author: MoEnbry, J.

text:
    No. 10,711.
    The City of New Orleans vs. The Firemen’s Charitable Association.
    1. This is a suit to recover certain moneys paid by tbe City to the defendants under a contract with the latter to extinguish flies within New Orleans.
    2. There is no allegation that the money paid by the City was paid in error, or that any portion of the service stipulated in the contract between plaintiff and defendant was not efficiently performed, or that the Oity has suffered any injury or damage whatsoever in consequence of the particular omissions alleged in the petition.
    3. To this petition defendant interposed the exception of no cause of aotion, which was sustained and the suit dismissed.

      4.. The stipulated modes for the execution of the thing contracted to be done are not the essence of the contract. The mode may be waived if the performance is equally as efficient — the compensation stipulated is still due, although the performance may have been more ecomical than it would have been had the stipulated mode been followed.
    5. In the action of repetition the averments in the petition must show that what is demanded has been paid by mistake or delivered on a condition which has not been performed.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Carleton Hunt, City Attorney, for Plaintiff and Appellant:
    The contract of the City of New Orleans with the Firemen’s Charitable Association and its successors, for the extinguishment of fires in this city, can not be modified as if it were an ordinary contract.
    The first contract herein involved, with clearly'defined stipulations, haying been, after due advertisement, adjudicated, as required by law, to the lowest bidder, the Firemen’s Charitable Association, it was clearly beyond the power of the City of New Orleans, even by formal ordinance, to declare that certain stipulations in the contract, requiring an outlay of some $25,000 per annum were deemed too onerous, and were dispensed vyitli.
    Repetition is the act by wh*ch a person seeks to recover what has been paid or delivered on a condition which has not been performed. O. C. 2123,1893,2801; O. N. 1235, 1376.
    The action in repetition is treated in theFreneh law under the title DeLa Repetition De VIndu, and the French law has borrowed this action from the Roman civil law. Laxwcnt Code de Droit Civil, Vol. 2, p.199; Bowvicr's Law Dictionary, Verbo Repetition. The party to «whom payment is made is bound quasi ex contractu, or rather ex distractu, than ex contractu. *
    An overpayment is made, not only when a party pays more than he actually owes, but also when he neglects to make a deduction which he had the right to make.
    Sections 13 and 15 of the Fire Contract, in providing a regular fire service for New Orleans, with skilled salaried employes, are of the essence of the Fire Contract, and were so designed to he in the exorcise of the police power of the City.
    The sections referred to do not provide mere modes. The Fire Contract is a commutative contract. The true consideration of the contract, on the part of the City, is the money to he by it paid, and on the part of the Firemen’s Charitable Association, on the other hand, the services to he performed strictly in accordance with the provisions of Ordinance 1819 O. 8., that is to say, “ in accordance with all the conditions and stipulations therein contained in every particular.”
    The doctrine of putting in mora, as a condition precedent to recovery, is applicable to an action sounding in damages. The action of the City herein, being an action in repetition, sounds in quasi contract, and therefore the doctrine in question is inapplicable.
    The utility and wisdom of putting in mora, as a condition precedent for recovery, have never been discerned by the Supreme Court of Louisiana. Putting in mora is expressly confined by the court to cas’es of purely passive breaches of contract. In the present case there being a working and efficient endeavor on defendant’s part to do a thing differently from the way in which it was undertaken to be done, the conditiomof inactivity or the passive state is impossible. It is abandoned for the opposite. The invasion of adversary rights is thus made complete and sure. There could, in point of fact, be no more certain way of attacking and overthrowing them. This is exactly that defective execution, in presence which the Supremo Court of Louisiana has pronounced a putting in mora uncalled for and useless. Irwin vs. Kénwiek, «Martin N s. 2314; Morton vs. Pollard, 9 La. 174; Levy vs. Schwartz & Tiro,, 34 La. An. 214; Heck vs. I’leitas, 37 An. 492.
    There is no conflict between Articles 2301 and 2302 of the.Civil Code. Article 2301 fixes the obligation of- a party who has received, whether through error or knowingly it matters not, what ivas not due. Article 2302 has relation to a person who, believing himself to be a debtor, pays what he does not owe.

      White & Saunders and L. O. Donnell, for Defendant and Appellee, cited:
    Clark vs. Farrar, 3 M. 248; Ringley vs. Goodloe, 7 An. 295; Teutonia National Bank vs. Wagner, 33 An. 732; O. 0., Art. 1768.
   The opinion of the court was delivered by

MoEnbry, J.

On the 26th day of October, 1881, in accordance with the terms of Ordinance 7346, A. S.', the Oity of New Orleans entered into a contract with the Firemen’s Charitable Association, providing ! ‘ for the extinguishment of fires, in the First, Second, Third and Fourth Districts of the City of New Orleans.”

The ordinance which authorized the contract was entitled: “An Ordinance for the extinguishment of fires in the First, Second, Third and Fourth Districts of the City of New Orleans.”

That Ordinance which was embodied in the contract substantially provided as follows: That a bid should be solicited in accordance with section 23 of the Oity charter, for the contract to extinguish fires in the First, Second, Third and Fourth Districts for the term of five years, from the 15th day of December, 1881, to the 15th day of December, 1886, in conformity with the terms of the ordinance.

Section 3 of the Ordinance provides that the fire department shall consist of a board of control and a board of fire commissioners, composed of five members, one chief engineer, at least two assistant engineers, one foreman and two assistant foremen for each company, nineteen steam fire engines, one hand engine, twenty hose carriages, four hook and ladder companies, and eight portable fire extinguishers.

Sections 4 to 7 provides the kind of apparatus for. extinguishing fires to be kept by the contractor.

Sections 8 to 11 define tlie power of the chief engineer and assistant engineers, and other officer of the department, and provide fox-full reports to the City Council of the condition of the department, and the occupation and residence of its members.

Section 12 provides as follows: “The officers aixd employés of steam fire companies shall be practical and experienced firemen; the employés shall consist of at least one engineer, one driver, one fireman, one hose carriage driver, and one pipeman, who shall be stationed at the house of said company, and shall be constantly on duty.”

Section 18 provides: “ The officers aixd employés of the hook and ladder companies shall be practical and experienced firemen; the employés shall consist of at least one driver, one tillerman, and four laddermen, who shall be stationed at the house of said company, and shall be constantly on duty.”

Section 14 provides: “The officers and employés of the hand engine coxnpany shall be practical and experienced firemen; the employés shall consist of at least one driver, and one hose carriage driver, who shall be stationed at the house of the company, and shall be constantly on duty.”

Section 15 defines, in some particulars, the duty of the chief engineer and assistants, aixd board of fire commissioners, and provides “that the chief engineer and assistant engineer and board of fire commissioners shall give bond for the faithful performance of their duties.”

Section 25 provides fox- the election of the chief and assistant engineers, and the officers and employés of the various companies, and gives power to the board of fire commissioners to remove or dismiss them from office for violating any part of the Ordinance.

Section 26 provides that the contractor shall keep on hand and ready for service one extra serviceable steanx fire engine, one hose carriage, one hook and ladder carriage, four horses, and 10,000 feet of first quality hose.

Section 27 provides: “ That upon the adjudication of the contract, • the contractor shall elect a board of fire commissioners, consisting of five practical and experienced firemen, and submit the same to the City Council for confirmation, four of whom shall be residents of the four fire districts, respectively; and said commissioners shall hold office for one, two, three, four and five years, to be determined by lot upon their appointment, the senior member in age to be ex officio chairman.”

Section 28 gives to this boar.d the power of trying, removing or suspending any officer or employé of the various companies.

Section 29 provides that: “The City Council, upon the adjudication of the contract, shall appoint a board of control consisting of five members, as follows: the mayor, two presidents of local insurance companies, and two citizens, possessed of, in their own right, the sum of $10,000 in improved and real estate, who shall continue in office for the term of the contract, and in case of death or resignation their successors to be appointed in the same manner; the mayor to be ex officio chairman. Said board of control shall have general supervisory power over the contractor, fire commissioners and attaches of the fire department, with power to dismiss the fire commissioners for any violation of this Ordinance, the contractor shall furnish the board with a secretary, and such stationery as they may require to call meetings and keep their minutes.”

Section 30 provides that the contractor shall give a bond for §25,000 conditioned for the faithful performance of the contract.

Section 34 gives the Administrator of Commerce supervision over the fire department, and makes it his duty to report quarterly 'upon the efficiency or inefficiency of said department.

The contract recites the advertisement for bids under the Ordinance, and the fact that the Fremen’s Charitable Association was the lowest bidder for the price and sum of $800,000, at the rate of $160,000 per annum. The contract also sets out Ordinance 7383, A. S., accepting the bid. That Ordinance is as follows:

Be it Ordained, That'the bid of the Firemen’s Charitable Association of New Orleans, of $160,000 per annum, for the extinguishment of fires, under Ordinance 7346, A. S., be and the same is hereby accepted.”

The contract thus entered into ran to expiration. New bids were then called for covering the same period from the 15th day of December, 1886, to the 15th day of December, 1891. A bid having been made by the Firemen’s Charitable Association for this new contract, that bid was ultimately accepted under the terms of an Ordinance, 1890, O. O., the title, preamble and first section of which Ordinance are as follows:

“ An Ordinance, extending for a period of five years, ending Deceniber 15,1891, the contract with the Firemen’s Charitable Association for the extinguishment of fires in the First, Second, Third and Fourth Districts of the City of New Orleans, under Ordinance 7846, A. S., with certain modifications herein specified:
“ Whereas, The proposition of the Firemen’s Charitable Association, of this City, for the extinguishment of fires, is considered in point of economy far more desirable than the proposal submitted under the terms of the specifications adopted by the Council, and under which the Firemen’s Charitable Association presented the lowest bid, to-wit: $190,000; and . •
“ Whereas, The financial condition of the City will not permit, or does not warrant any increase of appropriation for the purpose, and considering the efficiency of the service rendered by the Firemen’s Association, in the carrying out of its contract in the past, as sufficient evidence of their good faith in the future.
“Section 1. Beit Ordained, That Ordinance 7846, providing for the extinguishment of fires in the First, Second, Third and Fourth Districts of this City, be and the same is hereby reenacted for the term of five years, ending December 15, 1891; and that the conditions and obligations imposed by said Ordinance be extended during said period for the sum and price of $160,000 per annum, with the following alterations and modifications.”

Tne Ordinance then modifies the Ordinance under which the first contract was made, No. 7846, in some minor details; changes the board of control by providing that it shall consist of three presidents of local insurance companies, not connected or identified with the contractor or the contractors, and two citizens not connected with the contractor or contractors who pay taxes on at least $10,000 of improved real estate in their own right, and in case of the death or resignation of any member of the board of control, their successors to be elected by the City Council.

On the 10th day of June, 1887, the Firemen’s Charitable Association, the contractor, transferred its apparatus and rights of all kind, under the contract, to a new corporation, the Firemen’s Charitable Association of New Orleans, which had been incorporated under the general laws of this State; this last corporation being the defendant in this case.

The Firemen’s Charitable Association of New Orleans is the successor of the Firemen’s Charitable Association.

The petition of the plaintiff avers that by the contract, the contractor was required to keep employés in its service, aggregating 124 men, and that instead of this number the defendant association had in its employ during the continuance of its contract not more than seventy, thus avoiding an outlay of $25,920; that there was a failure on the part of the defendant to keep at Milneburg the number of men and horses required by the contract, and an expenditure of $8800 was thus avoided; that the defendant failed to keep the required amount of hose, there being a deficiency of 4750 feet, worth $4275.

The mere statement of the case is sufficient to show that the dismissal of the suit by the District Court on the exception of no cause of action was proper.

The Ordinance authorized a contract to be awarded to the lowest bidder, to extinguish fires in the districts named in the Ordinance. The Ordinance required the contractor to keep up its equipments to a certain standard so as to insure a faithful performance of the contract. A bond was also exacted for this purpose, and a board of commissioners was designated in each contract to see to its faithful performance.

There is no averment in the petition that the fires were not extinguished as required by the contract, or that the fire department, under the control and management of the defendant association was not sufficient. The City of New Orleans, during the existence of the contract, made regular payments as they fell due. The petition does not disclose any damage suffered by the City in consequence of any violation of the contract. It had nothing to do with the payments made to the employés, or for payments of money for equipments. These expenses were borne by the association, and the money paid on the contract was not destined for any particular purpose except for the extinguishment of fires.

The action brought by the City is one of Repetition, by which a person demands and seeks to recover what he has paid by mistake or delivered on a condition which has not been performed. In order to entitle a party to recover back money paid by mistake, it must have been paid by him to a person to whom he did not owe it.

There is no averment in the petition of plaintiff-to maintain the action. There is no averment that the money was paid through error in law or fact, or that it was delivered on a condition which has not been performed. The condition was the extinguishment of fires in certain districts of the city. From the absence of any averment in the petition that the fires were not extinguished, and from the averments annexed to the petition particularly affirming that this condition was performed, we are of opinion that the main purpose of the contract was faithfully executed.

The complaint is to the deficiencies in the minor parts of the contract, relating to the employment of a certain number of men, and the use of equipments. During the execution of the contract the City accepted the fire department tendered by the association, with the alleged deficiencies. The City, therefore, has no.just cause of complaint unless it can show some damage from the failure of the association to carry out its contract' by reason of the alleged deficiencies.

Judgment affirmed.


source: Caselaw Access Project

author: McBnmry, J,

license: Public Domain

text:
    No. 10,788.
    Gabriel Gardemal vs. Jacob McWilliams.
    Communications in a judicial proceeding are privileged, and no person is liable civilly or criminally in any respect to anything published by him in the course of his duty in said proceeding.
    This privilege extends alike to parties, counsel, witnesses, jurors and judges.
    The privilege depends in no respect upon tlie bonafides of the defendant.
    The occasion on which the communication is made is an absolute privilege and the only questions are whether the occasion existed and whether the matter complained of was pertinent to the occasion.
    The plaintiff who sues for damages for slander and libel in a judicial proceeding, must prove malice in fact by showing that the matter complained of was not pertinent to the occasion, and that the defendant acted through hatred, ill will, and a malicious design to injure the plaintiff.
    APPEAL from the Twenty-third District Court for the Parish of Iberville. Talbot, J.

      Felix Voorhies and J. Hamilton Rills for Plaintiff and Appellant:
    1. Tt is not necessary to allege want of probable cause in action for damages for libel and slander. This is necessary only in cases sounding in damages for malicious prosecution.
    2. In an action of slander or libel, the only possible defenses are a denial, a justification or a confession under mitigating circumstances. R. S. 3640; 14 An. 406; 15 An. 36; —An. 469.
    3. An answer including all these defenaes equivocates, and is utturly inconsistent 10 An. 231; 28 An. 238.

      4. There is no such thing as half-way justification, ana an apology implies afault. 38 An. 163; 26 An. 219.
    o.The word malice, used in a libel case, doesnot imply ill-will or personal malice. It means, in such cases, a wrongful act done without just cause or excuse. Ill-will, if shown to exist, serves merely to enhance damages. Nathan Weil vs. M. Israel, 43 An. —.
    6. The use of approbrious epithets employed, implies malice, where these are slanderous pe?* se. In such a case, an action to recover damages without proving special injury may be maintained. 38 An.163; 14 La. 198; 12 An. 894; 23 An. 280;' 36 An. 469.
    7. Although injuries to the feelings and social standing of a person are not susceptible of precise adjustment, still such injuries are recognized as a legitimate ground of action for reasonable indemnity. 38 An. 166; 17 An. 64; 19 An. 194; 23 An. 280; 25 An. 176.
    8. Any publication which is false and defamatory, subjects the publisher to damages in favor of the party aggrieved. Printed or written slander being considered more pernicious than verbal slander, and it is not incumbent on the party assailed, to show malice himself, nor to prove that he has been injured. Nathan Weil vs. M. Israel, 43 An. (not yet reported).
    9. When the slanderous and defamatory language used is in a petition filed in court, the petitioner can not shield himself from the responsibility accruing from the use of the slanderous and defamatory language by urging of a defense that the language so used was used without malice on his part, and that he did so on the advice of his counsel. 43 An. Weil vs. Israel.

      Sims & Goudran and A. Talbot for Defendant and Appellee:
    1. Plaintiff’s petition does not disclose a cause of action. Defendant’s petition in the Mieliol suit is annexed to and made part thereof. Plaintiff’s petition admits that the specific allegations complained of as libelous were made by defendant in the course of judicial proceedings before a court of competent jurisdiction. That the allegations woro.rclcvant and pertinent to the issue is not disputed, and the existence of probable cause or reasonable grounds of belief isnotnegatived by said petition. On the face of the papers, the allegations, charged as being libelous, appear to be in the nature of privileged communications to the court. Therefore the exception of no cause of action ought to have bGCn sustained and the suit dismissed. 33' An. 1266; Am. and Eng. Ency. of Law, Vol. 13, p. 406; 38 Ala. 279;. 4 Const. (N. Y.)91; 127 Mass. 319; Townsend on Libel, Sec. 221; 9SU.S. 187; Odgers on Libel, p. 187; 50 N. Y. 805; 66 Mich. 166; 4 Const. (N. Y.) 91; 127Mass. 319; 41IIun. (N. Y.) 254.
    2. Defendant’s bill of exceptions to the rejection of testimony, offered to show-existence of probable cause, was well taken. He had a right to adduce proof of all the facts and surrounding circumstances within his knowledge or within the knowledge of his attorney, at the time of the institution of the suit before the District Court of St. Martin. Hearsay even is sufficient, reasonable and probable cause in the absence of malice. Odgers on Libel, pp. 547, 276,277, 214; 33 An. 1266, and cases cited.
    3. The District Judge correctly ruled in not permitting the opinion of the St. Martin Court in suit 9018^0 go to the jury, on the ground of irrelevancy. 3 Bob. 18; 34 Ala. 336; 13 Gray (Mass), 201; 5 La. 318; 98 U. S. 1'87; 33 An. 1266; 12 An. 335; 6 An. 178. Besides, the judgment had been appealed from suspensively to this court,

      4. The allegations in tliesuills'o. ¡1018,MeWilliams vs.MielielandGardomal,are on tlie face of the petition, pertinent to the issue, and in the nature of privileged communications to the court, made in the course of judicial proceeding's and in the prosecution of a legal right.
    To succeed, plaintiff tras hound to prove aflirmatively, malice and the want of probable cause. In this lie has utterly failed. 29 An. 80;’ 9 Rob. 418; 12 Pickering, 824; 1 Wendell, 140; 4 Mass. 483; 10 Johnson, 106; 18 An. 214; 20 An. 66; 4 Pickering', 389; 8 An. 12; 98 U. S. 187; 2 Pa. 149; Vol. S, U. S. Digest, 492 Pt. 95; 47 Pa. 194; 33 An. 1366, and cases cited; 18 W. V. 71; Ptarlcie on Slander, 254; 12 An. 333; 9 Rob. 387; 5 An. 714; 15 An. 421; 16 An. 3.
    O. The defendant acted without malice, upon reasonable grounds of belief, and upon the advice of his counsel. The verdict of the jury under the circumstance. was strictly in accordance with the jurisprudence of the highest American and lOnglish Courts. McLaughlin vs. Crowley, 127Mass. 319; 3 Mote. (Mass.) 193; 33 An. 1266, and authorities cited; 22 Wend. (Mass.) 410.
   The opinion of the court was delivered by

McBnmry, J,

The plaintiff sued the defendant for libel and slander.

The alleged libel and slander is contained in the petition in the suit of Jacob McWilliams vs. Jnstinien Michel.

The object of the suit was to have declared absolutely null and void a certain tax sale of the plaintiff’s property.

The language used is of that character which, if not classed as a privileged communication, malice would be presumed and damages assessed, unless justified by the defendant. It will not be necessary to reproduce the language employed in the petition in said suit of McWilliams vs. Michel.

The defence is that the libel and slander is a privileged communication ; that it was used in the petition in said suit without malicious intent, upon the advice of counsel, in the prosecution of his legal rights.

The trial was by jury and there was a judgment and verdict in favor of defendant, from which the plaintiff appealed.

In the suit of McWilliams vs. Michel, out of which grew this suit, the plaintiff alleged that he was the owner of certain property, upon which all the taxes had been paid, and that the sheriff illegally and wrongfully sold the same at tax sale, and adjudicated the same to Michel. That said property was' confusedly sold with property belonging to Wilbur & Sons, although he held a difetinet title to same, which was known to said sheriff and tax collector, Gardemal.

That he wrongfully adjudicated said property to said - Michel, who forcibly got possession of the same through the pretended tax sale.

That his property and that of Wilbur & Sons was sold at said tax sale as the property of Breaux and Duperrier, when said sheriff and tax collector knew that said property was owned by him and Wilbur & Sons. That he knew the taxes had all been paid on said property. That after said sale to Michel, he entered into an agreement with Titus Gardemal, the brother of said Gabriel Gardemal, sheriff and tax collector, to cut down and remove timber from said property.

He alleges that said sheriff, Gardemal, failed to offer said property for sale on the day advertised, because there were many bidders present, and that he postponed said sale to a different day, when it was sold as alleged. In these acts of the sheriff, it is alleged he conspired with his brother, Titus Gardemal, and Justinien Michel, in order, through a pretended tax sale, to get possession of the property of the petitioner.

' An injunction was prayed for against Michel, and a judgment was prayed for quieting petitioner in his title to said property.

This is but a brief summary of the many allegations in the petition.

There was evidence introduced on the trial to prove the falsity of the severe charges in the petition.

They may be .unfounded .and false in fact, and yet defendant may not be responsible in damages for the language used in the petition. In privileged communications the party is protected from the infliction of damages, unless the occasion was used as a means of inflicting a wilful and malicious injury upon the plaintiff.

The occasion on which a privilege communication is made rebuts the inference of malice arising from a statement prejudicial to the character of the plaintiff, and it devolves upon him to prove malice in fact; that the defendant was actuated by motives of personal spite and ill-will independent of the occasion on which the communication was made.

Certain communications are absolutely privileged, and no person is liable either civilly or criminally in respect of anything published by him in the course of his duty in any judicial proceeding. This privilege extends to parties, counsel, witnesses, jurors and judges in a judicial-proceeding, to proceedings in legislative bodies, and to all who, in the discharge of public duty or the honest pursuit of private right, are compelled to take part in-the administration of justice or in legislation. Head, Libel and Slander, Sections 90, 103, 110; Newell on Defamation, Slander and Libel, Sections 26, 27, p. 423; Fisk vs. Soniat, 33 An. 1400; Vinas vs. Merchants and Mutual Ins. Co., 33 An. 1165.

In this class of privileged communications, the occasion is an absolute privilege, and the only question is whether the occasion existed and whether the matter complained of was pertinent to the occasion. In judicial proceedings, both criminal and civil, great latitude is allowed parties in the pursuit of private rights, or the prosecution- of crimes. Public order necessarily requires this latitude. What, then, is alleged in a judicial proceeding in the effort to enforce a private right is not to be judged by technical rules. The party attempting to enforce his right may be mistaken in his remedy; he may use language which could have been avoided. But after all, the question is one of intent.

“Intent makes the libel in such a case; strong words do not.” Klinch vs. Colby, 46 N. Y. 434.

If the occasion exists on which the privileged communication is made, and the matter is pertinent to the occasion, it supplies an absolute defense and depends in no respect upon the bona fides of the defendant.

The burden of proof is on the plaintiff. • He must show the absence of the occasion; and if the occasion existed, that the matter complained of was not' pertinent to the occasion, and that the defendant acted with malice in fact, through hatred, ill-will, with a malicious design to injure the plaintiff. Fisk vs. Soniat, 33 An. 1400.

There is no proof of this kind in the record.

Judgment affirmed.

Mr. Justice Breaux takes no part in this opinion.


author: Breaux, J.

text:
    No. 10,561.
    Succession of Emily Glover.

      1. An executor who pays hills, some oí them afterward shown not to have been due; who delivers property to legatees and thereby renders it impossible to execute the terms of the will, and makes these payments and delivery after the judge had refused to allow them to be made; after his dismissal will not be reinstated on appeal.

      2. Ordinarily a direct action must be instituted to destitute an executor from Iris office, but when the law and the will of the testator are disregarded, his dismissal will be maintained, although made on trial of an opposition to his account, when in the opposition charges of maladministration arc made and are proven without objection.
    APPEAL from the Oivil District Court for the Parish of Orleans. King, J.

      Buck, Dinkelspiel & Hart for the Executor, Appellant.

      Gus. A. Breaux and It. H. Browne contra.

   The opinion of the court was delivered by

Breaux, J.

Mrs. Emily Glover died testate. The testamentary executor qualified on the 2d day of August, 1888. After an inventory had been made, he petitioned the court for permission to pay debts secured by privilege, • and to deliver certain legacies, also to be authorized to retain §2821 to be disbursed in building a vault, and to-remove the remains of the son of the deceased in compliance with the will.

The judge refused the order. The executor disregarded the refusal, and paid the debts as well as delivered property to the estate' in satisfaction of certain legacies.

On the 16th day of August, 1888, the executor presented an account of administration. Opposition was made to this account; it was maintained, and the account was rejected; the executor was ordered to file another.

In April, 1889, he presented a petition to have property sold to enable him to comply with the will. The property was sold in accordance with the prayer of his petition, bat no attempt was made to comply with the first and important direction contained in the will.

In July of that year, a rule having been filed by two of the legatees, he was ordered to show cause why he should not file a statement of his account, as executor, and produce his bank book. In the event of non-compliance his dismissal was prayed for.

He complied with the court’s order to the extent of filing an account, whereupon the rule was dismissed.

This account is opposed on various grounds.

There are a number of legatees named in the will. To two of these legatees the testatrix bequeathed all moneys “ which may come to me from any source whatsoever to be paid to them ten years after my death by my executor.”. To these legatees she also bequeathed her real estate.

She gives'to another her diamond ring cluster, and leaves her personal effects to Adelaide Pope Noble.

There follow in the will other legacies, of little value, made to other legatees.

These are subject to the direction that “my executor must first. before paying the legatees buy a lot in Metairie Ridge cemetery, and build a substantial tomb on it, not to cost less than $1500, in which I am to be buried, and the remains of my son, William Horace Glover, are to be removed into it, at the expense of my succession.”

Instead of complying with the will and with the judge?s direction the executor paid, at one time, claims to the amount of $1200.50at another, $260.05, and left in bank to his credit the sum of $89.45. Besides, he placed legatees in possession of certain property.

He chose to deliver to Adelaide Pope Noble a bond of $1000 due by the City of New Orleans.

These payments, and the delivery of these legacies, are set forth in his final account. This account is opposed by Mrs. McKinley and Mrs. Johnson, legatees, who allege that the delivery to Adelaide Pope Noble of the bond of $1000 is unauthorized and illegal. Further that the executor received $8050.95 which were deposited in bank.

That he paid bills without an order of court to the amount of $1699.73. That the judge had refused to allow these payments to be made.

That items paid were not due.

The court a qua decided that the amounts to which the executor has a.right to a credit aggregated $1559.73; of the claims carried on the account as “ claims unpaid,” the court allowed certain items and rejected others, and held that the debts paid and the claims unpaid, amounted to $2130; leaving a balance on hand of $920.

The court also decided that the bond due by the City of New Orleans should not have been delivered to Adelaide Pope Noble, the tomb not having been built; this being the first duty enjoined upon the executor.

He was dismissed from his trust as executor.

From the judgment he prosecutes this appeal and asks for a reversal of the judgment and to be re-instated as executor on the grounds:

1. “ Insofar as the judgment decrees the return of the city bond of $1000, and in default of its return condemns the executor to pay its value.”

This bond was delivered in total disregard of the will, and in opposition to the judge’s direction. It is evident that the executor was without means, owing to his own acts, to carry out the expressed wish of the testator.

As a witness he answered the following questions:

Q. Where is the money to pay for. the tomb, $2321?
“A. I will get it.
“ Q. Where will you get it from?
“A. From the succession of Mrs. Glover.
“ Q,. Have you got any such money in your hands now?
“ A. No, sir.”

There is a claim carried in the inventory, and appraised at $6530.27, for which a judgment was obtained in the State of Mississippi.

The executor places great reliance in this judgment, and endeavors to make it appear that it is a valuable asset of the succession, and that with part of the amount realized the tomb will be built, and the will complied with in this respect.

The facts disclosed by the record have convinced us that this judgment represents but little as due to the succession, and that it will not amount to anything in the end.

Most of it has been collected and the balance due is but little.

The bond should be returned in accordance with the direction of the District Court, and the right of the parties fixed contradictorily with each other.

Without this bond the record does not disclose that the will can be carried out.

The purpose in having it returned is to enable the executor to comply with its terms.

The appellant submits a second proposition upon which he relies to have the judgment reversed.

2. u Insofar as it strikes from the account the items of J. Benj. Chandler, retaining fee for auditing account of Singleton, Brown and Ohode, $50, and $319.17 fees for auditing same account.”

As the appellant was the regularly appointed agent of Mrs. Glover, and it appears that he did render services, the amount of $50 claimed is not excessive, and will be allowed; but the claim of $319.17 is not due, and is illegal:

The next claim, viz:

3. In so far as it condemns the executor to account for and pay over to the succession the sum of $920.” If this were rejected it would be an approval of all the illegal demands presented.

It is the balance heretofore established to be due.

Lastly :

4. “In so far as it removes the executor from his trust and destitutes him from his office as executor.”

In the matter of the settlement of successions great discretion necessarily vests with the District Courts. Those who are appointed to represent heirs, legatees and creditors are, as it were, under their immediate supervision. Their orders should be followed except when clearly illegal.

In the trial of this opposition, it was proven without objection as to form that, the executor has not followed the mandates of testatrix as expressed in her will.

Nothing has been done to inter the remains of the testatrix and her son as directed. Legatees have been placed in possession of legacies to which they had no right at the time of the delivery. Bills have been paid without the court’s order, and some of them, it is proven, were not due.

Ordinarily a direct action must be instituted to destitute an executor from his office, but when the evidence establishes a total disregard of the requirements of law, and an absolute refusal to comply with the court’s direction, an executor, after his dismissal, will not be reinstated on appeal and replaced in office, although the dismissal be made on rule, or on trial of an opposition to his accounts, when in the opposition charges of maladministration are made and proven. R. Peale vs. White, 7 An. 449; Succession Townsend, 37 An. 407; Gray vs. Naddellaud, 33 An. 1021.

It is ordered, adjudged and decreed that the judgment appealed from be amended by allowing appellant the -sum of $50 for services rendered as agent, thereby increasing the debts paid to $2180, and lowering the balance due of $870 instead of $920.

After amendment, judgment affirmed at appellee’s costs.

On Application for a Rehearing.

The executor, through counsel, in his first brief states:

“The judgment also-condemns the executor to account to the succession for a sum of $920.12 with interest from the date of payment. This item has neither pleading nor proof to support it, and how the judge charges the executor with it we fail to understand.”

In the brief for rehearing, counsel states:

“Upon the call of the legatees, on the order of the court the executor filed his bank books, which are before this court in the original, and show a balance in the Whitney National Bank of §919.88, and in the Canal Bank of $85.89. This money, after the appointment of the public administrator as dative testamentary executor, was delivered to him.”
“ Therefore, that portion of the judgment, which as amended by your Honors, condemns the executor to pay $870.12, if allowed to stand would impose upon him a double liability. It should be but the sum of $90. The two items of $25 and $65, which the court has held he improperly paid himself.”

The payment of this amount (which is the balance found due by us after deducting $50, allowed the executor, which had been rejected by the District Court), if paid, has been paid since the trial, and must in that event be carried to the credit of the judgment.

There is no double charge, and but one payment can be exacted.

There is no evidence before the court to show that payment has been made since the judgment, and no payment could have been made prior.

But if payment has been made as contended by counsel, the receipt will protect the executor from a second payment.

Another question of fact, alleged .as a ground for a new trial, is equally as unfounded.

The executor’s counsel claimed that he was overcharged in matter of the bond due by the City of New Orleans, delivered to one of the legatees, and directed to be returned or its value to be paid to-the succession.

Although the principal is $1000, it was appraised when the inventory of the succession assets was taken at $1090 (owing to interest). In the judgment appealed from it is carried for $1109. In his own account the executor charges the legatee with $1109, value of the bond fixed by himself.

This account has been homologated since the 21st day of August, 1889.

The accountant, at the time, fixed this value. This court has adopted his estimate of its value as charged in his account, viz: $1109.

Rehearing refused.


text:
    No. 10,712.
    The Barber Asphalt Paving Company vs. City of New Orleans et als.
    1. Tlie debts for permanent improvements oí one year can not legally bo left unpaid and the “ reserve fund55 for that year applied toward paying the improvements made in another yeax*.
    “The revenues of each year shall be devoted to the expenses of that year;” i. <?., the creditors for the improvements made during the year shall have preference over the reserve fund for the year.
    The Acts creating a “ reserve fund” have fixed apercentagc which constitutes the reserve; has provided the purpose for which it shall be expended; but has not repealed Act 30 of 1877 in so far as it applies to annual revenue and expenditure.
    2. The 20 per cent, reservo for permanent improvements is made part of the budget by the Statutes, and can be drawn against by special ordinance for permanent improvement during the year, although not made part, in express terms, of the annual budget of expenses.
    Ooal used in running the draining machines, and timber in making repairs, not capable of being identified as separate improvements, are not permanent ixxxprovenxents within the intendment of the Statute.
    APPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      Leovy & Blair for Plaintiff and Intervenor, Appellees:
    I.
    The brief contains an abstract of the pleadings and a full statement of the facts. There is no dispute about the essential facts of the case. They are neither admitted or established by uncontradicted evidence.
    II

      (a) Exception of no right of action.
    1. The requirements of the City charter in respect to an annual estimate or budget of expenses and revenues does not apply to the reserve fund. State ex rel. Barber Asphalt Paving Company vs. City, 40 An. 300.
    2.Hence the City is not obliged to state in its annual estimate of expenses the disposition it proposes to make of the reserve fund, and to specify at the beginning of tho year all the permanent public improvements which it proposes to pay for out of this fund. And the appropriations against this fund made in plaintiff’s favor subsequent to the adoption of the annual budget are valid and affective.
    8. The allegations in the petition that tho City Council is about to use the reserve fundto pay claims which are illegal and constitute no part of the City’s indebtedness and also to divert the fund from its legal destination by paying fcherc- ' with debts not due for permanent public improvements, and that this legal waste and diversion of the fund will leave it’insuffieient to satisfy the claims of plaintiff, lawfully payable out of it, disclose a,right of action in plaintiff to prosecute this suit.
    4. Tnis suit is analogous to conatrsus of the creditors of an insolvent or of a succession or to a contest of a junior with a senior mortgage. The right of one claimant to assail another's claim is not affected by the order of time in which tho claims come into existence. Kenedy, .Jr. et als. vs. Bust et als., 25 An. 054; IMekergill vs. Brown, 7 An. 306.
    5. The intervenor, who is a citizen and tax-payer, and has come into court to join the attack of the plaintiff upon the defendant, has a clear right, under the charges made by him, to contest'the validity of the municipal ordinances, and contracts executed thereunder concerned in this suit. Handy et als., vs. City et als., 39 An. 107; Conery et als., vs. City, Id. 770.

      (b) The case against C. J. Bayssoux and the Rosetta Gravel Paving and Improvement Company.
    1. Municipal corporations have such powers as tho general laws or their charters expressly confer upon them, or such as are necessary to exercise the powers expressl3r conferred, and none other. Any fair reasonable doubt concerning the existence of power is to be resolved by the court against the corporation and the power denied. 1 Dillon Mini. Coip., (3 TCd.) Sec. 89, p. 15, Sec. 16, p 23, p. 118.
    2. "When the law prescribes the mode in which a certain kind of contract is to ho made, that the contract must be made in accordance with the prescribed mode and its attendant formalities; otherwise it is invalid. The mode is the measure of the power. Id. Sec. 449, p. 443.
    3. A municipal corporation necessarily acts through its agents. The City Council is not the City, but simply one of its agents. When these agents act beyond the scope of their authority or the powers of the corporation, they cease to represent the City, and their acts and contracts do not bind it and confer no rights upon those who contracted with them. Id. Sec. 21, p. 28; Sec. 457, p. 450.
    4. Those who contract with the agents of a municipal corporation are presumed to know, are bound at their peril to know, the limitation upon the powers of such agents and of the corporation. They can not be heard to complain when ultra vires contracts are annulled and they lose the value of labor done or materials furnished under such invalid contracts. The are participes crminis of the corporate agents with whom they have joined in making illegal or ultra vires contracts. Id. Sec. 447, p. 441.
    A municipal corporation can not be estopped by any ratification or confirmation made by its agents in respect to their ultra rires acts or contracts. Id. Sec. 504, p. 486; Newberry vs. Pox, 33 Northwestern Reporter, pp. 333, 334; Marsh ys. Pulton, 10 Wail., pp. 683, 684.
    6. The foregoing elementary principles of the law of municipal corporations are announced also in the following cases: Thomas vs. Richmond, 12 Wall., pp. 354, 356; Pox vs. Sloo, 10 An. 11; Burchfield vs. City, 42 An. —; Succession of Chaurand, 36 An. 547; McDonald vs. Mayor, 63 N. Y. 23 (23 Amer. Rep. 144).
    (а) The Payssoux claim.
    1. This claim is not due by the City'in virtue of any express contract obligation. It is admitted that the portion which the City bound itself to pay in the only contract entered into has been paid. The contract expressly exempts it from liability for the portion now claimed.
    2. It is not due in virtue of any responsibility on the City’s part for the contractor’s failure to collect from the property owners, or by reason of any warranty express or implied. Moylah vs. City, 32 An 673; Daly vs. City and County of San Prancisoo, 13 Dae. Rep. 322; Sexton vs. City of Joseph, 60 Mo. 153; McDonald vs. Mayor, 68 N. Y. 23 (23 Am. Rep. 144).
    3. The cases of Cole vs. City of Shreveport, 41 An, 839. and of Hitchcock vs. Galves- ' ton, 96 II. S. 341, discussed and differentiated. There was an absolute want of power on the part of the City Council to impose upon the City at large any greater portion of the cost of paving one of its streets that tile cost of paving the intersections.
    4. An additional reason for not holding the City responsible for the propex-ty owner’s pox-tion on the presumption of benefits received is, that the paving laws repel the presumption that a greater benefit that the cost of paving intersections is received by the City at large. Paving laws discussed.
    5. The absence of any liability on the part of the City for the claim which the City Council seeks to pay at the expense of lawful creditors res judicata. . Payssoux vs.'City of New Orleans, asuit decided by the Civil District Court, the record of which is in the transcript.
    6. The sole source and cause of the City’s allege obligation to Payssoux is an ordinance of appropriation passed in his favor by the City Council. Inability of the City Council to thus create an indebtedness pointed out. Repugnancy of tile ordinance to Article 45 of the Constitution shown.
    7. Effect of Payssoux’s rights, if any, to remove the unpaid for port ion of the pavements discussed.
    (б) The claim of the Rosetta Gravel Paving and Improving Company.
    1. This claim arose under a contract disguised as a contract for repairing, but really one for the paving or rather re-paving of a paved street, entered into by the City Council on its own motion, without pi-ior public notice and without any petition of property owners, anti imposing the entire cost of the paving upon the City at large.
    2. Tlio powers of the City Council under the present and past charters of the City discussed with a viewto showing the wantof power to make a contract such as was made with this claimant.
    3. The contract under which the Rosetta Company claims is also null and Void beeauae made in violation of Section 21 of the City charter, Act 20 of 1882.
    (c) Claims under the appropriation of $25,200 “for material for public improvements.”
    1. The City Council is prohibited by law from using the reserveiund for any other purpose than to pay l'or work of permanent public improvement'.

      2,The nature and origin of the claims of Adams and.the Milner Coal Company discussed and shown not to be due for permanent public improvements.

      (d) Amendment in the judgment of the lower court prayed by for plaintiff and intervenor.
    1.' The Court erred in striking the item of $8279.59 from the list of claims payable out of the reserve fund of 1887.
    2. If not entitled to be restored to the place assigned it by the City Council, this item is certainly entitled to be paid out of the fund after all claims Jegally payable therewith have been satisfied.

      Qarleton Hunt, Gity Attorney, for Defendant and Appellant:
    The City Comptroller is hound to audit, and the City Treasurer to draw, for claims of creditors against the City, just as the same have been budgeted, and appropriated for by the City Council.
    Section 6G of Act 20 of 1882, as amended and redacted by Act 109 of 1886, reserving, as it does, 20 per cent, of the revenues of the City, for purposes of permanent public improvement, interferes in no manner with the legislative discretion which theCouncilneeessarily exercises in making appropriations under theAct.
    This court will look with favor upon the construction put by the Council on its own rights and duties, and has declared its indisposition to interfere therewith. 32 An. 82; 33 An. 478; 42 An. 60S.

      Buck, Dinkelspiel & Hart, for Fayssonx, Defendant and Appellant-:
    1. The stipulation in a paving contract entered into with the City contemplating payment by front proprietors, that “ the City be not held liable or responsible for any of said bills should same not bepaid” means nothing more than that the City is not a surety or warrantor of their solvency or of the sufficiency of the property to pay for the paving.
    2. The Gity making the contract with a view to compel unwilling property holders does so under and by means of her legislative sovereign power to levy taxes and impose assessments. She warrants her power and the validity of her assessment or legislation, and when the assessment can not be collected by reason of legal defect or informalities, which strike it with nullity, the contractor has a claim against thq City; if not on the terms and letter of the contract, at least on a quantum meruit. Burchfield vs. City, Condran vs. City (No. 10,719), not yet reported.
    3. And this liability exists in the face of a stipulation that the corporation shall not be liable if the mode of payment in the contract provided fails. Colevs. Shreveport, 41 An. 836; 5 An. 537; Scmel vs. Gould et al., 12 An. 225. and authorities cited in brief.
    4. Whatever may have been the status or liability of the City of New Orleans, under such a contract, originally to the contractor, whose contract, by judicial ‘interpretation, gave him no claims against front proprietors, a judgment of a court of competent jurisdiction rendered in a cause between the contractor and the City on an issue seeking to hold the City on quantum meruit, rejecting plaintiffs, the contractor’s demand, but reserving his right as against the City to take up the pavement (the material, square blocks),‘uhappealed from, and apparently acquiesced in, is sufficient consideration to sustain an appropriation of money to pay for the pavement and so retain it.

      5. A proper motive and consideration appearing, the court will not usurp legislative functions to inquire into the sufficiency of the consideration, or the policy of the motive on which the City Council acted; though to enforce its own conclusions, it takes notice of the facts in the record, that this paving was upon important public thoroughfares; necessary to make easy approach for heavy vehicles to the levee; that the streets were in bad condition before the paving was done; that in the course of a few years the City had expended, to keep them merely temporarily in repair, as much or more than the cost of this paving, and that the contract price is about the actual and usual value of such paving.
    O. The power on the part of the City Council to acquire and purchase such pavement in this manner is clearly deducible both from the general power on control and duty to maintain streets in order, and from special power to order paving of streets, at the expense of the whole City (Charter, Sec. 27, Act 20,3882), as well as from the unlimited power to contract for works of public improvement and pay for same “out of reserve fund,” or such other special funds as as may bo at the City’s'* disposal.
    7. That portion of the city revenues constituting what is known as the “Reserve Ifund,” is not subject to the restrictions imposed on the City in regard to current revenues for annual alimony. It is a continuous perpetual fund, and the only condition attaching* to its use or appropriation is that it shall be appropriated for works of public improvement. 40 An., p. 360.
    8. The paving or repaving of a street with square block pavement is a work of permanent public improvement, in the sense of the statutes under consideration.
    9. An ordinance of the City Council directing payment for such work out of “ Reserve Fund,” of a future year, is valid and can not be set aside to the prejudice of a beneficiary for the benefit of rights or claims aeciuing subsequent to his.
    A “budget appropriation” of any part of this reserve fund, of any year, is a sufficient setting aside thereof, especially when sufficient in amount, object and person, to compel the comptroller to hold said amount for the payee designated in the budget. The right thus fixed by the budget can not be impaired by mere so-called “financial ordinances” authorizing actual payment to be made by the comptroller, under and against other appropriations of part of said fund. Where a specific appropriation, for a certain amount, purpose, etc., and to a person named, is made in the budget of appropriations, the amount can legally and l>roperly be paid by the comptroller as soon as the money contemplated comes into his hands, without further special order or so-called “financial ordinance.” In any event, it can not be diverted to other uses, causes, or persons.
    Chas. Louque fox* Milnei* Coal and Railx*oad Company, Defendant and Appellant:
    The Barber Asphalt Company can not be paid out of the reserve fund of 1887 for work done in 1886 and 1883.
    Ifor their work done in 1887 there is no appropriation to meet their claim, and the comptroller is forbidden to pay without an appropriation, which can only be made in the budget.
    Vayssoux bound himself by contract to make no claim against the City, lie should not be paid: Because the Constitution prohibits the City from paying extra compensation to a contractor.

      Because the City can not pay a claim arising' from a contract made without express authority of law; the Supreme Court so declared. 36 An. 547.
    Because his contract was entered into in 1882.
    ■Lumber is as permanent as asphalt, and when used to repair or construct bridges it is used for works of permanent public improvement; the repairs make the work permanent.
    The burning' of coal is the only means of rendering the drainage permanent. This is a work of great public improvement.
    The Council has the right to appropriate the reserve fund for work of public improvements. If Adams and Milner are not to be paid out of the appropriation of $25,200, it does not revert to the Barber Asphalt Company.
    .The reserve fund should be appropriated in the budget, in the same manner as the alimony.
   The opinion of the court was delivered by

Breaux, J.

This is a suit to recover an amount from the City of New Orleans, for paving the intersections of certain streets, and one-fourth of the cost of paving in front of private property.

We abbreviate the pleadings as follows:

Plaintiff claims for cost of paving completed April 30, 1886, the City’s portion, amounting to $7665.83, and that completed June 29, 1886, $603.86.

The City Council appropriated $8279.59 to its payment out of the reserve fund for 1887.

For cost of paving completed in 1887 plaintiff claims $36,173.58. Part was completed in May of that year, and part in June. This sum was ordered to be paid out of the reserve fund for 1887.

The legality of the contract is alleged, and the performance of the work as stipulated.

Act No. 109 of 1886, amendatory of the City Charter of 1882, and Act 88 of 1884, requiring the City to set aside 20 per cent, of her revenue and of allotments received from contingent sources, to pay for permanent improvements, are pleaded, and plaintiff represents that this fund is about to be illegally disposed of, in great part, to -its prejudice. That the comptroller is about to warrant for payment to be made, in the order of claims, as set down in the budget. That this reserve fund will prove insufficient to pay all the claims on the list, and petitioner contests those which the comptroller proposes to pay before its own. He prayed for an injunction enjoining any payment out of the revenue fund of 1887, to C. J. Fayssoux and other defendants named.

The City and the Comptroller plead to carry out the budget as adopted.

The defendant C. J. Fayssoux, and J. W. Adams, another defendant, filed exceptions of no cause of action.

The former, in his answer, denied the allegations of plaintiff, especially those as to illegality of the apportionment, in his favor, and claimed to be paid out of the “reserve fund” for 1887. The latter alleged that plaintiff had no right to any part of that fund. The other answers are substantially the same, except that in one estoppel is pleaded on the ground that, plaintiff’s claim, not having been budgetted at the time the annual budget was adopted, but afterward, by special ordinance, it was without right to recover.

J. Tupper, alleging that he is a creditor, and that he owns taxable propertj’' in New Orleans and pays taxes thereon, intervened and opposed the claims other than plaintiff’s.

Facts in the Case.

A few facts, general and applying to all claims, will be stated at this time. The statement of the others will be made in considering the respective claims.

It is conceded by all parties that the reserve fund of 1887 is insufficient to satisfy all claims appropriated against.

None of the claims are for permanent improvements made in 1887, except part of that of plaintiff, amounting to $36,173.58, and the claims of J. W. .Adams and that of the Milner Coal and Railroad Company.

The two last are opposed as not being for permanent improvements.

Before considering the claims separately, certain questions of law will be discussed.

1. Whether debts for permanent improvements of one year can be left unpaid and the reserve fund of that year applied to the improvements made in another year?

It is contended by most of the creditors whose claims are carried on the budget, that the reserve fund is unconditionally placed at the disposal of the City Council, to pay for permanent improvements without regard to the year in which a particular work or improvement may be contracted for.

That the “reserve fund” provision would be without force if the Council is bound to apply each year’s reserve to work to be done in that year.

The object of the legislature to eradicate the evil of appropriations and expenditures in excess of actual resource; an evil sorely felt during a number of years of extravagance and waste will not be advanced by construing away the law limiting revenues to the payment of the expenditure to the year for which they are collected.

Act 50 of 1877 reads: “That the revenues of each year shall be devoted to the expenses of that year” (i. e. the creditors have preference over the fund).

The reserve fund is part of the revenue.

If a repeal has been effected in so far as relates to that fund, why is the act not repealed in so far as relates to the alimony of the city? One is for permanent improvements, the other for the operative expenses of the city. All revenues and all expenses include the 20 per cent, and the 80 per cent. The statutes have not established any difference in this respect.

If the “ reserve fund law had not been adopted, part of the fund would doubtless be expended in making improvements of a permanent character; in paying for them the limitation Act of 1877 would be enforced.

The Acts creating a “reserve fund” have only fixed the percentage to be taken from the revenues.

If the Legislature had ordered a fund reserved of 5 per cent, for any purpose of alimony, this would not have effected a repeal of the limitation to that extent. Why should it be different when claims are presented for permanent improvement.

The first law provides a limit; annual stops and rests, as it were, settlements.

The second provides a reserve fund.

There is no conflict, both can be enforced.

There is no repeal by implication.

The argument ab inconvenienti does not recommend itself to special favor.

If there be inconveniences or annoying hindrances to its enforcement, we sincerely hope that it will attract the attention of the members of the Legislature, who alone are competent to abolish it.

Another question is suggested.

• 2. Must the particular improvement be designated and provided for in the annual budget? Act 109 of 1886, and the provision of the charter, Sections 64 and 65, obviously make the 20 per cent. “ reserve ” part of the annual budget ill effect at least. The reserve is excluded from the rule which prescribes, from year to year, that a budget of revenues and expenses be adopted.

This expenditure is provided for by the Statute; the amount and the purposes to which it shall be applied, whether expressed or not in the budget, is made a part of the budget by Statute.

The claim of the plaintiff, the Barber Asphalt Paving Company.

This claim has been proven. $8279.69 of the amount are due for improvements in another year and are not collectible out of the funds of 1887. The remainder of the work was performed as alleged and the amount is due from the reserve fund” for'that year.

Objection is made by the City to the payment of legal interest out of this fund.

It has been twice decided by a unanimous court in suits against the City that in the absence of any stipulation, no interest shall be allowed prior to amicable demand and prior to funds being in the treasury of the City for its payment. Fernandez vs. New Orleans 42 An. 1; Fire Engine Co. vs. City, 89 An. 981.

It only remains for us to apply the principle held settled by jurisprudence. The right to recover legal interest dates from the time the City has the needful amount to pay, and defaults in payment.

The claim of C. J. Fayssoux.

This claim dates from 1882.

The contract for paving streets named was made in conformity with Act 78 of 1876, and it stipulates that the cost of the pavement shall be paid by the City in part and the balance by the owner of the property fronting on the street, and that the City shall not be held liable or responsible for the failure of the contractor to collect from the front proprietor.

The City paid its portion, some of the tax-payers resisted payment, suits were brought. One of these suits was brought here on appeal. Fayssoux vs. Succession of Chaurand, 36 An. 547.

The plaintiff then brought suit against the City of New. Orleans, and claimed from the City amounts he had failed to recover from the property owners.

The City answered that it was in express terms stipulated in the contract that on failure to collect from the front proprietors the City was not to be held responsible.

The City also plead prescription.

Judgment was rendered on July 3, 1885, in favor of the City, rejecting plaintiff’s demand reserving, however, to plaintiff the right to take up and repossess himself of the material used in proportion to the whole amount of the paving done by him.

There was absence of appeal.

The City Council, in November of that year, passed an ordinance appropriating from the “reserve fund ” of 1883, for its payment. It not having been paid from that fund it was budgetted to be paid out of the “ reserve ” of 1887.

No part of the improvement was made that year, and therefore the claim has no preference over its revenues.

The plaintiff applies to have the judgment appealed from amended in so far as it fails to decree that this claim is illegal and constitutes no part of the valid indebtedness of New Orleans.

The question relates to the authority vel non of the City Council to assume the payment of this claim.

The Council passed ordinances to assume the debt.

We have granted to plaintiff all it prayed for by excluding this claim from any preference over the reserve ” for 1887.

The judge a quo without assigning the reason did not decide the question of the validity or invalidity of the assumpsit. He doubtless deemed it unnecessary. In this view we agree with him.

The claim of the Rosetta Gravel Paving' and Improvement Company.

This company is not represented by counsel in this suit and no demand is urged in its behalf.

There-was a contract entered into between the city and this company in September, 1887.

By mutual consent it was annulled, and another entered into in July, 1888.

The work was performed in 1888 under the last contract.

The company abandoned expressly all claims under the annulled contract.

The consideration for the work under the contract of 1888 was $30,000, payable out of the fund for the year 1887, and $15,000 but of the suspense account for 1885. The reserve for 1887, presents the only question involved in this case. The records disclose that the prerequisites were complied with prior to the contract.

The claim has no preference on the revenues of 1887.

The Milner Coal and Railroad Company and the J. W. Adams’ ■ Claims.

The claim of the former is for coal furnished during the year 1887, and of the latter for lumber furnished during the same year.

The coal was used for operating the drainage machines, and the lumber for general repairs.

The reserve fund is to be used in paying for permanent public improvements. Coal used in creating steam has none of the elements of permanence. The same is true cf lumber used in making general repairs.

The boards used in repairing an old house, the sleepers and other timbers laid down in a bridge to replace decayed ones, are not permanent improvements.

An improvement is net permanent unless it is durable, distinct, and susceptible of identification. One generation builds and leaves them to future generations.

In this case the improvements are not susceptible of identification. At any rate, no proof was offered to identify them.

Plaintiff prays to be paid out of the “reserve fund” of 1887, and that the city be enjoined from paying its co-defendants from the reserve fund of that year.

The prayer of the petition determines the character of the action.

The intervenor joins the plaintiff in enjoining the payments of any of the claims of these defendants. The prayer is granted except as to interest in the sum of $8279.59, except, also, as to the interest on the balance, viz: on $36,173.58, allowed from date of maturity of indebtedness by the decree of the court a qua, but which should be allowed only from judicial demand.

The judgment appealed from is amended by rejecting the de- ■ mand for interest from the reserve fund of 1887 prior to judicial demand; and we now allow interest only from judicial demand, and that appellees pay costs of appeal in proportion to their respective claims.

As amended, judgment affirmed.

Rehearing refused.


author: Bermudez. O. J.

text:
    No. 10,731.
    Succession of Solomon Weis.
    Doubtful claims against an applicant for tlie administration of a succession are insufficient to exclude him, particularly where he raises counter pretensions for alike or larger amount against the deceased, and enjoys a good character and the confidence of the opponent.
    If he be liable and fails to charge himself with the debt, on an opposition by the parties concerned, duly proved, the court will have power to hold him.
    The exercise of discretion in such matters by the probate judge, will not be lightly interfered with by the appellate court.
    In the absence of a joinder in the appeal, or of a prayer to amend in this court, by an appellee, the judgment appealed from, as to him, must remain undisturbed.
    APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      H. L. Lazarus and G. A. Breaux for Applicant and Appellant.

      Moise & Fitehe for Opponent and Appellee.
   The opinion of the court was delivered by

Bermudez. O. J.

This is a contest for the administration of this . succession.

The public administrator first sought the appointment. He was opposed by Ferdinand Weis. These two met opposition from Louis Weis, who urged his own appointment by preference.

The District Judge, after hearing, appointed Ferdinand Weis, dismissing the petition of the public administrator and the opposition of Louis Weis.

The latter appeals, and; the public administrator does not join or ask an amendment of the judgment, which, as to Mm, must remain undisturbed.

Ferdinand and Louis Weis are the brothers of the deceased.'

The main ground upon which the appellant relies to defeat the pretensions of Ferdinand Weis is that he is a debtor of the estate.

It appears that the deceased actually left only'$200 in cash, and $557 in a note, the inventory showing, however, claims amounting to upward of $10,000 against Ferdinand Weis for as much collected by him as the amount of life insurance policies.

Those claims were inserted in the inventory, made at the instance of the public administrator, but which is not signed by Ferdinand Weis, who, far from admitting a liability, claims that his brother died owing him as much and more.

It seems that Ferdinand Weis enjoys the confidence of Louis Weis and of their sister, and that it is at their instance that he inter-meddled with the affairs of the estate, to some extent.

He is perfectly reliable, can give a good bond, and if it be true that he is indebted to the estate and fail to charge himself with the debt, when he shall file an account on an opposition, the court will have power to hold him, should the proof warrant.

We think the District Judge exercised a sound discretion in appointing Ferdinand Weis.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,722.
    John Henry & Co. J. T. Bew & Co. On Traverse of Answers of Garnishees.
    Answers of garnishees to interrogatories are presumed to be truthful and entitled to full credit until traversed successfully by conclusive proof.
    •Service of garnishment process on parties supposed to have in their control prop- . orty belonging to a defendant against whom .an attachment lias been issued, secures nothing when made after such property has passed from thepossession of the garishees.
    APPEAL from the Civil District Court, Parish of Orleans. Ellis, J.

      J. C. <& S> L. Gilmore for Plaintiffs and Appellants:
    . On a traverse of answers of garnishees the issue as to the garnishees is one of possession in their hands of property of defendant. Garnishees will not be permitted to wage claims of third parties to property in their hands; they have no interest in property seized, and can protect themselves by giving notice of the seizure to third parties claiming, who can properly appear by intervention and third opposition. Code of Pratiee; Germania Savings Bank vs. Peuser, 40 Air. 797; Obor, Nancer & Co. vs. Matthews, 24 An. 90.
    2. When garnishees and such claimants are divisions of the same firm or firms connected with each other in close relation, as principal and agent, representing a unit or identity of interest or common concerns under a sale, and the said claimants forbear to intervene, but after a judgment on the traverse actually become eo nomine intervenors, the deed set up by the parties can be treated as simulated and fraudulent on trial of traverse of the answers of the garnishee, without resort to th.e direct or revocatory action. Lahitle vs. Frere* etc., 42 An. 870.
    3. A sale does not include property which it docs not call for. A deed of sale in Mississippi, which does not mention immovable property, fifty-seven bales of cotton, precedently shipped to a New Orleans firm, and presumably in this State, will not defeat the recourse of domestic creditors in Louisiana of the vendor garnisheeing the cotton in this City before delivery to the vendees. A simple taking possession in this City in the hands of oilier persons without intermediation of the vendor in Mississippi will not constitute delivery of the cotton under another general designation in the deed, the omes is on the parly occupying position of intervenor. Ober Nanson case, 24 An. pp. 90, 94; Rev. C' 0.Arts. 491,1922,1923, 2247, 2642,2643, 2644; Oliver vs. Towne, 2 N. S. p. 97; Beirne & Burnside vs. Patton, 17 La. 589, and authorities cited in brief. Wharton on Conflict. Laws, pp. 491,319, 362, 406, etc.; Benjamin on Sales, p. 510.
    4. Under the law of Louisiana delivery is necessary to complete a sale, as to creditors — and delivery of movables under a foreign assignment is necessary to invest the title and defeat seizure of the property in this State by a domestic creditor. Nothing short of possession as owner will defeat an attaching or seizing creditor. Arts. R. O. O. above cited. Gasauet vs. Johnson, 2 La. 514.
    Bayne, Denégre <& Bayne and Riee & Armstrong for Garnishees and Appellees:
    1. The answers of the garnishees are not contradicted or shown to be untrue, but on the contrary are corroborated by all the evidence offered. In order to successfully traverse the answers of the garnishees they must bo “shown to bo false either by positive written proof or by the oath of two witnesses worthy of belief.” C. P. 264; Brier vs. Godchaux, 35 An. 206.
    2. Plaintiffs cannot by process of garnishment bring a revocation or other similar action, but must resort to a direct action, and this plaintiffs have done in another suit now’before this court (Rec. p. 180). Ivens vs. Ivens & Oo., 30 An. 249; 27 An. 456; 25 An. 369; 12 An. 814; Taylor vs. twenty-five hales of cotton, 26 An. 247; 19 An. 16; 33 An. 1026.
    3. When that case comes to be heard it will be tried under the issues therein presented, but can not be tried in this court under process of garnishment.
    4. Plaintiffs have not yet established by a judgment their claim against defendants and can have no judgment against garnishees. 21 An. 7; 14 An. 374; 5 Martin, N. S. 307.
   The opinion of the court was delivered by

Bermudez, C. J.

The plaintiffs appeal from a judgment dismissing .the rule taken by them, to traverse the answers by the garnishees made herein, under garnishment process, an attachment having issued against the defendants as nonresidents of the state.

The object in view was the subjection to the writ and plaintiff’s claim, of fifty-seven bales of cotton, consigned .from Mississippi to New Orleans, and considered at the time of the service of the process on the garnishees as still the property of the defendants.

The garnishees are Baldwin & Putnam and Ohaffe, Powell & West.'

They answered the interrogatories in the negative.

They were served on November 20, 1889.

They contend that prior to the service they had parted with, and had delivered the cotton to the rightful owners.

It is satisfactorily established that the cotton was bought from the defendants, in Mississippi, for account of Ohaffe & Powell, of this city; that by some mistake, though consigned to Ohaffe, Powell & West for their account, it was sent to Baldwin & Putnam; but. that, on discovery of the error, this firm was directed to turn the cotton over to the latter firm, for account of the former, which was in liquidation, and that accordingly, Baldwin & Putnam delivered the cotton to Ohaffe, Powell & West, who received it and transferred it to Ohaffe & Powell, the rightful parties; all this beforp the attachment, or garnishment process had been served.

If it be true, as contended by the plaintiffs, that the title to the cotton was inchoate until actual delivery, it is equally so that it was perfected the moment the cotton came to the possession of the purchasers. On that hypothesis, it follows, as a corollary, that, as the cotton was not seized while in the possession of Baldwin & Putnam, previous to its being turned over to Ohaffe, Powell & West, for account of Ohaffe & Powell, but only after, the creditors took nothing.

Under such state of facts, it is impossible to conceive how, in the presence of the unequivocal and peremptory denials of the garnishees, who are men of standing in the community, and, in the absence of conclusive proof, setting at naught their sworn declarations and establishing a quite different condition of things, they can be adjudged to have made false representations and be held to produce the cotton, or pay the $2564.22, which it realized.

The differences of the litigants were closely discussed below, but the District Judge, who heard and- saw the witnesses who testified before him, and who considered the other testimony and proof adduced, thought the garnishees told the truth. We can not conclude that he erred.

Judgment affirmed.


author: Eenner, J.

text:
    No. 10,724.
    Charles Macready and N. Burke, Executors, vs. Charles H. Schenck et al.
    1. Previous phases oí this litigation reviewed.
    2. The sureties on the bond of the liquidator bound themselves for his honest and faithful administration, and for his rendition of “ a true, just and perfect account of his actions and doings” as such; the object of the bond is to hold the obligees harmless from fraud, shortcomings and malpractices on his part.
    3. Neither the liquidator nor his sureties can shield themselves from responsibility for fraudulent waste and conversion of assets because effected by means. of sale under a judicial order, during the pendency of an appeal from said order, on which it was. annulled and set aside, and when it is shown that the order was invoked and executed as a means of transferring the effects of the partnership to the liquidator himself, at a ruinous sacrifice, and with the fraudulent purpose to enrich himself enormously at the expense of his co-partner.
    4. The law furnishes a remedy against fraud, whatever guise it may assume, and even when perpetrated through the machinery of judicial ordersand decrees, where the court is made its unconscious instrument, it is not beyond remedy when exposed.
    A PPEAL from the Civil District Court for the Parish of Orleans. A 'Monroe, J.

      Thos. J. Semmes, J. A. Bozier and J. O. & 8. L. Gilmore for Plaintiffs and Appellees.

      W. S. Benedict and George 3. Theard for Defendants and Appellants.
   The opinion of the court was delivered by

Eenner, J.

A brief resumé of the past phases of this litigation is as follows:

The late Margaret Haughery and Bernard Klotz were in partnership at the death of the former’.

The articles of the partnership agreement provided that in case of the death of either partner previous to the expiration of the term agreed on, “the business should be conducted by the survivor for his or her benefit, and for that of the legal representatives of the deceased partner, so as to wind up the concern without any detriment thereto, and thereafter the survivor should make and render a true, just and final account of all things relating to the business, and a true adjustment and division of the stock and profits thereof.”

Under this article, Klotz conducted the business for six months after Margaret’s death, but without taking any steps toward “winding up the concern.”

He then applied to the court to be appointed liquidator of the partnership, which was opposed by the executors of Margaret; but the court nevertheless granted the order appointing him, on a bond for 840,000, which he furnished, with the present defendants as sureties thereon. He also procured an order for an inventory of the partnership, which was taken under his own supervision, and was homologated on his own petition.

The executors appealed devolutively from the order appointing him liquidator, but notwithstanding said appeal, Klotz proceeded rapidly to force the liquidation, by proceeding, almost immediately after appointment, to procure an order for the sale at public auction of the merchandise and other movable property of the partnership, and, a little later, another order, for the sale of the immovables, fixtures, debts due the firm, etc. From these orders the executors also appealed. Our decision on these orders will be found in 35th An., p. 596, by which, for the reasons stated, ah these orders were annulled, avoided and reversed".

In the meantime, however, the sales had been effected, resulting in a ruinous sacrifice, and bringing but a trifle in comparison with the value placed on the effects very shortly before in the inventory taken and homologated at the instance of Klotz himself, and also with the sum which he had himself offered to pay for them before his appointment.

Next followed proceedings for an account between Klotz and the executors.

Klotz claimed the right to account on the basis of value as settled by the prices received at the auction sales. This was opposed by the executors. A vast amount of evidence was taken. • On the appeal taken to this court our decision appears in 39 An. 638.

We found, in substance, that the sale was a fraudulent device of Klotz to pass the property into his new firm, which he had formed to succeed the old, at insignificant prices; that, though apparently adjudicated to third persons, the property, or most of it, never left' his possession, but was immediately transferred to him at the same prices, conformably to a previous understanding, and that bidders were deterred at the sale, in some cases, on the representation expressly or impliedly made that the surviving partner was buying or intending to buy. We said: “Leaving out of view the question whether the order of sale was or not suspended by the appeal, it is manifest that from the incipiency throughout, Klotz was impelled by selfish considerations, the object of which was t,o enrich himself per fas aut nefas at the expense of his deceased partner.” We therefore entirely disregarded the prices bid at the sale; and held Klotz to account according to the values as fixed on his own inventory, on the theory that his proceedings amounted to an illegal waste and conversion of the partnership effects.

Instead, therefore, of the $3360, reported by him in his account, we gave judgment against Klotz for $31,341.65.

Klotz having failed to pay, the executors next instituted the instant proceeding against the sureties on his bond. They were met by legal exceptions which were sustained in the lower court, but on appeal this court overruled the exceptions and remanded the case to be tried on the merits. Executors vs. Schenck et al., 41 An. 456.

It now returns to us on appeal from a judgment of the District Court, condemning the sureties in the sum of $16,134.34, with interest.

The judge a quo rendered an able opinion from which we quote:

“Under the decision of the Supreme Court (41 An'. 456), the defendants, as sureties, are liable for the value of the assets of which their principal acquired possession under his appointment as liquidator, September 12, 1882, and which he subsequently caused to be sold at auction. Defendant’s counsel, if I understand them, assume that the values in question are fixed by the sales of the property, at the prices realized. But there are two reasons urged by plaintiff’s counsel why this can not be the case, viz: (1) It has been held that the sales in question were made without legal authority, and afford no protection to the liquidator or his sureties. (2) It is charged, and quoad the liquidator, it has been decided, that the prices realized at those sales were influenced in the interest of the liquidator by him and his friends. Both of these propositions are, in my judgment, well taken. • '

As to the first, there can bé no dispute. As to the second, dispute avails nothing for the fact exists. That those who bid in the property sold in the interest of the liquidator, and left it in his possession at the price at which it was adjudicated to them, may not have reflected at the moment that they were thereby aiding in depriving the succession of -the liquidator’s deceased partner of that which belonged to it, in order that the liquidator might he enriched, is possible; but the fact remains that the property which the liquidator was engaged in selling, and for which it was Ms duty as the representative of the partnership to obtain the highest possible price, was purchased by or for him through third persons, so that his personal interest was that it should be sold at the lowest possible price, thereby bringing his interest in conflict-with his duty.

The judge, therefore, followed the course of this court in the 39 An. case,-and entirely disregarded the auction sales as in any manner determining the value of the property.

Defendants very vigorously contend that1 the orders of sale, though appealed from, were effective until reversed, and authorized the sale made thereunder; that, if said sales had been fairly conducted the values realized thereat would have been conclusive; and that, even setting aside the actual sales on account of the illegal conduct of the liquidator, still the test of the real value for which they are liable must be the value which the property would have realized at said sales, had they been fairly conducted.

They then claim, and attempt to maintain by evidence, that, from its nature and situtation, the property derived almost its sole value from its employment in the particular businesss in which it was engaged, and that it had little or no value for other persons, and therefore could have brought but insignificant prices at the auction sales however fairly conducted.

These arguments, though plausible,, prove too much. They tin-mask and expose, in absolute nudity, the schemes of fraud involved' in this liquidation as we said in 39 An.' “ from its incipiency throughout.”

Here was property engaged in an established and profitable business, to which it was necessary, and for the purpose of which it had large value, admitted by Klotz himself prior to and at the very time when he inaugurated the litigation. But if he could only have it put up for sale at public auction, disconnected from the business, it would necessarily bring next to nothing.

To procure such a sale made it plain sailing for his interests. He would form a new firm to continue the business; he would take in the property at the sacrifices which the sale would involve; to him, in the new business, it would have the same value which, by his own confession, it had in the old, and yet would have cost him but a song, thus enabling him to enrich himself enormously at the expense of the succession of his deceased partner.

This explains why he rushed through .the liquidation and forced the sales, notwithstanding the appeals taken by the executors; and now, after this court has annulled all the proceedings, he and his sureties snap their fingers in the face of justice and say, “ the fraud is accomplished and can not be undone.”

We have already answered this contention when urged by Klotz, and we must make a like answer to his sureties. They have bound themselves for his honest and faithful administration as liquidator, and that he shall “ render a true and perfect account of his actions and doings” as such.

The object of the bond is to save the obligees harmless from the effect of frauds, shortcomings and malpractices on the part of the liquidator.

We are satisfied that he has designedly wrecked the trust committed to him, for his own interest and advantage. Neither he nor his sureties can protect themselves behind judicial orders provoked ex parte and subsequently annulled by this court.

The law is not powerless to remedy such a wrong. In the language of Mr. Burge: “ Crescit in orbe dolus; cases can not always be found to serve as direct- authority for subsequent cases, but if a case arise of fraud, or presumption of fraud, to which even no principle already established can be applied, a new principle" must be established to meet the fraud, just as the principles on which former cases have been decided have been from time to time established, as fraud contrived new devices; for the possibility will always exist that human ingenuity, in contriving fraud, will go beyond any cases which have before occurred.” Burge on Suretyship, p. 220.

Fraud perpetrated through the machinery of judicial orders and decrees, where the court is made the unconscious instrument, is not beyond remedy when exposed. Prats vs. Creditors, 5 Rob. 288; Blodget vs. Hogan, 10 An. 18.

We, therefore, agree with the judge a quo that the auction sales are to be entirely disregarded as affording any criterion of value.

His opinion proceeds as follows:

“The question now is, what was the real value of the 'property thus disposed of. After considering the various sources of information on the subject, I am satisfied that the ends of justice will be best subserved by accepting in most instances the values as stated in the account of the liquidator (Transcript, 9607, p. 517), and holding the defendants for the difference between these values and the prices at which the property was sold.
“An exception lies, however, in the case of the maehmery, which figures on said account at a valuation of $12,312.99, which sum, as taken from the books of Margaret Haughery & Oo., includes a good deal which is not to be taken into occount for the present purposes. Nor am I satisfied with the method suggested by plaintiff’s counsel for arriving at a valuation of the machinery. My conclusion, from all the evidence, is, that $7500 would fairly represent that value, including the new boilers sold to Schwartz, and that the difference between that sum and the amounts paid by Camors and Schwartz is the sum for which the defendants are liable.
“The La Joya stock is another exception. • I am satisfied from the affirmative evidence in the record that it is not worth the amount at Avhieh it was sold, and I don’t think the plaintiff can expect the court, conscientiously, to put them in a better position than if there had been no sale.
“The bad debts, also, have been shown affirmatively to be bad still. Upon the other hand, in the account of the liquidator, he credits himself with Expense ’ to the amount of $2001.04, none of which, as far as I can judge, save the item of $500 to Flower and $435.56 interest, are chargeable against Margaret’s succession, so that the liquidator’s account should be credited by 'Expenses’ in the sum of $935.56, instead of $2001.04; and the balance, as shown by that account, should be $4426.34, instead of $3360.86. Starting, then with this balance, and adding thereto the difference between the real value of the property sold and the prices at which the liquidator propose to account for it, we have:
BALANCE OF CASH AFTER CORRECTING:
“ By expenses, $4426.34.
“ Difference between value of the following personal property, and figure at which the same was sold by the liquidator, to-wit: Machinery, including boilers sold to Schwartz:

Plaintiffs claim an amendment increasing this judgment, while defendants contend that, even under the principles adopted by the court, it should be reduced.

We have carefully considered the particular contentions on either side, and are satisfied that the judgment as it stands does substantial justice.

We will only mention two points made by defendants, viz:

1. They claim that the value of 'the oven and chimney should be deducted from the machinery allowance. Obviously it ha's been deducted in the reduction made by the judge-in that item.

2. They suggest that the interest of Kioto as half-owner of the property' has been ignored. In as much as under the settlement made by this court Kioto stands condemned to pay to plaintiffs more than $31,000; his interest in these particular assets cuts no figure.

The other objections admits of equally conclusive answers; but it is useless to prolong an opinion already too much extended.

Judgment affirmed.


author: Fbnnbr, J.

text:
    No. 10,745.
    Michael Hackett vs. His Creditors.
    1. When the pvoces verbal oí the meeting of creditors shows a failure to elect a syndic, a petition by a creditor affirming the proceedings and praying- to be appointed syndic, is not an opposition required to ho filed within ten days after the meeting.
    2. Objections by an opponent to the .validity of votes east at the meeting examined and overruled.
    3. In «ase of failure to elect a syndic, and contest between two creditors for appointment as syndic, the judgment of the court appointing- tire sheriff will not be overruled on the complaint of the applying creditors when the result Ivould he only to remand the ease for choice between him and his opposing candidate, which would probably result in favor of the latter.
    A PPEAL from the Civil District Court, Parish of Orleans. Monroe, J.

      Aug. Bernau for Opponents and Appellants.

      W. S. Parkerson, contra:

   The opinion of the court was delivered by

Fbnnbr, J.

At the meeting of-creditors held for the purpose of electing a syndic, the result of the voting was: For L. Murray, five votes, representing $22.343; for Henry Théze, thirty-nine votes, representing $4437. Neither candidate having obtained a majority in both number and amount there was no election.

After the filing of the notary’s proees verbal of the meeting Henry Théze and Thos. J. McCarthy filed timely oppositions, attacking the validity of certain votes cast for Murray, alleging that these being stricken out, Théze received a majority of votes in amount as well as in number, and claiming that he should be declared duly elected. They further prayed that, in case it should be held that there was no election, then’that McCarthy, a creditor, be appointed syndic.

Philip Thompson, also a creditor, filed a petition, alleging that there was no election, assigning reasons why, in no event, Théze should be appointed, and asking to be himself appointed syndic.

Théze and McCarthy object to the reception or consideration of Thompson’s petition, on the ground that it was not filed within 11 ten days next following the meeting of creditors, as required by Section 1802 of the Revised Statutes.” This objection might have weighed if Thompson’s petition were an opposition to the proceedings before the notary; but instead of opposing, it distinctly affirms those proceedings, and asserts that, as shown by the proees verbal, there had been no election, and, therefore, asking for his own appointment. It was competent for him to make such application at any time before a syndic, was actually appointed. Two questions remain for determination:

1. Whether Théze was legally elected syndic.

2. Whether, if not, McCarthy should have been appointed.

1. If Théze received a majority in amount of legal votes, he was elected. Lesseps vs. Creditors, 7 An. 624.

He claims that the votes of several creditors, who voted for Murray, were illegal and should be rejected. We need only consider the case of Philip Thompson, for, if his vote was legal, Théze did not receive a majority in amount.

The first objection is, that Thompson appeared before the notary and cast his vote before the hour fixed for meeting. The order. of court does not fix any hour of meeting, but simply that it should be held on June 24, on which day Thompson voted. Although he may have voted before the hour fixed by the notary in his notices to the creditors, it is shown that he returned within proper hours and confirmed his vote.

Next, it is objected that he did iiot swear to the amount of his debt. He did not swear to the amount, but he -asked the notary to put it in pencil so that he might go to his store and verify it exactly. He subsequently returned and stated that the amount was correct, and it was then filled in with ink. Both the above objections are frivolous.

Finally, it is claimed that Thompson’s entire vote should be disregarded because, besides voting for syndic, he also voted to fix the terms for sale of the property. This does not affect his vote for syndic, which is the only question now before us. Spear vs. Oer, 40 Air. 650.

Thompson’s note was legally cast and counted, and it is clear that These was not elected syndic.

2. There being-no election there were two creditors applying to be appointed syndic, McCarthy and Thompson. Thompson was a creditor for over $16,000; McCarthy was a creditor for $74.

In such case of non-election, Article 1810, R. S', says: “It shall be lawful for the judge * * * to authorize the sheriff to perform in every respect the functions- of syndic, unless any of the creditors should choose to take that charge, in which case the judge shall appoint the creditor,” etc.

In this case the judge had the right to appoint either creditor. But it appears that Thompson suggested that to end the contest, he would forego his claim if the judge would appoint the sheriff. The judge did appoint the sheriff. If we vacated this appointment it would not authorize us to appoint McCarthy.. It would simply result in our remanding the case in order that the judge might choose between Thompson and McCarthy. Cui bono? Thompson prefers the sheriff to McCarthy. McCarthy and Thése would doubtless prefer the sheriff to Thompson.

Why prolong a fruitless contest to the manifest injury of creditors, whose interest lies in a prompt liquidation?

We may assume that if compelled to choose the judge would have selected Thompson, and that he accepted the suggestion to appoint the sheriff as an alternative agreeable to McCarthy and ThSse? Why should they complain?

Judgment affirmed.