text:
    No. 10,132.
    Mrs. Julia A. Wirt et al. vs. Claude Pintard.
    'There can he no valid appointment of an administrator unless sack appointment is made under the authority of an order therefor, signed either by the judge or the clerk. Letters of administration issued in the absence of such an order are null and void.
    A PPEAL from the Fifteenth District Court, Parish of West Felii\ ciana. Yoist, J.

      Wielcliffe & Fisher for Plaintiffs and Appellants.

      W. W. Leake for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs, as collateral heirs of John Marsden Pintard, seek by this action to annul the letters of administration issued to Claude Pintard, the defendant, as administrator of the succession of the deceased.

Among other grounds of nullity urged is this (quoting):

That there was no order of the judge or clerk authorizing the issuance of the letters of administration.”

We find in the record no such order, and this omission was fatal. The appointment was an absolute nullity.

It was so held by the present Court in the case of the succession of Picard, 33 Ann. 1136, a case presenting the precise issue now before ns. It is unnecessary for us to report here the reasons which led ns to the conclusion stated. They can he found at length in the opinion then delivered, which we re-afflrm.

The application for the appointment in question by the defendant •was regular, and notice of the application published in the manner •and for the time prescribed by law. The conclusion reached by us does not involve the dismissal of the entire proceeding, but only affects the alleged appointment by reason of the omission referred to and which the remanding of the case may enable the parties to supply.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is now adjudged and decreed that the said letters of administration to Claude Pintard, as administrator of the succession of John Marsden Pintard, by the clerk of the district court of the parish of West Feliciana, be .annulled and set aside, and the case remanded to the lower court to be proceeded with according to law; defendant to pay costs of both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,141.
    The State of Louisiana vs. M. S. Powell, Tax Collector et al
    Sureties on the bond of an officer cannot avail themselves ot laches or omissions of other . officers of the State in the performance of duties imposed by law. as a ground of discharge for their own liability.
    They cannot plead the ineligibility or disqualification of their principal as a defense.
    In a suit against a defaulting tax collector and his sureties, certified extracts from the hooks of the Auditor of Public Accounts, showing the condition of his account with the State, are competent evidence, and afford prima facie proof.
    A tax collector is properly charged with the full amount of the tax rolls and licenses,, the whole of which he is presumed to have collected, until rebutted by legal vouchers-for legal payments or offsets.
    The tax collector and his suretiés are required by law to make their settlements with the Auditor, and to see that any offsets are duly entered on his books; and if they neglect this duty, they cannot, by parol evidence, contradict the acconnts of the Auditor, and claim credits not entered therein.
    Sureties are not released because the collections covered by their bond have been paid into the treasury on aeepunt of the tax collector for preceding years. Such a disposition was itself .as much a misappropriation as if he had devoted it to his private debts.
    A power of attorney to hind the constituent “upon any bond whatsoever, either as principal or surety, and to sign the same for her and in her name, either as principal or surety,” is such express and special power as is required by Art. 2997 C. O. The term special as therein used does not require a designation of the particular act to he done.
    APPEAL from the Eighth District Court, for the Parish of East Carroll. Deloney, J.

      G. 8. Wyly and W. G. Wyly for Plaintiff and Appellant:
    1. The sureties of a defaulting tax collector cannot escape liability on the ground that, when they signed the bond, they did so in error, not knowing that such tax collector, qualifying under the commission issued by virtue of his election, was delinquent for collections made under Ms previous appointment; that, had they known of such defalcation, they would not have signed the bond, and that the Auditor was at fault for not publishing Mm as a defaulter. 7 Ann. 118,377; 11 Ann. 549.
    2. They cannot set up, as grounds of defeuse, that their principal was ineligible; that his-commission, issued in contravention of a prohibitory law, or a law not allowing a commission to isue to a defaulter; and that the bond they subscribed is invalid. 27 Ann. 568; 7 Ann. 118,377; 11 Ann. 549; Board of School Directors vs. Judice and others, decided in July, 1887, 39 Ann. p —.
    3. They cannot complain that the Governor improperly issued the commission; they can make no defenses that their principal could not make, except that their right of subrogation against their principal has been impaired by some act of the obligee in such bond. 62 3ST. Y.8S; CL. 51S; 33 Ann. 383 ; 4 N.S. 25; 11 Ann. 643; 27 Ann. 568; 7 Ann. 118, 370, 377; 11 Ann. MO ; 33 Ann. 17.
    4. Vhe principal and his sureties, having subscribed to the bond while he assumed to act as tax collector under his commission, are estopped from denying that he was tax collector, and they are precluded from disputing their liability on the bond: their liability is fixed, whether the title of the officer he good or bad ; they are responsible for liis acts while he occupies the office; they cannot dispute the recitals of the bond which they have signed, wherein they covenant and agree to become responsible for tbe fidelity of their principal. 11 Ann. 643 ; 27 Ann. 56S ; 7 Ann. 118, 370; 31 Ann, 788 ; 36 Ann. 109 ; 37 Ann. >21; 4 L. 107.
    5. The sureties cannot be heard to complain that- the moneys for which, their principal settled with the Auditor and Treasurer were improperly imputed in such settlement; that the total amount should have been credited as collections on the roll of 1884, and no part thereof should have been applied to previous years. The tax collector made that settlement under oath, as required bylaw. He could not deny the verity of that settlement, nor can his ' ureties, who vouched for his fidelity in making proper settlements as well as collections.
    6. If the tax collector makes collections on the roll of one year and applies it in settlement of his delinquency for previous yeais, such improper application itself is a misappropriation of public moneys, for which his sureties are responsible 7 Ann. 118, 377.
    7. The Auditor’s certified abstracts are admissible in evidence to show the state of public accounts he kept with a delinquent tax collector. The Auditor’s books are records of the Executive Department, and are the highest evidence as to the public accounts oí the State with her officers. 26 Ann. 268; 31 Ann. 423.
    8. Where there is a delinquency, the sureties of a tax collector are authorized to take possession of the tax lists, and they are required by law to make a final settlement with the Auditor in behalf of such delinquent. Having failed to do so, they are in default, and they cannot he heard to deny the correctness of the Auditor’s books. They are es-topped from disputing the indebtedness of their principal, as shown in the certified abstracts from the Auditor’s books. When sued, they cannot introduce parol evidence to show that tho Auditor’s hooks are not correct, and that the defaulter was entitled to credits not entered therein. 33 Ann. 351; 32 Ann. 974 ; 3 Ann. 631 ; Act. Ko.-of Acts of 188 , Sec.-.
    9. Jn making the partial settlements with the Audilor, the delinquent tax collector was-aware of the balances owing by him on his different accounts with the Auditor. He made his sworn settlements, showing said balances; he thereby acquiesced in, approved of. and in the most solemn manner admitted hisgdebit balances. lie and his sureties are estopped from denying the correctness of said account.
    10. When the sureties offered the receipts of the Treasurer for settlements, made by the defaulting tax collector, they will he precluded from disputing the recitals of those receipts, and from denying that the funds were properly applied, as stated in said receipts.
    11. The rax collector is chargeable with the full amount of the tax rolls, and if he does not settle by a given date, he is ipso facto a defaulter. 31 Ann. 738: 3 31.150; 10 Ann. 695-

      J<\ K. Montgomery and J. W. Montgomery for Defendants and Appellees.

      ■J. M. Kennedy, on same side :
    Where a power of attorney is a formal written instrument, the powers conferred arc to be strictly construed The meaning of general words will be restricted by the context and construed with reference thereto; and
    The au’horifey will he construed strictly, so as to exclude the exercise of any author ity not warranted either by the actual terms used, or asa necessary means of executing the authority with effect. ICwell’s Evans on Agency, p. 205; Story on Agency (Bennett’s Edition, 1863), pp. 76 and 93.
    General words, and tho largest power's, must-be construed with reference to the subject-matter of the procuration, and the objects to be attained or subserved. They cannot be exercised so as to effect acts which the principal could not be presumed to intend, and whioh would not promote the apparent ends for which the power was givtn. They must be restricted within the scope and spirit of the instrument, and cannot be invoked as authority foreign to the purposes for which it was given. Ewell’s Evans on Agency, pp. 208, 209, 211; Story on Agency, p. 93, § 83 ; Bank of Cliaileston vs. Hagan, 2 Ann. 1002; Copley vs. Elinfc, OR. 57; Clay vs. Bynum, líT. S., p. 609; Gates vs. Bell, 3 Ann. 62.
    ‘ The authority of an agent to bind liis priucipal by a contract of suretyship for a stranger, must be express and special. Gates vs. Bell, 3 Ann. 62; State vs. Daspit, tax collector, etals., 30 Ann. 1112; Wallace vs. Branch Bank. 1 Ala. 565; Kingsley vs. Bank, 3 Serg. (Tenn.) 107.
    “ Where the things to he done are not merely acts of administration, the power must be express and special.” C. C., Art. 2997; H. E., p. 831, Eo. 3.
    In a suit upon an instrument purporting to be signed r.ot by the defendent personally, but by his representative, the defendant is not bound to admit or deny his signature in his answer. And'if it is denied, or not admitted, the plaintiff is hound to prove it as a part of his cas-'. C. C. 2244, 2245; 29 Ann. 546; 1 Ann. 325; 33 Ann. 1313; C.P. 325.
    Where no date is proven in a private instrument de hors the act itself, it has no date except that at which it is introduced in evidence. 20 Ann. 465; 6 E. S. 132. 332.

      White & Saunders, on same side.
   The opinion of the Court was delivered by

Fenner, J.

M. S. Powell was elected as sheriff and ex officio tax collector in 1884, and was commissioned and qualified as such on June 16,1884, for the full term of four years. In June, 1885, he absconded, and was declared a defaulter to the State and parish for a large amount of taxes not accounted for.

The present action is brought against him and the sureties on his ■official bond. A separate judgment was rendered against his succession, he having died after suit was instituted, for the amount claimed, without prejudice to the rights and defenses of the sureties, as to whom the case was subsequently tried, resulting in a judgment iu their favor.

The sureties, admitting their signatures to the bond, filed a general •denial as to all other matters and also certain special defenses.

We will first consider the special defenses,"which go to the root of the action, viz :

1. They show that Powell had held the same office during several ■previous years, having been elected as his own successor; that he had been a defaulter to the State in each of said years ; that the law of the State required the Auditor of Public Accounts to publish annually the names of all defaulters; that the Auditor failed to make such publication ; that by reason thereof the fact of his previous defalcations was concealed from them, and that they signed the bond through error in ignorance of this fact, which, if they had known, would have prevented “them from signing the same.

2. That under Article 171 of the Constitution the said Powell, by reason of his aforesaid defalcation, was ineligible to the office of sheriff, and that, having been elected and commissioned in violation of a constitutional prohibition, the bond is invalid and void.

These defenses are utterly unavailing. It has been so often held that sureties on the bond of an officer cannot avail themselves of laches or omissions of other officers in the performance of duties imposed by law as a ground of discharge of their own liability, and that the ineligibility or disqualification of their principal is no defense,, that amere quotation of the precedents is an all-sufficient disposition of those defenses. Board vs. Judice, 39 Ann. 896; St. Helena vs. Burton, 35 Ann. 521; Board vs. Brown, 33 Ann. 683; State vs. Blohm, 26 Ann. 538; Mayor vs. Merritt, 27 Ann. 568; State vs. Breed, 10 Ann. 491; State vs. Dunn, 11 Ann. 549; State vs. Hayes, 7 Ann. 118; Duncan vs. State, id. 377; Mayor vs. Blache, 6 La. 500.

The case last cited learnedly and scientifically disposes of the defense of error, based on concealment or failure to give notice of prior defalcations.

The State’s claim is based upon, and sustained by, certified extracts-■from the books of the auditor of public accounts. The admissibility and sufficiency of such evidence are disputed by defendants; but it is well settled that they are official records, kept under requirements of law, and as such are admissible and furnish full prima facie proof. State vs. Masters, 26 Ann. 268; State vs. McDonnell, 12 Ann. 741.

It is even expressly provided by law that such certified statements shall be held sufficient evidence for the finding of an indictment against a delinquent tax collector and “shall be read in evidence against the accused on the -trial of the case.” Act No. 107 of 1884, sec. 11.

As to the nature and effect of these statements, the Court has said “ The process of computing debits and credits on a tax collector’s account is very simple. He is charged with the sum total of the rolls, and of the licenses, and it is for him to offset these by legal vouchers for legal payments and by a delinquent list in due form. The tax collector is presumed to have collected all that is on his roll and his number of licenses, and if he does not settle by a given day, he is a defaulter ipso fado. Everything is presumed against him. He is-. prima facie liable for the whole amount of the assessment roll, and the onus of proof is upon him to show discharge, payment,” etc. Police Jury vs. Brookshier, 31 Ann. 736; State vs. Guilbeau, 37 Ann. 718; Vermillion vs. Comeau, 10 Ann. 695; Scarborough vs. Stevens, 3 Rob. 347.

The defendants have, failed to furnish any legal vouchers whatever to show any offsets.

They set up that in February, 3885, Powell made largo payments to the State treasurer, which they claim were made out of moneys collected from the taxes and licenses of 1884, and they produce the treasurer’s receipts. These receipts show a certain amount paid on account of taxes and licenses of 1884, which credits are duly entered and allowed in the auditor’s certified accounts herein sued on. The balance of the payments are expressly imputed by the receipts themselves to taxes and dues of previous years. How can defendants contradict the receipts offered in evidence by themselves, and of what avail would such contradiction be? The payments so imputed operated a discharge of the dues to which they are imputed, and how can they have the double effect of discharging others to an equal amount?

This Court has expressly held that sureties are not released because tbe collections covered by their bond have been paid by the sheriff into the treasury on his account for a preceding year.

l< The disposition of it alleged by the defendants,” says the Court,' was as much a misappropriation as if he had used it in the payment of his private debts.” State vs. Hayes, 7 Ann. 121.

The defendants further allege that the blank licenses, with which Powell was charged to the amount of $5592.50, were never used by him, but, were turned over by his deputy to his successor in office — I C. Bass — for which sum they claim credit. The only word of evidence in the record with regard to this important allegation is this statement by Bass as a witness : T. J. Powell was in charge as deputy when 1 took possession. He turned over to me in blank State licenses for the year 1885, $5592.”

There is nothing to show that this turning over was ever reported to the auditor ; that Bass was ever charged with them ; what he did with them, whether ho disposed of or accounted for them. If they had been returned to the auditor, or charged to Bass, or otherwise accounted for to the State in any manner, the auditor’s books would show it, and that was the source to which defendants should have looked for proof that this valid charge against their principal had been legally accounted for. Not only have they failed to bring such proof, but they have not even produced the blank licenses, which, for aught, that appears, may have been used and never accounted for to the State. It was to the State that PowelL was bound to account, and he failed to do so. When he absconded, the law provided that “his sureties shall be authorized to take into their hands the list of taxes remaining unpaid and hold the same until his successor is appointed and qualified, when the sureties shall immediately make a final settlement with the atiditor as provided by law.” Act 119 of 1882, sec. 83. They have failed to make this settlement, and cannot dispute the indebtedness as charged on the auditor's books upon such utterly insufficient evidence.

The same reasons apply to reject their claims to credits on account of taxes collected and property adjudicated to the State for taxes of 1884, by the successor, Hass. There is no proof that the State received any account of these, collections from any source, and it is to the State that the account is due.

If it be true that the State recovers by our judgment more than she is entitled to, she is the fountain of justice and defendants may find relief by application to the other departments of her government j but we must hold that they have failed to establish these offsets by any competent evidence.

We find in the record an admission that defendants are entitled to credits on the amount claimed in the sums $78 and $65, and shall allow them.

II,

One of the sureties, Mrs. Steinhardt, iutevposes a .denial of her liability on the bond, because her name as surety thereon was signed by an agent without legal authority. The power of attorney, under which the agent acted, is the broadest and most complete that could be imagined. It seems to have been framed to confer upon the agent not only every possible general power, but to confer expressly and specially every power for the exercise of which the Code requires that the authority shall be express and special. One has only to road it with the articles of the Code before him to discover that it was drawn with direct reference thereto and with the plain intention of conferring upon the agent every possible power, in manner and form, as the Code provides.

We make the following extract from the powers granted: “ To draw, endorse or accept bills of exchange, promissory notes or bank checks; to bind the said appearer upon or to any bond, obligation, contract or agreement whatsoever, either as principal or as surety thereto or thereon, and to sign the same for her and in her name-, either as such principal or surely, as the case may be.”

Her counsel quotes Copley vs. Flint, 6 Rob. 56. In that case the power granted was to make and endorse notes, drafts, etc., and the Court held that such a power did not include authority to bind the principal as surety to a contract, saying : “ An authority to endorse notes or drafts is different from one to bind the constituent as surety in solido.1' Considering that the power to bind as surety is not mentioned among the acts specially noted in C. C. 2997, but is only included under the general final clause thereof, it seems clear that this mandate was drawn especialy to meet the ruling in Copley vs. Flint by adding the special power to bind as surety. We have considered all the other authorities quoted, but none of them meet the exigencies of this case.

An express and special power to bind the constituent as surety on “my hond whatsoever,11 is an express and special authority to bind her on this particular bond. The contention that the term special, as used in the Code, requires a special ‘authority for each particular act is unreasonable and unsupported by any authority, and would defeat the purposes of mandates, since, if the constituent were required to grant a new authority for each particular act, he might, with less inconvenience, perform the act himself.

If her agent has abused the trust confided in him, she, being mi juris, deliberately invested him with the power, and it is just that she should bear the loss rather than the State, which accepted his action under her express and special mandate.

In framing the decree we shall follow the precedent in Teutonia Bank vs. Wagner, 33 Ann. 732.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that the State of Louisiana have and recover judgment against the defendants severally, to wit: Fred G. Bernard, Wm. D. Bell, Nathaniel Houghton, Jason Hamilton, Frank D. Rago,. Victor M. Purdy, Oliver M. Cherry, Zachariah Goldenburg, Alfred Lewis, John W. Montgomery, and Mrs. Henrietta Steinhardt, in the sum of $15,818.92, with five per cent per month interest thereon from-September 25, 1885, less any amount that may have been collected under the judgment against the succession of M. S. Powell; the said judgment to be operative against said defendants Bernard, Bell andHoughton up to the sum of $1000 each and no more ; against Hamilton and Rago up to the sum of $500 each and no more ; against Purdy,. Cherry, Goldenburg and Lewis up to the sum of $2000 each and no more; against the said Montgomery up to the sum of $3000 and no-more; and against Mrs. Henrietta Steinhardt up to the sum of $5000 and no more — with the stipulation that there shall be but one safcisfaction of the eDtire amount due plaintiff, defendants and appellees to pay costs in both courts.


text:
    No. 10,140.
    The State of Louisiana vs. M. S. Powell et al.
    When ,lifter the evidence in a case is closed and the argument begun, one of the parties discovers new evidence, the effect of which is to furnish a new ground of defense and presents an affidavit of its new discovery and of due diligence, and when it is apparent that it would furnish ground for anew trial, the discretion of the judge in opening tho case and permitting a supplemental answer and offering of the evidence under it, will not be interfered with.
    Uuder Art. 69 of the Constitution, the term of an officer appointed by the governor during the recess of the Senate, cannot extend beyond the end of the next oh suing session of the legislature; and where the same name is subsequently sent to the Senate and confirmed and a now commission is issued, the latter is a distinct appointment and requires a new bond.
    Sureties for the fidelity of an officer appointed for a limited term are not liable for his defaults beyond the term of the appointment or commission under which the bond was furnished.
    Provisions of law authorizing officers to hold over until their successors are appointed and qualified,' can only extend the liability of the sureties for such reasonable time as, with due diligence, would enable the successor to he tppolnted and qualified.
    APPEAL from the Eighth District Court, Parish of East Carroll. Dékmey, J.

      O. 8. Wyly and W. 6. Wyly, for Plaintiff and Appellant.

      J. W. Montgomery, J. M. Kennedy and K. K. Montgomery, for Defendants and Appellees.
   The oninion of the Court was delivered by

Fenner, J.

The action is against the principal and sureties on an official bond of M. S. Powell, as tax collector for the State and parish, executed on May 26, 1880.

Powell having died shortly after the bringing of the suit, his succession was made a party. By a written consent, which fully reserved all the rights and defenses of the sureties, the case went to separate trial against the succession of Powell, resulting in a judgment in favor of the plaintiff.

The sureties filed general and various special defenses upon which trial was begun. After the evidence had been closed and in course of the argument, the defendant sureties applied to the court for leave to lile a supplementary answer setting forth that M. S. Powell was appointed sheriff and ex-officio tax collector during a recess of the Senate, to ñll a vacaney, and was commissioned thereunder; that under the terms of the constitution of the State said appointment and commission could not extend beyond the end of the ensuing session of the General Assembly; that the bond sued on was executed under said appointment and commission ; that subsequently, at said ensuing session, the Governor nominated the said Powell as such officer for the full unexpired term, and sent said nomination to the Senate, by which body it was duly confirmed, and that thereafter, on the 19th day of December, 1881, a new commission was issued to said M. S. Powell, under which he qualified by taking the oath. The said commission and oath of office were annexed.

The application further set forth that said facts had been discovered on that morning, and were not before known to the defendants ; notwithstanding due diligence that they did not make the application for delay, but only to obtain justice.

The judge permitted the answer to be filed and the commission and oath to be received in evidence, over the objection of plaintiff’s counsel, who reserved exception to the ruling.

That exception is vehemently pressed in this Court; but we think it has no substantial merit. It was obvious that if the newly-discovered evidence and the defense based thereon had merit, it would be ground for a new trial. What advantage could result to either party from proceeding with a vain trial, which, if terminating adversely to defendants, would certainly have to be reopened in order to let in the newly-discovered evidence1?

The diligence and good faith of defendants are not questioned, nor is the truth of the facts presented by them disputed.

On the contrary, we find in the record the following admission : It is admitted that M. S. Powell was first appointed and commissioned sheriff (ex-officio tax collector) to fill a vacancy, during the recess of the Senate, and that the bond sued on in this case was given under said commission.”

If plaintiff were surprised by this new issue and evidence, and desired opportunity to furnish any countervailing proof, he would have been undoubtedly entitled to a continuance ; but he applied for none, nor is it pretended that any benefit would have been derived from one. We are not disposed to encourage loose practice; but, under the circumstances of this case, we do not feel authorized to interfere with the large discretion vested in inferior courts in such matters, the exercise of which in the present instance seems to us to have been wise and promotive of the ends of justice and a safe and speedy termination of the controversy between the parties.

For reasons which will he more fully presented in another case (No. 10,141), decided this day, we consider that the original defenses of the defendants have no merit, and the defense above referred to is the only one now requiring examination.

Article 69 of the Constitution provides : “ The Q-overnoi shall have power to fill vacancies that may happen during the recess of the Senate, in cases not otherwise provided for in this constitution, by granting commissions which shall expire at the end of the next session ; but no person who has been nominated for office and rejected, shall be appointed to the same office during the recess of the Senate. The failure of the Governor to send into the Senate the name of any person appointed for office, as herein provided, shall be equivalent to rejection.”

Under this article the Governor appointed and commissioned Powell, and the bond sued on was furnished. That commission could not possibly extend beyond the end of the next session of the General Assembly ; but having been subsequently nominated and confirmed by the Senate, Powell received a new commission, and took a new oath, under which he continued to exercise the duties of the office until Ji ne 16, 1884, but without furnishing a new bond.

The suit iu this case is for taxes collected and not accounted for between the date of the bond, May 20, 1880, and June 16, 1884.

The question is whether defendants are liable except for moneys collected during the term of the commission under which the bond was furnished, which was limited to the end of the ensuing session of the legislature, to-wit: December 24, 1881.

The question is by no means new. From the time of Lord Hale it has been presented to courts in every variety of aspect, and it has been held uniformly that sureties foi the fidelity of an officer, appointed for a limited term, are not liable for his defaults beyond the term of the appointment or commission under which the bond was furnished; and this is not affected by the fact that the terms of the bond are not so restricted or that the officer continues in office as his own successor without furnishing a new bond.

The first and leading case was that of Arlington vs. Merricke, 3 Saund. 403, where one had been appointed as deputy postmaster for-the term of six months, and furnished a bond with the broadest possible condition that lie should faithfully perform “for and during all the time ” that he should continue as deputy. He continued beyond the six months, and effort was made to hold him for subsequent default's ; but Lord Hale rejected the claim holding- that the sureties only intended to bind themselves for the original term of his appointment, and that, otherwise, they might be held accountable during the whole life of the principal.

A case strikingly similar to the instant one came before the Supreme Court of the United States. Under a provision of the U. S. Statutes, almost identical with Art. 69 of our Constitution, the President was authorized, in the recess of the Senate, to make appointments by granting commissions to expire at the end of the next session. The President so appointed Samuel Reed, who qualified and furnished bond. At the ensuing session the President sent his name to the Senate and after his confirmation issued a new commission, after which he continued in office, but without furnishing a new bond. It was claimed that this was one continuing appointment, the second commission operating only as a continuation of the first; but the Court, through Mr. Justice Story, held otherwise, and that the obligatory force of the bond ■was confined to acts done while the first commission had a legal continuance and could not go beyond it. United States vs. Kirpatrick, 9 Wheat, 720.

We have carefully considered the cases of Shepherd vs. Haralson, 16 Ann. 134, and Kelly vs. Gilly, 5 Ann. 534, but do not find them in conflict with the foregoing. In ihe first mentioned case it is expressly-stated : “ The 48th Article of the Constitution of 1852” (corresponding to Art. 69 of our present Constitution) “on the subject of vacancies, has no application to the case at bar. There was no vacancy^ in the office at the date of Haralson’s recess appointment.”

This clearly indicates that the decision was not intended to apply to cases arising under that article.

In the 5th Annual case the Art. 51 of the Constitution of 1845 was not referred to, and the decision was confined to the peculiar case of notaries. The decision was that under the laws regulating that office, “ every persou appointed a notary is entitled to hold office for four years from the date of his appointment,” without reference to the question of vacancies or to the length of the uuexpired term of his predecessor. -; ;

It would require a very unequivocal precedent to justify us in holding that an appointment and commission, which the Constitution positively says “ shall expire at the end of the next session,” could be held as continuing- for a longer term. The argument in the Kirkpatrick case is applicable and unanswerable.

It has been further frequently held that the liability oí the surety is not extended by provisions of law to the effect that the officer continues in office until his successor is qualified. It is the duty of the State to appoint his successor and to require hiip to qualify, and in case he fails to appoint, some one who will.' It cannot, by neglecting these duties and suffering an incumbent to hold on, prolong the liability of the sureties beyond the term contemplated in their bond. Mayor vs. Crowell, 40 N. J. Law, 207; Mayor vs. Horn, 2 Harr. Delaware, 190; Commissioners vs. Greenwood, 1 Desauss. S. C. 450; Chelmsford vs. Demarest, 1 Gray, (Mass.) 1; Leadley vs. Evans, 2 Bing. 32; Liverpool Co. vs. Harpley, 6 East, 507; Peppin vs. Cooper, 2 B. and A., 431; Bigelow vs. Bridge, 8 Mass. 275.

The four cases first above cited from. New Jersey, Delaware, South Carolina and Massachusetts, examine these quesrions very closely and dispose of every point made by plaintiff.

Possibly, as held in 40th New Jersey, the liability under the bond might be held to extend to such reasonable period beyond the term of office as would enable a successor, in the exercise of due diligence, to be appointed and qualified. But in this case there was no diligence and no effort whatever to require proper qualification by the furnishing of a new bond.

We, therefore, hold that defendants are only responsible for taxes collected and not accounted for between the dates of May 20,1880, and December 24, 1881.

The evidence in the case does not enable us to ascertain with certainty the amount so due, and we shall remand the case on that ground.

A special ground of defense is presented by Mrs. Bettie Jenckins, administratrix of the succession of D. C. Jenckins, one of the sureties. The suit was undoubtedly against the succession of Jenckins, bur. it was alleged that Mrs. Jenckins was administering- the succession as natural tutrix of his minor child,” and citation was served on her. She appeared with all the other sureties and joined in the answer. On the trial she offered evidence showing that she had been duly appointed and qualified as administratrix and was not administering as natural tutrix. We think the point has no merit. The suit was against the succession; she was alleged to be administering it; she was actually its administratrix; and having been cited and having answered, we think she made the succession a party, with full authority to represent it; and cannot avail herself of a mere misdescription of the tille under which she administered, which was not excepted to.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the case be remanded to the lower court to be there proceeded with according to law and to the views herein expressed, appellees to pay costs of appeal.


author: Waticins, J.

text:
    No. 10,011.
    Edward Morgan vs. Tony Nagodish et als.
    Aii action brought under the provisions of a special statute is not necessarily petitory or possessory. It may be sui generis.

    A suit brought under Act 106 of 1866 — it being an act to encourage, protect, regulate and . develop the oyster industry in this State — is necessarily predicated on apparent title and possession as owner of the lands, acquired from'the State or United States government prior to the passage of the act, by the claimant of the exclusive right to use the bayous, lakes, etc., ■which make into or run through them, for tbe purpose of planting oysters and other shell fish. The terms of said act do not include them ■within its designation of common property.
    If the salt water ascertained to be in a bayou, lake, cove, or inlet adjacent to, or connected with, an arm of the Gulf of Mexico, does not result from an overflow that is occasioned by high tides flooding its banks ; but, in the first instance, enters an arm of the gulf, and thence passes into said bayou, lake, etc., and is there combined with fresh water derived from other sources, same cannot be considered as an arm of the sea, nor its banks the seashore.
    All that tract of land over which the greatest water-flood extends itself is the seashore.
    “ High seas ” mean that portion of the sea which washes the open coast, and do not include the combined salt and fresh waters which, at high tide, flood the hanks of an adjacent bay, bayou or lake.
    A PPEAL from tbe Twenty-fourth District Court, Parish of PlaqueAa. mines. Livcmdads, J.

      F. G. Zacharie for Plaintiff and Appellee:
    The action here corresponds more nearly to the ‘‘ petitory ” than the “possessory,” as it is based on ownership. It closely resembles the action of trespass of the Common Law, or quw'e clausum fregit. — See Burrell and Bouvier’s dictionaries; verb, “trespass” and “ quare clausum fregit, ” in which action ownership must be alleged and proved.
    The Articles of the Civil Code, on the Seashore, which are identical with the Roman Law, are to be interpreted by the same rules as those of the Code Uapoleon. Merlin, tom. 14; verb. Rivages de la Mer, p. 315.
    Section 2, Act 106 of Louisiana, 1886, gives to the riparian proprietor of banks of streams “the exclusive right to use said body or bodies of water, for planting oysters and other shellfish,” and such owner and proprietor has the right to enjoin others from using it, by allowing them two years to remove any oyster beds already planted. Sec. 5, Act 106, 1886.
    The right, accorded by special statute, is only a confirmation of that established already by the Civil Law, and even if it did not already exist, the State, as a sovereign, has the right to control, regulate, lease, give or grant exclusive use of the oyster fisheries in its navigable waters, to its subjects or citizens, even where such fisheries are natural reefs. 16 Peters, 370, 257, 258, 266; 1 Howard, 103 ; 3 Howard, 220; 7 Howard, 556; 9 Howard, 636; 15 Howard, 432, 433 ; 18 Howard. 74, 75; 3 'Wall., 726: 6 Wall 436 ; 4 OttO) 338, 394 ; 15 Otto, 491.

      JEJ. JEEoiuarcl McCaleb for Defendants and Appellants:
    1. A plaintiff cannot maintain an injunction suit forbidding defendants “ from landing, going on, camping, planting or bedding* oysters on the water front of land, or otherwise trespassing in any manner whatsoever upon ” land claimed by him, Such an action is a nondescript, neither petitory (C. P. Arts. 43, et seq,) nor possessory in character — C. P. Art. 49. “ Trespass does not lie for taking shell fish between high and low water mark. ” Peck vs. Lockwood, 5 Hay, 22.
    2. The State cannot confer title upon an individual to the seashore, because it is common property, not susceptible of private ownership. Rev. C. C. 450, 451, 452, 453; 12 L. 324 ; Institutes of Justinian, Lib. II, Tit. 1, §§ 1, 3, 5; Celsus Lib. XT, JCig.jHig. Lib. 1 Tit. XVI; L. 96 ; Jovolenus Lib. II ex Cassio ; Morean's and Charleton’s Partidas, Vol. p. 535 L. 3 and p. 336 L. 4 and 6.
    3. The articles of our Code are taken from the Roman law, which differs from the French law, relating to the sea and its shores. Hote to Art. 1, Sec. 1, Ho. 115 of Tit. Ill Horaat’s Civil Law by Strahan, Cushing’s Ed. The Roman law was framed with reference to the Mediterranean Sea, while the Erenoh Ordinances concerning the seashore had in view the Atlantic Ocean. Merlin Ques. de Droit; Rivegas de la Mer.
   The opinion of the Court was delivered by

Waticins, J.

The plaintiff claims to be the owner of a tract of eight hundred acres of land by a regular chain of title from the State, witii all the rights, privileges and servitudes appertaining thereto, and alleges himself to be in possession thereof. He avers that this property is subject to tidal ovex^loxo, as shown by the official plan of survey in the State land office ; and that patents were issued therefor on the 13th of February, 1878.

He further avers that the several defendants, composing a small colony of Austrian fishermen, are now and have been in the habit of trespassing upon said lands, camping thereon, bedding and planting oysters, and committing other and divers acts of trespass, without color of right, or warrant of law, and in disregard of his rights as owner, and against his protest, and from which he has suffered damages to the extent of $250.

He prayed for and obtained an injunction against them, restraining and prohibiting them from landing or camping on same, and from planting and bedding oysters on the water front thereof, and from otherwise trespassing thereon ; and he prays judgment perpetuating his injunction.

The defense, as set out in defendant’s answer, is fourfold ;

1. That plaintiff is without right to maintain this action and stand in judgment.

2. A general denial.

3. A special denial of his ownership and possession.

4. An averment that they are, and have been for several years, engaged in fishing and bedding oysters, at a place known as Bayou Cook, an arm of the Gulf of Mexico, and a part of the seashore, on which they liave built cabins for shelter, and have been accustomed to moor their boats and the like; and, that said seashore is common property, not susceptible of private ownership.

I.

On the trial the defendants objected to the introduction of proof of the plaintiffs’ title, on the ground that this is a possessory action.

We do not so regard it. It is an action that is mi generis, and brought under the provisions of Act 106 of 1886, it being an act to “ encourage, protect, regulate and develop the oyster industry in this State,” etc.

Section one of that act provides that all the beds of rivers, bayous, creeks, lakes, coves, inlets and seashores bordering on the Gulf of Mexico, and all that part of the Gulf of Mexico within the jurisdiction of this State and not heretofore sold * * ’ shall continue and remain the property of the State of Louisiana, and may be used as a common by all the people of the State, for the purposes of fishing and taking and catching oysters and other shell fish, subject to the restrictions hereinafter imposed; and no grant, or sale, or conveyance shall hereafter be made by the register of the State land office to any estate, or interest of the State in any natural oyster bed, or slioal,' whether said bed or shoal shall ebb bare or not.”

The provisions of section two are that if any river, bay, lake, bayou, cove, inlet or pass makes into or runs through the land of any person, and is comprised within the limits of his lawful survey, such person, or other lawful occupant, shall have the exclusive right to use said body or bodies of water for planting oysters and other shell fish ; but the right of the owners, or occupants of land, on any other shores? bays, rivers or bayous within the jurisdiction of the State, shall extend to ordinary low water mark; but it is not intended thereby to deprive them of the privilege extended to others by the first section of this act.”

From a perusal of the quoted provisions of the statute it is clear that the evidence objected to was competent. This testimony was necessary in order that we may determine whether the lands had been sold by the State prior to the passage of the law ; whether the beds o rivers, bayous, creeks, lakes, coves, inlets and shores thereon may be used as a common ” by the defendants for the purpose of fishing and talcing and catching oysters and other shell fish; or, being situated within the limits of plaintiff’s property acquired from the State prior to the passage of said law, he is entitled to the exclusive right to use said bodies of water thereon “ for planting oysters and other shell fish.”

The judge a quo did not err in admitting the testimony.

II.

Defendant’s counsel also urged objections iu the court below to the introduction of a certificate executed by James L. Lobdell, register of the State land office, which purports to verify as correct the annexed sketch of the lands in controversy, and as “ taken from approved maps on file in his office,” on the ground that he is incompetent to grant the same.

He further objected to the introduction of a certified copy of a survey made by Rightor and McCullom, surveyors, in 1840, and also of a list of swamp and overflowed lands approved to the State by the United States, accompanied by the certificate of approval of the surveyor general of the State, showing those in question to have been swamp lands,” on the grounds following, viz :

1. That said survey was not made in conformity to act of Congress, approved March 2, 1849.

2. That said surveyors were not authorized to make the said selections.

3. That the certificates are informal and incomplete and inadmissible, and do not establish any fact at issue in this case, and same are not worthy of credence, and not the best evidence.

He further objected to che introduction in evidence of a certified extract and plan fiom the office of the United States surveyor general, on the ground that the register is unauthorized to grant any such certificate — the record or a certified copy thereof being the best evidence.

These several objections having been overruled and the documents admitted, the defendants’ counsel reserved bills of exception.

Under the express terms of R. S. Sec. 2930, we are of the opinion that the register was competent to grant said certificate.

The objections made to the certified copy of the survey of swamp lands, and the certificate of approval by the surveyor general, appear to us to be technical, and whatever force same may have, go to their effect only.

The objection to the certified extract from the surveyor general’s office is covered by a familiar rule of practice. There was no necessity for the introduction of the entire record, or of a copy of it.

If this were a petitory action, such objections would be of greater force. But, for 1 lie purpose of this action, the plaintiffis only required to show an apparently valid alienation of this property by the State; and, for this purpose, the objected evidence was properly received and was competent.

III.

The evidence shows that the lands, of which the plaintiff claims ownership and possession, was sold by the State anterior to the enactment of Act 106 of 1886. Hence the beds of the bayous, creeks, lakes, coves and seashores bordering on the Gulf of Mexico, and embraced within the calls of plaintiff’s authentic title, may not be used as a common by the defendants, for the purpose of fishing, and taking and catching oysters and other shellfish ; but the plaintiff, on the contrary, has the exclusive right to use the bays, lakes, bayous, coves, inlets or passes which make into or run through his land, or may be comprised within the limits of his lawful survey for the purpose of planting oysters and other shell fish.

The notarial act of sale under which he holds, imports the delivery of possession.

IV.

The remaining question to be considered is whether or not the bayou, creek, cove or lake, denominated Bayou Cook, is an arm of the Gulf of Mexico and a part of the seashore, and, as such, common property, and not susceptible of private ownership.

Prom the evidence it appears that the property plaintiff acquired from the State, by and through several mesne conveyances, is penetrated, and, in part, covered by an inlet or bayou called “Bayou Cook,” a “ place celebrated for the superior quality of its oysters.” On the banks of this bayou, or inlet, the defendants have built cabins on posts driven in the ground, and beded oysters in the shallow waters near the shore.

Bayou Cook appears to form a connecting link between Bay Bastían, an arm of the Gulf of Mexico, and Bay Adam. The latter is situated a mile or more from Bay Bastían, in the interior, and m close proximity to the Mississippi river, a few miles above the point of its confluence with the gulf. Bayou Cook is of about one mile in length, two acres in width and twenty feet in depth in the main channel. Some water passes into it from the Mississippi river, through small bayous and an adjacent swamp ; and some salt water comes into it, by way of Bay Bastían, from the gulf. This commixture of fresh and salt water is decidedly brackish.

For the most part, the defendants live on the shores of Bayou Cook, and in it they fish, and bed and gather oysters. • It is not contended by their counsel that theirs are natural oyster beds, but those they have planted.

The proof does not show clearly fhe extent to which the ebb and flow of the tides of the gulf effect these lands on the shores of Bayou Cook, or whether or not the oyster beds of the defendants are, at any time, bared by the ebb tide.

Evidently the salt water found in Bayou Cook does not result from the overflow occasioned by the high tides flooding its banks; it enters Bay Bastían, in the first instance, and thence passes into Bayou Cook. The salt water thus supplied, combined with the accumulation of fresh water derived from the Mississippi river, floods the banks of Bayou Cook and passes into the adjacent marsh, to be returned again to the gulf, when its tide is low.

There is a disagreement between counsel as to the closer applicability of the French or Roman law to this controversy. Defendant’s counsel insist that, as the articles of our Civil Code are taken direct from the RomaD, the French law and jurisprudence are without application. That, as the compilers of and- the commentators on the Roman law and jurisprudence had in view the Mediterranean Sea, while those on the French law and jurisprudence had in view the Atlantic Ocean, the former should prevail in case of a textual difference — the G-ulf of Mexico being the American Mediterranean.

Justinian declares that things common to mankind by the law of nature are the air, running- water, the sea, and consequently the shores of the sea.” Lib. II, Tit. 1, par. 1.

All that tract of land over which the greatest water flood extend» itself is the seashore.” Ibid, par. 3.

The use of the seashore, as well as of the sea, is also public by the law of nations; and, therefore, any person may ereet a cottage upon it, to which he may resort to dry his nets and haul them from the water; for the shores are not understood to be property in any man, but are compared to the sea itself, and to the sand or ground which is under the sea.” Ibid, par. 5.

Domat defines “things common to all ” tobe “the heaven, the stars, the light, the air, the sea.” 1 Domat, Sec. 1, Art. 1, par. 315.

We find in the text no mention of the seashore. Our own Code says, “ things which are common are air, running water, the sea and its shores.” R. C. C. 450.

It also says the “seashoie is that space of land over which the waters of the sea spread, in the highest water, during the winter season.” R. C. C. 451.

“From the public use of the seashores it follows that every one has a right to build cabins thereon for shelter, and likewise to land there, either to fish or shelter himself from, the storm, to moor boats, to dry nets,” etc. R. C. C. 452.

The compilers of the Code closely followed the precepts of Justinian.

Litus est, giios que maximus f/uctus a mari pervenit.” Celsus, Lib. Dig. 25.

Moreau’s and Carlton’s Partidas, Vol. 1, p. 335; L. 3, p. 336; Law 4 and 6.

In quite an early case the Supreme Court said: “ It has frequently been adjudicated in the English common law courts, since the restraining statutes of Eiehard II. and Henry IV. were passed, that high seas mean that portion of the sea which washes the open coast.'” 5 Howard, 453, Warring vs. Clarke.

Whether we take the criterion established by our Code or that by Justinian, and apply to either the evidence in this^case, we must conclude that Bayou Cook is not an arm of the Gulf of Mexico, and that its banks form no part of the seashore. The salt water ascertained to be in Bayou Cook is not supplied by a “ water flood ” from the gulf; nor do “ the waters of the sea (gulf) spread, in the highest water, during the winter season,” over its banhs.

Quite a different rule applies to the banks of navic/able rivers and water courses.

“ By the laws of nations the use of the banks is as public as the rivers ; therefore, all persons are at equal liberty to land their vessels, unload them, and to fasten ropes to trees upon the banks as to navigate upon the river itself; still the banks of the river are the property of those who possess the land adjoining,” etc. Justinian, Lib. 2, Tit. 1, par. 4; 1 Domat, Sec. 3, Art. 1, par. 116; R. C. C. 445.

The statute, under the provisions, of which this suit is brought, has taken this distinction into consideration. It is restricted, m terms, to that part of the environs of the Gulf of Mexico “ within the jnrisdiction of the State ” and then particularizes the rivers, bays, lakes, bayous, coves, inlets and passes which “makeinto or run through the land of any person,” etc.

It fully recognizes the right of all persons to use in eommon, for the purposes of fishing and catching oysters and other shell fish, in any “ natural oyster bed or shoal,” the beds of rivers, bayous, creeks, lakes, coves and seasliorts.

This is in exact conformity with the precepts of Justinian. Quoting: “Wild beasts, birds, fish, and all animals bred either in the sea, the air, or upon the earth, so soon as they are taken become, by the law of nations, the property of the captor : for natural reason gives to the first occupant that which has no previous owner.” Justinian, Lib. 11, Tit. 1, par. 12.

The statute quoted accords to the owner of the land which any river, bay, lake, bayou, cove, inlet or pass “ makes into or runs through, * * * the exclusive right to use said body or bodies of water for planting oysters and other shell fish.”

This land seems to have been recognized as a part of the public domain, and as such the State sold it to the plaintiffs’ vendors. The Legislature has, by very strong implication, recognized the right of property therein as vested in private individuals. The district judge was of the opinion that Bayou Cook was not an arm of the Gulf of Mexico, and that its banks formed no part of the seashore — hence the land in question was not common property, but was susceptible of private ownership, and we are of the same opinion.

As there is no complaint made by appellee of the lower judge’s reservation in favor of the defendants, his—

Judgment is affirmed.

Mr. Justice Todd absent.


author: Bermudez, C. J.

text:
    No. 10,115.
    A. J. McCearley vs. Louis Lemennier.
    In t-lie absence of clear proof of dedication to public use, or of formal assent by tbe owner, from which the same can be inferred, a road used by the public by the tolerance of the latter for thirty years and eren longer, will not be declared a public road..
    Section 3668, R. S., which incorporates an aot of 1818, defining what roads are public, should be construed with Art, R. C. C. 455, which declares that the use of the banks of navigable rivers or streams is public.

    In the instant case, the bayou on which it is claimed that the lands of the defendant front, js not a navigable stream and the road in question is not public,

      APPEAL from the Ninth District Court, Parish of Tensas. Young, J.

      Steele, Garrett & Dagg for Plaintiff and Appellant.

      Luce & Lemle for Defendant and. Appellee:
    1.Tbe police jury of Concordia parish has plenary, unlimited and exclusive power to make such enactments in regard to roads witliin the limits of Concordia parish as may be necessary and convenient. Act N o. 146 of 1858; 34 Ann. 362; 30 Ann. 1092; Secs. 3364 and 3367, R. S.; 7 Ann. 150 ; Sec. 62 of General Levee Law of 1829 ; Bul. and Cur. 760.
    2.The State enforces no system of its own in reference to voads. By Act No. 146 of 1858 and Section 3367, R. S., the regulation of such matters was entrusted to the local authorities. 34 Ann. 363.
    3.The road legislation passed by the State in 1818, Sec, 3368, It. S., was erroneously incorporated in the R. S. of 1870, as it had been repealed by ActNo. 146 of 1858, relegating this matter to the police juiies. 34 Ann. 363.
    4.In order therefore to ascertain what are the i>ublio roads of Concordia parish, we must look to the “road ordinance ” adopted by tbe police jury in 1859 and not to See. 3368, R. S.
    5.Section 1 of said ordinance changes Sec 3068 R. S*, by inserting navigable before rivers and bayous.
    6.Tbe road was never dedicated to the public. The mere fact that for thirty or forty years the public was permitted to pass over the road would not, of itself, prove a dedication or constitute the road a locus publicus. 37 Ann. 502; 18 La. 206; 19 La. 71; 3 Ann. 282 ; 26 Ann. 462; 15 Ann. 316; 16 Ann. 404.
    7.A dedication of a passage can only he established by a written title or its equivalent as a plot or plan or by pai ol evidence so conclusive as to amount to documentary evidence. 37 Ann. 502.
    8.The Bank of Cut Off Bayou is understood to be that which contains it in its ordinary state of high water. Art. 457, C. C.
    9.Cut Off Bayou is not navigable. 13Ann.l8i; Sec. 2743, R. S. No. 13.
    10 If Cut-Off Bayou is navigable, tbe public only has a servitude on the road on the bank of same for purposes incident to the nature and navigable character of it and not for all purposes. 12 Ann. 655; Arts. 455. 457, 665 and 753, C. C.
    11.The servitude established by Art. 455, C. C., should be strictly construed jin favor of the owner of the property to be affected. It. C. C. Art. 753.
    12.There is no pretense that McCearley desired to use the road in controversy for any purpose incident to the navigation of Cut Off Bayou.
    13.Both Sec. 1 of the ordinance of the police jury and Sec. 3368, R S., are unconstitutional, null and void, as it deprives one of his property without due process of law, and without a just and adequate compensation drat being made. R. C. C., 497; 37 Ann. 504; 7 R. 509 ; 27 Ann. 204 and Arts. 2626 to 2625, K. C. G.
    14.Damages must be established with legal certainty. Statements of items in globo without details will not be sufficient. 11 Ann. 178; 15 Ann. 504; Sedgwick on Damages, p. 633; 21 Ann. 185; 37 Ann. 492.
   The opinion of the Court was delivered bj7

Bermudez, C. J.

The record contains a motion to dismiss, of which no other mention need b© made than that it presents no merit and is overruled.

The object of this suit is to have a certaio road declared pubMo and to recover damages for its obstruction by the defendant, who pretends that it is private property.

From an adverse judgment, the plaintiff appeals.

The road, with a bayou known as Chd Off Bayou, begins at the public levee on the Mississippi river in the direction of Red river, and runs, more or less, along the side of the bayou several miles, except where it becomes itself a cut o#" through cultivated lands at a distance from the bayou on “Rurnstown” plantation, which is now owned by the defendant.

It is claimed that the road through those lands is a public road: because it was dedicated as such to the public; because it has been used as such by the public for upwards of thirty years, and because it was made such by law.

The record is barren of any evidence to show the alleged dedication. Nemo presumitur dona/re.

It contains testimony, however, to show the use by the public during thirty years, but this use, for that length of time and longer by the sufferance or tolerance of the owner, has been declared to be insufficient to convert a private into a public road. Morgan vs. Lombard, 26 Ann. 462; Torres vs. Falgoust, 37 Ann. 497, and authorities cited,

An attempt was made, which proved unsuccessful, to establish that the police jury had considered and treated this road as'a public road. The reverse is, we think, established by the evidence.

By the act of 1818, which now forms part of the R. S. as Sec. No. 3368, it was provided 1hat all roads opened, laid out or appointed by the Legislature or police juries, and all such made by individuals whose lands front rivers or bayous, shall be deemed public roads.

The defendant contends, however, that this law must be construed together with Art. R. C. C., 455, which declares that the use of the banks of navigable rivers or streams is public.

If this is done, and we think it ought to be, the inference is that the law, in its second part, invoked by the plaintiff was designed to apply to such roads only which run along navigable streams, bayous, etc.

This is, indeed, the construction placed upon the section in question by the police jury of Concordia parish, as appears by an ordinance passed by it, to carry out the law in 1859, in which it is declared that all roads in the parish laid out, opened, or appointed by the Legislature or the police juiy, and made on the front of their respective lands by individuals, when such lands have their fronts on any of the navigable rivers or bayous in this State, shall bepubMo.

The term 11 navigable” was pronounced as never having been intended to apply to streams only capable of an imperfect navigation, in times of flood and very high water. Were the mere fact that a steamboat or flat has been up some distance a stream in high water — a sufficient ground for declaring it navigable — every slight depression of the soil in Louisiana would become a ncwigable stream and be opened to rafts and boats and convenience of a few persons, to tbe total destruction of the planting interest. Boykin vs. Shaffer, 13 Ann. 131.'

On the question of navigability of the bayou, the evidence shows conclusively, that no boats or crafts capable of transporting cottou, and not even skiffs, have been known to pass through it, unless possibly, at long intervals, in stages of high water and when the hanks were overflowed. The growth of trees has made the bayou such that skiffs or logs can hardly be put through.

The charge that the defendant is estopped from denying that the road is public, because he was a member of a police jury which declared it to be sucli and of a committee of supervision, is unfounded.

Reference to the ordinance alluded to, shows that the defendant was one of a committee to lay out a new road.

G-ranting that, as such, he caused hands, placed under his direct or indirect control by the parish, to repair the road in question, it does not hence follow that he treated it as a public road.

He no doubt thought that, as the public used the road with his tolerance, it was proper that hands paid by the public should at least then, iu an urgency, do some work on it, to keep it in passable condition. This would be sufficient justification..

On tbe other hand, it appears that, considering that tbe road in question was not a public road, the plaintiff, with a number of citizens, petitioned the police jury to make it a public road.

It is unnecessary to consider the claim in damages, the case being with the defendant, as was found by tbe district judge.

Judgment affirmed.


author: Poché, J.

text:
    No. 10,081.
    James Wood vs. Emile Daboval.
    In an action for the liquidation of a partnership, in which issue has been joined between the parties, as to the sufficiency and correctness of an account furnished to the suing partner hy the managing partner, in which a trial has taken place on evidence introduced on the merits of the controversy, and in which the defendant had not filed an exception or even prayed for the dismissal of the suit, a judgment maintaining an exception, and for those reasons dismissing the suit, is not responsive to the issues tendered by the pleadings; and such a judgment cannot be reviewed on tbe merits by the appellate tribunal.
    In such a case the judgment will be set aside and the cause remandedior trial on the issues involved iu the controversy.
    APPEAL from the Civil District Court for the Parish of Orleans. liighior, J.

      W. B. Lancaster for Plaintiff and Appellant.

      Sambola & Hueros for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

This suit is for the liquidation of a partnership, of which plaintiff was a dormant partner, and which was under the exclusive control and management of the defendant.

The partnership had been formed for one year, to begin on the first, of June, 1882.

The relief asked by plaintiff was a detailed and exact account from the defendant of the affairs of said partnership, and for a judgment against the defendant for such amount as might be found to be due to plaintiff after a final and judicial investigation of the accounts of the firm.

After a general denial, and after denying specially that he had the exclusive control of said partnership, defendant averred that he has furnished plaintiff with a full and final account of the transactions of said partnership, and.'also with a statement of plaintiff’s personal account with the firm, both of which went to show a balance of $42.88 in favor of plaintiff, who received said statements without ever questioning the correctness of either. Alleging that he has frequently offered to pay said balance to plaintiff, defendant embodies in his answer a succinct statement of the account of the partnership, and he concludes with a prayer for such judgment as the nature of the case may require and the law will permit ”

The issue having thus been joined between the parties, as to the correctness of the account rendered by the defendant, with a prayer by both parties for a judgment liquidating the partnership, followed by the introduction of a mass of testimony and of some documentary evidence, bearing on the merits of the controversy, the judicial mind is served with quite a surprise on finding in the record the following judgment, from which plaintiff prosecutes this appeal: “ In this exception, submitted for adjudication and for the reasons orally assigned by the court, the law and the evidence being in favor of plaintiff in exception, it is ordered that the exception filed herein he maintained and accordingly that plaintiff’s suit be dismissed with costs.” And the surprise thus experienced grows into amazement at the perusal of the briefs filed here by both parties, who join in a discussion of the entire controversy on its merits, in an appeal from a judgment sustaining an exception, and in a record which contains no exception. In their brief defendant’s counsel make this statement: “The judgment of the lower court; which called and treated the defense embodied in the said answer as an exception, dismissed the suit with costs.”

But this statement is not borne out by the record, from which it appears that the defendant acknowledged an indebtedness to plaintiff in the sum of $42.88, without averring a legal tender thereof, and that in his prayer he had not asked for the dismissal of the suit. Hence it is clear that the judgment on appeal is not responsive to any issue tendered by the pleadings. The statement furnished to his co partner by the defendant was either an accounting or it was not, and if a sufficient account, it was either correct or it was not.

If it was a sufficient account, and if correct, the judgment should have been in favor of plaintiff for the balance in his favor acknowledged by the defendant. If the conclusion was that the statement was not a sufficient accounting, or that it was not correct, then a proper judgment, based upon the partnership books and other testimony in the case, should have liquidated the partnership by determin ing the rights and liabilities of the partners inter sese.

But under no event and under no law or judicial precedent was there any room or reason for the judgment rendered in the case.

Under those circumstances we are powerless to review the merits of that judgment, and to decide whether it is intrinsically right or wrong, as the record does not set forth the issue on which it seems to be predicated.

We are left but one alternative, and that is to set it aside and to remand the cause for further proceedings according to law.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is ordered that this cause be remanded to the lower court, to be there tried under the issues contained in the pleadings and according to law, the costs oí this appeal to be taxed against the defendant, other costs to abide the final determination of the case.


author: Todd, J.

text:
    No. 10,065.
    H. T. Cottam & Co. vs. Mechanics and Traders’ Insurance Company.
    "Wbero goods, whilst on the wharf of a steamship company, awaiting shipment on one of the vessels of the company, are burned, the ownets of the goods cannot recover for their loss upon a policy of insurance, wherein the goods insured or to be injured are referred to (quoting) : “as goods laden or to be laden on board the good ship---’’when the policy contained the further expression (quoting:) “Beginning the adventure upon said goods and merchandise from and immediately following the loading thereof on hoard of said ship.”
    This last expression will control as to the time the risk began; the former may be regarded as descriptive of or as designating the stock of goods or merchandise intended to be insured.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Braughn, Buck, JDinkelspiel <& Hart for Plaintiffs and Appellants.

      Percy Roberts for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is an action to recover a loss from (ire under a policy of insurance.

The cause of action is set forth in the petition as follows :

“ That on the 18th day of September, 1883, petitioners entered into an agreement and contract with said insurance company, by which it issued to them what is known as an open marine policy, a copy of which is hereto annexed as part of this petition, which said policy was extended from time to time and was in full force and effect on the 29 th day of January, 1887.
“That on the-day of January, 1887, petitioners made application to said insurance company to insure under said open policy certain goods, described in the annexed bill of lading, which application was made on the blanks of the company provided for that purpose, one of which is hereto annexed as part of this petition.
“ Now your petitioners farther represent that, after said bill of lading had been-signed by the agents of the steamship Louisiana, in the city of New York, and while said goods were in. the possession of said steamship, for the purpose of being laden thereon, and while on the wharf of the steamship company in the city of New York, they were totally destroyed by fire on the 29th of January, 1887. That said loss was within the terms of said policy, and therefore said company is liable to petitioners for tbe full value of said property, the aforesaid sttm of twenty-one hundred dollars. That the steamship Louisiana, upon which said goods were to be shipped, was to have left the city of New York on the-day of January, 1887, and said goods would have been laden thereon for said voyage if it had not been for the aforesaid fire.”

There was an exception of no cause of action filed and sustained, and judgment dismissing the suit, from which the plaintiffs appealed.

The controversy turns on the construction of the policy.

'One clause of it reads as follows :

“MARINE POLICY.
“The Mechanics and Traders’ Insurance Company of New Orleans, by this policy, do insure H. T. Cottam & Co., for account of whom it may concern, lost or not lost, subject to the rates of premium, rules and conditions of the Board of Undei writers of New Orleans, existing at the time of shipment upon all kinds of lawful goods and merchandise, laden or to he laden, on board of the good ship--.”

The contention of the plaintiffs is that the words “ laden or to be laden ” embraced not only the goods actually on board the vessel, but ' likewise goods in the custody of the carrier, though not on board the steamer.

Did this clause stand alone the matter would seem too clear for disputation, and the loss in the manner and under the circumstances stated in the petition would manifestly be covered by the terms of the policy. But there follows another clause in these words :

“ Beginning the adventure upon the said goods and merchandise from and immediately following the loading thereof on hoard of the said vessel at--”

It is this last clause that makes room for controversy. The two clauses, at first blush, would seem to conflict. But is there a real conflict between them 9 Can they be reconciled 9

The last clause was evidently intended and used to define the precise time when the risk began.

The words “beginning the adventure” are the equivalent of the expression “ risk commencing.” And when does it so begin 9 In the language of the contract “from and immediately following the loading thereof on board of the said vessel.”

If from language so clear and explicit, the true intent of the parties would seem to be that the undertaking of the company — the risk — did not commence until after the goods were on board, how are we to dispose of the language in the first part of the policy, above quoted, to the effect that the company insures all lawful goods, “ laden and to he laden on board the ship

The goods intended to be insured were, at that time, purchased. Some of them were already on board of the ship when the policy was signed; some were to be put on board after the signing. These goods already on board and those to be sent on board were the goods to be insured. .This language does not necessarily indicate when the policy was to go into effect, nor the exact time when the risk was to begin, but it may reasonably be inferred, especially when we consider the’ subsequent expressions relative to the beginning of the undertaking or risk, that the words “ laden and to be laden on board ” were used to designate the thing or stock of goods to be insured — that is, used in a descriptive sense.

The sole vital question in the case for the determination of the Court is, when did this policy become operative — when did the risk begin 7

We think the policy answers that question explicitly, free of all ambiguity, in the words following the loading of the goods on board of the vessel,” i. e. after the goods are on board the ship.

Our conclusion on this point is supported by several adjudications. Notably among others is that of Gordon & Talbot vs. American Ins. Co., 4 Denio, p. 360, substantially a parallel case, as will appear from the following quotations from the decision :

Declaration on a policy dated October 7, 1841, whereby the plaintiffs were insured, lost or not lost, at and from Canton, to a port of discharge in the United States, upon the freight of all kinds of lawful goods and merchandise, laden or to he laden on board the good ship America, whereof--is master, etc. Beginninng the adventure upon the said freight from and immediately following the loading thereof on board of the said vessel at--as aforesaid,” etc.
**********

They did not take upon themselves any risk until the goods should be on board the ship; and as there is no averment that any were put on board, the plaintiff cannot recover.” See also Murray vs. Ins. Co., 4 Johnson, 449; Smith & Hall vs. Mobile Navigation and Ins. Co., 30 Ala., R. 167.

The plaintiffs’ counsel cite as opposed to the authority of the above cases: 10 R. 434; 7 Ann. 235; 17 Fed. Rep. 920; 95 U. S. 30.

All of these cases we have examined and none of them, save the last, directly involve the liability of insurance companies or the eonbtruction of insurance policies, but refer to the responsibilities of common carriers to the shippers under the bills of lading.

In the last case (95 U. S. 30) the main point decided was that although a written agreement cannot be varied by proof of the circumstances out of which it grew, the circumstances may be resorted to for the purpose of ascertaining the subject-matter of the agreement and the stand point of the parties in relation thereto.” As for instance to show that where the policy of insurance contained a clause '(quoting): “ the risk is to be suspended while the vessel is at Baker’s stand loading ” the true meaning of the clause and the light of surrounding circumstances was that the risk was to be suspended whilst the vessel was at the place designated for the purpose of being loaded.

That case is not relevant because, in the instant case, no circumstances exist or are suggested calculated to elucidate the contract as to the intent of the parties, and the language of contract in our estimation is clear and explicit and free from all obscurity.

For these reasons, we do not feel authorized to disturb the conclusion reached by the judge of the first instance.

Judgment affirmed.


text:
    No. 10,117.
    Leon Querouze vs. Mrs. A. S. Capmartin and Husband.
    To bind tli© wife as a public merchant two things are essential — 1. that the business be conducted in her name; and 2. that it be separate from that of her husband.
    Where the business is conducted in a name which is neither that of husband or wife, and when the plaintiff, in his businoss correspondence, addressed his [letters in such name with the prefix of Monsieur, he cannot claim that he supposed the name to designate the wife.
    When th© husband appears as the head of the business and mainly conducts it, when the licenses are taken out and the contracts executed in his name, and when he is regarded in the community as its head and master, no participation therein by the wife will make her liable.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      J. M. Tucker and P. Miohinard for Plaintiff and Appellant.

      J. E. Breda for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The object of this suit is to hold a wife liable for a mercantile account contracted by a concern which did business in the town of Natchitoches under tlie name of A. S. Capmartin, on the ground that she contracted said debt as a public merchant.

The name in which the business was conducted is not the name of either the husband or the wife. The husband’s name is A. Sallieres. The wife’s maiden name was Anna Capmartin, and her married name might be Anna Capmartin Sallieres, but certainly not Anna Sallieres Capmartin, or A. S. Capmartin.

The business was managed by the husband and wife jointly,- but mainly by the husband, who did most of the trading and conducted nearly the whole of the correspondence.

The account was kept, the goods invoiced and everything conducted by plaintiff in the name of A. S. Capmartin. Whom did the plaintiff consider to be A. S. Capmartin ? A significant circumstance which no explanation and hardly any evidence could overcome is that plaintiff’s correspondence is almost universally addressed to “ Monsieur A. S • Capmartin,” aud begins “ Mon cher Monsieur.” while the husband’s letters were often signed A. Sallieres as well as A. S. Capmartin. Monsieur A. S. Capmartin means necessarily monsieur le mari, not madame la femme.

The Code provides “ she (the wife) is considered as a public merchant, if she carries on a separate trade, but not if she retails only the merchandise belonging to the commerce carried on by her husband.” Art. 131.

Marcadé, commenting on like article, 220, of the French Code, says: The wife is not considered as a public merchant when she merely retails goods engaged in the husband’s commerce.

Then it is not she who trades, but her husband, and she is simply his mandatary. Whenever the business is not conducted in the name of the wife, the husband is the master, and she only buys and sells for 'his account, binding him only and not herself.” 1-Marcadé, p. 561.

And Demolombe gives the meaning of the Code to be this : When the husband himself trades and is personally at the head of the business, the wife’s personality disappears. And if she assists her husband, if she stands behind the counter and sells, if even she signs notes or bills, in all this she is held to act only as mandatary of hex-husband without binding herself.” 4 Demolombe, p. 236.

And the French courts so interpret it: A married woman, whatever part she may take in the business of her husband, cannot, on that account, be held as a public merchant. She is a public merchant only when she conducts & separate business.” J. P. 1841, 1 219.

To the same effect is our own jurisprudence. Chauvier vs. Fliége, 6 Ann. 56; Sarran vs. Ragouffie, 12 Ann. 350; Christensen vs. Stumpff, 16 Ann. 50.

All the above cases presented features similar to this, and in some particulars stronger, against the wife.

The business here was not conducted in the name of the wife, and the correspondence conclusively shows that the named used, although not the name of the husband, was understood to designate the husband. The business was not separate from that of the husband in tbe sense of the law, hut he himself conducted it and appeared as its head. The State and parish licenses were taken out in his name, and the evidence shows that the community in which it was carried on regarded and treated him as the merchant. All the contracts for furnishing supplies to farmers or laborers, which was the chief business, were made in tbe name of A; Salliéres.

We have carefully considered the evidence touching the conduct and representations of the wife in her dealings in this city, but we think tbe whole conduct and management of the business too clearly indicated to plaintiff, the participation in and control of the business by the husband, and that their correspondence too clearly shows that the A. S. Capmartin with whom they dealt was a monsieur and not a múdame, to justify us in holding the wife for a fraud, the commission of which, or intent to commit it, is denied by her under path. If plaintiff was deceived, it was in the face of facts and circumstances which should have enlightened him and prevented the possibility of deception.

Judgment affirmed.