text:
    No. 2247.
    B. Letzler v. B. W. Huntington.
    A person wbo causes the arrest and imprisonment of another, without showing probable cause for his conduct, is liable in damages, and the acquittal of the person arrested after a trial or an examination, is presumptive evidence of want of probable cause for the arrest.
    from, the Fifth District Court of New Orleans. Beaumont, J.

      Brauglm <& Bucle, for plaintiff and appellee. M. Orivot, for defendant and appellant.
   This case was tried by a jury in the court below.

Howell, J.

The defendant has appealed from a judgment rendered on the verdict of a jury against Mm for damages for false arrest and imprisonment on a charge of larceny of certain cotton wrecked in Mobile bay and brought to this city on plaintiff’s schooner.

The defendant’s counsel objected to a copy of the affidavit made by defendant, because it was not certified as a true copy by the Recorder, and was not an affidavit for larceny, as charged in the petition, but for the conversion of the cotton, which belonged to the wreck of a certain steamer.

The form, “ a true copy,” signed by the Recorder, is a sufficient certificate. The second objection goes to the effect and not the admissibility of the document.

The objection to the second document attached to the former, as an affidavit of the officer making the arrest, should have been sustained, as it was unsigned.

The evidence establishes the arrest, imprisonment and discharge of the plaintiff, and that the defendant was the prosecutor. It also shows that the plaintiff bought the cotton in Ocean Springs, Mississippi; that he was a man of good character; that the defendant made the affidavit» after having been informed on this subject, expressed his regret, and said he would not make it; that the examination of plaintiff before the Recorder was continued from time to time for a month, to enable the defendant to procure evidence to sustain his charge, and that plaintiff, who resided and did business in Ocean Springs, was put to great expense and inconvenience on account of this prosecution.

Under the circumstances we think plaintiff has shown all that is essential to maintain Ms action for damages, on account of an illegal prosecution and imprisonment without probable cause.

Judgment affirmed.


source: Caselaw Access Project

author: Taliaeerro, J.

license: Public Domain

text:
    No. 3860.
    No. 3861.
    Widow de St. Romes v. Carondelet Canal and Navigation Company. Widow de St. Romes v. Carondelet Canal and Navigation Company.
    A judgment botwoon the same parties on tbe same cause of action is only res judicata as to tlie questions actually passed upon in tbe first judgment. So that questions urged in tbe firs t judgment and not passed upon by tbe court, may become tbe basis of another suit without being defeated by tbe plea of res judicata.

    A continuous resistance to tbe enforcement of a judgment*interrupts prescription from running against tbe action of nullity. C. P. 612.
    from the Sixth District Court, parish of Orleans. Cooley, J.

      Viator de St. Homes, for plaintiff and appellant. H. JD. Ogden, for defendant and appellee.
   Taliaeerro, J.

In the year 1859 the Carondelet Canal and Navigation Company obtained two judgments against the Widow de St. Romes, one on the seventh of March, and the other on the tenth of November following. Before the expiration of ten years, suits were brought to prevent the judgments so obtained from being prescribed. The defendant in those suits, plaintiff in the eases now before us, set up in defense that she had never been legally cited in the original suits, and that she had never authorized any one to sign the obligations upon which those suits were predicated. Upon these issues raised in the action to revise the judgments the decision was adverse to the defendant, and she appealed. The judgment was confirmed on appeal. 23 An., 437. In due time executions were taken out on the original judgments, and the Widow de St. Romes took out injunctions to restrain the seizure and sale of her property and setup the nullity of the judgments obtained against her in 1859 on the following grounds: That the judgments were rendered without citation to her. That no person was authorized by her to subscribe to the capital stock of the company on her account, and that she did not subscribe herself nor authorize an agent to subscribe for her. Judgment was rendered against the plaintiff dissolving the injunction with one hundred and twenty-five dollars for attorney’s fees as damages in favor of the defendant, and the plaintiff has appealed. The defense is res judicata and prescription. In the suit to revive the judgment of the defendant against the plaintiff the question as to the irregularity of the original proceedings on account of the want of citation, this court deemed it unnecessary to decide. The plea of res judicata, therefore, so far as relates to the want of citation in the original suit, cannot apply. Neither is the action to annul prescribed. The plaintiff has opposed throughout the execution of the judgment she seeks to annul, and has not debarred herself the right of action to annul by suffering the judgment against her to be executed. C. P., 612.

There was no evidence introduced on the question of want of authority of the agent Dunges. In regard to the time of citation in the original suit the plaintiff and hertwo sons testified. The plaintiff herself swears that no citation was served upon her; that at the time when it is alleged to have been served she was confined to her room by sicknesss, and was most of the time in bed. The testimony of the two sons is of a negative character. One of them said it was physically impossible for the deputy sheriff to serve the citation personally upon the plaintiff, but he gave no facts tending to show why it was physically impossible. It is shown that the officer who received the citation has been dead ten years or more. The return upon the citation is shown to be in his handwriting, and it recites that service was made on the plaintiff in person. A sheriff’s book was produced in which an entry was shown of corresponding date with the return on the citation, and this entry recites that service was made in person on the plaintiff at her domicile. The plaintiff admits that she received notice of judgment in 1860.

The evidence on the part of the plaintiff does not, in our opinion, overcome that exhibited by written instruments. The presumption is that the officer’s return correctly sets forth facts. It is supported by the entries in the sheriff’s book, in which was noted the service when made, and that it was made in person on the plaintiff, the date corresponding with the date of service as stated in the return. The plaintiff is a woman advanced in life, and the testimony in the record in regard to other facts renders it not improbable that her memory of events that passed twelve years ago may in some instances be at fault. At all events the evidence on her part falls short of making out a case that would authorize the annullment of the judgment she complains of.

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

Eehearing refused.


author: Wyly, J.

text:
    No. 3915.
    State ex rel. F. A. Luling v. Judge Fourth Judicial District Court, Parish of St. Charles.
    "Where the return clay for an appeal has been inadvertently fixed on a non-judicial day (Sunday) the appellant is entitled to the whole of the next day to file his appeal.
    A transcript of appeal is considered as 'filed in the appellate court from the moment that it has been deposited with the clerk, although the formal indorsement thereon was not written until the following day.
    from the Fourth District Court, parish of St. Charles.

      W. O. Denegre, for relator. B. Beauvais, Judge, for respondent.
   Wyly, J.

This is a proceeding by mandamus to compel the Judge of the Fourth District Court, parish of St. Charles, to execute a judgment, on the ground that the appellant had failed to file the transcript of appeal within the legal delay.

It appears that the return day, as extended, was the twenty-eighth of February, which was Sunday. The next day, between six and half-past six in the evening, the attorney of the appellant deposited in the clerk’s office the transcript, but the clerk being absent the filing was not indorsed thereon till the succeeding day.

The transcript being deposited in the proper office, within office hours, must be regarded as filed, although the formal indorsement thereof was not written till the next day.

Tlie return day occurring on Sunday, we think the appellant was entitled to the whole of the next day to file his appeal.

In view of the facts stated, we think the judge did not err in declining to execute the judgment pending on a suspensive appeal in this court.

Let the mandamus be disallowed and the petition be dismissed at the cost of the relator.


author: Taliaferro, J.

text:
    No. 2544.
    Vor. Maignan & F. Laborde v. New Orleans, Jackson and Great Northern Railroad Company.
    A common carrier wbo undertakes to carry freight from one point to another is responsible for the delivery of the goods at the port of destination. A mere notice by the carrier to the consignee, that his goods are landed, is not sufficient to discharge the carrier in case of loss.
    from the Fifth District Court, parish of Orleans. Beaumont, J.

      Whitaleer <& Bice, for plaintiffs and appellants. B. IS. Bimonds, for defendants and appellees.
   Taliaferro, J.

This is an action to recover from the company $577 50, with interest, the value of four barrels of whisky, brought over their road from Canton, in the State of Mississippi, to New Orleans, and alleged by plaintiffs never to have been delivered to them. The defendants admit that they transported for the plaintiffs fifty barrels of whisky to New Orleans as set forth by them, but aver that they made due delivery of the same, and deny that they are liable to plaintiffs in any manner. There was j udgment in the court below in favor of the defendants, and the plaintiffs hayo appealed.

The case depends entirely upon the question of delivery. It seems that the fifty barrels of whisky arrived at the New Orleans depot on Saturday. An employe of the plaintiffs testifies that he noticed in the Monday morning’s newspaper that tile whisky had arrived on the previous Saturday; but that no notice of its arrival had been given by the company in accordance with their usual custom, and that he only learned of its arrival by seeing the statement in the newspaper; that an order was sent for the whisky, directions given for payment of the freight, and a gauger dispatched to gauge the liquor; that it was too late on Saturday evening after the gauging was got through with to receive the whisky, and the hauling of it away was not commenced until the next morning, when several drays were put in requisition for that purpose; that about 3 o’clock P. M., of Tuesday, forty-five barrels had been taken away, and when a drayman returned for the remaining five barrels, only one of them could be found. It is shown that the whisky had been stored in the warehouse or storeroom of the company. The clerk or cashier of the company at the depot, whose business it seems was to attend to the delivery of freight, testifies that when the drayman came into his office and presented the order for the whisky it was raining hard, and that he could not at the time attend to it himself, but sent one of the watchmen to show the draymen the whisky they were to haul. This watchman testifies that by instructions from the clerk he went with the draymen, counted the barrels, finding the full number there, and said to them: “ There-is your whisky.” The clerk further testified in regard to delivery, that this had been the mode of delivering freight at the depot up to-the time of the delivery of this lot of whisky to the plaintiffs; that his practice had always been to go out with a person having freight, show him his lot, count the parcels, and say: “There is your lot; take it.” That he considered that a delivery, and afterwards abandoned the goods and had no more to do with them. In answer to questions by counsel, he said: “We count the lot to him still, but we work differently now.” Being asked if, when a drayman took away two- or five barrels, it was customary to get a receipt for them, he answered: “ No, but I have done it since, just on account of that circumstance”— alluding to the difficulty that arose from the loss of the four barrels of the plaintiffs’ whisky.

Much of the testimony in this record is irrelevant. That portion of it bearing immediately upon the only question in the case does not in our opinion show such a delivery as will exonerate the company as-common carriers from liability for the loss shown to liave been sustained by the plaintiffs in this case. By the subsequent adoption of a stricter usage in regard to delivery the company seems to have brought itself under the rule that appears to be the one now generally prevalent, that the consignee should have time and opportunity to remove the goods by the exercise of the proper watchfulness, before the responsibility of the carrier ends. Redñeld on the Law of Railways, vol. 2, pp. 55, 56 and 57.

We think the judgment appealed from erroneous. It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the defendants deliver to the plaintiffs the four barrels of whisky, shown to have been missing through the fault of the defendants, or pay the plaintiffs the value thereof, viz: five hundred and seventy-seven dollars and fifty cents, with five per cent, interest thereon, from judicial demand, and all costs of suit.

Rehearing refused.


author: Howell, J.

text:
    No. 2539.
    John Marks & Co. v. Simon Herman.
    The holder of a promissory note who wishes to hold an indorser thereon, must give him notice of the failure of the drawer to pay at maturity.
    A person who is hound unconditionally on a promissory note, is not entitled to notice of nonpayment by the drawer.
    PPEAL from the Fifth District Court, parish of Orleans. Leaumont, J.

      Cotton & Levy, for plaintiffs and appellees. Cooley & Phillips, for defendant and appellant.
   Howell, J.

The motion to dismiss this devolutive appeal on the ground that a suspensive appeal having been dismissed because the bond was not payable to the clerk, the appeal must be considered abandoned, comes too late, more than three days having intervened between the filing of the record and the motion.

The suit was brought on two notes payable on demand to the order of defendant, and by him specially transferred to plaintiffs three years after tlieir date, and protested about two years thereafter.

The defendant denies that he is liable as an indorser, and if an indorser, then that demand was not made in due time or legal notice served.

It is shown that at the date of the said transfer defendant was indebted to plaintiff in the amount of the two notes. The evidence of the transfer is in the following words:

“ I transfer the within note to J. Marks & Co., or order, payable on demand.
"New Orleans, June 13, 1864.
(Signed)
S. HERMAN.”

The question arises, how was the defendant Herman bound ? The plaintiffs contend that he undertook the payment of said notes, when demand upon him should be made. If this be so, he was the unconditional obligor, and protest was unnecessary.

But we do not so understand his engagement. We regard the form in which he made the-transfer as recognizing that the makers of the notes were bound on demand, and if they failed to pay when demand should be made, and due notice be given to him, he would be bound. That is, he became indorser, entitled to notice when demand should be made on the makers. 20 A. 546.

The plaintiffs have evidently been guilty of laches in making the demand and giving the requisite notice, nearly two years having transpired before the demand and protest (admitting that the notice was in legal form), and no reasonable cause of the delay shown. We must conclude that the defendant has been discharged as indorser. 20 An. 546 ; 16 An. 179.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant with costs in both courts.

Rehearing refused.


text:
    No. 3685.
    Richard T. Vinson, Administrator, v. Numa Vives.
    The payee of promissory notes, given for the price of a plantation, is not guilty of fraud in making a compromise with the holder thereof, whereby he obtains a reduction of the amount predicated on a depreciation of value on the property sold, on account of the casualties resulting from a state of war.
    "Where the wife has died after a sale by the husband of a plantation, the property of the community, but before payment has been made, the purchaser who has no knowledge of her death, is not guilty of fraud if he compromises with the husband, as vendor, by-taking up his notes and giving others in their place for a less amount.
    The husband, as one-half owner in his own right of community property which he has sold before the dissolution thereof by the death of his wife, and having the usufruct of the other half of the community, has the right to collect the notes given for the price of the sale.
    from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.

      J. B. Whitington, for plaintiff and appellant. Nichols <& Tolse, for defendant and appellee.
   Wyly, J.

In 1862, James B. Vinson sold to Numa Vives his plantation in the parish of Assumption, on credit, for $41,000, and moved to the parish of Caddo, where his wife died in 1864.

In December, 1865, James B. Vinson, having in his possession the four promissory notes made by Vives, representing the price of the land, amounting in the aggregate to $41,000, called upon Vives for a settlement; the latter, owing to the disasters of the war, was unable to pay him, but was willing to return the property. Vinson, however, proposed a compromise, which was accepted, and the agreement was reduced to writing iu an act under private signature. By this agreement the original debt was not to be novated, but only reduced to 824,000, Vives paying, in lieu of the original notes, $10,000 cash, and executing his six promissory notes for $2,333 33J ■each, payable in the month of March of the years 1867, 1868, 1869, 1670, 1871 and 1872. On the 27th February, 1866, this agreement was carried into effect, as appears by the act passed by Shannon, notary. The $10,000 were paid, and the six notes were executed, the same being secured by the original mortgage, the act reciting that no novation was intended, and that said payment and said notes were given in lieu of the original notes, amounting to $41,000, which were then surrendered to Vives.

All of these six notes have since been paid, excopt the last two, maturing in March, 1871 and 1872.

At the time of this compromise no one was appointed to represent the succession of Mrs. Vinson, wife of James B. Vinson, who died in 1864.

Vinson was confirmed as natural tutor in 1867, all the heirs being minors but the plaintiff, Richard T. Vinson.

On the 20th of April, 1870, Richard T. Vinson was appointed administrator of his mother’s succession. In August following he instituted this suit to collect from Vives the full amount of the original notes, $41,000, and to foreclose the mortgage, alleging that, as partner in community, one-half of the amount thereof belonged to his mother, and her succession being unrepresented, his father was wholly unauthorized to make the compromise in 1865, whereby the original notes were surrendered to Vives ; that said compromise was entered into for the purpose of defrauding the creditors and heirs of their rights, resulting from the community hitherto existing between James B. Vinson and his deceased wife, and that the fact that said Vinson was acting without authority was well known to the defendant, Vives, who knew of the death of Mrs. Vinson prior to the agreement and the passing of the act before Shannon, notary.

The court rejected the demand of the plaintiff, and he has appealed.

It appears that, owing to the disasters of the war, the property which Vives in 1862 agreed to pay $41,000 for, was reduced to about $6000 in value when the compromise was made, in December, 1865, and all that Vives owned besides was $10,000 in cash. At the time of the compromise, therefore, Vives possessed $16,000 in property and money, and owed the notes, amounting to $41,000, exclusive of interest.

By the compromise James B. Vinson, the payee of the notes, received in cash $10,000, and also six notes maturing at different dates, all amounting to $24,000. We do not see how Vivos committed a fraud in entering into the compromise in December, 1805. By it he paid and agreed to pay $24,000 for property which he was willing to surrender to his vendor, and which it is shown was only worth $6000 at the time. J. B. Vinson is not a party to the suit, and we do not find any fraud as to him, if such could be considered in this proceeding. Prom the evidence we are satisfied that Vives was not aware of the death of Mrs. Vinson at the time he made the compromise. Hex* succession was not opened till nearly, five years thereafter. Vinson was the payee and holder of the notes. We think Vives had the right to pay the notes or make any bona fide settlement ho could with the holder and payee.

The maker ot negotiable paper should be protected in the settlement he has made in good faith with the holder, in whom the legal title appears to be vested. See authorities collated in Ilennen’s Digest, page 180, sections 1 and 5. •

Vinson had the right to collect the debt also, because he was the owner of one-half, and usufructuary of the other. 11 An. 760; 19 An. 15 ; 20 An. 159 j 22 A. 446.

But the plaintiff contends that if he had the right to collect the debt he did not have authority to remit a part of it. This question would more properly arise in a controversy with Vinson for a settlement of the community. He had, however, the right to remit the whole of his part of the claim, subject to any attack his creditors might institute in their name for fraud, within the period prescribed by law. The amount abated was less than the amount due him individually. Of this the plaintiff has no cause to complain.

In Gilmore v. Bailey, 12 An. 562, where a note for paraphernal funds of the wife was merged in a judgment in the name of the husband, it was held that the judgment might bo compensated by any debt equally liquidated, due by the husband to the judgment debtor; that knowledge on the part of the judgment debtor that the note on which the judgment was obtained was the property of the wife, would not prevent the compensation from taking place at any time while the legal ownership of the judgment remained in the husband. “And the reason of the rule,” said the court, “is this: A judgment debtor is not to be subjected to the hazard of a litigation between the judgment creditor and a third party claiming the ownership of the judgment, which, alter all, may prove unavailing j but he may at once relieve himself by making payment to him who holds the judgment rendered upon the commercial paper, and which has the effect of res judicata against all others.”

So the maker of commercial paper is not to be subjected to the hazard of a litigation between the payee and a third party claiming Hie ownership, which, after all, may be unavailing; but he may at once relievo himself by making settlement with him in whom the legal title appears to be vested, and who is the holder.

“The defendant has no right to inquire whether the plaintiff, in whom the legal title appears to bo vested, be an agent or the real owner of it, unless by a fictitious assignment it be attempted to deprive him of substantial grounds of defense which he has against the true owner.” See cases cited, section 5, Hennen’s Digest, page 180.

Judgment affirmed. Rehearing refused.


author: Ludelixg, C. J,

text:
    3777.
    John Frazier v. Samuel Parsons, Sheriff.
    A sheriff who himself, or through any of his deputies, under the pretense of enforcing a civil process, illegally arrests and imprisons a citizen, and while holding him under duress, illegally seizes and takes away and disposes of his property, is liable to a civil actionin damages, tho measure of which will be governed by tho aggravation and unprovoked character of tho conduct of the sheriff or deputy.
    from the Ninth Judicial District Court, parish of Natchitoches. Orsborn, J.

      JPierson dj Levy, for plaintiff and appellee. Jaelc & JPierson, for defendant and appellant.
   Ludelixg, C. J,

This is a suit against the sheriff of Natchitoches, for the value of a lot of cotton seized by his deputy, in January, 1871, under a writ of sequestration, in the suit of W. P. Cannon v. Thomas Bureli, and for damages for the tortious, illegal and oppressive acts of said deputy.

The defendant admits the seizure of tho cotton and the arrest of tho plaintiff; and he sots up the writ of sequestration as Ms authority for taking the cotton, and tho alleged threats of the plaintiff to resist tho seizure as his justification for arresting the plaintiff. There was a verdict in favor of the defendant, who remitted the damages allowed him, and the plaintiff has appealed. The testimony of the witnesses is conflicting on several points, hut the following facts seem to be well established:

That Thomas Burch leased a piece of laud from W. P. Cannon, for which he was to give Cannon one-half of what he raised on the laud j that Cannon advanced to him thirty-seven dollars and fifty cents tO' make the crop, and that Burch made about six thousand pounds of seed cotton. That Burch hauled tho cotton to Frazier’s plantation, aud sold and delivered it for a fair price, to Frazier,, who bought in good faith. That subsequently Cannon sued Burch for the half of the cotton and for the amount advanced, and obtained a writ of sequestration against Burch, in order to prevent him from disposing of the cotton. The writ was placed in the hands of the deputy sheriff, -who went to Frazier’s plantation to seize the cotton — aud he says he did seize it — and that he appointed one Ryals as keeper, who, however, refused to act as keeper for the sheriff, as he was the agent of Frazier, the plaintiff in this suit. Several days afterwards the deputy sheriff returned to the place — Frazier was then on the place — the deputy-sheriff told him he had come to take or seize the cotton belonging to Mr- Cannon. Frazier said there was no cotton there belonging to Cannon, that he had bought the cotton from Mr. Burch and ho had paid him for it, and if any one had any right to it, he could sue him lor it. The deputy sheriff persisted in seizing and taking the 'cotton, and angry words passed between them. Thu deputy sheriff swears that Frazier threatened that there would be bloodshed if any one attempted to enter the house to take the cotton. Frazier swears to the contrary. He is corroborated by several of the laborers who were present, who state they heard what passed between them. And Ryals, the agent or overseer, also declares he heard no threats of violence made by Frazier. Swan, who had come with the deputy, testifies that Frazier said the cotton should not be taken, except by force which he would not be able to resist. Thereupon, the deputy sheriff rode off, leaving Swan behind, and after nightfall he returned with from ten to fifteen men, several of them having shot-guns and some revolvers. They were noisy and boisterous, and some of them at least were under tlie influence of liquor. Frazier was sitting by a fire indoors, and he was sent for by the deputy sheriff. When he went out of his house, he was arrested by the deputy sheriff, who searched him and then placed him under guard. He was kept under arrest all night and until about noon of the following day. In the meantime the cotton was hauled off. It was ginned, baled, shipped to New Orleans by the sheriff, and sold for his account. The sheriff accounts for the proceeds of the cotton thus :

Dr.

T,o costs of suit.......................................... $150 59

To cash paid plaintiff (Cannon)............................ 152 85

Total.......................................... $303 44

Cr.

By cash on shipment of 3 bales cotton, marked S. P........ $ 85 35

By net proceeds of cotton in New Orleans................. 218 09

Total.......................................... $303 44

Thus, the half of the cotton, which Frazier had an unquestioned right to, subject only to the privilege of Cannon for $37 50, at the most, has been absorbed in paying costs in a suit to which he tos not a party. Under a writ of sequestration against Burch, property acquired in good faith by Frazier has been forcibly taken from his possession, sent out of the jurisdiction of the court and sold without an order of court, and the proceeds thereof has been most arbitrarily and illegally distributed by the sheriff. For protesting against the sheriff taking Ids property, without any process against him, the plaintiff was outrageously insulted and arbitrarily and illegally arrested and deprived of his liberty for about eighteen hours.

Suits in damages against sheriffs, whose duties are delicate, are cautiously entertained, lest the efficiency of the law be impaired ; but the declaration in the constitution, that tho right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seisnres, shall not be violated,” would be a mockery if courts should sanction such a latitude of construction, as is invoked by the defendant for the writ under which he claims to have acted, or if they failed to inflict exemplary damages for the wanton abuse of the personal liberty and private rights of property in cases like the present. For the net proceeds of half the cotton, attorney’s fees and exemplary damages, we think the plaintiff should recover from the defendant one thousand dollars.

It is therefore ordered and adjudged that the verdict and judgment rendered thereon be set aside, and that there be judgment in favor of tho plaintiff against tho defendant for one thousand dollars and costs of both courts.

Rehearing refused.


author: Wrr.Y, J.

text:
    No. 3784.
    Mary J. Walters, Executrix, v. Andrew Cruikshank.
    An agent is only bound personally -when be contracts without the authority or sanction of Ills principal. But if, as in tliis case, the principal subsequently ratifies tho contract made by bis agent, then, and in such case, the agent is not personally bound.
    from the Ninth District Court, parish of Grant. Orsborn, J.

      JR. J. Bowman, for plaintiff and appellant. R. A. Hunter and <r. JL. Hull, for defendant and appellee.
   Wrr.Y, J.

The motion to dismiss this appeal because the record contains a document not offered in evidence is frivolous and can not prevail.

The plaintiff appoals from a judgment rejecting her demand based on tho draft of the defendant for $799, which was duly protested for non-payment, and proper notice thereof given to the defendant.

The defense is that the plaintiff is not the owner of the draft, that it was given to the deceased Wm. Walters, merely for collection; that the drawer owed the defendant for rebaling some cotton, and in order to collect the debt the defendant gave Walters the draft, the latter undertaking to make the collection for him. It is also urged in defense that if the defendant is indebted to the plaintiff, the consideration of the debt was Confederate notes.

The defendant also claims in reconvention $1000, the' amount due by Cooper for rebaling the cotton, on the ground that he was employed by Walters as Cooper’s agent, and as Cooper has not paid him, Walters is liable. It is not shown that Walters was unauthorized to make the contract as agent for rebaling Cooper’s cotton in possession of the ■defendant. It is shown that Cooper ratified the contract before it was ■carried into execution and subsequently paid part of the debt.

It is well settled that the agent only becomes bound where he contracts without authority from his principal. Where he does not bind Ms principal he binds himself. Otherwise he might with impunity defraud those dealing with him in his fiduciary capacity. The contract ■of Walters for rebaling Cooper’s cotton was ratified by Cooper, consequently ho obligation against Walters arose therefrom. There is nothing, therefore, in the reconven tional demand. The statement that the defendant merely gave the draft to Walters for collection is highly improbable; it is not in the usual course of dealing, and'from the evidence wo are satisfied it is not true.

The only evidence offered to support it is the deposition of the defendant himself, which is contradicted by the witness Bringhurst. He can not escape the obligation of his contract on such meagre evidence. As to the Confederate money defense, we will remark it is not supported by the evidence in the record.

Lot the judgment appealed from be annulled, and let there be judgment for the plaintiff for seven hundred and ninety-nine dollars, with five per cent.'per annum interest thereon, from twenty-second of March, 1867, and costs of both courts.

Rehearing refused.


text:
    No. 3853.
    Joseph H. Willard et al. v. John H. Peyton.
    A succession sale of community property made to pay the debts of the estate can not be annulled because minor heirs have an interest in the succession, of which they have not been divested, according to law.
    from the Fourth District Court, parish of Orleans. Théard, J.

      33. K. Washington and M. O. Dmvn, for plaintiffs and appellants. Wooldridge & Thomas, for defendant and appellee.
   Taliaferro, J.

This is a petitory action to recover from the ■defendant twelve lots of ground with the buildings and improvements thereon, situated in the city of New Orleans, bounded by Magazine, Camp, Aline and Delachaise streets. The plaintiff also claims rent lor the use of the property, from the year 1867.

The defendant denies the allegations of the plaintiff, avers that he is the bona fide owner of the property, having- acquired a legal title thereto by purchase at a probate sale and payment of the price of adjudication. He alleges that since he became owner of the property he expended five thousand dollars in repairs and improvements made upon the property. He prays, in case of eviction, that before the plaintiffs are permitted to take possession of the property they he required to refund to him the price paid, viz.: $17,225 and $5000 costs of improvements, etc.

There was judgment in the court below iu favor of the deiendaut, and the plaintiffs have appealed.

The pretensions of the plaintiffs are based upon the assumption that nullity resulted from the proceedings by which tiie property in question was sold, the plaintiffs being at that time minors, and that their rights in the property derived from their father have never been legally divested. The property was community property acquired during the marriage of Peter H. Willard, the father, and Mrs. Mary Helen Willard, the mother of the plaintiff's, one of whom is yet a minor. She represents in this suit as natural tutrix. Upon the death of the father, Mrs. Willard qualified as natural tutrix of thejiminors, and administered the succession in that capacity. The estate was largely in debt. The tutrix, it seems, called a family meeting to •advise in regard to the interests of the minors. The meeting came to the conclusion that it was necessary to sell the property to provide for the payment of the debts, and prescribed the terms of sale. A sale was effected, but the purchaser refusing to comply with the terms of the sale, difficulties arose and some delay took x>lace in having the title reinvested in the succession. The creditors became clamorous, and one of them having a mortgage upon the property to secure a debt of about twelve or thirteen thousand dollars, demanded a sale of property for the payment of his claim, aud proceeded to apply for the administration of the estate. This was opposed by the widow, who claimed the right of administration, which was awarded to her, and, as administratrix, applied for and obtained an order of sale of the property of the estate to pay its debts. It was accordingly sold. The defendant purchased it at its appraised value, and a title was made accordingly. We are at a loss to see any foundation for the plaintiffs’ claims. Their rights were residuary. The property was bound for tho debts, the sale of it for the payment of those debts was inevitable. The sale of it was regular in every respect; all the formalities prescribed by articles 990 and 991 of the Code of Practico were complied with, and there is no ground to complain that the legal formalities necessary to divest the title of minors to property has been disregarded. It is therefore ordered that the judgment of the District Court be affirmed with costs.

Rehearing refused.


text:
    No. 2798.
    Charles Gallagher v. Pike, Lapeyre & Brother.
    A party, or parties, who have' contracted to sell and have sold any public security, such as a bond, may bo compelled by suit to deliver the bond sold, or to pay the value thereof at the time of the sale, the vendor being first put in. default.
    APPEAL from the Seventh District Court, parish of Orleans. Gollens,. J.

      Gibson & Austin, for plaintiff and appellee. Hays & New, for defendant and appellant.
   Wyly, J.

The plaintiff sues the defendants for the delivery of six. and one-fourth levee bonds for $1000 each, with interest coupons attached to the same, since July 1, 1868, or in default thereof for $1977 22.

He alleges that in August, 1868, he purchased from .them said bonds, amounting in the aggregate to $6250, with interest bearing coupons at eight per cent., at fifty-six cents on the dollar, deliverable in ninety days, which time, by agreement was subsequently extended, that the said Pike, Lapeyre & Brother refused to deliver said bonds, notwithstanding the petitioner made a legal tender of the price on the tenth of February, 1869.

He further alleges that the value of said bonds at the time of judicial demand was eighty-six cents on the dollar.

He therefore prays for the execution of the contract, or for the difference between the value of the bonds in August, 1868, and June,. 1869, which ho alleges to be $1977 22, for which he prays judgment in solido against them.

The defendants plead the general issue. ’ They aver that they sold to plaintiff the margin on six and one-fourth levee bonds, $1000 each, at fifty-six cents on the dollar, for the period of ninety days, to begin fifth of August, 1868 ; that if at the end of said ninety-days, the bonds, in question were selling for more than fifty-six cents on the dollar, the respondents should pay plaintiff the excess ; if for less, plaintiff should pay the respondents the deficiency.

They aver that at the end of ninety days said bonds „were selling below fifty-six cents on the dollar, and that the deficiency amounted to-$360, for which they pray judgment; in reconvention. They specially denied-that there was ever any contract to deliver the bonds; and they aver that said marginal sale was not to extend beyond ninety days.

The court gave judgment for the plaintiff as prayed for, and the defendants appeal.

F. H. Hatch, who made the transaction with Pike, Lapeyre & Brother, and who is a disinterested party, says: “On or about the fifth of August, 1868, acting as the agent of Smith & Co., and authorized by Pike, Lapeyre & Brother, I sold to Charles Gallagher twelve thousand five hundred dollars of eight per cent, levee bonds, at fifty-six cents on the dollar, deliverable in ninety days, with eight per cent, interest; $6250 being- for the account of Pike, Lapeyre & Brother, and like amount for Sam. Smith & Co. There was no margin — this was a contract to deliver the bonds, and there was no margin whatever. I held the power of attorney for Sam. Smith & Co. There was a settlement made, I think, about the tenth of February, by Sam. Smith & Co. with Gallagher. When Mr. Smith returned from the North, early in November, 1868, I turned the matter over to him. Mr. Smith assumed entire charge of this matter. I heard Mr. Smith say that he had agreed with Pike, Lapeyre & Brother to extend this time.”

Sam. Smith was examined as a witness. He testified that: “I returned from the North in the mouth of October, 1868. On my return home Mr. Hatch informed me of this sale of bonds for account of our firm and Pike, Lapeyre & Brother, as being sold on ninety days contract at the price of fifty-six cents on the dollar. A few days previous to the expiration of the ninety days, Mr. Gallagher called on me and said that he would like to extend the time for the settlement a few days. I said we had no objection. I called on Pike, Lapeyre & Brother and stated what Mr. Gallagher said. They said they had no objection — to do for them as we would do for ourselves in tho matter. I notified Mr. G-allagher of this. I think it was about 'the tenth of February that Mr. Gallagher .called on them for the delivery of the bonds. It was about the time we settled with him. The bonds were worth on the tenth of February, the time of our settlement, about eighty-four cents. I estimated them at that. I never heard anything of the margin until after this suit was brought. It was a sale such as we had bought before for a joint account with Pike, Lapeyre & Brother and other parties. It was Mr. Lapeyre that I saw in regard to this extension. I notified Pike, Lapeyre & Brother of our settlement with Gallagher, about the tenth of February. I told them what kind of a settlement I had made with Gallagher. I submitted the proposition of Mr. Gallagher to Mr. Pike, and he said that he could not settle the matter until Mr. Lapeyre returned.”

Charles Gallagher testified that in August, 1868: “ I bought from F. II. Hatch one-fourth of fifty levee bonds with eight per cent, interest coupons thereon, at fifty six-cents on the dollar; the bonds were for $1000 each. I did not know Pike, Lapeyre & Brother in the transaction until Mr. Hatch disclosed them to me. These bonds were purchased by me absolutely to be delivered in ninety days from purchase. When Sam. Smith came home from the North, I went to him a little before the maturity of this contract, * * * and I told him to give me my bonds and I would close the matter up, or if he thought the bonds would improve, I would like to extend the time. He told me he had no objections to extending the time, and did not think Mr. Pike ■would, have; that he would go and see Mr. Pike. The next day I called with sufficient funds to pay for the bonds, and he informed me that he had seen Mr. Pike, and that Pike was perfectly willing that the time should run on. I was always ready and willing to take these bonds. * * * About the tenth of February, 1869, I made a tender of -; this was the fifty-six cents with interest on the fifty-six cents per dollar, but in the meantime they had collected the coupons, which more than reimbursed them for the interest. * * * * ***** I sent the money for the bonds to Pike, Lapeyre & Brother by J. E. Austin. They refused, and I deposited the money with Smith & Co., and notified Pike that it was subject to his ■order. * * * It is the only contract I made. It was for the absolute delivery of the bonds. There was no marginal sale about it.”

On the other hand, the defendants rely in support of their defense, that it was a marginal sale, on the evidence of Lapeyre and Brother, two of the members of the firm of Pike, Lapeyre & Brother. The testimony of these two witnesses is not sufficient to overcome the ■evidence of the plaintiff, who testified, and of the disinterested witnesses, Hatch and Sam. Smith, whose testimony fully corroborates his ■statements.

We are satisfied that the contract of the fifth of August, 1868, was a real sale.

We are also satisfied that before the expiration of the time for the delivery of the bonds there was an extension agreed to by the parties.

Smith, a disinterested witness, swears positively to it. He says: I called on Pike, Lapeyre & Brother, and stated what Mr. Gallagher said. They said they had no objection — to do for them as we would do for ourselves in the matter.”

Smith gave the extension and stated to Gallagher that Pike, Lapeyre & Brother had agreed to it. Subsequently Smith & Co. settled with Gallagher for their part of the bonds.

Our conclusion is that on the tenth of February, 1869, the defendants were put in default for the execution of the contract; and they had no just cause to refuse to execute it.

We think the court erred in estimating the value of the bonds at the-time of judicial demand in June, 1869. The damages resulting from the breach of the contract must be estimated at th$ day the defendants were in default for the execution thereof, which was the tenth •of Februry, I860, the value of the bonds at that time is shown to be ■eiglity-four cents on the dollar.

It is therefore ordered that the judgment appealed from be set aside, and it is now ordered that the defendants deliver to the plaintiff six and one-fourth levee bonds for $1000 each, with eight per cent, interest ■coupons attached thereto, since first July, 1868, as prayed for, within ten days from tlie date of this judgment, on the plaintiff paying to them $3500, the price thereof; and in default of delivery of said bonds within the ten days, it is ordered that the plaintiff recover judgment against the defendants in solido, for seventeen hundred and fifty dollars, with five per cent, interest from judicial demand, said amount being the difference betwen the value of said bonds on the day of the making of tlie contract and the day of the breach thereof by the defendants, February 10, 1869.

It is further ordered that the defendants pay costs of the court below and the plaintiff pay costs of the appeal.

Rehearing refused.


author: Taliaferro, J. Howe, J.

text:
    No. 2635.
    La Societe de Bienfaisance des Arts et Metiers v. William B. Morris & Co., Agents of the Home Mutual Insurance Company of New Haven, Connecticut.
    A defectivo citation addressed to a company, or the agents of a company, is cured by the defendants appearing and answering by general denial.
    An insurer does not lose his right’to recover on the policy in case of loss by fire, because ho lias not paid the premium, if it bo shown that it was not the custom of the company to exact prompt payment. 19 An. 214.
    PPEAL from the Fifth District Court of. New Orleans. Leaumonl, J.

      James Idngan, for plaintiff and appellee. G. Owwpbell, for defendants and appellants.
   Taliaferro, J.

This is an action to recover from the defendants 64500 on a policy of insurance taken by the plaintiffs on certain property of theirs subsequently destroyed by fire. The answer is a general denial. Tlie plaintiffs had judgment, and defendants have appealed. The defense is mainly technical. It is contended that no legal citation was- over issued to or served upon the insurance company. The suit is brought against Morris & Co., agents, and the Home Mutual Insurance Company, of New Haven, Connecticut. The style of the suit appears upon the citation, and it is addressed to William B. Morris & Co., agents. If this were defective, we think the defect cured by the answer. Morris & Co., individually and as agents of the company, were distinctly made defendants. The defendants, as they style themselves, appeared by tlieir attorney and answered by general denial.

It is contended oil the part of the defense that the plaintiffs had not «complied with the requirements necessary to enable them to recover, viz.: notices of loss and preliminary proof. The evidence we think shows a state of facts tiiat obviates that necessity. It is shown that on the morning after the occurrence of the fire by which the plaintiffs’ buildings were destroyed, the accident was made known to the secretary and the agent of the company, Morris, and that the latter promptly ignored, all responsibility of tlie company, saying that the policy bad within a few days been annulled on account of the nonpayment of the premium. At the time the contract was entered into the agent was requested to send the memorandum bill to the treasurer of the society, who would pay it, to which the agent replied, “that is all right.” Payment of the premium was not exacted at the time of making out the policy. That instrument was made out, as the agent states, about the seventh of February, 1868, and was put into the safe subject to call.” The clerk of the company was instructed to collect the premium, and he testifies that he went several times to the hall of plaintiffs for that purpose, but failed to find any person there representing them.

Wé do not think, under the state of the facts shown, that the plaintiffs lost their rights under the contract. See the case of Pino v. Merchants’ Mutual Insurance Company, 19 An. 214; Parsons on Contracts, vol. 2, page 461.

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

On Application por Rehearing.

Howe, J.

We understand the judgment in this case to be one against the Home Insurance Company, represented herein by its agents, W. B. Morris & Co. There is no judgment against W. B. Morris & Co., individually.

The point in regard to apportionment was not made in the original argument, and will not now be examined.

Rehearing refused.


text:
    No. 3630.
    G. Laroque Turgeau v. Jules Brady.
    The appointment of a receiver for a corporation on an ex parte application, without even alleging its insolvency, is absolutely null, and carries with it no right to receive the assets or revenues of the company.
    ¿rom Seventh District Court, parish of Orleans. Gollens, J.

      Kounts (& Elliot, for plaintiff and appellant. J. B. Ourell, for defendant and appellee.
   Wyly, J.

The plaintiff, as receiver of the Louisiana Petroleum and Coal Oil Company, sues the defendant for $3750 the balance remaining in his hands as President of the Louisiana Petroleum and Coal Oil Company.

The defendant excepted to the capacity of the plaintiff to bring the suit, alleging that the order appointing him receiver is null and void, and also that the Charter of the Louisiana Petroleum and Coal Oil Company has never been declared forfeited, nor has any proceeding for that purpose beeu prosecuted contradictorily with said company.

The court maintained the exception, and dismissed the case as of nonsuit. The plaintiff appeals.

It appears that the plaintiff was appointed receiver on an ex parte application, and without any notice whatever to the Louisiana Petroleum and Coal Oil Company. The insolvency of the company was not alleged; on the contrary, in his brief the plaintiff affirms its solvency.

This appointment was an absolute nullity; and it is entirely immaterial whether or not the court dismissed the rule to have it so declared.

The court making the appointment was utterly without authority to do so on the ex parte application, in view of the fact that the corporation was solvent, and no proceeding instituted for the forfeiture of its character. The plaintiff has no right to the funds which he’ seeks to recover from the president of a solvent corporation. 16 An. 237; Bay’s Digest, sections 688, 731; 5 An. 740; 12 An. 285; Hennen’s Digest, 330, section 8.

Judgment affirmed.

Behearing refused.


text:
    No. 2558.
    Alexander Walker v. John Bietry.
    An attorney at law who makes a contract with his client for a stipulated amount as his fee for attending to a litigation, can not afterward recover on a quamtum meruit for services rendered in tho same litigation.
    APPEAL from the Seventh District Court of New Orleans. Oollens, J.
    D. O. Lábaü and James Litigan for plaintiff and appellee. Ootton & Levy for defendant and appellant.
   Taliaferro, J.

The plaintiff, who is an attorney at law, sues on a quantum meruit for professional services rendered the defendant in effecting an adjustment and compromise, much to the benefit of the latter, of a litigation that had existed between the defendant and the city authorities of New Orleans, in regard to a certain contract for public work entered into by the parties.

The defendant in his answer denies absolutely that he entered into any such engagement with the plaintiff as alleged by him. The judgment of the court below awarded the plaintiff the sum of $674 60. The question presented in this controversy is mainly as to the fact whether the plaintiff was engaged by the defendant, as alleged by the former, and whether the plaintiff has established the value of his services.

The testimony taken in the case makes up a large record of conflicting and contradictory statements by , the witnesses. The defendant and several other persons, it seems, had entered into contracts with the city authorities in regard to working upon the public streets in certain specified parts of the city. These contracts were annulled by General Sheridan, who at the time was in command of the military district within which the State was then arranged. The plaintiff, it seems, was employed by several of these parties, the defendant among them, to obtain redress through the courts, and accordingly he proceeded by mandamus against the mayor, to compel a compliance of the city with her contract with one O’Hara, making that a test case, all the others standing on the same ground. There does not appear to be any disagreement between the plaintiff and the defendant in reference to the compensation the plaintiff was to receive for his services in the mandamus case. It appears that he required a retainer of $300 and a contingent fee besides for all the cases. His pro rata amount of the retainer the defendant paid. The attorney was successful in the District Court, but upon appeal to this court the judgment of the District Court was reversed. A rehearing was applied for, pending which the vacation of the court came on, the matter then standing as at first, with the-contracts of the parties annulled. The plaintiff says in his testimony that at the solicitation of the parties who had left their contracts with him he entered into negotiation with the mayor and the members of the city council, and especially with the members of the Committee on Streets and Landings, for the purpose of effecting a compromise and a reinstating of the different parties in their several contracts. This the plaintiff represents as a new engagement, and not at all a part of the original undertaking in the courts in which ho proceeded by mandamus j that when he entered into this second engagement he notified O’Hara, whom he represents as the acting party in the affair, that it would be necessary to come to a definite understanding in regard to his contingent fee; that he drew up an agreement by which they were to bind themselves to pay a certain per cent-age on the contracts in case they were maintained. This instrument was not signed, it seems, and was not afterward seen. That nothing-definite being agreed upon, he informed O’Hara that he would claim a quantum meruit, and proceeded with the business. The defendant, as already stated, ignores these statements of the plaintiff, and we think it is not satisfactorily established that he did agreq to pay anything under the new and subsequent agreement alleged by the plaintiff to have been made. From the position the parties stand in, as shown by the evidence, we think that the services rendered by the plaintiff throughout must be regarded as having been rendered in pursuance of the original contract, and as the plaintiff was successful in getting the contracts of the several parties reinstated, the defendant is bound to pay him his portion of the common debt. The three hundred dollars contingent upon a successful effort in behalf of the parties they are bound to pay. The defendant’s part or quota, it seems, is one-third. The judgment of the lower court predicated upon a small per centage of the amount claimed we think erroneous.

It is therefore ordered that the judgment of the lower court be annulled. It is further ordered and adjudged that tho plaintiff recover from the defendant one hundred dollars, defendant and appellant payiug costs in tho lower court; the plaintiff and appellee the costs of this appeal.


text:
    No. 3627.
    State of Louisiana ex rel. Mississippi Valley Navigation Company v. H. C. Warmoth, Governor of the State.
    The Governor of tlie State as oliiof executive officer, cannot be compelled by mandamus, to perform acts required by law to be done by bim.
    In 22 An. page 1, it was decided that tlio judiciary was without power to direct the Oliiof Executive of the State to perform any act coming within the rango of his duties as Governor. That decision is reaffirmed by tbo decision in this case.
    APPEAL from the Eighth District Court, parish 'of Orleans. J)ibblet J.

      John IT. Mew, for plaintiff and appellee. Semmes & Mott, for defendant and appellant.
   Taliaferro, J.

The relators applied to tho Sixth District Court of New Orleans for a mandamus to compel the Governor of the State to subscribe, in tlie name of the State to the capital stock of the Mississippi Valley Navigation Company of the South and West, one thousand shares of one hundred dollars each, in pursuance of an act of the Legislature, talcing effect in March, A. D. 1870. A rule nisi was granted, and the Governor answered that he had decided not to exercise the authority vested in him by tbe act incorporating the company appearing herein as relators, for the reason that ho believes and entertains the opinion that the best interests of the State would be sub-served by withholding the subscription authorized by that act-. Ho further answered that the constitutional limitation of tho power of tbe State to contract debts having been adopted in December, 1870, and the limit of twenty-five millions of debt having been reached, the authority vested in the respondent was revoked by tho adoption of the constitutional amendment limiting the State debt.

It is contended on tbe part of the respondent, that the act vests a mere authority in the Governor to subscribe for tbe stock, and as that authority was not exercised prior to the adoption of the constitutional amendment limiting the State debt, be cannot now exercise it if he deemed it proper. The rule was made absolute by the court a qua, and tlie respondent has ajipealed. On tbe part of the relators it is argued that where a public officer or body is olotbod with power to do an act which concerns tho public interest, or the rights of third persons, the execution of the power may be insisted upon as a duty, although the statute creating it be only permissive in its terms. On the other hand it is held, that this doctrine is inapplicable in the present case, because no private right of the relator is involved, and no public rights are concerned — that this act is a mere authority given by the State to one of its own officers to make a. contract with a private corporation. The interest of that corporation may be promoted by making the contract with the State, but it has no legal right to compel the State to make the contract.

It is not necessary to determine whether terms merely permissive, used in a statute, are in all cases to be held to be mandatory. Neither do we feel it incumbent upon us to go into the consideration of the character of the act required to be performed by the respondent as being merely ministerial, or otherwise, or to investigate the reasons assigned by him for declining to act.

We had occasion in the case of the State on the relation of Oliver and others vs. the Governor of the State, 22 An. page 1, to go at some length into the inquiry as to the power of the judiciary to compel by mandamus the chief executive officer of a State to perform acts required by law to be done by him. We then concluded that such a power is not vested in the judiciary, and we see no good reasons for receding from the views then taken of this subject. 4 Wallace 500 and 501.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the rule be discharged at the relator’s costs.

Rehearing refused.


author: Howe, J.

text:
    No. 3772.
    Succession of Nelson Durand—On Oppositions to Tableau of Debts.
    A judgment obtained on the allegation that the defendant has permanently left the State is void, if it appear that at the time the attachment was sued out the defendant resided in the State. If the property attached has been alienated before the seizure, and the defendant makes no appearance in the attachment suit, nor has been personally cited, then and in that case the judgment is alike void.
    A valid judgment obtained by attachment only operates on the property attached, and forms no personal claim against the defendant or his estate, and such a judgment so obtained should not, therefore, bo classed on the tableau filed by the executor as a debt against his succession. ®
    The action to set aside a mortgage on the ground of fraud is prescribed by one year.
    The burden of showing that a mortgage is simulated falls upon the parties who allege it.
    APPEAL from tbe Parish Court, parish of Avoyelles. JSdwards, Parish Judge.

      <Tulien A. Seghers and Waddill & JBarbin, for appellees. Irion (& Thorpe, for opponents and appellants.
   Howe, J.

This case presents the merits of a number of oppositions filed by persons claiming to be creditors, to the tableau of debts presented by the administratrix, Mrs. Eliza Bowman, widow of Nelsbn Durand. We will examine them seriatim.

First — The claim of the widow for the homestead was properly rejected, and is not urged in this court.

Second — The judgment of Segastille Armand seems to have been rejected through error. It was rendered in 1866, and duly recorded.

■ The deceased never contested its validity, and the parties opposing it now have neither furnished any evidence that it is fraudulent, nor any agreement to that end, before this court.

Third — The judgments of Mrs. Marius Gauthier and of Mrs. Jean B. Isabelle should have been stricken from the tableau. They were obtained by attachment in the Sixth District Court of New Orleans, in the year 1865, on the allegation that Nelson Durand, the defendant, had permanently left the State. He was at that time, and for'some years had been, and was until his death domiciled in and a resident of the parish of Avoyelles. The property attached had been alienated by him by a sale made and duly recorded in 1847, and forms no part of the inventory of the succession. Moreover, he never made appear-, anee, nor was he personally cited. And even if the attachments were valid, and.the-property seized the property of defendant therein, the judgments would extend only to the property seized, and would neither be personal claims against Nelson Durand nor judicial mortgages against the succession property inventoried herein. 2 An. 563; 4 An. 585; 6 An. 550; 9 An. 524.

Fourth — The claim of Mrs. Durand as holder of the notes made by Nelson Durand in favor of Johanna Spiegelhalder, the mother of Mrs. Durand, and secured by special mortgage July 20, 1863, and recorded July 25, 1863, was opposed as fraudulent and simulated, and on the ground that the provisions of the laws of the United States in reference to stamp duties had not been oomplied with.

The allegation that the mortgage was fraudulent, if it means that the mortgage had areal existence, but was intended to give an illegal preference, is met by the plea of prescription of one year, which should prevail.

The allegation of simulation, which could only be made on the theory that the mortgage had no real existence, is not established. The mortgage was made and recorded as above stated, in July, 1863. It is shown that Mrs. Spiegelhalder had money and property, and was in the habit of making advances to Nelson Durand in his mercantile business. It was natural that she should thus assist her daughter’s husband, and that he should protect her by a mortgage. The burden of proving simulation was on the opponents, and we do not think they have proved it.

There is no force in the point made in regard to stamp duties. The notes and mortgage, and the certificate of the actual registry of the mortgage in Avoyelles, in July, 1863, were either not denied, or were-received in evidence without objection. The registry was long prior-to any of the opponents’judgments. No stamps had been affixed at. the time the mortgage was passed, for none were probably to be had in Avoyelles at that date. But in August, 1871, under the provisions of the act of Congress of July 14, 1870, the necessary stamps were-placed on the notes by the Collector of Infernal Revenue of the Second. District of Louisiana, at the request of the holder. The claims of the' United States were fully satisfied, and we do not think the opponents-have any legal reason to complain of the regularity of the registry of the mortgage, or can say that it does not outrank their subsequent judgments.

Our attention is called to the fact that by the act of Congress of 1866, of which this act of 1870 was an amendment,, it is provided that the recording of an instrument under the permission therein allowed' to be given is not to affect any right acquired in good faith prior tersuch recording. We do not perceive that this proviso affects this particular case in any manner, for this is not a case where any recording, or registry was made after the stamps had been affixed by the Collector: of Internal Revenue.

We conclude, then, that the Judge below did not err in refusing tó» strike these judgments from the tableau.

Fifth — We think the judge erred in allowing the claim of L. V~ Gremillion, public administrator, for fees or commissions.

The widow was confirmed as natural tutrix, and as such was administering the estate, having had an inventory made. A creditor took, proceedings by injunction and to cause himself to be appointed administrator. This matter was afterwards settled by the widow being, appointed administratrix, and giving bond. During all this time the estate was being administered by the widow, and we do not think that-there was such a “ contestation for the administration of the estate”’ as justified the appointment of the public administrator to “administer it ” and entail further expense upon it, during these proceedings, under the second section of the act No. 87, of 1870, p. 120. That section, we presume, refers to a case where, pending a contest by claimants for the administration, there is no one in charge of the property. Any other construction would open a wide field for collusion» and spoliation.

It is therefore ordered that the judgment, so far as it rejects theVidow’s claim for homestead and dismisses the opposition to the mortgage notes and mortgage in favor of J. Spiegelhalder, be affirmed j. and that in other respects it be reversed; that the judgments in favor of Mrs. Marius Gauthier and Mrs. Jean B. Isabelle be stricken from, the tableau ; that tbe claim of L. Y. Gremillion be also stricken therefrom ■, that in other respects, as modified by that portion of the decree of the lower court which is herein affirmed by this decree, the said tableau be homologated and approved, and the debts therein recognized, paid according to the rank therein assigned, and in due course of administration ; and that the opponents who have appealed pay costs of appeal.

Rehearing refused.


text:
    No. 3771.
    Gustave S. Rousseau et als. v. Shadie Ann Gayarre and Husband.
    The sheriff who serves any prooess or citation on a defendant is required to make a return on the original paper of the manner of such service. If he has made an error in making his return, and detects it before he files the paper in court, it is his duty to correct the mistake and make a return in conformity with the facts.
    A service of citation at the domicile of the defendant is good if it be served upon a free person above the age of fourteen years; who resides at the domicile; and if the defendant resides on a plantation, then by the word domicile • is meant any house or place of residence situated on the plantation which is occupied as a residence, so that the service is good if made on a person of proper age who resides in another house than that of the defendant; nor need such person be actually insido of the house of the defendant at the time of the service ,• it is sufficient if he or she resides at the domicile.'
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Barrow <& Pope, for plaintiff and appellee. A. & F. B. Talbot, for defendant and appellant.
   Wyly, J.

On the twenty-ninth March, 1866, the plaintiffs bought from Pierre C. Riccard and his mother the tract of land described in the petition, it being then incumbered with a judicial mortgage in favor of the defendant, Mrs. Gayarre.

They now seek to remove that mortgage on the ground.that the judgment from which it resulted was illegal, because:

First — That said defendants, P. C. Riccard and mother, Genevieve Belly, were never legally cited or served with copies of the petition in said suit, there being but one petition and citation pretended to be served by the sheriff.
Second — That said copy of citation and petition was not served at the domicile of said defendant, or on a person living in the house.
Third — Nor were' copies of the citation and petition left at the usual place of domicile or residence of defendants in said suit, they being ab- • sent, by delivering them to a person apparently above the age of fourteen years, living in the house.
Fowth — That the sheriff’s returns are not made according to law, in not showing where the domicile or house inhabited by said defendant is situated. That G. C. Grabert, on whom service was pretended to be made by the sheriff of citation and petition, did not reside at the domicile of said defendants — so stated on liis return — and was not living in the house of said defendant, but lived elsewhere ; and said citation and petition were delivered to said Grabert by said sheriff, on the public road, and said return is false in these two particulars as well as in the statement that said defendants were absent from their domicile at the time; and said parties were never legally cited. <

They further allege that between the latter part of February and the ninth of April, 1870, said sheriff’s return was fraudulently and illegally altered by some one unknown to petitioners, in material and substantial words. Said return in the original was in the singular number, as follows :

- Served a true copy the within citation, together with certified copy of petition annexed, on J. C. Grabert. * * * Whereas it has been altered to read in the plural number, the article ‘a’ being erased or scratched; and the word copy ’ altered to read ‘ copies ’ in both instances.”

The defendant, Mrs. Gayarre, denied'generally the allegations of the petition, and specially the allegation that the sheriff’s return in her case against Riccard and mother had been fraudulently altered as alleged. Riccard and. his mother, who were also made parties by the plaintiffs, answered by general denial. They admitted, however, that Mrs. Gayarre had judgment against them as set forth in the plaintiff’s petition ; that “ said judgment was for a debt justly due, and that these defendants were served with the citations in the ca'se, and admit the legality and binding effect of said judgment against them.” The court gave judgment first for the defendant, Mrs. Gayarre, but granted a new trial and finally gave judgment for the plaintiffs’, annulling the judgment complained of, and ordering the mortgage resulting therefrom to be canceled. The defendant, Mrs. Gayarre, has appealed. The attempt to show that the sheriff’s return was improperly altered, as alleged, is a failure. The interlineation was made, according to the positive declarations of the sheriff, who testified as a witness, before his return was filed, on the suggestion of the counsel for Mrs. Gayarre; and he swears that it conforms to the truth. The words interlineated are proved to be in the handwriting of the sheriff by several witnesses. The attempt to discredit or impeach the veracity of the sheriff was also an utter failure.

The clerk’s cost bill showed that two c'opies of the petition and citation were made out in the case.

We know of no law forbidding the sheriff from correcting his return, when he discovers' the error before it is filed in the case. It was his sworn duty to make his return conform to the truth; and he would have been derelict to it if he had filed an incorrect return after the error had been called to his notice by the counsel for Mrs. Gayarre.

J. C. Garbet, to whom the copies of the citation and petition wore delivered, was the overseer of Riccard and his mother, and lived on the plantation in a ho'use very near the residence of his employers, who were absent at the time the sheriff called to serve the citation. Woods, the sheriff, testifies that Dr. Lambremont was with him at the time he made the service at domicile; that “ witness went into the house and found no one at home j was going back on the plantation to find the overseer, when Dr. Lambremont pointed him out to witness coming up the plantation road told witness the overseer’s name, and witness went up and made the service after he had got out of the gate •on the public road.”

Now, whether the papers were delivered to Garbet at the gate on the public road, or in the dwelling occupied by his employers, under the facts of this case, is of no consequence. The sheriff had gone into the house to make the service, but finding “ no one at home,” was about going out on the plantation to make the service upon the overseer, when the latter came up the “plantation road ” in front of the house, and there the service was made.

It would-have been a more idle ceremony to have required the overseer to enter the house in order to deliver to him the papers which were designed for his employers. If he had been requested to do so, and had refused, the sheriff would not have been able to make the service, under the theory of the plaintiffs, notwithstanding the overseer was then immediately in front of the dwelling. This would be sacrificing the obvious meaning of the law, solely to adhere to its letter. Nor is it of any consequence that it has been proved that the overseer did not actually dwell in the same house with Ms employers, but in another on the premises near by, about one acre distant. The plantation was the domicile of the defendants •, and the overseer living in a cabin near the dwelling of his employers, was, in contemplation of law, living at their domicile. Under the theory of the plaintiffs it would have been impossible to make a service at domicile on Riccard and his mother, because, per chance, no one else actually lived under the same roof, although the surrounding cabins on the premises might be filled with persons upon whom service could be made. Such a construction would defeat the purpose of the law and put it in the power of a designing debtor to deprive Ms creditors of one of the lawful modes of summoning him into court. That construction must be avoided which defeats the obvious meaning of the law and paralyzes its salutary operation..

In the case of the succession of Williams (10 An. 224), this court said: “ The regularity of this judgment, or tacit issue, is contested on the ground of the insufficiency of the service of the citation and petition, which was made during. Williams’ absence, on his overseer, at Ms plantation. It was objected that it does not appear to have been made at the house of Williams in the manner prescribed by articles 189 and 201 of the Code of Practice. According to the interpretation of those articles in the case of Maxwell vs. Collier, 6 R. 86, we must consider the service as sufficient.” See also Bird vs. Cain, 6 An. 248.

The sheriff’s return conforms to the truth, and is sufficient in its recitals for'a valid service at domicile. The parties for whom the citations were delivered to the overseer, Riccard and his mother, are made parties to this suit by the plaintiffs, and in their answer they admit that they ‘ ‘ were served with the citations.”

Let the judgment appealed from be annulled, and let plaintiffs’ demand be rejected with costs of both courts.

Rehearing refused.


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    No. 1797.
    Charles Gayarre v. Gustave Sabatier.
    If an indorser on a "bill of exchange, or a promissory note, he discharged from liability because the holder has failed to give the proper notice, then the indorser can not thereafter be held liable, unless it be shown that he has, subsequently to his discharge, assumed the payment.
    APPEAL from the Third District Court of New Orleans. Emerson, J.

      Elmore & King, for plaintiff and appellee. Alfred Grima, for defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment against him as indorser of two drafts and one promissory note.

. There are several defenses, but we deem it only necessary to inquire whether the conditional obligations of the defendant have been rendered properly unconditional by due notice of dishonor, or whether he has admitted the rights of the holder by an unconditional promise to pay since the maturity of these obligations.

From the view we'have taken of the case, it will not be necessary to examine the defendant’s exceptions to the evidence, because, with all the testimony in tho record, the case appears to be clearly with Mm. The obligations in suit were payable in the city of New Orleans, where the, acceptors and makers, as well as the defendant, the indorser, resided, and they matured in 1863; at that time the plaintiff and his transferrer resided in the parish of St. Helena. The domicile of the obligors being in Union lines at the maturity of the instruments, and tho domicile of the owner and holder being in rebel lines, all intercourse between them was prohibited. If the defendant had promised the party with whom the plaintiff left copies of these instruments to pay them, which is not satisfactorily shown, it would not be obligatory, because the parties were incapable of making at the time a conventional obligation; and the party pretending to act for the •plaintiff or liis wife, could not be their agent by reason of the same prohibition, he residing in Federal lines, and his principal in rebel dines.

Of course the plaintiff could not make legal demand of the acceptors and the makers during the time intercourse was prohibited; but it •was his duty to do so promptly after this obstruction terminated. It appears that he and his wife, from whom he acquired these drafts and note, returned to this city on the second day of June, 1865; but demand was not promptly made of tho acceptors and the makers, and due notice of dishonor was not given to the defendant. The plaintiff .and the defendant both testified, and tlioir evidence conflicts. After carefully examining all the evidence in the record, we are satisfied that there was not proper diligence; that the defendant was not promptly notified of the dishonor, and that he has not since maturity unconditionally promised to pay. the drafts and note upon which he is .sued.

It is therefore ordered that the judgment herein be annulled, and •that there be judgment for the defendant, with all costs.

■Eehearing refused.


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    No. 3708.
    Fritz Huppenbauer v. Louis Durlin et al.
    .A judgment creditor who acquires a preference on tho property of his debtor by Seizure is not entitled to proceed to tho sale after the debtor has obtained a respite by the consent of a majority of his creditors.
    «f?my creditors who have a privilege on the property of the debtor before, and at the time the respite is granted, can proceed to sell under article 3095 of the Revised Civil Code alter the respite is granted. A creditor, therefore, who has a privilege or preference on the property of his debtor, resulting from a soizure alone, is not permitted to proceed to the sale in violation of the respite.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.
    Jli. Rogers <& Rlane, for appellant. C. Roselius <& Alfred Phillips, for •appellees.
   Wyly, J.

The plaintiff enjoins the defendants from executing a .judgment against him, on the ground that he has obtained from his ■creditors, by judgment of court, a respite of one, two and three years; that the defendant, Louis Durlin, was a party to said suit, having filed .an opposition to the homologation of said proceeding; that notwithstanding the dismissal of his opposition and the granting- of the respite, the said Louis Durlin is attempting to execute his judgment .■against the plaintiff, which has cause'd damage to him to the amount <?£ $1000. The prayer of the petition is for an injunction, for its perpetuation, and for $1000 damages.

The defense of Durlin is: that the respite is not binding on him .and can not prevent the execution of his judgment, because he is a privileged creditor, having levied his writ prior to the granting of the respite.

The court perpetuated the injunction, and the defendant, Durlin, appeals.

The plaintiff insists that the plea of res judicata is applicable, because in Durlin’s petition of opposition to the respite he alleged that he was a privileged creditor by reason of his prior seizure of the property of his debtor; and the opposition being rejected, .the issue whether he is a privileged creditor or not was decided adversely to him, and that judgment is final.

It is true the defendant described himself in the petition of opposition as a privileged creditor, but that was an issue not involved in the contest. The question was, whether the proceedings were regular, and whether or not a majority of the creditors had consented to the respite. This was the issue determined when the opposition was dismissed and the judgment of respite granted.

The plea of res judicata is therefore unavailing.

The defendant contends that by virtue of his seizure he is a privileged creditor, under article 722 C. P., and the respite is not binding on him by reason of article 3095 of the Revised Code, which declares that the following classes of persons can not be compelled to enter into any contract of respite or remission: privileged creditors, of what na- • ture soever their privilege may be, and creditors who have a special mortgage by public act; minors, for the balance of account of their tutorship; wives, for their dotal rights and for the right of reclaiming their property. Therefore the privileged creditors and those who have a special mortgage as aforesaid can not be deprived by any respite, though agreed to by a majority of the creditors in number and in amount, of the right of seizing the property on which they have a privilege; but if such property do not prove sufficient to satisfy their debt they shall be restrained from acting for the surplus, either against the person of their debtor or against his effects, on which they have no privilege, except after the term granted by the respite. But creditors having a general mortgage are bound by the respite in the same mam ner as ordinary creditors.” We think the privilege of preference acquired by the prior seizure, under article 722 C. P., is not embraced in the provision of a'rticle 3095 of the Revised Code, which exempts privileged and special mortgage creditors from the effect of the respite, so far as the property affected by the privilege or special mortgage is concerned.

Where it permits privileged creditors and those having a special mortgage to seize the property on which they have the privilege or mortgage, notwithstanding the respite, it means privileged creditors whose privilege arose from the nature of the debt. Revised Code,. 3186. .It surely did not mean those who derived their privilege or preference alone from a prior seizure, under article 722 Code of Practice. For it would be absurd to provide that those who had already seized might again seize the same property, notwithstanding the respite. If the lawgiver had intended to preserve the right resulting from the seizure prior to the respite he would have said so, by declaring that the same might continue, and the sale of the property seized might be proceeded with, notwithstanding the respite. The right of the defendant resulted alone from the seizure.

Article 3095, Revised Code, permits privileged creditors to seize “property on which they have tiie privilege * notwithstanding the respite.

How could the defendant do this? How could he seize property on which he held a privilege? In order to make a new.levy he must release his first seizure. To do this would destroy his preference.

The law before us, in a case like the one in view, gives the right to seize, provided there already exists a privilege. The existing privilege gives the right to seize. The defendant seized in virtue of no existing privilege; his right resulted alone-from his seizure. Now the law giving privileged creditors the right to seize the property affected with their privilege, notwithstanding the respite, can not fairly be construed to give the same advantage to a creditor seizing in virtue of no privilege, but whose preference right resulted alone from the seizure.

And the article permitting the property affected with a privilege to be seized after the respite, is not a law validating a seizure made where there was no existing privilege, and authorizing the sale to be proceeded with, notwithstanding the respite.

Judgment affirmed. •

Rehearing refused.


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    No. 2632.
    Commercial Bank v. W. C. Harrison and others.
    A surety on an appeal bond ytIio denies liis signature can not, after it bas been proved, bo beard to urge other defenses to bis liability on tbe bond.
    APPEAL from Sixth District Court, parish of Orleans. Ooolexj, J.

      Mornor <& Benedict, for plaintiff and appellant. Bentinele JSgan, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment discharging the rule sued out by it to make liable John S. Simonds, the surety on the appeal bond of the defendants.

The surety, Simonds, prays oyer of the bond, and(denies his signature.

It appears that all the papers in the suit, including the appeal bond, have been lost or stolen from the clerk’s office.

The plaintiff produced a witness who states that, in 1864 and 1865:

“I was deputy clerk in the United States District Court; as such I often saw John S. Simonds, the defendant, sign his name.
“And I have often sworn Mm as to the amount of his assets. I saw the appeal bonds that were filed in cases 18,012 to 18,018, inclusive, in this court. The blanks were all filled up in the handwriting of L. Madison Day. I knew it to be his handwriting from often seeing him write his name, and from the admission that it was his handwriting. I knew the signature of Hite to be his signature, as I have often seen him sign his name. I saw every one of these bonds were signed by L. Madison Day as witness, and every one of these bonds had the name of Simonds appended to them as surety. And from my knowledge of the signature of Simonds I verily believe them to have been signed by him, the present defendant, now in court. The bonds were the same in every respect, but were different as to the different plaintiffs’ names inserted, according to the priority ih which they were filed, but the signatures on each and every bond agreed.
“The name of W.-C.Harrison was signed by L. Madison Day from my knowledge of his handwriting. George D. Hite’s signature was signed by himself, as he has sworn to; and the signature of John S. Simonds as surety, to the best of my knowledge, from often having seen him sign Ms name in years past, and from having seen his signature since the inception of this suit, to documents filed in this case, I believe to be the signature of John S. Simonds, the present defendant.”

The testimony of this witness substantially meets the requirements of article 325 C. P. There is other evidence in the record fully corroborating it, and showing beyond doubt that Simonds was the security on the missing bond. .

Without proof strictly conforming to article 325 C. P., we would be inclined, in a case like this, to follow the rule stated in 16 L. 378, and 4 An. 55, and allow the fact to be shown by other competent evidence. We agree with the judge a quo that everything about this case looks highly suspicious, and we will add that this is the second time that the defendant, John S. Simonds, has appeared before this court urging the plea of oyer, after the papers were known to be lost or stolen from the clerk’s office. See the case of the Boston Belting Company v. John S. Simonds.

Having denied unsuccessfully his signature to the bond, the defenddant Simonds will not be heard urging other defenses. C. P. 326.

It is therefore ordered that the judgment.appealed from be annulled, and it is ordered that the rule herein be made absolute at the costs of the defendant Simonds in both courts.

Rehearing refused.