text:
    No. 10,888.
    Mrs. M. M. Fisher and Husband vs. Board of Directors of City Schools of New Orleans et al.
    The Board of Directors for the Public Schools of New Oi'leans have the control of the school funds placed in their charge for the maintenance of the schools.
    It devolves upon this board to compel corporations to comply with their ordinances levying taxes for the schools, if they fail to comply with their obligation in this respect.
    The Board of Directors of Schools have authority to stand in judgment; to institute or to defend suits. A creditor of the School Board has no right of action against the City of New Orleans to compel the city to i-ecognize the validity of his claim.

      •School certificates of indebtedness issued by the Board of Directors of the Public Schools for the years 1874, 1875 and 1876 are not debts of the City of New Orleans, and actions for the purpose of having them recognized as valid claims can be maintained against the School Board, as it is authorized to pass on the validity of the evidence of indebtedness of every one who alleges that he is a creditor.
    The City of New Orleans turns over amounts collected for schools to the Treasurer of the School Board. This officer notes the taxes of different years and applies the amount to the payment of certificates from the taxes of those years from which the creditors are entitled to payment.
    PPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      Charles Louque for Plaintiffs and Appellees.

      Carleton Hunt, City Attorney, for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sues as owner of school certificates to recover the sum of $8097.17, with legal interest from judicial demand.

These certificates were issued to teachers in 1874, 1875 and 1876, by the board of directors of the- public schools for salaries earned •during those years.

The petitioner prays for a judgment against the board of directors of the city schools, payable from the school tax levied prior to 1879 by the city of New Orleans.

The defendants deny any indebtedness.

Judgment was rendered recognizing plaintiff as a creditor of the school fund of the city of New Orleans for the amount claimed, with legal interest from judicial demand, to be paid in due course out of the school tax levied prior to 1879.

From this judgment the school board and the mayor of the city of New Orleans appeal.

Plaintiff does not contend that her certificates are due-by the City ■of New Orleans, but sues, she statesinher brief, “ to have whatever claims she has against the school fund recognized and paid whenever the city is enabled to collect these funds.”

Under the school law as it was when these certificates were issued the city can not be held as a debtor of the said plaintiff.

The school board was an independent authority organized under a separate act of incorporation vesting them with distinct functions free from all other local government. The schools were not city schools, but schools established by the State to instruct the children in the several parishes.

They were styled the common schools of the State, and were placed under the management of a State Board of Education.” The State was divided into six school divisions, and superintendents were appointed in each, with salaries payable hy the State treasurer out of the public school fund.

The members of the school board for the city were appointed by the State board of education.

These boards employed teachers, fixed salaries and incurred expenses for which they were responsible.

They also issued certificates to teachers representing their salaries.

The statute required an estimate of debts and expenditures by this board in October, each year, which was submitted to the Oity Oouncil.

The latter complied with the requirement, and during the years 1874, 1875 and 1876 the sum of $844,677.16 was collected for the schools and there was deposited in the hands of the School Treasurer an amount of cash and certificates which more than balanced the said amounts collected.

The records disclose that in compliance with an ordinance to carry into effect provisions of Act 49 of the General Assembly of 1880, the authorized officers of the City of New Orleans received in payment of municipal taxes due anterior to 1879 a part of the school certificates issued prior to that year.

There are uncollected balances for the schools due by tax debtors which will form part of the fund for the payment of teachers’ salary of 1874, 1875 and 1876.

The question is one of recognition of the claim vel non.

Judgment against the School Board recognizing the claim serves every purpose of a recognition.

This body has authority to pass on the validity of any evidence of indebtedness against the school fund; to stand in judgment, to institute and defend suits.

One of its creditors has no right of action against the City of New Orleans to compel her to recognize the validity of a claim.

If she fails to comply with the law relating to school funds, the board has authority to enforce compliance.

It is not suggested by the pleadings that there has been any failure in this respect.

This court has decided that there is “ no privity between the City of New Orleans and the holders of school certificates, who are exclusively creditors of the School Board.” Labatt vs. New Orleans, 38 An. 289.

The holders of these certificates had, under Art. 36 of 1873, the right to recover payment out of the funds in the hands of the School Treasurer, levied for the years during which the' salary was earned.

Under that act the board in contracting debts was limited to the revenue of the year during which the salary was earned.

Similar restriction is contained in Act No. 123 of 1874.

According to the terms of the last mentioned act the remainder, after payment of the year for which collected, was to be applied to •the expenses of the succeeding year.

Under Act 49 of 1880, school certificates issued for 1874, 1875 and 1876 were made receivable for any taxes due prior to 1879.

This had'the effect of creating one fund for school indebtedness prior to said year.

Under the present law, Art. 81 of 1888, the Board of Directors have no authority to bind the city to the payment of any amount.

They administer school affairs without any possible control on the part of the city authorities.

The treasurer of New Orleans is ex-officio treasurer of the board and receives all funds collected for the support of the public schools.

Upon him devolves the payment of pay rolls and evidence of indebtedness to teachers and other employés of the board.

He pays upon the order of the School Board.

Judgment against the School Board for a recognition of the claim serves every needful purpose for which suit has been brought.

The judgment appealed from is amended by dismissing the claim against the city and affirming the judgment against the Board of School Directors.

As amended judgment is affirmed at appellee’s cost.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,965.
    B. Penouilh, Tutor, vs. S. Abraham.
    A writ of seizure and sale is not prematurely issued when one instalment of the debt is due.
    The property should be sold for cash to meet the matured note, and on terms of credit to correspond with the unmatured notes.
    'When the prayer of the petition asks that the mortgaged property be sold for cash to pay one instalment which is due, and the balance of the price on credit to meet other instalments not due at the time, and all of the nnmatured instalments fall due before the case is disposed of, the court may order the sale for cash to pay all matured instalments.
    APPEAL from the Twentieth District Court, Parish of Lafourche. Beattie, J.

      E. A. O’Sullivan for Plaintiff and Appellant.

      L. P. Caillouet for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.

This case, on substantially the same issues, has been before this court at two terms, and the facts in the case and the law governing them are fully set forth in 42 An., page 326, and 43 An., page 214.

In the first case, all the defences urged by the plaintiff in injune - tion, in the proper interpretation of the agreement therein referred to, except as to the time when the payments should commence, were effectually, and we had hoped finally, disposed of.

In the last case the plea of res adjudieata, filed by defendants, was overruled and the ease remanded to be tried on its merits.

The District Judge in his written opinion reviewed the history of the case in the several phases of this ’protracted litigation. He properly concluded that in the 43 An., page 214, in referring to what was said in the reasons given for refusing a rehearing in the case reported in 42 An., we made no suggestion as to the date from which the time granted to the debtor should commence to run.

In this case we said: “Inthe course of our opinion on the application for rehearing, we accepted as true the claim that under; the agreement the delays .granted ran from its date.”

The language was qualified in the succeeding paragraph, which is copied and commented on in this case.

The-judge a qtto therefore concluded that the only issue before-him was as to the time when the delay commenced.

Taking it for granted that we had fixed September 12, 1888, as the time from which the delay should commence, the'plaintiff in the-order of seizure and sale alleged .this date from which the maturity of the notes should date. The District Judge fixed the date January 5, 1889, the date of the purchase of the mortgaged property by Abraham, when as stated in the opinion in 42 An. the status of -the' parties was fixed.

The agreement fixed no date for the delay. Abraham was to sell to the tutor of the minors, their portion of the plantation held in indivisión, when he should get possession and ownership of the property through the contemplated partition proceedings.

The price was the amount of that indebtedness with costs added.The partition suit was abandoned and 'Abraham became the owner of the property through another judicial process. The only means of now executing the agreement is by allowing the time stipulated in it for the tutor to pay the indebtedness of the minors. The delay, therefore, could only commence from the time when Abraham was in a situation to carry out the agreement, when if the tutor had tendered the money he would have been able to transfer the property to him. He was in this position on the 5th of January, 1889.

When the order of seizure and sale issued, one instalment was due.

The writ did not therefore issue prematurely.

The District Judge rendered judgment dissolving the injunction, so far as it arrested the seizure and sale of the property, on the first instalment which was due and perpetuated the injunction for the credit instalments which had not matured, reserving to the seizing creditor the right to proceed upon the second and third instalments at the proper time and in proper form.

A special mortgage creditor whose claim is payable in instalments may on non-payment of any instalment have the property sold to .pay the whole debt in cash for so much as is due, and for the remainder on terms of credit corresponding with the unmatured instalments. Code of Practice, Art. 686.

Daring the pendency of the injunction all of the deferred payments have become due. The defendant in the injunction prays to amend the judgment, so as to order the sale to be made for cash to pay all the matured instalments.

The court on dissolving an injunction against an order of seizure and sale for the payment in cash for an instalment due, and on time for those not due, may order the whole sale to be made for cash if the latter mature pending the injunction. Dwight vs. Richard, 5 An. 365; McOleland vs. Bideman, 5 An. 563; McOalop vs. Fluker, 12 An. 551.

All of the instalments secured by the mortgage not due at the time the order of seizure and sale issued have matured since the issuing of the injunction.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to dissolve the injunction absolutely and to order the sale of the property mortgaged for cash to pay the entire mortgage debt’and interest, cost and attorney fees, as stipulated in the act of mortgage. In other respects the judgment is affirmed.


author: Bermudez, O. J.

text:
    No. 10,991.
    The State ex rel. Paul A. Marchand vs. Judge of Civil District Court for the Parish of Orleans, Division A.
    Prohibition will not issue, on a charge of usurpation of jurisdiction, unless a plea was filed and improperly overruled to such jurisdiction, and when, outside of the matter of form in which it was exercised, the court was competent to render the judgment complained of.
    An omission to allot a civil case, in the Oivil District Court for the parish of Orleans, is not an absolute nullity. The allotmentmay be formally or tacitly waived, or abandoned. After this has been done, the failure can not be made a ground of complaint. It has been held otherwise, in a criminal case.
    This court will not supply a refused injunction, unless in a very clear case, where it was declined by a judge who has no discretion to deny it, and who is bound by law to allow it.

      CerHorari does not lie to ascertain the intrinsic correctness of proceedings; It lies sometimes to test the jurisdiction and usually ascertain the validity of proceedings in point of form. It does not lie where the proceedings, if irregular, have been ratified, and where a court has the inherent competency to do the act complained of and has performed it without objection.

      ^PPLIOATION for Prohibition.

      Ker & Duvigneaud and H. E. Upton for the Relator:
    1. Where the mortuaria proceedings in a succession show a full and complete administration, closing with putting in possession the widow and heirs of the deceased, the proceedings can not be reopened and another administration inaugurated In such cases the probate jurisdiction determines and can be no more revived. «35 An. 314. A prohibition lies to prevent such a course. 22 An. 81; 28 An. 446; 29 An. 837; 25 An. 225, 335; 28 An. 367; 30 An. 93; 34 An. 31; 35 An. 314.
    "2. A prohibition can issue in any case, whether appealable or not, at the discretion of the court, to arrest a judicial usurpation of authority. 33 An. 1426 and 1427; 42 An. 72; 33 An. 1285, 1359; 40 An.1,20, 393; 34 An. 758.
    3. A court which has no jurisdiction over a cause ratione materias exceeds the bounds of its authority when it issues therein an injunction. 37 An. 605.
    4. Where the heirs have been recognized as such, and put in possession, they should be sued before a court of ordinary jurisdiction, even if they be minors. 27 An. 686; 28 An. 875; 30 An. 139; O. P. 906; 25 An. 125, 335; 28 An. 446 ; 24 An. 114.
    ■5. Certiorari issues only to test the validity of proceedings, to pass upon questions of form, and not of substance. 37 An. 127, State ex rel. Race vs. Judges.
    6. The objection that the supervisory power of the Supreme Court can not be exercised in appealable cases is obsolete, and has become a legal nuisance. 40 An. 20, 393.
    7. Consent can not give jurisdiction when wanting ratione materice. The court is bound ex officio to notice it. 2 La. 226; C. P. 93; C. P. 606; 1 X. S. 200, 703; 3 X. S. 136; 14 La. 177; 6 R. 365; 11 R. 77; 12 An. 859.
    5. The instant cause should have been regularly allotted under Art. 130 of the State Constitution. 3.3 An. 1426, et seq.

      B. B. Forman for the Respondent :
    1. Relator has no interest in the matter.
    "2. Xo objection having been made to the jurisdiction of Judge Ellis to hear and determine the question, he was competent to decide and to appoint a liquidator. Buisson vs. Lazarus, 33 An. 1425; Pironi vs. Riley, 39 An. 302.
    3. A petition by a surviving partner to settle a partnership and appoint a liquidator thereof, which has been dissolved by the death of one of the partners, is properly filed and docketed in the succession record, and the division of the court to which the succession is allotted has jurisdiction to appoint a liquidator of such partnership. Constitution, Art. 130. Rules Civil District Court, Sec. 10, Rule VI. O. P. Art. 164, Sec. 4, and Art. 1022. Succession Harvey (not reported).
   The opinion of the Court was delivered by

Bermudez, O. J.

This is an application for a prohibition coupled with a prayer for a certiorari.

The relator complains that the District Judge has usurped juristion in the matter of the succession of Ernest Marchand, by appointing, after the succession had been closed, One DeBlois liquidator of the partnership alleged to have existed between him and the deceased, and by ordering, at his instance, the sale of property to pay the debts of the concern.

The relator avers that he was a partner of Ernest Marchand, was. appointed administrator of his estate; that his widow and heirs have been recognized and put in possession of the property left by him; that if DeBlois was entitled to be appointed liquidator he' should have brought proper proceedings outside of the mortuaria- and had the matter allotted, under the law, to one of the divisions, of the Civil District Court, which was not done; that the appointment made in the mortuaria is a nullity which carries with it that of the order of sale.

The District Judge returns, that the matter of the appointment of DeBlois was one growing out of the succession proceedings, which, under the rules of the Civil District Court, did not require any allotment; that the proceedings were carried on contradictorily with all-the parties concerned, who were cited, and appeared without declining to the jurisdiction; that, after hearing, a judgment was rendered on August 5, 1891, which was signed after the overruling of a motion for a new trial, making the appointment of the liquidator, from which no appeal has been taken.

The District Judge further urges that the relator has no interest,, as he avers that he is the discharged administrator of the succession of Ernest Marchand.

It is unnecessary to decide whether the appointment of a liquidator was or not properly made. It is a question which can not be raised and determined on this application for a prohibition.

It is manifest that the Civil District Court for the Parish of Orleans had jurisdiction over such a matter, and that if in exercising its powers, it has erred, the remedy is not by a resort to this court, under the provisions of Art. 90 Of the Constitution, but by an appeal, this being one, in which it can be obtained.

It does not appear affirmatively that the relator, in the proceedings for the appointment of a liquidator, ever excepted to the jurisdiction of the judge, and it is the settled jurisprudence of this court that prohibition will not issue, unless it appears that the jurisdiction was pleaded to and the plea was overruled. The relator has not appealed from the judgment and can not substitute the application for a prohibition, to an appeal.

The functions of the two remedies are glaringly different.

The omission to allot a civil case is not an absolute nullity. The allotment may be formally or tacitly waived and abandoned; and after this is done, the door for a complaint that it did not take place is effectually closed. This court has held differently in a criminal case. Hale vs. Adotto, 34 An. 1.

The failure of the relator to complain of the absence of an allotment, either by exception, seasonably set up, or otherwise, prevents him from pressing that irregularity here if it be a factor in this' matter.

The respondent urges besides that the relator is without interest, as he avers that he was discharged as administrator of the succession of E. Marchand; but the relator does not claim that in that capacity, or as an heir, or otherwise, that he is interested in the succession. He assumes the attitude, in his petition, of a co-partner, and complains that a liquidator was illegally appointed to take charge of the partnership in which he is concerned as a member.

The relator complains of the order of sale granted at the instance of DeBlois as liquidator.

It may be said that if this order is illegal the relator should have set forth its illegality and sought an injunction in the lower court, and that if that tribunal had jurisdiction to make the appointment of one to liquidate the partnership, it sui’ely had the power of ordering the sale of its assets to discharge its liabilities.

It does not appear that he has sought relief in that form below, and he can not be allowed to invoke the powers of supervision of this court in the present form, to supply that omission.

This sort of provisional relief should not emanate from this court, unless in very clear cases, in which a District Court has arbitrarily declined to grant it, in one of the instances in which, upon proper and full avex*ments, the law leaves no discretion to such court, but dictates the granting of the remedy, and where injury would evidently be sustained.

The relator has also applied for a certiorari.

It is unnecessary to give this application any extended attention.

The writ issues sometimes to test a, jurisdiction, and usually to ascertain, not the intrinsic correctness of the proceedings, but their intrinsic validity in point of form.

These questions have been considered. We have determined that if the allotment was irregular, the irregularity has been acquiesced in and ratified, and that the Civil District Court had jurisdiction and was competent to do the acts complained of, in the absence of any 'objection to the exercise of its powers in that respect, in the form in which it did.

It is therefore decreed that the preliminary orders herein made be annulled, and that this, application for a prohibition and a certiorari be refused.


text:
    No. 10,922.
    Alexander Brelet vs. James Mullen.
    It is universally held that a ciiminal proceeding having been brought or prosecuted maliciously, and without probable cause, affords, when terminated, the basis of an action in damages for malicious prosecution against the one bringing or prosecuting such proceeding.
    Inorderthata plaintiff may maintain such an action, tlwee tilings must concur: 1. The motive must have been malicious; 2. The suit must have been instituted without cmy probable cause; 3. The suit must have terminated after . trial of its merits, in favor of the accused.
    It is malice, composed of bad feeling andknowledge of the want of probable cause, which creates liability.
    Public interest and a proper administration of justice require that such actions should not be maintained except in clear cases.
    Courts will not inflict damages on a party resorting in good faith to law for the protection of his rights, rather than taking the chance of a recourse to arms or tamely submitting to a usurper1
    APPEAL from the Civil District Court for the Parish of Orleans. King, J. _

      Buck, Dinkelspiel & Hart for Plaintiff and Appellee:
    1. The principle that proof of both want of probable cause and malice must concur in suits for damages for malicious prosecution has its strictest application only in cases where the prosecution was of a public character and into which there entered none of the elements of private interest.

      2. Malice is presumed where there is a total want of probable cause. 33 An. 392; 15 An. 421; 9 An. 219; 4 An. 377.
    3. Where there is a total want of probable cause and where a party acts from motives of private interest, the advice of counsel will not exempt him from liability. Glascock vs. Bridges, 15 An. 672.
    4. Probable cause means reasonable ground for belief, supported by circumstances sufficiently strong to warrant a cautious man in the belief that the accused is guilty of the offence charged.
    The prosecutor may have been honest, and may have actually believed in the truth of the affidavit made by him, and still be liable for damages, if he acted without reasonable cause. Doux vs. Lieux, 33 An. 392.
    5. The use of criminal process to enforce civil claims is an intolerable abuse, even where the claim exists, but if theclaim be unfounded, it shows areckless ness of the rights and character of others which amounts to malice. 6 An. 577.
    6. In such cases the quantum oí damage is left to the discretion of the court; and where it is shown that a man far advanced in years, with a family consisting of a wife and many children, has been subjected to the indignity of a groundless arrest, upon a charge which, if true, amounted to a felony, and which charge was ostentatiouslypublished in the newspapers under sensational headlines, two hundred andfifty dollars allowed by the court a qua is an inadequate compensation, although there is no proof of actual pecuniary loss except the attorney’s fee for defending the plaintiff in the criminal prosecution.

      W. B. Bicharclson and James Timony, for Defendant and Appellant, cited: 34 An. 246; 35111. 504; 98 U. S. 195.
   The opinion of the conrt was delivered by

Bermudez, O. J.

This is a suit in damages for malicious arrest and prosecution, for $5000.

The petition contains the usual charges of malicious arrest and prosecution without probable cause, discharged after trial and injury sustained; and the answer is a denegation of the averments.

Prom a judgment for $250 by the judge the defendant appeals, and the plaintiff, on appeal, asks an increase to the amount originally claimed.

It appears that in 1883 a city ordinance was passed, in pursuance of which the side of the revetment levee, at the West End, not covered by grants to the New Orleans Oity Railroad Company, was divided into lots, and leases were made to various parties. One Oarroll, who obtained one of the leases or permits to occupy, placed some improvements on his spot, subsequently selling his rights thereto to one Minnie Wilson, who afterward, on the 10th of March, 1890, by public act, sold or transferred hers to Mary Boylan, the wife of defendant, including “ buildings and improvements,” for $600, acknowledged to have been paid.

Under the impression that a certain structure existing between the revetment levee and the shore proper and used as a “ necessary,” or a place of convenience for ladies and children, had been erected upon the spot, the permit to occupy which had been purchased by his wife, Mullen, the defendant, thought he had a right to take possession of it for her. Finding it locked, and informed that it was in the possession or under the control of the railroad company, he went to the Mayor’s office to ascertain how the matter stood.

The title to the spot was exhibited to the Mayor, who, after hearing Mullen’s complaint, compared it with the plan or map of West End, and found that it referred to lot No. 9 upon it. He then told Mullen the piece was his, meaning his wife’s, no doubt, and to go and take possession of it.

Thereupon Mullen, finding the building closed, entered it and took possession of it, placing obstructions within to prevent all entering into it.

Subsequently a woman who had the key of the building or structure, finding that the door had been barred, complained of her inability to enter, to the plaintiff, Brelet, who is a police officer commissioned by the Mayor, but paid by the railroad company at West End, and put on duty at that place. This authority broke into the structure, removed the obstacles and placed the woman in possession.

Subsequently Mullen remonstrated with the person who held the key, who directed him to complain to the company, if he had any cause for grievance.

Mullen did not follow the advice, but went again to the Mayor, stating what had occurred. The result of the interview was, that the officer was sent for by the Mayor, who stated the complaint against him and advised him on the subject favorably to Mr. Mullen’s pretensions. The officer denies that the Mayor told him not to break into the premises; but he states that had he done so, and had the railroad company directed him otherwise, to the reverse, he would rather have obeyed the latter.

Be this as it may, the fact is, that, after Mullen had placed other obstructions, Brelet broke into and entered the premises, putting the woman in possession again of it, thus championing, at his peril, the presumed rights of others.

Thereupon Mullen reported the fact once more to the Mayor, who told him to take possession again and to make a charge against whomever would interfere with the place.

Then it was that Mullen went before the Recorder, made a charge against Brelet for breaking and entering, upon which the latter was nominally arrested, taken to the Recorder, who released him without bail.

The matter came up before the magistrate, who dismissed the charge. Heard as a witness, he said that he did so because the case involved a title to property, which he declined to go into.

It appears that some publicity was given to the arrest of Brelet and that his discharge was also announced.

Under these circumstances, $5,000 damages are claimed.

“It is universally held, that a criminal proceeding having been brought or prosecuted maliciously and without probable cause, affords, when terminated, the basis of an action of malicious prosecution against the one so bringing or prosecuting such proceeding.” A. and E. Encyclopedia, Vo. Malicious prosecution, p. 25, Vol. 14.

“In order that the plaintiff may maintain this action, three things must concur:

1. The motive of the party instituting or prosecuting the suit or proceeding must have been malicious.

“2. The suit or proceeding complained of must have been instituted without any probable cause therefor.

“ 3. The suit must be terminated.” Ib. 17.

A thoughtful consideration of the facts of this cause does not impress the mind with the conclusion that Mullen acted with malice and without probable cause. The balance of probabilities rather preponderates the other way.

His whole course indicates that, as a faithful husband, anxious of protecting the interests of his wife, he did all' in good faith what ordinary prudence and discretion could suggest.

He really thought that the structure in question had been put up on the lot, the right of occupancy of which his wife had purchased from one, who indirectly held it from the city, who was a sort of warrantor.

Before using violence or even taking any legal step against the party who had broken into it and placed another person in possession of it, Mullen thought it prudent to go to the City Hall and ascertain from the officer representing the city as to his wife’s rights to the occupancy of the structure.

After comparing the act of sale with the map of West End, the Mayor told him the building was on the spot and to take possession of it.

He did so, but after the structure had been again broken into he returned to the Mayor and on his suggestion made the charge against Brelet,' the dismissal of which caused the bringing of the present suit.

There is nothing to show any actual or constructive malice in any of Mullen’s acts and doings in the premises.

Under the circumstances he had probable cause. If it be true that the structure is on the spot and that Mrs. Mullen acquired the right of occupying and enjoying the same, it is clear that she had a good cause to have any one arrested who interfered with it, the more so, as the Mayor, who is the authority who has control of the police force of the city, said and advised the bringing of the charge. The inquiry of the Mayor and, his suggestions are perhaps better than legal advice from counsel, learned in the law, in a case of this description.

It may be asked further, whether the prosecution has terminated, so as to justify a suit for malicious arrest, by one who had no authority to intermeddle as he did.

The merits of the charge were not inquired into and the dismissal of the proceeding does not amount to an acquittal. The recorder says that he would not go into the question of ownership and discharged the accused. Another accusation could be brought against him were it in time and did the facts warrant another prosecution.

In a kindred recent case in which the owners of two contiguous lots quarreled as to the spot on which a division fence should be placed, surveyors disagreeing, and the one caused the arrest and trial of the other, who was subsequently discharged, a suit in damages was brought, for malicious prosecution, this court had occasion to review somewhat extensively the law applicable to cases of this character and it declined to allow damages.

It held that it is not always that malice and want of probable cause can be inferred from the dismissal of a charge against an accused before a committing magistrate, and that if the discharge be prima facie evidence, the presumption may be rebutted.

It also held, that in the absence of facts showing malice and want of probable cause, which are essential ingredients, no recovery can be had.

It is the malice 'composed of bad feeling and the knowledge of the want of probable and just cause which create liability. Public interest and a proper administration of justice require that actions for malicious prosecutions should not be maintained without clear proof of malice and want of probable cause.

Courts can not inflict damages on a party for resorting in good faith to the law for the protection of his rights, rather than taking the chances of a recourse to arms or tamely abandoning the field to a usurper. Girotis vs. Graham, 41 An. 511; See also 15 L. 278; 12 An. 53; 11 An. 419; 33 An. 915; 36 An. 92, 102; 40 An. 374; 41 An. 301; 42 An. 32.

The circumstances of this case do not show malice in the defendant and a [want of probable cause and do not warrant the infliction of damages on him.

It is therefore ordered and decreed that the judgment appealed from be avoided and reversed and that there now be judgment rejecting plaintiff’s demand and relieving defendant from the claim; plaintiff to pay costs in both courts.


author: Fenner, J.

text:
    No. 11,009.
    Citizens Bank of Louisiana vs. David F. Miller et al. Interventions of Excelsior Planting and Manufacturing Company, and I. K. Ober et al. Citizens Bank of Louisiana vs. G. Ober & Sons Co. et al.
    Consolidated.
    i. The pact de non alienando inserted in a mortgage is nothing more than the ex pression in the act of a principle which, by the terms of Article 3397 of the Civil Code is, withoutUny expression, conclusively implied-in every mortgage.

      2. The effect given to tlie pact under our jurisprudence rests on no general principle of our existing law, but simply on a judicial interpretation of its effect as a contract between the parties. The pact historically considered. Donaldson vs. Maurin, 1 La. 89.
    8.That effect is clearly defined and limited to be nothing more than the conferring of authority to seize the property in the hands of third possessors by proceedings directly against the original mortgagor without notice to third possessors or other preliminary proceedings required in the ordinary hypothecation.

      i, The pact denon alianmido does not prevent the alienation of the property, nor does it deprive the alienees of any rights appertaining to third possessors, except so far as concerns the method of proceeding above indicated.
    5. Hence a purchaser of property subject to a mortgage containing the pact is a third possessor within the purview of Article 8107, and entitled to claim compensation for his improvements to the extent that they have enhanced the value of the mortgaged security,
    6. The improvements fall under the mortgage and are subject to seizure and sale, but equity requires that the third possessor should be indemnified to the extent that he has enhanced the value of the creditor’s security.
    7. In determiningtheamountrecoverable,thesolequestion is the extent to which they have enhanced the value, llepairs which only preserve the thing are not recoverable; only those improvements which increase the value.
    8. Assumptions contained in contracts to which the bank was not party have no effect in its favor, except as stipulations pour autrui of which the bank might have availed itself by accepting them, but which, until acceptance, were revocable, and conferred no right on the bank.
    9. Acceptance by the bank would have made it a party to the contracts, which it would have been bound to respect. Its whole course in this case has been an absolute repudiation of these contracts as in no manner affecting it, and it is estopped from claiming unoflatu an acceptance.
    10. Where a seizure takes place during the pendency of a plantation lease for the entire year, payable in kind out of the crops when gathered, the seizure only covers the proportion of rents due for the unexpired term after its date. The seizing creditor is also responsible for its like proportion of the necessary expenses of management required to realize the crops and which it left undisturbed after seizure.
    A PPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      Henry O. Miller for Plaintiff and Appellant:
    The mortgage creditor, with the act of mortgage containing the stipulation denon aUenmiclo, can not be affected by the expenditures which a third person, with full Knowledge of the mortgage, chooses to make upon the mortgaged property. If such expenditures are to be paid to the prejudice of the mortgage debt, the security arising from the mortgage would in most cases completely disappear. C. C., Art. 3397; Nathan ys. Lee, 2d N. S. 32; Guesnard vs. Soule, 8 An., p. 58; 1st Hennen’s Digest, p. 955, No. 1, et seq.

      One wlio purchases property mortgaged with the pact de non alienando is, with respect to the mortgage creditor, in no position better than the debtor. Hence such purchaser, least of ail when bound for the debt, can not, as against the mortgage creditor, claim to be paid money expended on the property. Such a purchaser is not a third possessor in legal contemplation. Ibid.; Civil Code, Article 3399, et seq.; O. P., Article 61, et seq.: Hennen’s Digest, p. 955, Nos. 1,10,12; 8th Rob. 165; 9th Rob., p. 69.
    The rents of the property seized becoming due after the seizure, whether in money or in part of the crops, accrue to the seizing creditor. See C. P., Art. 656; C..C., Art. 466; Summers vs. Clark, 30 An., p. 436; Townsend vs. Payne, 42 An. 914.

      Luce & Lemle on the same side.

      Elam & Daff, contra, cited: C. C., Art. 3407; 6 N. S. 114; 2 An. 365; 31 An. 218; 1 La. 39; 8 Rob. 167; 5 Rob. 50; 19 La. 413.
   The opinion of the court was delivered by

Fenner, J.

The Citizens Bank is the holder of a mortgage on the Point Pleasant plantation, executed in its favor by David P. Miller in 1838, and containing the pact de non alienando.

In the long period since the date of mortgage the property has experienced several changes of ownership.

In the .year 1882 its then owners transferred the property to the Excelsior Planting and Manufacturing Company, which was the owner and possessor in 1891, when the Citizens Bank, proceeding via executiva directly against the heirs of the original mortgagor, David F. Miller, obtained an order of seizure and sale in foreclosure of their mortgage. In this proceeding intervened the Excelsior Planting Company, claiming that during its ownership and possession of the property it had placed thereon valuable improvements, which had enhanced its value, and that to the extent of the enhanced value it was entitled to be reimbursed out of the proceeds of sale.

I. E. Ober et. al., mortgage creditors of the Excelsior Company, also intervened, claiming a ranking’ mortgage on whatever might be found due to their debtor for improvements. The Citizens Bank opposes the claims of the intervenors on various grounds, which will now be considered and disposed of seriatim, forming the issues involved in the first of these consolidated cases, which, though disposed of by one judgment, are entirely independent of each other.

1. The bank claims that a purchaser of property subject to a mortgage containing the pact de non alienando stands in the shoes of the original mortgage debtor, and can not, any more than that debtor himself, claim reimbursement on account of improvements made on the property; in other words, that he is not, in the eyes of the law, a third possessor, and is not, therefore, entitled to the protection of Art. 3407, C. O., which is the basis of intervenors’ claim, and which reads as follows:

“ The deteriorations which proceed from the deed or neglect of the third possessor to the prejudice of the creditors who have a privilege or a mortgage give rise against the former to an action of indemnification, but he can claim for his expenses or improvements only to the amount of the increased, value which is the result of the improvements made."

The question raised is an interesting one, and we have considered it very closely. To the student of our codes the effect given to the pact de non alienando is an anomaly, only explained by reference to its derivation in our law from the Spanish system.

The pact is nothing else than the expression in the act of mortgage of a principle, which, by the very terms of Art. 3397 of the Code, is, without any expression, implied in every mortgage, viz.: “That the debtor can not sell, engage or mortgage the same property to other persons to the prejudice of the mortgage which is already made to another creditor.”

It is difficult to understand why the fact that this principle is expressed in the act should confer any different rights than would, result from its conclusive implication.

There is no express provision in either our Civil Code or Code of Practice on the subject; and in the French law, from which our system of mortgages is derived, this pact de non alienando is not recognized as conferring any peculiar right.

Under the Spanish law, however, which long prevailed in this. State, the holder of a mortgage containing this pact was allowed to disregard subsequent alienations and to proceed directly against the original mortgagor and have the property seized and sold without notice to actual third possessors, which was required in other cases.

After the adoption of our code of 1808 the question arose as to whether this effect of the pact was not destroyed; but the court held that the mode of proceeding, under orders of seizure and sale, is still regulated in a great measure by the Spanish laws which remain in force in this country,” and that the mortgagee’s right under the pact de non alienando was not repealed. Nathan vs. Lee, 2 Mart. N. S., p. 82.

After the Act of 1828, which repealed the Spanish laws and rules of proceeding, the question again arose, and it was contended “ that there is now no express law in force to support any exception to the rules of proceeding established by the Code of Practice for hypothecary actions.” But the court said: Admitting this to be true, it is an universal principle, founded in reason and law, that effect must be given to all the parts of a written contract or agreement, and meaning to all its stipulations and phrases, unless such a construction leads to absurdity. It is also a general rule that owners of property must be presumed to know the titles and encumbrances under which they hold it. In applying these rules to the ease under consideration, it is evident that the mortgagee intended some advantage to himself by the introduction of the clause de non alienando, consented to on the part of the mortgagor, beyond what he would have had without such a pact or agreement, and that the only manner in which it can have the effect intended by the parties is to construe it into an authority to seize the property in the hands of the third possessors, without preliminary proceedings, as in case of an ordinary hypothecation. ” Donaldson vs. Maurin, 1 La. 39.

This decision is the fountain head of our whole subsequent jurisprudence on this, subject. We consider that it conclusively negatives the contention so ably urged by counsel for appellants. It distinctly holds that after the repeal of the Spanish law formerly prevailing in this State, there remained in force no law giving any exceptional effect to the pact de non alienando, and that whatever effect it had was derived from that law which the parties made unto themselves by their contract; it interpreted the meaning and effect of that contract and declared that its only effect was to authorize a direct seizure in the hands of third possessors, “ without preliminary proceedings, as in case of an ordinary hypothecation.” There are not wanting very clear reiterations of this principle in later cases.

On this point the court, in the case of Bondurant vs. Watson, 30 .An. 10, said:

“ We understand the effect of the pact de non alienando to be this: where a mortgage contains this stipulation, the sale by the mortgagor does not prevent the mortgagee from proceeding by the •executory process, and he need not give any notice to the purchaser.

“ A little reflection will show that the pact de non alienando conitains nothing that the law does not imply in every mortgage, * * We understand the effect of the pact to be this: where a mortgage ■contains this stipulation, the sale by the mortgagor does not prevent the mortgagee from proceeding by executory process and he need give no notice to the purchaser.”

Again, in Ducros vs. Fortin, 8 Rob. 167, the court said:

“ We do not consider the clause de non alienando as producing the effects supposed by the counsel. It does not absolutely prevent .a sale of the property by the mortgagor. The latter may transfer the property subject to the right which such a clause gives the mortgagee of proceeding summarily against it, as if it still belonged to the mortgagor. The purchaser acquires a valid title, which he can, in like manner, transfer to others.”

In Linn vs. Dee, 31 An. 218, the right of the purchaser of property subject to a mortgage containing the pact, to recover for improvements, was expressly recognized.

See also Ducros vs. Fortin, 8 Rob. 167; Jamison vs. Barelli, 20 An. 453.

The correctness of this is conspicuously illustrated by the particular form given to the pact in the very mortgage on which the bank proceeds, and which is derived from Sec. 24 of the charter as follows :

That 1 ‘ all property mortgaged to said corporation for any purposes may be seized and sold at any time, according to law, in whoso•ever hands or possession the same may be, notwithstanding any alienation thereof or change of possession by succession or descent to heirs or legatees, by last will and testament, or otherwise, in the same manner as if the same was in the possession of .the original mortgagor.”

This is the only pact of non-alienation contained in the charter or mortgage; and it has been held by this court to be the exact equivalent of the common pact de non alienando. Citizens Bank vs. Gillespie, 30 An. 1321; Id. vs. Freitag, 37 An. 271.

Now this section simply expresses, in plain language, the precise-sense and meaning which the jurisprudence above referred to had. held to be implied in the pact de non alienando, conferring no exceptional right beyond that therein stated of proceeding directly against the property without notice to third possessors. The learned lawyers who framed this charter in 1835 were obviously doubtful whether, under the changed law, the interpretation given to the ordinary pact would be maintained, and preferred to give a clearer expression to their contracts. They have done so, and can claim-nothing beyond what their contract gives them. This they have-been allowed, and have actually proceeded, in this case, by executory process against the original mortgagee, without notice to third possessors, in the very manner stipulated by their contract.

The apprehension, suggested by counsel, that mortgage creditors-may be deprived of their security by ruinous improvements on the-part of third possessors, has no greater application to the case of mortgages in which the non-alienation pact is expressed than in. that of all others in which the law itself writes it; and, besides, it has no foundation under a first application of the principle.

The improvements, by whomsoever made, fall under the mortgage. If they have not actually enhanced the value of the property the mortgagee absorbs them without compensation. If they have enhanced the value of the property, why should the mortgagee enrich himself at the expense of the third possessor?

In the language of Troplong: “ There is no room for doubt that-improvements placed by a third possessor fall under the mortgage- and are subject to seizure for its satisfaction, but equity requires-that the third possessor should be indemnified to the extent that they have enhanced the value of the property, quatenus res pretiosiorfaeta est; for the creditors who dispossess him should not be permitted to enrich themselves at his expense.” 3 Troplong, Hyp. etPriv., No. 836.

Or as Pont says: “ From a sense of equity, the -legislator, who forbids the third possessor to injure the creditor by deteriorating the security while in his possession, will not, on the other hand, permit the creditors to profit gratuitously by his improvements. Therefore, the law, after announcing the principle of indemnity for deteriorations, by a just reciprocity, assures to the third possessor the reclamation of the enhanced value given by his improvements.” 2 Pont, Priv. et Hyp., No. 1205.

This is justice, and it is, undoubtedly, the law, applicable equally to all mortgages, whether the pact de non alienando be expressed or only implied in the contract.

2. The bank further contends that the planting company and its authors, by reason of their assumptions contained in their contracts with each other, have become personally bound to the bank for the debt secured by its mortgage, and that this prevents them from asserting any claim for improvements. These assumptions are contained in contracts between these parties to which the bank was in no manner a party. They can have no effect in favor of the bank, except as stipulations pour autrui, of which,perhaps, the bank might have availed itself by accepting them, but which, up to the time of such acceptance, were revocable between the parties, and conferred no right whatever on the bank. Rev. C. C. 1890; Gravier vs. Gravier, 3 N. S. 207; Wiggin vs. Flower, 5 Rob. 406; Mitchell vs. Cooley, 5 Rob. 240.

The bank has never accepted. If it had done so it would thereby have made itself a party to those contracts, which it would thereafter have been bound to recognize and respect. Mitchell vs. Cooley, 5 Rob. 240.

While such acceptance would not have operated a novation of the debt, it would unquestionably have disabled the bank from disregarding these alienations to which it had thus made itself a party. The proceeding in this case and all the contentions of counsel which we have been considering are based upon the assumption that the bank is in no manner affected by those alienations, that, as to it, they produced no effect, and that it was entitled to treat them as if they did not exist. It is impossible to say this, and then, uno fiatu, to say I have accepted these stipulations, have made myself a party to these contracts, and hold you bound by them.

The case of Latiolais vs. Citizens Bank, 33 An. 1444, only held that by the acceptance of such an assumption the bank did not waive the pact de non alienando so far as the original mortgagee was concerned, who was the only party urging it. We said:

“The pact de non alienando was not abandoned. On the contrary, it was carried out by the proceedings against Sproule and others. Admitting that it was, however, what is it to the plaintiff, who is the administratrix of the succession of the original mortgagor, whether it ever existed at all?’-’ No'one could question the correctness of this decision, but it has no application to the point here at issue, which concerns only the rights of third possessors.

It is too late for the bank now to urge an acceptance of these stipulations, and it is conclusively estopped from doing so.

3. The final question under this branch of the case is as to the settlement of the amount due for improvements.

The principle applicable is very clearly stated by Toulier: “ The third possessor can recover only for improvements quse rem meliorem faciunt, and not for those quae rem deteriorem non sinunt. The only question is to ascertain if there has been an enhancement of value.

“Whether such enhancement result from expenses necessary in their origin but carried to the point of improvement, or whether they result from less urgent expenses, matters nothing, If there has been an enhancement, the right arises to claim it to the extent of the increased value. If there has been no enhancement, the third possessor has no recourse except against his vendor.” 3 Trop., Priv. et Hyp., No. 838 (bis), p. 505.

We have examined the evidence in the ease very critically. No doubt some of the improvements claimed belong to the class of ordinary repairs, merely intended to preserve the status quo, which the possessor was bound to make and for neglect' to make which he would have been responsible under Article 3407 as “ deteriorations proceeding from his neglect.” Of course, these could not operate to enhance, but only to maintain, the value. But the new church, the new cabins, the new fences, the new levee, and perhaps, to some extent, the extensive repairs to the dwelling house, are cer tainly entitled to consideration.

The following decisions relied on by counsel for appellant do not apply to this case: D’Aquin vs. Ooison, 3 La. 398; Haynes vs. Harbor, 14 An. 236; McKenzie vs. Bacon, 41 An. 13.

They relate to controversies between evicted possessors and their warrantors or vendors, or between such mere possessors in good faith and the true owner, which rest on different principles. In those cases the benefits derived by the possessor from his improvements, as well as their cost, are to be considered.

Here we have nothing to do with either benefits or cost, except with the latter as limiting the possible claim of the third possessor. We have simply to inquire whether the improvements have enhanced the value, or are of a nature which only prevented deterioration. The improvements are not to be considered separately, but in block, and it is to be determined whether, as a whole, they have enhanced the value of the security, and to what extent. The estimates of various witnesses on this precise question are found in the record. They differ widely. We think the judge a quo made, in his judgment, a very conservative and satisfactory estimate, and while both parties complain, we should not feel that, by disturbing, we could improve it.

II.

The suit of the Bank vs: Ober & Sons Co. et al. is to recover rents alleged to have been collected by the latter after the date of the bank’s seizure in the. case just decided.

It appears that early in 1891 Ober and others, vendors of the Excelsior company, had issued a seizure and sale in foreclosure of their mortgage under which the property was taken in possession by the sheriff. In that suit it was agreed between plaintiff and defendant that the sheriff should cultivate the property provided the plaintiffs would furnish the means, the expenses up to the date of sale to be taxed as costs, and D. M. Slocum was appointed as custodian and manager.

Slocum made contracts with tenants by which the land was leased for the year for rents payable in kind out of the crops.

Defendants (in this case) furnished the tenants with mules and teams to work the land and also advanced them supplies.

In May, 1891, the bank issued its executory process and seized the property.

After this seizure the cultivation and management of the plantation went on as before. Slocum remained in charge and devoted his time as manager, without interference by the bank.

As the crop was gathered and ginned he collected the rents. After he had collected rents to the extent of 8271 pounds of lint cotton, the bank, under an order from the sheriff, demanded delivery thereof and it was handed over to the bank.

He refused to give the bank any more of the rent cotton, the balance of which was shipped for account of defendants.

The total rent cotton collected was 22,000 pounds, worth in all about $1800, of which, as above stated, the bank received 8271 pounds, worth about $700.

It is claimed that defendants must pay over, without deduction,, the whole of the rent collected.

We consider the claim inequitable and untenable inlaw.

The rent, though it became due after the bank’s seizure, was contracted for and attributable to the year, and the defendants were-entitled to the proportion thereof due on account of the part of the year which had expired prior to the bank’s seizure, which took place on May 1, being four months, or one-third of the total rents. The bank should also be held for two-thirds of the expenses of Mr. Slocum’s management and services, which are shown to have been worth about $800 and which were necessary to the realization of the rents.

■A brief calculation on this basis will show that there remains due to the bank out of the rents just about the sum decreed in the judgment of the court below, which we see no reason to alter.

Judgment affirmed.