, is mill and void ab initio ?■ The plaintiff- is the holder of a note which, as a. contract, between the maker, and payee is said to have been destroyed,, by .war, by proclamation,, and by constitutional amend-, ment. Another-man is the holder of a note, which, as in the illustration I have- used, was given as. th.e .price, of blood, and was, between, maker, and payee, originally and always,- a. mere nothing. .Yet-tho'latter we. are told shall recover and not the former. I- am unable, to.perceive a reason for. this discrimination. Grant that the contract between the maker and payee of the note in suit was without consideration, or grant that itg consideration was immoral and unjust; grant that this consideration and this contract have been swept, away, still that other agreement by the makers.to.pay the bill drawn upon them by the indorser-, Burges, in favor of the plaintiff, remains untouched. Its. consideration, the sain of half a drug store, was lawful and it ought to be enforced.

If this theory of the case be deemed fanciful, it may be laid aside without injury to the plaintiff ’s rights. All' will agree that as dona fide • holder for value, and before maturity of a promissory note, he must reco.ver unless the note has by law .been declared to be void eyen in such hands as his. Have-we any statutory or- constitutional provision making such a declaration?- I find none. It. is not claimed that there. is such a statute. Does article 128- of the Constitution make such declaration? By np means.. It declares-, contracts for the sale of persons tq be null- and Void. The note:, in suit is not a contract for the sale of persons, or for the sale of anything. It- is only avoided by implication, as an evidence of a debt incurred by a purchase of persons. But this implication ought not to involve any party but the payee, who was a party to the sale. If the article declared that promissory notes given for the price of persons, should be null and void even in the hands of third and innocent parties, the case would be different, but it makes no spell provision.

But if. the intent and effect of the article is to avoid the note in suit in the hands, of plaintiff, the article itself is null and void, being in conflict with the Constitution of the United States which declares that no State shall pas.s.a law impairing. the; obligation of contracts. I prefer to-adopt a construction which will not. bring- the makers of our Constitution in direct conflict with the supreme law of the land.

Dor these reasons I am of opinion that the plaintiff should have judgment.


author: Lcdelixg, C. J.

text:
    No. 176
    M. Miller v. William Bedell et als.
    The specifying of some of the ways by which a party has been imposed upon and deceivod does not preclude the petitioner from giving eyideijQe of other acts of deception under the general allegation of fraud.
    A .Li. PPE.AL from the. District Court,, parish of Caddo. Taylor, J.-, .v.iee Levisee, recused.

      A. W. 0. Sicks, fox. plaintiff and appellee. J. W. Sanean and O. Oí Henderson., for defendants-and appellants.
   Lcdelixg, C. J.

This is an action to,annul transfers of real estate situated in the city of Shreveport, on the ground of fraud.

The defendants moved to dismiss the suit, in the District Court so far as it affects tlie title to lot nine, on the ground that the plaintiff had parted with her title to this lot since the institution of this suit. The sale is conditional only, and the event upon which it depended had not happened and could not happen until the final decision of this cause.

The exception was correctly overruled.

The defendants took a bill of exceptions to the ruling of the judge a quo admitting evidence to prove knowledge by Sartin & Bayless of the fraud of Bedell and their complicity with said Bedell on the grounds that no specific act of fraud is charged against them, and no general allegations of fraud or knowledge of fraud is alleged against them.

We think the pleadings of the plaintiff and defendants, taken together, sufficiently presented the issue of fraud as to all the defendants. The answers of the defendants show that they understood that to be the issue in the case. They were not surprised by the evidence, and should have been prepared to rebut it, if they could. We think the court a qua correctly received the evidence.

The defendants took another bill of exceptions to the ruling of the District Judge admitting evidence to prove other or different aets of fraud from that alleged in the petition, on the ground that it was irrelevant and inadmissible under the pleadings. The allegations of the •petition are that the deed was procured by u misrepsentations and fraud ;” that the plaintiff had been “ imposed upon and deceived,” and that she had been “ defrauded and cheated.” Specifying some of the ■ways by which defendant, Bedell, had imposed upon her, did not prevent proof of other acts tending to establish fraud.

Defendants took a third bill of exceptions to the ruling of the judge refusing to sustain the exception of defendants to the action.' It is unnecessary and irregular to retain bills of exceptions to such interlocutory orders.

We have already affirmed the correctness of the ruling of the judge on this exception. It is not necessary to notice the bills of exceptions taken by the plaintiff.

On the merits, we see no reason for disturbing the judgment of the court a qua based on a verdict of a jury.

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


text:
    No. 4.
    State of Louisiana v. A. Jackson, E. Smith et al.
    On Behearing.
    The statute of the State of Louisiana of 1855, authorizing prosecutions by the District Attorney on information, is not in conflict with the fifth amendment to the Constitution of the United States, which declares “that no person shall bo held to answer fora capital or other infamous crime, unless on a presentment or indictment by a grand jury.” The restriction by this amendment to the Constitution of the United States has no application to the State courts.
    from the Ninth District Court, parish of Eapides. Lewis, J.

      Pierson, District Attorney, appellant. M, Lijan, for defendants and appellees.
   Wyly, J.

The State lias appealed from a judgment rendered in favor of the defendants, quashing a hill of information, in which they are charged with an assault with intent to murder James M. Hays.

The proceeding was excepted to on the ground that the crime charged being infamous could not be prosecuted by bill of information, but could only beby indictment or presentment of a grand jury, according to the fifth amendment of the Constitution of the United States, which says that no person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment by a grand jury. * * *

There is no pretense that the form of the prosecution is irregular or contrary to the constitution and laws of this State, but it is contended that the act of 1855, and the constitutional provision of this State authorizing the proceeding, are both in violation of the article of the Constitution of the United States referred to, and consequently null and void.

To this proposition we cannot assent.

This court has often recognized the validity of prosecutions of this character. State v. McGinnis, 12 A. 743; State v. Kerr, 13 A. 243; State v. Mullen, 14 A. 570.

In the State v. Ross (14 A. 364), where the grand jury had refused or failed to present an indictment, it was held that the State was not barred, and the prosecution by bill of information could be maintained.

The law upon which the bill of information is founded is not viola-tive of the fifth amendment of the Constitution of the United States.

It is now settled that this amendment of the Constitution of tlio United States does not extend to State courts; it is exclusively a restriction upon Federal power, intended to prevent interference with the rights of the States and of their citizens.” Fox v. Ohio, 5 How. 434; Livingston’s Lessee v. Moore, 7 Pet. 551; Barron v. Mayor of Baltimore, 7 Pet. 243.

It is therefore ordered that the judgment appealed from be annulled ; that the motion to quash be set aside, and that the cause be remanded, to be proceeded in according to law, the defendants paying costs of appeal.


text:
    No. 146.
    Norton & Macauley v. John O. Pickens.
    A commercial firm holding a note in favor of one of its members without indorsement, given for money loaned by the firm, can not set up that they are innocent third holders for value against the plea of failure of consideration.
    from the District Court, parish of Rapides. Lewis, J.

      Ji. A. Hunter, for plaintiff^ and appellees. 'Ryan & White, for defendant and appellant, Í
   IIowe, J.

This suit was instituted, on a promissory note for $5000, made by defendant to the order of Alexander Norton, one of the plaintiffs’ firm, dated July 14, 1862, and payable twelve mouths thereafter.

The defense was that the note was given by defendant for a loan of Confederate States treasury notes.

The ease was tried before a jury, who gave a verdict for plaintiffs for $3333 33, and from the judgment rendered upon this verdict, tlie defendant has appealed.

The evidence sufficiently establishes the fact that the note was given for a loan of Confederate money. The consideration was illegal and void, and the judgment must be annulled. 19 Ann. 161, 164, 257, 288, 359; Constitution, article 127.

It is contended by plaintiffs’ counsel that they are bona fide holders, for value and before maturity, and caff net, therefore, be affected by the illegality of the consideration as between the maker and the payee. But we do not thus understand the facts. Alexander Norton, the payee, was one of the plaintiffs’ firm, the loan for which the note was given was made by plaintiffs’ firm to the defendant, and the note described iu the petition and copied in the record was not indorsed, and therefore never transferred by Alexander Norton to the plaintiffs, Norton & Macauley. It is apparent, then, that Alexander Norton, when he became payee of the note, became such on behalf of the plaintiffs as part of the transaction in which the loan Was made by the latter.

Eor tlie reasons given, it is ordered and adjudged that the judgment appealed from be avoided and annulled, and that the suit be dismissed at plaintiffs’ costs.


text:
    No. 184.
    Succession of E. H. Pomeroy. Opposition of C. V. Hunt.
    The allegation of a married-woman in her petition’that eheia “joined.-and-authorized” by her husband, is not sufficient authority to enable her to prosecute the suit.
    A married woman can only appear in court with her husband appearing also, or by showing his authorization otherwise than in her own averments.
    from Parish Court, parish of Caddo. Oreswell, Parish Judge.

      Nutt & Leonard, for opponent and appellant. T. T. Land and George 'Williamson, for executor, appellee.
   Wyly, J.

A motion is made to dismiss this appeal because it has-been taken by tlie appellant, who is a married woman, without the authorization of her husband.

We do not find any evidence in the record of her husband’s authorization either to take this appeal, or to prosecute the suit in the lower court.

In her petition of opposition, in her motion for appeal and in her appeal bond she states that -she is “joined and authorized” by her husband, but the latter has not joined in:tbe-suit in the lower court ñor in the appeal; he has made no appearance whatever.

In Lacour v, Delamarre et al., 2 A. 140, wliere the only evidence of tlie wife’s authorization was her pwn statement to that effect in her petition, this court said: “We have hold that where the husband and wife appear in the same suit as plaintiffs or defendants, or the husband appears in court as authorizing his wife, the authority on the part of the husband to the wife’s appearance necessarily follows, but in this case there is no appearance on the part of the husband in person or by attorney. We consider the rule well settled, and the authorities cited by the counsel for tlie apx>ellee are conclusive.”

The same doctrine was affirmed in Bray v. Bynum, 2 A. 879, where a married woman’s appeal was dismissed because it did not appear that she had been authorized to defend the suit below, and the husband did uot join in the petition of appeal, her averment that she was acting with his assistance not being sufficient.

In our opinion a married woman can only appear in court with her husband appearing also, or by showing his authorization otherwise than in her own averments or that of her counsel. C. C. 123; 111.230, 468; C. P. 108 ; C. P. 107, 118. .. •

If the husband refuse, or be under interdiction or absent, she may be authorized by the judge to appear in court. C. C. 126, 120.

The motion to dismiss must prevail.

It is therefore ordered that this appeal be dismissed at appellant’s costs