author: Wyly, J. Taliaferro, J.

text:
    No. 3886.
    Mrs. S. Moussier and Widow A. Courcelle v. F. W. Gustine and C. S. Sauvinet, Sheriff.
    An appeal will not be dismissed because the surety on the appeal bond was surety on the injunction bond.
    If the bond of appeal fixed by the judge a quo is insufficient for a suspensive, it suffices ior a devolutive appeal.
    A married woman can not be sued on the ground that, being shown to be the keeper of a boarding house and therefore a public merchant, no authorization is necessary either from her husband or the court.
    Articles 121 and 131 of the Civil Code can not be construed to warrant the conclusion that the carrying on of any other business by a married woman than that of merchandise constitutes her a public merchant.
    The words “separate trad^” in the latter clause of article 131 of the Civil Code, declaring that 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,” refer clearly to the trade in merchandise and not to any other business or pursuit.
    When by the terms and conditions of a loase two lessees are bound m solido, a judgment irom the court a qua against them jointly will be set aside, and if the judgment against one of the parties to the lease never had any legal force it remains in full force against the other.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      3. R. Forman, for plaintiffs and appellants. Randolph, Singleton & Browne, for defendants and appellees.
    On Motion to Dismiss tiie Appeal.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly and Howe.
   Wyly, J.

The plaintiffs injoined the execution of a judgment against them for $1850. The injunction was dissolved with twenty per cent, damages and they have appealed.

The defendants move to dismiss the appeal because the bond is not sufficient in amount; because the surety on the appeal bond is the same person who was surety on the injunction bond, and because the latter is not made party to the appeal.

The appeal was taken by motion and the appeal bond is in favor of the clerk. All parties are therefore before the court.

The appeal bond being for $2000 is ample for a suspensive appeal.

The injunction bond was given to protect the defendants from damages resulting from the injunction, the amount of which decreed by the court is only $370.

That the surety on the injunction bond is the security on the appeal bond is of no consequence; he was not condemned to pay anything and he is not an appellant. 12 La. 383; 2 R. 235.

The motion is therefore denied.

On the Merits.

Justices concurring: Lndeling, Taliaferro and Howe.

Taliaferro, J.

There is a motion to dismiss the appeal in this

case on the following grounds :

First — That the surety on the appeal bond was surety on the injunction bond.

Second — That the amount of the appeal bond is insufficient, being-only for $2000 when it should have been for a much larger sum; the execution injoined was for $1850, with interest and costs.

The first ground is untenable. 2 Rob. 235.

The amount of the bond was fixed by the judge. If insufficient for a suspensive it suffices for a devolutive appeal. 20 An. 340; 21 An. 597.

In this action the plaintiffs, who are sisters, one of them a married woman, the other a widow, injoin an execution issued against them on a judgment obtained by Gustine, the defendant in injunction, for the sum of $1850, with interest, and also sue to have that judgment annulled on the ground: First — That the judgment was obtained against Mrs. Moussier, a married woman, without any authorization having been given to her by her husband or the judge to appear in court. That the judgment therefore as to her is null. Second — The judgment being joint, it is null as to Mrs. Courcelle, who was sued as a joint obligor with her sister. The article 2080 (2085) declares: “ No judgment can be obtained against any joint obligor unless it be proved that all joined in the obligation.” The absolute incapacity of Mrs. Moussier to appear in court rendering the judgment as to her null, no judgment could be rendered against the other party. Third — That the judgment was rendered by agreement of the parties on the confession of the two plaintiffs, on the express condition that it was not to be executed against them, having been obtained merely for the purpose of keeping off creditors for small amounts who might cause annoyance to both Gustine, the creditor, and the two plaintiffs here defendants in the consent judgment!

There was judgment in the court below dissolving the injunction, with twenty per cent, damages, and rendering judgment against the plaintiffs, rejecting their claim to annul the judgment.

Tiie plaintiffs have appealed.

The facts are that these plaintiffs leased property from the defendant Gustine, and were in arrears with him to a considerable amount. An arrangement was entered into through an attorney by which the parties indebted on their lease were to confess a judgment in favor of their lessor who was not to execute it, but hold it in check over creditors for small sums, who were by means of judgments obtained in courts of justices of the peace frequently annoying the plaintiffs by seizures for small debts, while at the same time he made his own debt secure. It is shown that Mrs. Moussier has a husband who has been absent several years in Brazil. This fact is fully proved. No authorization whatever is shown for her to appear in court. The judge a quo proceeded to render judgment against her on the ground that, being shown to be the keeper of a boarding house, and therefore a public merchant, no authorization was necessary either from her husband or the court. We do not think that articles 121 and 131 of the Civil Code can be construed to warrant the conclusion that the carrying on of any other business by a married woman than that of merchandise constitutes her a public merchant. The latter clause of article 131 declares that 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.” The separate trade ” here spoken of, we think, refers clearly to the trade in merchandise and not to any other business or pursuit.

By the terms and conditions of the lease the lessees (the two plaintiffs) were bound in solido. The judgment they seek now to annul never had any legal force against Mrs. Moussier for the reasons stated. But it remains in force against Mrs. Courcelle.

It is therefore ordered that the judgment appealed from be annulled and set aside. It is ordered further that the judgment which the plaintiffs pray in this suit to have annulled be and the same is hereby decreed null and void as to Mrs. Moussier, and that it be maintained for the whole against Mrs. Courcelle. It is further ordered that the injunction be perpetuated as to Mrs. Moussier, with costs in the lower court; and that it be dissolved as to Mrs. Courcelle, with ten per cent, damages on the amount injoined, which are hereby decreed against Mrs. Courcelle and her sureties on the injunction bond in solido, she paying all costs.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 2030.
    Moses Marx v. National Marine and Fire Insurance Company.
    _A. river policy of insurance, No. 208, was executed in favor of A on tlie first of February 1867, according to all the forms prescribed by the charter and by-laws of the company. The insurance was “on account of whom it may concern, on such property lost or not lost, and in such sums, to and from such ports or places, and by such good and seaworthy steamboats or other river craft as may be approved by the company and entered in the book attached to the policy; it being expressly understood and agreed that no risk under this insurance is or shall be binding unless so approved and entered.”
    •Subsequently, on the iourth of same month, A, under the open river policy No. 208, made a special application which was accepted, to have all merchandise shipped to him on the Ohio and Mississippi rivers and their navigable tributaries, covered witlioufrbeing entered in the book attached to the policy, the risk on any one boat being limited to $5000, and he binding himself to report the shipment as soon as notice thereof was received by bill of lading or otherwise. On the ninth of April, A had an entry made in the book attached to his policy, by which merchandise shipped to him from Montgomery on the Alabmna river was covered. The merchandise had been burned on the seventh of same month, but A had no knowledge of the fact at the time of the entry.
    "Held — That the entry was regularly made and within the terms of the open policy; that said policy authorized the risk from the port of Montgomery, on the Alabama river j and that the special application was an additional agreement containing certain stipulations, none of which modified the open policy so as to limit the risks to the Ohio and Mississippi rivers and their navigable tributaries.

    "Where the stipulation is that the property to be insured shall be covered lost or not lost, and no fraud has been established against the insured, the contract of insurance becomes operative and covers the property whether lost or not lost at the time of the entry.
    APPEAL from the Fifth District Court, Parish of Orleans. Beaumont, J.

      H. B. Kelly, for defendants and appellees.

      John M. Bonner, for plaintiff and appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Kennard.
   Wyly, J.

The plaintiff sues the National Marine and Fire Insurance •Company for $2232, alleging that he holds their open river policy of insurance No. 203, issued on first day of February, 1867; that on the third of April following his agents shipped from Montgomery, Alabama, to New Orleans, on the steamboat u Benefit,” a lot of merchan•dise belonging to him; that he received the invoices on the sixth, and on the ninth of April he presented them at the office and to the proper officer or agent of said company, in order to have the insurance entered in the book annexed to said open policy, making the application in writing; thereupon the entry was made under the heading: indorsements on open river policy No'. 208.” It mentioned the date, the thing, the name of the vessel, the place of shipment, the destination, the sum insured, the rate of insurance, and the amount of premium.

The plaintiff alleges that said steamboat Benefit was lost with his ■said merchandise, by fire, on the Alabama river, on the seventh of April, 1867, of which he first heard on the evening of the ninth after •said entry had been made on said policy.

He further alleges that he notified the company and demanded settlement, which was refused. He therefore sues for the amount of the insurance. After pleading the general issue, the defendants admit the execution, of the open river policy of insurance No. 208, hut aver that the risks to be covered thereby are, by the express terms of the instrument, limited to the Mississippi and Ohio rivers and their navigable tributaries. They deny that they ever entered into any contract of insurance with the plaintiff, covering risks on the Alabama river, where the loss occurred, for which the plaintiff seeks to hold them liable. They admit that the plaintiff, on the ninth of April, 1867, made application to a clerk in their office to have certain merchandise on board the steamboat Benefit,” at and from Montgomery, Alabama, entered upon said open river policy, but they aver that he had no right to claim said entry on said policy, as said application was not in conformity to and accordance with the terms of said policy; that it was outside of its stipulations and involved a new and differeut contract of insurance, to which they deny the company ever became a party or acceded to by any of its officers authorized by the charter to make contracts, take risks, or make or modify the policies of insurance. They further aver that prior to said application said steamboat “Benefit,” with the said merchandise on board, had been destroyed by fire and that the plaintiff had received intelligence thereof, as had also the officers of the company authorized to take risks and make policies of insurance.

They aver that the entry made of said merchandise on said policy of insurance was procured by said Marx’s fraudulently cancelling and withholding from the clerk who made the entry, at his instance, the fact well known to said Marx, that said policy did not extend to or cover risks on the Alabama river. They also aver that the entry was made by the clerk on the erroneous supposition that the application corresponded with the terms of the policy which it did not. And they specially deny that the clerk had authority to bind the company by any entry outside of the express terms of the policy.

The court dismissed, as of nonsuit, the demand of the plaintiff, and he has appealed. The question is, was the entry of the ninth of April on the open policy No. 208, made in conformity with the terms of said policy? Was it outside of its stipulations, involving a new contract, which the clerk had no authority to make? In the open policy we find the following clause': “This insurance is declared to be on

such property, in such sums, to and from such ports or places, and by such good and seaworthy steamboats, or other river craft, as may be approved by this company and entered in the book attached to this policy. It being expressly understood and agreed, that no risk under this insurance is, or shall be, binding until so approved and entered.”

We are of the opinion that the entry was within the terms of the policy and that the risk became binding on the company from the date of the entry.

Under tlie open policy No. 208, the insurance became complete on such property “ to and from such ports or places ” as may be approved by the company and “entered in the book attached to this policy.,r The entry was regularly made; and the open policy authorized the risk from the port of Montgomery, Alabama, because under it an entry could be made from any post or place.

It is not denied that the clerk had authority to make the entry, if it fell within the terms of the policy. Besides a witness of the defendants states that all the entries were made by clerks in the office prior to the ninth April, and they were properly made; among these entries, or indorsements, we notice several on the Alabama river.

But the defendants refer to the river application under open policy No. 208 to show that said policy was limited to shipments on the Mississippi and Ohio rivers and their tributaries; and that it did not cover risks on the Alabama river.

This river application was signed by the plaintiff and the secretary of the company on the fourth of February, 1867. It was intended to cover all shipments, belonging to whom it may concern, addressed to-the assured on board any seaworthy vessel on the Mississippi and Ohio rivers and their tributaries, provided the risk by any one boat shall not exceed $5000; and it also stipulated that the assured shall give prompt notice of every shipment as soon as notified thereof by bill of lading or otherwise. In this river application of fourth February, 1867, we do not find the limitation insisted on by the defendants. It simply modifies the original contract so far as relates to consignments to the plaintiff on the Mississippi and Ohio rivers and their tributaries, by stipulating that the risk on no boat shall exceed $5000, and that the risk shall take effect from the date of shipment, instead of the date of entry or indorsement on the open policy.

Under this application all consignments, on rivers named, were insured from the date of shipment. Without it the risk would only attach from the date of entry or indorsement on the open policy No. 208. It is true this river application does not extend to the Alabama river; but the plaintiff does not seek to hold the defendants liable-under it. Their liability is claimed from the date of the entry or indorsement which was made pursuant to the express stipulation in open policy No. 208, that the insurance shall attach from the date of entry “on such property, in such sums, to and from such posts or places,’’ as maybe approved by the company “and entered in the book attached to this policy.” The open policy covers all shipments from the date of the entry contemplated, and there is nothing in the river application in question limiting this stipulation in the original contract of insurance. It is merely an additional agreement by which insurance, on certain rivers, and to certain amounts, might at once be •operative without indorsement or entry in the book annexed to open policy No. 208. The only remaining question is, can the insurers be held liable when it appears that the loss had occurred before the entry or indorsement on the open policy, and of this fact they were, at the time, aware?

No fraud has been established against the assured. He seems to have acted in good faith and had no knowledge, when he applied for the entry, that the loss had occurred on the Alabama river two days-before. In the open river policy No. 208 we find a stipulation that the property to be insured shall be covered, lost or not lost. No risk, however, was to be binding till approved and entered. When this was done the contract of insurance became operative and it covered the property whether lost or not at the time of the indorsement.

We have shown that the clerk had authority to make the entry or Indorsement because it was within the terms of the open policy. Thereafter the insurance was complete. The amount of the loss is not disputed. The plaintiff should therefore have judgment for the amount claimed, less $27 90, the amount of the premium.

It is therefore ordered that the judgment appealed from be annulled, .and it is ordered that the plaintiff have judgment against the defendants for two thousand two hundred and thirty-two dollars with legal interest from judicial demand, less twenty-seven dollars and ninety •cents, the amount of premium.

It is further ordered that the defendants pay costs of both courts.


author: Kennard, J.

text:
    No. 2833.
    State of Louisiana ex rel. A. A. Plattsmier v. J. O. Landry, Controller, and al., City of New Orleans.
    "The facts and law in tliis case are identical with those in the case of State of Louisiana ex rel. <3-. W. Saddler v. J. O. Landry and al., city of New Orleans, except that in this case the plaintiff is a constable instead of a justice of the peace.
    APPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      Brice & Mitchell, for plaintiff and appellee.
    J. B. Beckwith, for relator and appellant.
    Justices concurring : Ludeling, Taliaferro, Howell, Wyly, Kennard.
   Kennard, J.

The facts and law in this case are identical with those in the case of State of Louisiana ex rel. George W. Saddler, appellee v. J. O. Landry et al. City of New Orleans, appellant, except that in this case the plaintiff is a' constable instead of a justice of the peace.

For the reasons assigned in that case it is ordered that the judgment of the lower court be reversed and the mandamus denied, with costs to be paid by relator.


author: Ludeling, C. J.

text:
    No. 4445.
    State of Louisiana ex rel. H. Newgass v. S. Friedlander, President of New Orleans Sanitary and Fertilizing Company.
    Where a suit is by a stockholder of a company to compel the officers to permit him to examine the books of the company, and there is no amount in dispute which could give the court jurisdiction, the appeal will be dismissed.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      JSornor & Benedict, for relator and appellee.

      Laeey & Butler, ■for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro, Howell and Kennard.
   Ludeling, C. J.

A motion has been made in this case to dismiss the appeal for want of jurisdiction.

The suit is by a stockholder of the company to compel the officers to permit him to examine the books of the company. There is no ■amount in dispute which could give this court jurisdiction. 24 An. 148; art. 74 of the constitution.

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


text:
    No. 2624.
    Crescent City Bank v. Joseph Hernandez.
    Where a power of attorney is given to an agent “ to make checks and draw money out of any bank or banks wherein the same may have been deposited in the name or for account of the principal,” the fact that a sufficient amount to meet the cheek was not deposited when the check was drawn is not a valid defense, and does not authorize the principal to refuse paying it in the hands of a party who had no notice of the prohibition put upon the agent.
    Where A gives an accommodation check to IB in exchange for B’s check, the fact that B’s • check is not paid, does not release A from the liabilities attaching to his own check as soon as it is received by an innocent third party as cash.
    The rights which become vested when a check is deposited can not be prejudiced by what happens after that time between the original parties.
    There is no reason why a deposit to the credit of an overdrawn account should not be fully as legal and unsuspicious as one on an account already credited with a balance. The disoovery of an overdraft is the strongest possible incentive to an early deposit to make the account good.
    Tt is better that the immediate employer and principal of an agent should suffer by the imprudence of his employe than that third parties should suffer from those acts of agents which are recognized by the public as valid, because of the confidence reposed in the principal.
    Where an agent issues a commercial obligation authorized by the terms of his mandate, the legal presumption is that it was for a valuable consideration which has actually accrued to the benefit of his principal, and that, therefore, the principal is bound by it $ and third parties who, acting on the presumption, receive such negotiable'obligations, are protected against the equities of which they have no notice.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens. J.

      Albert Voorldes, attorney for plaintiff and appellee.

      Semmes <& Mott, for defendant and appellant.
    Justices concurring: Taliaferro, Howell, Wyly and Kennard.
   Kennard, J.

The Crescent City Bank, plaintiff, sues the defendant Joseph Hernandez, upon his cheek on the Germania National Bank of New Orleans for the sum of two thousand five hundred and fifteen dollars and seventy-five cents, dated New Orleans, November 11, 1869,. drawn by J. Hernandez, per M. P. Bonis, to the order of Huger & Bein and by them indorsed: “Por deposit, Huger & Bein, per R. E„ Wheeler.”

The plaintiff received this check from Huger & Bein, their depositors, in regular course of business and entered it in their bank book as-so much cash on the morning of November 12, 1869.

The defendant Hernandez, through his agent M. P. Bonis, had, as a matter of accommodation, given this check on the afternoon of November 11, after bank hours, to Huger & Bein in exchange for their check, dated one day ahead, to wit, November 12. This check was drawn on the Crescent City Bank, the plaintiff. Hernandez, the defendant, presented the check received by him to the Crescent City Bank on the twelfth, before his check, the one in suit, was presented to the Germania Bank for payment in the regular course of bank exchanges. The check drawn by Huger & Bein being refused payment, Hernandez immediately notified the Germania Bank not to pay his check, drawn November 1.1, 1869, in favor of Huger & Bein.

The court a qua gave judgment against Hernandez and he has appealed.

The grounds of his defense are—

First — That the check was drawn without authority by M. P. Bonis on the Germania National Bank at a time when he had no funds to his credit in said bank, nor had he any funds on deposit there between the drawing of the check and its presentation for payment; that said Bonis was not authorized to draw accommodation checks on banks where no funds were deposited to the credit of respondent, or checks for larger sums than the amount at the time on deposit.

Second — That plaintiff is not “ a bona fide” holder for value; that Huger & Bein obtained possession of. said check with full knowledge that Bonis was not authorized to draw said check, through fraud and false representations and without consideration; that it was deposited with plaintiff as the agent of Huger & Bein for collection.

Third — That when the deposit was made by Huger & Bein the Crescent City Bank well knew that the account of Huger & Bein in said bank was largely overdrawn and so continued to be up to the institution of this suit; that at the time of such deposit plaintiff paid no consideration therefor and has never given any new- credit thereon,, and that plaintiff was notified by M. P. Bonis prior to the time when the check sued on was presented for payment to the Germania Bank.

The authority exercised by M. P. Bonis, agent of Hernandez, in drawing the check in question must be measured by the terms of the procuration under which he acted. It is unusually full and contains the following clause : “ Giving and granting unto him, said attorney, full power and authority for him, and in his name and behalf and to his use to manage and transact all and singular his business and affairs in this city, to open all letters of correspondence addressed to said appearer and to answer the same, to make checks and draw money out of any bank or banks wherein the same may have been deposited in the name or for account of said appearer.”

The answer of defendant and the character of the evidence shows conclusively that he would not have expected a release from the payment of his check, had there been funds to meet it on deposit in the Germania Bank at the time when the check was drawn, the agent’s authority to draw checks being unrestricted in the power of attorney so far as funds on deposit are concerned.

Is the fact that a sufficient amount to meet the check, was not on deposit when the check was drawn, a valid defense to its payment in the hands of a party who had no notice of the prohibition put upon the agent 1

Can the default made by Huger & Bein, with reference to their check given in exchange for this, operate a release from the liabilities attaching to defendant as soon as his check was received by an innocent third party as cash ?

This checK was entered in the bank book of Huger & Bein as cash. Immediately upon its entry, Huger & Bein were authorized to check against it and the evidence shows that by one o’clock on the twelfth they had exhausted their deposit including this check. The consideration given by the Crescent City Bank was then the face value of the check in cash.

The proof is that seven exchanges of checks similar to this had been previously made between these parties, a course of dealing well calculated to remove any doubts that might have been entertained by the plaintiff as to the regularity of this check.

The second ground of defense that Huger & Bein obtained their possession with full knowledge that Bonis was not authorized to draw it, if true, can not prejudice the rights of a third holder who is neither alleged nor proven to have had such knowledge.

The allegations, if proven, that the Crescent City Bank knew that the account of Huger & Bein was largely overdrawn when this check was deposited, and so continued to be up to the institution of this suit, that no new credit was given on account thereof, and that plaintiff was notified prior to the presentation of the check for payments, can not avail the defendant. Plaintiff’s rights vested when the check was deposited, what happened after that time between the original parties can not prejudice those rights. We see no reason why a deposit to the credit of an overdrawn account is not fully as legal and unsuspicious as one to an account already credited with a balance.

The discovery of an overdrait is the strongest possible incentive to-an early deposit to make the account good.

It is contended that to validate checks thus drawn when there are-not funds on deposit to meet them, is to authorize an agent to use his-principal’s credit instead of his cash. That the agent will thereby be-left without restraint and may at will ruin his principal, and the case-of Baines v. Ewing, volume 1 Law Reports Exchequer for 1866, p. 320, is cited as sustaining this view.

In that case the agent was authorized in the name of his principal to underwrite policies against marine risks in Liverpool not exceeding £100 by any one vessel. He exceeded his authority by underwriting-a policy ior £150, and the court held the principal to have been released, but the reason assigned by the court destroys the analogy to-this case.

The organ of the court says: “The plaintiff was not aware that-the broker’s authority was limited to any particular sum, but it was-notorious in Liverpool that in nearly all cases there is a limit of some sort which remains undisclosed to third persons imposed on brokers-by their principals.”

Baron Martin, concurring, adds : “But then it is said we must hold-him to have had authority because of the exigencies and course of business at Liverpool. It appears, however, that it was well known there that a limit is almost always, if not always, put to the amount for which a broker may underwrite.”

Banks see fit to treat their good credit as increasing the amount of their cash on deposit, and we see no good reason why innocent third parties should be held responsible for entertaining the same confidence; in a good signature.

We think this view not only consonant with sound law but essential to banks themselves and commercial interests generally. It is better that the immediate employer and principal of an agent should suffer by the imprudence of his employe than that third parties should suffer from those acts of agents, which are recognized by the public as valid, because of the confidence reposed in the principal.

The reasons assigned by the learned judge a quo are cogent and. satisfactory. For those reasons and the reasons herein assigned the-judgment is affirmed.

The Supreme Court having assigned among the reasons for their-judgment those given by the judge a quo, it is deemed proper to report his decision. — Reporter.

Crescent City Bank v. Joseph Hernandez, Seventh District Court, parish of Orleans. Collens, J. The defendant is a stock, money and exchange broker; M. P. Bonis is defendant’s principal clerk, and has also-been constituted his agent by authentic act passed before S. Magner, Esq., notary public. This power given by this act is very extensive. It gives, generally, authority to manage and transact all and singular the constituent’s business in this city, and specially to make deposits and draw checks, to sell stocks,” etc., to receive and pay moneys, . “to make pawns and pledges,” to make, give and renew notes, “to-borrow money, adjust and settle all accounts,” to compromise, compound, etc.

On one or more occasions Bonis had made friendly loans of Hernandez’s funds to Huger & Bein, but Hernandez, on being informed of this, expressly forbade a repetition of this favor. Nevertheless, on the eleventh November, 1869, after bank hours, Bonis was prevailed upon to receive Huger & Bein’s check on the Crescent City Bank for $2515 75, payable next day, and in exchange to give Hernandez a check on the Germania Bank for a like sum, payable immediately; at the moment Bonis drew this check he knew that, though Hernandez, had an account at the Germania Bank, the balance there to his credit amounted only to a few dollars, and he relied to make up the deficiency on Huger & Bein’s check on the Crescent City Bank; also, on other promises and assurances of Huger & Bein, but these expectations were not realized. Huger & Bein deposited Hernandez’s check in the Crescent City Bank as cash, and it was credited to them as cash, and therefore as customary of this right they availed themselves super-abundantly and before the check drawn in favor of Harnandez was presented they had, by means of other checks, overdrawn their accounts. .

In the meantime, Bonis, for Hernandez, had made no deposit in the Germania Bank to meet the check he had drawn, so that when the-plaintiff presented it for payment, it was refused and protested, and not only for want of funds, but also by express orders from Hernandez,, who had become aware of the violation of his private instructions.

The question presented is whether Hernandez is liable to the Crescent City Bank on this check; he contends that the power to make checks is necessarily a limited power, that an agent having this power can bind his principal to the extent only of the amount of cash actually on deposit at the moment of drawing the check, for it is a power to draw against funds, and therefore it ceases when there are no funds, so that an agent who issues checks, when there is no deposit to meet th'em exceeds his power, and does not bind his principal. ■ Defendant’s counsel argue that an assignment, or appropriation of the deposit pro tanto, and therefore if there is no deposit or fund there can be no assignment made by the agent so as to affect the principal. They also argue that a check is only a means of effecting a payment, and hence the power to make it does not give that of using the principal’s credit by the issue of an indefinite number of checks on banks where no account, or no sufficient deposit is kept. They might have gone further and have asserted that the maxim that every man is limited; in every instance the agent is bound to use and apply the principal’s moneys and other property only to that principal’s affairs; the agent is forbidden by law from incumbering or alienating the property or expending the money, or engaging the credit of the principal for his, the agent’s, own affairs or benefit, or to accommodate his own friends; any person taking an obligation from an agent as such in the transaction of business that does not concern the affairs of the principal, acquires no right of action against the principal; hence under the circumstances of this case, Huger & Bein would have no action against Hernandez on the check, not only because they had knowledge of the particular orders given to Bonis, but also because it was issued to them in a transaction which did not concern Hernandez or his business. They were parties to the contract itself that gave rise to the drawing of the check, and therefore liable to its ultimate equities.

But this suit is not one between original parties, but it is a controversy between a principal, sued by an innocent third party, on a written obligation contracted by an agent on behalf of that principal. The real question to be solved is whether the third party in such a case is affected by the abuse of power the agent has been guilty of in drawing a check, or by the equities between the principal and the drawee of the check.

There is a distinction in law between an abuse of power and an exceeding of power, committed by an agent. In tiie one case, the agent does some act within the descriptive terms of his mandate, some act which the mandate declares he shall have a right to do for his principal, but which he does really for his own benefit, or contrary to private instructions. These acts of abuse of power will bind the principal because they are covered by the terms of the mandate, unless the party dealing with the agent is aware of the agent’s infidelity or gross sacrifice, or misuse of the principal’s rights and property. Acts that exceed the power given — that is to say, those that are not of the kind or description mentioned in the mandate, are of no effect whatever against the principal; hence, if there had been no power given to Bonis in this mandate to draw checks, his having issued one would be in no manner binding on Hernandez; but there is such a power given, and though the agent may have committed an abuse of his authority, the law, in my 'opinion, renders the principal liable to a party innocent or ignorant of that abuse. Story on Agency, 126 et seq.

True it is, a check appropriates the amount to the holder of the •check; but the act of drawing a check by an agent authorized so to draw, authorizes the assumption that there are really funds on deposit, which may be so appropriated, and no one dealing with the agent for a check, is bound to -make previous inquiry at the bank, any more than if he were dealing with the principal. If such an inquiry were necessary, the very facilities which checks were invented to procure would be defeated.

It is also true that a check is a means of effecting a payment and not a means of using credit; but because it is only a means of payment, says Chancellor Kent, (vol. 4, p. 549, Note 4th Ed.) the check is the acknowledgment of a certain sum due. Justice Sutherland, in Murray v. Judah, 6 Co wen, 490, also says, “Every check is prima fade presumed to be given for value received by the drawer.” Now, Bonis was vested with ample authority to contract a debt for this principal to pay his principal’s debts, to acknowledge an indebtedness for his principal, and to draw a check for the purpose, and the presumption arises in favor of his act.

Is the principal released on proof that the fact does not sustain the presumption, and that an abuse of authority was really committed?

The law answers negatively, whenever the check has in its temporary circulation come through the ordinary course of business into the hands of an innocent holder for value.

The rule governing bills of exchange in this respect is also applicable to checks.

Story on promissory notes, par. 488, says of “ checks,” where they are made payable to a particular person only, they are not negotiable; where they are payable to order they are negotiable by indorsement, and where they are payable to bearer they are negotiable by mere delivery.

In these respects they have the precise qualities and effects of bills of -exchange. Kent, vol. 3, page 75, 4th ed., says of a check; “It is transferable like a bill of exchange;” and Strong, on promissory notes, page 491, says: “ It is a well known rule of law that a bill of exchange, or a promissory note taken after the day of payment, or, as the common phrase is, when it is overdue, subjects the holder to all the equities attaching to it, in the hands of the party from whom he receives it.” But this rule does not apply to a check, for it is not treated as overdue, although it is taken by the holder some days after its date, and it is payable on demand. On the contrary, the holder, in BUch a case, takes it, subject to no equities, of which he had not at the time notice, etc.

To sum up, when an agent issues a commercial obligation, authorized by the terms of his mandate, the legal presumption is that it was for a valuable consideration that has actually accrued to the benefit of his principal, and that, therefore, the principalis bound by it; and third parties, who, acting on the presumption, receive such negotiable obligations are protected against the equities of which they have had no notice. 10 L. R., 567; 19 A. R., 183; Louisiana Code, 2971, 2972, 2990.

Judgment for plaintiff.


author: Howell, J.

text:
    No. 3957.
    City of New Orleans v. J. Strauss. E. Merle and J. Chapus, Warrantors.
    Wliere a certificate of indebtedness wifcb tbe date and number wanting, was stolen, while being prepared for issuance, before it was issued and put in tbe market by tbe city of New Orleans, and alter tbe date and number bad been subsequently forged, was sold to tbe defendant, who called bis vendor in warranty;
    Held — That this instrument can not be classed as negotiable paper upon which tbe maker is bound to innocent holders. It is transferable, it is true, but tbe transferree obtains only tbe rights of tbe transferrer.
    In this case tbe transferrers and warrantors bad no legal possession of tbe certificate of indebtedness of which the city of New Orleans never ceased to bo tbe owner.
    APPEAL from the Fourth District Court, parish of Orleans. Ihéard, J.

      George S. Lacey, City Attorney, for plaintiff and appellee.

      O. Poselius á Alfred Philips, for defendant and appellant.

      Says ds Seiv, for warrantors.
    Justices present and concurring: Ludeling, Taliaferro, Howell and Kennard.
   Howell, J.

The city of New Orleans claims the sequestration and possession of a certain certificate of indebtedness in favor oí J. Fallon or bearer for $775 65, found in the possession of the defendant, Strauss, and alleged to have been stolen in a state of incompleteness from the office of the Administrator of Public Accounts. The defendant answered that he purchased said certificate in due course of business from E. Merle and J. Chapus, and it being a negotiable instrument his title as an innocent third holder is good. He called his vendors in warranty, whose answers are substantially a general denial, Chapus specially denying any connection with the matter. From a judgment in favor of the city and one against the warrantors in solido, in favor of defendant, the parties cast have appealed.

The evidence satisfies us that the “certificate” was stolen from the office of the Administrator of Public Accounts, before it was in a state or form to be issued, and that the deficiencies were supplied before the sale to defendant on the same day of the theft. But we can not class this instrument as negotiable commercial paper, upon which the maker is bound to innocent third holders. It is transferable, it is true, but the transferree obtains only the rights of the transferrer. See the case of the State ex rel. S. Smith & Co. v. James Graham, Auditor, recently decided. Strauss obtained no title, and the city was correctly held to be the owner.

We concur in the opinion of the judge a quo that the warrantors have not shown a legal possession of the certificate, and that they must be condemned to pay to Strauss the amount paid by him to them for the certificate.

Judgment affirmed.

Rehearing refused.


text:
    No. 4075.
    Alva M. Holbrook v. Jennie Bronson, his wife.
    "Where citation is served personally on a married woman authorized to defend the suit, she is regularly in court, and on its being shown that she has a domicile in the parish, a notice to which she is entitled can be served on her personally, or at her said domicile, unless there is some special provision of law requiring another mode of giving the notice.
    It can not be contended on her behalf that, inasmuch as, when the judgment was rendered and notice thereof served at her domicile, she was absent, or had gone out of the parish, it was necessary to appoint an attorney upon whom service of the notice of judgment should have been made.
    Article 141 K. C. C. is to be construed as applying to the defendant who is absent, or incapable of acting, at the institution of the suit, and can not be cited in the usual way, but not to one who is legally and regularly a party to a suit and who voluntarily declines making a defense or temporarily leavos the place of the jurisdiction after being cited. The jurisdiction of the court can not thus be defeated.
    The appointment of persons to represent parties to a suit should be made with caution and in cases clearly designated.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.

      Semmes & Mott, for plaintiff and appellee.

      J. B. Howard, for defendant and appellant.
    Justices concurring: Howell, Wyly, Kennard.
   Howell, J.

A motion is made to dismiss this appeal on the ground, among others, that when it was taken, the delay within which appeals are by law allowable in this class of cases, had expired.

The suit was instituted for a divorce. The defendant, upon the prayer of the plaintiff, was authorized to defend it, and a domicile (her usual residence No. 208 Constance street) was assigned to her during the pendency of the proceedings ; personal service of the petition and citation was made on her; after the legal delays, no answer being filed, default was taken and duly confirmed in favor of plaintiff; notice of final judgment was served on defendant on twenty-ninth January, 1872, by leaving the same (in the language of the return) at her ' domicile, No. 208 Constance street, in the hands of Mary McKennery, a person over fourteen years of age, and living and residing at said domicile, whose name and the other facts connected with this service, I learned by interrogating said Mary McKennery, the aforesaid Jennie Bronson being absent from home at the time of said service.” The petition of appeal was filed on twenty-second June, and the order of appeal granted on second July, 1872, after hearing the parties, about five months after the said notice.

By article 573 C. P. as amended, an appeal from a judgment of divorce must be asked for within'thirty days, not including Sundays, after the signing of such judgment, instead of ten days, and shall operate as a suspensive appeal therefrom, and there shall be no devolutive appeal allowed thereafter. Acts 1871, p. 151.

The right to the appeal in this case depends on the sufficiency of the above notice of judgment, to which the defendant was entitled. C. P. 575, 620.

Having been personally cited and authorized to defend the suit, she was regularly in court, and having, as is shown, a domicile in the parish, any notice to which she was entitled could be made on her personally or at her said domicile (see 12 La. 600, C. P. 187, 192), unless there is some special provision of law which requires another mode of giving the notice.

It is contended in her behalf that inasmuch as it appears that, when the judgment was rendered and notice thereof served at her domicile she was absent or had gone out of the parish, it was necessary to appoint an attorney, upon whom notice of the judgment should have been made, and article 141 R. C. C. is invoked as authority. This article is in the chapter which treats “ of the proceedings of separation from bed and board, and reads: When the defendant is absent or incapable of acting from any cause, an attorney shall be appointed to represent him, against whom, contradictorily, the suit shall be prosecuted.”

This, we construe, as applying to the defendant, who is absent or incapable of acting, at the institution of the suit, and can not be cited in the usual way; but not to one who is legally and regularly a party to a suit, and who voluntarily declines making a defense or temporarily leaves the place of the jurisdiction after being cited. Tne jurisdiction of the court can not thus be defeated.

If the defendant had been the husband, with a permanent residence iu the parish, but absent temporarily on business or pleasure in an adjoining parish or State, we apprehend that notice at his domicile, in the usual manner, would be considered sufficient. We must give the same effect to the proceeding where the wife is the defendant under like circumstances.

The appointment of persons to represent parties to a suit should be made with caution, and in cases clearly designated. Parties to lawsuits are presumed to conduct or defend them according to their own opinion of their interests. And while we readily concede that all the legal formalities should be strictly observed in divorce suits, we are not authorized in requiring parties to do more for themselves than they choose to do, or in doing more for them than they desire to have done. We can not consider the defendant in this case as an absentee within article 141 R. C. C.

It is therefore ordered that the appeal herein be dismissed with costs. Rehearing refused.


author: Wylt, J.

text:
    No. 3646.
    Succession of James M. Pinniger. Rule against Widow Flanner, purchaser.
    The judgments in this ease appointing a testamentary tutor and the mother oí minors their natural tutrix were not absolute nullities, and can not be attacked collaterally. Where a divorced wife marries again, and after the death of her first husband, claims to exercise her rights of tutorship by nature over the issue of her first marriage;
    Held — That the forfeiture announced in article 254 of the Revised Code has no application to her case.
    There is no law prohibiting a divorced wife from becoming natural tutrix of her children after the death of their father.
    The fact that there are no special tutors ad hoc appointed for minors at the time of the sale of their property does not concern the purchaser.
    The services of special tutors ad hoc are not necessary to effect a sale of minors' property. Tlieir duty begins at the partition before the notary, if not appointed at the time of the sale, they may be appointed afterwards and before the notary begins the partition.
    The purchaser at a judicial sale is protected by the decree ordering the sale, and is not bound to look beyond it.
    APPEAL from the Second District Court, parish of Orleans. Dwigneaud, J.

      O. M. Oonrad & Son, William Grant, F. T. & F. J. Fellows, for G. P. Porter, executor and tutor, and al. appellants.

      W. Murphy, for Widow Flanner, appellee.
    Justices concurring: Ludeling, Taliaferro, Howell and Wyly.
   Wylt, J.

In 1869 James M. Pinniger obtained judgment of divorce, against his wife, Emily Robertson, and it was ordered that the children, the issue of the marriage, be placed under the care of the father, except Martha, the youngest, who on account of her youth was placed under the care of her mother. After the divorce, but during the life of said James M. Pinniger, the said Emily Robertson married W. W. Freeman. Subsequently, to wit: In October, 1870, James M. Pinniger died, leaving a small succession and leaving a will bequeathing his property to his four children, to wit: James R., Emily Y., Isaac M., and Martha Pinniger, and appointing George F. Porter testamentary executor and also tutor to the minor, Emily Y. Pinniger.

On the twentieth December, 1870, the said Porter was duly qualified and received letters in both capacities. Mrs. Freeman was confirmed, on the advice of a family meeting, as natural tutrix of the other three minors.

On the advice of a family meeting the court subsequently ordered the sale of the property in order to effect a partition. After due advertisement, and observance of the formalities of law, the auctioneer sold the property pursuant to the order of the court. A part thereof was adjudicated to Widow Flanner, who refused to comply with the terms of adjudication and a rule was taken to compel her to do so.

To this rule the purchaser filed an answer setting forth that she refused to comply with the adjudication, for the reason that there is a cloud on the title offered her, that the formalities required by law for the settlement of a succession, or to make a partition between minors, had not been complied with, in the following particulars, to wit:

First — That one of the heirs (all being issue of the same marriage) is represented by a testamentary tutor appointed by the father during the existence of the mother of the minor, which is null.

Second — That the other minors are represented by their mother who was appointed natural tutrix after having contracted a second marriage which could not legally be done.

Third — That the mother after contracting a second marriage could only be appointed dative tutrix, and that as such, like all dative tutors, was bound to give security, and that until all the formalities required by law have been couplied with, the acts of the so called tutor has no binding effect on the minors.

Fourth — That the mother having been divorced by a judgment of the Fifth District Court, and deprived of the care and control of the same minors, she could under no circumstances be appointed their tutrix.

Fifth — That to effect the partition, the heirs having separate and opposing interests in the succession, should have been represented by special tutors ad hoe for each of them, which was not done.

Sixth — That a partition thus made is only provisional and can be set aside at any moment on the application of any of the minors.

The court dismissed the rule and the testamentary executor and the tutors of the minors appeal. We think the court erred.

The judgment appointing George F. Porter testamentary tutor of the minor, Emily Y. Pinniger, and the judgment appointing the mother of the minors natural tutrix of the other three children, are not absolute nullities, and they can not be attacked collaterally. 14 An. 623; 13 An. 380.

The forfeiture announced in article 254 Revised Code has no application to a case like this. Mrs. Freeman was not married while she was natural tutrix. At the time of her marriage to Freeman there was no tutorship, because the father of the children, James M. Pinniger, was living. It was not till after his death that a tutorship became necessary.

We know of no law prohibiting a divorced wife from becoming natural tutrix of her children after the death of their father. The fact that there were not special tutors ad hoc appointed for the minors at the time oí the sale does not concern the purchaser. Their services were not necessary to effect the sale. Their duty begins at the partition before the notary. If not appointed at the time of the sale, they anight be appointed afterwards, and before the notary begins the partition. The only interest the purchaser has is to get a good title.

Here is a regular proceeding for the sale of the property to make a partition. The order of sale is based upon the advice of a family meeting, and the advertisement and all the formalities necessary for the sale seem to have been complied with.

It is well settled that the purchaser at judicial sale is protected by the decree ordering the sale, and is not bound to look beyond it. 11 La. 156; 13 La. 431, 432; 16 La. 440; 3 R. 122; 2 An. 466, 507; 14 An. 622; 15 An. 250, 676, 641; 18 An. 485, 407; 21 An. 425, 505, 514; 22 An. 175, 629; 23 An. 628, 630, 614.

On complying- with the terms of adjudication the purchaser will get ■a valid title to the property, and that is all the interest she has in the controversy.

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 appellee in both courts.


text:
    No. 2839.
    Joseph Macheca v. Philip Avegno, and Philip Avegno v. Joseph Macheca. (Consolidated cases.)
    Servitudes, when an act of saléis silent on tbo subject, can only be shown by proof of the use or existence thereof for a period sufficient to establish title, and this may be proved by parol. All agreements in relation to such use may also be proved by parol, unless it is shown that they were reduced to writing.
    ‘The evidence in this case shows that the alleged servitudes were subject to the will of the owner of the property on which they were exercised, and that the owner or owners of the otner property in whose behalf said servitudes were claimed to be established never acquired any legal title thereto.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      W. JB. Koontg, for appellee. Sambola & Ducros, for appellant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly and Kennard.
   Howell, J.

These two suits involve the right to the servitudes of passage and of drain claimed by one of the parties upon the property ■of the other, and damages alleged to have resulted from an injunction taken out by the creditor of the servitudes, which was dissolved in a former litigation.

Tlie claimant or creditor of the servitudes objected to oral proof of any agreement between the former owners of the two properties as to the title to said servitudes, on the ground that they are real property, and the proof must therefore be in writing.

As the various acts of sale of the two properties are silent in regard, to the alleged servitudes, the said servitudes can only be shown by proof of the use or existence thereof for a period sufficient to establish title, and this use may be proven by parol. It follows that all agreements in relation to such use may also be proven by parol, unless it is shown that they were reduced to writing, which was not done.

The evidence in this case shows that the alleged servitudes were subject to the will of the owner of the property, on which they were exercised, and that the owner or owners of the other property never acquired any legal title thereto. The judgment, therefore, on this-question was correctly rendered in favor of the alleged debtor.

As to the damages, they were claimed in reconvention in the injunction suit and rejected as of nonsuit. The evidence in the present proceeding does not establish the right to the damages claimed or allowed. See 12 An. 587.

It is therefore ordered that the judgment in the case of Macheca v. Avegno be affirmed, with costs in the lower court, and that the judgment in the case of Avegno v. Macheca for $180, general damages, and $250 special damages, as counsel’s fees, be reversed, and that there be judgment on the claim for damages against the said Avegno, plaintiff,, with costs of said suit in the lower court — appellee to pay costs of' appeal.


text:
    No. 2549.
    Successions of Andrew Dunford and Marie Charlotte Remi, his wife. Application of Pierre Maspero for Letters of Dative Testamentary Executor and Administrator—Edgar Marine et al. in opposition.
    Whore the heirs have been put in possession of the succession of their father and mother . by the Probate Court, tlie succession is terminated. Tlie property passes to the heirs and the debts of the deceased become the debts of the heirs, each being liable ior his virile share. The application for administration is too late, and if the appellant be a creditor, his remedy is against the heirs.
    APPEAL from the Parish and Probate Court, parish of Plaquemines. Prescott, J.

      Pierre Masjpero, for appellee.

      Sambola & Pucros,. for appellants.
    Justices concurring — Taliaferro, Wyly and Howell.
   Wyly, J.

The controversy in this case is about the appointment of a dative executor and an administrator. The heirs oppose the appointment on several grounds, the most effectual being there is no suceession to administer, because they have long since gone into possession under a regular order of court.

The application for administration was filed in October, 1869. In 1867 the Probate Court put the heirs in possession of the succession of their father and mother. This terminated the succession; the property passed to the heirs, and the debts of the deceased became the debts of the heirs, each being liable for his virile share.

If the applicant for administration be a creditor, his remedy is against the heirs.

It is therefore ordered that the judgment appealed from be annulled, and it is ordered that the application of Pierre Maspero be rejected with costs of both courts.


author: Taliaferro, J.

text:
    No. 4423.
    John T. Michel v. John Kaiser and al.
    The sheriff, when effecting a sale, has the right to exercise his judgment as to the solvency and sufficiency of the security offered, and to require bidders to he prepared at once to-comply with the conditions of the sale. Art. 689, Code of Practice.
    APPEAL from the Seventh District Court, parish of Orleans. Col-lens, J.

      £. Kmg Cutler, and B. K. Washington, for plaintiff and appellant.

      Cotton & Bevy and B. Billeul for defendants and appellees.
    Justices concurring — Ludeling, Taliaferro, Howell and Kennard.
   Taliaferro, J.

The plaintiff brings this action against the defendant and other parties to recover from them “The Magazine street Railroad,” which the plaintiff alleges he bought at a sheriff’s sale, having been the last and highest bidder for the property, and thereby acquired the right to have it adjudicated to him as the purchaser. That the sheriff, in violation of the rights of petitioner and of his own duties as an officer, wrongfully and illegally adjudicated the property to the defendants at a less sum than that bid by him. The sheriff is also made a party defendant. The defendants severed in their answers, pleading the general issue. There was judgment for the defendants and the plaintiff has appealed.

It seems that some time in the year 1872, the Magazine street Railroad was sold at sheriff’s sale, and that the plaintiff and two or three of the defendants were the principal competitors in bidding for the property. Upon the first offering the property was knocked off to Michel, the plaintiff, at the price of $149,000. A surety was offered by Michel worth $60,000. The deputy sheriff who made the sale demanded another surety or sureties. A short delay was asked for and granted to enable Michel to procure additional security. Failing in this the property was reoffered and Michel bid again in competition with the same parties who bid at the first exposure. When Michel’s bid reached $60,000 the sheriff inquired of him if he had any other •surety present besides Kerr, the person first offered, who had stated ■under oath that he was worth $60,000. Michel replying in the negative, the sheriff then said “ I will not take Michel’s bid beyond what he says he is worth.” Notwithstanding this he received Michel’s bid to the amount of $67,000. Kaiser bid $68,000 and Michel bid $69,000. But the testimony of Philips, one of the witnesses, who is an attorney, attended the sale in the interest of a client, and who, it appears, was •attentive to all that passed, is that when Michel bid $67,000 the sheriff warned him that he could not receive his bid with the proposed surety for any larger amount. This statement is corroborated by the testimony of the sheriff himself who says: “The last bid of the party to

whom it was adjudicated was $68,000; Michel bid $69,000; I refused peremptorily to take the bid; then I cried the property with a loud and audible voice at $68,000. I refused to take Michel’s bid; he was bidding $69,000. I made up my mind that taking Kerr for $66,000 or $67,000 and the check for $2000 that he gave me, was more than Kerr was worth. I gave time to the party. Michel came forward and asked if I would delay; I told him I could not delay much; it was the ■second adjudication. Then the property was sold to the parties who •complied with the terms of the sale instantly.”

It appears that the terms of the sale required the payment of $2000 in hand to cover costs, taxes, etc., and that Michel had tendered his eheck for that amount, which the sheriff was willing to receive. It was contended in argument that as the sheriff was willing to receive Kerr as surety for $67,000 and the cheek for the $2000 cash, Michel had complied with the terms by offering accepted security for his bid of $69,000. Whatever may be said of this we think the testimony •shows that the sheriff had at no time considered the obligation of Kerr together with the check to be sufficient for more than $67,000. He ■distinctly notified Michel, while crying the property the second time, that the security tendered by him would not be received for more than $67,000. We are unable to see that the sheriff’s acts in making the sale are unauthorized by law. He seems to have been governed by the provisions of article 009 of the Code of Practice. He had the right to judge of the solvency and sufficiency of the security offered, •and to require bidders to be prepared at once to comply with the conditions of the sale. We see no error in the decree of the lower •court.

Judgment affirmed.

Rehearing refused.


text:
    No. 2627.
    L. A. Benoist et al. v. Thomas Markey, Tutor, et al.
    The prescription of tlrree years set up against a suit for settlement of the affairs of a partnership is not applicable when no settlement of its business and no adjustment of the liabilities of the copartners among themselves have taken place.
    APPEAL from the Second District Court, parish of Orleans. Duvigneaud, J.

      H. O. Miller and Ihos. Hunton, for plaintiffs and appellees.

      Bpofford, Wooldridge & Thomas, for defendants and appellants.
    Justices concurring: Ludeling, Taliaferro and Howell.
   Taliaferro, J.

This is a suit for the settlement of a partnership. The partners were Benoist, Shaw, Murphy and Newman, and the partnership was entered into in 1859 for the purpose of doing business in exchange in New Orleans. It seems that Benoist and Shaw furnished the capital and the other two contributed their industry and skill in the business they engaged in; the shares respectively in profits and losses were fixed by a written act passed before a notary public.

The war coming on soon after the parties went into business, they were unsuccessful in their operations, and sustained heavy losses. Shaw died in 1863. Benoist, Newman and Murphy became the liquidators of the film, and so continued until July, 1865, when Murphy died and Benoist and Newman became the liquidators. So matters stood until April, 1866, no final settlement having been made, the present suit was instituted by Benoist and the administrator of Shaw’s estate. A receiver was appointed upon the application of the parties. A litigation of several years duration ensued. During this period Benoist and Newman died, and the contest was continued by the executor of Benoist and the administrator of Newman’s estate. Experts were appointed by the court to investigate the books and affairs •of the partnership, and having complied with the order of the court they made their report and exhibit. The receiver also made a report to the court. Judgment was rendered decreeing that the executor of Benoist recover from the tutor of the minor heirs of Murphy and from the estate of Newman in solido the sum of $7015 15 as the proportional amount of the loss of Benoist upon his capital which has to be sustained by Murphy and Newman’s estates.

In like manner the judgment awarded against the estates of Murphy and Newman in solido in favor of Shaw’s administrator the sum of $4687 70, as the proportional amount to be borne by these estates on account of the loss sustained by Shaw upon the capital invested by him. From this judgment appeals were separately taken by the tutor of the minor heirs of Murphy and the administrator of Newman’s estate.

In this court, by consent of parties, the appeal taken in behalf of Murphy’s heirs was dismissed.

The appellees ask that the judgment be amended so as to make each of the appellants bound for the amounts expressed and not a judgment in solido which might be discharged by payment by one.

The prescription of three years set up against the suit for settlement-of the partnership affairs is not applicable, no final settlement of its business and no adjustment of the liabilities of the copartners amoDg themselves having taken place. There are several bills of exception in the record taken to the admission of certain documents and letters in evidence which it is unnecessary to consider in deciding this case.

No exception was taken to the report of the experts appointed by the court to examine the books and papers of the partnership, which seems to fairly show the state of the business of the firm, its assets, liabilities, etc., and it appears to form the basis on which the judge below rendered his decision. There is no brief on the part of the appellants and no assignment of errors. There appears to us no error in the judgment exeeiit that pointed out by the appellees, and which, must be corrected.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed.

It is further ordered that the executor of Benoist recover from the estate of Newman seven thousand and fifteen dollars and fifteen cents; and in like manner that the administrator of Shaw’s estate recover from the estate of Newman the sum of four thousand six hundred and eighty-seven dollars and seventy cents, and all costs of suit.

Rehearing refused.


text:
    No. 2835.
    State of Louisiana ex rel. George W. Saddler v. J. O. Landry and W. S. Mount, City of New Orleans.
    The jurisdiction of justices of the peace for the parish, of Orleans is conferred hy section 2074, page 414, Hay’s Hevised Statutes. It is confined to civil matters, and there is no other law conferring upon them criminal jurisdiction.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Brice & Mitchell for plaintiff and appellee.

      J. JR. BecJmith, City Attorney, for appellant and defendant.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly, Kennard.
   Kennard, J.

Relator seeks to recover from the city of New Orleans fourteen hundred and thirty-five dollars and forty-two cents for fees and costs accruing in sundry criminal suits instituted before him while he was the First Justice of the Peace for the parish of Orleans.

The jurisdiction of justices of the peace for the parish of Orleans is conferred by section 2074, p. 414, Ray’s Revised Statutes, in these words: “Justices of the peace for the parish of Orleans, except as hereafter provided, shall have power to hear and determine all civil causes when the amount in dispute does not exceed one hundred dollars, exclusive of interest and costs. Their jurisdiction shall be concurrent and shall extend over the parish of Orleans, with the exception of that portion which lies on the right bank of the Mississippi river.

“ They shall also be empowered, and it shall be their duty to issue marriage licenses when legally required in accordance with existing laws; to keep a record of the same and to celebrate marriages, of which they shall also keep a record, and it shall be the duty of the justices to deliver the said record to their successors in office.”

We find no mention of criminal matters in this section and no other law conferring criminal jurisdiction upon justices of the peace in the parish of Orleans.

Relator was therefore without authority to render the services for which he claims compensation and can n .t recover.

Let the judgment appealed from be avoided and reversed at relator’s costs, and let judgment be entered for respondent, dismissing relator’s claim.


text:
    No. 4370.
    The State ex rel. Adelaide Deblieux v. Recorder of Mortgages et al.
    A party for wliom a building is erected is not responsible for materials furnished to the contractor, if said party lias not been notified of any claim against the contractor before payment according to the contract, and a detailed bill recorded according to law.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      O. B. Schmidt, for relators and appellees.

      Robert Breston and F. W. Balcer, for respondents and appellants.
    Justices concurring: Ludeling, Taliaferro, Howell and Kennard.
   Howell, J.

The relator, Mrs. Deblieux, asks for a mandamus upon the Recorder of Mortgages to erase a privilege inscribed in the proper book in his office as resting upon her property in this city. The Recorder of Mortgages caused the creditors of the privilege, F. Fischer & Son, to be notified of the proceeding, and they appeared, excepted to the form of proceeding, and asserted a just and equitable claim against Mrs. Deblieux and one C. Travers, with a privilege on the buildings and property of Mrs. Deblieux, which claim is recorded in book 92, folio 264, and is for lumber furnished and used in the erection of said buildings.

The court below made the mandamus peremptory, and Fisher & Son appealed.

The facts are that Mrs. Deblieux entered into a contract with the said C. Travers to erect certain buildings on her property according to certain specifications, and payments to be made at particular stages in the progress of the work. This contract was recorded. When the first installment was due Mrs. Deblieux paid it in accordance with the terms of the contract, and Travers, the contractor, abandoned the work and left the city, and on the same or the next day a member of the firm of Fischer & Son called on Mrs. Deblieux and informed her that the lumber used by Travers was furnished by them, and was unpaid for. They desired her to pay the bill, which was made out in Travers’ name, and upon her refusal they caused it to be recorded with her name inserted.

This formality was unavailing in operating an incumbrance on the property of the relator. She did not owe the contractor anything, and had not been notified of any claim against the contractor before she paid him in accordance with her contract. Fischer & Son did not furnish her with the lumber and record a detailed bill thereof against her according to law. R. C, C. 3249, section 3, and 2773.

Judgment affirmed.

Rehearing refused.


text:
    No. 4391.
    The Mississippi and Mexican Gulf Ship Canal Company v. J. O. Noyes, A. Merle and als.
    Where the claim by plaintiffs was to bo reimbursed their own money, that was appropriated to the payment of a judgment for which the owners of a certain piece of property were liable, and which was rendered contradictorily with them;
    Held — That the payment of that judgment carried with it a legal subrogation of the plaintiffs-to that judgment.
    APPEAL from the Second Judicial District Court, parish of St. Bernard. Jorda, parish judge in place of Pardee, J., recused.

      Henry B. Kelly, for plaintiffs and appellees.

      Alfred Grima, for A. Merle and al., appellants.
    Justices concurring: Ludeling, Taliaferro, Howell, Wyly.
   Taliaferro, J.

The litigation in this case arises on the question as to how a certain sum of money paid by the plaintiffs for expropriated lands shall be distributed. The facts as we find them may be stated as follows: The company obtained a judgment of expropriation of certain land in the parish of St. Bernard, and paid into court the-amount awarded by the jury, $12,000, and took a rule for the distribution of the fund contradictorily with all parties in interest claiming to be paid by privilege and preference to all other creditors the sum of $6710, with interest and costs. This claim set up by the company is predicated upon the following state of facts: Prior to the expropriation for which this sum of $12,000 was paid, the company had, in a previous suit, obtained a judgment for the expropriation of a large quantity of land, of which the land expropriated in the second suit forms part, and had deposited in court the sum of $50,000, awarded by the jury in that case. The lands expropriated in these cases constitute portions of a large estate in the parish of St. Bernard, known as the Phillipeu estate. This plantation had been for several years in possession of the sheriff of that parish under a writ of seizure and sale-issued at the instance of the Merle heirs, defendants in the present rule, which was suspended by injunctions obtained by the then owners of the property. In consequence of these proceedings a large amount of costs had accrued, which were claimed by the sheriff and the curator ad hoe appointed to represent absent litigants in the various suits growing out of the seizure of the property by the Merle heirs under their first mortgage. The sheriff and curator ad hoe on a rule taken by them against the Merle heirs and others in interest, for a distribution of this sum of $50,000, recovered a judgment by which their claims for costs were recognized and ordered to be paid out of the fund deposited by privilege and preference over all other creditors or parties therein interested. No appeal was ever taken by any of the parties to the rule, and in due course of proceedings the amount of the judgment so obtained ($6710) was paid to the sheriff and the curator out of that fund.

In the meantime the Merle heirs had brought a suit in the Circuit Court of the United States to annul the first judgment of expropriation for which the $50,000 had been deposited, on the ground that it was obtained fraudulently and worked injury to them. Some time after the satisfaction of the judgment in favor of the sheriff and curator, the plaintiffs with the consent of the defendants in the expropriation proceeding, the owners of the land, obtained a decree of the district court canceling and annulling the judgment of expropriation, and allowing them to withdraw the remainder of the fund of $50,000-after the satisfaction of the judgment in favor of the sheriff and curator for costs. Subsequently, the second judgment for expropriation of a smaller quantity of land was obtained, and the award in that-case of $12,000 was deposited. The company now claim that as the judgment in favor of the sheriff and curator of $6710 was paid out of their money (the $50,000 deposited by them under the first award),, they are entitled to be reimbursed out of their deposit of $12,000.

In answer to the rule taken by the company the Merle heirs set up various grounds of opposition, the principal of which are : First — That the voluntary rescission of judgment and withdrawal of the deposit of $50,000 operated a renunciation on the part of the company of the rights which may have been claimed thereunder, by which the company are estopped from invoking the said judgment of expropriation. Second — That the payment of the claim of $6710 to Ohalaire and Tully extinguished the same, and the company received no subrogation by law to the said creditor’s rights.

The judgment of the lower court made the rule absolute and ordered that the plaintiffs, the Mississippi and Mexican Gulf Ship Canal Company, be paid out of the fund of $12,000 the sum of $6710, with five per cent, interest from the thirtieth of November, 1869, and costs, with privilege preference and priority over all other claims against said fund, and the balance of the fund which is not claimed by any one else on this rule shall remain so deposited until the further order of the court.

From this judgment the Merle heirs have taken this appeal.

The heirs of Merle claim nothing from the effect of the judgment of expropriation which was annulled, but rather claim to be put in the same situation they were prior to the rendition of that judgment, having sued in the United States Circuit Court to have it annulled. They do not in their pleadings set up any claim themselves to the fund in question, but seem to rest upon their alleged right as mort .age creditors upon the Phillipen plantation, insisting, as we understand them, that their rights can not be affected by the payment of the company’s claim of $6710; and praying only that their motion be dismissed with costs. The claim here set up by the plaintiffs in rule is to be reimbursed their own money which was appropriated to the payment of a judgment for which the heirs were liable, and which was rendered contradictorily with them. That fund was the price of a large portion of the Phillipen plantation. The payment then of the judgment for $6710 out of that fund carried with it a legal subrogation of the plaintiffs to that judgment. Civil Code, article 2161. Subrogation takes place of right—

“For the benefit of the purchaser of any immovable property who employs the price of his purchase iu paying the creditors to whom this property was mortgaged.” The payment in this case was by judicial decree made to creditors having a privilege, which took precedence of the mortgages upon the property. Civil Code, article 3252.

We are satisfied that the decree of the court a qua was properly rendered.

Judgment affirmed.

Behearing refused.


author:
Howell, J.
      Taltarerro, J.,

text:
    No. 4414.
    The State of Louisiana v. The North Louisiana and Texas Railroad Company.
    Where it is clearly the purpose of tlio Legislature to give a company time within which they would have an opportunity to accept certain conditions imposed by that body, it can not be contended that official negligence in promulgating the law, should make it impossible for such túne to transpire, and thus deprive the company of the right and opportunity to accept; it would enable such official negligence to defeat the legislator’s will.
    Where the liability for interest coupons results solely from, and is embraced in, the liability for the bonds of which they were a part when issued, a release for the bonds includes the liability ior the coupons.
    On the question in this ease whether the act No. 97 of 1872, relied on by the; defendants, is null and void on the ground of its being in conflict with the prohibit! m in article 111 of the constitution, because it has repealed, without containing any adequate • rovision for the same purpose, that provision of actNo. 108 of 1868, obligating the defendants to deposit in the State Treasury, at prescribed dates, the money to pay certain bonds and interest coupons issued — which obligation was secured by a second mortgage on the railroad, its fixtures, and appurtenances—
    Held, First — That the State by making the act No. 108 of 1868, the basis of its suit, recognized and affirmed its constitutionality in regard to the adequate ways and means provided for the payment of the current interest and the principal of the bonds.

      Second — That there is nothing in the record to enable the court to determine whether or not the provision made in the law of 1872 is an adequate provision for the payment of the principal and interest of the debt created by the law of 1868, and that there may be a reasonable doubt as to whether the act of the later date actually repeals that of the earlier, in the contemplation of article 111 of the constitution.

      Third — That the law creating the debt is certainly not repealed, and that the debt of the State so created being still in existence, the State is precluded, in this proceeding at least, from contesting its validity, or that of the means first provided for its payment; and that it is only tlio form and nature of the security required of the railroad company that has been changed.

      Fourth — That it was proper to conclude that there is such reasonable doubt with regard to the unconstitutionalifcy relied on, as, under the well settled jurisprudence of this State
    * and country, to justify the court in not annulling the legislative enactments referred to in this case. When there is a douht, a law will not he held unconstitutional.

      Fifth — That this is a controversy between the State, which issued the bonds, and the railroad company for whose benefit they were issued; that the holders of the bonds and their rights are not before the court, nor any claim to enforce the payment of said bonds; that the State having paid some of the interest on them which it alleges the company were obliged to pay, and now seeking to collect back the same, the plea that the company settled with the State in accordance with act No. 97 of 1872, is a valid defense. There is nothing in the constitution inhibiting the State from accepting from its debtors such settlements as the Legislature may think judicious.
    Where the demand was for the return and annulment of three hundred bonds alleged to have been issued after default, on its being proved that no such bonds were issued, a final judgment will be given, as insisted on by defendants, instead of one of nonsuit.
    APPEAL from the Fourteenth District Court, parish of Ouachita, Oalclwell, Parish Judge, presiding in place of the District Judge, recused.

      Simeon JBelden, Attorney General, and Edward Philips for plaintiff and appellee.

      John Bay, for defendants and appellants.
    Chief Justice Ludeliug, being interested, was recused.
    Justices concurring: Howell, Taliaferro, Wyly and Kennard.
   Howell, J.

The State of Louisiana, through Attorney General Belden, instituted this suit in September, 1872, to recover from the North Louisiana and Texas Railroad Company the sum of one hundred and twelve thousand eight hundred dollars, with legal interest thereon from specified dates, subject to certain credits, it being tlie amount of the interest coupons, which were taken up and paid by the State on five hundred and forty-six bonds of one thousand dollars each, issued to said company in 1869 and 1870, pursuant to act 108 of 1868, by which the company were required to deposit with the State Treasurer the money to pay the interest; also the sum of five hundred and forty-six thousand dollars, the principal of said bonds with legal interest from judicial demand, and to enforce the second mortgage created by said act upon the said railroad and all its fixtures, rolling stock and appurtenances to secure the payment of said bonds and interest; and lastly, to recover the possession of three hundred bonds alleged to» have been illegally issued to the said company after they were in default in failing to deposit the money necessary to meet the interest as it fell due, as is required by the said act No. 108.

The answer contains a general denial, and a special denial that any bonds were issued when the company were in default, and sets up the-act No. 97 of 1872, published on twenty-first September, 1872, and the-acceptance of the terms thereof by the company as a release from, all liability to the State, and a perpetual bar to any suit by the State in regard to the bonds issued under act 108 of 1868.

From a judgment in favor of the State for $87,360,-amount of interest coupons paid, with eight per cent, interest thereon from certain dates, and an order for the enforcement of the second mortgage upon-the railroad, etc., and_ a nonsuit on the claim for the return of the-three hundred bonds, the company have appealed.

The act No. 108 of 1868, which is the charter of the North Louisiana ’ and Texas Railroad Company, authorized the issuance to said company of six thousand dollars of State bonds for every mile of track when completed, to be transferable by the indorsement of the president of the company, and with the interest at eight per cent., payable semi-annually, to be secured by a second mortgage in favor of the State, upon the said railroad, fixtures and appurtenances, the company having the right to execute a first mortgage to the amount of fifteen-thousand dollars per mile, which by act No. 105 of 1871 was increased to twenty-five thousand dollars per mile, and it was made incumbent on the company “on or before the maturity of any of the interest coupons on any of said bonds to deposit the amount thereof in the State treasury for the payment thereof, and in the event of the failure of said railroad company to make such deposit for the payment of the interest coupons, or any bonds so issued to them, that no further issue of bonds shall bo made to said railroad company, and the State shall have the right to foreclose the mortgage herein given to secure the payment of the bonds and interest issued to said board, according to-the provisions of this act.” See sections 11 and 12.

The claim to enforce the payment of the bonds having been abandoned by the State, the sole question involved on this appeal is the right to collect from the company the interest for which judgment was rendered below. The defense rests solely upon the act No. 97 of 1872, entitled “An Act to authorize the North Louisiana and Texas Railroad Company to substitute stock of said company, instead of second mortgage in favor of the State, and to release the said company from other liabilities to the State.” It provides that in lieu of the second mortgage required by section eleven of act No. 108 of 1868, to be given to secure the State for the ultimate payment of the bonds issued in accordance therewith, the company may give its stock to the State to an amount equal to the aggregate sum of the State bonds issued or to be issued under the charter, to wit, 11,220 shares, and on the issue and delivery of said stock by the company to the State, the former shall be relieved from all liability on the aforesaid bonds of the State, and on the said delivery being made, the remainder of the whole number of bonds authorized by the charter shall be immediately issued; and that within sixty days after the passage of the act the president and directors of the company shall, at a meeting for the purpose, adopt the provisions thereof, and within ninety days thereafter a copy of the resolution of adoption shall be delivered to the Governor, who shall file it in the office of the Secretary of State, and as soon as the certificate of said stock is tendered, the Governor shall cause the remainder of the said bonds to be delivered, which, with the bonds already issued, shall be payment in full for said stock; and tne Governor shall appoint, annually, on behalf of the State, one of the nine directors to represent the State.

It is urged on behalf of the State that the conditions or terms of this act were not accepted within the prescribed time ; that it does not release the company from the liability to refund what the State had paid on account of the company before the act was passed, and that it is unconstitutional because, by necessary implication, it repeals acts 108 of 1868 and 105 of 1871 so far as they stipulate a mortgage in favor of the State or hold the company liable on the bonds issued to them, without having made adequate provision in the said repealing act for the payment of the principal and interest of the bonds, as required by article 111 of the constitution.

Mrst, as to the acceptance of the terms and conditions of the act. It appears to have been approved on the tenth of April, 1872, and it was to take effect from and after its passage; but it was not published until the twenty-first of September following. This is one of the many instances (if plaintiffs theory be correct) suggestive of the evils resulting from the practice, which has grown up within the last four years, of making laws during twelve months of the year instead of sixty days as fixed by one of the articles of the constitution; but, in our opinion, the acceptance was timely made, whether we consider the law in force from April 10 or September 21; for within the sixty days of each date the president and directors adopted resolutions of acceptance, and those of the latter date were transmitted to the Governor. There is and can be no question in this case as to the issuance of the re- . mainder of the bonds within the ninety days after the said acceptance. It was clearly the purpose of the Legislature to give the company time within which they would have an opportunity to accept, and it can not be seriously contended that the negligence of the officers in promulgating the law should make it impossible for such time to transpire and thus deprive the company of the right and opportunity to accept. It would enable them to defeat the legislative will.

Considering the acceptance as having been made within the prescribed time, as we do, there can be little doubt as to the effect of the act, if not unconstitutional, in releasing the company from all liability to the State on the bonds, which necessarily includes liability for the interest on the bonds whether then due or not. One of the objects of the act was to release the company from liability to the State, and by ■ express terms they were upon a certain contingency relieved from all liability on the bonds then issued or to be issued. The liability for the interest coupons resulted solely from and was embraced in the liability for the bonds of which they were a part when issued.

The State has, by making the act No. 108 of 1868 the basis of its suit, recognized and affirmed its constitutionality in regard to the adequate ways and means provided for the payment of the current interest and the principal of the bonds. That provision was the obligation of the railroad company to deposit in the State treasury, at the prescribed dates, the money to pay the interest and the bonds, which obligation was secured by a second mortgage on the railroad, its fixtures and appurtenances. The State now says that the act No. 97 of 1872, relied on by the defendants, has repealed that provision of said act 108, but does not contain some adequate provision for the same purpose, and it is therefore void because in conflict with the prohibition in article 111 of the constitution. This article reads: “ Whenever the General Assembly shall contract a debt exceeding in amount the sum of one hundred thousand dollars, unless in case of war to repel invasion or suppress insurrection, it shall, in the law creating the debt, provide adequate ways and means for the payment of the current interest and of the principal when it shall become due; and the said law shall be irrepealable until principal and interest be fully paid; or, unless the repealing law contain some adequate provision for the payment of the principal and interest of the debt.”

Conceding that the act No. 97 of 1872 repeals, in this respect, the provisions of act No. 108 of 1868, and that the question of the ade-

quaey of the provision to be made for the payment of the debt and interest is a judicial question, there is nothing in the record to enable us to determine whether or not the provision made in the law of 1872 is an adequate provision for the payment of the principal and interest of the debt created by the law of 1868. But we think there may be reasonable doubt as to whether the act of the later actually repeals that of the earlier date in the contemplation of the above article of the constitution. The law creating the debt is certainly not repealed. The debt of the State so created still exists and the State is precluded, in this proceeding at least, from contesting its validity or that of the means-first provided for its payment. It is only the form and nature of the security required of the railroad company that have been changed. By our law a second mortgage was required of the com ¡-any as security for the payment of the debt created in their behalf. By the other this second mortgage was relinquished upon the company’s transferring to the State one-sixth of its entire stock. Upon the policy of those enactments and transactions we can give no authoritative opinion. But we can very properly conclude that there is such reasonable doubt as to their unconstitutionality, in the respects referred to, as, under the well settled jurisprudence of this State and country, to be justified in not annulling them. Where there.is doubt a law will not be held unconstitutional. 3 M. 12, 553; 3 N. S. 472 ; 4 N. S. 138; 5 R. 383; 8 R. 416; 5 An. 96, 756; 8 An. 341; 9 An. 562; 11 An. 722.

There is another view in which this case may be considered, without direct reference to the constitutional question raised by the counsel of the State, and which is quite as favorable to the defense. This is a controversy between the State, which issued the bonds, and the railroad company for whose benefit they were issued, and the holders of the bonds and their rights are not before us. Nor is there any claim before us to enforce the payment of any of said bonds. The State has paid some of the interest on them, which it alleges the company were obligated to pay and which it is seeking to collect, as a debt due by the company. As a defense to the suit the company plead a settlement under act 97, which has authorized a giving in payment. No provision of the constitution inhibits the State from accepting from its debtors such settlements as the Legislature may think judicious.

The company insist that there should be a final judgment instead of one of nonsuit on the demand for the return and annulment of the three hundred bonds, alleged to have been issued after default. In this we concur. The testimony of the officers of the company and the statement or certificate of the Auditor in relation to this fact, are positive that no such bonds were issued.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of the defendants, rejecting plaintiff’s demands.

Taltarerro, J.,

concurring. The only important question in my judgment that arises in this case is, as to the constitutionality of the act of the Legislature passed April 10,1872, and numbered 97. On the part of the State it is contended that it violates article 111 of the State constitution. That article provides that “whenever the General Assembly shall contract a debt exceeding in amount the sum of one hundred thousand dollars, unless in case of war to repel invasion or suppress insurrection, it shall, in the law creating the debt, provide adequate ways and means for the payment of the current interest and of the principal when the same shall become due, and the said law shall be irrepealable until principal and interest be fully paid; or, unless the repealing law contain some adequate provision for the payment of the principal and interest of the debt.”

The last sentence or clause of article 111 gives to the General Assembly a latitudinous discretion in the matter of providing ways and means for the payment of the debts it may contract exceeding in amount $100,000. The act No. 97, I conceive, virtually repeals the act 108, approved September 26, 1868, as to the kind or form of security required. In the latter act a second mortgage is retained upon the railroad, its fixtures, appurtenances, etc. The act No. 97 substitutes stock of the company in lieu of the second mortgage retained by act 108. This the Legislature had the right to do under the wide discretion it has under article 111 of the constitution. But the question here arises, has the General Assembly provided adequate means by the act No. 97 for the payment of the principal and interest of the debt contracted by the act 108 of September, 1868 This question, it is held on the part of the defendant, is for the General Assembly to determine. I think otherwise. Here the State raises the question of the constitutionality of an act of the Legislature. It is not for the party with whom the issue is made to decide it. It is to be solved by determining whether “ adequate means ” has been provided by the Legislature for the payment of the debt it has created. In my view of the case it becomes a judicial question. Either the force and value of the second mortgage or the value of the stock of the company will run jpa/i'ipassu with the fortunes of the company in the future depending upon the success and business of the railroad. From the lights before me I am unable to say that the stock of the company transferred to the State is not “ adequate means” providedfor the paymentof the debt created. With the policy of substituting the stock in place of the second mortgage the courts have nothing to do.

Entertaining these views of the subject I concur in the decree rendered in the case.